Shawna S. v. Superior Court

Filed 1/8/08 Shawna S. v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for extraordinary writ. A. Rex Victor, Judge. Petition denied.

Harold Gun Lai, Jr., for Petitioners.

No appearance for Respondent.

Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Real Party in Interest.

INTRODUCTION

The parental rights of minors parents were terminated on January 25, 2007, and they are not parties to this petition. Petitioners (petitioners, Mrs. S., or Mr. S.) are the foster parents of the minor and had hoped to adopt the child. The minor was originally placed in their care in April 2006, when he was 14 months old. However, in the summer of 2007, the San Bernardino County Department of Childrens Services (department) determined that the minor should be removed from petitioners custody; the trial court granted this request. Petitioners challenge this ruling.

STATEMENT OF FACTS

Up until May 2007, petitioners plan to adopt the minor was apparently going smoothly. However, at that time, the social worker obtained some disquieting information concerning the parents marital, medical, and financial circumstances. The record shows that petitioners had separated for the second time in six months. Mrs. S. disclosed certain marital issues to the social worker, who suggested the couple obtain therapy to work on those issues. Petitioners were informed that the questionable stability of their marriage could impact their planned adoption of the minor.

In June 2007, petitioners had an open and honest discussion with the social worker about their incompatibility issues.^[1]The social worker suggested that Mrs. S. might benefit from a medical examination, but Mrs. S. said that they did not have medical insurance. However, Mr. S. urged her to make an appointment, indicating that God would provide; he also indicated that God had previously cured her of Valley Fever.

The social worker was also concerned that petitioners were caring for a second foster child, who had serious behavioral problems, which could pose a risk to the minor. The social worker recommended that petitioners talk to the other childs social worker about a possible move.

This was followed by a Disruption Committee Meeting on July 18, 2007, which petitioners attended. Following this meeting, the department decided to file and serve a notice of intent to remove child (notice). (Welf. & Inst. Code, 366.26, subd. (n)(3).)^[2],[3] This document, intended to explain the proposed action, set out additional information concerning possible domestic violence and petitioners intimacy difficulties. Mrs. S. had reported that Mr. S., on two occasions, had trapped her in a room or closet and refused to let her leave; Mr. S. responded that he did so because she wouldnt listen to me and stated, Im the one being abused. Petitioners had attended premarital counseling for two years, but evidently had not fully benefitted from it. The meeting also produced concern on behalf of the department over whether petitioners intimacy problems were related to a medical condition or psychological issues affecting the relationship. The department also noted that petitioners were in a borderline financial conditionthey were unable to afford health insurance and were having difficulties keeping their cars in running order, although they lived in a rural area, which was a substantial distance from any hospital.

Finally, Mr. S., addressing the possibility that the minor might be removed from their home and the adoption cancelled, remarked, This isnt going to help our marriage any. This suggested that the minor was the glue keeping the relationship togetheras the meeting report noted, a burden a child should not have to bear.

The report in support of the notice also included information that another family, who had adopted minors older sister, was interested in adopting minor as well.

As authorized by statute ( 366.26, subd. (n)(3)(A)), petitioners filed an objection to removal. They denied several of the most serious allegations contained in the notice, specifically regarding domestic violence and their financial situation. They expressed willingness to comply with any requests, including counseling or therapy. They also agreed to place the other foster child in another home.

As the matter was contested, a lengthy hearing was held commencing on August 14, 2007. The first issue covered was that petitioners had affirmatively declined health insurance offered through Mr. S.s employment. Next, Mr. S. described the couples periods of separation as relatively amicable cooling off periods. During these separations, the couple continued to cooperate in caring for minor and the other child. Mr. S. also testified that his wife had recently seen a doctor concerning her sexual issues related to her private areas. He also testified that they were participating in anger management counseling through Lutheran Social Services, although his testimony suggested that they signed up because it was the only type of counseling offered at the time.^[4] Mr. S. flatly denied any instances of domestic violence and denied any likelihood that they would split up.

Mrs. S. testified consistently with her husband on most points. Admitting that sexual intercourse was uncomfortable for her, she nevertheless testified that the couple had worked around it and that she, therefore, had seen no reason to seek medical assistance. She admitted that they had not responded to the social workers suggestion that they obtain marriage counseling, but pointed out that at $100 per session, they simply could not afford it.

The adoption supervisor described the procedure under which the matter had been set for the Disruption Committee Meeting and the decision to get as much input as possible, especially due to the length of time the minor had been with petitioners. She explained that the decision to remove the minor had been based on the evaluation of petitioners marriage and relationship being unstable.

The social worker testified concerning statements made by petitioners to her. She testified that Mrs. S. had complained that Mr. S. was domineering and controlling and admitted that she had mixed feelings toward Mr. S.s decision to teach at a Christian school because God had called him rather than obtain a job with health care benefits. The social worker also testified that she had expressly told petitioners in May that they should schedule at least initial medical and counseling appointments, and that they needed to do those two things to show a commitment on their part, but they failed to do so at that time. She testified that she had given petitioners the name of a therapist who would reduce her charges for clients unable to pay full rate. The social worker statedas had the adoption supervisorthat Mrs. S. had appeared somewhat detached at the Disruption Committee Meeting.

The trial court took the view that petitioners had had the opportunity to respond to the departments concerns, but simply had not done so within a reasonable time; it also concluded that it was not reasonably probable that they would be able to do so within a time frame that would allow adoption of the minor.

Petitioners challenge the decision to remove the minor from their home on the basis that the department acted precipitously and unfairly in making the decision to remove the minor; that the evidence did not support the trial courts ruling; and that they received ineffective assistance of counsel at trial. As we will explain, none of these arguments has merit.

DISCUSSION

A.

Petitioners argue that because the department filed a notice of intent to remove in July 2007, it is clear they were not willing to make any attempts to resolve any issues that had surfaced. Although they admit that they were asked to see a therapist, they assert that they were never told failure to see a therapist could or would result in removal of the minor from their home.

This claim ignores the testimony from the social worker cited above to the effect that, well before the Disruption Committee Meeting, she had discussed the meeting with them and made it clear that they needed to start therapy and medical treatment in order to demonstrate their commitment to the adoption process. Even if the social worker did not explicitly set out the possibility that the minor could be removed if they failed to comply, this was the obvious import of her statements. The record reflects that the social worker had been discussing her concerns with petitioners since May, when the issues of separations and intimacy first came to her attention. Any claim that the department determined to act without giving petitioners a chance to address these concerns is without merit.

B.

Next, petitioners contend they were prospective adoptive parents and that with respect to such persons, the procedure for removal is different. However, they do not explain in what way the correct procedure differed from that employed in this case.

The court may, on request, designate a caretaker as a prospective adoptive parent if the child has lived with the caretaker for at least six months, the caretaker has expressed a commitment to adopt the child, and the caretaker has taken at least one step to facilitate the adoption process, which may include [c]ooperating with an adoption homestudy or [b]eing designated by the court or the licensed adoption agency as the adoptive family. ( 366.26, subd. (n)(1), (n)(2)(B), (n)(2)(C).) Such a person may file objections to the removal, as petitioners did here. The trial court is to determine whether the person is, in fact, a prospective adoptive parent; if so, the child may only be removed if it is in the childs best interests. If the person is not designated as a prospective adoptive parent, the objections must be dismissed. ( 366.26, subd. (n)(3)(B).)

In this case, the trial court did not expressly find one way or the other. It is true that the trial court expressed the view that petitioners were closer to the foster planning stage than the adoptive prospective, adoptive family. However, it went on to acknowledge the best interests standard, stating that how to achieve that common goal is what we are here for. The court proceeded to analyze petitioners personal situation in detail, as well as the issues surrounding potential upset to the minor if he were removed from their care. In short, even if the trial court believed that petitioners were not prospective adoptive parents, and even if that belief was incorrect, the trial court did not strike their objections, but considered the matter on the merits.

In this context, petitioners related claim of insufficient evidence also fails. Appellate review of most dependency court decisions is governed by the substantial evidence standard. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Although the evidence was in conflict, there was substantial evidence before the trial court regarding petitioners relationship being unstable and that the dynamics of their marriage were in some respects unsatisfactory to both of them. A childs need for a permanent and stable home eventually prevails, even over the rights of a natural parent. The reality is that childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it. (In re Debra M. (1987) 189 Cal.App.3d 1032, 1038, superseded on other grounds in In re Eli F. (1989) 212 Cal.App.3d 228, 234.) There is nothing at all unreasonable about applying the same rule with respect to adoptive parents. In this case, the trial court expressly indicated its agreement with the proposition that the minor was highly adoptable and would be adopted within a reasonable time; it could not conclude that petitioners were likely to resolve their issues within a similar time. This decision was well within its discretion.

C.

Finally, petitioners assert that they received the ineffective assistance of counsel because trial counsel did not introduce evidence from third party witnesses, which would corroborate petitioners testimony concerning their relationship and finances. The fatal difficulty with this argument is that in a direct attack on the judgment, where our review is confined to the record, nothing before us reflects either the existence of such witnesses or the content of their potential testimony. Thus, the failure to produce additional witnesses cannot be deemed prejudicial and petitioners have not shown that trial counsels performance fell below constitutional standards. (See People v. Hester (2000) 22 Cal.4th 290, 297.)

DISPOSITION

The petition for writ of mandate is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P. J.

MILLER

J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

^[1] It was later discovered that these issues involved Mrs. S.s physical difficulty with sexual relations.

^[2] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[3] The cited statute requires the department to notify a family whom has qualified or could qualify as a prospective adoptive parent, when a decision is made to remove the child from the caretaker.

^[4] Mrs. S. specifically confirmed this in her testimony.