Opinion
D072344
11-03-2017
In re V.C., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M.C., Defendant and Appellant.
Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. NJ15187) APPEAL from a judgment of the Superior Court of San Diego County, Michael Imhoff, Judge. Affirmed. Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
M.C. (Mother) appeals from a contested Welfare and Institutions Code section 366.26 hearing at which the juvenile court terminated parental rights to her daughter, V.C. Mother contends that her severe mental illness, coupled with her lack of insight, left her incompetent, meaning she was unable to understand the dependency proceedings and assist her attorney. She claims the juvenile court erred when it did not sua sponte appoint a guardian ad litem (GAL) after her incompetence became obvious. We affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Mother graduated from high school with no need for any special education or an individualized education plan. After high school, Mother held four part-time jobs, each of less than one-year duration. The 25-year-old Mother's last employment was at Macy's at age 23. The maternal grandmother reported that Mother started drinking alcohol while in high school and increased her alcohol use after graduation. Mother was arrested for "disorderly conduct/drunk" 12 times between August 2014 and June 2015. Mother tested positive for amphetamines during a prenatal visit, and she had blood alcohol levels of 0.190 and 0.203 twice in February 2016.
All dates are in 2016 unless otherwise specified. --------
Mother gave birth to V.C. in March. A social worker from the San Diego County Health and Human Services Agency (Agency) spoke to Mother in the hospital. Mother denied drinking during her pregnancy and stated that she would not drink or take pills now that she had V.C. Mother agreed to sign a safety plan where the maternal grandmother would be V.C.'s primary caretaker. In late March the maternal grandmother reported that the police took Mother to the hospital after she appeared at the home and demanded V.C. Mother was admitted to the emergency room with a blood alcohol content of 0.215. Mother agreed to meet with a substance abuse specialist, but denied having an alcohol problem.
The Agency filed a dependency petition alleging V.C. was a child described by section 300, subdivision (b) based on Mother's use of alcohol and drugs while pregnant, and her violence toward her parents while intoxicated in front of the child. At the March detention hearing the juvenile court found a prima facie case and detained V.C. In April Mother started treatment at the Family Recovery Center (FRC), but was discharged on May 2 due to excessive absences. On May 5 the social worker observed Mother intoxicated and stumbling down the street. Mother was arrested with a blood alcohol level of 0.174. At the May contested jurisdiction and disposition hearing the court made a true finding on the petition, declared V.C. a dependent, removed her from parental care, placed her with her maternal grandparents and ordered reunification services for Mother.
In November the social worker reported that Mother was homeless, disheveled with very poor hygiene and appeared to be suffering from severe and debilitating mental illness related to alcohol and methamphetamine use. Mother could not maintain sobriety and the social worker assessed that Mother required intensive mental health treatment along with psychotropic medication. Meanwhile, V.C. was thriving in the care of her grandparents, and they were committed to adopting her.
In July Mother began a five-day-a-week outpatient treatment at FRC where she consistently tested positive for elevated levels of alcohol and methamphetamine. The FRC director said she had never seen such high levels of alcohol in her career with substance abuse treatment. In early August Mother was offered a bed in residential treatment, but she refused it. In early October Mother checked into FRC residential treatment under the influence of alcohol and methamphetamine. She was instructed to leave and go to detox. Mother reentered the program at the end of October and was transported to Exodus Mental Health for a psychotropic medication evaluation on her first day. A counselor at the program stated Mother needed a higher level of care for basics like social skills, showering, and dressing appropriately. The counselor stated Mother had night terrors and was possibly schizophrenic. A therapist at the program recommended a psychological evaluation, but Mother first needed to maintain a period of sobriety.
In early November Mother was discharged from FRC and admitted to Turning Point Crisis Center (TPCC). According to the TPCC counselor, the program provided acute, inpatient, psychiatric care which included intensive therapy and psychiatric care. A clinician diagnosed Mother with psychosis NOS (not otherwise specified) and major depressive disorder. The clinician said that she did not feel comfortable diagnosing Mother with schizophrenia because Mother had not yet been off drugs for one year. Mother discharged from the program as homeless and insisting that " 'there [was] nothing wrong' " with her.
At some point Mother reentered FRC outpatient care, but was discharged in mid-December. While at FRC, Mother regularly tested positive for alcohol and methamphetamine. Her counselor stated there was nothing more that could be done for Mother because she was not following recommendations. In late December Mother began outpatient treatment at the McAllister Institute for Treatment and Education (MITE) for outpatient treatment. A MITE counselor stated that Mother had significant mental health symptoms, was taking her medication and tested positive for alcohol and methamphetamine. At the January 2017 contested six-month review hearing the juvenile court terminated services and set a section 366.26 hearing.
At some point Mother left MITE. She later checked into drug treatment there in April 2017, but she left 10 days later. Mother began treatment there again at in May 2017.
At the June 2017 section 366.26 hearing Mother filed a section 388 petition seeking placement of V.C. with her at McAllister where she had been since May 2017. The court summarily denied the petition. The court terminated parental rights and ordered adoption as V.C.'s permanent plan. Mother timely appealed.
DISCUSSION
Mother asserts that her severe mental illness coupled with her lack of insight left her incompetent, unable to understand the dependency proceedings and assist her attorney. She asserts the juvenile court erred when it did not appoint a GAL when her incompetence became obvious, certainly by the termination of reunification services at the contested six-month review hearing. She claims this statutory error violated her due process rights in that, had a GAL been appointed, a different result was probable. We reject her claim.
When an incompetent person is a party to a proceeding, "that person shall appear either by a guardian or conservator . . . or by a guardian ad litem appointed by the court in which the action . . . is pending." (Code Civ. Proc., § 372, subd. (a)(1).) A GAL may be appointed on application of a relative or friend of the incompetent person, or of any other party to the proceeding, or by the court on its own motion. (Code Civ. Proc., § 373, subd. (c).) The appointment of a GAL transfers direction and control of the litigation from the parent to the GAL. (In re James F. (2008) 42 Cal.4th 901, 910.)
The juvenile court may exercise its authority under Code of Civil Procedure section 373 to appoint a GAL for a parent in a dependency proceeding if it has sufficient information that the parent "does not understand the proceedings or cannot assist his/her attorney in protecting his/her interests." (In re Sara D. (2001) 87 Cal.App.4th 661, 672.) The juvenile court must find by a preponderance of evidence that the parent is incompetent before appointing a GAL. (Id. at p. 667.) In reviewing the juvenile court's actions, the appropriate inquiry is whether the circumstances as a whole should have alerted the juvenile court that the parent was incapable of understanding the nature or consequences of the proceeding and unable to assist counsel in representing the parent's interests. (Id. at pp. 667, 672.) A mental illness or disability is not equivalent to legal incompetence and does not compel the appointment of a GAL. (See id. at p. 674 [evidence insufficient to support a conclusion that mother did not understand the nature of the proceedings or was unable to assist counsel despite her major depression, posttraumatic stress disorder with chemical dependency, borderline personality disorder, and fragmented thoughts which made it difficult for her to stay focused]; In re Ronell A. (1996) 44 Cal.App.4th 1352, 1367 [court did not err by failing to appoint GAL for father where it knew of father's chronic mental illness but where father understood nature of proceedings, participated meaningfully and cooperated with his counsel]; In re R.S. (1985) 167 Cal.App.3d 946, 979-980 [court did not err by failing to appoint GAL for mother with mild mental retardation and dependent personality disorder].)
Here, the record undisputedly demonstrated that Mother is addicted to alcohol and methamphetamine, and suffers from mental health issues. The record is also clear that Mother is in denial regarding these issues and that these issues render it difficult for Mother to appropriately care for herself. With this said, the record does not support a conclusion that Mother was incapable of comprehending the legal significance of the proceedings, or that she could not assist her attorney in protecting her interests.
First, the same counsel represented Mother throughout these proceedings and never expressed concern that Mother was incompetent to participate in the legal proceedings. Moreover, Mother appeared for all hearings which gave the court an opportunity to observe her. We have reviewed the reporter's transcripts for all hearings and note that Mother was not disruptive and responded appropriately to the court's statements. For example, at a May hearing the court reported that DNA results revealed that the person Mother alleged to be the father was excluded as the biological parent. The court asked Mother if another individual might be the father, Mother stated, "He's the only, only possible father. I've never cheated on him. He was the only one that I was hooked up with. And I have paperwork that says he's the biological father." Thus, although Mother disputed the results of the DNA test, she understood the matter at issue.
Later that month at the jurisdictional and dispositional hearing, shortly after the court make its finding that Mother has been "laboring for a substantial period of time with respect to alcoholism and addiction," Mother responded, "I don't have an addiction." While again in denial, Mother revealed that she understood the matter at issue. At the January 2017 contested six-month review hearing after the court informed Mother that the Agency might recommend adoption as V.C.'s permanent plan, Mother stated, "Okay. I do not want to put her up for adoption, and my baby daddy does not want to put her up for biological father [sic]. I got a packet in the mail saying that he was the biological father." The court replied, "Okay. Well, what you need to do is share that information with the social worker and your attorney, and then we can make a better decision on that; okay?" Mother responded, "Okay."
Even assuming the court should have questioned Mother's competence, any error was not prejudicial. Failure to appoint a GAL in a dependency hearing is trial error subject to harmless error analysis. (In re James F., supra, 42 Cal.4th at p. 915.) Counsel represented Mother throughout the dependency proceedings arguing, among other things, for V.C.'s placement with Mother at FRC, the continuance of reunification services, granting Mother's section 388 petition and that the court not terminate Mother's parental rights. Mother made no showing that a GAL would or could have done anything differently to yield a more favorable result. The juvenile court did not abuse its discretion by not exercising its authority to conduct an investigation of Mother's mental competency and appoint a GAL for Mother.
DISPOSITION
The judgment is affirmed.
NARES, J. WE CONCUR: McCONNELL, P. J. AARON, J.