Opinion
E051709
10-21-2011
In re A.F. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. B.M. et al., Defendants and Appellants.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant B.M. Lauren K. Johnson for Defendant and Appellant B.F., Sr.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.Nos. J231819, J231820, J231821)
OPINION
APPEAL from the Superior Court of San Bernardino County. Wilfred J. Schneider, Jr., and Marsha Slough, Judges. Dismissed.
Judge Schneider made the first guardian ad litem appointment; Judge Slough made the second.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant B.M.
Lauren K. Johnson for Defendant and Appellant B.F., Sr.
Jean-Rene Basle, County Counsel, Adam E. Ebright, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
Carl Fabian, under appointment by the Court of Appeal, for Minors.
B.F., Sr., (Father) and B.M. (Mother) appeal from the denial of Father's request in the juvenile court to appoint paternal grandmother (Grandmother) guardian ad litem (GAL) for the three minors and to appoint an attorney to assist Grandmother in the investigation of a civil rights case against the San Bernardino County Children and Family Services (the Department) for injuries suffered by the children while in the care of foster parents approved by the Department. On appeal, minors Al.F., B.F., Jr. (B.F.), and A.F. join in the parents' argument.
I
PROCEDURAL AND FACTUAL BACKGROUND
A. Removal from Mother's and Father's Custody
On March 13, 2010, A.M. (then 11 years old), T.F. (then 9 years old), Al.F. (then 4 years old), B.F. (then 3 years old), and A.F. (then 2 years old) were detained by the Department when the Department went to the home and found no food, moldy and dirty mattresses with no bedding for the children, animal and human feces on the floor and in cupboards, and feces in the younger children's hair. The front and back yards were littered with cars, tools, and metal. The stairs leading to the home were covered in toys, tools, and jumper cables. There was no lighting in the bedrooms.
Father was not A.M.'s biological father, but her father was not involved in her life and was not listed on her birth certificate.
Both Mother and Father were unemployed and stayed home during the day. They had no excuse for the condition of the home. Father was on probation for drug possession and sales. Mother had a history of marijuana use. All of the children reported being hungry. A.M. and T.F. appeared to have taken over the parenting roles. Mother and Father had five previous referrals to the Department for the same reasons but had cleaned their home, and no further action had been taken.
All five children were taken into protective custody, and Mother and Father were arrested on charges of child endangerment. Grandmother and the paternal grandfather (Grandfather) agreed to take custody of A.M. and T.F., but did not believe they could also take care of the three younger children. Their home was approved by the Department.
On March 16, 2010, the Department filed Welfare and Institutions Code section 300 petitions against Mother and Father for all five children, alleging a failure to protect (§ 300, subd. (b)) due to their home being found unfit for human habitation and Mother's and Father's substance abuse. It was also alleged that the parents could not provide support (§ 300, subd. (g)), as they had been arrested on child endangerment charges.
All further statutory references are to the Penal Code unless otherwise indicated.
Copies of the petitions for Al.F., B.F., and A.F. are the only ones included in the record as the issues on appeal pertain only to them, as they received injuries in foster care while A.M. and T.F. were in Grandmother's custody.
On March 18, 2010, the juvenile court found a prima facie case and ordered that Al.F., B.F., and A.F. be detained and remain in the custody of the Department with a foster family.
In a jurisdiction/disposition report filed on April 5, 2010, the Department recommended that all five children be returned to the care of Mother and Father with in-home supervision. Mother and Father were willing to participate in services. All five children were overall developing appropriately for their ages, and the older ones were doing well in school and with friends. The children were very bonded with Mother and Father, and there had been progress made in cleaning up the home.
A hearing was conducted on April 30, 2010. Father was present in custody and Mother was present. After counsel for Mother and Father submitted on the allegations, the juvenile court found the allegations true under section 300, subdivisions (b) (against both parents) and (g) (against Father only, as Mother was no longer incarcerated). Al.F., B.F., and A.F. were not able to be returned to the parents' care at the time of the hearing but would be returned to Mother and Father upon determination by the Department that the conditions that led up to the removal of the children had been alleviated, and they would be subject to a family maintenance program. A.M. and T.F. were returned to the parent's home.
B. Injuries to Al.F., B.F., and A.F.
On June 18, 2010, the Department was present in court at a nonappearance review hearing. Mother, Father, and the minors' trial counsel had been given notice but were not present. According to the minute order, the Department was requesting that Al.F., B.F., and A.F. be returned to Mother's and Father's home on a family maintenance service plan because on June 16, 2010, A.F. was taken by ambulance to a hospital with nonaccidental injuries to his head. He had been on a ventilator in intensive care since that date. B.F. and Al.F. were also taken to the hospital, where they were found to have extensive internal and external injuries. It was suspected that the foster parents had caused the injuries. Mother and Father had cleaned both their home and yard area. The juvenile court ordered that the children be immediately returned to the parents' custody.
Another hearing was conducted on July 2, 2010. At the hearing, Father filed a petition for appointment of a GAL and outside counsel pursuant to section 317, subdivision (e). Father requested that Grandmother be appointed GAL. Father also requested that Attorney Robert R. Powell be appointed as outside counsel. Powell submitted a declaration with the petition stating that he was one of the "very few" attorneys who handled civil rights violations against child services departments and law enforcement agencies. He and his firm had handled over 20 cases involving such violations. He had represented parents in the juvenile court system for 18 years. Powell admitted that the juvenile court need not appoint outside counsel, but rather that such decision would be made by the GAL.
Grandmother also submitted a declaration. She declared that she had been married to Grandfather for 35 years, and he was fully employed as a construction supervisor. She had regular interaction with Al.F., B.F., and A.F. She intended to retain Powell in the litigation against the Department. She understood the obligations of a GAL and expected no compensation.
A social worker was present at the hearing and reported that B.F. and Al.F. had been released from the hospital on June 19, 2010. A.F. had been released on June 25 and was soon to be receiving therapeutic services.
Minors' trial counsel then stated, ". . . I asked for this matter to be put on calendar to request appointment of the guardian ad litem for the children to address any possible civil issues and as I generally do, I'm asking that Mr. Friedland be appointed as the guardian ad litem and that he be provided with discovery."
Father's counsel interjected that they had filed a petition requesting that Grandmother be appointed GAL. Grandmother was trusted by Father and had the capability to handle the responsibility. Father's counsel also noted that Mr. Friedland might have a conflict of interest, since he contracted with the Department. The minors' counsel requested that the juvenile court contact Mr. Friedland to come to court immediately and address any potential conflict.
The juvenile court interrupted and stated, "[W]ith all d[ue] respect, I don't know Mom. I don't know her background. . . . [W]e're not [going to] have an Evidentiary Hearing on this. Not today. I have listened today to the counsel hired to represent the interest of the children. She is requesting this Court to retain the services of Mr. Friedland so he can further investigate it. [¶] . . . I want it further investigated. And that is my intent. My intent is to take this one step at a time. I thank you very much for your papers and I fully read and I understand them and I understand the position that you're making."
The juvenile court was clearly referring to Grandmother.
Father's counsel again addressed the potential conflict of interest. The minors' counsel stated that she had spoken with Mr. Friedland, who was not aware of any conflicts. Mother submitted on the issue. Mr. Friedland was appointed, and the juvenile court ordered the abuse of the children investigated.
Extensive records of the discovery that details the injuries to Al.F., B.F., and A.F. are provided in the record. A.F. arrived at the hospital and was underweight. He had suffered an occipital skull fracture, left subdural hematoma and brain trauma, and a contusion on his arm. He had retinal hemorrhages in both eyes and abdominal injuries. These injuries were as a result of blunt force injury to the head and abdomen. A.F.'s vision was permanently impaired, and it was believed he would have future behavioral and cognitive problems. The extent of the developmental delays might not be apparent until A.F. reached school age.
Al.F. was found to have a large bruise on the side of her face that was covered with make-up. She also had bruises behind her right ear. She was undernourished and had suffered blunt force trauma. She reported that both foster parents had hit her.
B.F. was diagnosed with having suffered blunt force trauma to his abdomen and was suffering from pancreatitis and free peritoneal fluid. He reported that his foster father had hit him.
Another foster child had been removed from the foster parents' home while Al.F., B.F., and A.F. were living in the home. That foster child had witnessed the foster parents withhold water and food from Al.F., B.F., and A.F. and indicated the foster parents smoked marijuana daily. A social worker from the Department had determined that Al.F., B.F., and A.F. should remain in the home despite the other child being removed.
On August 11, 2010, Mr. Friedland filed a request to appoint the law firm of Shernoff, Bidart and Echeverria, LLP, as counsel under section 317, subdivision (e) to investigate and pursue civil litigation. The juvenile court approved the appointment.
C. Briefing and Supplemental Records
Father and Mother filed their notices of appeal on August 31, 2010. In his opening brief, Father argued that the juvenile court erred by failing to appoint Grandmother as the GAL because Mr. Friedland had a conflict of interest and by failing to appoint Powell as the minors' litigation attorney. Mother filed her opening brief joining in Father's opening brief. The Department responded that the juvenile court did not abuse its discretion by appointing Mr. Friedland to represent the minors.
After the briefs were filed, the minors' appellate counsel filed a request to augment the record with proceedings that had occurred in the case that were not included in the appellate record. We granted the request and allowed Father and Mother to file supplemental opening briefs.
According to the augmented records, a hearing was conducted on October 8, 2010. Mr. Friedland stated at the hearing that he had been appointed to represent a party who was connected to the foster parents who had committed the offenses against Al.F., B.F., and A.F. Mr. Friedland wanted to remain on the instant case, as he had done a "great deal of work on it," and wanted to be relieved on the foster parents' case.
The juvenile court ruled, " . . . I appreciate the work that Mr. Friedland has done on all of the issues in this case. I think that there is . . . conflict. I think that we need to get new lawyers appointed, both as GAL, as well as the other folks that are represented by the Friedland firm. [¶] . . . [I]t's kind of the nature of what happens because we work closely together. And I certainly do not think in any way, shape, or form from anything that I have read or heard of know of, that anything inappropriate has occurred. I don't think that at all. But I do think, given the representation and cross-representation, it would be best to relieve and appoint new lawyers."
At a subsequent hearing, another attorney, identified as Mr. Remes, was appointed as GAL.
Father filed a supplemental opening brief, wherein he argues that the juvenile court failed to exercise its discretion in appointing the GAL by deferring to minors' trial counsel that Mr. Friedland should be appointed. Father asks that the case be remanded for reconsideration of the appointment of Grandmother as GAL. The minors' counsel then filed a brief asserting that the case should be remanded to the juvenile court to hold a new hearing on the appointment of a GAL, and specifically, that Grandmother be considered as the GAL. He also argues that reversal is mandated because Mr. Friedland had an actual conflict of interest.
II
ANALYSIS
The claims raised in the appeal by the parents not appealable, and even if they are, such claims have been rendered moot and/or forfeited.
A. Appointment of a GAL under the Child Abuse Prevention and Treatment Act (CAPTA)
"For purposes of the federal Child Abuse Prevention and Treatment Act (CAPTA) (42 U.S.C. § 5101 et seq.) and state law (Welf. & Inst. Code, § 326.5) a CAPTA guardian ad litem must be appointed for a minor in dependency cases involving child abuse or neglect and this role may be filled by either the attorney appointed by the juvenile court to represent the minor's interests, or by a court-appointed special advocate (CASA). [Citations]." (San Diego County Dept. of Social Services v. Superior Court (2005) 134 Cal.App.4th 761, 767-768.) "Significantly, the role of a CAPTA guardian ad litem is different from a guardian ad litem in all other juvenile, civil, and criminal proceedings. [Citation.] A CAPTA guardian ad litem evaluates 'the situation and needs of the child' and 'make[s] recommendations to the court concerning the best interest of the child[.]' [Citation.] . . . [¶] Where the possibility of adversarial litigation exists, it is appropriate and necessary for the juvenile court to appoint a separate guardian ad litem to make decisions on behalf of the dependent minor. [Citation.]" (Id. at p. 768.)
One who serves as a GAL acts as the representative of a party to an action and as an officer of the court (Sarracino v. Superior Court (1974) 13 Cal.3d 1, 13) solely "to protect the minor's interests in the litigation. [Citations.]" (Williams v. Superior Court (2007) 147 Cal.App.4th 36, 47).
In San Diego County Dept. of Social Services v. Superior Court, supra, 134 Cal.App.4th 761, the minor was detained and put into a county group home. The minor reported that he was molested at the home. (Id. at p. 765.) A GAL was not appointed by the juvenile court. The appellate court found it was likely that civil litigation would occur and that the minor needed an independent GAL. (Id. at p. 769.) The court concluded that when litigation in another forum is contemplated, a GAL must be appointed for the minor, and "[t]he guardian ad litem is also the appropriate individual to seek independent counsel, on a pro bono or contingency basis, to investigate and prosecute any tort claims on behalf of the dependent minor." (Ibid.)
B. Right to Appeal
Initially, it is not entirely clear that the wrongful appointment of a particular GAL is an appealable order and, even if it is, whether the parties involved here in filing the appeal are entitled to relief.
Most cases addressing the appointment of a GAL have involved an appeal from another final dispositional order and a complaint that a GAL should or should not have been appointed. One court concluded that the appealable order was the dispositional order, and the appointment of a GAL could be part of that appeal. (In re Joann E. (2002) 104 Cal.App.4th 347, 353-354.) In another case, the court concluded that the party could raise the issue of the appointment of a GAL along with the appeal from a section 366.26 hearing. (In re Jessica G. (2001) 93 Cal.App.4th 1180, 1190.) The minors' counsel recognizes that in most instances the appointment of a GAL is not an independently appealable order. (Estate of Hathaway (1896) 111 Cal. 270, 271 [no direct appeal in probate court from appointment of GAL]; In re Marriage of Caballero (1994) 27 Cal.App.4th 1139, 1149.)
Father claims he has a right to appeal under Welfare and Institutions Code section 300 and California Rules of Court, rule 5.585(b). However, neither authorizes an appeal on the ground raised here. We have found no cases addressing whether disagreement as to the specific identity of the appointed GAL is grounds for appeal, as opposed to disagreement as to whether a GAL should or should not have been appointed at all.
Moreover, it is also not entirely clear that either the parents or the minors' counsel can raise the issue. Case law supports that once a GAL is appointed in the trial court, he or she remains the GAL. In In re Josiah Z. (2005) 36 Cal.4th 664, the Supreme Court held that the CAPTA GAL remains the GAL when the minors' case is on appeal. As such, appellate counsel cannot unilaterally appeal without the authorization of the GAL. (Id. at pp. 680-681.) Accordingly, it is doubtful that the minors' counsel has the authority to even argue that the GAL should be removed and replaced by Grandmother unless the GAL agrees this is in the best interests of the minors. No such evidence appears in the record.
Additionally, it is unclear under what authority Father and Mother can appeal the appointment of the GAL. Conceivably, Mother and Father will obtain their own counsel in the litigation contemplated against the Department and may in fact be adverse parties in the forthcoming litigation. Here, a conflict of interest exists, as there is potential for a conflict in the civil litigation. (See Williams v. Superior Court, supra, 147 Cal.App.4th at p. 48.)
Based on the foregoing, it is at least arguable that Father and Mother cannot appeal on behalf of minors that the juvenile court erred by appointing Mr. Friedland as the GAL in place of Grandmother, and that the minors' counsel cannot argue against the appointment of the GAL without the current GAL's consent. Also, even assuming that the minors' counsel has the approval of the GAL to join the instant appeal on behalf of minors, the order appealed from is not appealable.
Although this is conceivably a conflict in that the GAL may not want to be removed, it is the GAL's duty to act on behalf of the best interest of the minor to whom he or she is appointed.
Father and minors' counsel request that we treat the appeal as a writ proceeding if we find the order is not appealable. In response, the Department contends that this court should dismiss the appeal as moot. As discussed, post, even if we were to consider the appeal a writ proceeding, the claims would be denied.
At oral argument, minors' counsel objected to the Department being a party to the instant action as it is the defendant in the forthcoming lawsuit. We have considered the issues in this appeal without reliance on the arguments by the Department.
C. Mootness
Father, joined by Mother and the minors' counsel, argues in his opening brief that the juvenile court erred by appointing Mr. Friedland because he had a conflict of interest. The minors' counsel also attacks the juvenile court's decisionmaking process in appointing Mr. Friedland. The claim that Mr. Friedland should not have been appointed GAL based on his conflict of interest is moot.
Mr. Friedland has already been found by the juvenile court to have a conflict of interest and has been removed as GAL. "An appeal becomes moot when, through no fault of the respondent, the occurrence of an event renders it impossible for the appellate court to grant the appellant effective relief. [Citations.]" (In Re Esperanza C. (2008) 165 Cal.App.4th 1042, 1054-1055.) Hence, this claim is moot.
At oral argument, counsel for Father, Mother and minors argued that the real issue was the difference between appointing a professional GAL or a relative GAL (not the appointment of Mr. Remes in place of Mr. Friedland) because a professional will have to be paid. This issue was not raised in the briefing, and whether the GAL will be paid by the minors was never part of the record in this case.
D. Forfeiture
In order to avoid a finding by this court that his claim is moot, in his supplemental briefing, prepared after Mr. Friedland was removed as the GAL, Father now argues that the juvenile court that originally appointed Mr. Friedland, and not Grandmother, did not exercise its discretion, but rather relied on the representation of minors' counsel in the trial court that Mr. Friedland should be appointed. The minors' counsel joins.
Father cannot raise this issue for the first time in his supplemental brief, as that issue was clearly before him when he filed his initial brief. Father was afforded the opportunity to file supplemental briefing to address the supplemental proceedings that occurred, not to raise a new issue that was based on the initial record.
At oral argument counsel for Mother, Father and minors argued that the trial court upon the initial appointment of Mr. Friedman did not exercise its discretion in denying Grandmother as the GAL and essentially remand is necessary in order for the trial court to exercise that discretion. However, the juvenile court was presented with a written petition to appoint Grandmother as GAL, which included a declaration from Grandmother herself as to the reasons and qualifications for being the GAL. At the hearing on the matter, although the juvenile court did not conduct an evidentiary hearing, in response to Father's counsel's argument that Grandmother should be appointed GAL, it stated as follows: "I thank you very much for your papers and I fully read and understand them and I understand the position that you're making." (Italics added.) This was clearly an exercise of the trial court's discretion to not appoint Grandmother as GAL.
We also conclude that by failing to request that Grandmother be appointed the GAL when Mr. Friedland was removed, any argument that Grandmother should have been appointed GAL at that point has been forfeited. Essentially, upon the removal of Mr. Friedland as GAL, the prior hearing became irrelevant. A new GAL was appointed, and there was no objection by anyone, including counsel for Mother and Father, who were present. No renewal of the request to appoint Grandmother was made.
It was incumbent upon Father and Mother to raise the issue of Grandmother being appointed the GAL at the hearing when Mr. Remes was appointed. (See In re S.B. (2004) 32 Cal.4th 1287, 1293 [dependency matters are not exempt from the rule requiring a party to raise objection before trial court so error may be corrected].) Especially in light of the fact, as discussed post, that a new judicial officer was presiding over the case, it was essential that, if the parties wanted Grandmother to be appointed the GAL, such request be renewed.
The minors' counsel contends that it would have been futile to raise the issue again at the time Mr. Remes was appointed, and there was not an opportunity to raise the issue. At the hearings removing Mr. Friedland and appointing Mr. Remes, a new judicial officer was presiding and counsel for Mother and Father were present. At no time at either hearing was there an objection made to the appointment of Mr. Remes as GAL. Moreover, no renewal was made at either hearing of the request that Grandmother serve as GAL. Clearly, there was an opportunity at the two hearings to raise the issue that Grandmother should be appointed GAL, as the new presiding judicial officer commented that it was better to start with new lawyers. Further, raising the issue was not futile, as there was a new judicial officer who may have been amenable to appointment of Grandmother, especially since the court found Mr. Friedland had a conflict of interest. There is simply no valid excuse as to why no one raised the issue of Grandmother as GAL at the subsequent hearings. As such, the issue of appointment of Mr. Friedland is moot, and any other argument that Grandmother should have been appointed is forfeited by failing to raise the issue when a new GAL was appointed.
Based on the foregoing, we dismiss the instant appeal on the grounds that it is moot, and the issues raised on appeal have been forfeited.
We note that a GAL remains under the supervision of the juvenile court. (§ 372.) There is nothing in the record before us that shows that the current GAL or the appointed counsel of Shernoff, Bidart and Echeverria, LLP, have done anything that is not in the best interests of the children. Even though Mother, Father and the minors' counsel disagree with the appointment, we see nothing that shows that the best interests of the minors are not being considered by Mr. Remes and hired counsel. Should such situation change, and the best interests of the children are not being protected by the GAL, nothing in this dismissal order affects the rights of the parties to bring an action in the juvenile court to reconsider appointing Grandmother as the GAL.
III
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
MCKINSTER
J.
CODRINGTON
J.