Opinion
A153445
10-03-2018
In re J.R. and A.W., Persons Coming Under the Juvenile Court Law. SOLANO COUNTY HEALTH AND SOCIAL SERVICES DEPARTMENT, Plaintiff and Respondent, v. J.W., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. Nos. J43438, J43439)
J.W. (Mother) appeals from an order terminating her parental rights as to her daughter, J.R., and her son, A.W., after a hearing pursuant to Welfare and Institutions Code section 366.26. She contends the order should be set aside because (1) the juvenile court did not sua sponte appoint a guardian ad litem for her, and (2) the court should not have terminated her parental rights in light of her beneficial relationship with the children (§ 366.26, subd. (c)(1)(B)(i)). We will affirm the order.
All statutory references are to the Welfare and Institutions Code.
I. FACTS AND PROCEDURAL HISTORY
A. Background
Mother gave birth to J.R. in June 2011. In September 2013, the San Mateo County juvenile court ordered J.R. detained and later determined that she was a child described by section 300. Mother received reunification services. A.W. was born in November 2014. The dependency case concluded in October 2015, with Mother having custody of both children.
B. Dependency Case at Issue
1. Detention
During a welfare check in April 2016, Solano County law enforcement found Mother under the influence of methamphetamines in a dirty residence with syringes, empty alcohol containers, and open prescription pill bottles within the children's reach. Mother, verbally combative with the officers, was arrested.
Mother told the investigating social worker that she had used methamphetamine and "needed help." Four-year-old J.R. told the social worker that she knew of Mother's drug use, accessed a syringe in Mother's room, and demonstrated how Mother used drugs with it. J.R. and A.W. were detained.
The Solano County Health and Social Services Department (Department) filed a petition and a detention report requesting that the detention be continued.
At the detention hearing in April 2016, Mother was present and Kenneth Lee of the public defender's office was appointed as her attorney. The court ordered the children detained, with Mother to receive alcohol and drug testing, substance abuse treatment, parenting education, and a mental health referral.
2. Jurisdiction and Disposition
The Department's jurisdictional and disposition report recommended that the court find the children subject to section 300 and offer Mother reunification services. While in custody, Mother had continued taking her psychotropic mediations as prescribed and participated in the Women's Reentry Achievement Program, Alcoholics Anonymous and Narcotics Anonymous meetings, and parenting and women's workshops. She acted appropriately during video conference visits with the children. She realized she was not prepared to care for the children immediately upon her release because she needed to work on her mental health and substance abuse issues.
Mother did not appear for the jurisdictional and disposition hearing on June 21, 2016. Lee obtained a continuance on her behalf.
Mother also failed to attend the continued jurisdictional and disposition hearing on July 19, 2016, but Lee appeared on her behalf and objected to the Department's recommendations. The juvenile court found the children were described by section 300, ordered family reunification services, and granted visitation four times per month for a total of two hours per month.
3. Six-Month Status Review
By August 2016, Mother had been released from jail. Lee filed a notice on her behalf, indicating that her mailing address was her father's residence in South San Francisco. Mother later reported to the social worker that she had moved to Daly City.
Mother began participating in parenting education through Healthright 360, an outpatient substance abuse program in San Mateo. In October and December 2016, she tested positive for amphetamines. Her Healthright 360 counselor reported that Mother admitted to two relapses, but when the social worker followed up, Mother denied it.
In January 2017, the Department filed a Six Month Status Review Report recommending that Mother continue to receive reunification services. Mother had participated regularly in her case plan, but she was not manifesting the behavioral changes needed to parent her children appropriately. For example, Mother frequently brought up the death of J.R.'s father during visits with J.R., and when J.R. started to cry, Mother responded by tickling her. J.R.'s therapist, Jamie Pena, reported that J.R. had expressed negative feelings about returning to Mother's care on at least two occasions.
The Department also recommended that the case be transferred to San Mateo County, where Mother resided at her mother's and father's residences.
Mother did not attend the six-month review hearing on January 17, 2017. Attorney Pamela Boskin from the public defender's office, appearing for Lee as Mother's attorney, obtained a continuance to contact Mother and review the report with her.
On January 24, 2017, Boskin again appeared as Mother's counsel and obtained a continuance because she had not reached Mother. On January 31, 2017, Boskin appeared as mother's counsel and obtained yet another continuance to call Mother and send a letter to her last known address.
On February 28, 2017, Lee appeared as Mother's counsel and submitted on the Department's report and recommendation to transfer the matter to San Mateo County with reunification services, "based upon my previous conversations with my client and her request to have it transferred months ago." However, the minors' counsel requested and obtained a contested hearing on the issue, arguing that the transfer would disturb the children's placement and Mother had accomplished much in her case plan despite living out of the county.
At the contested six-month review hearing on March 6, 2017, Mother did not attend but Lee appeared on her behalf. The only contested issue was whether the case would be transferred to San Mateo County. Social worker Miller testified that a San Mateo County social worker would be able to meet with Mother face-to-face more frequently than Miller could, which would create a strong possibility for Mother's reunification with the children by the 12-month review. Although the children might have to change placements from their foster parent, with whom they had become attached, any detriment from the move could be mitigated through the children's therapy.
The juvenile court denied the Department's and Mother's request to transfer the matter, concluding it would be too detrimental to the children. The court noted there was a substantial probability the children would be returned to Mother's care even with the case remaining in Solano County, based on Mother's participation in services to that point. The court ordered that Mother receive one two-hour visit per week.
4. Twelve-Month Status Review (Termination of Reunification Services)
In April 2017, social worker Miller met with Mother to discuss her case progress. Mother described the skills she used to avoid using drugs, such as exercising, eating healthy, praying, and reaching out to friends. She identified stress, smoking cigarettes, and the death of J.R.'s father as triggers for her drug use. Wearing a nicotine patch, she explained that she had quit smoking two weeks earlier.
When the discussion turned to Mother's support network, Mother claimed that her supports included professional boxer Floyd Mayweather (whom she identified as her fiancé), record producer Russel Simmons (identified as her uncle), and the hip hop artist "Rev. Run," also known as Joseph Simmons. The Department further noted that Mother displayed signs of delusion and unwarranted suspicion of being spied upon, and anonymous family members claimed to have observed her hallucinating and talking to herself.
In light of the foregoing, Miller met with Mother in May 2017 to discuss her mental health. When Miller recommended that Mother contact her psychiatrist to request an updated mental health assessment, Mother became upset.
On May 23, 2017, the Department filed a Twelve Month Status Review Report recommending that Mother's reunification services be terminated and a section 366.26 hearing be set. J.R. continued to waiver regarding her return to Mother's care, and her bedwetting had increased. Therapist Pena opined that Mother was a trigger for J.R. having a good or bad day, and J.R. had described Mother as a "mean person." In addition, Mother did not demonstrate she was prepared to care for the children on her own: when A.W. walked off during a visit, Mother remained on her phone and merely called for him to come back, rather than physically retrieving him, even when A.W. failed to comply with her requests. During the reporting period, Mother had begun to justify her actions rather than taking responsibility for her children's removal, claiming she had done everything she was supposed to do to get her children back.
At the 12-month status review hearing on June 6, 2017, Mother was not present. Lee appeared on her behalf and requested a contested hearing. The court set the contested hearing for July 24, 2017, and a trial management conference for July 18, 2017.
At the trial management conference, it was revealed that Mother had been the subject of an involuntary psychiatric confinement under section 5250 but was expected to be released soon. Lee affirmed Mother's position contesting the Department's recommendations.
Mother did not attend the 12-month status hearing. Lee advised that she had been released from the psychiatric ward, but his efforts to contact her since the trial management conference had been unsuccessful. Although he had not seen Mother in several months, he objected to the Department's recommendations on her behalf. The court followed the Department's recommendation, terminated Mother's reunification services, set a section 366.26 hearing, and reduced Mother's visits with the children to once a month.
5. Section 366.26 Hearing (Termination of Parental Rights)
The Department's section 366.26 report recommended that Mother's parental rights be terminated. The report advised that Mother had been placed on a section 5150 hold (and section 5250 confinement) from July 2, 2017, to July 10, 2017, and that she was readmitted from July 22, 2017, to August 3, 2017, when she sought help for "attempting to kill herself." On August 3, 2017, Mother entered Redwood House, a drug rehabilitation center focusing on mental health. She left Redwood House on October 4, 2017, and was taking medication to treat her mental health symptoms.
Mother appeared for the section 366.26 hearing on November 14, 2017, and was represented by attorney Felicia Carrington. Carrington asked the court to set a contested hearing and indicated she would be filing a section 388 petition. (Apparently, no section 388 petition was ever filed.) Pending the hearing, Carrington requested that Mother be granted more visits with the children since she was hospitalized when reunification services were terminated. The court increased Mother's visitation from once a month to once a week, and set a contested section 366.26 hearing for January 18, 2018.
Mother was present for the contested section 366.26 hearing. As relevant to the beneficial parent-child relationship exception (§ 366.26, subd. (c)(1)(B)(1)), she testified that she visited the children once a week for over a year and a half and missed only two or three visits. She claimed the children were always happy to see her, she and J.R. had a close relationship, and J.R. said she wanted to return to her care. Mother acknowledged there were times when the visitation supervisor instructed her not to discuss the death of J.R.'s father at visits, and there were times when J.R. cried during visits. In response to the social worker's concern about Mother being on her cell phone during the visits, Mother testified that she had used her cell phone to check messages, play games with the children, listen to music with them, and take photos of them.
The social worker testified about the Department's concerns as to Mother's visits with the children. During one visit, Mother told J.R. that her foster family was not really her family, which prompted J.R. to cry and hide beneath a table. In addition to other concerns mentioned in the Department's report, the social worker noted that Mother brought an unidentified man who smelled of marijuana to a visit, which led J.R. to think she had a new stepdad. After the visit, J.R. had a tantrum and a "rough time at home," and informed her therapist that Mother was "very mean to her."
The juvenile court found clear and convincing evidence that it was likely J.R. and A.W. would be adopted, found that the permanent plan of adoption was appropriate for the children, and terminated Mother's parental rights.
This appeal followed.
II. DISCUSSION
A. Guardian Ad Litem
Mother contends the juvenile court should have recognized that she was struggling with a mental illness and was unable to understand the nature or consequences of the proceedings and assist her counsel in preparing her case, and should have sua sponte held a hearing to determine whether a guardian ad litem should be appointed and then appointed the guardian. She urges that the failure to appoint a guardian ad litem resulted in her not being adequately represented at the hearings when her reunification services and parental rights were terminated. We disagree.
1. Standard for Appointing Guardian Ad Litem
Code of Civil Procedure section 372, subdivision (a) states: "When a minor, a person who lacks legal capacity to make decisions, or a person for whom a conservator has been appointed is a party, that person shall appear either by a guardian or conservator of the estate or 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."
When a dependency court has knowledge of a party's incompetence, it must appoint a guardian ad litem sua sponte. (In re A.C. (2008) 166 Cal.App.4th 146, 155 (A.C.); see Code Civ. Proc. § 373.) A party is incompetent in this context if a preponderance of the evidence shows that he or she is a person for whom a conservator could be appointed (Prob. Code, § 1801) or is unable to understand the nature of the proceedings or to assist counsel in protecting his or her interests (Pen. Code, § 1367). (In re James F. (2008) 42 Cal.4th 901, 910.) We review for an abuse of discretion. (In re Ronell A. (1995) 44 Cal.App.4th 1352, 1366-1367.)
2. Forfeiture
Respondent urges that Mother waived her challenge for two reasons. First, neither Mother nor her attorney requested the appointment of a guardian ad litem in the juvenile court. (See, e.g., In re S.B. (2004) 32 Cal.4th 1287, 1293.) We find no forfeiture, however, because Mother's argument is that the juvenile court had a sua sponte obligation to appoint a guardian ad litem. (In re A.C., supra, 166 Cal.App.4th at p. 155.)
Second, respondent argues, any challenge to the termination of reunification services in an order setting a section 366.26 hearing must be raised by a timely petition for extraordinary writ review under rule 8.452 of the California Rules of Court. (§ 366.26, subd. (l)(2) ["Failure to file a petition for extraordinary writ review within the period specified by rule . . . shall preclude subsequent review by appeal of the findings and orders made pursuant to this section"].) While it is true that we may not now reverse the order terminating reunification services based on the court's failure to appoint a guardian ad litem, we may still consider whether the failure to appoint the guardian ad litem compels reversal of the later order terminating Mother's parental rights. We therefore proceed to the merits.
3. Mother Fails to Establish Error
To be obligated to appoint a guardian ad litem sua sponte, the juvenile court must have knowledge that the party is incompetent - as argued here, that Mother was unable to assist counsel in her own defense. Neither Mother nor any of her three attorneys - Lee, Boskin, or Carrington - made this assertion. Nor did any of the other parties or their counsel. To the contrary, there was ample indication that Mother understood the proceedings and was indeed assisting her lawyers. At the detention hearing, for example, Mother advised her counsel about the status of her criminal matter and her position that she was not prepared to care for her children. Before the six-month review hearing, Mother discussed with counsel her desire to transfer the dependency case to San Mateo County, where she was living. Before the 12-month review hearing - as set forth in the Department's report to the court - Mother discussed her case plan progress with her social worker and was able to articulate the triggers for her drug use and the coping skills she had acquired. Mother understood that her children had been taken from her care and was aware of the reunification services in which she was required to participate, and she opined that she had done whatever was needed to obtain the children's return. Moreover, after being hospitalized, Mother appeared at the section 366.26 hearing and testified, setting forth facts relevant to the beneficial parent-child relationship exception. Her demeanor and coherence were on full display during direct and cross-examination, yet the record reveals no concern about her competency. Indeed, we have read Mother's testimony in the reporter's transcript, and the transcript gives no indication that she was incompetent within the meaning of Code of Civil Procedure section 372.
Mother notes that the 12-month review report had disclosed the Department's concern over Mother's mental health and that she believed her support system included certain celebrities, and the juvenile court was aware she had been hospitalized due to mental health concerns for approximately 20 days, including at the time of the 12-month review hearing. In addition, there were reports that she hallucinated and had delusions, claiming she had to remove plants from her bedroom window for her friends to contact her. Those matters, however, do not compel the conclusion that Mother was unable to understand the nature of the dependency proceedings or assist her counsel in protecting her interests: that a parent suffers mental health challenges is insufficient in itself to require appointment of a guardian ad litem. (See, e.g., In re Ronell A., supra, 44 Cal.App.4th at pp. 1367-1368 [no error in failing to appoint guardian ad litem despite father's impaired mental capacity and schizophrenia]; In re R.S (1985) 167 Cal.App.3d 946, 979-980 [although mother had mild mental retardation and dependent personality disorder, 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"].)
Mother further argues that she could not have assisted her lawyer before the 12-month review hearing, since counsel was unaware of her whereabouts or the reason for her absence and had not spoken to her before the hearing. The question, however, is not whether Mother actually assisted her lawyer, but whether she was competent to assist him. Mother fails to establish that the court erred in failing to appoint a guardian ad litem.
4. Harmless
A dependency court's failure to appoint a guardian ad litem does not require reversal unless it substantially prejudiced the person's interests, in that "a different result would have been probable had the error not occurred." (In re A.C., supra, 166 Cal.App.4th at p. 157; see In re James F., supra, 42 Cal.4th at p. 901.) Thus, even if the juvenile court had erred in failing to appoint a guardian ad litem - or erred in failing to inquire further or hold a hearing - Mother has not shown that reversal is required.
Mother was appointed counsel at the first dependency hearing and was represented by counsel throughout the proceedings. When Mother failed to appear at a hearing, her counsel advocated on her behalf, requesting continuances, setting contested hearings, and objecting to the Department's recommendations. Mother fails to establish that a guardian ad litem could have accomplished more than her lawyers, or that the outcome would have been different if a guardian ad litem had been appointed.
Specifically as to the termination of reunification services at the 12-month review, counsel preserved Mother's rights by objecting on her behalf to the Department's recommendation. The Department's evidence showed it was unlikely Mother could reunify with the children by the 18-month status review date, a mere two months away. Mother's willingness to accept responsibility for her children's removal had declined. When A.W. walked away from Mother during a supervised visit, the visitation supervisor had to retrieve him while Mother focused on her phone. Despite participating in parenting classes and completing an outpatient mental health program, Mother's actions demonstrated she did not fully understand the level of supervision someone A.W.'s age needed, or the risk A.W. could face in public. Mother does not identify anything a guardian ad litem could have done to avoid the termination of services or the setting of the section 366.26 hearing.
As to the termination of her parental rights, Mother attended the initial section 366.26 hearing and, through counsel, successfully advocated for increased visitation pending a contested hearing. At the contested section 366.26 hearing, Mother took the stand and testified as to her consistency in visiting her children and, through counsel, urged the parent-child exception to the termination of her parent rights. Mother has not identified anything a guardian ad litem could have done that would have avoided the termination of her parental rights.
B. Parent-Child Exception
Mother next contends the court erred by terminating her parental rights despite her assertion that she had a beneficial relationship with the children. Courts have reviewed such rulings for substantial evidence or for an abuse of discretion. (See In re Jaden E. (2014) 229 Cal.App.4th 1277, 1288; In re G.B. (2014) 227 Cal.App.4th 1147, 1166, fn. 7.) Under either standard, Mother fails to demonstrate error.
1. Law
At the section 366.26 hearing, the juvenile court must choose the permanent placement plan for the minor. Because the legislature recognizes adoption as the preferred permanent plan, the court must terminate parental rights if the child is adoptable, unless a statutory exception applies. (§ 366.26, subd. (c)(l)(B).)
One of the statutory exceptions is the beneficial parent-child exception, which applies when "termination would be detrimental to the child . . . [because] . . . [1] [t]he parents have maintained regular visitation and contact with the child and [2] the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(l)(B)(i).) The party claiming the exception has the burden of establishing it. (In re L.S. (2014) 230 Cal.App.4th 1183, 1199.)
In determining whether the exception applies, the juvenile court must "balance[] the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) "If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (Ibid, italics added.) But "a child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the child's need for a parent." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) Only in an extraordinary case will preservation of the parent's rights prevail over the legislative preference for adoption. (Ibid.)
2. Analysis
Mother contends, and respondent concedes, that Mother maintained consistent visitation with the children, thus satisfying the first prong of the exception. We therefore turn to the second prong of the exception - whether Mother proved that the benefits the children would gain in a permanent home with adoptive parents would be outweighed by the benefits they could gain from maintaining their relationship with Mother.
Mother argues that she brought food and gifts for the children when she visited, the children were happy to see her and ran up to greet her, they had a close relationship, and at the end of visits J.R. said she wanted to be with her. Nonetheless, ample evidence supports the conclusion that the children's benefits from remaining with Mother would not outweigh the benefits of their adoptive home.
Simply put, there was no proof of a parental relationship. The children were out of Mother's care for nearly two years by the time of the section 366.26 ruling - about a third of J.R.'s life and half of A.W.'s life. Visits during that time ranged from once or twice per week to a mere once per month, and never progressed to unsupervised visitation. Moreover, even during supervised visits, concerns arose. Supervisors repeatedly had to redirect Mother from talking with J.R. about her father's death, despite the observable negative effects on J.R., which Mother tried to minimize with tickling. A supervisor had to intervene when Mother failed to physically retrieve A.W. after he walked off. Mother attempted to speak in front of the children about her suicide attempts, and she brought to a visit an unidentified man who smelled of marijuana. After visits with Mother, J.R. wet the bed more. She called Mother a "mean person" and repeatedly stated she did not want to live with her.
In stark contrast, the children had spent nearly two years in the care of their prospective adoptive parent, who had met their day-to-day needs and wanted to adopt them. The social worker observed that the prospective adoptive parent clearly loved and cared for the children, was devoted to their growth and development, was attuned to their needs, and made efforts to ensure that their medical, emotional, developmental and social needs were met. J.R. told her therapist that she wanted to stay permanently with her prospective adoptive mother, and the social worker observed that the children were "thriving" in her care. Even considering the limited visitation Mother was allowed with the children, overwhelming evidence supported the conclusion that her relationship with them did not " 'promote[] the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.' " (In re Autumn H., supra, 27 Cal.App.4th 567 at pp. 575.)
Mother's reliance on In re Brandon C. (1999) 71 Cal.App.4th 1530 is misplaced. There, the appellate court affirmed the juvenile court's decision not to terminate a mother's parental rights where the grandmother opined that the children had a strong bond with the mother and continued contact was important, and the Department's reports contained no description of the quality of the mother's interaction with the children. Here, by contrast, the Department's reports described multiple concerns with Mother's interaction with J.R. and A.W. In any event, the fact that there was sufficient evidence to uphold the juvenile court's decision in In re Brandon C. does not mean there was insufficient evidence to uphold the juvenile court's decision here. --------
III. DISPOSITION
The order is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
SIMONS, J.