Rita M. v. Sup. Ct.

Filed 10/25/06 Rita M. v. Sup. Ct. CA4/1

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COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PROCEEDINGS for extraordinary relief under Welfare and Institutions Code section 366.28. Hideo Chino, Referee. Petition granted.

Rita M., the former foster mother of J.J., petitions for extraordinary relief after a hearing in which the juvenile court did not designate her as J.J.'s prospective adoptive parent under Welfare and Institutions Code section 366.26, subdivision (n)^[1] and authorized the San Diego County Health and Human Services Agency (the Agency) to remove him from her care. She contends the court erred by finding she did not qualify as J.J.'s prospective adoptive parent and authorizing his removal; the Agency should have been prohibited from opposing her adoption of J.J., the court should have considered her his de facto parent; J.J.'s best interests would be promoted by maintaining his relationship with her and would preserve his relationship with his siblings; and when he was removed from her care he should have been placed with a relative. We hold Rita was not given sufficient notice to allow her to respond adequately to the Agency's concerns about her care of the children in her home. We therefore grant the petition and direct the juvenile court to hold a new hearing.FACTUAL AND PROCEDURAL BACKGROUND

On December 16, 2003, the Agency petitioned on infant J.J.'s behalf under section 300, subdivision (b) based on his mother's, Shelly W., use of illegal drugs. At Shelly's request, J.J. was placed with Rita, who had cared for his older sister. Shelly submitted to the allegations of the petition, and the juvenile court found them true and ordered Shelly to fulfill the requirements of her reunification plan. The social worker reported J.J. thrived in Rita's care.

Shelly did not comply with her reunification services and at the six-month review hearing in July 2004, the court terminated services, continued J.J.'s placement with Rita and set a section 366.26 hearing. The social worker recommended terminating Shelly's parental rights and ordering a permanent plan of adoption for J.J. The Agency assessed him as adoptable. The social worker stated he was bonded and attached to Rita and very comfortable in her home, and Rita, who had cared for him since he was two days old, was committed to him and wanted to adopt him.

At the section 366.26 hearing in May 2005, the court terminated Shelly's parental rights, found J.J. was adoptable, identified adoption as his permanent plan and referred him to the Agency for adoptive placement.

In November 2005 the social worker reported J.J. was continuing to thrive in Rita's home, had a strong bond with her and was very attached to the other children in the home. The social worker noted Rita "will only need to complete an updated adoptive home study as she has previously adopted." In a report dated May 4, 2006, the social worker reported Rita was going through the adoptive home study process for J.J. and for two other children she was adopting; she was providing for J.J.'s needs and was committed to providing him with a loving home.

But in June 2006 the Agency gave notice it intended to remove J.J. from Rita's care. It reported there had been 11 Child Protective Services (CPS) referrals regarding foster children placed in Rita's home and Rita's adoptive home study would likely not be approved. The Agency also noted it had had ongoing concerns because there were six children in the home and Rita worked full time.

The social worker reported another foster child in Rita's home, K.B., told his psychologist that Rita's boyfriend had physically disciplined him and he did not like living in Rita's home. The social worker reported that in June there had been another CPS referral, alleging two other children had been physically disciplined in the home. The social worker further reported the cases of K.B. and his brother, C.B., had been in the adoptions process for three of the four years the children had been in Rita's home, but Rita had not complied with the required procedures. Also, although she had filed an inquiry form to adopt J.J. eight months earlier, she had not completed the paperwork required for an adoptive home study, so the Agency closed the home study. The social worker expressed concern that the children in Rita's home had special needs, there were numerous young children in the home, and Rita worked full time, leaving them in the care of others much of the time. On June 28 the court approved the Agency's decision to remove J.J. from Rita's home.

At a hearing on July 20, 2006, the manager of the Agency adoptions section testified the Agency did not consider Rita a suitable adoptive parent because of the significant number of CPS referrals, the fact she did not comply with the home study process despite numerous attempts by the Agency to get it underway, and there was concern the children in the home were not getting the attention they needed and their special needs were not being addressed. She acknowledged the Agency may not have notified Rita that she would not be approved to adopt.

The court found Rita did not qualify as a court designated prospective adoptive parent and J.J.'s best interests would be served by removing him from her care. It authorized the Agency to remove J.J. from Rita's home.

DISCUSSION

Rita contends the court erred by finding she did not qualify as a court designated prospective adoptive parent under section 366.26, subdivision (n) and by authorizing the Agency to remove J.J. from her care.

I. Rita's Standing to Bring this Petition

The Agency asserts Rita lacks standing to participate in the hearing and to petition this court because she was never designated a de facto parent. It argues section 366.26, subdivision (n) gives only limited rights to a prospective adoptive parent or to a caretaker who may have the qualifications to be designated a prospective adoptive parent: the right to notice of an intention to remove the child and the right to object and ask the court to hold a hearing to review the proposed removal. It argues section 366.26, subdivision (n)(3)(C) provides a caretaker or prospective adoptive parent is not a party to the dependency proceedings unless he or she has been designated a de facto parent, so Rita did not have the right to participate in the hearing or to challenge the court's actions in not naming her J.J.'s designated adoptive parent and authorizing his removal.

We reject the Agency's argument that Rita lacks standing. Section 366.26, subdivision (n)(3)(A) provides a caretaker with the right to petition the superior court for an order designating the caretaker as a prospective adoptive parent. Our analysis of section 366.26, subdivision (n) does not indicate the Legislature intended to foreclose the caretaker from participating in the hearing or challenging the juvenile court's decision on this issue.

Section 366.26, subdivision (n)(1) provides a court may designate a current caretaker who has the following listed qualifications as a child's prospective adoptive parent:

"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."^[2]

A designated prospective adoptive parent and a current caretaker who may qualify as a prospective adoptive parent are entitled to notice of the social services agency's intention to remove a child from the caretaker's home. (§ 366.26, subd. (n)(3).)^[3]

Section 366.26, subdivision (n)(3)(A) provides that after notification of an intent to remove a child, a prospective adoptive parent may petition the court "objecting to the proposal to remove the child, or the court, on its own motion, may set a hearing regarding the proposal." Section 366.26, subdivision (n)(3)(A) further provides:

"A caretaker who would have met the threshold criteria to be designated as a prospective adoptive parent pursuant to paragraph (1) on the date of service of the notice of proposed removal of the child may file, together with the petition under this subparagraph, a petition for an order designating the caretaker as a prospective adoptive parent for the purposes of this subdivision"

Section 366.26, subdivision (n)(3)(B) requires that at a hearing on the matter, the court must determine whether the caretaker has met the threshold criteria to be designated as a prospective adoptive parent and whether the proposed removal of the child from the home of the designated prospective adoptive parent is in the child's best interest. If the court determines the caretaker did not meet the threshold criteria of a designated prospective adoptive parent, the petition objecting to the proposed removal is dismissed.

Because section 366.26, subdivision (n)(3)(A) expressly gives a caretaker who may qualify to be designated a prospective adoptive parent the right to petition for that designation and to object to a proposed removal, that right must include the right to participate in the hearing and the right to petition for review of the juvenile court's decision under section 366.28. We decline to accept the Agency's argument that section 366.26, subdivision (n)(3)(C) indicates a caretaker or designated prospective adoptive parent is not a party and therefore has no right to participate in the hearing or ask for appellate review of the court's decision. Section 366.26, subdivision (n)(3)(C) provides:

"A determination by the court that the caretaker is a designated prospective adoptive parent pursuant to paragraph (1) or subparagraph (B) does not make the caretaker a party to the dependency proceeding nor does it confer on the caretaker any standing to object to any other action of the department of licensed adoption agency, unless the caretaker has been declared a de facto parent by the court prior to the notice of removal served pursuant to paragraph (3)."

This section states only that the designated prospective adoptive parent is not a party to the dependency proceedings and does not have standing to object to any other action of the adoption agency unless he or she is a de facto parent. Rita is not seeking to be a party to the dependency proceedings and she is not objecting to any other action. She expressed her views on the Agency's proposal to remove J.J. and her petition to be named his prospective adoptive parent. She is now seeking review of the one action in which the statute makes her a participant, the court's decision declining to designate her as J.J.'s prospective adoptive parent and authorizing the Agency to remove him from her home. Rita has standing to petition for review of this action.

II. Denial of Rita's Petition for Designated Prospective Adoptive Parent Status

and Order to Remove J.J. from her Care

Rita contends the court erred in not designating her as J.J.'s prospective adoptive parent and argues the Agency was remiss because it did not report child abuse referrals for a year, and then abruptly decided J.J. needed to be removed.

This case concerns us. For more than two years, from November 2003, when J.J. was placed in Rita's home, until May 2006, the Agency social workers reported J.J. was thriving in Rita's home. The social worker reported he visited Rita in June 2004 and observed J.J. sleeping peacefully in his crib. Rita described her care of J.J., and the social worker said he was thriving. In November 2004 a new social worker reported J.J. was healthy, happy, even tempered and extremely loveable. The social worker stated: "He is bonded to [Rita] and is very comfortable and well adjusted in this home. Likewise, [Rita] is very attached to [J.J.], is committed to providing for the child's needs and has expressed a strong desire to adopt [J.J.]." The social worker said Rita had cared for J.J. since he was two days old and "has shown to provide for J.J. and all of his emotional and physical needs." Adoption was again the recommended permanent plan in the May 2005 report. In November 2005 the social worker once again reported J.J. continued to thrive in Rita's home, and he was very bonded to her and to the other children in the home, "with whom he has a very full and busy life." Also in May 2006 the social worker reported J.J. continued to thrive, he was very attached to Rita and to the other children, and Rita was bonded to him and was meeting all of his physical and emotional needs. Notice sent to Rita of a review hearing scheduled for May 4, 2006, stated "No change in the custody, status or any existing court ordered permanent plan for the child." At the May 4, 2006 hearing, the court again found the permanent plan of adoption was appropriate and continued his placement with Rita.

On June 19, however, the social worker filed a request to remove J.J. from Rita's home, stating there had been 11 CPS referrals regarding foster children placed in the home and the adoptive home study would likely not be approved. The Agency further stated it had had on-going concerns that Rita had six young children in her home and works full time, concerns that were never expressed in the social worker's reports on J.J. In the June 27, 2006 addendum report, the social worker reported a psychologist who had evaluated K.B., another child in Rita's home, said K.B. complained that Rita's boyfriend had "whooped him with a belt." K.B. later denied being hit and there were no visible marks. Rita said K.B. frequently lies, but other children in the home corroborated the report. The social worker also said another child reported being hit and said she did not like living in the home. The social worker said there had been 11 CPS non-substantiated referrals for physical discipline. She opined it appeared that Rita was unable to provide the supervision and support the children needed and, since she had not followed up on the requirements of adoptive home studies, it was unlikely she would undergo psycho-education and work to develop the appropriate discipline strategies the children required. In an addendum report, dated July 20, 2006, the Agency again recommended J.J.'s removal and listed the following concerns: the recent alleged physical discipline of K.B. and C.B.; the 11 CPS referrals; the fact that six young children lived in the home; the fact Rita was given a "Special Care Rate" to address the children's special needs and provide one-on-one attention, yet she worked full time and had others caring for the children and taking them to appointments; K.B.'s and C.B.'s difficulties with interpersonal relationships and low self-esteem, which the psychologist suggested was caused by growing up in Rita's home; Rita's boyfriend's residence in the home; and Rita's failure to follow through with the adoptive home studies.

At the hearing on July 20, 2006, the Agency's counsel asked the court to consider the addendum report prepared for the hearing plus an attachment. But Rita was not given the addendum report until the beginning of the hearing. The court briefly adjourned to allow her time to read it. Then Rita responded to the report. She said she disciplined the children properly and never touched any of them. She explained to the court that the Agency had known about her boyfriend staying in the home. She said she had sent in the paperwork concerning the adoptive home study, but the Agency said it had not received it, and there had been a change of social workers. Rita said she did not understand why she could not be approved to be J.J.'s prospective adoptive parent.

The social worker acknowledged Rita may not have been notified she would not be approved to adopt the children in her home. Rita then asked if she had been apprised of the Agency's concern and whether she had been given any support to learn what she needed to do. The social worker said the Agency had been trying to work with her. Rita disagreed. The court found Rita did not qualify as a prospective adoptive parent and authorized the Agency to remove J.J.

"[D]ue process requires 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' " (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418.) "The essence of due process is fairness in the procedure employed." (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 757.)

The circumstances of the case and the hearing lead us to conclude Rita was not treated fairly. Although at the hearing Rita was given the opportunity to present her objections, she was not presented with the social worker's addendum report until just before the hearing began. Indeed, the court needed to call a brief recess so Rita could read the report. During the hearing, in response to Rita's question, the social worker acknowledged Rita may not have been notified that she would not be approved to adopt the children in her home. Rita expressed her confusion during the hearing, stating she could not understand why she would not be approved. This confusion is understandable in light of the fact that for the more than two years while Rita was caring for J.J. in her home, the Agency continued to report that he was thriving and Rita was providing loving care. The Agency acknowledges this and states in their brief it is unknown why the social workers overseeing Rita's foster care of J.J. were not aware of the CPS referrals against Rita. In our view, it is inexcusable that the social workers who were monitoring a child's welfare in foster care did not know of numerous referrals against the foster parent. It is also disturbing that Rita may not have been notified that she would not be approved to adopt and was not provided the social worker's report until the beginning of the hearing.

We reject the Agency's suggestion that Rita had sufficient notice of the Agency's concerns because she had attended two hearings in October 2005. The two hearings to which the Agency refers were "Peer Quality Review" hearings about the Agency's concerns as to the number of children in the home and the quality of care in light of the Special Care Rates Rita was receiving. The report states that after the hearing the hold on Rita's foster care licensing was lifted, but it was decided no other special needs children would be placed with her, and, after she had adopted J.J., K.B. and C.B., she would be allowed to have only three foster children in her home. Although Rita was on notice that the Agency had concerns about her home, she was not provided sufficient notice that J.J. would be removed and she would not be approved to adopt him.

We therefore conclude Rita must be afforded a new hearing, where she will have an adequate opportunity to address the Agency's concerns about her care of J.J. By ordering a new hearing we are not suggesting or implying the outcome, only that Rita be given an opportunity to challenge the accuracy of the accusations leveled against her. As to her additional contentions, we decline to accept her argument that she should have been treated as a de facto parent. She never applied to be J.J.'s de facto parent. She cannot now claim she was entitled to that status. Her situation is distinguishable from that in In re Joel H. (1993) 19 Cal.App.4th 1185. There, although there was no record the juvenile court had determined a relative was the child's de facto parent, she was described at the outset of the removal hearing as the de facto parent and the evidence supported her having this status. (Id. at pp. 1193-1194.) Here, there is no suggestion Rita was described as or considered a de facto parent during any part of the dependency proceedings. We also reject Rita's claims that the court should have applied the exception to adoption of section 366.26, subdivision (c)(1)(A) and the relative placement preference requirement of section 361.3, subdivision (a). These statutory provisions have no application to this case.

DISPOSITION

Let a writ issue directing the juvenile court to vacate its order finding Rita did not qualify as J.J.'s court designated prospective adoptive parent and authorizing the Agency to remove him from her care and to hold a new hearing regarding Rita's application to be named his prospective adoptive parent and the Agency's application to remove him from

her home. No change of J.J.'s current placement is required pending this hearing. This order is final within ten days as to this court. (Cal. Rules of Court, rule 24(b)(3).)

BENKE, Acting P. J.

WE CONCUR:

NARES, J.

HALLER, J.

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^[1] All statutory references are to the Welfare and Institutions Code.

^[2] Steps to facilitate the adoption process within the meaning of section 366.26, subdivision (n) include applying for an adoptive home study. (§ 366.26, subd. (n)(2).) Rita had taken this step.

^[3] Section 366.26, subdivision (n)(3) states: "Prior to a change in placement and as soon as possible after a decision is made to remove a child from the home of a designated prospective adoptive parent, the agency shall notify the court, the designated prospective adoptive parent or the current caretaker, if that caretaker would have met the threshold criteria to be designated as a prospective adoptive parent."