Kern County Dept. of Human Serv. v. Sup. Ct.

Filed 8/15/06 Kern County Dept. of Human Serv. v. Sup. Ct. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for writ of mandate.

B.C. Barmann, Sr., County Counsel, and Jennifer L. Thurston, Deputy County Counsel, for Petitioner.

No appearance by Respondent.

No appearance by Real Party in Interest.

-ooOoo-

Kern County Department of Human Services (the department) seeks mandamus relief from a June 29, 2006, superior court order granting a modification petition (Welf. & Inst. Code, § 388) in a juvenile dependency proceeding.^[1] The court changed the placement of eight-month-old Corey V. from his foster/prospective adoptive parents to real party in interest Josephine L. (real party), the child's paternal great-aunt, who adopted his three- and four-year-old siblings shortly before he was born. Thereafter, the court found Corey V. adoptable and terminated parental rights.

The department previously denied real party's application for placement at a time when it did not recognize real party as Corey V.'s relative. In an administrative grievance proceeding, a hearing officer found the department was technically correct in denying her application for non-relative extended family member placement. However, the hearing officer also concluded the department did not diligently follow statutory requirements (§ 16002; Fam. Code, § 7950) to encourage sibling relationships. According to the hearing officer's findings which the department formally adopted:

- there was no evidence that real party was ever considered for placement;

- the department did not pursue the real party as a placement option because it claimed real party was not related to Corey V. as Corey's paternity was not clearly established and real party could not establish a familial relationship with Corey since he was detained shortly after birth; and

- Corey V.'s social worker assumed that since his mother's parental rights were terminated to the older children, there was no further need for either relative placement preference or sibling interaction.

The department makes four arguments in its petition for writ of mandate:

1. This court should review the superior court's decision on the merits by way of expedited writ rather than appeal because the challenged decision relates to the child's placement.

2. Real party is bound by the department's decision by failing to seek administrative mandamus following the hearing officer's decision.

3. The superior court had no authority to substitute its independent judgment for that of the department on the issue of placement.

4. The superior court abused its discretion by granting real party's petition because: (a) there was no change of circumstances, and (b) no showing that a change in placement was in the child's best interests.

As discussed below, we conclude the department is correct only as to its first argument.

DISCUSSION

I. REVIEW BY WAY OF WRIT RATHER THAN APPEAL

Because the disputed decision relates to a dependent child's placement, we agree with petitioner that an appeal, although authorized by statute, is an inadequate remedy in this case. It has long been this court's policy to support writ review on the merits of dependency rulings, as it can provide speedier and more effective relief while accommodating the strong policy of expediting appellate review of juvenile court orders affecting the welfare of dependent children. (See In re Kristin W. (1990) 222 Cal.App.3d 234, 249.) Indeed, by analogy, if a court issues a ruling on a placement issue after rights are terminated, section 366.28 restricts an aggrieved party's remedy to writ review.

II. REAL PARTY WAS NOT BOUND BY THE DEPARTMENT'S DECISION TO DENY HER PLACEMENT AND SHE PROPERLY APPLIED UNDER SECTION 388

According to petitioner, real party was bound by the department's decision to deny her placement application by failing to seek writ review in the superior court following the grievance hearing. Further, petitioner argues, had real party sought administrative mandamus, the superior court could only review the hearing officer's decision, or the department's decision for that matter, for abuse of discretion. We disagree.

There was no practical reason for real party to seek writ review of the hearing officer's decision; she did not dispute either of the conclusions contained in the decision. The dilemma for her as well as for the hearing officer was one of remedy. Indeed, the officer recommended the remedy of a section 388 petition although the officer apparently assumed Corey V.'s attorney would file such a petition.

Perhaps more importantly, petitioner's argument incorrectly assumes the court had no independent authority to change Corey V.'s placement, i.e., that the placement decision was strictly an administrative matter and therefore only subject to judicial review by administrative mandamus. However, as this court explained in Fresno County Dept. of Children and Family Services v. Superior Court (2004) 122 Cal.App.4th 626, 648 (Fresno County):

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