Kern Co. Dept. Human Services v. Super. Ct.

Filed 1/18/07  Kern Co. Dept. Human Services v. Super. Ct. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

            ORIGINAL PROCEEDINGS; petition for writ of mandate.  Robert J. Anspach, Judge.

            B.C. Barmann, Sr., County Counsel, and Jennifer L. Thurston, Deputy County Counsel, Petitioner.

No appearance for Respondent.

Law Offices of Rory E. McKnight and Rory E. McKnight, for Real Party in Interest.

-ooOoo-

            Petitioner Kern County Department of Human Services (department) challenges a superior court's December 2006 decision to return two dependent children to their mother's care subject to family maintenance services.  The court reached this decision at the Welfare and Institutions Code section 366.26 stage when the department was recommending termination of parental rights.^[1]  According to the department, the court erred because the mother failed to sustain her burden of proving that both changed circumstances and the children's best interests warranted the return to parental custody.  (§  388.)

            Although the court's decision is an appealable one as a post-judgment order (§  395), the department seeks writ relief in order to expedite review.  As a matter of policy, this court will ordinarily entertain such petitions.  However, on the merits, the department must show the superior court abused its discretion (In re Stephanie M. (1994) 7 Cal.4th 295, 318).  On the record the department has provided, the superior court's decision is supported by that record and does not exceed the bounds of reason.  (Ibid.) 

            Like so many other parents approaching a section 366.26 hearing, the mother in this case petitioned the court to take a different tactic based on her current efforts in dealing with her drug addiction.  She had been in recovery for more than a year.  She did well enough that the court briefly returned the children once before in the spring of 2006.  Despite a relapse in May 2006 and the children's redetention thereafter, the mother re-entered and completed a second round of residential drug treatment and was actively involved in out-patient treatment and relapse prevention.

            Unlike virtually all of the cases we review, the trial court believed the mother's showing and found her circumstances had changed.  While the department challenges the changed circumstances finding, there was evidence to support such a finding.  Also, the mother's credibility was at issue and, clearly from the court's remarks, it was impressed by her testimony and efforts.  

            The real question here was the children's best interests.  The department originally detained the mother's daughters in August 2004 when they were five and three years old.  For virtually all of their dependency, the children were placed with a foster family, who grew committed to adopting the children.  The children appeared very happy in their placement and there was some evidence that both girls would like to remain with their foster family.  Nonetheless, the older child clearly loved her mother and wished she could have more contact with her.  In fact, her first choice would be to live with her mother.  The younger child by contrast displayed a fair amount of anger about her situation after she was redetained.  She claimed she did not want to visit her mother and would pout at least at the outset of multiple visits.  On the other hand, she also told a social worker she would be sad if she never got to see her mother ever again.

            To support its claim of error, the department latches onto the following remark the judge made to the foster family about his decision. 

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