In re J.O. CA1/1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re J.O., a Person Coming Under
the Juvenile Court Law.
NAPA COUNTY HEALTH & A159723
HUMAN SERVICES AGENCY,
(Napa County
Plaintiff and Respondent, Super. Ct. No. 18JD000048)
v.
J.H.,
Defendant and Appellant.
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.
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
2
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.
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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.
4
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
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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
6
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.
7
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
8
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
3Generally, 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.
4Mother 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.
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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—
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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
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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.
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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
6While 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.
13
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
14
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
15
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.
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MARGULIES, J.
WE CONCUR:
HUMES, P. J.
SANCHEZ, J.
A159723
In re J.O.
17