IN RE: ALYSSA R. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Alvin R. (father) and Amanda B. (mother) appeal from an order terminating their parental rights to Alyssa R. (born in April 2006), Marcus R. (born in July 2007), and Alexandra R. (born in October 2008) pursuant to Welfare and Institutions Code section 366.26.¹  We affirm.

CONTENTIONS

Father contends that the juvenile court abused its discretion when it failed to appoint a guardian ad litem, sua sponte, to protect his interests in this matter.   Mother argues that there was no substantial evidence to support the court's finding that the children were likely to be adopted.   In addition, mother and father have joined in and adopted any arguments supporting reversal raised in the other parent's brief.

COMBINED STATEMENT OF THE CASE AND FACTS

1. Referral and investigation

On March 31, 2008, the Department of Children and Family Services (DCFS) received a referral alleging that mother's six-year-old child, Damien D., started using sexually explicit words and phrases.²  Damien started using sexually explicit words and phrases after visiting with mother, who lived with father.

DCFS undertook an investigation into mother and father's home.   Previously, DCFS had provided voluntary family maintenance (VFM) services to the family in 2007.   The main concerns during the 2007 VFM were (1) father is a registered sex offender;  (2) father has a mental disorder, reportedly diagnosed as bipolar with schizophrenia;  and (3) mother and father had a long history of domestic violence and exposing the children to domestic violence.   During the 2007 VFM, while mother was pregnant with Marcus, an incident of domestic violence occurred.   Father went to jail for this incident and was thereafter on probation.

On April 1, 2008, the DCFS social worker went to the parents' home to assess the safety of Alyssa and Marcus.   Mother and father denied that Damien learned sexually explicit words from them.   Father was agitated and anxious throughout the meeting.   He paced, wrung his hands, and manifested rapid and loud speech.   He was overheard saying, “I don't like this stuff, man,” and, “[i]f [I] wasn't in these DV classes I wouldn't handle this.”

The following day, a team decision making (TDM) meeting took place.   Concerns discussed at the meeting included the fact that mother lifted a restraining order she had obtained against father after he was released from jail;  father had not seen a psychiatrist since being release from jail and was not taking his medications;  and half-sibling Damien may have been exposed to mother and father's inappropriate behavior.   In addition, maternal grandfather disclosed that the grandparents continued to receive telephone calls from mother in the middle of the night and during the day regarding violence with father.

Father's reported criminal history reflected offenses, parole violations and apparent convictions between 1994 and 2007 for indecent exposure, theft, first degree burglary, shooting at an inhabited dwelling, and injury to spouse.

On April 2, 2008, DCFS detained Alyssa and Marcus in the maternal grandparents' home.

2. Section 300 petition and initial detention hearing

On April 7, 2007, DCFS filed a section 300 dependency petition for Alyssa and Marcus, alleging that mother and father had an ongoing history of domestic violence and engaging in violent altercations in front of the children, that mother failed to protect the children from such violence (counts a–1 and b–1), and that father has a history of mental and emotional problems and failed to take his psychotropic medication (count b–2), which endangered the children and placed them at risk of harm.

Father and mother were present at the initial detention hearing where the juvenile court appointed counsel to represent them.   The court found that father was the presumed father of Alyssa and Marcus.   At the hearing, the court detained both children with the maternal grandparents and ordered family reunification services for both parents, including monitored visitation a minimum of three times per week.   DCFS was ordered to provide father with a bus pass and refer him for an evaluation for psychotropic medication.   The matter was continued for a pretrial resolution conference (PRC).

3. Jurisdiction/disposition report and PRC hearing

On May 19, 2008, DCFS filed a jurisdiction/disposition report noting that it had received referrals regarding the family on 13 prior occasions, some of which were substantiated.

DCFS had also interviewed the family members.   Father was interviewed privately.   He indicated that he had not been on medication for a year and he felt that he did not need it at that time.   Father was continually moving and talking throughout the interview, and often had to be refocused.   Father admitted to having been arrested for assaulting mother, but he did not recall the assault.   Father claimed that he and mother had been married in 2005 but that he did not have “the paperwork for the marriage.”   Father informed the social worker that he was attending domestic violence classes, which he had started nine months previously.³  He also stated “I will be getting SSI for mental problems so that I can get my future right.”   Father had a counseling appointment scheduled for June.

Mother was also interviewed.   When asked why she would “take him back” after father put her in the hospital, mother stated that the incident was “ ‘because of his medication, it made him flip out.’ ”   When asked why she had the restraining order lifted, she stated “ ‘I wanted to get back with him and he was doing okay.’ ”   With respect to the allegation regarding father's mental condition, mother stated that father is not bipolar or schizophrenic.   She claimed to have spoken to a mental health professional however she was unsure of father's precise diagnosis.   She went on to explain that father did not take his medication because there was something wrong with it.   When he took it, he would become crabby and angry.   Mother claimed that the doctor told father to stop taking the medication because there was something wrong with it.

Mother explained that when she and father lived in New Orleans, some people beat them up with a billy club and a bat.   Father had been in the hospital on life support as a result of the beating.

Maternal grandfather was also interviewed.   He believed that the allegations set forth in the section 300 petition were true.   He recalled that on the day that mother was taken to the hospital after the domestic violence incident in 2007, the police and hospital had called him.   Father had choked mother, and mother blacked out.   When maternal grandparents arrived at the hospital, they saw that mother was in very bad condition.   She had stopped breathing, and they did not know if Marcus (in-utero) and mother were going to live.   Maternal grandfather indicated that there have been other incidents of violence between mother and father, and that father makes threats to mother such as “ ‘I will find you and I will bury you.’ ”

In May 2008, Marcus and Alyssa were seen for initial physical examinations.   Although they were found to be in good health, the nurse practitioner recommended that they be referred to the Regional Center for possible developmental delays due to violence in the home.   DCFS submitted requests for Regional Center referrals.   DCFS recommended that the children be removed from the parents' custody and placed with maternal grandparents, with reunification services provided.

The PRC hearing took place on May 19, 2008.   Mother and father were present and were represented by separate counsel.   Both mother and father signed a waiver of rights and submitted on the social worker's report.   The court found that “the parents have knowingly and intelligently waived their rights to a trial on the issues ․ [and] that the parents understand the nature of the conduct alleged in the petition and the possible consequences of submitting on the social worker's report.”

The juvenile court sustained an amended section 300 petition allegation, pursuant to subdivision (b), that the parents had an ongoing history of domestic violence in the children's presence and that mother had failed to protect them from violence.   The court sustained a second amended allegation, pursuant to subdivision (b), that father had a history of emotional issues and was previously prescribed a course of psychotropic medication.   The court ordered the children removed from parental custody.   The court further ordered family reunification services for the parents, including domestic violence counseling for perpetrators, parent education, individual counseling to address mental health issues, and a psychiatric evaluation to address psychotropic medication requirements for father.   If father was found to be in need of psychotropic medication, he was ordered to take that medication.   The court ordered monitored visits for the parents, and continued the matter to August 18, 2008, for a progress report.

4. August 18, 2008 interim review report and progress hearing

DCFS submitted an interim review report on August 18, 2008.   On July 14, 2008, DCFS was informed of another incident of violence between the parents.   Mother told maternal grandfather and a maternal aunt that father had beaten her and left bruises.   The bruises were observed by family members, who said it looked as if mother had been grabbed.   However, mother denied that there had been any domestic violence.   Though she was scheduled to go to the DCFS office the next day so that DCFS could observe the bruises, she did not appear.   When DCFS questioned father about the incident, he denied domestic violence and stated that they had engaged in rough sex.   Mother and father were advised that a TDM was being scheduled, and until that time mother and father's visits would be held separately so as not to expose the children to the ongoing domestic violence.

On July 16, 2008, mother advised DCFS that father was “on a rampage” and was going to the DCFS office to “deal with the visitation situation.”   Father apparently erroneously believed that their visits had been put on hold.   However, there is no indication that father ever went to the DCFS office.

During the July 24, 2008 TDM, the parents denied any violence, but admitted that they argued frequently.   The maternal grandparents refuted the parents' statement, recounting several incidents where mother had called or come over to the maternal grandparents' home after having been beaten by father.   Both maternal grandparents stated that mother fully participates in the violence, both striking father and provoking father to strike mother.   DCFS had also observed mother provoke father on two occasions.   DCFS determined that it would continue to hold visits with the children separately until such time as father was evaluated for psychotropic medication.

On July 30, 2008, both parents cancelled their visits with the children.   Father had not scheduled visits with the children since July 22, 2008.   He ended the visit that day because Alyssa began to cry, and stated that the visits without mother would not work as the children were upset because mother was not present.

Father was dismissed from his parenting course for lack of attendance, but was near completion of his domestic violence program.   He was unable to be seen by a psychiatrist because he did not have an insurance card.   He said he would look into general relief to get control over his Medi–Cal situation.   DCFS provided the parents with monthly transportation assistance between May and August 2008.

A social worker's progress report dated August 18, 2008, indicated that mother was pregnant.

At the progress hearing on August 18, 2008, all of the attorneys submitted on DCFS's report.   The prior orders remained in full force and effect and the matter was continued to November 17, 2008 for a six-month review hearing.

5. October 21, 2008 detention hearing regarding Alexandra

The parents were married on September 13, 2008.   Alexandra was born on October 16, 2008.   Alexandra was examined at birth and was determined to be in good health with no abnormalities.

DCFS detained Alexandra and placed her in a foster home on October 18, 2008.   On October 21, 2008, DCFS filed a section 300 petition on Alexandra's behalf, alleging that the parents had an ongoing history of domestic violence, that father had mental and emotional problems and failed to take his psychotropic medication, and that father was a registered sex offender.

A detention hearing regarding Alexandra took place on October 21, 2008.   Mother and father were present.   The juvenile court appointed the same two attorneys to separately represent each parent with respect to Alexandra.   The court found father to be the presumed father of Alexandra.   Father's attorney informed the court that father had completed his domestic violence program, but that his fees were unpaid.   The attorney requested that the court order DCFS to provide father with new referrals to any programs he had not completed.

The juvenile court ordered Alexandra detained, and gave DCFS discretion to place her with any appropriate relative.   The court ordered monitored visits for the parents, a minimum of three hours per week, and ordered DCFS to provide new referrals for the parents.   The matter was continued to November 17, 2008, for a PRC hearing.

6. November 17, 2008 six-month review hearing for Marcus and Alyssa and PRC for Alexandra

On November 14, 2008, DCFS filed a jurisdiction/disposition report and a status review report in anticipation of the November 17, 2008 hearing.   Mother and father were homeless, having been evicted from their prior residence.   In addition, a warrant had been issued for father's arrest as a fugitive from justice.   Father had been arrested on August 18, 2008, for domestic violence, but was released on August 22, 2008.   Mother was not in compliance with any court ordered services, and father was in partial compliance.   DCFS provided the parents with new referrals in October 2008 and transportation assistance in November 2008.

Father was no longer receiving Medi–Cal benefits but had obtained a prescription for three medications and intended to reapply for Medi–Cal or general relief.   He remained a sex offender registrant.   Mother was aware of father's legal status but did not have any concerns and reported that the children were safe under the care of their father.   Father was excluded from the “Megan's Law” website, as his crime reportedly did not involve children.

On October 10, 2008, Marcus was evaluated by the Regional Center.   He was found to demonstrate global developmental delays.   On November 14, 2008, the Regional Center held an Individualized Family Service Plan meeting, and determined that Marcus was eligible for early intervention services and occupational therapy.   Alyssa had been referred to the Regional Center, but had not yet been evaluated.   The maternal grandparents had indicated that they preferred legal guardianship as the children's potential permanent plan.

After the parents were told they would have to visit the children separately, father stated that he no longer wanted to see his children and cancelled all future visitations.   Mother also stated she would not visit without father present.   DCFS recommended termination of reunification services for both parents as to Marcus and Alyssa.

Regarding the section 300 allegations as to Alexandra, both mother and father denied any recent domestic violence.   Father appeared highly agitated, paranoid, and erratic when interviewed by the social worker, but he was cooperative.   Father stated that he felt like he was being watched all the time.   He indicated that he sought mental health assistance in 2007, because he had been beaten in the head in New Orleans.   He acknowledged that he had been diagnosed with bipolar disorder and schizophrenia, and recalled seeing certain doctors.   He believed he was losing his memory a little bit, and he would get into spiritual battles with people when walking down the street.   People thought he was crazy because of the number 25.   He said the Lord spoke to him through the number 25.

Father had not re-applied for Medi–Cal or general relief.   He showed the social worker a prescription from a Dr. Salvador Arella from July 2008, with three illegible medications.   The social worker attempted to contact Dr. Arella, but did not receive a return phone call.

Mother and father were present at the hearing on November 17, 2008, and were represented by counsel.   As to the section 300 petition filed on behalf of Alexandra, both parents confirmed that they had executed waivers of their trial rights and were submitting the matter on the basis of the social worker's reports.   Both parents indicated that they understood the waiver form, had reviewed it with their respective attorneys, understood the rights they were giving up, and understood the consequences of the waiver.   The court found that the parents knowingly and intelligently waived their rights to a trial, and that they understood the nature of the conduct alleged in the petition and the possible consequences of the submission.

The juvenile court sustained an amended petition alleging that the parents had an unresolved history of domestic violence and that father had an unresolved history of emotional issues and was not yet in regular treatment or evaluated for psychotropic medication.   The juvenile court also sustained an allegation that father was a registered sex offender.   The court removed Alexandra from parental custody and ordered the same case plan for the parents as was in place for Marcus and Alyssa.   Alexandra remained in foster care.⁴

At the request of father's attorney, the juvenile court ordered DCFS to provide the parents with transportation assistance.   In addition, the attorney asked DCFS to assist father in obtaining his domestic violence program certificate in light of his inability to pay the program fees.   The court ordered DCFS to use any available funds to pay for his certificate.   The court also ordered DCFS to investigate the maternal grandparents' home for possible placement of Alexandra, and continued Alexandra's PRC hearing.

Father's attorney also asked that DCFS assist father in obtaining a psychiatric evaluation.   Father reported that he had attempted to see a doctor, but that he did not have Medi–Cal and could not get any medications.   The court ordered a progress report on January 12, 2009, to determine if the Department of Mental Health (DMH) could assist father, and also ordered an Evidence Code section 730 evaluation (730 evaluation) of father.

As to the six-month review hearing regarding Alyssa and Marcus, the juvenile court continued reunification services and scheduled the matter for a 12–month review hearing on May 18, 2009.

7. January 12, 2009 report and progress hearing

On January 12, 2009, DCFS reported that it had asked father on three occasions to obtain a bill and date of completion for his domestic violence program.   Father did not carry out this request.   In addition, DCFS was concerned because despite having completed a domestic violence program, father continued to deny ever hitting mother.   DCFS therefore recommended that father be required to attend and complete another domestic violence program.

Dr. Sheila Carter completed the 730 evaluation of father.   Father admitted that he had mental problems and needed help.   His mental problems started in late childhood and included auditory and visual hallucinations and delusions.   He reported that he experienced these symptoms daily or at least every other day since childhood, but that he had learned to keep them in the background.   He had pressured, rapid, and loud speech.   He had difficulty focusing or concentrating, and had intense anger and irritability at times.   He had borderline intelligence and poor planning skills.   His insight and judgment were fair to poor.

Dr. Carter diagnosed father with bipolar I disorder, severe with psychotic features, mood-congruent.   His symptoms of mania, depression, and thought disturbances were untreated.   Although he acknowledged his mental illness, he felt his symptoms were under control.   It appeared his symptoms were worsening.   Dr. Carter recommended that he undergo a psychiatric evaluation for medical management of his symptoms immediately, seek psychotherapy to learn how to manage his behaviors, and receive psychoeducational classes to learn how to manage symptoms and improve social functioning.   Dr. Carter also suggested that father needed occupational therapy and assistance with housing.

At the progress hearing on January 12, 2009, father's attorney reported that she was informed that father was in custody in Kern County.   Mother was present.   Father's attorney requested that father be transported to court for any new orders resulting from the 730 evaluation.   Father's counsel thought it necessary to “have these [new] orders given to him directly so that he understands the import to the court.”   The court continued the progress hearing to February 26, 2009, for an update on the possible placement of Alexandra in a relative's home and mother's compliance and for father to be transported to court.

8. February 26, 2009 progress hearing

Mother and father both were present at the February 26, 2009 continued hearing.   Father's attorney asked the court to actively help father to obtain the assistance of the DMH. She stated that father had been given two weeks of nonpsychotropic medication upon his release from jail and needed additional help.   She stated that he had enrolled in or intended to enroll in programs.   The court ordered DCFS to assist father in obtaining an evaluation from DMH. The juvenile court denied DCFS's request that father be ordered to participate in another domestic violence program, instead indicating that it was imperative that father receive immediate help with his mental health issues.

Father's attorney provided the court with a new address for father in Rosamond, California.   At his attorney's request, the court ordered low cost/no cost referrals for father and additional transportation funds.

Alexandra remained in foster care.   The matter was set for review on April 9, 2009.

9. April 9, 2009 progress hearing

DCFS reported that on March 20, 2009, mother called the social worker and stated that she had left father.   Mother and the maternal grandparents stated that father had been making verbal and text message death threats to mother.

DCFS had provided father with no cost/low cost referrals and transportation assistance in March and April 2009.   Father had met with a DMH intake worker.   Because father had no insurance, he was referred to the mobile team unit.   A representative of that unit indicated that it would take about six months for father to be assessed.   The DCFS social worker asked for priority since the juvenile court was involved.   However, the social worker never heard back on this request.

Mother and father were present for the April 9, 2009 progress hearing, but mother was excused.   Father's counsel indicated that she and father had “spent quite a bit of time talking ․ and going over the report.”   Father did not have a stable place to stay, and his attorney requested that the court use the paternal grandmother's address in Palmdale as father's mailing address.   Father's attorney also asked the court to help father in obtaining general relief or Medi–Cal.   The court declined to order that DCFS help father obtain those services, as the court felt that was “not a proper order from this court.”   The court indicated, “the real issue here is what services he's going to be able to get through the [DMH].”

The 12–month review hearing for Alyssa and Marcus, and the six-month review hearing for Alexandra, was set for May 18, 2009.

10. May 18, 2009 review hearings

DCFS submitted a status review report for the May 18, 2009 hearing.   DCFS reported that mother was living with father again.   They were residing in Kern County.   Father had completed parenting education in December 2008, but was not in compliance with individual counseling.   The social worker had attempted to contact DMH twice in April and once in May 2009, but was unable to obtain any useful information because father had not signed a release.   Father said the earliest psychiatric appointment he could get was May 28, 2009.   The social worker indicated that father's behaviors had improved and he was more focused on complying with DCFS's orders.   He indicated that he was waiting for medicine from DMH.

The parents were having monitored visits with the children, usually at the DCFS office.   They saw Alexandra about once or twice a month.   They had not seen Alyssa and Marcus for two weeks.   The maternal grandparents indicated that if reunification efforts failed, they wanted to adopt Alyssa and Marcus.

Marcus continued to receive Regional Center services once a week for fine motor skills.   Because Alyssa would be turning three, she was referred to the Regional Center's in-house program for an assessment.   The grandfather indicated that neither Alyssa nor Marcus required mental health services.   Alexandra had reached all of her developmental milestones.   She appeared healthy and not in need of Regional Center services.

Mother and father were present at the hearing and represented by counsel.   Father's attorney submitted on the case plan for additional services, and asked that DCFS be ordered to assist father with the various costs associated with the plan.   Father was willing to take any medication, but did not have money to fill any prescription.   Father's attorney asked the court if it would like to reiterate to her client the importance of signing releases.   The court complied as follows:

“The Court:  Father, it's very important that you sign releases in this case.   This case can really turn on you getting the psychotropic medication that you need any assessment by the mental-health facility.   Do you understand that?   All right.  [Father's attorney], if you'll explain that to him.

“[Father's attorney]:  I will.

“The Court:  He's shaking his head that he does not understand.”

The court indicated that DCFS was to use all available funds to pay for father's services and “any prescription that he needs through the [DMH].” The court ordered additional reunification services for the parents, and continued the matter to November 16, 2009, for a review hearing.   The court set a June 9, 2009 hearing date for a progress hearing regarding father's DMH services and possible liberalization of mother's visits.

11. June 9, 2009 progress hearing

DCFS provided the court with a letter from mother's therapist, who reported that mother told him she moved in with father for a short period, but she was no longer living with him or in contact with him.   The social worker assessed mother's home for possible unmonitored visits with the children, but found multiple safety hazards which mother had not fixed.   DCFS was informed that father's appointment with a psychiatrist through the Kern County DMH would take approximately six months.   Father did not follow through with a DMH appointment in Lancaster or sign a release of information.

At the progress hearing, the court ordered DCFS to assess mother's new residence and granted it discretion to liberalize her visits.   Father was ordered to take his psychotropic medication as prescribed.   The matter was continued to July 10, 2009, for a progress hearing.

12. July 10, 2009 progress hearing

DCFS reported that Dr. Truman Wong had seen father once in May and once in June 2009.   Dr. Wong diagnosed father with schizophrenia and schizoaffective disorder, and prescribed Seroquel and Ativan.   Dr. Wong strongly suspected methamphetamine use by father, and opined that father should be hospitalized even though father was not a danger to himself.   Dr. Wong observed that father functioned at a child-like level and that he would not consider releasing the children to him.

Mother had been living with her brother, but had to move when his housing benefits became jeopardized.   She told her therapist that she had no option but to return to father.

Mother and father were present at the progress hearing, and represented by counsel.   Father was taking his medications regularly, and his attorney noticed a marked difference in her interaction with him.   The court ordered family counseling for the parents and ordered DCFS to use any available funds to assist the parents with that counseling.   The matter was continued to August 14, 2009, for a progress report.

13. August 14, 2009 progress hearing

DCFS reported that father was not visiting the children regularly.   He was interested in visiting Alyssa and Marcus, but had no time.   He had not followed through with any visits with Alexandra.   In August 2009, mother and the children's caregivers came up with a mutually agreeable visitation schedule, and father agreed to the same schedule.   No funds were available for the parents' counseling, but mother's therapist agreed to continue to see mother and father at no cost.

14. November 16, 2009 18–month review hearing regarding Alyssa and Marcus;  12–month review hearing regarding Alexandra

In the status review report submitted for the November 16, 2009 hearing, DCFS reported that mother and father had lived at various addresses during the previous six months.   At their request, their mail was sent to their respective parents, with father's mail directed to a Palmdale address, and mother's mail directed to a Lancaster address.   Mother and father solicited money for an agency and were allowed to keep half of what they collected.   Father was also going to school.   Father's DMH case had been reassigned to Dr. Steve Dilsaver, who had not yet seen father.   The social worker and maternal grandfather had suspicions that father was no longer taking his medication.

Mother and father had started weekly conjoint sessions in August 2009.   Their attendance was consistent.

The children's respective caregivers were committed to adopting them.   In October 2009, the Regional Center had evaluated Alyssa, and it appeared that she would no longer qualify for services.   The maternal grandparents were working on enrolling her in Head Start.   Marcus continued to receive early intervention services.   Alexandra appeared to have reached all age-appropriate developmental milestones and did not seem to need Regional Center services.   The maternal grandparents and Alexandra's foster mother described the parents' tolerance for the children during visits to be minimal.

DCFS recommended that the court terminate family reunification services for all three children and set the matter for a permanent planning hearing.   The matter was continued to January 4, 2010, for a contested review hearing.

15. Contested review hearing

The contested review hearing was continued on January 4, 2010, for a progress report on father's signing of a release and his compliance with the case plan.

DCFS filed an interim review report on January 27, 2010.   Father had been transferred to Dr. Denise Greene at the Antelope Valley Wellness and Enrichment Center because he had no insurance.   He came with a diagnosis of schizoaffective disorder, bipolar type.   Dr. Greene saw him once in November and once in December 2009, and had not seen him enough to modify his diagnosis.   She stated that if he took proper medication, he would not be symptomatic.   Father failed to appear at his appointment on January 12, 2010, and missed an opportunity to have his medication refilled.   If he had been taking it properly, he would have been out of medication and in need of a refill.   Dr. Greene was unable to make any recommendations.   The matter was continued for a supplemental report as to whether father was taking his medication.   The court also ordered DCFS to refer Alexandra to the Regional Center and meet with the parents to set up a visitation schedule.   The matter was continued to March 1, 2010.   The social worker was ordered to be present on that date.

On March 1, 2010, DCFS reported that the parents had separated and mother's therapist had discontinued couples' counseling.   Mother was living with one relative and planned to move in with another.   Dr. Greene disputed the social worker's statement that she had received a signed release from father.   However, Dr. Greene indicated that even if she had a signed release, the only information she could provide was his prescribed medications and whether he attended his sessions;  she could not make a recommendation as to whether he was fit to be a father.   Father said that he saw Dr. Greene on January 28, 2010, and got Zoloft, but that his Seroquel was on hold.   Father was living with a new girlfriend.

Mother and father were present at the contested review hearing on March 1, 2010.   It was decided that it was best to continue the contested hearing to April 26, 2010, and put all three children on calendar for an 18–month review hearing.   The court allowed mother two-hour unmonitored visits, but father was not to be present.   Upon request of father's attorney, the court ordered father to contact DCFS to set up a visitation schedule.   The court also ordered DCFS to assess all of the children for mental health services and refer them to the Regional Center.

On April 26, 2010, DCFS reported that mother visited Alyssa and Marcus daily at the maternal grandparents' home, but her visits with Alexandra were inconsistent.   Father had visited Alyssa and Marcus only two times since the last hearing, and he had not visited Alexandra in the past six months.   Father's psychiatrist's supervisor indicated that they could not provide DCFS with any information about father.   Father continued to work and attend school.

At the April 26, 2010 hearing, mother and father were present and represented by counsel.   DCFS was in agreement with unmonitored visits for father in an approved setting.   Father's attorney indicated that she had spoken with father about the limits of his visits with the children, and that father was compliant with his medication.   Both the children's attorney and the court had concerns about unmonitored visits for father, and the court declined to order unmonitored visits.   Father's attorney stated that she would explain this to father.   The court also instructed father to sign a release with his new provider, and father agreed.   The court continued the matter to May 12, 2010, for information regarding father's medication compliance and visitation with the children.   The court gave DCFS discretion to liberalize father's visits if he was compliant with his medication.

At the May 12, 2010 continued hearing, DCFS reported that mother was living at least part time with father again, and that father had been violent with her again.   Father indicated that he had yet to go back to his mental health agency and did not plan to do so until after the May 2010 hearing.   It appeared to the social worker that father was off his medication again.   Father had not agreed to a visitation schedule as he disagreed with the amount of transportation funds he received and the location of the visits.

The juvenile court found that DCFS had made reasonable reunification efforts, and terminated the parents' reunification services.   The court continued the matter to September 8, 2010, for a permanency planning hearing pursuant to section 366.26.   At the May 12, 2010 hearing, mother and father were personally served with notice of the section 366.26 hearing, and were notified of DCFS's recommendation that parental rights be terminated.

16. September 8, 2010 section 366.26 hearing

DCFS filed a report in connection with the section 366.26 hearing.   Marcus had been reevaluated for Regional Center services after he turned three and was found ineligible, but the maternal grandparents were appealing the decision and Marcus continued to receive services while the appeal was pending.   His physician had referred him for an audiology evaluation for delayed speech.   Alyssa's Regional Center case was closed and she was scheduled to begin Head Start in September 2010.   Alyssa had six weeks of individual counseling and the maternal grandfather believed she no longer required therapy.   Alexandra was scheduled to have a Regional Center intake evaluation on September 7, 2010.

DCFS documented the parents' visits with the children since the May 2010 hearing.   Mother had visited Alyssa and Marcus about 10 times, and father was present at about half those visits.   Some of father's visits went fine, but sometimes he would get mad and walk out.   Mother's visits were fine, but lasted 20 to 40 minutes.   Neither parent had visited Alexandra since the May 2010 hearing.

DCFS noted that father was not in compliance with his psychiatric medication, had virtually stopped visiting, and had no suitable housing.

The maternal grandparents were interested in adopting Alyssa and Marcus.   Initially, they wanted legal guardianship so as not to distinguish Marcus and Alyssa's plan from that which they had pursued for Damien.   However, a week later they changed their mind and stated that they wanted to pursue adoption.   If they were allowed to adopt, they would continue to let the parents visit the children.   DCFS recommended a plan of adoption for Alyssa and Marcus.   Alexandra's foster parents had known her since birth and had raised her since she was released from the hospital.   They wanted to adopt her.   Adoption was also the recommended permanent plan for Alexandra.

Mother and father were not present at the September 8, 2010 contested section 366.26 hearing.   Father's counsel argued that the parents were not provided with a copy of DCFS's section 366.26 report, so they had no opportunity to confer with counsel.   The court ordered DCFS to provide that report and any subsequent reports to the parents.   The matter was continued to November 4, 2010, for a contested section 366.26 hearing.

17. November 4, 2010 contested section 366.26 hearing

DCFS reported that the social worker had met with the parents on June 11, 2010, but since that time, the parents had “virtually disappeared.”

Both Marcus and Alyssa appeared to be fully integrated into maternal grandparents' home, but Marcus was having anger issues.   His Regional Center appeal remained pending.   The grandparents had submitted paperwork for him to start therapy, but were told it would take about two to three months.   Alyssa was attending Head Start, with no problems reported.   Alexandra appeared to be thriving in her foster home, although she did have angry outbursts.   Funding had been sent to vendors for her developmental, speech and language evaluations through the Regional Center.

The maternal grandparent's adoptive home study had been submitted for approval on October 26, 2010.   There were no concerns that would hinder approval of the home study.   Alexandra's foster parents' adoptive home study had been approved on August 24, 2010.

At the contested hearing, the parents were not present.   The juvenile court found that notice of the proceedings was proper, and marked and admitted DCFS's documents.   The court found, by clear and convincing evidence, that the children were adoptable.   The court found it would be detrimental to return the children to mother and father, who never made significant progress in resolving the problems that brought them before the court, and had sporadic visits with the children.   The court found that no exception applied, and terminated parental rights.   The court designated the children's respective caregivers as their prospective adoptive parents and continued the matter to May 5, 2011, for a postpermanency review hearing.

18. Notices of appeal

On December 22, 2010, father filed a notice of appeal from the juvenile court's findings and orders terminating parental rights.   On January 4, 2010, mother filed a notice of appeal from the court's findings and orders “pursuant to section 366.28.”

DISCUSSION

I. Mother's appeal

A. Notice of appeal

DCFS argues that mother's entire appeal should be dismissed because her notice of appeal was insufficient.   Mother's notice of appeal is handwritten and it appears that she filled it out herself, without the assistance of counsel.   On the second page of the notice, the appellant is directed to indicate the section under which the order appealed from was made.   Instead of checking section 366.26, mother checked section 366.28, “order designating a specific placement after termination of parental rights in which a petition for extraordinary writ review that substantively addressed the specific issues to be challenged was timely filed and summarily denied or otherwise not decided on the merits.”   No such writ was ever filed in this case.

DCFS acknowledges that a notice of appeal must be liberally construed.   (Cal. Rules of Court, rule 8.405, subd. (a)(3).)   However, DCFS argues the notice generally must identify the particular judgment or order being appealed.  (Rule 8.405, subd. (a)(3);  Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239.)   DCFS cites Shiver, McGrane & Martin v. Littell (1990) 217 Cal.App.3d 1041, 1045 for the proposition that “a notice of appeal will not be considered adequate if it completely omits any reference to the judgment being appealed.”   Because mother's notice did not identify the juvenile court's November 4, 2010 order terminating parental rights, DCFS argues, this court lacks jurisdiction to consider her appeal.

However, in the context of dependency proceedings, it has been held that “ ‘notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.’  [Citations.]”  (In re Joshua S. (2007) 41 Cal.4th 261, 272.)   Because a petition for extraordinary writ review was never filed in this case, mother's selection of section 366.28 creates an ambiguity.   In this case, it is reasonably clear that mother was trying to appeal from the orders made at the section 366.26 hearing.   Having submitted to the majority of orders in the case, mother's counsel made it clear that mother objected to having her parental rights terminated.   Mother's parental rights were terminated at the section 366.26 hearing, and she filed her notice of appeal shortly thereafter.   Further, DCFS has not argued that it has been prejudiced in any way.   Therefore, we disagree with DCFS's position that we lack jurisdiction to consider mother's appeal.

B. Adoptability of children

Mother argues that no substantial evidence supported the juvenile court's determination that the three children were adoptable.

1. Standard of review and applicable legal principles

The purpose of a section 366.26 hearing is to enable the juvenile court to select a permanent plan for children who cannot be returned home because reunification efforts have failed.  (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.)   In order to terminate parental rights, the juvenile court must find that the child is likely to be adopted. (§ 366.26, subd. (c)(1).)   It is DCFS's burden to prove that the child is adoptable.  (In re Thomas R. (2006) 145 Cal.App.4th 726, 732.)

In determining adoptability, “the focus is on whether a child's age, physical condition and emotional state will create difficulty in locating a family willing to adopt.  [Citations.]”  (In re R.C. (2008) 169 Cal.App.4th 486, 491.)   The child need not be in a prospective adoptive home, however, a prospective adoptive parent's interest in adopting the child “ ‘is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor.’ ”  (Ibid.)

When a child is deemed adoptable only because a particular caretaker is willing to adopt, the analysis shifts from evaluating the child's characteristics to whether there is any legal impediment to the prospective adoptive parents' adoption and whether they are able to meet the child's needs.  (In re Valerie W. (2008) 162 Cal.App.4th 1, 13.)

A finding of adoptability must be supported by clear and convincing evidence.  (In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.)   On appeal, we review the factual basis of a finding of adoptability by “determin[ing] whether the record contains substantial evidence from which a reasonable trier of fact could find a factual basis for termination by clear and convincing evidence.  [Citations.]”  (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.)

2. Substantial evidence supports the juvenile court's finding of adoptability⁵

a. Marcus and Alyssa

Mother argues that Marcus and Alyssa were not adoptable due to their special needs.   Mother points out that Alyssa was regularly described as developmentally delayed, and that although she was often referred to the Regional Center, her evaluation was never completed.   As to Marcus, mother argues that his special needs were better documented and possibly more severe than Alyssa's.   He was eligible for early intervention services and occupational therapy, and by the time he was three years old, he was exhibiting signs of mental health issues, such as angry outbursts.   At three years old, Marcus started individual therapeutic intervention services.

Mother also points out that the maternal grandparents had initially only wanted legal guardianship as the permanent plan for Marcus and Alyssa—not adoption.   Mother states that the maternal grandparents did not change their mind until their interview with an adoptions worker on February 9, 2010.   Mother seems to imply that because the maternal grandparents' decision came late in the proceedings, it was somehow contrived or pressed upon them.

Finally, mother argues that there was insufficient clear and convincing evidence that the maternal grandparents would secure an approved home study.   In particular, the 366.26 report indicated that there may have been child welfare allegations against them in the past, although they were unfounded.   There was no other prospective adoptive family for Marcus and Alyssa, thus, mother argues, the court risked creating legal orphans if the adoption could not be finalized.   Mother cites In re Jayson T. (2002) 97 Cal.App.4th 75, 91 for the proposition that “[g]iven the awful consequences of being wrong, adoptability findings must be relatively certain.”   Mother argues that the termination of parental rights was premature and should be reversed.

We disagree.   Marcus and Alyssa had been placed in the maternal grandparent's home for over two and one-half years.   The children were generally physically healthy.   Marcus exhibited some developmental delays and anger issues, but the maternal grandparents were seeing that he got appropriate services.   Alyssa had been attending Head Start with no problems reported, and after six weeks of individual counseling, maternal grandfather stated that he believed she no longer needed counseling.   No specialized placement was recommended for either child.

The maternal grandparents cared for these children for over two years, and expressed a desire to adopt them.   They initially told the adoptions social worker that they did not want to differentiate between these two children and Damien and desired legal guardianship.   However, there is no evidence in the record that their later decision to pursue adoption was not genuine or should be doubted in any way.   The maternal grandparents had accepted the responsibilities of adoption and were aware that it was a life-long commitment to provide a loving home to the children.   There is absolutely no evidence to suggest that this was not their intention.

Mother presents no authority suggesting that a completed home study must be approved before children are freed up for adoption.   The record shows that the maternal grandparents' adoptive home study was submitted on October 26, 2010, and there were no specific concerns raised that would hinder its approval.

Marcus and Alyssa were generally healthy, with certain developmental and emotional issues being addressed.   Nothing in the record suggests that these issues were substantial enough to prevent a finding of adoptability.   Maternal grandparents' desire to adopt them provides evidence that Marcus and Alyssa's developmental needs would not dissuade a prospective adoptive parent from adopting them.   We therefore find that substantial evidence supports the trial court's finding that Marcus and Alyssa were adoptable.⁶

b. Alexandra

Mother admits that Alexandra appeared to have a close, bonded relationship with her prospective adoptive parents, with whom she had lived since she was just a few days old.   In addition, Alexandra's foster parents had an approved home study.   However, mother argues that Alexandra's potential developmental delays and anger issues had not been taken into consideration.   On the day of the termination hearing, Alexandra's evaluation was still outstanding.   Without the evaluation, mother argues, the foster parents could not make an informed decision to adopt and the adoption of Alexandra should be called into question.

Again, we disagree.   Alexandra had been placed with her foster parents since she was two days old, and the foster parents had plenty of time to consider their decision.   Despite her angry outbursts, Alexandra appeared to be thriving at her prospective adoptive home.   Alexandra's prospective adoptive parents were aware of her angry outbursts and her possible developmental delays, but they still desired to adopt her.   Alexandra was generally healthy and very young, and her foster parents' desire to adopt her is substantial evidence that she was adoptable.

II. Father's appeal

Father presents one issue on appeal:  whether the juvenile court abused its discretion and violated his due process rights when it failed to appoint a guardian ad litem, sua sponte, to protect his interests in his children.

A. Forfeiture

DCFS argues that father has forfeited this issue.   Father failed to raise the issue at any time during the proceedings below.   Generally, “arguments waived at the trial level will not be considered on appeal.”  (California State Auto Assn. Inter–Ins.   Bureau v. Antonelli (1979) 94 Cal.App.3d 113, 122.)   This rule applies in the context of dependency proceedings.  (See, e.g., In re S.B. (2004) 32 Cal.4th 1287, 1293;  In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338–1339.)   The application of the forfeiture rule is not automatic, but “the appellate court's discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue.   [Citations.]”  (In re S.B., supra, at p. 1293.)

Father argues against application of the forfeiture rule.   He cites In re S.D. (2002) 99 Cal.App.4th 1068, 1079, for the proposition that the forfeiture rule should not be enforced if “ ‘due process forbids it.’ ”   In addition, he cites us to In re M.F. (2008) 161 Cal.App.4th 673.   In M.F., the mother was a 14–year–old child, who was entitled to the protections of a guardian ad litem.   The mother argued that the court's failure to appoint a guardian ad litem for her earlier in the proceedings was error.   The Court of Appeal agreed.   The court specifically rejected the argument that the mother had forfeited the argument by failing to file a writ petition following the termination of her reunification services.   The court noted that “appellate courts have refused to apply the waiver rule when a guardian ad litem has been appointed erroneously, because in such cases the attorney looks to the guardian ad litem, not the parent, to exercise the right to appellate review.   [Citations.]”  (Id. at p. 682.)   The court concluded it would be inappropriate to conclude that the mother had forfeited this argument:

“The failure to appoint a guardian ad litem in an appropriate case goes to the very ability of the parent to meaningfully participate in the proceedings.   For the same reasons that C.F. needed a guardian ad litem, she was ‘hardly in a position to recognize ․ and independently protest’ the failure to appoint her one.  [Citation.]”  (Ibid.)

Following this logic, we conclude that father has not forfeited this argument on appeal.   However, as set forth below, we decline to find an abuse of discretion in the juvenile court's decision not to appoint a guardian ad litem for father in this matter.

B. The trial court did not abuse its discretion in declining to appoint a guardian ad litem, sua sponte

Code of Civil Procedure section 372, subdivision (a), provides that when an incompetent person is a party to a court action, that party shall appear by a guardian ad litem appointed by the court.   The court may appoint such a guardian on its own motion.  (Code Civ. Proc., § 373, subd. (c).)  In the absence of a dispositive provision in the Welfare and Institutions Code, the juvenile court can look to the Code of Civil Procedure for guidance on a particular issue.  (In re Josiah Z. (2005) 36 Cal.4th 664, 678–679.)   Courts have applied Code of Civil Procedure section 372 in dependency proceedings.  (See In re M.F., supra, 161 Cal.App.4th at p. 678;  see also In re Lisa M. (1986) 177 Cal.App.3d 915, 919 [“when the [juvenile] court already has knowledge of a [parent's] incompetency, the [juvenile] court has an obligation to appoint a guardian ad litem sua sponte”].)

In dependency proceedings, the test of mental incompetence is “whether the parent has the capacity to understand the nature or consequences of the proceeding and to assist counsel in preparing the case.  [Citations.]”  (In re James F. (2008) 42 Cal.4th 901, 910.)   In reviewing the juvenile court's decision not to appoint a guardian ad litem sua sponte, the test is whether the circumstances as a whole should have alerted the court that the parent was incapable of understanding the nature or consequences of the proceeding or was unable to assist counsel in representing the parent's interests.  (In re Sara D. (2001) 87 Cal.App.4th 661, 671–672.)   The standard of review is abuse of discretion.  (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1367–1368).

Father argues that he lacked the capacity to understand the nature and consequences of the proceedings, and that he was unable to assist his counsel in preparing the case.   Father points to his apparent mental health problems, which he had been dealing with since he was a child, including his diagnoses of schizophrenia and bipolar disorder.   Father had indicated that he walked down the street and got into spiritual battles with people, and that he was focused on the number 25.   Father also points to Dr. Carter's report, which indicated that father was delusional and paranoid.   Dr. Carter also observed that father was impaired in his daily functioning, as evidenced by his problems with employment, housing, and the legal system.   In addition, a psychiatrist who saw father in May and June of 2009 diagnosed him with schizophrenia and schizoaffective disorder, noting that father functioned at a child-like level.   Father argues that all the facts in the record point to one conclusion:  that he was mentally incompetent.

While the record does show that father had certain mental problems, father fails to point to any evidence in the record suggesting that he did not understand the nature, or consequences, of the proceedings.   In fact, the court specifically found on two occasions that father “knowingly and intelligently” waived his trial rights regarding the section 300 petitions filed on behalf of his children, and that he understood the nature of the conduct alleged in the petition and the possible consequences of submitting.

In addition, despite the numerous criminal proceedings involving father, there is no evidence that any court had ever determined that father was mentally incompetent.   Nor did father's attorney ever indicate to the court that she was having difficulty communicating with her client.   On the contrary, counsel for father exhibited confidence in her ability to explain the proceedings to father.   In fact, on the one occasion that father indicated that he did not understand the court's order father's attorney assured the court that she would explain the court's order to him.   Father had attended high school and completed some college.   He was attending school during the proceedings, and had successfully completed a domestic violence program.   The record indicates that he was communicating specific requests to his attorney, who was in turn making these specific requests to the court.   In sum, despite evidence that father was suffering from mental illness there was absolutely no evidence that he did not understand the nature or consequences of the proceedings or that he could not effectively assist his attorney.

A mental or emotional disability alone is insufficient to trigger a requirement that a guardian ad litem be appointed.  (In re R.S. (1985) 167 Cal.App.3d 946, 979–980 [where mother had documented mild mental retardation and dependent personality disorder, record established that mother “did understand the nature of the proceedings against her and was able to meaningfully participate in those proceedings and to cooperate with her trial counsel in representing her interest”];  In re Ronell A., supra, 44 Cal.App.4th at pp. 1367–1368 [although father had the mental capacity of a 12–year–old and had been diagnosed as a schizophrenic, there was no error in the court's failure to appoint a guardian ad litem].)   It is apparent that father understood the nature of the proceedings, and was able to meaningfully participate and communicate with his attorney.   Therefore, we conclude that the trial court did not abuse its discretion in failing to act sua sponte to appoint a guardian ad litem for father.⁷

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

CHAVEZ

We concur:

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated..  FN1. All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

FN2. The referral came from Damien's school.   At the time, Damien was under legal guardianship with maternal grandparents.   Damien has a different father from the children in this case and is not a subject of this appeal..  FN2. The referral came from Damien's school.   At the time, Damien was under legal guardianship with maternal grandparents.   Damien has a different father from the children in this case and is not a subject of this appeal.

FN3. Father's attendance at domestic violence classes was ordered by the criminal court as a result of the domestic violence incident in 2007..  FN3. Father's attendance at domestic violence classes was ordered by the criminal court as a result of the domestic violence incident in 2007.

FN4. The maternal grandparents made it clear that it was not their intention to have Alexandra permanently placed with them.   The family wanted Alexandra placed with a maternal aunt and her boyfriend.   However, the maternal aunt later indicated that she was not interested in caring for Alexandra..  FN4. The maternal grandparents made it clear that it was not their intention to have Alexandra permanently placed with them.   The family wanted Alexandra placed with a maternal aunt and her boyfriend.   However, the maternal aunt later indicated that she was not interested in caring for Alexandra.

FN5. DCFS argues that mother has forfeited this issue by failing to raise it below.   However, the contention that a judgment is not supported by substantial evidence is a general exception from the forfeiture rule.   (Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23, fn 17.)   Therefore, we address the merits of mother's argument..  FN5. DCFS argues that mother has forfeited this issue by failing to raise it below.   However, the contention that a judgment is not supported by substantial evidence is a general exception from the forfeiture rule.   (Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23, fn 17.)   Therefore, we address the merits of mother's argument.

FN6. Because mother has specified that she is not arguing a legal impediment to adoption, we decline to address this issue..  FN6. Because mother has specified that she is not arguing a legal impediment to adoption, we decline to address this issue.

FN7. The parties debate whether mother has standing to join in father's argument for reversal.   DCFS argues that mother was not aggrieved by the court's failure to appoint a guardian ad litem for father, therefore she lacks standing to join in father's challenge on appeal.   Because we have decided this issue on the merits against father, this issue is moot and we decline to address it further..  FN7. The parties debate whether mother has standing to join in father's argument for reversal.   DCFS argues that mother was not aggrieved by the court's failure to appoint a guardian ad litem for father, therefore she lacks standing to join in father's challenge on appeal.   Because we have decided this issue on the merits against father, this issue is moot and we decline to address it further.

_, P.J. BOREN _, J. DOI TODD