In re B.C







Filed 1/27/11









CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re B.C., a Person Coming Under the Juvenile Court Law.

B219979 (Los Angeles County

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. E.C., Defendant and Appellant; N.D., Intervener and Appellant. ___________________________________ In re B.C., a Person Coming Under the Juvenile Court Law. ___________________________________ LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. E.C., Defendant and Respondent; E.O. et al., Interveners and Appellants; N.D., Intervener and Respondent; B.C., Appellant.

Super. Ct. No. CK74820) B223063

APPEALS from orders of the Superior Court of Los Angeles County, Stephen Marpet, Temporary Judge.* Order (B219979) is affirmed; orders (B223063) are reversed.
No appearance for Plaintiff and Respondent in B219979.
Law Office of Amir Pichvai and Amir Pichvai for Plaintiff and Respondent in B223063.
Nicole Williams, under appointment by the Court of Appeal, for Interveners and Appellants E.O. and S.O.

Karen J. Dodd, under appointment by the Court of Appeal, for Minor and for Appellant B.C.
Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant and for Defendant and Respondent E.C.
Leslie A. Barry for Intervener and Appellant and for Intervener and Respondent N.D.
___________________________________________

In this dependency case (Welf. & Inst. Code, § 300 et seq.), on the eve of a hearing to terminate parental rights to the minor (Welf. & Inst. Code, § 366.26) and determine whether the child’s foster parents should be designated prospective adoptive parents (Welf. & Inst. Code, § 366.26, subd. (n)), the child’s mother filed a relinquishment of her parental rights, designating the child’s maternal aunt as the person with whom she intended the child to be placed for adoption (Fam. Code § 8700, subd. (f)). Despite having been granted numerous opportunities to visit with the child, the aunt had failed to form a bond with the child, who was quite attached to the foster parents with whom he had spent much of his life. Nonetheless, the aunt, the mother, and the Department of Children and Family Services (DCFS) sought the immediate placement of the child with the aunt, a position which brought them in conflict with the foster parents and the minor. At the hearing, the dependency court apparently believed that its hands were tied by the mother’s designated relinquishment. Upon receipt of the official acknowledgement of mother’s relinquishment, the court immediately terminated the hearing, and lifted its previous order which had prevented DCFS from removing the child from the foster parents’ home without court approval.
In these consolidated appeals, we review three earlier orders of the dependency court, as well as its order lifting its “do not remove” order.[1] We ultimately conclude that the court erred in lifting the “do not remove” order without conducting a hearing to determine whether placement with the aunt was “ ‘ “patently absurd or unquestionably not in the minor’s best interests.” ’ ” (In re R.S. (2009) 179 Cal.App.4th 1137, 1150.) We also conclude that the court erred in granting mother a continuance of the Welfare and Institutions Code section 366.26 hearing, which had been sought on the basis that mother needed additional time to complete her relinquishment of parental rights.[2] Finally, we find no error in the court’s summary denial of two Welfare and Institutions Code section 388 petitions (for modification of prior order), which denial is challenged by mother and aunt.
FACTUAL AND PROCEDURAL BACKGROUND
B.C. was born on September 27, 2008. At the time of his birth, his mother was in the custody of a law enforcement agency on a robbery charge, and subject to a mental health hold (Welf. & Inst. Code, § 5150). A DCFS social worker attempted to speak with mother, but mother refused. Mother had no plan for the care of the child while she was incarcerated, and DCFS could discover no relatives of mother. Shortly thereafter, mother was returned to jail, and DCFS placed the minor in a foster home. Throughout this case, the child’s father has been unknown.
Mother appeared at the October 1, 2008 detention hearing, but she was not verbally responsive. The court indicated that the issue of the possible appointment of a guardian ad litem would be raised at the following hearing, as it was not clear if mother’s muteness was caused by a physical or mental ailment. However, mother was released from jail three weeks after the detention hearing, and disappeared;[3] she would not be located again until August of 2009.
In the interim, the minor was adjudicated dependent,[4] and ultimately placed in the foster home of Eve O. and Sheri O. (foster parents). The minor was placed with foster parents on February 19, 2009; an adoptive home study had already been approved on their home.[5] The minor thrived in the home of foster parents, and strongly bonded with them. There is no suggestion in the record that foster parents’ care for minor has been anything but exemplary or that the child does not feel safe, secure and happy in their home.
Although DCFS’s efforts to find mother were unsuccessful, some of their contact letters reached mother’s relatives. The relatives contacted DCFS, indicating that they had been searching for mother themselves. In early May 2009, mother’s sister (aunt) stated that she would like to adopt the minor. Monitored visits were arranged for the child with aunt and members of her family, and a home study was begun. By the time of a June 12, 2009 hearing, DCFS had designated aunt as the prospective adoptive parent for the minor. By this date, the child had been in the home of foster parents for four months and was quite bonded to them. Under the circumstances, minor’s counsel requested that DCFS not change the child’s placement without first notifying the child’s counsel and obtaining a court order. The court agreed, and issued the order. It is the court’s subsequent lifting of this “do not remove” order that is the main issue on appeal.
Mother was finally located in August 2009; she was living in a mental health rehabilitation center in Long Beach. By this time, the court had set a Welfare and Institutions Code section 366.26 hearing for August 28, 2009. As mother had been located, she was personally served with notice of the hearing.
By the time of the August 28, 2009 hearing, foster parents had sought de facto parent status[6] (Cal. Rules of Court, rule 5.534(e)) and expressed their continued interest in adopting the minor. They presented evidence of the following facts: (1) the minor was continuing to thrive in their care; (2) the minor was deeply bonded to them, and they, in turn, loved him; (3) they were committed to having the minor remain close to, and have continued contact with, his maternal relatives; (4) although all of the maternal relatives had been encouraged to visit with the minor, aunt alone attended the bulk of the visits; (5) although aunt had been encouraged to visit three times per week, over the most recent 14 weeks, aunt visited only 15 times, frequently cancelling or simply not scheduling further visits; (6) aunt appeared overwhelmed at the visits, and frequently talked about how stressful the process was, rather than asking about the child or engaging with him; (7) as a result, the child was not comfortable being alone with the maternal relatives;[7] (8) at the first visit where the child was to be left alone with the relatives, the relatives phoned the foster parents after 15 minutes, saying the child had been crying inconsolably; he calmed immediately when foster parents picked him up; (9) after that visit, the child would become hysterical when foster parents were out of his sight; (10) the child had since become “unusually clingy” with foster parents, and experienced night terrors on days when he was separated from them; (11) aunt repeatedly stated that she wished DCFS had never found the maternal relatives; and (12) aunt confided to foster parents that although she and her husband planned to adopt the minor, they planned to have mother raise him, if she stayed on her medication.
DCFS, in contrast, still focussed on aunt as the prospective adoptive parent for minor, planning frequent visits to aid in the transition of minor to aunt’s home, and planning for aunt and her husband to participate in family therapy, including “attachment therapy.” DCFS appeared concerned with minor’s “identity development,” and his future desire to know about his origins – something believed to be a lifelong issue for all adopted children. It was DCFS’s position that adoptive placement with aunt was in his best interests, as any short-term detriment he would suffer by being removed from foster parents would be less severe than the lifelong detriment he would experience by being adopted by non-relatives.[8]
The court continued the Welfare and Institutions Code section 366.26 hearing to September 25, 2009. The court indicated that the issue of whether minor should be replaced in aunt’s home would be considered at that hearing.
Despite the fact that the court indicated the issue of whether minor should be replaced would be considered at the continued hearing, aunt nonetheless filed a Welfare and Institutions Code section 388 petition seeking that replacement. Mother also filed a section 388 petition, arguing that the dependency court erred in failing to appoint a guardian ad litem for her at the initial hearing, an error which she argued required setting aside all orders (including the adjudication of dependency) and proceeding again de novo. Mother argued that, since the proceedings should begin again de novo, the minor should be placed with aunt under the relative placement preference.
At the September 25, 2009 hearing, evidence was presented regarding additional visits between minor and the maternal relatives. Although foster parents believed minor was starting to become more comfortable around some of the maternal relatives, they stated that there was no evidence that he could be left with them for more than 30 minutes or that separation from them would not constitute a major trauma. DCFS agreed that minor still needed comforting at the visits and that he “was inconsolable at times.” Faced with this evidence, the dependency court decided to appoint an expert for a bonding study.[9] Given that the court would be considering the issue of placement after the bonding study, the court denied the section 388 petitions as “superfluous.”
The court appointed Lynda Doi Fick, M.A., M.F.T. to prepare a bonding study. The case was continued to December 10, 2009 for a contested hearing––first on the issue of possible replacement, then the Welfare and Institutions Code section 366.26 hearing. Both mother and aunt appealed from the denial of their Welfare and Institutions Code section 388 petitions.
The bonding study report is 51 pages long, and was based on interviews with the foster parents, aunt, aunt’s husband, aunt’s father, and child’s babysitters. Fick observed the child alone, with the foster parents, with aunt, with aunt’s husband, and with aunt’s parents.[10] She reviewed the visitation logs, DCFS reports, and other documentation. The report ultimately concluded that the child: (1) had a bonded and secure attachment with his foster parents; (2) had an “insecure” attachment to aunt and her husband; and (3) had no attachment at all to the maternal grandparents. According to Fick, the interaction between child and the aunt and her family seemed “unusual given the duration of their visit plan.” After speaking with the child’s babysitters, as well as making her own observations of the child with her alone, Fick concluded that the child “does . . . have the ability to effectively transfer to others and has exhibited appropriate adaptive skills.” However, the child’s distress when observed with aunt and her family indicated that “[i]t is likely that [the minor] associates negative experiences with the maternal family’s caretaking or distressful events occurring during prior visits. He does not appear to trust their care and will not accept sustained comfort from them.” The therapist concluded that the visits with aunt and her family were not frequent and consistent enough to produce a level of trust “required to assume a custodial role.” She recommended a visitation plan with frequent and consistent visits – at least three one-hour visits per week. She concluded that, at the time of the report, “it would be detrimental to change [the minor’s] placement as he does not demonstrate the necessary adaptive skills or strength in attachments with his family to support an effective custodian exchange. He would potentially experience the loss of the ability to form effective attachment to others later in life if the Court were to interrupt this valuable attachment process. [¶] He has formed insecure and disorganized attachments . . . [to his maternal aunt and her husband]. These attachments do not indicate a readiness for them to assume the role as primary caretakers.”
After receiving the report, DCFS continued to recommend replacing the child with the aunt and her family. DCFS believed that the attachment concerns raised by the bonding study could be mitigated by “attachment-based therapy.” At the December 10, 2009 hearing, the court ordered that visits with aunt and her family be monitored by foster parents. Because new counsel was appointed for mother, the hearing was continued to January 5, 2010.
At the January 5, 2010 hearing, it came to light that mother had a conservator who is a public guardian represented by county counsel’s office. As DCFS was also represented by county counsel, DCFS’s attorney declared a conflict, and a conflict attorney was appointed to represent DCFS. Moreover, mother’s conservator was not prepared for the hearing. The matter was trailed to January 7 for trial setting, and, at that time, the hearing was again continued to February 2, 2010.
By the February 2, 2010 hearing, two full months had passed since Fick’s report. Although three visits per week had been recommended, aunt had visited minor only three times in total. No arrangements had been made for the attachment-based therapy recommended by DCFS.
On the day of the February 2, 2010 hearing, mother’s attorney filed a motion requesting a 30-day continuance on the basis that mother was in the process of formally relinquishing the minor to DCFS for adoption; the process was not yet complete because, as mother was under a conservatorship, court approval was required. The foster parents objected to the continuance, as an attempt to make an “end run” around the child’s rights and preclude the termination hearing from occurring as scheduled. The court granted the continuance on the basis that this hearing was the “first time we have noticed public counsel,” and indicated the Welfare and Institutions Code section 366.26 hearing would go ahead on March 9, 2010, if the relinquishment efforts were not final at that time. It is this grant of a continuance that is challenged by minor in his appeal.
A relinquishment of parental rights is not final until a certified copy of the relinquishment is filed with the State Department of Social Services (SDSS), and 10 business days have passed or SDSS sends written acknowledgement of receipt of relinquishment. (Fam. Code, § 8700, subd. (e)(1).) In this case, mother raced to meet the March 9, 2010 deadline. On March 1, 2010, mother’s psychologist determined that mother has “the requisite mental capacity to understand, appreciate, reason, and articulate her consent to signing a voluntary relinquishment of parental rights.” He believed she has the ability to “understand the nature, content, and effect of signing a consent to adoption.” Mother’s psychiatrist agreed that mother “understands and correctly perceives her familial relationships and fervently desires her son to be adopted by her sister.” On March 3, 2010, the Mental Health Courthouse of the Los Angeles Superior Court authorized mother to consent to the voluntary relinquishment of the minor. Thereafter, mother signed a relinquishment of parental rights, designating aunt as the person with whom she intended minor to be placed for adoption. The relinquishment was transmitted to SDSS, but 10 business days had not yet passed, nor had written acknowledgement of receipt been received.
Thus, when the dependency court called the hearing on March 9, 2010, the relinquishment was not yet final. The court therefore proceeded with the hearing.[11] Mother’s attorney indicated his intent to call Fick as a witness; as Fick was in transit, the court ordered a recess. During the recess, the court received a facsimile transmittal of the receipt of the relinquishment from SDSS.
Upon receipt of the facsimile from SDSS, the court terminated the hearing. Counsel for the foster parents and minor argued that although the relinquishment foreclosed a hearing to terminate mother’s parental rights, the court should still proceed on the issue of whether replacing minor into aunt’s home was against the child’s best interests. The court disagreed, concluding that it no longer had jurisdiction over that determination, because mother had voluntarily relinquished her parental rights. The court stated that the minor “is going to have to be placed with the aunt,” and lifted its previous “do not remove” order. The foster parents and minor appealed from that order.
We consolidated these appeals with the appeals of mother and aunt from the denial of their Welfare and Institutions Code section 388 petitions. We issued an order granting a writ of supersedeas, directing that the minor not be moved from his placement with foster parents pending finality of this appeal or further order of this court.
ISSUES ON APPEAL
We first consider the denial of aunt’s Welfare and Institutions Code section 388 petition; we conclude that summary denial of the petition when the issue it raised (replacement) was to be considered at the next hearing, following receipt of the bonding study, was not an abuse of discretion. Second, we consider the denial of mother’s Welfare and Institutions Code section 388 petition. On appeal, mother argues only that a guardian ad litem should have been appointed for her at the commencement of proceedings; we conclude this is not a proper basis for a Welfare and Institutions Code section 388 petition and, in any event, conclude the trial court did not err. Third, we consider the minor’s appeal of the court’s order continuing the Welfare and Institutions Code section 366.26 hearing––an order which enabled mother to timely file a relinquishment of parental rights. Under the circumstances, we conclude the grant of the untimely continuance motion was an abuse of discretion. Finally, we consider foster parents’ and minor’s appeal from the order declining to hold a hearing on the replacement issue after receipt of acknowledgment of the relinquishment. As conceded by virtually all parties, this constituted error.
DISCUSSION

1. Denial of the Maternal Aunt’s Section 388 Petition
Was Not an Abuse of Discretion
We review a denial of a Welfare and Institutions Code section 388 petition for abuse of discretion. (In re Angel B. (2002) 97 Cal.App.4th 454, 460.) Section 388 provides, in pertinent part: “(a) Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made . . . . The petition . . . shall set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order . . . . [¶] . . . [¶] (d) If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held and shall give prior notice, or cause prior notice to be given [to the parties].” Section 388 petitions “are to be liberally construed in favor of granting a hearing to consider the [petitioner]’s request. [Citations.] The [petitioner] need only make a prima facie showing to trigger the right to proceed by way of a full hearing.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.) “A ‘prima facie’ showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited.” (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) “Whether [the petitioner] made a prima facie showing entitling [the petitioner] to a hearing depends on the facts alleged in [the] petition, as well as the facts established as without dispute by the [dependency] court’s own file . . . .” (In re Angel B., supra, 97 Cal.App.4th at p. 461.)
In this case, aunt had been located in May 2009, and started visiting with the minor sporadically at that time. DCFS expressly indicated its goal was to replace the minor with the aunt as a prospective adoptive parent. In June 2009, the court ordered that the child not be removed from his current placement without a hearing. By late August 2009, evidence began to surface suggesting that moving the child to aunt’s home would not be in his best interests. The court indicated that replacement would be considered at the September 25, 2009 hearing. Prior to that hearing, aunt filed her Welfare and Institutions Code section 388 petition, seeking replacement of the child with her. The petition can only be described as superfluous; the petition sought a hearing on the very issue the court had already indicated would be considered at a hearing that had already been scheduled. At that time, however, the court continued the hearing, in order to have a bonding study performed.
The trial court did not abuse its discretion in summarily denying aunt’s petition. The same result would have occurred had the court set the petition for a hearing, but requested that a bonding study be completed prior to the hearing. There was evidence before the court that the child cried inconsolably when with the aunt and experienced night terrors after visits. That the court sought preparation of a bonding study before considering replacement with the aunt when faced with this evidence was not an abuse of discretion; instead, it was the act of a court properly considering the child’s best interests.[12]


TO BE CONTINUED AS PART II….


Publication courtesy of California pro bono legal advice.
Analysis and review provided by La Mesa Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com

---