In re Miguel G.
Filed 6/17/13 In re Miguel G. CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Butte
----
In re MIGUEL G. et al.,
Persons Coming Under the Juvenile Court Law.
C070896
(Super. Ct. Nos.
J35538, J35539)
BUTTE COUNTY DEPARTMENT
OF EMPLOYMENT AND SOCIAL SERVICES,
Plaintiff and Respondent,
v.
L.G.,
Defendant and Appellant.
L.G.
(mother) appeals following the juvenile court’s order terminating her
to minors Miguel G. and C.G. (Welf.
& Inst. Code, § 395.)
name="_ftnref1" title="">[1] She contends the court erred by failing to
appoint a guardian ad litem for her sua
sponte on the ground that she was incompetent. Concluding this contention is forfeited, we
shall affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
In
November 2010,
Department of Employment and Social Services (the Department) filed section 300
petitions as to Miguel G. (born in March 2006) and C.G. (born in July 2005),
alleging that mother was arrested on drug-related charges and incarcerated in
the county jail; the parental home was unsafe due to the presence of drugs
(including 19 pounds of marijuana) and drug-related paraphernalia accessible to
the minors; mother was not giving the minors prescribed medication; and father
claimed he was unaware of the dangerous conditions.
Because
the minors were allegedly autistic and clients of Far
Northern Regional
Center, they were placed in a
foster home licensed by that agency.
At the
contested jurisdictional hearing in
December 2010, mother began screaming uncontrollably while conferring with
counsel and had to be escorted from the courtroom; the juvenile court found
that mother had voluntarily waived her right to appear at that hearing. The court found the allegations of the
section 300 petitions true. At the
Department’s request, the court authorized two psychological evaluations of
mother.
The
disposition report recommended denying reunification services to mother under
section 361.5, subdivision (b)(2) (mental disability). She was alleged to lack impulse control and
to have lashed out violently towards others since her incarceration. She had refused to sign the release of
information required to make referrals for psychological evaluations.
At the
contested dispositional hearing in April 2011, however, the Department
recommended services for mother because she had signed the necessary releases
and had begun to participate in services.
The juvenile court ordered a reunification plan for the parents and
scheduled a six-month review for October 2011.
In July
2011, mother filed a Marsden
motion. The juvenile court heard the
motion in August 2011.
Mother
asserted among other things that counsel spoke to her only once briefly the day
before the dispositional hearing, failed to subpoena three teachers who
regularly came to mother’s home because the minors had been kept out of school
due to medical problems, failed to subpoena the maternal grandmother (who
wanted placement of the minors), yelled at mother and told her she was
“pathetic,†failed to keep his promises to file a section 388 motion and a writ
petition, failed to help her to obtain visitation with the minors, and failed
to get her a copy of the Department’s latest report.
Mother’s
counsel replied in part that after he learned mother had not received
visitation, he determined that she had not responded appropriately to questions
on the evaluation form, the social worker had not received the letters she said
she was writing to the minors, and she had not documented her charges against
the Department. Counsel could not file a
section 388 petition so long as mother failed to comply with her case plan.
The
juvenile court denied the Marsden
motion, finding that counsel had been representing mother properly and any
deterioration in their relationship “has been occasioned solely by [mother’s]
attitude.†The court then set a
visitation and placement hearing in September 2011.
The
Department’s interim review report recommended terminating visitation as to
mother, still incarcerated in the county jail pending trial on five felony
charges, because it would be detrimental to the minors. Mother had not signed and returned a copy of
her case plan agreement and was not complying with the visitation plan except
by writing letters to the minors. She
either failed to return assignments required by her case plan or returned them
with the questions marked “[N/A].â€
name="_ftnref6" title="">[6] She was assigned to a single cell in the jail
because she could not manage her behavior there.
The
report attached a psychological
evaluation of mother done in August 2011.
The evaluator could not make a clear diagnosis of mental disorder. The evaluator noted, however, that mother
refused to take responsibility for the actions that led to her
incarceration. She had an extensive
history of substance abuse and neglectful conduct toward her special-needs
children. She relied heavily on respite
care and tried to dictate the delivery of services to her on her own
terms. She had a long history of legal
and illegal prescription drug involvement and had been accused of “ ‘drug
seeking’ †behavior at a local emergency room.
The large amount of marijuana found in her home was enough to suggest an
unsafe environment for the minors, yet she denied, incredibly, that any amount
at all was found. She was “at high risk
to continue to engage in unsafe behaviors around her children until such time
as she admits to her errors in judgment and begins to take responsibility for
change.†“[H]er behaviors and
justification of events paint a bleak picture†of her ability to benefit from
reunification services.
The
six-month status review report recommended maintaining the existing orders, but
noted that the parents had made very little progress and continued to deny
wrongdoing.
In
November 2011, the juvenile court ordered that mother receive at least one
noncontact visit in the jail if and only if she signed and returned the
visitation guidelines.
At the
contested six-month review hearing in December 2011, the juvenile court ordered
the minors’ placements and the parents’ reunification services to continue, but
set a 12-month review hearing the following month.
The
12-month status review report recommended terminating mother’s reunification
services and visitation. Mother was
convicted of drug and child abuse charges in November 2011 and sentenced to
four years eight months in county jail; she would not be released earlier than
May 2013. She still had not signed and
returned the visitation guidelines; though the social worker had sent them to
her four times, she denied receiving them.
She also had not returned assignments dealing with substance abuse and
relapse prevention, claiming she had no drug problems and would have to answer
the assignment questions “ ‘N/A.’ â€
She had made no progress toward reunification and maintained complete
denial of wrongdoing.
On
February 2, 2012, the date set for the contested 12-month review hearing,
mother’s counsel, David Nelson, requested a continuance to discuss further with
her “what this hearing is about and what evidence is relevant.†Other counsel indicated that they believed
mother was not capable of assisting Nelson at that time.
continuance.
On
February 8, 2012, mother filed a new Marsden
motion. Her supporting declaration,
executed on a standard form, alleged every ground for the motion stated on the
form.
counsel refused to appeal from all appealable orders in the case and refused to
help her to obtain visitation.
Before
the beginning of the 12-month review hearing on February 23, 2012, the juvenile
court heard the Marsden motion. After mother spelled out her complaints,
Nelson replied as follows: He had tried
to explain the procedures of dependency court, but communication between them
was “very difficult.†She wanted to
relitigate jurisdiction.
name="_ftnref9" title="">[9] She continually asked for a copy of a report
which did not exist. She complained that
he had not filed a writ, but the only writ he had talked about was the one that
would be filed if her reunification services were terminated, which had not
happened yet. He had talked about filing
a section 388 petition as to visitation, but that proved unnecessary because
the court calendared the matter on its own motion, as he had repeatedly tried
to explain to mother. He had litigated
placement, the other main issue so far, every time they went to court.
The
juvenile court asked Nelson, “Would you briefly state what you’ve done to
represent [mother]?†Mother interjected,
“Nothing.†The court said it would have
to remove mother from the courtroom if she did not refrain from
interrupting.
Nelson
explained that he had met with mother three or four times in the jail and had
answered her phone calls when he was in the office; if not, his secretaries
did. He had spoken to her parents. He had done what he felt was appropriate to
do on the case. But he would not
relitigate the jurisdictional hearing because “[t]hat ship has sailed, and I
have explained that to her a number of times.â€
Nor would he contact a private investigator whose name she gave him,
because that person was not his investigator and was not a part of the juvenile
court system.
Mother
said, “We never had a jurisdictional hearing.â€
The court said, “Yes, we did.â€
Mother said she was not there and was not told, “because the three
teachers [who visited her home] should have been subpoenaed.†The court said it would order that mother
receive a transcript of the jurisdictional hearing.
Mother
then said she had asked Nelson to subpoena the teachers “for moral character,â€
“for visits.†The court observed that
mother had now had one visit in jail and there was no hearing set on visitation
because no one was currently asking the court to terminate visits.
Mother
said, “They have just asked for termination of—what is that called, where I
write essays and I turn them in monthly?â€
The court replied that the Department had requested termination of
reunification services, the hearing was scheduled for March 1, 2012, and she
could talk to Nelson about subpoenaing witnesses for that hearing.
Mother
then asserted again that Nelson failed to communicate with her or to do
anything on the case. She also asserted
that she had hired a private investigator on the juvenile case, not on her
criminal case, and paid her $13,000, yet Nelson would not talk to the investigator.
never seen that person, so that person has never provided any information, so I
am not sure where that money went.â€
The court
ruled, “[T]o the extent that there are conflicts between the statements of
[mother] and her attorney, Mr. Nelson, made at this hearing, I believe Mr.
Nelson, and disbelieve [mother], for the following reasons: [¶] She does not seem to have an understanding of what is [
with that by providing her with the copy of the jurisdiction hearing. She doesn’t seem to understand the procedures
in this matter; although I believe that Mr. Nelson has taken great pains, and
her prior attorney great pains, to try and explain the procedures to her. This court has tried to take great pains to
explain the procedures for her.
[¶] I find that Mr. Nelson has properly represented [mother], and
will continue to do so. I find that
there has not been a breakdown in the relationship between Mr. Nelson and
[mother] of sufficient kind as would make it impossible for him to properly
represent her, and the motion for a Marsden
is denied.â€
The
contested 12-month review hearing was held on March 13, 2013. No transcript of the hearing has been
furnished to us, but the minute orders show that mother and other witnesses
testified. The juvenile court found that
mother had not made progress toward reunification or complied with the visitation
plan, and the minors were doing well in foster placement. The court therefore terminated mother’s
reunification services and visitation and calendared a section 366.26
hearing. The court advised mother of her
right to file a writ petition to challenge these rulings.
Mother
filed notice of appeal in propria persona, specifying the court’s order denying
her second Marsden motion and other
earlier orders. She did not file a writ
petition.
DISCUSSION
Mother
contends the juvenile court should have appointed a guardian ad litem for her
because she was incompetent, and the court’s failure to do so vitiated the
entire proceedings, requiring remand and “a return to ‘square one.’ †(Cf. Code Civ. Proc., § 372;
901, 910-911; In re M.F. (2008)
161 Cal.App.4th 673, 678-682.) This
contention is forfeited.
“In a
dependency case, a parent who is
appear by a guardian ad litem appointed by the court. (Code Civ. Proc., § 372; [citation].) The test is whether the parent has the
capacity to understand the nature or consequences of the proceeding and to
assist counsel in preparing the case.†(
at p. 910.) If the juvenile court
deems a party in a dependency proceeding incompetent, it has a duty to appoint
a guardian ad litem for the party sua sponte.
(In re M.F.,
p. 679.)
In most
instances, a parent who fails to file a writ petition after her reunification
services have been terminated will forfeit any claim that could have been
raised in that manner. (See
parent’s due process interests “because the dependency system has numerous
safeguards built into it to prevent the erroneous termination of parental
rights.†(Id. at p. 682.)
However, “[t]he failure to appoint a guardian ad litem in an appropriate
case goes to the very ability of the parent to meaningfully participate in the
proceedingsâ€; therefore, the forfeiture rule would not apply in such a
case. (Ibid.)
Mother
did not file a writ petition after her reunification services were
terminated. She relies on
but her reliance is misplaced. There,
the mother was entitled to a guardian ad litem as a matter of law because she
was herself a minor. Since the court’s
failure to appoint a guardian ad litem patently violated due process, a finding
of forfeiture was precluded. (Code Civ.
Proc., § 372; In re M.F., at
pp. 678-679, 682.) Those
considerations do not apply here.
First,
mother’s alleged incompetence is not a pure question of law, as in
and law that was never raised by trial counsel.
The forfeiture rule is routinely applied to appellate contentions that
depend on the resolution of factual questions not raised below. (Bogacki
v. Board of Supervisors (1971) 5 Cal.3d 771, 780; Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478,
1489.)
Second,
the record simply does not show that mother was incapable of understanding the
nature and consequences of the proceedings and of assisting counsel. (Cf. In
re James F., supra,
42 Cal.4th at p. 910.) She
understood that the proceedings were about the removal of the minors from her
custody and that the consequences could be permanent. She made many attempts (albeit sometimes
misguided) to assist counsel. The fact
that she also made unfounded Marsden
motions based on misunderstandings does not distinguish her from many other
parties in juvenile and criminal proceedings whose competence is not in
doubt. Finally, the psychological
evaluator did not find mother suffered from any disorder that would have
prevented her from understanding and participating in the proceedings.
We also
note that when the juvenile court denied mother’s Marsden motions, it impliedly found that she was competent to
participate in the proceedings. Thus,
for instance, the court ordered that mother receive a transcript of the
jurisdictional hearing, which the court would not have done unless it thought
she could comprehend it.
The fact
that mother suffered from temperamental problems and engaged in self-defeating
behavior did not compel a finding of incompetence as a matter of law.
intricacies of juvenile dependency procedure.
If a parent who displayed any of these problems could not be deemed
competent in a juvenile dependency proceeding, competence would be the rare
exception, not the norm.
Because
mother’s newly alleged incompetence did not require the juvenile court to
appoint a guardian ad litem on its own motion, her trial counsel never raised
the issue, and mother did not file a
writ petition to challenge the termination of her reunification services, her
contention is forfeited.
DISPOSITION
The
orders terminating mother’s reunification services and visitation are affirmed.
BUTZ , J.
We concur:
BLEASE , Acting P. J.
MAURO , J.
name="_ftn1" title="">[1] Undesignated statutory references are to the
Welfare and Institutions Code.
name="_ftn2" title="">[2] Father’s reunification services were
terminated along with mother’s. He was
deported prior to the 12-month review hearing.
He is not a party to this appeal.
