Guardianships

1. Guardianships An Overview February 2013

2. Why Guardianships? • The Legal Aid Society champions the rights of low-income caregivers who want to provide a stable and nurturing home for children. • The Legal Aid Society and our pro bono attorneys are the conduit to a complicated legal process for these caregivers. • The need: over 5,000 children in San Mateo County live with someone who is not a parent. By assisting these caregivers you are helping to break the cycle of negative parenting for these children.

3. Probate Department of the Superior Court GUARDIANSHIPS CONSERVATORSHIPS (Minors) (Adults) DECEDENT’S ESTATES (Probates) TRUSTS

4. VOCAB: THE PARTIES Guardian Minor (ward, child) Parent(s) Grandparents Siblings Petitioner: A transitory term for any guardianship matter Distinguish: Civil – Plaintiff and Defendant Family law – Petitioner and Respondent

5. GUARDIANSHIPS PERSON (custody, food, clothing & shelter) ESTATE (inheritance, life insurance) PERSON & ESTATE

6. Grounds for Guardianship • Showing required: “necessary”or “convenient” Prob. Code § 1514(a) Probably preponderance of the evidence. • If a parent objects: must show parental custody would be detrimental and living with guardian is in the child’s best interest by clear and convincing evidence. • Prob. Code § 1514(b), Fam. Code §§ 3020 et seq & 3040 et seq.

7. New Procedure if Parental Objection • New legislation (Prob. Code § 1512(b), effective Jan. 1, 2013) allows the Probate Judge to refer a case to the Juvenile Court for consideration of the filing of a dependency action if there are allegations of abuse or neglect and the parent has not signed a consent.

8. Temporary Guardianships While CPS Is Investigating • The new law also provides that the probate court can appoint a temporary guardian pending the investigation and decision about whether or not a dependency case will be filed.

9. Temporary Guardianships Probate Code § 2250 • Available for emergency situations only, pending the hearing on the general guardianship appointment. • Usually no long-term temporary guardianships. May be necessary when the judge has referred the case to the juvenile division pending the investigation.

10. If the Juvenile Court Takes Jurisdiction • The case will be dismissed in probate court and you will substitute out of the case. • In a dependency case the court provides attorneys for the parents and minor and our pro bono attorneys are not involved in that proceeding.

11. Immigration Status Not a Bar for Proposed Guardian • Another new law codifies that “immigration status will not disqualify a relative from receiving custody, being appointed a probate guardian, or having a dependent child placed with him or her.” • In addition, an ID card or passport from a foreign country can be used to perform a criminal background check.

12. Guardianship of the Person Gives a non-parent the right to determine life decisions: medical, domicile, school, social contacts and religion. (See Probate Code §§ 2351-2353.)

13. What does a guardianship do? • Transfers custodyof a child to a non-parent. • Suspends, but does not terminate, parental rights. • Provides on-going court supervision.

14. When does a guardianship end? A guardianship of the person is on-going until: • The child turns 18 • The child is emancipated • Marriage • A court order terminates it Once appointed, the guardian must continue.

15. NOTES……. • Parent retains the duty to support ($$) • Guardian has the right to obtain child support • Can apply for welfare on behalf of the minor • Guardianship is not permanent. Parent can petition to terminate (and regain custody)

16. Judicial Council Forms • Judicial Council forms are mandatory to use in a guardianship case (any attachments will be on pleading paper). • Full siblings can be included in one Petition but not half-siblings. • Co-guardians can be included in one Petition but you must prepare separate Guardianship Screening forms for each proposed guardian.

17. Use of Confidential Forms • Certain forms used in the guardianship proceeding are confidential. • They are not filed in the public records and no one is allowed to see them except the court, the court investigators and the parents.

18. What is the purpose of the confidential forms? • There is potentially personal, embarrassing or damaging information relevant to the issue but unnecessary for public scrutiny. • It is prudent to present this information to the court in a way that is not damaging to the child. The use of the confidential forms will accomplish the goal of protecting the child.

19. What kind of case do you have? • Initial guardianship • Contested or Uncontested • Successor guardianship • Contested or Uncontested • Termination of guardianship • Contested or Uncontested • Visitation Orders Contested or Uncontested

20. Variations on the General Guardianship • Temporary Guardianships - emergency situation • Joint Guardianships - terminally ill parent • Successor Guardianship - passing the role onto someone else • Termination of Guardianship - defending an existing guardianship

21. Successor and Co-guardians • If your client is a successor or a new co-guardian you are starting over with a new Petition, however, you can use the existing case number. • A new Petition and all other forms required for a general guardianship must be prepared and filed.

22. THE BASICS • Prepare documents • Meet with your client-review and sign documents • File documents • Serve documents • Prepare Order and Letters • Court Hearing • Serve Order • Substitute out • Send Legal Aid Resolution Form

23. Prepare and File Initial Forms • Petition for Appointment of Guardian (GC-210) • Guardianship Petition-Child Info. Attachment (GC-210 CA) • Confidential Guardianship Screening Form (GC-212) • Notice of Hearing (GC-020) • Duties of Guardian (GC-248) • Waiver and Consent (optional: but get them if you can!) (GC-211) “GC” = Judicial Council forms DO NOT STAPLE ANY FORMS !!!

24. More Initial Documents • Guardianship Declaration Confidential (PR-18) • UCCJEA (GC-120) • Notification to Court of Addresses (PR-2) • IF ELIGIBLE: Request to Waive Court Fees (FW-001) and Order (FW-003) • ICWA-010(A) and ICWA-020 • “PR” is a Local Form (found on the court website)

25. Fees and Fee Waivers • If your client is on any kind of government benefits they are automatically entitled to a fee waiver. • There is a longer form and an ex parte appearance required if your client is working and is asking for a fee waiver. • Even if client has to pay filing fee ($225.00 for Petition of the Person Only) the additional investigation fee ($850) can be waived at the court hearing.

26. If Fee Waiver Requires an Ex Parte Appearance • You must call the Probate Investigators Office at 650-363-4351 and let them know that you are coming in with a fee waiver request. • Ex Parte hours are from 2:00-3:00 p.m. every day.

27. REDUCED CLERK’S OFFICE HOURS!!! (for filing court papers) • Due to State Budget cuts effective 2/4/2013 the clerk’s office hours for civil, family law, probate and juvenile are: Monday-Thursday 8:30 a.m. – 2:00 p.m. Friday 8:30 a.m. – 12:00 p.m.

28. ICWA – Indian Child Welfare Act • ICWA information form (ICWA-101(A)) • Must be attached to the Petition and is used to ensure that an inquiry has been made as to whether or not the minor is a child with any Native American ancestry.

29. Special Immigrant Juvenile Status (SIJS) • Make another inquiry to determine if the minor was born outside of the United States. • If the minor is here without immigration status he/she may be eligible for a green card if the case meets certain criteria. • Legal Aid will flag these cases for you and provide additional training materials to assist with this important remedy.

30. UCCJEA Uniform Child Custody Jurisdiction and Enforcement Act (Form FL-105/GC-120) • Usually used in family court • Complete carefully! • Determines child’s “home state” (do not file a Petition unless the child has been in CA for at least six months)

31. DISCRETION • Plead only what you need to get the result that you want. • If there is consent by the parent(s) make sure you state that. • Excessively long declarations won’t be read. • You, the attorney, can turn an uncontested case into a contested case. • The facts as told to you by your client may be embellished.

32. Probate Court Investigations • ALL guardianship cases will be assigned to a probate court investigator (for relative petitions) or to Human Services Agency (for non-relative petitions). • The Probate Investigator’s office is given a copy of the Petition within 1-3 days after it is filed. • The Petition will be assigned to one of the investigators in the office.

33. Providing Information to the Court • Make sure that you have listed all relevant relations, including their names, addresses and even emails so that the probate investigator/CPS investigator will be able to contact the parties and be able to prepare a report in a timely manner. • You can even call the investigator if you get this information after the filing……this is not considered an ex parte communication.

34. Probate Judge May Refer Case to Juvenile Division and CPS • The Judge has discretion to refer a case to the Juvenile Court Department if there is parental objection to the Petition and/or if there are allegations of abuse and neglect against the parent. • This is a new procedure and so far, all of our cases have been sent back to Probate for a guardianship hearing after a written report by CPS has been given to the court.

35. What will the Investigator do? • They will contact the proposed guardians and schedule a home visit. • They will interview the proposed guardians, the minor (if of school age) and the parents. • They will also interview anyone who may have filed a written objection to the petition.

36. Criminal History Check • They will also do a criminal history check and a child abuse index clearance for anyone living in the home who is over the age of 16. • They will prepare a report of their findings that becomes part of the case file. A probate court investigator will appear at all of the guardianship hearings. • There is a $850 fee that can be waived or deferred.

37. Non-Relative Guardians • Probate Code § 1540 et. seq. • Additional pleading requirements (§ 1541) • Notice and Petition to Director of Social Services—Sacramento and local agency. • Report and recommendation on suitability of proposed guardian.

38. Serving the Documents • Mother: Personal Service • Father: Personal Service • Grandparents: Service by Mail • Siblings: Service by Mail • Minor (over age 12): Personal Service • Human Services Agency: Service by Mail • State Institution • Veteran’s Benefits • Native American Ancestry PREPARE AND FILE PROOF OF SERVICE

39. Can’t Find a Parent? • Duty to inquire from client (even if the parent is in another country) • Independent Search • Telephone book, last known address, last known employer • Internet, Relatives • Jails and prisons • DMV • Due Diligence Declaration(s)

40. Prepare the Order and Letters • Order Appointing Guardian (GC-240) • Delivered to Court one week prior to hearing • An Original and 2 copies • Letters of Guardianship (GC-250) • Client signs on day of hearing

41. 7 Days Before Court • Verify that your Order is at Court. • Proofs of Service are done and filed. • Human Service Agency Release in file. • Expect to receive a Probate Court Investigation Report • Check on-line for oppositions. • If this is your first hearing go to the courthouse and do a dry run.

42. Review Court Investigator Report • Discuss recommendations with client • Consider whether to respond to factual inaccuracies, if any • If responding in writing, draft a pleading entitled Confidential Declaration in Response to Court Investigator Report. Start the text of the declaration on page 2. File at least 2 court days in advance. Courtesy copy of court.

43. Day Before Court Hearing • Check Tentative Rulings online or by phone • Verify which Judge is hearing your case - www.sanmateocourt.org • CALL CLIENT AND REMIND THEM OF COURT HEARING DATE AND WHERE YOU WILL MEET THEM!! • Remind client to dress respectfully and to bring the minor.

44. Day of Court Hearing • Meet client and the minor at least 15 minutes prior to hearing which starts at 9:00 a.m. Check electronic screens for court assignment. • Go to the courtroom with your client • NO TEXTING IN THE COURTROOM! • Caution client – no talking, gum, hats, sunglasses on the head, grimacing, etc.

45. Court Hearing • Seat your client in the gallery; give your biz card to Bailiff with your line number printed on the back. • Return to client until your case is called • Walk to the counsel table with your client • It is customary to remain standing • Announce your name and who you represent • “Margaret Martin appearing with Mary Jones” • Do not address the Court from the audience. Wait until you pass the “Bar”

46. Court Hearing Continued... • Wait to be addressed by the Court. Answer questions. • If asked “Anything to add?” usually say no • [HOWEVER, report any change of circumstances.] • Judge will recite “findings” and sign order • Clerk gives original Order to the attorney • You say: “Thank you your Honor” & smile • Exit the courtroom

47. After Court Hearing • Ask the client if they have any questions. • Have client sign the Letters of Guardianship. • Take original Order to Clerk’s office on ground floor. • Clerk files original Order, returns copies to you. • Give Clerk original Letters of Guardianship. • Clerk “issues” the Letters of Guardianship. • Tell Clerk you want to purchase certified copies of the Letters.

48. Confer with Client • Give client certified Letters • Remind client to carry Letters on his/her person at all times • Client should give a copy to daycare, doctor, school • Client must report any change of address to the court • Client must allow reasonable visits w/parents • A Status Report must be filed in one year

49. Closing the Case • Serve by mail: Order Appointing Guardian. • Prepare Substitution of Attorney to be signed by client, served, and filed with the court. • Prepare and email Legal Aid Pro Bono Resolution Form to Janet B. Seldon, jbseldon@legalaidsmc.org

50. Contested Petition • Objections (written) by other family members or parents are due 5 court days prior to hearing by Local Rule. • Pro Per parties are allowed to make an oral objection on the day of court.