Opinion
A122302
9-19-2008
J.H., Petitioner, v. THE SUPERIOR COURT OF DEL NORTE COUNTY, Respondent; DEL NORTE COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, Real Party in Interest.
Not to be Published
J.H. (Mother) has filed a petition for extraordinary writ seeking review of the juvenile courts order setting a permanency planning hearing for her son, R.H. (Minor), under Welfare and Institutions Code section 366.26. Mother challenges (1) the juvenile courts decision to appoint a guardian ad litem for her in the proceedings below and (2) the courts denial of reunification services to her. Finding no error in either decision, we will deny the petition.
All further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Mother came to the attention of the Del Norte County Department of Health and Human Services (the Department) even prior to Minors birth. A nurse and social service aide who visited Mother during her pregnancy became concerned because of odd comments Mother was making and because Mother appeared paranoid. The Department therefore requested the local hospital to notify it when Mother gave birth.
Minor was born in April 2008, and three days after his birth the Department removed Minor from Mother at the hospital because of concerns about her ability to care for her son. On April 28, 2008, the Department filed a petition alleging that Minor fell within the jurisdiction of the juvenile court under Welfare and Institutions Code section 300, subdivisions (b), (g), and (j). The petition alleged that Mother exhibited symptoms of untreated mental illness and that Mother had failed to reunify with two of Minors half-siblings. According to the petition, Mother had an extensive history with the child welfare authorities in Washoe County, Nevada. The petition stated that Mothers parental rights to her oldest child, a daughter, had been terminated, and the daughter had been adopted. It stated further that Mothers second child, a son, was a dependent of the Washoe County, Nevada, Department of Social Services and was in adoptive placement. The identity and whereabouts of Minors father were unknown.
The juvenile court held an initial detention hearing on April 29, 2008, and ordered that Minor remain detained. At a further detention hearing on May 2, 2008, the court placed Minor under the care and custody of the Department. At the May 2 hearing, the court also ordered that Mother undergo a mental health evaluation. Mother was referred to a psychologist who met with her four times for assessment and testing.
In a report later submitted to the court, the psychologist noted that Mother suffers from a "confused mental state exacerbated by a severe mental illness." Cognitive testing revealed that Mother falls in the low average range of intelligence. Psychological testing showed that Mother is "experiencing significant affective disturbance that is associated with a major depressive disorder or the depressive phase of Bipolar Disorder." According to the psychologists report, Mothers personality is "marked by oppositional tendencies" that "can and will undermine her judgment and the maintenance of harmonious relationships with others." The report noted that Mother has limited capacity to form close relations with others and suffers from an impairment in empathic capacity. The psychologist also found that Mother evidences substantial impairments in reality testing. The psychologist concluded that Mother "is a severely mentally ill woman" and explained that he had observed that Mother has a "significant mood disturbance and thought disorder." His report noted that Mother "lacks insight into her mental illness, which can be a significant obstacle to her being treated and getting well." Regarding Mothers ability to parent Minor and benefit from reunification services, the psychologist concluded that Mother would be unable to do either without psychiatric treatment.
The juvenile court first set a jurisdictional hearing for May 9, 2008. At the May 9 hearing, Mother denied the allegations of the petition, and the court continued the jurisdictional hearing to May 23, 2008. On that date, the Department submitted an extensive jurisdiction report, attaching records of Mothers criminal and child welfare history in Nevada. At the May 23 hearing, the juvenile court continued the jurisdictional hearing again until June 6, 2008.
Mother did not appear for the June 6 hearing, and her counsel advised the court that she was in Nevada "taking care of criminal matters." The juvenile court set another hearing for June 13, 2008, but Mother again failed to appear on that date. In her absence, her counsel and the court discussed the appointment of a guardian ad litem for her. The juvenile court then continued the matter until June 27, 2008 for a combined jurisdictional/dispositional hearing.
Once again, however, Mother did not appear on June 27. The Department social worker informed the court that the Department had purchased a bus ticket for Mother so that she could attend the hearing but stated that Mother had not picked up the ticket. The juvenile court found that Mother fell under the provisions of Penal Code section 1368 and appointed a guardian ad litem for her. The court then set another hearing for July 3, 2008.
Under Penal Code section 1368, if the superior court doubts that a criminal defendant lacks mental competence, the court is required to state such doubts on the record and inquire of the defendants attorney whether the attorney believes the defendant to be competent. (Pen. Code, § 1368, subd. (a).) If the attorney informs the court that he or she believes the defendant is or may be mentally incompetent, the court must hold a hearing to determine the question of the defendants mental competence. (Pen. Code, § 1368, subd. (b).)
Mother did not appear in court on July 3. The juvenile court proceeded to find the jurisdictional allegations of the petition true and set the dispositional hearing for July 11, 2008. The parties stipulated that the psychologists report would be received into evidence for purposes of the dispositional hearing.
In its disposition report, the Department recommended that Minor be made a dependent of the court and that Mother not be offered reunification services. It based this recommendation on Mothers ongoing and untreated mental illness and her inability to recognize that she is mentally ill. The Department noted Mothers prior child welfare history and her inability to reunify with two of Minors half-siblings. The report also stated that "it appears that [Mother] has not addressed her mental illness that prevented her from reunifying with her other two children." The Department concluded that Minor "is in need of a nurturing and stable home that respectfully, his mother simply cannot provide for him."
On July 11, the juvenile court convened the dispositional hearing, but Mother was not present. Mothers counsel stated that he had been unable to reach his client by phone. The court noted on the record that all parties had agreed to go forward with disposition despite Mothers absence. Mothers counsel argued that the court should order reunification services for Mother, contending that the psychologists report suggested that Mothers mental illness might get better if she received appropriate medication. Minors counsel responded that the issue was whether Mother had already taken medication and addressed the problems that led to the removal of Minors half-siblings. Because Mother had not yet done so, Minors counsel argued that she should be denied services.
The juvenile court decided to deny Mother reunification services. The court noted that Mother previously had failed to reunify with two other children. It explained further: "In fact, her parents rights have been terminated as to one, and reunification services terminated to the other, and shes about to lose her parents rights. [¶] Now I would assume — shes lost two kids, and that hasnt been able to get her to focus. And now this child she left and hasnt been around in a month, dont even know where she is, so I just dont think that there is any realistic hope that mom is going to be able to reunify with this child even if we were to offer services." The juvenile court went on to find by clear and convincing evidence that Mother had not made a reasonable effort to treat the problems that led to the prior removal. Citing section 361.5, subdivisions (b)(10) and (b)(11), the courts written order provided that "[n]o reunification services shall be provided to [Mother]."
On July 15, 2008, Mother filed a notice of intent to file a writ petition. Mother filed her petition with this court on August 15, 2008.
DISCUSSION
In her writ petition, Mother challenges two decisions of the juvenile court. She first argues that the juvenile court erred in appointing a guardian ad litem for her in the proceedings below. She then contends that the court abused its discretion by denying her reunification services. We address each issue in turn.
I. Appointment of the Guardian Ad Litem
Mother contends that the appointment of the guardian ad litem was "fatally flawed" because she was not present in the courtroom when the appointment was made. Mother asserts that she should have been "personally canvassed" by the court and accorded the kind of hearing described in In re Sara D. (2001) 87 Cal.App.4th 661. That case held that due process requires the juvenile court to hold an informal hearing before appointing a guardian ad litem for a parent in dependency proceedings so that the court can "make an inquiry sufficient to satisfy it that the parent is, or is not, competent." (Id. at p. 672.) We reject Mothers argument for several reasons.
It is not clear that this issue has been preserved for appeal. Mother was represented below by the same counsel representing her in this court. Her counsel freely admits that he "asked for the appointment of a guardian ad litem" because Mother was absent from the proceedings. Thus, not only did Mothers counsel fail to object to the appointment below, he himself requested it. "Appellants normally cannot assert error for which they bear some responsibility[.]" (1 Eisenberg, et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶ 8:244, pp. 8-140 to 8-141.) In juvenile dependency proceedings, due process challenges may be forfeited by a partys failure to object to the alleged procedural error. (See, e.g., In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222 [claim that due process required new finding of parental unfitness before court could proceed to permanency planning hearing forfeited by failure to object].) Nevertheless, because of the "unusual tension [that] is introduced into the attorney-client relationship" when counsel requests appointment of a guardian ad litem for an incompetent parent (In re Sara D., supra, 87 Cal.App.4th at p. 670), we will assume for purposes of our discussion that the issue is properly before us.
At the outset, we observe that our review of this issue is hampered by lack of a complete record. According to the clerks transcript, the juvenile court appointed the guardian ad litem for Mother at a hearing held on June 27, 2008. But the record before us contains no reporters transcript of that hearing. As a result, we do not know what evidence the juvenile court might have heard in reaching its decision, nor do we have the benefit of any oral ruling the court might have made.
Despite the absence of a reporters transcript, the record that we do have is sufficient for us to determine that no prejudicial error occurred. Mothers counsel discussed the appointment of a guardian ad litem for his client with the juvenile court on June 13, 2008, at what was to have been the jurisdictional hearing in the case. That hearing was continued until June 27, 2008, because Mother was in Nevada and absent from the proceedings. On June 23, in response to a voice message from Mother, the Department purchased a Greyhound bus ticket from Reno to Arcata so that Mother could be present at the hearing. The Department confirmed that Mother did not board the bus as scheduled, and she did not appear at the hearing on June 27. It is therefore hardly surprising that the juvenile court did not "personally canvass" Mother when the record shows that she failed to appear in court despite having been given the means to do so. And although we have no reporters transcript of the June 27 hearing, the juvenile court minutes state, "The court finds that Mother does fall under [Penal Code section] 1368." We take it from the reference in the minutes to Penal Code section 1368 that the juvenile court determined that Mother was mentally incompetent.
In this case, "[t]he evidence in the record all points to the conclusion that [Mother] was incompetent and thus in need of a guardian ad litem." (In re James F. (2008) 42 Cal.4th 901, 916.) Such an appointment is appropriate when the parent is unable to understand the consequences of the juvenile court proceedings and is incapable of assisting in the preparation of her case. (In re Jessica G. (2001) 93 Cal.App.4th 1180, 1186.) Here, the psychological evaluation prepared for the court stated that Mother "is a severely mentally ill woman." It also noted that Mother "lacks insight into her mental illness, which can be a significant obstacle to her being treated and getting well." The psychologists report diagnosed Mother as suffering from bipolar disorder "[m]ixed with mood congruent psychotic features." The report also noted that Mother "evidences substantial impairments in reality testing. She misperceives events . . . . This adaptive liability will result in her . . . inability to appreciate the consequences of her actions, creating chronic adjustment problems in managing her life." The psychologists report is consistent with the reported observations of social workers and others assigned to the dependency case. They stated that Mother exhibited symptoms of untreated mental illness, including paranoia, and that Mother frequently made nonsensical statements. In light of this uncontradicted evidence in the record, we can find no error in the juvenile courts conclusion that appointment of a guardian ad litem was appropriate. (In re Jessica G., at p. 1186.)
Moreover, even if we were to assume that the juvenile court committed a procedural error by appointing a guardian ad litem in Mothers absence, any such error was harmless beyond a reasonable doubt. "[E]rror in the procedure used to appoint a guardian ad litem for a parent in a dependency proceeding is trial error that is amenable to harmless error analysis rather than a structural defect requiring reversal of the juvenile courts orders without regard to prejudice." (In re James F., supra, 42 Cal.4th at p. 915.) Furthermore, "a finding that the juvenile courts error was prejudicial must be based on a claim of prejudice rather than speculation of possible prejudice — because it is simply inefficient to reverse a dependency judgment based upon speculation that an offending parent may have handled the case differently than his or her guardian ad litem." (In re Esmeralda S., supra, 165 Cal.App.4th at p. 96.)
The California Supreme Court recently declined to decide whether the appropriate standard of review for alleged error in the juvenile courts procedures for appointing guardians ad litem in dependency cases is harmless by clear and convincing evidence or harmless beyond a reasonable doubt. (In re James F., supra, 42 Cal.4th at p. 911, fn. 1.) Without deciding the issue, we will apply the harmless beyond a reasonable doubt standard in this case, "because it provides a more cautious approach in that if the error is harmless beyond a reasonable doubt it will also be harmless by clear and convincing evidence." (In re Esmeralda S. (2008) 165 Cal.App.4th 84, 94.)
Here, although Mother claims that the juvenile court failed to follow proper procedures in appointing the guardian ad litem, she does not cite any actual prejudice resulting from the appointment. (See In re Enrique G. (2006) 140 Cal.App.4th 676, 686 [any error in appointing guardian ad litem harmless where mother identified no prejudice].) We will not assume the existence of prejudicial error where none is claimed. (See In re Esmeralda S., supra, 165 Cal.App.4th at p. 95 [court refused to assume appointment of guardian ad litem prevented mother from arguing that her possible Native American ancestry made Indian Child Welfare Act applicable, where mother made no actual claim of Native American ancestry].) Nor would the record support such a claim in any event. It appears that Mothers counsel acted to protect her rights in these proceedings, obtaining continuances to accommodate her absences, seeking services for Mother, and instituting this writ proceeding to challenge the setting of the section 366.26 hearing. This militates against any suggestion of prejudice. (In re Enrique G., at p. 686 [no prejudice where mothers counsel requested continuances for her, requested contested hearings, sought continuation of reunification services, and filed writ proceeding].)
In sum, Mother has failed to show that the juvenile court committed procedural error in appointing a guardian ad litem for her. Even if there was such error, we hold that it was harmless beyond a reasonable doubt.
II. Denial of Reunification Services to Mother
The juvenile court denied Mother reunification services pursuant to section 361.5, subdivisions (b)(10) and (b)(11) (hereafter "section 361.5(b)(10)" and "361.5(b)(11)"). Those subdivisions permit the juvenile court to refuse reunification services to a parent where: (1) reunification services have previously been terminated for any sibling or half-sibling of the dependent minor (§ 361.5, subd. (b)(10)) or where the parents rights over any sibling or half-sibling have been terminated (§ 361.5, subd. (b)(11)) and (2) the parent has not subsequently made a reasonable effort to treat the problems that led to the removal of the dependent minors sibling or half-sibling. (§ 361.5, subd. (b)(10), (11).) Mother contends that the juvenile court abused its discretion in denying her reunification services. We disagree.
Initially, we note that we review the juvenile courts decision to deny reunification services for substantial evidence, not for abuse of discretion. (See Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96 & fn. 6 [order denying reunification services under § 361.5, subd. (b) reviewed for substantial evidence]; Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470, 474 [same].) Having reviewed the record, we are persuaded that the juvenile courts decision to deny reunification services to Mother is supported by substantial evidence.
Mother concedes that the juvenile court denied services to her because the Nevada courts had terminated her parental rights to her oldest child and had terminated reunification services for her second child. She also acknowledges that this would normally be a sound basis for denial of services. Nevertheless, Mother asserts that her two prior failures to reunify should not be held against her because there is nothing in the records of the Nevada juvenile proceedings to indicate that she was ever provided with "proper medication." We infer from this contention that Mother believes the services provided to her in Nevada were inadequate. In Mothers view, Nevadas failure to properly diagnose and treat her psychiatric condition should not preclude California from prescribing what she deems to be appropriate services.
As Mother essentially admits, the statutory requirements for denial of reunification services under both section 361.5(b)(10) and 361.5(b)(11) were met. First, it is undisputed that the Nevada courts terminated Mothers parental rights to Minors half-sister and terminated reunification services for Minors half-brother. The record shows that the Nevada authorities removed Mothers oldest child from her care in 2003, and Mothers rights to the child were terminated on March 29, 2006. The child was subsequently adopted. On December 11, 2007, the Nevada court terminated reunification services for Minors half-brother and approved a permanency plan of termination of parental rights with an anticipated completion date of December 2008. Thus, it is plain that two previous reunification efforts have failed.
Second, Mother does not argue that she has made a reasonable effort to treat the problems that led to the removal of her other children. She points to nothing in the record showing that she has made any effort, let alone a reasonable one, to treat her mental illness. Mother therefore does not contest the juvenile courts factual finding that she has not subsequently made a reasonable effort to treat the problems leading to the removal of Minors half-siblings.
Rather than challenging that finding, Mother seeks to place the blame for the failure of previous reunification efforts on the state of Nevada because, in Mothers view, Nevada did not provide her with adequate services. This argument is unavailing, however, because "[t]he statute itself makes no reference to why reunification has not occurred[.]" (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 71, italics added.) Sections 361.5(b)(10) and (b)(11) authorize denial of reunification services whenever reunification with a sibling or half-sibling has previously failed or when the parents rights to a sibling or half-sibling have been terminated. (See Randi R., at p. 71 [construing former version of § 361.5, subd. (b)(10)].) Thus, we will not inquire into the reasons underlying the decisions of the Nevada courts to terminate Mothers parental rights and to discontinue reunification services. It is sufficient for our purposes that the Del Norte County juvenile court found by clear and convincing evidence that the previous reunification efforts had failed and that Mother has not made a reasonable effort to treat the problems leading to removal. (See, e.g., In re Jasmine C. (1999) 70 Cal.App.4th 71, 76 [reunification services properly denied upon showing of adoption of another of mothers children and mothers repeated substance abuse].)
Even if we were inclined to question the correctness of the judgments entered in the Nevada juvenile proceedings, principles of preclusion would prevent Mother from relitigating the issues previously determined by the Nevada courts. (See In re Joshua J. (1995) 39 Cal.App.4th 984, 992-993 [principles of preclusion prevent parent from relitigating issues determined in prior dependency proceedings].)
Moreover, the record provides abundant evidence that Mother has in fact failed to treat the mental illness that led to the removal of her other children. In its disposition report, the Department expressed the view that Mother had not addressed the problems of mental illness that led to her previous failures to reunify. The psychological evaluation showed not only that Mother was severely mentally ill but that she lacked insight into her mental illness, "which [could] be a significant obstacle to her being treated and getting well." The Department noted in its disposition report that while Mother had access to social services in Del Norte County, it was uncertain whether she was willing to remain in the area and accept assistance. The Department also observed that Mother had demonstrated difficulty in meeting her own needs in a consistent manner. In short, Mother remains a severely mentally ill woman who has not made an effort to address the psychiatric problems that resulted in the removal of Minors half-siblings.
Because substantial evidence supports the juvenile courts finding that the requirements of section 361.5(b)(10) and 361.5(b)(11) were met, we hold that the juvenile court did not err in denying reunification services to Mother.
DISPOSITION
The order to show cause is discharged, and Mothers petition for extraordinary writ is denied on the merits. (Cal. Rules of Court, rule 8.452(i).)
We concur:
JONES, P. J.
NEEDHAM, J.