Does a parent’s purposeful difficulty in communicating with their counsel mandate the use of a GAL?
In re Samuel A., 69 Cal. App. 5th 67, 284 Cal. Rptr. 3d 151 (2021)
In dependency cases, a parent who is found mentally incompetent must be appointed and represented by a guardian ad litem. A Guardian ad litem or GAL should be used in severe circumstances where the parent is either nonverbal, too psychotic, or unable to understand and communicate with their lawyer even at the “most basic level”. The court in determining whether the parent is too mentally incompetent must determine if the parent has the capacity to (1) understand the nature, purpose, or consequences of the proceeding and (2) to assist counsel in preparing the case in a rational manner. If the court determines that the parent lacks capacity it will appoint a GAL to represent the parent. Before appointing a GAL, the court should explain to the parent the purpose of a guardian ad litem and the grounds for believing that the parent is mentally incompetent. Before appointing a GAL for a parent, the juvenile court must conduct an informal hearing in order to ensure the parent’s due process rights are met. The parent shall be given (1) notice and (2) an opportunity to be heard.
Because the implications of appointing a GAL, it would be prejudicial error not to hold an evidentiary hearing. A guardian ad litem strips the parent (whose vital rights are at issue) of their own control over litigation and transfers it to the guardian. Consequently, the appointment must taken seriously and all evidence weighed appropriately.
If the parent raises on objection to a GAL, the record must indicate that the court considered substantial evidence of the parent's incompetence.
The question in this case is whether a parent who willfully complicates communication with their counsel is candidate for a GAL. The appellate court found that that the trial court committed prejudicial error when it _____ appointed a GAL for a parent who intentionally refused to work cohesively with her counsel and that the court’s notice was proper.
THE TRIAL COURT DID PROVIDE MOTHER WITH NOTICE AND AN OPPORTUNITY TO BE HEARD ABOUT GAL APPOINTMENT
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 and the court lay out its reasoning for appointing a GAL. The trial court did provide parent with proper due process. If a parent who does not consent must be given an opportunity to be heard in which they persuade the court that a GAL is not required, and the juvenile court must make finding that a GAL is warranted.
The appellate court points to the record where the trial court advised mother of the upcoming appointment of a GAL.
The court explained its reasoning:
“[T]his hearing is to decide the appointment of a guardian ad litem to act on your 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 **157 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.”
The trial court did provide notice and an opportunity to be heard regarding this appointment. However, it committed prejudicial error when it relied on mother’s anger outbursts and alcoholism as proof necessitating a GAL.
TRIAL COURT INCORRECTLY RELIED ON ____ FOR GAL APPOINTMENT
Appellant asserts that although she was difficult and had a lot of conflict with her counsel, she contends there was no evidence supporting the juvenile court’s finding that she lacked the capacity either to understand the nature of proceedings or to assist her counsel in a rational manner. She cites to Evid Code § 730 evaluation that found she did not suffer from an mental health condition. Additionally, the record indicates that none of her prior attorneys opined that their communication difficulties were caused by mental incompetence. Finally, the trial court in its records stated it had appointed a guardian ad litem based on its belief that mother’s resistance was strategic to gain more time and to delay proceedings she believed were going to be unfavorable.
The department cites that many experienced and competent counsel in the area of dependency law were unable to assist mother. The fact that she went through so many attorneys and that no one was able to represent her for any meaningful length of time was prima facie evidence of appellant’s inability to assist counsel.
The appellate court cites to People v. Mendoza (2016) 62 Cal.4th 856, 879, 198 Cal.Rptr.3d 445, 365 P.3d and Penal Code § 1367:
“voluntary barriers to communication with counsel on the part of a defendant who was able to cooperate (but elected not to do) not demonstrate [an] incompetence” finding needed to appoint a GAL.
In examining the evidence, the trial court must examine the parent’s competency to cooperate, not cooperation with their counsel. Given that all parties opined that she was capable of assisting, but merely unwilling to do so, the trial court appointed a guardian ad litem for mother and reasoned that it was the only means available to progress the case while ensuring mother had the benefit of counsel. The appellate court noted that despite its well-intentions the court’s orders violated the parent’s right to directly communicate with their counsel given the potential outcome (termination of rights).
THE ORDER APPOINTING A GAL WAS NOT A HARMLESS ERROR THUS REQUIRING REVERSAL OF THE TRIAL COURT ORDER
Any juvenile court’s order terminating parental rights is “widely recognized as ranking ‘among the most severe forms of state action”. Because of this, parents are afforded many legal safeguards to ensure that parental rights are protected.
The court did not go into a detailed legal analysis, but it provided alternatives for counsel to use when mother was being too difficult. The court mostly focused on the fact that trial court made its ruling based on misplaced reliance on mother’s anger issues as the basis for GAL appointment and this alone was prejudicial error. It did not speak about whether the outcome would have differed if the trial court did not make this “mistake”.
The appellate court issued its remittitur ordering that the trial court vacate any orders in which the guardian ad litem was present and mother was denied the benefit of communicating directly with her counsel.
Appellate court notes that its remittitur will further delay already delayed proceedings but that is the inevitable consequence of violating appellant’s fundamental rights.
****Counsel should not use this case to prove doctrine of disentitlement which bars litigants who violate a court’s orders from seeking relief from the court.
69 Cal.App.5th 67
Court of Appeal, Second District, Division 7, California.
IN RE SAMUEL A., a Person Coming Under the Juvenile Court Law.
Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,
Patricia A., Defendant and Appellant.
Background: In dependency proceeding, the Superior Court, Los Angeles County, No. 19CCJP00325A, Craig S. Barnes, J., appointed a guardian ad litem to act on mother's behalf. Mother appealed.
Holdings: The Court of Appeal, Perluss, Presiding Justice, held that:
1 appointment of guardian ad litem was not supported by substantial evidence, and
2 appointment of guardian ad litem was not harmless error.
Reversed and remanded with instructions.
Juvenile Dependency and