In re Samuel A. ( 2021 )

Filed 9/21/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re SAMUEL A., a Person B306103
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No. 19CCJP00325A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
PATRICIA A.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Craig S. Barnes, Judge. Reversed and remanded with
directions.
Liana Serobian, under appointment by the Court of Appeal,
for Defendant and Appellant.
Amir Pichvai for Plaintiff and Respondent.
________________________
The appointment of a guardian ad litem for a parent in a
dependency proceeding radically changes the parent’s role,
transferring direction and control of the litigation from the
parent to the guardian ad litem. While necessary to protect the
rights of an incompetent parent—an individual incapable of
understanding the nature and purpose of the proceeding or
unable to assist counsel in a rational manner—appointment of a
guardian ad litem is not a tool to restrain a problematic parent,
even one who unreasonably interferes with the orderly
proceedings of the court or who persistently acts against her own
interests or those of her child. Yet that is what occurred here:
The juvenile court appointed a guardian ad litem for Patricia A.,
the mother of five-year-old Samuel A. and unquestionably a
difficult party, without any finding, let alone evidence, of her
incompetence. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
1. Dependency Petition, Jurisdiction and Disposition
In June 2018 Patricia arrived at the hospital complaining
of a migraine headache. Her blood alcohol level measured
.297 mg/dL. Patricia explained to her medical providers she had
been sober for 11 years but had recently returned to drinking
alcohol socially and to alleviate her migraines. An investigation
by the Los Angeles County Department of Children and Family
Services (Department) into Patricia’s neglect of Samuel, who was
in daycare when Patricia checked herself into the hospital, was
closed as inconclusive.
On January 3, 2019 Patricia returned to the hospital, this
time complaining of pain she attributed to chronic diverticulitis.
Her blood alcohol level measured .296 mg/dL. Samuel was in
daycare. While hospitalized, Patricia exhibited shaking,
2
trembling, hot and cold sweats and increased agitation, which
her medical providers attributed to severe alcohol withdrawal.
Patricia left the hospital prior to receiving medical clearance for
discharge.
On January 16, 2019 the Department filed a petition
pursuant to Welfare and Institutions Code section 300,
1
subdivision (b)(1), alleging Patricia had a long and unresolved
history of alcohol abuse that made her unable to provide regular
care for Samuel. Following a hearing, Samuel was detained from
Patricia and placed under the temporary supervision of the
Department. Two weeks later the Department filed an amended
section 300 petition, adding a second allegation under
subdivision (b)(1) that Patricia suffered from severe and
untreated anxiety and depression, which also made her unable to
provide regular care for Samuel.
According to the evidence presented at the March 20, 2019
jurisdiction hearing, Patricia had a long (more than two-decade)
history of alcohol abuse. She had been sober for a time, including
during her pregnancy with Samuel, but had begun consuming
alcohol again to treat pain and anxiety. The Department
provided evidence Patricia had been verbally abusive to, and
threatened, nearly everyone in her orbit, including her neighbors
and landlord, Samuel’s babysitters, social workers and visitation
monitors. Patricia denied the allegations in the petition,
insisting she did not have a problem with alcohol, and, although
she may have anxiety, she did not suffer from a mental
impairment that jeopardized Samuel’s safety.
1
Statutory references are to this code unless otherwise
stated.
3
The court sustained both allegations in the amended
petition, finding Samuel to be a person described by section 300.
Proceeding directly to disposition, the court declared Samuel a
dependent child of the juvenile court, removed him from
Patricia’s custody and ordered monitored visitation for Patricia
for a minimum of six hours per week. The court also ordered a
variety of other family reunification services. We affirmed the
juvenile court’s jurisdiction finding based on Patricia’s alcohol
abuse and its disposition order removing Samuel from Patricia’s
custody with monitored visitation. We did not address the court’s
additional jurisdiction finding. (In re Samuel A. (Dec. 16, 2019,
B296535) [nonpub. opn.].)
2. The Department’s and Patricia’s Section 388 Petitions
and Patricia’s Court-ordered Psychiatric Evaluation
On April 29, 2019 Patricia filed a section 388 petition
seeking return of Samuel to her custody or, alternatively,
liberalized visitation, including unmonitored and overnight visits.
The Department filed its own section 388 petition the same day
requesting, among other things, a court-ordered Evidence Code
section 730 psychiatric evaluation and an order prohibiting
Patricia from contacting Samuel’s foster parent or coming within
a certain distance of the foster parent’s home. According to the
Department, Patricia’s harassment of Samuel’s foster parent had
already resulted in Samuel’s removal from one placement after
the foster parent told the Department she feared for her safety,
and his current foster parent had expressed similar concerns.
Following an extended hearing on both petitions, the court
denied Patricia’s section 388 petition, ruling she had not carried
her burden to show a substantial change of circumstances since
the March 2019 jurisdiction/disposition hearing. The court
4
granted the Department’s request to order an Evidence Code
section 730 evaluation for Patricia. Patricia’s appeal from the
order denying her section 388 request for liberalized visitation
was dismissed after a subsequent visitation order mooted the
appeal. (See In re Samuel A. (Feb. 18, 2020, B299022) [nonpub.
opn.].)
On August 28, 2019, prior to the six-month review hearing
(§ 366.21, subd. (e)), Patricia filed another section 388 petition
2
seeking, pursuant to section 390, to set aside the court’s
jurisdiction findings and dismiss the amended section 300
petition in the interests of justice. In support of her petition
Patricia relied primarily on the July 30, 2019 psychiatric
evaluation prepared by Dr. Suzanne M. Dupée, pursuant to
Evidence Code section 730, which Patricia attached to her
petition as an exhibit. Based on Dr. Dupée’s July 2019 interview
with Patricia, Patricia’s responses on the Minnesota Multiphasic
Personality Inventory-2 (MMPI-2) and Dr. Dupée’s telephone
conversation with Dr. Nadine Winocur, Patricia’s treating
psychologist, Dr. Dupée opined to “a reasonable degree of medical
certainty that [Patricia] does not suffer from any major mental
illness that impairs her ability to parent her child.” Although
Dr. Dupée acknowledged Patricia’s MMPI-2 results reflected “an
extreme attempt” to “present herself as being free of
2
Section 390 provides, “A judge of the juvenile court in
which a petition was filed, at any time before the minor reaches
the age of 21 years, may dismiss the petition or may set aside the
findings and dismiss the petition if the court finds that the
interests of justice and the welfare of the minor require the
dismissal, and that the parent or guardian of the minor is not in
need of treatment or rehabilitation.”
5
psychological problems in order to influence the outcome” of the
evaluation, preventing the examiner from interpreting the
results in “a straightforward manner,” Dr. Dupée nonetheless
concluded, based on her overall evaluation of Patricia and
telephone consultation with Dr. Winocur, that Patricia’s anxiety
and anger management difficulties were a “direct result of the
dependency proceeding” and not any underlying mental illness.
In its opposition to Patricia’s petition, the Department
highlighted deficiencies in Dr. Dupée’s and Dr. Winocur’s reports,
observing, in part, that both of them had based their conclusions
on Patricia’s representations without speaking with any of the
Department’s social workers.
On September 4, 2019 the court informed the parties of its
concerns about the lack of specific findings and test results in
Dr. Dupée’s report. The court ordered the Department to obtain
the psychometric testing data by the next scheduled hearing on
September 10, 2019, at which time the court would address both
a pending request by Patricia to dismiss her appointed counsel
and Patricia’s section 388 petition to set aside the jurisdiction
findings and dismiss the amended petition.
3
On September 10, 2019, following a Marsden hearing, the
court denied Patricia’s request to dismiss her appointed counsel
3
People v. Marsden (1970) 2 Cal.3d 118 addresses the
circumstances under which a criminal defendant has a right to
have his or her appointed counsel replaced and the procedures to
be used by the trial court in determining whether those
circumstances exist. Because parents have a statutory and due
process right to competent counsel in dependency proceedings, a
comparable mechanism for challenging the adequacy of their
representation by appointed counsel has been recognized by the
courts. (See In re M.P. (2013) 217 Cal.App.4th 441, 455
6
but granted her counsel’s request to withdraw from the case. The
court appointed new counsel, Patricia’s fourth attorney in less
than eight months. The court then granted Patricia’s new
counsel time to review the section 388 petition and the
psychometric test results supporting Dr. Dupée’s evaluation.
On September 12, 2019 the Department filed a walk-on
request for issuance of a restraining order to protect a social
worker, Samuel’s foster parent and Samuel from Patricia. The
Department informed the court that, after the last court hearing,
Patricia had gone to the home of Samuel’s foster parent despite
repeated warnings to stay away and her assurances to the court
at the prior hearing that she would follow that directive.
According to the Department, Patricia also called the child abuse
hotline and falsely accused the foster parent of following her in
his car and driving recklessly with Samuel in the car. The
Department stated Patricia was becoming increasingly erratic
and dangerous. Prior to a court hearing in late August 2019, the
Department reported, Patricia violently threw documents at a
person, resulting in “numerous bailiffs [taking] more than
two hours to subdue [Patricia].” A sheriff’s deputy at the time
noticed Patricia smelled of alcohol. In addition, the Department
reported Patricia had exhibited volatile behavior toward the
social worker during a monitored visit with Samuel at the
Department’s offices on September 4, 2019, screaming the social
worker was a criminal and a child abuser. After Patricia was
[“‘[j]uvenile courts, relying on the Marsden model, have permitted
the parents, who have a statutory and a due process right to
competent counsel, to air their complaints about appointed
counsel and request new counsel be appointed’”]; In re Z.N. (2009)
181 Cal.App.4th 282, 289 [Marsden principles apply in
dependency proceedings].)
7
unable to calm down and the social worker asked her to leave,
Patricia threatened the social worker, telling her “I know where
you live.” The social worker smelled alcohol on Patricia’s breath.
The Department also asked to include Samuel in the scope
of the restraining order, asserting Patricia’s “unpredictable and
violent conduct creates a substantial risk of detriment” to
Samuel. Following a recess, the court stated it was issuing a
temporary restraining order “on its own motion” until midnight
October 3, 2019. The court ordered a mental health evaluation
for Samuel, carved out an exception from the temporary
restraining order to permit Patricia to have telephonic visitation
with Samuel and set a further hearing on the restraining order
for October 3, 2019.
At the October 3, 2019 hearing Patricia’s counsel requested
the court grant the section 388 petition or schedule a hearing on
the merits; the Department urged the court to deny the petition
as procedurally improper and untimely; and Samuel’s counsel
stated she had no objection to setting the petition for hearing on
the same day as the upcoming six-month review hearing, as
several of the issues would overlap. Accepting the Department’s
argument the section 388 petition was procedurally improper and
an untimely new trial motion under Code of Civil Procedure
section 659, the court summarily denied the petition without
deciding whether Patricia had made a prima facie showing under
section 388 sufficient to warrant a hearing on the merits.
Patricia appealed from the summary denial of her
section 388 petition. On September 18, 2020 we reversed the
court’s order summarily denying Patricia’s section 388 petition,
explaining the juvenile court had erred in construing the
section 388 petition as an untimely new trial motion. (In re
8
Samuel A. (2020) 55 Cal.App.5th 1, 8-9.) We ordered the juvenile
court on remand to consider whether Patricia had made a
prima facie showing sufficient to justify a hearing on her
section 388 petition. (Id. at p. 9.)
3. Summary of Proceedings Leading to the Appointment of
a Guardian ad Litem for Patricia
The juvenile court first raised the possibility of appointing
a guardian ad litem sua sponte on November 1, 2019, after
granting the request of Patricia’s fourth counsel in these
proceedings to be relieved, necessitating a further continuance of
the contested six-month review hearing. On its own motion the
court scheduled a hearing for November 6, 2019 pursuant to In re
4
Sara D. (2001) 87 Cal.App.4th 661 (a Sara D. hearing) to
determine whether to appoint a guardian ad litem for Patricia.
At the Sara D. hearing, which began on November 6th and
continued to the following day, the court began by asking
Christine Milo, Patricia’s newly appointed counsel, whether she
was having any difficulty communicating with her client. Citing
her ethical duty of loyalty to her client, Milo requested the court
address its questions on this issue to Patricia directly. Turning
to Patricia the court explained its thinking: “[T]his hearing is to
decide the appointment of a guardian ad litem to act on your
4
In In re Sara D., supra, 87 Cal.App.4th 661, the court of
appeal held that, before appointing a guardian ad litem for a
parent in a dependency proceeding, the juvenile court must hold
an informal hearing and provide a parent with an oppourtunity
to be heard. (Id. at p. 665, 672; see In re James F. (2008)
42 Cal.4th 901, 910 [citing Sara D. with approval; due process
hearing required before appointment of guardian ad litem].)
Such a hearing is now commonly referred to as a Sara D.
hearing. (See In re A.H. (2013) 218 Cal.App.4th 337, 342.)
9
behalf. Let me explain what that is. It’s where someone would
be appointed by the court to interface with your attorney and
address the issues that [have arisen]. And the reason it comes up
is that I’ve reached a conclusion that there is some impediment
that seems to suggest you lack the capacity to advise and accept
direction from counsel, consult rationally, and understand the
proceedings. . . . There is a finite amount of time for you to
reunify with your son. And so much time has been devoted to
addressing your issues and not your son[’s]. And I’ll go through
all of that. And the concern is that when we get to the contest, if,
in fact, you are the impediment, you are the reason because of
certain deficiencies that prevent you from aiding counsel in
properly reunifying, you’ll run out of time.”
In response to the court’s inquiry whether she would
consent to the appointment of a guardian ad litem, Patricia
adamantly refused, expressing concern about the court’s
impression of her as the impediment to the proceedings. Patricia
stated, “I don’t know how the court got the impression, but I can
only guess that it’s because my court-appointed attorneys have
simply not done their job. And I’m going to just point out for the
purpose of time the most recent court-appointed attorney . . .
pretty much told me right away she has 200 cases to deal with at
the same time; that she has absolutely no time to read my emails,
to go and meet with me, and to go—really go—into this case.”
Patricia explained she had helped her counsel with exhibits,
obtained numerous recommendation letters on her behalf, and
her counsel simply do not want to hear it. “I clearly see
impediments in this case. But I’m viewing it from my
perspective. And my perspective as a parent is I have to rely on a
competent counsel to please help me who has the time to go and
10
help me.” Patricia explained she had repeatedly told her counsel
about biased social workers and asked for assistance in removing
a particular social worker, but her counsel disregarded her
request and failed to respond to numerous emails from Patricia
about preparing for the contested six-month review hearing.
The court replied it had initially believed Patricia’s conflicts
with counsel were due to several unexpected issues in the case
that required flexibility on its part. However, over time, “when I
look at the full record and I look at how you’ve conducted
yourself, I see that there is, in fact, a more logical explanation,
which is, I don’t think you understand the proceedings. I don’t
think you fully grasp how to advise and provide information to
counsel and work with them in a productive way; and that you
are, in fact, the impediment.”
Citing Patricia’s positive Evidence Code section 730 report,
Milo requested the court not appoint a guardian ad litem and
allow Milo the time to consult with her client and address
Patricia’s concerns. The court agreed not to appoint a guardian
ad litem, but told Patricia and Milo it would revisit the issue if
Patricia continued not to appreciate the ramifications of her
conduct.
On January 2, 2020, four days before the rescheduled
January 6, 2020 six-month review hearing, Milo, too, declared a
conflict, citing an “irreparable breakdown of the working
relationship between counsel and client whereby there are
irreconcilable differences between the lawyer and client resulting
in an ethical conflict” and requiring termination of the
representation. Following an in camera proceeding, first on
Patricia’s Marsden motion (which the court denied) and then on
Milo’s request to be relieved, the court granted Milo’s request on
11
January 6, 2020, appointed new counsel (Frank Ostrov) for
Patricia and continued the contested six-month review hearing to
February 3, 2020.
On January 22, 2020 Ostrov moved to be relieved as
counsel, citing Patricia’s hostile behavior and threats to him that
made it impossible for him to zealously represent her. The court
set a new guardian ad litem hearing for January 24, 2020 and
indicated it would address Ostrov’s motion then. Following
two continuances of that hearing due to Patricia’s unannounced
absences (Patricia later explained she had been in the emergency
room after being injured in an assault and was unable to contact
anyone), the hearing to address Ostrov’s request and
appointment of a guardian ad litem took place on February 3,
2020. Ostrov recited Patricia’s statements to him, which he had
recorded on his cell phone and played for the court. Among other
things, Patricia insulted Ostrov’s family and told him she wished
that he and his family would be killed. Patricia apologized for
her behavior and withdrew her Marsden motion.
The court initially denied Ostrov’s request to withdraw due
to an irreconcilable conflict, then granted it after hearing the
recording and Patricia’s admission that the recording was
accurate. The court described Patricia’s behavior on the
recording as “menacing” and recalled witnessing her outbursts
both inside and outside of the courtroom on other occasions (for
which security had been called.) The court appointed new
counsel for Patricia, Melineh Hatamian, and continued the six-
month review hearing to March 11, 2020. The court ordered the
guardian ad litem hearing “taken off calendar and taken into
abeyance,” based largely on Patricia’s assurances she was
committed to cooperating with the court and her new counsel.
12
On March 11, 2020, at the scheduled six-month review
hearing, Patricia made a Marsden motion to dismiss Hatamian
as her appointed counsel. The court denied the request, but
granted Hatamian’s request to be relieved as counsel due to an
irreconcilable conflict with Patricia in the representation. The
court appointed new counsel, Sherwin Hosseini Amazan;
continued the contested hearing to April 9, 2020, at which time it
would conduct a combined six- and 12-month review hearing
(§ 366.21, subds. (e), (f)); and stated its intent to continue on
March 12, 2020 the guardian ad litem hearing that “began
previously.”
On March 12, 2020 Amazan informed the court he believed
the case and client were simply too much for his solo practice and
asked if his experienced colleague, Niti Gupta, who was present
at the hearing, could substitute in for him. The court granted the
request, appointed Gupta as counsel for Patricia, and rescheduled
the combined six- and 12-month review hearings for April 3,
2020.
Proceeding directly to the continuation of the guardian
ad litem hearing, the court stated it had initially believed that
Patricia simply did not understand or appreciate the nature of
the proceedings and for that reason was incapable of
understanding and assisting her counsel. However, citing the
Evidence Code section 730 evaluation finding no evidence of a
DSM-5 recognized condition, the court stated, “[S]o I don’t think
it comes from mental health incapacity, and I have a feeling she
understands these proceedings.” Finding Patricia’s conduct was
a knowing and deliberate effort to obstruct proceedings she
believed were not going to be favorable to her, the court
appointed a guardian ad litem for her and ordered Patricia to
13
communicate with her counsel only through her guardian ad
litem. Gupta asked the court to stay its appointment order so
that she could consult with Patricia and determine if a guardian
ad litem was, in fact, necessary. The court agreed and stayed the
order but told Gupta it did not want any further delays caused by
Patricia’s conduct. If Gupta was unable to have meaningful
communication with Patricia, Gupta should alert the court; and it
would lift the stay of its guardian ad litem order.
In early April 2020, following continuation of the combined
six- and 12-month review hearing to May 7, 2020, Gupta filed a
stipulated request signed by all counsel to lift the stay of the
court’s prior order appointing a guardian ad litem for Patricia. In
her written request Gupta stated, “Counsel for mother has
worked extensively and diligently on this case since appointment
and has determined that an appointment of the guardian
ad litem is in fact necessary to assist counsel for the mother to
adequately, effectively, and competently represent the interests
of the mother in the upcoming section 21e/21f proceeding,
scheduled for May 7, 2020 at 8:30 am in said Department. [¶]
The undersigned has made every reasonable and diligent effort to
have an effective and meaningful line of communication and
cooperation with the mother without avail thereby making it
difficult for counsel to fulfill her professional and ethical
obligations.” The court lifted the stay of its March 12, 2020
guardian ad litem appointment order.
Patricia filed a timely notice of appeal from the March 12,
2020 and April 20, 2020 orders appointing a guardian ad litem.
14
DISCUSSION
1. Governing Law
“In a dependency case, a parent who is mentally
incompetent must appear by a guardian ad litem appointed by
the court. [Citations.] The test [for mental competence] is
whether the parent has the capacity to understand the nature or
consequences of the proceeding and to assist counsel in preparing
the case.” (In re James F. (2008) 42 Cal.4th 901, 910.) Stated
another way, “[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.)
“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 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;
accord, In re Jessica G. (2001) 93 Cal.App.4th 1180, 1186; In re
Sara D., supra, 87 Cal.App.4th at pp. 667-668.)
15
The appointment of a guardian ad litem for a parent in a
dependency case “is no small matter. The effect of the
appointment is to remove control over the litigation from the
parent, whose vital rights are at issue, and transfer it to the
guardian. Consequently, the appointment must be approached
with care and appreciation of its very significant legal effect.
‘The court is being asked to dramatically change the parent’s role
in the proceeding by transferring the direction and control of the
litigation from the parent to the guardian ad litem.’ . . . Because
the ‘decisions made can affect the outcome of the dependency
proceeding, with a corresponding effect on the parent . . . the
parent has a direct and substantial interest in whether a
guardian ad litem is appointed.’” (In re Jessica G., supra,
93 Cal.App.4th at pp. 1186-1187; accord, In re Sara D., supra,
87 Cal.App.4th at p. 668.)
2. The Court’s Appointment of a Guardian ad Litem for
Patricia Is Not Supported by Substantial Evidence
Patricia contends the court erred in appointing a guardian
ad litem for her. While acknowledging overwhelming evidence
that she was difficult, demanding, and frequently clashed with
her appointed counsel, she argues there was no evidence, and
indeed, no finding by the juvenile court, that she lacked the
capacity either to understand the nature of proceedings or to
assist counsel in a rational manner: The July 2019 Evidence
Code section 730 evaluation found Patricia did not suffer from an
underlying mental health condition; none of Patricia’s counsel
had suggested the difficulties experienced with her were caused
by Patricia’s mental incompetence; and even the trial court,
which initially believed she lacked the capacity to assist counsel,
16
ultimately appointed the guardian ad litem based on a finding
her lack of cooperation was strategic.
The Department responds that Patricia’s inability to assist
counsel in a rational manner was plain on the face of the record:
A multitude of experienced and competent counsel, and in some
cases, their entire law firms, moved to be relieved from
representing Patricia, citing irreconcilable differences and, at
times, a total breakdown in communication with their client.
That no attorney was able to represent Patricia for any
meaningful length of time, the Department argues, was prima
facie evidence of her inability to rationally assist counsel.
Contrary to the Department’s contention, Patricia’s
deliberate failure to cooperate with counsel, without more, does
not demonstrate incompetency. (See People v. Mendoza (2016)
62 Cal.4th 856, 879 [“[v]oluntary barriers to communication with
counsel on the part of a defendant who was able to cooperate [but
elected not to] do not demonstrate incompetence” under Penal
5
Code section 1367 ]; People v. Mai (2013) 57 Cal.4th 986, 1034
[“an uncooperative attitude is not, in and of itself, substantial
evidence of incompetence”]; People v. Clark (2011) 52 Cal.4th 856,
893 [“‘the test, in a section 1368 proceeding, is competency to
cooperate, not cooperation’”]; People v. Medine (1995) 11 Cal.4th
5
Penal Code section 1367 provides a defendant is
incompetent for purposes of a criminal trial “if, as a result of a
mental health disorder or developmental disability, the
defendant is unable to understand the nature of the criminal
proceedings or to assist counsel in the conduct of a defense in a
rational manner”—the same standard used to determine
competence for purposes of appointment of a guardian ad litem in
dependency proceedings (In re James F., supra, 42 Cal.4th at
p. 916).
17
694, 735 [“[d]efendant’s cursing and disruptive actions displayed
an unwillingness to assist in his defense, but did not necessarily
bear on his competence to do so”]; see also In re James F., supra,
42 Cal.4th at p. 916 [“[i]n a dependency proceeding, a juvenile
court should appoint a guardian ad litem for a parent if the
requirements of either Probate Code section 1801 [standards for
appointment of conservator] or Penal Code section 1367
[standards for finding criminal defendant mentally incompetent]
6
are satisfied”].)
The Department’s reliance on In re M.P., supra,
217 Cal.App.4th 441 to support the court’s ruling is misplaced.
In that case, a psychological examination found the mother
involved in a dependency matter suffered from schizophrenia,
paranoid type, with the presence of prominent delusions. The
mother’s counsel requested the court hold a guardian-ad-litem
hearing, advising the court, “[T]he mother . . . and I have run into
a conflict, and our understanding of one another. And I do
believe that she would benefit from the assistance of a guardian
ad litem in terms of making legal decisions and legal strategy.”
(Id. at p. 447.) The attorney explained that the mother did not
agree with the appointment of a guardian ad litem and wanted a
new attorney. The court held a Sara D. hearing. Citing a 2008
psychological assessment that found the mother had “‘serious
mental health needs’” and “‘is not able to . . . understand the
difference between facts as the majority of people are
experiencing [them] and the way that [she] is experiencing the
world around her’” and that it was “‘impossible to have a
6
The Department does not argue, and there is no evidence,
that Patricia meets the standard for appointment of a
conservator under Probate Code section 1801.
18
competent intelligible kind of a legal conversation,’” counsel
thought it best if the court appointed a guardian ad litem, who
would work with the mother and understand what needed to be
done “‘to move forward with this case.’” (Id. at p. 449.) During
the hearing the court questioned the mother. Following
responses from the mother that were “meandering, nonresponsive
and sometimes unintelligible” (id. at p. 450), the court appointed
a guardian ad litem for her.
On appeal the mother in In re M.P., supra, 217 Cal.App.4th
441 argued the court had simply assumed, without evidence, that
mother’s mental illness rendered her mentally incompetent to
understand the proceedings or assist her counsel in a rational
manner. The court of appeal rejected that argument and
affirmed the appointment of a guardian ad litem, finding
substantial evidence, “[b]ased upon [the court’s] exchange with
mother and her counsel at the closed [guardian ad litem]
hearing,” that the mother “could not rationally confer with her
counsel about the facts or rationally assist him with the case and
she could not rationally give and take advice regarding legal
strategy. Mother’s responses [at the hearing] indicated that she
was still delusional and did not appreciate her own mental health
problems that had led to the commencement of the dependency
proceeding.” (Id. at p. 454.)
Here, in stark contrast to In re M.P., none of Patricia’s
counsel expressed any doubt about Patricia’s competence, nor did
7
her responses to the court during the hearing suggest it. In fact,
7
Gupta was the only counsel who stated, in her request to
lift the stay of the prior court order appointing a guardian
ad litem, that the appointment was necessary to allow her to
competently represent Patricia at the upcoming six- and
19
citing Patricia’s favorable Evidence Code section 730 evaluation,
the court expressly found Patricia’s clashes with counsel were not
the result of any mental health disorder but were deliberate and
strategic, designed to frustrate and delay proceedings she
believed were going to be unfavorable to her. Yet,
notwithstanding a finding that Patricia was not incapable of
assisting, but merely unwilling to do so, the court appointed a
guardian ad litem for Patricia, reasoning it was the only means
available to move the case along and ensure Patricia had the
benefit of counsel while she still had some opportunity to reunify
with Samuel. However well-intended the court’s ruling may have
been, a parent’s due process right to communicate directly with
counsel in proceedings that could culminate in the termination of
8
her parental rights is fundamental. (In re Sara D., supra,
12-month review hearing. Gupta did not indicate Patricia was
unable, rather than unwilling, to cooperate with Gupta. And we
do not know any more about the basis for Gupta’s request
because the court did not hold a further hearing, but simply lifted
the stay of its earlier order based on its mistaken finding there
existed sufficient grounds for appointment of a guardian ad litem.
Gupta’s request, unaccompanied by the required due process
hearing and an opportunity for Patricia to respond (In re
James F., supra, 42 Cal.4th at p. 910), neither constitutes
substantial evidence to support the court’s appointment of a
guardian ad litem nor renders the appointment of a guardian
ad litem absent a proper hearing harmless. As discussed in
section 3, this is not a case such as James F. where the parent’s
incompetence is beyond dispute.
8
During the pendency of this appeal challenging the
appointment of a guardian ad litem, Patricia’s parental rights
were, in fact, terminated at a hearing at which she was
prohibited from communicating directly with counsel purportedly
20
87 Cal.App.4th at p. 669 [“transferring direction and control of
the litigation through appointment of a guardian ad litem [for a
parent] in a dependency proceeding may jeopardize the parent’s
interest as much, if not more, than any of the actions taken in the
cited custody cases finding a due process violation”]; see also In re
A.R. (2021) 11 Cal.5th 234, 245 [order terminating parental
rights is “widely recognized as ranking ‘among the most severe
forms of state action’”]; see generally M.L.B. v. S.L.J. (1996)
519 U.S. 102, 128.) Patricia’s right to actively participate in this
dependency proceeding may not be disregarded for the sake of
9
expediency. (See In re Josiah S. (2002) 102 Cal.App.4th 403,
representing her. (We take judicial notice of the juvenile court’s
May 7, 2021 order terminating Patricia’s parental rights
pursuant to Evidence Code sections 452, subdivision (d), and
459.) That order, as well as all other orders made by the juvenile
court while a guardian ad litem was in place, must be vacated.
9
The Department’s reliance on Code of Civil Procedure
section 372, subdivision (a), to argue expediency alone is a
sufficient basis for the appointment of a guardian ad litem is just
wrong. Code of Civil Procedure section 372, subdivision (a),
provides in part, “A guardian ad litem may be appointed in any
case when it is deemed by the court in which the action or
proceeding is prosecuted, or by a judge thereof, expedient to
appoint a guardian ad litem to represent the minor, person
lacking legal capacity to make decisions, or person for whom a
conservator has been appointed . . . .” This statute authorizes
appointment of a guardian ad litem only if the requirements for
appointment are met for a minor, a person lacking legal capacity
to make decisions (that is, a legally incompetent person), or a
person in a conservatorship. It does not authorize such a drastic
measure for expediency’s sake alone. (See generally In re
James F., supra, 42 Cal.4th at p. 910.)
21
417-418 [“We understand from our prior review of orders issued
in this case that appellant can be more demanding on the system
than others. But that does not justify denying her the rights
afforded under the law”].)
3. The Appointment of a Guardian ad Litem for Patricia
Was Not Harmless
Relying on In re James F., supra, 42 Cal.4th 901 and In re
Daniel S. (2004) 115 Cal.App.4th 903, the Department
alternatively argues that any error in appointing a guardian
10
ad litem was harmless beyond a reasonable doubt. In both
10
In In re James F., supra, 42 Cal.4th 901 the Supreme Court
held appointment of a guardian ad litem in violation of due
process was subject to harmless error review (that is, it was not
structural error) without specifying whether the question of
prejudice should be analyzed under the standard for state law
error stated in People v. Watson (1956) 46 Cal.2d 818, 836 (a
reasonable probability of a more favorable outcome), the more
exacting standard for federal constitutional error of Chapman v.
California (1967) 386 U.S. 18, 24 (harmless beyond a reasonable
doubt), or some intermediate standard of prejudice. (See
James F., at p. 911, fn. 1 [“[b]ecause we did not grant review on
the appropriate harmless error standard and the parties have not
briefed it, we do not address that issue here”].)
While we are inclined to agree with those appellate courts
that have found the Chapman standard appropriate for the due
process violation at issue (see In re Daniel S., supra,
115 Cal.App.4th at p. 914 [due process violation in appointing
guardian ad litem held harmless “beyond a reasonable doubt”];
In re Sara D., supra, 87 Cal.App.4th at p. 674 [due process
violation in appointing guardian ad litem reversible error unless
harmless beyond reasonable doubt]), we need not resolve that
question because the error in appointing a guardian ad litem for
22
James F. and Daniel S. the juvenile court appointed a guardian
ad litem for a parent in dependency proceedings without proper
notice to the parent or explanation to the party of the
consequences of its order. In both cases the due process
deprivation was held harmless because the parent’s incompetence
was beyond dispute. (See James F., at p. 916; Daniel S., at
p. 913.) Those cases have no application here, where, as we have
explained, there is no evidence of Patricia’s inability to assist
counsel due to a mental health disorder or developmental
disability.
The Department emphasizes the juvenile court only
appointed a guardian ad litem as a last resort, after finding other
measures it had utilized to control Patricia’s behavior (calling
security to prevent in-court outbursts after she was heard
shouting and seen throwing things in the hallway outside the
courtroom and issuing restraining orders to protect the subjects
of her out-of-court threats) insufficient to address Patricia’s
conflicts with her counsel. Implicit in the Department’s assertion
of these facts is the question: What is to be done with a parent
like Patricia, who engages in demanding, harassing, and even
threatening behavior with her counsel, undermining counsel’s
ability to provide effective representation and interfering with
counsel’s own personal well-being?
We appreciate the difficulty confronting counsel and the
court on the front lines of Patricia’s behavior. We also agree with
the juvenile court that Patricia has done herself no favors by
engaging in conduct that alienated her counsel and, at the very
least, delayed reunification efforts. Nonetheless, as Patricia’s
a parent without a supportable finding of incompetence is
prejudical under any standard.
23
appellate counsel points out, a large part of the problem was
caused by the court’s own rulings granting the requests of
numerous appointed counsel to be relieved following Patricia’s
unsuccessful Marsden motions. The court need not have granted
permissible withdrawal if the delay caused by replacement of
counsel would have prejudiced Patricia in proceedings in which
time is of the essence. (See Lempert v. Superior Court (2003)
112 Cal.App.4th 1161, 1173 [“[t]he determination whether to
grant or deny an attorney’s motion to withdraw as counsel of
record lies within the sound discretion of the trial court, having
in mind whether such withdrawal might work an injustice in the
handling of the case”]; Mandell v. Superior Court (1977) 67
Cal.App.3d 1, 4 [court has discretion to deny attorney’s request to
withdraw when withdrawal would result in an injustice or cause
undue delay]; see generally In re Jesusa V. (2004) 32 Cal.4th 588,
637 [the Legislature has declared that dependency actions be
resolved expeditiously]; In re Marilyn H. (1993) 5 Cal.4th 295,
310 [time is of the essence in dependency proceedings]; In re
11
Daniel S., supra, 115 Cal.App.4th at p. 913 [same].)
11
In denying Patricia’s Marsden motions to replace her
appointed counsel, the court implicitly recognized that bad
behavior directed to one’s own counsel is not grounds for
replacement of appointed counsel. (See, e.g., People v. Johnson
(2018) 6 Cal.5th 541, 576 [“[A] defendant may not force the
substitution of counsel by manufacturing a conflict or a
breakdown in the relationship through his own conduct.
[Citations.] Here it was defendant who repeatedly spit on and
unilaterally refused to cooperate or even speak with counsel—
and who ultimately assaulted counsel in open court. A defendant
cannot take such steps and then rely on that same behavior to
assert an irreconcilable conflict with counsel”]; People v. Michaels
24
To address Patricia’s behavior, Patricia’s counsel may find
it helpful to impose reasonable and well-defined limitations on
communications with Patricia, as Patricia’s appointed appellate
12
counsel seems to have successfully done. For instance, to
address Patricia’s sometimes hundreds of emails a day to counsel,
(2002) 28 Cal.4th 486, 523 [“Defendant cannot simply refuse to
cooperate with his appointed attorney and thereby compel the
court to remove that attorney. ‘“[I]f a defendant’s claimed lack of
trust in, or inability to get along with, an appointed attorney
were sufficient to compel appointment of substitute counsel,
defendants effectively would have a veto power over any
appointment and by a process of elimination could obtain
appointment of their preferred attorneys, which is certainly not
the law”’”].) Nevertheless, by repeatedly allowing Patricia’s
attorneys to withdraw following Patricia’s unsuccessful Marsden
motions, the court may have reinforced Patricia’s disruptive
conduct.
12
On June 7, 2021, after completion of briefing in this case,
Patricia’s appointed appellate counsel filed a request to withdraw
as counsel on two new appeals by Patricia from subsequent
juvenile court orders for which briefing had not yet begun.
Following appellate counsel’s consultation with the California
Appellate Project, counsel’s own recognition that she was best
suited for the representation in light of her extended involvement
in this case, and Patricia’s promise to rein in her demands and
refrain from the behavior that had impeded counsel’s ability to
represent her as well as to maintain her practice and her
personal well-being, Patricia’s appellate counsel asked this court
to stay any ruling on her request to withdraw pending further
developments on appeal, “if such need ever arises.” We granted
that request. (We take judicial notice of this information, which
is contained in the records of our court, pursuant to Evidence
Code sections 452, subdivision (d) and 459.)
25
counsel may require that Patricia send no more than a specific
number of emails (two or three, for example) in a 24-hour period
and state that counsel will respond only once during that same
(or some other reasonable) period, with the understanding that
these limitations (and Patricia’s violation of them) will not be
grounds for replacement of counsel, either through a motion by
Patricia or by counsel’s request to withdraw. To the extent
Patricia attempts personally to file documents while represented
by counsel, the court should reject those documents for filing
13
without ruling on them. If Patricia’s outbursts in the courtroom
continue (it appears Patricia has been able to control herself, at
least while in the courtroom), the court may take appropriate
measures, including, if necessary, having her removed. What the
court may not do is appoint a guardian ad litem as a response to
14
a legally competent, albeit exceedingly difficult, parent.
Our holding reversing the guardian ad litem orders will
require the juvenile court to vacate all subsequent orders made
13
Following the appointment of a guardian ad litem, Patricia
filed section 388 petitions in propria persona, without the
assistance of counsel or her guardian ad litem. We take judicial
notice of those filings (Evid. Code, §§ 452, subd. (d), 459) and
note, without deciding, that the act of filing an appropriate
petition for modification might be further evidence that Patricia
is capable of understanding the proceedings and assisting her
case.
14
The appointment of the guardian ad litem in a case such as
this one would seem to do little to ameliorate the harassment the
court found troubling. Such an order merely transfers the
intended target of Patricia’s behavior from counsel to the
guardian ad litem tasked with speaking with her counsel on her
behalf.
26
during proceedings in which Patricia was denied the benefit of
communicating directly with her counsel (see In re Kimberly F.
(1997) 56 Cal.App.4th 519, 535-536 [in light of reversal of court’s
order denying parent’s section 388 petition, the court’s
subsequent order terminating parental rights must also be
vacated]; see generally California Public Records Research, Inc. v.
County of Alameda (2019) 37 Cal.App.5th 800, 813). We
recognize that this will further delay already delayed
proceedings. While unfortunate, that is the inevitable
consequence of proceeding in a manner that violated Patricia’s
fundamental rights.
DISPOSITION
The court’s March 12, 2020 order appointing a guardian
ad litem for Patricia is reversed. On remand the juvenile court is
ordered to vacate its April 20, 2020 order and all subsequent
orders in which Patricia was denied the right to directly
communicate with her counsel, including the court’s orders at the
section 366.21, subdivisions (e), (f), hearing and the
section 366.26 hearing that resulted in the termination of
Patricia’s parental rights.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
27