California Court of Appeals, Second District, First Division
for extraordinary relief after reference to a Welfare and
Institutions Code section 366.26 hearing, No. NJ11407B,
Michael Imhoff, Commissioner.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Legal Group of San Diego and Morgan D. Ross for Petitioner.
appearance for Respondent.
E. Montgomery, County Counsel, and Paula J. Roach, Deputy
County Counsel, for Real Party in Interest.
Legal Services of San Diego, Inc., and Julia Schooler for
by McConnell, P. J., with Nares and Irion, JJ., concurring.
Cal.Rptr.3d 456] McCONNELL, P. J.
2013, the juvenile court terminated reunification services
for B.B. (Father) and appointed minor H.B.'s maternal
aunt as legal guardian. In 2016, the San Diego County Health
and Human Services Agency (Agency) filed a new petition under
Welfare and Institutions Code. section 300 and sought to
terminate the guardianship. Father seeks writ review of the
juvenile court's order terminating the guardianship and
setting a section 366.26 hearing to determine a new permanent
plan for H.B.
contends the Agency erred when it filed a new section 300
petition instead of a petition under section 388 to terminate
the guardianship. He argues this error was prejudicial
because it denied him the opportunity to seek
reunification services at a 60-day review hearing following
termination of the guardianship. We conclude any error was
harmless and deny Father's writ petition.
AND PROCEDURAL BACKGROUND
H.B.'s parents lost custody and failed to reunify with
him in a prior dependency proceeding brought under section
300, subdivision (b), due to their extensive drug use. In
2013, the juvenile court terminated Father's
reunification services and set a section 366.26 hearing to
determine H.B.'s permanent plan.
section 366.26 hearing in May 2013, the court appointed
H.B.'s maternal [211 Cal.Rptr.3d 457] aunt as his legal
guardian (Guardian) and issued letters of guardianship. The
court did not terminate parental rights and ordered
supervised visitation for both parents, allowing Guardian to
determine the time, place, manner, frequency, and length of
visits. The court terminated dependency jurisdiction and
vacated all future hearings.
March 2015, the family again came to the Agency's
attention when Guardian allowed unsupervised parental
visitation. Father tried to use H.B. to smuggle heroin to the
mother (Mother) while she was incarcerated; he drove H.B. to
the jail while under the influence of heroin and
methamphetamine. Guardian claimed she was unaware the
parents' contact needed to be supervised and signed a
safety plan with the Agency stating she would not allow
further unsupervised contact.
2016, Guardian again left H.B. unsupervised with Father and
Mother. Police conducted a parole search of Father's
hotel room and found 14 syringes (one loaded with heroin),
1.1 grams of methamphetamine, a glass pipe, and six metal
spoons. The drugs were accessible to H.B., who was sleeping
on the floor. A social worker met with Mother and Father
after their arrest. Father was not sober and admitted using
heroin daily, " a couple of times a day." He
claimed he and Mother hid their drugs from H.B. and that on
the day of his arrest, the drugs were " nowhere
near" where H.B. was sleeping. Mother told the social
worker H.B. had been staying with them for the past few weeks
and that they often took him to and from school. Guardian
told the social worker she had allowed the parents to care
for H.B. because she ...