Opinion
G056116
11-27-2018
In re RICHARD F., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY et al., Plaintiffs and Respondents, v. RICHARD F., Objector and Appellant.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent Orange County Social Services Agency. Monica Vogelmann, under appointment by the Court of Appeal, for the Plaintiff and Respondent Ricardo F.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. DP021515-001) OPINION Appeal from an order of the Superior Court of Orange County, Caryl A. Lee, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent Orange County Social Services Agency. Monica Vogelmann, under appointment by the Court of Appeal, for the Plaintiff and Respondent Ricardo F.
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INTRODUCTION
This case represents, up to a point, a juvenile dependency proceeding with a happy ending. After being detained at age 11, Richard F. was placed with his father's sister, H.N., because his parents could not take care of him. His aunt became his legal guardian.
Richard is here now at 18 years old, not with a tale of abuse and neglect, but rather because the guardianship was so successful. He is an honor student with ambitions to be a physician. As with so many families, however, money is tight, and his guardian cannot afford to pay Richard's college expenses.
H.N. petitioned under Welfare and Institutions Code section 388 to have Richard's guardianship terminated and his dependency case reopened. If he was once more placed in foster care, she argued, he would be eligible for funds available for "nonminor dependents," that is, foster children between the ages of 18 and 21. The juvenile court denied the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
During the time this appeal was pending, Richard turned 18. We therefore had to address the issue of whether the guardianship terminated as a matter of law and the appeal was moot. We conclude it is not moot.
As for the order denying H.N.'s section 388 petition, we reverse. From the record before us, we cannot be sure the juvenile court performed the analysis required for such a petition. Accordingly, we remand the matter to the juvenile court to consider the matter under the correct criteria for granting or denying a section 388 petition.
FACTS
Richard was detained on August 3, 2011, when he was nearly 11 years old. The police had been called to his home on reports of a loud party and someone brandishing a weapon. Richard's older half-sibling was hosting the party.
Richard's mother was also at the party (Richard's parents were divorced), but she was too drunk to take care of Richard. He and his older half-sibling had been the subject of five prior child abuse referrals, beginning in September 2002, referrals involving alcohol and/or domestic violence.
On September 14, 2011, Richard's parents pleaded no contest to an amended petition. The allegations included Richard's mother's severe alcohol abuse, his father's failure to protect him from harm, and his father's unstable housing situation. Upon detention in August 2011, Richard was placed with his father's sister, H.N. On March 14, 2013, Richard's parents and H.N. stipulated to legal guardianship as being in Richard's best interests. Pursuant to the stipulation, the court appointed H.N. Richard's guardian, issued letters of guardianship, and terminated the dependency proceedings.
In January 2018, seven months before Richard was due to turn 18, H.N. filed a petition under section 388 asking the court to reinstate dependency jurisdiction for Richard. The reason for this request was H.N.'s discovery that, as her ward, Richard was not eligible for funding for his college education under section 14400 et seq. (usually referred to as AB 12), mainly because he was not in foster care. She protested that he would be "missing out [on] all the benefits given to foster children," and she wanted to be sure he "gets what he deserves after all the struggles he's gone through." H.N. informed the court that, owing to recent financial setbacks, the N. family could not afford to send Richard to college, and she did not want him to take out loans or have to work to pay for his schooling. When interviewed by a social worker, Richard also expressed his desire not to be burdened by student loans. SSA recommended that the court deny the petition.
The California Fostering Connections to Success Act, sections 11400 et seq., otherwise known as AB 12, "is a comprehensive piece of legislation. . . . For our purposes, however, there is but one major takeaway: The goal . . . was to ensure services to young people between the ages of 18 and 21 who had been in foster care." (In re Jesse S. (2017) 12 Cal.App.5th 611, 617-618.) AB 12 is California's response to the federal Fostering Connections to Success and Increasing Adoptions Act, which required states participating in the federal program to "provide assistance and support in developing a personalized transition plan for all youths before they age out of foster care." (In re K.L. (2012) 210 Cal.App.4th 632, 637.)
As the court explained in In re Nadia G. (2013) 216 Cal.App.4th 1110, the purpose of AB 12 was to assist foster children who were being left to fend for themselves when they turned 18, often without the skills and resources to be selfsupporting. An estimated 45 percent of them became homeless within a year, owing to "poor education, lack of a support system, estrangement from family, lack of marketable skills, poor employment prospects, and lack of community linkages." The Legislature enacted these statutes to "extend transitional foster care services to youth between the ages of 18 and 21." (Id. at pp. 11171118.)
In the declaration attached to her petition, after extolling Richard's virtues as a hard-working student, athlete, boy scout, and volunteer tutor, H.N. made the rather startling prediction that if he did not get funding under AB 12, he might become a criminal.
The juvenile court denied the petition, observing that it did not believe the petition "falls within a provision that the court can grant the request." The minute order indicates that the court adopted SSA's recommendation, which was to deny the petition to reopen dependency because Richard did not fit the criteria for financial assistance pursuant to AB 12.
Richard turned 18 years old in August 2018, while this appeal was pending.
DISCUSSION
I. Mootness
We asked the parties for supplemental briefing on the issue of mootness, that is, whether we could grant the relief Richard requested in light of his turning 18 while the appeal was pending. A question becomes moot when, pending an appeal from a judgment of a trial court, events transpire which prevent the appellate court from granting any effectual relief. (Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863; see Bullis Charter School v. Los Altos School Dist. (2011) 200 Cal.App.4th 1022, 1033 [event occurring during appeal makes relief impossible; appeal moot].)
A guardianship usually terminates "when the ward attains majority." (Prob. Code, § 1600, subd. (a); see also In re Guardianship of McSwain (1917) 176 Cal. 287, 288.) The threshold question for us was whether Richard's turning 18 years old while the appeal was pending rendered the appeal moot. In other words, did Richard's guardianship still exist after he turned 18 so that a juvenile court could make some decision about it? It did.
Family Code section 6501 defines an adult as "an individual who is 18 years of age or older."
Guardianships established under dependency law are handled somewhat differently from Probate Code guardianships. Section 366.4, subdivision (a) provides in pertinent part, "Any minor for whom a guardianship has been established resulting from the selection or implementation of a permanency plan pursuant to Section 366.26, or for whom a related guardianship has been established pursuant to Section 360 . . . is within the jurisdiction of the juvenile court. For those minors, Part 2 (commencing with Section 1500) of Division 4 of the Probate Code, relating to guardianship, shall not apply." Probate Code section 1600, terminating a guardianship when a ward reached majority, appears in Part 2 of Division 4 of the Probate Code and therefore does not apply to minors in the dependency system.
California Rules of Court, rule 5.740(a)(4) provides, "When legal guardianship is granted, the court may continue dependency jurisdiction if it is in the best interest of the child, or the court may terminate dependency jurisdiction and retain jurisdiction over the child as a ward of the guardianship." When the court terminates dependency jurisdiction, review hearings are no longer required. But the court retains jurisdiction in the event some modification is required.
Finally, section 303, subdivision (a), provides, "The court may retain jurisdiction over any person who is found to be a ward or a dependent child of the juvenile court until the ward or dependent child attains 21 years of age."
The court in In re D.R. (2007) 155 Cal.App.4th 480, dealt with circumstances somewhat similar to the ones in this case. In D.R., the guardian petitioned the juvenile court to set aside the order of legal guardianship and to reinstate jurisdiction, which had been terminated when the guardianship was established, so that the ward could get continued support for his mental and educational problems after he turned 18. (Id. at p. 484.) The juvenile court summarily denied the petition when the ward turned 18, stating, "The court cannot reinstate jurisdiction once the child is 18 years or older. [¶] The legal guardianship is terminated when the child turns 18; therefore, I am going to deny the petition." (Id. at p. 485.)
The Court of Appeal reversed, stating, "[The guardian's] petition sought a juvenile court order modifying or setting aside the October 2003 order of legal guardianship and terminating dependency jurisdiction. The petition was filed on November 2, 2006, before [the ward] attained the age of 18, a time when he was within the jurisdiction of the juvenile court under section 366.4. Having jurisdiction over [the ward] and the guardianship at the time the petition was filed on November 2, 2006, the juvenile court did not automatically lose jurisdiction . . . when [the ward] attained the age of 18. Rather, under section 303, the juvenile court had discretion to retain jurisdiction over [the ward] until he attained the age of 21. The exercise of such discretion is warranted when there is a showing of 'existing and reasonably foreseeable future harm to the welfare of the child.' [Citation.] This showing overlaps with the factors governing a right to a full hearing on a section 388 petition." (In re D.R., supra, 155 Cal.App.4th at p. 487.)
Accordingly, the juvenile court did not lose the ability to modify or terminate Richard's guardianship when he turned 18, and the denial of H.N.'s section 388 petition is not moot.
II. Section 388 Petition
Section 388, subdivision (a)(1), provides in pertinent part: "Any parent or other person having an interest in a child who is a dependent child of the juvenile court or a nonminor dependent as defined in subdivision (v) of Section 11400, or the child himself or herself or the nonminor dependent through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court or in which a guardianship was ordered pursuant to Section 360 for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court."
A party petitioning under section 388 must make two showings: changed circumstances warranting a modification of the order and promotion of the child's best interests. (In re J.T. (2014) 228 Cal.App.4th 953, 965; In re Y.M. (2012) 207 Cal.App.4th 892, 912.) We review the juvenile court's decision for abuse of discretion. (In re S.J. (2008) 167 Cal.App.4th 953, 959-960.)
"Not every change in circumstance can justify modification of a prior order. [Citation.] The change in circumstances must relate to the purpose of the order and be such that the modification of the prior order is appropriate. [Citations.] In other words, the problem that initially brought the child within the dependency system must be removed or ameliorated. [Citations.] The change in circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged order. [Citations.]" (In re A.A. (2012) 203 Cal.App.4th 597, 612.)
The record before us in this case indicates that the juvenile court may have gotten ahead of itself when it denied H.N.'s section 388 petition. This is not surprising, as the paperwork and most of the oral argument centered on whether Richard could receive AB 12 funds if the guardianship was terminated and he was placed in foster care. The court focused on what the parties addressed.
But it is not possible to tell the court's reasons for denying the petition from the minute order, and its remarks at the hearing - "I just don't think this falls within a provision that the court can grant the request. [¶] . . . [¶] . . . I just don't believe I have the authority to do that. I don't believe that this falls within what the Legislature is now addressing." - are unclear.
What the court thought it did not have the authority to do, apparently, had something to do with whether Richard could become eligible for AB 12 funding. But that was not the issue. The issue was whether to terminate H.N.'s guardianship and restore dependency jurisdiction over Richard. That decision follows a well-worn path. Did the petitioner show sufficiently changed circumstances to warrant terminating the guardianship and restoring dependency jurisdiction, and would doing so serve his best interest? Eligibility for AB 12 funding was considerably down the road, but it appears that was the issue the parties put before the court.
The court unquestionably had the authority to rule on a section 388 petition.
California Rules of Court, rule 5.740(c)(4) requires a section 388 petition to terminate a guardianship. If the court grants the petition and the court resumes dependency, "the court must order that a new plan be developed to provide stability and permanency to the child."
A court abuses its discretion when it fails to exercise that discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847-848; Dawnel D. v. Superior Court (1999) 74 Cal.App.4th 393, 400, disapproved on other grounds in Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 848.) The record before us suggests that the juvenile court in this case did not consider changed circumstances and Richard's best interest when it denied the section 388 motion to terminate the guardianship. It was, instead, focused on whether AB 12 funding would be available to him. We therefore reverse so the court can make the decision about terminating guardianship with those issues foremost.
After stating that it did not have the authority to do "that," the court segued into a discussion of how Richard might obtain a college education without incurring overwhelming debt, such as going to a junior college for two years before applying to UCLA. It then suggested that Richard could apply for funding when he turned 18. --------
DISPOSITION
The order denying H.N.'s section 388 petition is reversed. The matter is remanded to the juvenile court for a new hearing. At the hearing the court shall consider whether the criteria necessary to grant a section 388 petition exist.
BEDSWORTH, ACTING P. J. WE CONCUR: ARONSON, J. GOETHALS, J.