IN RE: ALEXANDER D.

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Court of Appeal, Sixth District, California.

IN RE: ALEXANDER D., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY & CHILDREN'S SERVICES, Plaintiff and Respondent, v. ALEXANDER D., Defendant and Appellant.

No. H010463.

Decided: August 12, 1993

Rhoda Sapirstein, Berkeley (under appointment by the Court of Appeal), for defendant and appellant. Steven M. Woodside, Santa Clara County Counsel and Jeffrey L. Bryson, Deputy County Counsel, for plaintiff and respondent. George W. Kennedy, Dist. Atty., Santa Clara County and Robert J. Masterson, Deputy Dist. Atty., for respondent minor.

Alexander D. (hereafter, Father) appeals from the juvenile court's order finding the allegations of a dependency petition true and determining that the minor, Alexander William D., be placed outside his guardians' home while reunification with them was attempted.   He primarily contends that the juvenile court transgressed his right to be heard by denying him a contested hearing on the issue whether the minor should be placed with him during reunification.   We disagree and affirm the order.

BACKGROUND

The juvenile court first made the minor a dependent child in 1984, when the minor was 16 months old.   The minor's mother had been arrested for being under the influence of a drug, and Father was incarcerated on a drug-related conviction.   The juvenile court placed the minor in his grandmother's home pending reunification.   Once released from custody, Father visited the minor periodically, but reunification efforts failed.   In 1988, the juvenile court appointed the grandmother and stepgrandfather as the minor's guardians without limitation of powers and duties.   In 1989, it dismissed the dependency proceeding.

In 1992, the stepgrandfather injured the minor resulting in the minor's placement in protective custody where certain behavioral disorders manifested.   A new dependency petition was filed making allegations under Welfare and Institutions Code sections 300, subdivision (b) (failure to protect), and 300, subdivision (c) (serious emotional damage).1  As ultimately found true by the juvenile court, the allegations were:  (1) “The minor has suffered, or there is a substantial risk that the minor will suffer, serious physical harm or illness, [¶] as a result of the failure or inability [of his] legal guardian to supervise or protect the minor adequately [and] [¶] as a result of the willful or negligent failure of the minor's legal guardian to supervise or protect the minor adequately from the conduct of the custodian with whom the minor has been left”;  and (2) “The minor is suffering, or is at substantial risk of suffering, serious emotional damage evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others [¶] because the minor has no parent or guardian capable of providing appropriate care.”

At the jurisdictional hearing, the guardians admitted the allegations of the petition.   The social worker's report recommended that the minor be removed from the guardians' physical custody and reunification services be provided.   It also recommended that certain visitation opportunities be ordered, including opportunities for Father to visit the minor.

Father requested a trial:  “[W]hat I have in mind is given this dependency did not arise at all because my client is not capable of providing care.   I had initially intended to set the case for disposition because I think my client's circumstances have so sufficiently changed that he will be asking that the minor be placed with him.”   He later elaborated:  “Your Honor, during the period of reunification the child is going to have to be placed someplace, and my client would very much like to make his home available as a placement, either as a temporary placement or a long term placement.   My client has the utmost regard for the guardians, so it's not a situation where there is an adverse relationship or there's conflict or something of that nature.”

The Santa Clara County Department of Family and Children's Services (hereafter, the Department) and the minor opposed Father's request on the basis that he did not have standing to request a contested trial to place the minor with him.   They emphasized that a guardianship existed and the purpose of the dependency proceeding was to reunify the minor with his guardians.

Father maintained his right to a trial and expressed disagreement with the allegation that the minor has no parent capable of providing appropriate care:  “[Y]es, Dr. Jones had made recommendation for residential placement.  [Father], one of the reasons he's here today and was here previously is because he does want to advise the court as to what situations he can offer, and how it would, in fact, be in the minor's best interests.  [¶]  In fact, Dr. Jones may be in error in making the recommendation of a residential placement.   And as I indicated it would be interesting to see what Dr. Jones had to say as to what the father can offer the minor, and therapy in Stevenson, whether Dr. Jones would still be in favor of a residential treatment.   But the fact is my client is here as a party.”

The juvenile court sustained the petition.   The parties other than Father submitted the matter for disposition.   The juvenile court adopted the recommendations of the Department and specified:  “That the minor be committed to the care & control of [the Department] for suitable relative/foster/private institutional placement.”

DISCUSSION

“A section 300 dependency hearing is bifurcated to address two distinct issues.   First, at the jurisdictional hearing, the court determines whether the child falls within any of the categories set forth in section 300.   If so, the court may declare the minor a dependent child of the court.  [Citation.]   Then, at the dispositional hearing, the court must decide where the child will live while under its supervision, with the paramount concern being the child's best interest.”  (In re Corey A. (1991) 227 Cal.App.3d 339, 345–346, 277 Cal.Rptr. 782, fn. omitted.)

Father contends that the juvenile court violated his due process right to be heard by denying him a trial.  (In re Kelvin M. (1978) 77 Cal.App.3d 396, 402, 143 Cal.Rptr. 561.) 2  He argues:  “Here, it is not a de facto parent, but the natural father who had a constitutionally protected relationship with the minor, who was excluded not only from asserting his own interests, but who was also deprived of the opportunity to offer to the juvenile court information about the minor which could have a direct bearing on the court's understanding of what proceedings would best serve [the minor's] interests.”

As acknowledged by the juvenile court and respondents, there is a superficial appeal to Father's argument because it broadly suggests that the proceeding below was unfair.   Upon scrutiny, however, the argument fails.

 We observe at the outset that Father was not denied a hearing so as to implicate the constitutional right of due process of law.   The juvenile court allowed a full exposition of Father's views.   It then denied Father's request for a trial because the issues, in its view, were not triable.   In other words, the decision denying Father's request for trial was made assuming the truth of Father's offer of proof.   Thus, the proceeding below was more akin to an orthodox civil dispositional proceeding before trial such as a hearing on demurrer or summary judgment rather than a barring of the courtroom door.   Our focus is therefore on the propriety of the decision under the law.

The only jurisdictional issue Father sought to contest was the section 300, subdivision (c), allegation that the minor was suffering, or was at risk of suffering, emotional damage because “the minor ha[d] no parent or guardian capable of providing appropriate care.”   Father posed that he, a parent, was capable of providing appropriate care.

Father's analysis is erroneous.   The authority of a parent ceases upon the appointment, by a court, of a guardian of his or her child.  (Civ.Code, § 204, subd. 1.)   When a guardian is appointed without limitation of authority, it is the guardian, not the parent, who has the power over the child's “care, custody, and control ․ and has charge of the education of, the ward․”  (Prob.Code, § 2351, subd. (a).)  Thus, a guardianship order precludes a parent from caring for the ward.

 It follows that a parent whose powers over his or her child have been suspended by an order of guardianship cannot contest a dependency jurisdictional proceeding with facts showing that he or she can provide appropriate care to the ward.

The only dispositional issue Father sought to contest was the placement of the minor during the reunification period.   Father offered to prove facts showing that the minor should be placed with him.

Again, Father's analysis is erroneous.   The guardianship proceeding and Father's objective in this dependency proceeding pertain to the same subject matter, i.e., custody of the minor.   The guardianship order suspended Father's custody rights.   Thus, until the guardianship is terminated (Cal. Rules of Court, rule 1465), the juvenile court cannot order a ward's custody to reside in a parent.  (In re Marriage of Schenck (1991) 228 Cal.App.3d 1474, 1482–1485, 279 Cal.Rptr. 651 [it is beyond the jurisdictional authority of one superior court department to take an action that interferes with a matter pending before another department of the same court].)

 It follows that a parent whose powers over his or her child have been suspended by an order of guardianship cannot contest a dependency dispositional proceeding with facts showing that he or she should be given custody of the ward.

The juvenile court therefore correctly denied Father's request for a trial.

Father finally contends that no substantial evidence supports the juvenile court's jurisdictional finding on the section 300, subdivision (c), allegation.   He bases his claim, however, on the lack of evidence indicating that he contributed to the minor's problems and would not be able to provide appropriate care and protection to the minor.   As we have explained, this type of evidence was irrelevant to the issues before the juvenile court.

DISPOSITION

The order is affirmed.

FOOTNOTES

1.   Further statutory references are to the Welfare and Institutions Code unless otherwise specified.

2.   In addition to authority recognizing the constitutional rights of parents in dependency proceedings, Father also relies upon various rules affirming these rights such as California Rules of Court, rule 1455, subdivision (b), which states:  “The court shall receive in evidence and consider the social study, a study or evaluation prepared by a child advocate appointed by the court, and any relevant evidence offered by petitioner, the child, or the parent or guardian.”

PREMO, Acting Presiding Justice.

ELIA and WUNDERLICH, JJ., concur.

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