Opinion
H036125
10-12-2011
In re M.H., a Person Coming Under the Juvenile Court Law. SANTA CRUZ HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. R.H., et al. Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Cruz County Super. Ct. No. DP001420)
1. Introduction
In this appeal the parents of M.H., born in May 2003, challenge the summary denial of their Welfare and Institutions Code section 388 petitions requesting termination of a guardianship for their daughter and reinstatement of reunification services.
Unspecified section references are to the Welfare and Institutions Code.
After an 18-month reviewing hearing in March 2008, the juvenile court terminated services seeking to reunify R.H. (mother) and H.H. (father) with M.H. After a contested section 366.26 hearing, the court selected a permanent plan of legal guardianship and did not terminate parental rights. In August 2008, the couple with whom M.H. had been placed for two years was appointed her legal guardians.
In August and September of 2010, the Santa Cruz County Human Resources Department (Department), mother, and father each filed section 388 petitions seeking termination of the guardianship. The Department also sought to place M.H. with paternal relatives in Colorado. Mother also sought renewal of reunification services to her. She opposed an out-of-state placement. Father also sought either increased visitation or immediate placement of minor with him with family maintenance or reunification services. He opposed an out-of-state placement. At a hearing on October 5, 2010, the juvenile court summarily rejected the section 388 petitions by parents and continued the hearing on the Department's petition.
Each parent appealed from this ruling, asserting that each one made a prima facie showing that each has become qualified to receive further reunification services. However, in response to our request for supplemental briefing, both parents acknowledge that California Rules of Court rule 5.740(c) contemplates bifurcated proceedings. The first questions to be resolved when termination of a guardianship is sought are whether termination is warranted and whether services should be offered to maintain the guardianship. (Rule 5.740(c)(3).) Only after termination is granted does the issue of possible reunification arise. Once a guardianship is terminated, the juvenile court is required to schedule a new permanency planning hearing at which a parent may present evidence that further reunification efforts are justified. (Rule 5.740(c)(4).) In other words, parents effectively concede that their section 388 requests for further reunification were premature. For the reasons stated below, we will affirm the summary denial of parents' section 388 petitions.
Unspecified rule references are to the California Rules of Court.
2. The Proceedings
Due to the fact that the issues in this case are largely determined by a legal analysis of what happens when a guardianship is to be terminated in the context of a section 388 petition in a dependency case, this court will dispense with the four year history of what brought the child into care and go straight to the issue set before us in this appeal.
On July 17, 2008, the court selected legal guardianship as a permanent plan and did not terminate parental rights. It found that removing M.H. from the foster parents' home would be detrimental to her, even though they were unwilling or unable to adopt her. On August 13, 2008, Mr. and Mrs. O were appointed her legal guardians. Parents continued regular monthly visitation.
Mother filed a notice of appeal from this order (H033272), but subsequently abandoned the appeal. On our own motion, this court has taken judicial notice of the records filed in H033272 and H036171 following notices of intent to file a writ petition from a subsequent order in this action. The writ petitions were not filed.
In March 2009, the guardians reported that M.H. was not fully adjusting to living with them. Because they are foster parents, other children come and go and M.H. frequently asked when she was going home. When told she would not be returning to her biological parents, M.H. cried and became disobedient.
The Department began looking for a relative placement. At hearings on June 9, 2009, and June 8, 2010, the juvenile court continued M.H. as a dependent with legal guardianship as the permanent plan.
The interim review report filed on June 8, 2010 explained that "the Department has been working intensively to identify family members who would be available to provide a permanent plan" for M.H. The Department had identified a paternal sister who lives in Denver, Colorado and had requested an Interstate Compact on Placement of Children (ICPC) study from Colorado.
Once the paternal relatives were approved for placement, on August 3, 2010, the Department filed a section 388 petition which requested terminating the guardianship on two grounds. Living in a foster home has been emotionally draining for M.H. and finally relatives have been identified who are willing, able, and approved for a long-term placement. The Department asked to continue visitation with parents at the current level until M.H. could be placed in Colorado, at which point visitation would be reduced to biannually. The Department described a two-week visit by M.H. with these relatives that went well. In placing M.H. with her relatives, the Department wanted "to assess a permanent plan of adoption."
At a hearing on August 19, 2010, the parents opposed the Department's section 388 petition and indicated the intent to file their own petitions. Minor's counsel explained that the ICPC expired in November. The court continued the hearing on the Department's petition.
On September 14, 2010, mother filed a section 388 petition requesting the court to terminate the guardianship and to order renewed family reunification services. The petition attached documentary evidence in support of mother's claims that she had been clean and sober for two years, had provided clean drug tests, had regularly attended NA/AA meetings, and participated in parenting classes and individual counseling.
On September 15, 2010, father filed a section 388 petition requesting the court to terminate the guardianship and either return M.H. to his care under a plan of family maintenance or increase his visitation to three times a week while he progressed in his case plan. The petition attached documentary evidence in support of father's claims that he had completed a drug aftercare program and parenting classes, had attended NA/AA meetings, and had maintained his sobriety.
On October 5, 2010, the juvenile court held a hearing to decide whether to grant an evidentiary hearing on any or all of the three pending section 388 petitions. The court stated the following. It had reviewed all three of M.H.'s files as well as her middle brother's files. "[I]n deciding whether or not to . . . [set] a hearing must decide whether there is a change in circumstance, and whether or not a change in circumstances would warrant a hearing and whether or not that would be in the child's best interest."
As a section 388 modification petition, each party filed a completed JV-180 form "Request to Change Court Order" as required by rule 5.570(b).
The court expressed a concern about the AA slips submitted by parents being falsified "inasmuch as both parents photocopied one full page, and it looked like there were forged signatures on other pages." However, the court accepted that they had attended AA sporadically, had continued their parenting classes, and had visited consistently. "However, the issues that plague this family have not been fully addressed or to the point where there has been appreciable change." The court saw no evidence that mother had yet obtained any of the recommended two years of intensive psychotherapy to address her mental health. Mother had not exhibited the level of aggression that once required a social worker to obtain a restraining order. "However, there's not any professional intervention that has been presented to the Court, and I don't see that there has been any counseling or intervention on father's part, as well, or his partnership of relationship with mother. [¶] So I'm not finding that there are changed circumstances that would warrant a hearing, and the 388's are being denied for both parents." The court reserved its ruling on the Department's section 388 petition pending a contested hearing scheduled for October 18, 2010.
3. Standard Of Review
On appeal, we review the summary denial of a section 388 petition for an abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) "We must uphold the juvenile court's denial of appellant's section 388 petition unless we can determine from the record that its decisions ' "exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." [Citations.]' " (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) "A decision that rests on an error of law constitutes an abuse of discretion." (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1061.)
4. Establishing And Terminating A Dependency Guardianship
When the state removes a child from parental custody to avoid danger to the child, the state's first priority is to preserve the family and reunify the child with his or her parents after overcoming the problems that led to removal (cf. §§ 300.2; 319, subd. (e); 358, subd. (b); 361.5, subd. (a)(1); 362, subd. (c); 16501.1, subd. (b)(4); 16507, subd. (a); Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248-249; Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 843)) unless special circumstances authorize a bypass of reunification (§ 361.5, subd. (b)) or the parent had expressed disinterest in family maintenance or reunification (§ 360).
Ordinarily, reunification services must be offered for 12 months, with judicial review every six months. (§§ 361.5, subd. (a)(1)(A), 366.21, subd. (f), 366, 16507.) At each review hearing, there is a statutory presumption that the child should be returned to parental custody unless the social worker demonstrates that the return "would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.21, subds. (e), (f).) At the 12-month review hearing, if the court finds that reasonable reunification services have been provided and that there is no substantial probability of returning the child to parental custody, the court ordinarily terminates services and schedules a hearing under section 366.26 within 120 days for the selection and implementation of a permanent plan, which may include a termination of parental rights. (§ 366.21, subd. (g)(2); In re Cynthia D., supra, 5 Cal.4th 242, 249.) The 12-month period may be extended to 18 months when reunification remains a possibility. (§ 361.5, subd. (a)(3), 366.21, subd. (g)(1), 366.22, subd. (a).) Once reunification services are terminated, the statutory focus shifts away from reunification to providing a permanent, stable placement for the children. (In re Marilyn H. (1993) 5 Cal.4th 295, 304.) Reunification is no longer an issue at a section 366.26 hearing. (Id. at p. 309.)
As In re Celine R. (2003) 31 Cal.4th 45 explained on page 53: "The court has four choices at the permanency planning hearing. In order of preference the choices are:
(1) terminate parental rights and order that the child be placed for adoption . . . ;
(2) identify adoption as the permanent placement goal and require efforts to locate an appropriate adoptive family; (3) appoint a legal guardian; or (4) order long-term foster care. (§ 366.26, subd. (b).) Whenever the court finds 'that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.' (§ 366.26, subd. (c)(1).) The circumstance that the court has terminated reunification services provides 'a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more' of specified circumstances. (Ibid.)
"Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child. The specified statutory circumstances—actually, exceptions to the general rule that the court must choose adoption where possible—'must be considered in view of the legislative preference for adoption when reunification efforts have failed.' " (In re Celine R., supra, 31 Cal.4th at p. 53.)
Of course, circumstances may change after a juvenile court selects legal guardianship as the best permanent plan. The statues and court rules account for this possibility. When the county welfare department notifies the court that adoption "may be an appropriate plan for the child," "[t]he court may vacate its previous order dismissing dependency jurisdiction over the child and order that a hearing be held pursuant to Section 366.26 to determine whether adoption or continued legal guardianship is the most appropriate plan for the child." (§ 366.3, subd. (c).) No modification petition under sections 387 or 388 is required in these circumstances. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1106; David L. v. Superior Court (2008) 166 Cal.App.4th 387, 392.) When the question arises whether adoption is now a better plan than continuing a guardianship, there is no statutory or constitutional requirement to also consider reunification with the parents. (In re Heraclio A. (1996) 42 Cal.App.4th 569, 576-577.)
Even if adoption is not imminent, a guardianship may be terminated or revoked for other reasons upon petition "based on the best interests of the child." (§ 366.3, subd. (b).) As In re Jessica C. (2007) 151 Cal.App.4th 474 explained at page 481: "Section 366.3 recognizes that there may be a need to terminate a guardianship established as the permanent plan for a dependent child. To this end, it sets forth a procedure for notice, evaluation of the problems and possible solutions, and a mechanism by which reunification services to the parent(s) might be reinitiated if the guardianship is terminated. The statute does not, however, specify under which provision—section 387 or section 388—a petition to terminate a guardianship should be filed."
While the statute may not identify the form of a petition to terminate guardianship, since January 1, 2007, the California Rules of Court have provided: "A petition to terminate a guardianship established by the juvenile court, to appoint a successor guardian, or to modify or supplement orders concerning the guardianship must be filed in juvenile court. The procedures described in rule 5.570 must be followed, and Request to Change Court Order (form JV-180) must be used." (Rule 5.740(c).) Rule 5.570 describes the procedure for filing a section 388 petition. A section 388 petition is appropriate when a successor guardianship is sought after the deaths of the prior guardians (In re R. N. (2009) 178 Cal.App.4th 557, 566 (R.N.)) and when a parent seeks termination of a guardianship and reunification (see In re Jacob P. (2007) 157 Cal.App.4th 819).
In re Jessica C., supra, 151 Cal.App.4th 474 read rule 5.740(c) as authorizing petitions to terminate guardianships under both section 387 and 388 (id. at p. 481), and concluded that, "[a]lthough the statutory scheme allows for using section 388 to seek termination of a guardianship established as a permanent plan (§ 366.3, subd. (b)), section 387 is the appropriate procedural mechanism if the termination will result in foster care." (Id. at p. 482.) We note that section 387, subdivision (a) applies by its terms to a petition seeking removal of a child from the custody of a guardian and "placement in a foster home, or commitment to a private or county institution." There is no question in our case that a section 388 petition is appropriate when foster care is not the objective.
Rule 5.740(c) provides in part: "(3) At the hearing on the petition to terminate the guardianship, the court may do one of the following: [¶] (A) Deny the petition to terminate guardianship; [¶] (B) Deny the petition and request the county welfare department to provide services to the guardian and the ward for the purpose of maintaining the guardianship, consistent with section 301; or [¶] (C) Grant the petition to terminate the guardianship." The rule requires notice of a guardianship termination petition be served on parents whose parental rights have not been terminated. (Rule 5.740(c)(2).)
The statute provides in part, "If the petition to terminate legal guardianship is granted [and dependency jurisdiction resumes, the court] may order the county department of social services or welfare department to develop a new permanent plan, which shall be presented to the court within 60 days of the termination." (§ 366.3, subd. (b).) "Unless the parental rights of the child's parent or parents have been terminated, they shall be notified that the legal guardianship has been revoked or terminated and shall be entitled to participate in the new permanency planning hearing. The court shall try to place the child in another permanent placement. At the hearing, the parents may be considered as custodians but the child shall not be returned to the parent or parents unless they prove, by a preponderance of the evidence, that reunification is the best alternative for the child. The court may, if it is in the best interests of the child, order that reunification services again be provided to the parent or parents." (Ibid.)
Rule 5.740 has attempted to harmonize these statutory provisions as follows. "If the petition is granted and the court continues or resumes dependency, the court must order that a new plan be developed to provide stability and permanency to the child. Unless the court has already scheduled a hearing to review the child's status, the court must conduct a hearing within 60 days. Parents whose parental rights have not been terminated must be notified of the hearing on the new plan. The court may consider further efforts at reunification only if the parent proves, by a preponderance of the evidence, that the efforts would be the best alternative for the child." (Rule 5.740(c)(4).)
Rule 5.740(c) thus appears to contemplate a two-step process when legal guardianship is failing as a permanent plan. First, the juvenile court conducts a hearing limited to the issue of whether the guardianship should be continued or terminated. Second, and only if the guardianship is terminated, the court schedules another hearing within 60 days of the termination to formulate a new permanent plan. Requiring juvenile courts to focus on these issues serially may improve the quality of the decisions.
We have requested and obtained supplemental briefing concerning whether a parent may seek reunification under section 366.3, subdivision (b) at a hearing on another party's section 388 petition to terminate guardianship. Both parents agree that the rights of parents "seeking reunification pursuant to section 366.3, subdivision (b) arise after the guardianship has been terminated, not as part of the petition to modify prior orders seeking termination of the guardianship." In other words, the question of reunification does not arise until after the guardianship is terminated. Parents are essentially conceding that their section 388 petitions were premature insofar as they requested reunification services concurrent with termination of the guardianship.
We invited the parties to discuss R.N., supra, 178 Cal.App.4th 557, where the child's aunt filed a section 388 petition to be declared a successor guardian, as the original guardians, the child's grandparents, had died. (Id. at p. 561.) The child's father opposed his sister's petition without initially filing a section 388 petition. At a hearing on the aunt's petition, the court indicated that it could not rule on the father's request for custody as he had not filed his own section 388 petition, and it appointed the aunt the guardian. (Id. at p. 563.) A few months later, the court summarily denied the father's section 388 petition challenging the aunt's guardianship. (Id. at pp. 563-564.)
The reviewing court concluded that the juvenile court had erred in denying the father his rights under section 366.3. According to the Second District Court of Appeal (Div. 7), "Section 366.3, subdivision (f) provides that parents whose rights have not been terminated may participate in a guardianship termination hearing, and may be considered as custodians for the child, and the child returned to them if they establish, by a preponderance of the evidence, that reunification is in the child's best interests. If such a finding is made, reunification services may be provided to the parent for up to six months." (R.N., supra, 178 Cal.App.4th at p. 565.) The juvenile court erred "in failing to offer Father the consideration required by section 366.3, subdivision (f)." (Id. at p. 566.) The appellate court concluded that the father "was entitled to participate, to be considered as R.N.'s guardian, and to be eligible to receive reunification services without the requirement that he file his own section 388 petition." (Ibid.; fn. omitted.)
We question whether the court meant to cite subdivision (f) and not (b), as the opinion quoted the language of subdivision (b) in a footnote and did not quote subdivision (f). (Id. at p. 565, fn. 6.)
R.N. has recently been followed in In re S.H. (2011) 197 Cal.App.4th 1542, which concluded that it was harmless error for the juvenile court to refuse to consider reunification services for the mother when it was considering the appointment of successor guardians after the original guardianship had been terminated.
Although R.N. arguably authorizes parents to argue for resumption of reunification services at an evidentiary hearing on the Department's section 388 petition to terminate the guardianship without filing their own petitions, mother asserts that R.N. only applies when a section 388 petition proposes a new permanent plan, such as appointing a new legal guardian, and not, as here, when no successor guardian is contemplated. Father suggests that R.N. disregarded the two-step process contemplated by section 366.3, subdivision (b) and Rule 5.470(c). Neither one argues that it applies here.
From the record in this appeal, it appears that the court has not yet determined whether the Department should have an evidentiary hearing on its section 388 hearing. If there is such a hearing, "the burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interests of the child." (In re Stephanie M. (1994) 7 Cal.4th 295, 317; Rule 5.570(h)(1).)
In response to our request for supplemental briefing, mother and father concede that the focus of a hearing on terminating a guardianship is simply whether or not the guardianship should continue. (Rule 5.740(c)(3).) The juvenile court should not be simultaneously engaged in formulating a new permanent plan. Parents assert that at a future permanent planning hearing, if the guardianship is terminated, they will have an opportunity to present evidence that the best interests of M.H. require either renewing reunification services or placing her with them.
We are concerned that in future hearings, there may be an argument that parents have been foreclosed from presenting evidence "that reunification is the best alternative for the child" (§ 366.3, subd. (b)) by the summary denial of their section 388 petitions. In supplemental briefing, parents argue that this summary denial should not bar them from full participation in subsequent permanent planning. The Department asserts that "[r]es judicata applies where a parent makes the same arguments for reunification after his or her own petition has been denied." In Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, this court concluded that, in view of the ongoing and evolving nature of dependency proceedings, principles of res judicata and collateral estoppel do not foreclose renewed arguments asserting changed circumstances. (Id. at p. 879.)
Although the dependency court reached the merits of parents' section 388 petitions in summarily denying them, we conclude that the ruling was justified on the basis that their requests to consider reunification services were premature. Even assuming for the sake of discussion that they have sufficiently alleged that each one has completely overcome the problems that led to declaring M.H. a dependent child, reunification services cannot be offered during the pendency of the guardianship. By rule and statute, the time for parents to request reunification is after the court terminates the existing guardianship. While the child's status in the interim may be a kind of legal limbo, it is contemplated by the statute. We find no abuse of discretion in the summary denial of parents' section 388 petitions.
5. Disposition
The orders summarily denying parents' section 388 petitions are affirmed.
LUCERO, J. WE CONCUR: BAMATTRE-MANOUKIAN, ACTING P.J. MIHARA, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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