Filed 11/6/20 In re C.B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 C.B. et al., Persons Coming 

Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH 

AND HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

O.U.,

Defendant and Appellant.

 D077667

 (Super. Ct. Nos. SJ13338BCD)

APPEAL from a judgment of the Superior Court of San Diego County, 

Marian F. Gaston, Judge. Affirmed. 

Rosemary Bishop, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Thomas E. Montgomery, County Counsel, Caitlin R. Rae, Chief Deputy 

County Counsel, and Tahra Broderson, Deputy County Counsel for Plaintiff 

and Respondent. 
2

O.U. (Mother) appeals from juvenile court orders declaring her 

children, C.B. (age 8), S.B. (age 6), and N.B. (age 5) (collectively, children), 

dependents and removing them from her custody. (Welf. & Inst. Code,1

§ 300, subd. (b)(1).) Mother, who described herself as a “recovering addict,” 

contends the orders are not supported by substantial evidence because by the 

time of the jurisdictional hearing she had completed inpatient substance 

abuse treatment and had six months of sobriety. Mother also challenges the 

order removing the children from the maternal grandmother (Grandmother), 

with whom the children were living, asserting that Grandmother was 

entitled to statutory rights of a guardian.

We affirm the jurisdiction and disposition orders. Like the juvenile 

court, we commend Mother for her progress toward overcoming her 

methamphetamine addiction. However, given Mother’s longstanding drug 

use and nascent sobriety, the juvenile court reasonably determined that her 

recovery remained tenuous. We also reject Mother’s contention that the court 

should have afforded Grandmother the statutory rights of a legal guardian. 

Mother also contends that even if Grandmother is not a guardian, the 

matter should be remanded to the juvenile court so it may exercise its 

discretion to order services be provided to Grandmother. However, as 

explained in part IV, the juvenile court’s order already requires the Agency to 

provide such services if a requisite to placing the children with her. 

Accordingly, we affirm the jurisdiction and disposition orders. 

1 Undesignated statutory references are to the Welfare and Institutions 

Code. 
3

FACTUAL AND PROCEDURAL BACKGROUND

A. The 2017 Dependency

Mother and Father married each other in 2008 and are separated. In 

January 2017, the San Diego County Health and Human Services Agency 

(Agency) filed a dependency petition for the children based on allegations of 

physical abuse and substance abuse by Mother and her boyfriend, Tommy A. 

The juvenile court terminated jurisdiction in May 2017 and placed the 

children with their father (Father), “to protect the children from further 

abuse from Mother’s home.” However, after the case was terminated, Father 

returned the children to Grandmother and Mother’s custody. 

B. The 2019 Family Court Custody Order

For reasons unexplained in the record, in 2019 Father initiated family 

court proceedings naming Mother as respondent and Grandmother as 

“additional third party.”2 In April 2019, the family court ordered that (1) 

Father and Grandmother share legal custody of the children; (2) Mother, 

Father, and Grandmother have access to the children’s medical and school 

records and authority to obtain emergency health care services for the 

children; (3) Grandmother have physical custody of the children weekdays, 

Father on weekends; and (4) Mother’s contact with the children would be 

supervised “at all times” by Grandmother or “another trusted relative.” The 

family court also ordered no contact between Tommy A. and the children. 

C. Bruises on N.B.’s Arm

On August 7, 2019, the Agency received a report from N.B.’s school 

that the child had a large patterned bruise on her upper arm. When a 

2 Without citing the record, the Agency asserts that Father commenced 

the family court proceeding “to formalize” the custody arrangements he and 

Grandmother had established after the 2017 dependency case. 
4

teacher asked N.B. about the mark, N.B. nervously stated, “It’s paint.” 

However, the school nurse was unable to remove the marks because they 

were not paint, but bruises. N.B. told the social worker that Grandmother 

disciplines by hitting with a shoe, and that Grandmother also hits C.B. and 

S.B. A physician examined N.B. and concluded the bruises are “definite 

evidence of physical abuse.” 

Grandmother insisted that the marks were paint, denied using physical 

discipline, and characterized the Agency’s involvement as “nonsense.” She 

admitted allowing Mother to have unsupervised visits with the children, in 

violation of the family court order. Grandmother also acknowledged that 

Mother had an untreated methamphetamine addiction and a continuing 

relationship with Tommy A., who had previously physically abused C.B. 

The social worker found marijuana, hash oil, methamphetamine pipes, 

and marijuana vape pens among the children’s belongings at Grandmother’s 

home. Grandmother denied knowing anything about these drugs. However, 

her 86-year-old husband told the social worker that he believed the 

marijuana was oregano and the drug paraphernalia was “art supplies.” He 

told the social worker that Mother stayed at their home twice a week and is 

using drugs. 

In an interview with the social worker, Father was belligerent and 

denied that any physical abuse had occurred. He claimed that Grandmother 

had “guardianship” of the children. Later, he told the social worker that 

Mother smokes methamphetamine and has been in and out of treatment 

since 2017. 

D. Dependency Petitions

On August 12, 2019, the Agency filed a dependency petition under 

section 300, subdivision (b) for each of the children. Each petition alleges 
5

that while in Grandmother’s care, N.B. sustained “patterned bruises” for 

which Grandmother “has no plausible explanation” and N.B. reported that 

Grandmother disciplines by hitting the children with a shoe. The petitions 

further allege that “a glass pipe, vape pens, dispensers, a bag of marijuana, 

and two containers of hash oil” were present in the children’s bedroom, 

“among the minors’ toys . . . .” The petitions additionally allege that in 2017 

“the children were removed from their mother due to the mother’s boyfriend 

hitting [C.B.] in the face with a sandal and due to the mother’s 

methamphetamine use, and [Grandmother] has allowed the mother 

unrestricted access to the children in violation of a previous court order . . . .” 

E. Detention Hearing/Grandmother’s Status

At the August 14, 2019 detention hearing, the court appointed counsel 

for Grandmother, referring to her as “the guardian.” The Agency’s lawyer 

objected, stating, “We know that she is custodial, but don’t believe that she is 

an actual legal guardian.” Nevertheless, the court ordered the petition 

amended to add Grandmother as a party. The juvenile court also ordered the 

children detained in foster care. 

At a hearing several weeks later, County counsel informed the court 

that Grandmother is “not the legal guardian. She was a custodian for the 

children pursuant to family court orders.” However, because the family court 

had “essentially treated [Grandmother] as a parent,” the juvenile court 

maintained it was appropriate to add Grandmother to the petitions. The 

Agency provided Grandmother with voluntary referrals, and Grandmother 

sought de facto parent status. 

F. Mother’s Untreated Drug Use

On August 27, 2019, Mother tested positive for methamphetamine and 

THC. About a week later, the Agency reported that Mother was homeless. 
6

Mother, now 32 years old, had been smoking marijuana since age 18 

and methamphetamine since age 29. She admitted that the drugs and 

paraphernalia found at Grandmother’s home were hers. Mother stated that 

her only periods of sobriety had been during her pregnancies. She wanted 

the children returned to Grandmother, tearfully saying, “That’s their mom.” 

G. Grandmother’s Failure to Protect

In a September 2019 report, the Agency noted that Grandmother 

continued to deny using physical discipline and denied causing N.B.’s bruises. 

Grandmother acknowledged that Tommy A. had close contact with Mother. 

She also admitted that the children were left unsupervised in her home with 

Mother for several days, and that she allowed Mother to be unsupervised 

with children at a nearby park. Grandmother stated she never thought about 

the possibility that Tommy A. could be at the park or her home while she was 

away. 

H. Children’s Bond with Grandmother

At the August 2019 detention hearing, counsel told the court that the 

children wished to be returned to Grandmother “as soon as possible.” The 

following month, the social worker reported that the children miss 

Grandmother and want to return to her care. Grandmother had shown 

remorse, was asking for placement, and the social worker stated that the 

children have a “very strong bond” with her. 

I. Mother’s Drug Treatment

In November 2019, Mother entered an inpatient substance abuse 

treatment facility in Tijuana. About a month later, while waiting for an 

opening in a San Diego County inpatient facility, Mother enrolled in an 

outpatient treatment program and was living with Grandmother. 
7

On December 30, 2019, Mother tested positive for methamphetamine 

and entered an inpatient facility. While there, in January and February 

2020, Mother had 10 random drug tests, all with negative results. 

By April 2020, Mother had completed 90 days of treatment and an 

18-hour parenting class. She transitioned to a sober living facility on April 

27. 

In June 2020, the Agency reported that Mother was doing well in 

treatment, was participating in a 12-step program, and had obtained parttime employment. The Agency concluded, “Mother has made great 

progress . . . [,] has immersed herself in her services, and has made 

significant strides to live a clean and sober lifestyle.” 

J. Father’s Relapse

Meanwhile, Father lost his job, was involved in domestic violence with 

his ex-girlfriend, and was arrested for possessing methamphetamine and 

“cruelty to a child in an incident where he was in a hotel room with two 

others and their two-year old child.” Father refused to participate in 

reunification services unless court ordered, called the social worker a “fucking 

bitch,” and failed to appear at the jurisdictional and dispositional hearing. 

K. Jurisdiction and Disposition Hearing

At the June 25, 2020 jurisdiction and disposition hearing, the court 

received the Agency’s reports in evidence. By stipulation, Mother testified 

that she has successfully completed inpatient treatment and is employed at a 

retail store. Mother is currently in an outpatient program and residing in 

sober living housing.

By stipulation, Grandmother testified that she has voluntarily 

completed seven of eight parenting classes. 
8

The juvenile court found that the allegations in each petition were true. 

Although commending Mother on her substance abuse treatment, the court 

found it would be detrimental to place the children with her (or with Father) 

due to “multiple untreated protective issues.” The court placed the children 

in foster care. If the children could not ultimately be reunified with Mother, 

then they would be placed with Grandmother.

The court granted Grandmother’s application for de facto parent status, 

but struck Grandmother from the petitions because she is not a legal 

guardian. 

DISCUSSION

I.

THE COURT’S JURISDICTIONAL FINDINGS ARE SUPPORTED BY 

SUBSTANTIAL EVIDENCE

A. Dependency Jurisdiction

Section 300, subdivision (b)(1) authorizes a juvenile court to exercise 

dependency jurisdiction where the “child has suffered, or there is a 

substantial risk that the child will suffer, serious physical harm or illness, as 

a result of the failure or inability of his or her parent . . . to adequately 

supervise or protect the child.” The Agency must show by a preponderance of 

the evidence: “(1) neglectful conduct, failure, or inability by the parent; (2) 

causation; and (3) serious physical harm or illness or a substantial risk of 

serious physical harm or illness.” (In re L.W. (2019) 32 Cal.App.5th 840, 848; 

§ 355, subd. (a).) The third element requires a showing that at the time of 

the jurisdictional hearing the child is at substantial risk of serious physical 

harm in the future. (In re Jesus M. (2015) 235 Cal.App.4th 104, 111.) 
9

B. The Standard of Review

In reviewing the court’s findings for substantial evidence, we “view the 

record in the light most favorable to the juvenile court's determinations, 

drawing all reasonable inferences from the evidence to support the juvenile 

court's findings and orders. Issues of fact and credibility are the province of 

the juvenile court and we neither reweigh the evidence nor exercise our 

independent judgment.” (In re Joaquin C. (2017) 15 Cal.App.5th 537, 560.) 

“The appellant has the burden of showing there is no evidence of a 

sufficiently substantial nature to support the findings or order.” (In re T.V.

(2013) 217 Cal.App.4th 126, 133.) 

C. The Jurisdictional Findings Are Supported by Substantial Evidence

Mother contends the court’s jurisdictional findings are not supported by 

substantial evidence because “at the time of the jurisdiction hearing the 

minors were not in substantial danger of serious physical harm.” Mother 

asserts that even if there had been substantial risk of harm in early 2019, by

the time of the jurisdictional hearing in June 2020, there was no risk because 

Mother “had completed inpatient substance abuse treatment and a parenting 

program and was in a recovery residence, in ongoing outpatient treatment, 

and continued to test negative for substances.” Mother further contends that 

Grandmother had substantially completed parenting class, further reducing 

any risk of harm. Mother concludes there is “no basis for finding the minors 

are currently at risk in their original home, with [Grandmother].”

Substantial evidence supports the court’s jurisdictional findings. 

Under section 300, subdivision (b)(1), the court need not wait until a child is 

seriously abused or injured to assume jurisdiction and take the steps 

necessary to protect the child. This statute requires a “ ‘substantial risk’ ” 

that the child will be neglected. (In re E.E. (2020) 49 Cal.App.5th 195, 212 
10

(E.E.).) Moreover, “a home environment free from the negative effects of 

substance abuse is a necessary condition for the safety, protection and 

physical and emotional well-being of the child.” (§ 300.2.) 

Mother had made progress towards overcoming her methamphetamine 

addiction. However, Mother has a three-year history of methamphetamine 

abuse and tested positive for methamphetamine within the last 10 months. 

Additionally, despite being in an inpatient drug treatment facility in 

September 2019, Mother relapsed in December 2019, testing positive for 

methamphetamine. 

At the time of the jurisdictional hearing, Mother had six months of 

sobriety. Like the juvenile court, we commend and respect that achievement. 

However, Mother’s sobriety occurred in the highly structured setting of a 

residential treatment program and subsequent sober living environment. 

The unfortunate reality of drug addiction is that relapse is common, and it is 

indisputable that Mother remains in the early stages of recovery. 

Recognizing that long term drug addiction cannot be resolved in a 

matter of months, courts have held that the threat of relapse is sufficient to 

find a substantial risk of harm, even after lengthy periods of sobriety. (In re 

J.C. (2014) 233 Cal.App.4th 1, 6-7 [seven months of sobriety were insufficient 

to show the parent was not at risk of relapsing]; In re Cliffton B. (2000) 81 

Cal.App.4th 415, 424 [200 days of sobriety not enough to assure no relapse]; 

In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9 [“It is the nature of 

addiction that one must be ‘clean’ for a much longer period than 120 days to 

show real reform”].) 

Mother’s three-year history of methamphetamine abuse, compared to a 

relatively short period of sobriety, shows the risk of relapse remains and the 

danger to the children is not over. It is reasonable to conclude that a parent's 
11

long-term struggle with substance abuse cannot be ameliorated within a few 

months, no matter how earnest a parent's intentions. Given the lengthy 

history and severity of Mother's drug abuse, the juvenile court could 

reasonably find that her ability to maintain sobriety within the confines of a 

strictly supervised (but relatively short) residential treatment program was 

insufficient to demonstrate the same ability to maintain an unsupervised 

drug-free life on a long term basis. Accordingly, substantial evidence 

supports the juvenile court’s jurisdictional findings.3 

II.

THE COURT’S DETRIMENT FINDING IS SUPPORTED BY 

SUBSTANTIAL EVIDENCE

A. Legal Principles and the Standard of Review

“ ‘ “A dependency proceeding under section 300 is essentially a 

bifurcated proceeding.” ’ ” (E.E., supra, 49 Cal.App.5th at p. 205.) Where, as 

here, the court exercises jurisdiction over the minor, it must decide the 

appropriate disposition. “Generally, the court chooses between [1] allowing 

the child to remain in the home with protective services in place[;] and [2] 

removing the child from the home while the parent engages in services to 

facilitate reunification.” (Ibid.) 

3 In asserting that the jurisdictional findings are unsupported, Mother 

relies on In re Kaylee H. (2012) 205 Cal.App.4th 92. However, in that case, 

the drug-addicted parents arranged for a relative to become a legal guardian, 

and the probate court had granted the relative temporary guardianship. (Id.

at p. 97.) The juvenile court subsequently dismissed the guardianship 

proceeding and removed the child from parental custody. (Id. at pp. 97-100.) 

This court reversed the juvenile court’s orders, finding the court had abused 

its discretion in not considering whether the guardianship adequately 

protected the child’s safety and well-being. (Id. at pp. 105-110.) Kaylee H. is 

distinguishable because Grandmother is not a guardian. 
12

After declaring a child a dependent and removing the child from his or 

her custodian, the court must determine whether a noncustodial parent 

wants custody. (§ 361.2, subd. (a).) The court must place that child with the 

noncustodial parent unless it finds by clear and convincing evidence that 

such a placement would be detrimental to the child's safety, protection, or 

physical or emotional well-being. (§ 361.2, subd. (a); In re Marquis D. (1995) 

38 Cal.App.4th 1813, 1829.)4 

We review a removal order for substantial evidence. (In re R.T. (2017) 

3 Cal.5th 622, 633.) However, because the juvenile court’s findings must be 

based on clear and convincing evidence, “the question before the appellate 

court is whether the record as a whole contains substantial evidence from 

which a reasonable fact finder could have found it highly probable that the 

fact was true. In conducting [this] review, [we] must view the record in the 

light most favorable to the prevailing party below and give appropriate 

deference to how the trier of fact may have evaluated the credibility of 

witnesses, resolved conflicts in the evidence, and drawn reasonable 

inferences from the evidence.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 

1011-1012.) 

4 Section 361.2, subdivision (a) provides in part: “(a) If a court orders 

removal of a child pursuant to Section 361, the court shall first determine 

whether there is a parent of the child, with whom the child was not residing 

at the time that the events or conditions arose that brought the child within 

the provisions of Section 300, who desires to assume custody of the child. If 

that parent requests custody, the court shall place the child with the parent 

unless it finds that placement with that parent would be detrimental to the 

safety, protection, or physical or emotional well-being of the child.” 
13

B. The Disposition Order is Supported by Substantial Evidence

Essentially repeating her challenge to the jurisdictional findings, 

Mother contends “there is no current detriment to the minors if returned 

home” because she is “no longer with the boyfriend [Tommy A.], has 

undergone extensive services, has had almost six months of sobriety and is 

already having unsupervised visits.” (Italics in original.) 

However, on admission to inpatient treatment in December 2019, 

Mother was diagnosed with “[s]evere methamphetamine use” and “[s]evere 

cannabis use” disorders. At the disposition hearing in June 2020, Mother 

was new in recovery when compared to her 14-year history of substance 

abuse that included daily use of marijuana to control her “mood swings” and 

“aggressive tendencies.” 

Additionally, Mother was still involved with Tommy A., who in 2017 hit 

five-year-old C.B. in the face with a sandal. Despite the family court order 

prohibiting contact between the children and Tommy A., Mother allowed him 

inside Grandmother’s home when the children were present. In late July 

2019, police responded to Grandmother’s address on a report that Mother and 

Tommy A. were having sex in public there. In September 2019, Tommy A. 

drove Mother to her appointment with the social worker. Father attributed 

Mother’s continuing methamphetamine abuse to Tommy A.’s influence. 

At the June 2020 disposition hearing, in stipulated testimony Mother 

addressed her recent substance abuse treatment and employment.

Conspicuously absent in her testimony was any acknowledgment of the 

danger posed to the children by Tommy A. and her past failure to protect 

them from him. To the contrary, in conversations with the social worker, 

Mother denied that Tommy A. physically abused C.B. despite the 2017 

dependency case determination that he physically abused C.B. 
14

In determining whether a child may be safely maintained in the 

parent's physical custody, the court may consider the parent's past conduct if 

there is reason to believe the conduct will continue. (In re S.O. (2002) 103

Cal.App.4th 453, 461.) Moreover, a parent’s lack of insight into, and denial of 

dependency issues support a finding that the parent is not likely to modify 

behavior without court supervision. (In re Esmeralda B. (1992) 11 

Cal.App.4th 1036, 1044 [“denial is a factor often relevant to determining 

whether persons are likely to modify their behavior in the future without 

court supervision”].) 

Here, Mother’s comparatively short period of sobriety, her prior 

exposure of children to Tommy A., and her denial of his 2017 physical abuse

of C.B. support the juvenile court’s determination by clear and convincing 

evidence that “it would be detrimental to place with [Mother] due to the 

multiple untreated protective factors that exist.” 

III.

THE JUVENILE COURT CORRECTLY DETERMINED THAT 

GRANDMOTHER MAY NOT ASSERT THE RIGHTS OF A GUARDIAN

Throughout the dependency statutes, the Legislature refers to 

“parents” and “guardians.” (In re Carrie W. (2003) 110 Cal.App.4th 746, 758.) 

“[T]he ‘guardians’ portion of ‘parents or guardians’ appears to refer to 

situations where a child enters the jurisdiction of the dependency court with 

a guardianship previously established in probate court” or family court. 

(Ibid.) 

Pertinent here, under section 361, subdivision (c), the court shall not 

remove a dependent child from the physical custody of his or her “parents” or 

“guardian” with whom the child resides at the time the petition was initiated 

unless the juvenile court finds clear and convincing evidence that there is or 
15

would be a substantial danger to the minor’s health, safety, protection, or 

physical or emotional well-being. The court must also find that there are no 

reasonable means by which the minor’s physical health can be protected 

without removal from the minor’s “parent’s” or “guardian’s” physical custody. 

Similarly, under section 361.5, subdivision (a), and subject to 

enumerated exceptions, “whenever a child is removed from a parent’s or 

guardian’s custody,” the juvenile court shall order the social worker to 

provide “child welfare services” to the mother, “statutorily presumed father” 

or “guardians.” 

Initially there was some confusion about whether the family court 

order had established Grandmother as the children’s guardian. Father 

claimed that Grandmother had “guardianship”; however, the family court 

order giving Grandmother shared custody of the children repeatedly refers to 

her as a “third party” and not as a “guardian.” 

At the jurisdictional and dispositional hearing, the juvenile court 

determined that Grandmother was not a legal guardian because she was not 

so appointed by any court. Accordingly, because Grandmother was neither 

parent nor guardian, the juvenile court found it unnecessary to make findings 

under the above-referenced statutes and ordered Grandmother to be “stricken 

from the petition.” 

On appeal, Mother contends that the family court order giving 

Grandmother shared custody of the children effectively made her the 

children’s legal guardian. From that premise, Mother contends the juvenile 

court erroneously failed to make the requisite findings of detriment to 

support removing the children from Grandmother’s custody.5 

5 Grandmother did not appeal. Mother contends she has standing to 

assert that the court erred in failing to accord Grandmother guardianship 
16

Under the family court order, Grandmother and Father “share” legal 

custody of the children, with each possessing “decision-making authority” 

regarding the children’s health, education, and welfare. The family court also 

ordered shared physical custody, with Grandmother having the children 

weekdays, Father on weekends, and Mother for some holidays (supervised by 

Grandmother).

As a matter of law, Grandmother is not the children’s guardian. When 

the court appoints a guardian, the parents’ authority “ceases.” (Fam. Code, 

§ 7505, subd. (a).)6 The court may allow parent(s) visitation (Guardianship 

of Martha M. (1988) 204 Cal.App.3d 909, 911), but the responsibility for 

making decisions for the minor(s) is transferred to someone other than the 

parent. (Guardianship of Stephen G. (1995) 40 Cal.App.4th 1418, 1425-

1426.) 

In this case, the family court order does not create a guardianship 

because Father’s parental right to control and make decisions for the children 

is not suspended; it is shared. Under the order, Grandmother shares 

“decision-making” authority with Father. Moreover, the order also retains 

both Father’s and Mother’s parental rights to the children’s medical and 

rights because “if grandmother is treated as a guardian this will benefit 

Mother and her children by increasing the chances the minors will be placed 

with family and increasing Mother’s chance to reunify.” Because the 

Agency’s brief does not challenge this statement, nor does the Agency contest 

standing on any other basis, we assume without deciding that Mother has 

standing to raise these issues. 

6 Family Code section 7505, subdivision (a) provides: “The authority of a 

parent ceases on any of the following: [¶] (a) The appointment, by a court, of 

a guardian of the person of the child.” 
17

school records, as well as their right to obtain certain health care for the 

children. 

The distinguishing characteristic of guardianship is that parental 

rights are “completely suspended” for the duration of guardianship. 

(Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1124 (Ann S.).) 

Grandmother is not a guardian because the parents’ rights have not been 

completely suspended. Moreover, the family court order clearly indicates an 

intention not to create a guardianship. In five separate places, the court 

interlineated the standard form to refer to Grandmother not as guardian, but 

rather as “3d party.” 

Mother asserts that Grandmother should be treated as the children’s 

guardian because the family court order gave her “comprehensive rights and 

duties” to care for the children. However, the dispositive issue is not what 

rights Grandmother obtained under that order, but rather what rights the 

parents retained. 

In a related argument, Mother contends that “as a practical matter,” 

treating Grandmother as a legal guardian advances the purposes of 

dependency laws. She notes that the children have lived with Grandmother 

most of their lives and want to return to her. Although Mother does not 

openly acknowledge this, the underlying premise of her argument is that 

courts may recognize a de facto or informal guardianship based upon the 

would-be guardian’s conduct and the children’s desires. However, the 

California Supreme Court has foreclosed this argument, stating that 

“California law does not recognize ‘informal’ guardianship.” (Ann S., supra, 

45 Cal.4th at p. 1125, fn. 7.) 
18

IV. 

THE JUVENILE COURT ORDERED THE AGENCY TO PROVIDE 

SERVICES TO GRANDMOTHER IF A REQUISITE TO PLACEMENT

A. Background

In closing argument, the Agency asserted that Grandmother should be 

“struck from the petition” and not provided family services because she is not 

a guardian. In contrast, the children’s lawyer asked the court to provide 

Grandmother with services, noting that Grandmother “was a primary 

caregiver for these girls, and she would likely be a placement option with the 

mother.” Elaborating, the children’s lawyer noted that ultimately the 

children were likely to be placed in Grandmother’s home: 

“As to Maternal Grandmother, I’m in agreement with 

providing her with services . . . . If the mother continues 

with her sobriety and is able to reunify with the girls, it 

would likely be in the maternal grandmother’s house. So I 

believe that it would be in the minors’ best interest for the 

maternal grandmother to receive additional counseling to 

address what the Agency sees are deep-rooted issues of codependency with the mother.” 

Grandmother’s lawyer also asked the court to provide her with services, 

stating:

“The fact that she took care of the children, that the 

[family] court recognized her to provide their day-to-day 

needs in conjunction with the father . . . this court can still 

find she gets services . . . .” 

“[¶] . . . [¶]

“I think, in this case, the court can also provide services to 

Maternal Grandmother . . . [because] this is not a 

traditional family. This is not going to be Mom, Dad, and 

kids, but Grandmother, Mother, and children. Mother 
19

relies on Maternal Grandmother and Maternal 

Grandfather. It seems to be a good source if it can be fixed. 

“[¶] . . . [¶]

“So if this court does make a true finding, Maternal 

Grandmother is requesting services. . . . She’s amendable 

[sic] to doing . . . services up to and including therapy.”

Mother’s lawyer also supported Grandmother’s request for services, 

noting the children’s desire to live with Grandmother:

“The children have detailed in their conversations with the 

Agency and throughout the reports that they miss their 

grandmother, they ask to go home to her, and they’re 

bonded to her.” 

Mother’s lawyer further asserted that “the best transition would be to 

transition back into the maternal grandmother’s home . . . .” 

Recognizing the children’s bond with Grandmother, the court stated, 

“So Plan B, if the children couldn’t be reunified with Mom, it would be with 

[Grandmother].” Next, the court noted that Grandmother was in the 

Resource Family Approval (RFA) process.7 The court ordered the Agency to 

provide family services to Grandmother if required for RFA approval, stating: 

“The court: And here’s—the situation I want to avoid is 

this: [Grandmother] is asking for services. The Agency is 

telling her she’s not entitled to them. I don’t want to end 

up in a situation where her home has been approved for 

RFA, but for the fact that she hasn’t participated in 

services that the Agency wouldn’t give her. So if the 

Agency is going to expect her to complete certain services in 

7 The California Department of Social Services describes RFA as “a new 

family-friendly and child-centered caregiver approval process . . . .” 

(https://www.cdss.ca.gov/inforesources/resource-family-approval-program). 
20

order to approve her home, then the Agency needs to make 

the referrals to those services.” (Italics added.) 

In response, the Agency’s lawyer stated, “Understood, Your Honor.” 

B. Mother’s Contention

Mother contends that even if Grandmother is not a guardian, the 

juvenile court still had discretion to and should have “ordered reunification 

services” under its “inherent powers to support the best interests of the 

minors.” Mother asserts that the court “apparently assumed it did not have 

this authority, as it deferred to the Agency’s denial of services.” Mother is 

concerned that “if the Agency decides [Grandmother] needs services to get 

placement, and the Agency will not provide them, then the minors will 

continue to languish in foster care and may lose the chance to reunify with 

Mother or [Grandmother].” Mother contends that the court’s failure to 

exercise its discretion to provide services to Grandmother is itself an abuse of 

discretion requiring remand. 

C. Analysis

We disagree with Mother’s interpretation of the court’s order. The 

plain language shows that the juvenile court has already exercised discretion 

and has granted the relief Mother seeks. At the hearing, the court ordered 

the Agency to provide Grandmother with referrals to services that were 

required “in order to approve her home.” The minute order incorporates by 

reference this part of the transcript, stating: 

“The court discusses the RFA process for maternal 

grandmother and states that maternal grandmother should 

continue to be evaluated; more fully set forth on the 

record.”

Mother’s concern that “if the Agency decides [Grandmother] needs 

services to get placement . . . the Agency will not provide them” is unfounded 
21

because the juvenile court has already ordered the Agency to provide such 

services, to which the Agency acquiesced by its attorney’s responding, 

“Understood, Your Honor.” 

On appeal, however, the Agency has changed its position and opposes 

providing any services to Grandmother. Entirely apart from forfeiture that 

would ordinarily result from the Agency’s consent to the order in the juvenile 

court, the Agency’s argument also fails because it is based on three factual

errors. 

First, the Agency mischaracterizes the court’s order by claiming that 

the court merely made “comments” that services should be provided to 

Grandmother. The court did not make mere “comments”—it made an order, 

stating that the Agency “needs to make referrals . . . .”

Second, the Agency contends that Mother has forfeited the issue by not 

raising the point in the juvenile court. However, Mother’s lawyer urged the 

juvenile court to provide Grandmother with services, stating, “we would 

support . . . the request for family reunification or family maintenance 

services on [Grandmother’s] behalf.” 

Third, the Agency contends that the juvenile court concluded that it 

lacked authority to order services for Grandmother and “did not err in 

declining to order reunification services.” However, the Agency misstates the 

record. The court clearly ordered services, stating, “if the Agency is going to 

expect [Grandmother] to complete certain services in order to approve her 

home, then the Agency needs to make the referrals to those services.” 
22

DISPOSITION

The orders are affirmed. 

McCONNELL, P. J.

WE CONCUR:

O'ROURKE, J.

GUERRERO, J.