Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEALS from an order of the Superior Court of Los Angeles County, Marilyn K. Martinez, Commissioner. Los Angeles County Super. Ct. No. CK63101.
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant T.M.
Diane W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant T.G.
Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant M.M.
Kimberly Knill, under appointment by the Court of Appeal, for Minors.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Aleen L. Langton, Senior Deputy County Counsel, for Plaintiff and Respondent.
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
T.M. (“Mother”), mother of N.M. and A.M., T.G., father of N.M., and M.M., father of A.M., appeal from the juvenile court’s order terminating their parental rights after they consented to a guardianship for the children under Welfare and Institutions Code section 360. The Department of Children and Family Services (“DCFS”) concedes that because the juvenile court never declared N.M. and A.M. dependents of the court, it did not have the authority to terminate the appellants’ parental rights. We reverse.
BACKGROUND
A.M. was born to Mother in April 2003. Mother used drugs, was moving between a number of different houses and was sometimes homeless, and in 2005 family friends Mr. and Mrs. G. began to care for A.M. Mother eventually let two-year-old A.M. live with the G.’s beginning around August 2005, and in January 2006 Mother wrote a letter for the G.’s stating, “I am leaving my daughter w/them until I am not homeless and can care for my daughter in a stable home.” The G.’s had requested the letter because they wanted a more formal arrangement regarding A.M.’s care. The G.’s began legal guardianship proceedings and were initially granted temporary guardianship, apparently in probate court.
Mother was incarcerated when she gave birth to her second child, N.M., in April 2006. At the time, the whereabouts of N.M.’s father were unknown, and A.M.’s father was also incarcerated. Mother admitted that she had used drugs during the first months of her pregnancy with N.M. The baby was placed in the G.’s home with his half-sister A.M., and on April 24, 2006, DCFS filed a Welfare and Institutions Code section 300 petition regarding A.M. and N.M. Mother was present at the hearing, and the juvenile court made prima facie detention findings and ordered monitored visitation for Mother.
Unless otherwise specified, all further statutory references are to the Welfare and Institutions Code.
DCFS filed an amended section 300 petition on May 15, 2006 alleging domestic violence by both fathers against Mother, a history of drug use by Mother, convictions and drug use by A.M.’s father, and convictions and alcohol use by N.M.’s father. The petition also alleged that Mother had left the children with an unrelated caregiver without making a plan, that A.M.’s father had failed to provide for A.M., and that Mother and A.M.’s father would be incarcerated beyond the six-month period for family reunification. The petition included a notice that DCFS would seek a no-reunification order. The court found both fathers to be alleged fathers.
N.M.’s father, T.G., appeared on June 27, 2006 and indicated he was not interested in reunification services with N.M. Mother and both fathers appeared on July 26, 2006. Mother and M.M. (both of whom remained incarcerated) waived reunification services with A.M. DCFS recommended that the court proceed under section 360, subdivision (a) and ordered a legal guardianship for both children. The court found N.M. and A.M. to be persons described by section 300, subdivision (g), children whose parents were incarcerated and unable to care for them. Stating “in lieu of adjudicating these children dependents of the court, the matter shall be set for a guardianship hearing” under section 360, subdivision (a), the court continued the matter for a guardianship hearing.
The court stated, “I will make the guardianship findings under 366.26. 360(a), I believe, is simply the vehicle to get to the .26 hearing at this stage of the proceedings.”
On October 10, 2006, the court held a hearing under section 360, subdivision (a), which provides that if the court finds children are persons described under section 300 and the parents advise the court that they do not want reunification services, the court “may, in addition to or in lieu of adjudicating the child a dependent child of the court, order a legal guardianship, appoint a legal guardian, and issue letters of guardianship, if the court determines that a guardianship is in the best interest of the child, provided the parent . . . agree[s] to the guardianship.” None of the parties was present. The court stated that it was not proceeding under section 366.26, which applies to children adjudged dependents under section 360, subdivision (d), but using that format to present the necessary information. Counsel for all three parents indicated that the clients consented to the G.’s becoming A.M.’s and N.M.’s legal guardians. The court noted that Mother and M.M. had waived reunification services and that T.G., who was an alleged father not entitled to reunification services, did not object to not receiving such services. The court found the guardianship was in the children’s best interest and appointed the G.’s the legal guardians of the children. The court terminated jurisdiction.
One year later, in October 2007, DCFS filed a petition under section 388 requesting that the court reinstate jurisdiction and set a hearing under section 366.26 to allow the legal guardians to adopt the children. The court set the hearing for late January 2008 and ordered DCFS to submit a report to address the section 388 petition. On January 2, Mother filed her own section 388 petition, requesting that the court rescind the legal guardianship and order the children returned to her, or at least offer reunification services. Mother represented that she was out of custody, testing clean while on probation, had completed parenting classes, had held a job for three months, and was attempting to visit at least once a month. The court summarily denied Mother’s petition on January 4, 2008.
Instead of a report to address its section 388 petition, on January 31, 2008, DCFS filed a report under section 366.26, recommending that the court terminate parental rights. At the hearing, DCFS reported that the children were attached to the G.’s and had become a part of their family, and the G.’s wanted to adopt the children. T.G. and Mother had visited recently, and Mother had monitored visits at a nearby park about once a month. Mother and T.G. were at the hearing. T.G. requested presumed father status. The court granted DCFS’s section 388 petition, stated its intent to investigate T.G.’s paternity status, and continued the case for a section 366.26 hearing. Mother requested a visitation order, and T.G. joined in. The court declined to order visitation and asked for a progress report from DCFS for February 29, 2008. The court advised the parents of their writ rights, and although T.G. filed a notice of intent to file a writ petition, he did not.
The February 29 DCFS report stated that visits took place every other month and that the maternal relatives were always late, and there had been no contact since the hearing a month ago. There had been no rulings on paternity for either father.
At the hearing on March 13, 2008, Mother and T.G. were present. T.G. requested presumed father status. T.G. claimed that he signed the guardianship papers to give N.M. a stable environment, had been trying to stay involved in his life by visiting (although the guardians had limited his visitation) and was paying child support. T.G. was willing to receive N.M. openly into his home, but had not been able to because N.M. was in a legal guardianship. Counsel for DCFS pointed out that T.G. had been compelled to pay child support and that the guardianship had been ordered by the court without T.G. present. The court again held that T.G. was an alleged father, surmising that T.G. had been represented by counsel, could have requested an alteration of the visitation schedule so that he could receive N.M. into his home, and was apparently only requesting presumed father status now that DCFS had asked the court to order an adoption. The court set a further hearing for May 16. On April 7, 2008, the court issued an order granting monitored visits for T.G. and Mother with both children.
On May 13, 2008, three days before the scheduled hearing, T.G. filed a section 388 petition requesting that he be granted presumed father status and that N.M. be placed in his care, or, in the alternative, family reunification services. He claimed that he did not understand what he was doing when he agreed to guardianship and gave up family reunification, thinking at the time that it was a temporary arrangement until Mother was released from custody. The court denied the petition, noting that it was filed three days before the section 366.26 hearing, the focus now was on permanent placement for N.M., and the petition was filed too late.
The day before the hearing, May 15, Mother filed a section 388 petition, also claiming she thought the legal guardianship was a temporary arrangement for her children’s care and believed that they would automatically be returned to her at her request upon release from prison. She claimed to have turned her life around, and asked to have the children returned to her or, at a minimum, for reunification services. The court denied the petition, because it was filed only one day before the hearing focused on permanent placement, and was too late.
At the hearing on May 16, 2008, all three parents appeared and objected to the termination of their parental rights. (M.M.’s counsel indicated that M.M. did not believe he was A.M.’s father, but that if a DNA test showed that he was the father, he would request family reunification services. M.M. also indicated that he had never met A.M.) The court found by clear and convincing evidence that the children were likely to be adopted, denied both section 388 petitions, and noted that both fathers were alleged only. The court stated, “I order that parental rights over these two children be permanently terminated,” declined to order visitation, and found the children adoptable.
All three parents, Mother, M.M., and T.G., appeal the termination of their parental rights.
ANALYSIS
A crucial determination is missing from the procedural history recited above: the juvenile court never adjudicated either A.M. or N.M. dependents. After initially finding that the children were persons described under section 300, subdivision (g) (children whose custodial parent is incarcerated), the court appointed the G.’s as both children’s legal guardians under section 360, subdivision (a), and terminated its jurisdiction. A year later, DCFS filed a section 388 petition to modify the order, reinstate jurisdiction, and set an adoption hearing. The Department then filed a report not under section 388 but under section 366.26, which deals with termination of parental rights and adoption as a goal for permanent placement.
Section 366.26, subdivision (a) states, “This section applies to children who are adjudged dependent children of the juvenile court pursuant to subdivision (d) of section 360.” The court never made findings adjudging A.M. and N.M. dependent children. Nevertheless, the court proceeded to terminate Mother’s, M.M.’s, and T.G.’s parental rights under section 366.26, although the statute itself requires that the children be declared dependents. Because the children had never been declared dependents, the juvenile court did not have authority to terminate parental rights under section 366.26.
“[D]ependency proceedings in which a child is removed from his or her home typically involve four phases: jurisdiction, disposition, reunification and implementation of a permanent plan if reunification is unsuccessful.” (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 302.) Once the juvenile court has assumed jurisdiction by finding the child is a person described by section 300, the court hears evidence on the proper disposition to be made of the child. (Ibid.) “As an alternative to removing the child from the physical custody of his or her parent and placing the child in the foster care system, section 360 and California Rules of Court, rule 1456(b) [now renumbered rule 5.695] authorize the juvenile court at the disposition hearing to appoint a legal guardian if the parent has advised the court he or she does not wish to receive family maintenance or family reunification services and agrees to the guardianship and the court finds, after consideration of all the evidence . . . that the guardianship is in the child’s best interests.” (In re Summer H. (2006) 139 Cal.App.4th 1315, 1321, fn. omitted.) Section 360 is not a foster care placement statute, but “a parent-driven statute. It is dependent not on the child’s removal from the physical custody of his or her parents and the county’s approval of the placement of the child, but on the parent’s consent to the guardianship and the juvenile court’s determination that the proposed guardianship is in the child’s best interests.” (Ibid.) The court in this case found jurisdiction under section 300, subdivision (g) (incarcerated parent) and, under section 360, reached a disposition appointing the G.’s the legal guardians.
A court may appoint a section 360 guardian “in addition to or in lieu of adjudicating the child a dependent of the court . . . if the court determines that a guardianship is in the best interest of the child, provided the parent . . . agree[s] to the guardianship.” (§ 360, subd. (a), italics added.) Subdivision (a) “was intended to create a new and alternative procedure for appointing a guardian when the parent acknowledges early in the dependency proceedings that he or she cannot . . . provide adequate care for the child.” (In re Summer H., supra, 139 Cal.App.4th at p. 1325.)
In this case, the legal guardianship with the G.’s, initially consented to by Mother as to A.M., was “in lieu of adjudicating the child a dependent of the court.” Mother and both fathers later consented (through counsel) to the G.’s legal guardianship of both N.M. and A.M. But neither N.M. nor A.M. was ever declared a dependent of the court, and placed in DCFS’s care, custody and control with the goal of an appropriate placement. Instead, before proceedings began, Mother chose the G.’s to care for A.M., N.M. later was placed with A.M., and the court found that the guardianship was in the children’s best interests. When DCFS files a section 300 petition in light of the parent’s impending incarceration, the juvenile court need only determine “whether the parent’s plan for his or her child during the parent’s absence is ‘adequate.’” (In re Summer H., supra, 139 Cal.App.4th at p. 1334.) “Similarly, the inquiry for the court pursuant to section 360 is not whether the proposed guardian meets licensing requirements imposed on foster placements, but whether a plan for guardianship either developed or approved by the parent is in the child’s best interests.” (Ibid.) This “give[s] some deference to the parent’s own plan for his or her child at an early stage of the dependency proceedings.” (Id. at p. 1334, fn. 11.)
A section 360 guardianship “more closely resembles one ordered by the probate court than one ordered late in the dependency proceedings pursuant to section 366.26.” (In re Summer H., supra, 139 Cal.App.4th at p. 1332.) The initial guardianship proceedings in this case (before DCFS filed the first section 300 petition) appear to have been in probate court.
Mother chose the G.’s as guardians for A.M., the older child; N.M., born while Mother was incarcerated, joined A.M. after his birth; the court found the guardianship to be in the children’s best interests under section 360 and terminated its jurisdiction. So far, so good. The error occurred when DCFS filed a section 388 request to reopen the case and both the Department and the court proceeded to a permanent placement as if the children had been declared dependents. Once Mother was released from incarceration and filed her section 388 petition, DCFS was required to file a section 300 petition (on a ground other than incarceration of the parent) and obtain a determination that the children were dependents, before the court could rule on the parental rights of Mother, T.G., and M.M.
We conclude that the juvenile court, once it has appointed a section 360 guardian, cannot terminate parental rights and determine the appropriate placement for children when the section 360 guardianship is “in lieu of” declaring the children dependents of the court. All the rulings that followed the reopening of this case in October 2007 proceeded on the false assumption that a section 366.26 hearing was pending and appropriate. Those rulings were without foundation and are reversed.
DISPOSITION
The order is reversed.
We concur: MALLANO, P.J., ROTHSCHILD, J.