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Name: In re Jessica G.
Case #: B149294
District 2 DCA
Division: 4
Opinion Date: 11/20/2001
Subsequent History: Rehg. denied 12/19/01. Opinion modified; modification changed judgment.

Here, the Second DCA followed the recent decision by the Fifth DCA in In re Sara D. (2001) 87 Cal. App. 4th 661, when it concluded that appellant mother’s due process rights were violated by the trial court’s appointment of a guardian ad litem (GAL). Here the GAL was appointed on the date first noticed for the 366.26 hearing. Nothing in the record suggests that anyone explained to mother what a GAL was, and what the appointment would mean to her. The court made no inquiry regarding mother’s competence. Mother’s testimony showed emotional difficulties, but no suggestion of incompetence as a party. Therefore, the order appointing the GAL was reversed and the case remanded for further proceedings. The appellate court also held that the issue was not waived despite the failure to raise the issue in a writ application. Mother was in a “Catch 22” situation: her attorney looked to the GAL, who could hardly be expected to endorse a writ challenging her appointment. The waiver rule cannot be enforced when due process forbids it.