In re R.Z. CA3 ( 2022 )

Filed 8/30/22 In re R.Z. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re R.Z., a Person Coming Under the Juvenile Court C094471
Law.
SACRAMENTO COUNTY DEPARTMENT OF (Super. Ct. No. JD241006)
CHILD, FAMILY AND ADULT SERVICES,
Plaintiff and Respondent,
v.
R.Z.,
Defendant and Appellant.
Father of the minor appeals from the juvenile court’s dispositional order entered
on June 7, 2021. (Welf. & Inst. Code, § 395.)1 Father contends the juvenile court
violated his due process rights by appointing a guardian ad litem without substantial
evidence of his mental incompetence. The matter was fully briefed on April 14, 2022.
1 Undesignated statutory references are to the Welfare and Institutions Code.
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Finding sufficient evidence that father was incapable of understanding the nature and
purpose of the proceeding or was unable to assist counsel in a rational manner, we will
affirm the juvenile court’s order.
BACKGROUND
On December 8, 2020, the Sacramento County Department of Child, Family and
Adult Services (Department) filed a section 300, subdivision (b) petition on behalf of the
then 10-month-old minor based on mother’s history of untreated substance abuse and
father’s untreated anger management problems that impaired their judgment and ability
to care for the child. The minor was detained and placed with the maternal grandmother.
The juvenile court appointed counsel for mother and father and ordered supervised
visitation. It also explained the process to both parents and answered father’s questions.
Both mother and father agreed that mother had a drug problem and father had an
anger management problem, although father claimed he naturally spoke loudly and
denied cursing at and sending argumentative texts to social workers. Father began
courses on parenting and anger management.
At the February 1, 2021 jurisdiction hearing, father’s counsel indicated they were
requesting a contested hearing or trial. Father interjected that he believed it was too early
for trial and he wanted to respond to the petition first. The juvenile court explained to
father that if he wanted to challenge the allegations in the petition, his options were to
have a hearing with testimony, which the juvenile court called a trial, or a hearing with
argument but no testimony. Father continued to assert that he wanted to contest the
allegations, he did not want a trial, and no one was explaining the process to him. The
juvenile court asked if they could go forward that day, but father’s counsel said she
understood that father had additional evidence he wanted to present, which she told father
needed to be presented at a trial, so they were not prepared to go forward that day. The
trial court scheduled another hearing to determine whether the matter would be set for a
contested jurisdiction hearing.
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At a pretrial hearing, the Department said father’s behavior had created some
problems with visitation and that it would be asking that father participate in a mental
health examination in order to tailor services for him. Father’s counsel said they were
ready to confirm trial dates, but father indicated he wanted a new attorney appointed
because his current attorney had not helped him. The juvenile court heard and denied
father’s Marsden2 motion and the parties then discussed visitation. The juvenile court
suspended father’s in-person visits due to father’s behavior, limiting him to virtual visits
until the conclusion of trial.
Father retained private counsel. However, retained counsel moved to be relieved
due to a breakdown in communication. The juvenile court granted the motion and
reappointed counsel for father. Father then asked to represent himself, but the juvenile
court denied the request based on concern that father would continue to be disruptive. As
the discussion proceeded, father argued with the juvenile court, insisting his court-
appointed attorney was not properly representing him. Father’s court-appointed counsel
said she had hoped it would help for the juvenile court to speak with father, but given his
continuing behavior counsel requested the appointment of a guardian ad litem, stating
that father was unable to assist her with the case.
The juvenile court cleared the courtroom and held another Marsden hearing and a
guardian ad litem hearing. At the conclusion of the hearings, the juvenile court denied
father’s Marsden motion and appointed a guardian ad litem, finding that father was
incapable of understanding the nature and purpose of the proceeding and was unable to
assist counsel in a rational manner.
Following notice from this court and no opposition from the parties, we unsealed
15 pages of previously sealed reporter’s transcripts in the appellate record, including five
2 People v. Marsden (1970) 2 Cal.3d 118; see also In re Samuel (2021) 69 Cal.App.5th
67, 73, fn. 3 [a comparable mechanism is recognized in dependency proceedings].
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pages from the February 22, 2021 in camera Marsden hearing, four pages from the
March 25, 2021 in camera Marsden hearing, and all the pages from the March 25, 2021
in camera guardian ad litem hearing. (Cal. Rules of Court, rules 8.45-8.47.) With the
unsealed pages available to the parties, we gave them an opportunity to file supplemental
briefs addressing whether the juvenile court erred in appointing a guardian ad litem. The
Department filed a supplemental brief but father did not.
Additional relevant facts are set forth in the discussion.
DISCUSSION
Father contends the juvenile court violated his due process rights by appointing a
guardian ad litem without substantial evidence of his mental incompetence.
“[T]he primary concern in section 300 cases is whether the parent understands the
proceedings and can assist the attorney in protecting the parent’s interests in the
companionship, custody, control and maintenance of the child.” (In re Sara D. (2001)
87 Cal.App.4th 661, 667.) When the juvenile dependency court has knowledge of a
party’s incompetence, it has an obligation to appoint a guardian ad litem. (In re
A.C. (2008) 166 Cal.App.4th 146, 155.) “A person may be found incompetent if the
person was either incapable of understanding the nature and purpose of the
proceeding or unable to assist counsel in a rational manner.” (In re M.P. (2013)
217 Cal.App.4th 441, 452, original italics; see In re James F. (2008) 42 Cal.4th 901,
910.) On the other hand, “[v]oluntary barriers to communication with counsel on the part
of a defendant who was able to cooperate [but has elected not to] do not demonstrate
incompetence.” (People v. Mendoza (2016) 62 Cal.4th 856, 879.) The test is
“ ‘competency to cooperate, not cooperation.’ ” (People v. Clark (2011) 52 Cal.4th 856,
893.)
“Before appointing a guardian ad litem for a parent in a dependency proceeding,
the juvenile court must hold an informal hearing at which the parent has an opportunity to
be heard. [Citation.] The court or counsel should explain to the parent the purpose of the
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guardian ad litem and the grounds for believing that the parent is mentally incompetent.
[Citation.] If the parent consents to the appointment, the parent’s due process rights are
satisfied. [Citation.] A parent who does not consent must be given an opportunity to
persuade the court that appointment of a guardian ad litem is not required, and the
juvenile court should make an inquiry sufficient to satisfy itself that the parent is, or is
not, competent. [Citation.] If the court appoints a guardian ad litem without the parent’s
consent, the record must contain substantial evidence of the parent’s incompetence.”
(In re James F., supra, 42 Cal.4th at pp. 910-911.)
Father admits that during the pendency of the case he was argumentative and
obstreperous in court and belligerent and threatening to social workers and the minor’s
caretaker, the maternal grandmother. Nevertheless, he asserts that although he was
belligerent and rude, he was not incompetent, nor was he unable to assist counsel because
of a lack of mental capacity.
There is sufficient evidence that father was incapable of understanding the nature
and purpose of the proceeding or was unable to assist counsel in a rational manner.
At the February 1, 2021 hearing, father complained that he did not want to go to
trial but wanted to respond to the allegations in the petition. The juvenile court explained
to father that if he wanted to challenge the allegations in the petition, his options were to
have a hearing with testimony, which the juvenile court called a trial, or a hearing with
argument but no testimony. Father’s court-appointed counsel indicated she had also
explained this to father. Father continued to assert that he wanted to contest the
allegations, he did not want a trial, and no one was explaining the process to him. The
juvenile court asked if they could go forward that day, but father’s counsel said she
understood that father had additional evidence he wanted to present, which she told father
needed to be presented at a trial, so they were not prepared to go forward that day. The
trial court put the matter over.
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At the February 22, 2021 pretrial hearing, when the Department’s counsel
indicated she was ready to confirm trial, father asked, “trial for what?”
Father’s counsel informed the juvenile court during the first Marsden hearing that
on more than one occasion she had explained the process to father. She also explained to
father what they had to do to contest the allegations in the petition. Father agreed that his
attorney told him if he wanted to challenge the allegations in the petition he would need
to go to trial, but father wanted to challenge the allegations before then. Father said his
counsel was telling him the process but not really telling him the process, adding that his
attorney never told him he could contest the allegations in the petition. The juvenile
court directed father’s counsel to again explain the process to father.
At the second Marsden hearing, counsel explained that it was difficult to have a
conversation with father. Father had prepared a 100-page response to the section 300
petition and asked the juvenile court how he could contest the allegations if his counsel
would not file his paperwork. The juvenile court explained to father that he would be
permitted to present evidence at trial. Father said he thought he could file his 100-page
response, but the juvenile court explained: “No, that’s not how it works. You don’t turn
in a hundred page manifesto of how you feel about the case. You testify in court. You
testify under oath. The attorneys ask you questions. You don’t turn in a manifesto and
say, ‘This is my version. This is my version of the events. I want you to read all hundred
pages.’ ”
Father complained that the petition only contained allegations. The juvenile court
said that was the reason they were going to have a trial.
The guardian ad litem hearing followed the second Marsden hearing. After the
juvenile court explained the purpose of the guardian ad litem hearing and heard from
father, the juvenile court told father he would have to let them talk, that if he kept
interrupting he would have to leave the hearing. At that point the reporter’s transcript
indicates father was continually speaking at the same time the juvenile court was
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speaking. When the juvenile court asked father’s counsel why she thought the
appointment of a guardian ad litem would be appropriate, counsel said it seemed either
(1) father does not understand the proceedings, and counsel had a deep concern that he
really did not understand, or (2) whatever was going on with him in terms of his
functionality, it presented such a significant barrier to communication that father could
not assist her with the case. The reporter’s transcript indicated that father continued to
talk at the same time his counsel was speaking. Counsel said father’s attorneys had spent
about four to five hours just to explain that a trial was the method to challenge the
allegations in the petition. At that point in the guardian ad litem hearing, because father
kept using profanity, the juvenile court asked him to leave and father left the courtroom.
Father’s counsel said she still did not think father understood that the way to
challenge the allegations in the petition was by trial. She described father’s 100-page
document as father’s legible and illegible notes, some of which made no sense. She tried
to explain to father that she could not file the document and it was not the way to present
the information he wanted to present, but counsel believed father was incapable of
hearing anything she had to say. Counsel also said they probably spent hours on why
father wanted a section 388 petition for modification. She told father it was too early for
a section 388 petition, but according to counsel, father did not understand that such a
petition was not legally available to him at that point.
Father contends this case is like In re Samuel A., supra, 69 Cal.App.5th 67, which
involved a parent’s unruly and obstructive behavior. In that case efforts to address the
parent’s behavior, such as calling security, issuing restraining orders, and appointing
different counsel, were unsuccessful. (Id. at pp. 83, 74-77.) But Samuel A. is
distinguishable because there the parent had participated in a mental health evaluation
and had been found not to have an underlying mental health condition. (Id. at p. 79.)
And the juvenile court in that case found that the parent’s lack of cooperation was
deliberate and strategic. (Id. at pp. 77, 79.) It appointed a guardian ad litem as a way to
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move the case along and ensure that the parent had the benefit of counsel during the
reunification period. (Ibid.) The court of appeal reversed, holding that a guardian ad
litem may not be appointed for a legally competent, albeit exceedingly difficult, parent.
(Id. at p. 85.)
Here, unlike in Samuel A., there was no finding that father did not have an
underlying mental health condition, no finding that father’s conduct was deliberate and
strategic, and here father’s appointed counsel expressed concern that father did not
understand the proceedings. There is substantial evidence in this case that father did not
understand the proceedings. In any event, here there is sufficient evidence that father
could not assist his counsel.
DISPOSITION
The juvenile court’s dispositional order is affirmed.
/S/
MAURO, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
DUARTE, J.
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