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

APPEAL from orders of the Superior Court of Los Angeles County, Sherri S. Sobel, Temporary Judge (pursuant to Cal. Const., art. VI, 21). Affirmed.

Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Senior Deputy County Counsel, for Plaintiff and Respondent.

John Cahill for Interveners and Respondents.

__________________________________

This is a dependency case in which a drug-addicted mother was arrested in California and extradited to Florida. Her nine-month-old daughter, who tested positive for opiates and cocaine because her mother was breastfeeding her while using drugs, was placed with foster parents. At the mothers request, her sister did everything she could to have the child placed with her in Florida, but the Florida child welfare authorities refused to expedite the process and almost a year elapsed before the Florida family obtained a foster care license. Meanwhile and inevitably, the child (now almost three years old and a complete stranger to her Florida family) bonded with her foster parents who are eager to adopt her. The dependency court, placing the childs best interests first, terminated the mothers parental rights and designated the foster parents as the childs prospective adoptive family. The mother (still incarcerated in Florida) appeals. We affirm.

FACTS

A.

Margaret Z. gave birth to Lauren Z. in January 2005. Nine months later, a police officer investigating a report of drug activity found Margaret, Lauren and a man in a parked car, ran a check on Margarets drivers license, and discovered a Florida warrant for her arrest for drug trafficking and grand theft charges. Margaret was arrested and booked for child endangerment as well as extradition on the Florida warrant. When interviewed that evening by the Department of Children and Family Services, Margaret said she was a heroin addict, that she had left Florida in 2003, and that she had been living in motels in California. She said her mother and sister lived in Florida, and asked that Lauren be placed with one or the other while Margaret attended a drug program. Lauren was detained and placed in foster care in Los Angeles.

A petition was filed on October 12, alleging that Margaret had failed to protect Lauren and that Lauren was at risk based upon Margarets drug problems (in spite of her drug use, Margaret was breastfeeding Lauren). (Welf. & Inst. Code, 300, subds. (b), (g), (i).)[1] Later that month, the Department reported that Margaret had a criminal history in Florida (theft, drug offenses, possession of a firearm, robbery, auto theft, possession of stolen property), and that Laurens father could not be located (he never was), and recommended the usual reunification services, random drug testing, and monitored visits, all of which were ordered.

In November, the Department reported that Margaret, then 35 years old, had continuously used drugs since high school, and that she had been raised by an alcoholic mother and an abusive alcoholic stepfather. Margaret asked the Department to place Lauren with her youngest sister, Fanny A., in Florida. Fanny and her husband, an electrician, have a daughter who was then 16 months old, and they own their home in Florida. According to Margaret, Fanny was willing to care for Lauren until Margaret was released from prison and, to that end, had initiated the process to obtain a Florida foster care license. With a view toward reunification, the Department asked the dependency court to expedite the procedures required by the Interstate Compact on the Placement of Children (the ICPC, Fam. Code, 7900 et seq.) to determine Fannys suitability -- but based on the uncertainty about the charges pending against Margaret, also recommended concurrent permanency planning. Meanwhile, Lauren had been placed with foster parents (John B. and Bruce O.) who had been pre-approved to adopt.

Margaret (in custody) appeared at a November 2 hearing and submitted on the petition. The dependency court struck some of the allegations and, as amended, sustained the petition and ordered the Department to complete an expedited ICPC investigation of Fanny.

B.

The social worker submitted the paperwork for expedited ICPC procedures to the Departments ICPC coordinator in early November 2005, but the papers were returned to the social worker because Florida requires the courts signature. The courts signature was obtained on November 18 and all of the required forms were sent to Florida by December 7, 2005.

Two days later, the Departments ICPC coordinator learned from Fanny that Margaret had been extradited to Florida. During their conversation, the ICPC coordinator explained that Fannys home had to be licensed by Florida before California could send Lauren to her, and also explained that if Margaret was incarcerated for more than 12 months, reunification would be unlikely -- in short, that Fanny would have to decide whether she and her husband were willing to become Laurens permanent adoptive parents. Fanny, shocked and disheartened, nevertheless said her family wanted to have a relationship with Lauren and would go through with the ICPC. She did not commit to adoption.

In response to a telephone call from Fanny and an inquiry from the Alliance for Childrens Rights about expediting the process by changing the ICPC request to a relative placement home study (instead of foster care), the social worker explained to Fanny on January 10, 2006 that Lauren would not qualify for the federal funds for which she is eligible unless Fanny is a licensed caregiver, and that the Florida licensing process takes three months (and could not be expedited). The ICPC coordinator also told Fanny that she could forgo federal funding. When Fanny asked whether Lauren could come to her for an extended visit, the social worker explained that the Department could not send a child to another state without ICPC approval. By that time, Fanny recognized the problem, commenting to the social worker that, By the time we are licensed, she will have been with [her foster parents] for months. I know [it] will be traumatic for her to move. Fanny called back the next day and told the social worker that her family would forgo federal funding and obtain a relative home study in lieu of a foster care license. She still did not commit to adoption.

About two weeks later, the social worker learned from the Departments adoption coordinator that it is important to have a licensed foster care home study on a potential[] adoptive family because the adoption home study can be completed much more quickly with a completed licensed home study -- and that Florida will not even begin the adoption home study process until Florida has been provided proof that there are no legal barriers to adoption. The social worker presented the problem to a resource team within the Department, and the decision was made to request the expedited relative home study while continuing the foster care licensing and home study so that the relative family could still be considered for funding. At that point, the Department was strongly focused on a secure permanent plan for Lauren and did not support any concurrent plan that did not involve the childs adoption. The social worker asked the Departments ICPC coordinator to immediately submit the expedited ICPC relative home study request to Florida.

On January 26, 2006, Florida informed the Department that it would not accept the expedited relative home study request unless the request was signed by a judge rather than a referee, and that it would not accept the request for an expedited review because it was based on a November 2005 minute order. The social worker explained the reasons for the delay, and the ICPC coordinator informed her Florida counterparts that there was no basis for questioning the referees signature.

C.

At the same time the Department was trying to expedite the ICPC process, the social worker was trying to locate Margaret within the Florida prison system. When the social worker finally obtained a jail mailing address, she wrote to Margaret, explaining what she should do while incarcerated (enroll in 12-step and similar programs) and how to reach the Department, and asking Margaret for documentation for completed classes and programs. Margaret called the social worker on January 23, 2006, and said she was facing a maximum of 12 months in prison and possibly only probation. The social worker called the Florida state attorneys office and other agencies in St. Johns, Florida, in search of more information, but her calls were not returned.

For her part, Lauren was living with her foster parents, to whom she was very bonded. Her foster parents conscientiously attended to Laurens medical problems, their adoption home study was completed and approved, and they maintained regular contact with Fanny, repeatedly urging her to call them directly for reports about Laurens progress.

At a hearing held on January 31, 2006, the dependency court expressed its frustration with the ICPC process and, more specifically, Floridas intransigence at a point where time was critical. When Laurens lawyer asked whether the court would agree to have Fanny just come and take Lauren and we can close the case, the court explained that it could not do so without Floridas approval. The court urged the Department to do everything it could before the next hearing, and offered to make phone calls if that would help.

D.

Shortly after the January 2006 hearing, a new social worker took over Laurens case, and in April the replacement social worker went on unexpected medical leave and the case file was dispersed. The original social worker took charge temporarily, but the practical effect was that nothing happened between January and April in California or Florida. On April 4, Florida informed the Department that it could not complete an expedited home study before May because it needed fingerprint checks from the FBI. On April 18, Margaret called to report that she expected to be sentenced to at least some time in prison. Finally, on April 24, the Departments ICPC coordinator received word that Florida had approved Fannys home study report, and the Department was formally notified of the approval on April 27.

In its report for the May 2006 hearing, the Department noted Margarets preference for Laurens placement with Fanny under a long-term guardianship but recommended against it based upon Margarets 20-year history of drug addiction and her substantial criminal record. Assuming that Margaret received a one-year sentence, she would not have been released until May 2007, and the Department viewed her hopes for reunification as unrealistic.

The Department also recommended against placing Lauren with Fanny, in part because Florida would require Fannys family to obtain Medicaid for Lauren and to pay for any uncovered medical expenses. Because Lauren may have medical problems and developmental issues concerning speech and language due to her drug exposure, the Department had serious concerns about Fannys ability to provide the required amount of care. More importantly, the Department was concerned that Fanny expected to rely on her mother to help with Laurens care -- the same alcoholic mother who Margaret blamed for her drug addiction (and from whose care Margaret had been removed at age 15). The Department questioned Fannys commitment to Lauren, noting that her calls to the foster parents and the Department were to discuss the ICPC procedures, and that it was only as an afterthought that she ever inquired about Lauren, and concluded that Fanny, although willing to adopt Lauren if necessary, still hoped to see the child returned to Margaret and planned to take her to visit Margaret in prison. The Department did not question the Florida relatives good intentions, but feared they might be placing Margarets interests above Laurens.

The Department noted that Florida had recently privatized its child welfare system, creating an upheaval in child welfare services and raising doubts about whether Lauren would receive consistent and appropriate monitoring from Child Protective Services in the state of Florida. The Department emphasized its policy and the law, which both are clear that children of Laurens age deserve the most permanent and stable plan available at the earliest opportunity. In Laurens case, this plan is clearly adoption [and it] is not appropriate to grant a guardianship, and certainly not appropriate to consider long term foster care for such a young and adoptable child. The Department noted that Laurens foster parents had an excellent relationship with her, and were providing her with a safe and nurturing home. Given all these considerations, the Department recommended that it was in Laurens best interest to be adopted by her foster parents.

At the May 3 hearing, the court granted the foster parents request for de facto parent status and appointed counsel for both the foster parents and for Fanny and her husband. Margarets lawyer told the court that Margaret would be released the next day into a treatment program, and counsel asked for additional reunification services for her. The trial court, noting that no matter what, this is going to be a heartbreak for somebody, continued the hearing to June 6, 2006, and ordered the Department to make sure that both Margaret and Fanny would be available by telephone that day.

E.

Before the June 6 hearing, the dependency court learned that Margarets lawyer had been mistaken and that, in fact, Margaret had been sentenced to state prison for a term of three years. Accordingly, the court found on June 6 that there was no possibility for Margaret to complete her case plan within the statutorily mandated time, that she had not stayed in touch with Lauren, and that the Department had provided adequate reunification services to Margaret. The court terminated reunification services and set a section 366.26 hearing. Although the court expressly ordered the Department to notify Margaret of her right to seek relief by writ petition, Margaret never received the notice.

By July 2006, Fanny and her husband had completed all the requirements to become licensed foster caregivers. For their part, Laurens foster parents, with whom she had by then been living for nine months, agreed to an open adoption that would include regular contact between Lauren and Margaret and Laurens other Florida relatives. The Departments position was unchanged -- that adoption by the foster parents, the only family she had ever known, was in Laurens best interest, and that it would not be in her best interest to transfer her to a family she had never met. At a July hearing, the court denied Fannys request for de facto parent status, but urged Fanny to visit Lauren in California (she never did) and to have regular telephone contact with the foster parents, and encouraged the foster parents and the family to find a mutually satisfactory arrangement.

In November, Fanny and the foster parents (but not Margaret) signed an Agreement For Post Adoption Contact guaranteeing Fannys right to post-adoption visits with Lauren, memorializing Fannys consent to Laurens adoption by the foster parents, and allowing Margaret to visit Lauren. In court, Margarets lawyer join[ed] with the relatives and thanked the foster parents and Fanny for working out the agreement.

F.

The section 366.26 hearing was held on February 7, 2007. Margaret (appearing telephonically) asked for further reunification services, objected to the termination of her parental rights, objected to the foster parents adoption of Lauren, and insisted that, notwithstanding Fannys agreement with the foster parents, she wanted Lauren placed in Florida. The Department -- joined by Laurens lawyer -- recommended termination of Margarets parental rights and adoption by the foster parents.

After noting that Lauren had just turned two, the court found that Margaret had been unable to establish a relationship with Lauren during the pendency of the case, terminated Margarets parental rights, found Lauren adoptable, and designated the foster parents as the prospective adoptive parents. Margaret appeals.

DISCUSSION[2]

Lauren, now almost three years old, has spent all but the first nine months of her life with her foster parents. She has not seen her mother during that time, and she has never met Fanny or Fannys family. Margaret nevertheless claims that, because she received inadequate reunification services, the order terminating her parental rights should be reversed and that Lauren should be placed with Fanny in Florida.[3] We disagree.

A.

Margaret contends, the Department concedes, and we agree that, because she did not receive notice of her right to file a writ petition challenging the dependency courts termination of reunification services, Margaret may challenge that order on this appeal. ( 366.26, subd. (l); In re Cathina W. (1998) 68 Cal.App.4th 716, 722, 724.)

B.

But we do not agree with Margarets contention that she received inadequate reunification services.

First, the issue was waived by Margarets failure to object at the time services were terminated. Indeed, when the dependency court inquired of her attorney whether there was any information that would allow the court to find there was a substantial probability of return at the 12-month date, Margarets lawyer responded, Not at this time, Your Honor. I will certainly file [a section] 388 [petition] if that is not the case. (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Dakota S. (2000) 85 Cal.App.4th 494, 502; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339; In re Kevin S. (1996) 41 Cal.App.4th 882, 885-886; In re Riva M. (1991) 235 Cal.App.3d 403, 411-412.) No section 388 petition was ever filed.

Second, the argument fails on the merits because substantial evidence supports the dependency courts order. The Department identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with Margaret under the circumstances, and made heroic efforts to assist Margaret in areas where compliance proved difficult. (In re Riva M., supra, 235 Cal.App.3d at p. 414; Armando L. v. Superior Court (1995) 36 Cal.App.4th 549, 554.) The problems were obvious -- Margarets drug addiction and incarceration -- and it was the resolution of those problems that proved insurmountable because Margaret was in custody in Florida and the Florida officials did little if anything to (a) assist the Department in its efforts to comply with the ICPC procedures so that Lauren could be placed with Fanny or (b) respond to the Departments inquiries about Margarets status within the Florida criminal justice system.[4]

Despite these problems, the social worker tracked down Margaret, wrote to her, and spoke to her by telephone, explaining the types of programs she could search for in prison and encouraging her to stay in touch by telephone. Beyond this, there was nothing the Department could do vis--vis Margaret. Lauren was too young to talk to her mother by telephone, and (for all practical purposes) actual visits were out of the question. (See 361.5, subd. (e) [the Department is not obligated to provide reunification services to an incarcerated parent when those services would be detrimental to the child].) And it cannot be disputed that the Department provided reasonable services to Fanny (who may in our view justifiably blame the Florida child welfare officials for the delay, but not the California Department of Children and Family Services). ( 361.5, subd. (e)(1)(D) [services to an incarcerated parent may include services to extended family members].)

Because Margaret placed herself out of the reach of any meaningful rehabilitative services the Department could have provided, no more was required. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 970-971; and see In re Brittany S. (1993) 17 Cal.App.4th 1399, 1406-1407 [criticizing the failure to provide reunification services for a mother incarcerated in facilities that were less than 40 miles from where the child lived].)

Story continues as Part II ..

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[1] Undesignated section references are to the Welfare and Institutions Code.

[2] Although we refer to the issues as Margarets contentions, the fact is that she advised us that, pursuant to In re Sade C. (1996) 13 Cal.4th 952, she was unable to file an opening brief on the merits. Our independent review of the record confirms that counsel was correct, but our dissenting colleague requested briefing on the issues discussed in this opinion -- and it was in response to that request that Margarets arguments were presented. In short, Margarets lawyer recognized the futility of an appeal in this case.

[3] At oral argument and in a post-argument letter brief, Margarets lawyer told us we should not speculate that Fanny no longer wanted to receive placement of Lauren or adopt her solely based on her participation in the contract she entered with Laurens foster parents. She also told us that, recognizing that time has passed and Lauren is bonded to her [foster parents] who have provided excellent care for her, as an alternative second choice, [Margaret] would request that her parental rights not be terminated and that guardianship be entered into as Laurens permanent plan rather than adoption by the [foster parents].

[4] The social worker called the Florida Department of Corrections, the St. Johns County Sheriffs office, the St. Johns jail, the St. Johns felony court, the St. Johns public defenders office, and the St. Johns district attorneys office, and the most she was able to obtain was an address for Margaret. Although Margaret must have had a lawyer representing her in the Florida criminal proceedings, that lawyer never contacted the Department. As a result, it was impossible for Laurens social worker to find out whether there were suitable programs available for Margaret within the Florida penal system. Given these facts, we do not understand what it is that our dissenting colleague believes the Department could have done.