Dora V. v. Super. Ct. ( 2024 )

Filed 9/4/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
DORA V., B332985
Petitioner, (Los Angeles County
Super. Ct. No. CK57270E)
v.
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent;
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDING; petition for extraordinary relief,
Ashley Price, Judge. Petition denied.
Los Angeles Dependency Lawyers, Law Office of Martin
Lee, Dominika Campbell and Xavier Rosas for Petitioner.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant
County Counsel, and Brian Mahler, Deputy County Counsel, for
Real Party in Interest Los Angeles County Department of
Children and Family Services.
_______________________
INTRODUCTION
In this case we examine the different statutory procedures
and substantive rights that apply to legal guardians who are
appointed by the juvenile court and legal guardians appointed by
the probate court before dependency proceedings commence.
Rene V. a/k/a/ Johnny V. (born 2012)1 was removed from the
physical custody of Dora V., his legal guardian appointed by the
juvenile court, pursuant to a Welfare and Institutions Code
section 387 petition filed by the Los Angeles County Department
of Children and Family Service (Department).2 The juvenile court
sustained the petition and ordered family reunification services
for Dora, including visitation that was liberalized to include
overnight visits. Rene refused to participate in any overnight
visits and eventually refused visitation with Dora altogether.
Dora filed a petition for writ of mandate alleging the
juvenile court erred when it terminated her family reunification
services at an 18-month review hearing after Rene’s removal and
set a selection and implementation hearing pursuant to
section 366.26. In her petition, Dora contends the juvenile court
failed to ensure her right to visitation was preserved by allowing
Rene to refuse visits for over seven months, and she further
1 We refer to the minor child as “Rene” in our opinion even
though the parties and the record sometimes refer to him as
“Renee.”
2 All undesignated statutory references are to the Welfare
and Institutions Code.
2
contends no substantial evidence supports the finding she
received reasonable reunification services. We issued an order to
show cause but denied Dora’s request to stay the section 366.26
hearing.
As detailed below, the Legislature has created different
statutory schemes and rights for legal guardians depending on
whether they were appointed by the juvenile court or were
appointed under the Probate Code before dependency proceedings
commenced. Despite ambiguous language in certain provisions of
the Welfare and Institutions Code referring to “guardians” or
“legal guardians,” only legal guardians appointed under the
Probate Code have the same right as parents to certain
presumptions of reunification and reunification services after a
child has been removed from their custody. By contrast, legal
guardians appointed by the juvenile court, such as Dora, are not
entitled to a presumption of reunification, and they may receive
reunification services in the discretion of the juvenile court if it is
in the best interest of the child.
Accordingly, we deny the petition for writ of mandate and
conclude the juvenile court did not abuse its discretion in denying
additional reunification services.
FACTUAL AND PROCEDURAL BACKGROUND
A. Previous Dependency Proceedings Culminating in Dora’s
Legal Guardianship
In 2012, the juvenile court initiated dependency proceedings
as to Rene and his two older siblings, Valerie V. (born 2009) and
Ricardo V. (born 2010). Rene was referred to the Department as a
newborn due to a positive toxicology test at birth and his parents’
substance abuse. After a brief release to his father, Rene and his
siblings were placed with Dora, their maternal great-aunt. Their
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mother completed reunification services and regained custody in
August 2013, and the court terminated dependency jurisdiction
with a family law exit order granting her full legal and physical
custody in February 2014. Seven months later the siblings were
again detained from their mother, the Department filed a new
section 300 petition, and the siblings were again placed with Dora.
In 2017, after the children had been living with Dora for
almost three years, the juvenile court appointed Dora as their
legal guardian and terminated dependency jurisdiction at an
uncontested permanency planning hearing set pursuant to
section 366.26 after reunification services with their mother were
terminated.
B. The First Section 387 Petition Against Dora
In August 2021, the Department filed a section 387
supplemental petition alleging the juvenile court’s previous
disposition had been ineffective in protecting the children because
(1) Dora physically abused the children; (2) Dora allowed a non-
related extended family member, T.G., access to the children
despite the fact that T.G. sexually abused Valerie on multiple
previous occasions; (3) Dora allowed the children’s mother
unmonitored visits despite her substance abuse history and
having been under the influence when caring for the children; and
(4) Dora allowed the maternal grandmother unmonitored visits
despite her substance abuse history and being a current user of
cocaine.
In December 2021, the juvenile court sustained the counts
alleging Dora permitted access to the children by T.G. and
unmonitored visits by their mother. The court ordered the
children to remain in Dora’s custody. It repeated its previous
orders that T.G. was to have no contact with any of the children
4
and that any visits by mother and maternal grandmother were to
be monitored.
C. The Second Section 387 Petition Against Dora
In March 2022, the Department filed a second section 387
supplemental petition again alleging the juvenile court’s previous
disposition had been ineffective in protecting the children. This
time the petition alleged that Dora allowed T.G. to spend time
alone with Valerie on multiple occasions and that Dora physically
abused Valerie by slapping and punching her. The court detained
the children with their maternal aunt V.E. and her partner M.Z.,
with family reunification services and monitored visitation to
Dora twice a week.
In interviews, Valerie stated she preferred to stay with V.E.
and M.Z., Ricardo reported he wanted to go back to Dora and felt
the family was “battling over custody” of the children, and Rene
stated he did not like the family arguments and did not want to be
taken away from Dora’s home.
In May 2022, the juvenile court sustained both counts of the
section 387 petition and ordered all three children removed from
Dora’s physical custody with family reunification services to Dora,
including a parenting program, sexual abuse awareness
counseling, individual counseling, and monitored visitation, twice
a week for two hours per visit.
The juvenile court set a six-month review hearing under
section 366.21, subdivision (e).
D. The Six-month Review Hearing
Between June 2022 and January 2023, the Department
reported the children were thriving and appeared comfortable
with V.E. and M.Z.
5
Dora was participating in court-ordered services and
monitored visits with Rene and Ricardo, but Valerie did not want
to have visits with her. Rene and Ricardo enjoyed the visits. Dora
planned a birthday party for Rene, and he returned happy from
that visit. Dora’s visitation was liberalized to include
unmonitored visits and overnight visits at the end of December
2022. But Rene asked to go home early on his first scheduled
overnight visit, and Dora acceded because she did not want to
pressure him. Rene skipped his second scheduled overnight visit
with Dora to attend a BMX bike racing event. Rene expressed
that he only wanted to have day visits of up to four hours, but not
overnight visits with Dora.
During this time, Ricardo began to bully Rene by punching,
pulling, and threatening him. Rene’s therapist expressed concern
the bullying could continue in Dora’s home because Dora
minimized the bullying, whereas V.E. and M.Z. sought to address
it. In November 2022, V.E. and M.V. asked that Ricardo be
removed from their care, and he was placed with other relatives.
The Department initially reported that Rene and Ricardo
would like to return to Dora because they “miss[ed] her and
appear[ed] to have a strong attachment to her.” In December
2022, Rene began expressing that he wanted to keep living with
V.E. and M.Z., and not Dora. Rene’s therapist reported that Rene
did not express grief from being separated from Dora.
At a contested six-month review hearing in January 2023,
conducted according to the provisions of section 366.21,
subdivision (e), Ricardo was returned to Dora’s physical custody.
The juvenile court found the Department provided Dora with
reasonable services, Dora complied with her case plan, but
returning Rene to Dora’s physical custody would create a
substantial risk of detriment to Rene. Dora did not object to the
findings. The court noted Rene’s reluctance to participate in
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overnight visits. Dora offered to transport Rene to his BMX races
during overnight visits in the future, as that was a major point of
contention. The court ordered continued family reunification
services and continued reasonable unmonitored visits between
Rene and Dora, including overnight visits with continued
discretion to the Department to liberalize visits as deemed
appropriate.
The court set a 12-month review hearing pursuant to
section 366.21, subdivision (f).
E. The 12-month Review Hearing
In March 2023, V.E. and M.V. requested Valerie be removed
from their care due to her psychiatric hospitalizations. But the
Department reported Rene appeared comfortable in their home.
Rene stated he wanted to continue living there because he felt
happy and enjoyed outdoor activities and sports with them. Rene
did not want to return to Dora’s home. Dora said she would
respect Rene’s wishes although she still hoped that Rene would
visit her and Ricardo on the weekends. She offered to attend
Rene’s BMX events, but V.E. refused due to V.E.’s discomfort with
Dora’s presence there.
Rene’s therapist recommended Rene not be returned to
Dora’s home because the therapist feared Ricardo’s bullying of
Rene would resume. The therapist also did not recommend
conjoint therapy between Dora and Rene because of Rene’s
“statements about not wanting to have any contact with [Dora].”
Rene did not want any visits with Dora because he “[did] not want
to return to her home and [did] not want to see her cry while she
tells him to return home with her.” The Department’s social
workers were encouraging Rene to visit Dora for at least a few
hours.
7
In July 2023, the Department began assessing V.E. and
M.Z. for potential selection as Rene’s legal guardians because
Rene refused to visit Dora and did not want to return to Dora’s
care. When interviewed as part of the assessment, Rene said
Dora used to lock the children in their rooms, and that he was
open to adoption or legal guardianship by V.E. and M.Z.
Sibling visits did not occur due to tension between Rene and
Ricardo, and between V.E. and M.Z. and Dora.
At the 12-month review hearing, conducted according to the
provisions of section 366.21, subdivision (f), the juvenile court
found the Department provided reasonable services, Dora
complied with her case plan, and returning Rene to Dora’s
physical custody would be detrimental. The court continued
family reunification services for an additional six months. It
ordered the Department to make best efforts for those services to
include conjoint counseling between Rene and Dora and to set up
a meeting point to facilitate visits. The court noted that Rene
appeared “resistant to returning to [Dora]’s home” and that its
goal in continuing reunification services was to “see if we can get
the child back with the [legal] guardian.”
The court set an 18-month review hearing pursuant to
section 366.22.
F. The 18-month Review Hearing
In August and October 2023, the Department reported Dora
complied with her court-ordered case plan. Rene continued to live
with V.E. and M.Z, who were meeting his needs, including
meeting with his services providers. Rene expressed that he felt
happy and safe in the home. During monthly visits, Department
social workers encouraged Rene to have contact with Dora
through in-person visits, telephone calls, and conjoint counseling
sessions.
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The Department reported that “[d]uring the past period of
supervision, the child Rene has continued to decline all contact
with [Dora], which includes conjoint/family counseling.” Rene was
adamant he did not want to return to Dora’s home or have any
visits with her. Rene said that Dora “‘broke the rules,’” exposed
him and the other children to T.G., who had sexually abused
Valerie in the past, and she “‘kept us in the room, was mean,
yelled and hit me.’” Rene’s therapist reported Rene also did not
want to have contact with Ricardo based on the “‘abusive and
bullying behavior towards him’” he had experienced in the past.
Dora reported being upset with the Department for allowing
Rene to remain with V.E. and M.Z after their previous request
that Ricardo be removed from their care and Valerie purportedly
self-harming under their supervision. Dora was also upset that
Rene, V.E., and M.Z. denied a July 2023 incident in which Rene
was seen alone in a grocery store with the maternal grandmother,
with whom he was not allowed to have unmonitored contact. She
believed Rene “‘[is] lying and needs to go to foster care so he can
learn,’” and expressed that “‘[i]f Rene does not want to come back
home[,] that is fine[.] I’m tired of waiting around[.] [W]hat do you
guys expect, for me to wait over [two] years? But I don’t want him
to stay with [V.E.].’”
The Department concluded based on Dora’s statements that,
“it appears that she does not have Rene’s best interest in mind as
she has stated that she would prefer the child to be in foster care
than the child remaining in the care of maternal aunt, [V.E.].”
The Department recommended the juvenile court terminate
family reunification services, set a section 366.26 hearing, and
select V.E. and M.Z. as Rene’s new legal guardians.
On October 30, 2023, the juvenile court held a contested
18-month review hearing, conducted according to the provisions of
section 366.22. Rene’s counsel asked the court to follow the
9
Department’s recommendations. The Department argued in favor
of its recommendations, asserting Rene was almost 12 years old,
Rene had refused to visit or engage in conjoint counseling with
Dora over the past year despite Department efforts to encourage
contact, Rene and Ricardo were differently situated based on
Rene’s strained relationship with Dora, and returning Rene to
Dora’s physical custody would be detrimental to him.
Dora’s counsel asked the court to return Rene to Dora’s
custody, asserting there were no safety risks in the home, Rene
was similarly situated to Ricardo, who had returned to her home,
Ricardo’s bullying was part of a “‘complicated’” sibling
relationship, and Dora wanted to have visits with Rene. Dora’s
attorney argued the situation was “‘basically the minor deciding
that he doesn’t want to have visits’” with Dora. Dora’s counsel
argued Rene did not have the right to resist visits, and whether
visits occurred “‘should be up to the attorneys and the parents and
legal guardians.’”
The juvenile court found the Department had provided
reasonable services and that Dora had complied with her case
plan, but it determined that returning Rene to Dora’s physical
custody would be detrimental to him. The court explained: “‘The
child very clearly indicates that he does not wish to return to
[Dora’s care]. I don’t believe it would be in his best interest to
force that at this time. I do think it would be detrimental to the
child. He has had no contact with [Dora] for one year at this time,
so despite the fact that the legal guardian has completed
individual counseling, parenting, and a sex abuse awareness
course that is not the only thing the court has to look at today
when determining whether to return the child to the legal
guardian. [¶] The bigger picture shows Rene is safe and doing
well in his current placement. He is continuing to refuse any
contact or visits with [Dora]. He also expresses some concerns
10
reunifying with Ricardo because of the nature of their relationship
wherein there has been some bullying in the past. . . . [S]o despite
the [Department’s] efforts to facilitate reunification with [Dora],
it’s simply not possible today, and especially in the light of the
time period which we find ourselves, which is after the 18-month
date.’”
The court terminated Dora’s family reunification services
and scheduled a section 366.26 hearing. When Dora’s counsel
asked if the juvenile court was terminating Dora’s legal
guardianship, the court indicated it declined to do so at that time
as “‘the Legal Guardian still has the ability to file a 388 [petition]
during the pending of the .26 should you make the requisite
showing.’”
Dora filed a petition for writ of mandate, and this court
issued an order to show cause but declined to stay the
section 366.26 hearing. Rene’s counsel joined in the Department’s
answer to the petition.
DISCUSSION
Dora contends the juvenile court violated her due process
rights by failing to ensure her “right to visitation” was preserved
by permitting Rene to unilaterally refuse visits, citing In re
Hunter S. (2006) 142 Cal.App.4th 1497. (See id. at p. 1505 [“A
visitation order which fails to protect a parent’s right to visit is
illusory. If, as here, the court grants visitation, ‘it must also
ensure that at least some visitation at a minimum level
determined by the court itself, will in fact occur.’”]; accord,
In re S.H. (2003) 111 Cal.App.4th 310, 313.) Dora also argues
substantial evidence does not support the finding that she was
provided reasonable reunification services, given the
Department’s “lack of efforts to schedule conjoint counseling and
11
limited efforts to effectuate the juvenile court’s visitation order.”
Dora requests continued family reunification services under
amended section 366.22, subdivision (b)(2)(A).
As stated, Dora is Rene’s legal guardian appointed by the
juvenile court and not his parent. Here, as in In re Carlos E.
(2005) 129 Cal.App.4th 1408, “[a]t no point in the extensive
history of this case ha[d] the parties considered the implications of
[Dora]’s status as [Rene]’s legal guardian.” (Id. at p. 1416.) Dora’s
arguments are all premised on the assumption that as a legal
guardian she has the same rights to reunification services before
termination of her legal guardianship as does a parent before
termination of parental rights.
We asked the parties to file supplemental briefing
addressing (1) whether a legal guardian is entitled to reunification
services, and (2) if a legal guardian is not entitled to reunification
services, was it an abuse of discretion for the juvenile court not to
grant reunification services. After reviewing the parties’
supplemental briefs, we conclude Dora does not have such rights,
and that the juvenile court did not abuse its discretion.
A. Standard of Review
We review a juvenile court’s decision not to order
reunification services for a legal guardian for abuse of discretion.
(See In re Z.C. (2009) 178 Cal.App.4th 1271, 1284 [juvenile court
has discretion to order reunification services for a legal guardian
appointed by the juvenile court if in the best interests of the
child]; § 366.3, subdivision (b); cf. In re Elija V. (2005)
127 Cal.App.4th 576, 588 [reviewing for abuse of discretion
juvenile court’s decision to deny discretionary reunification
services to a biological father on best interests basis].) We may
reverse the court’s decision if it is arbitrary or irrational. (See
In re Caden C. (2021) 11 Cal.5th 614, 641 [court abuses its
12
discretion when its determination is arbitrary, capricious or
patently absurd]; In re Stephanie M. (1994) 7 Cal.4th 295, 318
[same].)
“[W]e review issues involving the interpretation and proper
application of the dependency statutes de novo.” (In re M.F.
(2022) 74 Cal.App.5th 86, 100.)
B. Legal Principles and Procedures Applicable to Parents and
to Legal Guardians Appointed Before Dependency
Proceedings
As detailed above, after removing Rene from Dora’s physical
custody, the juvenile court set and conducted six-month,
12-month, and 18-month review hearings following the provisions
of sections 366.21, subdivisions (e) and (f), and 366.22 without
objection from any party. We briefly summarize these statutory
provisions to contextualize the arguments made by the parties.
Sections 366.21 and 366.22 apply to the reunification period
mandated by section 361.5 after a child’s “initial removal from the
physical custody of the child’s parent or guardian” pursuant to a
section 300 petition, and they limit the juvenile court’s discretion
to deny reunification services. (See §§ 361.5, subd. (a)(1)(A),
366.21, 366.22; see also In re Malick T. (2022) 73 Cal.App.5th
1109, 1123.) Although the statutory language refers to a “parent
or guardian” (see, e.g., §361.5) and to “parents or legal guardians”
(see, e.g. §§ 366.21, 366.22), as explained in the next section, that
reference is to legal guardians appointed by a probate court or
otherwise existing before the original dependency proceedings,
rather than (as here) a legal guardian appointed by the juvenile
court. (See In re Carrie W. (2003) 110 Cal.App.4th 746, 758 [Welf.
& Inst. Code contemplates “two types of guardians, one as the
guardian appointed in dependency cases as part of a long-term
plan and the other in the phrase ‘parents or guardians’ as the
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equal to the parent in the context of the legal caretaker of the
child at the time dependency is initiated” (italics added).)
Generally, “[d]uring the reunification stage after a child has
been removed from a parent’s custody, ‘the court ordinarily must
order child welfare services designed to facilitate the reunification
of the family.’” (L.C. v. Superior Court (2024) 98 Cal.App.5th
1021, 1033; accord, Michael G. v. Superior Court (2023) 14 Cal.5th
609, 624.) “Reunification services ‘“‘implement “the law’s strong
preference for maintaining the family relationships if at all
possible.”’” [Citation.] This is because “services enable [parents]
to demonstrate parental fitness and so regain custody of their
dependent children.’”” (L.C., at p. 1033; Michael G, at p. 624;
accord, Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415,
1424 [“Until services are terminated, family reunification is the
goal and the parent is entitled to every presumption in favor of
returning the child to parental custody.”].) “[T]he statutory
procedures used for termination of parental rights satisfy due
process requirements only because of the demanding
requirements and multiple safeguards built into the dependency
scheme at the early stages of the process.” (In re Hunter S., supra,
142 Cal.App.4th at p. 1504.)
Before the 18-month review hearing, the presumption is a
child should be returned to a parent or legal guardian “unless the
court finds, by a preponderance of the evidence, that the return of
the child to their parent or legal guardian would create a
substantial risk of detriment to the safety, protection, or physical
or emotional well-being of the child.” (§§ 366.21, subd. (e)(1);
366.22, subd. (a)(1); see In re Jacob P. (2007) 157 Cal.App.4th 819,
829.) If the court makes a finding of detriment at the 18-month
review hearing, it then sets a section 366.26 hearing to select and
implement a permanent plan and terminates reunification
services to the parent or legal guardian. (See § 366.22,
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subd. (a)(3).) “The court shall continue to permit the parent or
legal guardian to visit the child unless it finds that visitation
would be detrimental to the child.” (Ibid.)
The court also must determine by clear and convincing
evidence “whether reasonable services have been offered or
provided to the parent or legal guardian.” (§ 366.22, subd. (a)(3).)
If the child is not returned to the physical custody of their parent
or legal guardian at the 18-month review hearing “and the court
finds that reasonable services have not been provided, . . . the
court shall extend reunification services for an additional six
months” (§ 366.22, subd. (b)(2)(A)) unless it “finds by clear and
convincing evidence based on competent evidence from a mental
health professional that extending the time period for
reunification services would be detrimental to the child” (id.,
subd. (b)(2)(B)).
The juvenile court followed the procedures outlined above
but, as discussed below, different procedures apply to legal
guardianships created in dependency.
C. Legal Principles and Procedures Applicable to Legal
Guardianships Established in Dependency Proceedings
The Legislature created a different statutory procedure for
legal guardians appointed by the juvenile court. Such
guardianships established pursuant to sections 366.26 or 360
remain within the jurisdiction of the juvenile court even after
dependency jurisdiction has been terminated.3 (§ 366.4, subd. (a);
3 “The juvenile court’s power to appoint a guardian for a child
who has been detained is governed by sections 360 and 366.26.”
(In re Carlos E., supra, 129 Cal.App.4th at p. 1417.) Section 360
applies if the child’s parent waives reunification or family
maintenance services and agrees to the guardianship.
15
Cal. Rules of Court, rule 5.620(d); see In re Carlos E., supra,Cal.App.4th at p. 1420 [discussing differences between
dependency guardianships created in juvenile court versus
probate guardianships]; In re Z.F. (2016) 248 Cal.App.4th 68, 72
[“California law recognizes two types of guardianships pertaining
to minor children governed by two separate statutory schemes.”].)
Where, as here, a dependency guardianship has been granted to a
relative, the juvenile court generally terminates dependency
jurisdiction but retains jurisdiction over the child as a ward of the
guardianship. (§ 366, subd. (a)(3); Cal. Rules of Court,
rule 5.740(a)(4); see In re Jacob P., supra, 157 Cal.App.4th at
p. 829.) Although a dependency guardianship provides more
stability for a child than foster care, “it is not irrevocable” and
“[c]ontinuity in a legal guardianship is not equivalent to the
security and stability of a permanent caretaker.” (In re
Priscilla D. (2015) 234 Cal.App.4th 1207, 1215-1216; see also
§§ 366.3, subds. (a) & (b), 366.4.)
The removal of a child from the custody of a dependency
guardian is through a section 387 petition. Section 387 authorizes
the Department to file a supplemental petition to seek “[a]n order
changing or modifying a previous order by removing a child from
the physical custody of a parent, guardian, relative, or friend and
directing placement in a foster home” or other more restrictive
placement.4 (§ 387, subd. (a); see In re N.B. (2021) 67 Cal.App.5th
1139, 1146; In re Carlos E., supra, 129 Cal.App.4th at p. 1419,
Section 366.26 applies when a parent fails to reunify with a child
and legal guardianship is selected as the permanent plan for the
child. (See In re Carlos E., supra, 129 Cal.App.4th at 1417.)
4 The standard for removal on a section 387 supplemental
petition is the same as removal on an original petition. (See
In re D.D. (2019) 32 Cal.App.5th 985, 996; § 361.)
16
fn. 5 [“should it become necessary to alter the court’s order placing
the child with a legal guardian, a section 387 petition [is] the
appropriate method for obtaining an order detaining the child and
placing him or her in foster care”].) Removal under section 387
does not necessarily terminate the guardianship, which requires
the separate set of proceedings described below. (See In re N.B.,
at p. 1146; cf. In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1502,
fn. 6.) [“[r]emoval from the custody of a guardian and termination
of guardianship are not commensurate”].)
Upon removal “where a guardianship has been created by
the juvenile court in a dependency hearing, the legal guardian is
not entitled to reunification services and no finding that adequate
services were provided need be made prior to termination.” (In re
Jessica C. (2007) 151 Cal.App.4th 474, 483; see In re Alicia O.
(1995) 33 Cal.App.4th 176, 182 [“In contrast to these procedures
governing section 300 petitions, the procedure to terminate a
guardianship does not mandate reunification efforts.”]; In re
Carlos E., supra, 129 Cal.App.4th at pp. 1418-1419 [“Nowhere in
the statutory guidelines related to the creation and termination of
a legal guardianship in the juvenile court is there any
requirement that a county department of social services provide
reunification services before a legal guardianship is terminated.
Nor is there any requirement that the juvenile court make a
finding that adequate reunification services were offered.”].)
Instead, “[s]ection 366.3, subdivision (b)(2) and California
Rules of Court, rule 5.740(d) set forth the procedure to terminate”
legal guardianships created by the juvenile court; this is
accomplished “by way of a petition to modify under section 388.”
(In re N.B., supra, 67 Cal.App.5th at pp. 1145, 1147; see In re Z.C.,
supra, 178 Cal.App.4th at p. 1277 [“[a]ny proceeding to terminate
a guardianship where the court had dismissed its dependency
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jurisdiction following the establishment of a legal guardianship,
as in this case, is governed by section 366.3, subdivision (b)”].)
Section 366.3, subdivision (b)(2), provides in part:
“Notwithstanding Section 1601 of the Probate Code, the
proceedings to terminate a legal guardianship that has been
granted pursuant to Section 360 or 366.26 shall be held either in
the juvenile court that retains jurisdiction over the guardianship,
as authorized by Section 366.4, or the juvenile court in the county
where the guardian and child currently reside, based on the best
interests of the child, unless the termination is due to the
emancipation or adoption of the child.” California Rules of Court,
rule 5.740(d), provides in relevant part: “A petition to terminate a
guardianship established by the juvenile court, to appoint a
successor guardian, or to modify or supplement orders concerning
guardianship must be filed in the juvenile court. The procedures
described in rule 5.570 must be followed, and Request to Change
Court Order (form JV-180) [the form required for a section 388
petition] must be used.” (See, e.g., In re N.B., supra,
67 Cal.App.5th at p. 1147.) Under section 388, “[a]ny parent or
other person having an interest in a child who is a dependent
child of the juvenile court or a nonminor dependent as defined in
subdivision (v) of Section 11400, or the child or the nonminor
dependent through a properly appointed guardian may, upon
grounds of change of circumstance or new evidence, petition the
court in the same action in which the child was found to be a
dependent child of the juvenile court or in which a guardianship
was ordered pursuant to Section 360 for a hearing to change,
modify, or set aside any order of court previously made or to
terminate the jurisdiction of the court.” (§ 388, subd. (a)(1).)
In other words, after the juvenile court establishes a legal
guardianship, the guardianship may be terminated pursuant to a
section 388 petition and hearing, based on the best interests of the
18
child. (See B.B. v. Superior Court (2016) 6 Cal.App.5th 563, 569-
570; In re Carrie W., supra, 110 Cal.App.4th 746.) But “[b]efore
the hearing on the petition (where it must be shown that a change
to the guardianship arises from a change of circumstances or
evidence and would be in the minor’s best interests, § 388,
subd. (a)), the social services department shall prepare a report
that includes an evaluation of whether the child could safely
remain or be returned to the legal guardian’s home without
terminating the guardianship if services were provided. (§ 366.3,
subd. (b)(2).)” (In re N.B., supra, 67 Cal.App.5th at pp. 1145-
1146.) “If applicable, the report shall also identify recommended
family maintenance or reunification services to maintain the legal
guardianship and set forth a plan for providing those services.”
(§ 366.3, subd. (b)(2).)
“The hearing may be held as part of another regularly
scheduled hearing.” (In re Carrie W., supra, 110 Cal.App.4th at
p. 757.) “At the hearing, the petitioner . . . must show by a
preponderance of the evidence termination of the guardianship
serves the best interests of the child. [Citations.] Thereafter, the
court has three options: it may grant the petition to terminate the
guardianship, deny the petition, or deny the petition and order
services to maintain the guardianship.” (B.B. v. Superior Court,
supra, 6 Cal.App.5th at pp. 569-570; see Cal. Rules of Court,
rule 5.740(d)(4).) “If the petition to terminate is granted, the court
may order that a new plan be developed to provide stability for the
minor.” (In re N.B., supra, 67 Cal.App.5th at p. 1146; see § 366.3,
subd. (b)(2); Cal. Rules of Court, rule 5.740(d)(4).) “Should the
court terminate the legal guardianship, it may resume
dependency jurisdiction over the child and order the county
department of social services to develop a new permanent plan, to
be presented to the court within 60 days of the termination.”
(In re Carlos E., supra, 129 Cal.App.4th at p. 1418.)
19
The juvenile court, while not required to do so, retains
discretion to order reunification services: “[I]f the juvenile court
determines it is in the child’s best interests to maintain the legal
guardianship, with the social services agency providing
reunification services to the legal guardian and/or the child, the
court has the authority under section 366.3, subdivision (b) to
order the agency to provide such services.” (In re Z.C., supra,
178 Cal.App.4th at p. 1284.) “[B]efore moving to a less stable
placement, the court should consider whether there is a way to
preserve the guardianship. Doing so includes providing services
to the legal guardian if necessary. Section 366.3 requires that this
information be given to and considered by the juvenile court and,
by implication, authorizes that identified services be provided if
they are likely to prevent termination of the guardianship.” (In re
Jessica C., supra, 151 Cal.App.4th at p. 484.)
Under section 366.3, subdivision (d), “If the child . . . is in a
placement other than the home of a legal guardian and
jurisdiction has not been dismissed, the status of the child shall be
reviewed at least every six months,” at which the court must
“inquire about the progress being made to provide a permanent
home for the child, shall consider the safety of the child,” and
make a set of mandatory determinations set forth in section 366.3
subdivision (e). At a section 366.3 hearing, the best interest of the
child standard is applied, rather than the presumption that a
child should be returned to a parent unless there is substantial
risk of detriment. (See In re Jacob P., supra, 157 Cal.App.4th at
pp. 828-829; see also § 366.3, subd. (h)(1).)
20
D. The Welfare and Institutions Code Does Not Provide Dora
with the Right to Reunification Services Due to her Status as
a Legal Guardian Appointed by the Juvenile Court
We conclude that given the principles applicable to
dependency guardianships, Dora’s writ petition cannot be granted.
In re Carlos E., supra, 129 Cal.App.4th 1408, is similar to this
case and instructive. In re Carlos E. involved a petition for writ of
mandate by a legal guardian appointed by the juvenile court
seeking review of the juvenile court’s order terminating
reunification services after removal at a contested 18-month
review hearing and setting a section 366.26 hearing. (Id. at
p. 1412.) The legal guardian in In re Carlos E., Barbara, was
appointed by the juvenile court at an uncontested section 366.26
hearing after reunification services to Carlos’s parents were
terminated. (Ibid.) At that hearing, the court dismissed the
dependency case, and retained jurisdiction of the guardianship
under section 366.4. (Ibid.) The county social services agency
subsequently removed Carlos from Barbara via a section 300
petition after she experienced a series of health and personal
challenges and the court ordered reunification services for her.
As here, the juvenile court held review hearings up to the
contested 18-month hearing, at which Barbara sought six
additional months of reunification services. (In re Carlos E.,
supra, 129 Cal.App.4th at p. 1416.) The juvenile court found that
reasonable services had not been provided to Barbara, in
particular “the Agency had not facilitated visitation and had not
initiated meaningful contact with Barbara’s therapists to
determine her progress and her ability to care for Carlos,” but the
court concluded that Carlos could not be returned to Barbara
because to do so would present a substantial risk of detriment to
him based on Barbara’s ongoing mental health challenges. (Ibid.)
The court declined to exercise its discretion to continue services
21
because Carlos was thriving in his new placement, and over
30 months had elapsed since his removal from Barbara. (Ibid.)
The Court of Appeal rejected Barbara’s argument that she
was entitled to reunification services under section 361.5 and
“that the references to a child’s ‘parents or guardians’ in this
section, and throughout the dependency statutes, means that a
child’s legal guardian, appointed by the juvenile court, has the
same right to reunification services as a parent does.” (In re
Carlos E., supra, 129 Cal.App.4th at p. 1420.) The Court
explained that “the maintenance and termination” of legal
guardianships created by the juvenile court, “differs from the
treatment accorded ‘parents and guardians’ in section 361.5,”
which contemplates guardians appointed by the probate court
“rather than guardianships created by the juvenile court after a
child has become a dependent of the court.” (Ibid., citing
In re Carrie W., supra, 110 Cal.App.4th at p. 758.)
As discussed in In re Carrie W., section 366.4 specifically
distinguishes dependency guardianships from legal guardianships
created under the Probate Code. (See In re Carrie W., supra,110 Cal.App.4th at p. 754; see also § 366.4, subd. (a) [“Any minor
for whom a guardianship has been established resulting from the
selection or implementation of a permanency plan pursuant to
Section 366.26, or for whom a related guardianship has been
established pursuant to Section 360, . . . is within the jurisdiction
of the juvenile court. For those minors, Part 2 (commencing with
Section 1500) of Division 4 of the Probate Code, relating to
guardianship, shall not apply.”].) In re Carlos E. agreed with this
analysis. Specifically, the reference to “guardians” in “parents or
guardians” in these provisions of the Welfare and Institutions
Code “‘appears to refer to situations where a child enters the
jurisdiction of the dependency court with a guardianship
previously established in probate court. This phrasing is meant to
22
include the appropriate legal caretaker of a child within the code
sections at the time dependency proceedings are initiated.’”
(In re Carlos E., supra, 129 Cal.App.4th at p. 1420, quoting
In re Carrie W., supra, 110 Cal.App.4th at p. 758.)
The legislative history of section 366.4 supports this
interpretation. The intent of the operative legislation that
enacted section 366.4, Senate Bill No. 2232, was to provide a
mechanism for juvenile courts to reexamine guardianships
created in dependency cases and clarify the ways “a ‘dependency
guardianship’ differs from a Probate Code guardianship.” (Assem.
Com. on Judiciary, Rep. Analysis on Sen. Bill No. 2232 (1989-1990
Reg. Sess.) as amended Aug. 23, 1990, p. 1; see Sen. Rules Com.,
Off. of Sen. Floor Analyses, Rep. on Sen. Bill No. 2232 (1989-1990
Reg. Sess.) Aug. 27, 1990, p. 3; see also In re Carrie W., at pp. 758-
759 [“‘“This bill statutorily recognizes a second type of
guardianship, . . . [¶] The establishment and termination of this
type of guardianship is different from that for a Probate Code
guardianship.”’”]; In re Heraclio A. (1996) 42 Cal.App.4th 569, 576
[same, noting “[t]he legislative intent was to recognize the
differences between the two types of guardianships”].)
In re Carlos E. concluded that the extensive review hearings
conducted by the juvenile court “litigated issues which are simply
not relevant to the question of whether it is in Carlos’s best
interests for Barbara to continue as his legal guardian. The
Agency’s failure to recognize the nature and extent of Barbara’s
role as Carlos’s legal guardian has resulted in a needless and
costly battle over the adequacy of reunification services to which
Barbara was never entitled.” (In re Carlos E., supra,129 Cal.App.4th at p. 1419.)
The appellate court further explained that “had the Agency
proceeded as the Legislature intended under the dependency
statutes after it detained Carlos in 2002, it should have filed a
23
petition to terminate Barbara’s legal guardianship. In order to
determine Carlos’s best interests, the court would then have been
provided with the report required under section 366.3. The court
could then have determined whether it was in Carlos’s best
interests to deny or grant the petition or order maintenance
services to Barbara.” (In re Carlos E., supra, 129 Cal.App.4th at
p. 1419.) “This, and no more, is what the Legislature intended to
maintain or terminate a legal guardianship created by the
juvenile court.” (Ibid.)
Because Barbara was not entitled to reunification services,
the Court concluded “she may not argue that the court erred in
refusing to extend services to her past the 18-month review
hearing stage. Similarly, in terminating Barbara’s legal
guardianship of Carlos the court’s inquiry is not whether there is
a substantial risk of harm to Carlos but, instead, whether the
change in Barbara’s status is in Carlos’s best interest. For this
reason, we must reject Barbara’s argument that the court erred in
finding that there was a substantial risk of harm to Carlos should
he be returned to her care.” (In re Carlos E., supra,129 Cal.App.4th at p. 1421.)
We determine the reasoning of In re Carlos E. is persuasive
and reach the same conclusions here regarding Dora’s argument
that the juvenile court failed to provide reasonable services by not
adequately promoting and facilitating her visitation. “The
Legislature has specifically provided for the creation and
termination of legal guardianships after a child becomes a
dependent of the juvenile court.” (In re Carlos E., supra,129 Cal.App.4th at p. 1420.) Accordingly, we must apply the
correct statutory scheme for termination of legal guardianships
established during dependency proceedings which, as detailed
above, has no provision for mandatory reunification services
where a child has been removed from a dependency guardian.
24
As a legal guardian appointed by the juvenile court, Dora is
not statutorily entitled to reunification services. The authorities
and arguments Dora relies on in her petition (and to which the
Department responds on the merits) do not apply here, including
her argument that she is entitled to an extension of services under
amended section 322.22, subdivision (b)(2), because the
Department failed to provide her with reasonable services and did
not present evidence from a mental health provider that further
reunification services would be detrimental to Rene.
As Rene’s legal guardian appointed by the juvenile court,
Dora “has no right to reunification services and, therefore, cannot
challenge the adequacy of these services.” (In re Carlos E., supra,129 Cal.App.4th at p. 1417.) Nor does she have a cognizable due
process argument based on a right to visitation. (See In re
Alicia O., supra, 33 Cal.App.4th at p. 183, fn. 5 [noting that from a
due process perspective, “reunification services are not part of the
termination procedure” for dependency legal guardianships]
(italics added).) “Similarly, we conclude that the juvenile court is
not required to find that the return of a child to a legal guardian
presents a risk of harm to the child before it terminates the legal
guardianship.” (In re Carlos E., at p. 1417). To the extent Dora
challenges the juvenile court’s finding that it would be
detrimental for Carlos to return to her, any challenge to this
finding, due to her status as a dependency guardian, “is without
merit.” (Ibid.)
At most, as discussed in the next section, Dora can argue
that under the circumstances the trial court abused its discretion
by not ordering reunification services.
25
E. The Juvenile Court Did Not Abuse Its Discretion by Denying
Dora Further Reunification Services
As noted, we asked the parties to submit supplemental
briefing on whether the juvenile court had discretion to order
reunification services and whether it was an abuse of discretion to
deny such services to Dora. In re Z.C., supra, 178 Cal.App.4th at
page 1281 clarified that although a legal guardian appointed by
the juvenile court has no statutory right to reunification services,
the court has discretion to order reunification services to preserve
a dependency guardianship if it is in the best interests of the
child. Based on the record before us, we conclude the court did not
abuse its discretion in finding that continued reunification
services for Dora were not in Rene’s best interests.
Dora argues it would be impossible to rebuild her
relationship with Rene without additional reunification services.
She contends the Department failed to facilitate court ordered
visitation and conjoint counseling due to Rene’s refusal to
participate, even though she complied with her case plan, her
home was safe, and she successfully reunified with Ricardo.
Dora’s position is not unreasonable, particularly given that Dora
took in Rene and his siblings and raised them in her home for
several years. But the statutory scheme provides otherwise, and
our task is simply to determine whether the juvenile court abused
its discretion in denying her additional family reunification
services in light of its consideration of what is in Rene’s best
interests.
““‘The concept of a child’s best interest ‘is an elusive
guideline that belies rigid definition. Its purpose is to maximize a
child’s opportunity to develop into a stable, well-adjusted adult.”’”
(Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1124.)
Relevant considerations include the parent or guardian’s fitness
and history, the strength of their bond, and the child’s need for
26
stability and continuity. (See ibid.; In re William B. (2008)
163 Cal.App.4th 1220, 1228.) Because reunification services are
discretionary and granted if they are in the best interest of Rene,
it is Dora’s burden to demonstrate Rene would benefit from the
provision of court-ordered services. (See Jennifer S., at p. 1124.)
Here, the court found that Rene “‘very clearly indicates that he
does not wish to return to [Dora’s care]” and it concluded that “I
don’t believe it would be in his best interest to force that at this
time.” The court further found that Rene was “safe and doing
well” in his current placement, had “refuse[d] any contact or
visits” with Dora for over a year, and that he had concerns about
reunifying with Ricardo given Ricardo’s bullying of him in the
past. The court followed the recommendations of Rene’s counsel
and the Department, and terminated Dora’s family reunification
services without an additional extension. The juvenile court’s
carefully considered ruling, far from being arbitrary or irrational,
was well within its broad discretion.
We agree that “‘the decision to remove a dependent child
from the home of a relative caretaker who has assumed the role of
de facto parent for several years cannot be made lightly. “This is
particularly true where, as here, the removal decision is made in
the post-permanency stage of dependency proceedings in which it
has been determined that reunification of a dependent child and
his or her parents is no longer possible.”’” (In re N.B., supra,
67 Cal.App.5th at pp. 1147-1148; In re Jessica C., supra,
151 Cal.App.4th at pp. 481-482.) But in light of the circumstances
presented and the record before us, we cannot say the juvenile
court abused its discretion by denying additional reunification
services.
27
DISPOSITION
The petition is denied. The juvenile court is directed to
follow the statutory procedures applicable to legal guardianships
created in dependency.
MARTINEZ, P. J.
We concur:
SEGAL, J.
FEUER, J.
28