IN RE: CHRISTINE P., a Person Coming Under the Juvenile Court Law. Pedro R. SILVA, as Chief Probation Officer, etc., Plaintiff and Respondent, v. TERRIE P., Defendant and Appellant.
Terrie P. appeals a juvenile court judgment declaring her child a dependent of the court. (Welf. & Inst. Code, § 300, subds. (a) & (b); § 360, subd. (c).) 1 We find merit in appellant's argument that the court erred in proceeding with the jurisdictional hearing when it had not made a final determination as to the need for a guardian ad litem and when appellant was not represented by counsel. We hold that in many child dependency proceedings an indigent parent has a constitutional due process right, as well as a statutory right, to appointed counsel. But we conclude that the presence of a guardian ad litem or counsel in this case would not have produced a different result, and we find no merit in appellant's other contentions on appeal. Therefore, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Christine Michelle P. was born March 1, 1989, and immediately placed in protective custody. The following day, the probation department filed a dependency petition pursuant to section 300, subdivisions (a) and (b). The petition alleged substantial risk (1) that Christine would suffer serious, nonaccidental, physical harm from appellant, and (2) that Christine would suffer serious physical harm or illness resulting from appellant's inability to care for her due to appellant's mild mental retardation. The petition stated that Christine's half-sibling had been declared a dependent of the court in April 1988 because of appellant's neglect and physical abuse. Initially, the petition listed Christine's father as unknown; an amendment named the father but listed his whereabouts as unknown. Attached to the amended petition was a probation officer's report, which we describe in detail in our discussion below.
On March 6, 1989, the court ordered that Christine be placed in the Children's Shelter. The court scheduled a further detention hearing for March 16, 1989, and the jurisdictional hearing for March 22, 1989. Subsequently, the case was continued until April 12, 1989, and then until April 19, 1989.
The public defender represented appellant at the April 19, 1989, hearing and someone from the public defender's office transported appellant to the hearing. Counsel requested that appellant be allowed to visit Christine and that a guardian ad litem be appointed for appellant. The court stated that visits would be allowed but that the probation officer's attempts to establish a visitation schedule thus far had been unsuccessful. The court observed, “it is going to take a while to locate a guardian ad litem,” and continued the proceedings until May 26, 1989.
Appellant did not attend the hearing on May 26, 1989. Her counsel reminded the court that appellant was developmentally disabled, that she required assistance in getting to court or seeing her child, and that the appointment of a guardian ad litem was necessary. The court agreed that “[t]he first thing to do is to get a guardian ad litem appointed” and continued the proceedings until June 19, 1989.
The matter was subsequently continued until July 3, 1989. On that date, it was continued until July 10, 1989, according to the court, “for identification of guardian ad litem.” After two more continuances, appellant attended a hearing on July 20, 1989, accompanied by new counsel from the public defender's office. Counsel informed the court that the parties had agreed to a visitation schedule. He requested a two-week continuance “to see how those visits play out ․,” stating that “I am not sure a [guardian ad litem] is necessary.” The judge pointed out that appellant had not had a guardian ad litem in the earlier case regarding Christine's half-sibling. The judge reported that she had approached a special education teacher about serving as guardian ad litem in this case, and it was “her opinion that the mother very well may not need” one.
Appellant did not attend the next scheduled hearing on August 7, 1989. Counsel said that appellant had not contacted his office to arrange transportation, nor had his office contacted appellant to make arrangements. “I have waivered [sic] on whether I felt my client needed a [guardian ad litem], initially thought she did, but the Court didn't seem to think that was necessary. (¶) Based on what I know today, I would say that this person definitely needs a Guardian Ad Litem. (¶) The only time she has been to court, to my knowledge, is when my assistant has transported her here․” Counsel reported that appellant had one visit with Christine, which “went very well.”
Deputy county counsel expressed concern that the six-month deadline for establishing jurisdiction was nearing. The judge announced that she would proceed to a finding on jurisdiction and set a later date for disposition. Appellant's counsel responded: “my client has not contacted our office since the last court date. I am not comfortable going ahead with jurisdiction․ I'd be making a motion to withdraw from this case. I am not confident this person understands whatever rights she would be giving up by not showing up today and I just cannot go forward if the court is going to go to jurisdictional finding.” The court granted counsel's motion to withdraw. The court went on to find the allegations of the petition to be true and Christine to be a person described in section 300, subdivisions (a) and (b).
On August 11, 1989, the court vacated the August 7, 1989, order permitting the public defender to withdraw, stating: “One of the reasons that the court is vacating that order is after having reviewed some of the information in the file, it's very apparent that this particular parent doesn't really have the ability to do all of the things that the ordinary client has within their capabilities.” Over the deputy public defender's objection based on appellant's previous lack of cooperation, the court reappointed the public defender to represent appellant. Having “looked at the mental stability of the mother and ․ determined that she is not able to proceed on her own behalf ․,” the court also appointed a guardian ad litem. A settlement conference was set for August 21, 1989, and a disposition hearing set for August 28, 1989.
Although the matter was originally set as a contested disposition, there was a resolution before the disposition hearing on August 28, 1989. The court reviewed the report of the probation officer, as well as a report by a licensed psychologist.2 The court found by “clear and convincing evidence that the welfare of the minor requires that her physical custody be taken from the parents․” The court approved a family reunification plan pursuant to section 361.5, subdivision (a).
First, appellant argues the court erred by proceeding with the jurisdictional hearing when appellant was not represented by counsel. She maintains she has a right to counsel under the due process clauses of the federal (U.S. Const., 14th Amend.) and state (Cal. Const., art. I, § 7) constitutions, as well as under state statute (§ 317, subd. (b)) and court rule (Cal.Rules of Court, rule 1412(h)(1)(B)). She contends the court erred in failing to continue the jurisdictional hearing and in granting counsel's motion to withdraw when appellant was not notified of counsel's motion and did not consent to withdrawal.
Second, appellant argues the court erred in failing to appoint a guardian ad litem prior to the jurisdictional hearing.
Third, appellant argues that the finding of jurisdiction is erroneous because no evidence was introduced at the hearing.
Finally, appellant argues she was denied numerous substantive and procedural due process rights under the federal and state constitutions, in addition to a right to counsel.
At the outset, we recall the abiding principle in child dependency cases: The paramount goal of the proceedings is to protect the welfare and best interests of the child. (See § 202, subd. (a); In re Malinda S. (1990) 51 Cal.3d 368, 384, 272 Cal.Rptr. 787, 795 P.2d 1244.)
We begin with the court's finding of jurisdiction because, as explained below, the validity and strength of that finding will inform our consideration of appellant's other contentions on appeal. Appellant contends the finding of jurisdiction is not supported by substantial evidence. (See In re Angelia P. (1981) 28 Cal.3d 908, 924, 171 Cal.Rptr. 637, 623 P.2d 198; In re Katrina C. (1988) 201 Cal.App.3d 540, 547, 247 Cal.Rptr. 784.) In fact, appellant maintains that no evidence whatsoever was introduced at the hearing.
We disagree. The jurisdictional finding in this case is supported by substantial evidence contained in the probation officer's report, prepared in March 1989 and attached to the petition. Indeed, the judge stated at the jurisdictional hearing that she had “looked at the recommendations of the probation officer in this case․”
Statutes and court rules prescribe preparation of a social study to “provid[e] the court with a coherent picture of the child's situation.” (In re Rose G. (1976) 57 Cal.App.3d 406, 426, 129 Cal.Rptr. 338.) Section 280 requires the probation officer to prepare “a social study of the minor, containing such matters as may be relevant to a proper disposition of the case. The social study shall include a recommendation for the disposition of the case.” Pursuant to section 281, in determining “any matter involving the custody, status, or welfare of a minor or minors, ․ [t]he court is authorized to receive and consider the reports and recommendations of the probation officer․” Under California Rules of Court, rule 1450(c), “[a] social worker's report that contains information relevant to the jurisdiction hearing shall be admissible if, on request of the parent or guardian, the probation officer or social worker is made available to be cross-examined on the contents of the report.”
In In re Malinda S., supra, 51 Cal.3d 368, 272 Cal.Rptr. 787, 795 P.2d 1244, the Supreme Court recently considered whether social studies containing hearsay and even multiple hearsay are competent evidence to support a finding of jurisdiction under section 300. Section 355 provides that in a section 300 jurisdictional hearing, “any matter or information relevant and material to the circumstances or acts which are alleged to bring [the minor] within the jurisdiction of the juvenile court is admissible and may be received in evidence. However, proof by a preponderance of evidence, legally admissible in the trial of civil cases must be adduced to support a finding the minor is a person described by Section 300.” (Emphasis added.) The Malinda S. court concluded that the Legislature intended to create a hearsay exception for studies prepared by social workers and probation officers for section 300 dependency proceedings. (Id. at p. 379, 272 Cal.Rptr. 787, 795 P.2d 1244.) Therefore, such studies constitute competent and legally admissible evidence that meets the standard of proof required by section 355. (Id. at p. 382, 272 Cal.Rptr. 787, 795 P.2d 1244.)
The probation officer's report in this case recounts the following history: Both appellant and her sister Rose suffer from mild mental retardation. From October 1986 through April 1987, the sisters received in-home classes from a parenting skills trainer provided by the San Andreas Regional Center (SARC). During the course of instruction, the trainer did not discern any improvement in appellant's parenting of Joseph, her first child. The trainer prepared a report expressing concern over nutrition, safety, medical care, discipline, and stimulation in the home. At the same time, another SARC counselor attempted to provide appellant with sex education. She concluded that appellant did not understand birth control and was unwilling to accept any counseling on the subject. Appellant and Rose also rejected SARC's help in learning to budget their weekly check, although they frequently lent money to “friends” and, as a result, ran out of food.
After rendering numerous services, a SARC case manager made a referral to Child Protective Services in April 1987, expressing concern over the ability of appellant to care for Joseph and of Rose to care for her two children. Through the efforts of the case manager and school personnel, Joseph was enrolled in school that fall. The school district soon complained that Joseph was aggressive and disruptive and, in November 1987, the school district also made a referral to Child Protective Services. In December 1987, Joseph and his two cousins were removed from the home. Joseph was adjudged a dependent of the court in April 1988 due to appellant's neglect and physical abuse.
That same month, appellant and Rose were evicted from their apartment. Through the case manager's efforts, they obtained adjacent apartments at a facility operated by Housing for Independent People. About the same time, appellant indicated she thought she was pregnant. The SARC genetics counselor had difficulty getting appellant to a clinic to confirm the pregnancy. Once it was confirmed, appellant was lackadaisical about taking prescribed medication and keeping medical appointments unless accompanied. On at least one occasion, she became confused and started to leave the clinic before being seen.
From May 1988 through November 1988, SARC provided appellant with 445 hours of individual and group training in independent living skills, including money management, shopping, cooking, sex, hygiene, assertiveness, safety, etc. An additional 377 hours were authorized for December 1988 through May 1989. Nonetheless, according to the probation report, social workers and the SARC case manager still believed appellant and her sister in need of “direct ongoing instruction and assistance to live independently.” Upon Christine's birth in March 1989, staff members of SARC and Housing for Independent People were unanimous in their belief that appellant was incapable of adequately parenting a child, even with further instruction.
Under the Supreme Court's decision in Malinda S., the probation officer's report constituted legally admissible evidence in this case. While the report may not have been formally introduced into evidence, it was properly part of the record below. Moreover, we conclude that the report constitutes substantial evidence to support the trial court's determination that Christine was a person described by section 300.
Right to Counsel
By statute in California, a court must appoint counsel for an indigent parent whose child has been or may be placed in out-of-home care, unless the parent effectively waives counsel. (§ 317, subd. (b).) A California court rule echoes this requirement. (Cal.Rules of Court, rule 1412(h)(1)(B).) Further, the attorney in an action or special proceeding may withdraw only “[u]pon the consent of both client and attorney” or through court order “upon the application of either client or attorney, after notice from one to the other.” (Code Civ.Proc., § 284.)
In view of the statutory right to appointed counsel in child dependency proceedings, we must conclude that the trial judge acted improperly in this case by permitting appellant's counsel to withdraw without notice to appellant and by proceeding with the jurisdictional finding in the absence of appellant or her counsel. (See In re Nalani C. (1988) 199 Cal.App.3d 1017, 1028, 245 Cal.Rptr. 264 [court disapproved similar events in parental termination proceedings].) Ordinarily, our next step would be to consider whether the court's error was prejudicial. (Ibid.) But we shall delay that step while we turn to appellant's primary contention on appeal. Appellant asserts she has not only a statutory right to appointed counsel but also a constitutional due process right that was violated when the trial court granted counsel's motion to withdraw and proceeded to find jurisdiction. Apparently, appellant hopes to avoid the harmless error standard, applied in the case of a deprivation of a statutory right to counsel (see In re Nalani C., supra, at p. 1028, 245 Cal.Rptr. 264), in favor of a per se rule in the case of a constitutional deprivation.
California courts have disagreed regarding a parent's constitutional right to counsel in child dependency proceedings. Because statutory law provides for the appointment of counsel, the question whether there is also a constitutional right typically arises when a parent asserts a claim of ineffective assistance of counsel. As a threshold issue, the appellate court considers whether there is a constitutional right to any counsel, let alone effective counsel.
In In re Christina H. (1986) 182 Cal.App.3d 47, 49, 227 Cal.Rptr. 41, the Second District held that “in many [dependency] cases an indigent parent possesses both a statutory and constitutional right to appointed counsel.” The court relied upon Cleaver v. Wilcox (9th Cir.1974) 499 F.2d 940, in which the Ninth Circuit held that indigent parents were entitled to appointed counsel in child dependency proceedings on a case-by-case basis. “[D]ue process requires the state to appoint counsel whenever an indigent parent, unable to present his or her case properly, faces a substantial possibility of the loss of custody or of prolonged separation from a child.” (Id. at p. 945, fn. omitted, quoted in In re Christina H., supra, 182 Cal.App.3d at p. 49, 227 Cal.Rptr. 41.)
The Second District analogized dependency proceedings to proceedings to terminate parental control under Civil Code section 232. The court relied upon In re Christina P. (1985) 175 Cal.App.3d 115, 129, 220 Cal.Rptr. 525, in which the Third District held that the indigent parent in that termination case was entitled to counsel on due process grounds and concluded that such “entitlement must extend to effective assistance of counsel or it will be a hollow right.” The Third District relied, in turn, upon Lassiter v. Department of Social Services (1981) 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640, in which the Supreme Court held that an indigent parent has a constitutional due process right to appointed counsel in parental termination proceedings on a case-by-case basis.
A few months after the Second District issued Christina H., the Third District reached a contrary holding. In In re Ammanda G. (1986) 186 Cal.App.3d 1075, 231 Cal.Rptr. 372, the Third District held that a parent does not have a constitutional right to appointed counsel in child dependency proceedings. The court disagreed with the Second District's reliance in Christina H. on Christina P. The Third District said that, in deciding Christina P. under the guidance of Lassiter, it was careful to limit the holding to Civil Code section 232 termination hearings. “Section 300 hearings do not terminate parental status and thus, do not give rise to a right to counsel on due process grounds. As Christina H. observes, the right to have counsel appointed for indigent parents in section 300 hearings arises from California Rules of Court, rule 1334(c). Thus, the right to appointed counsel here is statutory and not, as we have noted, constitutional.” (In re Ammanda G., supra, at p. 1079, 231 Cal.Rptr. 372.) As a result, the Third District concluded, a parent cannot assert an ineffective assistance of counsel claim in dependency proceedings.
Other California courts have not spoken directly to the issue. The Fourth District recognized the split of authority but declined to rule on the issue, holding in In re Kristin B. (1986) 187 Cal.App.3d 596, 607, 232 Cal.Rptr. 36, that, even if there were a constitutional right to appointed counsel in dependency proceedings, appellants in that case did not demonstrate they were denied such a right. In fact, the Second District took the same approach in In re Dawn L. (1988) 201 Cal.App.3d 35, 246 Cal.Rptr. 766, thus appearing to pull back from the court's pronouncement two years earlier in Christina H. that a parent has a constitutional right to counsel in dependency proceedings. Christina H. has not been entirely ignored, however. Although not confronted with the precise issue raised in Christina H., both this court (In re Micah S. (1988) 198 Cal.App.3d 557, 565, 243 Cal.Rptr. 756 (conc. opn. of Brauer, J.)) and the California Supreme Court (Walker v. Superior Court (1988) 47 Cal.3d 112, 134, 253 Cal.Rptr. 1, 763 P.2d 852), have cited Christina H. with seeming approval.
The California Supreme Court's view is far from clear, however. In Walker v. Superior Court, supra, 47 Cal.3d at p. 134, 253 Cal.Rptr. 1, 763 P.2d 852, emphasis added, the court observed: “While dependency proceedings are civil rather than criminal, their relevance to our inquiry is plain. Parents possess a profound interest in the custody of their children․ Consistent with the gravity of the prerogative at stake, parents involved in W & I section 300 proceedings are assured notice and a due process hearing [citation] while those who are indigent receive appointed counsel (In re Christina H. [supra] 182 Cal.App.3d 47, 49, [227 Cal.Rptr. 41]․).” Although the reference to Christina H. does not speak specifically to a constitutional right to counsel, it is doubtful the Supreme Court would cite Christina H. simply for the notion that there is a statutory right to counsel in California.
Yet in the recently issued In re Malinda S., supra, 51 Cal.3d at p. 384, 272 Cal.Rptr. 787, 795 P.2d 1244, emphasis added, the Supreme Court quoted from In re Mary S. (1986) 186 Cal.App.3d 414, 418–419, 230 Cal.Rptr. 726, as follows: “ ‘Dependency proceedings are civil in nature, designed not to prosecute a parent, but to protect the child. A parent at a dependency hearing cannot assert the Fourth Amendment exclusionary rule․ Nor can the parent seek reversal on the grounds of incompetency of counsel․’ ” Presumably, a parent could seek reversal on the grounds of incompetency of counsel if there were a constitutional right to counsel. (See In re Ammanda G., supra, 186 Cal.App.3d at p. 1079, 231 Cal.Rptr. 372.)
Thus, while the California Supreme Court has not directly addressed the issue, the court has sent mixed signals regarding an indigent parent's constitutional right to appointed counsel in dependency proceedings. We would tend to give more credence to the court's citation of Christina H. than to the quotation from Mary S. Like the Supreme Court, the Mary S. court was not confronted with the issue but simply observed that a parent cannot seek reversal on the grounds of incompetency of counsel. The Mary S. court relied upon In re Michael S. (1981) 127 Cal.App.3d 348, 179 Cal.Rptr. 546, in which the issue was apparently decided, but with scant analysis.
The United States Supreme Court has not addressed the issue either, but Lassiter v. Department of Social Services, supra, provides guidance. While the court considered only parental termination proceedings in Lassiter, the decision speaks with equal eloquence in the case of dependency proceedings. “This Court's decisions have by now made plain beyond the need for multiple citation that a parent's desire for and right to ‘the companionship, care, custody, and management of his or her children’ is an important interest that ‘undeniably warrants deference and, absent a powerful countervailing interest, protection.’ Stanley v. Illinois , 405 U.S. 645, 651, [92 S.Ct. 1208, 1212, 31 L.Ed.2d 551].” (Lassiter v. Department of Social Services, supra, 452 U.S. at p. 27, 101 S.Ct. at p. 2160.) The court stressed that termination proceedings may “work[ ] a unique kind of deprivation.” (Ibid.) But so may dependency proceedings. Indeed, they are frequently the first step on the road to permanent severance of parental ties. (See Civ.Code, § 232, subds. (a)(2) & (a)(7); In re Malinda S., supra, 51 Cal.3d at pp. 383–384, 272 Cal.Rptr. 787, 795 P.2d 1244.) A parent who is unable to present an adequate defense from the outset may be seriously disadvantaged later. Perhaps for that reason, the Supreme Court observed in Lassiter: “Informed opinion has clearly come to hold that an indigent parent is entitled to the assistance of appointed counsel not only in parental termination proceedings, but in dependency and neglect proceedings as well. [Citations.]” (Lassiter v. Department of Social Services, supra, 452 U.S. at pp. 33–34, 101 S.Ct. at p. 2163, emphasis added.)
Although the highest courts of California and the United States have both indicated a willingness to declare a parent's constitutional right to counsel in child dependency proceedings, it is not clear that a constitutional right would provide a parent with more protection than the right already available by statute in California. As explained above, appellant asserts not only that a parent has a constitutional right to counsel in dependency proceedings, but also that a deprivation of this right constitutes reversible error per se. Appellant is wrong. The reason is found in Lassiter.
To the dismay of three dissenting justices, the Lassiter majority adopted an “ad hoc approach” to the appointment of counsel in parental termination proceedings. (Lassiter v. Department of Social Services, supra, 452 U.S. at p. 35, 101 S.Ct. at p. 2163 (dis. opn. of Blackmun, J.).) The court did not hold that an indigent parent has an unqualified right to counsel during critical stages of the proceedings, similar to a criminal defendant. (See Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.) Rather, the court adduced a “presumption that there is no right to appointed counsel in the absence of at least a potential deprivation of physical liberty․” (Lassiter v. Department of Social Services, supra, 452 U.S. at p. 31, 101 S.Ct. at p. 2161.) Therefore, a trial court must consider the parent's right to counsel on a case-by-case basis. To determine whether the presumption against appointed counsel has been rebutted in a particular case, the court must evaluate the factors set forth in Mathews v. Eldridge (1976) 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, “viz., the private interests at stake, the government's interest, and the risk that the procedures used will lead to erroneous decisions.” (Lassiter v. Department of Social Services, supra, 452 U.S. at p. 27, 101 S.Ct. at p. 2159.)
As the dissent notes in Lassiter, the Eldridge test is normally applied to determine what process is due all litigants within a particular decisionmaking context. (Lassiter v. Department of Social Services, supra, 452 U.S. at p. 49, 101 S.Ct. at p. 2171 (dis. opn. of Blackmun, J.).) And the Lassiter majority began its analysis in that mode. “To summarize the [court's] discussion of the Eldridge factors: the parent's interest is an extremely important one (and may be supplemented by the dangers of criminal liability inherent in some termination proceedings); the State shares with the parent an interest in a correct decision, has a relatively weak pecuniary interest, and, in some but not all cases, has a possibly stronger interest in informal procedures; and the complexity of the proceeding and the incapacity of the uncounseled parent could be, but would not always be, great enough to make the risk of an erroneous deprivation of the parent's rights insupportably high.” (Lassiter v. Department of Social Services, supra, 452 U.S. at p. 31, 101 S.Ct. at p. 2162.)
But the Lassiter majority did not stop there. The court went on to examine the right of the particular litigant—Abby Gail Lassiter—to counsel. The Lassiter termination petition contained no allegations of neglect or abuse upon which criminal charges could be based. No expert witness testified at the hearing, and the case was not substantively or procedurally troublesome. Counsel might have dealt more effectively with hearsay evidence than did Lassiter. Or counsel might have argued more persuasively that the child should live with Lassiter's mother or that the state had made inadequate efforts to rekindle Lassiter's interest in her child. But the evidence showed that neither Lassiter nor her mother had much interest in the child. Lassiter had declined to appear at the previous child custody hearing and had not taken steps to contest the termination proceedings. Under the circumstances, the court concluded that the absence of counsel did not make a “determinative difference” and “did not render the proceedings fundamentally unfair.” (Lassiter v. Department of Social Services, supra, 452 U.S. at p. 33, 101 S.Ct. at p. 2162, fn. omitted.) Thus, the trial court did not deny Lassiter her constitutional due process rights by failing to appoint counsel.
The analysis employed in Lassiter bears a striking resemblance to the harmless error standard already used by appellate courts in California when a trial court has deprived an indigent parent of the statutory right to counsel. (See, e.g., In re Nalani C., supra, 199 Cal.App.3d 1017, 245 Cal.Rptr. 264 [nonappearing parent did not waive right to counsel and trial court should not have proceeded after granting counsel's motion to withdraw, but error was harmless because parent did not explain how cross-examination of probation officer or requirement of supplemental report might have changed the result]; In re Justin L. (1987) 188 Cal.App.3d 1068, 1077–1078, 233 Cal.Rptr. 632 [trial court should have determined whether parent with mental disorder was capable of knowing and intelligent waiver of right to appointed counsel, but error was harmless because parent's prospects in termination proceedings were bleak].) Thus, where there is a statutory right to counsel, a parent must demonstrate on appeal a reasonable probability of a more favorable result had the parent been represented by counsel (In re Nalani C., supra, 199 Cal.App.3d at p. 1028, 245 Cal.Rptr. 264; In re Justin L., supra, 188 Cal.App.3d at p. 1077, 233 Cal.Rptr. 632), and where there is a constitutional right to counsel, a parent must demonstrate on appeal that the absence of counsel made a “determinative difference” and “render[ed] the proceedings fundamentally unfair.” (Lassiter v. Department of Social Services, supra, 452 U.S. at p. 33, 101 S.Ct. at p. 2162.)
We believe the factors considered important by the Supreme Court when applying Eldridge in the decisionmaking context of parental termination proceedings are equally applicable to child dependency proceedings. A parent has a commanding interest in maintaining custody of his or her child. The fact that dependency proceedings, in and of themselves, do not result in a permanent deprivation may lessen the parent's interest ever so slightly. But the parent still has an abiding interest in achieving a just and fair result, for the parent and for his or her child. So does the state. At the same time, the state has an interest in achieving an economical and expedient resolution of the matter. Finally, as is the case with termination proceedings, dependency proceedings may be complex and may involve expert medical and psychiatric testimony. As the Supreme Court observed in Lassiter, such proceedings may overwhelm parents who “are likely to be people with little education, who have had uncommon difficulty in dealing with life, and who are, at the hearing, thrust into a distressing and disorienting situation.” (Lassiter v. Department of Social Services, supra, 452 U.S. at p. 30, 101 S.Ct. at p. 2161.) This observation applies with particular force to the instant appellant, who suffers from mild mental retardation.
Thus, we conclude that in many child dependency proceedings an indigent parent has both a statutory and a constitutional right to counsel and that the Lassiter analysis applies in child dependency proceedings as well as in parental termination proceedings. Applying the Lassiter analysis to the facts of this case, however, we find that the trial court did not deny appellant her constitutional due process rights by proceeding in the absence of counsel. In the circumstances of our case, as in Lassiter, we find that the “presence of counsel” for appellant “could not have made a determinative difference” and that the “absence of counsel's guidance ․ did not render the proceedings fundamentally unfair.” (Lassiter v. Department of Social Services, supra, 452 U.S. at p. 33, 101 S.Ct. at p. 2162.) A fortiori, we also find that the trial court's error in denying appellant her statutory right to counsel was harmless.
Although appellant insists a different outcome would have ensued had she been represented by counsel, she does not explain how. We appreciate the difficulty of this sort of speculation. (See Lassiter v. Department of Social Services, supra, 452 U.S. at p. 51, 101 S.Ct. at p. 2172 (dis. opn. of Blackmun, J.).) But the report of the probation officer serves as powerful support for the jurisdictional finding in this case. While appellant might have located an expert with a contrary opinion or shaken the probation officer's resolve on the stand, appellant's history, in and of itself, provides substantial support for the court's finding of jurisdiction over Christine. Appellant's other child had been removed from the home 16 months earlier due to appellant's neglect and physical abuse. (See In re Michael S., supra, 127 Cal.App.3d 348, 357–359, 179 Cal.Rptr. 546 [trial court did not err in finding jurisdiction over infant based on parent's abuse of infant's siblings prior to his birth].) SARC had provided appellant with hundreds of hours of training in parenting and other household skills. Yet, those who rendered services to appellant were unanimous in their belief that appellant was incapable of adequately parenting a child. While appellant's difficulties may be beyond her control, arising from her mild mental retardation, that regrettable fact does not speak for leaving Christine in appellant's care. (See In re Jeannie Q. (1973) 32 Cal.App.3d 288, 303–304, 107 Cal.Rptr. 646 [abused child could be removed from parental custody although mentally retarded mother was doing best she could and abuse was unintentional].) We find that “the weight of the evidence” presented here, as in Lassiter, “was sufficiently great that the presence of counsel for [appellant] could not have made a determinative difference.” (Lassiter v. Department of Social Services, supra, 452 U.S. at pp. 32–33, 101 S.Ct. at p. 2162.) Moreover, the record suggests no attempt to reopen the question of jurisdiction or to challenge the sufficiency of the evidence once counsel was reappointed just four days later.
Accordingly, we hold that there was sufficient evidence to support the judgment (see In re Angelia P., supra, 28 Cal.3d at p. 924, 171 Cal.Rptr. 637, 623 P.2d 198; In re Katrina C., supra, 201 Cal.App.3d at p. 547, 247 Cal.Rptr. 784) and that it is not reasonably probable appellant would have achieved a more favorable result with the assistance of counsel (see Lassiter v. Department of Social Services, supra, 452 U.S. at pp. 32–33, 101 S.Ct. at p. 2162; In re Nalani C., supra, 199 Cal.App.3d at p. 1028, 245 Cal.Rptr. 264; In re Justin L., supra, 188 Cal.App.3d at p. 1077, 233 Cal.Rptr. 632).
Appointment of Guardian Ad Litem
“When ․ an incompetent person ․ is a party, such person shall appear either by a guardian or conservator ․ or by a guardian ad litem appointed by the court in which the action or proceeding is pending․” (Code Civ.Proc., § 372.) Such appointment may be requested by “a relative or friend of such ․ incompetent person, or ․ any other party to the action or proceeding, or by the court on its own motion.” (Code Civ.Proc., § 373, subd. (c).) If the trial court knows of defendant's incompetency, it has an obligation to appoint a guardian ad litem sua sponte. (See Jeffrey S. II v. Jeffrey S. (1977) 76 Cal.App.3d 65, 70, 142 Cal.Rptr. 625.)
The petition in this case indicated that appellant suffers from mild mental retardation. At several early hearings, appellant's counsel requested and the trial court acknowledged the need for a guardian ad litem. At a later hearing, both appellant's new counsel and the court expressed doubt about appellant's need for a guardian. When appellant did not appear at the next scheduled hearing, however, her counsel concluded that a guardian was indeed necessary. But the court did not appoint a guardian at that time. Instead, the court granted counsel's motion to withdraw and proceeded to find jurisdiction over Christine. Four days later, the court vacated the order allowing counsel to withdraw and, having “looked at the mental stability of the mother and ․ determined that she is not able to proceed on her own behalf ․,” the court appointed a guardian ad litem.
Although the trial court's post-jurisdictional appointment of a guardian suggests the need for such supervision in this case, we need not decide on this appeal whether a guardian was necessary. Rather, appellant challenges the court's delay in appointing a guardian. We agree with appellant that the court erred in proceeding with the jurisdictional hearing prior to a final determination on the need for a guardian ad litem. While the statute does not specify exactly when a guardian should be appointed (see Code Civ.Proc., § 373, subd. (c)), certainly the decision regarding appointment should occur prior to other critical decisions in the case. We view the jurisdictional finding as a critical decision in the course of dependency proceedings.
We do not find the tardy appointment of a guardian ad litem to be reversible error in this case, however. “[B]ecause the failure to appoint a guardian ad litem is a mere irregularity, the judgment will not be set aside unless a different result would have been probable had the error not occurred.” (In re Lisa M. (1986) 177 Cal.App.3d 915, 920, fn. 4, 225 Cal.Rptr. 7.) Although appellant suggests several tasks a guardian ad litem might have performed, she does not explain how the appointment of a guardian could have changed the jurisdictional finding. We have already concluded that appellant would not have achieved a more favorable result in the jurisdictional hearing had she been represented by counsel. For the same reasons, we must also conclude that appellant would not have achieved a more favorable result had she appeared through a guardian ad litem.
Other Constitutional Claims
Appellant further contends that a number of her rights were denied, thus rendering the dependency proceedings fundamentally unfair and constitutionally infirm. We do not find merit in any of appellant's claims.
Appellant argues that the procedures below did not comply with the requirements of section 319—specifically, that there was no hearing regarding continued detention and no prima facie showing that Christine was a person described in section 300. (See also Cal.Rules of Court, rule 1336, repealed July 1, 1989, now rules 1444, 1446.) But the record indicates there was a hearing regarding continued detention on March 16, 1989. Although the record does not include a transcript of that hearing, we do have the detention reports of the social worker and the probation officer. Both reports briefly recount appellant's history of child abuse and, together, constitute a prima facie showing that Christine was a person described in section 300.
Appellant contends further that the court did not comply with section 316, which provides: “Upon his or her appearance before the court at the detention hearing, each parent ․ shall ․ be informed of the reasons why the minor was taken into custody, the nature of the juvenile court proceedings, and the right of each parent ․ to be represented at every stage of the proceedings by counsel.” (See also Cal.Rules of Court, rule 1334, repealed July 1, 1989, now rule 1442.) But section 316 was not activated in this case because appellant did not appear at the detention hearing. The record indicates appellant received notice of the hearing, and appellant does not allege otherwise.
In any event, it is abundantly clear that appellant had actual notice of the information listed in section 316. The detention reports of the social worker and probation officer, as well as the petition itself, explain why Christine was taken into custody. In his more detailed report attached to the petition, the probation officer describes his attempt to explain the situation to appellant, in person and in the presence of appellant's parenting skills trainer. Various notices sent to appellant also describe the nature of the juvenile court proceedings. For example, a notice served shortly after Christine's birth informed appellant that Christine was alleged to be a person described in section 300, subdivisions (a) and (b), that a jurisdictional hearing was scheduled for a specified date and time, and that appellant had a right to counsel. Indeed, appellant was represented by appointed counsel from the beginning.
Appellant also contends the court did not comply with section 311 by advising her of her constitutional right to confront and cross-examine witnesses, to present evidence, to assert her privilege against self-incrimination, and to compel the attendance of witnesses. (See also Cal.Rules of Court, rule 1335, repealed July 1, 1989.) Section 311 does not say that the court must advise a parent of these rights, but only that such rights exist. Besides, section 311 concerns the detention hearing and, as noted above, the record does not indicate appellant was present at the hearing to receive such information.
Appellant argues that the court did not comply with section 334, which requires, “in the case of a minor detained in custody at the time of the filing of the petition, the petition must be set for hearing within 15 judicial days from the date of the order of the court directing such detention.” (See also Cal.Rules of Court, rule 1361(b), repealed July 1, 1989, now rule 1447(b).) In this case, the jurisdictional hearing occurred several months after entry of the detention order. Appellant maintains “[t]he record is devoid of any indication that appellant waived the above-described time limit requirements.” Appellant is wrong. Time and again, the jurisdictional hearing was continued because appellant specifically requested postponement, because appellant did not appear, or because the parties mutually agreed to postponement, such as during the pendency of the guardian ad litem issue. Never did appellant object to the delay. When the jurisdictional finding did occur, it was not at appellant's urging.
Appellant asserts that the court also violated section 356, as more fully described in California Rules of Court, rule 1449(f) (formerly rule 1364(d), repealed July 1, 1989), which requires “[u]pon admission, plea of no contest, or submission, the court shall make the following findings noted in the minutes of the court: ․ (3) The parent ․ has knowingly and intelligently waived the right to a trial on the issues by the court ․; (4) The parent ․ understands the nature of the conduct alleged in the petition․” This provision does not apply in the instant case because rule 1449(f) concerns the jurisdictional hearing. Although the parties agreed upon the ultimate disposition of the section 300 petition, the issue of jurisdiction was not resolved through admission, plea of no contest, or submission. Moreover, although appellant was notified of the date and time of the jurisdictional hearing, she was not present to facilitate rule 1449(f) findings. (Cf. County of Mendocino v. Ted S. (1990) 217 Cal.App.3d 1202, 1207, 266 Cal.Rptr. 452 [where defendant was notified of paternity hearing and failed to appear, there was no constitutional impediment to entry of default judgment although the record contained no affirmative evidence that defendant waived his constitutional right to counsel].)
Finally, appellant argues the trial court violated section 361.5, subdivision (a), by failing to inform the guardian ad litem that appellant's parental rights could be terminated if she failed to regain custody within 12 months. (See also Cal.Rules of Court, rule 1456(f)(2).) And appellant contends the trial court failed to inform her of the right to appeal, as required by California Rules of Court, rule 1435(d). The trial court did not err in either of these respects. The probation officer's report, which was given to the guardian ad litem, contained these advisements.
The judgment is affirmed.
1. Unless otherwise indicated, all further statutory references are to the California Welfare and Institutions Code.
2. The report of the licensed psychologist, prepared in August 1989, concluded: “The pervasiveness of [appellant's] lack of insight and judgment, her self-absorption with her own dependency needs, her confusion and inability to separate her identity from that of her child's, her inability to motivate and direct her life, and evidence of psychotic functioning, strongly indicate an inability to adequately parent a child. [Appellant] has a paucity of inner resources which severely limit[s] her ability to nurture others, and leave[s] her unable to recognize the needs of a child. [Appellant] is very likely to attend to her own needs without giving adequate attention to her daughter's welfare. Furthermore, the confusion [appellant] experiences over separating her identity from that of a child's (i.e., who is the mother and who is the baby) is very likely to result in a lack of appropriate care for the child which could result in substantial danger or harm to her daughter.”
BAMATTRE–MANOUKIAN, Associate Justice.
AGLIANO, P.J., and COTTLE, J., concur.