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Filed 1/31/14 In re Ethan S. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In re Ethan S., a Person Coming Under the 

Juvenile Court Law.

HUMBOLDT COUNTY DEPARTMENT 

OF HEALTH & HUMAN SERVICES,

Plaintiff and Respondent,

v.

Shawn S.,

Defendant and Appellant.

 A139349

 (Humboldt County

 Super. Ct. No. JV040182)

Appellant Shawn S. appeals the juvenile court’s orders relieving his counsel and 

terminating dependency jurisdiction as to his son Ethan S., following the selection of 

relative guardianship as the permanent plan. He claims his son’s status as an Indian child 

constitutes an extraordinary circumstance, such that the court abused its discretion in 

dismissing dependency jurisdiction. We affirm.
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STATEMENT OF THE FACTS AND PROCEDURAL HISTORY1

“Shawn S. (Father) is the father of Ethan S. (now age 11). Ethan was the subject 

of a September 2004 dependency petition, based on an allegation of caretaker absence or 

incapacity. (Welf. & Inst. Code, § 300, subd. (g).)2 At the time, Father was unable to 

provide for his son because he was participating in a residential drug treatment program. 

Ethan was found to be a dependent of the court in November 2004. Father was offered 

reunification services with a case plan that required him to complete his inpatient 

substance abuse program and follow all recommendations for aftercare. Father 

successfully completed his treatment program and the dependency was terminated in 

February 2006.

“On June 3, 2011, a second dependency petition was filed alleging that Father was 

frequently consuming alcohol in the home to the point of passing out. He had also 

physically abused Ethan when he was drunk.

“At the jurisdiction hearing held on July 28, 2011, the juvenile court sustained the 

petition as amended. The jurisdiction report filed by the Humboldt County Department 

of Health & Human Services (Department) concluded that Father ‘has unaddressed 

alcohol issues that render him unable or unwilling to provide adequate care for his son.’

A supplemental report stated that Father had been arrested on July 12, 2011, and charged 

with stealing a bottle of tequila from a supermarket. At the time of his arrest, he had 

another individual’s prescription medication in his pocket.

“At the uncontested disposition hearing, held on August 23, 2011, Ethan was 

again declared a dependent of the juvenile court. The court found Father’s unaddressed 

substance abuse issues rendered him unable to provide regular care or supervision for the 

child. Reunification services were ordered for Father.

 

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This portion of the opinion is derived, in part, from the earlier writ opinion filed 

in this case on June 24, 2013 (Shawn S. v. Superior Court of Humboldt County (June 24, 

2013, A138265) [nonpub. opn.]). The court takes judicial notice of this opinion. (See 

Evid. Code, §§ 452, subd. (d), 459.) Passages from the earlier opinion are set forth in 

quotation marks. 

2 All statutory references are to the Welfare and Institutions Code.
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“At the six-month status review hearing, the Department reported that Ethan was 

doing well in his placement in the home of his paternal grandfather. Father had 

completed a parenting class and was participating in the Alcohol and Other Drugs 

program (AOD). He had approximately three months left of a 52-week alcohol-abuse 

program called HART. He had served his jail time for the shoplifting charge and had 

completed his community service. He had moved into a clean and sober house. 

Visitation was reportedly going well. However, there were concerns that Father was 

misusing his prescription medications, possibly mixing them with alcohol or trading them 

for alcohol. The court found returning Ethan to Father was not appropriate at that time, 

as Father still needed to stabilize his addiction.

“The Department’s report filed for the 12-month status review hearing notes that 

Father was kicked out of a clean and sober house in April 2012 after sustaining three 

positive tests for alcohol. He had moved into another clean and sober house and had not 

had any positive tests as of the date of the report, which was September 4, 2012. He had 

completed the HART program and was participating in weekly 12-step program meetings 

and activities. He was also participating in weekly therapy with Ethan and was trying to 

obtain housing. Ethan continued to do well in his grandfather’s home and reportedly had 

expressed concerns about returning to his father’s care. The Department recommended 

the court order six more months of reunification services.

“At the 12-month review hearing held on September 4, 2012, the juvenile court 

adopted the findings and orders recommended by the Department. Father’s reunification 

services were continued.

“A contested 18-month review hearing was held on March 27, 2013. The 

Department’s report prepared for this hearing notes Ethan had left a message with a 

social worker stating that he wished to live with Father. However, Father’s voice could 

be heard in the background coaching Ethan on what to say. Subsequently, the boy 

reported that he wanted to stay with his grandfather. Ethan also stated that during the last 

six months there had been several incidents where Father was under the influence during 

their visits and Ethan had contacted his grandfather to pick him up early. In October 
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2012, Father had sold some items to a pawn shop and when he received the money asked 

Ethan if it would be ok for him to buy alcohol. That same month, they were at a movie 

and Father pulled a bottle of alcohol out in the theater and asked Ethan not to tell anyone. 

Father had been arrested for public intoxication on November 28, 2012. A police report 

regarding the incident states Father was so intoxicated that he could not walk, stand up, 

or communicate his name. The social worker reported that Father had left numerous 

phone messages rambling about things that did not make sense. He appeared to be under 

the influence as his speech was slurred. At the hearing, the social worker testified that 

Ethan’s grandfather, who is also Father’s employer, had reported on numerous occasions 

that Father appeared to be under the influence while he was at work. The last time he

reported this was about a month prior to the hearing.

“The juvenile court agreed with Father’s attorney that Father had done everything 

the Department had asked him to do over the past 18 months. However, the plan had not 

been successful. In particular, he had suffered two alcohol-related arrests, and his son 

had reported incidents in which he had been drinking alcohol in his presence. The court 

stressed that Ethan needed to be in a safe, alcohol-free home and that the grandfather was

able to take care of the child’s needs. The court concluded Father had completed his case 

plan, but his behaviors had not changed and he was still unable to provide a safe home for 

Ethan. The court scheduled a permanency planning hearing pursuant to section 366.26.” 

(Shawn S. v. Superior Court of Humboldt County, supra, A138265.)

On May 2, 2013, Father filed a writ petition seeking an order directing the juvenile 

court to vacate its section 366.26 order and restore reunification services. He claimed the 

lower court erred in finding that returning Ethan to him would create a substantial risk of 

detriment to the child’s well-being. He also asserted the court abused its discretion in 

denying him additional reunification services because the finding that he received 

reasonable reunification services was not supported by clear and convincing evidence. 

(Shawn S. v. Superior Court of Humboldt County, supra, A138265.)

On June 24, 2013, we filed our opinion denying Father’s writ petition on the 

merits. 
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On June 14, 2013, the juvenile court received a report prepared for the 

section 366.26 hearing. The Department’s social worker wrote that the Yurok Tribe 

(Ethan is an enrolled member of this tribe through his mother’s side of the family) was 

supportive of a permanent plan of guardianship with the paternal grandfather. The social 

worker reported the grandfather had arranged for Ethan to have frequent contact with 

both of his parents. Ethan visited Father each weekend on Friday night, returning on 

Sunday. The boy also had regular contact with his mother during the week. The 

grandfather had a good relationship with both of Ethan’s parents and was supportive of 

them maintaining positive relationships with Ethan. The grandfather was committed to

being Ethan’s legal guardian He maintained a home for Ethan and was financially stable. 

Ethan wanted to live with his grandfather permanently, and wanted his grandfather to 

become his legal guardian. 

The Department recommended the juvenile court select guardianship without 

dependency as the permanent plan. The social worker proposed that the letters of 

guardianship would provide for the parents to have unsupervised day or overnight 

visitation on weekends, or as otherwise arranged with the grandfather. The parents 

would not be allowed to visit Ethan if they were under the influence of alcohol or drugs. 

On July 19, 2013, Father filed a petition seeking to change the juvenile court 

orders terminating reunification services and setting a section 366.26 hearing. The court

granted a hearing on the petition and, at the selection and implementation hearing 

conducted on July 24, 2013, the court simultaneously considered testimony in support of 

the section 388 petition. 

Indian Child Welfare Act representative Angela Sundberg was present for the 

Yurok Tribe at the combined section 388 and section 366.26 hearing. Sundberg joined 

with the Department’s recommendations. Specifically, she observed that the grandfather 

had shown he was able to facilitate Ethan’s connection to his Indian culture and 

community, and had helped him maintain a relationship with both of his parents. She 

indicated the Tribe was very happy with Ethan’s current situation, and would like to see it 

continue. 
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After considering testimony from Father, as well as comments from counsel, the 

juvenile court ordered a permanent plan of guardianship without dependency and 

calendared a confidential guardianship status review hearing. It found that termination of 

parental rights would be detrimental to Ethan because Father had maintained regular 

visitation and contact with him and Ethan would benefit from continuing the relationship. 

The court further noted Ethan’s status as an Indian child also supported the finding that 

termination of parental rights would not be in his best interest. The court made other 

related findings, and relieved Father’s counsel. It also made the following visitation 

order: “Unsupervised visitation for parents, to include day and weekend visits, a 

minimum of five hours per week; time, place, and manner to be as directed by the 

guardian, so long as parents are clean and sober . . . . This appeal followed.

DISCUSSION

Father claims the juvenile court abused its discretion when it dismissed

dependency jurisdiction and relieved his counsel. Relying on In re K.D. (2004) 

124 Cal.App.4th 1013 (K.D.), he asserts these orders must be reversed because the 

court’s order terminating its dependency jurisdiction is “ ‘fatally inconsistent’ ” both with 

the finding that termination of parental rights would be detrimental to Ethan, as well as 

the order regarding continued visitation. We disagree.

The facts of this case differ significantly from the facts at issue in K.D., supra. 

There, the child’s foster parent was appointed his guardian in a non-relative guardianship. 

(124 Cal.App.4th at pp. 1017–1018.) The Court of Appeal reversed an order terminating 

dependency jurisdiction following the establishment of a permanent plan of guardianship 

under section 366.26. (K.D., at p. 1020.) The juvenile court had found that preserving 

the child’s relationship with his parent was in the child’s best interest, however, the 

parties’ circumstances indicated regular parent-child visitation would be difficult, 

primarily because the guardian and child had moved from California to the Midwest. (Id.

at pp. 1017, 1019.) The appellate court held the lower court was obligated to maintain 

dependency jurisdiction and hold regular review hearings to monitor whether regular 

visitation was occurring. (Id. at p. 1020.) 
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Here, Ethan’s grandfather is his guardian and thus this is a relative guardianship. 

When considering whether to terminate dependency court jurisdiction, section 366.3, 

subdivision (a), distinguishes between relative and non-relative guardianships. It 

provides, in relevant part: “Following establishment of a legal guardianship, the court 

may continue jurisdiction over the child as a dependent child of the juvenile court or may 

terminate its dependency jurisdiction and retain jurisdiction over the child as a ward of 

the legal guardianship, as authorized by Section 366.4. If, however, a relative of the child 

is appointed the legal guardian and the child has been placed with the relative for at 

least six months, the court shall, except if the relative guardian objects, or upon a finding 

of exceptional circumstances, terminate its dependency jurisdiction and retain 

jurisdiction over the child as a ward of the guardianship, as authorized by 

Section 366.4. . . .” (Italics added.) Thus, in non-relative guardianships, the juvenile 

court has the discretion to continue or terminate jurisdiction. (§ 366.3, subd. (a).) In 

contrast, here, the court was required to terminate dependency jurisdiction unless either 

the guardian objected, or the court found there were exceptional circumstances that 

would merit continued court and agency supervision of the child. (§ 366.3, subd. (a); In 

re Grace C. (2010) 190 Cal.App.4th 1470, 1475–1476.) It is uncontested that Ethan’s 

grandfather did not object to terminating dependency court jurisdiction. And while 

Father asserts there are exceptional circumstances meriting continued court supervision, 

no such showing can be inferred from the record 

Father maintains “exceptional circumstances” exist here due to Ethan’s status as 

an Indian child. However, representatives of the Yurok Tribe consistently expressed 

satisfaction with the grandfather’s efforts to further Ethan’s connection to his Indian 

heritage. Father also speculates that because Father works for the grandfather’s business, 

he (the grandfather) “might well begin to limit [Father’s] visitation time with Ethan 

without substantial cause for doing so.” Substantial evidence does not support this 

contention. As a child of a parent with protracted substance abuse problems, Ethan’s 

circumstances were, unfortunately, fairly typical. The record shows, however, that his 

grandfather had facilitated visitation in accordance with court orders throughout the 
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dependency proceedings. The social worker reported the visitation plan appeared to be 

working. Thus, the circumstances in this case are both legally and factually dissimilar to 

K.D., supra. We conclude the juvenile court did not abuse its discretion in terminating 

dependency jurisdiction and relieving Father’s counsel. 

DISPOSITION

The orders are affirmed.

_________________________

Dondero, J.

We concur:

_________________________

Margulies, Acting P. J.

_________________________

Banke, J.