Filed 7/26/17; Certified for Publication 10/18/17 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                    SECOND APPELLATE DISTRICT
                               DIVISION THREE

In re KAYLA W., a Person                           B277567
Coming Under the Juvenile
Court Law.

LOS ANGELES COUNTY                                 Los Angeles County
DEPARTMENT OF CHILDREN                             Super. Ct. No. CK85916
AND FAMILY SERVICES,
        Plaintiff and Respondent,
        v.
Y.Q.,
        Appellant.

      APPEAL from an order of the Superior Court of
Los Angeles County, Robert S. Draper, Judge. Reversed and
remanded with directions.
      Patti L. Dikes, under appointment by the Court of Appeal,
for Appellant.
      Office of the County Counsel, Mary C. Wickham, County
Counsel, R. Keith Davis, Assistant County Counsel, and Peter
Ferrera, Deputy County Counsel, for Plaintiff and Respondent.
            _______________________________________
                         INTRODUCTION

       In 2015, Y.Q. (mother) and Justin W. (father) voluntarily
petitioned the probate court to appoint Maria and Kevin S. as the
legal guardians of mother and father’s daughter, Kayla W. Kayla
later became a dependent of the court following an incident of
domestic violence between Maria and Kevin. Shortly before the
disposition hearing in Kayla’s dependency case, mother obtained
an order from the probate court terminating the guardianship, a
copy of which she provided to the juvenile court at the disposition
hearing. The juvenile court told mother that the termination
order was not valid because only the juvenile court had
jurisdiction to modify or terminate the guardianship while
Kayla’s dependency case was pending. The court then told
mother that she did not have standing to appear in Kayla’s
dependency case and denied mother’s request for appointed
counsel. The court told mother to confer with Kayla’s legal
guardians about arranging visitation with the child and to
consult a lawyer to determine how to regain custody of the child.
The court then excused mother from the remainder of the
disposition hearing, at which the court ordered Kayla placed in
Maria’s custody.
       On appeal, mother claims the court prejudicially erred by
denying her request for appointed counsel at the disposition
hearing and by finding she lacked standing to participate in
Kayla’s dependency proceedings.1 We agree and reverse the
court’s dispositional order and remand for a new disposition
hearing at which mother shall be allowed to participate with
appointed counsel.

1     Father is not a party to this appeal.



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      FACTUAL AND PROCEDURAL BACKGROUND

1.    The probate guardianship and the initiation of
      Kayla’s dependency case
       Kayla was born in November 2014. In August 2015, when
Kayla was eight months old, her parents petitioned the probate
court to appoint Maria, Kayla’s maternal grandmother, and
Kevin, Maria’s husband, to be the child’s legal guardians. In
November 2015, the probate court granted the guardianship
petition.
       On March 6, 2016, Kevin physically assaulted Maria. After
Kevin was arrested, Maria and Kayla moved into mother’s home.
The criminal court issued a two-year protective order precluding
Kevin from having any contact with Maria and Kayla.
       After learning of Kevin’s arrest, the Department of
Children and Family Services (Department) interviewed mother.
She had continued to be involved in Kayla’s life after Maria and
Kevin were appointed as the child’s legal guardians. Mother was
not aware that Maria and Kevin had any history of domestic
violence before she initiated the guardianship proceedings in
probate court, and she claimed that if she did know of such
conduct she would not have agreed to place Kayla in their
custody.
       In April 2016, the Department filed a dependency petition
pursuant to Welfare and Institutions Code2 section 300,
subdivisions (a) and (b), alleging that Maria and Kevin had
endangered Kayla by engaging in domestic violence (a-1 and b-1
allegations). The Department named mother as one of Kayla’s

2      All undesignated statutory references are to the Welfare and
Institutions Code.



                                      3
parents in the petition, but it did not allege she engaged in any
wrongful conduct with respect to the child.
      On April 18, 2016, the court conducted a detention hearing.
Maria and Kevin appeared at the hearing and were appointed
counsel; mother did not appear.3 The court found the
Department had alleged a prima facie case under section 300,
subdivisions (a) and (b), and ordered Kayla detained from Kevin’s
custody and placed with Maria. The court granted Kevin three
one-hour monitored visits with Kayla per week.
      On May 18, 2016, the Department filed an ex parte request
to remove Kayla from Maria’s custody after learning that Kevin
had been sleeping in the same home as Kayla, Maria, and
mother. The court ordered Kayla detained from Maria’s custody
and placed in the Department’s care.
      After learning that Kevin had been staying with Maria,
Kayla, and mother, the Department investigated the child’s
home. The home smelled of marijuana and there were animal
feces and cockroaches on the floor. Kayla had been sleeping on
dirty blankets in a crib in the living room, and she smelled of
urine. The social worker found marijuana, a pipe, an ashtray,
and a lighter in the bedroom where mother slept.
      Kevin reported that Maria had recently moved out of the
home because she was fearful of the people mother brought
around. Maria reported that mother is often under the influence
of drugs and alcohol, and that mother would sometimes have
contact with her children4 while she was under the influence.


3      The record does not indicate whether mother received notice of
that, or any other, hearing in Kayla’s dependency proceedings.
4     Mother has another child who is not a party to this case.



                                      4
Maria told the Department that she would do whatever it takes
to retain custody of Kayla.
       On June 8, 2016, the Department filed a first-amended
petition, adding allegations that Maria and Kevin failed to
protect Kayla by continuing to have contact with each other in
violation of Kevin’s criminal protective order (b-2 allegation) and
by maintaining an unsafe and unsanitary home environment for
Kayla (b-3 allegation). On July 6, 2016, Maria and Kevin entered
pleas of no contest to amended versions of the a-1, b-2, and b-3
allegations in the first-amended petition. The court continued
the disposition hearing to August 2016.
       On August 2, 2016, mother obtained from the probate court
an order terminating Maria and Kevin’s legal guardianship over
Kayla. After receiving the order, mother met with a Department
social worker. Mother stated that she wanted to regain custody
of Kayla, and that to do so, she was willing to participate in
reunification services and submit to drug testing.
       On August 3, 2016, the Department interviewed Maria and
assessed her new home for Kayla’s placement. Maria reported
that she had not had any recent contact with Kevin and that she
still wanted to retain custody of Kayla. Maria also provided the
Department with a certificate demonstrating she had recently
completed a 16-week parenting program. Maria requested that
her new address remain confidential because she had received
threatening phone calls from mother and father.
2.    The disposition hearing
      On August 5, 2016, the date of the disposition hearing,
mother appeared before the juvenile court and provided the judge
with a copy of the August 2, 2016 probate order terminating
Maria and Kevin’s legal guardianship over Kayla. The court



                                    5
informed mother that only the juvenile court had jurisdiction to
terminate the guardianship while Kayla’s dependency case was
pending and that the August 2, 2016 order from the probate court
was not valid. The court told mother that she did not have
standing to appear as a party in Kayla’s dependency case, and
that if she wanted to terminate Maria and Kevin’s legal
guardianship, she would need to file the appropriate motion in
the juvenile court.5
       The following exchange between the court, mother, and the
Department’s counsel then took place:

      “[Mother]: Is there any way I could get visits with my
                 daughter?

      [Court]:     Pardon me?

      [Mother]:    Is there any way I could get visits with my
                   daughter because I haven’t seen my daughter,
                   and I really want to see her.

      [Court]:     Talk to the legal guardian when she comes in.


5      We note that the court’s advice to mother that she file a motion
to terminate Kayla’s guardianship in the juvenile court appears to be
incorrect. Section 728 governs the termination of a probate
guardianship while a dependency case involving the child subject to
the guardianship is pending in juvenile court. That statute provides
only that the “appropriate county department” such as the district
attorney or county counsel, or the child’s guardian or the child’s
attorney, may make a motion to terminate a probate guardianship in
juvenile court. (§ 728, subd. (a).) The statute does not contain any
provision permitting the child’s parent to make such a motion.



                                       6
[Counsel]: The Department will assess visits for [mother],
           and based on the court’s tentative ruling, the
           Department will coordinate with the caretaker.

[Court]:    Okay.

[Mother]:   Is there any way I can get an attorney?

[Court]:    Pardon me?

[Mother]:   Is there any way I can get an attorney?

[Counsel]: She’s asking for appointment of counsel.

[Court]:    I can’t appoint counsel for you because you’re
            not a party. You don’t have standing
            unfortunately. If you—I just can’t. I’m limited
            to what I can do.

[Mother]:   Like what am I supposed to do to get my
            custody back?

[Court]:    I can’t give you legal advice. What I suggest
            you do is talk to a lawyer.

[Mother]:   I only gave her temporary custody, your honor.
            If I known [sic] my daughter was going to get
            detained from me, I never would have gave [sic]
            her custody of my daughter.




                             7
      [Court]:    So I’ve given you everything I can give you,
                  [mother]. You are excused.”
      After mother left the courtroom, the court conducted the
disposition hearing. The Department recommended that Kayla
remain removed from Maria and Kevin’s custody and placed in
suitable out-of-home care until her legal guardians could make
adequate progress to return her to their custody. The court
rejected the Department’s recommendation, concluding that
there was no “clear and convincing evidence that return of
[Kayla] to the maternal grandmother, the legal guardian, would
create a substantial risk of detriment to the child.” The court
then declared Kayla a dependent of the court, removed her from
Kevin’s custody, and released her to Maria’s custody.6 The court
ordered the Department to provide Maria and Kevin family
maintenance services.
      On August 5, 2016, mother filed a timely notice of appeal.




6      On March 30, 2017, the Department filed a request for judicial
notice of the juvenile court’s minute order dated February 3, 2017. We
grant the Department’s request and take judicial notice of the court’s
February 3, 2017 minute order. (See Evid. Code, § 452, subd. (d).)
      The February 3, 2017 minute order authorizes Kevin to move
back into Maria’s home.




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                          DISCUSSION

1.    The court erred by finding mother lacked standing
      to participate in Kayla’s dependency proceedings
      and by denying her request for appointed counsel at
      the disposition hearing.
       Mother contends the juvenile court prejudicially erred
when it found she lacked standing to participate in Kayla’s
dependency proceedings, including to have appointed counsel
represent her at the disposition hearing, based on the fact that
she had not successfully terminated Kayla’s probate
guardianship. Mother’s claim raises an issue involving the
court’s application of statutes and court rules to undisputed facts,
which is an issue of law that we review de novo. (See In re R.D.
(2008) 163 Cal.App.4th 679, 684.) As we explain below,
regardless of the validity of the probate order terminating Kayla’s
predependency guardianship, mother’s agreement to place Kayla
in that guardianship did not affect her rights to participate in the
child’s subsequent dependency proceedings and to have appointed
counsel represent her at the disposition hearing.
       Rule 5.530, subdivision (b), of the California Rules of Court
identifies who is entitled to be present at a child’s juvenile court
hearings. Under subsection (b)(2) of that rule, the child’s parents
and legal guardians, among others, are entitled to attend “[a]ll
juvenile court proceedings” concerning the child. (Cal. Rules of
Court, rule 5.530, subds. (a)&(b)(1); see also §§ 290.2, 291, 349.)
In addition, indigent parents and guardians have statutory rights
to appointed counsel at any hearing where out-of-home
placement of the child is at issue. (§ 317, subd. (b); In re Kristin
H. (1996) 46 Cal.App.4th 1635, 1659.) A parent is not entitled to




                                    9
be present or to have counsel appointed, however, if his or her
parental rights have already been terminated. (See §§ 291, 302.)
       Under the Probate Code, a child’s parent may petition the
probate court to appoint a guardian to assume care and custody
of the child. (Prob. Code, §§ 1500 & 1510.) When a probate
guardianship is established, the guardian assumes the care,
custody, and control of the child, and the parent’s authority over
the child “ceases.” (Fam. Code, § 7505, subd. (a); Guardianship of
Ann S. (2009) 45 Cal.4th 1110, 1124.) In other words, a parent’s
rights are suspended when the guardianship is established.
(Ibid.) The parent’s rights are not, however, terminated at that
point. Termination does not occur until either the probate court–
if no dependency case involving the child is pending–issues an
order freeing the child from the custody and control of his or her
parents (see Prob. Code, § 1516.5), or until the juvenile court
terminates the parent’s rights in a dependency proceeding (see §
366.26).
       A parent whose child is in a probate guardianship and
whose parental rights have not been terminated qualifies as a
noncustodial parent in a dependency proceeding. (See In re
Catherine H. (2002) 102 Cal.App.4th 1284, 1289 (Catherine H.).)
Like a custodial parent, a noncustodial parent is entitled to the
same rights in a dependency proceeding that we outlined above.
(See id. at p. 1291.)
       As of the disposition hearing in this case, mother was
Kayla’s noncustodial parent because Kayla was in a probate
guardianship and mother’s parental rights had never been
terminated by the probate or juvenile court. As a noncustodial
parent, mother had standing to participate in Kayla’s dependency
case and was entitled to be present at Kayla’s disposition




                                  10
hearing. (Cal. Rules of Court, rule 5.530, subd. (b)(2); see also
§ 291 [the juvenile court must provide the child’s parent notice of
his or her right to attend the disposition hearing].) Mother was
also entitled to appointed counsel at that hearing, assuming she
was not able to afford private counsel, because the Department
sought to have Kayla placed in out-of-home care. (See § 317,
subd. (b).) The court therefore erred when it denied mother’s
request for counsel and denied her the opportunity to participate
in the disposition hearing.
2.    Mother was prejudiced by the court’s actions.
       Although it takes no position as to whether the court’s
actions were erroneous, the Department urges us not to reverse
the dispositional order, arguing that mother suffered no prejudice
by being denied appointed counsel and the opportunity to
participate in the disposition hearing. Specifically, the
Department argues mother suffered no prejudice because she was
not entitled to an award of custody or visitation at the disposition
hearing once the court ordered Kayla to be placed in Maria’s
custody. We disagree that mother was not prejudiced by the
court’s actions.
       At the disposition hearing, a juvenile court has the
authority to issue a variety of orders affecting the rights of the
dependent child, the child’s parents, and the child’s guardians.
For example, the court may, as the court in this case did, order
the child to remain placed with his or her current caretaker.
(§ 362, subd. (c).) In the alternative, the court may remove the
child from the caretaker’s custody after making the necessary
findings. (§ 361, subd. (c).) If the court does remove the child, it
must place the child with a noncustodial parent who requests
custody, if any parent exists, unless the court finds such



                                   11
placement would be detrimental to the child’s safety or well-
being. (§ 361.2, subd. (a).) Under section 362, the court may also
make “any and all reasonable orders for the care, supervision,
custody, conduct, maintenance, and support of the child.” (§ 362.)
That provision grants the court broad discretion to determine
what best serves and protects the child’s interest and to fashion
any appropriate dispositional order that furthers that interest,
including an order awarding visitation to a noncustodial parent
with whom the court does not place the child, such as mother in
this case. (See In re Korbin Z. (2016) 3 Cal.App.5th 511, 518.)
       In fashioning a dispositional order, the juvenile court must
“hear evidence on the question of the proper disposition to be
made of the child.” (§ 358, subd. (a).) “Before determining the
appropriate disposition, the court shall receive in evidence the
social study of the child made by the social worker, any study or
evaluation made by a child advocate appointed by the court, and
other relevant and material evidence as may be offered.”
(§ 358, subd. (b)(1), emphasis added.) The parties who are
entitled to appear at the disposition hearing, including the child’s
noncustodial parent, therefore have the right to offer evidence
addressing an appropriate dispositional order. (See Catherine H.,
supra, 102 Cal.App.4th at p. 1291.)
       At the disposition hearing in this case, mother could have
argued, and presented evidence to support her argument, that
the court should remove Kayla from her guardians’ custody and
place the child in mother’s custody. (See § 361.2, subd. (a).) In
the alternative, or if the court decided to return Kayla to Maria’s
custody, mother could have requested the court to award her
visitation with the child under section 362. By finding mother
lacked standing to participate in Kayla’s dependency case,




                                   12
however, the court effectively denied her the opportunity to make
any formal request for custody or, at a minimum, visitation with
her child, and to present supporting arguments and evidence
with the assistance of counsel. As a result, we are unable to
evaluate the likelihood that mother would have been successful
in seeking custody of, or at least visitation with, Kayla.
Accordingly, we must reverse the court’s dispositional order and
remand for a new disposition hearing at which mother shall be
permitted to make requests for custody and visitation with the
assistance of appointed counsel.7




7      Because we conclude the court prejudicially erred by denying
mother her statutory rights to be present and to appointed counsel, we
do not address mother’s related constitutional claims.



                                     13
                            DISPOSITION

      The August 5, 2016 disposition order is reversed. The case
is remanded to the juvenile court with directions to appoint
counsel for mother, if she is indigent, and to conduct a new
disposition hearing.




                                                           LAVIN, J.
WE CONCUR:



      EDMON, P. J.



      JOHNSON (MICHAEL), J.*




*     Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.



                                       14
Filed 10/18/17



         Court of Appeal, Second Appellate District, Division Three - No. B277567

                                           S244014

           IN THE SUPREME COURT OF CALIFORNIA
                                           En Banc
________________________________________________________________________

                 In re KAYLA W., a Person Coming Under the Juvenile Court Law.
                         ________________________________________

       LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY
                    SERVICES, Plaintiff and Respondent,

                                              v.

                              Y.Q., Appellant.
________________________________________________________________________

       As recommended by the Court of Appeal pursuant to California Rules of Court,
rule 8.1120, subds. (b)(1) and (c), the Reporter of Decisions is directed to publish the
opinion in the above-titled matter in the Official Reports.




                                                   ______________________________
                                                          Chief Justice



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