Opinion
C050764
12-5-2006
In re FANTASIA W., a Person Coming Under the Juvenile Court Law. BUTTE COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES, Plaintiff and Respondent, v. VICTOR W., Defendant and Appellant.
Victor W., father of the minor, appeals from the judgment of disposition of the juvenile court. (Welf. & Inst. Code, § 360.) Appellant contends the court erred in appointing a guardian ad litem for him without a hearing and that the guardian ad litem exceeded her authority by waiving trial and submitting on the reports. He also claims there was insufficient evidence to support jurisdiction and no clear and convincing evidence to support the dispositional orders. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS
The month-old minor was detained in June 2005 based upon allegations that the home was filthy, there were drugs in the home, and the developmentally delayed mother had no stable residence and limited ability to protect the minor. Appellant was in custody for battery on the mother.
According to the detention report, the 19-year-old mother intended to reunite with appellant, who was in custody when the minor was born, upon his release. The mother was a client of Far Northern Regional Center (Regional Center) but was not accessing services herself and the Regional Center was unable to provide continuous services to her due to her frequent moves and lack of contact. The report stated that appellants lengthy criminal history included robbery, assault with a deadly weapon, and charges related to drugs and violence. The minor was detained. Shortly thereafter, the court ordered appellant to have no contact with the minor.
The jurisdiction/disposition report stated that appellant was found not competent in his criminal case and committed to Napa State Mental Hospital. The report noted that the mother had no safe home for the minor but was reengaging with the Regional Center services which would assist her in various ways, including skills training, securing financial support, and home finding. The mother was temporarily staying with her sister and had been dating a man she met when getting off the bus three months ago. The mother only knew the mans first name and very little else about him. The report recommended services for the mother, primarily through the Regional Center, and denial of services to appellant pursuant to several subdivisions of section 361.5. The report contained a discussion of the supporting facts for each subdivision.
The specific subdivisions of section 361.5 are as follows: "(b)(10) That the court ordered termination of reunification services for any siblings or half-siblings of the child because the parent . . . failed to reunify with the sibling or half-sibling after the sibling or half-sibling had been removed from that parent . . . pursuant to Section 361 and that parent . . . is the same parent . . . described in subdivision (a) and that, according to the findings of the court, this parent . . . has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling of that child from that parent . . . .
"(b)(11) That the parental rights of a parent over any sibling or half-sibling of the child had been permanently severed and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling of that child from the parent.
"(b)(12) That the parent . . . of the child has been convicted of a violent felony, as defined in subdivision (c) of Section 667.5 of the Penal Code.
"[¶] . . . [¶]
"(e)(1) If the parent . . . is incarcerated or institutionalized, the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child."
At the jurisdiction hearing on July 18, 2005, the court sustained the petition and set a dispositional hearing. Appellant challenged the statements in the social workers report that he had been found incompetent. However, after consulting court files, the court determined that appellant had been committed to Napa State Mental Hospital in June 2005 and appointed a guardian ad litem for him.
On August 8, 2005, the court vacated the prior jurisdictional findings and, at the suggestion of county counsel, the prior appointment of a guardian ad litem for appellant. County counsel suggested a brief hearing on whether appellant would voluntarily agree to a guardian ad litem and suggested that, if not, the court could take judicial notice of the incompetency finding in the criminal case.
Appellant was in local custody and was transported to the hearing. The court told appellant: "What I would like to do is appoint a public guardian for you to represent you in this case to help you because these proceedings are very different. These are proceedings where we are having a child detained, and theres questions as to whether you and/or the mother are going to be offered reunification services to help you with parenting of this child. [¶] . . . [¶] . . . Im going to give you an attorney. Mr. Rasmussen over here is going to be appointed as your attorney, but Id also like to appoint somebody as your guardian so that they can help you understand and advise your attorney as to what — the implications of whats going on here. [¶] Would you be agreeable to have Ms. Lively appointed as your guardian ad litem? Guardian ad litem is guardian for legal purposes just to really help you understand whats going on here." After being assured that the guardian ad litem would come to the jail and speak with him, appellant agreed to the appointment. The court set a further hearing date in August 2005.
At the new jurisdictional/dispositional hearing appellant objected to the guardian ad litem and sought a contested hearing. The guardian ad litem, believing there was authority to do so, waived appellants trial rights and submitted on appellants behalf. The mother also submitted on the report. The court sustained the petition and adopted the recommended jurisdictional findings.
Appellant objected to the social workers reports which stated he had been found mentally incompetent, insisting he had been found not mentally competent and was committed for up to 12 years. The court noted the distinction.
The court proceeded to disposition, noting the social workers recommendation to deny services to appellant. Appellant told the court he had a witness, whom he identified as a relative who visited him with the minor and could testify on jurisdiction. However, it was clear from appellants statements the evidence related to placement. The mother stated that appellant had never seen the minor. Again the guardian ad litem submitted on appellants behalf and the court ordered the minor removed from parental custody. The court denied services to appellant on all recommended grounds, noting that the minor had never really seen appellant and it would not be in the minors best interest to provide him services. It also terminated his visits and adopted a reunification plan for the mother.
In a further colloquy with appellant, the court explained that denial of services was not based upon appellants competency or lack thereof but upon the violent felony conviction, his lack of relationship with the minor, and the best interest of the minor. Appellant asked to have someone testify about his relationship with the minor. The court denied the request, again observing that appellant had a guardian ad litem.
DISCUSSION
I
Appointment Of The Guardian Ad Litem
Appellants argument regarding the appointment of the guardian ad litem does not fully account for the effect of the prior determination in his criminal case that appellant was not competent.
Appellant contends the guardian ad litem was not appointed in accordance with the established procedures, i.e., he did not have a hearing and his consent was not informed by a full advisement of the extent of the guardian ad litems powers.
The authority for appointment of a guardian ad litem in a dependency proceeding is Code of Civil Procedure section 372. "That statute does not explicitly discuss the grounds for appointment, beyond a requirement that it be `expedient." (In re Jessica G. (2001) 93 Cal.App.4th 1180, 1186.) Cases which have addressed the question of the basis for appointment have relied on both Probate Code section 1801 and Penal Code section 1367 to measure competency. (In re Christina B. (1993) 19 Cal.App.4th 1441, 1449-1450; In re Sara D. (2001) 87 Cal.App.4th 661, 667; In re Jessica G. at p. 1186.) "The effect of the appointment is to remove control over the litigation from the parent, whose vital rights are at issue, and transfer it to the guardian." (In re Jessica G., supra, 93 Cal.App.4th at pp. 1186-1187.) The appointment must be approached with care and a parent must be afforded due process before control of the litigation is removed from the parent. (Id. at p. 1187.) Due process may require a hearing at which the court must make an inquiry to determine the parents competence and should explain the purpose and authority of a guardian ad litem to ensure the parent is not deprived of the right to participate in error. (In re Sara D., supra, 87 Cal.App.4th at pp. 669, 671-672; In re Jessica G., supra, 93 Cal.App.4th at p. 1188.)
These cases and those relied upon by appellant all deal with situations in which the dependency court is making the initial determination of competency. As such, they are factually distinct from this case.
Here, appellant had already participated in competency proceedings in his criminal case. When a doubt arises regarding the mental competence of a defendant in a criminal proceeding, the proceedings are suspended, the court orders an examination of the defendant by a psychiatrist or psychologist and thereafter conducts a court trial or jury trial on the issue of competence. (Pen. Code, §§ 1368, 1369.) If a defendant is found not to be competent, the court is required to make various findings and orders regarding treatment and placement of the defendant until he regains competency. (Pen. Code, §§ 1370, 1370.01.) This procedure is far more stringent than that required for a dependency proceeding since it may, and in this case did, result in commitment rather than just appointment of a guardian ad litem. Moreover, the statutory procedure in the criminal case more than adequately protects appellants due process rights.
Because the juvenile court was presented with the fact that appellant had recently been determined to be mentally incompetent under Penal Code section 1367 in his criminal case, it had no choice but to appoint a guardian ad litem for him in the dependency proceedings. (See Code Civ. Proc., § 372, subd. (a) ["When . . . an incompetent person . . . is a party, that person shall appear . . . by a guardian ad litem"], italics added.) Thus, any deviation from the procedures and explanations set forth in Christina B., Sara D., and Jessica G. to determine competency and inform a parent of the authority of the guardian ad litem were irrelevant. (In re Sara D., supra, 87 Cal.App.4th at p. 673.)
Given that appellant had been determined to be mentally incompetent, the juvenile court should not have agreed to county counsels suggestion that the court vacate the original appointment of a guardian ad litem and elicit appellants agreement to the appointment of a guardian ad litem. Given his adjudicated lack of mental competence, appellants consent to the appointment of a guardian ad litem was of little, if any, value. Nonetheless, the fact that the juvenile court erroneously relied on his consent to appoint a guardian ad litem is of no moment given that the court had no choice but to make the appointment.
II
The Guardian Ad Litems Waiver Of Appellants Trial Rights
"[A] guardian ad litems role is more than an attorneys but less than a partys. The guardian may make tactical and even fundamental decisions affecting the litigation but always with the interest of the guardians charge in mind. Specifically, the guardian may not compromise fundamental rights, including the right to trial, without some countervailing and significant benefit." (In re Christina B., supra, 19 Cal.App.4th at p. 1454.)
Assuming the waiver of appellants rights to trial on jurisdiction and disposition and submitting on the social workers reports was not balanced by a countervailing benefit and was an act beyond the guardian ad litems authority, the error is nevertheless harmless beyond a reasonable doubt. (In re Sara D., supra, 87 Cal.App.4th at p. 673.) As we shall explain, appellant had no defense to jurisdictional facts which were adequate to support removal or to the recommended disposition denying him services. Thus, the guardian ad litems waiver of trial did not deprive appellant of his due process right to be heard or to present a defense.
III
Substantial Evidence To Support The Courts Order
Appellant contends substantial evidence did not support the juvenile courts jurisdictional findings or the dispositional findings and orders.
When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence — that is, evidence which is reasonable, credible and of solid value — to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (In re Jason L. at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
A
Jurisdiction
The petition under which the minor was detained in June 2005, alleged, pursuant to section 300, subdivision (b), that there was a substantial risk the minor would suffer serious physical harm by the failure of the parent to provide adequate food, clothing and shelter and the inability of the parent to provide regular care for the child due to the parents developmental disability. The supporting facts alleged that when detained, the minors home was filthy and constituted a risk to the child; there was apparent substance abuse going on in the home, although the mother said she was unaware of this; there were limited provisions in the home for the minors care; the mother was transient and had no plan for adequate housing; the mother is developmentally delayed which limited her ability to protect herself and provide care for the minor; appellant had a history of felony convictions and criminal activity which included drug charges; and appellant was arrested prior to the minors birth and remained in jail.
At the time of the jurisdiction hearing in August 2005, appellant remained in custody and was unable to care for the minor, although his criminal proceedings were suspended. The mother no longer lived in the filthy home with drug users, but still had no stable residence or income and had not yet begun her one-on-one instruction on household maintenance, budgeting, and parenting from the Regional Center. The mother continued to demonstrate a lack of judgment by dating a man she knew so little about that she was unable to provide more than his first name. While the mother did provide loving care for the minor in her extended daily monitored visits, she did not have the resources to care for the minor on her own. Substantial evidence supported the courts jurisdictional findings.
At no time did appellant suggest he had evidence that the circumstances at the time of the jurisdictional hearing were not true or that the mother did not need the support and guidance of the Regional Center to learn the skills to care for the minor. The only challenge he raised at the hearing related to placement, a dispositional matter.
Appellant had previously sent a letter to the court explaining his relationship with the mother, his pending criminal case, and his prior contacts with the department regarding the minors half-sibling but did not challenge the factual basis for jurisdiction or removal.
B
Disposition
Appellant argues that adjudication of the minor as dependent was not necessary for the minors protection and the report was inadequate. The claim that the report was inadequate is forfeited for failure to raise it in the juvenile court. (In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502; In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.) We disagree that adjudication was unnecessary.
In the absence of any stable home or a caretaker immediately prepared to accept the minor, once the court finds jurisdiction, it must adjudicate the minor a dependent unless the severity of the case warrants nothing more than a social workers supervision of family maintenance services. (§ 360, subd. (b); Cal. Rules of Court, rule 1456.) This was not such a case. Neither parent had the means or ability to care for the minor. Although appellant told the court at the hearing he had a friend who was willing to provide a home for the mother and the minor, no relative or friend had yet provided information to the social worker in order to be assessed and considered for placement. The court could not place the minor in an unknown and unassessed home.
Appellant contends removal of the minor was not necessary for her protection because the mother was being overseen by the Regional Center.
To support an order removing a child from parental custody, the court must find clear and convincing evidence "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor [1] if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents . . . physical custody." (§ 361, subd. (c)(1).)
The mother had not yet secured housing or income, her developmental disability and poor judgment had previously led to her placing the minor at risk and threatened to do so again. Without services and appropriate training, the court could not place the minor back in her care. The degree of supervision available from the Regional Center, although significantly greater than that the social worker could provide was not adequate under the circumstances to protect the minor. Absent skill training, the mother would require constant supervision in order to safely care for the minor. Such supervision was neither available nor reasonable.
Appellant contends the court erred in denying him services.
The court relied upon four different provisions of section 361.5 to deny services to appellant. We need only find support for one. (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72.)
Pursuant to section 361.5, subdivision (b)(12), the court may deny services to a parent who has been convicted of a violent felony. The record shows appellant was convicted of robbery, a violent felony as defined by Penal Code section 667.5, subdivision (c)(9). Appellant does not challenge this conviction, but argues that the court could still order services pursuant to section 361.5, subdivision (c). In relevant part, that subdivision states: "The court shall not order reunification for a parent . . . described in paragraph . . . (12) . . . of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interests of the child."
The court did not make such a finding. Indeed, the court found that providing services to appellant was not in the best interest of the minor. This finding is supported by substantial evidence. Even if appellant had a visit with the month-old minor prior to removal, he had not seen the child since and, being incarcerated throughout the minors short life, he could not have had any significant relationship with the minor. The minor needed stability but appellant was committed to a treatment facility for an indeterminate period which could be as long as 12 years. Placing the minors life on hold until appellant was either released from the state hospital or returned to competence and completed his criminal case stemming from an alleged battery on the minors mother would not further stability for the minor. The court could not have found clear and convincing evidence that providing services was in the minors best interest and did not abuse its discretion in denying services to appellant.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur:
NICHOLSON, Acting P.J.
MORRISON, J.