In re A.A.

Filed 8/29/08 In re A.A. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from an order of the Superior Court of Stanislaus County. Nancy Williamsen, Commissioner.

Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.

John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.

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D.A. appeals from an order terminating parental rights (Welf. & Inst. Code,  366.26) to two of her children and an order establishing a legal guardianship as the permanent plan for a third child.^[1] She contends, in the early stages of the childrens dependency, the superior court should have found her incompetent and appointed a guardian ad litem to represent her interests. Alternatively, she argues her trial counsel was ineffective for not raising the issue. On review, we will affirm.

PROCEDURAL AND FACTUAL HISTORY

In June 2006, the Stanislaus County Superior Court exercised its dependency jurisdiction over appellants four children, who then ranged in age from seven to 16 years of age. The court found they suffered, or were at risk of suffering, actual physical harm as a result of appellants inability to properly care for them due to her mental health problems. ( 300, subd. (b).) The court simultaneously adjudged the children juvenile dependents, removed them from parental custody, and ordered reunification services for appellant and the father of the oldest child. Appellants reunification services included a psychological evaluation and mental health counseling. Visitation was also conditioned on appellant completing the psychological evaluation.

Appellant appealed from the courts jurisdictional and dispositional findings and orders in In re F[.]P. et al., F051083. In that first appeal, appellant, through her court-appointed appellate counsel, challenged the courts jurisdictional finding and its decision to remove the children from her custody. She also claimed the court failed to comply with the notice requirements of the Indian Child Welfare Act. This court affirmed, finding no error. (In re F[.]P. et al. (Apr. 4, 2007, F051083) [nonpub. opn.].)

In the meantime, appellant participated in the court-ordered psychological evaluation but refused treatment for her psychiatric condition. A psychologist in the summer of 2006 had diagnosed appellant with paranoid schizophrenia and borderline intellectual functioning. He recommended antipsychotic medication and services tailored to her level of functioning. In light of the psychologists recommendations, the court ordered appellant assessed for medication. However, she refused to take the medications. This led to the continued suspension of her visitation rights.

Over time, respondent Stanislaus County Community Services Agency (agency) was able to successfully place the eldest child with his father. Also the caregivers for the other children wanted to adopt them. Consequently, at the 12-month status review stage, the agency recommended the court dismiss its dependency jurisdiction over the teenage boy and, as to the other children, terminate services and set a section 366.26 hearing to select and implement a permanent plan for them.

The court conducted two 12-month status review hearings, one in early June 2007 for the oldest child and the other in late June 2007 for the other children. At the first of the two hearings, the court followed the agencys recommendation formally awarding the father custody of his teenage son. At the second June 2007 hearing, the court also followed the agencys recommendation and, having terminated services, set a section 366.26 hearing for the younger children.

Appellant appealed from the juvenile courts order regarding her teenage son. (In re F[.]P., F053196.) Through her court-appointed appellate counsel, she challenged the fathers capability to parent and argued that the court abused its discretion. We dismissed this second appeal as moot because the teenager turned 18 and thus was legally an adult while the appeal was pending. (In re F[.]P. (Dec. 21, 2007, F053196) [nonpub. opn.].)

Due to the courts issuance of a setting order for her other children, appellant in propria persona sought writ review of that decision. (D[.]A. v. Superior Court, F053217.) In her writ petition, she sought the childrens return to her custody. However, she did not specify how the juvenile court erred. Instead, she offered a rambling two-page stream of incoherency which we characterized as a testament to her apparently still untreated psychosis. We dismissed her petition as inadequate. (D[.]A. v. Superior Court (Sept. 17, 2007, F053217) [nonpub. opn.].)

At a December 2007 section 366.26 hearing, the court found appellants two youngest children adoptable and terminated parental rights. At a subsequent hearing for another child, the court chose legal guardianship as that childs permanent plan. As appellant acknowledges in her opening brief, her condition had greatly improved, having finally accepted treatment for her mental health problems.

DISCUSSION

Appellant contends either the court or her trial counsel should have realized she was incompetent from the early stages of the childrens dependency and in turn initiated the process for appointing a guardian ad litem (GAL) to represent her interests in these proceedings. She relies on Code of Civil Procedure section 372, subdivision (a) which provides in part when an incompetent person is a party, that person shall appear either by a guardian or a conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending. She cites as the standard for determining incompetence whether a party has the capacity to understand the nature and consequences of the proceeding and is able to assist counsel in preparing the case so as to protect the partys interest. (See In re Sara D. (2001) 87 Cal.App.4th 661, 667.)^[2]

In her view, the failure to appoint a GAL in her case amounted to a due process violation and was prejudicial because a GAL would have ensured she participated in a psychological evaluation sooner and encouraged her to take her medications. Appellant further argues we should review the merits of her contention rather than deem it forfeited by her failure to raise the GAL argument earlier in the proceedings.

We conclude appellants contention is untimely and factually meritless. We may not inquire into the merits of a prior final appealable order in a dependency proceeding on an appeal from a later appealable order. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1151 (Meranda P.).) In Meranda P., this court declined to carve out an exception to the waiver rule even though the issues raised involved the important constitutional and statutory rights to counsel and to the effective assistance of counsel. (Ibid.) In declining to do so, we weighed the private and governmental interests, risks and benefits at stake in that context and reasoned whatever benefits might accrue to the parent in the absence of the rule, the resulting costs to the child and the state were greater. We therefore concluded enforcing the waiver rule did not violate due process and was fundamentally fair. (Id. at p. 1152.)

We acknowledge that a party who allegedly needed a GAL is hardly in a position to recognize and independently protest the failure to appoint her one. (In re M.F. (2008) 161 Cal.App.4th 673, 682.) However, appellant would have us ignore the fact she twice-before appealed dependency orders in this case and received the benefit of two different court-appointed appellate attorneys in the process. Each of those attorneys was presumably in a position to recognize and raise such an issue on appeal if she believed it was arguable. (See In re Sade C. (1996) 13 Cal.4th 952.)Nonetheless, in neither of those appeals did appellate counsel raise the GAL issue.^[3]

Not only do these circumstances persuade us that appellant has forfeited our review of the GAL issue, they alternatively contribute to our conclusion that there is no merit to appellants claim of error. While appellant points to the evidence of her mental health problems and remarks she made in court as proof of her incompetency, she does not establish on this record that she lacked the capacity to understand the nature and consequences of the proceeding and was unable to assist her trial counsel in preparing the case, the standard which appellant advocates for determining incompetence. Indeed, notwithstanding appellants mental health problems, the psychologist who evaluated her found no evidence of any thought disorganization and determined she was precisely oriented as to time, place and person. In addition, the mere presence of mental illness does not mean a party is unable to understand the proceedings and to assist counsel in the preparation of the case. (People v. Ramos (2004) 34 Cal.4th 494, 508.) Thus, it comes as no surprise that the attorneys in her earlier appeals did not raise the issue.

DISPOSITION

The order terminating parental rights is affirmed.

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* Before Vartabedian, A.P.J., Wiseman, J., and Gomes, J.

^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] The state Supreme Court in In re James F. (2008) 42 Cal.4th 901, 916, has affirmed a juvenile court should appoint a guardian ad litem for a parent if the requirements of either Probate Code section 1801 -- a person who is unable to take care of his or her basic needs -- or Penal Code section 1367 -- a person who is unable to understand the nature and consequences of the proceeding and to assist counsel -- are satisfied.

^[3] Notably, the attorney appointed to represent appellant in In re F[.]P., F053196, is the same attorney who represents her now.