In re B.C







Filed 1/27/11









CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re B.C., a Person Coming Under the Juvenile Court Law.

B219979 (Los Angeles County

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. E.C., Defendant and Appellant; N.D., Intervener and Appellant. ___________________________________ In re B.C., a Person Coming Under the Juvenile Court Law. ___________________________________ LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. E.C., Defendant and Respondent; E.O. et al., Interveners and Appellants; N.D., Intervener and Respondent; B.C., Appellant.

Super. Ct. No. CK74820) B223063

STORY CONTINUE FROM PART I….


2. Denial of Mother’s Section 388 Petition Was Not an Abuse of Discretion
Mother argues that the summary denial of her Welfare and Institutions Code section 388 petition constituted an abuse of discretion. Mother goes on to argue that the trial court erred in not appointing a guardian ad litem for her at the detention hearing.
Initially, we believe a Welfare and Institutions Code section 388 petition cannot be used to challenge the court’s failure to appoint a guardian ad litem in this manner. Mother’s argument for a modification of the placement order is not based on a change of circumstances or new evidence. Instead, mother argues that if a guardian ad litem had been appointed, “it is plausible” that a guardian ad litem experienced in dealing with individuals with mental disorders would have been able to elicit from her information regarding her family, thus “it is more than likely” that her relatives would have been located at the start of the case, and therefore minor would have been placed with them from the beginning.[1] Even if every link in this causal chain were well-supported, the argument would not justify the relief mother sought: placement of the minor with aunt. Welfare and Institutions Code section 388 provides for a modification of an order based on a change of circumstances or new evidence and the best interests of the child, not a modification of an order based on what would have happened had the court made a different order one year earlier. In other words, even if the court had erred in failing to appoint a guardian ad litem for mother at the detention hearing, that error would not justify placing the minor with his aunt.
In any event, mother failed to establish a prima facie case that the trial court had been required to appoint a guaradian ad litem for her at the time of the detention hearing. Under Code of Civil Procedure section 372, a parent who is mentally incompetent must have a guardian ad litem appointed.[2] Mother did not support her Welfare and Institutions Code section 388 petition with any expert declarations or medical records indicating that she was mentally incompetent and required a guardian ad litem.[3] In her reply brief on appeal, she simply argues that the court “was well aware of mother’s mental condition and knew or should have known she was incapable of participating in the case in any meaningful way.” We disagree. At the detention hearing, the court expressed concern regarding mother’s muteness, and indicated an intent to address the issue of possible appointment of a guardian ad litem at the next hearing. Mother, however, disappeared prior to this hearing, so her mental condition could not be further evaluated. The court’s chosen procedure was not erroneous. Thus, mother wholly failed to establish any basis on which the court may have erred in failing to appoint a guardian ad litem, justifying the court’s summary denial of her Welfare and Institutions Code section 388 petition.

3. The Dependency Court Abused Its Discretion
When It Granted a Continuance on February 2, 2010
Welfare and Institutions Code section 352, subdivision (a) provides that if it is not contrary to the interests of the minor child, a trial court may grant a continuance in a dependency case for good cause shown, for the period of time shown to be necessary, and further provides that when considering whether to grant a continuance the court “shall give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.” The trial court’s ruling on whether a request for a continuance came within those guidelines is reviewed for abuse of discretion. (In re Elijah V. (2005) 127 Cal.App.4th 576, 585.)
In order to obtain a continuance of a hearing, written notice shall be filed at least two court days prior to the date set for the hearing, “unless the court for good cause entertains an oral motion for continuance.” (Welf. & Inst. Code, § 352, subd. (a).) Moreover, the motion shall be served on the parties at least two court days before the date set for the hearing. (Cal. Rules of Court, rule 5.550(a)(4).) In this case, mother’s February 2, 2010 motion for a continuance was neither filed nor served two days prior to the date set for the hearing. Thus, the motion was untimely, and could only have been “entertain[ed]” if there was good cause for the last-minute oral motion. As we discuss below, there was neither good cause for the untimely motion, nor for the continuance itself.
We consider the relevant chronology in some detail. The Welfare and Institutions Code section 366.26 hearing was initially set for August 28, 2009, and subsequently continued to December 10, 2009, to allow a bonding study to be completed. As new counsel had been appointed for mother, the hearing was again continued to January 5, 2010.
Mother’s attorney concedes that, on December 10, 2009, she learned the identity of mother’s public guardian conservator. However, mother’s counsel did not speak to the conservator until December 30, 2009. Immediately thereafter, mother’s counsel forwarded the relevant documents from the case file to the conservator. This included notice of the January 5, 2010 hearing.
At the January 5, 2010 hearing, the court was made aware of the conservator. The court again continued the proceedings – both because counsel for DCFS declared a conflict and because the conservator was not prepared. The matter was continued to January 7, 2010 for trial setting.
Mother’s attorney spoke with the conservator on January 5, 2010, at which time the conservator refused to communicate with mother’s counsel without the advice of (conservator’s) counsel. On January 7, 2010, the matter was set for hearing on February 2, 2010. On January 14, 2010, the conservator was served with a “Citation to Appear” for the February 2, 2010 hearing. On February 1, 2010, the conservator informed mother’s counsel of mother’s wishes to file a relinquishment of parental rights. On February 2, 2010, the day of the hearing, mother’s attorney filed and served the request for continuance.
It is clear that, by mid-January 2010, the conservator had been given the necessary documents from the dependency case, and was aware that the hearing was set for February 2, 2010. There is simply no reason why a motion for a continuance of that hearing could not have been timely filed and served two court days prior to the hearing. Indeed, mother does not offer any reason on appeal. Thus, there was no good cause for an untimely motion for continuance, and the court should not have entertained it.
Moreover, it was clear to the trial court, and all involved, that the continuance was not sought because the conservator was unprepared for the hearing. Instead, the continuance was sought to enable mother to complete her voluntary relinquishment of parental rights in favor of the aunt. As we will discuss in greater detail below, the law is clear that when a voluntary relinquishment becomes final before the Welfare and Institutions Code section 366.26 hearing, the relinquishment precludes the court from proceeding with the hearing. (In re R.S., supra, 179 Cal.App.4th at p. 1152.) We hold, however, that it is not within a child’s best interests to continue an already much-delayed Welfare and Institutions Code section 366.26 hearing in order to enable a parent to complete a last-minute end-run around an anticipated termination of parental rights.
Had mother not obtained a continuance and the hearing went ahead, the trial court would have first considered whether it was in the minor’s best interests to replace him into aunt’s home. Then, the court would have held the Welfare and Institutions Code section 366.26 hearing, determining whether mother’s parental rights should be terminated.[4] In other words, both the temporary placement of the minor and the termination of mother’s parental rights––issues which been awaiting adjudication for more than five months––would have been resolved, with the best interests of the minor being the touchstone of each determination. (Welf. & Inst. Code, §§ 366.26, subd. (h)(1), 388, subd. (d).) Indeed, the mother’s interest in the child’s placement would have been “legally irrelevant.” (Los Angeles County Dept. of Children etc. Services v. Superior Court (1998) 62 Cal.App.4th 1, 11.)
Instead, however, the continuance was granted, which postponed the Welfare and Institutions Code section 366.26 hearing until such time as mother could foreclose it by relinquishing parental rights, by means of a designated relinquishment which gave weight to mother’s interest in placing the child with aunt––a decision which may well have been motivated, not by her evaluation of the child’s best interests, but instead by the fact that placing the child with aunt would guarantee her continued contact with the child, and perhaps even enable her to raise him.
Again, we have no quarrel with the proposition that a parent may voluntarily relinquish parental rights and thereby prevent the dependency court from proceeding with an involuntary termination. However, the dependency court need not grant a continuance in order to enable the parent to complete a pending relinquishment. In a case such as this, where: (1) the hearing had been continued multiple times; (2) the parent intended to complete a relinquishment of parental rights designating adoptive custody to go to a relative; and (3) substantial questions had been raised as to whether placing the child with the relative was in the child’s best interests, granting the continuance was not in the child’s best interests, and therefore constituted an abuse of discretion.

4. The Trial Court Erred in Lifting the “Do Not Remove” Order Without
Considering the Child’s Best Interests
The parties do not seriously dispute that the trial court erred by lifting its “do not remove” order, thereby allowing the child to be placed with aunt, without considering the child’s best interests.[5] However, we discuss the issue in some detail to provide guidance to the dependency court on remand.
Welfare and Institutions Code section 361, subdivision (a) provides that when a minor is adjudged dependent, the court may limit the control to be exercised over the child by the parent. However, these limitations do “not limit the ability of a parent to voluntarily relinquish his or her child to . . . a licensed county adoption agency at any time while the child is a dependent child of the juvenile court . . . .” (Welf. & Inst. Code, § 361, subd. (b).) Family Code section 8700, in turn, provides that either parent may relinquish a child to a licensed adoption agency.[6] Subdivision (f) of Family Code section 8700 provides that “[t]he relinquishing parent may name in the relinquishment the person or persons with whom he or she intends that placement of the child for adoption be made by the . . . licensed adoption agency.”
Although the Family Code provides for a so-called designated relinquishment, it does not specify the weight to be given to a parent’s designation. It is clear that a designated relinquishment will not always result in the child being placed for adoption in the home of the designated adoptive parent, or eventual adoption by said individual. Indeed, the law provides that if the child “is not placed in the home of the named person . . . or the child is removed from the home prior to the granting of the adoption,” the relinquishing parent shall be given notice of that decision and given 30 days within which to rescind the relinquishment.[7] (Fam. Code, § 8700, subds. (g) & (h).) Thus, the Legislature understood that a designated relinquishment would not necessarily result in the child’s adoption by the individuals designated. However, the scope of the adoption agency’s discretion to choose where to place the child who is the subject of a designated relinquishment, and the court’s power to review such a decision, is not set forth in the statutes.
When a child has been freed for adoption by relinquishment, the licensed adoption agency “is entitled to the exclusive custody and control of the child until an order of adoption is granted.” (Fam. Code, § 8704, subd. (a).) As to placement of the child, Family Code section 8710, subdivision (a) provides that “[i]f a child is being considered for adoption, the department or licensed adoption agency shall first consider adoptive placement in the home of a relative . . . .” The statute goes on to provide that “if placement with an available relative is not in the child’s best interest . . . , the foster parent or parents of the child shall be considered with respect to the child along with all other prospective adoptive parents where” certain conditions are present.[8] The statute provides no guidance as to whether its placement preference provisions are to be considered in a case of a designated relinquishment, or the extent of any court review[9] of an agency’s placement decision.[10]
We can, however, draw an analogy to dependency proceedings. The language of Family Code section 8704, subdivision (a), which provides that the licensed adoption agency to which a child has been freed for adoption “is entitled to the exclusive custody and control of the child until an order of adoption is granted,” applies not only to relinquishments, but also when a child has been freed for adoption by termination of parental rights. The question has arisen as to whether the agency’s “exclusive” custody and control was nonetheless subject to court review. Cases determined that the agency’s jurisdiction was not “unfettered,” and that the dependency court could nonetheless review an agency’s exercise of discretion regarding post-termination placement.[11] (Fresno County Dept. of Children & Family Services v. Superior Court (2004) 122 Cal.App.4th 626, 649-650.) The courts could overrule an agency’s post-termination placement decision if it was patently absurd or unquestionably not in the child’s best interests.[12] (In re Harry N. (2001) 93 Cal.App.4th 1378, 1397 & fn. 20; Department of Social Services v. Superior Court (1997) 58 Cal.App.4th 721, 724-725.)
Subsequently, the Legislature concluded that this limited oversight was not sufficient. Welfare and Institutions Code section 366.26 was amended to include subdivision (n), which provides that, “(1) [n]otwithstanding Section 8704 of the Family Code [that is, notwithstanding the adoption agency’s exclusive custody or control of a child after the termination of parental rights], the court, at a [Welfare and Institutions Code section 366.26] hearing . . . or anytime thereafter, may designate a current caretaker as a prospective adoptive parent if the child has lived with the caretaker for at least six months, the caretaker currently expresses a commitment to adopt the child, and the caretaker has taken at least one step to facilitate the adoption process.” The legislative history of this subdivision indicates that it was intended to expand the court’s oversight of a child’s placement after parental rights have been terminated. (Wayne F. v. Superior Court (2006) 145 Cal.App.4th 1331, 1337-1339.) “[I]n enacting subdivision (n) the Legislature intended that following termination of parental rights the juvenile court, rather than any social services or adoption agency, will determine whether a child should be removed from a home in which the child ha[s] been for at least six months and that removal may be ordered only if it is in the best interest of the child.” (Id. at p. 1341.) However, this language applies only at or after a Welfare and Institutions Code section 366.26 hearing. When a voluntary relinquishment precludes a court from proceeding with the Welfare and Institutions Code section 366.26 hearing, the court has no authority to designate a current caretaker as a prospective adoptive parent. (In re R.S., supra, 179 Cal.App.4th at pp. 1153-1154.) Nonetheless, the court still retains its limited authority to disapprove an agency placement decision if the agency’s decision is patently absurd or unquestionably not in the minor’s best interests. (Id. at p. 1150.)
In this case, the trial court erred in not considering whether placement with the child’s aunt––as designated by mother and intended by DCFS––was patently absurd or unquestionably not in the child’s best interests. DCFS suggests that any error in this regard was harmless, as there “is no evidence or can . . . be no viable argument made” that this decision was patently absurd or unquestionably not in the child’s best interests. We disagree. While the issue is one for the trial court to address, we note the following: (1) aunt’s pre-bonding study visitation with minor was sporadic; (2) while minor apparently possessed the skills to transfer to others, he continually exhibited distress while with aunt and did not appear to trust her care; (3) the bonding study concluded that “it would be detrimental” to change minor’s placement to aunt, as minor had formed only an insecure attachment to her; (4) although the bonding study recommended frequent and consistent visits, aunt visited only three times in the following two months; (5) although DCFS believed the bonding study’s concerns could be ameliorated through attachment-based therapy, it did not arrange for such therapy; and (6) there was evidence that aunt did not truly want custody, and expressed the wish that she had never been located. Most disturbing is the fact that there was evidence that aunt did not intend to parent minor herself, but instead indicated an intent to allow mother to raise minor. The idea that this designated relinquishment was merely a ruse to avoid termination of mother’s parental rights and to allow mother to raise the minor, although aunt would legally adopt him, cries out for investigation. Such a situation would unquestionably not be in the child’s best interests.
While the trial court erred in not considering whether placement with aunt would unquestionably not be in the child’s best interests, we are not blind to the fact that significant time has elapsed. Circumstances may well have changed. Certainly, if aunt has visited frequently and consistently, and if aunt and minor have engaged in attachment-based therapy, the child may have established a secure, bonded relationship with aunt. It may also be that aunt continued to visit only sporadically and failed to establish a bond with minor. We are most concerned with the best interests of this child.
Thus, while we reverse and remand for further proceedings in the dependency court,[13] we emphasize that in determining whether DCFS’s expressed intent of placing minor with aunt is patently absurd or unquestionably not in his best interests, the court may consider circumstances that have arisen since the filing of these appeals.
DISPOSITION
The orders (B219979) from which Mother and the maternal aunt have appealed are affirmed. The orders (B223063) from which B.C. and his de facto parents have appealed are reversed and the cause is remanded for further proceedings consistent with the views expressed herein.
CERTIFIED FOR PUBLICATION




CROSKEY, Acting P. J.


We concur:


KITCHING, J.




ALDRICH, J.



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