Ruth J. v. Sup. Ct.

Filed 3/22/07 Ruth J. v. Sup. Ct. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Robert J. Anspach, Judge.

Ruth J., in pro. per., for Petitioner.

No appearance for Respondent.

B.C. Barmann, Sr., County Counsel, and Susan M. Gill, Deputy County Counsel, for Real Party In Interest.

-ooOoo-

Ruth J. is the former prospective adoptive parent of dependent child J.R. She petitions, in propria persona, for relief from a superior court finding that it was in J.s best interests to remove him from her home (Welf. & Inst. Code,  366.26, subd. (n)(3)(B)).^[1] On review, we will deny the petition.

FACTUAL AND PROCEDURAL HISTORY

In June 2005, respondent Kern County Superior Court terminated parental rights in the case of two-year-old J. freeing him for adoption ( 366.26, subd. (c).). At the time, J. was living with petitioner, who is his paternal grandmother, and her husband. Real party in interest Kern County Department of Human Services (the department) had placed J. in the couples care a year earlier and, as of the termination hearing, designated the couple as J.s prospective adoptive parents.

A year later, in June 2006, the department removed J. from petitioners home. According to the departments information, there was ongoing, escalating domestic violence between petitioner and her husband. Each adult also resorted to inappropriate corporal punishment of their own son as well as J. In a candid moment, petitioner acknowledged that there was conflict between her and her husband ever since the department placed J. in their home. Petitioner and her husband nonetheless denied any domestic violence and appeared committed to remaining together as a couple.

Pursuant to the notice she received at the time of J.s removal, petitioner sought administrative review of the departments action. That review, conducted in July 2006, upheld the departments removal.

However, due to a statutory change which took effect in January 2006, petitioner as well as respondent court and J.s counsel were entitled to notice of the departments emergency removal and the availability of prompt judicial review, as

outlined in section 366.26, subdivision (n).^[2] Petitioner took advantage of this remedy and in November 2006 sought the courts review of the departments June decision to remove J. from her care. In her motion, she argued the department was wrong to remove J. from her home because he was closely bonded to her and she had addressed the allegations against [her] . . . [by] attending counseling and getting a restraining order and obtain[ing] a legal separation from her husband.

The department responded by filing a social workers report detailing the referrals it had received against petitioner and her husband starting in March 2006, its ensuing investigation, and its decision to remove J. as well as detain petitioners own son. In particular, petitioners son had witnessed the ongoing violence in the home and the harm that J. suffered.

At a January 8, 2007, hearing on petitioners motion, no evidence was presented other than that contained in the social workers report and eluded to in petitioners motion. There was no dispute over the timeliness of petitioners motion in light of the departments noncompliance with the notice requirements of section 366.26, subdivision (n)(3).

The hearing focused rather on whether the respondent court should evaluate J.s best interests as of the time of his removal or as of the hearing date. Counsel for the department and J. urged that the court assess the childs best interests as of the June 2006 decision to remove him. Petitioners attorney argued the court should resolve the question of J. s best interests by taking into account petitioners subsequent efforts to correct the problems in her home. Alternatively, counsel argued that in dependency proceedings initiated as to petitioners son, the court found a simple failure to protect the child from his father. Petitioners counsel argued the same should hold true as to J.: at most, petitioner failed to protect him from physical harm; she did not abuse him.

Following submission of the matter, the court voiced its intent to decide the issue of J.s best interests as of when he was removed. Based on the evidence of domestic violence and the unsettled nature of whether petitioners husband would remain in the home, the court found it was in J.s best interests to be removed and denied petitioners motion.

Because the courts ruling was subject to writ rather than appellate review ( 366.26, subd. (n)(5);  366.28), petitioner filed a notice of intent to seek writ review and thereafter filed the petition now pending before this court.^[3]

DISCUSSION

Petitioner contends the department failed to establish it was in .s best interest to remove him from her home. She relies on her testimony, that is, her version of the events that occurred in 2006, which she has set forth in letter form to this court. Also, attached to her letter are documents to evidence her efforts since June 2006 to address the problems identified by the department. Those documents include photocopies of what purports to be: an August 29, 2006, restraining order petitioner obtained to protect her son from her husband; a January 31, 2007, minute order granting a judgment of legal separation for petitioner from her husband; and certificates of completion dated September 13, 2006, and January 18, 2007, from courses offered by the Kern Child Abuse Prevention Council.

While we would agree that it was the departments burden to show J.s best interests required his removal, our role on review is limited to determining whether the record contains substantial evidence to support the trial courts finding that removal was in J.s best interests. (See In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.) All conflicts must be resolved in favor of and all legitimate inferences indulged in to uphold the trial courts decision, if possible. We may not reweigh or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.)

The record prepared in this case supports the trial courts finding of best interests. There was evidence of escalating violence in petitioners home which, at a minimum, placed J. at risk of physical or even emotional harm, if not resulted in actual physical harm to him. The roots of this domestic conflict could also be traced, according to petitioners own statement, to J.s arrival in her home. At the time of his removal, appellant denied any problem with domestic violence, any inappropriate corporal punishment as well as any need for her and her husband to separate. Notably, petitioner did not challenge this evidence in the trial court, as she now tries to do with her testimony.

In addition, the trial court properly relied on the evidence as it existed when the department executed its emergency removal of J. Had the department noticed petitioner in compliance with section 366.26, subdivision (n) in June 2006 and she in turn had sought the superior courts finding of J.s best interests, the superior court was required by section 366.26, subdivision (n) to make its finding within mere days of J.s removal. Thus, it appears from the procedure established in section 366.26, subdivision (n), that the Legislature intended the superior court to decide whether removal was in the childs best interests, based on the circumstances as they existed then, not months later.

DISPOSITION

The petition is denied. This opinion is final forthwith as to this court.

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^*Before Vartabedian, Acting P.J., Levy, J., and Kane, J.

^[1] All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

^[2] Section 366.26, subdivision (n)(3) provides, in pertinent part:

(3) 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 . . . the childs attorney . . . of the proposal in the manner described in Section 16010.6

(A) Within five court days or seven calendar days, whichever is longer, of the date of notification, the child, the childs attorney, or the designated prospective adoptive parent may file a petition with the court objecting to the proposal to remove the child, or the court, upon its own motion, may set a hearing regarding the proposal. The court may, for good cause, extend the filing period. . . .

(B) A hearing ordered pursuant to this paragraph shall be held as soon as possible and not later than five court days after the petition is filed with the court or the court sets a hearing upon its own motion, unless the court for good cause is unable to set the matter for hearing five court days after the petition is filed, in which case the court shall set the matter for hearing as soon as possible. At the hearing, the court shall determine . . . whether the proposed removal of the child from the home of the designated prospective adoptive parent is in the child's best interest, and the child may not be removed from the home of the designated prospective adoptive parent unless the court finds that removal is in the child's best interest. . . . If the caretaker was designated as a prospective adoptive parent prior to this hearing, the court shall inquire into any progress made by the caretaker towards the adoption of the child since the caretaker was designated as a prospective adoptive parent. [] . . . []

(4) Notwithstanding paragraph (3), if the State Department of Social Services or a licensed adoption agency determines that the child must be removed from the home of the caretaker who is or may be a designated prospective adoptive parent immediately, due to a risk of physical or emotional harm, the agency may remove the child from that home and is not required to provide notice prior to the removal. However, as soon as possible and not longer than two court days after the removal, the agency shall notify the court, the caretaker who is or may be a designated prospective adoptive parent, the child's attorney, and the child, if the child is 10 years of age or older, of the removal. Within five court days or seven calendar days, whichever is longer, of the date of notification of the removal, the child, the childs attorney, or the caretaker who is or may be a designated prospective adoptive parent may petition for, or the court on its own motion may set, a noticed hearing pursuant to paragraph (3). The court may, for good cause, extend the filing period.

(5) Except as provided in subdivision (b) of Section 366.28, an order by the court issued after a hearing pursuant to this subdivision shall not be appealable.

(6) Nothing in this section shall preclude a county child protective services agency from fully investigating and responding to alleged abuse or neglect of a child pursuant to Section 11165.5 of the Penal Code.

^[3] The department argues petitioners notice of intent was untimely. We disagree. Ordinarily, her notice of intent would have been due for filing within seven days of the courts ruling. (See Cal. Rules of Court, rule 8.454(e).) However, the seventh day in this case fell on January 15, 2007, a court holiday (Martin Luther Kings birthday). Under these circumstances, petitioners notice of intent filed January 16, 2007, was timely.