L. A. Cnty. Dep't of Children & Family Servs. v. Patricia A. (In re Samuel A.)

69 Cal.App.5th 67

284 Cal.Rptr.3d 151

IN RE SAMUEL A., a Person Coming Under the Juvenile Court Law.

Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

v.Patricia A., Defendant and Appellant.

B306103

Court of Appeal, Second District, Division 7, California.

Filed September 21, 2021

Liana Serobian, Glendale, under appointment by the Court of Appeal, for Defendant and Appellant.

Amir Pichvai, Encino, for Plaintiff and Respondent.

PERLUSS, P.J.

The appointment of a guardian ad litem for a parent in a dependency proceeding radically changes the parent's role, transferring direction and control of the litigation from the parent to the guardian ad litem. While necessary to protect the rights of an incompetent parent—an individual incapable of understanding the nature and purpose of the proceeding or unable to assist counsel in a rational manner—appointment of a guardian ad litem is not a tool to restrain a problematic parent, even one who unreasonably interferes with the orderly proceedings of the court or who persistently acts against her own interests or those of her child. Yet that is what occurred here: The juvenile court appointed a guardian ad litem for Patricia A., the mother of five-year-old Samuel A. and unquestionably a difficult party, without any finding, let alone evidence, of her incompetence. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

1. Dependency Petition, Jurisdiction and Disposition

In June 2018 Patricia arrived at the hospital complaining of a migraine headache. Her blood alcohol level measured .297 mg/dL. Patricia explained to her medical providers she had been sober for 11 years but had recently returned to drinking alcohol socially and to alleviate her migraines. An investigation by the Los Angeles County Department of Children and Family Services (Department) into Patricia's neglect of Samuel, who was in daycare when Patricia checked herself into the hospital, was closed as inconclusive.

On January 3, 2019 Patricia returned to the hospital, this time complaining of pain she attributed to chronic diverticulitis. Her blood alcohol level measured .296 mg/dL. Samuel was in daycare. While hospitalized, Patricia exhibited shaking, trembling, hot and cold sweats and increased agitation, which her medical providers attributed to severe alcohol withdrawal. Patricia left the hospital prior to receiving medical clearance for discharge.

On January 16, 2019 the Department filed a petition pursuant to Welfare and Institutions Code section 300, subdivision (b)(1),¹ alleging Patricia had a long and unresolved history of alcohol abuse that made her unable to provide regular care for Samuel. Following a hearing, Samuel was detained from Patricia and placed under the temporary supervision of the Department. Two weeks later the Department filed an amended section 300 petition, adding a second allegation under subdivision (b)(1) that Patricia suffered from severe and untreated anxiety and depression, which also made her unable to provide regular care for Samuel.

According to the evidence presented at the March 20, 2019 jurisdiction hearing, Patricia had a long (more than two-decade) history of alcohol abuse. She had been sober for a time, including during her pregnancy with Samuel, but had begun consuming alcohol again to treat pain and anxiety. The Department provided evidence Patricia had been verbally abusive to, and threatened, nearly everyone in her orbit, including her neighbors and landlord, Samuel's babysitters, social workers and visitation monitors. Patricia denied the allegations in the petition, insisting she did not have a problem with alcohol, and, although she may have anxiety, she did not suffer from a mental impairment that jeopardized Samuel's safety.

The court sustained both allegations in the amended petition, finding Samuel to be a person described by section 300. Proceeding directly to disposition, the court declared Samuel a dependent child of the juvenile court, removed him from Patricia's custody and ordered monitored visitation for Patricia for a minimum of six hours per week. The court also ordered a variety of other family reunification services. We affirmed the juvenile court's jurisdiction finding based on Patricia's alcohol abuse and its disposition order removing Samuel from Patricia's custody with monitored visitation. We did not address the court's additional jurisdiction finding. ( In re Samuel A. (Dec. 16, 2019, B296535), 2019 WL 6836049 [nonpub. opn.].)

2. The Department's and Patricia's Section 388 Petitions and Patricia's Court-ordered Psychiatric Evaluation

On April 29, 2019 Patricia filed a section 388 petition seeking return of Samuel to her custody or, alternatively, liberalized visitation, including unmonitored and overnight visits. The Department filed its own section 388 petition the same day requesting, among other things, a court-ordered Evidence Code section 730 psychiatric evaluation and an order prohibiting Patricia from contacting Samuel's foster parent or coming within a certain distance of the foster parent's home. According to the Department, Patricia's harassment of Samuel's foster parent had already resulted in Samuel's removal from one placement after the foster parent told the Department she feared for her safety, and his current foster parent had expressed similar concerns.

Following an extended hearing on both petitions, the court denied Patricia's section 388 petition, ruling she had not carried her burden to show a substantial change of circumstances since the March 2019 jurisdiction/disposition hearing. The court granted the Department's request to order an Evidence Code section 730 evaluation for Patricia. Patricia's appeal from the order denying her section 388 request for liberalized visitation was dismissed after a subsequent visitation order mooted the appeal. (See In re Samuel A. (Feb. 18, 2020, B299022), 2020 WL 773681 [nonpub. opn.].)

On August 28, 2019, prior to the six-month review hearing (§ 366.21, subd. (e)), Patricia filed another section 388 petition seeking, pursuant to section 390,² to set aside the court's jurisdiction findings and dismiss the amended section 300 petition in the interests of justice. In support of her petition Patricia relied primarily on the July 30, 2019 psychiatric evaluation prepared by Dr. Suzanne M. Dupée, pursuant to Evidence Code section 730, which Patricia attached to her petition as an exhibit. Based on Dr. Dupée's July 2019 interview with Patricia, Patricia's responses on the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) and Dr. Dupée's telephone conversation with Dr. Nadine Winocur, Patricia's treating psychologist, Dr. Dupée opined to "a reasonable degree of medical certainty that [Patricia] does not suffer from any major mental illness that impairs her ability to parent her child." Although Dr. Dupée acknowledged Patricia's MMPI-2 results reflected "an extreme attempt" to "present herself as being free of psychological problems in order to influence the outcome" of the evaluation, preventing the examiner from interpreting the results in "a straightforward manner," Dr. Dupée nonetheless concluded, based on her overall evaluation of Patricia and telephone consultation with Dr. Winocur, that Patricia's anxiety and anger management difficulties were a "direct result of the dependency proceeding" and not any underlying mental illness.

In its opposition to Patricia's petition, the Department highlighted deficiencies in Dr. Dupée's and Dr. Winocur's reports, observing, in part, that both of them had based their conclusions on Patricia's representations without speaking with any of the Department's social workers.

On September 4, 2019 the court informed the parties of its concerns about the lack of specific findings and test results in Dr. Dupée's report. The court ordered the Department to obtain the psychometric testing data by the next scheduled hearing on September 10, 2019, at which time the court would address both a pending request by Patricia to dismiss her appointed counsel and Patricia's section 388 petition to set aside the jurisdiction findings and dismiss the amended petition.

On September 10, 2019, following a Marsden hearing,³ the court denied Patricia's request to dismiss her appointed counsel but granted her counsel's request to withdraw from the case. The court appointed new counsel, Patricia's fourth attorney in less than eight months. The court then granted Patricia's new counsel time to review the section 388 petition and the psychometric test results supporting Dr. Dupée's evaluation.

On September 12, 2019 the Department filed a walk-on request for issuance of a restraining order to protect a social worker, Samuel's foster parent and Samuel from Patricia. The Department informed the court that, after the last court hearing, Patricia had gone to the home of Samuel's foster parent despite repeated warnings to stay away and her assurances to the court at the prior hearing that she would follow that directive. According to the Department, Patricia also called the child abuse hotline and falsely accused the foster parent of following her in his car and driving recklessly with Samuel in the car. The Department stated Patricia was becoming increasingly erratic and dangerous. Prior to a court hearing in late August 2019, the Department reported, Patricia violently threw documents at a person, resulting in "numerous bailiffs [taking] more than two hours to subdue [Patricia]." A sheriff's deputy at the time noticed Patricia smelled of alcohol. In addition, the Department reported Patricia had exhibited volatile behavior toward the social worker during a monitored visit with Samuel at the Department's offices on September 4, 2019, screaming the social worker was a criminal and a child abuser. After Patricia was unable to calm down and the social worker asked her to leave, Patricia threatened the social worker, telling her "I know where you live." The social...