Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JV04395
CANTIL-SAKAUYE, J.
S.L. (appellant), the mother of K.W. (the minor), appeals from the juvenile court’s order terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395.) Appellant contends the juvenile court violated her right to due process by (1) appointing a guardian ad litem for her, and (2) failing to hold a Marsden hearing after she advised the court she had serious concerns with her appointed counsel. Respondent, Yolo County Department of Employment and Social Services (the department), agrees with appellant that the appointment of a guardian ad litem was erroneous but argues the error was harmless beyond a reasonable doubt. The department also asserts appellant abandoned her request for substitute counsel. Agreeing with the department on both points, we shall affirm the order terminating parental rights.
Further undesignated statutory references are to the Welfare and Institutions Code.
People v. Marsden (1970) 2 Cal.3d 118.
FACTUAL AND PROCEDURAL HISTORY
The department filed a dependency petition in October 2004 concerning the seven-year-old minor, alleging she was at substantial risk of suffering serious physical harm or illness as a result of appellant’s inability to provide her with regular care due to appellant’s mental illness. According to the petition, appellant (1) “suffer[ed] from delusions and maintain[ed] a rigid and persistent belief that President George W. Bush [wa]s planning to marry her and that he is the minor’s father,” (2) “convinced the minor that the President is her father,” (3) “exploited the minor in her attempts to gain access to President Bush by facilitating phone calls between the minor and White House staff,” (4) refused to seek mental health counseling after being offered Family Maintenance Services and being advised to do so, and (5) failed to enroll the minor in an approved educational program after being instructed to do so.
At the detention hearing, counsel was appointed to represent appellant. Counsel immediately requested the appointment of a guardian ad litem to represent appellant. Without further colloquy, the juvenile court appointed a guardian ad litem for appellant. The minor was ordered detained.
Shortly thereafter, the department filed an amended petition, alleging that, in addition to serious physical harm or illness, the minor was at substantial risk of suffering serious emotional damage as a result of appellant involving the minor in her delusions. According to the amended petition, the minor was “extremely upset and tearful” during the telephone calls to the White House.
According to the jurisdictional report, appellant contacted the White House numerous times, both by telephone and in writing, stating, among other things, that she loved the President, could not wait to be legally married to him, and wanted to “give [him] a Bush Baby.” She made similar statements to the social worker. The social worker indicated appellant had “significant mental health problems” and “difficulty . . . understanding the allegations or the [c]ourt process.” Believing nothing was wrong with her, appellant refused to seek mental health treatment.
Volunteers from the White House Comment Line reported receiving calls from the minor “crying and asking for her daddy, wanting him to come home and marry [appellant].” The minor told the social worker that she could not wait for the President to be her “daddy” and that appellant was going to give birth to the President’s twin boys on November 2, 2004. When the minor began attending school, she signed her name “K[.] Bush, Jr.”
On the date noticed for the jurisdictional hearing, appellant told the court the minor needed to be home, and the minor’s detention was not “necessary or fair.” Appellant’s counsel requested a contested hearing, and one was scheduled for November 23, 2004. At the hearing, appellant’s counsel submitted on the jurisdictional report, and the court sustained the amended petition.
According to the dispositional report, appellant believed the department was persecuting her for her belief in Jesus Christ and for defending the President, and she persisted in her belief that she was going to marry the President. She also continued to discuss the President with the minor during visits despite having been ordered not to do so.
The minor was on track developmentally and educationally but had difficulty distinguishing between fact and fiction. She said appellant told her there were cameras all over their home, and they were always being watched. The minor also reported being sexually abused by her father and said “there are other things that she [was] unable to tell anyone and that they [were] secrets.”
At the dispositional hearing in December 2004, appellant’s counsel submitted on the dispositional report, and the juvenile court adopted the social worker’s dispositional recommendations and ordered reunification services for appellant, including completing a mental health assessment and psychological evaluation; participating in mental health counseling, parenting education, and visitation; and taking “all medication prescribed by [a] [p]hysician/[p]sychiatrist.”
The juvenile court suspended visitation between appellant and the minor in January 2005, after the minor reported being sexually abused by appellant and appellant’s sexual partners. The minor said she was afraid to visit and did not want to visit appellant, and complained of stomachaches, headaches, and other physical illnesses when confronted with visiting with appellant.
The juvenile court terminated visitation between appellant and the minor in March 2005, after receiving a letter from the minor’s therapist detailing the minor’s sexual abuse allegations and recommending “no contact” with appellant. Among other things, the minor told her therapist that appellant involved the minor in prostitution.
According to the 12-month review report prepared in November 2005, appellant participated in a psychological evaluation, had been meeting with a psychiatrist monthly to address her mental condition, and had been taking psychotropic medication as prescribed. Nevertheless, her “significant and ongoing mental health problems [had] not improved,” and she continued to maintain that she was not in need of mental health treatment and said she was participating in counseling services and taking psychotropic medication only to comply with her case plan.
According to the psychological evaluation, appellant suffered from a delusional disorder, mixed type (with prominent grandiose, persecutory and erotomanic themes), with poor insight; and a schizoaffective disorder, bipolar type. The psychologist expressed concern “regarding [appellant’s] ability to function effectively in a parental role at the present time . . . .” Given her “severe limitations in insight into the severity of her disordered thinking and her narcissistic defenses,” the psychologist was “not very optimistic about her ability to benefit from any services that could be offered . . . over a 12[-] to 18-month period enough to reduce the risk to [the minor] of psychological harm if she were returned to [appellant’s] care.”
Although appellant brought up marrying the President less frequently after she began taking psychotropic medication, she “remain[ed] adamant [in] her belief that she and President George W. Bush w[ould] be married.” She also lacked any insight into how her beliefs negatively impacted the minor and insisted that any emotional distress the minor experienced was caused by the department’s involvement in her life.
Meanwhile, the minor had become “even more adamant . . . that she [did] not want to return to live with [appellant],” “expressed significant anxiety at the prospect of being reunified with” appellant, and “exhibit[ed] symptoms of Post Traumatic Stress Disorder and Depression when dealing with the possibility of . . . being placed with” appellant.
At the contested 12-month review hearing in February 2006, appellant’s counsel advised the court that appellant did not have any additional information and did not wish to call witnesses, but she did want to make a statement. Appellant told the court she loved the minor, and there was nothing she would not do to have the minor back with her. She had never missed a court date and had done everything she had been ordered to do, including seeking mental health treatment, which helped her “to think twice and think to better my child and myself.” Apparently referring to the sexual abuse allegations, she said she had “no confidence in all of the reports” because she had not “heard th[o]se words from [the minor],” and she could not “be accountable for something [she] was never aware of.” Had she known of the abuse, she “would have taken immediate action.” The juvenile court terminated reunification services and set the matter for a hearing to select and implement a permanent plan pursuant to section 366.26 for July 5, 2006.
On April 24, 2006, the juvenile court received a letter from appellant asking for “a different attorney person for [her]self.” Among other things, appellant said her attorney had “never done what I have asked ever.”
According to the section 366.26 report prepared in June 2006, the minor would likely be adopted. She had been in her current placement since October 2004 and was thriving. She was healthy and on track developmentally and educationally. She wanted to be adopted by her foster mother, and her foster mother was committed to adopting her. Meanwhile, appellant had been “arrested and detained [sometime prior to June 19, 2006] by Santa Clara County authorities who intend[ed] to pursue criminal charges of sexual abuse and child endangerment against [her].”
Appellant did not appear for the section 366.26 hearing on July 5, 2006, and the hearing was continued to August 23, 2006 at her counsel’s request.
In a letter dated July 7, 2006, appellant advised the court that she was still in custody in Santa Clara County and requested information concerning the July 5, 2006 hearing. In particular, she asked whether her counsel had been fired and reiterated her request for “a new different Public Defender to represent” her. She also said she would never give up her parental rights.
The section 366.26 hearing was continued several times until April 6, 2007, due to Santa Clara County’s apparent refusal and/or failure to transport appellant to the hearing.
At the contested section 366.26 hearing, appellant’s counsel advised the court that appellant had “no evidence to present” but wished to make a statement. Appellant, who was present, said she loved the minor, did not want to give up her parental rights, did not want the minor to be adopted, and did not want the minor to remain with the minor’s current foster mother. The juvenile court found the minor would likely be adopted, terminated parental rights, and ordered adoption as the permanent plan.
DISCUSSION
I.
Appellant contends her right to due process was violated by the “unsubstantiated appointment” of a guardian ad litem, and as a result, all “findings and orders made . . . after October 20, 2004, the date on which the guardian ad litem was appointed . . ., [must] be reversed and vacated, and [the] matter . . . remanded to the juvenile court for new proceedings . . . .” This is so, she argues, because the juvenile court failed either to conduct a hearing on the matter or to obtain appellant’s consent to the appointment. In her view, this is structural error that requires reversal of the judgment and, even if not structural, she was prejudiced by the error because there is no way to know what she might have done if the guardian ad litem had not been appointed. The Department concedes the juvenile court failed to follow the required procedures for appointment of a guardian ad litem but argues the error was harmless. We agree with the department.
In dependency proceedings, a parent’s competency is governed by Penal Code section 1367, subdivision (a), which states that a person is mentally incompetent “if, as a result of mental disorder or developmental disability, the [person] is unable to understand the nature of the . . . proceedings or to assist counsel in the conduct of a defense in a rational manner.” (In re Christina B. (1993) 19 Cal.App.4th 1441, 1449-1450; cf. In re Sara D. (2001) 87 Cal.App.4th 661, 667 [finding of incompetency may be based either on Pen. Code § 1367 or Prob. Code § 1801, which describes persons for whom a conservator may be appointed].) Before appointing a guardian ad litem, the juvenile court must find by a preponderance of evidence that the parent is incompetent. (In re Sara D., supra, at p. 667.)
The appointment of a guardian ad litem “dramatically change[s] the parent’s role in [a dependency] proceeding . . . .” (In re Sara D., supra, 87 Cal.App.4th at p. 668.) “The effect of the appointment is to remove control over the litigation from the parent, whose vital rights are at issue, and transfer it to the guardian.” (In re Jessica G. (2001) 93 Cal.App.4th 1180, 1186-1187.) Thereafter, the guardian ad litem, rather than the parent, has the authority to make certain “tactical and even fundamental decisions affecting the litigation . . . .” (In re Christina B., supra, 19 Cal.App.4th at p. 1454.) “Consequently, the appointment must be approached with care and appreciation of its very significant legal effect.” (In re Jessica G., supra, at p. 1187.) For these reasons, a parent is entitled to due process before a guardian ad litem is appointed on his or her behalf. (Ibid.)
“If the parent’s attorney concludes that a guardian ad litem should be appointed, the attorney must either (a) approach the client and request consent to the appointment, or (b) not consult with the client and approach the court directly. If the attorney consults with the client and receives consent for the appointment of a guardian ad litem, the due process rights of the parent will be protected, since the parent participated in the decision to request the appointment.” (In re Sara D., supra, 87 Cal.App.4th at p. 668.)
However, if the parent is not consulted or does not consent to the appointment of a guardian ad litem, due process requires that the parent be afforded a hearing before such appointment is made. (In re Sara D., supra, 87 Cal.App.4th at pp. 669, 671.) It may be informal but, “[a]t a minimum, the court should make an inquiry sufficient to satisfy it that the parent is, or is not, competent; i.e., whether the parent understands the nature of the proceedings and can assist the attorney in protecting his/her rights.” (Id. at p. 672.) “The court or counsel should . . . explain[] to [the parent] the purpose of a guardian ad litem and why the attorney fe[els] one should be appointed. [The parent] should [be] given an opportunity to respond. The court retain[s] the right to exclude all other parties to the action from the courtroom during the hearing. These basic procedures . . . ensure the court does not erroneously deprive the parent of the right to participate in a section 300 proceeding through the appointment of a guardian ad litem.” (Ibid.)
The department first contends appellant forfeited the issue by failing to object in the trial court. Like the appellate court in In re Sara D., supra, 87 Cal.App.4th at page 671, we reject this contention because the “minimal proceedings in court occurred so quickly,” and with no explanation to appellant as to their significance, “that it is unlikely [she] knew what had occurred until after the fact.”
We similarly reject the department’s claim that appellant forfeited her right to “challenge the order appointing her a guardian ad litem by failing to pursue timely appellate review of that order.” “One could not expect [appellant’s] guardian ad litem to seek review of the order appointing [her]. Similarly, one could not expect her counsel to seek review of the very order [she] requested. [Appellant] was not informed that she had the right to object to the appointment of the guardian ad litem, or that she had the right to seek review of the appointment order or of the subsequent dispositional order.” (In re Enrique G. (2006) 140 Cal.App.4th 676, 683.) As a result, appellant “was in a Catch-22 situation in which she had a bare remedy with no real knowledge or ability of how to use it and no attorney to whom she could turn to effect it. Insisting that she [challenge the order appointing her guardian ad litem] [earlier in the proceedings] or lose her right to later complain about violation of her constitutional rights would itself pose constitutional issues.” (In re Jessica G., supra, 93 Cal.App.4th at p. 1190.)
Turning to the merits, prior to the jurisdictional and dispositional hearing, the juvenile court appointed a guardian ad litem for appellant. The problem, as appellant emphasizes, is there is no indication she ever received any explanation about the appointment. (In re Jessica G., supra, 93 Cal.App.4th at p. 1188 [“What is required is that the court or counsel explain to the parent . . . the purpose of the guardian ad litem appointment, the authority the guardian will have (and which the parent will not have) in the litigation, and why the attorney believes the appointment should be made”].)
We review the improper appointment of a guardian ad litem to determine whether the error is harmless beyond a reasonable doubt. (See In re Enrique G., supra, 140 Cal.App.4th at p. 685; In re Sara D., supra, 87 Cal.App.4th at p. 673; In re Jessica G., supra, 93 Cal.App.4th at p. 1189; but see In re C.G. (2005) 129 Cal.App.4th 27, 33-34 [appointment of a guardian ad litem in violation of the mother’s due process rights was a structural error requiring automatic reversal].)
The issue of whether the erroneous appointment of a guardian ad litem in a dependency proceeding is structural error or subject to harmless error review is currently pending in our Supreme Court. (See In re James F. (2007) 146 Cal.App.4th 599, review granted March 28, 2007, S150316.)
Appellant contends that, “had she had a voice in the preparation and in assisting her counsel, she may have been able to establish that she was not delusional, or that she was, in fact, a fit parent.” However, she does not support her claim with specific evidentiary references to the record, and our review of the record does not reveal any information that would allow us to infer or conclude that anything appellant might have done or suggested to her attorney would have been different if the guardian ad litem had not been appointed. Likewise, in her briefing to this court she proffered no evidence or strategy as to how she would have established herself as a fit parent.
Moreover, the jurisdictional, 12-month review, and section 366.26 hearings were contested, and even though the guardian ad litem’s function was to act in appellant’s stead during the proceedings, appellant was present at all significant hearings and personally addressed the court at least three times regarding her feelings and concerns.
The appointment of the guardian ad litem is also harmless beyond a reasonable doubt because appellant’s parental rights would have been terminated regardless of whether a guardian ad litem was appointed. (In re Daniel S. (2004) 115 Cal.App.4th 903, 914.) At the time dependency proceedings were initiated, appellant believed she was going to marry the President and he was the minor’s father. She convinced the minor that that was the case, and involved the minor in her delusion by facilitating telephone calls between the minor and White House staff. Despite receiving an array of services, including mental health counseling and psychotropic medication, appellant persisted in her delusional beliefs and showed no insight into how those beliefs negatively impacted the minor. As a result, she remained unable to safely parent the minor at the end of the reunification period. Meanwhile, the minor thrived in her prospective adoptive home and was likely to be adopted. The minor’s extremely fearful and negative feelings toward appellant made it unfathomable that the juvenile court would have found an exception to adoption based on their relationship. (§ 366.26, subds. (c)(1)(A), (h).)
The other exceptions to the termination of parental rights are inapplicable. (§ 366.26, subd. (c)(1)(B)-(F).)
We conclude that under the circumstances of this case, the erroneous appointment of the guardian ad litem was harmless beyond a reasonable doubt. (See In re Enrique G., supra, 140 Cal.App.4th at pp. 685–687.)
II.
Appellant also asserts the juvenile court erred in failing to conduct a Marsden hearing after she asked for a different attorney and advised the court that her attorney had “never done what” appellant had asked. According to appellant, the juvenile court “ignored [her request] altogether.” The department argues “[t]he court was . . . unable to address the issue with [appellant] due to her absence from court proceedings for nearly a year [after making her request],” and under these circumstances, it was incumbent upon appellant to again raise the issue at her next court appearance, the section 366.26 hearing, or forfeit her right to a Marsden hearing.
In a dependency proceeding, an indigent parent has a statutory and a due process right to competent counsel where termination of parental rights is sought. (§ 317, subd. (b), 317.5, subd. (a); In re Paul W. (2007) 151 Cal.App.4th 37, 44-45.) When counsel is appointed, a parent must have some mechanism for challenging the representation when they perceive inadequacy or the right to counsel is meaningless. Thus, juvenile courts, relying on the Marsden model, have permitted parents to air their complaints about appointed counsel and request that new counsel be appointed. An exhaustive Marsden hearing is not required in a dependency action. It is only necessary that the juvenile court “make some inquiry into the nature of the complaints against the attorney.” (In re James S. (1991) 227 Cal.App.3d 930, 935, fn. 13, original italics.)
Here, appellant clearly stated she wanted a new attorney. Because she was in custody in Santa Clara County, however, she was unable to appear in court for approximately one year after making her request. When appellant ultimately did appear in court, she did so with appointed counsel. Although appellant was permitted to make a statement, she did not express any dissatisfaction with her counsel’s representation.
Under the circumstances of this case, we conclude appellant abandoned her plea for substitute counsel, and thus, the juvenile court did not err in failing to hold a Marsden hearing.
DISPOSITION
The order terminating parental rights is affirmed.
We concur: SCOTLAND, P.J., HULL, J.