(Santa Clara County Super. Ct. Nos. JD19356, JD19357). The Honorable Hector E. Ramon.
The opinion of the court was delivered by: Bamattre-Manoukian, Acting P.J.
CERTIFIED FOR PUBLICATION
Welfare and Institutions Code section 360, subdivision (a),*fn1 authorizes the juvenile court to order a legal guardianship for a child who has been found to be described by section 300, when a parent has advised the court that he or she is not interested in family maintenance or family reunification services and the parent and child agree to the guardianship. However, the court cannot appoint a legal guardian under the section until an assessment is read and considered by the court and reflected in the minutes of the court. The assessment shall contain statutorily specified information, including the `[c]urrent search efforts for, and notification of, a non-custodial parent in the manner provided in Section 291." (§ 360, subd. (a)(1).)*fn2
In this case, Patrick A., father of the two children at issue, appeals from a juvenile court dispositional order removing the children from his home, placing them in the custody of their paternal grandparents, and ordering family reunification services for both father and the children's mother, Sabrina O. Father contends that the court erred in refusing his request to order a legal guardianship for the children under section 360, subdivision (a), because the court determined that the mother had not waived reunification services. As we conclude that the court had the discretion to order a legal guardianship under section 360, subdivision (a), and then to order the required assessment report, which would include information on the Department's efforts to contact and notify the mother, we will reverse the dispositional order and remand the matter for a new dispositional hearing. Prior to the hearing, the clerk of the court shall notify the mother of the hearing in the manner provided in section 291. If the mother is properly noticed and is not present at the hearing or waives her right to family reunification services, father waives his right to family reunification or family maintenance services, and the court finds that a legal guardianship is in the best interests of the children, the court may order a legal guardianship and an assessment report as specified in section 360, subdivision (a).
On December 6, 2008, Morgan Hill police officers noticed father outside a motel smoking what appeared to be marijuana. At the time, father was out on bail for a prior incident of resisting arrest. When the officers asked father to extinguish his joint, father rushed into a motel room and locked it. The officers saw the children, age 4 and 3, inside the room, but father would not allow the officers inside. The officers broke down the door and found the room filled with marijuana smoke and the children hiding by the bed, crying. The children reported that father had flushed " `green stuff' " that " `smells really bad' " down the toilet while the officers were trying to enter the room. The officers found marijuana on a low shelf that also held the children's toys, and on the floor of the bathroom. Father attempted to fight two officers and was eventually arrested. The officers contacted an emergency social worker who took custody of the children.
The children were ordered detained on December 11, 2008. They were placed with their paternal grandparents at the grandparents' request on or around February 4, 2009.
On April 16, 2009, the Department of Family and Children's Services (the Department) filed second amended petitions under section 300, subdivisions (b) [failure to protect] and (g) [no provision for support] as to both children. The petitions alleged that father was arrested, convicted, and incarcerated for child endangerment, evading a peace officer, battery on a peace officer with personal injury, resisting arrest, and destruction of evidence. Father's prior criminal history includes several felony convictions going back to 1996, including for domestic violence, and the children have witnessed their parents engaging in physical altercations. The mother was convicted of felony child endangerment, driving under the influence, and hit and run, in 2004, after crashing a vehicle in which one of the children was a passenger. The mother's prior criminal history includes a 2001 conviction for driving under the influence, and mother is on probation until December 31, 2009. However, mother's current whereabouts were unknown.
The social worker's report and amendments for the jurisdiction hearing recommended that the petitions be sustained, that the children remain in out-of-home care, and that both parents receive family reunification services. The mother was released from jail in early December 2008. The mother's probation officer had a warrant issued for mother's arrest on January 29, 2009, because the mother was in violation of probation for not complying and her whereabouts were unknown. The mother calls the children periodically, but they are frustrated and disappointed because they do not hear from her on a regular basis. The social worker had telephone contact with the mother on March 11, 2009,*fn3 and the mother stated that she was aware that the children were with their paternal grandparents and that father was in jail, but that she did not have any information on how to contact the social worker. The mother stated that she was living near her family in Sacramento, that she did not know her address, and that she was not on probation. The social worker informed the mother of the address and time of a court hearing scheduled for March 13, 2009, but mother did not attend the hearing. Prior to their removal, the children had been residing with the paternal grandparents at the grandparents' home since September 2007, and father had also lived with them when he was not incarcerated. Since their removal, the children have had regular weekly contact visits with father at Elmwood. Father expected to be released from Elmwood in August 2009, but he has an outstanding warrant from San Benito County. The paternal grandparents reported that they would seek legal guardianship or adoption if the parents do not reunite with the children.
Father was present with counsel at the jurisdiction hearing on April 17, 2009. Counsel for the Department submitted its report and addendums and asked the court to sustain the second amended petitions. Counsel for the Department then stated that, "after discussions out of court with counsel for the father, he is going to submit on the petition, and he is going to waive service and we're going to propose a legal guardianship with the grandparents and I will submit an order after hearing on that." Father's counsel stated, "Father understands that he has . . . reunification [as] his option and right. And he is aware of the case planning recommendation but I don't believe we did a formal waiver of reunification service in order to." Father informed the court that he had reviewed the petition and discussed it with counsel, and that he waived his trial rights. The court found the allegations in the second amended petitions to be true, and that the children come within the provisions and description of section 300, subdivisions (b) and (g). It then continued the matter for two weeks for disposition.
Father was not present at the scheduled disposition hearing on May 1, 2009, but was represented by counsel. Counsel stated that "what is unknown to me at this point is the extent to which service has or hasn't been accomplished according to the requirements of [section] 291 . . . . [T]he mother is out there somewhere but we're not exactly sure where, and I'm not sure what the status of the notice is, and so that may - I certainly would think that if notice is still a problem, then it would be inappropriate to go forward with the [section] 360 [subdivision] (a) guardianship that has been proposed. [¶] What the other question is, though, in terms of if notice has been proper, there is another whole legal question to be answered, and that is whether or not the Court can order [a section] 360 [subdivision] (a) guardianship without the consent of the absent parent." Counsel for the Department stated, "The [section] 360 [guardianship] is a fast track to legal guardianship, but even if that was not available to us there is another way to go to the legal guardianship, it would just take longer." The court continued the matter to May 15, 2009, so that the parties could brief the issues.
On May 15, 2009, father filed a brief contending that (1) if notice and due diligence to contact the mother have been made, her presence in order to advise the court of her lack of desire to receive family reunification or maintenance services is not necessary for the court to issue letters of guardianship pursuant to section 360, subdivision (a); and (2) father need not fill out a formal waiver of reunification services form in order for the court to have authority to order a guardianship under section 360, subdivision (a). A blank waiver of reunification services form was attached to the brief. The Department filed a brief contending that "both parents must waive their right to services in order for the court to order a legal guardianship under Section 360, subdivision (a). Counsel for the minors supports this position." In the brief, the Department stated that on March 18, 2009, mother had left a message for the social worker stating that she was not able to arrange transportation to the March 13, 2009 hearing, and that she was returning to the Bay Area soon and would get in touch with her.
Father was present with counsel at the continued May 15, 2009 hearing. The court thanked the parties for their briefs and stated that it was "going to follow the Department's recommendation." It found that section 360, subdivision (a) "seems to require the participation of the parent. And we don't have that here because mom is not here." Father argued that mother was not entitled "to get reunification services under the law, because she is not here. . . . She has not come forward." Counsel for the Department noted that "the mother was not noticed by the court clerk. The court gave, the clerk gave notice to the father, he was in jail but the mother's whereabouts were unknown so she has not had formal notice." Father acknowledged that the court could not make the required finding that mother had been properly noticed if she had not been. "If that hasn't happened I don't think we can do anything today. I think that she has to be noticed." Counsel for the children agreed ...