In re Jessica C.

• Decision Date: 25 May 2007
• Docket Number: No. F051144.,No. F051283.,F051144.,F051283.
• Citation: 59 Cal.Rptr.3d 855,151 Cal.App.4th 474
• Parties: IN RE JESSICA C. et al., Persons Coming Under the Juvenile Court Law. Kern County Department of Human Services, Plaintiff and Respondent, v. Gerald W., Defendant and Appellant. In re Jessica C. et al., Persons Coming Under the Juvenile Court Law. Kern County Department of Human Services, Plaintiff and Respondent, v. Jessica C. et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

59 Cal.Rptr.3d 855

151 Cal.App.4th 474

IN RE JESSICA C. et al., Persons Coming Under the Juvenile Court Law.

Kern County Department of Human Services, Plaintiff and Respondent, v. Gerald W., Defendant and Appellant.

In re Jessica C. et al., Persons Coming Under the Juvenile Court Law.

Kern County Department of Human Services, Plaintiff and Respondent, v. Jessica C. et al., Defendants and Appellants.

No. F051144.

No. F051283.

Court of Appeal, Fifth District.

May 25, 2007.

Beth A. Melvin, South Lake Tahoe, under appointment by the Court of Appeal, for Defendant and Appellant Gerald W.

S. Lynne Klein, Los Angeles, under appointment by the Court of Appeal, for Defendants and Appellants Jessica C. and Brett C.

B.C. Barmann, Sr., County Counsel, Susan M. Gill, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

WISEMAN, J.

This is an appeal from a termination of a guardianship created in a dependency action as the permanent plan for two adolescents, Jessica C. and Brett C. Initially, the maternal grandparents were appointed guardians. After a number of successful years in this home, during which the children bonded to their grandparents and appeared to flourish, the grandmother died. At the same time, the grandfather experienced serious health problems which the juvenile court found prevented him from caring for the children and adequately supervising and protecting them. There are two issues presented on appeal: 1) Should the petition to terminate the guardianship have been initiated under Welfare and Institutions Code¹ section 388 or section 387, and 2) did the juvenile court err by failing to consider whether providing services to the grandfather would preserve the guardianship. We conclude that section 387 controls when the termination of guardianship will lead to children being placed in foster care and that section 366.3 requires that maintenance services be considered before the guardianship is terminated.

FACTUAL AND PROCEDURAL HISTORIES

In June 2001, Jessica and Brett were found to be dependent juveniles pursuant to section 300, subdivision (b), as a result of problems caused by their mother, Cori W.'s, substance abuse. Their father is deceased. After reunification efforts with Cori failed, the court adopted legal guardianship as the permanent plan pursuant to section 366.26 and appointed the maternal grandparents, Colleen and Gerald W., as the children's legal guardians. Dependency jurisdiction was dismissed, but the court reserved jurisdiction pursuant to section 366.4.

Colleen died in 2004. Lori, Cori's twin sister, moved into Gerald's residence. She did so to help run the household and to assist him with caring for the children. Gerald was in poor health and underwent heart surgery in March 2005. He was hospitalized until late May 2005. In early June 2005, Lori died. Since Gerald was overwhelmed with medical problems and emotional stress, he needed assistance in dealing with day-to-day activities. He asked Cori to come live with the family to help out, even though he knew this was not a good decision since Cori still had problems with drugs. In September 2005, respondent Kern County Department of Human Services (department) investigated a child-neglect referral alleging that Cori was living in the home and selling drugs. The referral also reported that Jessica was allowed to bring a 22-year-old boyfriend into the home, and Brett was allowed to watch pornography. Further, Jessica had run away and been missing for several months in late 2005. The department's investigation was inconclusive and ultimately closed.

A second referral was received in May 2006 asserting that Gerald was ill and unable to care for the children and that Cori was using and selling drugs at the home. The investigating social worker learned that the children were not regularly in school and that Brett did not have enough credits to graduate from the eighth grade. Cori was arrested at Gerald's home on June 6, 2006, and was charged with possession of a controlled substance. Several unrelated males were present at the time of the arrest and two were also in possession of drugs. Syringes were found in Cori's room. To make matters worse, Cori admitted that she had smoked marijuana with Jessica in the backyard a week prior to the arrest. Jessica admitted that both she and Brett smoked marijuana on occasion. Gerald was upset when he discovered the children were actively using drugs. Both children told the social worker that their grandfather had been sick. Jessica said that she takes care of her grandfather, doing the cooking and performing other household chores.

The children were placed into protective custody and the department filed a section 388 petition seeking a change of the previous court order and requesting that the guardianship be terminated. In addition, the petition sought to reinstate the dependency proceeding and to have the children's permanent plan be changed to long-term foster care. The court ordered that the children be removed from Gerald's care and that a contested hearing be set on the petition.

The hearing was held on August 23, 2006. After considering the social worker reports and Gerald's testimony, the court ruled:

"We have a grandfather that obviously loves his grandchildren very much, but the Court does find that for a variety of reasons, part of which may be related to his medical problems, the grandfather is no longer able to adequately supervise or protect these children from the substantial risk of serious physical harm or illness and that would be primarily the type of harm or illness that can be harm by using illegal drugs, although they can certainly get into other situations.... [¶] ... [¶] I'm going to find it's not in the best interest of the children to continue with this guardianship; that the grandfather is no longer suitable as a guardian; that doesn't mean he doesn't love them, doesn't want to be the guardian, but that's the Court's finding. I make the finding it's not in the best interest of the children to remain in this legal guardianship and the Court is going to grant the 388 and find that the burden has been met to grant the 388."

We have ordered that the appeals of the children and Gerald be consolidated.

DISCUSSION

I. Applicability of section 387 or 388

The children argue that the department was obligated to file a supplemental petition pursuant to section 387 before removing them from their grandfather's home because the petition seeks the more restrictive placement of foster care. Although section 388 generally governs an application to terminate a guardianship created by the juvenile court when modifying the previous permanent plan order (§ 360; In re Carrie W. (2003) 110 Cal. App.4th 746, 757, 2 Cal.Rptr.3d 38), section 387 applies when the petition seeks to terminate a guardianship and place a child into foster care. Section 388 provides that a juvenile court may change an earlier order creating a legal guardianship "[i]f it appears that the best interests of the child may be promoted by the proposed change of order ...."(§ 388, subd. (c).)

In contrast to section 388, section 387 provides a more detailed procedure where the order sought will change or modify an earlier order by "removing a child from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home, or commitment to a private or county institution ...." (§ 387, subd. (a).) Section 387, subdivision (b), provides that "[t]he supplemental petition shall be filed by the social worker in the original matter and shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child or, in the case of a placement with a relative, sufficient to show that the placement is not appropriate in view of the criteria in Section 361.3." The need to file a section 387 petition when termination of the guardianship will result in foster care placement was acknowledged by the court in In re Carlos E. (2005) 129 Cal.App.4th 1408, 29 Cal. Rptr.3d 317, which said:

"Section 366.3 provides that the juvenile court retains jurisdiction over a child as a ward of the court after the court imposes a legal guardianship. It would appear, therefore, that should it become necessary to alter the court's order placing the child with a legal guardian, a section 387 petition would be the appropriate method for obtaining an order detaining the child and placing him or her in foster care." (In re Carlos E., supra, 129 Cal.App.4th at p. 1419, fn. 5, 29 Cal.Rptr.3d 317.)

A section 387 petition requires a bifurcated proceeding. The initial phase is a fact-finding hearing to determine whether the allegations of the supplemental petition are true, including the ultimate fact necessary to modify a previous placement with a parent or relative, and that the previous disposition has been ineffective in protecting the minor. (In re Jonique W. (1994) 26 Cal.App.4th 685, 690-691, 31 Cal. Rptr.2d 601.) In addition, the court must conduct a contested hearing to resolve factual disputes and determine whether the allegations of the supplemental petition are true. (Id. at p. 692, 31 Cal.Rptr.2d 601.)

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. The language of California Rules of Court, rule 5.740(c), recognizes that a petition seeking to terminate a guardianship may be brought as either a petition to modify or a petition to supplement the...