In re Alexis P.

Filed 8/14/06 In re Alexis P. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Adrianna P. petitions this court for an extraordinary writ (Cal. Rules of Court, rule 38.2; Welf. & Inst. Code, § 366.28) to set aside the juvenile court's orders which terminated her parental rights for her son Alexis P., removed him from his grandparents' home and placed him in a foster home for adoption. We conclude: 1) that the court properly removed the child from his grandparents' home because his grandfather had molested Adrianna P. as a child, but 2) that it erred by not vacating Adrianna's relinquishment of her parental rights and waiver of family reunification services. We grant the petition.

FACTS

Alexis, Adrianna's two-year-old son, lived with Adrianna's parents Javier and Ramona P. After the grandparents let Alexis stay at Adrianna's home, someone deliberately abused Alexis. He had a lacerated pancreas and bruises on his kidneys and liver.

Child Protective Services of Santa Barbara County (CPS) filed a juvenile court dependency petition. (Welf. & Inst. Code, § 300, subds. (b) & (j).) Adrianna admitted the allegations of the petition which said Alexis suffered serious physical harm because of her failure to protect him. She did not contest the juvenile court's assumption of jurisdiction over the child. She voluntarily relinquished her parental rights and waived her right to family reunification services. She also signed a consent to allow Alexis' grandparents to adopt him. CPS filed a case plan which approved that goal.

During a visit by a CPS worker, Javier P. admitted that he had sexually molested Adrianna when she was a child. CPS filed a supplemental petition to remove Alexis from the grandparents' home and place him in a foster home. After Alexis was removed from the grandparents' home, CPS recommended that he be adopted by another family.

Adrianna filed a petition in the juvenile court to reinstate her parental rights and obtain family reunification services. At the May 2, 2006, hearing she testified that when she relinquished her parental rights and waived reunification services her attorney and the CPS worker did not advise her about the consequences. She did not realize that she was unconditionally waiving her parental rights or that CPS would place the child with a non-relative adoptive family. CPS called no witnesses.

The court found the Adrianna "failed to establish her burden of proof." It approved the CPS plan of removing Alexis from his grandparents' home and placing him with another family for adoption.

DISCUSSION

I. Placement With The Grandparents

Adrianna contends the court abused its discretion by not placing Alexis with his grandparents and by removing him from their home. She claims the grandfather posed no risk to the child. We disagree.

The juvenile court may limit a parent or guardian's custody or control over a child based on the minor's best interests. (In re Daniel C.H. (1990) 220 Cal.App.3d 814, 839.) We draw "all reasonable inferences to support the findings of the juvenile court and must review the record in the light most favorable" to the judgment. (Ibid.) The credibility of witnesses is a matter within the sound discretion of the trial court. (In re Christina T. (1986) 184 Cal.App.3d 630, 639.)

Here the court found "there was a substantial danger to the physical health of the child" which required Alexis to be removed from the grandparents' home. The CPS report states that Javier P. admitted sexually molesting Adrianna on at least four occasions when she was a child. The grandmother admitted that she knew about these sexual assaults and was present during one of them. She claimed the molestations spanned a six-year period and occurred when Adrianna was between the ages of six and twelve. From this history the court could find that Javier P.'s presence posed a risk for Alexis. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1515; Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 397.)

Javier P. also had a history of alcohol abuse, convictions for driving while intoxicated and "was charged with alien smuggling." The grandparents tried to defraud CPS by falsely claiming they had not received foster care money. CPS conducted an investigation and concluded Alexis was "not safe in the home." The court could reasonably find he had to be removed.

II. Vacating Adrianna's Relinquishment of Parental Rights

Adrianna claims the court erred by not vacating her relinquishment of parental rights and waiver of family reunification services. She claims her waivers were conditional and not knowingly and intelligently made.

"[C]onstitutional rights to a parent-child relationship may be waived as long as the waivers are 'voluntary [ ] and knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.' [Citation.]" (Tyler v. Children's Home Society (1994) 29 Cal.App.4th 511, 546.) "The effect of a relinquishment of a child by a birth parent is to allow adoption of the child without further consent of the birth parent." (Id., at p. 528.) But a parent may bring an action to set aside a relinquishment based on equitable grounds.

Adrianna testified that she did not know she had permanently and unconditionally relinquished her parental rights and her entitlement to reunification services. She said that she understood that the waivers were conditioned on her parents adopting Alexis which would allow her to see her child.

CPS requested the juvenile court to find that on June 8, 2005, Adrianna consented to have her son adopted. But that document was only a consent to allow her parents to adopt her son. It was not an unconditional consent to allow anyone else to do so.

CPS notes that Adrianna was represented by counsel and subsequently signed a waiver of reunification services (Judicial Council Form JV-195). In that document she said, "I understand that . . . the court may terminate parental rights and have the child placed for adoption." But that was filed with a CPS case plan which recommended that Alexis be placed in "the home of a suitable relative." The CPS plan at that time was for Adrianna's parents to adopt the child.

The waiver of reunification services and the relinquishment of parental rights were inextricably related to Adrianna's expectation that her child would be placed in her parents' home.

The petition is granted. The judgment is vacated and the matter is remanded to the juvenile court with directions to vacate Adrianna's relinquishment of parental rights and her waiver of reunification services. CPS shall establish a reunification plan.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

Thomas R. Adams, Judge

Superior Court County of Santa Barbara

______________________________

Ian Morse for Petitioner.

Stephen Shane Stark, County Counsel, Laura Ornelaz, Deputy for Respondent.

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