Opinion
A129738
09-15-2011
In re A.F. et al., Persons Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. N.F., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. Nos. 3107-DEP & 3108-DEP)
Fourteen-year-old A.F. and 12-year-old G.F. are dependent children of the juvenile court. Following an order setting a hearing under Welfare and Institutions Code section 366.26 (.26 hearing), the juvenile court approved a permanent plan for adoption. The court then appointed a guardian ad litem for the minors' mother, N.F., on the ground that Mother was mentally incompetent to the point where she could not understand the proceedings sufficiently to assist her counsel.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Mother appeals from the order appointing a guardian ad litem. In addition to challenging that order, Mother attempts to raise issues of purported errors in the jurisdictional and dispositional hearings, despite her failure to appeal from the dispositional order. As we explain below, we find she has waived the right to raise those issues on appeal and we uphold the order appointing a guardian ad litem. Accordingly, we affirm.
I. FACTS
We take the background facts from our opinion in the writ proceeding involving Mother's challenge to the order setting the .26 hearing. (N.F. v. Superior Court (Aug. 4, 2010, A128256) [nonpub. opn.].)
Quotations are from this prior writ opinion.
"On April 27, 2009, the [Sonoma County Human Services] Department filed a petition under section 300, subdivisions (b) and (g). The petition alleged Mother, five days previously, had taken custody of the minors from [R.G.] (Father) in violation of a custody order, resulting in her arrest pursuant to Penal Code section 278.5, subdivision (a). It further alleged Mother had a history of substance abuse, in that she had been arrested in September 2007 for public intoxication while caring for the minors, and in September 2005 had hosted a party at her home 'with alcohol and Norteño gang members,' resulting in her arrest for resisting a peace officer and contributing to the delinquency of minors. (See Pen. Code, §§ 148, subd. (a), 272, 647, subd. (f).) As to Father, the petition alleged that the minors had stated he was " 'mean to them, [did not] feed them, and [that they were] afraid to be in [his] custody.' "
A family court mediation report dated March 20, 2009, noted Father had previously been awarded sole legal custody, with joint physical custody shared with Mother. The mediator noted 'it appear[ed] that Mother [was] instilling fear in the children of [Father], severing their relationship with him,' and that she 'continue[d] to obstruct Father's contact with the minor children.' The mediator recommended that Father be awarded sole physical custody, and that it was 'of utter importance that Mother comply with [an] order to obtain a complete psychological evaluation.' The family court adopted these recommendations in a custody order filed April 2."
"At the detention hearing, on April 28, 2009, [fn. omitted] the juvenile court appointed Ciummo & Associates as counsel for Mother. At that and several subsequent hearing dates, Mother was represented either by Nanette Johnson or Bonita Alonso of that firm. A Spanish interpreter was present at the detention hearing, and the court indicated a need for such interpreters in further proceedings."
"The juvenile court sustained the allegations summarized above at a jurisdictional hearing held May 20, 2009. It also ordered the parents to submit to psychological evaluations. On June 18, the court continued the dispositional hearing pending completion of the psychological evaluations, and on July 22 ordered the release of Mother's evaluation to minors' counsel."
"Mother retained private counsel on August 14, 2009, substituting David Hamilton for her former court-appointed counsel. The following month, on September 9, 2009, the juvenile court conducted a settlement conference on dispositional issues that was not recorded. Afterwards, however, counsel for the Department summarized the agreement for the record, stating 'there's submission on the recommendation to provide services to both parents, with agreement that [Mother] will participate in [a] second psychological evaluation.' [Fn. omitted.] Hamilton sought clarification regarding the particular psychologist to be appointed to conduct the second evaluation. With the understanding that the assigned case worker would identify a qualified psychologist who could conduct the second evaluation in Spanish, the court adopted the Department's proposed dispositional findings and orders. Among other things, the court ordered that the minors continue in out-of-home custody and care, directed the Department to provide reunification services to the parents, and ordered the parents to comply with the adopted case plans. The court then set a six-month status review hearing (the six-month hearing) for February 25, 2010."
In what was footnote 6 on page 3, we noted "Mother's case plan included requirements that she participate in therapeutic counseling, undergo an evaluation to determine the appropriateness of psychotropic medication and follow any recommended treatment, undergo an assessment for substance abuse and follow any recommended treatment, complete courses in parenting and anger management, and co-operate with the assigned case worker."
Mother, who was represented by counsel, i.e., attorney Hamilton, did not appeal from the dispositional findings and orders.
"On December 2, 2009, Hamilton filed a motion seeking to be relieved as Mother's private counsel. Hamilton averred Mother was refusing to cooperate or follow his advice, and had refused to execute a substitution relieving him. At a hearing on the motion held the same day, Hamilton stated Mother had, in particular, 'declined to get the additional psychological evaluation that everyone [had] agreed would be a good idea' at the time of the dispositional settlement conference on September 9. The juvenile court granted the motions. Counsel for the Department asked the court if it was going to appoint counsel for Mother, and the court stated 'No. The notice [of Hamilton's motion] allows for her to petition the court or to hire another lawyer or to represent herself. We'll find out in February which one she wants to do.' "
"On January 11, 2010, counsel for the Department filed a request for a hearing on January 14, to address the issue that 'Mother is currently unrepresented and may need a guardian ad litem.' The request indicated counsel had contacted Mother about the hearing on January 5. At the hearing on this request, Mother did not appear. Counsel for the Department confirmed she had spoken with Mother about the hearing, although Mother had not given counsel 'a clear response.' Counsel had also spoken with Zilda McCausland, apparently an attorney with whom Mother had consulted the previous day concerning the hearing. The juvenile court noted there was 'not much to be done' since Mother was not present, '[s]o we'll wait to see what happens on February the 25th.' "
"On February 8, 2010, the juvenile court received a letter from William Schoen, 'an attorney based in Marin [County],' who reported that he had conferred with Mother regarding the dependency proceedings, but had discovered he was not qualified to represent her due to the court's requirements for retained counsel. [Fn. omitted.] Schoen advised the court of his opinion that Mother 'need[ed] to have legal representation' at the next scheduled hearing on February 25, even though '[s]he may not think so.' In his view Mother did not 'realize[] how serious the result of this hearing could be,' and that any new attorney should be Spanish-speaking and 'able to convince [Mother] to accept his/her advice.' "
"The Department, on February 17, 2010, served Mother with a copy of the status report prepared for the six-month hearing. In this report the case worker noted Mother had shown an 'unwillingness to fully cooperate.' Mother insisted the Department was unlawfully keeping her children from her, had refused to sign a written release of information—which was necessary for the case worker to communicate with Mother's service providers, and had refused to participate in her second court-ordered psychological evaluation—an evaluation the case worker regarded as 'critical to the case.' Mother had also violated the rules for her supervised visitation with the minors. For example, she had 'snuck notes' to the minors containing requests and telephone numbers, and had violated prohibitions against photographs or recordings during visits. Consequently, the case worker recommended termination of Mother's reunification services."
In what had been footnote 8 on page 5, we wrote: "Mother had given the case worker 'verbal' approval to communicate with providers. The case worker contacted three providers on this basis, but the only one who responded stated she would not provide information absent Mother's written consent."
"Immediately prior to the date set for the six-month hearing, on February 23, 2010, Mother filed a declaration 'in propria persona.' This declaration essentially challenged the jurisdictional allegations sustained on May 20, 2009, and detailed Mother's efforts to follow her case plan requirements, efforts Mother had evidently carried out independently without resort to the service referrals of providers approved by the Department."
"Notwithstanding this [pro. per.] filing, Mother was represented by retained counsel Roseann Torres when she appeared two days later on February 25, 2010, the initial date set for the six-month hearing. When the court directed Torres's attention to the local competency requirements for retained counsel in dependency proceedings, Torres stated that she practiced primarily in Alameda County, would need to examine the competency requirements, and, if necessary, could hire qualified counsel to assist her in representing Mother. [Fn. omitted.] The court indicated Torres could also obtain from Mother a knowing and intelligent waiver of the competency requirements. It then continued the six-month hearing to March 16."
In what had been footnote 9 on page 5, we noted: "Torres filed a substitution as counsel for Mother on March 8, 2010."
"On March 16, 2010, Torres informed the juvenile court that Mother had relieved her as counsel that day. Mother, when questioned by the court, stated Torres had been 'very kind . . . and [she did not] know how much [she] owe[d] her for coming . . . , but [she did] not want [Torres] to represent [her] any more.' The court then asked Mother whether she intended to represent herself, and she replied 'for today . . . [b]ecause otherwise [the court] would have to continue the case . . . [so that she] could retain an attorney.' The court stated that it understood Mother's remark to mean that she did not plan on representing herself but wanted an opportunity to hire new counsel, to which Mother replied 'Yes.' Mother then asked the court for its 'opinion as far as . . . documents' she intended to file that day. The court responded that if she wished to be represented by counsel, it would be best to 'wait' so that she could retain counsel and have him or her look over her documents before filing them. The court then continued the hearing."
"Mother, on March 19, 2010, filed a form request in propria persona for a modification of the existing order—that is, a petition for modification under section 388. She sought a new order directing the immediate return of the minors to her custody. To this request she attached a declaration and accompanying documents, similar to those she had filed on February 23. Subsequently, on April 8, Mother filed a form substituting Robert Bell as retained counsel. The next day Bell filed a request for dismissal on Mother's behalf—a request that similarly sought the immediate return of the minors to Mother's custody. The request, which included the same declaration and documents Mother had filed on March 19, together with some additional documents, sought dismissal on the grounds of 'lack of sufficient evidence of [Mother's] alleged misconduct' and the Department's 'failure . . . to consider her positive information and her fulfillment of the court's requirements.' "
"At the continued six-month hearing on April 13, 2010, Bell indicated that he had only been recently retained by Mother, had assisted her in preparing and filing the request for dismissal, and had not been aware of her previous pro per filing of a section 388 petition. He also informed the juvenile court that Mother wanted his representation with respect to the request for dismissal, but that was 'all [Mother] wanted [him] to do' and he had agreed to represent her only as to this motion."
"The juvenile court stated the matter was on calendar to consider Mother's section 388 petition, and that it had considered both this petition, with its accompanying documents, as well as the documents accompanying the request for dismissal. The court concluded Mother had not shown a change of circumstances justifying a modification order, nor that such an order was in the minors' best interests, and denied the section 388 petition."
"Bell then asked to be relieved from further representation of Mother. The court asked Mother for confirmation that she had retained Bell only for the purpose of the request for dismissal, and she responded 'Yes. What he said is correct.' The court then relieved Bell. Noting that the matter had been previously set for contested hearing that date, and that Mother had chosen to proceed with Bell only on the limited basis of the motion, the court proceeded with the six-month hearing. Counsel for the Department submitted on the basis of the status report discussed above."
"Mother testified on her [own] behalf. She began by describing certain conduct of Father that had occurred before the filing of the dependency petitions on April 27, 2009. The juvenile court stated it would not consider matters relating to its jurisdiction, as Mother had not challenged those findings on timely appeal from the dispositional order. It reminded Mother that the purpose of the present hearing was to consider the Department's recommendation to terminate her reunification services. Mother replied 'What services? I'm not accepting any services. This case didn't need to have been open.' Mother then reiterated her claim that the jurisdictional allegations had been 'false arguments.' "
"The other parties declined to cross-examine Mother. Once it appeared to the court that Mother had no further witnesses or testimony relevant to the issues before it at the six-month hearing, it called for rebuttal and closing argument. Afterwards the court adopted the Department's proposed findings and orders. It terminated services to both parents, finding that Mother had 'failed to meaningfully participate in services' and that Father had not visited or contacted the minors within the preceding review period. Stating that a plan of guardianship appeared appropriate, the court set the matter for selection of a permanent plan under section 366.26."
Mother challenged the order setting the .26 hearing by a writ petition. (§ 366.26, subd. (l).) She was represented by counsel. She raised numerous issues, including failure to appoint counsel for her at the contested six-month hearing, sufficiency of the evidence that the Department had provided reasonable services, and abuse of discretion in terminating services. In a detailed opinion, which set forth the above facts and analyzed Mother's contentions, we denied the petition on August 4, 2010.
In its report prepared for the .26 hearing on August 5, 2010, the Department recommended adoption as the permanent plan. Because a relative of the minors had recently contacted the Department and expressed an interest in adopting them, the Department recommended a 180-day continuance of the .26 hearing to assess the matter.
Also on August 5, 2010, the juvenile court appointed Carolyn McBeath as Mother's new counsel. The court also adopted the Department's recommendation that adoption be the permanent plan, declined to terminate parental rights at this time, and found the children were difficult to place for adoption as members of a sibling group that are seven or older.
On September 2, 2010, Ms. McBeath filed a section 388 petition requesting the court set a hearing for the appointment of a guardian ad litem for Mother. McBeath stated her concern that Mother "may have a processing disorder or a cognitive disorder" which "prevents her from being able to receive information or communicate effectively to assist in her case." She attached a detailed chronology of her communications with Mother and concluded:
"Based on [Mother's] conduct, it appears that she does not understand the role of her attorney in assisting in defending her interests and prosecuting her claims in this Juvenile Dependency Action. Fu[r]ther, this conduct appears to be consistent with the description of her personality in Dr. Ramirez' report. Finally, her conduct appears to be consistent with each and every other person I contacted in connection with this case to gain insight and background information. Therefore, I request the court set a hearing in which [Mother] has an opportunity to be heard concerning this request for an appointment of a guardian ad litem to assist her and to assist me in preparing for further hearings, motions and appeals as they may be necessary to defend her interests and prosecute her claims."
On September 8, 2010, the juvenile court set a hearing on the section 388 petition for September 15, 2010. The Department and all counsel were notified of the hearing. Mother did not appear at the hearing. She claims on appeal that she had no notice of the hearing. But Mother herself included in documents submitted to the juvenile court a copy of a September 10, 2001 e-mail from Ms. McBeath to Mother informing her of the hearing and its purpose.
McBeath called attorney Hamilton to testify at the hearing. He "absolutely" agreed with McBeath that "you would tell [Mother] something and she would appear to understand it, and then there would be a shift in her understanding such that it did not even resemble what you had explained to her." At first, he thought she was an uncooperative client, but in hindsight he believed she had a cognitive impairment. He had concerns about Mother's "ability to understand and meaningfully participate . . . in her . . . legal assistance in this case."
McBeath testified that she had "grave concerns" about Mother's "ability to be able to understand and comprehend the system that she was in and also to be able to meaningfully help me. . . ." She was also concerned Mother "either has a cognitive disability that prevents her from being able to hold a concept for a very long period of time, or that she has some sort of disability that makes it impossible for her to reasonably believe or want to understand the process that she is engaged in in this juvenile dependency matter."
The juvenile court found that Mother "is not in a position to reasonably understand what is going on to a degree that she can aid her attorney in her own defense," and appointed a guardian ad litem.
II. DISCUSSION
Mother appeals from the order appointing the guardian ad litem. She also purports to raise issues concerning alleged errors in the jurisdictional and dispositional phases, despite her failure to appeal from the dispositional order. We find that Mother has waived those issues and we affirm the order appointing the guardian ad litem.
Under the waiver rule explained in detail in In re Meranda P. (1997) 56 Cal.App.4th 1143, 1149-1155 (Meranda P.), "an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order. [Citations.]" (Id. at p. 1150.) The purpose of the rule is to balance the parents' interest in the care and custody of their children with the children's interest in expeditious resolution of their custody status. (In re M.F. (2008) 161 Cal.App.4th 673, 681-682 (M.F.).)
Generally, the waiver rule does not infringe upon a parent's due process rights because of the numerous safeguards built into the dependency system. (M.F., supra, 161 Cal.App.4th at p. 682; Meranda P., supra, 56 Cal.App.4th at pp. 1154-1155.) But due process can forbid application of the waiver rule. A two-prong test must be met. "First, there must be some defect that fundamentally undermined the statutory scheme so that the parent would have been kept from availing . . . herself of the protections afforded by the scheme as a whole." (In re Janee J. (1999) 74 Cal.App.4th 198, 208 (Janee J.).) "Second, to fall outside the waiver rule, defects must go beyond mere errors that might have been held reversible had they been properly and timely reviewed." (Id. at p. 209.)
We reviewed the record to evaluate the waiver issue. Mother contends the juvenile court failed to advise her of her right to appeal the dispositional order, to read and explain the dependency petition, and to advise her of her trial rights and obtain a knowing and intelligent waiver of those rights. Some of these alleged errors are not borne out by the record. None of them rise to the level of a due process violation of the caliber sufficient to overcome application of the waiver rule. Mother was represented by counsel at all times throughout the jurisdictional and dispositional phases and was afforded the full protection of the safeguards of the dependency statutory scheme.
We need not discuss Mother's alleged errors in great detail. Her claim she was not advised of her appeal rights is incorrect. The juvenile court's dispositional order contains an advisement of appeal rights. Mother was represented by counsel, who waived reading of the order. Mother claims she should have been advised in Spanish, her native tongue, but Mother's own postdispositional pro. per. filings show that she is familiar with the English language.
With regard to Mother's claim that the juvenile court failed to read and explain the petition and advise her of her trial rights, we again note Mother was represented by capable counsel. The juvenile court explained the dependency process at the detention hearing. The petition was not read because Mother's counsel indicated it had already been translated to her in Spanish. Mother's counsel waived further advisement of rights. At the outset of the jurisdictional hearing, Mother's counsel indicated they had discussed the matter and Mother was prepared to submit the jurisdictional issues. We must assume counsel advised Mother of her trial rights before making that representation to the juvenile court.
No serious violation of due process exists to justify forsaking the waiver rule under the test of Janee J., supra, 74 Cal.App.4th 198. We conclude Mother has waived the issues she now purports to raise regarding the jurisdictional and dispositional phases by failing to appeal from the dispositional order.
Mother raises other issues regarding the juvenile court's alleged failure to weigh the evidence or follow the proper standard of placement. The juvenile court acted properly. There is no due process violation here sufficient to overcome the waiver rule.
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We now reach the primary issue of this appeal: whether the juvenile court erred by appointing a guardian ad litem.
In a dependency proceeding, a mentally incompetent parent must appear by a guardian ad litem if the parent lacks "the capacity to understand the nature or consequences of the proceeding and to assist counsel in preparing the case. [Citations.]" (In re James F. (2008) 42 Cal.4th 901, 910.) Before appointing a guardian ad litem, the juvenile court must hold an informal hearing at which the parent has an opportunity to be heard. If the parent does not consent to the appointment, he or she must be given the opportunity to argue against it. The court then inquires into whether the parent is in fact incompetent. An incompetency determination must be supported by substantial evidence. (Id. at pp. 910-911.)
Mother claims she had no opportunity to be heard, but her own submissions to the court show, that by e-mail from her counsel, she had actual notice of the hearing. And given the testimony of attorneys Hamilton and McBeath, set forth above, there is no question there is substantial evidence of Mother's incompetence.
III. DISPOSITION
The order appointing a guardian ad litem is affirmed.
Marchiano, P.J. We concur: Margulies, J. Dondero, J.