Filed 12/7/20 In re J.O. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In re J.O., a Person Coming Under 

the Juvenile Court Law.

NAPA COUNTY HEALTH &

HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

J.H.,

Defendant and Appellant.

 A159723

 (Napa County

Super. Ct. No. 18JD000048)

J.H. (Mother) is the sole living parent for two minor children, J.O. 

(minor) and Je.O., and two adult children, D.O. and I.O. Mother appeals a 

juvenile court order terminating her parental rights to minor. She contends 

the juvenile court’s appointment of a guardian ad litem for Mother violated 

her rights to due process and was unsupported by substantial evidence. 

Mother further contends, as a result of the appointment, she was unable to 

complete her reunification plan, which resulted in the termination of her 

parental rights. While we conclude the appointment of the guardian ad litem 

violated Mother’s right to due process, we conclude the error was harmless 

and affirm the order.
2

I. BACKGROUND

The Napa County Health & Human Services Agency (Agency) filed a 

petition under Welfare and Institutions Code1 section 300, subdivisions (a) 

and (b)(1), alleging Mother subjected minor and his minor sibling, Je.O., to 

physical and emotional abuse, has been residing with the children in 

violation of an active restraining order, and has significant health issues that 

impair her ability to parent minor and Je.O. 

The allegations arose from a referral provided to the Agency by a 

mandated reporter. The referral stated minor’s father, who had sole physical 

and legal custody of the children, was hospitalized with a poor prognosis, and 

Mother was residing with minor despite an active restraining order. The 

father died four days after the referral was made. 

Minor’s siblings reported Mother had been physically and emotionally

abusive toward them and the father for “a very long time.” Je.O. reported 

that Mother would call minor “fag” and “dumbass” and relied on minor to 

clean up after her. Minor also reported Mother called him “whore,” “fag,” and 

“dumb,” threatened violence, threw objects at him, scratched him, and 

required him to take care of her. Minor stated his older siblings were 

primarily in charge of taking care of him. 

The Agency further noted Mother had been violating the restraining 

order for almost a year by residing with the children and the father. Mother 

asserted she did not know the restraining order was active, believed it had 

been rescinded, and disputed its validity.

2 The Agency found the allegations 

substantiated and requested the court detain the children. 

1 All statutory references are to the Welfare and Institutions Code.

2 The jurisdiction/disposition report notes there were three requests for 

the restraining order to be terminated. The first was opposed by the father 

and two of the siblings, Je.O. and D.O., and the request was denied. Of the 
3

The court subsequently held a detention hearing. Mother did not 

contest detention and the court ordered minor and Je.O. be detained. The 

court also ordered visitation for a minimum of two hours per week. 

Prior to the jurisdiction hearing, the social worker filed a request to 

change the court’s prior visitation order. The social worker reported Mother 

“has been inappropriate regarding topics related to money, expectations of 

the children and the father’s passing.” During the last visit, Mother initially 

refused to visit with Je.O., stated she believed Je.O. was trying to brainwash 

minor and, after 10 minutes, the children left the room and refused to visit 

any further. Mother was escorted out of the building, and the social worker 

consoled the children because they were crying and unable to calm down. 

The minor and Je.O. informed the social worker they did not want to attend 

the next visit and requested a break from visitation. 

When the Agency spoke with Mother about the last visit, Mother 

indicated she did not believe she made any inappropriate comments to the 

children. Mother instead focused on her assertion that the children are being 

manipulated and not being truthful. Mother informed the social worker she 

needed a break from visitation and was planning to ask for such a break, but 

then stated she needed to see her children. The social worker informed the 

court ongoing visitation would be detrimental to the best interests of the 

children, and requested the court order no visitation at this time. 

At the hearing on the change order request, the guardian ad litem and 

the Agency reached an agreement to modify visitation “so that the social 

worker will monitor the situation, and when it’s in the best interests of the 

other two requests, at least one was made by the father. However, the court 

denied both requests because the parties did not appear at the scheduled 

hearings. 
4

children to have a visit a visit can occur.” It was further agreed either the 

children or Mother could request a visit, and the social worker could then 

allow visitation if it was in the children’s best interests. The guardian ad 

litem explained the agreement “avoid[ed] a full cutoff and a detriment 

finding.” 

The Agency filed a jurisdiction/disposition report prior to the 

jurisdiction hearing. Mother continued to deny any abuse of minor or Je.O. 

She restated her belief the children are being manipulated and encouraged to 

report false allegations against her, and she denied any physical or emotional 

abuse. Mother repeatedly informed the social worker she was not willing to 

admit to any abuse and would not take responsibility because she “did not do 

anything wrong.” 

The status report also noted Mother had yet to meaningfully attend 

support groups with Napa Emergency Women’s Services (NEWS) and Cope

Family Center (Cope). At the time of the report, Mother had only attended 

two group meetings with NEWS and one group session and one individual

session with Cope. Cope informed the Agency Mother “does not benefit from 

the large group setting as she does not believe that she did anything wrong 

and continues to state the children are lying about the abuse.” The report 

also recounted information from a mental health counselor who met with 

Mother. Mother informed the counselor that the father convinced minor and 

Je.O. to make up allegations of child abuse and asserted the father was 

verbally and psychologically abusive. 

The report also indicated Mother violated the restraining order on two 

separate occasions since the detention hearing, first by entering the home 

without permission and, second, by calling D.O. in violation of the restraining 

order. 
5

At the jurisdiction hearing, Mother submitted on the Agency’s 

recommendation. Mother informed the court she had an opportunity to read 

the waivers of rights and talk about her rights with her attorney and 

guardian ad litem, and she did not have any questions about the documents. 

The court adopted the Agency’s recommendation and scheduled a six-month 

review. The recommendation required, in part, Mother to develop a 

treatment plan to manage her mental health, complete a psychotropic 

medication evaluation, complete an anger management class, participate in 

mental health therapy, and participate in parenting classes. 

Mother continued to deny the allegations of abuse at the six-month 

hearing. She asserted D.O. was “ ‘brainwashing’ ” the children to gain control 

of the father’s assets, claimed she is a good mother, and did not believe she 

needed therapy. She expressed a desire to attend anger management classes

merely to show her children she was “ ‘not crazy.’ ” However, the Agency

noted in its six-month report Mother had neither attended anger 

management classes despite a referral given by the Agency, participated in 

mental health therapy as required by her case plan, nor completed a teenager

parenting class. While Mother completed a “ ‘Triple P’ Positive Parenting 

Program,” Mother indicated the class was “ ‘useless’ ” because it merely 

instructed her to not use physical punishment and she asserted she has never 

used physical punishment on her children. The report also summarized

ongoing harassment and verbal abuse by Mother toward D.O., who has 

custody of minor and Je.O. Mother contacted D.O. multiple times per day 

and, when denied access to minor, Mother became verbally abusive by stating 

D.O. was “ ‘evil,’ and ‘stealing her children,’ and ‘just after the house.’ ” 

The six-month report further stated no visitation was occurring

between Mother, minor, and Je.O. The social worker explained “the children 
6

continue to refuse any and all visits, phone calls, letters, or contact of any 

kind with [Mother], as they continue to state that contact with [Mother] is 

emotionally and psychologically harmful to them.” Minor and Je.O. noted 

they love Mother but are not ready to resume any kind of relationship with 

her. They report being happy, safe, and loved with D.O. The Agency noted 

Mother would like to resume visitation “but is willing to respect that the 

children do not presently want visits with her.” 

The Agency concluded it would be detrimental and unsafe for minor

and Je.O. to return to Mother’s care due to her ongoing denial of the abuse 

allegations. Neither minor nor Je.O. wished to return to Mother’s care. The 

court adopted the Agency’s recommendation, and scheduled the matter for a 

12-month review. 

In advance of the 12-month review, the Agency filed a status review

report recommending the family reunification plan be terminated and a 

section 366.26 hearing be held for minor. Mother remained in noncompliance 

with her case plan. She failed to meet with her social worker monthly, 

despite numerous calls and reminders from the Agency of her need to do so. 

The report explained Mother had not addressed her anger management 

issues, provided any documentation regarding her medical or psychological 

treatment, completed an initial anger management class or the recommended 

teenager parenting class, or participated in individual mental health therapy. 

At the time of the report, Mother continued to deny the allegations of abuse 

and neglect. Mother continued to inform the Agency “ ‘nothing happened’ ” 

and claimed D.O. is “ ‘brainwashing’ ” minor and Je.O. to lie about abuse in 

order to gain financially. 

The report further stated minor and Je.O. have continued to refuse any 

and all visits, phone calls, letters, or contact of any kind with Mother and 
7

state any contact with Mother causes them distress due to her repeated 

denials of abuse. 

The Agency asserted returning minor and Je.O. to Mother’s care would 

be detrimental because Mother has continued to deny any physical or 

emotional abuse, does not understand the impact of that abuse on the 

children’s mental health, and harassed the children’s relative caretaker, 

D.O., during the course of the proceedings. The social worker noted Mother 

“has not demonstrated any behavioral change that indicates that she would 

be able to care for the children if they were returned to [her] care.” The social 

worker stated Mother has displayed no understanding of the impact on her 

children, is unable to control her anger, is resistant to feedback, and is 

unable to listen to other individuals’ perspectives. Due to this lack of 

progress, the Agency concluded “there is no substantial probability of 

return[ing]” minor to Mother’s care and recommended family reunification 

services be terminated. 

Following a contested hearing, the court denied Mother’s request to 

return minor to her care, extend services, or resume visitation. The court 

found by a preponderance of the evidence that the return of minor to the 

physical custody of Mother would “create a substantial risk of detriment to 

the [minor’s] safety, protection, and both physical and emotional well-being.” 

The court found reasonable services were offered to Mother and there was not 

a substantial probability minor would be returned to Mother’s custody within 

six months. Accordingly, the court scheduled a section 366.26 hearing. 

In advance of the section 366.26 hearing, the Agency filed its report 

and recommendation. That report recommended a permanent plan of 

adoption for minor. 
8

Mother failed to appear at the subsequent section 366.26 hearing 

because she was hospitalized. Mother’s counsel informed the court “she’s 

willing to submit on this recommendation. She supports her son and she 

knows that this is what her son wants right now at this time in his life.” 

When asked whether Mother’s counsel could waive Mother’s appearance at 

the hearing, her counsel responded, “I don’t know if I would waive her 

appearance. I’m a little lost on that,” but proposed proceeding with the 

condition that Mother could contest the submission within two weeks 

following the hearing. The court then clarified Mother “is submitting on the 

report, so she’s not wishing to be heard further . . . [¶] . . . [¶] . . . to present 

additional argument or evidence.” Mother’s counsel affirmed that 

understanding, and requested a referral to mediation to potentially allow 

continued contact after adoption. The Agency opposed the referral. The 

court proceeded with the hearing, ordered the referral, terminated parental 

rights, and found the permanent plan of adoption to be appropriate and 

ordered adoption as the permanent plan. Mother timely appealed. 

II. DISCUSSION

A. Waiver

The Agency contends Mother waived her right to appeal by submitting 

on the Agency’s recommendation that her parental rights be terminated. 

Ordinarily, submitting “on a social worker’s recommendation dispels 

any challenge to and, in essence, endorses the court’s issuance of the 

recommended findings and orders. Consequently, a parent who submits on a 

recommendation waives his or her right to contest the juvenile court’s 

decision if it coincides with the social worker’s recommendation.” (Steve J. v. 

Superior Court (1995) 35 Cal.App.4th 798, 813, citing In re Richard K. (1994) 

25 Cal.App.4th 580, 590.) However, when a parent submits on a particular 
9

report and thereby acquiesces to the evidence, the parent preserves the right 

to challenge the sufficiency of the evidence to support a particular legal 

conclusion. (In re Tommy E. (1992) 7 Cal.App.4th 1234, 1237.) In that 

situation, the parent does not waive “his or her right to challenge the 

propriety of the court’s orders.” (In re Richard K., at p. 589.)

Here, the record of the section 366.26 hearing is unclear as to whether 

Mother’s counsel submitted on the social worker’s report or on the social 

worker’s recommendation. Counsel initially stated Mother was “willing to 

submit on this recommendation.” However, when the court sought 

clarification and asked, “I guess you are saying that she is submitting on the 

report, so she’s not wishing to be heard further . . . [¶] . . . [¶] . . . to present 

additional argument or evidence,” Mother’s counsel responded, “Correct.”

The minute order also reflects that Mother submitted on the report, not the 

recommendation.3 And Mother could not clarify her intended waiver because 

she was not present at the hearing. Given this ambiguity, we reject the 

Agency’s claim of waiver.4

B. Appointment of Guardian Ad Litem

A parent who is mentally incompetent 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 consequences 

3 Generally, the reporter’s transcript prevails when in conflict with the

minute order. (Arlena M. v. Superior Court (2004) 121 Cal.App.4th 566, 569–

570.) Here, however, the transcript itself is ambiguous and the minute order 

supports one interpretation—namely, that Mother submitted on the report.

4 Mother also argues she did not waive this appeal by failing to 

challenge the initial appointment of the guardian ad litem by way of a writ 

application. The Agency does not contest her position on this issue. 
10

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 the parent is not competent and makes 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.)

Unless the parent consents to the appointment of a guardian ad litem, 

due process considerations require the juvenile court to hold 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 court 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 appointment must have the opportunity to try to 

persuade the court that the appointment is not necessary. (Id. at pp. 671–

672.)

1. Due Process

a. Relevant Factual Background

At the beginning of the detention hearing, Mother’s attorney informed 

the court he “spoke with [Mother] for probably 20 minutes today, and had an 

opportunity to read the detention report, and listened to what she had to tell 

me, and I’m not sure she understands the nature of the proceedings occurring 

here today. As a result of that, I’m not sure she would be able—on her own to 

be able to mount a vigorous defense to the allegations contained in the 

Petition. And it is therefore my request that a guardian ad litem be 

appointed to essentially step into her shoes. And I think it will make it—
11

cause it to be much more effective for me, as her lawyer, to be able to mount a 

vigorous defense, because I believe this matter will go to contest.” 

The court cleared the courtroom and directed Mother’s counsel to 

question her under oath to explain the basis for his request to appoint a 

guardian ad litem. Mother’s counsel only asked one substantive question of 

Mother: “[D]o you know why the children were removed from you?” In 

response, Mother explained that on the day of the father’s funeral, a social 

worker visited and stated Mother could not be near the children due to an 

active restraining order. Mother then stated she and the father had 

requested the restraining order be withdrawn because of the father’s poor 

health, and the restraining order “was in effect so that the oldest daughter 

would benefit from his 401K.” She also complained about the father’s 

brother, who was initially caring for minor and Je.O. after they were removed 

from the family home, and asserted he was “not taking good care of my 

children. I need them to be at a temporary housing place, because there is 

feeling there he had with myself.” 

Following Mother’s response, the court stated, “Okay. Thank you. The 

Court will grant [Mother’s counsel’s] request, and appoint Mr. Joens as 

guardian ad litem for [Mother].” The court then reopened the courtroom, and 

continued the detention hearing so the guardian ad litem could be present. 

b. Analysis

Here, Mother’s counsel asked the court to appoint a guardian ad litem 

to “step into [Mother’s] shoes” because he was not sure Mother understood 

“the nature of the proceedings” or could “mount a vigorous defense to the 

allegations contained in the Petition.” Neither the court nor Mother’s counsel 

explained to Mother the purpose of a guardian ad litem, such as by 
12

explaining the role of a guardian or what authority Mother would be ceding 

to the guardian. (See In re Sara D., supra, 87 Cal.App.4th at pp. 671–672.) 

Then, during the hearing, Mother was asked only one substantive 

question by her counsel—“[D]o you know why the children were removed 

from you?” In response, Mother was able to express a coherent, if misguided, 

position that she repeated throughout the proceedings—namely, that her 

children were removed due to an unresolved restraining order. Undoubtedly, 

Mother’s answer did not encompass the issue of abuse. But Mother’s 

response tracked her ongoing position that the children were never subjected 

to emotional or physical abuse. And neither the court nor Mother’s counsel 

asked any follow-up questions or attempted to elicit further responses 

regarding Mother’s understanding of the petition. Unfortunately, denial and 

minimization of abuse occurs in dependency cases, and Mother’s lack of 

insight does not indicate a lack of mental competency.

Moreover, Mother was not given an opportunity to respond and 

“provide the court with the most accurate picture of the circumstances so that 

it can make an informed decision.” (In re Sara D., supra, 87 Cal.App.4th at 

p. 672.) Instead, once Mother provided her initial response, the court stated, 

“Okay. Thank you,” and appointed a guardian ad litem. This limited 

inquiry, with a lack of guidance to Mother about the impact of a guardian ad 

litem appointment and no opportunity for her to respond, was insufficient to 

comply with due process.5

5 Because we conclude the appointment of a guardian ad litem violated 

Mother’s due process rights, we need not address Mother’s argument that 

insufficient evidence supported the appointment. 
13

2. Harmless Error

Although appointment of the guardian ad litem violated Mother’s right 

to due process, a due process violation concerning the appointment of a 

guardian ad litem for a parent in a dependency proceeding is subject to 

harmless error analysis. (In re James F. (2008) 42 Cal.4th 901, 918–919

(James F.).) “In James F., our Supreme Court determined that a juvenile 

court’s violation of a parent’s due process rights in a dependency proceeding 

may be deemed harmless ‘[i]f the outcome of a proceeding has not been 

affected’ by the violation.”

6 (In re Esmeralda S., supra, 165 Cal.App.4th at 

p. 93.) 

Mother contends the appointment of the guardian was prejudicial 

because the guardian “consented to the inappropriate delegation of visitation 

with the children to the social worker,” rather than seeking therapeutic 

visitation and family counseling. Mother argues had such services been 

provided, “it may have led to a different result at the permanency planning 

hearing.” We disagree.

First, Mother has not demonstrated the court would have allowed 

ongoing visitation. The Agency filed a motion to terminate visitation because 

it was detrimental to minor’s and Je.O.’s well-being. Mother engaged in 

inappropriate discussions with the children, leaving them distraught for an 

extended period following her visit. The children also were adamant that 

they would not attend future visits with Mother. In light of this evidence, the 

6 While courts are split on whether the appropriate standard is 

harmless beyond a reasonable doubt or clear and convincing evidence, we 

need not resolve this dispute. (Compare Denny H. v. Superior Court (2005) 

131 Cal.App.4th 1501, 1514–1515 [clear and convincing evidence] with In re 

Esmeralda S. (2008) 165 Cal.App.4th 84, 94 [beyond a reasonable doubt].) 

Under either standard, we find the error harmless.
14

court likely would have granted the Agency’s motion to suspend visitation. 

(See In re Julie M. (1999) 69 Cal.App.4th 41, 50 [A “parent’s liberty interest 

in the care, custody and companionship of children cannot be maintained at 

the expense of their well-being. [Citation.] While visitation is a key element 

of reunification, the court must focus on the best interests of the children ‘and 

on the elimination of conditions which led to the juvenile court’s finding that 

the child has suffered, or is at risk of suffering, harm specified in section 300.’ 

[Citation.] This includes the ‘possibility of adverse psychological 

consequences of an unwanted visit between mother and child.’ ”].) 

Undoubtedly, the modified visitation order agreed to by Mother’s 

counsel and the Agency—no visitation unless approved by the social worker 

as being in minor’s best interests—appears problematic. (See, e.g., In re 

Donnovan J. (1997) 58 Cal.App.4th 1474, 1476–1478 [juvenile court cannot 

impermissibly delegate to the child’s therapist, child protective services 

agency, or any third person, unlimited discretion to determine whether 

visitation is to occur].) But Mother is not challenging the validity of the 

modified visitation order but rather whether the appointment of the guardian 

ad litem caused prejudice to her. And on that question, the guardian’s 

agreement to modify visitation—which sought to avoid an order prohibiting 

visitation and a finding of detriment—arguably preserved more flexibility for 

Mother to reinstate visitation. 

While Mother contends the guardian should have sought therapeutic 

visitation, she cites to no evidence that the Agency would have agreed to such 

visitation or that the court would have entered such an order. (See James F., 

supra, 42 Cal.4th at p. 918 [“it is reasonable to infer, in the absence of 

evidence to the contrary, that a guardian ad litem has acted zealously to 
15

preserve the parent’s interest in the companionship, care, and custody of the 

child”].) Such speculation does not amount to evidence.

Second, Mother fails to demonstrate the termination of parental rights 

arose from the lack of visitation. For the court to order extended 

reunification services, it was required in part to conclude Mother “made 

significant progress in resolving the problems that led to [minor’s] removal” 

and “demonstrated capacity and ability to complete the objectives of the 

treatment plan.” However, the record demonstrates a concerning lack of 

progress, specifically around Mother’s ability to acknowledge her emotional 

and physical abuse of minor and Je.O. Both the Agency’s 12-month status

review report and the section “366.26 WIC Report” note Mother continues to 

deny the substantiated allegations of abuse and neglect that the children 

experienced while in her care. The status review report expounds upon 

Mother’s denials, stating: “[Mother] is adamant that ‘nothing happened,’ 

stating the children are lying and she never abused the children . . . . For the 

last 12 months, [Mother] has maintained a narrative that she does not 

believe her children are being truthful with the [Agency], their therapist, 

their attorneys, their CASA [(court-appointed special advocate)], their 

teachers, or their extended family members regarding their disclosures of 

abuse and neglect while in her care, and she maintains that the older sister, 

[D.O.] is ‘brainwashing’ the children.” Mother “unwaveringly believes she 

was ‘the best mother in the world.’ ” The social worker explained that over 

the past year of services, Mother “has continued to fail to understand the 

impact of the abuse and neglect on the children’s mental health, and 

emotional development.” 

In addition to Mother’s refusal to acknowledge her past abuse, the 

children “report[ed] hundreds of incidences of ongoing harassment” toward 
16

them and their caregiver, D.O., “through constant phone calls, voicemails, 

text messages, picture messages, and entreaties” over the past year. This 

harassment resulted in criminal prosecution of Mother and an extension of 

the existing restraining order. Mother also demonstrated ongoing emotional 

dysregulation through tears, yelling, and making demands while interacting 

with the Agency. The Agency received no documentation from Mother that 

she engaged in any mental health services or completed the teenager

parenting program, and Mother’s counselor for her “managing emotion class” 

informed the social worker he did not believe Mother’s behavior had changed 

since the beginning of the program. 

The court’s decision to terminate parental rights arose from Mother’s 

failure to demonstrate any behavioral changes or acknowledge and address 

the abuse and neglect underlying the petition. And, as a result of Mother’s 

failure to acknowledge the harm she caused her children, the court held 

minor’s placement to be both necessary and appropriate. The termination of 

parental rights was not based on the lack of visitation. Rather, it was

primarily focused on Mother’s conduct toward minor, Je.O., and D.O. 

Accordingly, appointment of the guardian ad litem and his subsequent 

agreement to limit Mother’s visitation, did not meaningfully impact Mother’s 

ability to reunify with minor. Rather, her own conduct and consistent denials 

of any abuse were the primary causes of her failure to reunify and, 

ultimately, the termination of her parental rights.

III. DISPOSITION

The order is affirmed.
17

MARGULIES, J.

WE CONCUR:

HUMES, P. J.

SANCHEZ, J.

A159723

In re J.O.