In re Ricardo G.

Filed 8/25/08 In re Ricardo G. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Brenda H. (mother) appeals from an order of the juvenile court terminating her parental rights with respect to her three-year-old son, Ricardo H. Mother contends that the court denied her due process because it failed sua sponte to address her need for a guardian ad litem after being presented with evidence of her incompetence. We affirm because mother forfeited her right to raise this issue on appeal, both by failing to raise the issue in the trial court and by failing to file a petition for an extraordinary writ. In all events, despite mothers undisputed mental deficiencies, the record does not contain evidence of incompetence that required inquiry by the court. Moreover, any possible error in this regard was plainly harmless.

Facts and Procedural Background

On May 23, 2006, the San Mateo County Human Services Agency (Agency) filed a petition under Welfare and Institutions Code[1] section 300, subdivision (b)[2] because mother left Ricardo with his godmother and failed to retrieve him. Mother underwent several psychiatric evaluations over the course of the dependency proceedings until reunification services were terminated on January 23, 2008. All of these evaluations were included in status reports presented to the court.

At the jurisdictional and dispositional hearings on July 6, 2006, the court received a report from Dr. Ubaldo Sanchez regarding a psychological evaluation that he performed on June 16, 2006. Sanchez determined that the mother is immature, has very poor judgment and has paranoid narcissistic features that affect her parenting. Dr. Sanchez diagnosed the mother with Adjustment Disorder [and] Personality Disorder with Borderline Intellectual Functioning. The juvenile court sustained an amended petition, declared Ricardo a dependent of the court, placed him out of home, and ordered reunification services.

At an interim review hearing on September 6, 2006, the court ordered mother to participate in a mental health assessment by therapist Martha Madrigal. Madrigal reported that the mother continues to confuse appointments and mix up the dates as well as the purpose of each [mental health] service. She stated that mother was hearing voices on a daily basis and that the voices tell her to hurt herself.

Mother began receiving weekly counseling from a therapist and weekly medication management sessions with psychiatrist Dr. Cynthia Chatterjee. At the six-month review hearing on January 4, 2007, Chatterjee observed that the prescribed medications had quickly eliminated mothers paranoia. In a letter to the agency, Chatterjee opined that mother suffered from Major Depressive Episode with Psychotic Features, but that she had been in stable condition for three months and had made substantial progress in treatment. However, later in January, mother complained of being stalked and receiving death threats and also revealed that she had run out of her medication. Chatterjee stated that she was not sure if these complaints were based on real events given the patterns of the inconsistencies in the mothers stories as well as the mothers past history of paranoia.

At the 12-month review hearing on September 25, 2007, the court was presented with an updated psychological evaluation by Dr. Leopold Villela. Villela diagnosed mother with Delusional Disorder . . . and Mild Mental Retardation with Paranoid Personality Features. He opined that Mother is suffering from a serious psychological dysfunction that affects her thinking, her emotional state, and her behavior and that she will continue to show this pattern of dysfunctional behavior even if services are provided to her. The court also was advised that Chatterjee had changed mothers diagnosis to Schizoaffective Disorder based on her auditory and visual hallucinations. Chatterjee felt that mother had made substantial progress in treatment and that her condition is chronic and not curable, but with continued medication and therapy the symptoms can be controlled.

In anticipation of the 18-month review, mothers social worker recommended that a hearing to terminate mothers parental rights be scheduled pursuant to section 366.26 because [t]he mother continues to have multiple changes in her housing and employment, which impacted the mothers ability to attend regularly scheduled appointments with service providers. The mothers instability and chaotic lifestyle continue to pose a risk to the child who continues to suffer form Post Traumatic Stress Disorder and Reactive Attachment Disorder. The child continues to be in need of consistency, predictability, and structure to address his current mental health needs; however, given the mothers chaotic lifestyle, she has not been able to demonstrate a capacity to provide for these special needs of the child, and the mother has failed to make substantive progress in therapeutic and court-ordered services and failed to gain insight about her neglect of the child. The court scheduled a section 366.26 hearing and mother did not seek an extraordinary writ challenging that order.

Following the presentation of evidence at the section 366.26 hearing on January 23, 2008, at which mother testified, the court terminated mothers parental rights and fixed adoption as the permanent plan for Ricardo. The court observed, This is not a difficult case. Its a sad case because of mothers obvious deficits and serious mental health issues, but it is not a difficult case. There is no way, based on everything I know about this case, the evidence presented at this hearing, and everything in the report and addendum, that leaves me to believe that there is any possibility, even remote, that mother could step up to the plate, solve the mental health issues, which are rampant, and provide any kind of a normal life for this little boy who is so desperately in need of stable, consistent parenting.

Mother has filed a notice of appeal from this order.

Discussion

I. Forfeiture of Claim

Mother does not dispute the sufficiency of the evidence to support the courts findings and conclusions, but makes the single contention that her due process rights were violated because the court did not, sua sponte, address whether to appoint her a guardian ad litem. She contends that [w]hen it became apparent to the juvenile court that [she] was incapable of understanding basic instructions, became confused with dates, did not understand the purpose of the services being offered to her, and was suffering from mild retardation and a serious psychological dysfunction that affected her thinking, the juvenile court should have, sua sponte, addressed the question of whether a guardian ad litem should have been appointed for her. This question should have been raised at each hearing, including the selection and implementation hearing under . . . section 366.26.

Mother has lost the right to raise this issue on appeal for two reasons. She failed to raise the issue in the juvenile court, and she failed to file a petition for an extraordinary writ challenging the order scheduling the section 366.26 hearing. Failure to appoint a guardian ad litem may be waived [citation], and a judgment rendered in the absence of a guardian ad litem is not void, but merely voidable. (White v. Renck (1980) 108 Cal.App.3d 835, 840; see In re Melvin A. (2000) 82 Cal.App.4th 1243, 1249-1250.) As to mothers first omission, a reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Throughout the proceedings in the trial court, mother was represented by a capable attorney who never suggested that mother was unable to understand the proceedings or cooperate with counsel, nor did the attorney request the court to inquire into mothers competency. On this basis alone, the contention has been waived. (Ibid.)

Secondly, section 366.26, subdivision (l)(1) provides that An order by the court that a hearing pursuant to this section be held is not appealable at any time unless all of the following apply: [] (A) A petition for extraordinary writ review was filed in a timely manner. [] (B) The petition substantively addressed the specific issues to be challenged and supported that challenge by an adequate record. [] (C) The petition for extraordinary writ review was summarily denied or otherwise not decided on the merits. (See also Cal. Rules of Court, rules 8.450, 8.452.) Section 366.26, subdivision (l)(2) provides that Failure to file a petition for extraordinary writ review within the period specified by rule . . . shall preclude subsequent review by appeal of the findings and orders made pursuant to this section. Mother failed to file a petition for an extraordinary writ challenging the order scheduling the section 366.26 hearing, and she is therefore precluded from appealing the orders that resulted from that hearing. The waiver rule prevents an appellate court in a dependency proceeding from inquiring  into the merits of a prior final appealable order on an appeal from a later appealable order.  (In re Janee J. (1999) 74 Cal.App.4th 198, 206.)

An appellate court does have the discretion to make an exception to the waiver rule in limited circumstances. However, the appellate courts discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue. (In re S.B., supra, 32 Cal.4th at p. 1293.) We are not presented here with an important legal issue that has divided the Courts of Appeal, as was the case in In re S.B. More importantly, [r]elaxation of the waiver rule is appropriate when an error fundamentally undermine[s] the statutory scheme so that the parent would have been kept from availing himself or herself of the protections afforded by the scheme as a whole.  (In re M.F. (2008) 161 Cal.App.4th 673, 682.) Waiver generally will be enforced unless due process forbids it. (In re Janee J., supra, 74 Cal.App.4th at p. 208; In re Meranda P. (1997)56 Cal.App.4th 1143, 1151.) In In re M.F. at page 676, the Third Appellate District recently made an exception to the forfeiture rule where no writ petition had been filed and held that the juvenile court had prejudicially erred in failing to appoint a guardian ad litem for the mother who was herself a juvenile until after termination of reunification services. The court held that the mothers due process rights were compromised because the mother was a minor and Code of Civil Procedure section 372   represents a recognition by the Legislature that whenever a minor is involved in litigation, his rights cannot be protected unless a guardian ad litem or a similar representative acts for him.   (In re M.F., at p. 678.)

The situation here is very different. The mother is not a minor. She appeared with counsel and actively participated in all phases of the proceedings. In no sense did the failure to appoint a guardian ad litem fundamentally undermine the statutory scheme. The significant safeguards built into this states dependency statutes which tend to work against the wrongful termination of a parents right to a child even though a parent may be unrepresented or poorly represented were all in play here to protect mothers due process rights. (See In re Meranda P., supra, 56 Cal.App.4th at p. 1154.) There was a focus on return of the child during the reunification period, independent judicial review every six months, and notice to [mother] of all proceedings and the right to counsel at all stages. (In re Janee J., supra, 74 Cal.App.4th at p. 208.)

In Meranda P. a mother whose parental rights had been terminated sought to appeal without previously having sought a writ to prevent the section 366.26 hearing from going forward. The court found no violation of due process in enforcing the waiver rule despite the fact that the issues raised involve the important constitutional and statutory rights to counsel and to the effective assistance of counsel. (In re Meranda P., supra, 56 Cal.App.4th at p. 1151.) To do so, the court held, would directly undermine dominant concerns of finality and reasonable expedition. (Id. at p. 1152; see also In re Janee J., supra, 74 Cal.App.4th at pp. 206-207.) Similarly, excusing mothers failure to have timely sought writ relief here would give mother two bites of the proverbial apple while prolonging instability in the childs environment. After the termination of reunification services, the parents interest in the care, custody and companionship of the child are no longer paramount. [Citation.] Rather, at this point the focus shifts to the needs of the child for permanency and stability. (In re Angel B. (2002) 97 Cal.App.4th 454, 464.) Of the many private and public concerns which collide in a dependency proceeding, time is among the most important. (In re Meranda P., supra, at p. 1152.)

II.The Court Did Not Abuse Discretion In Failing to Appoint a Guardian Ad Litem

Even if mother did not forfeit her contention, the claim is without merit. Mother contends that when the juvenile court was presented with evidence that she did not understand the purpose of the services being offered to her, the court was obligated on its own motion to address whether she needed the appointment of a guardian ad litem.

Code of Civil Procedure section 372, subdivision (a) provides that When a minor, an incompetent person, or a person for whom a conservator has been appointed is a party, that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case. . . . Furthermore, a guardian ad litem should be appointed [for mentally incompetent parties] if the requirements of either Penal Code section 1367 or Probate Code section 1801 are met. (In re Sarah D. (2001) 87 Cal.App.4th 661, 667.) A defendant is mentally incompetent underPenal Code section 1367, subdivision (a)if, as a result of mental 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. (See also In re James F. (2008) 42 Cal.4th 901, 910.) Probate Code section 1801, subdivision (b) authorizes appointment for a person who is substantially unable to manage his or her own financial resources or resist fraud or undue influence or for a developmentally disabled adult (id., subd. (d)). In order to warrant appointment, the trial court must find by a preponderance of the evidence that the parent comes within the requirements of either section. (In re Sarah D., supra, at p. 667.)

[W]hen the trial court already has knowledge of the defendants incompetency, the trial court has an obligation to appoint a guardian ad litem sua sponte. (In re Lisa M. (1986) 177 Cal.App.3d 915, 919, italics added.) In Sarah D., an attorney requested the court to relieve him as counsel or appoint a guardian ad litem for his client because she either did not appreciate or understand the concepts or issues which were being presented to the court, and she was confused about the proceedings. (In re Sarah D, supra, 87 Cal.App.4th at p. 664.) The trial court was held to have violated mothers due process rights by failing to conduct a hearing on the motion. At a minimum, the court should make an inquiry sufficient to satisfy it that the parent is, or is not, competent. (Id. at p. 672.)[3]

In her reply brief mother cites People v. Welch (1999) 20 Cal.4th 701 for the proposition that the court must inquire into competency when presented with substantial evidence of incompetency. However, that case also holds that [w]hen the evidence casting doubt on an accuseds present competence is less than substantial, . . . [i]t is within the discretion of the trial judge whether to order a competence hearing. When the trial courts declaration of doubt is discretionary, it is clear that more is required to raise a doubt than . . . psychiatric testimony that defendant is immature, dangerous, psychopathic, or homicidal or such diagnosis with little reference to defendants ability to assist in his own defense.  (Id. at p. 742.)

Without an express showing of incompetence, the need to inquire into the competence of a parent in dependency proceedings is left to the sound discretion of the juvenile court. In In re R. S. (1985) 167 Cal.App.3d 946, 979, the juvenile courts failure to appoint a guardian ad litem for a mother was upheld [n]otwithstanding [her] documented mild mental retardation and her dependent personality disorder because there was sufficient evidence of her competence. In re Ronell A. (1996) 44 Cal.App.4th 1352, 1367 likewise acknowledged that repeated testimony and reference in the file of fathers chronic mental illness and substance abuse  did not require it to appoint a guardian ad litem when it did not consider the father to be incompetent. Similarly, despite the mental deficiencies from which mother quite clearly suffered, the court did not abuse its discretion in failing to inquire into her competence. Mother was present before the same juvenile court judge at numerous hearings over an extended period of time, which gave the court ample opportunity to observe her interactions with counsel and participation in the proceedings. At the section 366.26 hearing mother took the stand and was asked by her attorney Do you understand the department is seeking to terminate your parental rights today? to which she replied Yes, I do understand. Although several reports indicate that she had difficulty keeping track of the times and dates of her appointments, there were no indications that she had difficulty attending trial or aiding her attorney. None of the mental health professionals who evaluated her expressed any reservations about her competence. Neither her relatives nor friends who at times accompanied her suggested she did not understand the proceedings. Moreover, she was at all times represented by counsel and her attorney never suggested that she did not comprehend the proceedings or was unable to assist in the presentation of her case. Under these circumstances, we must rely upon trial counsel, acting in the best interests of his client, and upon the court itself, acting to preserve the integrity of the judicial proceedings, to assure that no person incompetent or otherwise incapable of understanding the proceedings against him be forced to participate in a proceeding at which significant rights are at stake. (In re R. S., supra, at p. 979.)

Finally, even were we to go so far as to assume that the court should have taken the initiative to probe mothers competence, any error in this regard was not prejudicial. Failure to appoint a guardian ad litem in a dependency hearing is a procedural error subject to harmless error analysis. (In re James F., supra, 42 Cal.4th at p. 915.) Mother was represented by a lawyer throughout the dependency proceedings and herself participated directly in those proceedings. There is no showing or reason to believe that a guardian ad litem would or could have done anything differently to yield a more favorable result. The courts failure to explicitly address mothers competence unquestionably did not result in a miscarriage of justice. (In re M.F., supra, 161 Cal.App.4th at p. 682.)

Disposition

The order terminating mothers parental rights is affirmed.

_________________________

Pollak, Acting P. J.

We concur:

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Siggins, J.

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Jenkins, J.

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

[2] Welfare and Institutions Code section 300 provides: Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: []  . . . [] (b) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the childs parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardians mental illness, developmental disability, or substance abuse. . . .

[3] Mother also relies on Jeffrey S. II v. Jeffrey S. (1977) 76 Cal.App.3d 65 to argue that a juvenile court is obligated to independently raise the question of whether a parent should be appointed a guardian ad litem. However, in that case the parent in question was himself a minor who never appeared personally in the proceedings and did not know and did not consult with the attorney purporting to represent him. (Id. at p. 69.) That case has little application to the facts of this case.