Opinion
G044851 Super. Ct. No. DP004334 Super. Ct. No. DP004336
10-24-2011
In re BRADLEY S. et al, Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. ALANNA T. et al., Defendants and Appellants.
Marsha F. Levine, under appointment by the Court of Appeal, for Defendants and Appellants. Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from an order of the Superior Court of Orange County, Jane Shade, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Marsha F. Levine, under appointment by the Court of Appeal, for Defendants and Appellants.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
Alanna and Ronald T., the legal guardians of Bradley S. and Elijah H., appeal from an order which - technically speaking - granted their Welfare and Institutions Code section 388 petition (hereinafter 388 petition) to terminate their guardianship of the boys. We say technically speaking because Alanna and Ronald sought to dismiss their 388 petition five months after filing it, because they had a change of heart about their decision to terminate the guardianship. The court refused to dismiss it, and instead proceeded to consider, and grant, the petition on its merits.
Alanna and Ronald contend on appeal that they had an absolute right to dismiss their own petition, and that the court prejudicially erred by proceeding to consider termination of their guardianship under the rubric of a 388 petition, rather than in accordance with the more stringent requirements of Welfare and Institutions Code section 387. Finally, Alanna and Ronald contend the court erred by failing to consider whether the guardianship could remain intact if reunification services were provided.
All further statutory references are to the Welfare and Institutions Code.
We find the contentions unpersuasive. Having invoked the juvenile court's previously terminated dependency jurisdiction when they filed their 388 petition, Alanna and Ronald could not simply choose to abandon the field and take the boys home with them, without allowing the court to assess whether termination of the guardianship would be in the boys' best interests. Thus, the court did not err in refusing to dismiss their 388 petition, and instead considering the issues raised therein on the merits. Moreover, while we conclude Alanna and Ronald waived their contention the juvenile court failed to consider the option of reunification services by not raising that point below, we also note it is clear from the record the court could not have avoided considering whether the guardianship might be saved by the provision of services, as SSA included an assessment of that issue in its reports.
We affirm the order.
FACTS
Bradley (born in March of 1995) and Elijah (born in December of 1997) were removed from parental custody, along with their two older sisters, in 2001. In May of 2001, pursuant to stipulation, the children were declared dependents of the juvenile court.
In March of 2002, while the children were living in foster care, Alanna contacted the social worker, expressing interest in having the children placed with her and her husband, Ronald - the children's maternal uncle - in Colorado. However, dependency authorities in Colorado refused to allow the placement under the Interstate Compact for Placement of Children (ICPC), as Alanna had a prior conviction for distribution of narcotics.
Alanna and Ronald then moved to Kentucky, and applied for permission in that state to have the children placed with them. Kentucky gave its approval under the ICPC, and the children were ultimately placed with Alanna and Ronald in July of 2003. Although Alanna and Ronald were interested in formally adopting the children, difficulties in that process proved too daunting, and Alanna and Ronald ultimately chose to become the children's legal guardians instead. Letters of guardianship were issued in February of 2004, and the court's dependency jurisdiction was terminated. Alanna and Ronald moved with the children to South Dakota later that same year.
In late April of 2010, Alanna contacted authorities in Orange County, stating she was experiencing health problems and had doubts about her ability to continue as legal guardian for the boys, who were then age 15 and 12, respectively. When the county counsel's office informed the court of this circumstance, the court reinstated jurisdiction, and ordered the appointment of counsel for all parties, "for purposes of handling the [section] 388 motion, if and when one is filed . . . ."
On May 5, 2010, Alanna filed the section 388 petition, and the next day the court reaffirmed that it had "reinstated jurisdiction" for the purpose of addressing it. The court set a hearing for May 25, 2010, to consider whether a prima facie case existed to support a change in the guardianship.
In a letter, and in a conversation with a social worker, Alanna described significant behavioral problems with both boys, and stated she could no longer handle them, due to her own serious health problems (including a recent heart attack), and her consequent need to reduce stress. She explained her husband Ronald was working out of state and wasn't home very often to help with the boys. She also revealed she was in the process of divorcing Ronald because he had developed a drinking problem. Alanna stated that while the boys had other extended family members, including some who lived in Southern California, they "don't want to be involved." She expressed the desire to "return the boys" to authorities in Orange County.
When the social worker asked Alanna about whether the placement could be saved, if additional services were provided to assist her, Alanna stated that while she cared very much about the boys, she simply couldn't continue the responsibility of caring for them. The social worker also suggested the option of placing the boys in a foster home in Rapid City, South Dakota, where they had all been living, so they could keep their friends and would be near enough for her to visit, but Alanna rejected the idea. She stated she wanted the boys to go back to Orange County so she would not have to worry about them, and they would get the help they needed.
Alanna described Bradley, the older boy, as suffering from tics, and having a tendency to "gorge" on food, because he has fears there will not be enough to eat. He had been diagnosed with schizophrenia, a REM sleep disorder, posttraumatic stress disorder (PTSD), reactive attachment disorder (RAD), and was eneuretic when stressed at school. He suffered from learning disabilities. Bradley sometimes went after his brother, Elijah, which scared Alanna. She also claimed Bradley sometimes soiled his pants, and didn't seem to be bothered by it, even when other kids at school complained of the smell.
She described Elijah as liking to eat, but having difficulty eating solid foods, which tended to make him "'gag.'" Elijah also "'night walk[ed],'" and during his walks he often got quite violent, hitting holes in the wall and pounding his head against the wall. Elijah was diagnosed with PTSD, RAD, and an eating disorder.
Alanna felt the psychiatrist who had been treating the boys in South Dakota just kept sedating them and giving them more medications. Both boys were taking prescribed psychotropic medications. Although Alanna stated she had asked the boys' school for special education services, the school provided only limited services, because the boys were not violent in class.
The court held a hearing on May 25, 2010, in which it determined Alanna and Ronald had made a prima facie case for a change in the guardianship, and set the matter for an evidentiary hearing on June 8, 2010. The court ordered the social services agency (SSA) to arrange for respite care for the boys when they returned to Orange County.
Alanna purchased plane tickets for herself and the boys to fly to California early on the hearing date, and a social worker met them at the airport and took the boys into SSA's custody. Alanna told that social worker that she believed the boys belonged in an institution, rather than with family. Alanna also told the social worker that she would be leaving to "visit family up north and then to Texas" right after the hearing set for later that day.
Alanna parted ways with the boys at the airport, telling the social worker she was going to have lunch with a cousin. The social worker took the boys to lunch at McDonald's before transporting them to Orangewood Children's Home. They told her their understanding of why they had been dropped off with her in California was that "Bradley's behavior was uncontrollable and that [Alanna] could not handle [them] in her home any longer."
In connection with the scheduled hearing, SSA filed a report recommending the court grant the 388 petition and terminate the guardianship. However, when the hearing commenced, and the court indicated it would grant the 388 petition and terminate the guardianship, Alanna and Ronald's attorney asked the court to delay that decision, because Alanna thought she might want to resume custody of Elijah (but not Bradley) after she had recovered sufficiently from some scheduled surgery.
Apparently, the surgery was scheduled to address potential colon cancer, which was of some significant concern to Alanna due to a history of colon cancer in her family. When asked at a later hearing about the health problems she'd been suffering when she filed the 388 petition, Alanna also mentioned she'd had surgery on her bladder, and a separate surgery to repair a hole in her intestine, prior to the time she filed the 388 petition. She did not mention any heart attack.
The court agreed to delay any decision to terminate the guardianship: "It's anticipated at this time, subject to further information, that the boys will be detained over at Orangewood Home and probably placed temporarily to give [Alanna] the months, however long that is, that she needs to have her surgery and recovery, and treatments." The court stated "I'm going to leave the guardianship in place. I'm going to put this petition over to a new date. The court then "re-open[ed] the dependency proceedings as to both children as requested by county counsel." The court scheduled the next hearing for July 19, 2010, with the understanding that "we can always put it over further, if necessary, at that time."
On June 10, 2010, two days after that hearing, SSA filed a dependency petition pursuant to section 300, subdivisions (b) (failure to protect) and (g) (no provision for support), to ensure the court's jurisdiction to detain the boys. The petition alleged, among other things, that Alanna had returned the boys back to Orange County, and declared herself "no longer able to provide care and support of the children due to her personal illnesses and the children's problematic behaviors, leaving the children without a caretaker." The petition also alleged "the child's legal guardian filed a 388 Petition with the Orange County Juvenile Court to request that she be removed as legal guardian of the children, [and] is no longer able to provide adequate care and support for the children."
The court set the case for a detention hearing on June 11, pursuant to SSA's petition. All parties appeared through counsel, and acknowledged receipt of the new petition. The court made the necessary findings to support detention of the boys, and ordered that their temporary placement and care vested in SSA.
The case was repeatedly continued over the next several months. In July of 2010, the social worker recommended reunification services for Alanna and Ronald, and put together a plan. However, Alanna told the social worker she could not participate in services at that time, because she was on vacation in Tennessee, and would then be returning home to South Dakota to have surgery. Alanna reiterated to the social worker that she might want Elijah back, but not until after her vacation and surgery. SSA also reported in July that Alanna had visited with the boys twice since they had been back in Orange County, and that she also had telephoned Elijah, but not Bradley.
Alanna's surgery was in early August, 2010, and while it generally went well, she had some problems with infection. She then had some follow-up radiation therapy scheduled for September. Alanna told the social worker in August that she would like to have Elijah back, but could not care for Bradley without support or respite, noting "'he agitates me and Elijah with his ticks.'" Alanna acknowledged that Bradley had reported to her that he was doing well, but opined that was because he was doing "'all of the things I don't allow him to do,'" like playing video games and watching television. She believed that "'no one is looking at his ticks [sic tics].'"
Alanna also stated in August that she would like to have reunification services, and hoped to have Elijah returned to her custody by the end of September. Then, if she determined she could handle the behavior, maybe transition Bradley back into the home. As of August, SSA's recommendation was that the court declare the boys to be dependents of the court, but order a plan of reunification services for Alanna and Ronald.
In September, some things changed. SSA reported that authorities had been in contact with other family members, who stated they were very interested in helping out with the boys in whatever way they could. They expressed perplexity with Alanna's earlier claim to the contrary. For example, Elijah's paternal grandfather stated he had always loved both boys, and had sent birthday and Christmas presents to both over the years. However, after a few years, Alanna had asked him to send only cash. The boys denied receiving the cards or gifts. The grandfather was interested in having the boys live with him.
A maternal uncle and aunt, living in Huntington Beach, contacted SSA to state they were aware the boys had been returned to California, and wanted to make arrangements to visit.
A second maternal uncle was also interviewed. He reported that he and his wife, who were living in Colorado, were interested in helping out with the boys, and being involved in their lives, even though they didn't feel they could assume custody. He also reported that he and his wife, along with the other maternal uncle and aunt, had just seen Alanna and Ronald at a family wedding in late August. Alanna told them the boys were in California, that they were doing fine, and that Bradley had been placed separately from Elijah in a "mental health institution." When the interviewer told him that Alanna's mental institution claim was untrue, and that both boys were actually living in a normal group home situation, the uncle expressed puzzlement about why Alanna would lie about such a thing, but noted that Alanna had always been a bit of a "hypochondriac," with a tendency to see problems that aren't really there.
SSA also reported that authorities had contacted personnel at the boys' most recent school in South Dakota, and they reported no behavioral problems with either boy. No one at the school had been aware that the boys were taking psychotropic medications, and they were instead developing concerns about the care the boys were receiving from Alanna. The school had been documenting the number of times Alanna had contacted them with complaints about the boys' behavior, as this had become a frequent occurrence and was inconsistent with the perceptions of school personnel that the boys were exhibiting no such problems.
Additionally, the boys were reported to be flourishing in the months they had been back in California. Elijah was no longer taking any psychotropic medication, and Bradley's medication had been reduced to the minimum dosage. Both boys were maintaining "excellent behavior," were doing well both in school and socially, and remained "at the top level in their cottages." The boys did report a continuing desire to return home to South Dakota, and Elijah reported that Alanna had told him over the phone that she wanted him home before the beginning of the school year. Bradley was also under the impression he would be returning home to South Dakota "in the near future," but stated that if that didn't happen, his plan was to move to South Dakota when he turned 18, so he could take care of Alanna.
Finally, SSA noted that Alanna had not been in contact with social workers at all during the September reporting period, either to inquire about the boy's well-being or to discuss their future. And while she had been in phone contact with the boys - several times a week with Elijah, and "on occasion" with Bradley, she had not visited them "despite travelling to several destinations all over the country."
Based upon those circumstances, SSA was no longer recommending reunification services for Alanna and Ronald.
Alanna spoke to SSA in the middle of October, and reported she had been in contact with Bradley's father, and the two of them had agreed she would resume custody of Elijah, and he would take custody of Bradley. She still felt she was unable to take custody of Bradley due to his behavior. She stated she would like to have Elijah returned to her by Thanksgiving, and no later than Christmas. When the social worker told her she would need to initiate a new ICPC in the State of South Dakoka, since her prior one had been done in Kentucky, Alanna said she had a friend who is a foster parent in St. Louis, who could take temporary custody of Elijah until Alanna had that worked out.
Alanna denied ever prohibiting contact between the boys and other family members, stating that other than sending the boys money on birthdays and holidays, none of the other family members were interested in offering her any support. Other family members contradicted Alanna on this point, however. At a "family meeting" held with the social worker on October 21, 2010, all participants - including the boys' mother, Bradley's father, the paternal grandfather, the two sets of maternal aunts and uncles, and a maternal cousin - agreed that Alanna had allowed them no contact with the boys. Each family member stated they were told that any contact with the boys was prohibited by the court, and would be "disruptive" to the boys' placement. The paternal grandfather stated he had asked if he could fly to South Dakota to visit the boys, but Alanna refused to allow it.
Both the boys' mother (who was then recently returned from living in Mexico, and living with her brother in Colorado), and Bradley's father (who was living in Las Vegas), expressed the desire to reunify with them, and the other family members indicated a willingness to do whatever they could to support the parents in that goal. The maternal cousin, an adult, informed SSA that she and her husband would be willing to assume temporary custody of the boys while their parents worked on reunification.
On November 5, 2010, the boys were moved from Orangewood to a foster home. On that same date, SSA received a letter from Alanna and Ronald, stating that, in retrospect, they believed that filing the petition to terminate the guardianship had been "a BIG mistake." The letter set forth the chronology of events from Alanna and Ronald's side, explaining why Alanna felt she ultimately had no choice but to place the boys into the custody of SSA. Alanna stated she had made efforts to find some help through SSA in South Dakota, and by contacting authorities in Orange County, but was rebuffed by both before deciding she had no other reasonable options. Alanna and Ronald acknowledged they "should have [sat] down with the case worker" when they filed the 388 petition, but by that point, Alanna "had already bought the plane tickets."
Alanna and Ronald also complained that no one in Ronald's family had ever offered to help, and criticized various family members for not even calling to ask how the boys were doing over the years, or not bothering to spend any time with them - let alone send a plane ticket for the boys to visit. By contrast, they defended their own decisions at every turn, including their decisions to travel in July and August, and Ronald's decision continue working out of state while things were falling apart at home. Alanna expressed "regret" only for the fact that the social worker had not explained to her "what would happen" in the early days following her announcement that she wished to terminate the guardianship.
"For us being in Denver for a family wedding was bull, the only reason was to let Ron's mother . . . see her other sons . . . because they wouldn't not come to see her" and "[t]hen I took her to Kentucky before my surgery is that a sin, I guess in someone's eyes [but] Mildred is getting old . . . ."
"I could not just quit my JOB, although I wanted to but that would have only put more stress on our family having to worry about how we would pay the bills."
Alanna and Ronald summed up their position by noting "[w]e are very sorry we are the only parents that got confused and made a wrong decision, but we felt the best thing for the boys was to go back to CA as we did not know how well Alanna's surgery would go or how long her recovery would take. . . .[¶] This is really disheartening as we have done everything possible for the boys for the last 7 years with no help or support from my brothers Roy and Jerry."
On November 2, Alanna and Ronald sent a lengthy letter to the boys, describing a visit by the social worker to their South Dakota home. They related in some detail their complaints to the social worker about the boys' other uncles and aunts, who "never came to see you or even just call[ed] to talk to you." They noted to the boys that "it is just amazing that it took us being at the end of our rope and letting you go to Orangewood, now they want to do something." Alanna emphasized how she had told the social worker "that my own family has been around more th[a]n dad['s] family in seven years."
On November 23, 2010, Ronald and Alanna sent a letter to SSA "refut[ing] the statements made" by other family members at the family meeting with SSA in October. They stated that the original agreement among the family when they took guardianship of the boys was that the other maternal uncles and aunts would provide "support," but none was ever offered. They denied that anyone had ever offered to visit the boys, or had invited them to visit at their own homes.
The letter also related that Ronald had spoken to his sister - the boys' mother - and she had told him she believed he and Alanna were the cause of the boy's emotional difficulties, and that she didn't want them to regain custody. Ronald had responded that if that was what she wanted, they would contact California and "tell them to remove us from any and all other proceedings." However, the boys' mother called back the next day and said she was just upset. Ronald told her he and Alanna would try to regain custody "as long as the rest of the family was onboard and would help out as no one had in the past 7 years."
On November 24, 2010, Alanna and Ronald followed up by filing a formal notice purporting to "withdraw" their 388 petition filed on May 5, 2010, and "request[ing] that the minors be returned to [their] care under legal guardianship."
On December 6, 2010, the social worker spoke with Ronald. He explained he had been working out of town when they made the "hasty decision" to return the boys to California. He acknowledged they made no attempt to contact his family members for help before deciding to return the boys to California, nor did they inform them of the decision. With regard to the claim they had limited contact between other family members and the children, Ronald stated the only limit they placed was that during the first few months the children were in their home they "did not speak of the children's mother" as it upset the children. He stated that he would welcome any contact between the boys and other family members in the future.
Ronald reported that the only problem with Bradley's behavior was that he struggled in mainstream school, because he has difficulty concentrating and becomes frustrated. He stated that otherwise, Bradley is "a great kid." Ronald stated that Elijah is very competitive, but has some issues with food.
The social worker also spoke with Alanna in December. She stated that Ronald had quit his out-of-state job, and was then looking for work in Rapid City. Her surgery was completed, and she was feeling well. She stated that Ronald had spoken with his brothers and sister, and all were willing to help if the boys were returned to their custody. She stated that if the boys were returned to their care, she would have them seen by a different doctor, as she believed their prior psychiatrist had over-medicated them. She would send Bradley to a private school, because he had experienced so much trouble in the public school the prior year. She now denied that Bradley had a prior history with enuresis or soiling his pants, except once when he had a seizure, and once when he was riding his bicycle and had an "accident." As for Bradley's reported "ticks," Alanna stated he "twirled his thumbs" and was "unable to sit still."
Alanna stated that while she would allow Bradley to have contact with his father, she was not in favor of allowing him to reunify, because that would split up the boys, which she did not think was a good idea.
On January 6, 2011, the court finally held the much-delayed hearing on the 388 petition. Alanna and Ronald were in attendance. Before beginning, the court considered, and rejected, Alanna and Ronald's attempt to "withdraw" the petition. The court stated that "having read the original petition," it would "exercise[] its discretion and den[y] that request [to dismiss] in the best interest of the children."
The court then explained that as petitioners, Alanna and Ronald had the burden of "going forward." The court explained that everyone would have the opportunity to ask questions of the witnesses testifying, and the standard to be applied in determining whether the boys should be removed from Alanna and Ronald's home was "clear and convincing."
Counsel for SSA then reminded the court that the matter was also set for a "jurisdiction and disposition" hearing pursuant to its own petition, and all parties then stipulated it made the most sense to proceed with the section 388 petition first, with all evidence to be considered admissible for purposes of the jurisdiction and dispositional hearing as well. The parties also agreed that witnesses could be taken out of order, "as may be necessary or agreeable to all."
Both Alanna and Ronald testified at the hearing. When Alanna was asked about the status of Ronald's perceived drinking problem - which she had originally cited as the basis of a decision to divorce him and one of the reasons she could no longer care for the boys - Alanna stated the problem had been resolved to her satisfaction. Ronald had simply stopped drinking in June of 2010 - essentially at the same time she turned over custody of the boys to SSA.
When Alanna was asked about the fact the boys seemed to be doing so well since they'd been in California, and had not exhibited the negative behaviors she had complained of South Dakota, she opined that was simply because their time in California had been "like a vacation" for them.
The social worker also testified, and confirmed that the boys' behavior had been much improved in their time in California, as compared to what Alanna had described as their behavior in South Dakota. She stated the boys had been evaluated by a psychologist since returning to California, and Bradley had been diagnosed with ADHD only. Elijah had not been diagnosed with anything.
The social worker also explained that at the time of the hearing, there were three ICPC requests pending in connection with the boys. One was with the State of Colorado, for the maternal cousin to assume custody; one was in Nevada, for Bradley's father to assume custody of him; and one had been filed just the month before, for Alanna and Ronald to reassume custody of the boys in South Dakota. With respect to that latter one, the social worker explained that it appeared the State of South Dakota was unlikely to approve Alanna unless it was for a "kinship ICPC," due to her criminal record, and that SSA would not be able to refer it as a "kinship ICPC" because Alanna's home was not a licensed foster home in South Dakota.
After the close of evidence, the parties argued their positions. Alanna and Ronald's counsel emphasized the difficult straits they found themselves in, and their efforts to seek help from authorities, before they decided they had no choice but to return the boys to SSA in California. He asked the court to "deny my 388 [petition]."
SSA argued that the 388 petition should be granted, and the guardianship terminated, citing not only the circumstances of the boys' return to California, but also the fact they were doing so much better since their return. SSA also noted it would be necessary to get the State of South Dakota to approve the boys' return there under the ICPC, and that approval appeared uncertain at best.
Both counsel for the boys' mother, and Bradley's father, urged the court to grant the 388 petition as well, emphasizing the fact the boys were doing so well in California, and suggesting (as did SSA) that they had been over-diagnosed and over-medicated while living with Alanna and Ronald in South Dakota. Counsel for Bradley's father characterized the manner in which Alanna and Ronald chose to return the boys to California as "callous," and lamented the fact that even as they were seeking to rescind the 388 petition, Alanna and Ronald were still refusing to take real responsibility for their actions, and instead blaming everyone else for not providing them with sufficient support. Finally, counsel for the boys, while acknowledging the boys' own desires to return to South Dakota, had "to strongly urge this court not to do that." She noted it was unclear whether the boys' behavior was actually so much improved since returning to California, or if their purported problems in South Dakota were instead "grossly exaggerated" by Alanna, but stated that either way, the boys were much better off since their return to California. She urged the court to grant the 388 petition as well.
The court then gave Alanna and Ronald's counsel the opportunity to have the last word, but he declined. SSA's counsel asked the court for an opportunity to clarify that SSA's position was that the court should not only grant the 388 petition, but also issue an order establishing a permanent plan of long-term foster care for the boys. SSA's counsel explained "we have proceeded on the 388 [petition] with a [section] 387 petition potentially to follow. The agency would be inclined if, for instance, the court were to grant the 388 [petition] to dismiss the 387 petition, so our request is for the children to be in a plan of long-term foster care."
In making this argument, it appears counsel for SSA was construing its own pending petition, which was technically a jurisdictional petition under section 300, as a supplemental petition for an order removing a child from the custody of a guardian under section 387. No one disagreed with this characterization.
The court then ordered termination of the guardianship. It expressly stated it was applying the "clear and convincing" standard of proof in determining there were grounds for removing the children from their home under section 361, subdivision (c). The court found that, while living with Alanna and Ronald, the boys were "overdiagnosed with mental and emotional problems, overdiagnosed with medications and were not properly cared for." The court also expressed concern that Alanna and Ronald were not "honest and forthcoming" at the hearing, and expressed disbelief about Alanna's contention that Ronald had suddenly overcome a drinking problem without any assistance whatsoever. Finally, the court stated that it did not believe things would be materially different if the boys were returned to Alanna and Ronald. The court then found, again by clear and convincing evidence, that it was in the children's best interests to grant the petition and terminate the guardianship.
I
Alanna and Ronald first argue the court had no discretion to refuse their request to dismiss their 388 petition. Although they acknowledge the court does have authority to refuse dismissal of a jurisdictional petition filed by a social services agency, and to require the agency to proceed with the petition (Allen M. v. Superior Court (1992) 6 Cal.App.4th 1069, 1074; Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1077-1078), they claim dismissal of a section 388 petition is different, because a "388 petition, like a motion, does not affect the court's jurisdiction."
But whatever merit that perceived distinction may have in other situations, it has none here. In this case, Alanna and Ronald's 388 petition did invoke the court's dependency jurisdiction, which had otherwise been "terminated" in 2004 when the guardianship was established, pursuant to the dictates of section 366.3.
Section 366.3, subdivision (a), provides in pertinent part: "Following establishment of a legal guardianship, the court may continue jurisdiction over the child as a dependent child of the juvenile court or may terminate its dependency jurisdiction and retain jurisdiction over the child as a ward of the legal guardianship, as authorized by Section 366.4."
Thus, it was at Alanna and Robert's request that the court explicitly "reinstated" dependency jurisdiction over the boys for purposes of considering whether their best interests would be served by an order terminating the guardianship. And having made that request, and engaged the court's authority to address the situation, Alanna and Robert had no more right to unilaterally stop the process than SSA would have the right to do so in the case of a jurisdictional petition it filed. We thus conclude the court acted appropriately in refusing Alanna and Robert's 388 petition, and proceeding to hold a hearing to address its merits.
We also reject Alanna and Robert's assertion that any hearing to address the potential termination of a guardianship, rather than some lesser change or modification to the situation, was required to be initiated by a more formal supplemental petition filed pursuant to section 387, rather than by a 388 petition. As SSA points out, a supplemental petition under section 387 is appropriate only when a social services agency itself is petitioning for the termination of a guardianship. That is not what occurred here.
In any event, we can't see how Alanna and Ronald could have been prejudiced by the procedure followed by the court. They are the parties who actually brought the issue before the court, so clearly they suffered no lack of notice. They had counsel appointed to represent them, and received notice of SSA's reports and recommendations throughout the case. And despite their request to dismiss their 388 petition - and their claim in this appeal that they had the absolute right to do so - it is clear neither Alanna nor Robert were caught by surprise when the court chose to proceed with the matter on the merits. Both of them were present at the hearing, each testified, and they were represented by counsel who had the opportunity to cross-examine other witnesses and present their arguments to the court.
And finally, while we agree there was some confusion created by the court's statement that Alana and Ronald, as petitioners, had the "burden of proof to show that grounds exist for removal of the boys from their home, that confusion was superficial at best. In reality, everyone knew exactly where they stood on the issue before the court, and no one was confused at all about what that issue was: i.e., whether the evidence, taken as a whole, demonstrated clearly and convincingly that it would be in the boys' best interests to terminate Alanna and Ronald's guardianship. Consequently, we conclude that even if there had been some procedural anomaly here - and we are aware of none - it was harmless. (Kimberly R. v. Superior Court, supra, 96 Cal.App.4th at p. 1078.)
II
Alanna and Ronald also contend the court erred by terminating their guardianship without first considering the option of offering them reunification services. Although they acknowledge the court is never obligated to provide reunification services to legal guardians, they point out that section 366.3, subdivision (b) does require the court to consider the issue, and specifically to order the social services department to prepare a report which includes an evaluation of whether services might allow the child to remain with, or be returned to, the guardians.
Section 366.3, subdivision (b), provides in pertinent part that "[p]rior to the hearing on a petition to terminate legal guardianship pursuant to this subdivision, the court shall order the county department of social services or welfare department having jurisdiction or jointly with the county department where the guardian and child currently reside to prepare a report, for the court's consideration, that shall include an evaluation of whether the child could safely remain in, or be returned to, the legal guardian's home, without terminating the legal guardianship, if services were provided to the child or legal guardian."
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This issue was waived by the failure to raise it below. '"An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the [trial] court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.' [Citation.]" (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.)
'Appellate courts have applied the waiver doctrine in dependency proceedings in a wide variety of contexts, including cases involving failures to obtain various reports required by statute. For example, in holding an appellant could not assert error in the failure of the juvenile court to conduct a bonding study where no objection had been made in the juvenile court, In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339 stated: 'Many dependency cases have held that a parent's failure to object or raise certain issues in the juvenile court prevents the parent from presenting the issue to the appellate court. (See In re Aaron B. (1996) 46 Cal.App.4th 843 [failure to object to adequacy of adoption assessment]; In re Kevin S. (1996) 41 Cal.App.4th 882, 885-886 [failure to challenge [juvenile] court's ability to set a section 366.26 hearing when it determined reasonable reunification efforts were not made]; In re Anthony P. (1995) 39 Cal.App.4th 635, 640-642 [failure to request sibling visitation as part of a permanent plan]; In re Daniel D. (1994) 24 Cal.App.4th 1823, 1830-1831 [failure to request alternative placement]; In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412 [failure to object to adequacy of adoption assessment]; In re Jennilee T. (1992) 3 Cal.App.4th 212, 222 [failure to object to qualifications of court-appointed psychologists regarding § 361.5, subd. (b)(2)]; In re Riva M. (1991) 235 Cal.App.3d 403, 411 [failure to object to noncompliance with Indian Child Welfare Act]; In re Daniel C. H. (1990) 220 Cal.App.3d 814, 836 [failure to object to juvenile court's amendment of pleading to conform to proof].) As some of these courts have noted, any other rule would permit a party to . . . deliberately stand by in silence and thereby permit the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable. (In re Riva M., supra, 235 Cal.App.3d at p. 412, citing In re Christian J. (1984) 155 Cal.App.3d 276, 279.)'" (In re Dakota S. (2000) 85 Cal.App.4th 494, 502, italics added.)
In this case, the unfairness of allowing Alanna and Robert to raise the court's purported failure to consider services for the first time on appeal is made particularly stark by their assertion that the record here suggests the juvenile court may have been unaware of the requirement to consider the issue below. Of course, we do not presume the juvenile court was unaware of the governing law, and are in fact obligated to presume the opposite, but even if it were true, the alleged gap in the court's knowledge would have easily been cured by the simple device of Alanna and Robert raising the issue before that court in a timely fashion. They did not, and we will not allow them to wait and see how things play out in the juvenile court before suggesting to us, in the first instance, that the court below may not actually have understood the law.
In any event, we agree with SSA that our record actually suggests the court did consider the issue of whether services might be utilized as an alternative to terminating the guardianship. The court never had occasion to "order" SSA to evaluate the issue, because SSA's reports were replete with consideration of the issue from the very beginning. Indeed SSA initially favored maintaining the guardianship, and its early reports did recommend the provision of services to Alanna and Robert. SSA only changed its recommendation after the passage of a few months, as it began to appear that the boys were thriving outside of Alanna's care, and that Alanna and Robert were not particularly motivated to resume their responsibilities. The only way we could conclude the court didn't "consider" the issue of services is if we assumed the court didn't read any of SSA's reports. There is no basis for such an assumption.
DISPOSITION
We find no error in the court's decision to terminate Alanna and Robert's guardianship. The order is affirmed.
BEDSWORTH, J. WE CONCUR: RYLAARSDAM, ACTING P. J. FYBEL, J.