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Issue Spotting in Appeals –
Through the Setting of the Section 366.26 Hearing

by Shama H. Mesiwala, former CCAP Staff Attorney

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XIV.  Issues Arising From the Appointment of a Guardian Ad Litem (GAL).

A. Did the court apply the correct standard when appointing the GAL?.

B. Did the parent consent to the appointment of the GAL?

XIV.  Issues Arising From the Appointment of a Guardian Ad Litem (GAL).

  1. Did the court apply the correct standard when appointing the GAL?
    1. The basis for the appointment of a GAL is the incompetence of the parent. "The test for incompetence in this context is whether the party has the capacity to understand the nature or consequences of the proceeding, and is able to assist counsel in preparation of the case." (In re Jessica G. (2001) 93 Cal.App.4th 1180, 1186, quoting In re Sara D. (2001) 87 Cal.App.4th 661, 666.)

    2. "At a minimum, the court should make an inquiry sufficient to satisfy it that the parent is, or is not, competent; i.e., whether the parent understands the nature of the proceedings and can assist the attorney in protecting his/her rights."  (In re Sara D. (2001) 87 Cal.App.4th 661, 672.)

    3. The test is not whether the individual is difficult to handle as a participant in the process.  (In re Joann E. (2002) 104 Cal.App.4th 347, 359.)

    4. The court's decision on this issue should be stated on the record. (In re Jessica G. (2001) 93 Cal.App.4th 1180, 1188.)
  2. Did the parent consent to the appointment of the GAL?
    1. Where a parent does not consent to the appointment of a GAL, the court or counsel is required to explain to the parent/client the purpose of the GAL, the authority the GAL will have (and which the parent/client will not have), and why the appointment should be made.  The parent/client should be given the opportunity to respond.  (In re Sara D. (2001) 87 Cal.App.4th 661, 672.)

    2. The appointment of a GAL required reversal of the dispositional order where there was nothing in the record to indicate that anyone had explained the consequences of appointing a GAL or had spoken with the mother to determine her ability to understand the proceeding and to assist her attorney. Due process forbade holding that the mother had waived her right to appeal the appointment by failing to file a writ challenging the appointment.  (In re Jessica G. (2001) 93 Cal.App.4th 1180.)

    3. The appointment of a GAL violated the grandmother's right to due process where there was no evidence that the grandmother was informed of the GAL's purpose, the rights that the GAL would be given, or why the court or her attorney felt that the appointment was necessary.  There was also no evidence that the court made an assessment of the grandmother's competency to participate in the proceedings. (In re Joann E. (2002) 104 Cal.App.4th 347.)

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