69 Cal.App.5th 67
Cal. Ct. App.2021Background:
- Mother (Patricia A.) has a long history of alcohol abuse and was the subject of a dependency petition; son Samuel was removed and placed with the Department.
- Multiple incidents of volatile, harassing, and threatening conduct toward social workers, foster parents, and appointed counsel led to restraining orders and frequent attorney withdrawals.
- The Department obtained an Evidence Code section 730 psychiatric evaluation; the examiner concluded Patricia did not suffer a major mental illness impairing her ability to parent.
- The juvenile court, after several continuances and on finding Patricia’s conduct was deliberate obstruction (not incompetence), appointed a guardian ad litem (GAL) and ordered that Patricia communicate with counsel only through the GAL.
- Patricia appealed the GAL appointment; while the appeal was pending the juvenile court entered subsequent orders (including termination of parental rights) made while the GAL curtailed Patricia’s direct communication with counsel.
- The Court of Appeal reversed the GAL appointment and ordered vacatur of the GAL order and all subsequent orders in which Patricia was denied direct communication with counsel, including the termination order.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appointment of a guardian ad litem was supported by substantial evidence of parental incompetence | The Department: repeated counsel withdrawals and Patricia’s conduct showed she could not assist counsel rationally, so a GAL was necessary | Patricia: no evidentiary finding of incompetence; 730 evaluation found no major mental illness; conduct was obstructive but voluntary | Reversed — no substantial evidence that Patricia lacked capacity; appointment improper |
| Whether the court provided the required Sara D./due‑process hearing before appointing a GAL and before lifting the stay | The Department: the court’s proceedings and counsel statements sufficed | Patricia: she was not afforded the required opportunity to rebut allegations of incompetence when the stay was lifted | Held: court did not satisfy due‑process requirements; appointment lacked proper hearing support |
| Whether uncooperative or disruptive behavior alone establishes incompetence | The Department: persistent, threatening, and uncooperative conduct justified GAL appointment | Patricia: deliberate refusal to cooperate is not the statutory incompetence standard; mental incapacity must be shown | Held: voluntary uncooperativeness does not prove incompetence; mental disorder or inability to understand/assist is required |
| Whether the GAL appointment error was harmless and scope of remedy | The Department: any error was harmless; other safeguards and facts would have produced same outcome | Patricia: appointment affected fundamental rights and any orders made under the GAL are voidable | Held: error was not harmless here; vacated the GAL order and all subsequent orders denying direct client‑counsel communication (including termination order) |
Key Cases Cited
- In re James F., 42 Cal.4th 901 (sets competency test and required due‑process procedures before appointing a parent’s guardian ad litem)
- In re Sara D., 87 Cal.App.4th 661 (requires an informal hearing and opportunity to be heard before GAL appointment)
- In re M.P., 217 Cal.App.4th 441 (upheld GAL appointment where psychological evidence and hearing showed parental delusions and incompetence)
- In re Jessica G., 93 Cal.App.4th 1180 (explains the substantial legal effect of transferring litigation control from parent to GAL)
- In re Daniel S., 115 Cal.App.4th 903 (addresses harmless‑error review of GAL appointment due‑process violations)
- People v. Mendoza, 62 Cal.4th 856 (voluntary refusal to cooperate with counsel does not, by itself, establish incompetence)
- M.L.B. v. S.L.J., 519 U.S. 102 (termination of parental rights is among the most severe forms of state action)