In Re Carrie W.
VARTABEDIAN, Acting P.J.
When a guardian, whose guardianship responsibilities were initiated as a permanent plan in a dependency proceeding, becomes incapable of providing custody for a minor, causing the change of custody to a new party under a permanent plan of longterm foster care, should the juvenile court terminate the guardianship because the guardianship is not permitted by law to coexist with the new permanent plan? We determine that such a termination is correct.
The juvenile court obtained dependency jurisdiction over four siblings, two boys and two girls, due to their parents’ failure to protect and provide for them. The children were all placed with their maternal grandmother, appellant Della Z. After reunification efforts with the parents failed, a permanent plan of legal guardianship with the grandmother was established. Dependency jurisdiction continued. The oldest child sexually assaulted his sister, the second oldest child, and was removed from the home of the grandmother. The misbehavior of the remaining three children resulted in their removal from grandmother‘s care, as well, although the guardianship continued. The younger boy was returned to his grandmother‘s care; the other three remained separately in group homes or foster homes. A hearing was held and the court terminated legal guardianship as to the three children not in grandmother‘s care and ordered a permanent plan of long-term foster care. The court granted de facto parent status to the grandmother. The grandmother appeals, claiming she did not receive adequate notice and the trial court should have allowed her to remain the legal guardian of the children
BACKGROUND
On August 9, 1994, a
A fourth child, Crystal, was born in October 1994, and dependency was established shortly after her birth. Her case was consolidated with the case of her siblings. Crystal was allowed to reside with her mother while the mother was in a drug treatment program. The mother dropped out of the program, and Crystal went to live with grandmother.
After the parents failed to comply with the reunification plan services offered to them, the Department recommended that a permanent plan of long-term guardianship with the grandmother be established. Reunification services were terminated for the parents and the trial court established legal guardianship as the permanent plan. Grandmother was appointed as the legal guardian of the four children, and guardianship papers were issued. It was ordered that the children remain dependent children of the juvenile court.
The matter was reviewed several times, with the children remaining dependents of the court and the grandmother remaining as their legal guardian. Over the course of time all of the children exhibited behavioral problems. The family received extensive services to attempt to control the myriad of problems they were experiencing.1
On July 10, 2000, a
A hearing was held on the supplemental petition. The Department did not seek to set aside the guardianship at that time, but it wanted to move Jesse to a foster home. The court questioned what the proper procedure would be to put Jesse in foster care without setting aside the guardianship. The court continued the matter.
At the continued hearing on August 2, 2000, the court ordered the guardianship to continue with the grandmother; Jesse was transferred to a higher level of care outside the home of the grandmother. (The parties did not answer nor did the court address the previous question regarding the proper procedure to follow.)
On August 28, 2000, a supplemental petition was filed based upon grandmother‘s report that, after Jesse was removed from her home, the remaining siblings became out of control; she could no longer care for them. A therapist for the children filed a letter stating that the children required extraordinary care and energy. The grandmother was overwhelmed and had her own personal difficulties.
A jurisdiction hearing was held on the supplemental petition on September 26, 2000. The district attorney stated that
At an October 5, 2000, hearing, an attorney was appointed to represent grandmother. She was advised that the court could remove the children from her and terminate her rights to the children. Grandmother submitted the matter on the amended petition.
A disposition hearing was held on October 23, 2000. At the hearing, the court found the children to be dependent pursuant to
A review hearing was held on June 12, 2001. Grandmother asked that David be returned to her home, noting that she had complied with all of the services offered to her. The court ordered an extended visitation between David and the grandmother; reunification services were continued for the other three children. On August 13, 2001, the court ordered that David‘s placement change from extended visits to family maintenance with grandmother.
At the review hearing held on January 10, 2002, the court adopted the Department‘s recommendation of six more months of services regarding the guardianship as to Jesse, Carrie and Crystal. Family maintenance was continued for David. The court granted the orders as requested.
Another review hearing was held on July 9, 2002. The report prepared for the hearing recommended that reunification services be terminated as to Jesse, Carrie and Crystal and the matter be sent to assessment for a permanent plan. The social worker opined it was unlikely that Jesse, Crystal and Carrie would be returned to grandmother‘s care. It was recommended that services be continued for David. Grandmother submitted the case on the report as to Jesse, Carrie and David. Grandmother agreed that it was not in Jesse‘s and Carrie‘s best interests to attempt to place them with her at that time and that long-term foster care should be their plan. As for Crystal, grandmother requested that the matter be set for trial. The court set the matter for trial for Crystal. For Jesse and Carrie, the court found grandmother‘s progress inadequate.
Trial regarding Crystal was set for August 14, 2002. On that date, counsel for Crystal requested a three-month continuance because grandmother was the only family tie that Crystal had, and conjoint therapy with Crystal, David and grandmother had not occurred as ordered, through no fault of grandmother. The Department and grandmother agreed with Crystal‘s counsel. The court granted a three-month continuance.
Counsel for grandmother filed a petition for modification on September 24, 2002, seeking a continuance so that Crystal, Jesse and grandmother could participate in more therapy. The matter was continued on October 15, 2002.
One of Crystal‘s social workers filed a letter stating that grandmother had made inappropriate comments to Crystal, giving her false hopes that she would be able to move home. In addition, grandmother took Crystal home during one visit, which was against directions to grandmother. David and Crystal‘s treating clinician stated in a letter that David‘s and Crystal‘s anxiety levels dramatically rise when they are in each other‘s presence. After conjoint therapy sessions, Crystal‘s behavior deteriorated for two days after and similar deterioration was noted in Crystal‘s behavior after weekend visits with grandmother.
The
A report was prepared for a
A
On November 12, 2002, the court held three hearings seriatim. The first hearing was a family maintenance review for David. Grandmother submitted the matter based upon the report, and the trial court ordered continued family maintenance.
Next the court considered the
A
Grandmother appeals from the November 12, 2002 termination of legal guardianship.
In March of this year, after the appellant‘s opening brief was filed but before respondent‘s brief was due, the parties filed a joint application and stipulation to vacate the November 12, 2002 order and to issue an order for remand and immediate remittitur. We directed respondent to file briefing on the merits of the issues raised in appellant‘s opening brief.
DISCUSSION
We begin by pointing out that although the appellant and respondent treat the November 12, 2002 hearing as a unitary hearing and argue as if all the children‘s cases are in the same procedural posture; this is not so. David was continued in family maintenance; guardianship was not terminated as to him. Consequently, grandmother‘s arguments regarding termination of guardianship have no application to David. Jesse‘s and Carrie‘s hearings were at the stage of selection and implementation of permanent plan under
A. Notice
Grandmother contends the court‘s termination of her guardianship was improper because she was deprived of her due process rights to proper notice and an opportunity to be heard. Grandmother claims that she was entitled to 15 days’ notice and a copy of the petition to modify and terminate her guardianship. To first receive all of this in writing an hour before the hearing when termination of guardianship was at stake, argues grandmother, did not allow her sufficient time to prepare a defense to the allegations recommending the termination. She asserts that reversal is automatic when notice requirements are not met. In addition, she argues that the notice statute is mandatory and failure to comply with such a statute deprives a court of jurisdiction to proceed. Therefore, she claims, the orders of the juvenile court that occurred at this hearing should be invalidated.
Grandmother asserts the notice requirements relevant here are contained in California Rules of Court, rule 1429.1(e) and
California Rules of Court, rule 1429.1(e) refers to the termination or modification of previously established guardianships and references
The guardianship here was not established under the Probate Code; it was established under the dependency laws contained in the
The applicable rule for petitions to terminate a guardianship established by the juvenile court is California Rules of Court, rule 1466. It requires that, under rule 1460, the notice be served on the guardian “not less than 15 court days before the hearing date.” Unlike
The report regarding Carrie and Jesse recommending termination of grandmother‘s guardianship was clearly not served on grandmother. She received notice by telephone seven days before the hearing, which is clearly inadequate under any of the argued notice provisions; we further assume that service of documents on counsel does not suffice. In any event, respondent claims that grandmother has waived her right to challenge notice at this point because she did not make a timely objection below.
At the hearing for Jesse and Carrie, counsel for grandmother objected to the termination of guardianship and then rejected the trial court‘s offer to set the matter for trial. In rejecting the offer to set the matter for trial, counsel stated that there was no evidence to present, only argument. Grandmother did not assert a lack of notice nor did she want a continuance, as evidenced by her rejection of the court‘s offer to set the matter for trial. At no time did grandmother claim the trial court lacked complete and/or accurate information concerning the children and the guardianship. Neither did she allege that there was not a change in circumstances warranting reassessment of the guardianship.
“`“An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the [trial] court by some appropriate method .... The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver .... Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily
“Moreover, it would be inappropriate to allow a party not to object to an error of which the party is or should be aware, `“thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.” [Citation.]’ [Citation.]
“Appellate courts have applied the waiver doctrine in dependency proceedings in a wide variety of contexts, including cases involving failures to obtain various reports required by statute.” (In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502, 102 Cal.Rptr.2d 196.)
Grandmother waived her objections to proper notice of the termination of the guardianship as to Jesse and Carrie.
While grandmother makes this argument as to all the children, she fails to point out that the termination of her guardianship of Crystal occurred as a result of a separate report and occurred at a separate hearing, although that hearing occurred directly following the hearing for Jesse and Carrie. As previously set forth, the report prepared for Crystal‘s hearing stated that notice had been sent to grandmother on October 11, 2002. Grandmother has not shown that this notice was not proper and did not contain all the required information. Also, grandmother did not object to a lack of notice at the hearing. Although grandmother argues on appeal that she found out about the recommendation to terminate the guardianship at the hearing, there is nothing the record to support this assertion. Grandmother never stated that she was unaware that the Department was recommending a termination of guardianship.
Included in grandmother‘s lack-of-notice argument is the assertion that the notice requirements are mandatory. Thus, argues grandmother, the failure to give notice was a structural error requiring reversal per se. Grandmother‘s argument is based on the language contained in
Grandmother asserts that if we find that her counsel waived the issue of notice then her counsel was ineffective in representing her. She claims there was nothing to be lost by making the objection and, if she had objected, grandmother would have at least been entitled to a continuance based on the lack of notice and the Department would have been required to show a change of circumstance.
“`Where the ineffective assistance concept is applied in dependency proceedings ... [f]irst, there must be a showing that “counsel‘s representation fell below an objective standard of reasonableness ... [¶]
Assuming, for the sake of argument only, that counsel was ineffective in failing to object to the lack of notice, grandmother has not shown the requisite prejudice. Grandmother has not made any claim or asserted any facts to show that a continuance and/or a contested hearing would have altered the result. As acknowledged by her counsel, there were no additional facts to present to the court: the only thing to be presented was in the form of argument. Counsel for grandmother was unfettered in her ability to make an argument regarding the matter.
Respondent submits that grandmother‘s legal guardianship could only be terminated by means of a
Although a
B. Coexistence of Guardianship and Long-term Foster Care
We must now determine if the law prohibits the coexistence of a guardianship and long-term foster care. At more than one hearing the court questioned whether guardianship and long-term foster care could coexist. A definitive answer was never given in the trial court, but the trial court stated its belief the two could not coexist. Whether this question is viewed as trial error, as appellant contends, or ineffective assistance of counsel, as respondent asserts, is not determinative. The trial court suggested it would consider continuing the guardianship while also ordering the children into long-term foster care, but it thought the two could not be ordered at the same time. We can only assume from its ruling that the court acted under the belief the two could not coexist. Should we determine that guardianship and long-term foster care are permitted to coexist, it would be necessary for us to remand for a rehearing on the termination of the guardianship of grandmother to Jesse, Carrie and Crystal.
Grandmother claims that certain provisions of the Welfare and Institutions
Throughout the
A distinction between the two types of guardianship was recognized in In re Heraclio A. (1996) 42 Cal.App.4th 569, 49 Cal.Rptr.2d 713. In Heraclio A, guardianship was established as the long-term plan and dependency was dismissed. A petition for modification of the permanent plan was filed seeking to free the child for adoption. The court held that ”
Grandmother also relies on
Grandmother cites In re Catherine H. (2002) 102 Cal.App.4th 1284, 126 Cal. Rptr.2d 342 to support her position that legal guardianship and long-term foster care may coexist. In Catherine H., the child had a legal guardianship established in family court. A dependency petition was thereafter filed. The child was adjudged a dependent of the juvenile court and an immediate order for long-term foster care was established. The guardianship was not terminated. The child‘s mother appealed, arguing the court should have considered placing the child with her pursuant to
The court in Catherine H. thus recognized a differentiation between guardianships created in family court and those created in dependency proceedings. Furthermore, although the district court allowed the coexistence of a family court guardianship (even one that existed before the onset of dependency) and long-term foster care, it never discussed the propriety of it. Catherine H. does not aid grandmother‘s position.
The statutes are clear that you cannot have two long-term permanent plans. “At the permanency hearing the court must select one of the statutorily prescribed options.” (In re Tamneisha S. (1997) 58 Cal.App.4th 798, 804, 68 Cal.Rptr.2d 259.) Thus long-term plans of long-term foster care and legal guardianship established in dependency proceedings cannot coexist. The guardianship here is purely a creature of dependency and was created as part of a long-term plan. Dependency was never dismissed, so the guardianship did not have a life of its own outside of dependency. We find no statutes allowing the continuance of a guardianship existing only as part of a long-term plan concurrent with long-term foster care, and grandmother has not provided any convincing authority to show otherwise.
The children were removed because the guardian was unable to protect them, grandmother was offered services, and services failed. Legal guardianship in dependency is aimed at providing permanent homes for dependent children; grandmother‘s home is no longer suitable as a
The trial court noted the familial relationship grandmother has provided to these children and made her a de facto parent. There is nothing in the statutes precluding the court from choosing longterm guardianship in the future if the circumstances change and she is able to fill that role.
Grandmother has failed to show that the trial court erred when it terminated her long-term guardianship as to Jesse, Carrie, and Crystal. We reject the parties’ offer of a stipulation to reverse the juvenile court based on the parties’ agreement that the instant legal guardianship may continue in effect even though the court ordered a permanent plan of long-term foster care. It is in the public interest that this court render this opinion to make clear that two long-term permanent plans may not coexist.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HARRIS and CORNELL, JJ.