Opinion
2d Juv. No. B194680
4-24-2007
In re JOSEPH A., a Person Coming Under the Juvenile Court Law. VENTURA COUNTY HUMAN SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. LISA G., Defendant and Appellant.
Lee Gulliver, under appointment by the Court of Appeal, for Appellant. Noel A. Klebaum, County Counsel, County of Ventura and Oliver G. Hess, Assistant County Counsel.
NOT TO BE PUBLISHED
Lisa G. appeals from a juvenile court order terminating parental rights to her son, Joseph A., and establishing adoption as the permanent plan. (Welf. & Inst. Code, § 366.26, subd. (c)(1).) Appellant claims that the juvenile court lacked subject matter jurisdiction because the trial judge, while sitting on a probate calendar, granted temporary guardianship to the maternal grandmother. We affirm. The juvenile court order declaring Joseph a dependent of the court superseded the temporary guardianship order. (§ 304; In re William T. (1985) 172 Cal.App.3d 790, 797.)
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
Facts and Procedural History
On April 19, 2005, Ventura County Protective Services Agency (PSSA) detained Joseph, a newborn infant, after he tested positive for marijuana. Appellant admitted using drugs before Josephs birth. Joseph remained in the hospital where he was monitored for drug withdrawal symptoms.
The maternal grandmother, Mary P., told a social worker that appellant had a lengthy drug history and "is a drug addict and a liar." Criminal charges were pending against appellant for being under the influence of a controlled substance and two counts of willful cruelty to a child.
PSSA filed a dependency petition alleging that appellant and the biological father were unable to care for Joseph. (§ 300, subd. (b).) Josephs father had a long history of substance abuse including two drug related convictions and a recent arrest for being under the influence and violating parole.
On April 22, 2005, the same day the dependency petition was filed, the maternal grandmother filed a petition for temporary guardianship of Joseph and his two older brothers, Jesus A. (age 14) and Joshua A. (age 8). (In re Jesus A. et al., Ventura County Sup. Ct., Case No. P079018.) On April 25, 2005, Superior Court Judge Charles W. Campbell, Jr. signed an order appointing grandmother temporary guardian.
Appellant and grandmother attended the detention hearing on the section 300 petition later that morning. Judge Campbell advised counsel that grandmother "attempted to file [a guardianship petition] on all three, but was told that since the Agency has custody of Joseph, that she could only have guardianship of the first two [children], and I think the Agency, at this point, is evaluating placement depending on what the mother does . . . ."
Appellant denied the allegations in the petition and requested that Joseph be placed with the grandmother to keep the children together. Appellant argued that Joseph could "go with the grandmother as part of the guardianship. That actually eliminates the need for a dependency case, because its up to the mother and the guardian [i.e., the maternal grandmother] to work out problems that may or may not exist."
Judge Campbell ordered Joseph detained and set the matter for a jurisdiction/disposition hearing.
PSSA recommended that Joseph be declared a dependent of the court. The jurisdiction/disposition report noted that appellant had not entered a drug treatment program or contacted PSSA.
At the May 23, 2005 jurisdiction and disposition hearing, Judge Campbell advised grandmother that Joseph was not subject to the temporary guardianship order because PSSA had already taken jurisdiction of the minor. Appellant submitted on the PSSA report. Judge Campbell sustained the section 300 petition, declared Joseph a dependent of the court, and ordered reunification services and visitation.
At the six month review hearing, PSSA reported that Joseph had been placed with the maternal grandparents and that appellant was awaiting trial on criminal charges for willful cruelty to a child and use of drugs. The case worker reported that appellant had missed supervised visits, did not return phone calls, and was not following the case plan.
The trial court terminated reunification services on December 13, 2005, and set the matter for a section 366.26 hearing.
Appellant filed a section 388 petition to reinstate reunification services. PSSA reported that appellant did not have a current address or phone number and had been expelled from the Casa Latina residential drug treatment program for abusing prescribed medication.
The trial court denied the section 388 petition, finding no significant change of circumstances and that further services were not in Josephs best interests. Proceeding with the section 366.26 hearing, it found that Joseph was adoptable and terminated parental rights. (§ 366.26.)
Juvenile Court Jurisdiction
Appellant contends that the juvenile court lacked jurisdiction to terminate parental rights because the maternal grandmother was appointed temporary guardian on April 25, 2005. The argument is without merit.
A superior court may decide child custody issues under the Family Code (Fam. Code, § 3020 et seq.), the Probate Code (Prob. Code, § 1500, et seq.), or in a dependency proceeding (§ 300 et seq.). The juvenile court, however, has paramount and exclusive jurisdiction in child dependency matters. (10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent & Child, § 520, p. 637; Hogoboom & King, Cal. Practice Law Family Law (Rutter 2006) ¶ 3:24, p. 3-16.)
Section 304 states in pertinent part: "After a petition has been filed pursuant to Section 311, and until the time that the petition is dismissed or dependency is terminated, no other division of any superior court may hear proceedings pursuant to Part 2 (commencing with Section 3020) of Division 8 of the Family Code regarding the custody of the child or proceedings under Part 2 (commencing with Section 1500) of Division 4 of the Probate Code, except as otherwise authorized in this code, regarding the establishment of a guardianship for the child. While the child is under the jurisdiction of the juvenile court all issues regarding his or her custody shall be heard by the juvenile court." (Emphasis added.)
PSSA filed the dependency petition on April 22, 2005, three days before grandmother was appointed temporary guardian. The dependency petition established priority of jurisdiction because Joseph was already in protective custody. (§ 304; Cal. Rules of Court, rule 5.620, subd. (a); [formerly Cal. Rules of Court, rule 1429.1(a)].) "After a dependency petition has been filed and until the petition is dismissed or the dependency is terminated, no other division of a superior court may hear proceedings regarding the custody or guardianship of the child." (10 Witkin, Summary of Cal. Law, supra, Parent & Child, § 520, p. 637.)
Appellant claims that a PSSA worker advised grandmother to file the guardianship petition on behalf of all three children to keep the children together.
We conclude that the order declaring Joseph a dependent of the juvenile court superseded the temporary guardianship order. (In re William T., supra, 172 Cal.App.3d at p. 797.) "[W]hen the juvenile court, acting under the doctrine of parens patriae, acquires jurisdiction and properly assumes custody of the minor, its jurisdiction is paramount even if acquired later in time. [W]hen a juvenile court has adjudged an infant to be its ward then the orders of that court concerning the physical custody, control and care of its ward supersede for so long as necessary any existing orders of other courts made in custodial matters which conflict therewith . . . . [Citation.]" (Ibid.; see In re Travis C. (1991) 233 Cal.App.3d 492, 502 ["first in time" rule does not apply to dependency matters].)
We have taken judicial notice of the April 25, 2005 temporary guardianship order and letters of temporary guardianship which state that the letters expired on July 22, 2005. (Prob. Code, § 2251.) Appellants parental rights were terminated in the dependency proceeding on August 24, 2006, a year later.
Here the juvenile court had paramount jurisdiction to adjudicate custody and dependency notwithstanding the temporary guardianship order. (In re William T., supra, 172 Cal.App.3d at p. 797; In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1469; Hogoboom & King, Cal. Practice Guide Family Law, supra, ¶ 7:60, p. 7-15.) "Quite obviously, prior consideration of the custody of a minor by a family law [or probate] court cannot deprive a juvenile court of jurisdiction to make orders to protect the minor. [Citations.]" (In re Benjamin D., supra, 227 Cal.App.3d at p. 1469.)
Clerical Error
At the May 23, 2005 jurisdiction and disposition hearing, Judge Campbell advised grandmother that "Joseph is not part of the temporary guardianship. If his name was written in, that was a mistake, because hes under the jurisdiction of Childrens Services. If they [PSSA] decide to place him with [you], thats up to them, but . . . they have custody of him. You have the two older children in the temporary guardianship."
Appellant did not object and is estopped from arguing that the trial court lacked jurisdiction to declare Joseph a dependent of the court. It is settled that a trial court has the inherent power to correct clerical errors in its orders. (Code Civ. Proc., § 473; Estate of Goldberg (1938) 10 Cal.2d 709, 713-714; Bastajian v. Brown (1941) 19 Cal.2d 209, 214.) Where "the trial judge through inadvertence or mistake makes or signs an order . . . different from that which he intended, he may correct this error as readily as that of the clerk in entering a judgment. [Citations.]" (7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 71, p. 599.)
Here the correction was clerical in nature to reflect that grandmother was not Josephs temporary guardian. (See e.g., Gravert v. DeLuse (1970) 6 Cal.App.3d 576, 581 [correction of dependency order erroneously naming childs father].) Assuming, arguendo, that grandmother was appointed temporary guardian on April 25, 2005, the order was superseded by the dependency order entered later that morning. (§ 304; In re William T., supra, 172 Cal.App.3d at p. 797.)
Appellants remaining arguments have been considered and merit no further discussion.
The judgment (order terminating parental rights and finding Joseph adoptable) is affirmed.
We concur:
COFFEE, J.
PERREN, J.