In re Ashley J.

Filed 9/28/06 In re Ashley J. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 THREE

APPEAL from an order of the Superior Court of Los Angeles County,

Jan G. Levine, Judge. Affirmed.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel and Jerry M. Custis, Deputy County Counsel, for Plaintiff and Appellant.

No appearance for Defendants and Respondents.

_________________________

The Department of Children and Family Services (the Department) appeals an order directing payment of sanctions in the amount of $200 for failure to complete an adoptive home study on prospective adoptive parents in a timely manner.^[1] The Department contends the sanction order must be reversed because the failure to file the home study by the due date was attributable to factors beyond its control. We find no abuse of discretion in the juvenile court’s imposition of reasonable monetary sanctions. (Code Civ. Proc., § 177.5.) Consequently, we shall affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

The five children involved in this case were detained on January 2, 2003, and were placed in the foster care of their prospective adoptive parents in June of 2003. In September of 2003, prospective adoptive parents expressed a desire to adopt all five children. At the eighteen month hearing on November 29, 2004, the juvenile court ordered the Department to prepare an adoptive home study and continued the case to March 22, 2005.

On March 22, 2005, the adoptions worker, Carey Smith, reported on the progress of the home study. Her Adoption Progress Report showed 10 items remained to be completed. These items included obtaining criminal clearances for the residents of the home, making physical alterations to the home, conducting interviews of the prospective adoptive parents and the children, and obtaining school reports, medical documentation, TB tests, a child questionnaire, prospective adoptive parent’s marriage certificate, employment verification and references. Smith estimated the study would be approved by April 25, 2005.

At the hearing on March 22, 2005, the juvenile court ordered the Department to complete the home study by July 19, 2005.

A social report prepared for July 19, 2005, indicated the children’s service worker (CSW) assigned to this case contacted Smith in early June of 2005, to obtain an update on the status of the home study. In response, Smith informed the CSW she needed to see the family one or two additional times to conduct interviews. Attached to the report was an updated Adoption Progress Report which indicated Smith had not yet obtained the employment verification, references, marriage certificate, medical documentation or TB tests. The report indicated Smith had scheduled a visit with the family on July 18, 2005, but it was rescheduled for July 20, 2005, by prospective adoptive mother due to an emergency with a client. Prospective adoptive mother also reported that three of her sister’s children were living with prospective adoptive mother, bringing the total number of children in the home to nine. The three additional children were expected to be in the home until November of 2005. Because these three children were young, prospective adoptive mother has been presented with new challenges.

Additionally, prospective adoptive mother reported that one of her health care clients had suffered two strokes and prospective adoptive mother has been busy addressing that crisis. Prospective adoptive mother stated she was running all the time to accommodate the school and after-school activities of the children and she had misplaced the employment verification paperwork sent to her by Smith. Prospective adoptive mother had agreed to complete the paperwork and to obtain physicals and TB tests for the children. Based on the number of children in the home, it was difficult to provide an expected completion date for the home study. The report suggested the home study may need to be put on hold until November of 2005, when the additional children were expected to leave. The report indicated Smith would assess the home on July 20, 2005, and that Smith would “continue in her interviews and collecting paperwork until November, when the additional children are expected to leave, and the home study can be approved at that time.”

At the July 19, 2005 hearing, the juvenile court indicated it had interpreted the report as a request by the Department for a continuance to complete the home study and continued the case to September 22, 2005.

For the September 22, 2005 hearing, the Department submitted an updated Adoption Progress Report showing only two uncompleted items, namely, interviews of the prospective adoptive parents and employment verification for prospective adoptive mother. Smith reported the three additional children recently had moved from the home and the TB tests had been received. Smith expected to receive the employment verification by September 29, 2005, and indicated there was one further interview with prospective adoptive parents, which was scheduled for the same day as the hearing, September 22, 2005.

The juvenile court indicated its intent to sanction the Department’s “failure to complete the home study for today’s hearing” and set an order to show cause on the matter for October 26, 2005. The juvenile court continued the selection and implementation hearing the same date. The minute order prepared for the September 22, 2005 hearing states: “It appearing that the Department . . . has not complied with the legal mandates for timely filing of court reports pursuant to the order of the court dated 11/18/96, the court finds that the home study due on 9/22/05 has not been timely submitted.”

A social report prepared for the October 26, 2005 hearing indicated the home study had been approved on October 5, 2005. At the hearing, the juvenile court noted the Department previously failed to complete the home study on March 22 and July 19, 2005, even though the study had been ordered for those dates. Counsel for the Department observed the Department had filed Adoption Progress Reports for both hearings and that these reports had provided detailed information with respect to the impediments the Department had encountered in completing the home study. Counsel indicated these delays did not involve negligence on the part of the adoptions worker, who was present in court. Smith then personally addressed the juvenile court and recounted the information contained in the Adoption Progress Reports. Smith further indicated the Department would not have approved the home study in any event while the additional three children remained in the home.

The juvenile court responded these explanations did not alter the fact it had taken “close to ten months to get something done that shouldn’t take more than ninety days and now notice isn’t even right. And, you know, what, there is a lot of wear and tear on this court and everyone having to do these hearings over and over again, and if the Department can’t get its act together, they are going to pay for it . . . .”

Counsel for the Department objected the adoptions worker had given reasonable justification for the delay and disagreed this was a situation in which the Department did not have “its act together.” The juvenile court responded: “[W]e finally get the home study done and now we don’t have proper service.” Counsel for the Department conceded there was an issue with service, “but with respect to completing -- “ The juvenile court interrupted and stated: “[Y]ou know, I’m ordering sanctions. I’m ordering $200 sanctions and the Department can pay it on November 4th.”

Later in the hearing, the juvenile court continued the scheduled selection and implementation hearing to November 28, 2005, finding notice defective.

The minute order for the hearing of October 26, 2005 indicates the juvenile court found the Department had failed to comply with an order requiring submission of the home study on September 22, 2005, as follows: “No good cause appearing for such delay, or substantial justification having been presented as to why the report was not in court and available for immediate distribution on the date set for hearing, the court orders the Department” to pay $200 to the clerk of the court within seven days.

DISCUSSION

1. Applicable legal principles.

Code of Civil Procedure section 177.5 (hereinafter section 177.5) permits a court, in an appropriate case, to order sanctions for the failure of a party to comply with a court order.^[2] (Bergman v. Rifkind & Sterling, Inc. (1991) 227 Cal.App.3d 1380, 1387.) “Section 177.5 was enacted in 1982 at the request of the superior courts of Los Angeles and San Diego Counties. (Enrolled Bill Mem. Assem. Bill No. 3573, dated Sept. 23, 1982.) According to the author of the bill and its proponents, section 177.5 was enacted to ‘insure all parties are present and prepared for court appearances’ and ‘to help eliminate unnecessary delays in civil proceedings.’ (Enrolled Bill Rep., Assem. Bill No. 3573.)” (Seykora v. Superior Court (1991) 232 Cal.App.3d 1075, 1080.)

An order for monetary sanctions requires “a knowing violation of a valid order of the court without good cause or substantial justification.” (Winikow v. Superior Court (2000) 82 Cal.App.4th 719, 726.) We review the imposition of monetary sanctions for an abuse of discretion. (In re Woodham (2001) 95 Cal.App.4th 438, 443; 20th Century Ins. Co. v. Choong (2000) 79 Cal.App.4th 1274, 1277; Moyal v. Lanphear (1989) 208 Cal.App.3d 491, 501.)

2. The Department’s arguments.

The Department contends the failure to complete the home study by September 22, 2005 was caused by the prospective adoptive parents who canceled an interview and failed to provide employment verification. Thus, the violation was beyond the control of the Department. (Mowrer v. Superior Court (1969) 3 Cal.App.3d 223, 231-232 [a trial court cannot reasonably require a deputy public defender to be present from 9:00 a.m. until 5:00 p.m. unless excused where the deputy represented defendants in numerous other courtrooms in the building].) Also, the Department asserts it did not violate the blanket order of 1996 referred to by the juvenile court, which addresses the timely filing of court reports, because a home study is not a report that is filed in court in that it is not a statutorily required report. (See In re Marina S. (2005) 132 Cal.App.4th 158, 166 [a home study need not be completed before a juvenile court terminates parental rights].) The Department notes a home study should not be confused with an adoption assessment, required by Welfare and Institutions Code section 366.22, subdivision (b), which evaluates whether a child is likely to be adopted.

The Department argues the adoptions worker, Smith, testified the home study was complete on September 22, 2005, except for verification of prospective adoptive mother’s employment and the interview of the prospective adoptive parents. The employment verification was delayed by prospective adoptive mother who lost the necessary forms and had been supplied new copies. The interview, which had been scheduled for July 18, 2005, was postponed by the prospective adoptive mother due to the numerous other demands on her time. The interviews were conducted on September 22, 2005.

The Department asserts it lacked the ability to order prospective adoptive mother to comply with the juvenile court’s order. Although the juvenile court itself could have ordered her compliance, it did not. The Department claims the juvenile court’s dissatisfaction with the time required to finalize the home study did not justify the order sanctioning the Department. The Department concludes the juvenile court’s “offhand imposition of sanctions” “detract[s] from that court’s stature and its efficient functioning.”

3. No abuse of the juvenile court’s discretion appears.

Although the record reveals prospective adoptive parents were extremely busy with the additional children in their home, the Department failed to demonstrate that the increased demands on the time of the prospective adoptive parents was such that the Department could not conduct the required interviews or obtain the necessary employment verification within the time allotted by the juvenile court. Although prospective adoptive mother cancelled an interview scheduled for July 18, 2005, it was rescheduled for July 20, 2005. Assuming for the sake of discussion that interview also was cancelled, the Department thereafter had substantial time within which to reschedule the interview. However, the interview was not conducted until the date set by the juvenile court for completion of the home study.

The failure to obtain prospective adoptive mother’s employment verification is even more glaring. The Department blames this failure on prospective adoptive mother’s misplacement of the necessary forms. However, this occurred sometime prior to July 22, 2005, in that the loss of the forms was mentioned in the report prepared for that date. This left adequate time for the Department to replace the form and verify prospective adoptive mother’s employment by September 22, 2005. This task is no more difficult than others on the checklist that were completed timely, such as obtaining criminal clearances, references, a copy of the marriage certificate, the children’s school reports, etc.

Moreover, the adoption worker indicated in the report of July 22, 2005, that she would “continue in her interviews and collecting paperwork until November, when the additional children are expected to leave, and the home study can be approved at that time.” The report of September 22, 2005 does not indicate the date on which the three additional children left prospective adoptive parents’ home. It indicates only that they “recently” had departed. Had the adoptions worker followed through on her representation that she would continue in her efforts to conduct the necessary interview and obtain the employment verification, the home study would have been ready for approval as soon as the three additional children left the home. In these circumstances, the juvenile court reasonably could conclude the Department failed to establish good cause or substantial justification for violating the order to complete the home study by September 22, 2005. (Winikow v. Superior Court, supra, 82 Cal.App.4th at p. 726; Seykora v. Superior Court, supra, 232 Cal.App.3d at p. 1081.)

Additionally, the juvenile court’s sanction order comports with the purpose of section 177.5, namely, “ ‘to help eliminate unnecessary delays in civil proceedings.’ “ (Seykora v. Superior Court, supra, 232 Cal.App.3d at p. 1080.) Here, the Department’s failure to complete the home study in a timely fashion necessitated a continuance of the selection and implementation hearing. As the Department correctly observes, a completed home study is not a necessary prerequisite to termination of parental rights. (In re Marina S., supra, 132 Cal.App.4th at p. 166.) However, the juvenile court reasonably could insist on completion of the home study before termination of parental rights in order to minimize the possibility of a failed adoption which would render the five children involved in this case legal orphans, a result the law abhors. (In re Jayson T. (2002) 97 Cal.App.4th 75, 85, disapproved on other grounds In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)

In sum, the record reveals the juvenile court exercised its discretion in a reasonable manner in accordance with the purpose of section 177.5. Consequently, it would be inappropriate for this court to disturb the order for monetary sanctions. (In re Woodham, supra, 95 Cal.App.4th at p. 443; Moyal v. Lanphear, supra, 208 Cal.App.3d at p. 501.)

DISPOSITION

The order directing the Department to pay $200 in sanctions is affirmed. The temporary stay previously issued by this court is discharged.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

KITCHING, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line Lawyers.

^[1] Generally, sanction orders of less than $5,000 are reviewable only on appeal from the final judgment or by petition for extraordinary writ. (Code Civ. Proc., § 904.1, subd. (b).) However, in juvenile dependency matters, all postdispositional orders “ ‘are directly appealable without limitation . . . .’ “ (In re Daniel K. (1998) 61 Cal.App.4th 661, 668; see Welf. & Inst. Code, § 395.)

^[2] Section 177.5 provides: “A judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the [county in which the judicial officer is located,] for any violation of a lawful court order by a person, done without good cause or substantial justification. . . . For the purposes of this section, the term ‘person’ includes a witness, a party, a party’s attorney, or both. Sanctions pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers; or on the court’s own motion, after notice and opportunity to be heard. An order imposing sanctions shall be in writing and shall recite in detail the conduct or circumstances justifying the order.”