Opinion
NOT TO BE PUBLISHED
Super. Ct. No. J04460
CANTIL-SAKAUYE, J.
Y.F. (appellant), the mother of W.G. (the baby) and a dependent minor herself, appeals from the juvenile court’s order terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)
Hereafter, undesignated statutory references are to the Welfare and Institutions Code.
Appellant contends the juvenile court committed prejudicial error by failing to appoint her a guardian ad litem separate from her counsel at the outset of the dependency proceedings. As appellant was a minor throughout these proceedings, we agree she was entitled to a guardian ad litem, pursuant to our decision in In re M.F. (2008) 161 Cal.App.4th 673. As in that case, here, too, we cannot find the error harmless and therefore shall reverse the order terminating parental rights and all prior orders.
In light of our disposition, we need not consider appellant’s remaining contention that her trial counsel rendered ineffective assistance of counsel.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2006, when appellant was 16, San Joaquin County Human Services Agency (HSA) filed a dependency petition pursuant to section 300 on behalf of her two-week-old baby, who lived with appellant. That petition alleged appellant, herself a dependent of the juvenile court who had run away from a group home, left her baby without adequate supervision. Moreover, the petition alleged, appellant was not prepared for her baby after birth. Finally, according to the petition, appellant was a victim of severe physical abuse and neglect, and had been a dependent child in Alameda County for most of her life.
At the December 2006 jurisdiction hearing, the juvenile court sustained the petition pursuant to a waiver of rights and plea from appellant and named her counsel to act also as appellant’s guardian ad litem. Thereafter, at disposition, the court ordered appellant’s baby removed from parental custody and granted appellant reunification services, without objection from appellant’s counsel.
On May 2, 2007, the juvenile court appointed a guardian ad litem for appellant, separate from her counsel. In a social worker’s report, HSA stated that appellant’s whereabouts were unknown and she had not availed herself of services. It recommended termination of services for appellant.
In January 2008, the juvenile court ordered appellant’s reunification services terminated and scheduled a section 366.26 hearing. According to the report prepared by HSA for the section 366.26 hearing, appellant had returned to her group home and resumed weekly visits with the baby. However, HSA identified adoption as the appropriate permanent plan for appellant’s baby and recommended termination of parental rights.
Appellant was absent from the June 25, 2008, section 366.26 hearing, but both her guardian ad litem and counsel were present. Appellant’s counsel opposed the recommendation by HSA to terminate appellant’s parental rights. At the conclusion of the hearing, the juvenile court terminated parental rights and ordered appellant’s baby placed for adoption.
DISCUSSION
Appellant claims the juvenile court committed reversible error by failing to appoint a separate guardian ad litem for her earlier in the dependency proceedings. For the reasons expressed in In re M.F., supra, 161 Cal.App.4th 673, we agree.
For the reasons stated in In re M.F., supra, 161 Cal.App.4th at pages 681-682, we reject HSA’s contention that appellant’s claim has been forfeited by her failure to file a writ petition following the termination of her reunification services.
Code of Civil Procedure section 372, subdivision (a) provides in part that in any proceeding in which a minor or 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.” (Italics added.) Code of Civil Procedure section 373 provides for the appointment of a guardian ad litem for a minor or incompetent person by the court on its own motion. (§ 373, subds. (b) & (c).) When a minor is a party to an action, a guardian ad litem must be appointed for the minor as a matter of law. (In re Sara D. (2001) 87 Cal.App.4th 661, 667.)
The effect of the guardian ad litem’s appointment is to transfer direction and control of the litigation from the parent to the guardian ad litem, who may waive the parent’s right to a contested hearing. (In re Jessica G. (2001) 93 Cal.App.4th 1180, 1186-1187; In re Sara D., supra, at p. 668.)
In In re M.F., supra, 161 Cal.App.4th at pages 679-680, we discussed the situation in which counsel for a minor who is the subject of a dependency proceeding also may serve as that minor’s guardian ad litem, and how that varies from the circumstance involving a parent who also is a minor. As we noted, in the latter situation, it is necessary for a guardian ad litem to stand in the role of the parent and provide input to counsel. (Id. at p. 680.) Similarly, in this case it was important for appellant, a victim of abuse who had given birth at 16 and had mental health problems as well, to have the benefits afforded her by appointment of a separate guardian ad litem. That individual’s role in advising counsel was especially significant here, as appellant had a history of leaving group home placements.
The issue remaining is whether appellant was prejudiced by the juvenile court’s failure to timely appoint a separate guardian ad litem for her. We conclude that, for reasons similar to those found in In re M.F., supra, 161 Cal.App.4th 681, appellant was so prejudiced. Most fundamentally, the record reflects appellant’s right to contest the proceedings both at jurisdiction and disposition was waived. As appellant was herself a dependent victim of abuse who had not abused her baby, a guardian ad litem appointed separately and timely for appellant likely would have contested both jurisdiction and disposition. Moreover, as we have suggested, appellant's frequent absences made the role of a guardian ad litem more likely to be useful for her counsel. Finally, the record reflects appellant had resumed contact with her baby and was visiting her, which suggests a more favorable outcome for appellant remained possible.
In light of all the circumstances in this case, we conclude the error in failing to appoint a guardian ad litem for appellant at the outset of the proceedings cannot be deemed harmless beyond a reasonable doubt. (In re M.F., supra, 161 Cal.App.4th at p. 681; see also In re C.G. (2005) 129 Cal.App.4th 27, 34.) On remand, the juvenile court should conduct a new jurisdiction hearing and appoint appellant a separate guardian ad litem.
Although appellant likely has reached the age of majority, the juvenile court has jurisdiction over a dependent minor past her 18th birthday. (§ 303.)
DISPOSITION
The order terminating parental rights and all prior orders are reversed. The matter is remanded to the juvenile court with directions to conduct a new jurisdiction hearing consistent with this opinion.
Effective January 1, 2009, section 326.7 provides that “[a]ppointment of a guardian ad litem shall not be required for a minor who is a parent of the child who is the subject of the dependency petition, unless the minor parent is unable to understand the nature of the proceedings or to assist counsel in preparing the case.”
We concur: SIMS, Acting P. J., NICHOLSON, J.