In re LAUREN

Filed 1/11/08

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

Story continues from Part I ..

C.

Margaret contends the dependency court abused its discretion when it refused to place Lauren with Fanny. We disagree.[1]

It is true, as Margaret contends, that family preservation is the first priority when dependency proceedings are commenced. (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787.) It is for precisely this reason that the Department did everything within its power to expedite the ICPC process so that Lauren could be placed with Fanny in Florida. Problems -- Fannys reluctance to agree to adoption, the issues about Laurens present and future medical needs and the attendant concerns about Fannys willingness to relinquish Laurens claim to federal funding and, primarily, Floridas frustrating refusal to acknowledge the human element of these proceedings and its bureaucratic adherence to its own time schedule -- nevertheless arose and time went by. Lauren, now about three years old, bonded with her foster parents. Fanny, notwithstanding her apparent financial security and the dependency courts urging, did not visit and remained a stranger. Under these circumstances, Laurens best interests have to prevail over all other considerations, and those interests are plainly served only by adoption by her foster parents. ( 361.3; In re Stephanie M. (1994) 7 Cal.4th 295, 318-319 [even when the preference applies, it does not overcome the juvenile courts duty to determine the best interest of the child]; In re Robert L. (1993) 21 Cal.App.4th 1057, 1068 [the childs best interest must be the linchpin of the courts analysis]; In re Luke L. (1996) 44 Cal.App.4th 670, 680; In re Diamond H. (2000) 82 Cal.App.4th 1127, 1137.)[2]

We therefore conclude that the trial court did not abuse its discretion when it refused to place Lauren with Fanny, and trust Margaret understands that severing the family unit the foster parents have created would have devastating consequences to Laurens best interests. (Crystal R. v. Superior Court (1997) 59 Cal.App.4th 703, 724.)

DISPOSITION

The orders are affirmed.

CERTIFIED FOR PUBLICATION.

VOGEL, Acting P.J.

I concur:

JACKSON, J.*

______________________________________________________________________________

*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

ROTHSCHILD, J., Dissenting.

I dissent on the ground that the dependency court erred in rejecting placement with Margarets sister Fanny and terminating Margarets parental rights. As discussed below, the primary rationale for the majoritys decision is that so much time had elapsed since the commencement of the dependency proceeding that, by the time of the dependency courts last hearing, Lauren had bonded with her foster parents and thus would be better off with them than with her natural mother. The majoritys approach gives far too much weight to the amount of time that a child resides with a foster parent, gives inadequate weight to facts that warranted placement of Lauren with her aunts family, and ignores the insidious effect on the child welfare system of using the failure of the system itself as justification for the termination of parental rights.

I

The paramount goal in the initial phase of dependency proceedings is family reunification. (In re Precious J. (1996) 42 Cal.App.4th 1463, 1472 [Family preservation, with the attendant reunification plan and reunification services, is the first priority when child dependency proceedings are commenced.  [Citation.] . . .].) The Legislature has defined the childs best interest as reunification throughout that phase unless the dependency court finds that reunification would be detrimental to the child. (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787; In re Precious J., supra, 42 Cal.App.4th at p. 1472.) Absent a finding of detriment, even incarcerated parents are entitled to reasonable reunification services, whatever the likelihood of success.  (In re Brittany S. (1993) 17 Cal.App.4th 1399, 1406-1407 (Brittany S.) [The effort must be made to provide suitable services, in spite of the difficulties of doing so or the prospects of success.]; see also In re Precious J., supra, 42 Cal.App.4th at p. 1472.)  Visitation is a critical component, probably the most critical component, of a reunification plan.  (In re Luke L. (1996) 44 Cal.App.4th 670, 679; see also In re Monica C. (1995) 31 Cal.App.4th 296, 308-310.)  The relative placement preference, another part of the initial phase of dependency proceedings, is designed to facilitate reunification and visitation by placing a child with caregivers who will favor the goals of reunification and visitation and will be less likely than other foster parents to compete with the biological parents for custody of the child.  (Welf. & Inst. Code, 361.3[3]; Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1031-1032; see also In re Sarah S. (1996) 43 Cal.App.4th 274, 284-286 [ 361.3 places the relative at the head of the line when the court is determining which placement is in the childs best interests[.]].)  Only [a]fter the termination of reunification services [does] the parents interest in the care, custody and companionship of the child cease to be paramount.  (In re Stephanie M. (1994) 7 Cal.4th 295, 317; see also In re Elizabeth R. (1995) 35 Cal.4th 1774, 1788; Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1386.)  All of these considerations favor Margarets position.

II

The majority offers several reasons for its decision affirming the denial of placement with Fanny and termination of Margarets parental rights, but its primary rationale is that so much time has passed that it is in Laurens best interest to remain permanently with her foster parents and to terminate Margarets parental rights.  I address this rationale below.  None of the other reasons offered by the majority as a basis for rejecting placement with Margarets sisters family and terminating parental rights warrants the result the majority favors.

The majoritys reliance on the opinion of the Department of Children and Family Services (DCFS) that Fanny herself was not a preferable alternative to the California couple is not justified by the governing law or the facts in this case.  The law of California clearly and indisputably prefers initial placement with a relative over placement with non-relatives.  Section 361.3 command[s] that relatives be assessed and considered favorably, subject to the juvenile courts consideration of the suitability of the relatives home and the best interests of the child during the reunification phase of dependency proceedings.  (In re Stephanie M., supra, 7 Cal.4th at p. 320, italics omitted.)

The record demonstrates that (i) Margaret wished to have Lauren placed with Fanny and her family; (ii) Fanny and her husband were approved by the Florida welfare agency as licensed caregivers; (iii) Fanny wanted Lauren placed with her and was ready to adopt her or accept other permanent placement; and (iv) placement with Fanny would facilitate visitation by Lauren with her mother.  On this last point, the majority is correct that telephone and face-to-face visitation were impossible because of Laurens age and because her foster parents resided in Los Angeles.  These facts argue, however, for the very solution that Margaret and her sister Fanny were advocating: the placement of Lauren with Fanny in Florida where she could visit and bond with her mother.

The majority also doubts Fannys suitability on the ground that she did not exhibit sufficient enthusiasm for adoption.  (Maj. Opn. ante, at pp. 5, 6, 15.)  In my opinion, the record does not justify this doubt.  In a letter dated April 23, 2006, Fanny wrote to DCFS, [W]e ask that we still be considered to care for Lauren, either for adoption or long-term relative care[.] She further noted, We are greatly concerned that due to all the delays . . . Lauren will not be placed with her family.  My husband and I have worked diligently to follow all requests and the delays between the two states do not reflect our efforts.  Further, an August 8, 2006 DCFS report confirms that [Fanny] has stated clearly that she and her husband wish to have Lauren placed in their care and that [they] will adopt Lauren if Mother cannot reunify and Parental Rights are eventually terminated. As discussed above, one of the reasons that placement with a relative is preferred over placement with a non-relative is that relative placement is less likely to lead to conflict with the caregiver when the natural parent is able to resume her parental responsibilities.All that should have been required of Fanny is that she and her husband wanted to have Lauren placed with them, that they were suitable foster parents, and, in the event reunification with Margaret proved impossible, that she wanted to adopt Lauren. The record establishes each of these factors.

DFCS cited as an additional ground for denying placement with Fanny and her family that the Florida child welfare system was not up to the job of monitoring Laurens placement with them.  Although as Californians, we are confident that we do things better here than anywhere else, we doubt the citizens of Florida would share that view. Moreover, the very nature of the Interstate Compact on the Placement of Children (ICPC) placement process requires child welfare agencies to rely upon their counterparts in other states. It was the job of Floridians, not Californians, to conduct a relative placement home study of Fannys home, and the proper role of DCFS was to respect the Florida officials favorable determination on that issue.

Among the other factors that apparently persuaded the majority to affirm the termination of Margarets parental rights is that Margaret is less than an ideal mother. The majority cites her drug addiction and criminal record, both relevant factors, but in themselves not sufficient under our law to deprive her of parental rights.  Indeed, it is not the job of the welfare system to pick the better parent but rather, as a primary goal, to achieve reunification with the actual parent.  (See In re Kimberly F. (1997) 56 Cal.App.4th 519, 529-530.)  It is relevant here to note that the dependency court did not find that reunification with Margaret would be detrimental to Lauren.  In regard to Margarets incarceration, the comment of the court in Brittany S. is apposite: While use a gun, go to prison may well be an appropriate legal maxim, go to prison, lose your child is not. (Brittany S., supra, 17 Cal.App.4th at p. 1402.)

As noted above, however, the real ground for the majoritys decision is that so much time had elapsed since the commencement of the dependency proceeding that Lauren had bonded with her foster parents and therefore is better off with them than with her aunt or her natural mother. I do not agree. This approach gives far too much weight to the amount of time that a child resides with a foster parent.  As the court in In re Kimberly F. observed, although a childs bond to foster parents is an important consideration in dependency proceedings, it cannot be dispositive . . . lest it create its own self-fulfilling prophecy.  (In re Kimberly F., supra, 56 Cal.App.4th at p. 531.)  The courts observation is particularly appropriate in this case because the delays that enabled the bonding and stability that so impress the majority occurred as a direct result of the failure of the California and Florida child welfare agencies to manage the reunification process in the manner required by the special circumstances of this case.[4]

Moreover, the focus on stability and permanence becomes paramount only after reasonable reunification services have been extended and terminated.  (See In re Stephanie M., supra, 7 Cal.4th at p. 317.)  In this case, because of the delays noted in the majoritys decision, DCFSs refusal to recognize that Fannys family provided the legally preferable placement for Lauren, and DCFSs failure to provide Margaret with assistance within the Florida prison system that would contribute to the possibility of reunification, the child welfare system itself created the facts which it then used to justify the termination of parental rights.  In a situation like this, in which a parent failed to receive reasonable reunification services during the reunification period, reunification services should be extended beyond the normal statutory deadlines.  (See 352; Brittany S., supra, 17 Cal.App.4th at pp. 1406-1408; In re Elizabeth R., supra, 35 Cal.App.4th at pp. 1797-1799; Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1015-1019; In re Monica C., supra, 31 Cal.App.4th at pp. 306-311; In re Dino E. (1992) 6 Cal.App.4th 1768, 1778-1780.)

III

In concluding that DCFS provided reunification services to Margaret that were reasonable under the circumstances, the majority agrees with DCFSs argument that Margaret placed herself out of the reach of any meaningful rehabilitative services that [DCFS] could have provided, like the father in Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 970-971.  (Maj. Opn. ante, at pp. 14-15.)  To the extent the majoritys statement implies that simply by being incarcerated, Margaret lost her entitlement to any reunification services, it is contrary to the holding in Brittany S., supra, 17 Cal.App.4th 1399.  Nor does Elijah R. so hold.  In Elijah R., a father with a criminal record reoffended and was incarcerated in Nevada after dependency proceedings involving his daughter commenced. Further, for the seven months prior to his incarceration he had failed to take advantage of the reunification or visitation opportunities DCFS provided.  (Elijah R. v. Superior Court, supra, 66 Cal.App.4th at pp. 967-971.)  Margaret did not reoffend and did not fail to take advantage of reunification services. Indeed, although no services were provided to her, on her own she sought out and participated in available prison programs.[5]

Rather, Margarets situation is like that of the mother in Brittany S.  In Brittany S., as in this case, the incarcerated mother cooperated to the best of her ability in the reunification process.  (Brittany S., supra, 17 Cal.App.4th at pp. 1403, 1407.)  In Brittany S., as in this case, the welfare agency failed to manage the case effectively and efficiently, thereby causing the delay that it then used to justify the termination of parental rights.  (Id. at pp. 1402-1404, 1407.)  In Brittany S., as in this case, visitation was the key ingredient that was missing, because the absence of visitation virtually assure[s] the erosion (and termination) of any meaningful relationship between a dependent child and her parent, but the agency failed to take advantage of available opportunities to facilitate visitation, as DCFS did in this case by not placing Lauren with Fanny.  (Id. at p. 1407.) In Brittany S. the appellate court concluded, as we should in this case, that the dependency court erred in terminating parental rights. (Id. at p. 1407.)

In re Monica C., supra, 31 Cal.App.4th 296, is also instructive. In Monica C., the child welfare agency provided minimal reunification or visitation services to a mother who was sentenced to prison for more than eight years for a parole violation after the dependency proceeding regarding her infant daughter began.  (Id. at pp. 299-303.)  The agency argued that visitation and other reunification services could serve no useful purpose if a parent is incarcerated longer than 18 months, necessarily beyond the statutory deadline for reunification.  (Id. at p. 308.)  The court rejected this argument, noting that the reunification process is designed to help parents build and maintain a relationship with their children even in cases in which the parents ultimately are not able to reunify, such as through the mechanisms of guardianships or relative placements.  (Id. at pp. 308-310.)  The court reasoned, The purpose of dependency proceedings, and in particular of reunification services, is to safeguard parents rights to raise their own children whenever this can be done without prejudice to the welfare of the child.  [Citations.] . . . [I]f reunification services are to serve the statutory purpose of safeguarding parental interests, they should also consider the possible merit of intermediate solutions [between full reunification and adoption] which preserve some contact between parent and child.  (Id. at pp. 309-310.)  Like the agency in Monica C., DCFS here failed to provide services that would have allowed Margaret to secure an intermediate solution even if full reunification was impossible.  The appellate court in Monica C. required the agency to provide additional reunification services to give the mother the fair chance she earlier had been denied.  We should do the same.

IV

The majority concludes that Margaret has forfeited her right to raise the issue of reasonable reunification services on appeal, citing the decision by our Supreme Court in In re S.B. (2004) 32 Cal.4th 1287, superseded by statute on a different point as stated in In re M.R. (2005) 132 Cal.App.4th 269, 273-274.  The Court in In re S.B. stated that application of the forfeiture rule is not automatic[,] but that a reviewing court may excuse forfeiture in a case that presents an important legal issue.  (32 Cal.4th, supra, at p. 1293.) I find that this is such a case because it raises important legal issues including whether the state may terminate a parents rights as a result of the states own failure to fulfill its responsibilities under the applicable child welfare laws.

V

The judgment terminating Margarets parental rights should be reversed, Margaret should have additional reunification services, and Lauren should be placed with Fanny and her family forthwith pursuant to the relative placement preference expressed in section 361.3.

ROTHSCHILD, J.

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[1] The Department contends that, because Fanny has not appealed, Margaret has no standing to challenge the trial courts rejection of her request for relative placement. (See Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1035; Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 751.) Whatever the merits of this argument in the abstract (and in light of Fannys agreement with the foster parents), we address the issue as part of Margarets challenge to the orders ultimately resulting in the termination of her parental rights.

[2] We know of no way that the Department or the dependency court could have transferred Lauren to Fanny before the licensing process was completed, and Margaret does not suggest how that could have been done. (Fam. Code, 7901, art. 3, subd. (a) [No sending agency shall send . . . into another party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in [the ICPC] and with the applicable laws of the receiving state governing the placement of the children therein], emphasis added.)

[3] All further statutory references are to the Welfare and Institutions Code.

[4] The majority is too generous in its characterization of the performance of the welfare agencies.  Rather than refusing merely to expedite the process, both agencies mishandled the case, causing the unnecessary prolongation of the process.  Although this case proved, from an early date, to be difficult, thus possibly requiring higher-level attention to get the job done, DCFS provided little, if any, such attention.  Moreover, during the crucial first six months of the proceeding DCFS lost track of the case for almost three months, and the Florida agencys management of the case evidenced an unfortunate propensity for bureaucratic obstructionism.

[5] The majority implies that both Margaret and her attorney were equivocal about placing Lauren with Margarets sister in Florida. In her briefs and during oral argument, however, Margarets lawyer stated that Margarets first choice was placement of Lauren with Margarets sister, Fanny. After the hearing, in a letter to this court, Margarets lawyer confirmed this position. Moreover, in a letter to this court, Margaret herself specifically requested that Lauren be placed with Fanny.