Filed 9/30/26 In re M.S. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re M.S., a Person Coming
Under the Juvenile Court Law.
HUMBOLDT COUNTY
DEPARTMENT OF HEALTH
AND HUMAN SERVICES,
A176018
Plaintiff and Respondent,
v. (Humboldt County
Super. Ct. No. JV2500141)
S.M.,
Defendant and
Appellant.
S.M. (mother) appeals from jurisdictional and dispositional
orders in this dependency action concerning her son, M.S.
(minor.) Those orders asserted jurisdiction over the minor,
removed him from mother’s custody, placed him in the custody of
his father, Z.S., and terminated jurisdiction. Mother contends
substantial evidence does not support the trial court’s findings
that there were no reasonable means of protecting the minor
without removal and the department made reasonable efforts to
prevent or eliminate the need for removal. She also argues the
1
trial court appointed a guardian ad litem for her in advance of
the jurisdiction hearing without due process or a sufficient
evidentiary basis. We agree with mother and will therefore
reverse the judgment and remand for further proceedings.
BACKGROUND
I. History with the Department and Detention
The minor was born in 2014. A 2016 default or uncontested
judgment gave mother full legal and physical custody and
allowed father supervised visits for five hours per week.
The Humboldt County Department of Health and Human
Services (department) received 18 referrals regarding mother’s
care for the minor between February 2021 and October 2025. In
2022, the minor was diagnosed with a brain tumor. Mother was
confused by the diagnosis until the minor’s maternal aunt,
mother’s sister, arrived and encouraged mother to follow the
doctor’s advice and allow the minor to receive the recommended
treatment. The maternal aunt told the social worker at the time
that mother had mental health issues in the form of hearing
things and paranoia.
The minor underwent several surgeries at the University of
California, San Francisco (UCSF) in 2023 to remove the tumor
and deal with a complication. He had a developmental delay and
cognitive impairment, likely related in part to his tumor. His
type of tumor is associated with a high likelihood of regrowth.
His care plan called for sedated magnetic resonance imaging
(MRI) scans every three months at UCSF to check for regrowth of
2
the tumor and allow for treatment with radiation instead of
surgery while any regrowth was still small.
In the years after the minor’s surgery, there were repeated
referrals to the department regarding concerns that the minor
was not receiving the MRI scans as recommended. In March
2024, mother told the department she missed an appointment
because she thought the appointments were scheduled for every
six months, not every three months. In April 2025, the
department was told the minor had not received an MRI in
almost a year, but mother maintained she had not missed any
medical appointments. She closed the door during a conversation
with a social worker before the conversation could be completed.
A public health nurse told mother about various services
available to her. A referral in June 2025 had to be closed because
mother appeared to move during the investigation and could not
be located. But a social worker also claimed that mother closed
the door on her during a conversation. The department closed
another referral in August 2025 because mother did not call back
the department and it could not find mother and the minor.
Mother was using her CalFresh-EBT benefits in Tehama, Lake,
Mendocino, and Humboldt counties at this time.
The department received a report on October 1, 2025, that
the minor had been left unattended and unresponsive in a vehicle
in the parking lot of a mall. Law enforcement saw the minor
sleeping in the vehicle and his lips were a blue color. They
banged on the window and yelled with no response, so they broke
open the front window of the car to open the vehicle.
3
The department filed a dependency petition two days later
alleging the minor came within the jurisdiction of the court under
Welfare and Institutions Code section 300, subdivision (b)(1).1
The department alleged the facts concerning the parking lot
incident in support of the petition. It also alleged that the minor
had not received an MRI since June 2024 and mother had said
the minor was fine and she would not take him for any MRIs
because the minor did not want to go. The department
separately alleged that the minor was at risk of harm because the
department had attempted to contact mother on at least 20
occasions after April 2025, mother terminated two in-person
contacts early, and she did not re-engage.
According to the detention report, mother told a social
worker the day of the parking lot incident that she had been
struggling since the death of the minor’s maternal grandmother,
who was mother’s main support. She said she had not responded
to calls because she was trying to move to Ukiah or Santa Rosa.
The minor refused to go to school. Mother said the minor was
doing well and everything was okay with him medically now
because of his surgeries. Mother had told UCSF in May 2025
that she would not proceed with any more medical procedures for
the minor. Mother told the social worker the minor had to be
restrained at the hospital and now refuses to go to medical
appointments. Mother did not like to fight with the minor about
1 Undesignated statutory citations are to the Welfare and
Institutions Code.
4
everything. She did not call people back because she was trying
to move.
During a child and family team meeting with mother, the
maternal aunt, and department staff, mother said she and the
minor had been living in mother’s vehicle. At a medical
appointment in Eureka, the minor refused to have his blood
drawn as part of a medical work up. The hospital staff suggested
sedating the minor, but mother refused to authorize it. Mother
had not wanted the minor seen at the Eureka hospital due to
negative personal experiences there, and she said the hospital
would make him sick. Medical records attached to the detention
report showed that UCSF had repeatedly reached out to child
protective services between 2023 and 2025 for assistance with
getting the minor to his medical appointments.
The department placed the minor with his maternal aunt
and uncle. At the detention hearing in October 2025, after some
initial resistance, mother did not object to sedation and an MRI
appointment at UCSF or locally, but she did not believe there
was any emergency. Mother said she was trying to leave
Humboldt County to be closer to UCSF. She told the court the
minor had not been enrolled in school since the prior year. She
agreed that he needed to be enrolled and said that was why she
was trying to move to Ukiah. She said she was on a waiting list
at a shelter in Ukiah. As to detention, mother objected and
submitted based on the report and petition. The court ordered
the minor detained and services including parenting education
5
and mental health services to be provided pending further
proceedings.
II. Jurisdiction and Guardian Ad Litem
The initial jurisdiction hearing was held less than a month
later, at the end of October 2025. The department’s report for the
hearing contained much the same information as the detention
report. The department attached to the report a letter from a
UCSF nurse practitioner who attested to the need for the minor
to receive a comprehensive medical exam and regular MRI scans.
At the initial jurisdiction hearing, mother’s counsel
requested a Marsden2 hearing and the appointment of a guardian
ad litem for mother. Everyone but mother, her counsel, and an
employee of her counsel left the courtroom so the trial court could
consider those issues. Mother’s counsel said he was concerned
that mother fundamentally did not and could not understand
what was going on in the hearing.3 The trial court asked mother
whether she understood that a petition had been filed in which
the department alleged that the minor was in danger and that
2 People v. Marsden (1970) 2 Cal.3d 118.
3 The transcript of the hearing during which the trial court
considered the Marsden and guardian ad litem issues was sealed,
but mother discusses it extensively in her briefs, which she did
not seek to file under seal. We treat this as a waiver of the
confidentiality. (People v. Coddington (2000) 23 Cal.4th 529, 617,
fn. 38, overruled on other grounds by Price v. Superior Court
(2001) 25 Cal.4th 1046, 1069 & fn. 13 and superseded by statute
on other grounds as stated in People v. Zamudio (2008)
43 Cal.4th 327, 355–356; see Cal. Rules of Court, rule 8.47(c)(2)
[to maintain confidentiality parties can move to file a document
under seal].)
6
the hearing would decide whether there was enough evidence for
the court to believe the allegations. Mother said she did. She
also said she understood she had the right to confront and cross-
examine the preparer of the report, to present evidence on her
own behalf, and to use the subpoena power of the court at no cost.
The court remarked that it appeared mother understood the
proceedings. In further discussions, mother said she knew she
was entitled to an attorney but would rather just handle things
herself.
An employee of mother’s counsel told the court that mother
would claim she understood what was happening but did not
comprehend what was being written in the reports and
documented by medical providers. The employee said mother
was not able to articulate what evidence, such as other medical
records, she could provide or whether she would want to testify.
The court asked mother to explain the allegations in general
terms. Mother said the department thought she was neglecting
her son. She said she could gather the appointment dates and
see what days they had shown up, what days her son had refused
to cooperate, and what days they had made it through the
appointments and surgeries.
Mother noted that she already had full custody and asked
whether the court was making her fight for custody. The court
explained that the juvenile court proceedings were taking over, so
whatever custody orders mother had no longer mattered. Mother
responded that she did not agree with the court keeping the
minor in custody. She was concerned about something
7
happening to him when he was without either of his parents
because he was a patient at UCSF hospital. She said she brought
the minor to the hospital for every appointment. She suggested
she was fighting with the hospital because, when he refused, she
did not turn around the next month and bring him back, even
though it was a hardship getting to San Francisco. She denied
neglecting the minor.
In further discussions with the court, mother said she
understood the court’s explanation of jurisdiction and disposition
hearings, said she had custody of the minor but understood he
was in detention, and asked to get him back because he was an
inpatient. She then said she was going to get to see him that day
and asked the court to speed through the hearing because she
hoped to get him back that day. After mother’s counsel reiterated
that he did not think mother had sufficient understanding to
proceed, at mother’s request her counsel explained the purpose of
jurisdiction and disposition hearings. Mother said that she did
not agree, she did not like him being in someone else’s custody
because he was a brain inpatient, and she needed and wanted
him back in her care as soon as possible. When the court asked
mother what she understood was going to happen that day,
mother said she was hoping that the department would drop the
petition and she could get the minor back that day. She asked
whether the department understood how serious it was to have a
patient like the minor away from his parents and appeared to
complain that she did not have support from father. Mother also
8
said she needed to take the minor to his upcoming medical
appointments.
The court announced that it seemed mother was clear
about her goals of having the petition dropped and the minor
returned and mother had indicated that she had evidence she
had taken the minor to appointments and was maintaining his
health care. But the court was concerned about whether mother
understood the gravity of the department’s intervention and what
it could ultimately mean, such as giving father custody or
changing the family law orders. Mother said she did understand,
but she did not agree to that outcome. She also told the court
that she wanted to move out of Humboldt County to be closer to
the hospital.
The court said it would appoint a guardian ad litem for
mother, declined to relieve mother’s counsel, and ordered the
transcript of the hearing sealed. After allowing all parties back
into the courtroom, the court announced the result of the closed
proceedings and continued the jurisdiction hearing until the
guardian ad litem could meet with mother.
At the continued jurisdiction hearing later in October, the
department asked to place the minor with father because his
current placement with the maternal aunt had to end. Mother
objected and said she did not want her custody order to be
changed. She told her counsel that father had violent felony
convictions. The guardian ad litem told the court she had
explained to mother that she did not currently have custody of
the minor and dependency court worked differently than family
9
law court. Father told the court he did not have any convictions
for child abuse. Mother said she could use help getting the minor
through the drugging of the appointments, but that was all. She
complained that she did not agree with the court taking away her
rights. During a discussion over whether the minor had an
upcoming wellness appointment with a local doctor or just an
appointment at UCSF, mother interjected with the name of the
minor’s primary care physician. When the court said it was
placing the minor with father and the department would take the
minor to medical appointments, mother said she would appeal.
The court concluded the jurisdiction hearing in November
2025. At father’s counsel’s request, the court admonished mother
that continuously or repeatedly contacting the paternal
grandparents after being told not to do so could be grounds for a
civil harassment restraining order or criminal prosecution for
making annoying and repeated phone calls. Mother’s counsel,
with the guardian ad litem’s agreement, objected and submitted
on the department’s report without evidence. The court asked
the guardian ad litem whether mother understood the reason the
minor was removed and the purpose of the hearing. The
guardian said she was not sure, since mother refused to interact
with her. The guardian ad litem also added, “I’m not so sure that
it’s that she doesn’t understand, but she doesn’t agree and doesn’t
believe it to be true.” Mother asked who the guardian was, and
the court said the guardian was appointed “to assist in making
decisions” if mother was unable.
10
The department said that according to father everything
had gone smoothly at the most recent hospital appointment in
San Francisco. The department also said that it had been unable
to facilitate visits with mother due to personnel issues. Father
said that he had spoken to the minor to undo some things that
mother had told him about doctors being bad, and the minor was
now loving school. He asked that visits continue to be
supervised.
Mother’s counsel told the court that mother had taken the
minor to a number of the appointments and followed up, but it
was difficult because of homelessness and other issues for her to
manage that level of care. Her counsel was hopeful that they
could work out a disposition that would help the family.
The court made jurisdictional findings and set a disposition
hearing. Mother’s counsel asked that mother be given the ability
to start services as soon as the department identified what they
wanted her to do.
III. Disposition
The department’s disposition report said that mother’s and
the minor’s negative feelings toward their local hospital had
contributed to mother’s refusal to allow the minor to have
medical procedures completed there. Mother had been without
stable housing for the last few years, living in her vehicle, motels,
and her storage unit. This contributed to the minor not getting
consistent care. Mother had said it was not reasonable or
realistic for her to travel to the Bay Area every three months for
appointments when the minor was doing well. Mother had dealt
11
with a lot of grief and trauma over the prior few years, losing
both of her parents who had been a big support for her and the
minor. Mother was not employed but wanted to get a job. She
needed housing and wanted to try to move out of Humboldt
County in the future.
The report said that the minor could not be safely returned
to mother because she had shown little insight into the
department’s and medical professionals’ concerns about meeting
the minor’s medical needs. Mother said it was the minor’s fault
because he refused to go to the doctor or comply with procedures.
The department said mother needed a mental health assessment
and to follow recommendations around mental health services
and parental education. She also needed to demonstrate that she
could provide a stable and appropriate living situation for the
minor and take him to medical appointments as needed.
The disposition report’s summary of reasonable efforts
listed nine items: (1) ongoing case management by the social
worker; (2) social worker had made himself available to mother,
father, and the minor to discuss concerns and offer support; (3)
consultation with medical providers and reviewing medical
records; (4) transporting the minor to the hospital to assess his
health; (5) facilitation of child and family team meetings for
mother and father; (6) provision of gas cards to mother and father
for transportation to visits; (7) arrangement of a motel room for
father to attend court; (8) discussion with mother about housing
resources; (9) discussion with mother and father about using a
communication app and closing the case with family law orders.
12
The department also listed referrals to substance abuse services,
counseling, parenting classes, and housing resources it had given
mother and father at the time of the initial hearing.
The department recommended closing the case with family
law orders granting father full legal and physical custody and
giving mother supervised visitation. The department noted that
father was a registered sex offender and had served time in
prison for an incident involving a 16-year-old female and alcohol.
But the department had concluded the conviction did not affect
his relationship with the minor or put the minor at risk for abuse
or neglect. Father was supported by the paternal grandparents
and father’s fiancée. The department also observed that the
minor had shown a significant difference in attitude towards
medical treatment after entering father’s care, becoming
amenable to care and medical scans.
The court held the disposition hearing in January 2026.
Mother’s counsel stated that mother understood the court would
close the case with family law orders. Mother’s counsel asked
that visitation be set at the same level it had been during the
case. Mother asked to say something, but mother’s counsel said
he was not finished. Mother’s counsel continued that he was
concerned they were setting the case up for failure. Mother again
tried to speak and said she wanted her word to be heard, but
father’s counsel objected because no testimony was being taken.
The trial court told mother it needed to proceed as recommended
by mother’s counsel and guardian ad litem. Mother’s counsel
then continued to express concerns that father had no intention
13
of following through with court-ordered visitation based on his
emails reflected in delivered service logs. Mother’s counsel also
said mother understood that she could not stop the court from
entering the orders requested by the department because only
the department or minor’s counsel had standing to prevent a
dismissal, but she wanted the court to admonish father to comply
with the forthcoming visitation orders. The court declined to
consider the delivered service logs because mother had not
submitted an at-issue statement before the hearing. But it did
admonish father as mother’s counsel requested. After a
discussion concerning visitation, the trial court announced that it
was dismissing the petition, terminating jurisdiction, and
entering custody orders. Those orders awarded physical and
legal custody to father with mother to receive a minimum of eight
hours of supervised visits per month and three video visits per
week.
The written orders after the hearing also made findings
that there was clear and convincing evidence of the
circumstances stated in section 361, subdivision (c)(1) regarding
mother and that reasonable efforts were made to prevent or
eliminate the need for the child’s removal from the home. The
written order also found that continuance in the home was
contrary to the minor’s welfare and physical custody of the minor
was removed from mother. Neither in the court’s oral remarks
nor the written orders did the court detail the factual basis for
these findings. The written visitation order stated that mother
could have only supervised visitation because she had not
14
completed parenting classes and individual counseling. Mother
had to follow through with mental health services for at least six
months and show better mental health stability before visits
could be liberalized.
DISCUSSION
I. Reasonable Means of Protecting the Minor Without
Removal
Mother first contends the trial court erred in one of the
findings it made to justify removing the minor from her custody
at the disposition hearing. “Under section 361, subdivision (c)(1),
the ‘child shall not be taken from the physical custody of their
parent[ ]’ unless the court finds clear and convincing evidence of
two circumstances. (§ 361, subds. (c) & (c)(1).) The first is that
‘[t]here is or would be a substantial danger to the physical health,
safety, protection, or physical or emotional well-being of the
[child] if the [child] were returned home.’ (§ 361, subd. (c)(1).)
The second is that ‘there are no reasonable means by which the
[child’s] physical health can be protected without removing the
[child] from the . . . parent’s . . . custody.’ (Ibid.)” (In re L.G.
(2026) 118 Cal.App.5th 1208, 1230, fn. omitted.) “The court shall
state the facts on which the decision to remove the minor is
based.” (§ 361, subd. (e); see In re D.P. (2020) 44 Cal.App.5th
1058, 1067 [reversing because trial court failed to state facts
supporting removal under § 361, subd. (c)(1)].)
We review a trial court’s factual findings for substantial
evidence. (In re T.R. (2023) 87 Cal.App.5th 1140, 1150.)
“Substantial evidence may include inferences, but the inferences
15
must logically and reasonably relate to evidence in the record.”
(In re L.G., supra, 118 Cal.App.5th at p. 1225.) “[W]e do not
reweigh the evidence or resolve evidentiary conflicts. [Citation.]
We uphold the finding ‘ “if it is supported by substantial evidence,
even though substantial evidence to the contrary also exists and
the court might have reached a different result had it believed
the other evidence.” ’ ” (Ibid.) But “[w]hen reviewing a juvenile
court’s finding that required clear and convincing evidence, we
look to ‘whether the record as a whole contains substantial
evidence from which a reasonable fact finder could have found it
highly probable that the fact was true.’ ” (Id. at p. 1230.)
Mother argues the trial court’s finding that there were no
reasonable means of protecting the minor without removal lacks
substantial evidentiary support. We agree. The danger to the
minor’s health was that mother was not taking him to MRI
appointments as the minor’s doctors recommended. The
disposition report said that the minor could not be returned to
mother because she had shown little insight into the
department’s concerns; she blamed the minor for refusing to go to
the doctor and to comply with medical procedures; and mother’s
living situation in her vehicle, motels, and storage unit for
several years was unstable. It noted earlier that mother’s
parents had been a big support for her and the minor but they
had died in the last few years. Despite also stating that mother
needed a mental health assessment, parenting education, and to
demonstrate that she could provide a stable living environment
and could take him to medical appointments, the report did not
16
explain why the department chose not to offer mother assistance
in those areas, as is common in dependency matters. (In re L.G.,
supra, 118 Cal.App.5th at p. 1230 [at disposition, “[t]he court
usually chooses between allowing the child to remain in the
home, with protective services, and removing the child from the
home while the parent engages in services to facilitate
reunification”].)
For example, if mother’s mental health contributed to her
lack of insight into the need for regular MRI scans for the minor,
she might have benefited from parenting coaching, therapy, or
medication. But there is no indication in the record that the
department considered addressing mother’s mental health.
Similarly, parenting or other education classes might have
helped mother handle the minor’s refusal to cooperate with
medical appointments. And if mother’s unstable living situation
contributed to her failure to make medical appointments, the
department could have tried to help mother secure stable housing
in which she could parent the minor. The department did not
explain why it rejected the possibility of such measures. (See In
re L.G., supra, 118 Cal.App.5th at p. 1232 [social services agency
“presented no evidence that it had explored interventions to
mitigate remaining sources of risk and determined they were
infeasible” such as “a family maintenance plan under which
mother would receive regular counseling, in-home services,
parenting supports, or regular check-ins from a social worker”].)
The department’s failure to consider these options is
significant because mother told the social worker and the trial
17
court that she wanted to move south to Ukiah (where she said
she was on a list to acquire housing) or Santa Rosa to be closer to
the minor’s medical appointments. This demonstrates that
mother already recognized how her housing situation was
hampering her ability to get the minor to appointments.
Mother’s history with the department also demonstrates that
intervention could be successful. When the minor was diagnosed
with the brain tumor, mother was resistant to allowing treatment
until, with the department’s involvement, the minor’s maternal
aunt convinced mother to follow the doctors’ recommendations.
Nothing in the record suggests the department considered
interventions like this or gives any reason to think such steps
short of removal would not be successful.
The department’s only response on appeal is to argue that
mother’s history of evasion from the department and failure to
take advantage of the department’s offers of assistance in prior
investigations support a finding that there were no reasonable
means to protect the minor’s health without removing him from
mother’s custody. It cites the statements in the department’s
reports that mother received information about available services
from a public health nurse in April 2025, moved during an
investigation in June 2025, and did not return calls during an
investigation in August 2025. The department also points to the
detention report’s statement that the minor was initially placed
in protective custody due to mother’s history of evading the
18
department and the disposition report’s description of mother as
a flight risk to justify supervised visitation.
The record does not identify what resources the public
health nurse recommended to mother in April 2025, so there is no
way to say whether those resources were tailored to the
challenges the department identified in its reports and no
evidentiary basis for faulting mother for failing to take advantage
of them. The observations about mother’s evasions are more
troubling. We do not condone or excuse mother’s decision to
physically shut the door on department social workers during
conversations in June and August 2025. But apart from those
two incidents, the department’s difficulties in locating mother
appear to have resulted from her transience and attempts to
move south from Humboldt County, which more than anything
underscores the importance of finding mother stable housing. In
any event, even if we take at face value the department’s
evidence regarding mother’s evasions in prior dependency
investigations, those evasions are not necessarily probative of
how mother would behave after having the minor detained,
experiencing the scrutiny of a dependency case, and facing the
prospect of losing custody of the minor for noncompliance. We
cannot say that a reasonable factfinder would conclude from this
scant evidence that it was highly probable that there were no
reasonable means of protecting the minor without removing him
from mother.
Moreover, it is impossible to know whether the trial court
actually relied on the descriptions of mother’s earlier evasive
19
behavior. The trial court did not state the facts on which it based
its decision to remove the minor, contrary to the requirement in
section 361, subdivision (e). This failing provides further reason
for reversal. In re L.O. (2021) 67 Cal.App.5th 227, 247, held that
a trial court’s failure to state the facts concerning reasonable
means of preventing removal was harmless because it was not
reasonably probable that if the court had stated the basis for its
ruling it would have found the child could be returned to the
parent. But here, given the insubstantial nature of the evidence
supporting the finding of no reasonable means to protect the
minor without removal, there is a reasonable probability that the
trial court, if required to cite the facts supporting its decision,
would have had to reach a different decision.
II. Reasonable Efforts to Prevent or Eliminate the Need
for Removal
Mother next challenges the evidentiary basis for the trial
court’s finding that the department made reasonable efforts to
prevent or eliminate the need for removal. Related to the
previous requirement of clear and convincing evidence of no
reasonable means of protecting children without removal,
“[w]hen the government recommends removal of a child from a
parent’s home, its disposition report must include ‘[a] discussion
of the reasonable efforts made to prevent or eliminate removal.’
(Cal. Rules of Court, rule 5.690(a)(1)(B)(i).) The juvenile court
then must determine whether reasonable efforts were made.
(§ 361, subd. (e).) The [social services agency] bears the burden of
proving that it made such efforts by a preponderance of the
20
evidence.” (In re L.G., supra, 118 Cal.App.5th at p. 1232,
fn. omitted.) The trial court’s obligation to state the facts on
which its decision to remove a child is based also applies to the
issue of reasonable efforts. (Id. at pp. 1233, 1235.)
The section of the department’s report concerning
reasonable efforts consisted of a bullet-point list of nine phrases,
only one of which had any bearing on helping mother address her
challenges that led to the minor’s removal. (In re L.G., supra,
118 Cal.App.5th at p. 1234 [finding similar list to be
insufficient].) The first item, ongoing case management by the
social worker, is vague to the point of meaninglessness. The
second stated that the social worker had made himself available
to mother, father, and the minor to discuss concerns and offer
support, but did not specify what the support offered consisted of.
The third item, consultation with medical providers and
reviewing medical records, explained how the department
investigated the minor’s health conditions but did not address
mother’s challenges. The fourth, sixth, and ninth items describe
how the department transported the minor to the hospital to
assess his health, provided gas cards to mother and father for
transportation to visits, and discussed with mother and father
using a communication app and closing the case with family law
orders. These items do not explain how the department tried to
prevent or avoid the need to remove the minor from mother. The
fifth item, facilitation of child and family team meetings for
mother and father, could conceivably have helped the department
identify mother’s challenges. We cannot say it did so here,
21
however, because the department provided no substantive
discussion of how the meetings related to the need for removal.
The seventh item, arrangement of a motel room for father to
attend court, did not relate to mother at all.
The eighth item, discussion with mother about housing
resources, is the only one that is directly related to mother’s
identified challenges. But the department gave no detail about
the discussion, when it occurred, mother’s reaction, or any follow-
up by the department. The disposition report goes on to say that
the department gave mother and father a list of referrals at the
time of the initial hearing, which included counseling services,
parenting classes, and housing resources in Humboldt County.
Giving a parent an omnibus list of social services providers at the
outset of a case is not a reasonable effort. The fact that the list
includes multiple substance abuse service providers, when there
is no evidence in the record that mother has a substance abuse
problem, reflects this. Moreover, there is no indication that the
department followed up on the referrals by asking mother about
her enrollment or contacts with any of the service providers. (See
In re H.B. (2024) 106 Cal.App.5th 219, 246 [“It is difficult to
comprehend the purpose of referring a parent for classes with no
investigation into the parent’s progress or lack thereof”].)
The department defends its reasonable efforts showing by
arguing that its efforts must be viewed in the context of mother’s
refusal to accept that she had done anything wrong or needed
any assistance. It is nonsensical to excuse the department’s
failure to direct mother to services to help her achieve insight by
22
pointing to mother’s lack of insight. Besides, mother already
recognized that she needed assistance in some areas. She noted
at hearings that she needed someone to help get the minor to
accept sedation at his appointments and needed to secure
housing for the minor to enroll in school. The department also
accuses mother of inviting error because neither she, her
attorney, nor her guardian ad litem asked for more or different
services from the department. But the department, not mother,
has the burden of making reasonable efforts to avoid removal and
proving those efforts. (In re L.G., supra, 118 Cal.App.5th at p.
1232.) The department cannot blame mother for failing to ask it
to fulfill its duty.
We also conclude the error is prejudicial for the same
reasons we found prejudice resulting from the lack of substantial
evidence of no reasonable means to avoid removal. There were
reasonable steps the department could have taken, such as
seeking to treat mother’s mental health issues, offering her
education or counseling, seeking the intervention of supportive
family members like the maternal aunt, or trying to get mother
more stable housing. So far as the record reveals, the
department tried none of these things.
III. Guardian Ad Litem
Mother contends the trial court violated her due process
rights by appointing a guardian ad litem for her. We agree that
23
the trial court erred and that the department has failed to show
the error was harmless beyond a reasonable doubt.4
A parent “who lacks legal capacity to make decisions” (Code
Civ. Proc., § 372, subd. (a)(1)) must “appear by a guardian ad
litem appointed by the court” (In re James F. (2008) 42 Cal.4th
901, 910 (James F.)).5 A person who lacks legal capacity to make
4 The department does not address whether the trial court
violated mother’s due process rights by appointing a guardian ad
litem for her. It argues only that the error, if any, was harmless.
The department justifies this strategy by pointing out that it did
not participate in the closed hearing at which the trial court
appointed the guardian ad litem and that the transcript of that
hearing is sealed. The department asks us to unseal the
transcript on our own motion and give the department an
opportunity to provide supplemental briefing if we require
further briefing on the question of error.
We decline the department’s invitation. If the department
wanted to contest the question of error, it could have asked for
the transcript to be unsealed, just as mother asked to receive a
copy of the sealed transcript before filing her opening brief.
Mother’s request for the transcript expressly contemplated the
department being able to view the transcript to respond to her
arguments on appeal, since she asked for the transcript to be sent
only to her “unless and until appellant makes use of the Marsden
transcript by referring to their contents on appeal.” The
department does not explain why it did not ask to unseal the
transcript before filing its respondent’s brief.
5 James F. said that a parent who is “mentally
incompetent” must appear by a guardian ad litem, which was the
phrasing used in section 372 of the Code of Civil Procedure until
2014. (James F., supra, 42 Cal.4th at p. 910; Code Civ. Proc.,
former § 372, subd. (a), as amended by Stats. 2008, ch. 181, § 1.)
The Legislature subsequently amended that statute and many
others to use language concerning legal capacity, as part of an
effort to replace outdated terms in various code provisions with
less offensive terminology. (Stats. 2014, ch. 144; see Assem.
24
decisions is one (1) “who lacks capacity to understand the nature
or consequences of the action or proceeding,” (2) “who lacks
capacity to assist the person’s attorney in the preparation of the
case,” or “for whom a conservator may be appointed pursuant to
Section 1801 of the Probate Code.” (Code Civ. Proc., § 372,
subd. (a)(4)(A)–(C).)6 “The effect of the guardian ad litem’s
appointment is to transfer direction and control of the litigation
from the parent to the guardian ad litem, who may waive the
parent’s right to a contested hearing.” (James F., at p. 910.)
“Before appointing a guardian ad litem for a parent in a
dependency proceeding, the juvenile court must hold an informal
hearing at which the parent has an opportunity to be heard.
[Citation.] The court or counsel should explain to the parent the
purpose of the guardian ad litem and the grounds for believing
that the parent is mentally incompetent. [Citation.] If the
parent consents to the appointment, the parent’s due process
rights are satisfied. [Citation.] A parent who does not consent
must be given an opportunity to persuade the court that
appointment of a guardian ad litem is not required, and the
juvenile court should make an inquiry sufficient to satisfy itself
that the parent is, or is not, competent. [Citation.] If the court
Rules. Com., Off. of Assem. Floor Analyses, Analysis of Assem.
Bill. No. 1847 (2013–2014 Reg. Sess.) as amended June 4, 2014.)
6 The Legislature enacted this definition in 2022 to codify
preexisting case law. (See James F., supra, 42 Cal.4th at pp. 910,
916; In re Samuel A. (2021) 69 Cal.App.5th 67, 78; Sen. Rules.
Com., Off. Of Sen. Floor Analyses, 3d reading analysis of Sen.
Bill. No. 1279 (2021–2022 Reg. Sess.) as amended May 5, 2022,
p. 4 & fn. 1.)
25
appoints a guardian ad litem without the parent’s consent, the
record must contain substantial evidence of the parent’s
incompetence.” (James F., supra, 42 Cal.4th at pp. 910–911.)
Although the trial court here held a hearing to consider
whether to appoint a guardian ad litem for mother, it did not
comply with all the procedures that James F. described. Most
notably, it did not tell mother the purpose of a guardian ad litem
or the grounds for appointing one. Mother’s counsel did tell the
court that he was concerned mother did not understand what was
going on, and the trial court echoed those concerns later when it
said it was not sure that mother understood the gravity of the
potential consequences of the proceeding. But mother was not
informed of the ramifications of those concerns or that the
appointment of a guardian ad litem would take away her right to
direct and control the litigation. Mother was never asked to
consent or object to the appointment of a guardian ad litem. She
had little reason to object or try to dispel the court’s concerns
anyway because she was not told of the significance of what was
happening. The trial court simply announced the appointment of
the guardian ad litem.
When mother revealed her confusion by asking the trial
court to repeat its announcement that it was appointing a
guardian ad litem, the trial court said only that the guardian ad
litem would “assist” mother and, later, that the guardian ad litem
was “appointed in order to assist in making decisions if you’re
unable to.” This misstated the guardian ad litem’s role. The
guardian ad litem’s authority was not conditional on mother
26
being unable to make decisions; immediately upon her
appointment the guardian ad litem assumed authority over the
direction and control of the litigation. (James F., supra,
42 Cal.4th at p. 910.) “The appointment of a guardian ad litem
for a parent in a dependency case ‘is no small matter. 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. Consequently, the appointment must be approached
with care and appreciation of its very significant legal effect. “The
court is being asked to dramatically change 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
Samuel A., supra, 69 Cal.App.5th at pp. 78–79.)
James F. held that “a juvenile court’s error in the process
used for appointment of a guardian ad litem for a parent in a
dependency proceeding is a form of trial error that is amenable to
harmless error analysis,” meaning that “[i]f the outcome of a
proceeding has not been affected, denial of a right to notice and a
hearing may be deemed harmless and reversal is not required.”
(James F., supra, 42 Cal.4th at pp. 919, 918.) The standard for
assessing prejudice from such errors remains an open question.
(Id. at p. 911, fn. 1; In re Samuel A., supra, 69 Cal.App.5th at
p. 82, fn. 10.) The department asks us to apply the harmless
beyond a reasonable doubt standard, while mother argues the
standard is immaterial because the trial court’s error was
prejudicial under any standard. We will therefore apply the
harmless beyond a reasonable doubt standard.
27
James F., supra, 42 Cal.4th at page 916 began its prejudice
analysis by remarking that the record before it showed that the
parent there was in fact in need of a guardian ad litem. The
same is not true here. Unlike the parent in James F., mother
was not in a conservatorship and had not been found mentally
incompetent to stand trial in parallel criminal proceedings. (See
ibid.) While the maternal aunt had expressed concerns about
mother’s mental health, nothing in the record indicates that
mother has any mental health diagnosis or documented history of
mental health issues. Also unlike James F., it is not apparent
from the record that mother would have consented to the
appointment of a guardian ad litem if the trial court had asked
her. (See ibid.) One impetus for the hearing was mother’s belief
that she could represent herself without the benefit of counsel.
Mother also appeared to reject her counsel’s claim that she was
incompetent. However, it is not clear whether she understood the
specialized legal meaning of the term, since the trial court never
explained it to her.
In response to the trial court’s questions, mother said she
understood that the department had filed a petition alleging the
minor was in danger, she had a right to confront and cross-
examine the social worker who prepared the department’s
jurisdiction report, and she could present evidence on her own
behalf. She also said she knew she had the right to counsel and,
later, that she understood that the court could give custody of the
minor to father. The trial court itself concluded from mother’s
initial responses that she understood the proceedings, which
28
suggests that mother’s answers and demeanor did not on their
face show that she lacked the capacity to understand the nature
or consequences of the proceeding. The guardian ad litem herself
said later that she was not sure that mother did not understand
the proceedings so much as she did not agree with the petition.
An employee of mother’s counsel expressed concerns about
mother’s comprehension of the reports and inability to articulate
what evidence she could provide or whether she would want to
testify. We do not doubt the sincerity of these concerns. Mother’s
counsel was correct to raise the issue with the trial court. (In re
Sara D. (2001) 87 Cal.App.4th 661, 672–673 [“ ‘[In a proceeding
to terminate parental rights], we must rely upon trial counsel,
acting in the best interests of his [or her] client, and upon the
court itself, acting to preserve the integrity of the judicial
proceedings, to assure that no person incompetent or otherwise
incapable of understanding the proceedings against him [or her]
be forced to participate in a proceeding at which significant rights
are at stake.’ ”].) But when the trial court asked mother what she
understood the allegations to be in general terms, mother said
that the department thought she was neglecting the minor.
Mother then said, unprompted, that she could marshal evidence
about appointment dates and show what dates she showed up to
the hospital with the minor, what dates he refused to cooperate,
and what days they made it through the appointments and
surgeries. Mother went on to ask whether she was being asked
to fight for custody. She also mentioned the difficulty in
traveling to San Francisco for appointments and the need to
29
move closer to the hospital. These statements are evidence not
just that mother was able to understand the nature of the
proceedings, but also that she had the capacity to assist her
counsel in the preparation of the case.
The trial court was apparently convinced mother required a
guardian ad litem after, later in the hearing, she said she had
hoped the department would drop the petition and she could get
the minor back after the hearing. Mother does appear to have
been fixated on quickly regaining custody and to have harbored a
simplistic expectation that the department would drop the
petition. Reading the record in favor of the trial court’s ruling,
this lends some support to its conclusion that mother lacked legal
capacity, but it is by no means conclusive. So far as the record
presently reveals, mother could simply be an unsophisticated
party who needed more guidance than other clients in how to
prepare a case.7 (In re Samuel A., supra, 69 Cal.App.5th at
pp. 83, 85 [court cannot appoint a guardian ad litem in response
to a difficult but legally competent parent].) This is certainly not
a case like James F., supra, 42 Cal.4th at page 916, where “[t]he
evidence in the record all points to the conclusion that” mother
lacks capacity. On the record before us, we cannot say beyond a
reasonable doubt that mother lacked the capacity to understand
the nature of the proceedings or to assist her counsel in the
litigation.
7 Our discussion should not be interpreted to foreclose the
possibility that mother does require a guardian ad litem. We
conclude only that the state of the record currently does not
support the trial court’s conclusion that she does.
30
James F. also remarked that the record in that case did
not support the Court of Appeal’s assertion that the parent in
that case had been stripped of his right to participate in the
action. (James F., supra, 42 Cal.4th at p. 917.) James F. found
no evidence that the parent “was unable to express his wishes to
the court, either directly or through his appointed guardian, that
he lacked actual notice of the proceedings as they unfolded, that
the guardian and the attorney appointed for [the parent] failed to
properly advocate for his parental interests, or that [the parent]
ever expressed dissatisfaction with the guardian ad litem or
asked the juvenile court to vacate her appointment.” (Ibid.) The
department relies on this passage to argue that mother was
actively involved in the proceedings after the guardian ad litem
was appointed and not prevented from participating. It points to
mother’s objections to the child’s placement with father at the
jurisdiction hearing, failure to accept the social worker’s
invitation to submit a statement to the department for inclusion
in the disposition report, and various comments at the disposition
hearing that she disagreed with the outcome. The department
also asserts that mother’s counsel and the guardian ad litem
advocated vigorously on her behalf, emphasizing that both the
jurisdiction and disposition hearings were contested and her
counsel raised issues concerning visitation.
Because the trial court never told mother the purpose of the
guardian ad litem, misstated the nature of the guardian ad
litem’s authority, and never told mother that she could move to
vacate the appointment of the guardian ad litem, we fail to see
31
the significance of mother’s failure to express dissatisfaction with
the guardian ad litem or move to vacate her appointment. The
guardian ad litem told the court at the jurisdiction hearing that
mother refused to interact with her, which calls into question
whether the guardian ad litem could accurately represent
mother’s interests. The department also ignores the portion of
the disposition hearing where mother said she wanted her word
to be heard and the trial court silenced her by saying the court
needed to proceed as recommended by mother’s counsel and
guardian ad litem. Mother’s few interjections before or after this
do not necessarily mean she was able to have her voice heard.
Moreover, the department’s characterization of the
jurisdiction and disposition hearings as contested obscures more
than it illuminates. While mother’s counsel and the guardian ad
litem technically requested contested jurisdiction and disposition
hearings, objected to the department’s recommendations at the
hearings, and raised some concerns about visitation at the
disposition hearing, mother’s counsel did not call mother as a
witness, present any evidence, or cross-examine the social worker
about the report at all to contest the department’s
recommendation. This contrasts with mother’s assertions during
the hearing concerning the guardian ad litem in which she said
she could present evidence demonstrating that she took the
minor to medical appointments. (See In re Sara D., supra, 87
Cal.App.4th at p. 673 [appointment of guardian ad litem was
prejudicial where parent’s counsel indicated witnesses would
testify but did not call them after appointment of guardian ad
32
litem].) Mother’s counsel in general treated the outcome as a fait
accompli, telling the court at the disposition hearing that mother
understood she was unable to prevent the court from entering the
requested family law orders. But after mother’s counsel said
this, mother immediately asked to speak and, a few moments
later, interjected that she intended to appeal. Mother’s desire to
challenge the orders via appeal is inconsistent with her counsel’s
assertion that she understood the outcome of the case was
inevitable.
Finally, James F., supra, 42 Cal.4th at page 918 considered
whether the ultimate outcome of the dependency case was correct
and just, meaning whether the outcome of the case would have
been the same without the appointment of a guardian ad litem.
We cannot say beyond a reasonable doubt that the result here
would have been the same without the appointment of a guardian
ad litem. We have already concluded that there is not
substantial evidence of the department’s reasonable efforts to
eliminate or prevent the need for removal, and that there was not
substantial evidence of a lack of reasonable means of protecting
the minor short of removal. This naturally calls into question
whether the guardian ad litem affected mother’s counsel’s
strategy of raising argument only concerning visitation issues.
We do not accuse the guardian ad litem or mother’s counsel of
ineffective representation. But the fact that we have found errors
warranting reversal of the trial court’s orders is sufficient to raise
a reasonable doubt about whether the appointment of the
guardian ad litem contributed to those errors.
33
Our reversal of the order appointing the guardian ad litem
requires reversal of all orders made thereafter, meaning the
jurisdiction, disposition, and dismissal orders. (In re Samuel A.,
supra, 69 Cal.App.5th at p. 85.) While the delay this requires is
unfortunate, this is “the inevitable consequence of proceeding in a
manner that violated [mother]’s fundamental rights.” (Ibid.)8
DISPOSITION
The trial court’s orders appointing the guardian ad litem,
asserting jurisdiction, disposing of the case, and dismissing it are
reversed. The matter is remanded for further proceedings not
inconsistent with this opinion.
BROWN, P. J.
WE CONCUR:
STREETER, J.
GORDON, J.
In re M.S. (A176018)
8 Because we are reversing the trial court’s order that
dismissed the case, we need not address mother’s remaining
argument that the record does not support conditions the trial
court placed on the liberalization of mother’s visitation after the
dismissal of the case.
Judge of the Superior Court of San Francisco County,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
34