Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court No. CK75959 of Los Angeles County, Donna Levin, Juvenile Court Referee. Affirmed.
Gustavo A. Barcena for Defendant and Appellant.
Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, and Melinda S. White-Svec, Deputy County Counsel, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Debra V. appeals from an order terminating her legal guardianship of Sydney V. and dismissing the petition filed against her pursuant to Welfare and Institutions Code section 300 (section 300). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2001, when she was 19 years old, Brianna V. (Mother) gave birth to her daughter, Sydney V. Mother had been a dependent child from April 1995 to December 1996 and from December 1998 to June 2000, due to the physical and emotional abuse she suffered from her own mother, Debra V. (Grandmother). Mother became a dependent child as the result of reporting that Grandmother had failed to protect her from sexual abuse by her grandfather. In the course of Mother’s own dependency proceedings, she reported that Grandmother was alcoholic, physically and emotionally abusive, and had, on at least one occasion, had inappropriate sexual contact with her.
In April 1998, Grandmother was convicted of driving under the influence of alcohol and assault and sentenced to three years probation. In March 1999, Grandmother was convicted of reckless driving and willful cruelty to a child. She was sentenced to 120 days in jail with four years probation for child cruelty and four years probation for reckless driving. Several years prior, in 1983, Grandmother was convicted of assault on a custodial officer, with 24 months probation, and hit and run, with 36 months probation.
Mother had a substance abuse problem which had continued since she was 14 or 15 years old. Sydney’s father, Jose A. (Father), was convicted of first degree murder in 2000 and incarcerated in Pelican Bay Prison.
On April 19, 2004, Grandmother filed a petition for appointment as legal guardian of Sydney in probate court in Los Angeles County. As part of the pleadings, she filed a required form declaration, which she signed as of April 16. Grandmother answered “No” to a question asking whether she had ever abused alcohol. She also answered “No” when asked if she had been charged with, arrested for, or convicted of a crime involving alcohol. Mother and Father consented to the guardianship. On June 9, 2004, Grandmother was appointed as Sydney’s legal guardian and letters of guardianship were issued.
In May 2004, Grandmother petitioned to have her criminal record expunged. The petition was granted on June 30, 2004.
Sydney came to the attention of the Department of Children and Family Services (DCFS) as a result of an emergency response referral received in November 2008. According to the referral report, on the previous day, Mother had given birth to a baby boy. Her related toxicology screening results were positive for a drug found in Valium and Vicodin, and she stated she had a past history of drug use including use of methamphetamine.
Based upon the investigation regarding Sydney, on January 16, 2009, DCFS filed a petition against Grandmother pursuant to section 300, subdivision (b). DCFS alleged that Sydney was at substantial risk of harm, in that Grandmother had withheld her extensive criminal history, including her convictions for child cruelty, assault and driving under the influence of alcohol, from the probate court in the guardianship proceedings in which Grandmother had been appointed Sydney’s legal guardian. DCFS also included information about the dependency proceedings in which Mother had been removed from Grandmother’s custody due to Grandmother’s alcoholism, physical and emotional abuse of Mother, and role in the sexual abuse of Mother. The children’s social worker (CSW) stated that Grandmother had concealed Sydney from Mother during the four and a half years since her guardianship was granted, and Mother did not know where Sydney and Grandmother lived. In its addendum report also filed January 16, DCFS stated that when its CSW asked Sydney if she wanted to go back with Grandmother, Sydney said she did not want to return. The foster parent told the CSW that Sydney had adjusted well to the foster home, did not appear to want to go back with Grandmother and had said that Grandmother “spanks” her.
At the January 16 detention hearing, the juvenile court ordered Sydney to be detained from Grandmother’s custody. Sydney remained in foster care under DCFS supervision. The court granted Grandmother monitored visitation at least three times per week for three hours each visit. The court also stated that Grandmother’s guardianship might be void on its face, based on her failure to declare she had criminal convictions and was an alcohol abuser. At the court’s request, DCFS’s attorney agreed to provide briefing on the issue. The primary issues addressed in the subsequent briefing were Grandmother’s untruthful declaration and improper notice to Father as constituting extrinsic fraud rendering the guardianship void.
Mother and Father were also parties to the juvenile court proceedings pursuant to a separate section 300 petition filed against them. They are not parties to this appeal. Because only Grandmother is a party to this appeal, the factual and procedural background given here is largely limited to her involvement.
Grandmother submitted briefing in opposition to setting aside the guardianship. In her supporting declaration, Grandmother denied Mother was ever abused by her grandfather or by Grandmother. Grandmother stated that she had been Sydney’s primary caretaker since birth, due to Mother’s problems related to her drug use. She explained that she petitioned for guardianship and Mother nominated her as guardian because they both did not want Sydney to end up in foster care. She stated that, at that time, she had believed that her criminal convictions had been expunged and were no longer part of her record.
Prior to Grandmother’s filing her opposition to DCFS’s motion to set aside her guardianship, in its February 2009 jurisdiction and disposition report, DCFS stated that Sydney told the CSW that Grandmother was “very nice but gets really mad” sometimes, and had spanked Sydney more than twice by swatting on her “behind” with an open hand. Sydney reported to the CSW that Grandmother sometimes drinks margaritas, but her behavior does not change as a result. According to Sydney, she had lived with Grandmother since she was a baby. Mother told the CSW that she had known Grandmother was “drunk and abusive” by the time she was 12, but when she realized she was unable to care for Sydney due to her own drug problem, she consented to the guardianship anyway. At the February 20, 2009 hearing, DCFS requested the court to determine the validity of the guardianship. The court continued the hearing in order to first obtain the probate court file regarding the guardianship.
In its supplemental report dated March 13, 2009, DCFS reported that Grandmother told the CSW that her first Team Decision Making meeting was a waste of time and she did not want to participate in the March 5 meeting. Mother stated she wanted to reunite with Sydney, but the CSW believed that unless the guardianship was rescinded, efforts to reunite them would be very difficult due to Grandmother’s alienation of Sydney from Mother and her hostility toward Mother. DCFS’s position was that, in the first instance, Grandmother’s history with child protective agencies, her conviction for willful cruelty to a child, her history of excessive use of alcohol and hostile relationship toward Mother would prohibit DCFS from recommending the guardianship. The hearing on March 13 was continued to April 13, 2009.
In a supplemental report dated April 13, DCFS submitted a letter received from Father. The letter expressed Father’s desire that Sydney remain under the legal guardianship of Grandmother or, if not her, then some other family member. He wrote that he did not want Sydney to grow up in foster care. The CSW also reported that she had interviewed Sydney in late March. Sydney told the CSW that if the court ordered her to live with Grandmother, she did not want Grandmother or the man living with her, Greg Johnson, to spank her, as they had done in the past when she did not brush her teeth or did not do her homework.
Also on April 13, DCFS submitted another detention report in connection with its filing a new section 300 dependency petition against Mother and Father with respect to Sydney. The detention report reiterated information from DCFS’s prior reports.
At the April 13 hearing, the trial court heard argument on Grandmother’s guardianship proceedings in probate court. Father was present. In regard to the issue of whether Father had been given proper notice of the guardianship proceedings, counsel for Grandmother and Father’s counsel indicated that he had notice and had consented to Grandmother being Sydney’s legal guardian. The juvenile court ruled, however, that proper notice had not been given to Father, on the basis that the court could not find confirmation of notice to Father in the probate file.
In regard to the issue of whether Grandmother submitted a declaration that was not true concerning her history of criminal convictions, the juvenile court found that Grandmother did not disclose her criminal record as required in the declaration, knowing that her criminal record had not been expunged. The court specifically noted that Grandmother did not apply for expungement of her criminal record until after she filed the petition for guardianship and that she signed the declaration and the legal guardianship was granted before the date that her record of convictions had been expunged. The court found that Grandmother lied when she stated on her declaration that she had no criminal convictions and, therefore, she had committed a fraud. On that basis, the court found that the guardianship was void on its face and granted DCFS’s motion to set aside the guardianship. The court also dismissed the section 300 petition against Grandmother without prejudice.
DISCUSSION
Grandmother contends that the juvenile court did not employ the proper procedure for setting aside the guardianship, in that the court did not comply with the motion and hearing procedure required to terminate a guardianship set forth in Welfare and Institutions Code section 728. Grandmother also claims that the court did not employ the proper standard for terminating her probate guardianship. She cites the statement from In re Angel S. (2007) 156 Cal.App.4th 1202 that “termination of a probate guardianship may be granted by showing only that it is in the best interests of the minor to do so. (Prob. Code, § 1601.) This is the sole criterion for termination of a probate guardianship. [Citation.]” (Angel S., supra, at p. 1208.) Grandmother asserts that there was no evidence whether termination was in the best interest of Sydney and the court made no finding that termination was in Sydney’s best interest.
We agree with Grandmother that Welfare and Institutions Code section 728 sets forth a procedure for use by the juvenile court to “terminate or modify” a guardianship granted under the Probate Code. Arguments based upon Welfare and Institutions Code section 728 would be relevant, however, only if a valid probate guardianship was in existence.
The issue of whether Grandmother’s guardianship was valid and, thus, existed, was the question before the juvenile court. In a dependency proceeding, a juvenile court may exercise equitable power to set aside a final judgment obtained by extrinsic fraud. (In re Margarita D. (1999) 72 Cal.App.4th 1288, 1294; see, e.g., In re William K. (2008) 161 Cal.App.4th 1, 8.) The rationale is that, due to the extrinsic fraud, there has been no fair adversarial trial. (Margarita D., supra, at p. 1294.) Extrinsic fraud is perpetrated where a party does not reveal the whole truth, to the extent of his or her knowledge, in his or her petition to a probate court. (Estate of McGuigan (2000) 83 Cal.App.4th 639, 650-651.)
In the probate court proceedings, Grandmother submitted a declaration in which, under penalty of perjury, she falsely stated that she had not been charged with, arrested for, or convicted of a crime involving alcohol and had never abused alcohol. Her statements operated as extrinsic fraud, in that they did not reveal the whole truth to the probate court. (Estate of McGuigan, supra, 83 Cal.App.4th at pp. 650-651.) The juvenile court properly set aside the guardianship. (In re Margarita D., supra, 72 Cal.App.4th at p. 1294.)
As to her convictions, Grandmother asserts that she believed they had been expunged and, therefore, that she did not have to disclose them to the probate court. Expungement of a conviction of driving under the influence of alcohol (Veh. Code, § 23152) or reckless driving may be achieved only by an order which a court may issue in its own discretion after the person convicted petitions the court. (Pen. Code, § 1203.4, subd. (c).) The evidence showed, however, that Grandmother did not even apply for expungement until after she filed her petition for guardianship and no order of expungement of any conviction was issued until after the probate court granted her guardianship petition. In any event, no claim of expungement would apply to explain Grandmother’s other false declaration, that she had never abused alcohol. Having concluded that the juvenile court properly set aside the guardianship on the basis of extrinsic fraud, we need not address Grandmother’s contention regarding adequacy of notice to Father in the probate guardianship proceedings.
Grandmother also contends that the juvenile court erred in not continuing family reunification services for her. As she points out, at the January 16, 2009 detention hearing, the juvenile court issued a general order for DCFS to provide family reunification services to the guardian. Grandmother contends that then, on April 13, 2009, when the court set aside the guardianship and did not order continued services for her, the court abused its discretion. We disagree.
As Grandmother asserts, Welfare and Institutions Code section 361.5 requires the juvenile court to order DCFS to provide child welfare services to a child’s guardian when the child is removed from the guardian’s custody and such services extend for 12 to 18 months during dependency proceedings. After the court ordered the probate guardianship set aside as invalid, however, statutory provisions governing dependency proceedings no longer applied to Grandmother. She no longer held the status, rights or obligations as Sydney’s guardian. The juvenile court properly dismissed the dependency petition pending with regard to her. (Id., § 390.) Thus, the requirements for provision of family reunification services set forth in Welfare and Institutions Code section 361.5 and related law no longer applied to Grandmother.
Welfare and Institutions Code section 361.5, subdivision (a), provides that, subject to exceptions not applicable here, “whenever a child is removed from a parent’s or guardian’s custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child’s mother and statutorily presumed father or guardians.”
DISPOSITION
The order is affirmed.
We concur: PERLUSS, P. J.ZELON, J.