1

Filed 4/17/23 In re C.G. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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 FIVE

In re C.G., a Person Coming Under 

the Juvenile Court Law.

CONTRA COSTA COUNTY 

CHILDREN AND FAMILY 

SERVICES BUREAU,

Plaintiff and Respondent,

v.

Y.G.,

Defendant and Appellant. 

 

 A165310

 (Contra Costa County

 Super. Ct. No. J1800946)

Y.G. (Mother) appeals from an order terminating her 

parental rights and finding her eight-year-old daughter C.G. 

adoptable. She contends reversal is required because (1) the 

court erred when it appointed a guardian ad litem for her, and (2) 

the Contra Costa County Children and Family Services Bureau 

(the Bureau) failed to comply with its duty of inquiry under 

California law implementing the Indian Child Welfare Act of 

1978 (ICWA; 25 U.S.C. § 1901 et seq.). We disagree. The court 

properly appointed a guardian ad litem based on Mother’s 

informed consent and substantial evidence, while the Bureau’s 

conceded failure to conduct the required inquiry was harmless. 

Accordingly, we affirm.
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BACKGROUND

This child dependency case was initiated in October 2018, 

when C.G.’s older half-sister, Marilyn, reported that C.G.’s father 

(Father) sexually abused her from when she was 10 years old 

until she was 16. The Bureau detained C.G. and filed a 

dependency petition under Welfare and Institutions Code section 

3001 that, as amended, alleged Father sexually abused Marilyn; 

that C.G. was at risk of similar abuse; and that Mother failed to 

protect C.G. from abuse or, due to her history of homelessness 

and mental illness, to provide adequate care for her. Father was 

charged with multiple felony accounts, and ultimately convicted 

and sentenced to a 20-year prison term. 

Mother had seven prior child welfare referrals, four of 

which resulted in investigations. She was chronically homeless 

and lived on the streets. According to Father, her mental illness 

prevented her from taking care of the girls. 

Father, who had two other children in Brazil, had been 

granted full custody of C.G. when she was eight months old. In 

2012, when C.G. was about two years old, the Bureau received a 

referral alleging Mother had been placed on an emergency 

psychiatric hold after physically attacking Marilyn during a visit. 

Marilyn was placed in foster care with and later adopted by 

Father. Mother’s parental rights to her were terminated in 2016 

after reunification efforts failed. 

Mother told the social worker she lost custody of Marilyn 

because she was homeless and on the streets, mentally and 

physically sick, and experiencing disorientation and depression. 

After that she spent about a year in New York, where she had 

family. According to the social worker, however, Mother might 

1 Undesignated statutory citations are to the Welfare and 

Institutions Code.
3

have been in New York for anywhere from seven months to two 

years. 

Mother returned to California and moved into Father’s 

home about eight months before the events that triggered the 

current dependency action. Father reported that she was 

physically violent with the girls and caused “many problems.” 

Their relationship was “ ‘very bad;’ ” Mother was very 

temperamental and sometimes mean. Her mental illness 

prevented her from taking care of the girls. 

In November 2018, C.G. was detained in foster care. 

According to the Bureau’s report for the jurisdiction and 

disposition hearing, Mother was born in Guatemala and 

immigrated to the United States in 2003. She reported having no 

American Indian ancestry and completed an ICWA-020 form to 

that effect. Father was born in Brazil. He has a brother and 

sister-in-law who live in Richmond and speak primarily 

Portuguese. Father also submitted a form stating he had no 

American Indian ancestry. 

Mother had a history of visual hallucinations and had been 

prescribed a medication used to treat schizophrenia. During the 

current proceedings, she told the social worker she was being 

treated at a mental health clinic, but the doctor she identified 

had no knowledge of her. Mother said she was taking a 

medication used for nerve pain, depression, and anxiety, but also 

that she never had a mental health diagnosis. 

The social worker had difficulty assessing Mother because 

she was inaccurate, confused details, and was unable to stay on 

topic. “While it is unclear what [her] diagnosis is, it is clear she 

has a developmental or mental illness that hinders her ability to 

convey succinct facts about her ability to parent, and hinders her 

ability to safely parent [C.G.] at this time.” 
4

At the jurisdiction and disposition hearing, Mother 

submitted to the allegation that she had failed to adequately care 

for C.G. due to her history of homelessness and mental illness. 

Father submitted to the sexual abuse of sibling allegation. The 

court declared C.G. a dependent child, ordered her removed from 

both parents, and granted Mother (but not Father) reunification 

services and visitation. 

At the six-month review hearing, the court continued C.G.’s 

out-of-home placement and extended Mother’s reunification 

services for six more months. 

The 12-month review hearing took place on March 2, 2020. 

According to the Bureau’s reports, Mother continued to minimize 

Marilyn’s sexual abuse and its effect on her ability to reunify 

with C.G. Mother alternated between denying the abuse 

occurred, blaming Marilyn for initiating it, and accusing her of 

making it up. Mother described Father as “ ‘[n]ot a bad guy’ ” 

and told the social worker she would release him from jail if she 

could. 

Mother became emotional when the social worker asked 

about her living situation, pleaded for C.G.’s return, and became 

angry when the social worker discussed plans for her daughter. 

She had completed a parenting class and said she was attending 

therapy and taking her medications, but she was unable or 

unwilling to provide her psychiatrist’s name or identify her 

prescriptions. She was visiting C.G. regularly. 

The social worker testified that Mother became highly 

emotional during their meetings. When the discussion turned to 

the sexual abuse and its impact on the Bureau’s 

recommendations for C.G., she would refuse to answer questions 

and “shut the meeting down.” Mother continued to blame 

Marilyn for any abuse that occurred, accused her of making up 

the allegations, and lacked any insight into what she would do if 
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C.G. reported being sexually abused. If that were to occur, the 

social worker did not believe Mother would protect the minor. 

The juvenile court found there was no reasonable likelihood 

Mother would be able to reunify with C.G. if provided six 

additional months of services; that Mother had not made any 

progress in addressing the mental health conditions that led to 

the sustained allegation; that returning C.G. to her custody 

would create a substantial risk of harm; and that the Bureau had 

provided reasonable reunification services. The court terminated 

reunification services, found by clear and convincing evidence 

that a section 366.26 hearing was not in C.G.’s best interest, and 

scheduled a permanent plan review hearing. 

That hearing took place on May 3, 2021. By that time, the 

Bureau had changed its recommendation to adoption by C.G.’s 

current foster parents. The social worker had recently suspended 

Mother’s phone contact with C.G. due to inappropriate comments 

(including that Mother was homeless and that they would move 

to her home in Guatemala when C.G. came back to her), late 

night telephone calls, and incessant text messages. Mother 

continued to tell the social worker she was “ ‘not understanding’ 

the court process” and believed the social worker had “set a trap.” 

She was unable to follow when the social worker explained the 

case status and maintained that the social worker and foster 

parents were plotting against her. 

C.G. wanted to be adopted by her foster parents. She was 

worried Mother would keep the adoption from going through and 

did not want any contact with her until Mother got help with her 

mental health. She explained, “ ‘I just need a break. She is not 

crazy, but she is crazy in a not normal way and I just need a 

break. Yes, I need a break from her.’ ” Mother continued to deny 

the sexual abuse allegations and to blame Marilyn. 

At the outset of the hearing, Mother’s attorney moved 

under People v. McKenzie (1983) 34 Cal.3d 616 (McKenzie) for 
6

permission to withdraw as counsel. Before addressing the 

request, the court questioned Mother about possible Native 

American status and found ICWA did not apply. It then 

proceeded to hold a hearing on the McKenzie request with only 

Mother, her attorney, a Spanish interpreter, and the court 

reporter present. 

Counsel stated that communications had broken down 

between her and Mother and asked the court to allow her to 

withdraw from the case and to appoint substitute counsel and 

possibly a guardian ad litem. Mother had a guardian ad litem 

during a prior dependency action, but her attorney initially 

believed she did not need one for the current proceedings. Since 

then, however, counsel had changed her mind. Mother had been 

sending increasingly frequent ranting, angry texts at all hours 

accusing counsel of not helping her. Based on these interactions 

and information from the Bureau and county mental health 

services, counsel had come to believe that Mother now qualified 

for a guardian ad litem. 

After further questioning by the court, counsel agreed to 

continue representing Mother and withdrew her McKenzie 

motion. When the hearing resumed in open court, the court 

turned to the question of appointing a guardian ad litem. It 

explained to Mother: “If I appoint a guardian ad litem, that 

means I would appoint someone to make all the decisions in the 

case for you. Instead of you telling the attorney what you want, 

the guardian will decide what is best for you and will tell the 

attorney. [Counsel] has requested this, because she feels that 

you do not understand what is going on in court, and you cannot 

assist her in making decisions about how to proceed in court.” 

The court then asked, “Would you in fact like me to appoint 

a guardian ad litem for you? That would be another attorney.” 

Mother responded “Yes, your Honor. That will be fine. Thank 

you.” The court stated “[Mother], we are going to get a guardian 
7

ad litem appointed for you, as I just explained what that is. And 

I considered her responses, and I find, based on that response, 

that she does not understand the nature of the proceedings, or is 

not able to communicate. I am therefore going to send that 

referral over for a guardian ad litem.” 

The next permanent plan review hearing took place on 

March 14, 2022. Mother’s attorney moved orally under section 

388 to modify the order terminating reunification services on the 

ground that Mother was working with a housing program and 

had become sufficiently stable to better engage in reunification. 

Mother testified that she now believed Father had molested 

Marilyn and would believe C.G. were she to reported being 

sexually abused. Mother loved C.G. and believed C.G. needed 

her. She had not spoken with her daughter in a year and did not 

know why the Bureau had become involved. 

The court denied the motion for modification, found the 

beneficial relationship exception to the preference for adoption 

did not apply, and found C.G. was likely to be adopted. 

Accordingly, it terminated Mother’s parental rights. 

DISCUSSION

A.

Mother contends the appointment of a guardian ad litem 

was unsupported by substantial evidence and violated her right 

to procedural due process. We disagree.

In re James F. (2008) 42 Cal.4th 901 states the controlling 

law. A guardian ad litem must be appointed if the parent lacks 

the capacity to understand the nature or consequences of the 

proceeding and to assist counsel in preparing the case. (Id. at p. 

910.) The parent must be given an opportunity at an informal 

hearing to persuade the court the appointment is not necessary; 

the court must make sufficient inquiry to satisfy itself that the 

party is incompetent; court or counsel should explain the purpose 
8

of the appointment and the grounds for believing the parent is 

mentally incompetent; and, unless the parent consents to the 

appointment, the record must contain substantial evidence of the 

parent’s incompetence. (Id. at pp. 910-911.)

Here, Mother affirmatively consented to the appointment 

after the court explained the reason for and effect of appointing a 

guardian ad litem at the hearing. No more was required. In 

these circumstances, “[i]f the parent consents to the appointment, 

the parent’s due process rights are satisfied.” (In re James F., 

supra, 42 Cal.4th at p. 910; see also In re Daniel S. (2004) 115 

Cal.App.4th 903, 912; In re Jessica G. (2001) 93 Cal.App.4th 

1180, 1187.) 

Mother’s contrary arguments are not persuasive. She 

suggests the court was required to question her about her mental 

capacity and ability to assist in her defense. We disagree. No 

law requires such questioning when the parent was afforded an 

opportunity to be heard and gave informed consent to the 

appointment of a guardian ad litem. [Cf. In re Sara D. (2001) 87 

Cal.App.4th 661, 670-672 [appointment violated due process 

where attorney consented on parent’s behalf outside of parent’s 

presence, neither court nor counsel explained the purpose of or 

reason for a guardian ad litem, parent had no opportunity to 

respond, and court lacked sufficient information as to parent’s 

competence].) 

Mother’s assertion that the court failed to inquire whether 

her attorney had discussed the implications of appointing a 

guardian ad litem with her is also meritless. Mother’s experience 

having a guardian ad litem in a prior dependency case doubtless 

indicates some degree of familiarity with the implications of such 

an appointment. In this proceeding, the court explained to 

Mother that her counsel felt she did not understand the court 

proceedings and could not assist counsel in making decisions. It 

also explained that a guardian ad litem, if appointed, would make 
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all decisions about the case instead of Mother, and would relate 

them to her attorney. Nothing would have been gained by 

ascertaining whether Mother’s attorney had provided the same 

advisements.

Mother also faults the court for suggesting the guardian ad 

litem would be an attorney. We have no reason to believe the 

person appointed to serve as guardian ad litem would not be an 

attorney. Nor is there any basis to find, as Mother contends, that 

she might have been led to misunderstand that the court was 

simply replacing her current attorney with new counsel. To the 

contrary, the trial court clearly explained that the guardian ad 

litem’s role would be to decide what was best for Mother and to 

inform her attorney of those decisions. So advised, Mother 

consented to the appointment. There is no basis to presume she 

misunderstood what she was consenting too.

In any event, the decision to appoint a guardian ad litem 

would withstand review even without Mother’s consent based on 

the substantial evidence that she was mentally incompetent to 

proceed without one. Mother has a long history of mental health 

problems that have prevented her from parenting her children, 

including hallucinations, erratic moods, and violent behavior 

resulting in a psychiatric hold. The social worker noted early in 

these proceedings that these problems prevented her from 

effectively communicating about her ability to parent. Later, in 

advance of the May 3 permanent planning review hearing, 

Mother told the social worker she did not understand the court 

process, did not understand why she could not reunify with C.G., 

and believed the social worker “set a trap” and did not want her 

to reunify. Each time the social worker attempted to explain the 

case status, Mother was unable to follow the conversation and 

maintained the social worker and foster parents were plotting 

against her. 
10

At the McKenzie hearing, Mother’s counsel reported she 

was unable to converse with Mother without her becoming upset 

and angry and using abusive language. Mother did not believe 

her attorney and did not believe counsel was doing anything for 

her. Despite her attorney’s initial assessment, Mother’s behavior 

and information from the Bureau and county mental health 

department had convinced her that a guardian ad litem was 

required. 

In response to questioning by the court, Mother said that 

even with the help of a Spanish interpreter she had difficulty 

understanding her attorney. The court noted that Mother’s 

responses showed she neither understood the nature of the 

proceedings nor was able to communicate with counsel. 

Substantial evidence supports the determination, so we will not 

disturb it.

B.

Mother asserts the court and Bureau failed to fulfill their 

duties to inquire into C.G.’s possible Native American lineage as 

required by California law implementing ICWA. The Bureau 

correctly acknowledges the error, but contends it was harmless. 

We agree.

ICWA establishes minimum standards for courts to follow 

before removing Indian children from their families and placing 

them in foster care or adoptive homes. (In re D.S. (2020) 46 

Cal.App.5th 1041, 1048.) Under California’s implementing 

legislation and rules of court, the juvenile court and the child 

welfare agency have an affirmative and continuing duty to 

inquire of all potentially interested persons whether a child for 

whom a dependency petition has been filed is or may be an 

Indian child. (§ 224.2, subds. (a), (b); Cal. Rules of Court, rule 

5.481(a); In re S.H. (2022) 82 Cal.App.5th 166, 174.) This duty 

“includes, but is not limited to, asking the child, parents, legal 

guardian, Indian custodian, extended family members, others 
11

who have an interest in the child, and the party reporting child 

abuse or neglect, whether the child is, or may be, an Indian 

child.” (§ 224.2, subd. (b); Cal. Rules of Court, rule 5.481(a)(1).) 

The Bureau concedes it violated this duty of inquiry when 

it failed to ask Father’s brother about possible Native American 

ancestry. Because the duty to inquire of a child’s extended family 

members is imposed by California law, the error is reversible only 

if it was prejudicial. (In re Antonio R. (2022) 76 Cal.App.5th 421, 

433 (Antonio R.).)

The appellate courts are presently divided on what showing 

of prejudice warrants reversal for ICWA inquiry errors (see 

Antonio R., supra, 76 Cal.App.5th at p. 435); the issue is 

currently pending in Supreme Court. (In re Dezi C. (2022) 79 

Cal.App.5th 769, review granted Sept. 21, 2022, S275578.) For 

present purposes, we will accede to Mother’s request to follow the 

relatively strict standard stated in Antonio R.

Rejecting approaches taken by other courts that require 

some affirmative showing of prejudice to support reversal, 

Antonio R. held that “in determining whether the failure to make 

an adequate initial inquiry is prejudicial, we ask whether the 

information in the hands of the extended family members is 

likely to be meaningful in determining whether the child is an 

Indian child, not whether the information is likely to show the 

child is in fact an Indian child.” (Antonio R., supra, 76 Cal. 

App.5th at p. 435; compare, e.g., In re Benjamin M. (2021) 70 

Cal.App.5th 735, 744 [reversal required where record indicates 

there was readily obtainable information likely to bear 

meaningfully upon whether child is an Indian child]; In re A.C. 

(2021) 65 Cal.App.5th 1060, 1069 [reversal required where 

parent shows that, if asked, he or she would in good faith have 

claimed Native American ancestry].)

It may be, as Antonio R. predicts, that error will in most 

circumstances be prejudicial under its test. (Antonio R., supra, 
12

76 Cal.App.5th at p. 435.) But not so here. A child is an Indian 

child if and only if he or she “is either (a) a member of an Indian 

tribe or (b) is eligible for membership in an Indian tribe and 

is the biological child of a member of an Indian tribe[.]” (25 U.S.C. 

§ 1903(4); see also Welf. & Inst. Code, § 224.1, subd. (a).) In this 

case, undisputed evidence established that Mother and Father 

are, respectively, from Guatemala and Brazil. Under these 

circumstances the Bureau’s inadequate inquiry could not 

conceivably have made a difference; there is no possibility that 

C.G. is or may be a Native American child or, accordingly, that 

questioning her extended family members would be “meaningful” 

in making that determination. (See Antonio R., supra, 76 Cal. 

App.5th at p. 435.) We are satisfied the ICWA error does not 

require conditional reversal for further inquiry.

DISPOSITION

The order terminating Mother’s parental rights is affirmed.
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______________________

BURNS, J. 

We concur:

____________________________

JACKSON, P.J. 

____________________________

LANGHORNE, J.*

A165310

* Judge of the Napa County Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.