Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD226541
HULL, J.S.F., the mother of R.S. (born October 27, 2007), appeals from a juvenile court order terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395; undesignated statutory references that follow are to the Welfare and Institutions Code.) Mother contends (1) the court committed reversible error by failing to appoint a guardian ad litem for her because she was incompetent, (2) her trial counsel’s failure to request a guardian ad litem constitutes ineffective assistance, and (3) her failures to object in the juvenile court and to file a writ petition in this court do not forfeit her right to raise these issues on appeal. We affirm the judgment.
Facts and Proceedings
Mother was born in January 1973. On October 27, 2007, she gave birth to R.S. at home while under the influence of cocaine to such an extent that she was unaware she had delivered a baby. The father, who was present, telephoned 911. Mother and baby were taken to a medical center where Mother tested positive for cocaine and R.S. was taken into protective custody.
Petition
On October 30, 2007, the Department of Health and Human Services (DHHS) filed a petition alleging that R.S. was within the provisions of section 300, subdivisions (b) and (j). With respect to subdivision (b) (failure to protect), the petition alleged that Mother had ingested drugs during the child’s gestation and around the time of her birth.
With respect to subdivisions (b) and (j) (abuse of sibling), the petition alleged that R.S.’s sibling, B.S., had been adjudicated a dependent based in part on Mother’s substance abuse. Mother’s reunification services had been terminated due to her failure to make substantive progress to treat her substance abuse.
With respect to subdivision (j), the petition alleged that R.S.’s five half siblings had been adjudicated dependents based in part on Mother’s failure to protect them from abuse by their father, W.T. Mother’s reunification services had been terminated due to her failure to make substantive progress.
Detention
The detention report detailed Mother’s lengthy drug history and the siblings’ 11 prior child welfare referrals from February 1998 to February 2006. At the detention hearing on October 31, 2007, the Sacramento County Counsel declared a conflict and the Sacramento County District Attorney was appointed to represent DHHS. At the continued hearing the next day, R.S. was ordered detained.
Jurisdiction and Disposition
DHHS filed a jurisdiction/disposition report dated November 30, 2007. The report recounted interviews with Mother’s probation officer and drug treatment program workers. None of them reported that Mother was incompetent or incapacitated due to low intelligence; none reported having communication or comprehension problems with her.
In its summary of Mother’s previous record, the report noted that in 1990, Mother had herself been a dependent of the Sacramento County Juvenile Court. Relying on an unidentified prior record, the report described Mother as “low functioning with an IQ of approximately 38.” The report gave no further details on this point.
We note that, in her opening brief, Mother claims she had been a dependent child “because she suffered from abuse, neglect, sexual abuse, and violent criminality.” Her citation to the record does not support this assertion. The report does not indicate why Mother had been a dependent.
Regarding her family background, the report noted that Mother was born in Los Angeles and resided there until age 13. From age 13 to age 15, she lived with her maternal grandmother in Sacramento. From age 15 to age 18, she lived with various relatives and on the street.
We further note that, in her opening brief, Mother claims she had been “abandoned as a 13 year old.” The record does not support the claim of abandonment.
Regarding her education, the report noted that Mother completed the 10th grade. She also attended an adult school in an unsuccessful attempt to earn her GED. Mother “reported she receives $770 a month from SSI [(Supplemental Security Income)] benefit.”
In her opening brief, Mother asserted that she “receives SSI because she is mentally disabled.” DHHS responded that “there is no reason given for why the mother received SSI.” In her reply brief, Mother notes that at the section 366.26 hearing, she had testified that “3180 [sic] mental retardation” was her “diagnosis for disability, SSI.”
The report said that Mother did not believe she had any medical problems. Mother said she had been “diagnosed with Mental Block Disorder and Post Traumatic Stress Disorder.” She had been “prescribed Prozac and Ambien to be taken once a day.” She also took Vicodin for back pain, as needed.
Mother told the interviewer that her alcohol use began in 1989 and ended in 1991. Thereafter, she used marijuana weekly until November 2007. She said her cocaine use began in 1998 and ended sometime in 2005. She took ecstasy pills in 2005.
Mother claimed that she had completed a residential treatment program in November 2006 and had completed the Specialized Treatment and Recovery Services (STARS) program in March 2007.
The report noted that, contrary to Mother’s claim of having completed the STARS program, STARS personnel had indicated that Mother had been admitted to the program only recently (November 8, 2007), and was about to be discharged from the program (on November 30, 2007), because she had “tested presumptive positive for cocaine for the entire month of November.” STARS personnel explained that Mother had “insisted her medication is what causes her to test positive for cocaine and she has no[t] used [it] in [two] years.” As of the writing of the report, laboratory analysis had confirmed the presence of cocaine metabolite in only the first of the five tests taken during November 2007.
On December 28, 2007, with Mother present, the trial court set a contested jurisdiction/disposition hearing for January 16, 2008, and a pretrial hearing on January 10, 2008. On January 10, with Mother present, the contested hearing was reset to January 31, 2008. On January 31, with Mother present, the contested hearing was continued to February 4, 2008.
DHHS filed an addendum report dated January 31, 2008. The addendum noted DHHS’s receipt of a Case Closure summary from STARS, which reported Mother’s refusal to “engage in appropriate treatment, which was assessed to be residential treatment.” Nothing in the addendum supported Mother’s claim that she had already completed residential treatment in November 2006.
The addendum noted that Mother’s positive tests had resulted in her admission of a probation violation, for which she would be returning to custody. Mother had maintained that the positive tests were due to prescription medication, but she had never been “able to provide the Probation Department [a] verified letter from her prescribing physician.” The report noted that Mother had tested positive for cocaine on 12 different testing dates from November 2007 through January 2008.
On February 4, 2008, the contested jurisdiction/disposition hearing was held. Mother, who appeared in custody, gave unsworn and then sworn testimony regarding the father’s absence from the hearing. She gave coherent responses to questions from the court and counsel for DHHS.
Mother’s counsel entered denials to the allegations, objected to out-of-home placement and the lack of reunification services, and objected to the setting of a section 366.26 hearing.
The juvenile court found the minor to be within section 300, subdivisions (b) and (j), and ordered a section 366.26 hearing on May 30, 2008. The court denied reunification services because Mother had failed to make substantive progress on services offered regarding B.S. (§ 361.5, subd. (b)(10)), and because she had a lengthy history of substance abuse and recently had tested positive for cocaine on six occasions (§ 361.5, subd. (b)(13)).
Selection and Implementation
The selection and implementation report stated that Mother had not contacted DHHS to arrange or request visitation, and that there had been no contact between Mother and R.S. The report noted that there was no bond between Mother and R.S., that five children had previously been removed from Mother’s care, and that she had not reunified with any of them. The report concluded that R.S. was adoptable, and there was a family that wanted to adopt her.
On May 30, 2008, at Mother’s request, the court set the matter for a contested hearing.
At the contested hearing on June 6, 2008, Mother testified that she knew that DHHS was recommending that she lose her parental rights and that R.S. be put up for adoption. Mother testified that she would like to “see about getting a place and getting situated and getting [B.S.] and [R.S.] back in [her] care and back with [her].” Mother believed she was bonded with R.S., even though she had seen R.S. on only three occasions. On cross-examination by counsel for DHHS, Mother testified that she “never tried,” and has “never used,” cocaine; nor was she under its influence when R.S. was born. On cross-examination by counsel for R.S., Mother claimed she had evidence that disputed the positive tests for cocaine. That evidence turned out to be negative tests that were conducted several months after the positive tests.
On cross-examination by DHHS, Mother testified that she has “memory loss,” “mental retardation,” and “a lot of things.” On further questioning by the court, Mother explained that in 1989, upon the birth of her first child, she had been told that she “had seen a mental doctor” who had told her she “had 3180 [sic] mental retardation.” The number “3180” is an apparent reference to the Diagnostic and Statistical Manual of Mental Disorders, section 318.0, Moderate Mental Retardation.
The juvenile court found that R.S. was adoptable and that the beneficial relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)) did not apply. The court issued an order terminating Mother’s parental rights. Mother timely appealed from that order.
Discussion
I
We first consider Mother’s contention that her failures to request a guardian ad litem in the juvenile court and to file a writ petition in this court do not forfeit her right to raise her contentions on appeal. The point has merit.
Because a person entitled to a guardian ad litem under Code of Civil Procedure sections 372 and 373 is hardly in a position to recognize the error and to protest a dependency court’s failure to appoint one, Mother’s failures to request the appointment of a guardian ad litem in the juvenile court and to renew the issue by writ petition do not forfeit her right to raise the guardian ad litem issue in this appeal. (In re A.C. (2008) 166 Cal.App.4th 146, 156; In re M.F. (2008) 161 Cal.App.4th 673, 682.) We will consider Mother’s remaining contentions.
II
The Appointment of a Guardian Ad Litem
Mother contends the juvenile court erred reversibly when it failed to appoint a guardian ad litem for her because she was incompetent. Alternatively, she claims her trial counsel rendered ineffective assistance by failing to request that a guardian ad litem be appointed.
DHHS counters that the claim of incompetence is based solely upon mental retardation; the only evidence of mental retardation was (1) the old report of an extremely low IQ of 38, which was contradicted by Mother’s completing the 10th grade and trying for her GED, and (2) Mother’s “late and unreliable self-report testimony” at the section 366.26 hearing. Given this dearth of evidence of incompetence, DHHS argues the failure to appoint a guardian ad litem was not error. We agree.
Code of Civil Procedure section 372, subdivision (a), provides in relevant part: “When . . . an incompetent person . . . is a party, that person shall appear . . . by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case. A guardian ad litem may be appointed in any case when it is deemed by the court in which the action or proceeding is prosecuted, or by a judge thereof, expedient to appoint a guardian ad litem to represent the . . . incompetent person . . . .”
Code of Civil Procedure section 373 further provides, “When a guardian ad litem is appointed, he or she shall be appointed as follows: [¶] . . . [¶] (c) If an . . . incompetent person is a party to an action or proceeding, upon the application of a relative or friend of such . . . incompetent person, or of any other party to the action or proceeding, or by the court on its own motion.”
“In a dependency case, a parent who is mentally incompetent must appear by a guardian ad litem appointed by the court. [Citations.] The test is whether the parent has the capacity to understand the nature or consequences of the proceeding and to assist counsel in preparing the case. [Citations.]” (In re James F. (2008) 42 Cal.4th 901, 910.)
Neither the juvenile court nor Mother’s trial counsel ever suggested that Mother lacked the capacity to assist counsel in preparing her case. Moreover, Mother’s testimony demonstrated that she understood the nature and consequences of the proceeding. She acknowledged that DHHS was recommending that she lose her parental rights and that R.S. be put up for adoption. But mother wanted to find housing, get settled, and reunite with B.S. and R.S.
Mother understood the proceedings well enough to assert facts that, on their face, tended to support her position. For example, she claimed that she had completed residential treatment and STARS, even though there was evidence to the contrary. In colloquial terms, Mother had her story and she stuck to it. She yielded little ground and she compelled DHHS to prove its case. Occasionally, Mother reclaimed ground that she had previously yielded. In an interview for the jurisdiction/disposition report, Mother admitted that she had begun using cocaine in 1998 but claimed she had stopped using it in 2005. Later, at the selection and implementation hearing, Mother testified on cross-examination that she had “never tried” cocaine and had “never used” it. In all, her choice of strategies does not demonstrate that Mother was incompetent.
Mother’s argument rests primarily on her IQ as reflected in her 1990 Child Protective Services history. Her stated IQ of 38 places her in the overlap between 318.0 “Moderate Retardation” (IQ level 35-40 to 50-55) and 318.1 “Severe Mental Retardation” (IQ level 20-25 to 35-40). (American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) (hereafter DSM IV-TR).) Mother’s testimony at the selection and implementation hearing (“3180 [sic] mental retardation”) effectively acknowledged that her diagnosis had been the former, not the latter. Mother’s appellate argument overlooks the overlapping classifications and assumes that she had Severe Mental Retardation.
But even persons with moderate, as opposed to severe, mental retardation are unlikely to progress past the second-grade level. The DSM IV-TR states: “Moderate Mental Retardation is roughly equivalent to what used to be referred to as the educational category of ‘trainable.’ This outdated term should not be used because it wrongly implies that people with Moderate Mental Retardation cannot benefit from educational programs. This group constitutes about 10% of the entire population of people with Mental Retardation. Most of the individuals with this level of Mental Retardation acquire communication skills during early childhood years. They profit from vocational training and, with moderate supervision, can attend to their personal care. They can also benefit from training in social and occupational skills but are unlikely to progress beyond the second-grade level in academic subjects. They may learn to travel independently in familiar places. During adolescence, their difficulties in recognizing social conventions may interfere with peer relationships. In their adult years, the majority are able to perform unskilled or semiskilled work under supervision in sheltered workshops or in the general workforce. They adapt well to life in the community, usually in supervised settings.” (DSM IV-TR, at p. 43, italics added.)
The jurisdiction/disposition report casts doubt on the accuracy of the old diagnosis by noting that Mother had completed the 10th grade and had attempted, albeit unsuccessfully, to obtain her GED. (Cf. In re Ronell A. (1996) 44 Cal.App.4th 1352, 1367 [failure to appoint a guardian ad litem for father who had some high school education was not reversible error].)
Mother’s argument also relies on the fact she was taking Prozac, Ambien, and Vicodin. Prozac is an antidepressant; Ambien is a sleep aid; and Vicodin, in this case, was prescribed for back pain. Nothing in the record suggests that one or more of these medications impaired Mother’s ability to understand the proceedings or to assist her counsel. Nor is there any suggestion that these medications were given because of a pre-existing mental disability.
This leaves Mother’s comment that her mental retardation was her “diagnosis for disability, SSI.” Evidently, Mother’s SSI benefit was based upon the diagnosis of 318.0 moderate mental retardation. Nothing in the record suggests that additional confirmatory testing was required in order to award SSI. Thus, the fact that SSI had been awarded does not require a finding that, almost 20 years later, Mother was unable to understand the proceedings or assist her counsel.
In In re R.S. (1985) 167 Cal.App.3d 946 the mother contended the juvenile court had erred in failing to appoint a guardian ad litem for her and that her counsel was ineffective for having failed to request an examination of her competency. The reviewing court rejected these contentions, stating that notwithstanding the mother’s mental retardation and her dependent personality disorder, the record established that she understood the nature of the proceedings against her and was able to meaningfully participate in those proceedings and to cooperate with her trial counsel in representing her interest. The reviewing court concluded that neither the trial court nor the mother’s trial counsel ignored evidence that the mother’s abilities were so limited that she was effectively rendered incompetent to understand the nature of the proceedings or to assist her counsel in representing her interest so as to require appointment of a guardian ad litem. (Pp. 979-980.)
Similarly here, Mother understood the nature of the proceedings against her; she was able to participate meaningfully in the proceedings and cooperate with her counsel in representing her interests. (In re R.S., supra, 167 Cal.App.3d at pp. 979-980.)
Mother’s claims of prejudice require little additional discussion. She finds it “odd” that she continued to test positive for cocaine while consistently saying she was drug-free. She claims a guardian ad litem could have investigated whether one or more of her prescription medications were causing false positive tests. However, the present record offers no clue as to what such an investigation might have revealed. On this record, Mother’s claim of prejudice is wholly speculative.
“The test for ineffective counsel is twofold: (1) counsel’s representation falls below an objective standard of reasonableness and (2) the deficiency subjects defendant to demonstrable prejudice. [Citations.] A court need not evaluate whether counsel’s performance was deficient before examining prejudice suffered by defendant. [Citation.] Thus, a court may reject a claim if the party fails to demonstrate that but for trial counsel’s failings, the result would have been more favorable to the defendant. [Citation.]” (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.)
The contention fails, in part because, for the reasons we have explained, Mother has not shown that the appointment of a guardian ad litem would have produced a result more favorable to her. Her claim of ineffective assistance of counsel has no merit.
Disposition
The judgment is affirmed.
We concur: RAYE, Acting P. J., BUTZ, J.