Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie, Judge. Super.Ct.No. J205715
ORIGINAL PROCEEDING; petition for writ of habeas corpus. Kyle S. Brodie, Judge.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
Andrea R. St. Julian, under appointment by the Court of Appeal, for Minor.
OPINION
McKinster, Acting P.J.
This is an appeal by E.E., the maternal grandmother of J.R., from the trial court’s order terminating her Probate Code guardianship of J.R. The trial court terminated the guardianship after it denied a Welfare and Institutions Code section 387 petition in which the San Bernardino County Department of Children’s Services (hereafter DCS) sought to remove J.R. from E.E.’s custody. E.E. contends in this appeal that when the trial court denied the section 387 petition, it was required to return J.R. to her custody, and DCS should then have been precluded from seeking to terminate her Probate Code guardianship of J.R. Otherwise, E.E. contends, DCS could accomplish through the Probate Code that which it could not accomplish under the Welfare and Institutions Code. We do not share E.E.’s view, for reasons we explain below, and therefore we will affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
E.E. has also filed a petition for writ of habeas corpus in which she alleges she was denied the effective assistance of counsel in the trial court. We conclude the petition fails to allege a prima facie basis for relief and therefore we will deny the writ.
FACTUAL AND PROCEDURAL BACKGROUND
E.E. (hereafter Grandmother) became J.R.’s legal guardian in June 2004 when J.R.’s mother signed a written nomination under Probate Code section 1500 before the mother went to prison. J.R. remained in Grandmother’s custody until January 2006 when DCS filed a section 300 petition with respect to then two-year-old J.R. after Grandmother’s mother contacted DCS and reported that Grandmother left J.R. and J.R.’s teenaged sister (who is not a party to this appeal) with her but she was unable to care for the children, that Grandmother’s whereabouts were unknown, and that J.R.’s mother was in prison. DCS detained J.R. and placed him in foster care with the O. family. In the section 300 petition, DCS alleged among other things that Grandmother had a substance abuse problem that rendered her unable to care for J.R. Following a contested jurisdiction and disposition hearing in March 2006, the trial court, among other things, ordered reunification services for Grandmother and J.R.’s mother.
We will not mention J.R.’s mother again, even though she was involved in the dependency proceeding, because she has filed a separate appeal, case No. E045998, challenging the trial court’s order terminating her parental rights.
At the six-month review hearing in September 2007, the social worker reported among other things that Grandmother had made significant progress in addressing her drug dependency and thus had made significant progress toward reunifying with J.R. The social worker described Grandmother as “a really changed person,” and the trial court followed the social worker’s recommendation and ordered six additional months of reunification services for Grandmother.
In the report prepared for the 12-month review hearing, the social worker recommended that J.R. be placed with Grandmother under a family maintenance plan. The trial court followed that recommendation, and at a hearing on March 12, 2007, ordered that J.R. be returned to Grandmother’s care. J.R. remained with Grandmother until November 13, 2007, when DCS detained J.R. after Grandmother tested positive for marijuana.
As a result of that positive drug test, DCS filed a section 387 supplemental petition on November 15, 2007, in which it sought to remove J.R. from Grandmother’s custody. The trial court detained J.R. at a hearing on November 16, 2007. In the social worker’s report for the contested jurisdiction and disposition hearing on the supplemental petition, the social worker recommended that the trial court grant the section 387 petition, terminate Grandmother’s Probate Code guardianship of J.R., and set a selection and implementation hearing. Consistent with that recommendation, in January 2008, DCS filed a motion under section 728 to terminate Grandmother’s guardianship of J.R. In the meantime, DCS detained J.R. with the O. family, the foster family with whom J.R. had lived before reuniting with Grandmother.
The O. family maintained contact with J.R. after the child returned to live with Grandmother. According to the social worker, J.R. spent one week per month with the O. family and was with the O.’s when DCS made the decision to remove J.R. from Grandmother’s custody. Consequently, DCS did not have to physically detain and remove J.R. from Grandmother’s home.
The trial court conducted a combined hearing on the motion to terminate the guardianship and the section 387 petition on January 15, 2008. Grandmother and the social worker both testified at that hearing. The social worker testified, among other things, that Grandmother denied using marijuana, and when asked to explain the positive drug test, said she had been to a Halloween party at which other people were “using.” According to the social worker, Grandmother said she shouldn’t have been at the party, but she stayed for a short time and then left. Grandmother also said that a prescription blood thinner she takes might cause a false positive for marijuana. The social worker testified that she checked with a “scientist” at the lab that conducted the drug test and he said “the only way [the test] would have been a positive for marijuana would be if there was a prescription for marijuana in capsule form.” The social worker added that she talked with the scientist again “earlier today, and he indicated that the test was run more than once. There was the initial test and a conformation [sic] test. The test was positive for marijuana, either by using the drug or by prescription for marijuana itself.” On cross-examination, the social worker acknowledged that Grandmother takes a prescription drug called Protonix. The social worker then read from a pharmaceutical information sheet about Protonix that said the drug “may affect the results of certain tests. May cause false positives [sic] urine screens for THC.” The social worker acknowledged that Grandmother drug tested again on November 13, 2007, and that test was negative.
In her testimony, Grandmother stated, among other things, that she last smoked marijuana in January 2006. Grandmother denied smoking marijuana in September or October of 2007, and also denied the social worker’s assertion that Grandmother had admitted she smoked marijuana once in November. Grandmother confirmed that Protonix is one of the medications she takes regularly, and when asked her view of why she tested positive for marijuana, Grandmother stated, “I believe it was one of the medications I’m taking.” Grandmother stated that she had been taking Protonix for two years.
On cross-examination, Grandmother acknowledged that she spoke with her social worker outside the courtroom after the detention hearing. In her report of that conversation, the social worker stated Grandmother “‘tried to say that one of her medication[s] would give false positive for THC.’” Grandmother confirmed that she made that statement to the social worker that day. The social worker also stated in the report that Grandmother “‘then changed her story and said that she had only used once.’” Grandmother denied saying that to her social worker. When asked if she said “anything at all that might have been construed by the social worker that you were admitting to using drugs,” Grandmother responded, “I don’t know. What I said to her is I thought it was possibly the blood thinner because it’s a new medication . . . that is causing this problem, and I asked her not to take my grandson from me.”
Grandmother also testified that although she was taking Protonix when she tested positive for marijuana on October 30, she was not taking the medication when she retested on November 13. She stated, “I had stopped taking it, the pain medication and the blood thinner because I felt they were causing me a problem.” Grandmother said she had stopped taking the medication when the social worker told her she “had tested bad.” When the trial court asked if she remembered what date that was, Grandmother said, “It would have had to have been on the 13th of November because I tested the same day all this happened.” The trial court asked Grandmother, “So [the social worker] told you on the phone, and you tested on that day?” Grandmother said, “Right. When she first came out on the first test.” The trial court asked, “You didn’t know until November 13th that you had tested positive?” Grandmother answered, “No. I knew before that.”
In an effort to clarify Grandmother’s testimony, minor’s counsel had Grandmother confirm that she drug tested on October 30, and that test was positive. Grandmother then said she was not sure what the date was when she found out about that positive test, and added, “I had also been out of the medication because I had Medi-Cal, and this particular medication is considered a step therapy. And every time it’s refilled, not every time, but every time the prescription has to be refilled, it takes them four to five days because they have to have a statement from -- my doctor has to contact them and tell them I have to have it.” Counsel asked, “Do you recall when you ran out of your medicine, that particular medicine?” Grandmother replied, “I had been out for about five days.” Counsel then asked, “What day are we talking about?” Grandmother stated, “It was after the 5th . . . [of] November.” Grandmother then confirmed that “sometime around the 5th of November [she was] not taking the Protonix.”
At the conclusion of the hearing, the trial court found “credibility . . . a little tough,” noting that “[t]here are some significant inconsistencies in [Grandmother’s] testimony.” The trial court stated, “I find it somewhat unsettling that . . . first, [Grandmother] testified that she stopped taking the Protonix on the day she was notified she had a positive test, but then when it was brought out again, partly by the Court and partly by questions of Counsel, that that news came the same day as the second test, the date shifted somewhat. Well, the prescription had run out a week earlier, so she had stopped taking it then. I don’t know how much to make of that inconsistency, but it was an inconsistency, and I found that unsettling.” The trial court noted other inconsistencies in Grandmother’s testimony, some of which the court attributed to simple misunderstandings, but then the court stated, “What I do think is a little harder to misunderstand on these facts is the social worker’s report that at page 9, line 18, of the December 7th report -- this is consistent with the social worker’s testimony -- [Grandmother] had admitted to using once, and was asked, ‘Why didn’t you say that earlier?’ And she said, ‘I don’t know.’ That [Grandmother] was shaking physically, and that she was going to the emergency room after she leaves court. That is not something that is as likely to be misunderstood. I just have to say, unless she’s fabricating that completely and making it up -- she would have no motive to lie that I can see -- I don’t know how that isn’t an accurate reflexion [sic] of what happened.”
The trial court found based on the above inconsistencies “that the evidence is there that there was use,” but also found that it was not “clear and convincing evidence” that Grandmother’s drug use put J.R. at risk. Accordingly, the trial court denied the section 387 petition because the court found that DCS had not “shown by clear and convincing evidence that there is a substantial danger to the minor if he were returned home.” The trial court then addressed the motion to terminate the guardianship and found “that the positive test is evidence of marijuana use that has not been reasonably explained by the other evidence before the Court. Particularly, in light of the inconsistencies in the testimony that were mentioned.” Consequently, the trial court found the evidence sufficient to show “by clear and convincing evidence that it is in minor’s best interest to terminate that guardianship at this time.”
DISCUSSION
1.
GRANDMOTHER’S APPEAL
Grandmother contends that when the trial court denied the section 387 petition, it was required to order that J.R. be returned to her custody, and DCS should then have been precluded from seeking termination of her Probate Code guardianship of J.R. Otherwise, Grandmother contends, DCS could accomplish through the Probate Code that which it could not accomplish under the Welfare and Institutions Code. In other words, Grandmother is of the view that section 387 specifies the only means by which DCS could remove J.R from her custody. We do not share Grandmother’s view of the pertinent law.
At the outset, we note that Grandmother did not raise this objection in the trial court. That oversight generally would preclude her from raising the issue on appeal. However, because the facts are not disputed and the issue raises only a question of law, the general rule does not apply. (Hittle v. Santa Barbara County Employees Retirement Assn. (1985) 39 Cal.3d 374, 391, fn. 10.)
It is undisputed that Grandmother had custody of J.R. pursuant to a guardianship of the person established under Probate Code section 1500 et seq. Probate Code section 1601 states that a guardianship of the person may be terminated “[u]pon petition of the guardian, a parent, [or] the ward . . . if the court determines that it is in the ward’s best interest to terminate the guardianship.” (Prob. Code, § 1601.) A guardianship of the person created under the Probate Code may also be terminated by the juvenile court in a section 300 proceeding. Welfare and Institutions Code section 728 states in pertinent part: “(a) The juvenile court may terminate or modify a guardianship of the person of a minor previously established under the Probate Code, or appoint a coguardian or successor guardian of the person of the minor, if the minor is the subject of a petition filed under Section 300, 601, or 602. If the probation officer supervising the minor provides information to the court regarding the minor’s present circumstances and makes a recommendation to the court regarding a motion to terminate or modify a guardianship established in any county under the Probate Code . . . of the person of a minor who is before the juvenile court under a petition filed under Section 300, 601, or 602, the court shall order the appropriate county department, or the district attorney or county counsel, to file the recommended motion. The motion may also be made by the guardian or the minor’s attorney. The hearing on the motion may be held simultaneously with any regularly scheduled hearing held in proceedings to declare the minor a dependent child or ward of the court, or at any subsequent hearing concerning the dependent child or ward.”
As recounted above, DCS filed the requisite motion to terminate Grandmother’s guardianship. The trial court granted that motion and thereby terminated Grandmother’s Probate Code guardianship of J.R. under the authority of Welfare and Institutions Code section 728, and in accordance with Probate Code section 1601 after finding by clear and convincing evidence that it is in J.R.’s best interest to terminate the guardianship of the person. Although the trial court’s action does circumvent Welfare and Institutions Code section 387, as Grandmother contends, DCS was not required to comply with that section in order to remove J.R. from Grandmother’s custody. Her contrary claim notwithstanding, the trial court did not deprive Grandmother of any rights—she was accorded all the rights to which she was entitled as a guardian of the person appointed under the Probate Code, i.e., notice of the hearing to terminate the guardianship and an opportunity to be heard. (See In re Merrick V. (2004) 122 Cal.App.4th 235, 250, which notes that although a guardian appointed under the Probate Code has greater rights than one appointed under a permanent plan adopted under the Welfare and Institutions Code, Welfare and Institutions Code section 728 establishes the procedure for terminating a Probate Code guardianship of the person in a Welfare and Institutions Code section 300 proceeding.)
In concluding that the trial court properly terminated Grandmother’s guardianship of J.R., we reject the argument raised by counsel for J.R. that Grandmother’s guardianship had terminated by operation of law before the juvenile court terminated the guardianship and therefore Grandmother’s appeal is moot. The argument is incorrect. Counsel for J.R. bases the argument that the appeal is moot on the fact that Grandmother’s letters of guardianship stated among other things that they “expire one year from the date of issuance.” Counsel for J.R. notes that the last letters of guardianship issued in 2006, and purportedly expired in 2007. Therefore, counsel for J.R. argues the Grandmother’s guardianship terminated by operation of law in 2007.
Minor’s counsel states that the last letters of guardianship expired in June 2007. The record on appeal includes letters of guardianship that were issued in June 2004 and expired in 2005, and two copies of letters of guardianship that were issued in June 2005, and therefore expired in June 2006. No other letters of guardianship are included in the record on appeal.
A guardianship of the person terminates by operation of law when the minor is adopted, emancipated, reaches majority, or dies. (Prob. Code, § 1600.) Otherwise, a guardianship of the person continues until terminated under Probate Code section 1601. Grandmother’s letters of guardianship include not only the above quoted language regarding expiration of the letters of guardianship, but also state that the “guardianship will continue until terminated pursuant to Probate Code section 1600.01.” We assume the section reference is a typographical error because the Probate Code does not include a section numbered 1600.01, but does include a section numbered 1601, and that section, as discussed above, pertains to termination of guardianships. Letters of guardianship expire in temporary guardianships. (See Prob. Code, §§ 2250, 2251.) However, nowhere in the record is there any evidence to suggest that Grandmother’s guardianship of J.R. was temporary. In fact, as previously noted, J.R.’s mother nominated Grandmother as the guardian of J.R. in accordance with Probate Code section 1500. Moreover, Grandmother’s letters of guardianship are printed on Judicial Council form GC-250 entitled “Letters of Guardianship.” There is a separate Judicial Council form for temporary letters of guardianship (GC-150, entitled “Letters of Temporary Guardianship or Conservatorship”).
Based on the foregoing, we conclude that Grandmother’s guardianship of J.R. was not temporary, and therefore the expiration provision included in the letters of guardianship had no force or effect. Therefore, the guardianship had not expired by operation of law before the trial court terminated the guardianship, and Grandmother’s appeal is not moot. However, we conclude the appeal is meritless.
2.
GRANDMOTHER’S PETITION FOR WRIT OF HABEAS CORPUS
In her petition for writ of habeas corpus Grandmother alleges that she was denied the effective assistance of counsel. The legal principles that govern our review of these allegations are well settled. First, “[w]e presume the regularity of proceedings that resulted in a final judgment [citation],” and place the burden on defendant to plead sufficient grounds for relief. (People v. Duvall (1995) 9 Cal.4th 464, 474.) We will only issue an order to show cause if the factual allegations of the petition, taken as true, establish a prima facie case for relief. (Id. at p. 475.) To establish a prima facie basis for relief based on ineffective assistance of counsel, Grandmother’s petition must allege facts that show “counsel failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of juvenile dependency law. . . . [Citations.]” (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668, citing among other cases People v. Pope (1979) 23 Cal.3d 412, 425, and People v. Fosselman (1983) 33 Cal.3d 572, 581.) In addition, Grandmother must allege facts that “demonstrate that it is ‘reasonably probable that a result more favorable to [her] would have been reached in the absence of the error.’ [Citation.]” (In re Kristin H., supra, at p. 1668.)
The factual allegations in Grandmother’s writ petition are directed at showing that her trial attorney did not: (1) adequately investigate the possibility that the prescription medication Protonix caused Grandmother’s October 30 drug test to be positive for marijuana; (2) call witnesses to verify Grandmother’s account of the Halloween party, which would have refuted the social worker’s characterization and bolstered Grandmother’s credibility; and (3) object to hearsay evidence contained in the social worker’s report and introduced at the hearing regarding whether prescription medication could have caused Grandmother’s drug test to be positive for marijuana.
We do not share Grandmother’s view that trial counsel’s performance was deficient in any of the ways alleged in the writ petition. However, even if we were to agree, Grandmother has not, and in our view cannot, allege facts that demonstrate that the purported deficient performance was prejudicial in that absent that performance, it is reasonably probable the trial court would have reached a result more favorable to Grandmother. (In re Kristin H., supra, 46 Cal.App.4th at p. 1668.)
The evidence recounted above in our discussion of Grandmother’s issues on appeal, demonstrates that the trial court knew Grandmother had been taking a medication that could cause a false positive result for marijuana (or THC) in a urine drug test. The trial court also acknowledged that the social worker’s account of Grandmother’s statement regarding the Halloween party could have been the result of a misunderstanding. The dispositive fact on the marijuana use issue for the trial court was the social worker’s statement that outside court after the detention hearing, Grandmother admitted that she had used marijuana one time. Because the trial court could not conceive of a reason that the social worker would make up that statement, the trial court believed the social worker and found that the evidence was sufficient to show Grandmother’s positive drug test was the result of marijuana use. The trial court terminated Grandmother’s guardianship of J.R. based not only on that fact, but also on the fact that J.R. had a close connection to the O. family, with whom he had been living since Grandmother’s positive drug test result and with whom he had lived for the year Grandmother was working on her reunification plan.
Grandmother’s allegations in her writ petition do not address the above noted aspects of the trial court’s factual determinations. Therefore, Grandmother has not demonstrated that but for the purported deficient performance of trial counsel, the trial court would have found that it was in J.R.’s best interest to remain a ward of Grandmother under the Probate Code guardianship. In short, Grandmother has not demonstrated prejudice and therefore has not made a prima facie showing in her writ petition that she was denied the effective assistance of counsel in the trial court. Accordingly, we must deny the petition for writ of habeas corpus.
DISPOSITION
The order terminating Grandmother’s guardianship of J.R. is affirmed. The petition for writ of habeas corpus is denied.
We concur: Richli, J., King, J.