In re Miguel G. CA3

Filed 6/17/13 In re Miguel G. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----

In re MIGUEL G. et al., Persons Coming
Under the Juvenile Court Law. C070896

BUTTE COUNTY DEPARTMENT OF (Super. Ct. Nos. J35538, J35539)
EMPLOYMENT AND SOCIAL SERVICES,

Plaintiff and Respondent,

v.

L.G.,

Defendant and Appellant.

L.G. (mother) appeals following the juvenile court‟s order terminating her
reunification services and visitation as to minors Miguel G. and C.G. (Welf. & Inst.
Code, § 395.)1 She contends the court erred by failing to appoint a guardian ad litem for
her sua sponte on the ground that she was incompetent. Concluding this contention is
forfeited, we shall affirm the orders.

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

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 FACTUAL AND PROCEDURAL BACKGROUND

In November 2010, Butte County Department of Employment and Social Services
(the Department) filed section 300 petitions as to Miguel G. (born in March 2006) and
C.G. (born in July 2005), alleging that mother was arrested on drug-related charges and
incarcerated in the county jail; the parental home was unsafe due to the presence of drugs
(including 19 pounds of marijuana) and drug-related paraphernalia accessible to the
minors; mother was not giving the minors prescribed medication; and father claimed he
was unaware of the dangerous conditions.2

Because the minors were allegedly autistic and clients of Far Northern Regional
Center, they were placed in a foster home licensed by that agency.3

At the contested jurisdictional hearing in December 2010, mother began
screaming uncontrollably while conferring with counsel and had to be escorted from the
courtroom; the juvenile court found that mother had voluntarily waived her right to
appear at that hearing. The court found the allegations of the section 300 petitions true.
At the Department‟s request, the court authorized two psychological evaluations of
mother.

The disposition report recommended denying reunification services to mother
under section 361.5, subdivision (b)(2) (mental disability). She was alleged to lack
impulse control and to have lashed out violently towards others since her incarceration.
She had refused to sign the release of information required to make referrals for
psychological evaluations.

2 Father‟s reunification services were terminated along with mother‟s. He was deported
prior to the 12-month review hearing. He is not a party to this appeal.
3 It turned out that only Miguel G. was truly autistic. C.G.‟s behavioral problems
disappeared once he was placed outside the parental home. On reevaluation of C.G., Far
Northern Regional Center closed his case because he was ineligible for their services.

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 At the contested dispositional hearing in April 2011, however, the Department
recommended services for mother because she had signed the necessary releases and had
begun to participate in services. The juvenile court ordered a reunification plan for the
parents and scheduled a six-month review for October 2011.

In July 2011, mother filed a Marsden4 motion. The juvenile court heard the
motion in August 2011.

Mother asserted among other things that counsel spoke to her only once briefly the
day before the dispositional hearing, failed to subpoena three teachers who regularly
came to mother‟s home because the minors had been kept out of school due to medical
problems, failed to subpoena the maternal grandmother (who wanted placement of the
minors), yelled at mother and told her she was “pathetic,” failed to keep his promises to
file a section 388 motion and a writ petition, failed to help her to obtain visitation with
the minors, and failed to get her a copy of the Department‟s latest report.5

Mother‟s counsel replied in part that after he learned mother had not received
visitation, he determined that she had not responded appropriately to questions on the
evaluation form, the social worker had not received the letters she said she was writing to
the minors, and she had not documented her charges against the Department. Counsel
could not file a section 388 petition so long as mother failed to comply with her case
plan.

4 People v. Marsden (1970) 2 Cal.3d 118.

5 The juvenile court interrupted mother to say that she would have to be removed from
the courtroom if she did not stop yelling at the court. Mother replied, “I didn‟t feel I was
yelling, but okay.”
As to visitation, the court stated that the disposition report described mother as
“impulsive, violent, and noncooperative,” which made it too risky to allow visitation with
the minors in jail. Mother replied that she had letters from two correctional officers
saying the opposite. (No such letters appear in the record.)

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 The juvenile court denied the Marsden motion, finding that counsel had been
representing mother properly and any deterioration in their relationship “has been
occasioned solely by [mother‟s] attitude.” The court then set a visitation and placement
hearing in September 2011.

The Department‟s interim review report recommended terminating visitation as to
mother, still incarcerated in the county jail pending trial on five felony charges, because it
would be detrimental to the minors. Mother had not signed and returned a copy of her
case plan agreement and was not complying with the visitation plan except by writing
letters to the minors. She either failed to return assignments required by her case plan or
returned them with the questions marked “[N/A].”6 She was assigned to a single cell in
the jail because she could not manage her behavior there.

The report attached a psychological evaluation of mother done in August 2011.
The evaluator could not make a clear diagnosis of mental disorder. The evaluator noted,
however, that mother refused to take responsibility for the actions that led to her
incarceration. She had an extensive history of substance abuse and neglectful conduct
toward her special-needs children. She relied heavily on respite care and tried to dictate
the delivery of services to her on her own terms. She had a long history of legal and
illegal prescription drug involvement and had been accused of “ „drug seeking‟ ”
behavior at a local emergency room. The large amount of marijuana found in her home
was enough to suggest an unsafe environment for the minors, yet she denied, incredibly,
that any amount at all was found. She was “at high risk to continue to engage in unsafe
behaviors around her children until such time as she admits to her errors in judgment and

6 The social worker opined that this conduct demonstrated “a severe lack of insight
and/or honesty.”

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begins to take responsibility for change.” “[H]er behaviors and justification of events
paint a bleak picture” of her ability to benefit from reunification services.

The six-month status review report recommended maintaining the existing orders,
but noted that the parents had made very little progress and continued to deny
wrongdoing.

In November 2011, the juvenile court ordered that mother receive at least one
noncontact visit in the jail if and only if she signed and returned the visitation guidelines.

At the contested six-month review hearing in December 2011, the juvenile court
ordered the minors‟ placements and the parents‟ reunification services to continue, but set
a 12-month review hearing the following month.

The 12-month status review report recommended terminating mother‟s
reunification services and visitation. Mother was convicted of drug and child abuse
charges in November 2011 and sentenced to four years eight months in county jail; she
would not be released earlier than May 2013. She still had not signed and returned the
visitation guidelines; though the social worker had sent them to her four times, she denied
receiving them. She also had not returned assignments dealing with substance abuse and
relapse prevention, claiming she had no drug problems and would have to answer the
assignment questions “ „N/A.‟ ” She had made no progress toward reunification and
maintained complete denial of wrongdoing.

On February 2, 2012, the date set for the contested 12-month review hearing,
mother‟s counsel, David Nelson, requested a continuance to discuss further with her
“what this hearing is about and what evidence is relevant.” Other counsel indicated that

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they believed mother was not capable of assisting Nelson at that time.7 The juvenile
court granted the requested continuance.

On February 8, 2012, mother filed a new Marsden motion. Her supporting
declaration, executed on a standard form, alleged every ground for the motion stated on
the form.8 In addition, she wrote on the form that counsel refused to appeal from all
appealable orders in the case and refused to help her to obtain visitation.

Before the beginning of the 12-month review hearing on February 23, 2012, the
juvenile court heard the Marsden motion. After mother spelled out her complaints,
Nelson replied as follows: He had tried to explain the procedures of dependency court,
but communication between them was “very difficult.” She wanted to relitigate
jurisdiction.9 She continually asked for a copy of a report which did not exist. She
complained that he had not filed a writ, but the only writ he had talked about was the one
that would be filed if her reunification services were terminated, which had not happened
yet. He had talked about filing a section 388 petition as to visitation, but that proved
unnecessary because the court calendared the matter on its own motion, as he had
repeatedly tried to explain to mother. He had litigated placement, the other main issue so
far, every time they went to court.

7 County counsel also said mother had signed and returned a visitation agreement, but
altered it by writing different terms on the face of the agreement. Mother‟s
“counteroffer” was unacceptable to the Department.
8 These include failing or refusing to confer and communicate with the declarant, to
subpoena witnesses and other evidence favorable to the defense, to prepare or present an
affirmative defense at the preliminary hearing (sic), to prepare or present critical
testimony, physical evidence, and expert witnesses, to prepare and file critical motions, to
impeach prosecution witnesses, and to present critical evidence at motion or writ
hearings.
9 The juvenile court took judicial notice that Nelson was not representing mother when
the jurisdictional hearing took place.

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 The juvenile court asked Nelson, “Would you briefly state what you‟ve done to
represent [mother]?” Mother interjected, “Nothing.” The court said it would have to
remove mother from the courtroom if she did not refrain from interrupting.

Nelson explained that he had met with mother three or four times in the jail and
had answered her phone calls when he was in the office; if not, his secretaries did. He
had spoken to her parents. He had done what he felt was appropriate to do on the case.
But he would not relitigate the jurisdictional hearing because “[t]hat ship has sailed, and I
have explained that to her a number of times.” Nor would he contact a private
investigator whose name she gave him, because that person was not his investigator and
was not a part of the juvenile court system.

Mother said, “We never had a jurisdictional hearing.” The court said, “Yes, we
did.” Mother said she was not there and was not told, “because the three teachers [who
visited her home] should have been subpoenaed.” The court said it would order that
mother receive a transcript of the jurisdictional hearing.

Mother then said she had asked Nelson to subpoena the teachers “for moral
character,” “for visits.” The court observed that mother had now had one visit in jail and
there was no hearing set on visitation because no one was currently asking the court to
terminate visits.10

Mother said, “They have just asked for termination of—what is that called, where
I write essays and I turn them in monthly?” The court replied that the Department had
requested termination of reunification services, the hearing was scheduled for March 1,
2012, and she could talk to Nelson about subpoenaing witnesses for that hearing.

10 The court also noted that, as mother had said earlier in the hearing, it appeared that
she would be released on home detention with an ankle bracelet, and future visitation
might depend on how that worked out.

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 Mother then asserted again that Nelson failed to communicate with her or to do
anything on the case. She also asserted that she had hired a private investigator on the
juvenile case, not on her criminal case, and paid her $13,000, yet Nelson would not talk
to the investigator.11 The court replied to the latter point, “We‟ve never seen that person,
so that person has never provided any information, so I am not sure where that money
went.”

The court ruled, “[T]o the extent that there are conflicts between the statements of
[mother] and her attorney, Mr. Nelson, made at this hearing, I believe Mr. Nelson, and
disbelieve [mother], for the following reasons: [¶] She does not seem to have an
understanding of what is [sic] transpired in this case. We are going to try to bring her up
to speed with that by providing her with the copy of the jurisdiction hearing. She doesn‟t
seem to understand the procedures in this matter; although I believe that Mr. Nelson has
taken great pains, and her prior attorney great pains, to try and explain the procedures to
her. This court has tried to take great pains to explain the procedures for her. [¶] I find
that Mr. Nelson has properly represented [mother], and will continue to do so. I find that
there has not been a breakdown in the relationship between Mr. Nelson and [mother] of
sufficient kind as would make it impossible for him to properly represent her, and the
motion for a Marsden is denied.”

The contested 12-month review hearing was held on March 13, 2013. No
transcript of the hearing has been furnished to us, but the minute orders show that mother
and other witnesses testified. The juvenile court found that mother had not made
progress toward reunification or complied with the visitation plan, and the minors were

11 Mother claimed she and father had sold their SUVs for $5,000 each and they had
raised $3,000 from a yard sale. The court did not explore whether mother‟s capacity to
retain a private investigator was consistent with the claim of indigence that had allowed
her to receive appointed counsel.

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doing well in foster placement. The court therefore terminated mother‟s reunification
services and visitation and calendared a section 366.26 hearing. The court advised
mother of her right to file a writ petition to challenge these rulings.

Mother filed notice of appeal in propria persona, specifying the court‟s order
denying her second Marsden motion and other earlier orders. She did not file a writ
petition.

DISCUSSION

Mother contends the juvenile court should have appointed a guardian ad litem for
her because she was incompetent, and the court‟s failure to do so vitiated the entire
proceedings, requiring remand and “a return to „square one.‟ ” (Cf. Code Civ. Proc.,
§ 372; In re James F. (2008) 42 Cal.4th 901, 910-911; In re M.F. (2008) 161 Cal.App.4th
673, 678-682.) This contention is forfeited.

“In a dependency case, a parent who is mentally incompetent must appear by a
guardian ad litem appointed by the court. (Code Civ. Proc., § 372; [citation].) The test 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., supra,
42 Cal.4th at p. 910.) If the juvenile court deems a party in a dependency proceeding
incompetent, it has a duty to appoint a guardian ad litem for the party sua sponte. (In re
M.F., supra, 161 Cal.App.4th at p. 679.)

In most instances, a parent who fails to file a writ petition after her reunification
services have been terminated will forfeit any claim that could have been raised in that
manner. (See In re M.F., supra, 161 Cal.App.4th at pp. 681-682.) Such forfeiture
normally does not violate the parent‟s due process interests “because the dependency
system has numerous safeguards built into it to prevent the erroneous termination of
parental rights.” (Id. at p. 682.) However, “[t]he failure to appoint a guardian ad litem in

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an appropriate case goes to the very ability of the parent to meaningfully participate in
the proceedings”; therefore, the forfeiture rule would not apply in such a case. (Ibid.)

Mother did not file a writ petition after her reunification services were terminated.
She relies on In re M.F., supra, 161 Cal.App.4th 673 as authority to avoid forfeiture, but
her reliance is misplaced. There, the mother was entitled to a guardian ad litem as a
matter of law because she was herself a minor. Since the court‟s failure to appoint a
guardian ad litem patently violated due process, a finding of forfeiture was precluded.
(Code Civ. Proc., § 372; In re M.F., at pp. 678-679, 682.) Those considerations do not
apply here.

First, mother‟s alleged incompetence is not a pure question of law, as in In re
M.F., but a mixed question of fact and law that was never raised by trial counsel. The
forfeiture rule is routinely applied to appellate contentions that depend on the resolution
of factual questions not raised below. (Bogacki v. Board of Supervisors (1971) 5 Cal.3d
771, 780; Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1489.)

Second, the record simply does not show that mother was incapable of
understanding the nature and consequences of the proceedings and of assisting counsel.
(Cf. In re James F., supra, 42 Cal.4th at p. 910.) She understood that the proceedings
were about the removal of the minors from her custody and that the consequences could
be permanent. She made many attempts (albeit sometimes misguided) to assist counsel.
The fact that she also made unfounded Marsden motions based on misunderstandings
does not distinguish her from many other parties in juvenile and criminal proceedings
whose competence is not in doubt. Finally, the psychological evaluator did not find
mother suffered from any disorder that would have prevented her from understanding and
participating in the proceedings.

We also note that when the juvenile court denied mother‟s Marsden motions, it
impliedly found that she was competent to participate in the proceedings. Thus, for

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instance, the court ordered that mother receive a transcript of the jurisdictional hearing,
which the court would not have done unless it thought she could comprehend it.

The fact that mother suffered from temperamental problems and engaged in self-
defeating behavior did not compel a finding of incompetence as a matter of law.12 Nor
did her difficulty in grasping the intricacies of juvenile dependency procedure. If a
parent who displayed any of these problems could not be deemed competent in a juvenile
dependency proceeding, competence would be the rare exception, not the norm.

Because mother‟s newly alleged incompetence did not require the juvenile court to
appoint a guardian ad litem on its own motion, her trial counsel never raised the issue,
and mother did not file a writ petition to challenge the termination of her reunification
services, her contention is forfeited.

DISPOSITION

The orders terminating mother‟s reunification services and visitation are affirmed.

BUTZ , J.

We concur:

BLEASE , Acting P. J.

MAURO , J.

12 Arguing to the contrary, mother asserts that “her uncontrollable screaming at the
jurisdictional hearing effectively resulted in the forfeiture of her right to challenge the
basis for dependency court intervention.” This argument fails for multiple reasons. First,
mother was represented by counsel at the jurisdictional hearing. Second, the record
shows no basis for a successful challenge to jurisdiction. Third, mother suffered no
prejudice from the court‟s exercise of jurisdiction because she received reunification
services.

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