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B.H. v. Superior Court of Kern Cnty.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 31, 2012
F063714 (Cal. Ct. App. Jan. 31, 2012)

Opinion

F063714 Super. Ct. No. JD125524-00 F063715

01-31-2012

B.H., Petitioner, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent; KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Real Party in Interest. K.M., Petitioner, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent; KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Real Party in Interest.

Robert Alan Kronick for Petitioner B.H. David G. Duket for Petitioner K.M. Theresa A. Goldner, County Counsel, and Jennifer E. Feige, Deputy County Counsel, for Real Party in Interest.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION


THE COURT

Before Cornell, Acting P.J., Gomes, J. and Detjen, J.

ORIGINAL PROCEEDINGS; petitions for extraordinary writ review. Louie L. Vega, Commissioner.

Robert Alan Kronick for Petitioner B.H.

David G. Duket for Petitioner K.M.

No appearance for Respondent.

Theresa A. Goldner, County Counsel, and Jennifer E. Feige, Deputy County Counsel, for Real Party in Interest.

B.H. (father) and K.M. (mother) seek an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court's order setting a Welfare and Institutions Code section 366.26 hearing as to their 13-month-old son N. The challenged order was issued at a contested hearing on a petition filed pursuant to section 388 by N.'s legal guardians. We deny the petition.

We consolidated the writ petitions on our own motion.

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
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FACTUAL AND PROCEDURAL SUMMARY

B.H. and K.M. are the parents of N., the subject of these writ proceedings. B.H. and K.M. are illiterate and suffer from mental illness.

B.H. and K.M. began their relationship in August 2009. They both have children from previous relationships who are no longer in their care. K.M.'s two minor daughters were taken into protective custody, one in 2008 and the other in 2009 because of her mental illness, domestic violence and substance abuse. In both cases, K.M. was provided six months of reunification services but did not complete her programs. K.M.'s parental rights were terminated as to one daughter and the other daughter was returned to her father's custody.

B.H. has three minor children who were taken into protective custody in August 2008 because one of the children was found restrained in a high chair with nylon rope, wire cable and belts. B.H. claimed the child's mother restrained her but that he took the blame. The juvenile court provided B.H. reunification services, including parenting instruction, individual therapy and guided visitation. In September 2010, two of the children were placed in legal guardianship with a paternal cousin and the other child was placed in a foster home for special needs children.

The instant dependency proceedings were initiated in November 2010, when K.M. gave birth to N. The Kern County Department of Human Services (department) received information that K.M. delivered a child, that she had substance abuse and mental health problems and that she and B.H. previously failed to reunify.

The department took N. into protective custody at the hospital and a social worker interviewed B.H. and K.M. B.H. stated that he completed a parenting program and a mental health evaluation but did not require mental health services. He said he planned to regain custody of his children that were in legal guardianship. K.M. told the social worker that she completed parenting classes but was unable to complete domestic violence classes because there was limited space. She said she was receiving mental health treatment and would participate in substance abuse treatment if necessary.

The department filed a dependency petition on N.'s behalf alleging in two counts, pursuant to section 300, subdivision (b) (failure to protect), that K.M.'s substance abuse and mental illness placed N. at a substantial risk of harm. In support of the subdivision (b) counts, the department alleged facts dating back to August 2008 when she was pregnant with one of her daughters. The petition also alleged two counts under subdivision (j) (abuse of sibling) alleging K.M. failed to complete reunification services in the cases of her two daughters, thus placing N. at risk of harm.

In December 2010, the juvenile court conducted the detention hearing. B.H. and K.M. appeared with counsel and agreed to drug test. The court ordered N. detained and ordered weekly supervised visitation.

In February 2011, the juvenile court conducted a contested jurisdictional hearing. After hearing testimony from the social worker who prepared the dependency petition, the juvenile court dismissed the section 300, subdivision (b) allegations as unfounded and adjudged N. a dependent pursuant to section 300, subdivision (j). The court set the matter for disposition.

In April 2011, the juvenile court convened the dispositional hearing and was informed by K.M.'s attorney that K.M. and B.H. were willing to waive reunification services if N. was placed with his relative, Kimberly L., under legal guardianship. The juvenile court accepted their waivers, denied them reunification services (§ 361.5, subd. (b)(14)) and appointed Kimberly as N.'s legal guardian pursuant to section 360, subdivision (a). The juvenile court also terminated its dependency jurisdiction but retained jurisdiction over N. as a ward of the juvenile court. (§ 366.3, subd. (a) & 366.4, subd. (a).) At a subsequent hearing in April, the juvenile court also appointed James L., Kimberly's husband, as N.'s legal guardian.

In May 2011, the attorney for James and Kimberly filed a "Request to Change Court Order" (form JV-180) pursuant to section 388 (hereafter "section 388 petition") advising the juvenile court they wanted to adopt N. and asking the court to set a section 366.26 hearing. In their petition, James and Kimberly (hereafter "guardians") stated, in essence, that B.H. and K.M. sought to change N.'s custody status. The guardians believed adoption would resolve the situation and provide N. permanence and stability.

In late May 2011, the juvenile court denied the guardians' section 388 petition, finding it did not state new evidence or a change in circumstances.

In October 2011, the guardians filed a second section 388 petition, again asking the juvenile court to set a section 366.26 hearing to consider a permanent plan of adoption. The guardians advised the juvenile court that ongoing battles over custody persisted between the guardians and N.'s parents. The guardians also informed the juvenile court that there were "ongoing reports of family violence, non-compliance with psychotropic medication by [K.M.] and erratic visitation ...."

In November 2011, the attorneys for B.H. and K.M. filed section 388 petitions on their behalf asking the juvenile court to terminate the guardianship and return N. to their custody. They stated that they agreed to the guardianship with the guardians on the guardians' promise to maintain their relationship with N. until they could resume custody of him and to avoid a court ruling denying them reunification services and ordering N. placed for adoption. They also stated in the petition that K.M. substantially completed her initial case plan, that they had improved their lives and they believed N. was very bonded to them.

The juvenile court set a hearing on the section 388 petitions for November 2011. Meanwhile, the department filed a supplemental report for the hearing, recommending the juvenile court set a section 366.26 hearing.

In November 2011, the juvenile court convened the hearing on the section 388 petitions. The court reinstated dependency, granted the guardians' section 388 petition and set a section 366.26 hearing for March 2012. The court continued the matter of B.H. and K.M.'s section 388 petitions for two weeks for a hearing in late November 2011. This petition ensued.

DISCUSSION

I. Legal Guardianship

Petitioners contend that a dependency guardianship is like a probate guardianship, which requires, under section 1516.5, subdivision (a)(2) of the Probate Code, that the child be in guardianship for two years before parental rights are terminated. Since N. had not been in guardianship for two years, they further contend, the juvenile court erred in setting a section 366.26 hearing to consider termination of parental rights. We disagree.

In California, there are two types of guardianship pertaining to minor children; a guardianship established in probate or family court pursuant to Probate Code, section 1500 et seq. and a guardianship created in juvenile dependency proceedings pursuant to the Welfare and Institutions Code as a result of a permanent plan. (§ 366.4, subd. (a).) We will refer to the latter as a "dependency guardianship."

A dependency guardianship can be established as early as the dispositional hearing pursuant to section 360 where, as here, the parent has advised the juvenile court that the parent is not interested in family maintenance or family reunification services, the parent agrees to the guardianship and the juvenile court determines that guardianship is in the best interest of the child. (§ 300, subd. (a).)

Petitioners' contention that the time requirements of the probate guardianship pertain to dependency guardianships is groundless in several fundamental aspects. First, probate and dependency guardianships are significantly different in ways we need not discuss in this case. (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1122.) Further, the probate code section to which petitioners refer, i.e. section 1516.5, subdivision (a)(2), pertains to freeing a child under probate guardianship from custody and control of one or both parents. It explicitly states that it does not apply to dependents of the juvenile court. (Prob. Code, § 1516.5, subd. (d).) Consequently, it has no bearing on the propriety of setting a section 366.26 hearing to re-evaluate guardianship as the appropriate permanent plan.

Moreover, section 366.3, which governs the dependency guardianship, provides, in part: "If, following the establishment of a legal guardianship, the county welfare department becomes aware of changed circumstances that indicate adoption ... may be an appropriate plan for the child, the department shall so notify the court. The court may . order that a hearing be held pursuant to Section 366.26 to determine whether adoption or continued legal guardianship is the most appropriate plan for the child. (§ 366.3, subd. (c).) Here, once the juvenile court became aware that the guardians wanted to adopt N., it properly set a section 366.26 hearing to consider adoption as a permanent plan in accordance with section 366.3, subdivision (c).

II. Section 388 Petition

Petitioners contend that the juvenile court erred in not dismissing the guardians' section 388 petition as facially inadequate. Alternatively, they contend the court erred in not conducting an evidentiary hearing before ruling on the petition. We disagree.

Dependency guardianship is subject to termination upon the filing of a petition pursuant to section 388, which provides that, "[a]ny parent or other person having an interest in a child who is a dependent child of the juvenile court ... 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 . for a hearing to change, modify, or set aside any order of court previously made ...."

A petition under section 388 must be made on form JV-180. (Cal. Rules of Court, rule 5.570(b).) The petition must contain a concise statement of any change of circumstance or new evidence that requires changing the order and must be liberally construed. (Rule 5.570(a) & (a)(7).) If it appears that the best interest of the child may be promoted by the proposed change of order, the juvenile court may grant the petition. (Rule 5.570(e)(2).)

Petitioners first contend that the guardians' section 388 petition was defective because it was signed by their attorney rather than by them. They fail, however, to show that the signature of the moving party is required or that the signature of the attorney renders the petition defective. Indeed, all of the section 388 petitions contained in the appellate record, including those of the petitioners, were signed by attorneys.

Petitioners further contend that the guardians failed to show a change of circumstances by not alleging specific facts or providing supporting documentation. We conclude the guardians' express interest in adoption alone constituted a change of circumstances and warranted considering their petition.

Finally, petitioners contend the juvenile court was required to conduct an evidentiary hearing on the guardians' section 388 petition prior to setting the section 366.26 hearing. Petitioners, however, cite no authority for such a proposition and we are unaware of any authority that dictates such a procedural requirement. Rather, section 366.3, subdivision (c), the governing statute, makes no mention of a separate evidentiary hearing. Further, the mandatory preference for adoption over legal guardianship (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882) is furthered by construing section 366.3, subdivision (c), to permit the juvenile court to readily schedule a section 366.26 hearing to determine whether adoption may be a more appropriate plan for the minor. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1107.) We find no errors.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.


Summaries of

B.H. v. Superior Court of Kern Cnty.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 31, 2012
F063714 (Cal. Ct. App. Jan. 31, 2012)
Case details for

B.H. v. Superior Court of Kern Cnty.

Case Details

Full title:B.H., Petitioner, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent; KERN…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jan 31, 2012

Citations

F063714 (Cal. Ct. App. Jan. 31, 2012)