Opinion
F076758
08-17-2018
In re EVAN M., a Person Coming Under the Juvenile Court Law. TUOLUMNE COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. K.M., Defendant and Respondent.
Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant. Sarah Carrillo, County Counsel, and Cody M. Nesper, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JV7756)
OPINION
THE COURT APPEAL from orders of the Superior Court of Tuolumne County. Kate Powell Segerstrom, Judge. Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant. Sarah Carrillo, County Counsel, and Cody M. Nesper, Deputy County Counsel, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Franson, J. and Meehan, J.
-ooOoo-
Appellant K.M. (mother) appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her now three-year-old son, Evan M. Dependency proceedings were initiated after mother was found to be under the influence of methamphetamine and arrested for endangering Evan and his half-sister, A.M. Mother's erratic behavior during the dependency and criminal proceedings pointed to a possible concurrent mental health condition. While incarcerated and court-ordered to participate in reunification services, she was found incompetent to stand trial and the criminal matter was suspended. The juvenile court, on a motion by county counsel, appointed a guardian ad litem and subsequently terminated reunification services and parental rights.
Statutory references are to the Welfare and Institutions Code.
On appeal, mother contends the juvenile court erred in not appointing, sua sponte, a guardian ad litem at the jurisdictional hearing and therefore all orders issued subsequent to that hearing must be vacated. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2016, the Tuolumne County Department of Social Services (department) received a call that mother was using methamphetamine and neglecting then one-year-old Evan and four-year-old A.M. The children were not being bathed and Evan's diaper was not being changed. Although there was food in the home, mother asked the neighbors for food and still did not feed the children. The maternal grandmother, Karen, was living in the home but moved out the month before, taking A.M. with her. The caller reported that the house was "filthy" and there was diarrhea and urine on the floor and Evan was not wearing a diaper. The caller also stated mother had a family history of mental illness. She turned all photos and pictures around so that people would not stare at her and ducked when she passed a mirror. The caller was worried that mother was "schizophrenic and acting paranoid" as mother thought the nails in her walls were cameras.
Sheriff's deputies conducted a welfare check on Evan and noted mother's speech was rapid and nonsensical. The house was in complete disarray with piles of clothes, dirty dishes, and broken glass within Evan's reach. Mother was arrested for child endangerment after refusing to drug test and Karen took custody of Evan. Mother later admitted using methamphetamine.
Karen had been concerned about mother's mental health for nearly a year. She could only attribute her change in behavior to her substance abuse. She made several unsuccessful attempts that year to arrange a mental health evaluation. She recalled earlier in the year mother was obsessed with waking the children up and with numbers. She walked around the apartment complex asking residents to pick a number. Karen said mother used methamphetamine while pregnant with A.M. and believed mother was experiencing methamphetamine-induced psychosis because she talked to herself and made comments about people who were not there.
The department filed an original dependency petition on the children's behalf, alleging mother's chronic substance abuse and neglect placed them at a substantial risk of serious physical harm or injury. (§ 300, subd. (b)(1).) Kevin C. was identified as Evan's alleged father. In 2012, Kevin was arrested for possession of methamphetamine and child endangerment and lost custody of his son, Mason. Kevin reunified with Mason but lost custody of him again in 2014 because of his methamphetamine use. In June 2015, the court terminated parental rights and Mason was adopted. Jeremy P. was identified as A.M.'s father. He confirmed mother used methamphetamine while pregnant with A.M. During their two-year relationship, she smoked methamphetamine regularly.
Social workers visited mother in jail but were unable to engage her in conversation because she was evasive and her behavior was strange. When asked if she had a mental health diagnosis, she replied, "I'm not crazy, I'm a normal 29[-]year[-]old woman with two beautiful kids." The workers found mother in a similar mental state several weeks later when they made an unannounced visit to her home. Mother believed her arrest was a mistake or some kind of "impersonation" and stated multiple times the social security number on her jail documents was incorrect. She thought someone was taking things from her apartment even though she kept it locked and was vague about what was taken. She refused to drug test because law enforcement provided her a cup with white residue inside while she was incarcerated. As the social workers ended their conversation with mother, Karen arrived. She believed mother had a severe, untreated mental health diagnosis, which included hearing voices. She did not believe the children were safe in mother's care, recalling a time she found Evan in his playpen with a bloody nose, standing in a pool of urine. Mother did not understand there was a problem and did not know how Evan was injured.
The juvenile court ordered the children detained and appointed counsel for Kevin. Mother did not personally appear at the detention hearing but was represented by counsel. Minors' counsel gave the court a restraining order issued on October 21, 2016, prohibiting mother from having contact with Evan. The court ordered no visitation for mother and Kevin and set the matter for a jurisdictional hearing. Evan was placed in foster care with Mason's parents and A.M. was released to Jeremy's custody.
Mother appeared in custody twice in November 2016, having been arrested for failure to appear in her child endangerment case, resisting arrest, and bringing methamphetamine into the jail. The juvenile court granted her request for a contested jurisdictional hearing, which it conducted on January 6, 2017. Meanwhile, the department filed a first amended petition, identifying Kevin as Evan's presumed father, and alleging his substance abuse resulted in Mason's neglect and placed Evan at a similar risk of harm. (§ 300, subd. (j).)
Mother appeared in custody on January 6, 2017, at the contested jurisdictional hearing. Before the hearing, she and her attorney asked to speak with social worker Cassandra LaFon and the deputy county counsel. Mother introduced herself, stating "I'm [K.] but I'm also called Sara." By that time, she had been incarcerated for ten days and it was unclear to the department whether she was suffering from a mental health condition or the effects of methamphetamine abuse. At the hearing, the court addressed a second amended petition the department filed the day before correcting the facts supporting the section 300, subdivision (j) allegation as to Kevin. The court permitted the filing, finding the amendment was not material. The court also reviewed waiver of rights forms mother and Kevin submitted. The court asked mother three times if she understood her right to a hearing and she responded in the affirmative, but then stated "Contest" and the following exchange occurred:
"THE COURT: You want to have a contested hearing?
"[MOTHER]: Yes, please. Yes. What do you think?
"(Discussion held off the record)
"THE COURT: We can switch. I will talk to [Kevin.] [¶] ... [¶]
"THE COURT: Let's start over again. Do you understand your rights to a hearing?
"[MOTHER]: Yes.
"THE COURT: All right. Do you give up those rights?
"[MOTHER]: No.
"THE COURT: All right. Then we will have a contested hearing."
The juvenile court granted a recess so Kevin could confer with his attorney concerning the allegations in the second amended petition. After resuming, the court asked whether to proceed with a contested hearing. Mother's attorney stated mother denied the allegation but wanted to submit on the report so she could proceed to disposition and access services as soon as possible. The court made no further attempt to obtain a waiver from mother, and Kevin testified.
Kevin testified he had seen a marked change in mother's behavior in the previous month and a half. She was "smart, intelligent and beautiful" and her house was "almost spotless clean" and the children were happy and playful. He never saw her house in the condition described in the report. He knew how people behaved when they were under the influence of methamphetamine and would think mother was "high" if he met her on the street. However, he did not believe she was using drugs because she denied it and she had been incarcerated for a long time. He believed she had a mental health problem, observing "[W]hat sits in that chair right now is not her."
The juvenile court adjudged Evan a dependent child under section 300, subdivisions (b) and (j) as alleged in the second amended petition and set a dispositional hearing for January 24, 2017.
On January 20, 2017, LaFon met with mother at the county jail to complete a psychosocial interview. Mother said she understood the purpose of the interview and agreed to participate. However, in response to the first question, which pertained to her early life, she declared she was being interrogated and refused to answer. She then shifted her focus to papers she brought to the interview and said someone was "messing" with her papers. She said she did not trust Karen anymore because she was "filming getting ready for boot camp" and stated there were people and voices telling her to do things and calling her "Sara." She claimed a month of sobriety and wanted to participate in substance abuse and mental health treatment stating, "I'm always confused."
Later that day, LaFon inquired about mental health services for inmates. According to a nurse on staff at the jail, mental health providers visited the jail twice a week, but there was a waiting list and an inmate had to be sober or incarcerated for 30 days in order to rule out a mental health condition related to active or recent substance abuse. LaFon asked the nurse to place mother on the waiting list as she would soon satisfy the time requirement. The nurse agreed to do so and said he would indicate it was a "rush."
In its report for the dispositional hearing dated January 23, 2017, the department recommended the juvenile court provide mother reunification services for Evan, including an immediate psychiatric evaluation so that appropriate services could be identified for her. Though she recently acknowledged her substance abuse, had been incarcerated nearly 30 days and was free of illicit substances, she was still unable to track conversations and provide coherent or appropriate responses, consistently displayed paranoid behavior, and acknowledged having auditory and visual hallucinations. The department further recommended the court dismiss the petition as to A.M. and grant Jeremy custody of her and deny Kevin services because of his ongoing drug use. (§ 361.5, subd. (b)(10) & (11).) The department suspected Kevin was using drugs because he refused to drug test and associated with known drug users at his home. Kevin, anticipating the juvenile court was not going to offer him services, asked Mason's adoptive mother if she would consider adopting Evan.
As to visitation, the department reported that mother had not visited Evan because of the protective order. Karen visited Evan and A.M. on January 20, 2017. This was Karen's first visit with the children since she tested positive for methamphetamine in November 2016, and was not permitted to visit. During the drop-off, Jeremy and Evan's foster parent exchanged contact information in order to set up informal sibling visitation.
On January 24, 2017, mother appeared in custody and through counsel submitted on the department's recommendations. The juvenile court terminated its jurisdiction over A.M., removed Evan from parental custody, ordered reunification services for mother, and denied Kevin reunification services. The court set a July 2017, six-month review hearing and ordered the department to provide mother one weekly, supervised visit once the criminal protective order expired.
In April 2017, mother was found incompetent to stand trial and all further proceedings were suspended. She was committed to the state hospital in June and was awaiting transfer to the facility.
On June 23, 2017, county counsel filed a section 388 petition asking the juvenile court to consider appointing a guardian ad litem (GAL) for mother. There was increasing concern about her ability to assist her trial counsel with her case. At a hearing on July 11, the court appointed mother a GAL.
In its report for the six-month review hearing, the department recommended the juvenile court terminate mother's reunification services and set a section 366.26 hearing to implement a permanent plan of adoption for Evan. The department reported that mother was unable to participate in many of her services because of her incarceration. However, she was evaluated for psychotropic medication; one was prescribed for her and administered daily by a nurse. She was also seen as needed by the mental health staff for ongoing medical needs and acute intervention. The department also reported that mother declined to visit Evan even though the restraining order expired in April 2017. She did not want to see Evan while she was incarcerated because she "remember[ed] what it was like."
On July 25, 2017, mother appeared with her attorney and GAL at the six-month review hearing. The juvenile court terminated mother's reunification services and set a section 366.26 hearing. The court found the department provided mother reasonable reunification services, but that she made no progress in resolving the problem that required Evan's removal. The court also found there was no likelihood of reunification within the next six months.
Mother filed an extraordinary writ petition (Cal. Rules of Court, rule 8.450), seeking appellate review of the juvenile court's order terminating her reunification services, which we denied. She did not argue the court erred in not appointing a GAL sooner.
K.M. v. Superior Court (Nov. 20, 2017, F076094) [nonpub. opn.]. Mother argued the juvenile court erred in finding she was provided reasonable reunification services, in believing it had to find a substantial probability Evan would be returned to her custody in order to continue services, and in not finding "intervening events" warranted a continuation of services. --------
In its report for the section 366.26 hearing, the department recommended the juvenile court terminate parental rights and select adoption as Evan's permanent plan. An adoption specialist determined he was likely to be adopted and his foster parents wanted to adopt him. The department described him as a "happy toddler with no behaviors that would impede adoption." Mother declined all visitation.
On November 21, 2017, mother appeared with her GAL, who stated mother had been restored to competency. Mother's attorney asked the court to order visitation for mother and Evan at the jail as soon as possible. The court made the order and set a contested section 366.26 hearing for December 1, 2017.
At the contested hearing on December 1, 2017, mother appeared with her attorney and GAL. She attempted to establish two of the exceptions to adoption—beneficial parent-child relationship and sibling relationship—through the testimony of various witnesses. Evidence was elicited that mother and Evan and Evan and A.M. shared parent-child and sibling bonds. However, the juvenile court found none of the exceptions applied. Having also found Evan was likely to be adopted, the court terminated parental rights.
DISCUSSION
Mother contends her severe mental illness rendered 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 by the jurisdictional hearing on January 6, 2017. She claims this statutory error violated her due process rights in that, had a GAL been appointed, a different result was probable. We disagree.
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.)
The appointment of a guardian ad litem for a parent dramatically changes the parent's role in the proceeding by transferring the direction and control of the litigation from the parent to the guardian ad litem (In re James F. (2008) 42 Cal.4th 901, 910) and should not be taken lightly.
Here, the record is replete with evidence that mother was a habitual methamphetamine user when Evan was removed from her custody and had been for some time. According to Karen and Jeremy, she used methamphetamine while pregnant with A.M., who was four at the time of Evan's removal. In addition, mother continued to use methamphetamine after Evan was removed as evidenced by her act of taking methamphetamine into the jail. Further, though she exhibited behavior that appeared to stem from mental health problems, at least one person close to her, i.e., Karen, believed it was the result of methamphetamine-induced psychosis.
Contrary to mother's assertion, the record does not support a conclusion that she was incapable of comprehending the legal significance of the proceedings, or that she could not assist her attorney in protecting her interests. She was represented by the same attorney throughout these proceedings who did not express concern at the jurisdictional hearing, or any subsequent hearings, that mother was incompetent to participate in the legal proceedings and we presume on such a record that counsel would have said so had that been a problem. (See Evid. Code, § 664.) Rather, her attorney, after conferring with her at the jurisdictional hearing, conveyed to the court her desire to engage in reunification services as soon as possible. Under the circumstances, such a request was logically and legally sound. We have also reviewed the reporter's transcripts for all hearings and note that mother was not disruptive and responded appropriately to the court's statements.
Further, even assuming the juvenile court should have questioned mother's competence at the jurisdictional hearing, 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.) The juvenile court's jurisdictional findings under section 300 and its subdivisions need only be supported by a preponderance of the evidence. The undisputed facts of mother's methamphetamine use and the resultant neglect Evan suffered were more than sufficient to support the juvenile court's jurisdictional finding as to him. Under the circumstances, there is nothing a GAL would or could have done to prevent the court's assumption of jurisdiction.
Nor is there evidence, as mother contends, that a GAL would have convinced her to exercise her visitation rights sooner in order to assert the beneficial parent-child relationship exception to adoption at the section 366.26 hearing. According to the record, mother was found incompetent to stand trial and the protective order was lifted in April 2017. She remained incarcerated awaiting transfer to a state hospital. Though the GAL was not appointed until July, there is no reason to assume a GAL would have advised her to pursue visitation after the expiration of the protective order, given her mental state. Further, according to the department in its July 2017 report for the six-month review hearing, mother declined to visit Evan after the protective order was lifted and her reasoning was lucid. She stated that she did not want him to see her incarcerated because she knew what that was like and did not want him to experience it.
In sum, the record does not show the juvenile court erred by failing to hold a hearing, sua sponte, on whether a GAL should have been appointed for mother.
DISPOSITION
The orders are affirmed.