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In re S.S. CA5

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In re S.S. CA5
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06:29:2022

Filed 6/17/22 In re S.S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 S.S. et al., Persons Coming Under the Juvenile Court Law.

FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES,

Plaintiff and Respondent,

v.

JOANNA M.,

Defendant and Appellant.

F083672

(Super. Ct. Nos. 19CEJ300167-1,

19CEJ300167-2, 19CEJ300167-3,

19CEJ300167-5, 19CEJ300167-6

& 19CEJ300167-7)

OPINION

APPEAL from orders of the Superior Court of Fresno County. Kim Nystrom-Geist, Judge.

Linda K. Harvie, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel C. Cederborg, County Counsel, and Carlie Flaugher, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Joanna M. (mother) appeals the order terminating her parental rights as to her six minor children, nearly-17-year old S.S., 14-year-old D.M., 11-year-old K.C.M., seven-year-old K.L.M., six-year-old K.B.M., and three-year-old K.A.M. (Welf. & Inst. Code,[1] § 366.26).[2] She contends insufficient evidence supported the juvenile court’s finding the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) did not apply to the proceedings because the Fresno County Department of Social Services (department) failed to adequately discharge its inquiry duties, which the department concedes. She also contends the juvenile court erred by appointing a guardian ad litem for her shortly before the section 366.26 hearing. She argues insufficient evidence supported a finding of legal incompetence underlying the order and that the court improperly took judicial notice of the entire court file in making its order. We remand for proceedings to ensure ICWA compliance. In all other respects, we affirm the judgment as any error the court made in appointing mother a guardian ad litem was clearly harmless.

FACTUAL AND PROCEDURAL BACKGROUND

Petition, Detention, Jurisdiction, and Disposition

In May 2019, the department received a referral alleging general neglect when six‑year-old M.M. (not subject to this proceeding) was found wandering alone near a busy street. M.M. and her siblings, then 11-year-old D.M., then eight-year-old K.C.M., then four-year-old K.L.M., then three-year-old K.B.M., and then 10-month-old K.A.M., were all in the care of their 14-year-old sister, S.S., in the motel room where they lived. Law enforcement responded and waited over an hour for the parents to return. When they did, mother reported it was only the second time she had left the children alone and that she home schooled the children. Law enforcement placed a hold on the children. The children reported to the investigating social worker they were left in S.S.’s care for many hours every day and sometimes the parents would not return home until late at night. They further reported that the parents engaged in domestic violence in their presence. The children were not enrolled in school and were vague about the level of instruction they received from mother, with S.S. reporting they had not had any instruction in the past year. S.S. further reported that she believed the family would be better off if she were to be placed in foster care and that when the children were being placed in protective custody, mother hugged all of the children, except for her and stated. “because of you, my kids are being taken away.”

On May 9, 2019, the department filed a dependency petition on behalf of the children, alleging they had suffered or were at substantial risk of suffering serious physical harm or illness within the meaning of section 300, subdivision (b)(1) based on the parents’ failure or inability to adequately supervise or protect the children, as well as domestic violence issues.[3] Father was listed as the presumed father of D.M., K.C.M., M.M., K.L.M., K.B.M., and K.A.M. S.S.’s presumed father was Marcus S., whose whereabouts remained unknown throughout the duration of the proceedings.[4] On May 16, 2019, the juvenile court ordered the children detained from the parents and ordered the parents to have weekly supervised visits.

A few days following removal from the parents, M.M. displayed behavioral issues, including violence toward herself and others. Because of her behaviors, M.M. was hospitalized on a section 5150 hold. Upon discharge, she was transported to a short-term residential therapeutic program (STRTP) home. D.M. had significant delays in reading and writing. He underwent a mental health assessment and was recommended to participate in therapy. K.B.M. and K.A.M. both appeared to have developmental delays.

The parents missed several visits following the detention hearing. When they did visit, they were reported to engage in behaviors such as refusing to conclude visits, becoming angry and shouting when asked to comply with visitation rules, refusing to return the children to care providers following visits, acting in aggressive and threatening manners toward the social worker, and making allegations of physical abuse against the care providers, which were later deemed unfounded. In addition, mother was heard openly blaming S.S. for her siblings being removed.

In June 2019, following a visit with the parents, S.S. engaged in self-harm, also necessitating hospitalization on a section 5150 hold. Upon discharge, she was placed in a foster home. S.S. later reported the parent’s behavior at the June visit—including mother making comments implying S.S. was involved in sex trafficking and father giving her a false ultimatum about placement—was the reason for her self-harm. She stated she did not want to continue with visits with the parents and did not want to reunify with them, leading the department to file a section 388 petition requesting the court order visits between the parents and S.S. be suspended.

Based on the parents’ behavior, they were transitioned to therapeutic visits in August 2019.

The parents did not participate in voluntary services and informed the department they would not do so unless ordered by the court. The parents maintained the children should not have been removed from their care.

At a combined jurisdictional/dispositional hearing conducted on September 9, 2019, the juvenile court sustained the petition, adjudged the children dependents, and ordered them removed from the parents’ custody. The parents were each ordered to participate in reunification services, including parenting classes, a domestic violence assessment and recommended treatment, a substance abuse evaluation and recommended treatment, a mental health evaluation and recommended treatment, and random drug testing. In addition, father was ordered to complete psychological evaluations. Mother was ordered to have supervised visits with the children once per week, and father was ordered to have supervised visits once per month. Visits were suspended with S.S. because the court found they were detrimental.

Mother appealed the dispositional findings and orders arguing, among other things, that the court’s jurisdictional true findings and findings underlying removal were supported by insufficient evidence. In In re J.M. (Aug. 24, 2020, F080123 [nonpub. opn.]), this court affirmed all findings and orders.

Reunification Period

Throughout the reunification period, according to the department’s reports, the parents continued to engage in inappropriate behavior, including refusing to give the children back to their foster parents; harassing foster parents, resulting in foster parents giving up placement of the children as they were in fear of their safety; and showing up to the foster parents’ homes and attempting to deceive them into letting them take the children. The parents openly spoke about the dependency case on YouTube channels and podcasts. They had disclosed foster parents’ personal information and had attempted to disclose the social workers’ personal information. Father continued to speak to the social worker in a threatening manner. Mother filed police reports against the social worker alleging he accepted money for the adoption of the children and accused him of sexually harassing her. The social worker obtained police reports indicating there had been several incidents of domestic violence between the parents since the initiation of the dependency case.

Visits following the disposition hearing continued to be therapeutic supervised visits which, in October 2019, transitioned into “Intensive Supervised Visits.” The parents continued to miss many of the in-person visits. In March 2020, due to the COVID-19 pandemic, the visits began to take place virtually, and the parents attended visits more regularly. In May 2020, the parents’ visits were reduced because of concerns during visitation and their lack of participation in the reunification services. In September 2020, M.M.’s therapist informed the social worker that M.M. appeared to “dysregulate after visitations” as evidenced by her “inability to regulate emotions, deescalate after emotional/behavioral outburst and maintain safety for self and caregivers.” In October 2020, the court made a finding that visits with M.M. were detrimental and suspended visits between her and the parents. As of December 2020, mother and father had not progressed past intensive supervised visits. They were not visiting with S.S. nor M.M. due to detriment findings. Visitation narratives by Comprehensive Youth Services were provided to all parties through discovery.

The parents failed to participate in any of the department’s referrals for reunification services. The parents continued to state the children were removed illegally and that the services ordered were not reflective of their need. In May 2020, however, mother informed the social worker she had participated in services on her own, out of pocket. The social worker determined mother had taken several assessments through a service provider unapproved by Fresno County, which resulted in recommendations for lengthy services in the areas of parenting, domestic violence, substance abuse, and mental health. Mother did not participate in any of the services recommended by that provider; rather, in September 2020, she provided certificates of completion from a different unapproved service provider stating she had completed eight hours of domestic violence education and 52 hours of a parenting class, and that father had completed four hours of an anger management class and eight hours of a parenting class.

A contested combined six-, 12-, and 18-month status review hearing was conducted on January 11, 2021. This was the first status review hearing and was so delayed in part because both mother and father were appointed new counsel frequently due to requests to withdraw by the attorneys.[5] At the review hearing, the parents’ reunification services were terminated. Visits with S.S. were to remain suspended; however, the court reinstated visits with M.M. A section 366.26 hearing was set.

Father sought an extraordinary writ from the order terminating his reunification services arguing the department failed to make reasonable efforts to assist him in reunifying with the children. In Douglas M. v. Superior Court (Apr. 21, 2021, F082255 [nonpub. opn.]), this court denied father’s petition by written opinion, wherein this court concluded the juvenile court’s finding that reasonable services were offered was supported by sufficient evidence.

Permanency Planning

The department’s recommendation for a permanent plan was adoption and termination of parental rights for all children except for M.M., who the department opined was not adoptable. For M.M., the recommendation was foster care with a permanent plan of placement with a fit and willing relative.

S.S.’s care providers wished to adopt her, and S.S. wanted to be adopted by them. S.S. described her relationship with her care providers as “strong, trusting, and healing.” In July 2021, S.S. shared with her CASA that she would like to have in-person visits with mother but not father. She explained she was still “very aware of her mother’s inappropriate behavior but would still like to have her mother know that she loves her and can do so without be[ing] influenced by her.”

D.M.’s care provider wished to adopt him, as well as K.C.M. and K.L.M., who were placed together in another home. D.M. reported that he “love[d] it” at his care provider’s home and wanted her to adopt him. He reported she had given him what he had always wanted, an “actual family.” He had begun refusing to visit with the parents in February 2021. He reported he had spent his whole life with his parents and know what they were like—father was abusive and mother “couldn’t handle stuff.” He reported the parents “haven’t changed.” K.C.M. reported she understood that “adoption is forever,” and only wanted to be adopted if either S.S.’s or D.M.’s care providers would be adopting her. K.C.M. and K.L.M.’s CASA reported that they had not “pined for their parents” nor requested in-person visits.

K.B.M. and K.A.M.’s care providers wished to adopt them. K.B.M. and K.A.M. called the care providers mommy and daddy and appeared comfortable and affectionate toward them. K.B.M. and K.A.M. rarely wanted to be in front of the camera for visits with the parents. They would say hi then “run off.” K.B.M. and K.A.M.’s care providers reported they did not ask about their parents, but K.B.M. did mention being removed and recalled that the parents were unable to take care of him and only recalled negative memories. He had told the prospective parents he wanted to stay with them forever.

K.C.M., K.L.M., K.B.M., and K.A.M.’s CASA reported that visits with the parents observed in April 2021 were “chaotic and dysfunctional.” K.B.M. and K.A.M. appeared “alarmed and overwhelmed” when the parents, K.C.M. and K.L.M. shouted out greetings to them. The CASA observed that the parents did not engage the children in conversation but talked only about themselves. K.C.M. and K.L.M. played during the visits and did not engage with the parents.

The social worker reported that during the visits he observed in June and July 2021, the parents were attentive and paid equal attention to each child. They told the children they loved and missed them and blew kisses. They asked the children questions and showed interest in their lives. The social worker nonetheless opined that the “permanency, safety, and continuity that a plan of adoption can provide outweighs the parent child relationship.”

Section 366.26 Hearing

The first day of the contested section 366.26 hearing was held on October 26, 2021. The department submitted on its reports and requested the court terminate parental rights and order adoption as a permanent plan for all children except M.M. For M.M., the department requested the court order a permanent plan of placement with a fit and willing relative. Minors’ counsel stated she was in agreement with the department’s recommendation. Prior to the hearing, mother’s counsel submitted a statement of contested issues, arguing the court should not terminate parental rights because the beneficial parent-child relationship exception and the sibling relationship exception applied[6] and because mother was not provided with reasonable services.

Mother’s first witness was social worker Ryan Atendido. He supervised a visit on June 1, 2021, between mother, father, M.M., K.B.M. and K.A.M. He testified the visit went well. M.M. was excited to see the parents and K.B.M. and K.A.M. were on camera briefly then walked away. Atendido testified mother and father were attentive to the children, engaged, and showed interest in school and how the children were doing. D.M. had shared with Atendido that he had not spoken to his parents for over a year and was adamant he did not want to see them. S.S. had expressed some interest in meeting with mother, but maintained she wanted to be adopted.

At sibling visits, the children were “very excited” to see one another. When asked whether the children want to continue seeing the parents and siblings, Atendido stated K.C.M. and K.L.M. wanted to see S.S., K.B.M. and K.A.M. more often. D.M. did not request additional visits with his siblings but wanted to continue seeing them. Atendido testified the care providers did “a great job” in making sure the siblings stayed in contact.

Mother testified on her own behalf. Mother testified her last in-person visit with the children, with the exception of S.S., was in March 2020. Since then, visits had been over Zoom and it was “impossible to get two minutes” of talk time with the children. She testified she attended all of her visits. The last time she visited with S.S. was in August 2019. Her last in‑person visit with D.M. was in March 2020, and he asked her for her sweater so he could keep her scent with him. Her last virtual visit with D.M. was in December 2020; during that visit, when she asked him what he wanted for Christmas, he said, “ ‘Well, you can’t give it to me anyway. I just want to go home.’ ” After that, he became upset and only went to one more visit. Mother opined that D.M. was refusing to visit because “it’s too painful for him” because he wants to come home. She visited regularly with K.C.M., K.L.M. and M.M., but the social worker told her that the care providers were refusing to bring K.B.M. and K.A.M. to the visits.

Mother testified when she visited the children, they told her they love her “[a]ll the time.” She stated that “[e]very other word” was “ ‘Mommy, I want to come home. Mommy, I love you. When can I come home? I want to kiss you. I love you.’ ” She explained that the word “love” did not describe the connection she has with the children. She testified she had a great relationship with her older children. Mother testified she had asked the social worker for in-person visits several times.

Mother stated she did not “really have any evidence of the relationship” that the children had with one another during the dependency proceedings. She believed they would benefit from visiting with one another more because they were raised together and did everything together before removal. She testified the children would benefit from increased visitation with her because she was a doctor; she could teach them, raise them, and give them love that no one else could give them. Mother also testified as to the relationship between the dependent children and their three older siblings who were not parties to the dependency proceedings.

Mother’s counsel concluded direct examination by asking mother, “Do you think there is anything else that the Court needs to know about your case?” Mother responded that her two oldest children were not removed from her, and one of them still lived with her. She testified that her family’s relationship had “always been super strong, super close.” She testified that father had adopted S.S. and two of her older children and “he was revered and proclaimed as this kind of hero in taking on these children that weren’t his.” She stated that father was a veteran and was going through pain because of the proceedings. She testified the “pain the kids are going through is horrible to even imagine.” She stated she wanted the court to know those specific points and testified that she got her doctorate and did “all of this stuff to change my life around for them” and stated that she was “beg[ging] and “plead[ing]” the court not to “let that go unrewarded.”

Mother also called father to testify. Father described his bond with the children prior to detention as “[f]or the most part great.” He testified there was no reason for the children to be removed from mother and him. He testified the social worker kept S.S. from them and the same thing was happening with D.M. He testified the reason S.S. started self-harming after removal was because of the pain she was going through and the home she was in. Father stated the children “constantly” expressed a desire to see their siblings more and asked to see father more as well.

Father testified that before removal, the family did everything together. They had family dinner together every night between 5:00 p.m. and 6:00 p.m. The children were homeschooled; father handled math and P.E., and mother taught all the other subjects. Everything was scheduled in their house, and the children participated in extracurricular sports like soccer, football, track, and running. Sports were organized through a home school association, through which the children also participated in enrichment classes in a classroom and attended social events with other children in the county. The family attended the enrichment activities every week and also had “Friday night movie night” every week.

During closing argument, the minors’ attorney stated again she was in agreement with the department’s recommendation. She stated that she had “no doubt” the parents and children loved each other, but “any benefit that the children would have received through maintaining that relationship … is far outweighed by benefits of adoption.” She stated K.C.M. had wavered about whether she wanted to be adopted, but as of the outset of the hearing, she was “okay” with being adopted. Finally, minors’ counsel advised that none of the siblings were claiming the sibling relationship exception applied.

Mother’s counsel argued the beneficial parent-child relationship and sibling relationship exceptions to termination of parental rights applied. He further argued that the exception was “difficult … to prove … because visits haven’t been what they should be” because the department had provided unreasonable visitation and thus had interfered with the parents’ ability to reunify. Counsel argued that overall the visits had been positive and the court should consider extended reunification services or a permanent plan that does not involve termination of parental rights, like guardianship.

The court delivered its ruling on November 8, 2021. The court noted “the parents’ testimony was entirely inconsistent with the facts that have been established in this case and with the law of the case.” The court found by clear and convincing evidence the children, with the exception of M.M., were adoptable and that adoption was the appropriate permanent plan for the other children.

The court rejected mother’s reasonable services argument, noting the authority she had provided was inapplicable to the stage in the proceedings. The court quoted this court’s opinion denying father’s writ petition challenging the court’s finding of reasonable services at the status review hearing at length before stating that the issue of reasonable services is not an issue before the court at a section 366.26 hearing and that this court had made a finding that reasonable services were offered in the case.

As for the application of the beneficial parent-child relationship exception, the court noted that the parents had had their visits “greatly suspended or limited because of their action[s] in this case that posed a danger to the children” and that they had not demonstrated by a preponderance of the evidence they had maintained regular visitation and contact in a manner consistent with the court’s orders and the children’s needs. The court went on to say it was not aware of case law that requires the parents’ attempts at visits to be consistent with the children’s best interest and court orders and therefore would not “exclude the parents from the parental bond exception on the first prong [of the exception].”

The court went on to state the parents had not met their burden to show the benefit of the parental relationship outweighed the benefit of adoption. The court noted it “cannot make a finding that these parents even rise to the level of a friendly visitor. There is no credible evidence that continuing the relationship with the parents would outweigh the benefit and permanency of adoption for the children other than [M.M.]” The court stated, “all of the evidence, every decision by the trial court, both decisions by the 5th District Court of Appeal, every CASA report, all evidence before the Court, other than the parents’ self-serving testimony, is that this was not an intact family of ten siblings that functioned well, where children were protected and safe.”

The court also found the parents had not met their burden to prove the sibling relationship exception applied, noting that none of the children were asserting the exception applied.

As for M.M., the court followed the recommendation and ordered a permanent plan of placement with a fit and willing relative.

DISCUSSION

I. ICWA

A. General ICWA Principles

ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards that a state court, except in emergencies, must follow before removing an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016) 1 Cal.5th 1, 7–8.) In any “proceeding for the foster care placement of, or termination of parental rights to, an Indian child,” the Indian custodian and the Indian child’s tribe have the right to intervene (25 U.S.C. § 1911(c)), and may petition the court to invalidate any foster care placement of an Indian child made in violation of ICWA (25 U.S.C. § 1914; see § 224, subd. (e)).

An “Indian child” is defined in ICWA as an unmarried individual under 18 years of age who is either (1) a member of a federally recognized Indian tribe, or (2) is eligible for membership in a federally recognized tribe and is the biological child of a member of a federally recognized tribe. (25 U.S.C. § 1903(4) & (8); see § 224.1, subd. (a) [adopting federal definitions].) The court and county child welfare department “have an affirmative and continuing duty to inquire whether a child,” who is the subject of a juvenile dependency petition, “is or may be an Indian child.” (§ 224.2, subd. (a); see In re Isaiah W., supra, 1 Cal.5th at p. 9; Cal. Rules of Court, rule 5.481(a).)

In California, when the court or social worker has “reason to believe”[7] (but not sufficient evidence to determine there is “reason to know”[8]) that an Indian child is involved in a proceeding, “further inquiry regarding the possible Indian status of the child” is required. (§ 224.2, subd. (e).) Section 224.2, subdivision (e)(2) enumerates three duties of further inquiry: (1) interviewing the parents, Indian custodian, and extended family members, to gather biographical information regarding the child; (2) contacting the Bureau of Indian Affairs and the State Department of Social Services for assistance in identifying tribes with whom the child may be affiliated; and (3) contacting tribes, or any other person who may reasonably be expected to have information regarding the child’s membership or eligibility for membership in a tribe. (§ 224.2, subd. (e)(2)(A)-(C).)

We review the juvenile court’s finding that ICWA is inapplicable for substantial evidence. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.)

B. Relevant Factual Background

On May 9, 2019, mother executed a “PARENTAL NOTIFICATION OF INDIAN STATUS” (ICWA-020) form indicating she had no Indian ancestry as far as she knew. On May 10, 2019, father executed an ICWA-020 form indicating he was or may be a member of a Blackfoot tribe.

On June 4, 2019, father executed another ICWA-020 form indicating he had “Shawnee/Cherokee” ancestry on his grandfather’s side and Blackfoot ancestry on his grandmother’s side. On June 4, 2019, mother executed another ICWA-020 form indicating she may have Cherokee ancestry.

On June 6, 2019, the department mailed a “NOTICE OF CHILD CUSTODY PROCEEDING FOR INDIAN CHILD” (ICWA-030) form to the Bureau of Indian Affairs, the Department of the Interior, and the ICWA directors for several Shawnee, Blackfeet, and Cherokee tribes. The department received no responses from any of the tribes that indicated the children were Indian children within the meaning of ICWA.

On September 9, 2019, in response to a motion by the department, the court found that ICWA was not applicable to the proceedings.

The department’s section 366.26 report dated May 3, 2021, indicated that on March 22, 2021, mother stated her grandparents’ family and father’s family are on the Dawes rolls and they are both from Choctaw and Creek Tribes in Oklahoma. Mother stated her grandmother was born in Oklahoma. There is no indication on the record this claim was investigated any further.

B. Analysis

The parties agree mother’s March 2021 statement gave the department and court reason to believe the children were Indian children within the meaning of ICWA, and that further inquiry was necessary. As the record is silent as to whether mother’s statements were adequately investigated, the parties agree that limited remand is required to ensure ICWA compliance. We agree with the parties.

Upon remand, the department shall investigate mother’s claim that the children have Choctaw and Creek ancestry and mother’s and father’s families are on the Dawes rolls to determine whether any of the children are Indian children within the meaning of ICWA. The department must comply with all federal and state provisions outlining their duties of inquiry and further inquiry, and, if applicable, formal notice. The court must ensure ICWA inquiry and notice compliance with regard to mother’s new claim of Indian ancestry before making a finding as to the applicability of ICWA to the proceedings. (§ 224.2, subd. (i)(2).)

II. Guardian Ad Litem Order

A. Relevant Background

The section 366.26 hearing was originally set for May 5, 2021. It was continued, however, because mother’s counsel had requested to withdraw, and mother was appointed new counsel. The hearing was then set for July 14, 2021. The hearing was further continued to October 12, 2021, due to father being appointed new counsel because his counsel had requested to be relieved due to a conflict. An interim review hearing was set for August 25, 2021.

At the August 25, 2021 hearing, at which both parents were present, the court stated it was considering appointing guardians ad litem for each parent because it appeared they were unable to assist counsel in a rational manner. In support of the court’s statement, it gave a history of all the attorneys the parents had had who conflicted out of the case. The court noted the parents had a history of showing up to the children’s placements unapproved and unannounced, leading care providers to give notice for placement to be changed.

The court noted, “Most commonly a request for guardian ad litem will come from counsel for the parent. Whatever it is that is occurring in the context of the attorney/client relationship is such that no attorney may have been on this case long enough to have made this request. That whatever … the parents are doing to confront their attorney or to cause the attorneys to conflict is not information that can be on the record. The Court cannot inquire of the attorney. But based on the history of the case, the parents’ conduct regarding the social workers, the visitation agencies, the schools and care providers, the Court certainly has reason to believe that something is happening within the context of the attorney/client relationship such that the attorneys are not able to request a guardian ad litem.”

The court went on to state “the case is at the permanency point, there are p[ro]spective adoptive parents who have been identified for the children, the children are wishing to move forward, the law requires that … that the matter be brought to a conclusion in a timely basis, that by the action of the parents the case is unable to proceed such that the children are being deprived of their opportunity to have timely hearings, the Court concludes that it may be expedient and necessary to appoint a guardian ad litem.”

The court explained it would be trailing the hearing for a week but that it would first be advising the parents of the effects of the potential appointment. The court explained the appointment of a guardian ad litem was “a very serious step.” The court informed the parents the appointment removed decision-making power from the parent and transferred it to the guardian. The court further explained, “Based on the case file, the history of this case, the constant delays caused by the parents, the clear actions of the parents that cannot be logically or rationally explained as set forth in the JV-180 response that I referred to today,[[9]] it appears to this Court that the parents are unable to assist counsel in a rational manner in the conduct of a defense.”

The court concluded by advising the parents they were not being asked whether they consented to the appointment that day but they would have the opportunity to consult with their attorneys before the conclusion of the hearing the following week. The court noted its comments were to be construed as notice of the reason the guardian ad litem was being considered, the consequences of that appointment, and the legal standard for appointment. The court advised the parents that at the second portion of the hearing occurring the following week, they would have the opportunity to be heard and would be allowed to make a statement. The court noted father, though his mic was muted, was shouting and “using adamant gestures toward the Court,” engaging “in what can best be described as a rant.” The court ordered the parents to be personally present at court for the second part of the hearing.

At the second portion of the hearing on September 2, 2021, the parents were not present. The parents checked in prior to the hearing but were unable to be located when the hearing began. Father’s attorney requested an in camera hearing. When back on the record in open court, the court announced its decision, stating it found “it is necessary for the reasons set forth on the record beginning on August 25th to appoint a guardian ad litem” for father. The court explained litigation control was removed from father and transferred to the guardian ad litem. The court turned to mother’s attorney, and mother’s attorney stated he was submitting on the discussion the prior week and agreed with the court’s opinion. Mother’s attorney noted that if the court would like specifics about his attorney-client relationship with mother, he would request an in camera hearing. The court stated it did not wish to intrude on the attorney-client relationship, so mother’s attorney went on to state that he thought “objectively on the response to the JV180 filed in—some time around April of this year in combination with the difficulties with counsel that a guardian ad litem should be appointed.” The court granted mother a guardian ad litem without further discussion.

B. Timeliness

The department contends, as a threshold matter, that we are procedurally barred from considering mother’s contentions regarding the guardian ad litem appointment because her notice of appeal was untimely as to that order. The order appointing the guardian ad litem was made September 2, 2021; the order terminating parental rights was made November 8, 2021; and mother’s notice of appeal identifying the termination order as the order being appealed from was filed December 13, 2021. Thus, her notice of appeal was filed within the time to appeal[10] from the order terminating her parental rights but after the time to appeal from the order appointing the guardian ad litem had elapsed.

Mother contends that because the guardian ad litem order was made during the course of section 366.26 proceedings, we can properly consider her contention in her appeal from the section 366.26 order. In the alternative, she contends her counsel was ineffective for failing to appeal the guardian ad litem order.

We will consider mother’s contentions regarding the guardian ad litem order on its merits. A guardian ad litem order is a unique order which divests control over litigation from the parent. In the present case, there is no indication on the record that mother was advised of any appellate rights with regard to the guardian ad litem order. Neither mother’s attorney, who was in agreement that a guardian ad litem should be appointed, nor mother’s guardian ad litem would be expected to seek review of the order. (See In re Enrique G. (2006) 140 Cal.App.4th 676, 683.) Mother raised the guardian ad litem issue at what appears to be the soonest opportunity, as it does not appear the court rendered any appealable orders between the time it appointed the guardian ad litem and the time it ordered termination of parental rights. We therefore conclude the issue regarding the guardian ad litem order is properly raised in mother’s timely appeal from the order terminating her parental rights. We will consider it on its merits.

C. Analysis

“In a dependency case, a parent who is mentally incompetent must 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. [Citations.] 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.” (In re James F. (2008) 42 Cal.4th 901, 910 (James F.).) Before appointing a guardian ad litem for the parent in a dependency case, the court must find by a preponderance of the evidence that the parent meets the requirements of either Probate Code section 1801[11] or Penal Code section 1367.[12] (James F., at p. 916; In re Sara D. (2001) 87 Cal.App.4th 661, 667.)

Mother contends the court erred by appointing a guardian ad litem for her because the evidence was insufficient to support a finding of incompetence. She spends much of her briefing pointing out the similarities between the present case and the Second Appellate District, Division Seven case, In re Samuel A. (2021) 69 Cal.App.5th 67 (Samuel A.), where the appellate court reversed a court’s guardian ad litem order because there was no evidence the parent was incompetent but it appeared the juvenile court had used the guardian ad litem procedure to “restrain a problematic parent.” (Id. at p. 70.) The Samuel A. court held doing so was error even where the parent “unreasonably interferes with the orderly proceedings of the court or who persistently acts against her own interests or those of her child.” (Ibid.) Mother also contends the juvenile court erred by inappropriately taking judicial notice of the court file in making its finding.

Without determining whether the court’s appointment was error, we conclude reversal is not necessary because any error was clearly harmless under the circumstances of the present case. The parties agree the alleged error is analyzed for prejudice (as opposed to structural error that is reversible per se). (See James F., supra, 42 Cal.4th at p. 918; In re Esmeralda S. (2008) 165 Cal.App.4th 84, 93 (Esmeralda S.).) Our Supreme Court has explained that when an error is amenable for harmless error analysis, it may be deemed harmless “f the outcome of a proceeding has not been affected.” ([i]James F., at p. 918.)[13]

On the issue of harmlessness, mother first asserts the fact that the order was supported by insufficient evidence itself rendering the alleged error prejudicial, again citing Samuel A., where the court reached that same conclusion. (Samuel A., supra, 69 Cal.App.5th at pp. 82‒83, fn. 10 [“the error in appointing a guardian ad litem for a parent without a supportable finding of incompetence is prejudicial under any standard.”].) We do not find this aspect of Samuel A. persuasive as applied to the present case; it is distinguishable as it was in a different procedural stance. In Samuel A., the juvenile court had appointed the guardian ad litem during the reunification period, and the parent directly appealed the guardian ad litem order. (Id. at pp. 77‒78.) Therefore, because of the procedural stance of the case, the appellate court was considering the prejudicial effect of the error on the order before it, which was the guardian ad litem order itself and not any subsequent orders. In addition, the appellate court had little on the record before it to determine how the guardian ad litem appointment would affect the remainder of the proceedings.

In contrast, when a parent, as mother here, challenges a guardian ad litem order in an appeal from an order terminating parental rights, the appellate court is in a much better position to assess potential prejudice on the proceedings as a whole rather than the specific hearing where the guardian ad litem was appointed. Esmeralda S. is more analogous to the present case procedurally than Samuel A. Esmeralda S. was an appeal from an order terminating parental rights where the appellate court considered a due process challenge to an order appointing a guardian ad litem earlier in the proceedings. There, the juvenile court had made no inquiry into whether the appellant parent was incompetent, and the appellate court concluded this, as well as other factors, constituted a due process violation. (Esmeralda S., supra, 165 Cal.App.4th at p. 92.)

On the question of harmlessness, the Esmeralda S. court considered whether it should analyze whether “the guardian would have been appointed despite the violation” or “termination of parental rights would have occurred despite the violation.” (Esmeralda S., supra, 165 Cal.App.4th at p. 93.) The Esmeralda S. court concluded “the juvenile court’s error may be deemed harmless if the outcome of the review hearings and the termination hearing were not affected by the violation” and thus “it is not necessary to show that the guardian would have been appointed despite the court’s violation.” (Ibid.)

In so concluding, the Esmeralda S. court relied on the policy analysis of James F. “where the [Supreme C]ourt stresses the importance of not needlessly reversing dependency judgments. (James F., supra, 42 Cal.4th at p. 918.)” (Esmeralda S., supra, 165 Cal.App.4th at p. 93.) The Esmeralda court explained, “The [James F.] court cites the ‘strong public interest in prompt resolution of these cases so that the children may receive loving and secure home environments as soon as reasonably possible.’ ” (Ibid.) The Esmeralda S. court further explained that “[t]he alternative test—that an error is harmless if the guardian would have been appointed despite the error—could easily lead to needless reversals, because the fact that a guardian might not have been appointed does not mean a different outcome would have occurred in the review and termination hearings.” (Id. at p. 94.)

We agree with the Esmeralda S. court and conclude that even if we were to credit mother’s claim of error, this would not automatically render the alleged error prejudicial. Rather, in the interest of judicial economy and the children’s best interests, we examine whether the alleged error affected the outcome of the subsequent section 366.26 hearing. In doing so, we conclude the alleged error is harmless.

Mother sets forth two specific instances of prejudice. First, she contends she was prejudiced because mother’s counsel did not request a bonding study between mother and the children. Mother misrepresents the record. Mother’s counsel filed a section 388 petition on August 23, 2021, before the guardian ad litem was appointed, requesting the court to order a bonding study or, in the alternative, a risk assessment. The court issued a written ruling on mother’s request on August 26, 2021, also before mother’s guardian ad litem was appointed, summarily denying mother’s request because it did not state new evidence or a change of circumstances and because the request did not promote the children’s best interests. No party sought any appellate relief as to the court’s order to our knowledge, and the order is now final. (See In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150 [“an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order”].) As the request was both made and ruled on before the guardian ad litem was appointed, mother cannot show the appointment had any effect on whether the court would have ordered mother and the children to participate in a bonding study.

Mother also contends she suffered prejudice as a result of the appointment because the court denied her request for a continuance of the section 366.26 hearing on October 26, 2021. At the beginning of the hearing on that date, mother’s counsel informed the court that mother wanted him to make a “California National argument” and he had not had the opportunity to research it. He indicated mother had written a motion but was uncertain as to whether it had been filed. He contended mother’s argument was that “California may not have jurisdiction over her.” The court denied the request on the ground that mother had a guardian ad litem appointed and the court would not entertain any motion filed by mother in propria persona.

We do not find this claim constitutes reversible prejudice. Though the court grounded its denial on the basis that mother had a guardian ad litem appointed, we do not find it likely the court would have granted the continuance on its merits. Continuances in dependency cases are governed by section 352, which provides continuances may be granted only when it is not contrary to the interest of the children, and that “n considering the minor’s interests, the court shall give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.” ([i]Id., subd. (a)(1).) When mother requested her continuance, the section 366.26 hearing had been continued several times. The basis for the request was so that mother could object to the court’s jurisdiction over her. In dependency cases, “[t]he acquisition of personal jurisdiction over the parents through proper notice follows as a consequence of the court’s assertion of dependency jurisdiction over their child.” (In re I.A. (2011) 201 Cal.App.4th 1484, 1491.) “Parental personal jurisdiction allows the court to enter binding orders adjudicating the parent’s relationship to the child [citation], but it is not a prerequisite for the court to proceed, so long as jurisdiction over the child has been established.” (Ibid.) Notably, mother appealed the jurisdictional and dispositional findings and orders, which this court affirmed, and raised no argument the court had no jurisdiction over her, and raises no argument in the present appeal regarding the propriety of the juvenile court’s jurisdiction over her or the children. Mother cannot show the juvenile court would have granted the continuance had it entertained the request on its merits nor that, had mother been allowed to present her jurisdictional argument, it would have affected the outcome of the section 366.26 hearing.[14]

Here, it is not conceivable the outcome of the section 366.26 hearing would have been different but for the guardian ad litem appointment. The appointment occurred after reunification services had been terminated and shortly before the section 366.26 hearing. At this stage, the issues before the court are limited. The juvenile court must determine whether the child is adoptable. If the court finds the child is adoptable, it must terminate parental rights unless the parent proves by clear and convincing evidence a statutory exception applies. (§ 366.26.) In the present case, the section 366.26 hearing had been continued twice, and the department’s reports had already been prepared. Thus, the potential issues to be contested were further narrowed by the particular circumstances of the case.

Mother’s counsel set a contested hearing on the issues of whether the beneficial parent-child relationship or sibling relationship exceptions applied as well as whether mother was provided with reasonable services, an argument later deemed inappropriate by the juvenile court. Counsel called witnesses and examined them appropriately to advance these arguments and submitted oral argument at the conclusion of the hearing. Mother testified at the hearing and was able to express her views about her relationship with the children and their relationships with each other. In addition, mother’s counsel asked mother an open-ended question at the conclusion of his direct examination regarding anything else she had to add that was not addressed by his questions. The guardian ad litem did not speak at the hearing.

Reviewing the record, it appears counsel advanced the only appropriate arguments, and even one inappropriate argument regarding whether visitation was reasonable. There is no evidence that any of the children were not adoptable, as they all had care providers who wished to adopt them, nor that any other statutory exception to termination of parental rights applied.

Further, evidence that the beneficial parent-child relationship exception applied was relatively weak, which raises the question of what else mother could have done to assist counsel in advancing this claim. The court had made a detriment finding as to mother having visitation with S.S.; mother consistently blamed S.S. throughout the proceedings for the removal of the younger children. Though S.S. expressed toward the end of the proceedings that she wished to see mother, she was still in support of being adopted. D.M. had no desire to see his parents and wished to be adopted. K.B.M. and K.A.M. were very young when removed, bonded to their care providers, and did not care to meaningfully participate in visits with the parents; K.B.M. only recalled negative memories. K.C.M. and K.L.M. had the most positive visits with the parents out of all the children but did not request to see them more and appeared to be doing well out of their care.

The record demonstrates life before removal was characterized by neglect and instability and caused the older children not to want to continue their parent-child relationships with the parents. The parents’ behavior throughout the case had a negative impact on the children’s placements, and the parents consistently failed throughout the case to make any meaningful effort to reunify with the children, demonstrating they tended not to act in the children’s best interests. This all amply supported a finding that any benefit of continuing the relationship would be outweighed by the stability and permanence of adoption.

Similarly, it was unlikely the court would have applied the sibling relationship exception in light of minors’ counsel’s argument that none of the children were requesting the court to apply it.

We cannot see how the appointment of the guardian ad litem had any effect on the proceedings given the circumstances of the case at the time of the section 366.26 hearing, the fact that counsel advanced the appropriate arguments, and that mother was able to testify freely.

Notably, mother does not challenge the court’s adoptability findings nor the court’s finding that the beneficial parent-child relationship or sibling relationship exceptions did not apply. She does not raise any ineffective assistance of counsel claims and did not seek any writ relief to our knowledge based upon counsel’s failure to investigate vital leads or present additional evidence or arguments to the court that would in any way have affected the outcome of the section 366.26 hearing.

We do not mean to suggest that an erroneous guardian ad litem appointment is never prejudicial when made at this stage in the proceedings, but rather conclude, after careful consideration of the entire record, that under the particular circumstances of the present case, it was not.[15]

We conclude any error in appointing mother a guardian ad litem was harmless.

DISPOSITION

The juvenile court’s November 8, 2021 order terminating parental rights is conditionally reversed. The matter is remanded to the juvenile court for the department to conduct an adequate inquiry as required by section 224.2, and for any further proceedings resulting therefrom. If, after the court finds adequate inquiry has been made consistent with the reasoning in this opinion, the court finds ICWA applies, the court shall vacate its existing order and proceed in compliance with ICWA and related California law. If the court finds ICWA does not apply, the section 366.26 order shall remain in effect. In all other respects, the order is affirmed, as are the court’s September 2, 2021 order appointing mother a guardian ad litem and any and all other subsequent orders.

DE SANTOS, J.

WE CONCUR:

LEVY, ACTING P. J.

MEEHAN, J.


[1] All further undesignated statutory references are to the Welfare and Institutions Code.

[2] Douglas M. (father) separately appealed from the same order terminating his parental rights as to these children, with the exception of S.S., for which he was not the biological or presumed father. We consider his appeal in In re D.M. et al., F083614.

[3] Substance abuse issues were also alleged, but the juvenile court ultimately struck the allegations at the combined jurisdictional/dispositional hearing.

[4] Marcus S. did not participate in the proceedings below and is not a party to this appeal. In this opinion, when we refer to “the parents” collectively, we refer to Joanna M. and Douglas M.

[5] Both parents were appointed counsel at the detention hearing on May 16, 2019. Subsequently, due to conflicts declared by their attorneys, mother was appointed new counsel on May 28, 2019, September 3, 2019, February 18, 2020, November 4, 2020, and May 5, 2021. Father was appointed new counsel on August 6, 2019, June 23, 2020 (as a result of a Marsden motion by father rather than a conflict declaration), November 4, 2020, and July 14, 2021.

[6] Section 366.26, subdivision (c)(1) provides that if the court finds by clear and convincing evidence that a child is adoptable, it must terminate parental rights unless an enumerated exception applies. The court may decide not to terminate parental rights if it “finds a compelling reason for determining that termination would be detrimental to the child due to [circumstances where] [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship [(the beneficial parent-child relationship exception)]” (§ 366.26, subd. (c)(1)(B)(i)) or “[t]here would be substantial interference with a child’s sibling relationship [(the sibling relationship exception)]” (id., subd. (c)(1)(B)(v)).

[7] “There is reason to believe a child involved in a proceeding is an Indian child whenever the court, social worker, or probation officer has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe. Information suggesting membership or eligibility for membership includes, but is not limited to, information that indicates, but does not establish, the existence of one or more of the grounds for reason to know enumerated” in section 224.2, subdivision (d)(1)-(6). (§ 224.2, subd. (e)(1).)

[8] These enumerated grounds for “reason to know” are: “(1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the child’s extended family informs the court that the child is an Indian child[;] [¶] (2) The residence or domicile of the child, the child’s parents, or Indian custodian is on a reservation or in an Alaska Native village[;] [¶] (3) Any participant in the proceeding, officer of the court, Indian tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child[;] [¶] (4) The child who is the subject of the proceeding gives the court reason to know that the child is an Indian child[;] [¶] (5) The court is informed that the child is or has been a ward of a tribal court[;] [¶] [and/or] (6) The court is informed that either parent or the child possess an identification card indicating membership or citizenship in an Indian Tribe.” (§ 224.2, subd. (d); see 25 C.F.R. § 23.107(c) (2022).)

[9] The parents had filed a section 388 petition requesting in-person visits. The department filed a response detailing incidents of the children’s care providers requesting placement changes due to behavior by the parents including showing up at the care providers’ homes unapproved and unannounced and engaging in harassing behaviors.

[10] California Rules of Court, rule 8.406(a)(1), provides that in juvenile appeals, “a notice of appeal must be filed within 60 days after the rendition of the judgment or the making of the order being appealed.”

[11] Probate Code section 1801 provides in relevant part that a “conservator of the person may be appointed for a person who is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter” (id., subd. (a)); a “conservator of the estate may be appointed for a person who is substantially unable to manage his or her own financial resources or resist fraud or undue influence” (id., subd. (b)); and a “limited conservator of the person or of the estate, or both, may be appointed for a developmentally disabled adult” (id., subd. (d)).

[12] Penal Code section 1367 provides in relevant part that a “defendant is mentally incompetent … if, as a result of a mental health disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” (Id., subd. (a).)

[13] The question of whether the appropriate harmless error standard is harmless by clear and convincing evidence rather than harmless beyond a reasonable doubt is somewhat of an open question. (See James F., supra, 42 Cal.4th at p. 911, fn. 1.) We need not decide the issue here because we conclude the alleged error is harmless under any standard.

[14] Mother also contends, notwithstanding these specific claims of prejudice, that we must reverse because, in a general sense, we cannot speculate about what might have happened in the litigation subsequent to the guardian ad litem appointment, citing In re Sara D., supra, 87 Cal.App.4th 661 and In re Jessica G. (2001) 93 Cal.App.4th 1180. We reject this claim because “it is simply inefficient to reverse a dependency judgment based upon speculation that an offending parent may have handled the case differently than his or her guardian ad litem.” (Esmeralda S., supra, 165 Cal.App.4th at pp. 95‒96; see In re Enrique G., supra, 140 Cal.App.4th at pp. 686‒687.)

[15] Mother does not appeal from any orders regarding M.M. though we note there is no evidence the guardian ad litem appointment resulted in any prejudice to mother with regard to the juvenile court’s disposition in M.M.’s case, and the record supports the permanent plan selected for her was appropriate.





Description Petition, Detention, Jurisdiction, and Disposition
In May 2019, the department received a referral alleging general neglect when six year-old M.M. (not subject to this proceeding) was found wandering alone near a busy street. M.M. and her siblings, then 11-year-old D.M., then eight-year-old K.C.M., then four-year-old K.L.M., then three-year-old K.B.M., and then 10-month-old K.A.M., were all in the care of their 14-year-old sister, S.S., in the motel room where they lived. Law enforcement responded and waited over an hour for the parents to return. When they did, mother reported it was only the second time she had left the children alone and that she home schooled the children. Law enforcement placed a hold on the children. The children reported to the investigating social worker they were left in S.S.’s care for many hours every day and sometimes the parents would not return home until late at night.
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