Opinion
A114098
5-2-2007
In re CLARENCE H., a Person Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. S. H. et al., Defendants and Appellants.
NOT TO BE PUBLISHED
S. H. (Mother) and Clarence H., Sr. (Father) (collectively, Parents) appeal a juvenile court order terminating their parental rights to their son, Clarence H. (Clarence), born in October 2003. They contend the appointment of a guardian ad litem for Mother violated her rights to due process and was unsupported by substantial evidence, the court erred in summarily denying Mothers petition to modify, and the beneficial relationship exception to adoption should have been applied. The Sonoma County Human Services Department (Department) concedes the appointment of a guardian ad litem violated Mothers due process rights but argues the violation was not prejudicial.
Father joins Mothers arguments on appeal and asserts that if the order is reversed as to Mother, his parental rights must also be reinstated.
BACKGROUND
In August 2005, the Department filed a petition under Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (g) (no provision for support), alleging Mothers history of mental illness and substance abuse, and Fathers history of substance abuse, rendered them, at times, unable to care for and support Clarence. The petition also alleged that on August 24, Mother was placed on an involuntary mental health hold after becoming enraged, acting violently, pulling drywall from the walls of her home and threatening to kill a peace officer. She was hospitalized at a psychiatric unit with an admitting diagnosis of psychosis, not otherwise specified, possibly drug and/or alcohol induced. The petition also alleged that in April 2004, Father physically assaulted Mother while under the influence of alcohol and was convicted of falsely imprisoning her, and in 1999 was convicted of possession of a controlled substance for sale. Clarence had no provision for support due to the Mothers hospitalization and Fathers incarceration.
All undesignated section references are to the Welfare and Institutions Code.
At the August 29, 2005 detention hearing, counsel was appointed for Parents, Clarence was ordered detained and the matter was continued to September 20, for a section 300 jurisdictional hearing.
At the September 20, 2005 hearing, Mother was represented by counsel but was not present. Mother was still in the hospital and her counsel stated she had not yet met with Mother. Mothers counsel requested that the jurisdictional hearing be continued to the date of disposition, agreed with the Departments request that Mother undergo two psychiatric examinations to determine if she would benefit from services, and asked the court to "provisionally" appoint a guardian ad litem for Mother "because [Mother] wont be here for the court to question her about the need or her ability to understand the proceedings . . . ." The court appointed a guardian ad litem for Mother "subject to further investigation by the court regarding the propriety of such an order after the court has an opportunity to question [the guardian ad litem] and/or [Mother]."
The Departments disposition report summarized the psychological evaluation reports as stating that Mothers mental disability was so severe she would not be able to benefit from treatment, and recommended against reunification services. In particular, Dr. John Greenhalghs report stated that based on her schizophrenia diagnosis and history of medication noncompliance, " `it is clearly impossible for [Mother] to provide adequate caretaking for offspring, "and Dr. Greenhalgh doubted she would be able to do so in the next three to five years. Dr. Greenhalgh opined that Mother would not be able to "utilize and/or benefit from reunification services." Dr. Charles Silversteins report stated that in her current mental state, Mother would be: unable to benefit from parenting classes, unable to exercise reasonable and consistent judgment in caring for her child and at high risk of recidivism for substance abuse. Dr. Silverstein opined that Mother would benefit from treatment specific to her mental disorder including medication management, psychiatric treatment, psychotherapy, and residential assistance and daily living supports.
The reports are not included in the appellate record.
At the October 19, 2005 dispositional hearing Father was present with counsel and Mother was present with counsel and her guardian ad litem. The court stated that based on the psychological reports regarding Mother, the court found the appointment of the guardian ad litem was "appropriate" and reaffirmed the appointment. Mother did not object to the appointment. Mothers counsel stated she had talked to the guardian ad litem, who had talked to Mother, and the guardian ad litem wanted to submit the matter on jurisdiction and disposition, but reserve a hearing date on a bifurcated issue regarding relative placement. The court adopted the Departments recommendations, declared Clarence a dependent child of the court (§ 300), denied reunification services to Parents (§ 361.5, subd. (b)(2)), set a section 366.26 hearing (hereafter .26 hearing) for February 16, 2006, and continued the matter to November 17, 2005, for consideration of Clarences placement with relatives.
The Departments November 2005 addendum report by the permanency planning social worker recommended that the court find the maternal grandparents not a suitable placement for Clarence because they did not have the ability to provide a secure and stable environment for him. The report noted that in a September phone call with the social worker, the maternal grandmother said they did not want placement and were moving to Clearlake. The social worker made it clear to the maternal grandmother that the Department would move forward with an alternate placement. Two weeks later, the maternal grandmother called the social worker and said she wanted to reinstate her placement application. She was told that because Clarence was being transitioned to his foster-adopt home it was too late. The social worker met with the maternal grandparents (Dawn and Brad R.) in November and discussed Brads lengthy criminal history, most recently a 2001 arrest. The grandparents discussed the positive changes they had made. However, despite their progress, because of the length of time the family had been involved with alcohol and violent behavior, a waiver could not be obtained and therefore, Clarence could not be placed with them.
The Departments January 2006 section 366.26 report noted Mother was attending supervised, one-hour weekly visits with Clarence and Father remained incarcerated. Clarence was in good health and appeared to be on track mentally, emotionally and developmentally. The prospective adoptive parents had been Clarences foster parents since mid-October 2005, were demonstrating good parenting practices and demonstrating the ability to meet Clarences needs. The Department social worker opined that Clarence had a loving, secure relationship with the adoptive family, would benefit from a permanent relationship with them through adoption, and removal from their home would be seriously detrimental to his well-being. The Department recommended terminating Parents parental rights and recommended adoption as the permanent plan.
On April 7, 2006, less than one week before the .26 hearing, Mother filed a section 388 petition for modification seeking vacation of the order denying her reunification services based on the alleged improvement of her mental heath. Attached to the petition were letters from her outpatient treating therapist and psychiatrist. The January 2006 letter from the psychiatrist stated there was a "striking" difference in Mothers mental status since August 2005, in that she was "calm, appropriate, clear-headed, with no evidence of the bizarre behavior" previously seen, and she was keeping her appointments and taking her medication. The psychiatrist stated she was "impressed and encouraged by the improvement in [Mothers] condition." The therapists December 2005 letter stated Mother was taking her medication, complying with outpatient visits and had recently moved to a cottage on her mothers property. It noted that although there was no evidence of her actively abusing drugs or alcohol, Mother had not entered any formal drug treatment program. The letter noted that both Mother and the maternal grandmother objected to the possibility of Clarence being adopted out of their family.
The court summarily denied Mothers section 388 petition on the ground it did not state new evidence or a change of circumstances.
At the April 11, 2006 .26 hearing the parties stipulated that Clarence was adoptable. Mother testified she did not want Clarence to be adopted because he was her only child. She said she did not have a close relationship with him and described their relationship as "okay." The maternal grandmother (Dawn) testified that based on her observations of Clarence and Mother in 2000, Clarence was close to Mother. Both Dawn and Mother have participated in visits with Clarence and he has started responding more to them.
Mother argued that the continued beneficial relationship exception to adoption (§ 366.26, subd. (c)(1)(A)) applied because of her close relationship with Clarence at their visits and because she provided him nurturance, stability and support from his birth until his removal from her custody.
The court terminated Parents parental rights, found that the continuing beneficial relationship exception did not apply and ordered adoption as the permanent plan.
DISCUSSION
I. The Error in Appointing the Guardian Ad Litem Is Prejudicial
A guardian ad litem may be appointed for a parent in a dependency proceeding if the parent is determined to be incompetent under Penal Code section 1367 or Probate Code section 1801. (In re C. G. (2005) 129 Cal.App.4th 27, 32 (C. G.).) "`The appointment of a guardian ad litem for a parent in a dependency proceeding is significant because the effect of such an appointment is to remove the control of litigation from the parent. [Citation.] Consequently, the parents due process rights must be protected before a guardian ad litem is appointed. [Citation.] Those rights are satisfied if the parent consents to the appointment of a guardian ad litem or, if the parent does not consent, the court holds an informal hearing in which the parent has an opportunity to explain why a guardian ad litem is not required. [Citation.] Further, the court may not appoint a guardian ad litem until the party has been properly served. [Citation.] " (In re Enrique G. (2006) 140 Cal.App.4th 676, 683, italics omitted, quoting In re Daniel S. (2004) 115 Cal.App.4th 903, 908, 912-913 & fn. 9.)
Mother contends the court failed to provide her these minimum due process protections before appointing the guardian ad litem, and the Department agrees. At neither the September 20 nor the October 19, 2005 hearings did the court inform Mother of the purpose of a guardian ad litem, or why her counsel was requesting appointment of guardian ad litem. The appointment of a guardian ad litem for Mother without advising Mother of the consequences of such an appointment and giving her an opportunity to be heard on the issue violated her rights to procedural due process. (See In re Jessica G. (2001) 93 Cal.App.4th 1180, 1185-1186; In re Sara D. (2001) 87 Cal.App.4th 661, 671-672.)
In reliance on C. G., supra, 129 Cal.App.4th at page 34, Mother contends the erroneous appointment of the guardian ad litem was structural error, depriving her of her status as a party in the case. (See Arizona v. Fulminante (1991) 499 U.S. 279, 309-311; Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 556-557.) Alternatively, Mother argues in reliance on In re Sara D., supra, 87 Cal.App.4th at pages 673-674, that the due process error is not harmless because we cannot speculate as to why the guardian ad litem submitted to jurisdiction and disposition and whether Mother would have done so had the guardian ad litem not been appointed. In addition, Mother argues the due process error was prejudicial because: (1) she was not intentionally absent when the guardian ad litem was appointed, but was hospitalized and could not attend; (2) her testimony at the .26 hearing was cogent and articulate, establishing that she was able to understand the nature of the proceedings and advocate for retaining her parental rights; (3) the guardian ad litem and Mothers counsel compromised Mothers fundamental rights by failing to object to the Departments recommendation denying Mother reunification services; and (4) but for appointment of the guardian ad litem, the outcome would have been different because the guardian ad litem did not challenge the jurisdictional findings or dispositional recommendation denying Mother reunification. Mother also argues that the reports of Drs. Greenhalgh and Silverstein were not introduced into evidence and are not included in the record, and the Department did not establish that the two psychologists were experts pursuant to Family Code section 7827, subdivision (c)) and therefore the court denied Mother reunification services without evidence supporting the exception to reunification services under Welfare and Institutions Code section 361.5, subdivision (b)(2).
This is a factor that goes to the sufficiency of evidence to support the guardian ad litem appointment and thus, we do not consider it.
Department argues the error is harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) The issue of whether the erroneous appointment of a guardian ad litem in a dependency proceeding is structural error or subject to harmless error review is currently pending in our Supreme Court. (See In re James F., review granted March 28, 2007, S150316.)
Because the appointment of the guardian ad litem in violation of Mothers due process rights is the dispositive issue on appeal, we need not address Mothers claim that substantial evidence does not support the erroneous appointment. (See In re Enrique G., supra, 140 Cal.App.4th at p. 684, fn. 4; C. G., supra, 129 Cal.App.4th at p. 32; In re Jessica G., supra, 93 Cal.App.4th at p. 1186.)
Most constitutional errors are subject to harmless error analysis. (Arizona v. Fulminante, supra, 499 U.S. at p. 306.) To be characterized as structural error, a constitutional error must be so pervasive and debilitating as to contravene the basic fairness of the structural scheme. (Id. at p. 310.; In re Jasmine G, (2005) 127 Cal.App.4th 1109, 1116.) Structural errors impact the conduct of trial "from beginning to end," and require reversal without regard to the strength of the evidence or other circumstances. (Fulminante, at pp. 309-310.) In contrast, a trial error is one "which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt." (Id. at pp. 307-308.)
The majority of the courts which have considered the issue have determined that the erroneous appointment of a guardian ad litem in a dependency matter is subject to harmless error analysis, and is not structural error requiring per se reversal. (See In re Sara D., supra, 87 Cal.App.4th at pp. 672-673 [erroneous guardian ad litem appointment subject to harmless error review but error not harmless where appointment adversely affected jurisdictional hearing as to parent]; In re Jessica G., supra, 93 Cal.App.4th at p. 1189 [erroneous guardian ad litem appointment not harmless because it was not known what mother might have done or suggested to her counsel if guardian ad litem had not been appointed]; In re Joann E. (2002) 104 Cal.App.4th 347, 359-360 [same reasoning and result as In re Jessica G.]; In re Enrique G., supra, 140 Cal.App.4th at pp. 685-687 [erroneous guardian ad litem appointment harmless where no prejudice to parent established].)
In C. G., supra, 129 Cal.App.4th at page 34, the Court of Appeal held that the erroneous appointment of a guardian ad litem in a dependency case was structural error. In that case the record did not establish that the appointment of the guardian ad litem had been explained to the parent, who had been diagnosed with mild mental retardation and cerebral palsy. (Id. at p. 33.) There was also no evidence that the parent consented to the appointment, and her counsel did not explain why the appointment was appropriate. In addition, the court did not inquire whether the parents counsel had discussed the appointment with the parent nor did it adequately inquire about her competency. (Id. at p. 33.) After the dependency petition was sustained, the parent expressed concern about her inability to communicate to her counsel that she was unhappy with "the way the case was progressing." (Id. at p. 31.) The court found the circumstances established structural error because the parent was deprived of her status as a party in the case. (Id. at p. 34.)
Unlike C. G., the record does not establish that the courts appointment of the guardian ad litem resulted in Mothers loss of her status as a party and therefore, the error in appointment of the guardian ad litem cannot be characterized as structural. Although Mother was not present due to being hospitalized at the September 20, 2005 hearing when her counsel initially requested appointment of a guardian ad litem, and the court "provisionally" appointed a guardian ad litem "subject to further investigation," Mother was present with counsel and the guardian ad litem at the October 19, 2005 hearing at which the court reaffirmed the appointment and Mother did not object to the appointment. In addition, Mother communicated with her counsel, the guardian ad litem, and the Department social worker and testified at the .26 hearing. Also, Mothers section 388 petition notes that the guardian ad litem agreed with Mothers request for reunification services. We conclude, that unlike the parent in C. G., Mother was not deprived of her status as a party in this case.
We thus review the erroneous appointment pursuant to the harmless error standard under Chapman, and conclude that the error was not harmless beyond a reasonable doubt. In both In re Sara D., supra, 87 Cal.App.4th at page 673 and In re Joann E., supra, 104 Cal.App.4th at page 360 the erroneous guardian ad litem appointment was held not harmless where the record indicated that the parents counsel intended to call witnesses but did not do so after the guardian ad litem was appointed. In both cases, the court refused to speculate as to the substance or effect of the testimony which was not presented, and therefore could not conclude the erroneous appointment of the guardian ad litem had no effect on the proceedings.
The essence of Mothers argument is that the appointment of the guardian ad litem was prejudicial; but for the appointment of the guardian ad litem, the outcome would have been different because the guardian ad litem did not challenge the jurisdictional findings or dispositional recommendation denying Mother reunification. At the October 19, 2005 dispositional hearing, after the court reaffirmed the appointment of the guardian ad litem based on the two psychological evaluation reports, Mothers counsel stated: "I have talked to [the guardian ad litem], who has talked with [Mother], in her office. And [the guardian ad litem] would like to submit the matter on jurisdiction and disposition. But we would like to reserve a date with regard to relative placement, if theres any way to bifurcate that out. But we are prepared to submit on jurisdiction and disposition."
The record suggests that the guardian ad litem was very much involved in the decision to submit on jurisdiction and disposition, including denial of reunification services. The record reflects that Mothers counsel did not speak to Mother, but only to the guardian ad litem, who spoke to Mother. However, the record does not establish that Mother agreed with the decision to submit on jurisdiction and disposition, and we may not speculate on her decision. If Mother had opposed the submission, she would have had the right to testify and present the testimony of other witnesses. Such testimony could have affected the courts decision. Thus, we cannot conclude beyond a reasonable doubt that the erroneous appointment of the guardian ad litem was harmless. (In re Sara D., supra, 87 Cal.App.4th at p. 673; In re Joann E., supra, 104 Cal.App.4th at p. 360.) In light of our determination of reversible error, we need not address Mothers remaining claims of error.
In arguing that the appointment of the guardian ad litem was prejudicial, Mother asserts for the first time on appeal that the Department did not establish that the two psychologists were experts pursuant to Family Code section 7827, subdivision (c)) and therefore the court denied Mother reunification services without evidence supporting the exception to reunification services under Welfare and Institutions Code section 361.5, subdivision (b)(2). However, any challenge to the psychologists qualifications was waived due to Mothers failure to object below. (In re Joy M. (2002) 99 Cal.App.4th 11, 17-20.) The record does not indicate that the guardian ad litem was in any way involved in Mothers counsels failure to object or that but for appointment of the guardian ad litem such an objection would have been made.
DISPOSITION
The order terminating Parents parental rights is reversed and the matter is remanded for further proceedings consistent with our opinion.
We concur.
JONES, P. J.
NEEDHAM, J.