In re E.M. CA3

Filed 11/8/23 In re E.M. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Placer)
----

In re E.M., a Person Coming Under the Juvenile Court C097308
Law.

PLACER COUNTY DEPARTMENT OF HEALTH (Super. Ct. No. 53004634)
AND HUMAN SERVICES,

Plaintiff and Respondent,

v.

H.H. et al.,

Defendants and Appellants.

Appellants H.H. and J.H. (the guardians) were appointed minor E.M.’s guardians
as the permanent plan in a dependency action.1 After several safety concerns arose in
their home, including J.H.’s alcohol abuse, respondent Placer County Department of

1 H.H.’s request to take judicial notice of the juvenile court’s findings and order
terminating mother’s reunification services, selecting guardianship as the permanent plan
for E.M., and awarding guardianship to J.H. and H.H. is granted.

1
Health and Human Resources (Department) filed a Welfare and Institutions Code2
section 387 petition and a section 388 petition to terminate the guardianship and place
E.M. in foster care until a new permanent plan could be selected. At the parties’ urging,
the juvenile court ruled on the section 388 petition first, finding that it was in E.M.’s best
interest to terminate the dependency guardianship. Given its ruling, the juvenile court
found that the section 387 petition was moot. The guardians each separately appeal the
order terminating the dependency guardianship.
They argue on appeal that the juvenile court should have proceeded under
section 387 rather than section 388 to terminate the guardianship and that the error was
not harmless. They contend that by ruling on the section 388 petition, the juvenile court
deprived them of a disposition hearing, failed to consider the effect of terminating the
guardianship on E.M.’s relationship with one of his biological brothers who remained
under the guardians’ custody and care, and denied them reunification services that would
have preserved the guardianship.
We conclude the guardians forfeited their challenge by urging the juvenile court to
rule on the section 388 petition before the section 387 petition, and by failing to argue
below that the section 388 petition was not an appropriate mechanism to terminate the
dependency guardianship under the circumstances. In any event, even if not forfeited, we
conclude the juvenile court properly terminated the guardianship under section 388. We
therefore affirm.

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

2
 FACTUAL AND PROCEDURAL BACKGROUND
A. Dependency Guardianship of E.M.
E.M. originally resided with his mother and several siblings, including his older
brothers Ar.M. and A.M.3 His father is deceased.
In May 2017, the Placer County Juvenile Court declared then six-year-old E.M. a
dependent under section 300, subdivisions (b) and (c) based on domestic violence and
substance abuse issues involving his mother and her boyfriend. The juvenile court
terminated his mother’s services in November 2018 after she failed to successfully
reunify with her children.
E.M. was placed in foster care with J.H. and his wife H.H. in approximately June
2018. In August 2019, the juvenile court selected guardianship as the permanent plan for
E.M. under section 366.26 and awarded guardianship of E.M. to the guardians; J.H. and
H.H were also awarded guardianship of Ar.M. and A.M. Although A.M.’s dependency
case was closed after the letters of guardianship issued, E.M.’s dependency case
remained open due to his immigration status.4
The guardians worked with a nonprofit agency to submit various immigration
paperwork on E.M.’s behalf to change his immigration status to permanent resident
status. However, certain items were missing or not timely returned, and the application
was later denied. The guardians also failed to return certain educational forms to E.M.’s
school so that he could be assessed for an individualized educational plan (IEP) to
address some learning disabilities and reading deficits. And although E.M. wore

3 E.M.’s brothers are not part of this appeal. We discuss facts related to them only
for context.
4 The record does not contain information on whether Ar.M.’s dependency case
remained open. The guardianship of Ar.M. ended after he turned 18; he has since moved
out of the guardians’ home and back in with his mother.

3
eyeglasses daily, the guardians did not replace his glasses for several months after he
misplaced them.
B. Problems in the Guardians’ Home
In September 2020, the guardians began having marital problems and J.H. started
drinking excessively. They did not initially disclose J.H.’s alcohol abuse to the
Department or to Triad Family Services Foster Care and Adoption Agency (Agency), the
foster family agency that licensed them as a foster home.
By June 2021, H.H. had confronted J.H. about his alcohol abuse and offered to
take him to Alcoholics Anonymous meetings, but he did not go. During a home visit in
September 2021, H.H. finally disclosed to an Agency social worker that J.H. had been
abusing alcohol for about six months to a year. He had recently lost his long-term
employment as well as a replacement job because of his drinking.
Over the course of the next several months, the Agency and the Department
conducted numerous child and family team (CFT) meetings with one or both of the
guardians to address safety concerns regarding J.H.’s alcohol abuse, and the Agency
advised the guardians that E.M.’s placement may be in jeopardy if J.H. continued to
drink. The parties agreed to safety plans that included unannounced check-ins and
prohibited J.H. from being alone with E.M. without adult supervision, drinking in E.M.’s
presence or transporting him anywhere, and required that all alcohol be kept in a locked
location. H.H. agreed to notify social workers if J.H.’s drinking increased or if he
appeared intoxicated.
Although the Department and the Agency attempted to help J.H. seek treatment,
he did not do so and was eventually asked to move out of the family home in November
2021. J.H. was arrested for drunk driving in December 2021 and was later convicted of
driving under the influence causing bodily injury (Veh. Code, § 23153, subd. (b)) and hit
and run resulting in injury or death (Veh. Code, § 20001, subd. (a)) based on the incident.

4
The guardians did not inform the Department or the Agency of J.H.’s arrest or
convictions.
During December 2021, H.H.’s relatives visited the family for the holidays.
E.M.’s brother, A.M., was subsequently accused of molesting another minor during the
visit.
C. Section 387 Petition
In May 2022, the Department filed a section 387 petition to remove then 11-year-
old E.M. from the guardians’ custody to foster care based on J.H.’s alcohol abuse, which
rendered him incapable of properly caring for E.M.5 The petition alleged that J.H. had
been asked to vacate the family home in November 2021 after a social worker observed
him falling down the stairs drunk while E.M. was present. J.H. also showed up at the
family home for a visit in March 2022 after he had been drinking excessively. H.H. had
failed to timely report concerns about J.H.’s drinking and both guardians had failed to
provide suitable psychiatric care for A.M. after he was accused of molesting a minor in
their home. The petition noted that based on this conduct, the guardians’ foster care
license had been revoked.
A detention report discussed the CFT meetings held in November 2021 and
January, February, and March 2022, and described the various safety plans the parties
had developed to address J.H.’s alcohol abuse, including that H.H. timely notify social
workers if J.H.’s drinking increased or if he was intoxicated. Notwithstanding the
notification requirement, the Department had discovered J.H.’s drunk driving arrest and
convictions only after conducting a CLETS search while preparing the detention report
because neither H.H. nor J.H. had disclosed the criminal conduct.

5 The Department did not seek to remove A.M. from the guardians’ care.

5
 J.H. attended a few Alcoholics Anonymous meetings and spoke with people at his
church, but his attempts to stop drinking on his own proved unsuccessful. He admitted
drinking in January, March, and May of 2022.
The juvenile court detained E.M. in May 2022 and temporarily placed him in
foster care. The court found that continuing E.M. in the guardians’ home was contrary to
his welfare because there was a substantial danger to his physical and emotional health
and no reasonable means to protect his health existed without removing him from the
guardians’ physical custody. The court also found that reasonable and active efforts had
been made to prevent or eliminate the need to remove E.M. but that detention was
nevertheless necessary. The guardians, as well as E.M.’s mother, were provided
visitation.
D. Section 388 Petition to Terminate Guardianship
In June 2022, the Department filed a section 388 petition to terminate the
guardianship based on the same conduct alleged in the section 387 petition. The
section 388 petition specifically alleged that it was in E.M.’s best interest to terminate the
dependency guardianship given J.H.’s alcohol abuse, the guardians’ dishonesty about the
extent of J.H.’s alcohol problem, J.H.’s failure to access services to help achieve sobriety,
which he had failed to do for any significant period of time (having relapsed as recently
as May 2022), the guardians’ failure to follow through with E.M.’s immigration
application, and their failure to arrange for therapy services for E.M. and A.M. after A.M.
was accused of molesting a minor in their home. The petition further noted that the
guardians had lost their foster care license based on the above issues.
E. Jurisdiction/Detention Report
A June 2022 combined jurisdiction/disposition report recommended that the
juvenile court sustain the section 387 petition and find that the legal guardianship was no
longer effective in protecting E.M.; it also urged the court to terminate the legal
guardianship, and referred the court to the Department’s section 388 petition for

6
modification to terminate the guardianship. The report described how E.M. and A.M.
revealed that in November 2021, J.H. drove intoxicated with other foster care or adopted
children in his car.
The Department asserted that H.H. also had difficulty meeting E.M.’s needs,
including failing to: timely order replacement glasses after he had lost his glasses,
finalize his immigration application, and submit necessary information to E.M.’s school
to complete an IEP assessment so that he could qualify for special education services.
The Department thus recommended that the juvenile court find the guardianship was no
longer effective in protecting E.M., and that the court terminate the guardianship.
The report considered whether E.M. should be placed with his mother, but
recommended that the mother’s circumstances had not changed since termination of
services because she was still in a relationship with her boyfriend who perpetrated the
domestic violence necessitating E.M.’s removal from her care. The Department also
noted that E.M.’s now adult brother, A.M., who was in jail on pending criminal sexual
assault charges involving a minor, was supposed to move in with the mother upon his
release. The Department recommended against providing the mother with additional
reunification services due to her minimal change of circumstances, her seeming lack of
insight, and her willingness to place her other children’s needs above E.M.’s.
The Department also assessed, pursuant to section 366.3, whether E.M. could
safely be returned to the guardians’ home without terminating the legal guardianship.
The Department concluded that returning E.M. to the guardians’ care would be
detrimental, that it would not be in his best interest to offer services to attempt to preserve
the guardianship, and that the guardianship should be terminated given the guardians’
inconsistent care, lack of transparency with the Department, the recent sexual assault
allegation against A.M. while in their home, and J.H.’s continued alcohol abuse. The
Department had already offered the guardians support for many months prior to detention

7
and the guardians had failed to take prompt action to address the safety concerns posed
by J.H.’s substance abuse problem and other noted issues.
F. Contested Hearing
In June 2022, the Department requested a contested hearing on the section 388
petition be set in conjunction with the jurisdiction and disposition hearing on the
section 387 petition, given that the evidence on the two petitions was cross-admissible.
H.H.’s counsel agreed that the hearings should be set for the same date. The juvenile
court set the matter for a combined hearing in August.
The contested hearing commenced on August 12, 2022, and testimony and
argument were heard over the course of several nonconsecutive days. During her
opening remarks, H.H.’s counsel outlined the “course of action that the Court need[ed] to
consider things.” According to H.H.’s counsel, “all parties [we]re in agreement that,
first, we need to deal with the 388 motion that the agency filed to terminate
guardianship.” If the juvenile court did not terminate the legal guardianship under the
section 388 petition, then, H.H.’s counsel explained, the court should address the
section 387 petition. J.H.’s counsel joined in the opening statement of H.H.’s counsel,
and no parties objected to proceeding in this manner.
Numerous witnesses testified at the hearing. The Agency director testified that the
guardians’ foster care license had been revoked based on J.H.’s drinking problem, the
guardians’ lack of candor about the issues in their home, and other safety concerns.
According to the Agency social worker Angela Speed in September 2021, H.H.
finally told her that J.H. had abused alcohol over the past year. After implementing a
safety plan where J.H. was not to be alone with E.M. or drink in his presence, Speed later
observed J.H. falling down the stairs intoxicated while E.M. was in the home. She
explained that the Agency had recommended inpatient and outpatient treatment plans to
help J.H. achieve long-term sobriety, but J.H. did not complete treatment or otherwise
satisfactorily address the Agency’s concerns regarding his alcohol abuse.

8
 J.H. was also dishonest about his drinking. He had initially told Speed he was laid
off, but H.H. later disclosed that he had been fired because of his drinking. In Speed’s
view, H.H. did not always immediately disclose when J.H. was drinking. Nor did J.H. or
H.H. timely disclose that J.H. was charged with and convicted of two driving under the
influence related crimes.
The program supervisor for Placer County Children’s System of Care testified
about the CFT meeting safety plans to address J.H.’s drinking, including substance abuse
treatment programs and having J.H. move out of the family home until he obtained
sobriety, the guardians’ failure to timely disclose important information regarding J.H.’s
alcohol problems, and issues regarding E.M.’s immigration status.
The Department case carrying social worker, Shelby Campbell, was assigned to
E.M.’s case in November 2021. At the time, she learned that E.M. had lost his
eyeglasses. While H.H. told E.M. to clean his room to see if he could find his glasses,
H.H. did not order E.M. a replacement pair of glasses until April 2022. Campbell also
described E.M.’s learning deficits that should have been addressed through an IEP, and
noted that although an IEP referral was made in March 2021, the guardians did not return
all of the necessary referral documents to the school until January 2022.
Campbell testified that E.M. was thriving in his current placement academically
and socially, and he had expressed his preference to stay with his current placement
rather than return to the guardians. E.M. did not contact the guardians as frequently as he
did before being moved to his current placement, although he still cared for them.
J.H. testified that he considered E.M. to be his son, and that E.M. and A.M., who
remained in the guardians’ care, were very bonded brothers. E.M. was also bonded to
some of J.H.’s adult children and H.H.’s mother, who also lived in their home.
J.H. started drinking in September 2020 after he began having marital issues. He
admitted having a problem with alcohol and that he had lost two jobs due to his drinking.
Obtaining treatment was initially hard because it conflicted with his new job, but he was

9
currently engaged in outpatient treatment with WellSpace Addiction Recovery. He had
also started attending Alcoholics Anonymous meetings in January 2022 after his drunk
driving arrest, although he had not been to a meeting in about a month. He had met with
church members to address his alcohol abuse, and was willing to engage in court-ordered
services to maintain the guardianship. However, he conceded that even though he knew
since October 2021 that he was in jeopardy of having E.M. removed from his care based
on his drinking, he did not engage in consistent treatment services until April 2022, and
he admitted relapsing as late as May 26, 2022. J.H. believed his family needed more
visits with E.M. and that he and his wife could attend couples therapy.
H.H. testified that E.M. had been in their home about four years before he was
removed; they were very close and she considered him her son. E.M. was also very close
with his biological brother, A.M., for whom they still had legal guardianship. J.H. began
drinking in 2020, and by November 2021, the Agency and the Department had requested
that he engage in treatment or leave their home. As a result, H.H. took J.H. to live with
his mother. H.H. permitted J.H. to visit with the children only when sober and while
other adults were present.
H.H. acknowledged she could have done more to address what was happening in
her home before E.M. was removed. She also noted that she mistakenly believed the
Department or the Agency would arrange for therapy services for A.M. based on the
molestation allegations, but later realized it was her responsibility as his guardian to
secure the services, which she had since set up. Even though she had agreed to safety
plans requiring her to notify the Department and the Agency if J.H. drank, she was not
more forthcoming about J.H.’s drinking-related problems, including his driving under the
influence arrest and convictions, because he had moved out of the house by November
2021. She also claimed she had sent the IEP paperwork back to school with E.M. but
failed to follow-up on whether the school received it because it was the end of the school

10
year; E.M.’s IEP was delayed by almost a year after the initial referral was sent home due
to the missing paperwork.
According to J.H.’s substance abuse counselor, he had actively participated in an
outpatient program from April to June 2022, which consisted of individual and group
telephonic sessions. He was honest about his alcohol struggles and triggers, admitted he
had relapsed in May 2022, and had started a recovery services program for extra support.
After assessing whether J.H. needed referrals for additional services, she determined no
additional services were necessary.
A social worker investigator also testified on the guardians’ behalf that she visited
their home in August 2022 after E.M. had been removed and found it clean, organized,
and well furnished. She felt the guardians were appropriately monitoring A.M. given the
pending sexual molestation allegations and that E.M. would not be at risk if he remained
in their home.
E.M.’s court appointed special advocate testified that E.M. was doing well in his
current placement, he received tutoring to fill some educational gaps, and he was happy
at the school he was attending. He had expressed a desire to return to his mother, and if
that was not possible, to stay with his current caretaker. She recommended that E.M.
remain in his current placement and not be returned to the guardians.
At the conclusion of evidence, H.H’s counsel addressed the section 388 petition,
although she acknowledged that her argument would largely be the same as for the
section 387 petition. She agreed there were issues in the guardians’ home but argued that
it was in E.M.’s best interest to return him to the guardians and allow for reunification
services.
J.H.’s counsel noted that counsel for all parties were “in agreement on the 388 and
the 387 procedures as it applies to this case in that the Court does have the authority to
both maintain the guardianship and maintain and order [E.M.] be returned to the home of
the [guardians] both in the short and long-term and to order reunification services if the

11
Court deems appropriate.” He also emphasized that terminating the guardianship under
section 388 would effectively preclude the chance of E.M. being raised with his
biological brother, A.M., with whom he shared a strong bond. Counsel acknowledged
that her “section 387 argument is largely incorporated into my [section] 388
argument . . . .”
E.M.’s counsel informed the juvenile court that while E.M. cared for the
guardians, he either wanted to be with his mother or stay in his current placement and not
be returned to the guardians. Counsel agreed with the Department’s recommendation to
terminate the guardianship under section 388. In counsel’s view, the guardians were not
entitled to services given that the guardianship was established through dependency and
not probate, and, in any event, she did not believe it was in E.M.’s best interest to offer
any additional services as she did not believe it would help since the guardians failed to
recognize the magnitude of the problem and address it in a timely manner.
The juvenile court issued its decision in October 2022, addressing the section 388
petition first as the parties had agreed at the outset of the hearings. After recounting the
contested evidence, it found that there was clear and convincing evidence that
circumstances had changed based on J.H.’s alcohol abuse and that it would be in E.M.’s
best interest to terminate the guardianship. In so ruling, the court recognized that
although E.M.’s legal guardianship relationship with the guardians was ending, his
personal relationship with them and those in their household, including his biological
brother A.M., need not. Having terminated the guardianship, the juvenile court found the
section 387 petition moot.
The guardians timely appealed.

12
 DISCUSSION
I
Forfeiture
The guardians contend that the juvenile court erred by deciding the Department’s
later-filed section 388 petition to terminate the guardianship before considering the
Department’s previously-filed section 387 petition. The guardians have forfeited any
challenge to the way the juvenile court considered the petitions below.
As our Supreme Court explained in In re S.B. (2004) 32 Cal.4th 1287, “a
reviewing court ordinarily will not consider a challenge to a ruling if an objection could
have been but was not made in the trial court.” (Id. at p. 1293.) Such a rule encourages
parties to bring alleged errors to the attention of the trial court so that the court has an
opportunity to correct the error. (Ibid.) “Dependency matters are not exempt from this
rule.” (Ibid.)
Here, neither H.H. nor J.H. objected that a section 388 petition was an improper
vehicle to terminate E.M.’s guardianship under the circumstances. In fact, at the
beginning of the hearing, H.H.’s counsel expressly informed the juvenile court that all
parties agreed the juvenile court should first address the section 388 petition, and then,
only if it denied the section 388 petition, should it proceed to decide the section 387
petition. J.H.’s counsel joined in the argument and no party objected to proceeding in the
manner outlined by H.H.’s counsel. Thus, the guardians did not fail to object to the
juvenile court proceeding on the section 388 petition first, they explicitly acquiesced, and
indeed invited, the juvenile court to proceed in the manner of which they now object on
appeal. Based on the proceedings and arguments below, the guardians have forfeited
their appellate objections or otherwise invited any alleged error. (See In re Dakota H.
(2005) 132 Cal.App.4th 212, 221 [forfeiture doctrine applies in juvenile dependency
litigation and is intended to prevent a party from standing by silently until the conclusion
of the proceedings]; Fretland v. County of Humbold (1999) 69 Cal.App.4th 1478, 1489 [a

13
party may not assert theories on appeal that the party did not raise in the court below]; In
re G.P. (2014) 227 Cal.App.4th 1180, 1193 [recognizing that the doctrine of invited error
can apply in the dependency context and that under the doctrine, when a party by its own
conduct induces the commission of error, the party is estopped from asserting it as a
grounds for reversal on appeal].)
However, even if we were to decline to apply the forfeiture rule or the invited
error doctrine here (In re S.B., supra, 32 Cal.4th at p. 1293 [application of the forfeiture
rule is not automatic and a reviewing court may exercise its discretion to reach an
arguably forfeited issue]), as we explain below, the Department’s section 388 petition
was an appropriate mechanism to terminate E.M.’s dependency guardianship.
II
Termination of a Dependency Guardianship
H.H. contends that because the Department sought to remove E.M. to foster care, a
more restrictive placement, section 387 rather than section 388 controlled. J.H. argues
that because E.M.’s guardianship was created as the permanent plan under
section 366.26, section 388 does not apply as the statute’s plain language applies only to
guardianships created under section 360. Neither argument is persuasive.
In this case, E.M.’s guardianship was established in 2019 in dependency
proceedings at a selection and implementation hearing under section 366.26. Given his
immigration status, E.M.’s dependency case remained open, and the court retained
jurisdiction over him as a dependent child of the juvenile court. (§ 366.3, subd.(a)(3)
[“[f]ollowing 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”].)
A request to modify, replace, or terminate a guardianship established by the
juvenile court pursuant to section 360 or section 366.26—a dependency guardianship like

14
the one at issue here—is governed by the procedures provided in section 388 for
modification of court orders. (See B.B. v. Superior Court (2016) 6 Cal.App.5th 563, 569;
In re Priscilla D. (2015) 234 Cal.App.4th 1207, 1217-1218; In re Carlos E. (2005)
129 Cal.App.4th 1408, 1417; see also § 366.3, subd. (a)(3); Cal. Rules of Court, rule
5.740(d).)6 Rule 5.740(d) provides in relevant part: “A petition to terminate a
guardianship established by the juvenile court, to appoint a successor guardian, or to
modify or supplement orders concerning guardianship must be filed in the juvenile court.
The procedures described in rule 5.570 must be followed, and Request to Change Court
Order (form JV-180) must be used.”
“Before the hearing on the petition (where it must be shown that a change to the
guardianship arises from a change of circumstances or evidence and would be in the
minor’s best interests, § 388, subd. (a)), the social services department shall prepare a
report that includes an evaluation of whether the child could safely remain or be returned
to the legal guardian’s home without terminating the guardianship if services were
provided. (§ 366.3, subd. (b)(2).)” (In re N.B. (2021) 67 Cal.App.5th 1139, 1145-1146.)
At the hearing on the petition to terminate the guardianship, the juvenile court has three
options: (1) deny the petition to terminate guardianship; (2) deny the petition and request
the county welfare department to provide services to the guardian and the ward for the
purpose of maintaining the guardianship, consistent with section 301; or (3) grant the
petition to terminate the guardianship. (Rule 5.740(d)(3) (A)-(C).) If the juvenile court
grants the petition to terminate, the court may order that a new plan be developed to
provide stability for the minor. (§ 366.3, subd. (b)(2); rule 5.740(d)(4).)
This is the procedure the juvenile court followed here. Before ruling on the
section 388 petition to terminate the guardianship, the court reviewed and considered the

6 Further undesignated rule references are to the California Rules of Court.

15
detention findings and order, the Department’s JV-180 form seeking termination, the
jurisdiction and disposition report, which addressed whether services could be provided
to help preserve the guardianship, a guardian assessment, and the CASA report. After
considering all the evidence, the court found by clear and convincing evidence that it was
in E.M.’s best interest to terminate the guardianship given the drastically changed
circumstances resulting from J.H.’s unresolved alcohol abuse.
However, notwithstanding case law and commentary to the contrary (see, e.g., In
re N.B., supra, 67 Cal.App.5th at pp. 1145-1146 [section 388 applies to terminate
dependency guardianship]; In re Carlos E., supra, 129 Cal.App.4th at p. 1418 [“[a]n
application to terminate a guardianship created by the juvenile court is governed by
section 388”]; Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2021 ed.)
§§ 2.60[9], 2.181), J.H. contends that the plain language of section 388 applies only to
those guardianships created under section 360 and not those, like E.M.’s, created
pursuant to section 366.26.
“The juvenile court’s power to appoint a guardian for a child who has been
detained is governed by sections 360 and 366.26.” (In re Carlos E., supra, 129
Cal.App.4th at p. 1417.) Section 360 applies if a dependent child’s parent or parents
waive reunification or family maintenance services and agree to the guardianship. (In re
Carlos E., at p. 1417.) Section 366.26 applies when a parent fails to reunify with a child
and legal guardianship is selected as the permanent plan for the dependent child. (In re
Carlos E., at p. 1417.)
Under section 388, “[a]ny parent or other person having an interest in a child who
is a dependent child of the juvenile court or a nonminor dependent as defined in
subdivision (v) of Section 11400, or the child or the nonminor dependent 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 or in which a guardianship was ordered pursuant to

16
Section 360 for a hearing to change, modify, or set aside any order of court previously
made or to terminate the jurisdiction of the court.” (§ 388, subd. (a)(1), italics added.)
J.H. points to the above-quoted italicized language in arguing section 388 is limited to
section 360 guardianships only.
But J.H. improperly focuses on a single clause of section 388 rather than
considering the statutory language in context and as a whole. (In re Z.C. (2009)
178 Cal.App.4th 1271, 1278 [appellate court independently reviews statutory language
and must harmonize the various parts of a statutory enactment by considering the
particular clause or section in the statutory framework as a whole].) When all of the
statutory language is considered, it is clear that anyone having an interest in a dependent
child of the juvenile court may 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 previous court order based on change of circumstance or new evidence.
Because E.M.’s dependency case remained open, section 388 was available to change,
modify, or set aside the juvenile court’s previous legal guardianship order made under
section 366.26 even if the statute also includes other types of dependency guardianships
such as those created under section 360. Had the Legislature intended to preclude using
section 388 to terminate a dependency guardianship created pursuant to section 366.26, it
could have easily said so. It did not. And we decline J.H.’s implicit invitation to add
such a limitation into the statute. (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531,
545 [reviewing “court may not broaden or narrow the scope of the [statutory] provision
by reading into it language that does not appear in it or reading out of it language that
does”]; In re Hoddinott (1996) 12 Cal.4th 992, 1002 [court may not rewrite a statute to
conform to an assumed intention that does not appear from its language].)
Unlike J.H., H.H. concedes that section 388 is a viable means to terminate a
dependency guardianship, but she argues that when the Department seeks to remove a
minor from such a guardianship to a more restrictive placement like foster care,

17
section 387 should govern. To support her argument, H.H. relies on In re Jessica C.
(2007) 151 Cal.App.4th 474. There, a grandparent was appointed a legal guardian after
reunification efforts with a parent failed. (Id. at pp. 478-479.) After the guardian was
unable to care for his grandchildren a few years later, the social services agency filed a
section 388 petition seeking to terminate the guardianship, which the juvenile court
granted. (In re Jessica C., at pp. 479-480.) The appellate court reversed, concluding that
petitions to terminate guardianships must follow section 387’s “more detailed
procedure.” (In re Jessica C., at p. 480, 485.)
In so holding, the court in In re Jessica C. relied on rule 5.740, which, as
previously noted, provides that “[a] petition to terminate a guardianship established by
the juvenile court, to appoint a successor guardian, or to modify or supplement orders
concerning a guardianship must be filed in the juvenile court.” (Rule 5.740(d), italics
added; In re Jessica C., supra, 151 Cal.App.4th at p. 481.) The court concluded that the
words “modify” and “supplement” referred to both sections 388 and 387 for petitions to
modify and supplemental petitions. (In re Jessica C., at p. 481.) While the court
recognized that either could be used depending on the circumstances, it found that section
387 was the appropriate procedural mechanism if the termination will result in foster
care. (In re Jessica C., at p. 482.)
As H.H. acknowledges, however, In re Jessica C. was recently questioned in In re
N.B., supra, 67 Cal.App.5th at page 1139, which found that Jessica C.’s conclusion
lacked authority and was inconsistent with the statutory scheme. (In re N.B., at p. 1147.)
The court in In re N.B. reasoned that rule 5.740, the basis for Jessica C.’s interpretation,
provides that “ ‘[t]he procedures described in rule 5.570 [regarding requests to change
court orders under section 388] must be followed, and Request to Change Court Order
(form JV-180 [the form required for a section 388 petition, see rule 5.570(b)]) must be
used.’ (Cal. Rules of Court, rule 5.740(d).)” (In re N.B., at p. 1147.) Thus, because “the
statute governing termination of guardianships does not mention supplemental petitions

18
under section 387 (§ 366.3, subd. (b)(2)), and the implementing California Rule of Court
could not be more plain that a petition to terminate a guardianship proceeds by way of a
petition to modify under section 388, it is clear that it is appropriate to proceed by such a
petition.” (In re N.B., at p. 1147.)
We find the reasoning of In re N.B. more persuasive given that the plain language
of section 388 does not expressly exclude the termination of a dependency guardianship
where a minor may be placed in foster care and because the implementing regulations
governing the termination of a dependency guardianship specifically reference the
procedures under section 388 and require that the section 388 form (JV-180) be used.
(§ 388; rules 5.740(d), 5.570.) The Department’s section 388 petition was thus a proper
mechanism to terminate the dependency guardianship regardless of whether E.M. would
be placed in foster care until the juvenile court could select a more permanent plan.
Having concluded that the juvenile court here did not err in proceeding under
section 388, we need not address the guardians’ arguments that they were prejudiced by
the procedure, including not having a separate disposition hearing under section 387 and
section 361, or not being provided with reunification services, which H.H. acknowledges
that the juvenile court considered and implicitly rejected even though she was not legally
entitled to services as a dependency guardian. (See, e.g., In re Jessica C., supra,
151 Cal.App.4th at p. 483.) Nonetheless, we note our disagreement with the contention
that the juvenile court failed to consider E.M.’s sibling bond with A.M., who remained
under guardianship with H.H. and J.H. The record does not include any such objection
below, and, in any event, belies the argument.
E.M.’s close relationship with A.M. was repeatedly referenced in the evidence and
arguments below. The juvenile court, moreover, acknowledged that E.M. “adored” his
older brother A.M., and recognized that the Department asked it to balance the
seriousness of the problems that led to E.M.’s removal and the continuing nature of the
core problem over a significant period of time against the strength of the bonds between

19
E.M., the guardians, and the other members of their home, which necessarily included
A.M. The court carefully considered whether removing E.M. from the guardians’
custody and care in light of the significantly changed circumstances was in his best
interest, including how that might impact his relationship with the guardians and his
siblings. Recognizing the importance of these relationships, the court granted E.M.’s
request to have twice monthly visits with H.H. and J.H., and weekly visits with A.M.,
despite terminating the guardianship. The court was thus well aware of, and
appropriately considered, the importance of E.M.’s sibling bond with A.M. as well as his
bond with the guardians.
DISPOSITION
The juvenile court’s order terminating E.M.’s dependency guardianship with H.H.
and J.H. is affirmed.

/s/
KEITHLEY, J.*

We concur:

/s/
EARL, P. J.

/s/
MESIWALA, J.

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

20