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 (Los Angeles County Super. Ct. No. 19CCJP00325A)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN
Filed 9/21/21
CERTIFIED FOR PUBLICATION
APPEAL from orders of the Superior Court of Los Angeles County, Craig S. Barnes, Judge. Reversed and remanded with directions.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant.
Amir Pichvai for Plaintiff and Respondent.
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.
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
2. The Department‘s and Patricia‘s Section 388 Petitions and Patricia‘s Court-ordered Psychiatric Evaluation
On April 29, 2019 Patricia filed a
Following an extended hearing on both petitions, the court denied Patricia‘s
On August 28, 2019, prior to the six-month review hearing (
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 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
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
[“‘[j]uvenile courts, relying on the Marsden model, have permitted the parents, who have a statutory and a due process right to competent counsel, to air their complaints about appointed counsel and request new counsel be appointed‘“]; In re Z.N. (2009) 181 Cal.App.4th 282, 289 [Marsden principles apply in dependency proceedings].)
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 worker smelled alcohol on Patricia‘s breath.
At the October 3, 2019 hearing Patricia‘s counsel requested the court grant the
Patricia appealed from the summary denial of her
3. Summary of Proceedings Leading to the Appointment of a Guardian ad Litem for Patricia
The juvenile court first raised the possibility of appointing a guardian ad litem sua sponte on November 1, 2019, after granting the request of Patricia‘s fourth counsel in these proceedings to be relieved, necessitating a further continuance of the contested six-month review hearing. On its own motion the court scheduled a hearing for November 6, 2019 pursuant to In re Sara D. (2001) 87 Cal.App.4th 661 (a Sara D. hearing)4 to determine whether to appoint a guardian ad litem for Patricia.
behalf. Let me explain what that is. It‘s where someone would be appointed by the court to interface with your attorney and address the issues that [have arisen]. And the reason it comes up is that I‘ve reached a conclusion that there is some impediment that seems to suggest you lack the capacity to advise and accept direction from counsel, consult rationally, and understand the proceedings. . . . There is a finite amount of time for you to reunify with your son. And so much time has been devoted to addressing your issues and not your son[‘s]. And I‘ll go through all of that. And the concern is that when we get to the contest, if, in fact, you are the impediment, you are the reason because of certain deficiencies that prevent you from aiding counsel in properly reunifying, you‘ll run out of time.”
In response to the court‘s inquiry whether she would consent to the appointment of a guardian ad litem, Patricia adamantly refused, expressing concern about the court‘s impression of her as the impediment to the proceedings. Patricia stated, “I don‘t know how the court got the impression, but I can only guess that it‘s because my court-appointed attorneys have simply not done their job. And I‘m going to just point out for the purpose of time the most recent court-appointed attorney . . . pretty much told me right away she has 200 cases to deal with at the same time; that she has absolutely no time to read my emails, to go and meet with me, and to go—really go—into this case.” Patricia explained she had helped her counsel with exhibits, obtained numerous recommendation letters on her behalf, and her counsel simply do not want to hear it. “I clearly see impediments in this case. But I‘m viewing it from my perspective. And my perspective as a parent is I have to rely on a competent counsel to please help me who has the time to go and
help me.” Patricia explained she had repeatedly told her counsel about biased social workers and asked for assistance in removing a particular social worker, but her counsel disregarded her request and failed to respond to numerous emails from Patricia about preparing for the contested six-month review hearing.
The court replied it had initially believed Patricia‘s conflicts with counsel were due to several unexpected issues in the case that required flexibility on its part. However, over time, “when I look at the full record and I look at how
Citing Patricia‘s positive
On January 2, 2020, four days before the rescheduled January 6, 2020 six-month review hearing, Milo, too, declared a conflict, citing an “irreparable breakdown of the working relationship between counsel and client whereby there are irreconcilable differences between the lawyer and client resulting in an ethical conflict” and requiring termination of the representation. Following an in camera proceeding, first on Patricia‘s Marsden motion (which the court denied) and then on Milo‘s request to be relieved, the court granted Milo‘s request on January 6, 2020, appointed new counsel (Frank Ostrov) for Patricia and continued the contested six-month review hearing to February 3, 2020.
On January 22, 2020 Ostrov moved to be relieved as counsel, citing Patricia‘s hostile behavior and threats to him that made it impossible for him to zealously represent her. The court set a new guardian ad litem hearing for January 24, 2020 and indicated it would address Ostrov‘s motion then. Following two continuances of that hearing due to Patricia‘s unannounced absences (Patricia later explained she had been in the emergency room after being injured in an assault and was unable to contact anyone), the hearing to address Ostrov‘s request and appointment of a guardian ad litem took place on February 3, 2020. Ostrov recited Patricia‘s statements to him, which he had recorded on his cell phone and played for the court. Among other things, Patricia insulted Ostrov‘s family and told him she wished that he and his family would be killed. Patricia apologized for her behavior and withdrew her Marsden motion.
The court initially denied Ostrov‘s request to withdraw due to an irreconcilable conflict, then granted it after hearing the recording and Patricia‘s admission that the recording was accurate. The court described Patricia‘s behavior on the recording as “menacing” and recalled witnessing her outbursts both inside and outside of the courtroom on other occasions (for which security had been called.) The court appointed new counsel for Patricia, Melineh Hatamian, and continued the six-month review hearing to March 11,
On March 11, 2020, at the scheduled six-month review hearing, Patricia made a Marsden motion to dismiss Hatamian as her appointed counsel. The court denied the request, but granted Hatamian‘s request to be relieved as counsel due to an irreconcilable conflict with Patricia in the representation. The court appointed new counsel, Sherwin Hosseini Amazan; continued the contested hearing to April 9, 2020, at which time it would conduct a combined six- and 12-month review hearing (
On March 12, 2020 Amazan informed the court he believed the case and client were simply too much for his solo practice and asked if his experienced colleague, Niti Gupta, who was present at the hearing, could substitute in for him. The court granted the request, appointed Gupta as counsel for Patricia, and rescheduled the combined six- and 12-month review hearings for April 3, 2020.
Proceeding directly to the continuation of the guardian ad litem hearing, the court stated it had initially believed that Patricia simply did not understand or appreciate the nature of the proceedings and for that reason was incapable of understanding and assisting her counsel. However, citing the
In early April 2020, following continuation of the combined six- and 12-month review hearing to May 7, 2020, Gupta filed a stipulated request signed by all counsel to lift the stay of the court‘s prior order appointing a guardian ad litem for Patricia. In her written request Gupta stated, “Counsel for mother has worked extensively and diligently on this case since appointment and has determined that an appointment of the guardian ad litem is in
Patricia filed a timely notice of appeal from the March 12, 2020 and April 20, 2020 orders appointing a guardian ad litem.
DISCUSSION
1. Governing Law
“In a dependency case, a parent who is mentally incompetent must appear by a guardian ad litem appointed by the court. [Citations.] The test [for mental competence] is whether the parent has the capacity to understand the nature or consequences of the proceeding and to assist counsel in preparing the case.” (In re James F. (2008) 42 Cal.4th 901, 910.) Stated another way, “[a] person may be found incompetent if the person was either incapable of understanding the nature and purpose of the proceeding or unable to assist counsel in a rational manner.” (In re M.P. (2013) 217 Cal.App.4th 441, 452.)
“Before appointing a guardian ad litem for a parent in a dependency proceeding, the juvenile court must hold an informal hearing at which the parent has an opportunity to be heard. [Citation.] The court or counsel should explain to the parent the purpose of the guardian ad litem and the grounds for believing that the parent is mentally incompetent. [Citation.] If the parent consents to the appointment, the parent‘s due process rights are satisfied. [Citation.] A parent who does not consent must be given an opportunity to persuade the court that appointment of a guardian ad litem is not required, and the juvenile court should make an inquiry sufficient to satisfy itself that the parent is, or is not, competent. [Citation.] If the court appoints a guardian ad litem without the parent‘s consent, the record must contain substantial evidence of the parent‘s incompetence.” (In re James F., supra, 42 Cal.4th at pp. 910-911; accord, In re Jessica G. (2001) 93 Cal.App.4th 1180, 1186; In re Sara D., supra, 87 Cal.App.4th at pp. 667-668.)
The appointment of a guardian ad litem for a parent in a dependency case “is no small matter. The effect of the appointment is to remove control
2. The Court‘s Appointment of a Guardian ad Litem for Patricia Is Not Supported by Substantial Evidence
Patricia contends the court erred in appointing a guardian ad litem for her. While acknowledging overwhelming evidence that she was difficult, demanding, and frequently clashed with her appointed counsel, she argues there was no evidence, and indeed, no finding by the juvenile court, that she lacked the capacity either to understand the nature of proceedings or to assist counsel in a rational manner: The July 2019
The Department responds that Patricia‘s inability to assist counsel in a rational manner was plain on the face of the record: A multitude of experienced and competent counsel, and in some cases, their entire law firms, moved to be relieved from representing Patricia, citing irreconcilable differences and, at times, a total breakdown in communication with their client. That no attorney was able to represent Patricia for any meaningful length of time, the Department argues, was prima facie evidence of her inability to rationally assist counsel.
Contrary to the Department‘s contention, Patricia‘s deliberate failure to cooperate with counsel, without more, does not demonstrate incompetency. (See People v. Mendoza (2016) 62 Cal.4th 856, 879 [“[v]oluntary barriers to communication with counsel on the part of a defendant who was able to cooperate [but elected not to] do not
694, 735 [“[d]efendant‘s cursing and disruptive actions displayed an unwillingness to assist in his defense, but did not necessarily bear on his competence to do so“]; see also In re James F., supra, 42 Cal.4th at p. 916 [“[i]n a dependency proceeding, a juvenile court should appoint a guardian ad litem for a parent if the requirements of either
The Department‘s reliance on In re M.P., supra, 217 Cal.App.4th 441 to support the court‘s ruling is misplaced. In that case, a psychological examination found the mother involved in a dependency matter suffered from schizophrenia, paranoid type, with the presence of prominent delusions. The mother‘s counsel requested the court hold a guardian-ad-litem hearing, advising the court, “[T]he 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.” (Id. at p. 447.) The attorney explained that the mother did not agree with the appointment of a guardian ad litem and wanted a new attorney. The court held a Sara D. hearing. Citing a 2008 psychological assessment that found the mother had “‘serious mental health needs‘” and “‘is not able to . . . understand the difference between facts as the majority of people are experiencing [them] and the way that [she] is experiencing the world around her‘” and that it was “‘impossible to have a
competent intelligible kind of a legal conversation,‘” counsel thought it best if the court appointed a guardian ad litem, who would work with the mother and understand what needed to be done “‘to move forward with this case.‘” (Id. at p. 449.) During the hearing the court questioned the mother. Following responses from the mother that were “meandering, nonresponsive and sometimes unintelligible” (id. at p. 450), the court appointed a guardian ad litem for her.
Here, in stark contrast to In re M.P., none of Patricia‘s counsel expressed any doubt about Patricia‘s competence, nor did her responses to the court during the hearing suggest it.7 In fact,
citing Patricia‘s favorable
12-month review hearing. Gupta did not indicate Patricia was unable, rather than unwilling, to cooperate with Gupta. And we do not know any more about the basis for Gupta‘s request because the court did not hold a further hearing, but simply lifted the stay of its earlier order based on its mistaken finding there existed sufficient grounds for appointment of a guardian ad litem. Gupta‘s request, unaccompanied by the required due process hearing and an opportunity for Patricia to respond (In re James F., supra, 42 Cal.4th at p. 910), neither constitutes substantial evidence to support the court‘s appointment of a guardian ad litem nor renders the appointment of a guardian ad litem absent a proper hearing harmless. As discussed in section 3, this is not a case such as James F. where the parent‘s incompetence is beyond dispute.
87 Cal.App.4th at p. 669 [“transferring direction and control
representing her. (We take judicial notice of the juvenile court‘s May 7, 2021 order terminating Patricia‘s parental rights pursuant to
417-418 [“We understand from our prior review of orders issued in this case that appellant can be more demanding on the system than others. But that does not justify denying her the rights afforded under the law“].)
3. The Appointment of a Guardian ad Litem for Patricia Was Not Harmless
Relying on In re James F., supra, 42 Cal.4th 901 and In re Daniel S. (2004) 115 Cal.App.4th 903, the Department alternatively argues that any error in appointing a guardian ad litem was harmless beyond a reasonable doubt.10 In both
James F. and Daniel S. the juvenile court appointed a guardian ad litem for a parent in dependency proceedings without
The Department emphasizes the juvenile court only appointed a guardian ad litem as a last resort, after finding other measures it had utilized to control Patricia‘s behavior (calling security to prevent in-court outbursts after she was heard shouting and seen throwing things in the hallway outside the courtroom and issuing restraining orders to protect the subjects of her out-of-court threats) insufficient to address Patricia‘s conflicts with her counsel. Implicit in the Department‘s assertion of these facts is the question: What is to be done with a parent like Patricia, who engages in demanding, harassing, and even threatening behavior with her counsel, undermining counsel‘s ability to provide effective representation and interfering with counsel‘s own personal well-being?
We appreciate the difficulty confronting counsel and the court on the front lines of Patricia‘s behavior. We also agree with the juvenile court that Patricia has done herself no favors by engaging in conduct that alienated her counsel and, at the very least, delayed reunification efforts. Nonetheless, as Patricia‘s
a parent without a supportable finding of incompetence is prejudicial under any standard.
appellate counsel points out, a large part of the problem was caused by the court‘s own rulings granting the requests of numerous appointed counsel to be relieved following Patricia‘s unsuccessful Marsden motions. The court need not have granted permissible withdrawal if the delay caused by replacement of counsel would have prejudiced Patricia in proceedings in which time is of the essence. (See Lempert v. Superior Court (2003) 112 Cal.App.4th 1161, 1173 [“[t]he determination whether to grant or deny an attorney‘s motion to withdraw as counsel of record lies within the sound discretion of the trial court, having in mind whether such withdrawal might work an injustice in the handling of the case“]; Mandell v. Superior Court (1977) 67 Cal.App.3d 1, 4 [court has discretion to deny attorney‘s request to withdraw when withdrawal would result in an injustice or cause undue delay]; see generally In re Jesusa V. (2004) 32 Cal.4th 588, 637 [the Legislature has declared that dependency actions be resolved expeditiously]; In re Marilyn H. (1993) 5 Cal.4th 295, 310 [time is of the
To address Patricia‘s behavior, Patricia‘s counsel may find it helpful to impose reasonable and well-defined limitations on communications with Patricia, as Patricia‘s appointed appellate counsel seems to have successfully done.12 For instance, to address Patricia‘s sometimes hundreds of emails a day to counsel,
People v. Michaels (2002) 28 Cal.4th 486, 523 [“Defendant cannot simply refuse to cooperate with his appointed attorney and thereby compel the court to remove that attorney. ‘“[I]f a defendant‘s claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law“‘“].) Nevertheless, by repeatedly allowing Patricia‘s attorneys to withdraw following Patricia‘s unsuccessful Marsden motions, the court may have reinforced Patricia‘s disruptive conduct.
counsel may require that Patricia send no more than a specific number of emails (two or three, for example) in a 24-hour period and state that counsel will respond only once during that same (or some other reasonable) period, with the understanding that these limitations (and Patricia‘s violation of them) will not be grounds for replacement of counsel, either through a motion by Patricia or by counsel‘s request to withdraw. To the extent Patricia attempts personally to file documents while represented by counsel, the court should reject those documents for filing without ruling on them.13 If Patricia‘s outbursts in the courtroom continue (it appears Patricia has been able to control herself, at least while in the courtroom), the court
Our holding reversing the guardian ad litem orders will require the juvenile court to vacate all subsequent orders made
during proceedings in which Patricia was denied the benefit of communicating directly with her counsel (see In re Kimberly F. (1997) 56 Cal.App.4th 519, 535-536 [in light of reversal of court‘s order denying parent‘s
DISPOSITION
The court‘s March 12, 2020 order appointing a guardian ad litem for Patricia is reversed. On remand the juvenile court is ordered to vacate its April 20, 2020 order and all subsequent orders in which Patricia was denied the right to directly communicate with her counsel, including the court‘s orders at the
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
Notes
While we are inclined to agree with those appellate courts that have found the Chapman standard appropriate for the due process violation at issue (see In re Daniel S., supra, 115 Cal.App.4th at p. 914 [due process violation in appointing guardian ad litem held harmless “beyond a reasonable doubt“]; In re Sara D., supra, 87 Cal.App.4th at p. 674 [due process violation in appointing guardian ad litem reversible error unless harmless beyond reasonable doubt]), we need not resolve that question because the error in appointing a guardian ad litem for