Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Orange County Super. Ct. No. A239891, Marjorie Laird Carter, Judge. Petition granted.
Law Offices of Arthur J. LaCilento and Arthur J. LaCilento for Petitioner.
Deborah A. Kwast, Public Defender; Thomas J. Havlena, Assistant Public Defender, and Shelly Aronson, Deputy Public Defender, for Real Party in Interest Tiffany K.
No appearance for Real Party in Interest Tony C.
No appearance for Real Party in Interest Orange County Social Services Agency.
OPINION
SILLS, P. J.
Sheila J., temporary guardian of Summer C., seeks extraordinary relief from the order of the probate court terminating the temporary guardianship without affording her notice and an opportunity to be heard. We grant relief.
FACTS
Sheila J. is the maternal grandmother of minor Summer C. In October 2006, Summer’s mother, Tiffany K. (also a minor), was detained in juvenile hall and the whereabouts of her father, Tony C., were unknown. Sheila was appointed temporary guardian of Summer, and the probate court issued temporary letters of guardianship on October 11, 2006. The hearing on the general guardianship petition was continued six times so Sheila could properly serve the father and secondary relatives, and was most recently set for September 10, 2007.
On July 13, 2007, Summer was taken into protective custody by the Orange County Social Services Agency (SSA) under Welfare and Institutions Code section 300. SSA provided Sheila with copies of the petition and detention report, and the juvenile court appointed counsel for her. Then, on July 27, the probate court issued a minute order as follows: “No appearances. After receiving information from social services that the child was picked up on W&I 300, the court on its own motion terminates the temporary guardianship and will dismiss the general guardianship petition on 9-10-2007. . . .” Sheila had no notice of the probate court’s action and first heard of it on August 2, when she received a copy of the minute order in the mail.
Sheila filed a motion to set aside the probate court’s order on August 27. The motion was denied, but the petition on the general guardianship petition was reinstated as previously scheduled for September 10. That hearing has not been held.
DISCUSSION
Sheila contends she was denied due process by the termination of the temporary guardianship without giving her notice and an opportunity to be heard. We agree.
A guardian appointed under the Probate Code is generally entitled to the same rights as a parent in dependency proceedings. (In re Merrick V. (2004) 122 Cal.App.4th 235, 250; In re Carrie W. (2003) 110 Cal.App.4th 746, 758.) “For example, a guardian appointed under the Probate Code will be entitled to (1) receive social study reports before hearings ([Welf. & Inst. Code,] § 302, subd. (b)), (2) have counsel appointed if financially unable to afford to hire one ([Welf. & Inst. Code,] § 317, subd. (a)), (3) object to evidence at the jurisdictional hearing ([Welf. & Inst. Code,] § 355, subd. (a)), and (4) receive reunification services ([Welf. & Inst. Code,] § 361.5, subd. (a)).” (In re Merrick V., supra, 122 Cal.App.4th at p. 250.)
When dependency proceedings are initiated on behalf of a child who is subject to a Probate Code guardianship, a motion to terminate the guardianship may be made in the juvenile court by SSA, the guardian or the child. (Welf. & Inst. Code, § 728, subd. (a).) Notice of a hearing on the motion must be given to the parents of the child and to the guardian. (Ibid.) Likewise, notice must be given to the parents and the guardian if the guardianship is terminated in the Probate Court. (Prob. Code, § 1601.) In either court, the guardianship shall not be terminated without a showing that the termination is in the best interests of the child. (In re Guardianship of L.V. (2006) 136 Cal.App.4th 481, 489; In re Merrick V., supra, 122 Cal.App.4th at pp. 253-254.)
Here, the probate court terminated the temporary guardianship without giving Sheila notice and an opportunity to be heard on Summer’s best interests. This was improper. As long as the temporary letters of guardianship were in effect, she was entitled to the same procedural protections as a general guardian. (See Timmons v. McMahon (1991) 235 Cal.App.3d 512, 516; Dority v. Superior Court (1983) 145 Cal.App.3d 273, 279.)
We deem this to be a proper case for the issuance of a peremptory writ “in the first instance.” (Code Civ. Proc., § 1088; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another ground in Hassan v. Mercy American River Hosp. (2003) 31 Cal.4th 709, 724; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) Sheila included a prayer for peremptory relief in her petition, and this court solicited replies from all real parties in interest. Accordingly, the procedures outlined in Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180 have been followed.
DISPOSITION
Let a peremptory writ of mandate issue directing the probate court to vacate its order terminating the temporary guardianship.
WE CONCUR: RYLAARSDAM, J., FYBEL, J.