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B.B. v. Superior Court (San Diego County Health and Human Services Agency)

California Court of Appeals, Second District, First Division

December 9, 2016

B.B., Petitioner,
v.
THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest

         PROCEEDINGS for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing, No. NJ11407B, Michael Imhoff, Commissioner.

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         Dependency Legal Group of San Diego and Morgan D. Ross for Petitioner.

         No appearance for Respondent.

         Thomas E. Montgomery, County Counsel, and Paula J. Roach, Deputy County Counsel, for Real Party in Interest.

         Children's Legal Services of San Diego, Inc., and Julia Schooler for Minor.

         Opinion by McConnell, P. J., with Nares and Irion, JJ., concurring.

          OPINION

          [211 Cal.Rptr.3d 456] McCONNELL, P. J.

          In 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.[1] 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.[2]

         Father contends the Agency erred when it filed a new section 300 petition instead of a petition under section 388 to terminate the guardianship.[3] He argues this error was prejudicial because it denied him the opportunity to seek

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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.

         FACTUAL AND PROCEDURAL BACKGROUND

         Eight-year-old 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.

         At the 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.

         In 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.

         In June 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 ...


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