Santa Clara Cnty. Dep't of Family v. A.P. (In re M.P.)

217 Cal.App.4th 441

158 Cal.Rptr.3d 458

IN RE M.P., a Person Coming Under the Juvenile Court Law.Santa Clara County Department of Family & Children's Services, Plaintiff and Respondent,

v.A.P., Defendant and Appellant.

H038640

Court of Appeal, Sixth District, California.

Filed June 21, 2013

Review Denied August 28, 2013

See 10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent and Child, § 541.

Santa Clara County Superior Court, Hon. Shawna Schwarz. (Santa Clara County Super. Ct. No. JD18959)

Carol A. Koenig, Half Moon Bay, under appointment by the Court of Appeal, for Appellant.

Lori E. Pegg, Acting County Counsel and Julie F. McKellar, Deputy County Counsel, for Respondent.

ELIA, J.

In this dependency case (Welf. & Inst.Code, § 300),¹ A.P., mother of M.P., appeals from the August 7, 2012 order that followed a contested jurisdictional and dispositional hearing.² On appeal, she challenges only the court's appointment of a guardian ad litem (GAL) for her and its failure to hold a Marsden-type ³ hearing regarding replacement of her appointed counsel.

We conclude that the record supports the trial court's appointment of a GAL for mother and its failure to conduct a full Marsden-type inquiry was not reversible error. Accordingly, we affirm.

IProcedural History

On January 11, 2012, a juvenile dependency petition was filed on behalf of M.P., then 11 years of age, pursuant to section 300, subdivisions (b) (failure to protect) and (c) (serious emotional damage).

A first amended petition was filed on January 17, 2012. It alleged that M.P. came within the jurisdiction of the juvenile court under only subdivision (b) of section 300.

On January 18, 2012, counsel was appointed for mother. The court ordered M.P. temporarily removed from mother's physical custody and released M.P. to her father pending the jurisdiction hearing. Supervised visitation was ordered for mother.

On February 2, 2012, a second amended petition was filed. It alleged that M.P. came within the jurisdiction of the juvenile court under subdivisions (b) and (c) of section 300.

The second amended petition alleged the following facts. Mother “suffers from severe mental health problems which have resulted in [M.P.] suffering serious emotional harm.” On about January 5, 2012, M.P. and her mother engaged in a physical altercation during which they were both bruised. On January 7, 2012, they both sought medical treatment; they told medical professionals that “they were being repeatedly raped by someone who was breaking into their home on a nightly basis.”

The petition also alleged that M.P. was placed “on a 5150 hold due to her delusional thoughts and prior suicidal ideation.” M.P. was under a psychiatric hold from January 7, 2012 to January 10, 2012 and the treating psychiatrist diagnosed her “as suffering from Psychosis NOS, folie á deux (shared psychotic disorder).” It was the psychiatrist's opinion that “ ‘[M.P.'s] mental status is being negatively affected by her mother's condition and her irrational beliefs'....” On January 12, 2012, M.P. was taken into protective custody pursuant to a warrant.

The petition additionally stated that, in 2008, Dr. Sheri Terao diagnosed mother with schizophrenia, paranoid type. Mother has refused to participate in services to treat her mental illness and her “untreated mental health condition negatively impacts her ability to effectively parent [M.P.].” For several years, mother has repeatedly made accusations that “she and [M.P.] have been raped on a daily basis by people who have broken into the home.” Despite the lack of evidence to support mother's claims, M.P. has “repeated the mother's accusations....”

The petition further alleged that “[M.P.] exhibits symptoms of emotional harm in that she has engaged in self-injurious behavior and suicidal ideation.” “[M.P.] and the mother have a conflictual relationship ... characterized by mutual physical combat.”

In addition, the petition alleged that six prior Child Protective Services referrals were substantiated. Previously, on July 18, 2008, M.P. had been adjudged a dependent child of the juvenile court. Mother had received services for her “auditory and visual delusions negatively impacting [M.P.'s] emotional well-being” and father had received services for “substance abuse and domestic violence.”

At the March 26, 2012 trial setting hearing, the juvenile court stated for the record that mother's counsel had informed the court that it was necessary to hold a Sara D.⁴ hearing (regarding appointment of a GAL) or a Marsden hearing or both. The court stated that it had determined that the Sara D. hearing should be first “to make sure that the mother is competent to even question the competence of her attorney.” The matter was continued until April 3, 2012.

On April 3, 2012, mother's counsel informed the court: “At this point in the procedure the mother ... and I have run into a conflict, and our understanding of one another. And I do believe that she would benefit from the assistance of a guardian ad litem in terms of making legal decisions and legal strategy. I understand from communications between [mother] and myself as well as [mother] and my employer, that she does not want a guardian ad litem and wants another attorney appointed to represent her. So she'd like to be heard on that.”

The court reiterated that the Sara D. hearing would be conducted first. It stated: “I need to make a determination of your client's competency which has [a] bearing on the second question of whether or not you should continue with your representation.”

Following a separate, closed hearing with mother and her counsel regarding whether to appoint a GAL, the court determined that mother required a GAL and appointed a GAL. It did not hold a Marsden-type hearing.

The Department filed a Jurisdiction/Disposition Report, dated February 10, 2012, which reported that M.P. was currently residing with father. It recommended that the court sustain the second amended petition and place M.P. with father under the Department's supervision with family maintenance services and order no services for mother “because the provision of such services is not in the best interests of the child.”

Dr. Sheri Terao's October 2008 report concerning the court-ordered psychological evaluation of mother was filed with the Jurisdiction/Disposition Report. The report indicated that mother's “social and emotional functioning” was “primarily afflicted by the presence of prominent delusions.” Dr. Terao had diagnosed mother with Schizophrenia, Paranoid Type. The report stated: “For many years, [mother] has developed a belief system that her husband and another woman are stalking her and have brought harm (both physical and emotional) to her and her daughter. [Mother's] delusions have a bizarre quality to them as many of her beliefs may be regarded as totally implausible.” It disclosed that mother is “firmly entrenched in her delusional belief system” and “lacks insight into her mental health condition....”

A number of addendums to the Jurisdiction/Disposition Report were filed. The fourth addendum report, dated July 17, 2012, recommended that the juvenile court sustain the second amended petition, find M.P. came within the descriptions of section 300, subdivisions (b) and (c), issue family court orders giving father sole legal and physical custody of M.P. and allowing mother to have supervised visits with M.P., and dismiss the dependency petition.

On July 16, 2012 and July 17, 2012, the court held a contested jurisdiction/disposition hearing. On July 17, 2012, the court set the matter for decision on August 7, 2012.

On August 7, 2012, the juvenile court found that the allegations of the second amended petition, filed February 2, 2012, as amended to omit allegations concerning father, were true. The court determined that M.P. was described by section 300, subdivisions (b) and (c). It adjudged M.P. to be a dependent child of the court. It awarded legal and physical custody of the child to the father, the prior noncustodial parent. The court then terminated its jurisdiction over the family and dismissed the dependency.

IIDiscussion

A. Guardian ad Litem

1. Hearing

At the April 3, 2012 hearing regarding appointment of a GAL, the court explained a GAL's role and the standards for appointment. It told mother that her counsel believed that she was not able to assist him in the preparation of the case and she did not really understand the nature of the proceedings. Mother's counsel proceeded to explain his concerns.

Counsel indicated that he had met with mother on more than one occasion. He pointed out that a number of the petition's allegations concerned mother's mental health. Counsel indicated that the dispositional recommendations were that the child should be placed with father and any visitation should be supervised and conditioned upon mother's regular participation in psychiatric treatment and compliance with medication. Mother had disagreed with the allegations and claimed she did not need medication. Counsel believed that mother would not be “able to competently proceed through these very complex jurisdictional and dispositional issues” unless she was taking medication and addressing the mental health concerns.

Mother complained to the juvenile court that she had never seen her counsel in his office except on February 22, 2012. She stated that he had sent her an e-mail through his cell phone and told her it was better to send him an e-mail. The court indicated that the focus at the moment was her mental health. Mother stated that she did not believe that she was delusional and she did not believe the petition.

Mother's counsel referred to the 2008 psychological assessment of mother conducted by Dr. Terao. He stated that “Dr. Terao was very clear ... that [mother] has serious mental health needs [and] without medication ... she is not able to ... understand the difference between facts as the majority of people are...