In re N.D.
Filed 11/19/13 In re N.D. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re N.D., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO
COUNTY CHILDREN
AND FAMILY SERVICES,
Plaintiff
and Respondent,
v.
P.M.,
Defendant
and Appellant.
E057468
(Super.Ct.No.
J245908)
OPINION
APPEAL
from the Superior Court
of
Bernardino County.
Gregory S. Tavill, Judge.
Affirmed.
Nicole
Williams, under appointment by the Court of Appeal, for Defendant and
Appellant.
Jean-Rene
Basle, County Counsel,
Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
No
appearance for Minor.
At
a jurisdiction hearing, the juvenile court (1) found N.D. came within the
court’s jurisdiction, and (2) terminated the guardianship that defendant and respondent
P.M. (Grandmother) had over N.D. The
guardianship had been granted by the probate court. Grandmother contends (1) the juvenile court
acted in excess of its jurisdiction by terminating the guardianship established
by the probate court, (2) substantial evidence does not support the court’s
best interests finding, and (3) the juvenile court misapplied the “best
interests†standard. We affirm the
judgment.
N.D.
is male and was born in 2010. A.D.
(Mother) is N.D.’s mother. Grandmother
is N.D.’s maternal grandmother. N.D.’s alleged
father’s whereabouts are unknown. The
probate court granted Grandmother legal guardianship of N.D. when N.D. was five
months old. Grandmother is also the
guardian of a second ward, X.M., who is male and was born in 1999.
On
August 6, 2012, one of
Grandmother’s grandchildren, I.D., was visiting Grandmother. I.D. is female and was approximately four
years old in 2012. Grandmother left
X.M., N.D., and I.D. at home while she ran an errand. When Grandmother called to check on the
children, X.M. informed Grandmother that I.D. placed her mouth on N.D.’s
genitals. Grandmother immediately
returned home.
I.D.
denied touching N.D. It was eventually
revealed that X.M. placed his penis in I.D.’s mouth and anus. X.M. admitted to Grandmother that he had
sexual contact with I.D. In response,
Grandmother beat “the hell out of†X.M.
Grandmother admitted that she “almost really hurt†X.M. Grandmother’s friend separated Grandmother
and X.M., and Grandmother called 911 to report the incident. Grandmother’s friend stayed in the bathroom
with X.M. while Grandmother tried to “figure it out.†The police transported X.M. to a juvenile
detention center in Apple Valley.
On
September 4, Grandmother was arrested for identity
theft (Pen. Code, § 530.5, subd. (a)), burglary (Pen. Code, § 459),
check forgery (Pen. Code, § 470, subd. (d)), and forging an official seal (Pen.
Code, § 472). A social worker from plaintiff
and respondent San Bernardino County Children and Family Services (the
Department) spoke to Grandmother at the jail.
Grandmother explained to the social worker that she was arrested because
she tried to cash a check that did not belong to her. Grandmother said she needed the money in
order to purchase a gun to protect herself and X.M. from I.D.’s father, who
wanted to hurt X.M. for sexually abusing I.D.
Grandmother
admitted the allegations against X.M. were true, but placed the blame for the
incident on I.D. Grandmother explained
that I.D. “‘enticed [X.M.] with her body.’â€
Grandmother insisted X.M.’s sexual contact with I.D. “‘was not a
crime.’†The social worker asked
Grandmother where N.D. could be found.
Grandmother said he was with his godparents. Grandmother disclosed the godmother’s first
name and that the godparents lived in San Bernardino. Grandmother said she did not know the
godparents’ address, phone number, or the godmother’s surname. Grandmother gave the social worker Mother’s
contact information. Mother gave the
social worker N.D.’s godparents’ contact information. The Department decided to detain N.D. N.D. was placed in foster care.
Grandmother
had been diagnosed as bipolar. Grandmother
had been prescribed three medications for her mental illness. The medications can control her illness;
however, Grandmother does not consistently take the medications due to “issues
with the mental health department†and lack of insurance. Grandmother smokes medical marijuana three
times per day in order to “slow [her] brain down.†Grandmother explained that “sometimes [her]
thinking starts thinking too fast, and it’s overwhelming,†so the medical
marijuana helps.
When
a social worker asked Mother about Grandmother’s mental health issues, Mother
said: “‘[X.M.] was suicidal a couple of
times when I was staying there and he said [Grandmother] was like a black cloud
over his head every time she came home.’
Mother reported, ‘[Grandmother] is verbally abusive; we know she loves
us and wants to take care of us, but sometimes it’s too much. . . . [M]other stated, ‘The last time she put me out
she said she wanted to kill [Mother] and [X.M.] said she always tells him
that.’†Mother opined that X.M. may have
learned about sexual contact because Grandmother dated a man that molested
Grandmother’s niece. Mother was unsure
if the man “did anything†to X.M.
Mother
explained that when she returned home from serving in the air force,
Grandmother was going through a divorce and Grandmother suffered a bullet graze
along her temple. Mother said
Grandmother “‘has not been the same since.’â€
Mother believed Grandmother had been involved with street gangs, i.e.
“‘gang banging,’†since the divorce.
Mother
admitted a history of alcohol abuse.
Mother last used alcohol in January 2012. N.D. was conceived with a staff member while
Mother was an inpatient at Inland Valley Recovery Program. In September 2012, Mother was in the process
of obtaining housing through the Veteran’s Administration. Mother was residing at the Life Community
Development Program for Veterans. Mother
was also in the process of obtaining intensive counseling through the Veteran’s
Administration. Mother was taking seven
different medications for her mental
health issues.
The
Department filed a petition on behalf of N.D. alleging (1) Grandmother failed
to protect N.D. because she did not provide a safe and appropriate environment;
(2) Grandmother failed to protect N.D. by engaging in criminal activity; (3) Grandmother
suffers from unresolved mental health issues that negatively impact her ability
to provide for N.D.’s wellbeing; (4) X.M. sexually abused I.D., and
Grandmother’s response to the abuse and assignment of blame placed N.D. at risk
of similar abuse; and (5) Grandmother failed to protect N.D. because she did
not disclose his whereabouts to the Department.
On September 19, 2012, the Department filed a motion for the juvenile
court to terminate Grandmother’s probate guardianship over N.D.
At
the jurisdiction hearing on October 19, the Department asserted terminating the
guardianship was in N.D.’s best interests and reasoned, “We should not be
dividing our efforts in this particular case.
The mother is doing really well right now. We are hoping that she will be able to
reunify. We should not be trying to
reunify with Grandmother who has all these issues, and at the same time trying
to reunify with Mom. I just don’t see
that that’s a good option in this case.
[¶] Grandmother focuses attention
elsewhere, not on this child. We have no
objection to her visiting the child. She
can maintain her relationship as the grandmother, but as far as maintaining the
guardianship, we would ask the Court to find it’s not in the best interest of
the child.â€
N.D.’s
attorney also asked the court to terminate the guardianship. N.D.’s counsel asserted Grandmother would be
working on a reunification plan with X.M. and it would not be safe for X.M. and
N.D. to be in the same home, because N.D. is too young to protect himself. Counsel argued, “I think it’s clear that
[N.D.] is not safe there. And it’s more
appropriate to terminate that guardianship at this time.†Mother agreed with the recommendation that
the guardianship be terminated.
Grandmother’s
attorney said, “[W]e’re not really saying the Court should not take
jurisdiction under something here, we’re just asking that, you know, she still
be considered for guardianship if the mother does not do the right thing. [¶]
We’re in favor of the mother getting her kid back. That’s not our problem. We are not saying one bad thing about the
mother. All we’re saying is, look, she’s
the guardian for two and a half years.
The mother is going to get services to try to get the kid back. God hope that she is successful, but if she
is not successful, what are we going to do with the kid?â€
The
juvenile court found true the following three allegations: (1) Grandmother has unresolved mental health
issues that negatively impact her ability to provide for N.D.’s wellbeing; (2)
Grandmother failed to protect N.D. by allowing X.M. to sexually abuse I.D. and
placing the blame for the sexual abuse on I.D., thus placing N.D. at risk for
similar abuse; and (3) Grandmother failed to protect N.D. by refusing to
disclose his whereabouts.
The
court ordered N.D. be removed from Grandmother’s physical custody. The court found there would be a substantial
danger to N.D.’s physical health if he were left in Grandmother’s custody. The court also found placement with Mother
would be detrimental. Thus, N.D. was
continued in foster care. The court then
said, “The Court finds that it is in the best interest of the child to
terminate the legal guardianship with the grandmother. As such the Court does not order services to
the grandmother.†The court ordered
reunification services for Mother. Grandmother
was granted visitation with N.D. dependent on the availability of the social
worker and foster parent(s).
A. EXCESS OF JURISDICTION
1. CONTENTION
Grandmother
contends the juvenile court acted in excess of its jurisdiction by terminating
the probate guardianship because the proper procedures were not followed. (Welf. & Inst. Code, § 728.)
errors occurred: (1) the probate court
was not notified of the juvenile court’s decision to terminate the
guardianship, (2) notice of the motion to terminate was not given to the
alleged father, siblings, grandparents, and others, (3) notice was not given 45
days before the hearing, and (4) the social worker did not recommend
termination prior to filing the motion for termination.
2. STANDARD
OF REVIEW
We
apply the de novo standard of review.
When interpreting statutes, if the statutory language is not ambiguous,
then the plain meaning of the language governs.
(Gualala Festivals Committee v.
California Coastal Commission (2010) 183 Cal.App.4th 60, 66-67.)
3. SECTION
728
A
juvenile court has the authority to terminate a probate guardianship if the
minor is the subject of a section 300 petition.
(§ 728, subd. (a).) The
termination ruling should be preceded by a noticed motion. (§ 728, subd. (a).) If the juvenile court terminates a probate
guardianship, then the juvenile court shall provide notice of the ruling to the
probate court. (§ 728, subd. (b).) Notice of the motion must be given to the
mother, presumed and alleged fathers, the child if the child is 10 years old or
older, any known siblings of the child, the grandparents of the child, all
counsel of record, any unknown parent, and the child’s foster parents. (§§ 294, subd. (a), 728, subd. (a).) Notice must be given at least 45 days before
the hearing date.
title="">[3] (§ 294, subd. (c)(1).)
4. PROCEDURAL
ERRORS
First,
we address Grandmother’s concern about notifying the probate court. Section 728, subdivision (b) provides, “If
the juvenile court decides to terminate or modify a guardianship previously
established under the Probate Code pursuant to subdivision (a), the juvenile
court shall provide notice of that decision to the court in which the
guardianship was originally established.â€
The plain language of the statute reflects notice must be given to the
probate court after the juvenile
court renders its ruling. It is notice
of the rendered decision that must be given—not notice of a possible decision. Accordingly, we disagree that failure to
notify the probate court would have affected the juvenile court’s jurisdiction
at the hearing, since notification to the probate court would have occurred after
the hearing.
Second,
we examine to whom the notice was given.
The motion to terminate the guardianship was served on N.D.’s attorneys,
Grandmother’s attorneys, and Mother’s attorneys. Section 294, subdivision (a), requires notice
to be served on “[a]ll counsel of record,†in addition to the mother,
grandparents, siblings, foster parent(s), and presumed and alleged
fathers. In the instant case, notice was
served only upon the counsel of record. It
does not appear notice was given to the paternal grandparents (if their
whereabouts were known), the foster parents, or Mother and Grandmother as
individuals—as opposed to their attorneys.
Thus, notice was not given as required.
Third,
we consider the timing of the notice.
The motion was filed with the juvenile court and placed in the U.S. mail
on September 19, 2012. The notice was
not timely because there are not 45 days between September 19 and October 19,
when the hearing took place.
The
fourth error alleged by Grandmother is that the social worker did not recommend
termination prior to filing the motion
for termination. In
1202, 1207 (Angel S.), the appellate
court described guardianship termination as a two-step procedure: (1) the social worker recommends termination
to the juvenile court, and (2) a motion to terminate is filed. We note California Rules of Court, rule
5.620(e), provides: “
court . . . that an existing guardianship be modified or terminated . . .
.†(Italics added.) Given the “if†language, we will reserve
deciding whether we agree with the Angel
S. conclusion that there is a required two-step procedure. For the sake of judicial efficiency and
thoroughly addressing Grandmother’s contention, we will assume, without
deciding, that the court erred by ruling on the motion for termination without
previously receiving a recommendation from the social worker.
5. LAW
CONCERNING JURISDICTION
Grandmother
asserts these procedural errors caused the juvenile court to act in excess of
its jurisdiction when it terminated the guardianship. “‘In its fundamental sense, “jurisdictionâ€
refers to a court’s power over persons and subject matter. [Citation.]
Less fundamentally, “jurisdiction†refers to a court’s authority to act
with respect to persons and subject matter within its power. [Citation.]
Issues relating to jurisdiction in its fundamental sense indeed may be
raised at any time. [Citations.] By contrast, issues relating to jurisdiction
in its less fundamental sense may be subject to bars including waiver . . .
[citation] and forfeiture . . . [citation].’
[Citation.] ‘The concept of jurisdiction
embraces a large number of ideas of similar character, some fundamental to the
nature of any judicial system, some derived from the requirement of due
process, some determined by the constitutional or statutory structure of a
particular court, and some based upon mere procedural rules originally devised
for convenience and efficiency, and by precedent made mandatory and
jurisdictional.’ [Citation.] The latter two categories in particular can
give rise to acts by the court in excess of jurisdiction, i.e., acts which do
not comply with a particular statutory procedure or applicable rules. [Citation.]
Acts in excess of jurisdiction are not void in any fundamental sense but
are, at most, voidable if properly raised by an interested party. [Citations.]â€
(Angel S.,
6. FUNDAMENTAL
JURISDICTION
In
Grandmother’s Appellant’s Opening Brief, she is focused on the fundamental
jurisdictional authority of the court. Grandmother
contends the dependency court “is a court of limited jurisdiction[, which] can
only make the limited determinations authorized by the legislative grant of
special powers under the Welfare and Institutions Code . . . .†Grandmother asserts the failure to comply
with the notice provisions “left the court without the authority to act.â€
Contrary
to Grandmother’s position, section 728, subdivision (a), provides: “The juvenile court may terminate or modify a
guardianship of the person of a minor previously established under the Probate
Code, or appoint a coguardian or successor guardian of the person of the minor,
if the minor is the subject of a petition filed under Section 300, 601, or
602.†The plain language of the statute
grants the juvenile court the authority to terminate a guardianship established
in the probate court. The statute then
goes on to identify the procedures a juvenile court must follow when
terminating a probate guardianship, but the authority to terminate the
guardianship exists outside of those procedures. In other words, the first sentence of the
statute establishes the juvenile court’s authority, while the rest of the
statute describes the procedures for exercising that authority. As a result, the juvenile court’s fundamental
authority to terminate a probate guardianship is not dependent on the
procedural rules being followed—the authority and procedure are not
intertwined. Accordingly we conclude the
court had fundamental authority to terminate the guardianship.
7. DUE
PROCESS
In
Grandmother’s Appellant’s Reply Brief, she alludes to being personally harmed
by the procedural failings. Grandmother
writes, “a probate guardian such as [Grandmother] will always be prejudiced by
not having the full 45 day statutory period to prepare for the hearing.†Failure to follow proper notice procedures
can compel reversal when a party is denied notice and asserts her right to
notice of the proceedings. (
It
does not appear Grandmother was given notice; however, her attorney was
notified. For the sake of judicial
efficiency, we will assume this was error.
A lack of notice is subject to harmless error review. (See In
re Angela C. (2002) 99 Cal.App.4th 389, 395 [lack of notice for a continued
termination hearing is subject to harmless error review].) We consider whether the error was harmless
beyond a reasonable doubt. (
Grandmother’s
attorney was notified of the hearing. Grandmother
appeared at the hearing with her attorney.
Grandmother testified at the hearing.
Grandmother’s attorney argued against terminating the guardianship. It appears from the record that Grandmother
was prepared for the hearing and was able to present her arguments concerning
the termination motion. Grandmother
does not explain what she would have done differently if the errors had not
occurred. Grandmother only asserts
people are always prejudiced when given inadequate notice. Since Grandmother does not explain what, if
anything, would have been different if the errors did not occur, and it appears
from the record Grandmother adequately presented her arguments, we conclude the
errors were harmless beyond a reasonable doubt.
8. CONCLUSION
There
is no basis to reverse the juvenile court’s order terminating the probate
guardianship because (1) the juvenile court had the fundamental authority to
terminate the guardianship, and (2) the procedural errors were harmless to the
extent they personally impacted Grandmother.
(See generally Angel S.,
[similar conclusion].)
B. BEST
INTERESTS
Grandmother
contends substantial evidence does not support the juvenile court’s finding
that termination of the guardianship was in N.D.’s best interests.
“The
sole criterion for termination of a probate guardianship is whether termination
is in the minor’s best interests.
[Citation.] We review a juvenile
court’s order terminating a probate guardianship under the substantial evidence
standard. [Citation.]†(In re
Xavier R. (2011) 201 Cal.App.4th 1398, 1416.) Under this standard, we view the evidence in
the light most favorable to the judgment, resolve all disputes in favor of the
judgment, and draw all reasonable inferences in support of the judgment. (Ibid.)
Grandmother
testified that she is bipolar and does not consistently take her medication. Grandmother said at times her “thinking starts
thinking too fast, and it’s overwhelming.â€
When Grandmother learned about X.M. sexually abusing I.D., Grandmother
“started beating the hell out of him.†Grandmother
admitted she “almost really hurt [X.M.]â€
Grandmother had to be stopped by a friend who was visiting the house. While Grandmother admitted the sexual abuse
allegations against X.M. were true, she blamed the four-year-old victim for
“enticing†X.M. and insisted X.M.’s actions did not constitute a crime.
The
foregoing is substantial evidence supporting the findings that (1) Grandmother
suffers unresolved mental health issues because she is inconsistent with her
medication and suffers overwhelming thoughts, and (2) Grandmother responded
violently to X.M.’s abuse and placed the blame on the victim. Given Grandmother’s unstable mental health,
her violent reaction, and denials of X.M.’s responsibility for sexually abusing
a four year old, it appears being in Grandmother’s care poses a risk of danger
to N.D.’s wellbeing because N.D. is too young to protect himself. As a result, there is substantial evidence
supporting the juvenile court’s conclusion that it would be in N.D.’s best
interests to terminate the guardianship.
C. BEST INTERESTS ANALYSIS
Grandmother
contends the juvenile court erred in conducting its best interests analysis
because, rather than considering more abstractly whether it was in N.D.’s best
interests to terminate the guardianship, the court considered whether N.D.’s
interests would be better served by reunifying with Mother or Grandmother—weighing
the two parental options against one another.
When
terminating Grandmother’s guardianship of N.D., the juvenile court said it
adopted the Department’s attorney’s “argument as the basis for the [c]ourt’s
findings.†The Department argued the
guardianship should be terminated because (1) Grandmother acted irresponsibly
by leaving I.D. and N.D. in the care of X.M. on the day of the sexual abuse;
(2) Grandmother has unresolved mental health issues and is self-medicating with
marijuana; and (3) Mother was better suited to reunification with N.D. than
Grandmother.
As
set forth ante, the termination of a
probate guardianship is reviewed for substantial evidence (In re Xavier R., supra,
201 Cal.App.4th at p. 1416), and substantial evidence supports the juvenile
court’s ruling. The juvenile court’s
decision in this case was based on evidence, i.e., Grandmother’s actions and
mental health issues, and the comparison between Mother and Grandmother. Grandmother has seized on the comparison
aspect of the reasoning. This argument
is not persuasive because this court reviews rulings, not reasoning. (In re
Zamer G. (2007) 153 Cal.App.4th 1253, 1271.) Therefore, while part of the juvenile court’s
reasoning may have been flawed, that will not support reversal of the judgment,
because, as set forth ante,
substantial evidence supports the court’s termination of the guardianship and
we do not review reasoning.
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
HOLLENHORST
Acting P. J.
KING
J.
All subsequent statutory references will be to the Welfare and
Institutions Code unless otherwise indicated.
The Department contends Grandmother forfeited this issue by failing to
raise it in the juvenile court. We
choose to address the merits of Grandmother’s contention because it is easily
resolved.
