Filed 11/7/14 In re John M. CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

In re JOHN M., a Person Coming Under
the Juvenile Court Law.


STANISLAUS COUNTY                                                                     F069175
COMMUNITY SERVICES AGENCY,
                                                                           (Super. Ct. No. 516878)
         Plaintiff and Respondent,
                   v.
                                                                                  OPINION
C.M.,
         Defendant and Appellant.

                                                   THE COURT*
         APPEAL from orders of the Superior Court of Stanislaus County. Ann Q.
Ameral, Judge.
         Mara L. Bernstein, under appointment by the Court of Appeal, for Defendant and
Appellant.
         John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County
Counsel, for Plaintiff and Respondent.
                                                        -ooOoo-


*        Before Levy, Acting P.J., Cornell, J., and Peña, J.
        Appellant C.M. challenges on appeal the juvenile court’s order appointing a
guardian ad litem for him without a full hearing. He further challenges the sufficiency of
the evidence on which the juvenile court established its dependency jurisdiction over his
11-month-old son, John, and ordered John removed from his custody. We affirm.
                     PROCEDURAL AND FACTUAL SUMMARY
        In November 2013, the Stanislaus County Community Services Agency (agency)
received a report that Natasha, appellant’s live-in girlfriend, gave birth to John,
appellant’s only child. Natasha and John were drug tested and the results were negative.
        Natasha told the hospital staff that she had four other children who were removed
from her care and adopted in the state of Washington after she failed to complete
reunification services. She said she was married to Thomas W. but that appellant was
John’s father.
        The hospital staff also reported that appellant (father) and Natasha behaved in a
“childlike” manner and that Natasha was receiving social security income (SSI) for “mild
retardation.” Father stated that he also received SSI because he was “retarded.” He said
he smoked marijuana in the past for seizures but stopped six months before.
        The social worker took then two-day-old John into protective custody and filed a
dependency petition alleging in part under Welfare and Institutions Code section 300,
subdivision (b)1 that father and Natasha exhibited “child like” behaviors and reportedly
had developmental delays that inhibited their ability to properly and adequately care for
John. The petition further alleged under section 300, subdivision (g) that Thomas was
incarcerated and failed to provide for John, and under section 300, subdivision (j) that
Natasha and Thomas neglected John’s half-siblings. The agency placed John in foster
care.
1     All further statutory references are to the Welfare and Institutions Code unless
otherwise specified.


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       The juvenile court appointed counsel and a guardian ad litem for father and
Natasha at the detention hearing. The juvenile court also ordered John detained and
ordered father to submit to paternity testing.
       In its jurisdictional/dispositional report, the agency recommended the juvenile
court adjudge John a dependent and provide father and Natasha reunification services.
The agency reported that father and Natasha were cooperative and wanted to reunify with
John. Father was engaged in substance abuse services, maintained his sobriety and
reported he was no longer using marijuana. Natasha completed a substance abuse
assessment and did not require services. They regularly visited John two to three times a
week, were both participating in parenting education, and were in the process of
completing their clinical assessments.
       The agency was concerned, however, because father and Natasha appeared to lack
basic parenting skills, including the ability to properly care for an infant. For example,
they put their unwashed fingers in John’s mouth to see if he was hungry and persisted in
using diapers that caused him a skin rash. On one occasion, they propped then seven-
week-old John in a straight back, hard chair (like a kitchen chair) and walked away in
order to take his picture. When he started to slump over, the foster parent grabbed him to
keep him from falling. The agency opined their lack of parenting skills posed a risk of
harm to John but that they could benefit from services.
       In February 2014, the juvenile court conducted a contested and combined
jurisdictional/dispositional hearing. By that time, father’s biological paternity had been
established. The juvenile court elevated his status to that of presumed father.
       Father was the only witness called. He testified he was ready to have John
returned to his care that day. He said he had been active in his services and believed he
could parent John to the best of his ability. He had no other children but had cared for a
roommate’s baby for a couple of hours while his roommate went grocery shopping. He

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knew how to bathe John, feed him appropriately and could distinguish between cries of
hunger and cries for a diaper change. He was not sure, however, if he could care for John
without Natasha’s help. He did not know how to take John’s temperature but had seen it
done and knew that if John’s temperature was over 100 degrees he needed to be seen by a
doctor. He did not know what size clothes and diapers John wore, what brand or type of
cream and shampoo to use for him and what type of formula he drank. Father said he
would call the children’s crisis center hotline, his doctor or Natasha if he needed
assistance. If father had an emergency, he would call 911 or an ambulance. He felt more
confident in other areas, such as giving John love, being there for him, and comforting,
feeding, changing, burping, and bathing him.
         Father testified that he was illiterate and Natasha served as his payee. However,
he had a good memory for prescription dosage and frequency and was able to take his
own medication as prescribed. If John was prescribed medication, father said he would
have the pharmacist or doctor review the prescription with him.
         Father further testified that he took a parenting class before John was born and
learned how to nurture a child in positive ways and provide positive reinforcement. He
also learned safety measures to protect a child in the home and prepared his home by
putting carpet on the floor, child locks on the cabinets and drawers and safety plugs in the
electrical outlets. He also made sure all the electrical wiring was placed out of John’s
reach.
         Following argument, the juvenile court sustained the petition after deleting the
section 300, subdivision (g) allegations and adding an additional subdivision (b)
allegation on its own motion. The new allegation stated: “both of the parents have
demonstrated in their interactions with their child an inability to provide for the safety
and healthy care of their child.” The juvenile court ordered John removed from father
and Natasha’s custody and ordered reunification services. The court also ordered the

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agency to investigate any other services that would help father and Natasha learn basic
infant care skills. The court also ordered the agency to refer father and Natasha to Valley
Mountain Regional Center (VMRC) for an assessment and amended their case plan
accordingly. The court set a hearing in early March to review the case plan.
        This appeal ensued.2
                                      DISCUSSION
1.      Guardian Ad Litem
        Father contends the juvenile court violated his due process rights by appointing a
guardian ad litem. He argues his rights were violated because (1) the juvenile court did
not explain the purpose and role of the guardian ad litem and (2) there was no evidence
he was mentally incompetent. We find no due process violation.
        “[T]he primary concern in [Welfare and Institutions Code] 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, fn. omitted.) If the juvenile court
has reason to believe that the parent is mentally incompetent, the court has the inherent
power to appoint a guardian ad litem. (Ibid.; Mabry v. Scott (1942) 51 Cal.App.2d 245,
256.)
        The appointment of a guardian ad litem transfers control over the litigation from
the parent to the guardian. (In re James F. (2008) 42 Cal.4th 901, 910-911.) “The
guardian ad litem has broad powers: ‘the power to control the lawsuit, including
controlling procedural steps necessary to the conduct of the litigation … and controlling
trial tactics.’ [Citation.] Because ‘the decisions made can affect the outcome of the
dependency proceeding, with a corresponding effect on the parent … the parent has a

2       Natasha did not appeal.


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direct and substantial interest in whether a guardian ad litem is appointed.’ [Citation.]”
(In re Jessica G. (2001) 93 Cal.App.4th 1180, 1187.)
       “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.
[Citation.]” (In re James F., supra, 42 Cal.4th at pp. 910-911.)
       Here, father consented to the appointment of the guardian ad litem as evidenced by
the following exchange he had with the court:

             “THE COURT: There was some discussion as to whether [father]
       needed a guardian ad litem.

              “[FATHER’S COUNSEL]: Yes, Your Honor. I know that [father]
       is on SSI for some developmental disabilities. I am able to communicate
       with him today. I think this is confusing for any parent who comes in, so I
       didn’t necessarily think that he found it any more or less … confusing than
       your average parent. [¶ ] So I think … it’s something that … needs to be
       further assessed, but the Court is certainly free to inquire of him.

              “THE COURT: [Father], I appointed [a guardian ad litem on behalf
       of Natasha]. That is not an attorney, but somebody to assist the parent in
       explaining the procedures. And a guardian ad litem is appointed only
       where a parent has difficulty with understanding not just legal stuff,
       because legal stuff gets complicated for everybody, but understanding the
       process and being able to help explain and help participate in the
       proceedings. [¶ ] Do you feel that you need somebody other than your
       attorney to assist you in these matters, sir?
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              “THE FATHER: Yes, Your Honor.

              “THE COURT: All right. [D]o you want the Court to appoint a
       guardian ad litem?

              “THE FATHER: Yes, Your Honor.”
       Father contends the juvenile court’s explanation was misleading and inadequate
because the court did not explain that a guardian ad litem is appointed for an
‘“incompetent’ parent,” did not state its basis for determining he was incompetent or
explain that the role of the guardian ad litem is to take over the management and control
of the litigation from the parent. Father speculates he may have objected to the
appointment had he been so informed.
       We are unaware of any case authority, and father does not cite any, that a juvenile
court can only appoint a guardian ad litem if it finds the parent is mentally incompetent.
In this case, the juvenile court did not find father was incompetent. It appears it
appointed a guardian ad litem to make sure he understood the proceedings. Therefore, it
did not have to explain to father that it found him incompetent and its reasoning for doing
so.
       As to whether the juvenile court sufficiently explained the role and power of the
guardian ad litem, we concur the juvenile court did not explain to father what he was
giving up. Nevertheless, we conclude any error if committed was harmless beyond a
reasonable doubt. (In re James F., supra, 42 Cal.4th at pp. 918-919.) The juvenile court
appointed the guardian ad litem not to act on father’s behalf or to withdraw his power to
control the litigation but to communicate with him and assist his understanding of the
dependency proceeding. The court appointed the guardian to protect and preserve
father’s due process rights not to infringe upon them. Indeed, the record is clear that
father’s counsel advocated for him and that the guardian did not infringe on his rights.
Father retained the right to be consulted, engage in dialogue with the court and testify.
Therefore, father was not prejudiced by the appointment of a guardian ad litem.
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          Father further argues the appointment of a guardian ad litem is inherently
prejudicial because the juvenile court’s view of him as incompetent influenced its
findings and orders at the jurisdictional and dispositional hearing. As we stated above,
there is no evidence the juvenile court believed father was incompetent. In fact, the
evidence appears to be otherwise. In making its rulings, the juvenile court commented
that father “gave some very intelligent answers” during his testimony.
          We find no error in the juvenile court’s appointment of a guardian ad litem for
father.
2.        Jurisdictional Findings
          Father contends substantial evidence does not support the allegations sustained by
the juvenile court under section 300, subdivisions (b) and (j). He also contends the
juvenile court violated his due process rights to notice and to confront and cross-examine
witnesses by adding the additional subdivision (b) allegation. We address father’s due
process argument first.
          “[T]he ability to amend according to proof plays an important role in the overall
dependency scheme. If a variance between pleading and proof … is so wide that it
would, in effect, violate due process to allow the amendment, the court should, of course,
refuse any such amendment. [¶] The basic rule from civil law, however, is that
amendments to conform to proof are favored, and should not be denied unless the
pleading as drafted prior to the proposed amendment would have misled the adversarial
party to its prejudice.” (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1041-1042, fn.
omitted.)
          Here, it cannot be said that the juvenile court’s amendment varied so widely from
the original petition that it violated father’s right to due process. The original petition
alleged that father and Natasha exhibited “child like” behaviors and reported
developmental delay and other psychological problems that inhibited their ability to

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properly and adequately parent John. In addition, the agency provided the juvenile court
specific examples in which father and Natasha’s “child like” behavior placed John at risk
of harm.
       Thus, going into the jurisdictional hearing, father and Natasha were on notice by
virtue of the petition and the agency’s report that they would have to defend against
allegations their behavior exhibited an inability to safely parent John. Therefore, the
juvenile court’s amendment of the petition to conform to the evidence did not violate
father’s due process rights.
       Further, substantial evidence supports the amended allegation. Jurisdiction is
appropriate under section 300, subdivision (b) where there is substantial evidence “[t]he
child has suffered, or there is a substantial risk that the child will suffer, serious physical
harm or illness, as a result of the failure or inability of his or her parent or guardian to
adequately supervise or protect the child ... or by the inability of the parent or guardian to
provide regular care for the child due to the parent’s or guardian’s mental illness,
developmental disability, or substance abuse.” The juvenile court need not wait until the
child is actually harmed to assume jurisdiction and take steps to protect the child, and it
may consider past events to determine whether the child presently needs the court’s
protection. (In re N.M. (2011) 197 Cal.App.4th 159, 165.)
       In this case, father had never cared for a baby and there were many important
aspects of infant care with which he was not familiar. He did not know for example how
to clothe John or what to feed him and he could not read prescription labels. In fact, he
readily admitted that he did not believe he could care for John without Natasha’s help.
Under the circumstances, there are many potential mistakes father could make in caring
for John that could cause John serious injury or even death. Therefore, the juvenile court
properly sustained its amended allegation.



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       Having concluded the juvenile court properly sustained the amended allegation,
we need not review father’s challenge to the other section 300, subdivisions (b) and (j)
allegations. “‘[I]f any one of the statutory bases for jurisdiction … enumerated in the
petition is supported by substantial evidence …, the reviewing court need not consider
whether any or all of the other alleged statutory grounds for jurisdiction are supported by
the evidence.’ [Citation.]” (In re Drake M. (2012) 211 Cal.App.4th 754, 762.)
       We conclude substantial evidence supports the juvenile court’s jurisdictional
finding under section 300, subdivision (b).
3.     Dispositional Order
       Father contends substantial evidence does not support the juvenile court’s order
removing John from his custody because there was insufficient evidence that John would
be exposed to a substantial risk of danger in his care and that there were no reasonable
alternatives to removal.
       “At the dispositional hearing, ... there is a statutory presumption that the child will
be returned to parental custody.” (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) In order
to remove a child from parental custody, the juvenile court must find by clear and
convincing evidence that removal is the only way to protect the physical or emotional
well-being of the child. (§ 361, subd. (c)(1).) The juvenile court must also determine if
the agency made reasonable efforts to prevent or eliminate the need for the child’s
removal. (§ 361, subd. (d).)
       Section 361, subdivision (c)(1), the governing statute, provides in relevant part:

       “A dependent child may not be taken from the physical custody of his or
       her parents ... with whom the child resides at the time the petition was
       initiated, unless the juvenile court finds clear and convincing evidence ...:
       [¶] … [t]here is or would be a substantial danger to the physical health,
       safety, protection, or physical or emotional well-being of the minor if the
       minor were returned home, and there are no reasonable means by which the
       minor’s physical health can be protected without removing the minor from
       the minor’s parent’s ... physical custody.”
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       “‘A removal order is proper if it is based on proof of parental inability to provide
proper care for the minor and proof of a potential detriment to the minor if he or she
remains with the parent. [Citation.] The parent need not be dangerous and the minor
need not have been actually harmed before removal is appropriate. The focus of the
statute is on averting harm to the child. [Citation.]’ [Citations.] The juvenile court’s
findings must be based on clear and convincing evidence. [Citations.] We review an
order removing a child from parental custody for substantial evidence in a light most
favorable to the juvenile court findings. [Citations.]” (In re Miguel C. (2011) 198
Cal.App.4th 965, 969.)
       Father contends the agency presented no evidence he posed a danger to John other
than its observations that he lacked basic parenting skills. The agency did not, for
example, offer any specific evidence about his and Natasha’s disabilities or test their
knowledge about infant care. Further, he contends, his testimony favored a finding there
was no danger. He cites for example, his testimony that he actively participated in
services and planned to implement safety measures at home, and his explanation as to
how he would care for John and respond in an emergency situation.
       The juvenile court concluded from the evidence, including father’s testimony, that
father and Natasha’s cognitive delays impacted their ability to make proper decisions for
John at that time. The court stated it did “not feel that it should wait until a child is
injured before it intervenes.” The juvenile court also stated that it was struck by father’s
admission that he could not parent John on his own at that particular time. Further, the
juvenile court did not foreclose the possibility that father and Natasha could reunify with
John despite any cognitive delay they may exhibit. Rather, the court stated, “I believe
that the parents can certainly be successful in [reunifying] with their son with more
services given to them.”



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       Under the circumstances, we conclude substantial evidence supports the juvenile
court’s finding that placing John in father’s custody would expose John to a substantial
risk of danger.
       We further conclude the agency’s efforts to prevent removal were reasonable. In
its report, the agency cited the services it provided father as its reasonable efforts. In
addition, at the hearing, the social worker informed the juvenile court that she inquired
and ascertained that there were parenting services tailored to father and Natasha’s needs.
She also stated that she attempted twice to contact VMRC to see what services were
available for the parents there but her telephone calls were not returned.
       Father’s primary complaint with respect to the agency’s efforts is that he was not
immediately referred to VMRC. However, he fails to show that VMRC offered services
suitable for his parenting needs, that the agency could have arranged those services for
him sooner, and that the services would have prepared him to take custody of John before
or at the time of the dispositional hearing.
       We conclude substantial evidence supports the juvenile court’s order removing
John from father’s custody and find no error on this record.
                                       DISPOSITION
       We affirm the orders.




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