Dependency Case Law

In re Joann E. (Nov. 15, 2002; certified for publication on December 16, 2002) 104 Cal.App.4th 347 [128 Cal.Rptr.2d 189]. Court of Appeal, First District, Division 3.

The juvenile court appointed a guardian ad litem for the grandmother and removed the child from the custodial grandmother’s care because of the grandmother’s mental instability. The grandmother, the child’s guardian, was diagnosed with hepatitis and HIV and was placed on medication. The Department of Children and Family Services for Contra Costa County (department) filed a juvenile dependency petition under Welfare and Institutions Code section 300(b), alleging that the grandmother was unable to care for the child because she exhibited signs of mental instability, which necessitated the grandmother’s hospitalization and placement on a Welfare and Institutions Code section 5150 hold for persons who endanger themselves or others due to a mental disorder. The juvenile court appointed a guardian ad litem for the grandmother to represent her interest in the dependency proceedings. The grandmother appealed the juvenile court’s decision, arguing that the jurisdictional proceedings and everything that followed must be reversed because the guardian who represented her in those proceedings was appointed in violation of her right to due process.

The Court of Appeal reversed the juvenile court’s decision and held that (1) the grandmother’s challenge to appointment of a guardian ad litem on appeal was timely, (2) appointment of a guardian ad litem without incompetency determination violated the grandmother’s due process rights, and (3) violation of the grandmother’s due process rights was a prejudicial error.

First, regarding the timeliness of the grandmother’s appeal, the appellate court reasoned that Welfare and Institutions Code section 366.26(l), indicating that failure to file a petition for extraordinary writ review within a specified period precludes subsequent review by appeal, does not apply to the case at hand; the appellate court also stated that no other statutes require the grandmother to seek review of her appointment of a guardian separately from her appeal of the dispositional order. Furthermore, the appellate court applied the reasoning of In re Jessica (2001) 93 Cal.App.4th 1180 and held that failing to seek a writ review to challenge the appointment of a guardian ad litem for the parent or guardian in a dependency proceeding did not constitute a waiver of that right. The appellate court also emphasized that waiver of the right to appeal requires notice to the grandmother, which was not provided to her.

Second, the appellate court ruled that in a dependency proceeding, if a guardian ad litem is appointed by the court to represent the interest of the parent or guardian of the child and the parent or guardian has not consented, the court must provide the parent or guardian with an informal hearing and an opportunity to be heard on the issue. Accordingly, the appellate court held that the juvenile court’s appointment of a guardian ad litem for the grandmother violated her due process rights because there is no record that the grandmother received notice of the court’s intent to appoint a guardian for her or that the court conducted a hearing to assess the grandmother’s incompetency.

Third, the appellate court held that the due process violation against the grandmother was not harmless beyond a reasonable doubt because the grandmother’s attorney indicated that the imposition of the guardian ad litem may have impeded the flow of information about a beneficial witness. The appellate court concluded that the violation of the grandmother’s constitutional due process right constituted a prejudicial error since the error was not harmless beyond a reasonable doubt. Therefore, the appellate court reversed the juvenile court’s decision.