Filed 9/11/14 In re J.P. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication o r ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re J.P. et al., Persons Coming Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,

v. P.S., Defendant and Appellant. D065748

(Super. Ct. No. J518486A, B, C)

APPEAL from orders of the Superior Co urt of San Diego County, Carol Isackson, Judge. Affirmed.

Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and Paula J. Roach, Deputy Count y Counsel, for Plain tiff and Respondent. P.S. (the mother) appeals orders of the j uvenile court terminating her parental rights to her children, J.P., R.P. and C.P., under We lfare and Institutions Co de section 366.26. (All further statutory references are to the We lfare and Institutions Code.) P.S. contends2 that the juvenile court prejudicially erred in appointing a guardian ad litem for her because (1) it did so in violation of her due process ri ghts and (2) there was in sufficient evidence to establish the need for a gua rdian ad litem. We disagree and affirm the orders.

FACTUAL AND PROCEDUR AL BACKGROUND In January 2012, the San Diego Health & Human Services Agency (the Agency) received a referral for abuse and neglect relating to three-year-old J.P ., two-year-old R.P. and eight-month-old C.P. The children's fath er had taken the mother to an emergency room at the University of California, San Di ego (UCSD), and reported that she had been acting strangely for two days and exhibiting "bizarre" behavi or characterized by agitation, screaming and paranoia. The mother wa s voluntarily admitted to the hospital for stabilization, although hospital staff indicated that she would have been placed on an involuntary hold for grave disability if she had resisted voluntary admission at that time. During her hospitalization, the mother had a positive toxicology test for methamphetamine and was diagnosed with psychosis not otherw ise specified, possibly caused by drug use, anxiety not otherwise specified and amphetamine dependence. The Agency established a voluntary services pl an for the family.

The mother was released fro m UCSD the following month, and was transferred to Rosecrans County Mental H ealth Hospital (Rosecrans), where she was prescribed medication for anxiety and insomnia. Upon her release from Rosecrans, the mother entered a residential drug treatment program at KIVA, but dropped out of the program a short time later. In April 2012, the mother was arrested and the children's father was deported as a result of an inci dent in which the father hit the mother and she struck him with her high heeled shoe. The mother's social worker lost contact with her for a period of3 time, until the mother voluntarily entered the Family Resource Ce nter for drug treatment in July 2012. At that time, J.P. and R.P. were in the care of their parental grandparents. By early August 20 12, the mother was discharged from drug treatment for "noncompliance and not stabilizing her me ntal health issues." A few da ys later, she took R.P. to a UCSD emergency room. Medical staff f ound that there was not hing wrong with R.P.,

but observed that the mother was exhibiting psychotic sympto ms. A hospital psychiatrist

concluded that the mother's condition rendered her unable to care for her children and J.P.

and R.P. were taken to Polinsky Children's Center. Upon her release from the hospital, the mother exhibited "considerably" improved cognitive function, although the treating staff wa s not sure whether that was a result of the administration of antipsychotic drugs or the mother's having gotten appropriate rest during her stay. The mother was again admitted to a residential treatment pr ogram, although she again dropped out to "stab ilize her mental health." In September 2012, the Agency filed a de pendency petition on be half of J.P. and R.P., based on the mother's mental health issu es (including psychosis and paranoia) and her abuse of cocaine, methamphetamine and alcohol. 1 The juvenile court found the petition's allegations true, placed J.P. and R.P. in a fo ster home and ordered re unification services for the parents. In October 2012, the mo ther entered KIVA, but left late r that same month. She also succeeded in convincing police to remove C.P. from the parental grandparents' care based on false information that she provided. When the Agency discovered what the mother had done, it filed a dependenc y petition on C.P.'s beha lf and placed her in a confidential foster

1 C.P. was being cared for by her paternal grandparents. For that reason, the Agency did not initially file a petition on her behalf.4 home. The mother continued to be unsucce ssful with residential drug treatment and the Agency expressed its continuing concern about her untreated ment al health issues. At the six-month review hearing for J.P. and R.P ., the court ordered continued reunification

services. In March 2013, the mother underwent a psychological evaluation. She was symptom free at that time and the evaluator concluded that she likely suffered from substance-induced psychotic disorder, althou gh he acknowledged that the severity and duration of her earlier psychotic episodes "exc eeded what would be expected solely from methamphetamine intoxication." He recogn ized that the mother showed additional symptoms separate from the ps ychotic episodes, including ange r, irritability, anxiety, rapid mood change, lying to cover negative beha viors, periodic loss of focus, periodic

incoherence and odd behaviors with her ch ildren such as petting and hair pulling. The evaluator opined that a lthough the mo ther's symptoms might impede her ability to care for her children, those symptoms were not sufficiently severe to prevent her from providing adequate care if she was able to abstain from drug use on a longterm basis. He recommended a follow up psychological evaluation in six months, but did not believe that a psychiatric evaluation was necessary unless the mother later experienced depression or anxiety. The evaluator also stressed the impo rtance of encouraging the mother to take her prescribed anti-psychotic medicati ons if she had another episode. The mother completed in-patient drug treatment in April 2013, and received referrals to a series of aftercare programs. She was repeatedly unsuc cessful in aftercare, however, and failed to submit to drug testing an d to participate in th erapy. During this same time period, she spent so me time with her parents in Tijuana, interspersed with periods of homelessness. She continued to have visits with the children for awhile,5 although she became more and mo re inattentive and distracted during the visits. In midSeptember 2013, she stop ped visiting altogether. By February 2014, the mother was re-incarcerated. Based on the children's bonds with their paternal grandparents and the parents' failure to co mply with their case plans, the Agency recommended the termination of parental rights and adoption for all three children. The father requested that the children be pl aced for adoption with his parents since he recognized that he was not in a position to care for them.

The court terminated reunification services after finding that the parents had not made substantive progress with their case plans and that there was no substantial probability that the children would be returned to them. The court placed J.P. and R.P. in the home of their parental grandparents, wh ere C.P. was staying, over the mother's objection, and set a section 366.26 hearing for a ll three children. The mother set the matter

for trial on the issue of whether the beneficial parent-child exception to adoption applied. At the pretrial settlement conference, th e mother's counsel, Rommel Cruz, asked the court to conduct an inquiry as to whether a guardian ad litem should be appointed for his client. He reported: "In regards to my brief conversation with the mother, I wasn't able to determine whether she was under any medication or an ything like that. The conversation didn't really go anywhere. That's just how difficult it was this morning. [¶] I just could not, you know, get anything—anythi ng meaningful with her." The mother's attorney was conc erned because he had not prev iously had this problem in communicating with the mother. After inquiring about the moth er's mental health histor y and briefly reviewing her psychological evaluation, the court conducte d a hearing, during which the following colloquy occurred:6 "Court: . . . Good morning. Do you unders tand why you are here in court with us this morning?

"Mother: No, I don't. I real ly don't understand why I'm here. "Court: All right. Do you un derstand that your children ar e part of the dependency system? "Mother: No, I don't—I'm sorry . I don't know what to tell you. "Court: Okay. Are you taking any medication? "Mother: No, I'm not taking any medication. Like what's the point of this court? I don't understand. "Court: Okay. Do you reme mber being here before?

"Mother: Yes, I do. So what's your point? Get to it, please. "Court: Sure. The court is here today with you . . . because the social worker and the social service agency has recommende d—has suggested to the court that we have a—that we go forward an d end your right to be the mother to your children. You have a right to have a hearing for that. "Mother: Yeah. I'm not going to—I'm not going to end my rights as a parent. "Court: I'm sorry. I can't hear you. "Mother: Okay. I'm not going to end my rights. I don't know what to tell you. "Court: Okay. Do you know that you ha ve an attorney who represents you?

"Mother: Yes, I do. "Court: Okay. And that's Mr. Cruz. Do y ou understand that we have a trial set for March 18th? "Mother: Okay. "Court: Did you know that?

"Mother: No, I don't.7 "Court: Okay. "Mother: I just want to get my kids back. I'm supposed to get out today and just get my kids. I'm not really playing this anymore. "Court: You're not really what? "Mother: I'm not doing this anymore. "Court: Okay.

"Mother: I don't know what the parents—whatever—I don't know. "Court: Okay. "Mother: It's been too long for this. "Court: Do you understand Mr. Cruz has asked the court to appoint someone to stand in your shoes to help the court make decisions about and help Mr. Cruz make decisions about how we should go forward and what we should do in this legal proceeding in the court? Do you understand that?

"Mother: Yeah, I understand.

"Court: He's asked the court to decide if we should appoint someone called a guardian ad litem for you. Do you understand that?

"Mother: Yeah. I understand. "Court: Do you understand what the i ssues are as to wh y the Agency has recommended that your children be placed or that we terminate your parental rights? Do you understand why the Agency has asked the court to do that?

"Mother: No, I haven't. I don't understand why it is. "Court: Do you understand why the cour t and the Agency are involved here?

"Mother: No. I don't know why I did all this. It's t oo much. Taking up all my life for a little court, all this. It 's just not happening. Hand cuffs, buses, buildings. No. It's too much, taking up all my energy, a ll my life. I have been spraying things while he's talking to me. He 's just doubling up, doubling up. . . . I can't see good. Start building stuff. Buildings, buildings, and handcuffs and handcuffs, chairs and8 stuff just for one court for my kids. They 're my kids. You know, it's unnecessary. This whole building is unnecessary. Cars, the building, just for one right. I'm not going to do this."

Following this discussion, the court appoint ed a guardian ad litem for the mother. The mother addressed the court saying, "What time—I just want my kids. I want to go home. I don't want to go through all this. Can you take the handcuffs off?" The court responded that the guardian ad litem would ta lk with the mother further. The mother replied, "I don't want to talk. I want to take the handcuffs so I can put everything back together, so that you guys can stop having ba ck and forth here. There's nothing to talk about. I don't want to go through this anymore." The court directed that the guardian ad litem or Mr. Cruz try to explain to the mother that she had a right to contest the a ppointment and to have a hearing to establish that she did not need a guardian ad litem. When the court continued the trial date so that the guardian ad litem could review the file, the mother indicated that she was "not coming

back to no court." The c ourt asked the Agency and counsel whether the mother could immediately participate in a psychiatric ev aluation or medication evaluation while in custody and requested that the Agency set up vi sits for her in accord ance with the rules of her facility. At the contested section 366.26 hearing, th e mother appeared w ith her counsel and the guardian ad litem. At the outset of the trial, the moth er interrupted the proceedings, saying "Can I say something, lawyer—attorney—j udge. I'm not going back to jail. I have no reason to be in jail. I [h ave] been held hostage for four months." Despite the court's efforts to explain the purpose of the hearing, the mother continued to interject, claiming "This is my father's courthouse. . . . This is my courthouse. . . . Just give me back my kids and take the handcuffs off and let me go home. . . ." The mother's counsel informed the9 court that when the guardian ad litem had met with the mo ther the previous week to explain the purpose of the hearing and the i ssues involved, "It was not a very fruitful meeting . . . ." The mother interrupted the proceedings a se cond time, after which the court warned her that continued interruptions would result in her being removed from the hearing; after that warning, the mother quieted down and th e court was able to proceed with the trial. The mother's counsel argued that the cour t should not find the children adoptable because his client objected to the children's pl acement with their paternal grandparents and because the beneficial parent-child relati onship exception to adop tion applied. The Agency, joined by minors' and father's c ounsel, argued that there was no evidence to support the application of the beneficial relationship exception. The court found the children adoptable and terminated pare ntal rights. The mother appeals.

DISCUSSION A parent who is not mentally competen t must appear in juvenile dependency proceedings through a guardian ad litem. ( In re Sara D. (2001) 87 Cal.App.4th 661, 665.) The test for incompetence in that context is whether the party has the capacity to understand the nature or conseque nces 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 the court concludes that the parent is not competent and ma kes an appointment, the guardian ad litem is afforded the power to control the litigation of the action on behalf of the affected parent. ( In re Sara D. , at p. 668.) For this reason, the parent "has a direct

and substantial interest in whether a guardian ad litem is appointed." ( Ibid .)10 Unless the parent consents to the appoin tment of a guardian ad litem, due process considerations require the juvenile court to hol d an informal hearing and give the parent the opportunity to be heard before making an appointment. ( In re Sara D. , supra , 87 Cal.App.4th at p. 663.) At the hearing, the c ourt or counsel must explain to the parent the purpose of the guardian ad litem and the grounds for believing that one is necessary, and a parent who opposes the appointm ent must have the opportunity to try to persuade the court that the appointment is not necessary. ( Id . at pp. 671-672.)

1. Due Process The mother contends that the juvenile court violated her due process rights in appointing a guardian ad litem fo r her because (a) she was not given proper no tice that an appointment would be sought; (b ) neither the court nor counse l fully explained to her the purpose of the appointmen t, the authority that would be gr anted to the guardian ad litem or why the appointment was believe d to be necessary; and (c) sh e never had the opportunity to contest the appointment. These arguments are unavailing. 2 "The circumstances under which appointmen t of a guardian ad litem for a parent in a dependency proceeding may occu r may vary widely from case to case" and thus there is no one-size-fits-all rule regard ing how the parent must be notified of, and given the opportunity to respond to, the possibility that a guardian ad litem may be appointed to act on her behalf. ( In re Sara D. , supra , 87 Cal.App.4th at p. 671.) When the issue of the

2 In the mother's reply brief, mother's c ounsel complains that the respondent is erroneously attempting to shift the burden to her to establish that her due process rights were violated and that there was no substantia l evidence to support the appointment of a guardian. This argument appears to reflect a misperception about the nature of appellate review. A fundamental tenet of appellate law is that a challenged superior court judgment or order is generally presumed to be correct and thus, an appellant bears the burden of establishing error and prejudice. (See, e.g., In re Geoffrey G. (1979) 98 Cal.App.3d 412, 419-420; generally Denham v. Superior Court (1970) 2 Cal. 3d 557, 564.)11 mother's competence was brought to the court's attention, the court conducted an informal hearing during which it inquired of the moth er and her counsel as to the mother's understanding of the proceedings. The mother had the opportunity to, and did in fact, address the court at that hearing. The cour t asked the mother whether she understood the purpose of a section 366.26 hearing and, after the mother gave a series of responses that indicated a lack of comprehension, the court asked the mother whether she understood that

her counsel had asked the court to determin e whether she needed a guardian ad litem to protect her interests. 3 After appointing the gu ardian ad litem, the cour t continued the trial, and instructed the mother's counsel and the gu ardian ad litem to explain the circumstances to the mother, and to further explain to he r that she had the right to challenge the appointment. Under the circumstances, we conclude th at the juvenile court did not violate the mother's due process rights in appointing the guardian ad lite m for her. (See generally In

re James F. (2008) 42 Cal.4th 901, 910-911; In re Daniel S. (2004) 115 Cal.App.4th 903, 912.)

2. Sufficiency of the Evidence

The mother also contends that there wa s not substantial evidence to support the court's decision to appoint a gu ardian ad litem to act on her be half. However, the mother's history of mental health problems, her counsel's expression of concern about her competence as a result of his interactions w ith her, the guardian ad litem's report about her unsuccessful attempt to explain the purpose of the appointment to the mother and the nature of the mother's dialog ues with the court during bo th the hearing at which the

3 The mother responded that she did understand.12 guardian ad litem was appointed and the con tinued trial hearing amply supported the juvenile court's conclusion that the mother did not fully understand the nature or consequences of the proceedings and was una ble to assist counsel in representing her interests in those proceedings. ( In re Christina B. , supra , 19 Cal.App.4th at pp. 1450-451.) On this record, the juvenile court did not err in appointing a guardian ad litem to protect the

mother's interests in the proceedings. 4

DISPOSITION

The orders are affirmed. AARON, J.

WE CONCUR:

HALLER, Acting P. J.

IRION, J.

4 Even if the court had erred in appointin g a guardian ad litem, the error would have been harmless beyond a reasonabl e doubt. During the course of the proceedings, the mother maintained only sporadic visitation with the children an d, although she had a loving relationship with them, they di d not look to her fo r their care and protection. Thus, there was no basis on which the juvenile court could conclude that th e nature of her relationship with the children promoted th eir well-being to such a degree as to outweigh the benefit to them of being placed for adoption. ( In re Autumn H. (1994) 27 Cal.Ap p.4th 567, 575.) Although the mother specu lates the result of the hearing mi ght have been different if she had testified, the appointment of the guardian ad litem did not preclude her from testifying. Further, the mother makes no proffer as to wh at testimony she would or could have given to accomplish that end. On th is record, there is no possibility that the mother would have achieved a more favorable outco me if the guardian ad litem ha d not been appointed. ( In re James F. , supra , 42 Cal.4th at pp. 918-919; In re Enrique G. (2006) 140 Cal.App.4th 676, 684.)