Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. JV050095
ORDER MODIFYING OPINION AND DENYING REHEARING
THE COURT:
Marchiano, P.J.
It is ordered that the opinion filed herein on February 21, 2008, be modified as follows:
1. On page 6, in the fourth paragraph, delete “Thus, they” at the beginning of the second sentence and substitute “These statutes” so that the sentence reads:
These statutes were in effect when the .26 report was written and filed with the court, and when the court held the .26 hearing and made the order for legal guardianship.
2. On page 7, in the first full paragraph, delete the third sentence that reads:
The Department presents no compelling authority for this interpretation, which is inconsistent with the plain language of section 361.7 and rule 5.664(i).
3. On page 7, after the first full paragraph, insert the following text as a new paragraph:
Mother did not object to the proposed guardianship and termination of the dependency. But the requirement of section 361.7, subdivision (c), requiring the testimony of a qualified expert witness, is designed to ensure that the evidence before the juvenile court includes the neutral, objective testimony of an expert—in addition to any input from the parents, agency, and tribe—so that it may make a fully informed decision before making any order having the significant result of either a foster care placement or the appointment of a legal guardian. Further, in establishing the guardianship and terminating jurisdiction at the conclusion of the .26 hearing, the court in this case gave the guardian significantly greater autonomy in making decisions for K. L. than a foster parent would have. A guardian is expected to provide for the care, custody, control and education of the children until they reach the age of majority. (See Judicial Council Form JV-350.) With some exceptions, the guardian of a minor has the same authority as a parent having legal custody and may exercise that authority without notice, hearing, or court authorization in the same manner as a parent having legal custody. (See Prob. Code, § 2108, subd. (a).) This is in contrast to a foster parent who would be continuously supervised by the Department and the juvenile court.
4. On page 7, after the last paragraph, insert the following text as a new paragraph:
The decision in this case is limited to its unique facts, in which the proceedings commenced in 2005, before section 361.7, subdivision (c) became effective. The first and only time that guardianship was considered and ordered was in 2007, after the effective date of the provision requiring expert testimony before making an order of either foster care placement or guardianship.
At the end of this new paragraph, insert footnote 5. The text of footnote 5 is as follows:
We express no opinion whether an order of foster care placement, supported by the testimony of a qualified expert witness in compliance with section 361.7, subdivision (c), would obviate the need for such testimony at a later hearing resulting in an order of guardianship.
There is no change in the judgment.
Respondent’s petition for rehearing is denied.