In re E.R.

















Filed 7/10/13
In re E.R. CA1/1

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.









IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST
APPELLATE DISTRICT



DIVISION
ONE






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In re E.R., et al., Persons Coming Under the Juvenile Court Law.
DEL NORTE COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. SARAH R., Defendant and Appellant.	A137569 (Del Norte County Super. Ct. Nos. JVSQ-11-6055, JVSQ-11-6056

Following
termination of her parental rights
after a hearing held pursuant to Welfare and Institutions Code section 366.26,href="#_ftn1" name="_ftnref1" title="">[1] S.R. (mother)
filed this appeal, seeking correction of the court’s written order
memorializing the oral pronouncement of judgment at the section 366.26 hearing,
and requesting we direct the juvenile court to strike the orders and findings
in paragraph Nos. 14 and 16 of Judicial Council Forms, form JV-320, which state
that posttermination visitation by mother would be detrimental to the minors
E.R. and L.R., and require that the minors be allowed open contact with their
sister, D.C. Having reviewed the record,
we conclude mother’s contention has merit and shall grant her request.

Background

This
section 300 juvenile dependency case
involves mother’s three minor daughters, D.C. (born 1996), E.R. (born 1998),
and L.R. (born 1998). We recently
chronicled the history of respondent Del Norte County Department of Health and
Human Services’ (Department’s) involvement with the family in >Sarah R. v. Superior Court (Dec. 6,
2012, A136491) [nonpub. opn.] (Sarah R.),
which we incorporate by reference. In >Sarah R., we concluded the juvenile court’s
finding that the Department provided or offered mother reasonable services was
supported by substantial evidence and, as a consequence, denied mother’s
petition for an extraordinary writ
challenging the order setting a hearing under section 366.26. We pick up the procedural and factual history
of the case after that point.

On
November 5, 2012, the Department filed and served notice the section 366.26
hearing would be held on January 4, 2013.
The Department filed its section 366.26 report (report) on January 2,
2013, recommending that E.R. and L.R. remain dependents of the court, parental
rights be terminated and adoption be selected as the permanent plan. The report states E.R. and L.R. are freshmen
in high school and both have a 4.0 grade point average; they are adjusting well
to foster care and have not required counseling, although both are aware
counseling is available should they need it.
The current foster parents to E.R. and L.R. are willing and able to
adopt the children.

Regarding
contacts between mother and the children, the report states mother had 22
scheduled visits with E.R. and L.R. and attended 10 of them; five were
cancelled due to illness or failure to appear by mother; seven of the 22
scheduled visits were between mother and E.R. only, and mother attended five of
those. The last visit mother had with
either of the children was on November 6, 2012.

The
Department recommended “no visitation at this time between the biological
parents and the children. Neither
[mother] nor [father] has been consistent in visiting with the children or in
asking for visits. The prospective
adoptive family does not wish to have postadoption contact with the birth
parents but are willing to allow the children continued contact with other
family members and are willing to consider contact with the parents if the
children request it.”

In
regard to assessment and evaluation, the report states E.R. and L.R. “have
matured and thrived in their foster placement” and “have become attached to
their foster parents and wish to be adopted by them. The foster parents and the children have
developed a loving relationship and the children are happy.” Also, the report notes whereas E.R. and L.R.
state they love their biological parents, they “are also realistic enough to
know that they can’t live with them.
[E.R. and L.R.] have expressed a wish to be able to maintain contact
with their mother and father but not on a regular basis.”

Mother
was represented by counsel at the section 366.26 hearing but did not appear in
person. The court stated: “I’ve read and
considered the report as to each child.
And I will announce at the outset that I am prepared to adopt the
recommendation. Does anybody wish to be
heard?” After counsel for mother and
counsel for the minors replied in the negative, the court announced its
findings: “The children’s out-of-home
placement is necessary and appropriate.
The agency has complied with the case plan. The services provided to the children have
been adequate. Court finds the children
. . . were actively involved in the development of . . .
their plan. And they are age appropriate
and developmentally appropriate. Clear
and convincing evidence shows that [it is] likely the children will be
adopted. Adoption is the permanent
placement goal for both children. [It
is] ordered that the parental rights of [mother and father] are terminated. The children are . . . ordered
placed for adoption. All prior orders
not modified by this Court remain in full force and effect.”

After
the court set the matter for a six-month post-permanency review but prior to
the conclusion of the hearing, counsel for D.C., E.R. and L.R.’s older sister,
stated she understood the adoption would be open with regard to D.C. and “these
three young women will be permitted to have contact with each other. And I believe that is what these two girls
would like, and [that is] very much what my client would like.” Social worker Farren responded, “It is in the
adoption assessment. They do talk that
the girls want to maintain contact.”
Counsel for D.C. added, “My understanding is [it is] agreeable with the
adoptive parents, and [they are] nodding their heads.” The court stated, “Everybody is on
board. Perfect deal. Good. But I’m not addressing
that. . . . [I am] just
making a finding that the plan is for the children to be adopted.” Thereafter, the matter concluded. This proceeding was handled by Judge Leonard
LaCasse.

On
January 11, 2013, the court filed a Judicial Council Form, form JV-320 “Orders
Under Welfare and Institutions Code sections 366.24, 366.26, 727.3, 727.31”
(order), as submitted by counsel for the Department, in regard to each of the
minors. In both orders, one of the boxes
under part b. of paragraph No. 14 is checked, specifying that “Visitation
between the child and . . . sibling, [D.C.,] is scheduled as follows
(specify): The minor will be allowed
open contact with her sister.”
Furthermore, part c. of paragraph No. 14 is checked, providing that “Visitation
between the child and (names):
[Mother] and [Father] is detrimental to the child’s physical or emotional
well-being and is terminated.” Parts b.
and c. of Paragraph No. 16 are identical to those of paragraph No. 14 and are
completed in the same manner.
Apparently, Judge LaCasse, the judicial officer who handled the 366.26
hearing and made the findings and orders terminating parental rights, was not
involved in the written order of January 11, 2013. That is the order appellant mother is now
appealing. This January order was signed
by Judge Follett who had not presided over prior matters in this case. There is no evidence he was personally
familiar with the issues in the case or that he consulted with Judge LaCasse
before he checked paragraph Nos. 14 and 16 which are now attacked.

Discussion

Mother
contends the written finding terminating her visitation with minors as
detrimental to their physical or emotion well-being, set forth in paragraph
Nos. 14 and 16 of the Judicial Council Forms, form JV-320 (JV-320), is
inconsistent with the court’s oral pronouncement of its findings at the section
366.26 hearing and should be stricken.
The Department, on the other hand, contends any inconsistency between
the oral and written orders amounts to harmless error, and moreover, that
striking the order terminating visitation would not be in the best interests of
the children. We conclude mother has the
better argument.

The
Judicial Council has adopted the JV-320 form for mandatory use by courts for
orders under section 366.26. (See Cal.
Rules of Court, rule 1.31(b)-(c).)
Section 366.26 lists several alternative permanent placement plans. (§ 366.26, subd. (b)(1)-(6).) In regard to those alternatives, at the
section 366.26 hearing the court “shall make findings and orders in the
following order of preference,” proceeding from termination of parental rights
and placement for adoption as the first preference, to placement in long-term
foster care as the least desirable preference.
(Ibid.) Moreover, in choosing among these
alternatives, the court must also determine whether adoption and/or termination
of parental rights is in the best interests of the child. (See § 366.26, subd. (c).) Form JV-320 tracks the alternate plans
described under section 366.26 and the findings necessary under each
alternative, permitting the court, by checking the appropriate boxes, to
efficiently record in a clear, organized manner the findings and orders entered
at the section 366.26 hearing, as required by statute.

Here,
the court selected termination of parental rights and placement of the minors
for adoption as the preferred permanent plan, as described in section 366.26,
subdivision (b)(1). Furthermore, the
court found by clear and convincing evidence that it is likely the children
will be adopted. Having found it likely
the children will be adopted, the court was statutorily required to terminate
parental rights unless certain special circumstances existed, none of which
pertain here. (See § 366.26, subd.
(c)(1).)

Tracking
these findings under form JV-320, the court checked the box at paragraph No. 8,
part a. of the order, stating, “There is clear
and convincing evidence that it is likely the child will be adopted.” Next the court checked the appropriate boxes
at paragraph No. 9 of the order, thereby terminating the parental rights of
mother and father. Paragraph No. 9 also
states, “The adoption is likely to be finalized by (date): July 26, 2013.” The
last line of paragraph No. 9 states: “(>If item 9 is checked, go to item 17.)”

In
short, paragraph Nos. 8 and 9 of form JV-320 encompass the juvenile court’s
oral pronouncement of the findings at the section 366.26 hearing as they relate
to the permanent placement selected for the minors. Accordingly, the court should simply have
left blank the boxes in paragraph Nos. 10 through 16, as those pertain to other
permanent placement options described in section 366.26.href="#_ftn2" name="_ftnref2" title="">>[2] Thus, the court’s findings and orders under
paragraph Nos. 14 and 16 regarding visitation between the minors and their
mother, and visitation between the minors and their sister, should be
stricken. Having terminated mother’s
parental rights, no further findings and orders in regard to mother’s
visitation were required; moreover, the court’s findings and orders in
paragraph Nos. 14 and 16 regarding open contact between the minors and their
sister were premature. (See § 366.29
[governing postadoptive sibling contact, and stating in pertinent part, “With
the consent of the adoptive parent or parents, the court may include in the> final adoption order provisions for the
adoptive parent or parents to facilitate postadoptive sibling contact>.”], italics added.)

Disposition

The
juvenile court’s findings and orders terminating parental rights upon clear and
convincing evidence the minors are likely to be adopted are hereby
affirmed. The matter is remanded solely
for the purpose of permitting the juvenile court to strike the superfluous
findings under paragraph Nos. 14 and 16 of its orders.






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	__________________________________ Dondero, J.
We concur: __________________________________ Margulies, Acting P. J. __________________________________ Banke, J.