as: 150 Cal.App.4th 278)
re Jaclyn S.
re JACLYN S., a Person Coming Under the Juvenile Court
County Human Services Department, Plaintiff and Respondent,
S., Defendant and Appellant.
for Partial Publication.FN*
to California Rules of Court, rules 8.1105(b) and 8.1110, only
the Background, Section I of the Discussion, and the Conclusion
are certified for publication.
Steven M. Woodside, Sonoma County Counsel, Phyllis Gallagher, Deputy Sonoma
County Counsel, Counsel for Plaintiff and Respondent.
E. Matsis, by Appointment of the First District, Appellate Program,
Counsel for Defendant and Appellant.
is an appeal by a mother from an order terminating
her parental rights.
& Inst.Code, §
otherwise indicated, all statutory references are to the Welfare and
child was born on December 17, 2005.
According to hospital records, the mother came in off the
street in labor.
She was dirty and disoriented and uncooperative, but the child
was delivered without problem.
The child was premature and had a cleft palate, inhibiting
the ability to nurse.
After the delivery, the mother was noted to be very
anxious and paranoid and suffering from hallucinations.
Both the mother and child tested positive for methamphetamine and
amphetamine, with ratings indicating very recent use.
The child was placed in the intensive care nursery.
According to hospital records, the mother's condition and behavior caused
the hospital to call a mental health facility, which was
familiar with the mother and responded she was not schizophrenic,
but did suffer from psychosis secondary to polysubstance abuse.
The hospital mental health staff determined the mother was not
a threat to herself or others, but reported she was
uncooperative and would not follow any recommendations for treatment.
A friend of the family told nursing staff the mother
had been homeless for four years, and had a history
of psychiatric disorders and alcohol abuse.
petition was filed on December 29, 2005, alleging a failure
to protect and a lack of provision for support.
The petition was supported by the report of a social
worker for the county human services agency (the agency).
The mother had told the hospital social worker she had
handled her own prenatal care.
She also said she *325
had had regular prenatal care, but she refused to sign
a release that would allow the social worker to confirm
She stated she had a place to live, but gave
several different stories about where she was living.
She did not know who the child's father was, explaining
she had had a sexual encounter with a man but
did not know his name.
She refused to sign a medical release for the child.
The social worker also reported the mother had another child,
who had been detained in 2001 after the mother had
been arrested for being under the influence of methamphetamine.
The mother's parental rights in that child were terminated in
2003, and the child has been adopted.
mother and her attorney appeared at a hearing held on
January 17, 2006.
The juvenile court, at the request of the mother's attorney,
and after discussing the matter with the mother, appointed a
guardian ad litem for the mother, and set the matter
over to February 2, 2006, for the jurisdictional hearing.
The mother appeared with the guardian ad litem and her
attorney on February 2. Her attorney informed the court the
guardian ad litem had explained to the mother her right
to contest the jurisdictional report and the consequences of submitting
the matter on the report, and the mother had agreed
to submit the matter on the report.
The court discussed the matter with the mother, who, while
complaining that the report was inaccurate and stating a concern
that the child was being put up for adoption, confirmed
she had spoken with the guardian ad litem and had
agreed that the matter should be submitted on the report.FN2
court found the allegations of the petition*326
to be true, and exercised jurisdiction over the child.
The mother had told the social worker she had no
Indian ancestry, but at the hearing the mother asserted her
mother's father “is
full, almost full-blooded Indian.”
The court therefore ruled the Indian Child Welfare Act (25
The mother provided the court with a permanent mailing address,
which the court ruled would be used for purposes of
notice unless or until the mother provided written notice of
a new permanent mailing address.
transcript of the jurisdictional hearing reveals the following, occurring after
the mother's attorney represented the guardian ad litem had discussed
the report with the mother, that the mother had been
informed of her right to contest the report, to cross-examine
the agency's witnesses, to bring in her own witnesses and
to testify on her own behalf, and that the mother
understood she was waiving those rights by submitting the matter
on the report:
[Addressing the mother]:
you hear what [the attorney] had to say?
that what happened?
She did explain all those things to you?
explained the rights basically, but we didn't speak about it
too much, but she did kind of explain that-those pretty
And so you have no-you're agreeing through [the guardian ad
litem] to have the court read the report and make
its decision on that report?
guardian ad litem], she's pretty trustworthy and she seems like,
yeah, she showed me the report.
And I don't agree with most of it, but the
last couple pages seem somewhat correct because I'm not putting
[the child] up for adoption. And, so, she says all
these things are said, but that's just hearsay, that's just
what people say, so that's what I'm going by.
So you feel comfortable doing this?
I don't know because I'm not real sure if that's
exactly what's being done, because maybe they're trying to put
her up for adoption or something.
just want my baby back.
I wouldn't have had her if I didn't want her,
I've had a lot of-I've had abortions, but I wanted
her so it's really difficult for me because it's a
lot of pain to go through and to have somebody
And I don't even know.
But, yeah, I pretty much agree with her, because she
seems like she knows what she's talking about.
I don't know a lot about law, but I'm a
hair stylist, I'm a mom and that's all I can
Honor, what might make the record a little more complete
is yesterday we met for over two hours.
And I actually read the entire report to her.
We went over the comments by the social worker, the
recommendations by the social worker.
We reviewed the prima facie.
Her actual disagreements are contained within the body of the
matter was put over to February 22.
The mother had been notified of the hearing, but failed
The mother's attorney and the guardian ad litem were present,
as were the attorneys for the child and for the
The mother's attorney requested a contested hearing, which was set
for March 20, 2006.
mother did not appear at the March 20, 2006 dispositional
By this time, the mother's visitation with the child had
been suspended, as it had been determined her behavior during
scheduled visits posed a high risk of safety to the
child and to the social worker monitoring the visits.FN3
social worker reported she had spoken to the mother by
telephone, informing her of the date of the hearing.
The guardian ad litem reported she had been attempting to
reach the mother by telephone, using three different numbers that
had been provided to her.
Three weeks previously, she had reached a man named Ron
who said he wasn't going to have anything to do
with the mother.
The guardian ad litem also reached the maternal grandmother, who
stated she had no idea where the mother was, but
said her home was always a resource for the mother.
The mother had never contacted the guardian ad litem, but
the friend, Ron, had delivered an envelope of handwritten notes
from the mother that morning.
The guardian ad litem had urged him to have the
mother show up for the hearing.
The guardian ad litem and the mother's attorney then submitted
the matter on the agency's report and recommendations.
The guardian ad litem signed a waiver of rights on
the mother's behalf.
mother sometimes was late and sometimes did not show for
On one occasion she smelled slightly of alcohol, and during
the visit became increasingly upset.
She responded to efforts to calm her by becoming verbally
abusive and using profanity and refused to hand the child
back to the social worker until the worker's supervisor threatened
to call the sheriff's department.
On another occasion, the mother called the social worker several
times, highly agitated because a visit had been cancelled because
of a county holiday.
An attempt to reschedule the visit failed when it turned
out the foster mother had a medical appointment for the
The mother's agitation increased during the course of the phone
calls, and the social worker terminated two of the calls
as the mother had become verbally abusive towards her.
Visitation was terminated a few days later after the mother
had been observed drinking a beverage out of a paper
bag in the parking lot and smelled of alcohol.
She became agitated and hostile, yelling at the social workers
The agency canceled the visit scheduled for that day.
It was decided visitation should be suspended until the agency's
safety concerns could be met.
The social worker left a detailed telephone message for the
Later, when she attempted to speak with the mother in
person, the mother refused to discuss the matter and ran
from the building.
court found reunification services had been terminated in connection with
the mother's older child because the parents had failed to
reunify with that child and the mother had not made
reasonable efforts to treat the problems that had caused the
child to be removed from her care and custody.
The court also found the mother had a history of
abusive and chronic use of drugs or alcohol, and had
resisted prior court-ordered treatment for the problem during the three-year
period immediately prior to the filing of the petition in
It found the mother had received actual and constructive notice
of the proceedings, but had voluntarily absented herself from them.
It found the mother had made no progress toward alleviating
or mitigating the causes necessitating removal of the child from
The court ruled reunification efforts would not benefit the child
or be in the child's best interests.
It set the matter over for a section 366.26 selection
and implementation hearing.
selection and implementation hearing was held on July 24, 2006.
The mother was present, as were her attorney and the
guardian ad litem.
The child had been living with a foster family for
several months, had adjusted well and was responding positively to
all the family members.
The foster parents wished to adopt her.
The mother's attorney reported the guardian ad litem had informed
her the mother had requested a new attorney, a new
guardian ad litem and a new judicial officer.
The guardian ad litem had instructed the attorney to submit
the matter to the court with the mother's comments.
The court discussed the situation with the mother, telling her
it was not going to step down, was going to
deny the mother's requests and would be accepting the direction
of the guardian ad litem to submit the matter on
the agency's report.
The court found it likely the child would be adopted
and that termination of parental rights would not be detrimental
to the child. It therefore terminated the mother's parental rights
and ordered a permanent plan of adoption.
of Guardian Ad Litem
mother claims error in the appointment of the guardian ad
a threshold matter, we agree with the parties that the
mother did not forfeit her right to make this claim
by failing to attack the appointment by writ.
re Joann E.
(2002) 104 Cal.App.4th 347, 353-354, 128 Cal.Rptr.2d 189 (Joann
re Jessica G.
(2001) 93 Cal.App.4th 1180, 1190, 113 Cal.Rptr.2d 714 (Jessica
little over one month after the dispositional hearing, the mother,
acting in pro per, filed a writ petition, asking that
the order setting the matter for the section 366.26 hearing
be vacated, also asking for reunification services and to be
given custody of the child.
The mother's petition stated no grounds for relief and this
court summarily denied the petition.
It need not be decided here whether the mother's petition
adequately raised an issue as to the appointment of the
guardian ad litem, as under the cited authorities, the issue
is not waived by the failure to seek review by
applied to dependency cases, section 372 of the Code of
Civil Procedure requires the appointment of a guardian ad litem
if a parent is incompetent.
re Sara D.
(2001) 87 Cal.App.4th 661, 667, 104 Cal.Rptr.2d 909 (Sara
A parent is incompetent if the parent is unable to
understand the proceedings or cannot assist the attorney in protecting
the parent's interests in the companionship, custody, control and maintenance
of the child.
re Enrique G.
(2006) 140 Cal.App.4th 676, 684, 44 Cal.Rptr.3d 724 (Enrique
93 Cal.App.4th at p. 1186, 113 Cal.Rptr.2d 714;
87 Cal.App.4th at p. 667, 104 Cal.Rptr.2d 909.) When the
court has knowledge of the parent's incompetency, its failure to
appoint a guardian ad litem is error.
re Lisa M.
(1986) 177 Cal.App.3d 915, 919, *328
225 Cal.Rptr. 7.)
But case law also has established it is error, and
a denial of due process, to appoint a guardian ad
litem if the parent has not agreed to the appointment
or is not truly incompetent, because the effect of the
appointment is to remove the control of litigation from the
(2005) 129 Cal.App.4th 27, 32-35, 27 Cal.Rptr.3d 872 (C.G.);
re Daniel S.
(2004) 115 Cal.App.4th 903, 912, 9 Cal.Rptr.3d 646 (Daniel
104 Cal.App.4th at pp. 354-359, 128 Cal.Rptr.2d 189;
at pp. 1186-1189, 113 Cal.Rptr.2d 714;
at pp. 667-674, 104 Cal.Rptr.2d 909.)
There is a split in authority as to the nature
of the error.
Most courts require reversal only if the reviewing court cannot
say the error was harmless beyond a reasonable doubt.
at pp. 684-685, 44 Cal.Rptr.3d 724;
at p. 359, 128 Cal.Rptr.2d 189;
at p. 673, 104 Cal.Rptr.2d 909.)
There also is authority for holding the error to be
structural, requiring reversal of subsequent orders even without a showing
of resulting prejudice.
at pp. 33-34, 27 Cal.Rptr.3d 872.)
Supreme Court recently granted review in In
re James F.,
review granted March 28, 2007, S150316, for purposes of deciding
the proper standard of review for the erroneous appointment of
a guardian ad litem in a juvenile dependency case.
parent's due process rights are satisfied if the parent consents
to the appointment of a guardian ad litem or, if
the parent does not consent, the court holds an informal
hearing in which the parent has an opportunity to explain
why a guardian ad litem is not required.
140 Cal.App.4th at p. 683, 44 Cal.Rptr.3d 724;
115 Cal.App.4th at p. 912, 9 Cal.Rptr.3d 646.)
It has been held that at the informal hearing, the
court or the parent's attorney must explain the purpose of
a guardian ad litem, why counsel believes the appointment is
necessary, and what authority the parent will be ceding to
the guardian ad litem.
The parent must be given the opportunity to respond.
at p. 684, 44 Cal.Rptr.3d 724;
93 Cal.App.4th at p. 1188, 113 Cal.Rptr.2d 714.)
a minimum, the court should make an inquiry sufficient to
satisfy it that the parent is, or is not, competent;
whether the parent understands the nature of the proceedings and
can assist the attorney in protecting his/her rights.”
87 Cal.App.4th at p. 672, 104 Cal.Rptr.2d 909;
at p. 684, 44 Cal.Rptr.3d 724;
at p. 1188, 113 Cal.Rptr.2d 714.)
court here conducted an informal hearing.
The mother's attorney told the court the mother had been
uncooperative, failing to show up for an appointed meeting and
on other occasions leaving messages she was too emotionally upset
to meet with the attorney.
As result, the attorney had been unable to meet with
the mother prior to the date of the hearing.
The mother then suggested a new attorney be appointed for
maybe Pat [Lansdowne] ...
somebody that wants to represent me.
Because, obviously, we don't-she doesn't like me, so I'm feeling
little bit insecure from the get-go.”
The mother's attorney stated she had spoken with Ms. Lansdowne,
who was available and willing to be the mother's guardian
The court explained to the mother, “[the
attorney] is asking that this Court, if it appoints Ms.
Lansdowne, that she would essentially be a person to assist
you and to act on your behalf in this matter
in coordination with [the attorney] because [the attorney] is claiming
that you are not able to fully understand and grasp
what is going*329
The mother disagreed with the attorney's assessment.
The attorney explained the mother's emotional state alternated from high
to low, making it difficult to speak to her or
to get her to do something she said she would
court stated a guardian ad litem will be appointed “where
there is inability to cooperate meaningfully with counsel because of
whatever condition is in existence.”
It asked if there was any evidence of the need
for the appointment besides the mother's emotional ups and downs
The court also asked the mother about the proceedings leading
to the termination of her rights in her other child.
The mother did not appear to understand what the court
was asking, and spoke instead about the difficulties she had
experienced trying to reach her attorney.
The court asked the agency's attorney for his comments.
The attorney began to talk about the earlier case, but
was interrupted by the mother who complained that neither she
nor her other child wanted the child to be talked
The agency's attorney then spoke about the agency's contacts with
the mother, stating the social worker also had asked that
a guardian ad litem be appointed and had expressed concern
about the mother's ability to understand and participate in the
The attorney asserted the mother had experienced difficulty understanding the
court's questions in a previous proceeding, and also in understanding
a standard letter from the agency.
On numerous occasions the mother's conversations with the social worker
indicated she was confused and disoriented.
She had been late for visits and meetings.
On one occasion the social worker had written down for
the mother the date and time of a visit, but
within five minutes the mother had called from the parking
lot, acting as if the conversation never had taken place.
court told the mother it was thinking of appointing Ms.
Lansdowne to assist her.
it's-she would not technically be your lawyer.
She would technically be kind of like consulting with [your
attorney] on your behalf if you were not 100 percent
aware of everything that you needed to be aware of.
In other words, Ms. Lansdowne would be empowered to speak
with you and then act in your interests as more
as like a client than as a lawyer for you.
So is that something that you would feel would be
beneficial to you?”
The mother replied, “I
pretty much understand.
I just feel that we haven't had enough time to
discuss anything, but I think that that might be better
because I don't think she's understanding me.
So that would probably be better.”
mother's position is that she did not agree to the
appointment because its consequences had not been explained to her.
She argues, further, the evidence did not establish she suffered
from a condition rendering her unable to understand the nature
of the proceedings or to assist her attorney, justifying an
She complains that in deciding to appoint a guardian ad
litem, the court improperly considered hearsay evidence contained in the
agency's report or asserted by the agency's attorney.
87 Cal.App.4th at p. 674, 104 Cal.Rptr.2d 909, questioning whether
the multiple hearsay in social studies would be admissible to
determine whether an adult is incompetent.)
The mother also contends no weight should be given to
the trial court's personal observation of the mother.
are troubled by what appears to be the view that
the appointment of a guardian ad litem is an act
adverse to a parent, depriving the parent of the ability
to present his or her case.
A guardian ad litem is appointed to protect the parent's*330
rights, and to act on the parent's behalf.
The guardian may make tactical and even fundamental decisions affecting
the litigation, but always with the interest of the guardian's
charge in mind.
re Christina B.
(1993) 19 Cal.App.4th 1441, 1454, 23 Cal.Rptr.2d 918 (Christina
and see In
re Josiah Z.
(2005) 36 Cal.4th 664, 678, 31 Cal.Rptr.3d 472, 115 P.3d
In civil matters, the guardian is an officer of the
court, and, like any other officer, is subject to court
Health Services, Inc. v. Superior Court
(1998) 64 Cal.App.4th 1496, 1502, 76 Cal.Rptr.2d 95.)
Where the guardian exceeds his or her powers, so that
the parent is deprived of some fundamental right, reversal is
But we can see no reason to reverse when the
guardian ad litem, although erroneously appointed, presents the parent's case
when the parent has absented herself from the proceedings and
cannot or will not act on her own behalf.
We also see no reason to assume a guardian ad
litem has abandoned the role of guardian, has ignored the
parent's wishes and has failed to protect or advance the
parent's interests, or that the trial court ignored its own
responsibility to oversee the guardian's conduct.
Finally, while it is always possible the guardian ad litem,
in attempting to protect the parent's interests,
acts against the parent's wishes,
it is difficult to see how that action could lead
to reversible error if it did not compromise the parent's
addition, whether due process is served requires more than a
consideration of the parent's interests.
As the court in Sara
process is a flexible concept which requires balancing of several
factors, including (1) the private interest that will be affected
by the official action, (2) the risk of an erroneous
deprivation of such interest through the procedures used, (3) the
interest in informing individuals of the nature, grounds and consequences
of the action and in enabling them to present their
side of the story, and (4) the governmental interest, including
the function involved and the fiscal and administrative burdens that
the additional or substitute procedural requirement would entail.”
87 Cal.App.4th at p. 671, 104 Cal.Rptr.2d 909.)
(And see In
re Sade C.
(1996) 13 Cal.4th 952, 989, 55 Cal.Rptr.2d 771, 920 P.2d
716, recognizing the state's interest in preserving and promoting the
welfare of the child and a fiscal and administrative interest
in reducing the cost and burden of the proceedings.)
goal of dependency proceedings, both trial and appellate, is to
safeguard the welfare of California's children.
objective of the dependency scheme is to protect abused or
neglected children and those at substantial risk thereof and to
provide permanent, stable homes if those children cannot be returned
home within a prescribed period of time.’
proceedings are ‘
not to prosecute a parent, but to protect the child.”
best interests of the child are paramount.
re Josiah Z., supra,
36 Cal.4th at p. 673, 31 Cal.Rptr.3d 472, 115 P.3d
The interest of the child, therefore, while not necessarily greater
than the interest of the parent (see In
re Marilyn H.
(1993) 5 Cal.4th 295, 309, 19 Cal.Rptr.2d 544, 851 P.2d
826), is a factor to be considered in determining whether
due process has been served.
the appointment was made after an informal hearing, by a
court that clearly was aware of the circumstances justifying or
requiring the appointment of a guardian ad litem, made an
inquiry into the need for one, and appointed the guardian
ad litem only after satisfying itself the mother *331
would be benefited by the appointment.FN6
mother was present at the hearing, was allowed to respond
and agreed the appointment would be beneficial to her.
Nonetheless, it is true the mother's agreement to the appointment
of the guardian ad litem was secured without a clear
explanation to her of the consequences of the appointment.FN7
addition, without reference to the hearsay in the social services
report, the record does not establish the mother either lacked
the capacity to understand the nature or consequences of the
proceeding or was unable to assist counsel in preparation of
We have no reason to doubt the trial court in
fact found the mother to be incompetent, and we are
reluctant to second-guess a court that was perfectly aware of
its responsibilities and was able, personally, to observe the mother,
and made its decision only after discussing the matter with
But, in light of the principles discussed in the cited
cases, and for purposes of argument, we will accept that
the record does not establish the prerequisites for appointment of
a guardian ad litem were met, and the appointment therefore
140 Cal.App.4th at p. 684, 44 Cal.Rptr.3d 724;
115 Cal.App.4th at p. 912, 9 Cal.Rptr.3d 646;
93 Cal.App.4th at pp. 1188-1189, 113 Cal.Rptr.2d 714;
87 Cal.App.4th at pp. 664, 672-673, 104 Cal.Rptr.2d 909.
course, the claim that the mother did not understand the
consequences of the appointment tends to undermine any claim that
her later failures to participate in the proceedings were based
on a belief she had no control over the proceedings.
are not at all certain it follows there was a
violation of due process.
The appointment had very little impact on the mother's ability
to direct or participate in the litigation.
It served the interests of the state in promoting the
welfare of the child and avoiding the costs and burdens
of attempting to litigate with an uncooperative and often absent
As the child had no significant relationship with the mother,
or with the mother's family, the child had little if
any interest in prolonging the proceedings on the hope that
some relationship with the mother might be created.
The child's interest, therefore, also was for a speedy disposition.
On balance, due process was served in this case, even
if the court erred in appointing the guardian ad litem.
even if the appointment was erroneous, and even if due
process was not served, we cannot agree that the error
was structural, requiring reversal without a showing of prejudice.
In the context of criminal proceedings, “structural
involves the basic protections without which a criminal trial cannot
reliably serve its function as a vehicle for determining guilt
(1991) 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d
Examples include the total deprivation of the right to counsel
at trial, a biased judge, unlawful exclusion of members of
the defendant's race from a grand jury, denial of the
right to self-representation at trial, denial of the right to
a public trial and an erroneous reasonable doubt instruction to
at pp. 309-310, 111 S.Ct. 1246;
140 Cal.App.4th at p. 685, 44 Cal.Rptr.3d 724.)
appointment did not deprive the mother of notice or of
the opportunity to state her case or to make her
wishes known to the court.
Whenever possible, the guardian ad litem explained things to the
mother and presented the mother's position to the court.
While it is true the guardian ad litem submitted jurisdiction
on the agency's report, she did so only after *332
discussing the situation with the mother and securing the mother's
Disposition also was submitted on the agency's report, but only
after the guardian ad litem had made every effort to
include the mother in the proceedings. In sum, the record
discloses that every reasonable action was taken to protect the
rights of a parent who was unwilling or unable to
protect her own rights, and that the appointment of the
guardian ad litem did not in any way compromise the
mother's ability to participate or to present her side of
Far from preventing the mother from participating, the appointment was
the only thing that gave the mother a presence at
mother complains of matters such as that the guardian ad
litem failed to seek reunification services or demand visitation and
waived the mother's right to contest the agency's evidence without
obtaining some countervailing and substantial benefit to the mother.
It has been held “the
guardian may not compromise fundamental rights, including the right to
trial, without some countervailing and significant benefit.”
19 Cal.App.4th at p. 1454, 23 Cal.Rptr.2d 918.)
The holding presumes the existence of something with which to
Here, however, the guardian ad litem had nothing.
The court had ruled the mother was not entitled to
Without input from the mother, the guardian ad litem could
state no grounds for resuming visitation.
While the mother had the right to a contested hearing,
her failure to respond to her attorney or to the
guardian ad litem gave them nothing to assert at the
A claim of prejudice cannot be predicated on a failure
to mount meritless arguments or make fruitless demands.
It also is noteworthy that the mother's complaint-that the guardian
did not do enough-is inconsistent with her overall contention that
the guardian should not have been appointed at all.
situation differs from those in cases such as Sara
87 Cal.App.4th 661, 104 Cal.Rptr.2d 909 and Joann
104 Cal.App.4th 347, 128 Cal.Rptr.2d 189, where there was reason
to believe the appointment of the guardian ad litem in
some way prevented the parent from presenting evidence.FN8
also respectfully disagree with those courts, and with court in
93 Cal.App.4th 1180, 113 Cal.Rptr.2d 714, to the extent they
reason a deprivation of due process may or must be
inferred when the guardian ad litem failed to produce evidence
helpful to the parent's cause.FN9
presume the existence of such evidence on a silent record
is to presume the guardian ad litem disregarded his or
her responsibilities, and this we are unwilling to do.FN10
before the appointment of the guardian ad litem, the mother's
attorney indicated three witnesses would appear on the mother's behalf
at the jurisdictional hearing.
After the appointment, the guardian ad litem and the mother's
attorney submitted to jurisdiction without calling the witnesses.
87 Cal.App.4th at p. 673, 104 Cal.Rptr.2d 909.)
the record suggested the mother had a number of people
whom she believed to be helpful witnesses, but after the
appointment of the guardian ad litem, none of these people
were subpoenaed and none testified.
104 Cal.App.4th at p. 360, 128 Cal.Rptr.2d 189.)
The courts in each case expressed concern that the appointment
of the guardians ad litem had in some way deprived
the parents of evidence that might have been of aid
at p. 673, 104 Cal.Rptr.2d 909;
at p. 360, 128 Cal.Rptr.2d 189.)
Here, the only “evidence”
the guardian did not present was whatever was contained in
the notes delivered to the guardian ad litem by the
mother's friend, Ron. Without more, we will not presume the
notes contained anything helpful to the mother's case.
finding the appointment of a guardian ad litem was not
harmless beyond a reasonable doubt, the court in Jessica
do not know what Mother might have done or suggested
to her attorney if the guardian ad litem had not
She may have had supportive witnesses to testify about her
performance at programs and in support of a continued relationship
with her daughters ...
or she may have suggested that she finally had rid
of herself of [an abusive boyfriend] and experienced an improvement
in her psychological prospects as a result;
she may have been able to suggest other evidence or
Or she may not have been able to offer anything
We simply do not know.”
93 Cal.App.4th at p. 1189, 113 Cal.Rptr.2d 714.)
such evidence exists, and if the guardian ad litem in
fact violated his or her duties by failing to obtain
or produce it, there are grounds for attacking the proceedings
either by way of a direct appeal where the evidence
appears in the appellate record, or by way of extraordinary
writ where it does not.
conclusion, there may be cases in which the appointment of
a guardian ad litem has the effect of denying a
parent a basic protection, but this is not one of
The error, if any, was not structural and was harmless
beyond a reasonable doubt.
footnote *, ante.
following material is not certified for publication under California Rules
of Court, rules 976(b) and 8.1105(b).]
for New Counsel
contends the court erred in failing to conduct a Marsden-type
(1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44)
after she expressed dissatisfaction with her attorney, and after she
later asked for a new attorney.
In her opinion, the court should have inquired into the
reasons for her dissatisfaction, but instead improperly rejected her request
simply because she had a guardian ad litem. FN11
At the initial hearing, on January 17, 2006, the mother's
attorney stated that the mother had not cooperated with the
attorney and had not met with her.
The mother, who had agreed to the appointment of the
attorney, asked if she could get a different attorney, suggesting
Ms. Lansdowne was appointed guardian ad litem, and the mother
did not at that time renew her request for new
At the section 366.26 selection and implementation hearing, the mother,
through her attorney, requested a new attorney, a new guardian
ad litem and a new judicial officer.
The court did not rule on the request as if
it were a formal motion. As to the request for
a new attorney, the court stated, “The
Court, so the record is clear, does not believe that
at this point it should entertain a request for Marsden
v. Marsden, supra,
2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44] with
regards to counsel, given its previous determination that a guardian
ad litem was appropriate.”
such as the mother, who are represented by counsel at
dependency proceedings are entitled to competent counsel. (§
re Kristin H.
(1996) 46 Cal.App.4th 1635, 1662, 54 Cal.Rptr.2d 722.)
In connection with that right, there are times when the
trial court should conduct a Marsden-type
hearing to explore allegations of conflicts between a party and
his or her attorney, or claims that counsel is not
providing adequate representation.
re James S.
(1991) 227 Cal.App.3d 930, 934-935 & fns. 12 & 13,
278 Cal.Rptr. 295 ;
re Ann S.
(1982) 137 Cal.App.3d 148, 150, 188 Cal.Rptr. 1.)
The decision whether to permit a party to discharge appointed
counsel and substitute another attorney is a matter within the
trial court's discretion.
But in order to exercise that discretion, the court must
be cognizant of the grounds that prompted the request for
2 Cal.3d at p. 123, 84 Cal.Rptr. 156, 465 P.2d
a judge who denies a motion for substitution of attorneys
solely on the basis of his courtroom observations, despite a
defendant's offer to relate specific instances of misconduct, abuses the
exercise of his discretion to determine the competency of the
A judicial decision made without giving a party an opportunity
to present argument or evidence in support of his contention
lacking in all the attributes of a judicial determination.’
at p. 124, 84 Cal.Rptr. 156, 465 P.2d 44.)
need not decide here whether a parent represented by a
guardian ad litem is entitled to a Marsden-like
hearing where the parent, but not the guardian ad litem,
is unhappy with the attorney's representation.
We also need not decide if the mother's expressed desire
for a new attorney was sufficient to trigger further inquiry
into the basis for her unhappiness. FN12
parent claiming inadequate representation is entitled to reversal only upon
a showing of actual prejudice;
that it is reasonably probable a result more favorable to
the appealing party would have been reached in the absence
of the asserted error.
re Daisy D.
(2006) 144 Cal.App.4th 287, 292-293, 50 Cal.Rptr.3d 242;
re Melvin A.
(2000) 82 Cal.App.4th 1243, 1252-1253, 98 Cal.Rptr.2d 844;
re Kristin H., supra,
46 Cal.App.4th at pp. 1667-1668, 54 Cal.Rptr.2d 722.)
The mother has made no such showing.
The mother cites her suggestion at the January 17 hearing,
I could get a different person to represent me.”
At most, the record shows only that the mother did
not or could not meet with the attorney, not that
there was any kind of actual conflict between them.
mother complains the court erred in finding, by clear and
convincing evidence, that the child was adoptable-a necessary prerequisite to
an order terminating parental rights. (§
As she also acknowledges, the question on appeal is whether
the juvenile court's ruling was supported by substantial evidence.
re Asia L.
(2003) 107 Cal.App.4th 498, 509, 132 Cal.Rptr.2d 733.)
We view the evidence in the light most favorable to
the trial court's order, drawing every reasonable inference and resolving
all conflicts in support of the judgment.
re Misako R.
(1991) 2 Cal.App.4th 538, 545, 3 Cal.Rptr.2d 217.)
agency reported the child had been placed in the current
foster home on May 12, 2006.
The child had adjusted well to the home and was
responding positively to all family members.
Her foster parents wished to adopt her and the preliminary
assessment indicated the family was a suitable adoptive family, committed
to the adoption.
The mother complains the prospective adoptive parents had not been
assessed fully as of the time of the hearing, arguing
that the evidence therefore fails to support a finding the
child would be adopted by those parents.
The court's task was to determine whether the child was
adoptable, not whether any particular adoptive parents were suitable.
re Marina S.
(2005) 132 Cal.App.4th 158, 166, 33 Cal.Rptr.3d 220.)
While one couple's desire to adopt a child is merely
an inference that others may want to adopt the child
at p. 165, 33 Cal.Rptr.3d 220), the prospective parents' willingness
to adopt generally indicates the child is likely to be
adopted within a reasonable time either by the prospective parents
or by some other family.
re Sarah M.
(1994) 22 Cal.App.4th 1642, 1650, 28 Cal.Rptr.2d 82.)
mother cites In
re Salvador M.
(2005) 133 Cal.App.4th 1415, 35 Cal.Rptr.3d 577.
There, the maternal grandparents wished to adopt the child, but
as is the situation here, a home study had not
been completed as of the date of the selection and
at p. 1418, 35 Cal.Rptr.3d 577.)
In finding the child to be adoptable, the trial court
pointed out that the sibling bond exception to adoption (§
subd. (c)(1)(E)) did not apply because the child's sibling
already lived with the maternal grandparents.
at p. 1419, 35 Cal.Rptr.3d 577.)
The court of appeal upheld the trial court's decision, relying
in part on evidence that the home study later had
been completed and approved.
criticized the trial court's ruling because it necessarily was based
on the assumption the child would be adopted by his
grandparents, when the validity of that assumption had not been
at p. 1422, 35 Cal.Rptr.3d 577.)
If the home study determined the grandparents' home was inappropriate,
the sibling bond exception would be a roadblock to adoption
by some other family.
It followed that a finding that the child was adoptable
by the grandparents could not establish the child generally was
That problem does not exist here where the court's finding
of adoptability was not based on some special situation existing
with the prospective parents, but on the fact that there
December 30, 2005, the mother signed a form reciting that
as far as she knew, she had no Indian ancestry,
but also apparently said something to the court indicating she
might be of Cherokee heritage.
The social worker later reported the mother had told her
she was not of Native American ancestry.
At the jurisdictional hearing, however, the mother asserted her maternal
full, almost full-blooded Indian.”
The court therefore found the ICWA might apply.
ICWA requires notice to be sent to the Indian child's
(25 U.S.C. §
Rules of Court, rule 5.664(f)(3) requires notice to be sent
to all tribes of which the child is a member
or eligible for membership.
Where the identity of the tribe is unknown, it is
enough that the Bureau of Indian Affairs (BIA), as agent
for the Secretary of the Interior, is notified.
re Edward H.
(2002) 100 Cal.App.4th 1, 4-6, 122 Cal.Rptr.2d 242.)
the mother asserted her grandfather was of Native American ancestry,
the agency's representative asked that the mother provide the names
and identities of persons it could use in investigating the
The mother's attorney agreed.
On February 9, 2006, the social worker left a telephone
message for the maternal grandmother, asking her to contact the
social worker to discuss the family's Native American heritage.
As of March 20, 2006, neither the mother nor the
maternal grandmother had contacted the social worker or provided any
information on the mother's heritage.
At the end of March 2006, the agency sent notice,
by certified mail return receipt requested, to the BIA in
Sacramento, California, using Form JV-135, “Notice
of Involuntary Child Custody Proceedings for an Indian Child,”
and also to the Cherokee Nation in Tahlequah, Oklahoma.
The form set forth the child's name and date of
birth, the mother's name, the date of the mother's birth,
the state of her birth, her current address and a
The agency also had contacted a maternal aunt, or possibly
great-aunt, when the mother indicated she might be of Cherokee
heritage, but had received no information from her as of
the March 20 hearing.
its report for the July 2006 implementation and selection hearing,
the agency reported it had collected family historical information from
the mother's great-aunt, which it had then sent to the
Cherokee Nation in Oklahoma.
The agency attached a letter received from Richenda Kratky of
the Indian Child Welfare Program, on a document bearing the
seal of the Cherokee Nation.
The letter asserted that the Indian Child Welfare Program had
examined the tribal records for the child and had been
unable to trace the child in its records through the
adult relatives listed by the agency.
The BIA had not responded to the agency's inquiry.
In the absence of other evidence that the ICWA applies,
the lack of a determinative response within a reasonable time,
but not less than 60 days, supports a finding the
act does not apply.
Rules of Court, rule 5.664(f)(6).)
On this evidence, the court ruled the ICWA did not
mother complains the agency notified only the Cherokee Nation, when
there also are two other federally registered Cherokee tribes.
The record does not reveal why the agency chose to
write only to the Cherokee Nation.
In all events, providing proper notice to some but not
all possible tribes in which a dependent might be eligible
for membership does not violate the ICWA, provided the agency
also gives proper notice to the BIA. (Edward
100 Cal.App.4th at pp. 4-5, 122 Cal.Rptr.2d 242.)
re Edward H.,
for example, the parent stated a belief that he belonged
to the Choctaw Tribe out of Arkansas.
The agency sent notice to two of the three federally
recognized Choctaw Tribes, even though neither was located in Arkansas,
but also sent notice to the BIA. The court found
the notice to have been sufficient, pointing out that under
this state's rules of court, a determination by the BIA
that a child is or is not Native American is
at p. 5, 122 Cal.Rptr.2d 242;
Cal. Rules of Court, rule 5.664(g)(4).)
mother complains the agency's notice was defective because it misstated
the mother's address and because it stated the information was
sought for a “special/interim
rather than for a “selection
and implementation hearing”
or a “permanency
These errors were harmless as they could have had no
effect on the ability of the BIA or the Cherokee
Nation to determine whether the child was eligible for tribal
The mother complains the notice was sent to the “Cherokee
rather than to the “Cherokee
Nation of Oklahoma, ICWA Representative,”
listed in the federal registry.
In her reply brief, the mother further asserts it cannot
be assumed the Cherokee Nation received actual notice simply because
a responsive letter was written on Cherokee Nation letterhead by
a person who held himself or herself out to be
entitled to speak for the tribe's Indian Child Welfare Program.
She notes the record does not contain a return receipt
from the Cherokee Nation, suggesting that it therefore was not
shown the Cherokee Nation actually received the notice.
That notice was sent to the Cherokee Nation, and that
a response to the letter was made by a person
holding himself or herself out to be the proper agent,
supports an inference the proper agent received actual notice.
situation differs from that in In
(2002) 103 Cal.App.4th 1206, 128 Cal.Rptr.2d 12, where the evidence
of a tribe's response consisted solely of the social worker's
The social worker misnamed the tribe.
He asserted he sent notice to the tribal health clinic,
when he should have sent notice to tribe's chairperson or
agent for service of process.
He claimed to have received a responsive letter from a
person he identified as the tribe's enrollment committee chairman.
He paraphrased the response in a manner that raised concerns
about the purported enrollment chairman's authority to speak on behalf
of the tribe, his statements were unclear and contained inconsistencies
and, while suggesting the children were not enrolled members, did
not establish they were not nor could they be members
of the tribe.
at pp. 1213-1214, 128 Cal.Rptr.2d 12;
107 Cal.App.4th at pp. 508-509, 132 Cal.Rptr.2d 733 [failure to
submit actual documentation not harmless despite agency's report on responses
to notices when the record reflected notices were not sent
to agents designated for service of process].)
Here, in contrast, the actual response from the Cherokee Nation
was attached to the agency's report.
the mother complains the agency did not provide the BIA
with all the evidence it had.
She points out the mother had asserted her grandfather was
a Cherokee Indian and her maternal aunt was a member
of the Cherokee Tribe, but neither individual's name or circumstances
were included in the report.
She also complains that the Form JV-135 sent in March
2006, and contained in the record, does not include names
referred to in the letter from the Cherokee Nation as
the names of the child's maternal grandmother and of a
person with an unknown relationship to the child.
The record reflects that the agency attempted to obtain additional
information from the mother and the maternal grandmother, and a
maternal aunt or great-aunt, but had received no information from
them by the end of March 2006, when it sent
Form JV-135 to the BIA and to the Cherokee Nation.
The agency cannot be faulted for failing to include information
it had been unable to obtain from the mother or
her family members.
Apparently, the agency later received some additional information, which it
sent on to the Cherokee Nation.
It is not clear from the record whether the information
was or was not sent to the BIA. It would
have been better had the agency updated the information it
sent to the BIA, or had it submitted unequivocal evidence
it sent the information to the BIA. Still, the record
establishes the notice to the BIA contained all the information
the agency had and reasonably was able to obtain by
the end of March 2006, when the case was set
for the selection and implementation hearing.
No more was required.
preceding material is not certified for publication under California Rules
of Court, rules 8.1105(b) and 8.1110.]
order terminating the mother's parental rights and ordering a permanent
plan of adoption is affirmed.
J., and MARGULIES, J.
re Jaclyn S.
Cal.App.4th 278, 58 Cal.Rptr.3d 321, 07 Cal. Daily Op. Serv.
4569, 2007 Daily Journal D.A.R. 5821