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Court of Appeal, Fifth District, California.

IN RE: MARILYN H., et al., Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. DEBBIE H., Defendant and Appellant.

No. F015312.

Decided: January 30, 1992

Kimball J.P. Sargeant, Sacramento, under appointment by the Court of Appeal, for defendant and appellant. B.C. Barmann, Kern County Counsel, and Stacy Inman, Deputy, Bakersfield, for plaintiff and respondent. Lucretia H. Parks, Berkeley, under appointment by the Court of Appeal, for minors.


On an appeal taken from the establishment of a guardianship pursuant to Welfare and Institutions Code section 366.26,1 we hold that the juvenile court is precluded from considering reunification as an option under that section.


Petitions for Richard, age 7, and Marilyn, age 5, were filed with the Kern County Juvenile Court under section 300, subdivision (b), alleging there was substantial risk to Marilyn and Richard in that they would suffer serious physical harm or illness by the willful and negligent failure of the mother to provide adequate food, clothing, shelter or medical treatment for them.   The petitions alleged the minors' residence was unsafe and unsanitary because they were living in a trailer eight feet by fourteen feet in the open desert with no electricity or running water;  the trailer had several broken windows;  debris covered the floor and the kitchen area;  the trailer appeared warped and water damaged with holes in the trailer shell;  a large gas barbecue was used to provide heat and the minors were infected with lice.   The minors were detained in protective custody and placed in a foster home.

After hearing, the court found the allegations in the petitions to be true and ordered the minors to remain in their current placement pending the dispositional hearing.

At the dispositional hearing, Marilyn and Richard were adjudged dependent children of the court.   At the ensuing review hearings, it was disclosed in the social workers' reports and the court so found that there had been insufficient compliance with reunification services.   The court continued placement of the minors with the grandparents.

At the 18–month review hearing, the social worker's report stated appellant had completed parent effectiveness training, had been attending counseling on a regular basis and was cooperative with the agency regarding family reunification.   At that time, Robert A. was living with appellant.   He had been attending counseling with her and had enrolled in a parenting course.   Robert A. had a history of drug and alcohol abuse and encounters with the police and had recently been released from incarceration for his latest offense.

Appellant and Robert A. had made substantial progress since the previous hearing;  however, the social worker could not recommend reunification without more counseling.   The social worker did indicate there was a possibility that appellant and Robert A. may satisfactorily meet the reunification requirements before the permanency planning hearing.

The court then found that appellant had only moderately complied with the family reunification plan.   Reunification services were terminated and the court ordered a permanency planning hearing to be held within 120 days pursuant to section 366.26.   The county adoption agency was ordered to prepare an assessment of the minors.

On January 9, 1991, a hearing pursuant to section 366.26 was held, resulting in a finding that the minors were not adoptable and in the appointment of the grandparents as guardians of the minors.   The court then terminated juvenile court dependency jurisdiction upon issuance of the letters of guardianship.

During the pendency of the reunification process, appellant had given birth to a child, Robert A., Jr. (Bobby), May 1, 1989.   A petition on behalf of Bobby had been filed May 26, 1989, pursuant to section 300, subdivision (b) alleging that the living conditions were unsafe and unsanitary.   Bobby was adjudged a dependent of the court in July 1989 and appellant was provided reunification services for the child.


Appellant does not challenge the efficacy of any ruling prior to the section 366.26 hearing.   We are asked to decide whether section 366.26, subdivision (b) permits the court to return the children to the parental home as an unwritten and implied fifth alternative plan to the four alternative plans expressly set forth in subdivision (b).

Section 366.26, subdivision (b) states:

“At the hearing, which shall be held in juvenile court for all minors who are dependents of the juvenile court, the court, in order to provide stable, permanent homes for these minors, shall review the report as specified in Section 361.5, 366.21, or 366.22, shall indicate that the court has read and considered it, shall receive other evidence that the parties present, and then shall do one of the following:

“(1) Permanently sever the parent or parents' rights and order that the child be placed for adoption.

“(2) Without permanently terminating parental rights, identify adoption as the permanent placement goal and order that efforts be made to locate an appropriate adoptive family for the minor for a period not to exceed 60 days.

“(3) Without permanently terminating parental rights, appoint a legal guardian for the minor and issue letters of guardianship.

“(4) Order that the minor be placed in long-term foster care, subject to the regular review of the juvenile court.”

The Placement Options Set Forth in Section 366.26 Are Exclusive

 At the section 366.26 hearing, appellant requested that the court consider returning the minors to her custody because of a change of circumstances.   Since the last hearing, she and Robert A. had completed programs that were part of the reunification plan prior to its termination and their child Bobby had been returned to her custody November 30, 1990.   The juvenile court denied appellant's request and limited the evidence at the hearing to issues relevant to establishing the appropriate permanent plan for the minors under the expressed alternatives of section 366.26, subdivision (b)(1), (2), (3) and (4), stating:

“The Court's ruling in this respect is that we would go ahead and hear the review pursuant to Section 366.26;  that the Court will limit the hearing of the evidence as to the issues of whether the placement should be with foster care or guardianship, and if so, with whom, to the exclusion of the return of the custody of the children to the parent.

“Mr. Walbaum, if you need to represent your client's interest by making a motion to modify this order or previous orders, that may be made this day.   Apparently you have a remedy to do that.”

Appellant cites as error the refusal of the juvenile court to consider return of the children to appellant as a permissible option under section 366.26 and contends that the failure to exercise its discretion in that regard requires reversal of the order and remand to the juvenile court.

Respondent, Department of Human Services, argues that the juvenile court was correct in excluding such evidence because section 366.26 expressly limits the options available to the court in such a proceeding.

Section 366.26 was adopted in 1987 and governs all dependency proceedings for minors who are adjudged dependent children of the juvenile court pursuant to subdivision (c) of section 360 on or after January 1, 1989.   This section, former sections 224 and 224m (now §§ 221.20 and 222.10, respectively), and 7017 of the Civil Code represent the exclusive procedures for permanently terminating parental rights with regard to, or establishing legal guardianship for the minor while the minor is a dependent of the juvenile court.  (§ 366.26, subd. (a).)

In our resolution of the issue presented, we look to the established principles of statutory construction.

“Pursuant to established principles, our first task in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law.   In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of legislative purpose.   A construction making some words surplusage is to be avoided.   The words of the statute must be construed in context, keeping in mind the statutory purpose and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.  [Citations.]   Where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation.  [Citation.]   Both the legislative history of the statute and the wider historical circumstances of its enactment may be considered in ascertaining the legislative intent.  [Citations.]   A statute should be construed whenever possible so as to preserve its constitutionality.”  (Dyna–Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386–1387, 241 Cal.Rptr. 67, 743 P.2d 1323.)

The Legislature has declared the purpose of the hearing is “to provide stable, permanent homes for these minors” “who are dependents of the juvenile court.”  (§ 366.26, subd. (b).)

A permanency planning hearing is the culmination of a juvenile court process that begins with the initial filing of a dependency petition under section 300.   Once a minor is adjudged a dependent of the court (§ 360, subd. (c)), the court must conduct a status review hearing within six months after the initial dispositional hearing and return the minor to the parent's custody unless the court finds by a preponderance of the evidence that returning the child would create a substantial risk of detriment to the child.  (§ 366.21, subd. (e).)  At the 12–month review hearing, the child must be returned to the parents unless a similar finding is made, that the return would create a substantial risk of detriment to the minor.   The court must also find that reasonable services have been offered to the parent.  (§ 366.21, subd. (f).)  If the child is not returned to the custody of a parent, the court shall do one of the following:  continue the case for up to six months for another review hearing;  order that the minor remain in long-term foster care;  or order a section 366.26 hearing.  (§ 366.21, subd. (g)(1)–(3).)   During the period of reunification, the primary aim is to reunify the family (cf. In re Raymond H. (1985) 175 Cal.App.3d 556, 563, 221 Cal.Rptr. 165).

If an 18–month status review hearing is held, the court must return the child to the custody of his or her parents unless it finds by a preponderance of the evidence that a return would create a substantial risk of detriment to the child.  (§ 366.22, subd. (a).)

If the child is not returned to the parents, the court shall develop a permanent plan and order that a hearing pursuant to section 366.26 be held no later than 120 days from the date of the hearing.  (§ 366.22, subd. (a).)  When a section 366.26 hearing is ordered, reunification services provided to the parents must be terminated.  (§ 366.21, subd. (h).)

The statutory scheme assumes the court made the necessary findings at the status review hearings before a permanency planning hearing is held to determine the appropriate permanent home for the minors.  Section 366.26 reflects the modification of

“the procedure for permanently severing parental rights in cases where the child is a dependent of the court.   The new procedure will apply to minors adjudicated dependents of the court on or after January 1, 1989.   Unlike current practice, which requires the filing and prosecution of a separate civil court action pursuant to Civil Code Section 232, all termination proceedings for children who are dependents will be heard in the juvenile court, as part of the regular review process.   The task force reasoned that by eliminating the need to file the separate Civil Code Section 232 action, minors who are adoptable will no longer have to wait months and often years for the opportunity to be placed with an appropriate family on a permanent basis.

“Under the new provisions, a juvenile court must hold a ‘permanency’ hearing within 120 days of the time it decides that no further reunification services shall be provided to the parents.   The procedures are specified in WIC Section 366.26.   While the permanency hearing may be ordered following the initial dispositional hearing, pursuant to WIC Section 361.5(b), the six month review, pursuant to WIC Section 366.21(e), or the twelve month review, pursuant to WIC Section 366.21(g), it must be held within eighteen months of the time the minor was first removed from the parent's custody, pursuant to WIC Section 366.22.   At the permanency hearing the court has only three options:  Termination leading to adoption, guardianship, or long term foster care.   The Court is to choose the disposition best for the child;  however, as under present law, adoption is the preferred disposition, long term foster care the least preferred.”  (Sen. Select Com. on Children and Youth, Sen. Bill No. 1195 Task Force Report.)

Proceedings under section 366.26, as under Civil Code section 232 previously, take place only after reunification efforts have failed.  (Cf. In re Raymond H., supra, 175 Cal.App.3d 556, 563, 221 Cal.Rptr. 165.)

We find the case of In re Heather P. (1989) 209 Cal.App.3d 886, 257 Cal.Rptr. 545, illuminating.   In that case, the mother appealed, contending section 366.3, subdivision (c) does not preclude a parent from presenting evidence to challenge a custody order at a review hearing after a permanency plan.  (Id. at p. 889, 257 Cal.Rptr. 545.)   The Court of Appeal disagreed, stating:

“We find nothing in the language of this statute to indicate that during a review hearing a court should consider whether to return a child to a parent's custody.   The court made an explicit finding at the permanency planning hearing that returning Heather to her mother's custody would create a substantial risk of detriment to her well-being.   After the court had made that finding, it did not need to continue to make it at each subsequent review.”  (In re Heather P., supra, 209 Cal.App.3d at p. 890, 257 Cal.Rptr. 545.)

Likewise here, the statute, by omission therefrom, clearly precludes consideration of reunification as an option.

Does Section 366.26 Violate the Minor's Right to Procedural Due Process?

 The federal and California Constitutions guarantee that no state shall deprive any person of life, liberty or property without due process of law.   Under this principle, both the Legislature and the judiciary are forbidden to act arbitrarily in contravention of the fundamental principles of liberty and justice.  (Adoption of Kay C. (1991) 228 Cal.App.3d 741, 747–748, 278 Cal.Rptr. 907.)

The minors argue that the court, by denying them their right to present evidence of changed circumstances arising after the 18–month status review hearing, denied them their right to procedural due process.

“ ‘[W]hat procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.’ ”  (Stanley v. Illinois (1972) 405 U.S. 645, 650–651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551.)

It is well established that the parent's interest in the companionship, care, custody and management of his children is a compelling one, ranked among the most basic of civil rights.  (In re B.G. (1974) 11 Cal.3d 679, 688, 114 Cal.Rptr. 444, 523 P.2d 244.)   Similarly, the natural children also have a fundamental independent right in belonging to a family unit.  (Adoption of Kay C., supra, 228 Cal.App.3d 741, 749, 278 Cal.Rptr. 907.)

Section 366.26 provides that parental rights shall be terminated if by clear and convincing evidence it is likely that the minor will be adopted.  (§ 366.26, subd. (c)(1).)   If the court finds that adoption of the minor or termination of parental rights is not in the interest of the minor or is detrimental to the minor, legal guardianship is the preferred plan over long-term foster care.  (§ 366.26, subd. (c)(4).)

Although a guardianship is not as drastic as termination of parental rights, nevertheless, a parent loses legal custody over the child.  (Prob.Code, § 2351;  In re Lynna B. (1979) 92 Cal.App.3d 682, 696, 155 Cal.Rptr. 256.)

In balancing the state's interest in these proceedings, “The Legislature has declared that California has an interest in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with the parents have been unsuccessful.”   (In re Heather P., supra, 209 Cal.App.3d 886, 892, 257 Cal.Rptr. 545.)   The state's interest in providing stable, permanent homes for these children is a compelling state interest.  (Ibid.)

It is undisputed that the state has a legitimate interest in separating children from the custody of an unfit parent.   However, the state, before depriving a parent of this interest, must afford her adequate notice and an opportunity to be heard.  (In re B.G., supra, 11 Cal.3d at pp. 688–689, 114 Cal.Rptr. 444, 523 P.2d 244.)

Appellant had the right to present evidence that Richard and Marilyn could be safely returned to her custody at each of the status review hearings held.   However, section 366.26 does not provide that the court must again determine whether returning the children to her custody would create a substantial risk of detriment to their well-being.

Section 366.26, taken by itself, does not afford a parent the opportunity to present evidence of changed circumstances that may have occurred during the 120–day period between the last status review hearing and the permanency planning hearing.   However, section 388 gives a parent, minor, or any other interested party the opportunity to present new evidence to challenge a court's previous order by filing a petition with the court.   Appellant, or counsel for the minors, could have done so prior to the section 366.26 hearing.  (Cf. In re Heather P., supra, 209 Cal.App.3d 886, 891, 257 Cal.Rptr. 545;  Cal.Rules of Court, rule 1432.)   It is neither unreasonable nor a violation of due process rights to require such affirmative action.

Section 366.26, read in conjunction with section 388, adequately afforded the minors and appellant the opportunity to be heard and present new evidence.

The minors also argue they were denied their right to procedural due process because they were excluded from the courtroom when the court rendered its decision.   They fail to cite any authority to support this contention nor does the record on appeal indicate this occurred.   Accordingly, we decline to review the merits of their contention.  (Cf. In re Joseph E. (1981) 124 Cal.App.3d 653, 657, 177 Cal.Rptr. 546.)


 Concerned that she is now precluded from filing a petition pursuant to section 388, appellant contends that the termination of dependency jurisdiction constituted an abuse of discretion.   Appellant's concern is unfounded.

At the hearing, the court was informed by deputy county counsel that even if a guardianship were established, appellant had the remedy of setting aside the guardianship by petitioning the court under section 388 that she had rehabilitated herself to the extent that she could provide a suitable home for the minors.

Appellant's attorney requested a continuance of the section 366.26 hearing in order to file a petition under section 388.   The court denied the request for a continuance on the assumption that appellant could file the petition at a later date.

After hearing testimony, the court appointed the paternal grandparents as guardians over Richard and Marilyn.   Appellant's attorney requested that the court maintain jurisdiction.   The court denied the request indicating,

“It has to come to an end sometime, these proceedings within the jurisdiction of this Court.   The Court has provided for guardianship and visitation.   It seems to me that a change of that order or a modification of the visitation should be addressed to the civil court of the Superior Court.”

 Notwithstanding the court's apparent belief that the effect of terminating dependency jurisdiction was to require that further proceedings be held in the family law or probate court, the termination order had no such effect.2

Section 366.4, enacted shortly before the court terminated dependency jurisdiction, provides in pertinent part:

“Any minor for whom a guardianship has been established resulting from the selection or implementation of a permanent plan pursuant to Section 366.25 or 366.26 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.”

Section 366.3, subdivision (a), as amended in 1990, states in pertinent part:

“The court may continue jurisdiction over the minor as a dependent minor of the juvenile court following the establishment of a legal guardianship or may terminate its dependency jurisdiction and retain jurisdiction over the minor as a ward of the guardianship established pursuant to Section ․ 366.26 and as authorized by Section 366.4․”

Read in conjunction with section 366.4, section 366.3 clearly provides that the juvenile court continues to retain jurisdiction over the minors after guardianship is established.

By providing in section 366.3, subdivision (b) that if dependency jurisdiction is dismissed following establishment of a legal guardianship and the guardianship is subsequently terminated, the county department of social services must notify the juvenile court to allow for the reinstatement of dependency jurisdiction, we conclude that the Legislature did not intend that a minor, either as a ward or as a dependent child in a guardianship, be without the “protection” of the juvenile court by inadvertence.3

Therefore, although the juvenile court judge incorrectly assumed that further proceedings would be in the “civil court of the Superior Court,” his order did not divest the juvenile court of all jurisdiction over the guardianship.

Moreover, from the tenor of the colloquy between counsel and the court, it is apparent that the court did not intend to leave appellant with no recourse to file an appropriate petition for modification.   From this, we conclude that only dependency jurisdiction was dismissed.

 Appellant perceives error by the juvenile court's failure to set aside on its own motion under section 385 the previous order from the 18–month status review hearing denying return of the children to her home.   Section 385 gives the juvenile court the discretion to set aside any previous order.   Section 385 states:

“Any order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article.”  (Emphasis added.)

Contrary to appellant's argument, section 385 does not give the court discretion to modify or set aside any previous court order on its own motion.   That section must be read in conjunction with section 388,4 which sets forth the necessary procedural requirements.  (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485, 229 Cal.Rptr. 771.)

 Appellant's argument that the court's termination of dependency jurisdiction dismissed the court's duty to supervise visitations or to appoint another guardian if the grandparents could no longer care for the minors is also without merit.

“ ‘[T]he guardianship itself is not concluded ․ until the guardian has been discharged.   Jurisdiction of the court in this respect is a continuing one, and as an arm of the court the guardian in his duties acts under the authority of the supervision of the court which appointed him․  [¶] ‘If circumstances subsequent to the original order make it desirable and conducive to the comfort and well-being of the child that a modification thereof be made, the court, to alleviate or correct the situation, has jurisdiction to order that regulations be imposed upon the guardian, such as directing that a relative or other person should have access to the child whose custody is decreed in the guardian.  [Citations.]’  [Citation.]

“․ because of continuing jurisdiction of the court in a guardianship proceeding, the issue of custody as well as visitation remains viable during the pendency of the guardianship.”  (Emphasis added, Guardianship of Martha M. (1988) 204 Cal.App.3d 909, 913–914, 251 Cal.Rptr. 567 [a case involving a probate guardianship].)

Here, the letters of guardianship were issued from the juvenile court on a form expressly noting issuance pursuant to sections 366.25 and 366.26.

Finally, we address the argument that under section 388, appellant would be prejudiced by being required to employ a private attorney, by noting section 317, subdivision (d) specifically provides that a parent may be entitled to a court-appointed attorney until a guardianship is set aside.

The court did not abuse its discretion in terminating dependency jurisdiction.


The judgment is affirmed.


1.   All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

2.   We reject the department's argument that appellant could simply bring a section 388 motion in the family law court.   The language of section 362.4, which provides for jurisdiction of the minor in the family law court upon termination of jurisdiction by the juvenile court, requires that there be proceedings already existing or capable of being initiated regarding “nullity,” “dissolution of marriage,” “legal separation” or “paternity.”By omission therefrom, section 362.4 precludes opening a file in the superior court on the basis of the facts here, which involve none of the predicated issues set forth above.

3.   We note that section 366.3, subdivision (b) does not appear to make reinstatement of dependency jurisdiction mandatory.   In pertinent part, subdivision (b) states:  “The court may vacate its previous order dismissing dependency jurisdiction over the minor.”  (Emphasis added.)   That issue, however, is not before us.

4.   Section 388 states:“Any parent or other person having an interest in a child who is a dependent child of the juvenile court or the child himself 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 for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.   The petition shall be verified and ․ shall set forth in concise language any change of circumstances or new evidence which are alleged to require such change of order or termination of jurisdiction.“If it appears that the best interests of the child may be promoted by the proposed change of order or termination of jurisdiction, the court shall order that a hearing be held and shall give prior notice, or cause prior notice to be given, to such persons and by such means as prescribed by Section 386, and, in such instances as the means of giving notice is not prescribed by such sections, then by such means as the court prescribes.”

BUCKLEY, Associate Justice.

BEST, P.J., and MARTIN, J., concur.

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