Filed 4/30/14 In re K.H. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re K.H. et al., Persons Coming Under the Juvenile Court Law.

D065013

SAN DIEGO COUNTY HEALTH AND

HUMAN SERVICES AGENCY,

(Super. Ct. No. J512607D-E) Plaintiff and Respondent,

v.

JOE W.,

Defendant and Appellant;

T.H.,

Defendant and Respondent.

APPEAL from orders of the Superior Court of San Diego County, Carol Isackson,

Judge. Affirmed.

Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant

and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.

Terence M. Chucas, under appointment by the Court of Appeal, for Defendant and

Respondent.

Joe W. appeals from orders of the juvenile court granting a motion to terminate his

Probate Code guardianship of his nephews, K.H. and O.H. He contends the juvenile

court violated his due process rights in deciding the motion before making true findings

on the allegations of the dependency petitions filed on the boys' behalf and erred in

failing to dismiss the petitions, or strike their allegations against him, after terminating

the guardianship. (Welf. & Inst. Code, § 728.)1 We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

K.H. and O.H. (aged nine and eight, respectively) were placed with a paternal

cousin under a guardianship in 2008 after their mother died; at the time, their presumed

father, T.H., was incarcerated. When the original legal guardianship ended in 2012, Joe

took custody of the boys and, in March 2013, he was appointed as their temporary

guardian. At that time, Joe was receiving services from the Regional Center for mild

mental retardation and public financial assistance consisting of supplemental Social

Security benefits, cash aid and food stamps.

In September 2013, the boys' school requested a welfare check after a staff

member reported that Joe smelled of alcohol and was walking clumsily when he came to

1 All further statutory references are to the Welfare and Institutions Code. 2 pick the boys up after school. Police officers went to Joe's home, repeatedly knocked on

the door and identified themselves as officers. K.H. came to the door but refused to open

the security screen, telling the officers that Joe was asleep and he was afraid Joe would

beat him if he did so.

When the officers were unable to rouse Joe by additional knocking, they became

concerned about a possible medical emergency and forced their way into the apartment.

The officers had difficulty waking Joe and had to handcuff him after they succeeded in

doing so because he was agitated and threatening. The officers observed that Joe was

extremely intoxicated and that the boys were dirty and wearing torn and unkempt clothes.

The boys reported that Joe had been drunk all day, a common occurrence, and that they

were afraid of him.

The officers reported that the apartment smelled of urine and alcohol and that the

rugs in the bedroom the boys shared were smeared with dog feces. The sheets on the

boys' bed were also very dirty and the bedroom had broken windows and blinds. The

officers concluded that the boys were victims of general neglect and removed them from

the home to Polinsky Children's Center.

A social worker interviewed the boys the next day. K.H. reiterated that Joe was

always drunk and also used marijuana, that Joe hit and spanked him and threatened to hit

him with a cord and that Joe did not let the boys go outside to play, but made them stay

inside and watch television. K.H. also said that Joe touched him and his brother to clean

their private parts and that he did not want to go back to live with Joe. O.H. confirmed

3 that Joe spanked him and his brother "in the butt" and drank vodka and smoked

marijuana, but denied any sexual abuse.

The social worker also interviewed Joe, who said that in the time the boys had

been in his care, he would discipline them by spanking or making them stand in the

corner. Joe admitted that he smoked marijuana in the evenings, when the boys were in

their bedroom, to help him sleep and that if he smoked marijuana during the day, it was

only when the boys were in school. He denied being drunk the previous afternoon, but

said that he could still function fine after having three or four drinks. He also denied

making the boys stay inside all day, but indicated that he would always go with them if

they went outside because the neighborhood was not safe.

The social worker confirmed that the small apartment was dirty. In addition to the

dog feces and the urine smell, she found dead bugs inside the refrigerator, roaches in the

pantry and spider webs in the kitchen. The dresser drawers in the boys' room were empty

except for the presence of roaches.

The social worker talked to Joe's Regional Center case worker, who indicated that

Joe had limited coping skills, had had difficulty following through on services that the

center had offered and was currently overwhelmed by trying to care for the boys, both of

whom had educational and mental health needs.2 Joe had not brought the boys to the

Regional Center for an assessment, despite having been asked to do so, and also had had

difficulty following up with the boys' medical appointments.

2 Both boys were very active and were taking medication after being diagnosed with attention deficit hyperactivity disorder. 4 On September 12, 2013, the San Diego County Health and Human Services

Agency (the Agency) filed section 300 petitions on behalf of the boys. The petitions

alleged that Joe was the boys' guardian and a consumer of Regional Center services, he

smelled of alcohol when he picked the boys up from school, his home smelled of urine

and alcohol and had dog feces on the floor, and the boys were afraid of him. (§ 300,

subd. (b).) The petitions also alleged that the boys had been left without any provision

for their support. (Id., subd. (g).) The Agency recommended providing Joe services to

address his substance abuse and other issues and supervised visitation.

Joe was present, and represented by appointed counsel, at the detention hearing

and denied the allegations of the petitions. The Agency reported that Joe's temporary

guardianship of the boys was scheduled to expire in December 2013 and the boys did not

want to visit him. The juvenile court made a prima facie finding under section 300,

subdivisions (b) and (g) and ordered that Joe have supervised visits with the boys.

After the detention hearing, the Agency placed the boys in a foster home.

Although Joe had supervised visits with the boys, he consistently left the visits early and

his interactions with the boys were somewhat limited; visitation was ultimately canceled

after the New Alternatives Family Visitation Center reported that the visits "[did] not

seem productive."

5 In October 2013, the Agency received a child abuse hotline report that Joe had

sexually abused K.H. when K.H. lived with him. The San Diego Police Department

opened an investigation into the allegations.3

At the continued jurisdictional/dispositional hearing, the juvenile court found there

was a "high likelihood" that the probate court would not continue Joe's temporary

guardianship because the boys' father was attempting to reunify with them. Joe set the

matter for a contested hearing on the allegations contained in the petitions and on the

issue of whether the boys should be returned to his custody. Shortly thereafter, the

Agency filed a motion to terminate Joe's temporary guardianship of the boys under

section 728, subdivision (a).

At the contested hearing on the termination motion and the jurisdictional issues,

the Agency requested that the juvenile court hear and decide the motion first. Joe

objected, requesting in part that the jurisdictional issues be resolved first or, alternatively,

that if the court granted the motion, it dismiss the petitions as moot since most of the

allegations therein pertained to him.

After hearing argument, the juvenile court proceeded with the termination motion

first, admitting without objection the detention report, the jurisdictional/dispositional

report and addendum reports prepared in October and November. The parties stipulated

that if Joe was called as a witness, he would testify that he wanted the boys returned to

his care, his home was now clean and he was working with a parenting coach. The

3 The record does not include any indication as to the outcome of the investigation. 6 juvenile court found by clear and convincing evidence that the boys' best interests

supported termination of Joe's temporary guardianship, noting that although Joe had

made a significant effort to meet the boys' needs, they did not want to maintain contact

with him and, given his own circumstances, he had only a limited ability to meet their

needs for extensive attention and supervision. The court excused Joe and his counsel

from the proceedings.

Turning to the jurisdictional issues, the juvenile court granted the Agency's request

to amend the petitions, in part to reflect that Joe was the former temporary guardian for

the boys. The court considered the evidence previously admitted at the hearing and

found by clear and convincing evidence that the allegations of the amended petitions

were true.

Joe appealed.

DISCUSSION

1. Did Joe Have a Due Process Right to Participate in the Jurisdictional and Dispositional Hearing After the Termination of the Temporary Guardianship?

"The juvenile court may terminate . . . a guardianship of the person of a minor

previously established under the Probate Code . . . if the minor is the subject of a petition

filed under Section 300" (§ 728, subd. (a)) and there is clear and convincing evidence that

terminating the guardianship is in the child's best interests (e.g., In re Merrick V. (2004)

122 Cal.App.4th 235, 254). Under the statutory scheme, the hearing on a termination

motion "may be held simultaneously with any regularly scheduled hearing held in

proceedings to declare the minor a dependent child . . ., or at any subsequent hearing

7 concerning the dependent child . . . ." (§ 728, subd. (a); see also In re Xavier R. (2011)

201 Cal.App.4th 1398, 1413 [recognizing that the juvenile court has the authority to

terminate a probate guardianship at any stage in the dependency proceedings].)

Despite the clear statutory language allowing a section 728 motion to be brought

at any point during a juvenile dependency proceeding, Joe contends that the juvenile

court violated his due process rights by terminating his guardianship before conducting

the jurisdictional and dispositional hearing. Specifically Joe argues that the court's ruling

prevented him from defending against the allegations of the petitions and thus violated

his due process rights.

Joe's argument is unavailing. He had notice of the motion, was present and

represented by appointed counsel at the hearing and had the opportunity to respond to

evidence presented in support of the motion and to present his own evidence in

opposition thereto. Moreover, Joe cites no authority, and we find none, to establish that a

probate guardian has a due process right to continue participating in the juvenile

dependency proceedings once his guardianship has been terminated. Joe has not

established a violation of his due process rights.

2. Did the Juvenile Court Err in Failing to Dismiss the Petitions or Strike the Allegations Relating to Joe?

Joe makes an alternative argument that the juvenile court was required to either

dismiss the petitions as moot or strike the allegations therein relating to him. However,

the fact that Joe was terminated as the probate guardian for the boys in no way renders

moot the allegations of the petitions setting forth the circumstances on which the juvenile

8 court was being asked to step in and protect the boys. (See In re La Shonda B. (1979) 95

Cal.App.3d 593, 599.) Similarly, since Joe had an opportunity to respond to the precise

evidence that the juvenile court relied on to make true findings on the allegations in the

petitions at the jurisdictional and dispositional hearing, he was not unduly prejudiced by

those allegations even though the true findings thereon may have an adverse effect on his

ability to seek the boys' placement with him in the future.

DISPOSITION

The orders are affirmed.

HUFFMAN, Acting P.J.

WE CONCUR:

HALLER, J.

MCDONALD, J.

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