In re S.K.
Filed 12/9/11 In re S.K. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| In re S.K., a Person Coming Under the Juvenile Court Law. | |
| SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. JOSEPH K. et al., Defendants and Appellants. | D060084 (Super. Ct. No. SJ12562) |
APPEALS from orders of the Superior Court of San Diego County, Ana L. Espana, Judge. Affirmed with directions.
Joseph K. and S.H. appeal jurisdictional and dispositional orders concerning their daughter, S.K. S.H. contends the juvenile court prejudicially erred by appointing a guardian ad litem for her. Joseph joins in and adopts S.H.'s argument to the extent it inures to his benefit. We affirm the orders and direct the court to hold an informal hearing to determine whether appointment of a guardian ad litem is necessary for future proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
S.K. was born in May 2011 in the early morning hours as S.H. was crossing the border from Tijuana, Mexico, into the United States. S.H. refused aid offered by border patrol agents and told them she was not pregnant. When S.K. was born she was not breathing and had no pulse, but the agents were able to resuscitate her. Medics transported S.H. and S.K. to a hospital, where they both tested positive for amphetamines and methamphetamine. S.H. said she had used methamphetamine as a laxative some time before the birth. She denied using drugs, but her criminal history showed numerous arrests and convictions for being under the influence of a controlled substance.
S.H. and Joseph had been in a relationship for approximately one year and lived together in Tijuana. Joseph said he did not know S.H. had been using drugs, but he knew she liked to party and sometimes stayed out all night. He said he had completed a substance abuse treatment program and had been sober for 10 years, but a May 6, 2011, drug test was positive for marijuana.
The San Diego County Health and Human Services Agency (the Agency) petitioned on S.K.'s behalf under Welfare and Institutions Code section 300, subdivision (b),[1] based on her and S.H.'s positive drug tests, on the fact S.H. admitted using drugs during her pregnancy and had no prenatal care, and on the fact Joseph denied knowing she was using drugs.
At the detention hearing, S.H.'s appointed attorney suggested a guardian ad litem be appointed for S.H. because she was having trouble communicating with S.H. and unable to complete the required paperwork. The court appointed a guardian ad litem. It ordered S.K. detained. After a one-day continuance, a new appointed attorney stated she had read the petition to S.H. and believed S.H. understood the petition.
S.H. was incarcerated for drug-related charges, but denied using drugs. The social worker reported S.H. was uncooperative and her responses were often tangential to the questions asked, and she was twitching, appeared agitated and paranoid and was constantly looking around. S.H. denied that taking methamphetamine once or twice could have harmed S.K. Joseph expressed concern S.H. appeared delusional at times and had mood changes. He said she had told him she had stopped using drugs.
At the jurisdiction/dispositional hearing, the court accepted the Agency's reports into evidence. After considering the evidence and argument by counsel, the court found the allegations of the petition to be true, removed custody of S.K. from her parents and ordered her placed in foster care. The court ordered reunification services and that S.H. undergo a psychological evaluation.
DISCUSSION
S.H. contends the court erred by appointing a guardian ad litem for her. She argues the error should be deemed structural error and requires automatic reversal of the jurisdictional and dispositional orders. The Agency acknowledges the court did not follow the proper procedure for appointing a guardian ad litem, but asserts the structural error doctrine does not apply to dependency cases and any error was harmless.
The Agency maintains Joseph lacks standing to join in S.H.'s claim of error. A parent does not have standing to assert error on behalf of another party, including the other parent. (In re Jenelle C. (1987) 197 Cal.App.3d 813, 818.) An appellant must have been injuriously affected by the court's ruling in an immediate and substantial manner, not as a nominal consequence. (In re Frank L. (2000) 81 Cal.App.4th 700, 702-704.) Joseph has not shown he was immediately or substantially harmed by the appointment of a guardian ad litem for S.H. and thus does not have standing to join her arguments.
A parent who is not mentally competent must appear by a guardian ad litem. (In re Sara D. (2001) 87 Cal.App.4th 661, 665.) The test for incompetence in the context of dependency proceedings is whether the party has the capacity to understand the nature or consequences of the proceedings and is able to assist counsel in representing his or her interests. (In re Christina B. (1993) 19 Cal.App.4th 1441, 1450-1451.) If a parent does not consent to appointment of a guardian ad litem, in order to afford the parent due process, before the court appoints the guardian ad litem, it must hold an informal hearing and give the parent the opportunity to be heard. (In re Sara D., supra, at p. 663.) At the hearing the court or counsel must explain to the parent the purpose of the guardian ad litem and the grounds for believing one is necessary, and a parent who opposes the appointment must have the opportunity to try to persuade the court why a guardian ad litem is not necessary. (Id. at pp. 671-672.)
The court did not hold the required hearing before appointing a guardian ad litem. It made the appointment after the following exchange with S.H.'s counsel:
The Court: "Ms. Nixon [S.H.'s attorney], at this point in time if you would like to make a record.
Ms. Nixon: "Your honor, having discussed this case with [S.H.], we have a -- we are unable to sufficiently communicate about the case before the court and unable to complete the necessary paperwork. If the court is inclined to appoint a guardian ad litem for [S.H.], we will not present any objection.
The Court: All right. At this point in time, based on your conversation with [S.H.], you think that would be appropriate
Ms. Nixon: "Your honor, based on my lack of ability to communicate with [S.H.] and the lack of ability to complete the paperwork, I do believe it is appropriate.
The Court: "All right. So I will appoint [ ] to act as guardian at litem for S.H. in this case."
In appointing a guardian ad litem for S.H., the court relied on the conclusory statements of the attorney. The court was informed only that the attorney had been unable to sufficiently communicate with S.H. about the case and unable to complete necessary paperwork. This exchange did not inform the court whether S.H. had the capacity to understand the nature or consequences of the proceedings or whether she was able to assist counsel in representing her interests. There is no evidence that S.H. consented to the court's appointment of a guardian ad litem or that she was advised of the purpose of the appointment, the guardian ad litem's role in the litigation or that the appointment would result in her losing the authority to make decisions affecting the litigation. The court erred by not holding an informal hearing before appointing a guardian ad litem for S.H.
We reject S.H.'s claim that making the appointment without first holding a hearing is structural error requiring automatic reversal. In In re James F. (2008) 42 Cal.4th 901, 918-919, our Supreme Court determined that if the outcome of the proceeding has not been affected, a juvenile court's error in appointing a guardian ad litem for a parent in a dependency proceeding is a form of trial error subject to harmless error analysis. A reviewing court may apply a harmless error analysis when the error occurred during the trial and therefore may be quantitatively accessed in the context of other evidence in order to determine whether the error was harmless. (In re Enrique G. (2006) 140 Cal.App.4th 676, 684.) Here, the error was trial error, not structural error, because this court is able to assess whether harm resulted from the error. S.H. has not persuaded us that the outcome of the proceedings would have been any different had the guardian ad litem not been appointed. We also reject S.H.'s argument that an expert should have been appointed to determine whether she was mentally competent. There are no statutory requirements for an expert to be appointed before determining a parent's competency. Only an informal hearing is required. (In re Sara D, supra, 87 Cal.App.4th at p. 663.)
We review the erroneous appointment of the guardian ad litem to determine whether the error is harmless beyond a reasonable doubt. (In re Enrique G., supra, at p. 687; In re Sara D., supra, at p. 673; In re Esmeralda S. (2008) 165 Cal.App.4th 84, 96.) In so doing, we hold the error was harmless. The record does not reveal any prejudice resulted from the appointment. The outcome of the proceedings was not affected by the appointment of the guardian ad litem. (In re Esmeralda S., supra, at p. 93.) There is no indication S.H. was not able to communicate her wishes to the guardian ad litem or to the court and no evidence the jurisdictional and dispositional orders were affected by the court's failure to hold a hearing before the appointment of the guardian ad litem.
Substantial evidence supports the jurisdictional and dispositional orders. S.K. was born while S.H. was crossing the international border. S.H. refused border patrol agents' offers to help her, and S.K. was born positive for methamphetamine and had to be resuscitated. S.H. said she had used methamphetamine as a laxative sometime earlier. She denied using drugs or having a drug abuse history, but she had had several arrests and convictions for drug possession and for being under the influence of drugs, and was incarcerated for drug-related charges at the time of the jurisdictional/dispositional hearing. The social worker noted that when she interviewed S.H., her responses were tangential to the questions asked, she was twitching and she appeared agitated and paranoid.
Joseph also has a history of drug use. He said he had been sober for 10 years, but twice tested positive for marijuana. He knew about S.H.'s drug abuse history, that she liked to party and stay out all night and that she had had no prenatal care and took methamphetamine as a laxative during her pregnancy. Substantial evidence supports the jurisdictional findings and the dispositional order removing S.K. from parental custody. The court's appointment of a guardian ad litem without first holding a hearing was harmless error beyond a reasonable doubt.
DISPOSITION
The jurisdictional and dispositional orders are affirmed. The matter is remanded for the court to hold an informal hearing before the six-month review hearing to determine whether S.H. meets the qualifications to require appointment of a guardian ad litem.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
McINTYRE, J.
