Father appeals the juvenile court’s corrected order appointing a guardian ad litem and stipulated judgment terminating his parental rights as to his daughter, L, on the ground of unfitness, ORS 419B.504. Father advances two assignments of error. First, father contends that the juvenile court erred in appointing a guardian ad litem to represent him pursuant to ORS 419B.231 because he was able to properly give direction and assistance to his attorney on decisions related to his termination proceeding. Second, father contends that, because the appointment of a guardian ad litem was unnecessary, the juvenile court erred in allowing the guardian ad litem to stipulate to the judgment terminating his parental rights; father also argues that, in doing so, the court violated his due process right to fundamental fairness. For the following reasons, we affirm.
We begin with our standards of review. Neither party suggests that, because the appointment of the guardian ad litem occurred in conjunction with a termination of parental rights proceeding, as permitted under ORS 419B.231(1), our review of the facts is de novo. See ORS 19.415(3)(a) (“Upon appeal from a judgment in a proceeding for the termination of parental rights, the Court of Appeals shall try the cause anew.”). Instead, the parties agree that we have discretion to review de novo father’s first assignment of error related to the juvenile court’s appointment of a guardian ad litem, ORS 19.415(3)(b), and father does not request that we exercise our discretion to review that appointment de novo. Given the parties’ positions on appeal, we will assume that we have discretion to conduct a de novo review, but we decline to exercise that discretion. See ORAP 5.40(8)(c) (we exercise de novo review “only in exceptional cases”). Therefore, as to the appointment of the guardian at litem, “we review the juvenile court’s legal conclusions for errors of law, but are bound by the court’s findings of historical fact so long as there is any evidence to support them.” State v. S. T. S.,
L was born in 1996. In 2005, father and mother divorced, and mother was awarded custody of L while father had parenting time on alternate weekends. After mother died, father assumed care for L for a period of time. In 2007, father began exhibiting symptoms of paranoid delusion and was admitted to Providence Hospital for two weeks. For that reason, the Department of Human Services (DHS) subsequently filed a petition for jurisdiction, and the juvenile court established jurisdiction on the ground that the “condition or circumstances are such as to endanger the welfare” of the child, ORS 419B.100(l)(c). Father then agreed to attend parenting classes and to undergo a psychological evaluation.
In 2009, Dr. Morrell, a clinical psychologist, conducted a comprehensive psychological evaluation of father. In the evaluation report, Morrell indicated that father has a “circumscribed fixed delusional disorder” that persists “more than likely due to [father’s] noncompliance to antipsychotic medication.” In addition, Morrell conducted cognitive testing, which revealed that father has a low average verbal intellect, but an average nonverbal intellect, and he tends to ramble and vacillate possibly due to “a combination of [his] modest verbal intellect, defensive thinking [,]” possible neurologic impairment, and “confusion related to his delusional disorder.” Morrell ultimately concluded that, based on the collective data, L “is more probably than not at risk for damaging effects accruing from her father’s continuing
At some point, L was placed with her current foster family but continued to visit her father at DHS’s visitation center. After L indicated to DHS that she wanted to be adopted by her foster family, in 2011, DHS filed a termination petition on the grounds that father was “unfit by reason of conduct or condition seriously detrimental to the child and integration of the child into father’s home is improbable within a reasonable time.” DHS alleged in the termination petition, among other things, that father suffered from “[a]n emotional illness, mental illness, or mental deficiency of such nature and duration as to render the parent incapable of providing care for extended periods of time.”
DHS later filed a motion for appointment of a guardian ad litem for father, arguing that he lacked substantial capacity due to his mental disability or impairment either “to understand the nature and consequences of the proceeding or to give direction and assistance to his attorney on decisions a parent must make in [the termination] proceeding[,]” ORS 419B.231(2)(a)(A). In support of its motion, DHS submitted an affidavit stating that father was diagnosed with a delusional disorder and had made numerous rambling statements about a man named George Gardiner, whom father blamed as the reason for many of his problems. DHS contended that father appeared to be distracted and preoccupied with numerous delusional beliefs, and those beliefs, in turn, interfered with his ability to understand the current termination proceedings and to provide his attorney with the necessary information for him to receive a termination trial.
In August 2011, the juvenile court held a hearing on DHS’s motion for the court to appoint a guardian ad litem. DHS contended that a guardian ad litem was necessary because it was difficult to keep father “on point” due to his delusional disorder. Father’s counsel opposed the motion, arguing that she felt confident that father understood the nature of the termination proceeding.
At the hearing, DHS called two witnesses, father and Morrell. During the proceeding, father was able to correctly testify to the following: his age, the date and time, the name of the current president, the parties in the courtroom and their function, the address of the courthouse, the time when he last saw L, and the names of L’s foster parents. Father had difficulty, however, with answering and focusing on certain questions, and both his counsel and the court interrupted his testimony several times, reminding him to focus on the questions being asked. For example, when counsel for DHS asked whether father told Fall, a DHS worker, that somebody was out to destroy him, father stated, “Sir, if you’re being chased by guns and dogs at night in O’Brien or around Cave Junction, you’d be worried about who’s after you.” When the court later asked father to clarify his answer, father tried to tie the explanation back to Gardiner, but was unable to explain how Gardiner was related to his previous statement about being chased by “guns and dogs.” After father discussed his relationship with Gardiner, the court reminded father that the purpose of the hearing was to “figure out if [he] had the mental ability to assist in [his] representation,” and the purpose was not “just to talk about stuff.”
On cross-examination, father’s counsel asked him several questions regarding father’s knowledge of what generally happens during a termination trial. Father explained that at a termination trial the judge must determine, based on admissible evidence, “whether or not you’re able to parent the child.” And father explained that he understood his rights during a termination trial, stating that he is able to testify, call witnesses, and cross-examine the state’s witnesses. Father also testified as to the instructions he had given his attorney regarding his then-pending termination trial, explaining that he wanted to have a termination trial, take the stand at trial, cross-examine witnesses, and call Dr. Phillips, his former psychiatrist, as his primary witness. He indicated that the reason he wanted a termination trial was to show his daughter that he “care[d] for her.” Father also acknowledged that if he did not prevail at the termination trial, L would be adopted by her foster family.
“There are individuals, in fact probably about half the time, there are individuals who are pretty knowledgeable about the legal aspects of the case, but at the same time, they essentially, with all due respect, represent more of a problem to their attorney than *** a solution or an aid[]. My observations again, * * * as [father was] trying to answer the questions for the Judge, as well as for [his] own attorney was that they essentially had to override [his] input to get an answer. I saw [his] attorney, and * * * she was trying to sort of * * * push [him] beyond the answers that [he was] giving so that she could help [him] to help [himself]. And I think that, in my mind, is probably the biggest impediment in terms of the psychiatric state. I think it is true that [father’s] delusional disorder will certainly have relevance in terms of the termination [ ] proceedings, and his ability to parent this child, but I think that his fixation with that and his tendency to go off topic, will mean that his attorney, in my estimation, will continue to have to work in spite of his contribution to the case, in order to represent him, and I obviously would see that that would meet the definition of not, incapable of aiding and assisting.”
Based on his observations, Morrell determined that father was unable to act in his own best interest.
At the end of the hearing, the juvenile court granted DHS’s motion to appoint a guardian ad litem, stating:
“My concern is that [father], in a nutshell, I think [father] can understand the mechanics well enough, but for some reason [father] go[es] off on these tangents, and to an extreme level or tangent that makes [it] impossible for [father] to stay on track with what’s going on here.”
The juvenile court assured father that, despite the appointment of a guardian ad litem, he would receive a trial. But when father’s counsel raised the concern that a guardian ad litem could sign relinquishment papers and take away his right to trial, the court responded,
“But the question for me is, did I find by preponderance of the evidence that your client lacks a substantial mental capacity to understand [and] pursue the proceedings that are in front of him right now. Aad I’m convinced that he does not have the capacity to fully understand and direct your efforts in this regard.”
The juvenile court subsequently entered a corrected order appointing a guardian ad litem, relying on two alternative grounds: (1) father’s disability and impairment rendered him unable to understand the nature and consequences of the termination proceeding; and (2) father’s disability and impairment rendered him unable to give direction and assistance to his attorney on decisions that father must make in that proceeding.
Shortly thereafter, father’s guardian ad litem agreed to stipulate to the allegations in DHS’s petition to terminate father’s parental rights.
During the settlement hearing, father’s attorney stated that she signed the stipulated judgment because it was her duty to follow the guardian ad litem’s directions. And when father attempted to talk to the judge, the court explained that father did not have “standing” at the hearing and that only the guardian ad litem could say something on his behalf. The guardian ad litem did not say anything on father’s behalf. The juvenile court subsequently entered the stipulated judgment, and father’s parental rights with respect to L were terminated.
On appeal, father assigns as error the juvenile court’s granting of DHS’s motion for an appointment of a guardian ad litem and entering the guardian ad litem’s stipulation to terminate father’s parental rights. In his combined argument, father makes three points. First, father contends that the appointment of the guardian ad litem was invalid. Second, because the guardian should not have been appointed, the guardian’s consent to the stipulated judgment, which terminated his parental rights over his objection, was also invalid.
In a juvenile dependency proceeding, a court may not appoint a guardian ad litem for a parent unless the court finds the following by a preponderance of the evidence:
“(a) Due to the parent’s mental or physical disability or impairment, the parent lacks substantial capacity either to understand the nature and consequences of the proceeding or to give direction and assistance to the parent’s attorney on decisions the parent must make in the proceeding; and
“(b) The appointment of a guardian ad litem is necessary to protect the parent’s rights in the proceeding during the period of the parent’s disability or impairment.”
ORS 419B.231(4) (emphasis added). Accordingly, the court may appoint a guardian ad litem when the parent’s impairment prevents the parent from understanding what is happening or helping the parent’s lawyer in the lawyer’s representation of the parent. Both of those functions are necessary for a parent to act in his or her interests and to make critical decisions in a termination proceeding. See State ex rel Juv. Dept. v. Cooper,
Father’s arguments on appeal focus on whether the trial court erred in finding that father was unable to adequately assist and direct his counsel during the termination proceeding. Although father admits that his responses were tangential when he answered questions related to Gardiner, he asserts that
DHS argues, however, that there is sufficient evidence in the record to support the court’s finding that father was unable to aid and assist his counsel, and the court’s appointment of a guardian was necessary to protect father’s rights during the proceeding. According to DHS, father’s rambling testimony illustrates that he was confused as to the purpose of his hearing. And although father was able to give instructions to his counsel, DHS contends that some of father’s instructions were not in his best interest.
We agree with DHS that the record contains sufficient evidence to support the court’s finding that father’s disability rendered him unable to direct and assist his counsel. In his psychological evaluation, Morrell concluded that father lacked the ability to assist his attorney, given that he had a tendency to ramble due to a combination of his delusional disorder and his modest verbal intellect. During the hearing, father did ramble when answering questions related to his relationship with Gardiner, and, consequently, his counsel had to repeatedly interrupt his testimony, reminding him to stay focused on the questions being asked. And, when father was asked by the court to explain how some of his responses related to Gardiner were relevant to his hearing, father was unable to do so adequately. In fact, father seemed confused as to the very purpose of the hearing, although the court had explained to him, on several occasions, that the hearing was not to determine whether he was competent to parent his daughter or to allow father to talk about irrelevant subjects, but rather to determine whether he needed a guardian ad litem appointed for him.
And, to the extent that the court found that father’s tendency to ramble affected his ability to direct and to assist his counsel, we conclude that there is evidence to support it. Morrell testified that father’s delusional disorder and tendency to veer off topic would make it difficult for his counsel to represent him during his termination proceeding, concluding that father’s counsel would have to help him focus on the questions being asked and “push” him to properly answer those questions. Morrell opined that, although father could make some decisions regarding what he wanted at his termination trial, due to his delusional disorder, father was unable to act according to his best interests. Accordingly, we conclude that there is sufficient evidence in the record to support the court’s finding that father was unable to direct and to assist his counsel, and the court did not abuse its discretion in appointing a guardian ad litem for father.
We turn to whether the guardian’s stipulation to terminate father’s parental rights was otherwise valid. DHS relies on Cooper for the proposition that, because the appointment of the guardian ad litem was valid, the guardian ad litem had the authority to stipulate to the termination judgment.
In Cooper, we addressed whether the juvenile court could adjudicate the merits of a termination petition when the mother failed to personally appear at the pretrial hearing, but the mother’s guardian ad litem requested a trial on her behalf.
Shortly after our decision in Cooper, the legislature enacted ORS 419B.234, which sets out the duties of a guardian ad litem in the juvenile dependency context.
In its supplemental brief, DHS asserts that, although the guardian ad litem acknowledged that father did not want to waive his right to a termination trial and stipulate to the termination, the guardian ad litem had the authority to agree to terminate father’s parental rights. According to DHS, father’s resistance to agreeing to the stipulation was the result of his inability to understand the consequences of the proceeding or the advice of his attorney. DHS contends that, if father were competent, he would have agreed to the stipulation, and, pursuant to ORS 419B.234(3), the guardian ad litem had the authority to stipulate to terminating father’s parental rights.
Father does not rely directly on the statutory provisions set out in ORS 419B.234 in support of his challenge to the stipulated judgment, conceding that he did not preserve for appeal an argument based on the statute. Father also does not dispute that, once appointed, the guardian ad litem had statutory authority to stipulate to terminating father’s parental rights.
Although we agree with DHS that, in the juvenile court, father did not raise his due process argument that he now seeks to raise on appeal, we conclude that, in this case, father did not have an opportunity to raise his objections after the guardian ad litem was appointed. See Peeples v. Lampert,
We now turn to the merits of father’s procedural due process argument.
Father argues that he was denied his due process right to fundamental fairness in two respects. First, father contends that he was denied due process because the juvenile court’s appointment of the guardian ad litem was invalid. We reject father’s argument without further discussion because we have already determined that the court did not err in appointing the guardian ad litem for him.
Second, father asserts that he was denied due process because there is no evidence in the record that the guardian ad litem consulted with father, as required by ORS 419B.234(4), before he agreed to waive father’s right to trial. According to father, ORS 419B.234 authorized the guardian ad litem to stipulate to the termination petition, over father’s objection, provided that the guardian ad litem believed that the reason for father’s objection was due to his disability or impairment. But because there is no evidence in the record establishing that the guardian ad litem ever consulted with father to determine why he wanted a termination trial, father asserts that the termination proceeding was fundamentally unfair.
Father relies on three cases in support of his due process argument, Lehman v. Lycoming County Children’s Services,
Although we agree with father’s proposition that due process requires a termination proceeding to be fundamentally fair, father does not further develop his argument. Father does not explain how Lehman, Stantosky, or Geist support his argument that, given an absence of proof that the guardian ad litem consulted with father, father was somehow denied due process. See Lehman,
In sum, we conclude that the juvenile court did not err in appointing a guardian ad litem for father. And because father does not dispute that the guardian ad litem had the authority to stipulate to the termination,
Affirmed.
Notes
Father requested a stay of the termination of parental rights proceeding because father had appealed the appointment of the guardian ad litem, but the court denied the stay.
We note, however, that the mediation agreement is not in the record and that there is no evidence in the record establishing that father, or father’s guardian ad litem, and the potential adoptive parents intended to pursue an agreement to allow for some type of ongoing contact between father and L. Instead, the stipulated judgment states that the guardian ad litem understood that the “stipulation is not conditioned or contingent on any mediated agreement *** that the father will have any ongoing contact with the child.”
Generally, a party may not appeal a stipulated judgment unless that judgment “specifically provides that the party has reserved the right to appellate review of a ruling of the trial court,” OES 19.245(3)(a), and, in this case, the stipulated judgment does not reserve such a right. However, DHS concedes that father may challenge the validity of his consent to the stipulated judgment. Brown and Shiban,
As we noted at the outset of the opinion, neither party suggests that our review of the facts pertaining to the appointment is de novo. But, even if a de novo standard of review were required, we would conclude that the court did not err in appointing a guardian ad litem for father. We give some deference to the trial court’s findings regarding father’s incapacity based on the court’s interaction with and observations of father in the courtroom. See State v. Smith,
Because neither party cited ORS 419B.234 in their briefs, we requested supplemental briefing to address the following questions: (1) “Does ORS 419B.234 apply in this case?”; and (2) “If it does, how does it apply?”
We do not decide whether ORS 419B.234(3) grants that authority.
The Due Process Clause of the Fourteenth Amendment to the United States Constitution provides, “[N]or shall any State deprive any person of life, liberty, or property without due process of law * *
We note that our holding is limited to father’s argument presented on appeal. Father does not argue that ORS 419B.234 does not authorize a guardian ad litem to stipulate to the termination judgment or that any such authority violated his due process rights. And father does not contend that, because the guardian ad litem stipulated to terminating his parental rights, thereby depriving him of a fundamental liberty interest, due process required that the court’s appointment of the guardian ad litem be supported by a higher standard of proof, i.e., by clear and convincing evidence rather than preponderance of the evidence. Father also does not argue that due process required the juvenile court, sua sponte, to ensure that, once appointed, the guardian ad litem complied with his statutory obligations owed to father, including consultation with father before entering the stipulation. Nor does father suggest, along the lines of Geist, that, because ORS 419B.234 does not provide a procedure for father to challenge the guardian ad litem’s failure to comply with his statutory obligations, this court should provide such a procedure. Had father specifically presented and developed those types of arguments, we would have been in a position to consider them.