M.C. v. Superior Court CA3 ( 2022 )

Filed 6/8/22 M.C. v. Superior Court CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
M. C., C094835
Petitioner, (Super. Ct. No.
STKJDDP20210000167)
v.
THE SUPERIOR COURT OF SAN JOAQUIN
COUNTY,
Respondent;
SAN JOAQUIN COUNTY HUMAN SERVICES
AGENCY et al.,
Real Parties in Interest.
M. C. (petitioner), the guardian and grandmother of the minor, seeks an
extraordinary writ to vacate the juvenile court’s orders made at the dispositional hearing
terminating her guardianship and setting a hearing pursuant to Welfare and Institutions
Code1 section 366.26. (Cal. Rules of Court, rule 8.452.) In addition to contesting the
termination of her guardianship, petitioner contends there was insufficient evidence to
support one of the jurisdictional findings, that she should have been found to be the
1 Further section references are to the Welfare and Institutions Code.
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minor’s presumed mother, and that there was inadequate compliance with the notice
provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.)
We issued a stay of the section 366.26 hearing and requested supplemental briefing
addressing the following: “1. What specific procedures, if any, were required to be
followed prior to terminating petitioner’s guardianship? [¶] 2. If any specific
procedures were required prior to terminating petitioner’s guardianship, were they
adhered to in this case? [¶] 3. If required procedures to terminate petitioner’s
guardianship were not adhered to, what is the appropriate remedy?” We shall now deny
the petition without issuance of an order to show cause because no prima facie showing
for relief was made and we shall vacate the stay. (See Sipper v. Urban (1943) 22 Cal.2d
138, 141 [application for writ required showing of prima facie case entitling petitioner to
relief]; California Correctional Peace Officers Assn. v. State Personnel Bd. (1995)
10 Cal.4th 1133, 1155 [same]; Joyce G. v. Superior Court (1995) 38 Cal.App.4th 1501,
1509 [issuance of an alternative writ or order to show cause not required in every
extraordinary writ proceeding]; Kowis v. Howard (1992) 3 Cal.4th 888, 893 [upon
ascertaining that petition is in proper form and states a basis for relief, court may issue an
alternative writ or order to show cause].)
Petitioner’s contention that the inquiry and notice provisions of the ICWA were
not satisfied is premature because it does not appear the juvenile court made an ICWA
ruling at or before the challenged dispositional hearing as to whether ICWA applied to
the proceedings. The most recent juvenile court order related to the ICWA is the transfer
out order that “[t]he court has not yet determined whether ICWA is applicable.” Any
opinion we could give on the adequacy of the inquiry and/or notice would be advisory.
(See People v. Buza (2018) 4 Cal.5th 658, 693 [“We . . . abide by . . . a ‘ “cardinal
principle of judicial restraint -- if it is not necessary to decide more, it is necessary not to
decide more” ’ ”]; cf. Safai v. Safai (2008) 164 Cal.App.4th 233, 242-243 [“The Trustees
have advanced no particular reason why this court should rule on those objections in the
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first instance, when there is nothing to indicate that the trial court will not fulfill its duty
at some future time”]; Pacific Legal Foundation v. California Coastal Com. (1982)
33 Cal.3d 158, 171 [ripeness doctrine generally prevents courts from issuing purely
advisory opinions on matters before the controversy between the parties has become
sufficiently “ ‘definite and concrete’ ”].) Any perceived deficiencies with ICWA inquiry
and noticing may be raised and resolved during the normal course of the ongoing
dependency proceedings.
Petitioner’s contention that the evidence does not support the section 300,
subdivision (d), jurisdictional allegation is not well-taken.2 The record reflects petitioner
knew or should have known that the minor was at risk in the home of the mother and
mother’s boyfriend, yet she and the minor remained in the home and petitioner continued
to expose the minor to unsupervised contact with mother and her boyfriend, even after
the minor repeatedly disclosed sexual abuse. Indeed, petitioner moved (temporarily) into
mother and her boyfriend’s home, with the minor, after minor’s repeated reports of sexual
abuse and knowing of mother’s ongoing substance abuse.
We also reject petitioner’s contention that the juvenile court erred in not declaring
her to be the minor’s presumed mother. First, as the juvenile court remarked, it was
“asked all of a sudden to determine a presumed parent status.” Petitioner did not
formally move to be found the minor’s presumed mother. Her counsel merely requested
it during closing argument as an alternative means of entitling and providing petitioner
with reunification services, should the court determine that guardians are not entitled to
reunification services pursuant to section 361.5. Moreover, the evidence supports the
juvenile court’s denial of presumed parent status. Although petitioner had been the
minor’s guardian since the minor’s infancy, she did not consistently hold the minor out as
2 Petitioner does not contest the remaining grounds for jurisdiction and requests
only that the section 300, subdivision (d), finding be stricken.
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her own. Many people knew she was the minor’s guardian, not parent. Petitioner
testified the minor referred to her both as “mommy” and “grandma,” and referred to
mother as “mama” or “Cassie.” The minor had frequent contact with her biological
mother and has always known she was her mother. Most importantly, the evidence
established petitioner still considered mother to be the minor’s mother and, therefore,
facilitated visits between minor and mother with the purpose of “reunification,” which
she believed was within her discretion.
Regarding the termination of petitioner’s probate guardianship, we disagree with
petitioner that the juvenile court did not have the authority to terminate her guardianship
without first providing her with reunification services. Had the juvenile court not
terminated petitioner’s probate guardianship, petitioner would have been entitled to
reunification services. (§ 361.5, subd. (a).) But section 728 expressly provides the
juvenile court with authority to terminate a probate guardianship at any stage of the
proceedings. (§ 728; Cal. Rules of Court, rule 5.620; In re Merrick V. (2004) 122
Cal.App.4th 235, 253.) Those procedures provide for notice to the guardian and other
interested parties of the request to terminate the guardianship, an opportunity for those
individuals to be heard, and evidence to be presented for the court to determine whether
termination of the guardianship is in the minor’s best interest. (§§ 728, subd. (a), 294;
Cal. Rules of Court, rule 5.620.) The hearing on the motion may be held simultaneously
with any regularly scheduled hearing held in proceedings to declare the minor a
dependent child, or at any subsequent hearing concerning the dependent child. (§ 728,
subd. (a).)
Concededly, the juvenile court and San Joaquin County Human Services Agency
did not utilize the section 728 process to terminate petitioner’s guardianship in this case.
However, the failure of the juvenile court and San Joaquin County Human Services
Agency to do so did not result in a failure to provide timely notice to petitioner, deprive
petitioner of the opportunity to be heard, or result in the court’s failure to determine
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whether termination of the guardianship was in the minor’s best interest. Thus, while the
failure to proceed in accordance with section 728 was error, it did not result in a
miscarriage of justice or violation of due process; nor did petitioner object to going
forward with consideration of the matter at the contested disposition hearing, in the
absence of the filing of a section 728 motion. Accordingly, reversal is not required. (See
In re Angel S. (2007) 156 Cal.App.4th 1202, 1206-1210; see also In re James F. (2008)
42 Cal.4th 901, 918 [“[i]f the outcome of a [dependency] proceeding has not been
affected, denial of a right to notice and a hearing may be deemed harmless and reversal is
not required”].)
Finally, the parties agree that the juvenile court is required to notify the probate
court of its termination of petitioner’s guardianship. (§ 728, subd. (b); Cal. Rules of
Court, rule 5.620(e).) Should the juvenile court decline to do so, the parties may seek
appellate intervention at that time.
DISPOSITION
The petition for extraordinary writ is denied. Having served its purpose, the stay
of the section 366.26 hearing is vacated.
/s/
Robie, Acting P.J.
We concur:
/s/
Duarte, J.
/s/
Renner, J.
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