In re A.R.
Filed 3/22/13 In re A.R. CA4/2
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE
DISTRICT
DIVISION TWO
In re A.R., a
Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY
DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Plaintiff and Respondent,
v.
I.R.,
Defendant and Appellant.
E056636
(Super.Ct.No.
RIJ114730)
OPINION
APPEAL from the Superior
Court of Riverside
County. Matthew C. Perantoni,
Temporary Judge. (Pursuant to Cal.
Const., art. VI, § 21.) Affirmed.
William D. Caldwell,
under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County
Counsel, Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
No
appearance for Minor.
A.R. (minor, born March
2011) came to the attention of plaintiff and respondent Riverside County
Department of Public Social Services (the department) on July 7, 2011, upon
receipt of a report of a welfare check completed by law enforcement. Mother had a previous history with the
department in which minor’s older sibling, A.B., had been removed due to
allegations of physical abuse, general neglect, and mother’s mental health
condition; mother’s reunification services as to A.B. had already been
terminated. Since A.B.’s case was still
pending, the department filed a juvenile dependency petition adding minor to
the same case as A.B. The juvenile court
removed minor from mother’s custody and denied mother reunification services
pursuant to Welfare and Institutions Code section 361.5, subdivision (b).
May 10, 2012, the juvenile court terminated mother’s parental rights.
On appeal, mother
contends the juvenile court prejudicially erred in finding the Indian Child
Welfare Act (ICWA) did not apply. Mother
additionally argues she was deprived of her constitutional and statutory rights
to due process when the juvenile court appointed a guardian ad litem (GAL),
purportedly without a noticed hearing and without mother’s participation in
making its determination of mother’s mental incompetency. We affirm the judgment.
FACTUAL
AND PROCEDURAL HISTORY
On July 7, 2011, the department
received a 10-day referral from law enforcement with allegations of general
neglect. Law enforcement reported
responding to a complaint that minor had been crying for hours. Law enforcement informed the department that
mother appeared to be developmentally disabled, as she had a difficult time
responding to questions.
A check of mother’s previous
department history revealed that A.B. had been taken into
where he had a scar from a recent
not providing proper medical treatment for A.B., had a history of substance
abuse, and had an untreated mental health condition diagnosed as Paranoid
Schizophrenia.
The juvenile court appointed mother
a GAL on June 27, 2007. A psychologist
had performed an evaluation of mother on August 15, 2007, in which he
determined mother was “‘‘functioning in the mild range of retardationâ€â€™â€
and determined her “‘ability to take care of a child is extremely low . . .
.’†He additionally opined she would not
benefit from services. Maternal
grandmother (MGM) reported mother was “‘borderline mentally retarded.’†Mother’s reunification services as to A.B.
were terminated on November 4, 2008; A.B.’s current plan was long term legal
guardianship.
title="">[2]
As to minor,
on July 12, 2011, the social worker contacted Pia Frye of the Inland Regional
Center (IRC). Frye last visited mother’s
home in June; she expressed concern regarding minor’s weight, bonding between
mother and minor, and mother’s placement of minor in a dark room alone while
minor was awake. Mother had refused
services offered through IRC’s Supportive Living Service Program which would
have offered to go to “mother’s home and provide hands on parenting education
and living skills.â€
On the same
date, the social worker visited mother’s home.
Mother denied any criminal history or mental health issues. She denied being a client of IRC, but
reported she worked there as a volunteer.
She reported law enforcement had visited her home recently, but that
they were friends who had been looking for her boyfriend so that he could
repair their squad car.
Mother’s
home was full of items “strewn about the floor†including “trash, dirty diapers
and clothing.†Mother had no clean
diapers for minor. Mother reported she
had no other children; she said A.B. had been miscarried. When the social worker informed mother she
would have to take minor into protective custody, mother responded, “‘Okay,
good that will give me a break.’â€
A check of
mother’s criminal record revealed convictions for shoplifting on April 3, 2008,
and assault with a deadly weapon causing great bodily injury on October 17,
2008. Mother’s probation on the latter
conviction was set to expire on February 17, 2012; a term of that probation
required that she participate regularly in mental health services and maintain
compliance with her medication regime; according to her probation officer,
mother was not complying with those conditions; she had not taken her
medication in two years. MGM reported
mother displayed numerous indicia of paranoia; mother was fine when she took
her medication, but she refused to take it because she believed it was poison.
On July 15,
2011, the date originally scheduled for the detention hearing, mother’s counsel
requested a one-day continuance so mother’s GAL could be in attendance. Mother was not present at the hearing. The court determined, “The Indian Child
Welfare Act does not apply.â€
name="_ftnref3" title="">[3]
Mother’s GAL
appeared at the resumed detention hearing
on July 18, 2011; mother was again not present.
The juvenile court detained minor.
In the jurisdiction and disposition report filed August 3, 2011, the
social worker recommended denying mother reunification services pursuant to
section 361.5, subdivisions (b) (10) and (12).
confirmed she has no know[n] Native American ancestry.â€
An addendum report
filed September 8, 2011, noted mother had missed visitation on August 9, 16,
and 23, 2011. During a visit on August
30, 2011, mother laughed at minor saying, “‘she’s so fucking fat.’†Mother told MGM minor was “‘fucked up in the
head’†and was going to end up in juvenile hall because she engages in
“‘destructive behavior.’†Mother
attempted to stand minor on her feet.
Mother left the visit to speak with a family next door. Halfway through the visit mother started
packing up, saying she had appointments to keep; mother was convinced to stay
by MGM.
On September
8, 2011, the social worker filed the operative third amended petition. The petition contained allegations as to
mother, that she lacked the ability to care for minor (b-1), suffered from
untreated mental health issues (Paranoid Schizophrenia) (b-2), engaged in
verbal altercations in the presence of minor with her boyfriend (b-3), engaged
in criminal activity and was currently on probation (b-5), had an open
dependency case regarding A.B. (b-6), the home was kept in an unsanitary
condition (b-4), and A.B. had been found to have been abused and/or neglected
and minor was at risk of similar harm (j-1).
Mother
attended the jurisdiction and disposition hearing on September 13, 2011. The juvenile court found the allegations in
the petition true, sustained the petition, and took jurisdiction of minor. The court found “the child is not an Indian
Child. The Indian Child Welfare Act does
not apply.†The court removed custody of
minor from mother. The court denied
mother reunification services pursuant to section 361.5, subdivision (b)(10)
and set the matter for hearing pursuant to section 366.26.
In
the Selection and Implementation and Post Permanency Status Review Report filed
December 23, 2011, the social worker noted mother had visited with minor on
September 26, October 25, November 29, and December 13, 2011. However, during the latter visit mother became
verbally threatening and was removed from the building by security. Due to the incident occurring during the last
visit, the social worker requested mother’s visitation be terminated. The juvenile court granted the request. At the section 366.26 hearing on May 10,
2012, the juvenile court terminated mother’s parental rights and set adoption
as the permanent plan.
A. ICWA
Mother
contends the juvenile court’s finding that ICWA did not apply resulted in
reversible error because the department neglected to have mother complete a
Parental Notification of Indian Status upon the filing of the initial petition
with respect to minor.
name="_ftnref5" title="">[5] The department maintains it was not required
to have mother complete and sign another
Parental Notification of Indian Status because mother had already completed one
in the instant case and mother continually denied any Native American
ancestry. We agree with the department.
“At
the first appearance by a parent . . . in any dependency case . . . the court
must order the parent . . . to complete Parental Notification of Indian
Status (form ICWA-020).†(Cal. Rules
of Court, rule 5.481(a)(2).) “‘[T]he
juvenile court needs only a suggestion of Indian ancestry to trigger the notice
requirement.’ [Citation.]†(In re
Gabriel G. (2012) 206 Cal.App.4th 1160, 1165.)
“‘The
[trial] court must determine whether proper notice was given under
whether ICWA
applies to the proceedings.
[Citation]. We review the trial
court’s findings for substantial evidence. [Citation.]’
[Citation.] ‘“While the record
must reflect that the court considered the issue and decided whether
its finding may be either express or implied.â€
[Citations.]’ [Citation.]†(In re
Christian P. (2012) 208 Cal.App.4th 437, 451.)
Here,
mother completed and signed a Parental Notification of Indian Status on June
27, 2007, in the instant case, confirming she did not have any Native American
ancestry.
first appearance in the case respecting the petition regarding A.B. Although, no additional form was completed
when a new petition was filed in the same case to add minor, we hold mother’s
completion of the Parental Notification of Indian Status in the same case
earlier was sufficient to satisfy the juvenile court’s obligation. Thus, substantial evidence supported the
juvenile court’s determination ICWA did not apply.
Mother
apparently contends the failure of the juvenile court to require the filing of
an additional Parental Notification of Indian Status upon the filing of the new
petition violated its continuing
obligation to inquire as to the applicability of ICWA. (Cal. Rules of Court, rule 5.481(a); § 224.3,
subd. (a).) However, we disagree with
mother that the juvenile court’s continuing obligation requires the filing of
multiple ICWA-020 forms in the same case.
Mother
cites In re Robert A. (2007) 147
Cal.App.4th 982, in support of her contention the juvenile court was required
to have her complete another Parental Notification of Indian Status form. However, in that case the father’s ICWA
documents were filed “in a separate dependency case†and postdated the juvenile
court’s determination in the case before that ICWA did not apply. (Id.
at pp. 989-990.) Thus,
mother’s Parental Notification of Indian Status was filed in the same
dependency case and preceded the instant juvenile court’s determination ICWA
did not apply.
Moreover,
the department did continue to inquire of mother regarding any Native American
ancestry. In both the initial petition
and detention report, the social worker noted on July 13, 2011, that mother
denied any Native American ancestry. In the
jurisdiction and disposition report, the social worker reported that on July
28, 2011, mother again denied any Native American ancestry. The juvenile court’s subsequent findings on
July 15, and September 13, 2011, that ICWA did not apply were supported by
substantial evidence.
B. GAL
Mother maintains she was deprived of her constitutional and statutory
rights to due process when the juvenile court appointed her a GAL purportedly
without a noticed hearing and without her participation in making a
determination of her mental incompetency.
The department responds that the GAL was appointed for mother in this
case on June 27, 2007; therefore, mother’s appeal from that order is
untimely. In addition, the department
argues mother forfeited any appellate contention with regard to the appointment
of the GAL by failing to object below.
Finally, the department asserts substantial evidence supports the
appointment of the GAL. We hold mother
has forfeited any appellate contention regarding the appointment of the GAL by
failing to provide this court with a sufficient record to review the
argument. Moreover, we find, to the
extent possible on this record, the juvenile court’s appointment of the GAL was
supported by substantial evidence.
“In
a dependency case, a parent who is mentally incompetent must appear by a
guardian ad litem appointed by the court.
[Citations.] 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
“Before
appointing a guardian ad litem for a parent in a dependency proceeding, the
juvenile court must hold an informal hearing at which the parent has an
opportunity to be heard. [Citation.] The court or counsel should explain to the
parent the purpose of the guardian ad litem and the grounds for believing that
the parent is mentally incompetent.
[Citation.] If the parent
consents to the appointment, the parent’s due process rights are
satisfied. [Citation.] A parent who does not consent must be given
an opportunity to persuade the court that appointment of a guardian ad litem is
not required, and the juvenile court should make an
sufficient to satisfy itself that the parent is, or is not, competent. [Citation.]
If the court appoints a guardian ad litem without the parent’s consent,
the record must contain substantial evidence of the parent’s incompetence. [Citation.]†(In re
James R., supra, 42 Cal.4th at
pp. 910-911.)
First, we note mother
has failed to provide an adequate record to permit review of the appointment of
the GAL. The record reflects the
juvenile court appointed the GAL at the detention hearing with respect to A.B.
on June 27, 2007. The juvenile court
trailed the detention hearing regarding minor so that mother’s GAL could attend. Mother has failed to augment the record to
include the detention report and the reporter’s transcript of the detention
hearing with respect to A.B.
name="_ftnref7" title="">[7] As
such, mother has failed to provide this court with a record sufficient with
which to review her due process challenge.
(Hotels Nevada v. L.A. Pacific
Center, Inc. (2012) 203 Cal.App.4th 336, 348 [“It is the duty of an
appellant to provide an adequate record to the court establishing
issue requires that the issue be resolved against appellant. [Citation.]â€].)
Second, to the extent
mother is maintaining the juvenile court was required to hold another hearing
to appoint the GAL with respect to the new petition regarding minor, we
disagree. Like her argument that
the department should have had mother complete another Parental Notification of
Indian Status upon the filing of the petition with respect to minor, her
argument the court should have been required to have held a new hearing
regarding appointment of the GAL fails.
The juvenile court is not required to reevaluate the continuing validity
of the appointment of a GAL on its own motion.
Here, mother failed to attend either of the scheduled detention hearings
regarding minor. Thus, she failed to challenge
the continued applicability of the order appointing her a GAL in the case. Moreover, mother’s counsel specifically
requested the original detention hearing be continued to permit attendance by
the GAL. Thus, mother’s counsel
acknowledged the continued propriety of the order appointing the GAL.
Finally,
from what evidence we have regarding mother’s mental capacity, appointment of
the GAL would appear to have been supported by substantial evidence. A psychologist who had evaluated mother on August 15, 2007, regarding the
petition with respect to A.B. determined she was “‘functioning in the
mild range of retardation’†and that her “‘ability to take care of a child is
extremely low . . . .†He opined she
would not benefit from services. It was reported
mother suffered from Schizophrenia.
Mother’s
documented behavior in the proceedings regarding minor betray a sufficient
degree of mental incapacity such that appointment of the GAL would have been
appropriate. Law enforcement
investigating the initial complaint reported mother appeared to be
developmentally delayed and had a difficult time answering questions. Mother denied the existence of A.B.,
reporting that he had been miscarried.
Mother denied she was a client of IRC, instead asserting she worked
there as a volunteer. She told the
social worker the law enforcement officers who had responded to the initial
complaint were her friends who were merely looking for her boyfriend to repair
their police vehicle. Mother’s
statements denying any criminal or mental health history were thoroughly
repudiated by the record in this case.
When the
social worker informed mother she was going to take minor into protective
custody, mother responded that would be good as it would give her a break. Mother was on probation with a requirement
that she participate in mental health services and maintain her medication
regime. Mother’s probation officer
reported mother was not compliant with that condition of her probation and
mother had not taken her medication in two years. MGM reported mother exhibited many symptoms
of paranoia, which resolved when mother took her medication; however, mother
refused to take her medication because she believed it was poison. Mother stated that then five-month-old minor
was “‘fucked up in the head’†and would end up in juvenile hall because she
engaged in “‘destructive behavior.’â€
Thus, substantial evidence supported a determination that mother had a
profound degree of mental incapacity. (
84, 93-95 [Even if due process error occurred, the appointment of a GAL is
subject to harmless error analysis.]; In
re James R., supra, 42 Cal.4th at
pp. 917-919 [same].)
DISPOSITION
The judgment
is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All
further statutory references are to the Welfare
and Institutions Code unless otherwise indicated.
name="_ftn2" title=""> [2] The detention report in the current matter at
one point erroneously reports “mother’s rights were terminated on November 4,
2008,†as to A.B. In fact, only mother’s
reunification services as to A.B. were terminated on that date.
