Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JD16575
Bamattre-Manoukian, Acting P.J.
The mother in this dependency proceeding appeals from the termination of her parental rights. (Welf. & Inst. Code, § 366.26.) She argues that she was deprived of due process because the juvenile court failed to conduct a proper inquiry before deciding not to appoint a guardian ad litem for her, and further that the court improperly based its decision on matters not reflected in the record. She contends that these errors not only require reversal of the order terminating parental rights, but also render void all prior orders, and she asks that we remand the matter so that the court may hold a hearing on the appointment of a guardian ad litem.
All further unspecified statutory references are to the Welfare and Institutions Code.
We find that the court conducted an adequate inquiry before deciding not to appoint a guardian ad litem for the mother. There was no due process violation or abuse of discretion. We therefore affirm the order terminating parental rights.
BACKGROUND
The mother gave birth to a baby girl in November of 2005. The baby tested positive for methamphetamine at the time of her birth. The mother admitted to using drugs during her pregnancy. She had had no prenatal care and had no plan upon discharge from the hospital. She was homeless and had been staying in the home of her uncle, who was a registered sex offender. The father of the newborn child was unknown. The mother also had a two-year-old boy. The father of this child had a criminal history, including domestic violence against the mother and possession and use of a controlled substance. When the social worker told the mother that protective services had been contacted, she tried to leave the hospital with the older child and had to be brought back by police. Both children were placed in protective custody on November 9, 2005.
Petitions were filed as to both children on November 14, 2005, and amended petitions were filed on November 23, 2005, under section 300, subdivision (b) [failure to protect], containing allegations that the mother was unable to provide for the basic needs of her children, that she was unemployed and had no means of support, that she was temporarily residing in the home of an uncle who was a registered sex offender and that her substance abuse limited her ability to properly care for her children.
In the jurisdictional report dated December 7, 2005, the social worker reported that he had interviewed the mother, who said she used drugs because she was homeless and depressed and because the father of the older child had left her. She had not wanted the new baby and had tried to terminate the pregnancy. The mother recognized that she had substance abuse problems and expressed a desire to get treatment. She said she had used drugs off and on for several years. She was aware that she had to have stable housing and support in order to get her children back. The mother was participating in supervised visits two times a week, and showed a positive connection with the children. However, she did not follow through with other referrals for drug testing, drug assessment, 12-step meetings, a domestic violence support group, and mental health counseling, explaining that she would wait for the court’s orders.
The father of the older child was still legally married to the mother, although they had not lived together since 2003. He was not the biological father of the baby. He said he and the mother had used drugs when they lived together in 2002 and 2003, and that the mother also drank heavily. The mother and father were involved in an incident in 2002, where he tried to push her out of the car, which resulted in his being arrested and charged with domestic violence. They were both on drugs at the time. The father explained that he had completed his rehabilitation through a criminal drug court diversion program and that he had been clean and sober since 2003. The father said he wanted to reunify with his son, but did not want reunification services for the baby, because she was not his child.
In an addendum report dated December 21, 2005, the social worker noted that the father of the two-year-old boy had visited regularly with his child and that they had a positive interaction. He had completed a drug assessment, and was not referred for any treatment. He agreed to take a 16-week parenting without violence class. He had a home that was appropriate for the child, and stable employment. He worked as an engineer and was now a project manager. His mother, who was an elementary school principal, was willing to help with child care. The social worker recommended that the father have unsupervised overnight visits with his two-year old son, and that the child eventually be placed with his father, with transition services.
The jurisdiction hearing was held on January 23, 2006, and the allegations in the petitions were found true after the parents submitted the matter.
The social worker’s report for disposition noted that visits had been increased for the father and the two-year-old child and recommended that the two-year-old be placed in his father’s care, with family maintenance services. The mother had not followed through with service referrals. The social worker recommended that the younger child be placed out of the home, with reunification services provided to the mother for both children.
Both parents were present at the disposition hearing on February 3, 2006. The father of the two-year-old waived services as to the younger child. Both children were found to be dependent children. The younger child was placed out of her mother’s custody and services were ordered for the mother. The court ordered a further hearing on family maintenance for the father and son.
In an interim report dated March 20, 2006, the two-year-old boy was living with his father and the two had “formed a solid bonded relationship.” The younger child was in foster care placement. The mother had not attended a parent orientation class or a parenting without violence class. She had not started counseling. She had signed up for a domestic violence support group. And she had drug tested once. She had not shown for one scheduled visitation and she had cancelled two others on short notice. She refused to give the social worker her address. The social worker met with her at a visit at Clover House and reviewed the case plan with her, emphasizing that the law only gives her six months of services due to the children’s young ages. The mother promised she would work hard to make up for lost time.
The next report, dated May 4, 2006, was the 90-day review. The father continued to make “superior progress,” and the two-year-old was well cared for. The mother stated that she was going to 12-step meetings, but she was still testing positive for amphetamines. She had not begun her parent orientation class and had not begun counseling. But she was attending a domestic violence support group and stated she had started a parenting without violence class. She had missed several visits, but was appropriate with the children during visits.
In a report dated July 7, 2006, the social worker reported that the mother had positive tests for methamphetamine in March, April, May, and June. She also tested positive for alcohol most of May, and also in June. She said she was going to 12-step meetings, but did not have a sponsor. She had completed her domestic violence group, but had not graduated from her parenting without violence class because of poor participation and questions about her coming to class under the influence. She did not participate in the other aspects of her case plan, including counseling, drug treatment and parent orientation. She had been a no-show, or had cancelled, for four visits with the child in May and June. The child was nine months old and had been moved to a concurrent foster home, where the caretaker wanted to adopt the child if reunification failed. The social worker recommended that the mother’s reunification services be terminated at the six-month hearing.
In an addendum report for the six-month hearing set for August 23, 2006, the social worker recommended that the court terminate the mother’s reunification services as to the older child, dismiss the case, and grant custody of the child to his father. Regarding the younger child, the recommendation was to terminate reunification services and set a selection and implementation hearing. In June and July the mother’s drug tests had improved. However, in late July she had tested positive twice, for cocaine and for alcohol, and then she had stopped testing.
At the six-month hearing on August 23, 2006, the mother provided the only testimony. She said that she understood why the agency was recommending termination of her services, but she hoped to have “a chance to concentrate on this case plan again.” She said that at first she was having a hard time concentrating on her problem, but she thought she could do better if she had more services. She testified that she had not completed the parenting without violence class but she said it was a “good program” and she thought she would now be more positive in her attitude going through that program and that she could complete it. She explained that she understood the whole process better now and that she was more optimistic about being able to work on her case plan. She felt the court should give her a “chance to reunify” with her children if she could prove she was rehabilitated. She said she had tried to get in with a therapist for counseling, but her calls were not returned. As to her drug tests, she stated that she had had a bad attitude about “the whole thing” but now her attitude had changed. The mother was very emotional on the stand, talking about lost opportunities. She said she had “consulted with other attorneys just to get a second opinion and . . . I learned that I have had every opportunity to get my kids back.” She said she wanted to do a workshop on the twelve steps to sobriety and she thought if she did that in addition to an in-patient program, “that there’s a very good possibility for rehabilitation . . . .” She finished by saying “I would love to parent my children. And it would be nice to finally go through a rehabilitation process.” The agency submitted the matter on the social worker’s reports.
The court ordered the case dismissed for the older child, with family court orders, and for the younger child ordered the mother’s services terminated. The matter was set for a section 366.26 hearing on December 20, 2006. Visitation orders were made for the mother for “at least once per month for one hour per visit,” with the social worker’s discretion to increase visits. The mother was informed of her rights of writ review. No writ petition was filed.
When court convened on December 20, 2006, the mother was present with counsel and requested a contested hearing. She had also attempted to file her own petition under section 388, without counsel, seeking modification of existing orders on the basis that they were made “in violation of California rules of court.” However, at the hearing, counsel withdrew the petition. The matter was continued to January 11, 2007.
At the hearing on January 11, 2007, the mother’s attorney informed the court that her client was “not comfortable with our office’s representation of her. And she would ask that the court set a Marsden hearing . . . .” The Marsden hearing was set for January 31, 2007. The court explained to the mother that at that time she would have the opportunity to tell the court what her problem was with her attorney. The contested section 366.26 hearing was set for February 16, 2007. The court suspended visits with the child as the mother had not visited with the child since August of 2006. The court found that because of the lack of contact it would be detrimental to the child to begin visits again.
People v. Marsden (1970) 2 Cal.3d 118.
On January 31, 2007, the mother withdrew her request for a Marsden hearing. The selection and implementation hearing remained set for February 16, 2007.
The initial report for the section 366.26 hearing, dated December 20, 2006, informed the court that the child, who was now just over a year old, was happy in the concurrent home where she had been placed in June of 2006. The child recognized her caretaker as her parent and they had a strong bond. The caretaker was committed to a permanent plan of adoption. The biological mother had not visited, or made any effort to contact the social worker since August 3, 2006. The agency recommended termination of parental rights. In an addendum report dated January 11, 2007, the social worker reported that the mother did contact his office after the hearing on December 20, 2006, and left a message requesting a visit. The social worker was able to arrange a visit; however, the caretaker called that morning to say that the child was ill and the visit was cancelled. No further visits were requested or arranged.
On February 16, 2007, the date of the scheduled section 366.26 hearing, counsel for the mother requested a hearing pursuant to In re Sara D. (2001) 87 Cal.App.4th 661 (Sara D.), in order to determine whether the mother was competent to proceed or whether a guardian ad litem should be appointed to act on her behalf. The court cleared the courtroom of everyone except the mother and her attorney. The court asked the mother if she understood what the day’s hearing was for and what decision the court was to make. The mother responded that it was “[t]o determine or to proceed with the placement that my daughter is independent and free her up for adoption.” The mother was uncertain about what it meant to have her child adopted. She said she had been reading something that she understood to mean she could come back and file for a change of circumstances any time before her child’s 18th birthday. She said: “I mean, I don’t know if I have any recourse after that or if that’s permanent. I mean, if that’s forever.” The court told her “[a]doption is forever. Termination of parental rights means that your relationship between you and [the child] is ended and you cannot come back to Court after that and ask for that to be set aside because that’s not allowable by---” Here the mother interrupted and said “[e]ven on appeal?”
The court explained to the mother that if her parental rights were terminated, she would only have a short period of time, namely 60 days, to appeal. The mother then said she would like “to request leave of the Court to have to file an appeal. [¶] I don’t want to go forward with this hearing.” The court told her that she could not appeal until after the hearing, and the mother responded “[n]ot from when I understood, how I read it.” The court asked her if she had had an opportunity to talk to her attorney about this, and the mother said that her attorney “is saying what I am asking for is not possible.” Nonetheless, she wanted to “at least come in here and make that request.”
The court then explained to the mother the purpose of the Sara D. hearing and the function of a guardian ad litem. After hearing this, the mother stated: “I don’t want to proceed further with this hearing here in this Court anymore. I want to file an appeal before a judgment is made.” The mother’s attorney asked to be heard, and told the court: “she has indicated to me that she does understand the proceedings; however, on the same note, she doesn’t want to go forward today. I just feel that she is not able to assist in her own defense with respect to the 26 hearing. [¶] She has indicated to me that she does not want to take the stand, so it is somewhat difficult for U.S. to assist her today.”
A discussion was then held off the record, following which the court announced its ruling. The court explained as follows: “I think there is a very fine line in some cases, between a finding that a parent is unable to understand the proceedings and unable to cooperate with the attorney and a parent who is able to understand but has decided not to be cooperative and to take a stand that may be contrary to what the law allows but is more a matter of defiance than it is a lack of understanding. [¶] Because of the fact that the appointment of a Guardian Ad Litem divests completely from the parent the right to make decisions about how to proceed, I think that the standard, in terms of whether this mother understands these proceedings is met. [¶] I think she does understand where we are and what is at stake and is unwilling to cooperate but this does not rise to the level of a situation where this is a need for a Guardian Ad Litem.” The court told the mother’s attorney that she needed to do the “best you can do for your client, even though she is unwilling at this time to cooperate with you.” A short recess was then taken.
Following the recess, the matter proceeded to the section 366.26 hearing. The agency submitted the matter on the reports. The mother testified. She said she was aware that the hearing was to free the child for adoption, which would mean that her parental rights would be terminated. She said she believed that she and her child had a bond. She had visited as much as she was allowed to, but she acknowledged that she had not seen her child for six months. She thought that she was not allowed any more visitation after services were terminated and she said she tried to make contact with the social worker, but that he did not respond. She felt like she had lost her rights to visit her child. Prior to services being terminated, she had visited with her child twice a week supervised. She felt that the visits were good. She fed her child, and attended to her needs, while she let the older boy play. She felt the child was comfortable with her and was bonding with her. She also felt that the two children were bonding with each other and she was upset that they had been placed separately. She stated that she felt it would be in the child’s best interests for her mother to be in her life, even if it just started with visitation.
At the conclusion of the hearing the court found by clear and convincing evidence that the child was adoptable. The court found that none of the exceptions to termination of parental rights under section 366.26 applied, and ordered that the mother’s parental rights be terminated as to both children. The court informed the mother that she now had the opportunity to appeal to a higher court if she wished to do so. The mother filed her appeal later that day.
ISSUES
Due Process Inquiry Regarding Appointment of a Guardian Ad Litem
The mother argues that the court failed to conduct a proper inquiry prior to deciding not to appoint a guardian ad litem for her, and that this constituted an abuse of discretion and a violation of due process.
A guardian ad litem may be appointed in a juvenile dependency case where a parent does not understand the nature of the proceedings and is unable to assist counsel in protecting her interests in the care, custody and companionship of the child. (Sara D., supra, 87 Cal.App.4th at p. 667.) The court in Sara D. recognized that the appointment of a guardian ad litem “dramatically change[s] the parent’s role in the proceeding by transferring the direction and control of the litigation from the parent to the guardian ad litem.” (Id. at p. 668.) The powers of the guardian ad litem are broad and “the decisions made can affect the outcome of the dependency proceeding, with a corresponding effect on the parent.” (Ibid.) Because the appointment of a guardian ad litem may jeopardize a parent’s fundamental interests in the care, custody and companionship of the child, the court in Sara D. concluded that due process required the juvenile court to conduct an inquiry in order to “ensure the court does not erroneously deprive the parent of the right to participate in a section 300 proceeding . . . .” (Id. at p. 672.)
The purpose of a Sara D. hearing is to provide the court with an opportunity to make appropriate inquiries of the parent, provide an explanation of why a guardian ad litem is necessary, and allow the parent the opportunity to be heard. (Sara D., supra, 87 Cal.App.4th at p. 672.) However, the court in Sara D. explained that this does not require a formal hearing and that the circumstances for appointment of a guardian ad litem “may vary widely” from case to case. (Id. at p. 671.) A Sara D. inquiry can take the form of an informal hearing at which the court can explain the purpose of a guardian ad litem and why one may be necessary, and the parent can be given the opportunity to respond. (Ibid.) At a minimum the court’s inquiry should be sufficient to make a determination whether the parent can understand the nature of the proceedings and can assist the attorney in protecting her rights. (Id. at p. 667.)
Applying these standards, we conclude that the court in this case conducted an adequate inquiry before deciding not to appoint a guardian ad litem. When the mother’s attorney requested the Sara D. hearing, the court questioned the mother after clearing the courtroom. The court asked her if she understood what the hearing was for, and the mother responded that it was “to proceed with the placement that my daughter is independent and free her up for adoption.” The mother’s attorney later confirmed that the mother had “indicated to me that she does understand the proceedings.” This record reflects that the mother understood the purpose of the section 366.26 proceedings.
When the court explained to the mother that “adoption is forever” and that she could appeal only when the decision had been made and the hearing was concluded, the mother responded: “I don’t want to go forward with this hearing.” The court then explained to the mother the purpose of the inquiry and the function of a guardian ad litem. The mother asked whether the guardian ad litem would be able to look at her file and the court replied that the guardian ad litem would have access to the file and was a person “who stands in your shoes and makes the decisions about what happens in this case for you.” The court made clear that this would deprive her of the opportunity to cooperate with her attorney and make her own decisions. The mother then reiterated: “I don’t want to proceed further with this hearing here in this Court anymore.” Again, the mother’s attorney confirmed that her client had indicated “she doesn’t want to go forward today.”
The mother’s and the attorney’s responses to the court’s inquiries clearly indicated that the mother simply did not want to go forward with the hearing rather than being incapable of assisting her attorney. The mother stated several times that she did not want to proceed any further with the hearing. And the attorney said that the mother had indicated to her that she did not want to take the stand. It was for that reason that the attorney felt the mother was “not able to assist in her own defense with respect to the 26 hearing.”
The court’s finding that the mother “does understand where we are and what is at stake and is unwilling to cooperate” is fully supported by this record. Since, as the juvenile court recognized, the appointment of a guardian ad litem “divests completely from the parent the right to make decisions about how to proceed,” the showing to justify appointing a guardian must be a strong one. Here the court satisfied itself in its inquiry that the mother “is able to understand but has decided not to be cooperative.” The appointment of a guardian ad litem in these circumstances is not warranted. As courts have held, a decision to appoint a guardian ad litem may not be based on whether “the individual is difficult to handle as a participant in the process.” (In re Joann E. (2002) 104 Cal.App.4th 347, 359.)
Most of the cases discussing the parameters of a Sara D. inquiry, including Sara D. itself, involve the juvenile court’s decision to appoint a guardian ad litem without a proper hearing, thus depriving the parent of the opportunity to participate in the section 300 proceeding. (See, e.g., In re Joann E., supra, 104 Cal.App.4th 347; In re Jessica G. (2001) 93 Cal.App.4th 1180; In re Christina B. (1993) 19 Cal.App.4th 1441; In re Daniel S. (2004) 115 Cal.App.4th 903.) In those circumstances, the task of the court on appeal is to review the record in order to ensure that important rights were not compromised by the appointment of a guardian ad litem without allowing the opportunity for the parent to be heard. Here, in contrast, the court’s decision did not deprive the mother of her right to participate in the process. Indeed she went on to testify at length at the section 366.26 hearing as to her bond and beneficial relationship with the children.
Cases where the parent has appealed the failure to appoint a guardian have generally involved the court’s sua sponte duty to appoint a guardian for an incompetent person. (Code Civ. Proc., §§ 372, 373.) For instance, in In re R.S. (1985) 167 Cal.App.3d 946, the mother contended on appeal that the juvenile court had erred in failing to appoint a guardian ad litem for her sua sponte in circumstances where the record documented her “mild mental retardation and her dependent personality disorder.” (Id. at p. 979.) The court rejected this argument, finding that the record showed that the mother understood the nature of the proceedings and was able to cooperate with counsel in representing her interests. Similarly in In re Ronell A. (1996) 44 Cal.App.4th 1352, the court noted that although the record documented the father’s “ ‘chronic mental illness and substance abuse,’ ” he had cooperated with counsel throughout the proceedings and there was evidence to support the court’s conclusion that he was not incompetent. (Id. at p. 1367.) In In re Lisa M. (1986) 177 Cal.App.3d 915, the Court of Appeal found error in a juvenile court’s failure to appoint a guardian ad litem. However, in that case the mother was “mentally retarded and emotionally disturbed” (id. at p. 916) and the juvenile court had made express findings that the mother was not able to understand the dependency proceedings in which she was a participant. Here, although the mother was confused about some aspects of the proceedings, she had no diagnosed mental illness and there was nothing in the record showing that she suffered from any mentally disabling condition. And the trial court made sufficient inquiry to elicit information from which it determined that the mother understood the nature of the proceedings and was able, if not willing, to participate with counsel in her defense.
The mother makes the argument that the court in this case abused its discretion by failing to ask certain specified questions of the mother, such as whether she was delusional, whether she had a mental health history, whether she had recently used drugs, and what acts on her part had resulted in the removal of the child. Mother cites no authority for her assertion that such questions are required in a Sara D. hearing. Indeed, the court in Sara D. held only that “the parent’s right to due process requires an informal hearing and an opportunity for the parent to be heard.” (Sara D., supra, 87 Cal.App.4th at p. 663.) As noted, a Sara D. inquiry will vary from case to case, depending on the circumstances. It does not require that any particular questions be asked, so long as the court elicits sufficient information to make a determination whether the parent understands the nature of the proceedings and is able to participate with counsel in representing her interests. The court did so here.
The mother contends the court’s inquiry deprived her of due process because the court did not ask sufficient questions from which to determine her competence to proceed without a guardian ad litem. She contends that her answers show that she did not understand the proceedings and was unable to cooperate with her attorney. We do not agree. The mother understood that the purpose of the hearing was to consider whether to free her child for adoption. Her attorney said that the mother had indicated to her that she understood the proceedings. In addition, the record shows that she did not want to cooperate with her attorney, had refused to testify, and did not want to go forward with the hearing, knowing the outcome could be that her parental rights were terminated. This is quite different from being unable to participate.
Furthermore, due process in a juvenile dependency proceeding is not synonymous with the due process accorded to criminal defendants or prospective conservatees, as the mother suggests. This is because the paramount concern in a dependency proceeding is the welfare of the child, rather than the personal liberty of the defendant. (In re Kerry O. (1989) 210 Cal.App.3d 326.) In general terms, due process requires a balancing of interests: the interest of the parent in the care and custody of the child, the interest of the child in a home that is stable and safe, the interest of the state in preserving and promoting the welfare of the child, and the interest of all parties in achieving a fair and just result. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1152, fn 4.) An evaluation of these competing interests shows that the Sara D. inquiry in this case comported with due process.
Reliance on Material Not on the Record
The mother contends that the court abused its discretion by improperly relying on matters not in the record, because the transcript shows that there was a break in the proceedings indicated by the notation “(Discussion Held Off the Record).” She argues that it is error for the court to base a decision on off-the-record and unsworn statements. (In re Ronnie P. (1992) 10 Cal.App.4th 1079, 1084; David B. v. Superior Court (2004) 123 Cal.App.4th 768, 794-795.) The cites cases by the mother are inapplicable. In re Ronnie P. involved a section 777 adjudication, where the juvenile court’s finding that the minor had violated his probation was based on a previously imposed condition that was not apparent in the record. In David B. v. Superior Court, the court considered the evidence necessary to support a finding, by clear and convincing evidence, that reasonable services had been offered. The court found that it could not rely on assumptions that the agency had engaged in its regular practice of providing services, in the absence of factual evidence of the services actually provided.
In the case before us, the mother does not suggest what the substance of the off-the-record discussion was and there is no indication from the record what was discussed or who took part in the discussion. The mother contends that since the court indicated its decision immediately after the discussion held off the record, it follows that the off-the-record discussion must have persuaded the court in some way. We will not presume that this is the case without anything in the record to support this assertion. There is no basis here from which to conclude that the court proceeded improperly or abused its discretion.
DISPOSITION
The judgment terminating parental rights is affirmed.
WE CONCUR: MIHARA, J, DUFFY J.