In Re Catherine H.
RICHLI, J.
When the juvenile court takes custody away from a legal guardian previously appointed,
I
FACTUAL AND PROCEDURAL BACKGROUND
Janice H. is the mother of Catherine H. and her older sister, Theresa H. (who is not a party to this appeal). When this case was filed, Catherine was 12; she is now 14.
Janice suffers from mental illness. In August 1999, she was twice involuntarily hospitalized. Florence A., Janice‘s mother, took Theresa and Catherine into her care. Upon Janice‘s release, Florence filed a guardianship petition in family court. On August 26, 1999, the family court appointed Florence as temporary guardian; on June 22, 2000, it appointed her as permanent guardian.
On May 26-27, 2001, Florence left four minors home overnight without any adult supervision: Catherine, Theresa, one of Florence‘s grandsons, and one of Theresa‘s friends. The only other adult in the house was Florence‘s son Daniel, who was schizophrenic and incapable of looking after the children. Florence‘s grandson amused himself by throwing Molotov cocktails into traffic. When the police responded, Theresa admitted that she and her friend had been drinking alcohol and smoking marijuana. Catherine was detained and placed in a foster home. Florence told social workers that she was too old to care for Catherine properly, and she felt it was in Catherine‘s best interest to remain in foster care.
On May 30, 2001, the San Bernardino County Department of Children‘s Services (the Department) filed a dependency petition in juvenile court as to Catherine, alleging that Florence had failed to supervise or protect her. (
On July 31, 2001, the date set for the jurisdictional/dispositional hearing, Florence filed a written waiver of reunification services. The juvenile court accepted her waiver. Florence noted, however, that she was not consenting to terminate the guardianship.
Janice‘s counsel announced that Janice was seeking custody and asked the juvenile court to set a contested hearing. Minor‘s counsel objected that Janice did not have standing to contest any jurisdictional/dispositional issues. The Department‘s counsel likewise objected: “[T]he Court is removing custody from the guardian, and we‘re not terminating the guardianship, so [Janice] at this point does not have [the] right to custody.” The juvenile court denied Janice‘s request, ruling that: “[Janice] ... does not have standing in which to object to the J.D....” However, it continued the hearing, partly to allow Janice‘s counsel “to bring forth any case law which would prove the Court wrong.”
On August 21, 2001, at the continued hearing, Janice was not present. Janice‘s counsel did not contest jurisdiction; however, she reiterated her request for a contested dispositional hearing. Counsel for the Department and for the minor objected again. They argued: “[I]f [Janice] wishes to do anything, I think [she] has to file a [Welfare and Institutions Code section] 388 [petition].” The juvenile court agreed that: “[Janice‘s] correct course of action would be [to file] a [Welfare and
The juvenile court then found the allegations of the petition true. It declared Catherine a dependent and formally removed her from Florence‘s custody. It also selected long-term foster care as her permanent plan.
II
REFUSAL TO HOLD A CONTESTED DISPOSITIONAL HEARING
Janice contends the juvenile court erred by denying her request for a contested hearing. In her opening brief, she relied on
We requested further briefing. We noted that generally, when the juvenile court removes a child from a parent or guardian‘s custody, it must consider placing that child with any noncustodial parent who so requests. (
The Department argues that
Once a petition has been filed, the juvenile court has exclusive jurisdiction over custody of the child—specifically including any guardianship proceedings. (
The Department also argues that, in a dependency proceeding under
Indeed,
The Department also argues that
The Department therefore argues that Janice was “mentally ill, frequently homeless and difficult to maintain contact with.... She did not fit the description of a competent parent able to immediately assume custody....” In sharp contrast to the father in Zacharia D., whose parental incompetence was shown by “uncontroverted testimony,” Janice was never allowed to present any evidence of her competence. The petition did not contain any allegations concerning her. She had had no opportunity to controvert the evidence
The Department suggests that the order creating the guardianship conclusively established Janice‘s inability to assume custody. There is an exception to collateral estoppel, however, which allows the relitigation of custody issues in juvenile court even though they have already been litigated in family court. (In re Desiree B. (1992) 8 Cal.App.4th 286, 291-293, 10 Cal.Rptr.2d 254.) Moreover, even if the order could have collateral estoppel effect, it would merely establish that in June 2000, when Florence wanted custody, leaving Catherine with Janice would have been detrimental. (See
This brings us to the Department‘s next argument: that, even assuming the juvenile court had to consider placement with Janice, she was not entitled to a contested hearing on this issue.
Constitutional considerations confirm our conclusion. “It is well established that, if reasonably possible, statutory provisions should be interpreted in a manner that avoids serious constitutional questions. [Citations.]” (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1197, 86 Cal.Rptr.2d 778, 980 P.2d 337.) Whenever
It has been held that denying a parent‘s request for a contested review hearing violates due process. (In re James Q. (2000) 81 Cal.App.4th 255, 265-267, 96 Cal. Rptr.2d 595; Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 755-760, 89 Cal. Rptr.2d 407.) At a review hearing, the juvenile court must return the child to the custody of the parent or guardian, unless it finds that this would present a substantial risk of detriment. (
We need not decide whether the juvenile court here actually violated due process. It is enough that interpreting the dependency statutes as allowing the juvenile court to do what it did would present serious due process issues; interpreting them as forbidding it is not only the better reading, but also an indisputably constitutional one. We therefore hold that a noncustodial parent seeking custody after his or her child has been removed from the custody of a predependency guardian has standing to request a contested dispositional hearing and, when the hearing is held, to appear, to be heard, and to present evidence.
We also need not decide whether the juvenile court could have required Janice to make an adequate offer of proof as a condition of granting her request for a contested hearing. (Compare In re Tamika T. (2002) 97 Cal.App.4th 1114, 1122-1123, 118 Cal.Rptr.2d 873 with In re James Q., supra, 81 Cal.App.4th at pp. 266-267, 96 Cal.Rptr.2d 595.) It is clear that it would have denied her request based on lack of standing, no matter what offer of proof she made. Any offer-of-proof requirement was excused as futile. (See
Finally, we need not decide what the outcome would be if the juvenile court had established the guardianship in the dependency proceeding. Typically, that would mean there had already been: (1) a dispositional hearing, at which the juvenile court found it necessary to remove Catherine from Janice‘s custody and, absent some exception, ordered reunification services for Janice (
Even under the state-law standard of prejudice, the erroneous denial of a contested hearing is a miscarriage of justice. (Adoption of Baby Girl B. (1999) 74 Cal.App.4th 43, 55, 87 Cal.Rptr.2d 569 [Fourth Dist., Div. Two]; Kelly v. New West Federal Savings (1996) 49 Cal. App.4th 659, 677, 56 Cal.Rptr.2d 803.) There may be an exception where the record not only shows what evidence the appellant would have offered, but also demonstrates that that evidence would not have changed the result (see Adoption of Baby Girl B., supra, at pp. 55-56, 87 Cal. Rptr.2d 569); this, however, is not such a case. Certainly the record before us suggests that Janice will have, at best, an uphill battle obtaining custody on remand. Nevertheless, she is entitled to an opportunity to develop a different record by introducing whatever evidence in her favor there may be.
At oral argument, the Department argued that Janice was not prejudiced because she did not attend the continued dispositional hearing on August 21, 2001; thus, it argued, even if the juvenile court had granted her request for a contested hearing, she could not have presented evidence. We disagree, for two reasons. First, Janice‘s testimony was not required. Janice‘s attorney was present; she may well have been ready to present other evidence that placement with Janice was in Catherine‘s best interest. Indeed, we can imagine sound strategic reasons for not calling Janice to testify. Second, if the juvenile court had ruled that Janice had standing, it could have—and, most likely, would have—continued the hearing. That is the customary result of a request for a contested hearing. Moreover, the juvenile court had continued the hearing expressly to permit further argument on Janice‘s standing. The parties could reasonably expect that the hearing would be limited to that issue. After all, if it ruled (as it did) that she did not have standing, there would be no point in having witnesses ready and waiting. If, on the other hand, it ruled that she did have standing, it could set a contested hearing for a later date.
We therefore conclude that the juvenile court erred prejudicially by denying Janice‘s request for a contested dispositional hearing on the ground that she lacked standing.
III
DISPOSITION
When this appeal was in its early stages, we questioned whether Janice had standing to appeal. We asked the parties to file letter briefs on this issue. However, we reserved ruling on it. Now, having held that Janice had standing below, we necessarily also hold that she likewise had standing to appeal.
Alternatively, however, even if she did not have standing below, she would still be aggrieved by the trial court‘s ruling that she did not have standing. Thus, she would still have standing to appeal. (
The jurisdictional provisions of the order appealed from, including the finding that the allegations of the petition are true and the declaration that Catherine is a dependent child of the court, are affirmed. The dispositional provisions of the order, including the findings that there is no previously noncustodial parent who desires custody, that Catherine‘s placement is appropriate and necessary, and that long-term foster care is the appropriate permanent plan, are reversed. On remand, the juvenile court is directed to hold a new dispositional hearing and to allow Janice, through her counsel, to appear, to be heard, and—provided she makes a timely and appropriate request—to present evidence at that hearing.
We concur: HOLLENHORST, Acting P.J., and McKINSTER, J.