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In re G.W.

May 19, 2009

IN RE G.W. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW.
KERN COUNTY DEPARTMENT OF HUMAN SERVICES, PLAINTIFF AND APPELLANT,
v.
T.C., DEFENDANT AND RESPONDENT;
D.C., RESPONDENT.



APPEAL from a judgment of the Superior Court of Kern County. H.A. Staley, Judge. (Super. Ct. Nos. JD111136-00, JD111137-00, JD111138-00, JD111139-00 & JD115806).

The opinion of the court was delivered by: Cornell, Acting P.J.

CERTIFIED FOR PUBLICATION

OPINION

The Kern County Department of Human Services (the agency) appeals from a juvenile court disposition order that appointed D.C. (hereafter stepgrandmother) the legal guardian of five of her six grandchildren born to T.C. (hereafter mother). The dispositional hearing occurred after the juvenile court found the allegations of the supplemental petition filed pursuant to Welfare and Institutions Code section 387*fn1 to be true.

The agency contends the juvenile court erred when it relied on section 360, subdivision (a) to appoint stepgrandmother the children's legal guardian. The agency asserts the juvenile court was required by California Rules of Court, rule 5.565(f),*fn2 to proceed directly to a Welfare and Institutions Code section 366.26 selection and implementation hearing.

It appears the juvenile court relied on section 360, subdivision (a) to avoid the requirements of section 361.4, which prohibits placement of a child with someone who has a criminal record unless an exemption is obtained from the agency. (Id., subd. (d)(2).)Stepgrandmother had a criminal record and the agency denied her request for an exemption.

As we shall explain, the relevant statutes and cases lead us to conclude the disposition order must be reversed because the juvenile court erred in two respects. First, case law, as well as rule 5.565(f), required the juvenile court, on the facts before it, to proceed directly to a section 366.26 planning and implementation hearing. Second, the case on which the juvenile court relied in concluding that it could avoid the requirements of section 361.4, In re Summer H. (2006) 139 Cal.App.4th 1315 (Summer H.), is inapplicable to a disposition held after the allegations in a supplemental petition have been sustained. Accordingly, the juvenile court erred in ignoring the requirements of section 361.4. We will remand the matter to the juvenile court to schedule a section 366.26 hearing and comply with the applicable statutes.

FACTUAL AND PROCEDURAL SUMMARY

There is no factual or procedural dispute in this case. Nor is a detailed recitation of facts necessary to resolve this legal dispute. Therefore, we will provide only a brief summary of the underlying facts.

Mother gave birth to six children by two fathers. L.B. fathered mother's oldest child, E.B., who was born in April 2002. Gr.W. fathered the remaining five children, K.W., G.W., T.W., L.W., and D.W. The two youngest children, L.W. and D.W., were born after the juvenile court assumed jurisdiction over the other four children. Petitions were filed on behalf of those two children shortly after birth and the juvenile court assumed jurisdiction over both children.

Mother's first contact with the agency occurred through family court. In approximately 2004, the family court gave legal guardianship of the three oldest children to mother's father (hereafter grandfather) and stepgrandmother. The legal guardianship was terminated in April 2006 because of grandfather's criminal history, including a recent arrest for driving while under the influence of alcohol. The children were returned to mother on the condition that she participate in the agency's voluntary family maintenance plan. Mother failed to comply with the terms and conditions of the plan, and it was terminated in less than one month.

Mother retained custody of the children until June 2006, when the agency filed a section 300 petition alleging that the four oldest children were at risk because mother failed to supervise or protect them adequately. The children were detained. The allegations of the petition as amended were found true at the jurisdictional hearing, the children were found to be dependents of the court, out-of-home placement was confirmed, and family reunifications services were ordered for the parents. A separate petition was filed when L.W. was born, and she was detained and placed in foster care.

At the six-month review hearing, the social study found that the parents had not met the objectives of the family reunification plan. The juvenile court ordered six additional months of services.

At the 12-month review hearing, services for the fathers L.B. and Gr.W. were terminated. Mother was provided with six additional months of services as she had made progress in her plan.

At the 18-month review hearing, four of the children, E.B., K.W., T.W. and D.W., were placed with mother. The 18-month review hearing for the two children who were not returned to the custody of mother was continued. It appears these two children were not returned to mother's custody because both children had serious health issues.

At the continued 18-month review hearing, the juvenile court returned custody of the remaining two children to mother over the agency's objections.

Less than one month later, a supplemental petition pursuant to section 387 was filed. The petition alleged that G.W. and L.W., the children with medical problems, had not been receiving their prescribed medications and were experiencing medical problems. In addition, mother had refused to allow the agency's representative to inspect her house to ensure the children's safety. All of the children were removed from mother's custody. The juvenile court ordered the children detained. Four months later, the juvenile court found it had jurisdiction over the children. The juvenile court also ordered the agency to assess stepgrandmother for placement of the children.

At the dispositional hearing, the juvenile court appointed stepgrandmother the legal guardian for all the children except L.W. The parties agreed that L.W.'s placement with a relative continue because of L.W.'s medical condition. A section 366.26 hearing was scheduled for L.W. The agency appeals from ...


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