Filed 2/14/14 In re E.P. CA1/5

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                       FIRST APPELLATE DISTRICT
                                                  DIVISION FIVE



In re E.P., a Person Coming Under the
Juvenile Court Law.

ALAMEDA COUNTY SOCIAL                                                       A137735
SERVICES AGENCY,
                                                                            (Alameda County
         Plaintiff and Respondent,                                          Super. Ct. No.
                                                                            OJ1101661101)
         v.

K. P.,

     Objector and Appellant.
_____________________________________/


         K.P. (mother) appeals from a juvenile court order terminating her parental rights
as to E.P. (daughter) following a Welfare and Institutions Code section 366.26 hearing
(.26 hearing).1 Mother contends the court’s delayed appointment of a guardian ad litem
for her “is reversible error.” We disagree and affirm.


         1
          Unless otherwise noted, all further statutory references are to the Welfare and
Institutions Code. Father is not a party to the appeal and is mentioned only where
relevant to the issues raised in mother’s appeal. (In re V.F. (2007) 157 Cal.App.4th 962,
966, fn. 2, superseded on other grounds as stated in In re Adrianna P. (2008) 166
Cal.App.4th 44, 57–58.)
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                   FACTUAL AND PROCEDURAL BACKGROUND
Detention, Jurisdiction, and Disposition
       Mother was incarcerated, awaiting trial on burglary charges, when daughter was
born in March 2011. A few days later, the Alameda County Social Services Agency (the
Agency) filed a section 300 petition alleging, among other things, that mother’s mental
health issues “periodically interfere[d] with her ability to care for and provide for”
daughter and that father’s whereabouts were unknown. (§ 300, subds. (b), (g).)
Specifically, the petition alleged: (1) mother “is diagnosed with schizophrenia and refuses
to take medication for this illness,” “does not believe that she has a mental health issue,”
and “has been hospitalized” at a psychiatric facility “six times”; and (2) “mother exhibits
volatile behaviors and . . . is experiencing delusions,” is “hearing voices,” is “disheveled
in appearance, will not shower for months, and believes people are following her.” The
Agency amended the petition to add an allegation that mother was incarcerated and
unable to care for daughter. (§ 300, subd. (g).)
       Following a detention hearing, the court detained daughter and placed her with
daughter’s maternal aunt (aunt). In its jurisdiction/disposition report, the Agency noted
mother has schizophrenia and had “been off her medications since late 2009. [She] has a
history of poor impulse control, violent altercations with family members, and poor
judgment. [M]other has been homeless for at least four years” and “does not exhibit the
ability to provide care” for daughter.
       Mother appeared at the contested jurisdictional and dispositional hearing in May
2011 and denied having a mental issue that interfered with her ability to care for
daughter. At the conclusion of the hearing, the court noted mother was deluded “as to the
nature and extent of her mental health issues.” The court explained that mother seemed
to be “alert and coherent” and “very intelligent” and “likeable” but that her animated
gestures were “concerning.” According to the court, until mother took “care of [her]
serious mental health issues,” daughter was “at risk.” Following the hearing, the court
declared daughter a dependent of the court, ordered reunification services, and directed
the Agency to arrange supervised visitation.

                                               2
The Appointment of a Guardian Ad Litem
         In August 2011, clinical psychologist Alejandro J. Ferreyra, Psy.D., assessed
mother. He noted her “memory and concentration appeared intact” but that she “may be
experiencing a brief psychotic episode characterized by fluctuating periods of
disorganized and bizarre thinking.” Dr. Ferreyra opined mother had “serious and
complex” mental health issues and a “propensity for erratic and periodic psychotic
behavior.” In addition, Dr. Ferreyra noted mother “had been in jail” and had “been
prevented from practicing behaviors which might be labeled ‘criminal activity.’ But, as
she lacks a reasonably reliable place to reside and a manner of employment for self
support, she will likely return to her old lifestyle” when released from jail. Dr. Ferreyra
observed mother “did not express sadness, regret, or longing for [daughter]. . . . Her
daughter did not appear to be a consideration for her.”
         In its November 2011 six-month review report, the Agency recommended
terminating reunification services and placing daughter in a permanent living
arrangement with her aunt. The Agency reported mother had attended “sessions, classes,
and participat[ed] in the random drug testing required of her.” According to the Agency,
however, mother continued “to deny her mental health issues, refuse[d] to participate in
psychiatric care and denie[d] she needs medication.”
         Mother did not appear at the December 2011 six-month review hearing. Her
attorney explained he did “not know why she’s not here, but she’s made clear that she is
opposed to [the Agency’s] recommendation.” The social worker told the court she had
spoken with mother, who said “she would be here, but she’s in a really difficult place
right now. She believes we kidnapped [daughter] so she went to the police station. . . .
[S]he’s just really in a bad place right now.” When asked by the court whether mother
was receiving any “assistance with therapy or anything,” the social worker explained,
“I tried everything, and she’s too paranoid. She doesn’t believe that I’m trying to help
her . . . .”
         The court told mother’s attorney, “[W]e may now finally be in a situation [ ] to
provide guardian ad litems . . . on a voluntary basis. . . . So at an appropriate time —

                                              3
today would be an appropriate time. If you want, and I’m not recommending that you do,
but in your professional, legal opinion your client needs a hearing on a GAL, let us know
sooner rather than later.” Mother’s counsel requested an appointment of a guardian ad
litem and the court ordered counsel to put the matter on the calendar for a Sara D.2
hearing. The court continued mother’s monitored visitation but gave the Agency
discretion to suspend it and set a January 2012 date for a contested six-month review
hearing.3
       Mother appeared on the date set for the six-month review hearing. She was
“distraught” and had “been yelling in the hallway” outside the courtroom. The court
explained it did not conduct a Sara D. hearing at the December 2011 six-month review
hearing because mother was not present. The court then asked mother’s counsel to
“make your record as to a request for appointment of a guardian ad litem.” Counsel
stated mother was unable to participate in the presentation of the case and described how
mother did not recognize him, was “self-talking,” and could not respond to his questions
in a coherent manner. The court told mother her attorney “doesn’t believe that given
your current mental situation that you are able to adequately assist him in the presentation
of your case. He wants to do a good job for you, and he doesn’t believe that he can do it
without having an intermediary, somebody that would step in and help you work with
your attorney in a presentation of your case.” The court then explained the purpose of a
Sara D. hearing and held one.
       At the conclusion of the Sara D. hearing, the court opined mother was “a
delightful person” with “tremendous mental health issues.” The court determined mother
needed a guardian ad litem because she could not understand the nature of the
proceedings and could not assist her attorney “without the help of a guardian ad litem.”
       2
         In re Sara D. (2001) 87 Cal.App.4th 661 (Sara D.).
       3
         In an addendum report prepared for the six-month review hearing, the Agency
recommended terminating reunification services and setting a .26 hearing. The
addendum report described a November 2011 visit where mother appeared to be
delusional. Mother told the Agency in early January 2012 she did not want supervised
visitation with daughter.

                                             4
At a March 2012 hearing, the court appointed a guardian ad litem for mother and set a
date for the combined six- and twelve-month review hearing.

Combined Six- and Twelve-Month Review Hearing
       In its May 2012 report, the Agency recommended terminating reunification
services and setting a .26 hearing. The Agency explained mother: (1) had not completed
her case plan, (2) was unwilling to participate in supervised visitation, (3) continued “to
deny her mental health issues,” (4) refused “to participate in psychiatric care,” and (5)
denied “she needs medication.” The Agency noted mother had been arrested in January
2012 for misdemeanor violation of a protective order and again in February 2012 for,
among other things, felony burglary.
       Mother declined to attend the combined six- and twelve-month review hearing and
her appearance was waived by her attorney and guardian ad litem. Following the
hearing, the court terminated reunification services and set a .26 hearing. The court
determined mother had made no progress toward alleviating or mitigating the causes
necessitating daughter’s placement.
The .26 Hearing
       In its .26 hearing report and in various addendum reports, the Agency
recommended terminating parental rights and selecting adoption as the permanent plan
for daughter. Mother testified at the .26 hearing. She described her visits with daughter
and opposed the termination of her parental rights. Following the hearing, the court
concluded daughter was adoptable and the beneficial parent-child relationship exception
did not apply. The court terminated parental rights.
                                       DISCUSSION
       Mother’s sole claim on appeal concerns the court’s purported delay in appointing a
guardian ad litem for her. According to mother, the court should have appointed a
guardian ad litem “from the very beginning of these proceedings.”
       “ ‘In a dependency case, a parent who is mentally incompetent must appear
through a guardian ad litem, to whom the parent yields management and control of the


                                              5
litigation. [Citations.] Before appointing a guardian ad litem for a parent in a
dependency proceeding, however, the juvenile court must hold an informal hearing at
which the purpose and powers of a guardian ad litem and the reasons for believing the
parent incompetent are explained to the parent and, if the parent does not consent to the
guardian ad litem’s appointment, the parent is given an opportunity to argue that a
guardian ad litem is not required. [Citation.]’ ” (In re M.P. (2013) 217 Cal.App.4th 441,
452 (M.P.), quoting In re James F. (2008) 42 Cal.4th 901, 904 (James F.).)
       “ ‘The test [of mental competence] 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.]’ [Citation.] A person may be found incompetent if the
person was either incapable of understanding the nature and purpose of the proceeding or
unable to assist counsel in a rational manner. [Citation.] . . . [¶] [T]he primary concern
in section 300 cases is whether the parent understands the proceedings and can assist the
attorney in protecting the parent’s interests in the companionship, custody, control and
maintenance of the child.’ [Citation.] ‘In a dependency proceeding, a juvenile court
should appoint a guardian ad litem for a parent if the requirements of either Probate Code
section 1801 or Penal Code section 1367 are satisfied. [Citation.]’[4] ‘[T]he trial court
must find by a preponderance of the evidence that the parent comes within the
requirements of either section.’ [Citation.]” (M.P., supra, 217 Cal.App.4th at p. 453,
italics omitted.)
       “[E]rror 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


       4
         Penal Code section 1367, subdivision (a) provides in pertinent part: “A defendant
is mentally incompetent . . . if, as a result of mental disorder or developmental disability,
the defendant is unable to understand the nature of the . . . proceedings or to assist
counsel in the conduct of a defense in a rational manner.” Pursuant to Probate Code
section 1801, a conservator may be “appointed for a person who is unable to provide
properly for his or her personal needs for physical health, food, clothing, or shelter” or
“who is substantially unable to manage his or her own financial resources or resist fraud
or undue influence.” (Prob. Code, § 1801, subds. (a) & (b).)

                                              6
than a structural defect requiring reversal of the juvenile court’s orders without regard to
prejudice.” (James F., supra, 42 Cal.4th at p. 915.) We reject mother’s claim that the
purported delay in appointing mother a guardian ad litem “rises to the level of structural
error.” As mother concedes, courts have considered — and rejected — this argument and
have applied a harmless error standard to review challenges like the one mother makes
here. (James F., supra, 42 Cal.4th at p. 915; In re Esmeralda S. (2008) 165 Cal.App.4th
84, 96 (Esmeralda S.).) Under the harmless error standard, “[w]e do not set aside the
judgment unless a different result would have been probable had the error not occurred.
[Citation.]” (In re A.C. (2008) 166 Cal.App.4th 146, 157 (A.C.).)
       We will assume for the sake of argument the court erred by failing to appoint a
guardian ad litem earlier in the proceedings. We conclude any delay was harmless
because mother has not — and cannot — demonstrate a different result would have been
probable had the court appointed a guardian ad litem earlier. A.C., supra, 166
Cal.App.4th at page 159, is instructive. There, the juvenile court terminated the father’s
parental rights and he appealed, claiming the court erred by failing to appoint a guardian
ad litem. (Id. at p. 148.) Specifically, the father argued a guardian ad litem “would have
made a difference in the outcome by challenging (1) the dependency court’s jurisdiction,
(2) [the minor’s] placement out of [his] care, (3) the recommendation against
reunification services for [him], and (4) the lack of visitation between” the father and the
minor. (Id. at p. 159.) The A.C. court disagreed and concluded, “[w]e do not think a
GAL would have changed that outcome.” (Ibid.) As the court explained, the father was
“gravely disabled due to mental illness” and was “unable to provide for his basic personal
needs for food, clothing, or shelter.” (Ibid.)
       As in A.C., mother cannot show she was prejudiced by the court’s failure to
appoint a guardian ad litem earlier in the case. Mother was unable to provide for her own
needs and “there is no doubt that [she] could not care for [her] daughter.” (A.C., supra,
166 Cal.App.4th at p. 159.) It is simply not probable the court would have declined to
terminate mother’s parental rights had the court appointed a guardian ad litem at the start
of the proceedings. Mother received 12 months of reunification services, but she failed to

                                                 7
take advantage of many of the services due to her mental illness. (See In re Enrique G.
(2006) 140 Cal.App.4th 676, 686–687 (Enrique G.) [appointment of guardian ad litem
harmless where mother did not participate in services offered by the Agency, did not visit
the minor, and did not remain in contact with the Agency].)
       Mother claims a guardian ad litem, appointed at the outset of the proceedings,
would have: (1) reduced “significant delays” in the commencement of reunification
services and visitation; (2) requested a “revised case plan” with “sufficient mental health
services”; and (3) facilitated communication between “all relevant parties.” We are not
persuaded. Mother has not explained how any of these actions would have made a
difference in the outcome of this case. Mother had the opportunity to visit daughter but
seldom took advantage of that opportunity; she informed the Agency she did not want to
visit daughter in a supervised setting. In addition, mother denied having mental health
issues and refused to receive treatment or take medication. Mother’s claim that the
guardian ad litem would have facilitated communication between mother and other
“relevant parties” only invites speculation about the likelihood of a more favorable
outcome. There is no evidence procedural deficiencies occurred due to the absence of a
guardian ad litem, nor that any such deficiencies played a role in the court’s decision to
terminate parental rights. “[A] finding that the juvenile court’s error was prejudicial must
be based on a claim of prejudice rather than speculation of possible prejudice — because
it is simply inefficient to reverse a dependency judgment based upon speculation that an
offending parent may have handled the case differently than his or her guardian ad
litem.” (Esmeralda S., supra, 165 Cal.App.4th at p. 96 [error in appointment of guardian
ad litem was harmless].)
       Mother’s claim that “guardianship was a potential and feasible option” does not
alter our conclusion. Mother does not explain what action the guardian ad litem could
have taken regarding guardianship and she ignores the statutory preference for adoption
as the permanent plan. “Because a parent’s claim to . . . an exception [to termination of
parental rights] is evaluated in light of the Legislature’s preference for adoption, it is only
in exceptional circumstances that a court will choose a permanent plan other than

                                              8
adoption. [Citation.]” (In re Scott B. (2010) 188 Cal.App.4th 452, 459.) Mother has not
identified any such exceptional circumstances.
       Mother’s reliance on In re M.F. (2008) 161 Cal.App.4th 673 (M.F.), is misplaced.
In that case, the mother was 14 when the dependency proceedings began. She waived her
right to a contested jurisdictional hearing, and her attorney appeared without her at the
dispositional and six-month review hearings and offered no evidence or argument. (Id. at
pp. 678, 681.) The dependency court failed to appoint a guardian ad litem for the mother
until just before the .26 hearing and later terminated her parental rights. On appeal, the
mother contended “the juvenile court erred by failing to appoint a guardian ad litem . . .
earlier in the proceedings.” (Id. at p. 678.) The appellate court agreed and reversed. It
explained the mother’s “rights were compromised at key hearings” because, among other
things, the mother waived her right to a contested jurisdictional hearing and the petition
did not allege any wrongful conduct by the mother. (Id. at p. 681.)
       M.F. is distinguishable. Here, mother was not a minor when the dependency
proceedings began and the dependency petition alleged wrongful conduct by mother.
Moreover — and in contrast to M.F. — mother attended and testified at the combined
jurisdictional and dispositional hearing. Unlike M.F., the court appointed a guardian ad
litem for mother before the six- and twelve-month review hearing. Mother’s rights were
not compromised by the court’s failure to appoint a guardian ad litem at the outset of the
case. “Under the circumstances of this case, it is clear that the outcome of the
proceedings would have been the same even if the court had” appointed a guardian ad
litem at the commencement of the dependency proceedings. (Enrique G., supra, 140
Cal.App.4th at p. 687.)
                                      DISPOSITION
       The order terminating mother’s parental rights is affirmed.




                                             9
                                 _________________________
                                 Jones, P.J.




We concur:


_________________________
Simons, J.


_________________________
Needham, J.




                            10
