In re Z.O. ( 2022 )

Filed 4/27/22; Modified and certified for partial publication 5/24/22 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re Z.O., a Person Coming Under the
Juvenile Court Law.
ORANGE COUNTY SOCIAL
SERVICES AGENCY,
G060663
Plaintiff and Respondent,
(Super. Ct. No. 20DP1345)
v.
OPINION
C.O.,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Jeremy
D. Dolnick, Judge. Reversed and remanded with instructions.
Linda B. Puertas, under appointment by the Court of Appeal, for Defendant
and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su,
Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
* * *
INTRODUCTION
Juvenile dependency courts shoulder a sacred burden in our system of
justice. Facing heavy workloads with correspondingly heavy factual records, they stand
as stewards of the welfare of each child brought before them. This burden is not an easy
one, yet our experience is that our dependency courts carry it with remarkable efficiency
and diligence. Rarely do we feel the need to second-guess their decisions.
But we must always bear in mind one of the ultimate consequences of
dependency proceedings: the termination of parental rights. There are few consequences
as weighty. It is therefore incumbent upon us as a reviewing court to ensure that the
procedures employed are commensurate with the outcome. As the United States
Supreme Court has stated, “The fundamental liberty interest of natural parents in the care,
custody, and management of their child does not evaporate simply because they have not
been model parents or have lost temporary custody of their child to the State. Even when
blood relationships are strained, parents retain a vital interest in preventing the
irretrievable destruction of their family life. If anything, persons faced with forced
dissolution of their parental rights have a more critical need for procedural protections
than do those resisting state intervention into ongoing family affairs. When the State
moves to destroy weakened familial bonds, it must provide the parents with
fundamentally fair procedures.” (Santosky v. Kramer (1982) 455 U.S. 745, 753-754.)
In those rare instances where the state does not provide such procedures,
the record must demonstrate that the lack of observance of proper procedures was
harmless beyond a reasonable doubt. Here, C.O. (mother) appeals from an order
terminating her parental rights to her daughter Z.O. The juvenile court appointed a
2
guardian ad litem (GAL) for mother without providing grounds or explanation in the
record, as it was required to do. We agree with mother that this error deprived her not
only of the ability to participate at critical stages in the proceedings, but also the ability to
effectively appeal and challenge the juvenile court’s reasoning for the appointment of the
GAL, i.e., that mother lacked competence to understand the nature or consequences of
the proceedings and to assist counsel regarding the underlying litigation. Unfortunately,
the record before us in the present matter does not give us sufficient confidence that the
error was harmless beyond a reasonable doubt. And as a result, we must reverse the
judgment and remand for further proceedings.
FACTS
On October 6, 2020, the Anaheim Police Department received a report of
flooding inside a hotel room occupied by mother, who at the time appeared to be under
the influence. Upon responding to the call, they found no one in the room. The walls
and electrical outlets were burned, and the sprinkler system had been triggered. Police
were able to locate mother nearby and questioned her. She stated she had been trying to
destroy cameras and other surveillance equipment over the previous week, because she
believed the management of the hotel had placed them around her room.
Mother had been living in the hotel with four-year-old Z.O. since May of
1
2020, with Z.O.’s father, J.O. (father) periodically visiting. Father and Z.O. were
present as mother was destroying the room, but father had left with the child before
authorities arrived. Mother was arrested and taken into custody. The matter was
referred to the Orange County Social Services Agency (SSA) the same day.
Mother had an SSA referral history going back to 2006 with her previous
partner and children, and to November 2012 with father. There were allegations of
1
Mother and father were married but separated. They were sharing custody
of Z.O. by informal agreement.
3
neglect and domestic violence occurring in front of the children. Mother had failed
voluntary family services in 2007 and her parental rights were terminated as to the three
children she had with her previous partner. Additionally, she and father had failed
reunification services and had their parental rights terminated as to Z.O.’s older sibling in
2015. Mother and father relied on public assistance, and father admitted there had been
domestic violence between he and mother. However, he denied using physical discipline
with Z.O.
At the time of her 2020 arrest, mother was found to have a
methamphetamine pipe in her possession and admitted to firefighters she had smoked
methamphetamine that morning. But at the time of her interview with SSA on October
16, 2020, she denied using the drug. She also denied having any mental health issues,
even though she insisted there were cameras in her hotel room. When father was asked
about mother’s conduct the day of the incident, he expressed no concerns and said she
was “fine.” SSA felt the couple was minimizing what had occurred.
Given the prior investigations, mental health and drug issues, and other
factors, SSA determined Z.O.’s safety was at high risk and applied for a protective
custody warrant on October 16, 2020. This was granted and Z.O. was placed in foster
care on October 17, 2020. A dependency petition was filed on October 20, 2020, under
2
Welfare and Institutions Code section 300, subdivisions (b)(1), (g) and (j). A detention
report was filed the same day. Because of previous referrals and the parents’ failure to
2
All further statutory references are to the Welfare and Institutions Code
unless otherwise indicated.
Section 300, subdivision (g) provides that the dependency court may take
jurisdiction over a child when, inter alia, she “has been left without any provision for
support [or] the child’s parent has been incarcerated or institutionalized and cannot
arrange for the care of the child; or a relative or other adult custodian with whom the
child resides or has been left is unwilling or unable to provide care or support for the
child.”
4
reunify with their older child, SSA recommended Z.O. be detained, with the parents
permitted monitored visits. SSA also requested the parents undergo regular drug testing.
Mother reported having Native American ancestry. She had family
members from the Cherokee and Blackfeet tribes, but she herself was not a member.
Father reported no Native American ancestry. However, in February 2013, a previous
juvenile court had found the Indian Child Welfare Act (25 U.S.C.§ 1901 et seq.; ICWA)
did not apply.
The initial detention hearing was held (via videoconference because of the
COVID-19 pandemic) on October 23, 2020. Mother, who was still in custody, was
present in lockup for the hearing but never actually appeared. Her appearance was
waived by her appointed counsel. Counsel reported she might have Indian heritage
3
through her father and sister. The court ordered the child detained with mother permitted
eight hours of monitored visitation per week, and also ordered SSA to continue
investigating potential tribal membership. Findings under ICWA were deferred. A
jurisdictional hearing was set for November 13, 2020.
In preparation for filing its jurisdiction/disposition report on November 6,
2020, SSA interviewed mother at the jail to allow her an opportunity to admit or deny the
allegations in the dependency petition. In response to the allegation that she had
unresolved mental health issues, mother gave a somewhat rambling response in which
she expressed what appeared to be paranoid thoughts about others harassing or following
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her. She also suggested she did not believe she did anything for which she should be
3
Mother filled out and filed a parental notification of Indian status form
(Judicial Council form ICWA-020) on the same date as the detention hearing, stating she
believed her biological father and biological sisters had Cherokee and Blackfoot lineage.
4
For instance, SSA’s petition alleged mother had been diagnosed with
anxiety and had been prescribed Paxil and Xanax, but when she attempted to discontinue
the medication, she began “seeing shadows” and contacted law enforcement multiple
times. She self-reported as much in 2009. But in her interview for the
5
criminally culpable: “No fire equals no arson equals no charges which equals no child
endangerment.” Mother had not been able to visit with Z.O. due to her incarceration, but
she did sign her case plan, which, in part, required her to seek mental health counseling
and take medications as prescribed.
Mother was not present for the jurisdictional hearing called on November
13, 2020, via videoconference, but she was represented by counsel. This attorney, Bianca
Jimenez, had substituted in after mother’s previous counsel declared a conflict. Because
of the change, the juvenile court continued the matter to January 11, 2021. SSA was
ordered to continue investigating possible Native American ancestry.
A few days after the November hearing, mother filed a letter with the court.
The court scheduled a hearing to consider whether a GAL should be appointed for mother
and ordered the letter sealed. After conducting a hearing, the transcript of which was also
sealed, the court appointed a GAL on January 4, 2021.
From that time forward, the GAL and mother’s appointed counsel made
appearances on her behalf. When the jurisdictional hearing was held, the GAL submitted
on mother’s behalf and the petition was sustained. The matter was set for a dispositional
hearing on March 18, 2021, which, again, mother did not attend. SSA sought a bypass of
reunification services, while Attorney Jimenez sought to persuade the court that
reunification would still be in Z.O.’s best interests. She explained to the court that
mother had been ordered to the state hospital to receive mental health treatment and
engage in sobriety with the goal of restoring her to competency. She also pointed out that
mother could not easily respond or reach out to SSA due to COVID protocols in the jail
system. The court set a selection and implementation hearing under section 366.26 for
jurisdictional/disposition report, she denied ever taking medication and blamed the
previous dependency cases for any mental health issues. She also said the “shadows” she
saw were made by her former boyfriend, Michael, whom she claimed was harassing her
and breaking into her home.
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July 15, 2021, and it ordered mother to be transported for the hearing. It declined to
order reunification services for the parents and noted mother had been involuntarily
hospitalized under a psychiatric hold.
An ICWA review took place on May 6, 2021, at which the GAL and
mother’s counsel appeared. The court found ICWA did not apply. Mother’s GAL
objected to the setting of a selection and implementation hearing.
SSA recommended that Z.O. be deemed adoptable, given that her foster
family was willing to adopt her, and that mother and father’s parental rights be
terminated. While mother was ultimately present for the selection and implementation
hearing, her parental rights were terminated and Z.O. was placed for adoption.
DISCUSSION
Mother challenges the termination of her parental rights on two grounds.
First, she argues the trial court committed reversible error in appointing a GAL to
represent her at the jurisdictional hearing onward. Second, she contends the juvenile
court lacked substantial evidence to find the ICWA inapplicable to Z.O.’s case. We
conclude reversal is required.
I. Guardian ad Litem
As a threshold matter, SSA contends mother waived her right to appeal the
GAL appointment because she failed to take a writ from the order setting the selection
and implementation hearing, which issued on March 19, 2021. The problem with this
argument is that there is no evidence in the record that mother was ever notified that a
GAL was appointed for her, prior to the selection and implementation hearing.
When the trial court set that hearing, it ordered the clerk to send notice to
both parents of their right to appeal the setting order at their “last known address.” The
clerk’s certificate of service indicates it and other prior orders were served on mother at a
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residential address in Orange, California. But this address was clearly no longer valid
because mother was incarcerated at the time, and everyone, including the court, was
aware of this. Indeed, the juvenile court ordered mother to be transported for the
selection and implementation hearing, demonstrating it knew she was still housed at
Women’s Central Jail. Mother had not previously appeared for any hearing except the
GAL hearing, and the court had never advised her it was sending notices to the Orange
address. Under these circumstances, there is good cause to consider her appeal despite
the failure to appeal the setting order. (See In re A.A. (2016) 243 Cal.App.4th 1220,
1241-1243; Cal. Rules of Court, rule 5.590(b).)
“In a dependency case, a parent who is mentally incompetent must appear
by a guardian ad litem appointed by the court. [Citations.] 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. [Citations.] The effect of the guardian ad litem’s
appointment is to transfer direction and control of the litigation from the parent to the
guardian ad litem, who may waive the parent’s right to a contested hearing. [Citations.]
[¶] 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. (2008) 42 Cal.4th 901, 910-911.)
8
Any “error in the procedure used to appoint a guardian ad litem for a parent in a
dependency proceeding is trial error that is amenable to harmless error analysis rather
than a structural defect requiring reversal of the juvenile court’s orders without regard to
prejudice.” (Id. at p. 915.)
The substantial evidence standard requires that the juvenile court find by a
preponderance of the evidence that a parent is incompetent under either Probate Code
section 1801 or Penal Code section 1367. (In re Sara D. (2001) 87 Cal.App.4th 661, 667
(Sara D.).) Penal Code section 1367 states: “A defendant is mentally incompetent for
purposes of this chapter 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.” (Id., subd. (a).) On
appeal, we review the entirety of the record to determine if the circumstances reasonably
justify the trial court’s conclusions, even if we believe the circumstances might also “be
reasonably reconciled with a contrary finding . . . .” (In re George T. (2004) 33 Cal.4th
620, 631.)
At the time it appointed a GAL for mother, the trial court made no explicit
finding of incompetence on the record. This was error. (See In re Jessica G. (2001) 93
Cal.App.4th 1180, 1188 [“The court’s decision on this issue should be stated on the
record”].)
What record we do have is difficult to parse. We have reviewed the sealed
portions of the record, which contains relevant information. But even having done so, we
cannot find any clearly articulated basis for the appointment. Mother filed her letter in
mid-November 2020. The court set the GAL hearing, and on January 4, 2021, it
appointed the GAL. The minute order appointing the GAL was entered pursuant to a
stipulation from the parties, and there were no appearances.
9
Later hearing transcripts indicate mother had been ordered by the criminal
court to a state hospital under an involuntary psychiatric hold to receive mental health
services with the goal of returning her to a competent position. The juvenile court
acknowledged this state of affairs on the record, but never expanded on the point, and it
did not make any competency findings.
We acknowledge that mother’s hospitalization is a potential indicator of
incompetence. As Division One of our court found some years ago, a parent’s
hospitalization for severe mental illness can serve as a basis for finding any procedural
error in appointing a GAL harmless beyond a reasonable doubt. (See In re Daniel S.
(2004) 115 Cal.App.4th 903, 914.) But hospitalization alone is insufficient. In In re
Daniel S., the panel had been presented with extensive evidence that the parent in
question was unstable and unable to effectively participate in the proceedings. (Id. at p.
914.) Medical staff at the psychiatric facility would not even allow her to attend hearings
because she posed a danger to herself and others. (Id. at pp. 908-909.) Here, we have no
such evidence.
Indeed, we have no idea of the condition mother was in when sent to the
hospital. We have evidence of neither a diagnosis nor a prognosis. When it made its
final ruling on the GAL motion, the juvenile court did not state whether it had received,
reviewed, or relied on the psychiatric evaluations from mother’s criminal case. It did not
include any such reports in the sealed portion of the record. We are thus left to speculate
as to what those reports might have said. The omission of any findings on competency
violated mother’s due process right to understand the reasons for the GAL appointment,
especially in light of the court’s disinclination to appoint one at first. The lack of
findings deprived mother of the ability to mount an effective appeal of the ruling.
We are unable to conclude this error was harmless. We have no
information on mother’s condition during the time the jurisdictional, dispositional, and
selection and implementation hearings were taking place. We do not know what
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evidence or testimony she might have presented. The GAL appears to have submitted on
SSA’s dependency petition and objected to the setting of the section 366.26 hearing. But
would the result have been different if mother had been permitted to appear herself? We
simply do not know the answer. Mother was almost completely eliminated from the
proceedings, first through waivers of her appearances at hearings and then through the
5
GAL appointment.
II. ICWA
Mother also takes issue with the trial court’s findings regarding ICWA. In
any juvenile dependency proceeding, both the trial court and SSA have “an affirmative
and continuing duty to inquire” whether a child “is or may be an Indian child” covered by
ICWA. (§ 224.2, subd. (a).) Notice is to be given to any tribes of which the child may be
a member so that they may intervene if appropriate. (§ 224.3.) “ICWA’s notice
requirements serve two purposes. First, they facilitate a determination of whether the
child is an Indian child under ICWA. (25 U.S.C. § 1903(4) [defining Indian child as ‘any
unmarried person who is under age eighteen and is either (a) a member of an Indian tribe
or (b) is eligible for membership in an Indian tribe and is the biological child of a
member of an Indian tribe’].)” (In re Isaiah W. (2016) 1 Cal.5th 1, 8 (Isaiah W.).)
“Second, ICWA notice ensures that an Indian tribe is aware of its right to intervene in or,
where appropriate, exercise jurisdiction over a child custody proceeding involving an
Indian child.” (Ibid.)
5
We are somewhat concerned at the amount of times mother’s appearance
was waived at hearings by her counsel. There does not appear to have been much inquiry
by the trial court as to the reasons why mother could not appear. As she was in custody
throughout the pendency of the case, we are puzzled as to why her appearance could not
be obtained prior to the section 366.26 hearing. We wish to underscore the need for trial
courts to make sufficient inquiry of counsel to satisfy themselves that parents have indeed
waived their right to appear at important hearings.
11
“If a court determines it has reason to know a child is an Indian child, the
court must notify the [Bureau of Indian Affairs] and any relevant tribe so that the tribe
may determine the child’s status and decide whether to intervene. [Citation.] If adequate
and proper notice has been given, and if neither the [Bureau of Indian Affairs] nor any
tribe provides a determinative response within 60 days, then the court may determine that
ICWA does not apply to the proceedings. [Citation.] At that point, the court is relieved
of its duties of inquiry and notice [citation], unless the [Bureau of Indian Affairs] or a
tribe subsequently confirms that the child is an Indian child [citation].” (Isaiah W.,
supra, 1 Cal.5th at pp. 14-15.) “Importantly, ‘[t]he relevant question is not whether the
evidence . . . supports a finding that the minor[] [is an] Indian child[]; it is whether the
evidence triggers the notice requirement of ICWA so that the tribes themselves may
make that determination.’ [Citation.] After proper notice has been given, if the tribes
respond that the minor is not a member or not eligible for membership, or if neither the
[Bureau of Indian Affairs] nor any tribe provides a determinative response within 60
days, then the court may find that ICWA does not apply to the proceedings. At that point,
the court is relieved of its duties of inquiry and notice unless the [Bureau of Indian
Affairs] or a tribe subsequently confirms that the child is an Indian child.” (Id. at p. 15.)
Based on mother’s reported Native American ancestry, SSA interviewed
her sister, stepmother, and father. Mother’s father had claimed Blackfeet heritage
through his mother and unknown tribal heritage through his father. Utilizing the
information gleaned from the interviews and public resources, SSA was able to reach out
to four tribes to seek information on Z.O.’s potential status as an Indian child: Cherokee
Nation, United Keetoowah Band of Cherokee Indians in Oklahoma, Eastern Band of
Cherokee Indians, and Blackfeet Tribe of the Blackfeet Indian Reservation of Montana.
By the time SSA filed its addendum report in January 2021, only the Cherokee Nation
had responded, saying, based on the information it had, Z.O. was not an Indian child. But
by April 29, 2021, SSA reported it had received responses back from all four tribes that
12
Z.O. was not eligible for ICWA status. On the basis of this report, the juvenile court
ruled, on May 6, 2021, that ICWA did not apply to the matter.
Mother contends the juvenile court’s finding was not supported by
substantial evidence because the SSA reports do not contain copies of the actual
correspondence exchanged with or received from the tribes. She also notes SSA did not
say which family tree or other biographical information it provided to the tribes to ensure
accurate information was provided.
“Where the record shows unequivocally that proper notice was given to the
proper tribes and that responses were received, and the only omission is the failure to file
a proof of service establishing that the notice and a copy of the petition were sent by
certified mail, error will not be presumed and compliance will be deemed sufficient.” (In
re Elizabeth W. (2004) 120 Cal.App.4th 900, 907.) Here, the reports indicated the tribes
responded to the notice in the negative, but the actual responses and communications
themselves were not included.
The entire judgment must therefore be reversed and remanded so the errors
noted in this opinion may be corrected. We understand that our disposition of this appeal
is likely, and regrettably, to create newfound uncertainty for Z.O., who is now nearly six
years old and was deemed adoptable by her foster family. Should the trial court
determine a new GAL hearing on mother’s competency is required, we believe it should
be done with utmost urgency in protection of the child’s well-being and stability.
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DISPOSITION
The judgment is reversed and remanded with the instruction that the trial
court expeditiously hold proceedings and/or make findings regarding the need, or lack
thereof, of a GAL for mother, and order SSA to supplement its ICWA investigation
reports to include correspondence with the noticed tribes.
SANCHEZ, J.
WE CONCUR:
O’LEARY, P. J.
GOETHALS, J.
14
Filed 5/24/22
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re Z.O., a Person Coming Under the
Juvenile Court Law.
ORANGE COUNTY SOCIAL
SERVICES AGENCY,
G060663
Plaintiff and Respondent,
(Super. Ct. No. 20DP1345)
v.
ORDER MODIFYING OPINION;
C.O., DENYING PETITION FOR
REHEARING; AND CERTIFYING
Defendant and Appellant. FOR PARTIAL PUBLICATION
[CHANGE IN JUDGMENT]
It is hereby ordered that the opinion filed on April 27, 2022, be modified as
follows:
1. In the editorial paragraph on page 1, second sentence, the word “Reversed” is
deleted and replaced with “Conditionally affirmed” so that the sentence reads:
Conditionally affirmed and remanded with instructions.
* Sections designated not published are listed within this order.
2. On page 2, first full paragraph under the “INTRODUCTION” section, delete
the last sentence beginning “Rarely do we . . . .”
3. On page 3, lines 8 and 9 from the top of the page, delete “reverse the judgment
and” so that the sentence reads:
And as a result, we must remand for further proceedings.
4. On page 7, last sentence in the first full paragraph in the “DISCUSSION”
section, replace the word “reversal” with “conditional affirmance” so that the sentence
reads:
We conclude conditional affirmance is required.
5. On page 13, third full paragraph, first sentence, replace the words “entire
judgment” with the word “matter” and in the same sentence delete “reversed and” so that
the sentence reads:
The matter must therefore be remanded so the errors noted in this opinion may be
corrected.
6. On page 14, delete the entire paragraph under the “DISPOSITION” section,
and replace it with the following paragraph:
The judgment is conditionally affirmed and remanded with the instruction that the
trial court expeditiously hold proceedings and/or make findings regarding the need, or
lack thereof, of a GAL for mother as of the time the GAL was originally appointed, and
order SSA to supplement its ICWA investigation reports to include correspondence with
the noticed tribes. After doing so, should the trial court make express findings that a
GAL was required at the time of the appointment, and should it find ICWA inapplicable,
our affirmance resolves the case.
2
These modifications change the judgment.
Respondent’s petition for rehearing is DENIED.
Appellant requested that our opinion in the above-entitled matter filed on April 27,
2022, be certified for publication in the Official Reports. For good cause, it now appears
that portions of the nonpublished opinion meet the standards for publication specified in
California Rules of Court, rule 8.1105. It is ORDERED that the opinion, as so modified
above, be certified for partial publication in the Official Reports. The portions of the
modified opinion to be excluded from publication are as follows:
The first full paragraph on page 5, beginning with “Mother reported
having . . . .”
On page 5, second full paragraph beginning with “The initial detention,”
exclude the fourth, fifth, sixth, and seventh sentences and footnote 3.
On page 6, first full paragraph, exclude the last sentence beginning “SSA
was ordered . . . .”
On page 7, exclude the first full paragraph beginning with “An ICWA
review . . . .”
On page 7, the first full paragraph under the “DISCUSSION” section,
exclude the third sentence beginning with “Second, she contends . . . .”
Exclude all of part II of the “DISCUSSION” section beginning on page 11
and ending on page 13 except for the final paragraph of part II located on page 13.
3
Under the “DISPOSITION” section, on page 14, in the newly inserted
paragraph, exclude the phrase “and order SSA” and all the words after that phrase in that
sentence.
Under the “DISPOSITION” section, on page 14, in the newly inserted
paragraph, exclude the words “and should it find ICWA inapplicable” from the last
sentence in the paragraph.
SANCHEZ, J.
WE CONCUR:
O’LEARY, P. J.
GOETHALS, J.
4