In re D.Y. ( 2018 )

Filed 9/6/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re D.Y., a Person Coming B287849
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. CK18081)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
D.Y.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Joshua D. Wayser, Judge. Reversed and
remanded with directions.
Marissa D. Coffey, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
The juvenile court placed appellant D.Y. under the legal
guardianship of his maternal grandmother in 2001, when he was
an infant. The court retained dependency jurisdiction over D.Y.
for the next 16 years, conducting review hearings every six
months. At one such review hearing in late 2017, the court
terminated dependency jurisdiction over the objections of D.Y.
and grandmother and against the recommendation of the Los
Angeles County Department of Children and Family Services
(DCFS). The court denied D.Y.’s request for a continuance to
enable DCFS to provide additional information about D.Y.’s
educational and orthodontic issues, and to enable D.Y. and
grandmother to be present for a contested hearing on terminating
jurisdiction.
In this appeal, D.Y. challenges the termination of
jurisdiction, which he contends was prohibited by Welfare and
Institutions Code section 366.3, subdivision (a) (section 366.3(a))1
due to grandmother’s objections. In the alternative, he argues
that the trial court abused its discretion by denying his request to
continue the matter. We disagree with D.Y.’s interpretation of
section 366.3(a), but agree that the court abused its discretion by
denying D.Y.’s request for a continuance. We accordingly reverse
and remand for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
D.Y. is the youngest of his mother’s five children. When he
tested positive for cocaine at birth in February 2001, his four
older siblings ranging in age from one to 11 already were
dependents of the court due to mother’s ongoing substance abuse
issues. All four of them lived with their maternal grandmother
1All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
(grandmother) under legal guardianships.
DCFS detained D.Y. in the prenatal special care unit of the
hospital. It filed a section 300 petition alleging that mother’s
substance abuse and prior neglect of his siblings placed D.Y. at
substantial risk of serious physical harm or illness. (§ 300,
subds. (b), (j).) It further alleged that mother, who left the
hospital shortly after D.Y. was born, failed to provide for D.Y.’s
support. (§ 300, subd. (g).) DCFS filed an amended petition in
April 2001 that retained these allegations and added several
similar allegations pertaining to D.Y.’s alleged father.
The dependency court sustained the amended petition in its
entirety in May 2001. It placed D.Y. with grandmother, with
whom he had been living since his release from the hospital, and
set the matter for a permanent plan hearing under section
366.26.
The court held the section 366.26 hearing in September
2001. The court found that a legal guardianship with
grandmother was in D.Y.’s best interest; letters of guardianship
were filed the same day. DCFS recommended that the court
terminate “all matters of dependency . . . pursuant to Kingap,”2
2“The Kin-GAP [Kinship Guardian Assistance Payment]
program is a state program that provides ongoing funding for
children who exit the dependency system to live with relative
legal guardians. In order to receive funding under the program
the county welfare agency must enter into a written binding
agreement with the relative guardian and dependency
jurisdiction must be terminated. (§§ 11386, 11387.)” (In re
Priscilla D. (2015) 234 Cal. App. 4th 1207, 1211, fn.2.) The court
retains jurisdiction over children in Kin-GAP arrangements as
wards of the legal guardianship, but no longer holds ongoing
review hearings. (See §§ 366.3, subd. (a), 366.4, subd. (a); In re
3
but grandmother informed the court that she did “not desire Kin-
gap.” The court concluded that “further DCFS supervision is
necessary” and retained dependency jurisdiction over D.Y.
During the next 16 years, the court held review hearings
every six months. The issue of whether dependency jurisdiction
should be terminated arose intermittently, often at the
prompting of the court. Grandmother generally opposed
terminating dependency jurisdiction over D.Y. because she felt
the family was benefiting from DCFS oversight and services, and
she believed she received more financial support for D.Y. from
DCFS than she would through Kin-GAP.3 She expressed a
willingness to terminate dependency proceedings only twice, once
in 2002 and once in 2013. By the time necessary paperwork had
been gathered and completed, however, grandmother changed
her mind.
DCFS almost always recommended that dependency
jurisdiction and services continue. It most recently recommended
that dependency jurisdiction be terminated in 2015, but did not
object to keeping the dependency open when grandmother
opposed its recommendation at the October 20, 2015 hearing.
The court continued the dependency proceedings.
In its next status review report, dated June 7, 2016, DCFS
noted that grandmother wanted to keep the case open “because
she likes having the support of DCFS staff and programs.” It
recommended that dependency proceedings for D.Y. “should not
be dismissed as the Legal Guardian objects to termination.” At
the hearing the same day, the court remarked, “Normally I’m
concerned when we have legal guardianship in place, about
Kenneth S., Jr. (2008) 169 Cal. App. 4th 1353, 1358.)
3D.Y. and some of his siblings had special needs.
4
keeping a case open, but here the legal guardian has made a very
cogent explanation as set forth in the Department’s paperwork
for why the RPP [review of permanent plan] continues - - why
jurisdiction continues to be appropriate.” The court retained
dependency jurisdiction.
DCFS again recommended that dependency jurisdiction be
continued in December 2016, in advance of the next hearing. The
court agreed dependency jurisdiction “remains necessary” in light
of issues D.Y. was having at school. The court remarked again
that it “normally” would terminate jurisdiction and “may
terminate it at the next RPP.” In advance of the next hearing in
June 2017, however, DCFS did not recommend terminating
jurisdiction. Instead, citing section 366.3, subdivision (a), it
recommended that dependency “not be dismissed both “due to
exceptional circumstances” and because “the Legal Guardian
objects to termination.”4 The court retained dependency
jurisdiction without comment on its future intentions.
In its next report, filed in advance of the December 20,
2017 hearing, DCFS again recommended keeping the dependency
case open because grandmother objected to terminating
jurisdiction. DCFS also noted that grandmother had reported
that D.Y. needed orthodontic work, and recommended that the
court order DCFS to “Explore Special Payment for DCFS
Orthodontia services.” DCFS represented that it would “follow-
up” on the orthodontia issue as well as an issue related to D.Y.’s
schooling “at the next home visit in November 2017.” It did not
4As we discuss more fully below, both “exceptional
circumstances” and “relative guardian objects” are listed in
section 366.3, subdivision (a) as bases on which a juvenile court
may retain dependency jurisdiction.
5
do so, however.
At the hearing, D.Y.’s counsel informed the court that she
had been “expecting, or hoping, for a last minute information”
regarding some “issues that the social worker kind of kept open,”
the orthodontia and schooling issues. She requested a
continuance to enable DCFS to prepare a more complete report
addressing those issues. Counsel for DCFS responded that DCFS
was “following through” on the orthodontia issue but
acknowledged DCFS should have provided an update on the
school. She stated, “I don’t know why we don’t have a last minute
[information] addressing those issues.”
The court interjected, telling the parties, “I’m familiar with
the school in Torrance that he’s going to go to. It’s a decent
school.” DCFS counsel then stated, “It looks like actually,
everything is in the works in regards to what he needs and that
follow-up information, clearly, would be available in the future
for [D.Y.’s counsel].” D.Y.’s counsel again requested to continue
the matter due to the “incomplete RPP report by the social
worker.” In the alternative, she asserted, “If it’s not going to be
continued, I’m going to set it for a contest.”
At that point, the court invited both counsel to go off the
record. When the court and counsel returned to the record, the
following exchange ensued:
“The Court: We’re back on the record. The back and forth
to me suggests the need to close the case. The guardianship was
put into place long ago. And we’ve kept the case open to assist
the caretaker, and I’m not sure that it’s a legitimate basis for
continued jurisdiction.
“Services were continued by DCFS, because of the nature of
the case, even if we close. So I’m inclined, and I know it will be
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over minor’s counsel objection, to simply close the case.
“[D.Y.’s Counsel]: Your honor, I would like to be heard
about it.
“The Court: Of course.
“[D.Y.’s Counsel]: We were off the record. I feel that this
case should not be closed, as the minor is not here. The legal
guardian is not here. The only information that we have is
through the Department. I feel that the RPP report is incomplete
and a very crucial part, which is the dental and education
portion.
“I would like to set it for a contested hearing. I would like
the social worker to be present. I would like [D.Y.] to be present
for the contest.
“The Court: I’m going to respectfully decline that request.
I think, if my recollection serves me right, and I could be wrong,
at the last hearing in June, or perhaps the prior hearing, it has
been my inclination to suggest that we’re going to close these
cases.
“[DCFS Counsel]: And I have in my notes, that the court
had made that comment multiple times. That’s in my notes.
“The Court: The problem that I have, and I welcome
appellate court guidance on it, not that I’m inviting an appeal, is:
I just don’t think I have a basis for the jurisdiction, and that we
are consensually continuing jurisdiction to assist the family out
of the goodness of the Department’s heart, minor’s counsel, and
the court. But I’m going to close jurisdiction today as to [D.Y.]
because the guardianship has long been in place. And I note
minor’s objection as to that closing.
“All right. Thank you.”
After the hearing, the court issued an order stating, in
7
pertinent part, “The Court finds that those conditions which
would justify the initial assumption of jurisdiction under WIC
section 300 no longer exist and are not likely to exist if
supervision is withdrawn and the Court terminates jurisdiction.
Jurisdiction is terminated this date. [¶] Jurisdiction is
Terminated for Minor. Child has been released to legal
guardian(s).”
D.Y. timely appealed.
DISCUSSION
I. Termination of Jurisdiction
D.Y.’s argument regarding the termination is, as he puts it,
“succinct.” Grandmother “objected to the termination of
jurisdiction, therefore, it was mandatory that the juvenile court
retain jurisdiction.” This argument is grounded upon statutory
interpretation, an issue we review de novo. (In re Damian V.
(2008) 163 Cal. App. 4th 16, 20.)
“‘As in any case involving statutory interpretation, our
fundamental task here is to determine the Legislature's intent so
as to effectuate the law’s purpose.’ [Citation.] We begin by
examining the statutory language because the words of a statute
are generally the most reliable indicator of legislative intent.
[Citations.] We give the words of the statute their ordinary and
usual meaning and view them in their statutory context.
[Citation.] We harmonize the various parts of the enactment by
considering them in the context of the statutory framework as a
whole. [Citations.] ‘If the statute’s text evinces an unmistakable
plain meaning, we need go no further.’ [Citation.]” (In re C.H.
(2011) 53 Cal. 4th 94, 100.)
The statute at issue is section 366.3(a). It provides, in
pertinent part, “Following establishment of a legal guardianship,
8
the court may continue jurisdiction over the child as a dependent
child of the juvenile court or may terminate its dependency
jurisdiction and retain jurisdiction over the child as a ward of the
legal guardianship, as authorized by Section 366.4. If, however, a
relative of the child is appointed the legal guardian of the child
and the child has been placed with the relative for at least six
months, the court shall, except if the relative guardian objects, or
upon a finding of exceptional circumstances, terminate its
dependency jurisdiction and retain jurisdiction over the child as a
ward of the guardianship, as authorized by Section 366.4.”
The first sentence of the portion of section 366.3(a)
excerpted above sets forth two paths for the juvenile court to
follow after placing a child in a legal guardianship. It (1) may
continue jurisdiction over the child as a dependent child of the
juvenile court or (2) may terminate its jurisdiction and retain
jurisdiction over the child as a ward of the legal guardianship.
The word “may” ordinarily is deemed permissive or discretionary.
(California Correctional Peace Officers Assn. v. State Personnel
Bd. (1995) 10 Cal. 4th 1133, 1143.) Indeed, the Welfare and
Institutions Code expressly provides that “‘[s]hall’ is mandatory
and ‘may’ is permissive.” (§ 15.) Thus, the statute by its plain
language provides that whether to continue dependency
jurisdiction generally is within the juvenile court’s discretion.
Indeed, California Rule of Court, rule 5.740(a)(4) provides, “When
legal guardianship is granted, the court may continue
dependency jurisdiction if it is in the best interest of the child, or
the court may terminate dependency jurisdiction and retain
jurisdiction over the child as a ward of the guardianship.” The
juvenile court has vast discretion when determining what will be
in a child’s best interest. (In re K.S. (2016) 244 Cal. App. 4th 327,
9
340.)
D.Y. does not dispute this. He contends that the second
sentence of section 366.3(a) restricts the juvenile court’s exercise
of its discretion in situations like that here, where the child’s
legal guardian is a relative and the child has been placed with
him or her for at least six months. In such a case, he argues, the
statute requires the court to retain dependency jurisdiction (or
forbids the court from terminating it) “if the relative guardian
objects.” This conclusion is not supported by the plain language
of the statute or the legislative intent underlying it.
Section 366.3(a) says that “the court shall, except if the
relative guardian objects, or upon a finding of exceptional
circumstances, terminate its dependency jurisdiction and retain
jurisdiction over the child as a ward of the guardianship.” The
mandatory word “shall” forms a verb phrase with the verb
“terminate”: the court must terminate jurisdiction. However, the
clause separating the verb phrase contains an exception; the
court is not required to terminate jurisdiction “if the relative
guardian objects, or upon a finding of exceptional circumstances.”
The question here is what the court is permitted do in those
cases.
The plain language of the second sentence does not resolve
the question. It does not, as D.Y. argues, say that the court shall
not terminate jurisdiction when one of the exceptions applies. It
says only that the court shall terminate jurisdiction under some
circumstances, and is silent as to what it should do in others. We
accordingly look to the rest of the statute for guidance.
The first sentence of the relevant portion of section
366.3(a), which establishes the decisional parameters for the
court, suggests the matter returns to the court’s discretion.
10
According to that sentence, the court may terminate dependency
jurisdiction, or it may choose to retain dependency jurisdiction, as
the best interest of the child dictates. (See Cal. Rules of Court,
rule 5.740(a)(4).) Interpreting the statute in this fashion gives
meaning to both relevant sentences of section 366.3(a). The first
sentence vests vast discretion in the court to select between two
jurisdictional options, while the second clarifies the limited
circumstances in which that discretion is restricted. (See In re
Grace C. (2010) 190 Cal. App. 4th 1470, 1475 [finding court had
discretion to terminate dependency jurisdiction when mother
alleged “exceptional circumstances”].) Interpreting the second
sentence as D.Y. advocates would render the first sentence
superfluous whenever a child has been placed in a legal
guardianship with a relative for at least six months: the court
simply would have no discretion to act in the child’s best interest
if the legal guardian objected to terminating jurisdiction for any
reason.
More importantly, restricting the trial court’s discretion in
the fashion D.Y. suggests—at the behest of the legal guardian,
and without consideration of the child’s best interest—would
undermine the juvenile court’s “special responsibility to the child
as parens patriae.” (In re Chantal S. (1996) 13 Cal. 4th 196, 201.)
The overarching purpose of the Welfare and Institutions Code is
“to provide protective services to the fullest extent deemed
necessary by the juvenile court . . . to insure that the rights or
physical, mental or moral welfare of children are not violated or
threatened by their present circumstances or environment” (§ 19
[“Purpose of code”] (emphasis added)), not to delegate that
responsibility to the child’s legal guardian. Similarly, the
purpose of the Code as it relates to dependent children is “to
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provide maximum safety and protection for children who are
currently being physically, sexually, or emotionally abused, being
neglected, or being exploited, and to ensure the safety, protection,
and physical and emotional well-being of children who are at risk
of that harm.” (§ 300.2 [“Purpose of chapter”].) This goal may
not be realized where the court is unable to consider a child’s best
interest and overrule a guardian’s objection when deciding
whether to terminate dependency jurisdiction. A trial court may
not even delegate the authority to determine whether visitation
occurs to a guardian (In re Grace C., supra, 190 Cal.App.4th at p.
1478); it would be patently unreasonable to require it to delegate
the more fundamental question of the nature of its jurisdiction to
a child’s legal guardian.
D.Y.’s interpretation of section 366.3(a) rests entirely upon
In re Joshua S. (2003) 106 Cal. App. 4th 1341 (Joshua S.).5
Joshua S. arose after the juvenile court terminated dependency
jurisdiction over children who were placed in a legal
guardianship with their indigent maternal grandmother who
lived in Canada. (See id. at p. 1343.) The children argued that
the juvenile court abused its discretion by terminating
jurisdiction without considering how the cancellation of financial
assistance from DCFS would affect the children’s best interests.
5D.Y. also purports to rely on similar language in a
subsequent appellate opinion in the same case, In re Joshua S.
(2005) 131 Cal. App. 4th 1307, 1316. That opinion was
depublished under former California Rules of Court, rule
8.1115(e) when the Supreme Court granted review and
subsequently reversed the appellate court without addressing
section 366.3(a) in In re Joshua S. (2007) 41 Cal. 4th 261. Citing
and relying upon an unpublished opinion is a violation of
California Rules of Court, rule 8.1115(a).
12
(See id. at pp. 1350, 1354.)
In considering and ultimately agreeing with this argument,
the appellate court briefly discussed section 366.3(a). After
quoting the second sentence at issue here, the court stated,
“Thus, according to the plain language of section 366.3(a), the
court must retain jurisdiction where the relative guardian objects
to termination and may elect to retain jurisdiction where it finds
exceptional circumstances, which, pursuant to [former] California
Rules of Court, rule 1466(a) [now rule 5.740(a)] may be
established by a finding that the best interests of the child would
be served by continued jurisdiction.” (Joshua S., supra, 106
Cal.App.4th at p. 1353.) Aside from referring to the statute’s
“plain language,” the court did not explain the rationale behind
its statutory interpretation. (Ibid.) The court’s interpretation
also was not necessary to its resolution of the issues; it was dicta
rather than a holding.
Because Joshua S. is a decision of a court of equal
jurisdiction rather than superior jurisdiction, we are not
obligated to follow it. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal. 2d 450, 455; Henry v. Associated Indemnity Corp.
(1990) 217 Cal. App. 3d 1405, 1416.) We choose not to do so. We
find our independent review of the statutory language and
purpose of section 366.3(a) more persuasive than the limited
analysis set forth as dicta in Joshua S. We accordingly reject
D.Y.’s contention that section 366.3(a) and Joshua S. obligated
the juvenile court to retain dependency jurisdiction in this case.6
6D.Y. does not argue that the juvenile court abused its
discretion in terminating dependency jurisdiction; he argues only
that the trial court lacked such discretion. We accordingly
express no opinion on whether the trial court appropriately
13
II. Denial of Continuance
In the alternative, D.Y. argues that the juvenile court
abused its discretion by denying his counsel’s request for a
continuance. He asserts that the request was “extremely
reasonable and necessary so that a sufficient DCFS report could
be submitted and to give [D.Y.] and his [grandmother] the
opportunity to appear in court given the juvenile court’s
inclination to terminate jurisdiction.” He further asserts that the
juvenile court should have considered “how surprising it would be
to [grandmother] and [D.Y.] when they discovered that his case
was closed without warning or notice and in light of the
unresolved efforts to secure orthodontia funding and lack of
independent living skills services.”
We review the juvenile court’s decision to deny a
continuance for abuse of discretion. (In re Karla C. (2003) 113
Cal. App. 4th 166, 180.) “Discretion is abused when a decision is
arbitrary, capricious or patently absurd and results in a manifest
miscarriage of justice.” (Ibid.) We agree with D.Y. that the trial
court abused its discretion here.
Although as a general matter continuances are discouraged
in dependency cases, they may be granted upon a showing of good
cause. (§ 352, subd. (a); In re Giovanni F. (2010) 184 Cal. App. 4th
594, 604; Cal. Rules of Court, rule 5.550(a).) Good cause was
present here in two respects. First, the status report before the
court was missing important information the social worker had
indicated would be forthcoming. With only a report that even
DCFS’s counsel conceded was incomplete, the juvenile court did
not have a full picture of the circumstances or what might be in
exercised its discretion in favor of D.Y.’s best interest when it
terminated dependency jurisdiction.
14
D.Y.’s best interest. A short continuance—and possibly further
sanctions for DCFS—would have remedied the issue and
permitted the court to fully exercise its discretion.7
The second and more compelling reason the court abused
its discretion by denying the request for a continuance is the lack
of notice to D.Y. and grandmother that dependency jurisdiction
might be terminated at the hearing. Although both were served
with notice of the hearing in accordance with section 295, the
notice and status review report indicated that DCFS
recommended continuing the dependency. At the previous
hearing, in June 2017, neither DCFS nor the court raised the
issue of terminating jurisdiction. The last time it had been raised
was a year earlier, in December 2016, when the court said it
“may terminate [dependency jurisdiction] at the next RPP,” in
June 2017. The juvenile court did not do that, nor did it give any
indication that it planned to revisit the issue in December 2017.
D.Y.’s counsel apparently was caught off guard when the court
raised the issue during an off-the-record conversation, the
contents of which were not transcribed or available for our
review. The court allowed D.Y.’s counsel to be heard on the
drastic change briefly, but neither grandmother nor D.Y. was
afforded that opportunity. In the context of this long-running
case, in which maintenance of the status quo had been the norm
for 16 years and remained the recommendation of DCFS, it was
an abuse of discretion for the juvenile court to abruptly terminate
jurisdiction without alerting all of the interested parties to that
possibility.
7The juvenile court previously assessed sanctions against
DCFS three times, in escalating amounts, for failing to timely file
status reports.
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DISPOSITION
The order of the juvenile court is reversed. The matter is
remanded for further proceedings consistent with this opinion.
CERTIFIED FOR PUBLICATION
COLLINS, J.
We concur:
WILLHITE, ACTING P.J.
MICON, J.*
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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