Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK56096. Terry Troung, Juvenile Court Referee.
M.L., in pro. per., for Defendant and Appellant.
James M. Owens, Assistant County Counsel, Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
ARMSTRONG, J.
The goal of the dependency law is to reunite families, but where this cannot be achieved, the system can still make an immeasurable difference in the life of a child by finding that child a new, adoptive home. For this, the system depends on the generosity and loving kindness of foster and adoptive parents. However, the dependency system is complex and overburdened, and a child's path to a new home may be strewn with pitfalls. That is what happened in this case.
H.S. was detained at or shortly after her birth in July 2005. All we need say about her parents is that her mother had a drug problem which she was unable to conquer despite her efforts at treatment, and her father was frequently incarcerated.
When she was two days old, H.S. was placed with a foster mother, appellant here, M.L. M.L. had a son, J., who was 10 or 11 when H.S. came to the family, and another foster child, A., who was about 2. M.L. took excellent care of H.S., whom she hoped to adopt. H.S. bonded to M.L. and was happy in her home.
From the outset, H.S.'s paternal grandmother, B.P., expressed interest in caring for her and eventually adopting her, but does not seem to have been seriously considered for that purpose, despite the fact that she was already caring for H.S.'s brother, E.S.
In June 2006, M.L.'s de facto parent petition was granted, and counsel was appointed for her. In April 2007, after family reunification services were terminated for H.S.'s parents, M.L. was designated as H.S.'s prospective adoptive parent. Adoption with M.L. was identified as H.S.'s permanent plan.
However, in September 2007, DCFS began to have concerns about M.L.'s home, mostly because M.L. was having trouble disciplining J., who had had some encounters with the criminal law. M.L. was provided with additional services, but DCFS continued to have concerns and on February 7, 2008, DCFS removed H.S. and A. from M.L.'s home and put them in foster care. (M.L. was by then in the process of adopting A.)
Unfortunately, DCFS's problems with M.L.'s home also included such trivialities as the presence of metal furniture in the yard where the younger children played (DCFS believed that the children could hurt themselves on that furniture) and the fact that M.L. did not immediately remove from J.'s room "pornographic magazines," that is, magazines with pictures of women in their underwear, which describes almost all magazines, these days.
Under Welfare and Institutions Code section 366.26, subdivision (n)(3), DCFS was required to notify M.L. and the court of its plan to remove H.S. before it did so, "as soon as possible" after the decision was made. (All future statutory references are to the Welfare and Institutions Code unless otherwise indicated.) M.L. would then have been entitled to request a hearing concerning H.S.'s best interest. H.S. could not have been removed unless the court found that removal would be in her best interest. (§ 366.26, subd. (n)(3)(A) and (B).)
The court was not notified prior to H.S.'s removal, and it does not appear that M.L. or her lawyer were, either. On February 11, M.L. filed a petition seeking a hearing. Under the statute, the court must hold the hearing "as soon as possible and not later than five court days after the petition is filed..., 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." (§ 366.26, subd. (n)(3)(B).)
That did not happen. The matter was not even called until March 25, 2008. By that time, H.S. had been placed with B.P. (this seems to have happened on March 21). B.P.'s visits with H.S. had not been frequent (there is disputed evidence in the record as to the reasons for that) but she had regularly expressed interest in adopting H.S.
On March 25, the court did not hold a hearing pursuant to section 366.26, subdivision (n), but referred to M.L.'s pleading as a section 388 petition, and found that it was not in H.S.'s best interest to be removed from her placement with B.P. M.L. sought writ review, and on May 9, 2008, we issued an alternative writ ordering the juvenile court to either modify the March 25 order to set a hearing pursuant to section 366.26, subdivision (n), or show cause.
The juvenile court decided to comply. The case was next called ("walked on," in dependency court parlance) on May 14, on "county counsel's stipulation to the appellate court to hear the.26 hearing in reference to the prospective adoptive parent pursuant to 366.26(n)." M.L. had also filed an affidavit under Code of Civil Procedure section 170.6, and the case was sent to another department, for June 4. However, no hearing was held on that date. The record of what happened next is not entirely clear (pages of the reporter's transcript seem to have gotten scrambled) but we can tell that on July 18, a "contested hearing" under section 366.26, subdivision (n) was set for September 23. The hearing actually took place on November 4, nine months after H.S.'s removal. No one, not even M.L.'s lawyer, seemed to understand the urgency of the matter.
By November 4, 2008, H.S. had been in B.P.'s home for seven months, and had been doing well in B.P.'s home. B.P. had moved to be designated as H.S.'s prospective adoptive parent. She had already adopted E.S.
At the hearing, M.L. testified, as did the social worker and B.P. At the conclusion of the hearing, the court found that DCFS had not proved that H.S.'s February removal was in her best interest. (A. had already been returned to M.L.) However, the court recognized that B.P. now qualified as a prospective adoptive parent under section 366.26, subdivision (n), and that H.S. could not be removed from her home and placed with M.L. without a finding that removal would be in H.S.'s best interest. The court, faced with what it deemed a very difficult decision, noted that the way the case had been handled meant that two caring and loving people wanted to adopt H.S., and found that it was in H.S.'s best interest to stay with B.P., citing H.S.'s relationship with her brother and the length of time she had been with B.P.
M.L. has appealed that order. DCFS has moved to dismiss, contending that the order is not appealable, and that M.L. was required to seek writ review. That is correct. Under section 366.26, subdivision (n)(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." Section 366.28, subdivision (b)(1) provides that after parental rights have been terminated "an order by the court that a dependent child is to reside in, be retained in, or be removed from a specific placement, is not appealable at any time unless all of the following apply: (A) A petition for extraordinary writ review was filed in a timely manner." Under section 366.28, subdivision (B)(2) "Failure to file a petition for extraordinary writ review within the period specified by rule of court, to substantively address the specific placement order that is challenged, or to support that challenge by an adequate record shall preclude subsequent review by appeal of the findings and orders made pursuant to this section."
Disposition
We thus grant DCFS's motion to dismiss. (And deny its motion for judicial notice, as the matters contained therein are not helpful to our opinion.) We have written at length only to express our appreciation to M.L. and B.P., who sought to help a child in need.
We concur: TURNER, P. J. MOSK, J.