Opinion
C084508
12-26-2017
In re T.S., a Person Coming Under the Juvenile Court Law. SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. R.H., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STKJVDP20150000473)
R.H., the mother of the minor T.S., appeals from the juvenile court's order terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395.) She contends the juvenile court committed structural error in appointing a guardian ad litem for her. We shall affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
In December 2015 mother gave birth to the minor in front of the residence she shared with the minor's father, J.M. After mother and the minor were transported to a local hospital, the police were contacted because of mother's extremely delusional behavior and the fact that she was unaware she delivered a baby. Mother was placed on an involuntary psychiatric hold (§ 5150) and transported to San Joaquin County Mental Health by the police. The minor was placed in the neonatal intensive care unit.
J.M. is not a party to the appeal and had a minimal role in the dependency proceedings.
Mother's behavior included threatening to cut off her legs, calling 911, and refusing to wear her medical gown. Twelve days before giving birth, mother went to her assigned prenatal service provider and yelled to the staff she was going to kill her unborn baby, and then ran out of the building.
Mother reported she was diagnosed with schizophrenia and J.M. had bipolar disorder. She took psychotropic medications for 10 years before stopping in 2013 after she got pregnant and her doctor "went out of town." She resumed her medication in 2014, but stopped in May 2015 after moving from Alameda County to San Joaquin County. Asked about her three other children, mother said she had not seen her two oldest children for many years and the third child was in the care of two other people not related to her. Asked why she lost custody of her children, mother replied it was "because they don't like me," and "they have something against me."
Due to her inability to care for her children because of her mental illness, mother previously lost custody of her three other children in separate dependency actions and failed to reunify with the children.
A social worker visited mother four days after the first interview. A mental health worker said mother was still mentally unstable and without a discharge date. Mother said she was feeling better and told the social worker two people tried to hurt her by whipping her with chains. The minor was placed in protective custody with a hospital hold.
The San Joaquin County Human Services Agency (the Agency) filed a dependency petition (§ 300) on December 30, 2015, alleging mother's current mental health rendered her unable to protect the minor, there was no provision for the minor's support, and mother failed to reunify with her three prior children in mental health related dependency actions. The minor was detained the next day. Mother was not present at the detention hearing.
At the January 21, 2106 jurisdiction hearing, the juvenile court appointed counsel for mother and continued the matter. On January 29, 2016, the minor was placed with the caretakers who had adopted her full sibling.
The Agency raised the issue of whether a guardian ad litem should be appointed for mother at a February 4, 2016 hearing, and inquired into ordering a mental health evaluation of her. The juvenile court indicated an evaluation seemed appropriate given the disposition report. Mother's counsel stated she understood the concern, but did not feel it was appropriate for counsel to ask for an evaluation as counsel had no contact with mother other than a brief meeting that morning. The juvenile court stated an evaluation was appropriate in order to speed the matter up and get proper services for all parties so that "we can go forward with reunification at the earliest proper time." The juvenile court ordered an evaluation for the purposes of determining whether a guardian ad litem should be appointed for mother.
A psychiatrist interviewed mother on February 29, 2016, and delivered a report dated March 30, 2016. Mother told the psychiatrist there was no history of mental health issues in her family. She was currently taking BuSpar and Risperidone, and had previously taken Abilify. Since 2005 mother had experienced auditory hallucinations that sounded like car noises. The 36-year-old mother had been hospitalized under section 5150 four times since the age of 24. Mother reported being diagnosed as bipolar with schizophrenia and depression. When she was hospitalized for mental health issues after giving birth to minor, mother was diagnosed as bipolar.
At the interview, mother presented as neatly groomed, "alert, very spacey, but cooperative." Her mood was somber, speech was fluent but loquacious, and her thoughts were very circumstantial and somewhat tangential. When asked about her hallucinations, mother stated, "I wear hearing aids. What I hear is what I hear," and then became increasingly disorganized. She did not describe any delusions until asked about suicidal ideation, when she expressed somatic delusions. Mother would become increasingly disorganized and ramble for five to 10 minutes without interruption. While oriented to time, place, and person, her immediate memory was obviously impaired, and mother's recent memory was vague, global, and somewhat impaired. Mother reported excessive sleep, and when asked about her appetite, she responded in an idiosyncratic, disorganized fashion.
Asked about her contact with Child Protective Services, mother reported something about, "The last three kids are. They must be in a family." Mother said she went to the emergency room three times, and "All three times they write stuff. They think I had schizophrenia. They never discussed it with me, just gave me a handwritten paper."
Mother then followed her previous pattern, displaying increasing disorganization as she was unable to respond to questions about the detention report. At one point, mother said, "It wasn't too bad until the social worker came in. I said, where's the baby? They wanted me to be," and then said something unintelligible. After this, mother's responses did not reflect the questions asked, and were either nonsensical or illogical. She ended the interview by saying something about being beaten up and murder.
The psychiatrist found mother had moderately severe to severe thought disorder that rendered her "unable to respond intelligently or in an understandable fashion" to his questions. She showed slight psychomotor slowing and blunted affect, continued to experience auditory hallucinations she could not describe, and alluded to what was most likely somatic delusions. Mother obviously suffered from a severe psychotic disorder, which had variably been diagnosed as schizophrenia or bipolar disorder. The psychiatrist diagnosed her with "psychotic disorder unspecified; schizophrenia versus schizo-affective disorder," as well as cannabis use disorder and deferred other psychiatric diagnosis.
Since it was clear that mother was unable to interact in a rational fashion regarding her case, or even in an understandable fashion at times, the psychiatrist concluded she would benefit from the appointment of a guardian ad litem.
Mother was present and the psychiatrist's report was submitted at the April 7, 2016 hearing on whether to appoint a guardian for mother. Mother's counsel requested appointment of a guardian ad litem for mother. Based on the psychiatrist's report, the juvenile court appointed a guardian ad litem for mother.
We agree with county counsel that the court reporter accidentally reversed the names for mother's counsel and minor's counsel for this hearing. Minor's counsel was Karolyn Kirk and mother was represented by Jennifer Windt. However, the transcript of this hearing states "MS. WINDT: Karolyn Kirk for the minor [¶] MS. KIRK: Jennifer Windt on behalf of the mother, who's present in court." After the report is received into evidence, the following exchange is reported: "THE COURT: I have had a chance to review that. [¶] Ms. Windt, any comments? [¶] MS. KIRK: No, Your Honor, we request appointment of a guardian ad litem." It is clear that mother's counsel, Jennifer Windt requested the guardian and the reporter erred in referring to her by minor's counsel's name.
The June 2016 jurisdiction and disposition report showed minor was bonding with her sibling and care providers. Mother required prompting and direction to interact with minor during her twice-monthly visits. At a January 19, 2016 meeting with the social worker, mother struggled to have a cohesive conversation and was unable to answer direct questions. She made bizarre statements and comments throughout the meeting, such as the minor's breath "smelled like pussy," and randomly declaring, "and alien's ain't even doing this stuff, it's was my retarded kid that I had in a past life." Mother also had a guardian ad litem appointed in all of the prior dependencies involving the minor's siblings. The Agency recommended denying reunification services pursuant to section 361.5, subdivision (b)(10) and (11).
Mother testified at the contested September 7, 2016 jurisdictional and dispositional hearing that she was diagnosed with paranoid schizophrenia and was currently compliant with her medication. She was in individual and group therapy. She was not delusional when she delivered the minor, but was concerned because several people had entered the hospital room and taken her belongings and would not allow the doctor or a nurse to enter. Mother later testified that she did not have mental health problems and her behavior was attributable to postpartum depression. She stated that schizophrenia was "still under research," and she was "charged" with Parkinson's disease. The most recent of her four section 5150 holds was because she called 911 to report the removal of her belongings at the hospital. She was seeing a psychiatrist not due to mental health problems, but because of the trauma from the removal of her children. In 2004 mother "went to court two appeals and small claims and won, and they told us to pick up our child at 401 Broadway."
The juvenile court sustained the petition and denied reunification services pursuant to section 361.5, subdivision (b)(10) and (11).
A December 2016 report stated mother attempted to engage with the minor during visits, but one visit only lasted around 30 minutes due to the minor's distress and inconsolable crying. The Agency recommended a permanent plan of adoption.
The juvenile court terminated parental rights with a permanent plan of adoption at the April 24, 2017 section 366.26 hearing.
DISCUSSION
"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.] 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. [Citations.]
"Before appointing a guardian ad litem for a parent in a dependency proceeding, the juvenile court must hold an informal hearing at which the parent has an opportunity to be heard. [Citation.] The court or counsel should explain to the parent the purpose of the guardian ad litem and the grounds for believing that the parent is mentally incompetent. [Citation.] If the parent consents to the appointment, the parent's due process rights are satisfied. [Citation.] A parent who does not consent must be given an opportunity to persuade the court that appointment of a guardian ad litem is not required, and the juvenile court should make an inquiry sufficient to satisfy itself that the parent is, or is not, competent. [Citation.] If the court appoints a guardian ad litem without the parent's consent the record must contain substantial evidence of the parent's incompetence. [Citation.]" (In re James F. (2008) 42 Cal.4th 901, 910-911 (James F.); see also In re Sara D. (2001) 87 Cal.App.4th 661, 672-673 (Sara D.).)
Mother contends the juvenile court did not follow this procedure. She is correct. While the juvenile court held an informal hearing before appointing the guardian, while mother was present, guardianship was not explained to her and she was not given the opportunity to be heard. This was error.
Noncompliance with the procedures for appointing a guardian ad litem in dependency cases is subject to harmless error analysis. (James F., supra, 42 Cal.4th at pp. 918-919; Sara D., supra, 87 Cal.App.4th at p. 673.) Mother claims that James F. is distinguished from this case because in James F. there was at least some attempt to explain the powers and functions of a guardian while no such attempt was made here. Not so. The Supreme Court's holding that procedural error in the appointment of a guardian ad litem was not structural error did not turn on the facts of the case before it. Rather, it concluded, "that a juvenile court's error in the process used for appointment of a guardian ad litem for a parent in a dependency proceeding is a form of trial error that is amenable to harmless error analysis." (James F., at pp. 918-919.) The juvenile court's failure to comply with the procedural requirements for appointing mother's guardian was not structural error and therefore subject to harmless error analysis.
In James F., the Supreme Court did not specify a particular harmless error standard such as the People v. Watson (1956) 46 Cal.2d 818 standard or the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18 . Instead, our high court stated, "[i]f the outcome of a proceeding has not been affected, denial of a right to notice and a hearing may be deemed harmless and reversal is not required. [Citation.]" (James F., supra, 42 Cal.4th at p. 918.) The Court of Appeal in Sarah H. found the harmless beyond a reasonable doubt standard applied. (Sarah H., supra, 87 Cal.App.4th at p. 673.) We find the juvenile court's error harmless under any standard.
Because of the juvenile court's error, mother did not receive an explanation of the purpose of a guardian ad litem and why the court believed she was mentally incompetent, nor was she provided an opportunity to persuade the juvenile court that she did not need a guardian. However, a parent's objection to guardianship does not prevent a juvenile court from appointing a guardian so long as substantial evidence of the parent's incompetence supports the appointment.
The record overwhelmingly supports the juvenile court's finding that mother was incompetent and needed a guardian. The psychiatric examination of mother found she needed a guardian. We disagree with mother's characterization of the examination as "a bare bones assessment." The psychiatrist examined mother and diagnosed her with moderate to severe thought disorder and psychotic disorder. The psychiatrist also set forth supporting reasons for the diagnosis and recommendation for guardianship: mother's mental health history, her disorganized thoughts, and inability to communicate coherently. This is consistent with the rest of the record establishing a long history of mental disorders which continued to the date of the hearing. Mother lost custody of her three other children because her mental health rendered her incapable of caring for them. A guardian ad litem was appointed for her in all three prior dependency actions. Mother was placed on section 5150 holds four different times, including a hold placed just after giving birth to the minor. She was delusional when she gave birth and gave bizarre answers to the social worker in both of the social worker's interviews with her. Finally, mother's own counsel believed she needed a guardian.
Complying with the James F. procedure would not have changed the outcome. Mother testified at the jurisdictional and dispositional hearing. While coherent at times, mother's testimony also displayed the incoherent thought referenced in the psychiatrist's report, and did not persuade the juvenile court that her mental health was sufficient to warrant the provision of services. There is no reason to believe that mother's objection to the guardianship, informed by the court's explanation of the purpose of guardianship and its reasons for believing a guardianship was warranted in her case, would have overcome the overwhelming evidence supporting the need for appointment of a guardian.
Services were bypassed because mother previously failed to reunify with the minor's sibling and half-siblings and failed to make a reasonable effort to treat the problems that led to severing the parental relationship. (See § 361.5, subd. (b)(10) & (11).) Since the basis of dependency actions involving mother's other children was her mental health, the juvenile court's finding necessarily required an assessment of her mental health.
We also reject mother's contention that her testimony at the hearing raised a sua sponte duty to inquire into whether she still needed a guardian. Mother admits there is no case law recognizing such a duty, and we decline her implicit invitation to be the first court to do so.
DISPOSITION
The juvenile court's orders are affirmed.
RAYE, P. J. We concur: ROBIE, J. MURRAY, J.