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Filed 8/30/22 In re R.Z. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

In re R.Z., a Person Coming Under the Juvenile Court 

Law.

C094471

SACRAMENTO COUNTY DEPARTMENT OF 

CHILD, FAMILY AND ADULT SERVICES,

Plaintiff and Respondent,

v.

R.Z.,

Defendant and Appellant.

(Super. Ct. No. JD241006)

Father of the minor appeals from the juvenile court’s dispositional order entered 

on June 7, 2021. (Welf. & Inst. Code, § 395.)1 Father contends the juvenile court 

violated his due process rights by appointing a guardian ad litem without substantial 

evidence of his mental incompetence. The matter was fully briefed on April 14, 2022. 

1 Undesignated statutory references are to the Welfare and Institutions Code.
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Finding sufficient evidence that father was incapable of understanding the nature and 

purpose of the proceeding or was unable to assist counsel in a rational manner, we will 

affirm the juvenile court’s order.

BACKGROUND

On December 8, 2020, the Sacramento County Department of Child, Family and 

Adult Services (Department) filed a section 300, subdivision (b) petition on behalf of the 

then 10-month-old minor based on mother’s history of untreated substance abuse and

father’s untreated anger management problems that impaired their judgment and ability

to care for the child. The minor was detained and placed with the maternal grandmother. 

The juvenile court appointed counsel for mother and father and ordered supervised 

visitation. It also explained the process to both parents and answered father’s questions.

Both mother and father agreed that mother had a drug problem and father had an 

anger management problem, although father claimed he naturally spoke loudly and 

denied cursing at and sending argumentative texts to social workers. Father began 

courses on parenting and anger management.

At the February 1, 2021 jurisdiction hearing, father’s counsel indicated they were 

requesting a contested hearing or trial. Father interjected that he believed it was too early 

for trial and he wanted to respond to the petition first. The juvenile court explained to 

father that if he wanted to challenge the allegations in the petition, his options were to 

have a hearing with testimony, which the juvenile court called a trial, or a hearing with 

argument but no testimony. Father continued to assert that he wanted to contest the 

allegations, he did not want a trial, and no one was explaining the process to him. The 

juvenile court asked if they could go forward that day, but father’s counsel said she 

understood that father had additional evidence he wanted to present, which she told father 

needed to be presented at a trial, so they were not prepared to go forward that day. The

trial court scheduled another hearing to determine whether the matter would be set for a 

contested jurisdiction hearing.
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At a pretrial hearing, the Department said father’s behavior had created some 

problems with visitation and that it would be asking that father participate in a mental 

health examination in order to tailor services for him. Father’s counsel said they were 

ready to confirm trial dates, but father indicated he wanted a new attorney appointed 

because his current attorney had not helped him. The juvenile court heard and denied 

father’s Marsden2 motion and the parties then discussed visitation. The juvenile court 

suspended father’s in-person visits due to father’s behavior, limiting him to virtual visits 

until the conclusion of trial.

Father retained private counsel. However, retained counsel moved to be relieved 

due to a breakdown in communication. The juvenile court granted the motion and 

reappointed counsel for father. Father then asked to represent himself, but the juvenile 

court denied the request based on concern that father would continue to be disruptive. As 

the discussion proceeded, father argued with the juvenile court, insisting his courtappointed attorney was not properly representing him. Father’s court-appointed counsel 

said she had hoped it would help for the juvenile court to speak with father, but given his 

continuing behavior counsel requested the appointment of a guardian ad litem, stating 

that father was unable to assist her with the case.

The juvenile court cleared the courtroom and held another Marsden hearing and a 

guardian ad litem hearing. At the conclusion of the hearings, the juvenile court denied 

father’s Marsden motion and appointed a guardian ad litem, finding that father was 

incapable of understanding the nature and purpose of the proceeding and was unable to 

assist counsel in a rational manner.

Following notice from this court and no opposition from the parties, we unsealed 

15 pages of previously sealed reporter’s transcripts in the appellate record, including five

2 People v. Marsden (1970) 2 Cal.3d 118; see also In re Samuel (2021) 69 Cal.App.5th 

67, 73, fn. 3 [a comparable mechanism is recognized in dependency proceedings].
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pages from the February 22, 2021 in camera Marsden hearing, four pages from the 

March 25, 2021 in camera Marsden hearing, and all the pages from the March 25, 2021 

in camera guardian ad litem hearing. (Cal. Rules of Court, rules 8.45-8.47.) With the 

unsealed pages available to the parties, we gave them an opportunity to file supplemental 

briefs addressing whether the juvenile court erred in appointing a guardian ad litem. The 

Department filed a supplemental brief but father did not.

Additional relevant facts are set forth in the discussion.

DISCUSSION

Father contends the juvenile court violated his due process rights by appointing a 

guardian ad litem without substantial evidence of his mental incompetence.

“[T]he primary concern in section 300 cases is whether the parent understands the 

proceedings and can assist the attorney in protecting the parent’s interests in the 

companionship, custody, control and maintenance of the child.” (In re Sara D. (2001) 

87 Cal.App.4th 661, 667.) When the juvenile dependency court has knowledge of a 

party’s incompetence, it has an obligation to appoint a guardian ad litem. (In re 

A.C. (2008) 166 Cal.App.4th 146, 155.) “A person may be found incompetent if the 

person was either incapable of understanding the nature and purpose of the 

proceeding or unable to assist counsel in a rational manner.” (In re M.P. (2013) 

217 Cal.App.4th 441, 452, original italics; see In re James F. (2008) 42 Cal.4th 901, 

910.) On the other hand, “[v]oluntary barriers to communication with counsel on the part 

of a defendant who was able to cooperate [but has elected not to] do not demonstrate 

incompetence.” (People v. Mendoza (2016) 62 Cal.4th 856, 879.) The test is 

“ ‘competency to cooperate, not cooperation.’ ” (People v. Clark (2011) 52 Cal.4th 856, 

893.)

“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 
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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 inquiry 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.” 

(In re James F., supra, 42 Cal.4th at pp. 910-911.)

Father admits that during the pendency of the case he was argumentative and 

obstreperous in court and belligerent and threatening to social workers and the minor’s 

caretaker, the maternal grandmother. Nevertheless, he asserts that although he was 

belligerent and rude, he was not incompetent, nor was he unable to assist counsel because 

of a lack of mental capacity.

There is sufficient evidence that father was incapable of understanding the nature 

and purpose of the proceeding or was unable to assist counsel in a rational manner.

At the February 1, 2021 hearing, father complained that he did not want to go to 

trial but wanted to respond to the allegations in the petition. The juvenile court explained

to father that if he wanted to challenge the allegations in the petition, his options were to 

have a hearing with testimony, which the juvenile court called a trial, or a hearing with 

argument but no testimony. Father’s court-appointed counsel indicated she had also 

explained this to father. Father continued to assert that he wanted to contest the 

allegations, he did not want a trial, and no one was explaining the process to him. The 

juvenile court asked if they could go forward that day, but father’s counsel said she 

understood that father had additional evidence he wanted to present, which she told father 

needed to be presented at a trial, so they were not prepared to go forward that day. The 

trial court put the matter over.
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At the February 22, 2021 pretrial hearing, when the Department’s counsel 

indicated she was ready to confirm trial, father asked, “trial for what?”

Father’s counsel informed the juvenile court during the first Marsden hearing that 

on more than one occasion she had explained the process to father. She also explained to 

father what they had to do to contest the allegations in the petition. Father agreed that his 

attorney told him if he wanted to challenge the allegations in the petition he would need 

to go to trial, but father wanted to challenge the allegations before then. Father said his 

counsel was telling him the process but not really telling him the process, adding that his 

attorney never told him he could contest the allegations in the petition. The juvenile 

court directed father’s counsel to again explain the process to father.

At the second Marsden hearing, counsel explained that it was difficult to have a

conversation with father. Father had prepared a 100-page response to the section 300 

petition and asked the juvenile court how he could contest the allegations if his counsel 

would not file his paperwork. The juvenile court explained to father that he would be 

permitted to present evidence at trial. Father said he thought he could file his 100-page 

response, but the juvenile court explained: “No, that’s not how it works. You don’t turn 

in a hundred page manifesto of how you feel about the case. You testify in court. You 

testify under oath. The attorneys ask you questions. You don’t turn in a manifesto and 

say, ‘This is my version. This is my version of the events. I want you to read all hundred 

pages.’ ”

Father complained that the petition only contained allegations. The juvenile court 

said that was the reason they were going to have a trial.

The guardian ad litem hearing followed the second Marsden hearing. After the 

juvenile court explained the purpose of the guardian ad litem hearing and heard from 

father, the juvenile court told father he would have to let them talk, that if he kept 

interrupting he would have to leave the hearing. At that point the reporter’s transcript 

indicates father was continually speaking at the same time the juvenile court was 
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speaking. When the juvenile court asked father’s counsel why she thought the 

appointment of a guardian ad litem would be appropriate, counsel said it seemed either 

(1) father does not understand the proceedings, and counsel had a deep concern that he 

really did not understand, or (2) whatever was going on with him in terms of his 

functionality, it presented such a significant barrier to communication that father could 

not assist her with the case. The reporter’s transcript indicated that father continued to 

talk at the same time his counsel was speaking. Counsel said father’s attorneys had spent 

about four to five hours just to explain that a trial was the method to challenge the 

allegations in the petition. At that point in the guardian ad litem hearing, because father 

kept using profanity, the juvenile court asked him to leave and father left the courtroom.

Father’s counsel said she still did not think father understood that the way to 

challenge the allegations in the petition was by trial. She described father’s 100-page 

document as father’s legible and illegible notes, some of which made no sense. She tried 

to explain to father that she could not file the document and it was not the way to present 

the information he wanted to present, but counsel believed father was incapable of 

hearing anything she had to say. Counsel also said they probably spent hours on why 

father wanted a section 388 petition for modification. She told father it was too early for 

a section 388 petition, but according to counsel, father did not understand that such a 

petition was not legally available to him at that point.

Father contends this case is like In re Samuel A., supra, 69 Cal.App.5th 67, which 

involved a parent’s unruly and obstructive behavior. In that case efforts to address the 

parent’s behavior, such as calling security, issuing restraining orders, and appointing

different counsel, were unsuccessful. (Id. at pp. 83, 74-77.) But Samuel A. is 

distinguishable because there the parent had participated in a mental health evaluation 

and had been found not to have an underlying mental health condition. (Id. at p. 79.) 

And the juvenile court in that case found that the parent’s lack of cooperation was 

deliberate and strategic. (Id. at pp. 77, 79.) It appointed a guardian ad litem as a way to 
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move the case along and ensure that the parent had the benefit of counsel during the 

reunification period. (Ibid.) The court of appeal reversed, holding that a guardian ad 

litem may not be appointed for a legally competent, albeit exceedingly difficult, parent. 

(Id. at p. 85.) 

Here, unlike in Samuel A., there was no finding that father did not have an 

underlying mental health condition, no finding that father’s conduct was deliberate and 

strategic, and here father’s appointed counsel expressed concern that father did not 

understand the proceedings. There is substantial evidence in this case that father did not 

understand the proceedings. In any event, here there is sufficient evidence that father 

could not assist his counsel.

DISPOSITION

The juvenile court’s dispositional order is affirmed.

 /S/

MAURO, J.

We concur:

 /S/

ROBIE, Acting P. J.

 /S/

DUARTE, J.