Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. SJ11100B, Elizabeth A. Riggs, Judge. (Retired Judge of the San Diego sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
AARON, J.
Robert K. appeals the judgment terminating his parental rights over A. K. He contends that the juvenile court erred by terminating parental rights without first assessing the need to appoint a guardian ad litem to act on Robert's behalf in the dependency proceedings. We affirm.
BACKGROUND
In March 2006 when A.K. was only a few days old, the San Diego County Health and Human Services Agency filed a dependency petition because A.K.'s mother, Nicole R., tested positive for marijuana and admitted that she had used marijuana and methamphetamine during her pregnancy. Robert admitted daily marijuana use. A.K. was detained in the hospital, and later in a foster home. She was ultimately detained in the home of a relative. The detention with the relative eventually became a placement. The Welfare and Institutions Code section 366.26 hearing took place in May 2007.
THE FAILURE TO ASSESS THE NEED FOR
A GUARDIAN AD LITEM IS NOT REVERSIBLE ERROR
"When . . . an incompetent person . . . is a party, that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action . . . is pending . . . ." (Code Civ. Proc., § 372, subd. (a).) The court may appoint a guardian ad litem sua sponte. (Code Civ. Proc., § 373, subd. (c).) In a juvenile dependency proceeding, "[t]o exercise this authority, the court must obtain sufficient information that the parent does not understand the proceedings or cannot assist his/her attorney in protecting his/her interests." (In re Sara D. (2001) 87 Cal.App.4th 661, 672.) The standard for determining incompetence is whether the parent is able to understand the nature and consequences of the proceeding and assist counsel in the preparation of the parent's case in a rational manner. (In re Christina B. (1993) 19 Cal.App.4th 1441, 1450, citing Penal Code section 1367; In re Daniel S. (2004) 115 Cal.App.4th 903, 913.)
During the detention phase of this case, Robert told the social worker that he had "a temper" and that he had a metal plate in his head. Robert's temper was evidenced by his earlier physical abuse of Nicole's older daughter and his history of domestic violence and anger problems. In addition, Robert told the social worker "that people don't like to be told what to do and that people die for that shit everyday." Robert later stated that he had been using drugs since he was 13 years old and that he did not believe he should have to stop using. His source of support was Supplemental Security Income (SSI).
The record does not disclose why he received SSI.
At the detention hearing, Robert asked for appointed counsel and completed the appropriate form, as well as forms regarding paternity and Indian ancestry. Through counsel, Robert pointed out that his mailing address was different from his residential address, and confirmed the remaining statistical information in the petition. Robert's counsel stated that Robert had referred counsel to the summary of services listed in the detention report and expressed strong interest in obtaining those services.
At the jurisdictional hearing, counsel told the court that Robert was already enrolled in the Substance Abuse Recovery Management System (SARMS), that he was participating in a program, and that he wanted referrals so that he could enroll in other services on a voluntary basis.
At the April 2006 dispositional hearing, Robert made a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118). He articulately complained that his attorney had been late in arriving at court and was busy with other cases. During the hearing, Robert coherently answered the court's questions. When the court denied the Marsden motion, Robert said, "If you don't give me another lawyer, I won't come back to court." However, he did appear at nearly every subsequent hearing.
After the Marsden hearing concluded, counsel relayed to the court Robert's concern that he was unable to pay for services. Upon the court's inquiry, Robert said that he was participating in SARMS.
At a June 2006 hearing, Robert's attorney reported that Robert said that he was participating in a SARMS program called Pegasus, but that he did not want to continue in the program because it was not working for him. Robert's counsel stated that Robert said he had called the psychologist who was to perform his psychological evaluation and that he was waiting for a return call.
Although Robert had initially agreed to an evaluation and the court had ordered one, Robert later refused to submit to an evaluation.
In August 2006, Robert stabbed Nicole. In September the social worker reported that Robert had threatened to blow up his grandmother's house and told the social worker that he felt suicidal. In October Robert was booked into jail. That month, the juvenile court terminated reunification services and set the Welfare and Institutions Code section 366.26 hearing. At a hearing in November, Robert's attorney told the court that Robert had spotted an error in an address on an Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) notice form. Robert also confirmed various data on the form, such as his maternal grandmother's name, address, birth date and place of birth and his grandfather's telephone number.
In February 2007, approximately two weeks after the court granted Robert's request for a contested Welfare and Institutions Code section 366.26 hearing, the court received a letter from Robert. In the letter, Robert stated that he had been "under the influence of medications" and that he had had "insufficient time to process and or understand court procedures and or [his] rights. Robert asked the court to allow him "to withdraw the Plea/Statement giving up Parental Rights."
At the next hearing, Robert's attorney stated that he had discussed the letter with Robert. Counsel said that he was not clear as to whether Robert's letter referred to the jurisdictional hearing or some other aspect of the case. Counsel stated, "In one of the earlier proceedings he may have signed a waiver . . . regarding the taking of jurisdiction or a subsequent hearing such as a review hearing . . . .". Counsel also said that he had explained to Robert that the current hearing was a trial on the issue of the Agency's request to terminate parental rights, that he believed Robert understood this, and that Robert opposed termination of his parental rights.
The record contains the first page of a waiver of rights form, filed on March 29, 2006, the date of the jurisdictional hearing. The form bears Robert's name and that of his attorney and has a check mark in the box next to the phrase, "I wish to submit the petition on the basis of the social worker's report and other documents, if any." At the jurisdictional hearing, Robert said that he had signed and initialed the form, discussed it with counsel and understood the form. The court found that Robert had knowingly and intelligently waived his constitutional rights, that he understood the allegations of the petition and the possible consequences of the submission, and that the submission was freely and voluntarily made.
At the May 2007 Welfare and Institutions Code section 366.26 hearing, Robert's attorney requested a continuance, saying that Robert anticipated being released from jail by early June and wanted to pursue reunification with A.K. upon his release. Counsel related that, according to Robert, he had to undergo a psychiatric evaluation before his release. The Agency's counsel responded, "The social worker's understanding is that there have been some competency issues in the criminal proceedings. That is the purpose of the psychological and psychiatric evaluations; that there is not a release date; that the charges are standing; and that the delays are coming because there is some question as to whether or not [Robert] is competent to proceed and assist his criminal attorney in the criminal proceedings."
Robert claims that his wish to reunify, as related by counsel, shows that Robert "had no idea what was going on . . . " because "the time for reunification had come and gone." Robert argues that his counsel obviously knew that it was too late to reunify, "but felt duty-bound to nonetheless relate [Robert]'s wish to the court." We do not view this as an indication that Robert did not understand the proceedings. Counsel's statement is akin to the offer of proof he made at the Welfare and Institutions Code section 366.26 hearing that Robert "objects to the termination of his parental rights because he would like very much to be able to get out of custody and eventually be able to participate in parenting [A.K.]."
The record on appeal shows that Robert was angry, violent, and uncooperative with the Agency, but that he was also reasonably articulate, assertive, and able to participate intelligently in the hearings. It was clear that Robert objected to the termination of his parental rights and his attorney raised no concerns about Robert's ability to understand the nature of the proceedings or his ability and willingness to assist counsel. (In re R.S. (1985) 167 Cal.App.3d 946, 979-980; cf. In re Christina B., supra, 19 Cal.App.4th at p. 1451.)
Procedural matters frequently confuse parents who are involved in dependency cases, and it appears that is what occurred here. Robert was confused about the nature of the waiver of rights form filed at the jurisdictional hearing. He might also have been confused about when the reunification phase ended. In addition, he stated that he felt suicidal, that he had a metal plate in his head, and that he took medications. He received SSI. The social worker believed that an issue had been raised as to Robert's competency in the ongoing criminal proceedings. All of these factors suggest that the juvenile court should have inquired into Robert's competency.
The record as a whole, however, shows that there is no reasonable probability that the result would have been different if the court had appointed a guardian ad litem for Robert. (In re Celine R. (2003) 31 Cal.4th 45, 59-60 [defining harmless error standard]; In re Ronnell A. (1996) 44 Cal.App.4th 1352, 1368 [no prejudicial error in failing to appoint guardian ad litem sua sponte where court was aware of father's chronic mental illness and substance abuse, but father understood nature of the proceedings, participated meaningfully, and cooperated with counsel].) Robert did not follow through with the services he was offered and refused to stop using drugs. He visited A.K. at the outset of the case but his visits tapered off, and there were no visits between September 2006 and March 2007. A.K. did not recognize Robert, and their relationship was nonexistent. It is thus clear that Robert's parental rights would have been terminated even if the court had appointed a guardian ad litem to act on Robert's behalf. (Welf. & Inst. Code, § 366.26.) Any error in failing to inquire regarding Robert's competency was therefore harmless beyond a reasonable doubt.
DISPOSITION
Judgment affirmed.
WE CONCUR: HUFFMAN, Acting P. J, NARES, J.
At the October 2006 hearing at which the court set the Welfare and Institutions Code section 366.26 hearing, Robert's counsel told the court that he had explained to Robert that if the court were to follow the Agency's recommendation to terminate reunification services, this would likely result in a termination of parental rights. Robert told his counsel that he did not want his rights terminated, but that he did not want to set the matter for trial on the issue of termination of services.