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In re J.D.

California Court of Appeals, First District, Fourth Division

September 25, 2013

In re J.D. et al., Persons Coming Under the Juvenile Court Law.
v.
THE SUPERIOR COURT OF SAN FRANCISCO CITY AND COUNTY, Respondent A.H., Petitioner,
v.
SAN FRANCISCO HUMAN SERVICES AGENCY et al., Real Parties in Interest.

San Francisco City and County Super. Ct. Nos. JD10-3106B, JD10-3106-C, Trial Judge Hon. Linda H. Colfax

Counsel for Petitioner and Appellant Law and Mediation Offices of Julia Ten Eyck, Julia Ten Eyck Law Office of Deborah Dentler, Deborah Dentler, under appointment by the Court of Appeal through the First District Appellate Project, Independent Case System.

Counsel for Real Party in Interest and Plaintiff San Francisco Human Services Agency Gordon-Creed, Kelly, Holl & Sugerman, Anne H. Nguyen.

Counsel for Real Parties in Interest and Respondents J.D. et al. Leslie A. Barry, under appointment by the Court of Appeal through the First District Appellate Project, Independent Case System.

RUVOLO, P. J.

Introduction

This opinion addresses two appellate proceedings—a writ petition and an appeal—that arise from the same juvenile dependency cases in the San Francisco Superior Court (the juvenile court), and were consolidated in this court. The person seeking appellate review in both matters is the paternal grandmother (Grandmother) of a group of siblings who are the subject of the dependency proceedings. Grandmother was appointed guardian of the sibling group by the probate department of the San Mateo Superior Court (the probate court) in 2004, more than five years before the initial petition was filed in the dependency proceedings.

Grandmother’s appeal was taken from a juvenile court order granting two petitions filed jointly by the two youngest members (collectively Minors) of the sibling group: one under Welfare and Institutions Code section 728, [1] seeking to terminate Grandmother’s predependency probate guardianship, and another under section 388, seeking to change Minors’ placement by removing them from Grandmother’s custody, and placing them in the home of an aunt and uncle (Aunt and Uncle). Grandmother’s writ petition challenges the juvenile court’s subsequent order setting a permanency planning hearing under section 366.26.

Grandmother contends that the juvenile court could not terminate her probate guardianship in the absence of a recommendation from the San Francisco Human Services Agency (the Agency). She also argues that the termination could not take effect in the absence of an order from the probate court. We reject both of these contentions, and hold that under the governing statutes, a juvenile court has the authority to terminate a predependency probate guardianship in response to a motion filed by counsel for the dependent minors, whether or not the social services agency that initiated the dependency proceedings so recommends, and even if the probate guardianship was established in a different county.

Grandmother also argues the juvenile court erred in: (1) changing Minors’ placement without finding by clear and convincing evidence that her continued custody of Minors would be detrimental to them; (2) removing Minors from her custody without offering her reunification services; and (3) setting a permanency planning hearing under section 366.26 without first offering her an opportunity to reunify with Minors. All of these contentions rest on the premise that Grandmother’s probate guardianship was improperly terminated. As we reject that premise, we also reject Grandmother’s additional arguments.

Facts and Procedural Background

In December 2004, the probate court appointed Grandmother to be the legal guardian of Minors, their two older full siblings (Siblings), and their mother’s oldest child, their half-sister. At the time, Minors’ father was serving an extended prison sentence, and their mother could not be located.[2] From December 2004 until the spring of 2010, Minors and Siblings, as well as the older half-sister, lived with Grandmother in San Francisco.

The Agency initiated the dependency proceedings in March 2010, after Siblings complained that Grandmother was physically abusing them. In August 2010, the juvenile court placed Siblings with Aunt and Uncle, and returned Minors to Grandmother’s custody. In June 2011, Minors’ counsel filed a section 388 petition seeking to change Minors’ placement to the home of Aunt and Uncle, and to terminate Grandmother’s probate guardianship. The juvenile court denied the petition, and Minors appealed (the prior appeal).

In June 2012, this court affirmed the denial of Minors’ section 388 petition. (In re A.D. (June 8, 2012, A133223) [nonpub. opn.] (In re A.D.).[3]) We held that a section 388 petition “is not the appropriate procedural vehicle for terminating a predependency probate guardianship.” (In re A.D., supra, [p. 9].) We also held that because Grandmother was “a predependency [probate] guardian rather than a dependency guardian” (id. [at p. 10]), Minors could not be removed from her custody in the absence of “clear and convincing evidence... of one of the grounds for removal specified in section 361, subdivision (c).” (Id. [p. 11], fn. omitted.)

While the prior appeal was pending, in February 2012, Minors filed another section 388 petition, and a petition under section 728 for termination of Grandmother’s probate guardianship (the February petitions).[4] On April 25, 2012, the juvenile court denied the February section 728 petition, and set the February section 388 petition for hearing on June 11, 2012. On that date, however, the hearing was continued to August 27, 2012.

On August 2, 2012, after our opinion on the prior appeal became final, Minors filed another section 388 petition and another section 728 petition (the August petitions). Hearings on the August petitions were conducted during portions of four nonconsecutive days, starting on August 27, 2012, and ending on November 27, 2012. At the conclusion of the hearings, the juvenile court entered an order granting both of the August petitions, terminating Grandmother’s probate guardianship, and placing Minors with Aunt and Uncle. The court ordered that Grandmother be ...


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