Opinion
B194544
4-24-2007
In re JASMINE R., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. KATHY R., Defendant and Appellant.
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant. Raymond G. Fortner, Jr., County Counsel, and Fred Klink, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appellant Kathy R., the legal guardian of minors Jasmine R. and Angel R., appeals from a dispositional order of the juvenile court in a dependency case. Kathy challenges the juvenile courts denial of family reunification services, on the ground that she was entitled to the protections of Welfare and Institutions Code section 361.5 before reunification services could be denied because the guardianship was established by the probate court before the dependency matter commenced. She is correct. Accordingly, we reverse the dispositional order and remand the matter to the juvenile court for further proceedings.
Further statutory references are to the Welfare and Institutions Code unless otherwise specified.
BACKGROUND
Jasmine R. (born in 2002) and Angel R. (born in 2004) were left in the care of Kathy R., their maternal grandmother, from the time each was born. In March 2006, Kathy was appointed legal guardian of both children by the probate court.
The detention report filed in this case states that Kathy obtained legal guardianship in November 2005, but the letters of guardianship attached to the jurisdiction/disposition report were filed on March 6, 2006.
The children were detained by the Los Angeles County Department of Children and Family Services (the Department) in August 2006, when the Department discovered that the home the children were living in was filthy and hazardous to their health, and that the children were not receiving proper medical or dental care. The Department filed a petition under section 300, alleging counts under subdivisions (b) and (j). At the detention hearing, the juvenile court ordered the children detained in shelter care and ordered a psychological evaluation of Kathy under Evidence Code section 730.
In the jurisdiction/disposition report filed in advance of the next hearing, the Department recommended that the children be declared dependent children of the court and remain placed under the supervision of the Department, and that Kathy be provided reunification services. At that hearing, the juvenile court acknowledged that Kathy had been granted legal guardianship by another court, but noted that "even a probate guardianship can be set aside by this court if the petition is filed. And it is not mandatory to provide reunification services to a legal guardian if I set aside that legal guardianship." The court informed the parties that it was not planning to provide reunification services for Kathy and that it "will be asking the Department to file a legal guardianship set aside." The court, however, did not make such an order. Instead, it ordered the Department to see that Kathy had three consecutive clean random drug tests and continued the jurisdiction/disposition hearing.
The Department filed an interim review report before the continued jurisdiction/disposition hearing in which it once again recommended that Kathy be provided with family reunification services. At the continued hearing, Kathy submitted on the petition. The court sustained the petition, removed the children from Kathys custody, and placed them in the care of the Department. The court then noted that the Department requested that the court order family reunification services for Kathy, but it declined to do so, saying it was not required to under the law. When Kathys counsel tried to be heard on the issue, the court interrupted, saying "I can set aside the legal guardianship, or I cannot set aside the legal guardianship and allow her to get services on her own. Im not setting aside the legal guardianship, and I am not providing reunification services. She can do this on her own and file a 388." The court set a six-month review hearing (§ 366.21, subd. (e)) and ordered the Department to immediately begin looking for a permanent home for the children. Kathy timely filed a notice of appeal from the dispositional order.
Although the reporters transcript shows that the court ordered the Department to immediately begin looking for a permanent home for the children, no such order appears in the minute order from the hearing.
DISCUSSION
Kathy contends the juvenile court improperly denied her reunification services to which she was entitled under section 361.5. The Department did not file a respondents brief on appeal. Instead, it filed a letter with this court stating that it did not oppose Kathys contention on appeal. Kathys contention is correct.
The resolution of the issue in this case rests on a fact about which there is no dispute: Kathy was the childrens legal guardian under the Probate Code at the time the dependency case was initiated. As several courts have found, "there is a distinction between a guardianship established under the Probate Code and a guardianship established in a dependency proceeding as a result of a permanent plan. [Citations.] A guardian appointed by the probate court has greater rights than a guardian appointed under the Welfare and Institutions Code." (In re Merrick V. (2004) 122 Cal.App.4th 235, 249-250; see also In re Carrie W. (2003) 110 Cal.App.4th 746, 758 [a guardian appointed under the Probate Code is treated in many respects as a parent in dependency cases].)
One area in which there is a significant difference between the rights afforded guardians appointed under the Probate Code and those appointed under the Welfare and Institutions Code is in the provision of reunification services. Section 361.5 mandates that reunification services be provided, with certain exceptions, "whenever a child is removed from a parents or guardians custody." (§ 361.5, subd. (a).) Several courts have concluded that the term "guardian" when used in the phrase "parent or guardian" in statutes governing dependency cases refers to guardians appointed under the Probate Code but not to guardians appointed under the Welfare and Institutions Code. (See, e.g., In re Carlos E. (2005) 129 Cal.App.4th 1408, 1420; In re Carrie W., supra, 110 Cal.App.4th at p. 758.) Thus, the requirement that family reunification services be provided upon the removal of a child from a guardians custody does not apply to guardians appointed under the dependency statutes. (In re Carlos E., supra, 129 Cal.App.4th at pp. 1418, 1420.) It does, however, apply to guardians appointed under the Probate Code. (In re Merrick V., supra, 122 Cal.App.4th at p. 250.)
Nevertheless, as the court in In re Merrick V. noted, there are situations in which a guardian appointed under the Probate Code may properly be denied reunification services: when a Probate Code guardianship is terminated under section 728 before the dispositional order is made. (In re Merrick V., supra, 122 Cal.App.4th at p. 253.) In the present case, however, there was no section 728 motion to terminate Kathys guardianship, and the juvenile court expressly declined to terminate the guardianship. Therefore, the court was required to provide family reunification services to Kathy when it ordered the children removed from her custody.
DISPOSITION
The dispositional order denying reunification services to Kathy is reversed.
We concur:
EPSTEIN, P. J.
MANELLA, J.