Rita M. v. Superior Court

Filed 9/21/07 Rita M. v. Superior Court 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

PROCEEDINGS in mandate to review an order designating the specific placement of a dependent child after termination of parental rights. Cynthia A. Bashant, Judge. Petition denied.

Rita M. seeks review of a juvenile court order removing her foster son, J.J. from her home under Welfare and Institutions Code section 366.26, subdivision (n).^[1] She contends the court erred when it did not place J.J. in her care for adoption. She also contends the court should have granted her request for de facto parent status. We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

J.J. was born in November 2003. His mother, Shelly W., had a history of drug use.^[2] Two days after his birth, the San Diego Health and Human Services Agency (Agency) initiated dependency proceedings and placed J.J. in the foster care home of Rita M. The court adjudicated J.J. a dependent of the juvenile court and ordered a plan of family reunification. Shelly did not comply with her case plan. At the six-month-review hearing, the court terminated reunification services and set a hearing to select and implement a permanency plan for J.J. ( 366.26, subd. (c)(1).)

In May 2005 the court found that J.J. was adoptable, terminated parental rights, and referred him to the Agency for adoptive placement. In the Agency's prospective adoptive assessment, social worker Noreen Harmelink stated that J.J. was a happy, even-tempered, loveable baby who was bonded to Rita. He was comfortable and well-adjusted in her home. Harmelink reported Rita passed criminal and child welfare services (CWS) clearances, and had previously adopted a child.

In November 2005 Harmelink reported J.J. was "very bonded" to Rita and was a happy child without any emotional or behavioral concerns. In May 2006 Harmelink reported Rita initiated an adoptive home study and was in compliance with the permanent plan. Two and one-half year old J.J. was developmentally on target but appeared to need speech therapy. He was "well-adjusted, happy and attached to the caregiver and the other children in the home."

On June 23, 2006, social worker Linda Johansen asked the court to authorize J.J.'s removal from Rita's care. Johansen reported there had been 11 referrals to child protective services (CPS) concerning the care in Rita's home and it was unlikely the Agency would approve her adoptive home study. The Agency was concerned about the quality of care Rita was able to provide because she worked full-time and had six children in her home. On June 28 the court granted the Agency's ex parte application to remove J.J. from Rita's home. However, J.J. remained in Rita's home while the Agency looked for a new adoptive home for him.

Rita objected to J.J.'s removal from her home. She filed an application for designation as his prospective adoptive parent. On July 20, 2006, the day of the hearing, the Agency filed a supplemental report detailing its concerns about Rita's home. The Agency reported that after March 21 Rita did not send in the paperwork or forms necessary to proceed with the home study, and the study had been closed for noncompliance. The Agency did not intend to approve Rita's home study now or in the future due to its concerns about her home. The court denied Rita's application as J.J.'s designated prospective adoptive parent and authorized the Agency to remove J.J. from her home. Rita filed a petition for extraordinary writ.

The Agency placed J.J. in a new adoptive home on October 6, 2006. After his removal, the Agency placed two other foster children in Rita's home, a two-year-old child and an infant.

On October 25, 2006, this court held that Rita was not given sufficient notice to allow her to adequately respond to the Agency's concerns about the care of the children in her home. This court issued a writ directing the juvenile court to vacate its order finding Rita did not qualify as J.J.'s designated prospective adoptive parent, and to hold a new hearing regarding her application for prospective adoptive parent status and the Agency's request to remove J.J. from her home. (Rita M. v. Superior Court (Oct. 25, 2006, D049099) [nonpub. opn.].)

On October 26, 2006, the juvenile court set a hearing as directed by this court. Rita filed a request for de facto parent status. She stated she developed a bond with J.J. when she picked him up from the hospital, and she loved him like she loved her natural born children. In interim proceedings, the court appointed an attorney to represent her at the hearing under section 366.26, subdivision (n)(3)(B) (removal hearing). The court designated Rita as J.J.'s prospective adoptive parent but deferred consideration of her application for de facto parent status.

After several delays, the removal hearing was held on May 30 and 31, 2007. Harmelink testified she had been J.J.'s social worker since August 2004. J.J. was affectionate and playful with his current caregiver. He called her "mommy." Harmelink recommended J.J. remain with his current caregiver for adoption. She opined J.J. saw Rita as a "grandma figure."

Although Rita was sweet and loving to the children in her home, Harmelink was looking for "a higher standard of care" for J.J. Because of the number of foster children in Rita's care, Rita's home "was chaotic and had the feel of [a] small group home." Harmelink believed J.J.'s best interests would not be served by choosing that type of environment as his permanent home. Rita worked full-time and cared for six children, some of whom had special needs, and she could not provide the "one-on-one" attention J.J. deserved. J.J.'s visits with Rita were positive. He was happy to see her and his former foster brother. On several occasions, J.J. demonstrated some resistance to leaving the visits. However, in the past eight months, J.J. developed a strong attachment to his new caregivers. Harmelink believed it would be detrimental to J.J. to return him to Rita's care.

Harmelink was also concerned about the number of child abuse referrals the Agency had received about the care provided to foster children in Rita's home. Although most of the CPS referrals were "unfounded," which meant the investigator determined the allegations of abuse did not occur, Harmelink believed the referrals showed Rita had problems disciplining older children, and this would present a future risk to J.J.'s well-being in Rita's care. After J.J. was removed from Rita's home, the CPS received allegations that a foster child in Rita's care arrived at daycare, unwashed, with dirty clothes and a dirty diaper, and that Rita's adopted son was spanked and bruised. The allegations were determined to be inconclusive.

Rita testified she had been a licensed foster care provider since 1999. Her license had been placed on hold 12 or 13 times, beginning in 1999 or 2000. It was never revoked. Rita admitted using inappropriate discipline on a child in February 2000, and accidentally hit another child with a clothes hanger when she threw the hanger at a mouse. Other CPS referrals included her refusal to pick up a teenage foster child out after midnight, allowing a young child to sleep in a top bunk, allowing two children to share a bed, having debris and junk in her backyard and sending a child to school dirty. Rita adopted her son after the Agency had investigated eight child abuse referrals. After J.J. was removed, the Agency placed two foster children in her care.

Rita completed the paperwork to adopt J.J. on more than one occasion. The Agency did not do a home study. Rita's telephone calls to the adoption agency were not returned. Later, the Agency told her they would not approve her home for adoption because she had too many CPS referrals.

Other witnesses testified the two children who had alleged abuse in Rita's home had difficulties telling the truth and had made up other stories. Deborah Jordan, an Agency social worker for two of Rita's former foster children, opined that Rita was a wonderful caregiver and provided the children with the care and services they needed. Kesha T., a licensed foster care provider who helped with daycare in Rita's home, testified J.J. had a close relationship with Rita. He hugged and kissed her, and cried when Rita left.

The court stated it did not share the Agency's concerns about the number of CPS referrals, Rita's delay in obtaining speech therapy for J.J., J.J.'s identification of Rita as a grandparent rather than a parent, or the conditions in her home. The court reasoned the conditions in Rita's home were a result of the number of children placed there by the Agency, and a grandparent could raise a child as well as a parent. The court noted almost all the CPS referrals occurred before J.J. was placed in Rita's home, and later allegations were determined to be unfounded or inconclusive.

The court stated its focus was on J.J.'s current well-being and stability. Although the Agency's treatment of Rita was "horrendous," the evidence showed J.J. was in a stable home, and he was happy and bonded to the parent in that home. The court was concerned about Rita's delay in completing adoption paperwork. The court determined removing J.J. from his new home was not in his best interests. The court ordered the Agency to maintain J.J. in his current placement and to proceed with J.J.'s adoption by his new caregiver. It did not rule on Rita's application for de facto parent status.

Rita filed a petition for writ of mandate under California Rules of Court, rule 8.454.^[3] This court issued an Order to Show Cause, the Agency responded and the parties waived oral argument.

DISCUSSION

I

A

Rita contends this is a case of first impression and requests de novo review of the legal standard required to remove a child from the home of the designated prospective

adoptive parent under section 366.26, subdivision (n)(3)(B). Rita asserts the court erred when it focused on J.J.'s interest in not being removed from his new placement rather than on his interest in not being removed from the home of his designated prospective adoptive parent. Alternatively, Rita argues the court abused its discretion when it based its determination of J.J.'s best interests on the bond he had developed with his new foster family, and did not consider other appropriate criteria.

The Agency contends the proper standard of review of a placement order under section 366.26, subdivision (n)(3)(B) is abuse of discretion. The Agency asserts the court properly considered J.J.'s current circumstances when it determined that moving J.J. from his new home was not in his best interest.

Judicial determinations affecting the custody of dependent children are generally committed to the sound discretion of the juvenile court, and a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (In re Stephanie M . (1994) 7 Cal.4th 295, 318.) However, a trial court's discretion is guided and controlled by fixed legal principles and exercised in conformity with the spirit of the law. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.) We therefore review applicable legal principles de novo, but apply a deferential standard of review to the court's exercise of discretion and resolution of disputed fact. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800-801.)

B

After the court has terminated parental rights and selected adoption as the child's permanency plan, section 366.26, subdivision (n) permits the caregiver of a dependent child to petition the court for designation as the child's prospective adoptive parent. ( 366.26, subd. (n)(1).) The statute confers on a designated prospective adoptive parent standing to petition the court for a hearing on whether it is in the best interest of a child to remove that child from the caregiver's home. ( 366.26, subd. (n)(3)(B); Wayne F. v. Superior Court (2006) 145 Cal.App.4th 1331, 1337-1338.)

Unless there is an immediate risk of physical and emotional harm to the child, the child may not be removed from the home of the designated prospective adoptive parent unless the court finds that removal is in the child's best interest. ( 366.26, subds. (n)(3)(B), (n)(4); rules 5.727, 5.728.) In other words, except in an emergency situation, a hearing must be held before the child is removed from the home of a prospective adoptive parent. The Agency has the burden to prove by a preponderance of the evidence that the proposed removal is in the best interest of the child. (Rule 5.727(g).)

Rita contends that on remand the court should have limited its inquiry to whether removal from her home was in J.J.'s best interest. ( 366.26, subd. (n)(3)(B).) She maintains that the court, in explicitly rejecting the Agency's reasons for removing J.J. from her home and basing its decision on J.J.'s current circumstances, implicitly found that J.J.'s removal from her home had not been justified. She argues in view of the court's reasoning and the legal standard under 366.26, subdivision (n)(3)(B), J.J. must be returned to her care without consideration of his current circumstances.

We are not persuaded by Rita's argument. We recognize this appeal comes to us after a remanded hearing on removal under section 366.26, subdivision (n). However, when the court is called upon to determine the best interest of the child, the court must consider the current status of the child. (In re Stephanie M., supra, 7 Cal.4th at p. 322.) Reviewing courts have recognized when dependency proceeding are protracted in all likelihood the child's circumstances will have changed. (Ibid.; In re Marriage of Carney (1979) 24 Cal.3d 725, 741; In re S.D. (2002) 99 Cal.App.4th 1068, 1083; In re Arturo A. (1992) 8 Cal.App.4th 229, 244.)

Appellate proceedings do not stay childhood. A reviewing court "cannot simply unwind a juvenile case and presume that circumstances cannot have changed in the interim." (In re S.D., supra, 99 Cal.App.4th at p. 1083.) A reversal of a prior order cannot possibly return the case to the circumstances that were present at the time of the prior order. (In re Arturo A., supra.) A finding that the court would not have removed the child from the prospective adoptive home at an earlier proceeding does not dispositively establish that, at the time of a remanded hearing, the return of the child to the prospective adoptive parent is in the child's best interest. (Cf. In re Stephanie M., supra, 7 Cal.4th at p. 322.)

The concept of a child's best interest "is an elusive guideline that belies rigid definition. Its purpose is to maximize a child's opportunity to develop into a stable, well-adjusted adult." (Adoption of Michelle T.(1975) 44 Cal.App.3d 699, 704; In re Ethan N. (2004) 122 Cal.App.4th 55, 66.) A primary consideration in determining the child's best interest is the goal of assuring stability and continuity of care. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) " 'When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' " (Ibid., quoting Burchard v. Garay (1986) 42 Cal.3d 531, 538.)

Here, the trial court recognized Rita had suffered an injustice, but correctly determined the proper inquiry was whether removal from Rita's home was in J.J.'s best interest in view of his current circumstances. (Ibid.; In re Arturo A., supra, 8 Cal.App.4th at p. 244; In re S.D., supra.) We conclude the trial court did not abuse its discretion when it determined at that time it was in J.J.'s best interest to remain in his current home. (In re Stephanie M., supra, 7 Cal.4th at p. 322; In re S.D., supra, 99 Cal.App.4th at p. 1083.)

The record shows J.J. was thriving in his current placement. He was happy and well-adjusted, and was attached to the caregiver and her family.^[4] The relationship between J.J.'s and the caregiver's seven-year old son was "like brothers." J.J. was loving and affectionate with the caregiver, and called her "mommy." The new caregiver had an approved adoptive home study and signed placement papers in April 2007. She told the social worker that J.J. felt like a natural part of her family and she loved him very much. She planned to allow contact between J.J. and Rita, Rita's son, and J.J.'s two biological siblings "a few times per year."

Rita argues the court gave improper weight to J.J.'s bond to his new caregiver and did not consider other important criteria in determining his best interest. Rita maintains she established a familial relationship with J.J. and their relationship should be accorded the same weight as would be given to a biological relationship. She also asserts the court did not consider J.J.'s relationships with his two biological siblings he visited weekly while in Rita's care, but had not seen since he was removed from her home.

We recognize the court might have emphasized other factors in determining J.J.'s best interest. Had it done so, it might have come to a different conclusion about his removal from Rita's care. However, we cannot conclude the court abused its discretion when it placed special weight on not disrupting J.J.'s current placement. At the time of the hearing, J.J. was a three and one-half year old child who had been in foster care since he was two days old. He had been freed for adoption for two years. The record shows J.J. was happy, well-adjusted and bonded to his caregiver and family. The placement met his primary needs for stability, security and continuity of care. A trial court properly focuses on those needs when it determines the best interest of a dependent child. (In re Stephanie M., supra, 7 Cal.4th at p. 317.)

When the court has ordered a permanent plan of adoption for a child, it must ensure the adoption of the child is completed as expeditiously as possible. ( 366.3, subd. (a).) J.J. was entitled to the benefit of the security of a stable, permanent home with a committed, capable adoptive parent. (See In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) The court reasonably determined that maintaining J.J.'s current, successful placement with a caregiver with an approved home study would expedite the child's adoption and further his interest in stability, security, and continuity of care. ( 366.3, subd. (a); In re Stephanie M., supra, 7 Cal.4th at p. 317.)

We conclude the court applied the correct legal principles when it determined it was required to consider the child's current circumstances at the remanded removal hearing. (In re Stephanie M., supra, 7 Cal.4th at p. 325; In re S.D., supra, 99 Cal.App.4th at p. 1083.) Substantial evidence supports the court's findings J.J. was happy and well-adjusted in the home of his caregiver, and the home was stable and secure. The court drew a reasonable inference that disrupting J.J.'s stability was not in his best interest. The court did not abuse its discretion when it placed great weight on J.J.'s stability and well-being in his current placement, and acted to expedite his adoption by a competent, committed caregiver. ( 366.3, subd. (a); In re Stephanie M., supra, at p. 317.)

II

Rita contends the court erred when it did not rule on her application for de facto parent status, and argues the court should have granted her status as a de facto parent. Without citation to authority, the Agency argues Rita forfeited this issue on review. On the merits, the Agency maintains Rita should not have been granted de facto parent status.

Our review of the record shows that neither party raised the issue of the court's failure to rule on Rita's status as de facto parent before the close of hearing. A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court. (Civ. Code 3515, 3516; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 390, 391 at pp. 440-442; see In re K.D. (2004) 124 Cal.App.4th 395, 402-403; In re Kevin S. (1996) 41 Cal.App.4th 882, 885.) Rita did not bring to the court's attention its failure to rule on her application for status as J.J.'s de facto parent. Had she done so, the court could have made a determination on the merits of her request. Because she did not do so, Rita forfeited the right to assign error on review.

DISPOSITION

The petition is denied.

HUFFMAN, Acting P. J.

WE CONCUR:

McINTYRE, J.

IRION, J.

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^[1] Statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] The identity of J.J.'s biological father was not determined.

^[3] Further rule references are to the California Rules of Court.

^[4] The caregiver's parents also lived in the household.