Ramon S. v. Super. Ct.
Filed 1/15/14
Ramon S. v. Super. Ct. CA5
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
RAMON S.,
Petitioner,
v.
THE SUPERIOR
COURT OF KERN COUNTY,
Respondent;
KERN COUNTY
DEPARTMENT OF HUMAN SERVICES,
Real Party in Interest.
F068178
(Super. Ct. Nos. JD128017, JD128018)
GABRIELLA R.,
Petitioner,
v.
THE SUPERIOR
COURT OF KERN COUNTY,
Respondent;
KERN COUNTY
DEPARTMENT OF HUMAN SERVICES,
Real Party in Interest.
F068179
(Super. Ct. Nos. JD128017, JD128018)
LESLIE S. et
al.,
Petitioners,
v.
THE SUPERIOR
COURT OF KERN COUNTY,
Respondent;
KERN COUNTY
DEPARTMENT OF HUMAN SERVICES,
Real Party in Interest.
F068180
(Super. Ct. Nos. JD128017, JD128018)
RUBEN S. et
al.,
Petitioners,
v.
THE SUPERIOR
COURT OF KERN COUNTY,
Respondent;
KERN COUNTY
DEPARTMENT OF HUMAN SERVICES,
Real Party in Interest.
F068181
(Super. Ct. No. JD128017, JD128018)
THE COURT
ORIGINAL
PROCEEDINGS; petition
for extraordinary writ review.
William D. Palmer, Judge.
David
Duket, for Petitioner, Ramon S.
Keenan
S. Perkins, for Petitioner, Gabriella R.
Konrad
Moore, Public Defender and Valerie Renae Harrison, Deputy Public Defender, for
Petitioners, Leslie S. et al.
Law
Office of Glenn E. Stern and Glenn E. Stern, Jan T. Aune, and Richard Coberly,
for Petitioners R.S. et al.
No
appearance for Respondent.
Theresa
A. Goldner, County Counsel, and Kelley
D. Scott, Deputy County Counsel, for Real Party in Interest.
-ooOoo-
INTRODUCTION
Petitioners seek
an extraordinary writ (Cal. Rules of Court,
rule 8.452 (rule 8.452)) from the juvenile court’s orders issued at a combined Welfare
and Institutions Code section 366.21, subdivision (f) and
court denied the section 388 petition and set the matter for a hearing pursuant
to section 366.26. The petitioners are
the potential adoptive parents, Mr. and Mrs. S.; Ramon S. (father); Gabriella
R. (mother); and the children,
Leslie and Laylah S., who were born in January 2011.
and orders of the juvenile court.
FACTS AND PROCEEDINGS
Early Proceedings
On
January 9, 2012, the Kern County Department of
filed a petition pursuant to section 300 alleging that mother had left Leslie
and Laylah with their maternal grandmother on December 31, 2011, despite being
informed by the grandmother that she could not care for the children. Mother had been leaving the children with the
grandmother on a regular basis and failed to return for several days. Mother’s whereabouts were unknown. The petition further alleged that the
children were at risk due to mother’s methamphetamine and marijuana use, mother
had recently tested positive for marijuana, and mother had left the children
with the grandmother without provisions for support. The petition stated mother was unable to care
for her children. The children were
detained on January 11, 2012.
On
February 2, 2012, the children were placed with their current foster parents,
Mr. and Mrs. C. At the jurisdiction
hearing on February 16, 2012, the court found the allegations in the petition
true after the parents waived their rights to a contested hearing. Father, who was being housed in juvenile
hall, was permitted visits twice a month.
Mother was not
present at the March 20, 2012, disposition hearing. Father was present but in custody. The juvenile court ordered that the parents
were to receive reunification services for a period not to exceed six
months. The parents were ordered to
attend parent training and substance abuse counseling and submit to random drug
testing. Mother was also ordered to
attend child neglect counseling. The
court ordered supervised visitation to occur weekly for one hour.
The social study
prepared for the September 20, 2012, review hearing pursuant to section 366.21,
subdivision (e), noted that mother was living in a sober living facility. Father was incarcerated in state prison and
had been incarcerated during the entire reunification period. The department received a letter from father
on September 10, 2012, stating that he no longer wished to attend any
dependency court hearings. Father waived
his right to visitation with the children during his incarceration.
On June 29,
2012, mother entered a residential substance abuse counseling program and
completed it in 45 days. She was
referred to an outpatient substance abuse counseling program. Between April 2012 and July 2012, mother had
two positive drug tests (one in April, the other in mid-June), two failures to
test that were presumed to be positive, and four negative drug tests. Mother missed two visits with the children
due to illness and showed love and affection toward the children.
The
social worker noted that mother had made only minimal progress with her case
plan. Although she completed parenting and
neglect classes and a 45-day residential treatment program, mother had two
positive and two presumptively positive drug tests. Mother was disrespectful in the sober living
facility and was removed from the program several times. Mother’s visitations were regular. The social worker recommended reunification
services for father be terminated and that they be continued for mother. At the review hearing on September 20, 2012,
the juvenile court followed the recommendations of the department, terminating
reunification services for father and continuing them for mother.
On
October 23, 2012, mother told the social worker that the girls were in a good
home and was sure the foster parents loved them and the girls were attached to the
foster parents. Mother stated being with
the foster parents was the best thing that could happen to the girls and
because mother loved her children, she did not want them to suffer by her side. Mother was not sure that if the girls returned
to her care, she would be able to advance personally and provide for them because
mother had no family support.
The foster
parents were able to place the children in the Early Start program in a local
elementary school on June 28, 2012. Mrs.
C. reported that the girls love the program.
Early 2013
On
January 11, 2013,
name="_ftnref4" title="">[3] mother explained that she
wanted what was best for her daughters and was hopeful that Mr. and Mrs. C.
would adopt them. Mother observed that
the foster parents were the only parents the girls had known. Mother stated that she could see how much
love the girls have for Mr. and Mrs. C.
On January 17,
mother called Social Worker Hernandez-Toro to tell her that a great uncle, R.S.,
was interested in placement. On January
22, the social worker learned that Mr. and Mrs. S. had never met the children
and had no established relationship with them, but they were interested in
adopting the children. The social worker
had a conversation with Mr. S. after obtaining consent to discuss the case with
him. Mr. S. explained that he and his
wife were interested in adopting the children because they had just learned
that Mrs. S. could no longer have children.
Mr. S. believed he and his wife could provide a loving home for the
girls. A visit was scheduled between Mr.
and Mrs. S. and the children on January 29.
Mother sent an email to Mr. and Mrs. S.’ attorney stating that she still
had parental rights, she thought her daughters should be placed within the
family, and she was interested in a voluntary relinquishment to Mr. S.
Social Worker Hernandez-Toro
visited Mr. and Mrs. C. on January 24, and found Leslie and Laylah dressed
clean and looking well. There were no
signs of abuse or neglect. Mr. and Mrs.
C. had just moved from an apartment to a house.
Mrs. C. stated everyone loved the new home and the girls had more room
to play. Mrs. C. reported that everyone
loved the girls and they were doing well in the home. The girls were good eaters and had no trouble
sleeping. Leslie was scheduled for a
doctor’s appointment at the end of the month for blood work to investigate a
potential disorder. The girls had
colds. Leslie had a boil on her leg and
was not allowed back to daycare until it was gone. Mrs. C. had no other health concerns for the
children.
Mrs. C. invited
the social worker to view the girls’ bedroom.
Laylah grabbed the social worker by the hand and led her into the
room. The room was clean, neat, and free
of safety hazards. The girls appeared
very comfortable in the home. The social
worker told Mrs. C. about a relative application she had just mailed to Mr. S.
and the visit scheduled for January 29.
Mrs. C. understood, but was concerned that the girls were attached to
their new family and could be taken from the home. Mr. and Mrs. C. were committed to
adoption.
On January 25,
mother contacted the social worker to express her confusion over the uncle who
came “out of nowhere.†Mother did not
know Mr. S. and only began to talk to him the preceding week. Mother was further conflicted in her feelings
because she knew the foster parents wanted to adopt the girls and she was okay
with that, but on the other hand, Mr. S. was family. The social worker explained that placement
with Mr. S. was not guaranteed even if he is a relative and relatives have
preference when they come forward prior to the disposition hearing. The social worker reminded mother that the
disposition hearing had occurred nearly 12 months ago. On January 28, Leslie was referred to a
specialist by her regular physician.
The department
received Mr. S.’ application for relative placement on January 28. Mr. and Mrs. S. had a supervised visit with
Leslie and Laylah on January 29.
During the first meeting with the S.s, the girls stared at them, unsure
of what to do. Mrs. S. changed the
girls’ diapers, fed them crackers, and played with them. The social worker described the visit as a
good one. On January 31, the S.s
sent an email to the department seeking verification that their application had
been received and further stating they had become aware of the less than
adequate care that the girls were receiving.
The social
worker replied with an email stating the application had been received on
January 28 and had been sent to the Relative Assessment Unit that same
day. The social worker also replied that
she understood Mr. and Mrs. S. were concerned with the cleanliness of the
girls’ clothing. The social worker asked
if there were any other concerns of abuse or neglect that needed to be brought
to the social worker’s attention. The
social worker further suggested visitations occur every other week until the
S.s’ background checks were completed. Mrs.
S. replied with an email stating that both girls had horrible diaper rash with
red sores all over their bottoms. Mrs.
S. further offered that the girls’ hair smelled as if it had not been washed
recently, Mrs. S. had seen a picture of the girls sitting on a couch with a bag
of Cheeto Puffs suggesting that they were not receiving proper nutrition, and
during the visit the girls ate the crackers Mrs. S. offered very quickly
suggesting to her that they were not receiving enough proper snacks. Mrs. S. challenged the quality of the daycare
the children were attending.
Mrs. S. had a
further concern that during the January 29 visit, the girls presented with diaper
rashes. The public health nurse
accompanied the social worker for a home visit of the foster parents on
February 7. Mrs. C. explained that the
girls went to a community health clinic on January 28 and were examined by a
physician and were cleared of any health concerns. Both girls developed boils again on February
4 and Mrs. C. took them back to the doctor on February 5. Laylah was seen by a doctor and prescribed
Bacitracin ointment and Keflex for folliculitis, a bacterial infection. Both girls were also diagnosed with Methacillin-resistant
Staphylococcus aureus (MRSA), a drug resistant bacterial infection making them
more susceptible to skin rashes and infections.
The social worker had a telephone conversation with the public health
nurse about Mr. and Mrs. S.’ concern over the diaper rash. The public health nurse agreed to go with the
social worker on a home visit to assess the girls’ health.
During the home
visit and evaluation on February 7, Mrs. C. stated her suspicion that the
children were both allergic to cow’s milk.
Since recently discontinuing cow’s milk, both girls had a decrease in
respiratory infections and an overall improvement in their health. Both girls started getting boils again on
February 4, and had a wheezing condition.
Appropriate medications were provided to Mr. and Mrs. C. for
treatment.
The public
health nurse’s evaluation of Leslie and Laylah was that both girls appeared to
be healthy overall. Both girls suffered,
however, from MRSA. Both girls were
attending an Early Start program. There
was a concern that the girls were not age appropriate in their development because
they were behind in their vocabulary and the nurse recommended further
screening and intervention. During the
home visit, Mrs. C. invited the social worker, public health nurse, and another
evaluator into the home. The house was
clean with no safety hazards. The
children were described as good eaters who both slept well. There were no signs of abuse or neglect. The children’s immunizations were up to date. They had not been attending the Early Start program
due to abscesses in the diaper area. The
girls’ room was neat and clean.
Mrs. C.
explained that she was taking the children to the doctor to treat the diaper
rashes and abscesses as soon as she spots redness. She was giving them prescribed antibiotic
cream and oral medication to control the condition. The public health nurse explained that
because the girls have sensitive skin and MRSA, they are both more susceptible
to skin conditions. Leslie had been
referred to Valley Children’s Hospital for a possible endocrine condition. Mr. C. was contacted by phone during the
visit and indicated that he was still interested in adopting both
children. The girls had a snack
consisting of blueberry muffins and almond milk during the visit.
On February 11, a
social worker met with Mr. and Mrs. S. to review the adoption process and the
girls’ current caretaking situation. Mr.
and Mrs. S. were informed of the children’s medical conditions, potential
allergies, and the fact that both children had specialized needs. The social worker explained to Mr. and Mrs. S.
that the foster parents loved the girls deeply, had developed a bond with them
over the last year, were in a new and clean home, and there was ample love
displayed toward each child.
Mr. and Mrs. S.
met with the children for a supervised visit at the department on February 25. Mr. and Mrs. S. set up a table with snacks
and juice. They also brought a soft
piano keyboard mat that played music, a laptop game, a bowling game, and
balloons. The girls smiled and giggled
as they played with the balloons. Mrs.
S. changed the girls’ diapers. Mr. and
Mrs. S. kissed the girls goodbye at the end of the visit.
Section 388 Petition
On
February 11, Mr. and Mrs. S. filed a petition pursuant to section 388 seeking
transfer of custody of Leslie and Laylah to them from foster care. Mr. and Mrs. S. stated they sought adoption
of both children and were family members. The petition alleged that Leslie and Laylah were
not receiving proper care because the foster parents left them dirty, hungry,
and suffering from diaper rashes. Mr.
and Mrs. S. further alleged the girls were wearing dirty clothes, their hair
was unwashed, and their fingernails were long and dirty.
There were also
allegations that the foster parents did not leave appropriate medicines for the
first supervised visit, one of the girls immediately called Mrs. S. “mommy,â€
and the foster parents left the children with Mr. and Mrs. S. without a hug or
explanation that they would soon return.
The section 388 petition stated that Mr. and Mrs. S. had sufficient
income to care for both children and the girls developed an instant bond with
them.
The department conducted a Team
Decision Meeting on March 8. The meeting
included the social worker assigned to the case, Beatriz Hernandez-Toro; social
worker Jamie La Favor; the adoptions social worker, Gayle Achuff; Mr. and Mrs.
C. (also referred to as substitute care providers or SCP); Mr. and Mrs. S.; public
health nurse Monique Moreland; foster family agency social worker Michelle
Perez; facilitator Anne Sarazin; and Macy Albertson from the department. Bonding with Mrs. C. was described as loving
and affectionate. Mrs. C. did not coddle
the children when they cried during tantrums.
Mr. C. was described as being the children’s world. After a visit with Mr. and Mrs. S., the girls
ran to Mr. C. Mrs. C. said the girls
always ran toward Mr. C. when he returned home from work and adored him. The bond between the children and Mr. and
Mrs. C. was evident.
Mrs. S. was
observed to be very loving and affectionate with the children during her
visit. She conveyed a positive demeanor,
smiled, and had positive responses to the children’s needs. Mr. S. was appropriate in his interactions
with the children. The ability of Mr.
and Mrs. S. to create a bond was evident.
Both sets of potential adoptive parents were “willing and wanting†to
adopt both children and willing to undergo an Adoptive Home Study. The girls suffered from MRSA and asthma.
Monique
Moreland, the public health nurse (Nurse Moreland), found Mr. and Mrs. C.
knowledgeable about the children’s medical needs and found no evidence or
documentation that they were at fault for the children’s MRSA. The C.s had difficulty getting Leslie an
appointment with an endocrinologist, but this was caused by systemic problems
with Valley Children’s Hospital denying the primary care physician’s request
for a consultation with an endocrinologist.
Mr. and Mrs. C.
felt as if the girls were their family.
They felt bonded to the girls and vice versa. Mr. and Mrs. C. have a teenage child who the
girls think of as a sibling. Mr. and
Mrs. C.’s extended family treat the girls as their biological family. Also, the C.s have maintained and are willing
to continue a connection with the children’s biological family. Mr. and Mrs. S. are part of the children’s
biological family. Mr. and Mrs. S. would
have been caretakers at the beginning of the dependency proceedings but were
under the impression that the children were being returned to mother. If they received custody of the children, Mr.
and Mrs. S. would agree to maintain a lifelong connection with Mr. and Mrs.
C.
The department
concluded that Mr. and Mrs. C. had shown the ability to maintain both children
in their home since February 2012, or 13 months at the time of the Team
Decision Meeting. The department also
believed there was no reason that the children would not be stable in placement
if moved to Mr. and Mrs. S., though there was no evidence to support that
conclusion at that point. At the
conclusion of the meeting, it was evident that both placement options would
lead to a happy, healthy, secure childhood for both children. The department was reluctant to remove the
children from their current placement because they knew their current placement
as their home. The relatives disagreed
with this assessment. It was agreed to
permit overnight visitation with Mr. and Mrs. S. until the matter was heard by
the juvenile court.
On March 27, the
juvenile court granted Mr. and Mrs. C.’s request for defacto parent
status.
Visitations with Mr. and Mrs. S.
The
girls had a weekend visit with Mr. and Mrs. S. between March 8 and March 10. Mrs. C. reported that when the girls were
returned, they both had diarrhea. Mrs.
C. thought it may have been from eating something they were not used to
eating. Leslie appeared relieved once
she saw their home and started laughing and became more talkative.
Social Worker
Hernandez-Toro spoke to Mrs. C. on March 25, after the girls had an overnight
visit with Mr. and Mrs. S. Mr. C.
dropped the children off for the visit. The
process was very emotional. Both girls
cried hysterically and held tightly onto Mr. C.
The girls again experienced diarrhea after returning to the C.s’
home. Mr. C. did not believe there
should be future overnight visits. Mr.
C. conveyed this same information to Social Worker Hernandez-Toro the next
day.
Hernandez-Toro
talked to Mr. and Mrs. C.’s teenage child on March 26 during a home visit. The teenage child said that Leslie and Laylah
were very attached to everyone in the home.
When Leslie and Laylah returned home, they ran inside to hug the teenage
child, who in turn, hugged and kissed each child. Hernandez-Toro found the home to be clean and
free of safety hazards. The C.s reported
that the girls continued to do well under their care. They were good eaters and had no trouble
sleeping. Leslie had a positive report
from her blood tests indicating no genetic abnormalities.
On April 4, Mrs.
C. wanted to cancel an upcoming weekend visit with the S.s because the girls
were sick and were taking antibiotics.
Mrs. S. wanted to continue with the visit anyway and asked that all
medications be included. Mrs. S. did not
want to continue the visit until the following weekend, insisting that she was
competent to care for the children. The
S.s insisted on keeping the visit as scheduled.
The C.s reported that the children are very stressed out by the visits
with the S.s and cry and cling to the C.s prior to departure. They also return from the visits with
diarrhea. The girls also have a bad
attitude upon their return and resort to grunting and fighting with each other. In April, the department recommended that the
children remain with Mr. and Mrs. C.
Information
provided in a supplemental report signed by Social Worker Carrie Burton on June
19, stated that on April 9, Mrs. S. wrote an email to the department claiming
that Leslie only became upset when being transferred to the S.s after Mr. C. woke
her up from a sound sleep. According to
Mrs. S., upon return, the girls cried when they saw the C.s. Mrs. S. explained that the girls were very
affectionate toward them and gave her and Mr. S. hugs and kisses.
On April 19, the
department assigned a human service aide to assist with the transportation and
exchange of the children to the S.s.
After the April 22 visit, Mrs. C. noticed a boil on Leslie that was not
present prior to the visit with the S.s.
The S.s did not report the boil to Mrs. C. The department received two referrals against
Mr. and Mrs. C. An allegation was made
on May 7, that Mrs. C. gave the girls over-the-counter cough syrup that clearly
stated it was not to be given to any child under age six. The children’s clothing was too small and
Leslie cried out in pain as she dressed herself. Social Worker Hernandez-Toro confirmed that
Mrs. C. had a doctor’s note prescribing the cough syrup to the children. On June 18, Social Worker Stacey Fox found
this allegation to be unfounded.
On May 7 after a
visit with Mr. and Mrs. S., Mrs. C. told Social Worker Hernandez-Toro that
Leslie was moody, as usual, after visiting Mr. and Mrs. S. and the girls were
fighting with each other more than usual.
Leslie returned from the visit with diarrhea. Mrs. C. packed all of the girls’ medications,
whether or not they were needed.
Medication packed for one of the girls who had a bad cough was not returned. The relatives returned a different over-the-counter
cough medication instead.
Hernandez-Toro
reported that she was present in a Kern County parking lot on June 1, when Mr.
and Mrs. S. returned the girls from an overnight visit. Mr. and Mrs. C. were late in picking up the
children because Mrs. C. was stuck in traffic and she lost phone
reception. The girls seemed upset with
Hernandez-Toro and asked for Mr. C., whom they called “daddy.†Mr. C. had been resting after work, but
immediately got in his car and arrived to the meeting place. The girls seemed upset until they got into
Mr. C.’s car. Hernandez-Toro noticed a
drastic change in the girls’ attitude.
They started to giggle and wanted to play with Hernandez-Toro.
On June 17,
another referral was made to the department alleging that the girls continued
to have MRSA, the foster mother does not hug the children, the children’s
clothing does not fit, the children have blisters all over their feet, and they
arrive for visits with dirty hair, fingernails, and clothing. There was an allegation that the children
have dirty diapers and the foster parents failed to provide a nebulizer. Mr. and Mrs. S. further alleged that the
girls had red marks around their legs that looked like burns and their genital
area was red.
Social Worker
Burton contacted Nurse Moreland who reported that on June 18, the girls had a
doctor appointment. The doctor confirmed
that both girls were free of MRSA boils or abscesses and was continuing
treatment with an intranasal cream and bleach baths. Nurse Moreland confirmed with the doctor that
bleach baths can cause the bottoms of children’s feet to peel. Nurse Moreland provided Burton with a chart
of every doctor visit the children had dating back to February 2012. The chart showed the foster parents had been
very proactive in the children’s medical care.
The charts were attached to the social worker’s report. The foster parents had taken each girl to see
a physician more than 20 times since becoming the care providers.
The department
sought to have the court order supervised visits with Mr. and Mrs. S. to occur
monthly for two hours. The department
further requested the visits be limited to Kern County. The department concluded that visitations
with the S.s had become detrimental. The
department reported the foster parents had been very diligent in attending to
the children’s medical needs and that the children had been exposed to MRSA
prior to their placement into protective custody. The doctors reported that the children were
more susceptible to skin conditions and the foster parents had followed all of
the doctor’s orders.
The department
further observed that Mr. and Mrs. S. had taken it upon themselves to stop
prescribed medication when one child was ill and to provide a different cough
medication. The S.s had failed to return
prescribed medications to the foster parents.
The department stated that the S.s “have continually called or emailed
Social Service Supervisor Albertson to report the same issues over and over
again.â€
The department
explained it had addressed all of the issues raised by the S.s and that the S.s
were not satisfied with the outcome. The
department concluded that Mr. and Mrs. C. have provided excellent care for the
children and the department had not documented any issue concerning the care
the children were receiving. The
department described the C.s as providing a healthy, loving, and stable home
for the children. The department
concluded that it had found no evidence to support the truth of any of the
allegations by the S.s. The department,
therefore, sought a reduction in visits by the S.s because it was no longer in
the children’s best interests to maintain a continued relationship with
them. It was further in the children’s
best interests to remain with the current foster parents who remained committed
to adopting them and who had cared for them for 17 months.
Relinquishment of Parental Rights to Private Adoption
Agency
Alison
Foster Davis is counsel for Family Connections Christian Adoptions (adoption
agency), a private non-profit adoption agency licensed by the California
Department of Social Services. Davis
prepared a declaration under penalty of perjury setting forth that in May 2013,
father executed waivers of his right to further notice of adoption planning for
Leslie and Laylah, in effect, relinquishing his parental rights. The father’s waiver documents were attached
to Davis’s declaration.
Davis
declared that on May 6, 2013, mother signed California designated
relinquishment documents naming Mr. and Mrs. S. as the intended adoptive
parents for Leslie and Laylah. Davis
declared these documents were submitted to the state on May 10, and that
her adoption agency was awaiting the receipt of the Acknowledgment from the
California Department of Social Services.
Davis filed a notice of accepting mother’s relinquishment that was filed
by FAX. Copies of the documents
allegedly executed by mother and sent to the California Department of Social
Services were not attached to Davis’s declaration.
Davis
stated in her declaration that Mr. and Mrs. S. retained the adoption agency to
complete a domestic adoption home study assessment and were approved for
adoption of the minors on April 29. In
her declaration, Davis requested a stay of the dependency proceedings until the
adoption is finalized.
Joint Section 366.21, Subdivision (f) Review Hearing
and Hearing on Section 388 Petition
The
joint section 366.21, subdivision (f) and section 388 hearing was extended,
beginning on June 5, and continuing in different sessions until September 11. The court conducted a subsequent ex parte hearing
on a motion brought by the S.s after the joint hearing began to consider the
issue of whether the S.s would have immediate custody of the children and,
alternatively, to maintain unsupervised visitation with the children. The court noted that there was no court order
concerning relative visitation. The
court found that the department retained discretion concerning relative
visitation and denied the S.s’ ex parte motion to change custody or to maintain
unsupervised, ongoing visitation with the children. Visitation with the S.s was changed to
supervised visits once a month for two hours.
Testimony of Alison Foster Davis
Davis testified
that her adoption agency was licensed by the State of California. The adoption agency does assessments of
families seeking to adopt. The adoption
agency recommended that Mr. and Mrs. S. become prospective adoptive parents
after completing an assessment. Davis
described Mr. and Mrs. S.s’ commitment to the adoption process as
exemplary. Davis described Mr. S.’s
relationship with his extended family as a whole to be good, although they were
not immediately aware of the dependency action.
An adoption, however, cannot occur in the context of a dependency action
until after the parental rights have been terminated and the child is freed for
adoption.
S.
Mr.
S. testified that he first learned of the girls’ birth when he was informed by
father that they were about to be born.
Mr. S. was very busy at the time with three jobs. Also, Mrs. S. had surgery in 2011. Because of his own family’s needs, Mr. S. was
not able to give the matter the attention it deserved. In late November or early December 2012, Mr.
S. learned that father and mother had lost the girls, but was misinformed by
another family member that the girls were adopted.
Mr. S. stated
that he was his nephews’ and nieces’ favorite uncle and he regularly called
them. Mr. S. explained that father
stopped talking to family members when he was age 14. Mr. S. did not visit father during father’s
incarceration, but did talk to father on the phone. Although Mr. S. was in regular contact with
his nephews and nieces, and talked to father, Mr. S. said he was unaware that
Leslie and Laylah were in protective custody because no one ever mentioned
it.
Mr. S. stated
that between February 2012 and December 2012 he had no contact with father and
next talked with father in January 2013.
Some of father’s siblings saw Mr. S. at a birthday party, in March 2012,
and Mr. S. learned the girls were staying with their maternal grandmother.
On one occasion
after the children were born, Mr. S. asked his brother to find father. The brother was unsuccessful. Between the time the children were born and
when he learned the children were in foster care, Mr. S. never tried to contact
mother or the maternal grandmother. Mr.
S. denied telling Supervising Social Worker Macy Albertson months before
December 2012 that he was aware the girls had been removed from mother’s
custody.
During
the first visit with the girls on January 29, Mr. S. observed Mrs. C. leaving
the room without saying anything to them.
One child’s diaper was soiled and leaking. Changing the diaper, Mrs. S. found a horrible
rash and boils. Mr. S. stated that on
the second supervised visit, the girls came right up to the S.s and enjoyed
themselves during the visit.
name="_ftnref5" title="">[4] Mr. S. stated that on a
visitation on April 4 the foster parents sought to reschedule the visit because
the girls were sick. When the children
arrived, they were bright eyed and smiling, not sick.
Mr.
S. explained that later drop-off visits to the S.s’ home were done by a social
worker and not the C.s. According to Mr.
S., the girls’ clothes and shoes were always too small and the S.s would
immediately change what the girls were wearing.
During the eighth visitation, Laylah was fussy. The S.s changed her diaper and were appalled
at how bad her diaper rash appeared. Mr.
S. explained there were eight overnight visits and the girls got along well
with their three-year-old child. The S.s
were concerned when the girls were obsessed by their shoes and removed them. The S.s went to a store and purchased new
shoes that were larger.
Mrs.
S. testified that she read to the girls from the first visit. Her own child is a good reader. Mrs. S. testified that from the first
unsupervised visit, the girls ran up to the S.s, put their arms out, hugged the
S.s, and got right into the car. Mrs. C.
did not say anything to the girls. During
the second visit, Laylah was really happy to see the S.s and was smiling and
laughing. Leslie cried for only five
minutes, and then started smiling and laughing.
From the third unsupervised visit and thereafter, the girls were excited
to see the S.s and would run to see them.
During the first of the extended visitations, the C.s would fail to
provide the girls’ medication. Later the
medications were packed with the girls’ things.
During
an early overnight visit, the C.s failed to provide the girls with provisions
such as toothbrushes and the girls’ clothes seemed too small. On cross-examination, Mrs. S. conceded that
the C.s did not always send the girls for extended visits with clothes that
were too small for them. Sometimes the
girls were sent on the visits with clothes that fit them. For the first three overnight visits the
girls were sent with shoes that were too small, but thereafter the girls had
shoes that fit.
Mrs. S. stated
that the girls called the birth mother and Mrs. C. mom, but called her mommy by
the second weekend. Mrs. S. said that
the girls would cry when leaving the S.s after overnight visitations
began. Mrs. S. would go into the back
seat of Mrs. C.’s car to console the girls and they would stop crying. Mrs. S. was asked when she first learned the
girls had been removed from their mother.
She replied that three to three and a half weeks prior to Christmas 2012
they learned from a niece that the children were with their maternal
grandmother and mother had to attend some type of classes.
Testimony of Dr. Jeffrey Arden
Dr.
Jeffrey Arden, a licensed psychologist, does comprehensive child custody
evaluations in Southern California and the State of New York and testified as
the S.s’ expert witness. Dr. Arden
explained that most children know their primary attachment figure by nine or
ten months of age. Thereafter, children
can develop multiple attachments to adults and other children. Attachments and bonds are generally stronger
between biological relatives.
Dr.
Arden explained that based on literature in this field, the best time to begin
a child in preschool is age four, or perhaps age three. The ability to speak and the absence of potty
training can have an effect on a child entering a preschool program. It may or may not negatively affect the
child’s self-esteem. According to Dr.
Arden, speech development is very important to a child’s ability to achieve
higher cognitive development.
Children usually
have a vocabulary of between 350 and 700 words by the time they are two and a
half or three years of age. If a child
age two had a vocabulary of only 30 words, Dr. Arden would be concerned.
can cure itself or improve through the use of a speech and language
pathologist. Family involvement,
including reading from age appropriate books, can also help with delayed
language skills.
According to Dr.
Arden, a properly stepped transition not done too abruptly could be done for the
children. If there had been visitations
for three or four months and they were stopped abruptly, Dr. Arden opined this
would be harmful to children. Dr. Arden
testified that stability and continuity are important for a child’s
development.
Testimony of Department Staff
Social Worker
Hernandez-Toro was the second social worker assigned to the children’s
case. Hernandez-Toro did not conduct a
new search for relatives when she was assigned the case. In her review of the file, Hernandez-Toro saw
that relatives on both the paternal and maternal side of the girls’ families
were notified of the dependency by a court intake worker. The maternal and paternal grandmothers were
called and sent letters. Two other people
submitted applications for custody, but they were later withdrawn.
The children are
attending a Head Start, Early Start program in a local school through the
Community Action Partnership of Kern.
The program is a readiness program to prepare children to attend
school. The curriculum includes
vocabulary, reading, math, social and developmental skills, and physical and
social development skills.
Hernandez-Toro believed the children had progressed satisfactorily since
attending the program.
Hernandez-Toro
described the C.s as “wonderful foster parents.†The S.s had eight overnight visits with the
girls. They picked the girls up on
Fridays and brought them back on Sundays.
Hernandez-Toro observed the girls on occasions when the S.s returned
them and described the girls’ interaction with the S.s as minimal. The girls did hug the S.s goodbye. Hernandez-Toro described the girls as always
very happy to see the C.s when they return from overnight visits. Sometimes the girls would cry upon returning,
but they were “very happy to return.â€
The S.s had
complained about the first meeting with the girls starting 15 minutes
late. Mrs. C. thought the meeting was in
a different building. Hernandez-Toro
gave the S.s an entire hour with the girls to make up for the lost 15
minutes. Mrs. C. helped Hernandez-Toro place
the girls in the visitation room. Mrs.
C. verbally reassured the girls that everything was going to be fine, she would
be back, and for the girls not to worry.
Mrs. C. did not linger but left immediately as to not upset the girls.
Hernandez-Toro
explained that on the occasion that Mrs. C. was an hour late in picking up the
children from an overnight visit, Mrs. C. had gotten stuck in traffic and lost
reception for her cell phone. Mrs. C. was
not ignoring the situation. Hernandez-Toro
went to the C.s’ house and contacted Mr. C.
The two proceeded to the exchange location and arrived at about the same
time as Mrs. C.
Hernandez-Toro
witnessed the children returning from overnight visits. The girls had been upset upon their return,
but not at having to go back to the C.s.
The girls were upset at Hernandez-Toro.
They would not look at Hernandez-Toro and they would ask for Mr. C.,
asking for “daddy.†There were times
when the children were hesitant to go on overnight visits with the S.s.
Hernandez-Toro
investigated allegations that the girls’ clothes and shoes did not fit
them. Going to the C.s’ home and
examining the clothing provided to the children, Hernandez-Toro did not find
clothes or shoes that were too small. As
for medical attention, Hernandez-Toro explained that the girls were taken to
the doctor many times; at least once a month, and often more frequently if
necessary. Hernandez-Toro noted that the
S.s referred to themselves to the girls as mommy and daddy from the first
visit.
Social Worker
Albertson testified that Mrs. C. never tried to keep the children from mother
and the C.s were cooperative with the reunification process. In February 2013, the C.s definitely wanted
to pursue adoption of the girls. It was
difficult because family members had come forward late in the process. Albertson described Mr. C. as “100 percent
wanting to adopt.†Mr. C. described the
children as “his girls†and told Albertson they had cared for them since they
were little. There was a difference in
Mrs. C.’s feelings toward adoption because Albertson thought Mrs. C. “was
concerned about a situation such as this unfolding,†a “debate over where the
children should be.†The C.s wanted to
keep the girls.
Albertson had a
contact with the S.s in which they explained to her that they announced their
plan to adopt the girls but learned from a relative at Christmas that the girls
were in foster care. Mr. and Mrs. S.
were shocked to learn this because they thought the girls would be returned to
mother after a few weeks. The S.s had
learned prior to this, however, that the girls had been removed from mother’s
custody.
Albertson
testified on August 27, 2013. Mr. and
Mrs. S. had not called the department or Albertson to check on the girls since
July 30, 2013. Albertson checked with
Hernandez-Toro and learned that the S.s had not called to schedule a visit in
August 2013.
Nurse Moreland
testified that Mr. and Mrs. C. were diligent in their efforts to obtain an
endocrinology referral for one of the girls even though it took from May 2012
to March 2013 to resolve the issue.
Moreland explained that Valley Children’s Hospital gave multiple reasons
for not accepting such a referral for a child under 10 years old. After placing more pressure on the hospital,
the hospital provided information clearing the child of a problem because they
had already seen her a few days after her birth.
Concerning the
dispute over whether the C.s failed to obtain medical treatment for MRSA boils
on the children between January 29, 2013, and February 5, 2013, Moreland was
asked if it was inconceivable that the foster parents failed to change the
girls’ diapers for seven days. Her reply
was, “Yes.†When asked if the safest
thing would have been for the C.s to take the girls to the doctor on January
30, Moreland replied the answer was yes if they were MRSA boils. It would not have been safe practice to wait
between January 29 and February 4 to seek medical treatment. After receiving prescribed bleach baths to
treat MRSA, the skin on the children’s feet could have blister-like marks and
peel.
Concerning the
girls’ speech delay, Moreland made a referral to the Kern Regional Center. Mr. and Mrs. C. followed up with the
referral. Moreland also explained that
caregivers start children in Head Start to encourage growth in areas that are
delayed.
Testimony of Mr. and Mrs. C.
Mrs.
C. testified at length concerning the children’s many medical problems and her
elaborate care for them. Mrs. C. did not
learn that the girls were going on their first overnight visit with the S.s until
the conclusion of the Team Decision Meeting.
Prior to this, no one suggested to her there would be overnight
visits. The exchange of the children to
the S.s occurred at the children’s school.
Mrs. C. was not given a proper opportunity to get things together for
them, to clean them, or to change their clothes at the end of school.
The
girls wear different sized clothes. Leslie
is larger than Laylah. The shoes sent
back with the girls from the S.s were too big for Leslie and would fall
off. The shoes for Laylah were also too
large.
Mrs.
C. also explained why she was late meeting the S.s on one occasion to pick up
the children. Mrs. C. had been visiting
a relative in Atascadero and left in time to make the exchange, giving herself
nearly three hours. There was an
accident on the highway that delayed her trip between 45 minutes and an
hour. Mr. C. had worked a late night
shift the night before. Mrs. C. was
unable to contact Hernandez-Toro until she was in Bakersfield.
Mrs.
C. described the adoption process as full of ups and downs. When the C.s first got the girls, they were
excited about adoption. As time passed,
it looked like mother was getting better and there would be no adoption. Then more time passed and mother contacted
the C.s and indicated she wanted the girls adopted. Mother stated the only way she would allow
adoption was if the C.s were the adoptive parents. Then the S.s became interested in
adoption. During that entire span of
time, Mrs. C. discussed adoption with her husband. Mrs. C. never waivered in her desire to adopt
the girls. Mrs. C. believed the girls
were integrated into her family.
Mr.
C. testified that when the girls returned from overnight visits, they would jump
out of their car seats. Mr. C. said that
the girls never left the S.s car or returned to it crying hysterically because
they wanted to stay with the Mr. and Mrs. S.
Juvenile Court’s Findings
On
October 4, 2013, the juvenile court issued its minute order denying Mr. and
Mrs. S.’s section 388 petition and setting the matter for a section 366.26
hearing on February 3, 2014. The minute
order included an attachment of the juvenile court’s written rulings and
findings.
The
court found that the best interest of Leslie and Laylah requires they stay in
their placement with the foster parents and it is not in the best interest of
the children for the proposed private adoption with the S.s to go forward. The court found the proposed relinquishment
appears to be inconsistent with the stated wishes of the mother, who, on more
than one occasion expressed support for the C.s to adopt her daughters and also
stated she did not know the S.s.
The
court noted there was a clear conflict in the facts between the S.s and the C.s. In judging credibility, the court first found
that counsel for the S.s, either intentionally or unintentionally, misstated
material facts. The court found the
social workers, public health nurse, and Mr. and Mrs. C. to be credible
witnesses on material issues and found Mr. and Mrs. S. not to be credible. The court noted particular concern for the
apparent motivation of the S.s to gain custody of the children after they found
they could no longer have biological children.
The
court stated there was independent evidence of a close, caring, and loving
relationship with the C.s and the girls.
The relationship with the S.s was described only by them. Based on expert medical testimony, the C.s
took appropriate medical care of the girls.
The S.s presented no medical testimony. The C.s properly clothed and cared for the
girls. Based on its determination of
credibility, the court held “the evidence is clear and overwhelming that the
best interest of Leslie and Laylah requires that they stay in the care of the [C.s]
thus enjoying a safe, stable, caring family who properly cared for them in all
apparent ways.â€
The
court further found that although the case was still in technical
reunification, the reality was that both father, who was no longer reunifying,
and mother, who conceded her efforts to reunify had failed, were no longer
reunifying. The court stated this is
also demonstrated by the parents’ attempted relinquishment. Citing section 361.3, the court noted
preference for relatives is established at the very beginning of a dependency
action and again if there is a new placement.
(See subdivisions (c) and (d) of section 361.3.)
REVIEW OF RELINQUISHMENT TO PRIVATE ADOPTION AGENCY
Introduction
Mr. and
Mrs. S. have filed a petition for extraordinary writ review seeking appellate court
review of the juvenile court’s orders denying their section 388 petition and
setting the matter for a hearing pursuant to section 366.26. Father filed his own petition, also with
points and authorities, agreeing with the position adopted by the S.s. Mother and the children have filed petitions
joining with the arguments of father and the S.s.
The
S.s’ points and authorities are lengthy.
Their arguments, however, can be summarized as two contentions. First, they inaccurately argue the juvenile
court was unaware of the burden of proof for voluntary relinquishment cases and
placed the matter up for a vote by counsel for each of the parties. The S.s argue that there was no clear and
convincing reason to deny the voluntary relinquishment, which they argue is
legally favored.
Second, reviewing
all of the factors for child placement in section 361.3, the S.s contend there
was insufficient evidence to support the juvenile court’s findings. A separate component of the second argument
is that the juvenile court abused its discretion in making its credibility
findings and failed to properly consider the preference for relative
placement. We disagree with these
contentions and deny petitioners’ extraordinary writ.
As we explain
below, these arguments fail to set forth the legal and statutory distinction
between relinquishment of parental rights to a private adoption agency and
relinquishment of parental rights to a public adoption agency. The juvenile court made its factual findings
by a standard of clear and overwhelming evidence, an evidentiary standard
greater than clear and convincing evidence.
We further find that the S.s are trying to reverse the standard of
review we employ to the petitioners in a section 388 hearing when reviewing the
juvenile court’s orders on appeal, or in this instance, an extraordinary writ
proceeding.
Father’s
petition argues the more subtle legal point that it is unclear the juvenile
court correctly applied the primary published authority concerning
relinquishment of parental rights to a private adoption agency,
102 Cal.App.4th 366 (Teresa J.). Father further argues that the juvenile court
did not make a legal finding, as required by Teresa J., that it was in the children’s best interests to limit the
parents’ right to relinquish them to a private adoption agency, and only found
it was in the best interests of the children to leave them with the foster
parents. Although father has raised an
arguable legal issue, we conclude the juvenile court made the necessary findings
involving voluntary relinquishment to a private adoption agency.
In
Teresa J., the mother was serving a
prison sentence when she gave birth to the minor. A dependency action was initiated and two
foster parents, D. and K., became the caregivers of the child from the time he
was two days old. (Teresa J., supra, 102
Cal.App.4th at pp. 368-369.) D. and K.
stated they were willing to adopt the minor.
Two days after the joint jurisdiction/disposition hearing, the
department removed the minor from D. and K. and placed him with V. and B. The court granted an order that D. and K.
were defacto parents. Later, V. and B.
successfully obtained an order that they were also defacto parents and the
matter was set for a section 366.26 hearing.
(Teresa J.,
The
mother then executed a statement of understanding and a relinquishment,
relinquishing the minor to ICA, a private adoption agency, with a statement of
understanding naming D. and K. as adoptive parents. (Teresa
J., supra, 102 Cal.App.4th at pp.
368, 370.) The State Department of
Social Services (DSS) signed an acknowledgment and receipt of relinquishment
two days later. (Id. at p. 370.) D. and K.
moved to vacate the section 366.26 hearing, transfer the minor to ICA, and
continue the matter for a six-month review hearing. (Teresa
J., supra, at p. 370.)
Two
weeks later, the chief of the adoptions policy bureau of DSS wrote ICA that the
acknowledgment of the relinquishment was void because it did not comply with
section 361, subdivision (b) (hereafter section 361(b)) because DSS’s
interpretation of the statute was that a parent could only relinquish a child
to DSS or a licensed county adoption agency.
According to DSS, relinquishment to a private adoption agency was not
permitted. On October 30, 2001, the
juvenile court agreed with DSS’s interpretation and found the relinquishment to
a private adoption agency invalid. The
parties stipulated D. and K.’s home was suitable for the minor and the modification
hearing was continued and joined with the section 366.26 hearing. (Teresa
J., supra, 102 Cal.App.4th at p.
370.)
The
mother, and D. and K. petitioned the appellate court, inter alia, for a writ of
mandate commanding the juvenile court to set aside its order of October 30,
2001, enter an order vacating the section 366.26 hearing, direct the department
to deliver the minor to the custody of D. and K, and to direct DSS to refrain
from refusing to acknowledge relinquishment of a child to a private adoption agency. (Teresa
J., supra, 102 Cal.App.4th at p.
370.)
In
a detailed statutory analysis, the court in Teresa
J. found that the legislative intent behind Family Code section 8700 and
Welfare and Institutions Code section 361(b)
to licensed public adoption agencies and licensed private adoption agencies. (Teresa
J., supra, 102 Cal.App.4th at pp.
371-374.) According to
361(b), does not limit a parent’s ability to relinquish a dependent child for
adoption. Rather, it limits the juvenile
court’s ability to interfere with that decision “when the relinquishment is to a public adoption agency.†(Teresa
J., supra, 102 Cal.App.4th at p.
374 [emphasis added]; In re R.S.
(2009) 179 Cal.App.4th 1137, 1147-1155 (R.S.).) Teresa
J. further rejected the public agencies’ argument that the parents in
delinquency proceedings could not relinquish a child to a licensed private
adoption agency. (Teresa J., supra, 102
Cal.App.4th at pp. 374-375.)
retains its jurisdiction over a dependent child who is subject to a permanent
plan for adoption until the adoption is final pursuant to section 366.3. Under section 362, subdivision (a), “the
court may make any and all reasonable orders for the care, supervision,
custody, conduct, maintenance, and support of the child, including medical
treatment, subject to further order of the court.†The court may also limit a parent’s control
over a dependent child under section 361, subdivision (a) [hereafter section
361(a)], with the sole exception where the parent relinquishes the child to a
public adoption agency pursuant to section 361(b). This particular exception, however, does not
apply where the parent relinquishes the child to a private adoption
agency. In such a case, “the juvenile
court retains its broad power to limit the parent’s control over the dependent
child, which includes the parent’s ability to relinquish the child to a private
adoption agency.†(Teresa J., supra, 102
Cal.App.4th at p. 375.)
The
Teresa J. court further explained
that when the juvenile court exercises its power to limit the parent’s control:
“the juvenile court may consider the
concerns raised by the various real parties in interest and whether such
concerns militate against allowing the relinquishment to a private adoption
agency. In this decision, as in all
others, the juvenile court must act in the best interests of the dependent
child. (§ 202, subd. (e).)†(Teresa
J., supra, 102 Cal.App.4th at p.
375.)
The
court in that case failed to declare the relinquishment invalid in exercise of
its power under section 361(a) and to make a finding that the relinquishment to
the private adoption agency was not in the best interest of the minor. The juvenile court operated under the
misconception that the mother could not relinquish her child to the private
adoption agency. Teresa J. found the juvenile court misunderstood the law and its
own discretion, and remanded the case for the juvenile court to consider
whether it should limit the mother’s control over the minor as it relates to
relinquishing him to the private adoption agency, considering the minor’s best
interest at the time of the hearing. (
Teresa J. further
explained that the proper standard for reviewing the placement decision of the
agency that has been given exclusive care and control of the minor is not the
differential abuse of discretion standard because the parent of the dependent
child no longer has exclusive care and control of the child. The juvenile court retains the authority to
make reasonable orders for the child’s care, supervision, and custody under
section 362, subdivision (a). “Limiting
the parent’s ability to relinquish a dependent child to a private adoption
agency is such an order when it is in the child’s best interest.†(Teresa
J., supra, 102 Cal.App.4th at p.
376.)
The petitioning parties
also rely on R.S. which held that
once children are relinquished to a public adoption agency, and the adoption to
that agency becomes final, the juvenile court is precluded from making any
order limiting the parent’s right to relinquishment when the section 366.26
hearing is scheduled but has not yet occurred.
The relinquishment ends the need for a hearing to select a permanent
plan under section 366.26. (
Citing
S.s’ petition seeks a broad expansion of the R.S. holding to include, for all practical purposes, private as
well as public adoption agencies. We
decline petitioners’ invitation to limit the power of the juvenile court under
section 361(a) to establish the best interest of the children where, as here,
the parents have relinquished their parental rights to a private adoption
agency. We find R.S. factually inapposite to the facts in the instant action and do
not apply its holding here.
We also reject
the S.s’ legal construction that effectively reverses the burden of proof in a
section 388 hearing because the proceeding involves voluntary relinquishment to
a private adoption agency. A parent, or
in t
| Description | Petitioners seek an extraordinary writ (Cal. Rules of Court, rule 8.452 (rule 8.452)) from the juvenile court’s orders issued at a combined Welfare and Institutions Code section 366.21, subdivision (f) and Welfare and Institutions Code section 388[1] hearing in which the juvenile court denied the section 388 petition and set the matter for a hearing pursuant to section 366.26. The petitioners are the potential adoptive parents, Mr. and Mrs. S.; Ramon S. (father); Gabriella R. (mother); and the children, Leslie and Laylah S., who were born in January 2011.[2] We do not find error and affirm the rulings and orders of the juvenile court. |
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