Filed
9/11/12 In re M.L. CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re M.L., a Person Coming Under
the Juvenile Court Law.
FRESNO COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Plaintiff and
Respondent,
v.
E.S.,
Defendant and
Appellant.
F063299
(Super.
Ct. No. 08CEJ300033)
APPEAL from
an order of the Superior Court of
County. Mary Dolas, Commissioner.
Linda K.
Harvie, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin
Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo-
E.S. (mother) appeals from an order terminating her
parental rights to her son, M.L. (Welf.
& Inst. Code, § 366.26.)
name="_ftnref1" title="">[1] Arguing that she should be excused from
failing to seek writ review of the section 366.26 setting hearing, she raises
the following issues: (1) the juvenile
court lacked subject matter jurisdiction under the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA), Family Code section 3400 et. seq.;
(2) the juvenile court erred in appointing a guardian ad litem and in failing
to remove the guardian ad litem, sua sponte, during the course of the
proceedings; and (3) the jurisdictional findings should be vacated. We find no merit to mother’s arguments and
therefore reject them.
FACTUAL AND PROCEDURAL HISTORY
In January 2008, mother’s oldest
child, three-year-old Erianna B., died from injuries sustained while in the
custody of mother and mother’s boyfriend, M.L. (father). The coroner ruled Erianna’s death a homicide
caused by multiple blunt force injuries with complications that were sustained
at another’s hands. Mother and father were arrested for murder
and cruel and inhumane treatment, but mother was released from jail within a
week. While father was charged with
murder, he was released from custody in October 2008 when the murder charge was
dropped.
At the time of Erianna’s death,
mother had two children with father, an 18-month-old son La.L. and two-month
old daughter M.L. The Fresno County
Department of Children and Family Services (Department) initiated dependency
proceedings over La. and M. Thereafter,
mother gave birth to daughter Le.S., who became the subject of a subsequent
dependency petition.
name="_ftnref2" title="">[2]
In 2009,
La. and M. after the Fresno County juvenile court found the following
true: (1) mother and father caused
Erianna’s fatal injuries (§ 300, subd. (a)), (2) mother and father failed to
protect Erianna from physical abuse and protect La. and M. from ongoing
domestic violence (§ 300, subd. (b)), and (3) mother was negligent in failing
to protect Erianna from severe physical abuse by father, and mother and father
caused Erianna’s death through severe physical abuse (§ 300, subd. (f)). Dependency jurisdiction was taken over Le.
based on mother’s negligence in failing to protect Erianna from severe physical
abuse by father (§ 300, subd. (f)), and mother’s neglect and abuse of Le.’s
half-siblings which placed Le. at risk of serious physical harm or neglect (§
300, subd. (j)).
Mother and father both were denied
reunification services and their parental rights were terminated in December 2009. The court ordered a permanent plan of
adoption for the three children, who had been placed together in a
relative/mentor placement. The relatives
were in the process of adopting the children.
The
Present Case
On August 10, 2010, mother gave
birth to a son, Ma.L. (baby), in a hospital in Las Vegas, Nevada. When mother was admitted to the hospital she
used her middle name, Brianna, as her first name, although she provided her
correct address in Fresno. That day, the
Clark County Department of Family Services
(CCDFS) in Las Vegas, Nevada, received a referral alleging that mother’s child
had been killed in Fresno, where mother had a child protective services
history, and mother did not have custody of any of her children. A CCDFS social worker called and spoke with
the Department’s adoption social worker on the children’s dependency case, who
confirmed Erianna’s death in January 2008 and that mother’s other children were
in an adoptive placement because mother’s parental rights had been terminated.
CCDFS
placed a medical hold on the baby. When
a CCDFS social worker contacted mother at the hospital, mother said her name
was Brianna S[]. She denied having a CPS
history or that she had a three-year-old daughter who was murdered. Mother eventually admitted her true name, but
denied involvement in Erianna’s death. CCDFS
initiated court proceedings regarding the baby while waiting for the Department
to accept jurisdiction.
On August
13, 2010, a detention hearing was held in Nevada. The hearing was continued to August 17, 2010
to determine whether Fresno County would accept jurisdiction. On August 13, a Department social worker
received a referral from CCDFS that mother had given birth at a Las Vegas
hospital using a different name and the baby had been removed from her care. The Department social worker noted the referral
was made to initiate the process of transferring custody of the baby to Fresno
County, as mother and father still lived in Fresno, and an extended family
member in Fresno had requested placement.
The social worker assured CCDFS that Fresno County would accept
jurisdiction.
On August
16, 2010, the Department social worker called mother, who said she was still in
Las Vegas but would be returning to Fresno since she still lived there. The social worker explained that CCDFS would
withdraw its petition regarding the baby and the Department would file a
petition in Fresno. That same day, the
Department filed an initial petition over the baby and the Fresno County
Superior Court issued a protective custody warrant. On August 17, 2010, a Department social
worker picked the baby up at the Las Vegas airport pursuant to the protective
custody warrant and transported him to the Fresno home of relatives who had
been approved for placement. At the
August 24, 2010 detention hearing, the juvenile court appointed a guardian ad
litem for mother and detained the baby.
In January 2011, a jurisdictional
hearing was held on the third amended petition.
Mother and father both submitted on the Department’s reports, which
recounted the evidence regarding Erianna’s death. The evidence showed that in January 2008, father and mother were living
together with their two children, La. and M., and father’s aunt,
Charlotte. Mother’s daughter Erianna,
whose father was J.B., primarily lived with her paternal grandmother, Virginia
B. Erianna had neurofibromatosis,
Noonan’s Syndrome, and autism, and was nonverbal.
According to Virginia, on Sunday, January 20, 2008, she took Erianna to
father and mother’s house so they could watch her because Virginia was going
out of town. Mother said that when she
was giving Erianna a bath on January 22, she noticed red marks on her
body. She called Virginia, who said the
marks might have been caused by a swing and scheduled a doctor’s appointment
for Erianna. Deanna M., La.’s and M.’s
paternal grandmother, told police that in the evening of January 22, she
noticed what she believed to be bruising on Erianna’s chest and told mother to
take Erianna to the doctor.
Virginia claimed mother called her on Wednesday, January 23, and said
Erianna had several minor bruises on her stomach and some unexplained injuries
elsewhere on her body. That same day,
Virginia took Erianna and mother to see Dr. Gwen Huffer, who diagnosed several
small red dots on Erianna’s skin as impetigo.
Erianna also had three half-dime-sized bruises on her abdomen that
appeared to be at least a week old, which Virginia attributed to playing on a
swing. Dr. Huffer prescribed medication
and cream.
Mother told Virginia she wanted to keep Erianna until 9 p.m. that
night. When Virginia returned to pick up
Erianna, father told her Erianna was asleep, so Virginia left Erianna in
mother’s care. The following day,
Virginia called mother to arrange to pick up Erianna, but was told Erianna was
sick. Virginia agreed to pick her up on January
27, 2008. Mother said she did not leave
her home on January 24, and she put Erianna to bed with the rest of her
children around 9:30 p.m. Deanna,
however, told police that on the evening of January 24, she and mother had
their nails done while father watched the children, including Erianna. Mother told a social worker that she first
noticed the bruises on Erianna’s body on January 24, when the bruises on her
abdomen “just popped up.†Mother assumed
the marks were impetigo because Erianna had never sustained a bruise
before. When she saw the marks, mother
put the prescribed cream on each bruise and covered them with adhesive
bandages.
At about 9 a.m. on the morning of January 25, mother went downtown with
Deanna and her boyfriend Michael to go shopping. They left Deanna’s daughter, as well as
mother’s children, in the apartment with father and Charlotte. Charlotte walked to the drug store around 9
a.m. When she returned, father was home
alone with the children and Erianna.
Charlotte left for school around 9:55 a.m. and did not return to the
apartment until mid-afternoon.
Father told police that as soon as
Deanna, Michael and mother left, he gave La. a bath. After that, he got Erianna ready for a bath
and placed her in the bathtub. He left Erianna
in the bathtub with the water running to check on M., who was crying. Three to five minutes later, father checked
on a thumping sound he heard from the children’s bedroom and then went into the
bathroom, where he saw La. standing near the bathtub, holding Erianna’s
hair. Erianna was hanging over the
bathtub with her arms out of the water; she was gasping for air and
coughing. He assumed Erianna had slipped
under the water. He picked her up, took
her to the bedroom and dried her off.
Eventually she fell asleep and he put her down for a nap in a bedroom.
Mother claimed that when they
returned to the apartment a couple of hours later, father said Erianna had
soiled herself and when he gave her a bath the other children were “messingâ€
with her and pulling her hair. Mother
found Erianna asleep on a bed. When she
returned awhile later, Erianna was lying face down on the floor. Mother picked Erianna up and carried her to
the living room. Mother tried to get
Erianna to stand up, but she was semi-conscious and could not stand. Deanna thought Erianna was having a seizure,
so she called an ambulance.
Erianna was transported to Children’s Hospital Central California
(CHCC). A Department social worker
received a crisis referral alleging physical abuse and general neglect of
Erianna. Erianna was admitted to CHCC
with a severe closed head injury; a CT scan showed significant cerebral edema
and subarachnoid hemorrhage. She was in
the intensive care unit on life support.
She had numerous bruises of varying shapes and colors on her abdomen,
back, legs, face and arms. There was an abrasion on her chin, an adult-sized
bite mark on her elbow and a smaller bite on her back, and a red circular mark
inside her left knee. Her brain was
swelling and she was not expected to survive.
Erianna died on January 27, 2008.
Dr. Don Fields, CHCC’s child advocacy physician, told a social worker
that Erianna died from the head trauma she suffered and her medical conditions
did not contribute to her death. While
Noonan’s Syndrome can cause a bleeding disorder and easy bruising, the bruises
on her body were not caused by the syndrome, as they were too numerous to
measure. Bruises covered her entire
body; they were in all different sizes, shapes and colors, and in various stages
of healing. Moreover, according to a
geneticist Dr. Fields spoke with, her current bruises could not have been
related to her Noonan’s Syndrome because she did not have a history of
bruising. Erianna also had burn marks on
her face, adult and child-size bite marks on her elbow and back, and a “loop
mark†bruise on her knee consistent with extension cords.
According to Dr. Fields, the marks on Erianna’s body were not impetigo,
but were undeniably bruises that were two to three days old and in various
stages of healing. He opined that
Erianna had sustained head trauma on January 25, 2008. The injuries were inflicted by an adult, and
could not have been caused by falling in a bathtub, against furniture or on the
ground. There was no evidence that Erianna
exhibited any symptoms consistent with a drowning victim. It appeared to Dr. Fields that she simply had
been beaten.
According to Dr. Kathleen Murphy, a neurosurgeon at CHCC, Erianna had a
significant closed head injury with cerebral edema and multiple
traumatic-appearing bruises with no clear history to account for them. She thought an adult likely inflicted the
apparent bite marks on Erianna.
According to Dr. Huffer,
Erianna’s new injuries were not present when she examined her on January 23. While Dr. Huffer recognized that Erianna had
an illness that could cause her to bruise more easily, trauma still needed to
occur for bruises to appear. Dr. Huffer
concluded Erianna’s visible and internal injuries were excessive even
considering her pre-existing medical conditions and, in her opinion, could only
have been caused by external blunt force trauma.
During an autopsy on Erianna’s body, the pathologist found blunt force
injuries to the head, trunk, and arms/legs. The head injuries included multiple
abrasions and bruising of the face and scalp region, diffuse cerebral edema
with a thin layer of grossly identifiable subdural blood in the dural leaflets
of the brain, and subgleal and focal hemorrhages. The trunk injuries included contusion of the
front of the stomach and the mesentery to the small intestine, circular injury
over the right side of the abdomen which was possibly a healing abrasion, ovoid
hemorrhage of the muscles of the left anterior chest, and subcutaneous
hemorrhage of the upper abdominal wall.
Injuries to the arms and legs included hemorrhages over the right knee,
right shin, and of the soft tissue and skin of the left forearm.
Based on this evidence, the
juvenile court in the present case found true allegations in the third amended
petition under section 300, subdivisions (a), (b), (f) and (j). With respect to subdivision (a), the juvenile
court found that Erianna had died after receiving severe head trauma and
numerous bruises and bite marks which were inflicted non-accidentally, and the
baby was at substantial risk of suffering serious physical harm inflicted by
mother and father, as each of them caused Erianna’s fatal physical injuries and
had no reasonable explanation regarding the cause of her injuries. With respect to section 300, subdivision (b),
the juvenile court found that the baby was at substantial risk of suffering
physical harm or illness in that (1) mother failed to protect Erianna from
receiving fatal physical injuries caused by the father, and she reasonably should
have known of Erianna’s ongoing physical abuse, and (2) father failed to
protect Erianna from receiving fatal physical injuries caused by mother, and he
reasonably should have known of Erianna’s ongoing physical abuse.
With respect to section 300, subdivision
(f), the juvenile court found that mother and father caused Erianna’s death by
inflicting severe physical abuse, as Erianna suffered non-accidental fatal
injuries while in their care, and neither parent had provided a reasonable
explanation regarding the cause of the injuries. Finally, with respect to section 300,
subdivision (j), the juvenile court found that mother and father had previously
abused or neglected the baby’s siblings and half-siblings, and both mother and
father failed to address the issues that led to dependency jurisdiction over
them.
The Department recommended that
mother and father both be denied reunification services pursuant to section
361.5, subdivision (b)(4), (6), (7) and (11), and a section 366.26 hearing be
set. The Department noted in a report
prepared for the dispositional hearing that while mother and father stated they
wanted to reunify with the baby and were willing to participate in any
recommended services, they had missed numerous visits, had not accepted responsibility
for Erianna’s death and did not feel a need to participate in any
services. The Department determined the
parents had not made substantial progress toward ameliorating the conditions
that brought them to the Department’s attention and the baby would be at
substantial risk of suffering similar harm if he were returned to their care.
At the April 5, 2011 dispositional
hearing, father’s attorney objected to the bypass of reunification services, as
review of the appellate decision in the prior dependency case had been granted
and the bypass of reunification services in this case was based on the
jurisdictional finding in the prior case under section 300, subdivision
(f). Father, however, did not offer any
evidence or witnesses. Mother’s attorney
also did not offer any witnesses or evidence, although she joined in father’s
attorney’s argument and objected to the bypass of services. Mother’s guardian ad litem concurred with
mother’s attorney.
The parties submitted on the
Department’s reports. After argument of
counsel, the juvenile court found that mother had made minimal progress in
alleviating or mitigating the causes necessitating placement, while father had
made no progress, the baby was a child described within section 300,
subdivisions (a), (b), (f) and (j), and made the baby a dependent. The court ordered that reunification services
not be provided to either mother or father pursuant to section 361.5,
subdivision (b)(4), (6), (7) and (11).
The court set a section 366.26 hearing for July 19, 2011.
At the section 366.26 hearing, both
mother and father submitted on the Department’s reports, which recommended
termination of their parental rights.
The juvenile court ordered parental rights terminated, and selected
adoption as the baby’s permanent plan.
The court advised the parents of their right to appeal from the orders
and terminated mother’s guardian ad litem, other than to assist mother with
filing the notice of appeal.
DISCUSSION
I.
The Failure to Seek Writ Review
Mother
appeals from the section 366.26 hearing order terminating her parental
rights. The issues she raises on appeal,
however, pertain only to orders made at or before the April 2011 dispositional
hearing. Specifically, she attempts to
challenge (1) the August 2010 appointment of a guardian ad litem (GAL), (2) the
juvenile court’s failure to remove the GAL at or before the dispositional
hearing, and (3) the jurisdictional findings.
She also contends the juvenile court lacked subject matter jurisdiction
under the UCCJEA.
A petition for writ review from the
order setting the section 366.26 hearing is the exclusively prescribed vehicle
for appellate review of all orders issued at that hearing. (In re
Anthony B. (1999) 72 Cal.App.4th 1017, 1021-1023; § 366.26, subd. (
Where, as here, the section 366.26 hearing was set at the dispositional
hearing, failure to seek writ review precludes a parent from seeking relief
from any order made at or before the dispositional hearing. (In re
Tabitha W. (2006) 143 Cal.App.4th 811, 815-816; see also
1143, 1151 [pursuant to the waiver rule “an appellate court in a dependency
proceeding may not inquire into the merits of a prior final appealable order on
an appeal from a later appealable order . . . â€].)
A juvenile
court violates its statutory duty when it fails to provide notice of the right
to writ review after referring the case for a section 366.26 hearing. (§ 366.26, subd. (l)(2); Cal. Rules of Court, rule 5.590, subd. (b).) The violation excuses the parent from filing
a writ pursuant to California Rules of Court, rule 8.452, and allows the parent
to assert issues which arose at the earlier hearing. (In re
Rashad B. (1999) 76 Cal.App.4th 442, 450; In re Cathina W. (1998) 68 Cal.App.4th 716, 722-723.) When a GAL has been appointed for a party,
the party must appeal by the GAL. (See
Code Civ. Proc., § 372.) This means that
any appeal, or in this case extraordinary writ review, must have been taken by
the GAL on mother’s behalf. (See
Here, both mother and her GAL were
present at the dispositional hearing.
After the juvenile court denied reunification services and issued its
dispositional orders, the juvenile court stated as follows: “The Court will also advise the parents you
have the right to appeal from the orders of this court. You have 60 days from today’s date to file
that appeal. It needs to be filed in
this court not the Court of Appeal signed by you, your attorneys, or both of
you.†The Department’s attorney then
asked for referral to the “Consortium†pending the section 366.26 hearing,
since it was a prospective adoption by relative care providers. After ordering the referral, the court
stated: “And the Court will advise the
parents that at this time the Court has decided to make a more permanent plan
for your child that may result in the termination of your parental rights and
adoption of your child. If you want an
appellate court to review this court’s decision, you must first tell the court
by filing this Notice of Intent.
[¶] You’ll each be provided with
this Notice of Intent with instructions on how to complete it and information
on where to file it. [¶] It’s to be filed with the Superior Court
Clerk’s Appellate Department, 1100 Van Ness Avenue, fourth floor, which is the
fourth floor of this building, Room 401.
The hours of operation are Monday through Friday, 8:00 a.m. to 4:00
p.m. [¶]
The record shall reflect that the deputy is handing each parent their
writ rights and each parent is ordered back for July 19th, 2011, 8:00 a.m.,
this department.†Neither the GAL nor
mother filed a notice of intent or a notice of appeal.
Mother acknowledges that normally
she would be precluded from challenging orders made at the dispositional
hearing. Nevertheless, she asserts we
should find that she did not waive the issues she raises here because (1) the
juvenile court gave conflicting advisements on the appropriate method for
appellate review of the orders made at that hearing, and (2) she should not be penalized
for her GAL’s failure to seek writ review.
We question whether the conflicting advisements excuse the failure to
seek writ review on mother’s behalf.
Even if mother or her GAL were confused by the advisements, they should
have filed either a notice of appeal or a notice of intent, or both, to
preserve mother’s appellate rights.
Instead, they did nothing. Mother
is correct, however, that because a GAL has the right to control the litigation
on behalf of the incompetent person (In
re Christina B. (1993) 19 Cal.App.4th 1441, 1453 (Christina B.)), she did not control the litigation. For this reason, we will address her claims.
II.
Jurisdiction Under the UCCJEA
Mother contends the juvenile court
lacked subject matter jurisdiction because it failed to comply with the
UCCJEA. The UCCJEA is California’s
exclusive method of determining the proper forum for custody disputes,
including juvenile dependency proceedings, involving other jurisdictions. (Fam. Code, §§ 3421, 3424, subd. (d);
310 (Stephanie M.).) It was enacted in part to litigate custody
where the child and family have the closest connections, avoid jurisdictional
competition and conflict and promote exchange of information and assistance
between courts of sister states. (
106.) The policy of the UCCJEA is not to
establish concurrent jurisdiction, but to identify one court that will exercise
primary jurisdiction. “‘Courts in other
states are required to defer to that court’s continuing jurisdiction and to
assist in implementing its orders.’†(
“Subject matter jurisdiction either
exists or does not exist at the time the action is commenced and cannot be
conferred by stipulation, consent, waiver or estoppel.†(In re
Jaheim B. (2008) 169 Cal.App.4th 1343, 1348; In re A.C. (2005) 130 Cal.App.4th 854, 860.) Since subject matter jurisdiction cannot be
waived, we reject the Department’s contention that mother may not raise this
claim on appeal. While the juvenile
court did not make a determination concerning subject matter jurisdiction,
“[w]e are not bound by the juvenile court’s findings regarding subject matter
jurisdiction, but rather ‘independently reweigh the jurisdictional facts.’†(In re
A.C., supra, 130 Cal.App.4th at
p. 860.)
Under Family Code section 3421,
subdivision (a), a California court has jurisdiction to make an initial child
custody determination only if, as pertinent here: “(1) This state is the home state of the
child on the date of the commencement of the proceeding, or was the home state
of the child within six months before the commencement of the proceedings and
the child is absent from this state but a parent or person acting as a parent
continues to live in this state; [¶] (2)
A court of another state does not have jurisdiction under paragraph (1), or a
court of the home state of the child has declined to exercise jurisdiction on
the grounds that this state is the more appropriate forum under Section 3427 or
3428, and both of the following are true: [¶]
(A) The child and the child’s parents, or the child and at least one
parent or a person acting as a parent, have a significant connection with this
State other than mere physical presence; and [¶] (B) Substantial evidence is available in this
state concerning the child’s care, protection, training, and personal
relationships.â€
The UCCJEA defines “home state†as
“the state in which a child lived with a parent or a person acting as a parent
for at least six consecutive months immediately before the commencement of a
of age, the term means the state in which the child lived from birth with any
of the persons mentioned. A period of
temporary absence of any of the mentioned persons is part of the period.†(Fam. Code, § 3402, subd. (g).)
Mother argues that Nevada is the
baby’s statutory “home state,†and therefore the only state with jurisdiction
to make a custody determination, because the baby was born in Nevada and lived
there with mother until he was detained by Nevada’s child protective
services. The Department disagrees,
asserting that California is the baby’s “home state†because the baby lived
with mother before the Department commenced the California dependency
proceeding and, when he was born, mother was a California resident who was
temporarily absent from California visiting relatives in Nevada.
We question whether either state is
the baby’s “home state,†as we doubt that a temporary hospital stay incident to
delivery confers home state jurisdiction on Nevada under the UCCJEA,
California after his birth. We need not
decide the issue, however, because even if mother is correct and Nevada is the
“home state†under the UCCJEA, California obtained subject matter jurisdiction
pursuant to Family Code section 3421, subdivision (a)(2). Under this section, California has
jurisdiction if (1) Nevada has declined to exercise jurisdiction on the grounds
that California is the more appropriate forum under Section 3427,
has a significant connection with California, other than mere physical
presence; and (3) substantial evidence is available in California concerning
the baby’s care, protection, training, and personal relationships.
On the first point, the minute
orders from the Clark County District Court in Nevada (the Nevada court) show
that the Nevada court declined to exercise jurisdiction after determining a
California court would be a more appropriate forum.
Nevada, the Nevada court noted that mother, who was visiting from California,
had a prior case in Fresno and planned to return to California, where father
reportedly was. The State of Nevada
requested the matter be set for review for the court “to have a UCCJEA with the
Judge in California to determine jurisdiction as to minor.†The Nevada court ordered baby to remain in
protective custody, and set a review hearing for August 17. The Department filed its petition in Fresno
County juvenile court on August 16, 2010, and a protective custody warrant was
issued that day. At the August 17
hearing in the Nevada court, the Nevada court noted it and Judge Dolas had
agreed the baby needed to be transported to California to be placed under its
jurisdiction, and after statements were made, the Nevada court ordered the baby
transported to California and took the matter off calendar. The baby was transported back to California
that day.
On the second point, the record
shows that the baby and his parents have significant connections to California,
as the baby’s siblings and half-sibling, as well as mother and father, all
reside in California, and while mother had given birth to the baby in Nevada,
she intended to return to California. On
the third point, there is no question that substantial evidence is available in
California concerning the baby’s care, protection, training, and personal
relationships, as all of the parties are residents of California, the baby’s
siblings and half-siblings are the subject of dependency proceedings pending in
the same juvenile court that entered the decision below, and those proceedings
have generated a substantial record relating to mother’s parental fitness.
Since Nevada declined to exercise
any home state jurisdiction it had and determined California was a more
appropriate forum for resolution of the dependency case, mother’s claim that
California did not have subject matter jurisdiction fails.
In her opening brief, mother
contends the Fresno County juvenile court did not have jurisdiction over baby
because it failed to communicate with the Nevada court. In her reply brief, mother acknowledges the
Nevada court’s minutes show communication occurred between the two courts but
asserts they do not show “definitive compliance†with the UCCJEA. Even if communication between the courts did
not definitively comply with the UCCJEA, however, the record shows that the
Nevada court declined to exercise its jurisdiction in favor of the Fresno
County juvenile court. Mother does not
assert that Fresno County is an inappropriate or inconvenient forum, neither
does she assert that the Nevada court continued to exercise dependency jurisdiction
over the baby, thereby leading to conflicting dependency orders. Accordingly, any failure to definitively
comply with the communication requirements of the UCCJEA does not warrant
reversal because there is no showing of prejudice. (In re
C.T., supra, 100 Cal.App.4th at
p. 111 [juvenile court’s failure to immediately contact court in another state,
while error, did not warrant reversal because there was no showing of
prejudice].)
This case is distinguishable from
cited by mother, in which a California juvenile court was aware that a sister
state custody order was in effect and nonetheless improperly asserted
continuing concurrent jurisdiction to determine the child’s custody. Here, by contrast, the juvenile court did not
assert jurisdiction in the face of a competing order. Instead, the Nevada court communicated with
the Fresno County juvenile court to determine which state was the most
appropriate forum to litigate dependency and then ceased exercising jurisdiction. Fresno County juvenile court then had
jurisdiction to proceed with the dependency case. Accordingly, mother’s claim that Fresno
County juvenile court lacked subject matter jurisdiction fails.
III. The
Guardian Ad Litem
Mother contends the juvenile court
erred when it appointed the GAL, as substantial evidence did not support the
appointment. She also contends the GAL
failed in her duties by submitting on jurisdiction without speaking with mother
and not seeking writ review when the section 366.26 hearing was set. She asserts the trial court should have
removed the GAL when the GAL submitted on jurisdiction or, at a minimum,
questioned the GAL further about her contact with mother, and should have
directed the GAL to take steps necessary to preserve mother’s appellate rights.
A.
Hearing Proceedings
At the August 24, 2010 detention
hearing, after the attorneys submitted on the detention report and the juvenile
court questioned mother about the identity of the baby’s father, mother’s
attorney asked the court, on mother’s behalf, “she’s indicated that she would
like a [GAL] appointed because she doesn’t understand the nature of the hearing
or the case and in request with that, I will agree with her, a [GAL] may be
proper in this situation.†Mother’s
attorney confirmed she had explained to mother what a GAL would do and what
mother would be giving up by having a GAL appointed; she had told mother “that
I would be speaking to that person in [lieu] of herself and that that person
would be making determinations and acting on her behalf.â€
The court then held a hearing with
only mother and her attorney present.
Mother’s attorney told the court she was requesting a GAL for mother
based on mother’s indication to her “that she does not understand the proceedings
and the hearings that are effectuated with that.†Mother’s attorney said she had explained to
mother that if a GAL were appointed, the GAL would act “in lieu of herself,â€
would make decisions on her behalf, and would be the one speaking to the
attorney.
The court asked mother if she
understood what her attorney had told her about having another person appointed
as a guardian. Mother responded,
“No.†In response to questioning by the
court, mother told the court she was requesting a GAL “[b]ecause I don’t understand.†Mother understood that she was in court that
day for the baby, but when the court asked if she understood where the baby was
right then, she stated she did not understand “that part.†Mother understood the baby had been removed
from her care and was in the Department’s custody for his safety. Mother knew she was in court “[f]or my son,â€
“to see what [was] going on†about him in the hope of “[g]etting him
back.†Mother answered “Yes,†when the
court asked if she agreed with her attorney that the court should appoint a
GAL.
Mother confirmed she understood
that if a GAL was appointed (1) the GAL would meet with her and discuss her
concerns, feelings, and opinions about the case, but the GAL would be making
the decisions in the case, (2) the GAL could make decisions on her behalf if
she was not present in court, and (3) the GAL, after speaking with her, would
be the person making decisions as to what to tell mother’s attorney and how the
attorney should proceed in the hearings.
Understanding these things, mother confirmed it was her position that a
GAL be appointed to essentially make decisions and appear on her behalf based
on her inability to understand the court hearings, including what happens in
court and the procedure. Mother further
confirmed she understood the person appointed would be the one helping her
attorney as the case proceeds, with mother’s assistance. The court concluded by asking mother if there
was anything else she wanted to ask or say.
Mother responded, “No.†The court
then appointed the office of Ms. Van Doren as GAL for mother.
At the
November 17, 2010 hearing, which was the date originally set for the contested
jurisdictional hearing, mother’s GAL declared a conflict and asked that another
GAL be appointed. The juvenile court
relieved Ms. Van Doren as mother’s GAL and appointed Nan Selover in her
place. Ms. Van Doren provided mother
with Ms. Selover’s contact information, including her address and telephone
number.
Mother and
her GAL were present at the January 4, 2011 contested jurisdictional
hearing. The GAL informed the court she
was not prepared to proceed, as she had been on vacation and had not had time
to discuss the case with mother or mother’s attorney. The GAL knew the orders terminating parental
rights to mother’s other children had been affirmed on appeal, but she had just
received copies of the opinion that morning.
The GAL requested a continuance to give her time to properly prepare and
discuss with mother what was in her best interest. Mother’s attorney stated that while she had
not had a chance to discuss the matter with the GAL, it was her position that
mother should withdraw the contest and submit on jurisdiction that day, as the
fact that the appeal had been affirmed precluded arguments she had intended to
make and it would be in mother’s best interest to submit to jurisdiction at
that point. The juvenile court continued
the hearing after mother’s attorney and the GAL agreed they would confer and
decide how to proceed. The juvenile
court set January 19, 2011 for the settlement conference and February 1, 2011
for trial, and advised the parents to be present at both court dates with the
understanding that if they failed to appear, they would be waiving their right
to participate in the hearings and the court would make findings and orders in
their absence.
Mother was
not present at the January 19, 2011 continued hearing, although both her
attorney and GAL were there. The GAL
explained that she had prepared a waiver of rights form on mother’s behalf, but
was “doing so reluctantly†as mother failed to contact her since she was last
in court. The GAL had no evidence to
present, and did not anticipate there would be any evidence, so she was
submitting on the social worker reports and the documents in the court
file. Mother’s attorney confirmed the
submission. The juvenile court found the
report contained sufficient evidence to allow it to find the allegations of the
third amended petition true.
B. Analysis
“In a dependency case, a parent who is mentally incompetent must appear
by a guardian ad litem appointed by the court.â€
(In re James F. (2008) 42 Cal.4th 901, 910; In re Sara D.
(2001) 87 Cal.App.4th 661, 665.) “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.†(In re James F., supra, 42
Cal.4th at p. 910; In re Jessica G. (2001) 93 Cal.App.4th 1180, 1186; In
re Sara D., supra, 87 Cal.App.4th at p. 667.) If the parent consents to the appointment,
due process is served since the parent has participated in the decision. (In re Sara D., supra, 87 Cal.App.4th
at p. 668.) If there is no consent, the
court or counsel must explain the purpose of a GAL and the parent should be
given the opportunity to respond. (Ibid.) The court should make an inquiry sufficient
to satisfy it that the parent is, or is not, competent. (Id., at p. 672.) “If the court appoints a guardian ad litem
without the parent’s consent, the record must contain substantial evidence of
the parent’s incompetence.†(
in the procedure used to appoint a guardian ad litem for a parent in a
dependency proceeding is trial error that is amenable to harmless error
analysis rather than a structural defect requiring reversal of the juvenile
court’s orders without regard to prejudice.â€
(Id., at p. 915.)
Here, mother expressly consented to the GAL’s appointment. She claims, however, there was an
insufficient showing she was incompetent.
She asserts it was clear from the juvenile court’s questioning that she
understood and was able to process the basic fundamentals of the proceedings,
and that she could assist her attorney.
Mother argues her statement that she did not understand what was happening
was insufficient to justify a GAL appointment, and even if she consented to the
appointment, the juvenile court nevertheless was required to ensure there was
sufficient evidence of incompetence before appointing a GAL. The Department counters that mother’s consent
relieved the juvenile court of the obligation to inquire further regarding
mother’s incompetence or to require evidence of incompetence before appointing
the GAL.
We need not decide this issue because even if the juvenile court erred
in appointing the GAL, the error was not prejudicial. We review the erroneous appointment of a GAL
to determine whether the error is harmless beyond a reasonable doubt. (In re Esmeralda S. (2008) 165
Cal.App.4th 84, 96; In re Enrique G. (2006) 140 Cal.App.4th 676, 687; In re Sara D., supra, at
p. 673.) In so doing, we hold any error
was harmless, as the record does not reveal that any prejudice resulted from
the appointment. The outcome of the
proceedings was not affected by the appointment of the GAL. (In re Esmeralda S., supra, at p. 93.)
Mother claims she was prejudiced because the GAL failed to communicate
with her before she submitted on jurisdiction and failed to file a notice of
intent to pursue her writ remedies following the dispositional hearing. With respect to the first claim, mother does
not explain what she would have told the GAL had the GAL spoken with her before
submitting on jurisdiction. As we
explain in the following section regarding the jurisdictional findings, ample
evidence supported those findings.
Mother does not identify any additional evidence she would have provided
on the issue. The situation differs from
that in In re Joann E. (2002) 104
Cal.App.4th 347, on which mother relies, where there was reason to believe the
appointment of the GAL prevented the parent from presenting evidence. (Id. at
p. 360 [record showed mother had a number of people whom she believed to be
helpful witnesses but none were subpoenaed or testified after the GAL was
appointed].) Neither is there prejudice
from the GAL’s failure to file a notice of intent, since we are now reviewing
mother’s claims regarding orders made at or before the dispositional hearing.
Mother also asserts the juvenile court had a sua sponte duty to remove
the GAL for violating her duties, citing Estate
of Emery (1962) 199 Cal.App.2d 22, 26-27, in which the appellate court
concluded the trial court did not abuse its discretion in removing a GAL who
had a conflict of interest which could seriously affect her duties. Mother contends the GAL violated her duties
when she submitted on jurisdiction without obtaining some countervailing and
substantial benefit to mother. It has
been held “the guardian may not compromise fundamental rights, including the
right to trial, without some countervailing and significant benefit.†(Christina
B., supra, 19 Cal.App.4th at p. 1453.)
The holding, however, presumes the existence of something with which to
bargain. In the face of ample evidence
supporting jurisdiction, neither the GAL nor mother’s attorney could identify
any evidence or argument to show there was no jurisdiction. On appeal, mother does not identify any
benefit she could have, but did not, obtain in exchange for submitting on
jurisdiction. Moreover, even if the
juvenile court had a duty to remove the GAL, as we have already concluded,
mother suffered no prejudice from the GAL’s continued appointment. Accordingly, reversal is not required.
IV. Jurisdictional
Findings
Mother challenges the
jurisdictional findings made under section 300, subdivisions (a), (b), (f) and
(j). She contends reversal is required
because all of the jurisdictional allegations were based on Erianna’s death and
the claim that mother either inflicted the fatal injury herself or, in the case
of the subdivision (b) allegations, reasonably should have known father was
physically abusing Erianna. She asserts
the pertinent inquiry as to the existence of jurisdiction in this case is
whether criminal negligence is required to support jurisdiction under section
300, subdivision (f). She contends the
Department was required to establish mother was criminally negligent, yet
failed to do so.
Section 300, subdivision (f)
authorizes jurisdiction over a child if the court finds that “the child’s
parent . . . caused the death of another child through abuse or neglect.†Our Supreme Court recently held that section
300, subdivision (f), allows the juvenile court to adjudge a child a dependent
if a parent’s lack of ordinary care caused another child’s death, under the
normal concepts of legal causation. (
In so holding, the Supreme Court specifically rejected the argument
mother makes here, i.e. that an adjudication of dependency based on a parent’s
neglect leading to the death of another child under section 300, subdivision
(f), requires evidence the parent was guilty of criminal negligence rather than
a mere want of ordinary care. (
Thus, mother’s argument fails. Mother does not assert any other ground for
reversal of the juvenile court’s jurisdictional findings or contend there was
insufficient evidence of ordinary negligence to support jurisdiction under
section 300, subdivision (f). She would
be hard-pressed to do so, as the evidence shows the allegations under section
300, subdivision (f) were true, i.e. that mother caused Erianna’s death through
abuse or neglect. Erianna died of
multiple blunt force trauma to her head and body inflicted by an adult. The trauma was not present at the January 23
doctor’s appointment. Erianna was in
either mother’s or father’s care between that appointment and when the
ambulance was called on January 25.
After the doctor’s appointment, mother acknowledged seeing an increase
in bruises on Erianna’s body, yet she did not intervene or seek medical
care. In finding the subdivision (f)
allegations true, the juvenile court concluded mother knew of Erianna’s
injuries – either because she inflicted them, knew that someone else inflicted
them, or observed the obvious bruises – and failed to intervene or obtain
medical care, thereby causing Erianna’s death.
The evidence supports this conclusion and is sufficient to sustain
jurisdiction under subdivision (f).
The juvenile court’s orders are
affirmed. We grant mother’s “Second
Request for Judicial Notice†of the August 13, 2010 and August 17, 2010 “Court
Minutes†from the District Court of Clark County, Nevada. We deny the request for judicial notice of
documents filed in California Supreme Court case no. S190230.
_____________________
Gomes, J.
WE CONCUR:
_____________________
Levy, Acting P.J.
_____________________
Detjen, J.
the Welfare and Institutions Code.
