(Super. Ct. No. NJ14156B) APPEAL from orders of the Superior Court of San Diego County, Cynthia A. Bashant and Blaine K. Bowman, Judges. Reversed with instructions.
The opinion of the court was delivered by: Irion, J.
CERTIFIED FOR PUBLICATION
This appeal concerns one-year-old Kaylee H., the daughter of Jesse H. and Tonya K. Shortly after Kaylee was born, her parents placed her with her paternal great-uncle, Craig D., while they worked to resolve their substance abuse and legal problems. With the parents' consent, Craig filed for guardianship of Kaylee in probate court. He was granted temporary guardianship. The probate court referred the matter to the San Diego County Health and Human Services Agency (the Agency) to investigate whether dependency proceedings should be initiated in juvenile court.
After completing the investigation, the social worker decided not to file a Welfare and Institutions Code section 300*fn1 petition on Kaylee's behalf and recommended that guardianship proceed in probate court. Expressing concerns about Tonya proceeding without legal counsel in probate court, the juvenile court directed the Agency to file a section 300 petition, which the Agency did. After denying a motion akin to a demurrer and finding that the petition stated a prima facie case that Kaylee was a child described by section 300, the juvenile court dismissed the guardianship, made a true finding on the petition and removed Kaylee from parental custody.
Jesse asserts the juvenile court erred when it directed the Agency to file the section 300 petition. Jesse further contends the court erred when it denied a motion akin to a demurrer and adjudicated Kaylee a dependent of the juvenile court.
FACTUAL AND PROCEDURAL BACKGROUND
Kaylee was born healthy in December 2010. Her parents, Jesse and Tonya, have a history of methamphetamine use and involvement with child protective services and the criminal justice system. At the time of Kaylee's birth, the parents were involved in a dependency proceeding concerning their daughter, S.H., pending a section 366.26 hearing.*fn2 On January 13, 2011, Jesse and Tonya placed one-month-old Kaylee in the care of Craig, who petitioned the probate court for guardianship with the parents' consent. The probate court appointed Craig as Kaylee's temporary guardian.
On April 11, a guardianship investigator, citing the parents' legal problems and substance abuse issues, reported that the guardianship was requested due to the parents' inability to care for Kaylee and to meet her needs on a daily basis. The investigator reported that Craig and his wife (together, the D.'s) did not have any criminal or child protective history, and there were no specific concerns about Craig's suitability as guardian.
The probate court referred the case to the Agency to investigate a potential dependency pursuant to Probate Code section 1513. The social worker investigating the matter decided not to file a section 300 petition and instead recommended that permanent guardianship be established for Kaylee in probate court.
On July 20, the juvenile court reviewed the decision of the social worker not to file a section 300 petition. (§ 331.) The juvenile court directed the social worker to file a petition on Kaylee's behalf and stated that if, after receiving the advice of counsel, the parties agreed that probate guardianship was the "best route . . . for Kaylee," it would then be appropriate to dismiss the section 300 petition at the jurisdictional/dispositional hearing and proceed in probate court.
On August 8, the Agency filed a petition under section 300, subdivision (b) alleging the parents used methamphetamine from 2009 to 2010, and after Kaylee was born, they placed her in the care of Craig, who was seeking guardianship. The Agency recommended that the juvenile court dismiss the section 300 petition and allow the matter to proceed in probate court. The social worker reported that Kaylee was in good health and was clearly bonded to Craig. Her parents were "very much in favor" of establishing a guardianship. Tonya said she understood the dependency system because she "grew up in it" and had participated in S.H.'s case. She never abused or neglected Kaylee and ensured that Kaylee had adequate care while she was incarcerated. Tonya was incarcerated until October 27, 2011. She was attending Narcotics Anonymous (NA) meetings and other classes.
Jesse was in a court-ordered outpatient rehabilitation program. He lived with his grandparents near his uncle, and saw his uncle and Kaylee almost daily. Jesse said Kaylee had been in the D.'s care for seven months. They were taking very good care of her, and she was bonded with them.
At the August 9 detention hearing, Jesse, through his attorney, challenged the legal sufficiency of the petition (motion akin to a demurrer, or motion). Tonya joined in the motion. Minor's counsel opposed the motion on the ground she had not yet completed her due diligence investigation. The Agency submitted on the motion.
The juvenile court denied the motion akin to a demurrer, stating the petition alleged the parents used methamphetamine and placed the child in the care of another person, who was seeking guardianship of the child, and the juvenile court had ordered the Agency to initiate the proceedings. If true, the allegations demonstrated there was a substantial risk of future harm to the child if the child was to be in the care of her parents.
The juvenile court received a form entitled "Letters of Temporary Guardianship or a Conservatorship" that was filed with the clerk of the superior court on June 15, 2011. The document indicated that Craig was Kaylee's temporary guardian, and the letters of guardianship would expire on August 17. The juvenile court made a prima facie finding on the petition, terminated the temporary guardianship without providing notice to the parties as required under sections 728 and 294, and ordered the Agency to detain Kaylee with the D.'s.
In reports prepared for the jurisdictional and dispositional hearing, the Agency recommended that the juvenile court sustain the section 300 petition and offer family reunification services to the parents. It also stated it was in agreement to grant guardianship of Kaylee to Craig.
The social worker reported that Tonya started using methamphetamine in 1995. Her longest period of sobriety was during a two-year prison term. After her release, Tonya was sober for approximately 15 months in 2008/2009 but relapsed when she became homeless. When Tonya discovered she was pregnant with Kaylee, she enrolled in an inpatient substance abuse treatment program. She relapsed in January 2012 after signing Kaylee's guardianship papers. Tonya planned to enter an outpatient substance abuse program when she was released from jail in October.
Tonya believed that it was in Kaylee's best interests to be with the D.'s and wanted to proceed with the probate guardianship. The D.'s had cared for Kaylee since she was one month old and did a "fantastic job." Tonya agreed to the guardianship because she wanted to protect her child. Tonya said she always intended to do the right thing but made mistakes. She did not want Kaylee to suffer because of her mistakes.
Tonya told the social worker that she planned to live with the D.'s when she was released from custody. The social worker informed her that she would not be able to live with the D.'s because Kaylee was placed there. Tonya said she would make alternate living arrangements. She was willing ...