Opinion
A112775 A115633
4-30-2007
In re JACQUELYN B., et al., Persons Coming Under the Juvenile Court Law. MENDOCINO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. JACKIE B., Defendant and Appellant. In re JACKIE B., on Habeas Corpus.
NOT TO BE PUBLISHED
In this appeal and consolidated writ petition, a paternal aunt who for nearly four years was the caretaker of two dependent children challenges the trial courts finding that she was not their "prospective adoptive parent" for purposes of Welfare and Institutions Code section 366.26, subdivision (n)(1). Appellant Jackie B. argues insufficient evidence supports this finding, and she claims the court abused its discretion and denied her due process by considering extraneous circumstances and the best interests of the children without allowing her an opportunity to be heard. We agree the court abused its discretion by conflating a "best interests" inquiry with the threshold question of whether Jackie was a prospective adoptive parent entitled to a hearing on best interests under section 366.26, subdivision (n). Because this error was prejudicial, we shall reverse and remand for further proceedings.
All statutory references are to the Welfare and Institutions Code.
BACKGROUND
I. Initial Dependency Proceedings
In February 2002, newborn Jacquelyn B. tested positive for marijuana and amphetamines. As a result, the Mendocino County Department of Social Services (Department) detained Jacquelyn and two other children of the birth mother: four-year-old Autumn and six-year-old Renee. In addition to Jacquelyns positive drug test at birth, the dependency petition alleged the mother, Michelle C., failed to secure adequate prenatal care and had an ongoing substance abuse problem that inhibited her ability to parent. The petition alleged the father, Ricky B., failed to protect the children from their mothers drug abuse and failed to provide them with a home free of the negative effects of substance abuse. Michelle and Ricky had also failed to provide the children with adequate medical and dental care, as evidenced by the fact that Autumns front teeth were rotten to the gum line and caused her pain. Both parents submitted to jurisdiction, and the court sustained the dependency petition. At a dispositional hearing held April 17, 2002, the court declared the children dependents and ordered reunification services for both parents. By the time of disposition, Autumn and Jacquelyn were living with their paternal aunt Jackie, and Renee was placed in a separate foster home.
A 12-year-old son (by a different mother) of the presumed father was also initially detained but was soon returned to his fathers care.
At the six-month review hearing, the Department reported that Jackie had been caring for Autumn and Jacquelyn adequately and said she would be willing to accept guardianship or adopt all three children if necessary. In advance of the 12-month hearing, Jackie again said she was willing to care for the children long term if necessary, but she hoped the parents would be able to reunify. The court terminated reunification services for Michelle at the 12-month review hearing, based on Michelles continued substance abuse and failure to comply with her case plan. Reunification services for Ricky were extended an additional six months and he was allowed overnight visits. In advance of the 18-month review hearing, the Department initially recommended that Autumn and Renee be returned to their fathers care and, in accordance with Rickys wishes, that Jacquelyn remain with Jackie, under guardianship. However, shortly before the 18-month hearing, Renee reported that Ricky had allowed Michelle to visit and the two were drinking in front of the children. Ricky admitted he was drinking again. In addition, Michelle had told Renees caregiver that she and Ricky planned to move out of state with the children after he regained custody. In accordance with the Departments new recommendation, the court terminated Rickys services and set the matter for a section 366.26 hearing.
The Departments report in advance of the permanency planning hearing stated that 20-month-old Jacquelyn had closely bonded with Jackie, who was the only mother she had ever known, and Autumn had also adjusted well to living with her aunt. Jackie had provided the girls "with the love and care they need," and she expressed a strong desire to adopt them, along with their sister Renee. In addition, the statewide Adoption Services Bureau (State Adoptions) had performed an adoption assessment and determined all three girls were likely to be adopted. The preliminary assessment of Jackie as a prospective adoptive parent was positive. Jackie had provided Autumn and Jacquelyn with "love and consistency." She spoke of them "with the pride of a parent," and she expressed a desire to adopt all three siblings. However, Jackies live-in boyfriend Dave had reported two arrests within the past year for driving while intoxicated. This disclosure gave the Department and State Adoptions concern about the use of alcohol in Jackies home, and both recommended further assessment on this topic before implementing a plan of adoption. Following these recommendations, the court ordered adoption as the permanent plan for Autumn and Jacquelyn but did not terminate parental rights, and the matter was continued for six months.
The continued section 366.26 hearing was held on June 15, 2004. State Adoptions submitted an addendum report recommending a termination of parental rights and release of the minors for adoption. Although Jackie again expressed a desire to adopt all three girls, Renee preferred to stay with her foster family. Renee said she was uncomfortable and experienced stomachaches when she stayed overnight at Jackies home, but Jackie dismissed her complaints as invalid. The Department was not aware that Jackies boyfriend Dave lived in the home when it first placed Autumn and Jacquelyn there. According to recent background checks, Dave had an extensive criminal history, including charges for possession of a controlled substance, inflicting corporal injury on a spouse and—shortly after the girls were placed in the home with him—driving while intoxicated. Dave admitted drinking beer after work on a regular basis. Nevertheless, he appeared to have a relationship with the minors and was willing to adopt, although he and Jackie had no plans to marry and Jackie was not legally divorced from her former husband. Jackie was committed to Autumn and Jacquelyn and appeared to be suitable for adoption, but the Department stated she would have to acquire her former husbands consent or else finalize a divorce from him before an adoptive placement could be made. Alternately, given the possibility that Dave might not be approved, the suitability for Jackie to adopt as a single parent would be considered. In addition, State Adoptions "need[ed] to take an extended amount of time to work with this family to further assess their stability, alcohol use and parenting practices before considering an approval for adoption," and the Department recommended that the family engage in "further treatment for substance abuse and codependency issues." The Department concluded it was in the minors best interest to remain with Jackie but with "a remedial plan to address issues related to this familys history of alcohol abuse." Following these recommendations, the court found the children adoptable and terminated parental rights.
II. Post-Termination Proceedings
In advance of the December 7, 2004, review hearing (§ 366.3), the Department reported Jackies compliance with the permanent plan for Autumn and Jacquelyn was poor. Social workers from the Department and State Adoptions met with Jackie and Dave on two occasions to discuss concerns and develop a remedial plan. At the first meeting, on September 16, 2004, the couple reluctantly agreed to attend classes or support groups to address alcohol use and codependency. Though they were unhappy about it, they remained cooperative and expressed a willingness to do whatever was necessary to keep the girls with them. The social workers gave Jackie referrals to possible groups and providers and asked that the couple start services in mid-October. However, in a follow-up call in late October, Jackie told the social worker "she had attended one church-based codependency group meeting and decided that she did not need such meetings," and Dave had not begun any services.
On November 4, 2004, the couple met again with social workers from the Department and State Adoptions. In this meeting, Dave admitted drinking "a few beers" on weekends and occasionally during the week, but he defined "a few" as "`a six-pack to a `twelve-pack. " Dave acknowledged a history of chronic alcohol abuse but said he drank less now than in the past. He appeared to be honest about his alcohol consumption and willing to do what the agencies required to keep the girls. Jackie, however, grew irritated in the meeting and refused to talk to the social workers, saying she wanted a meeting "with the Judge." She said she should not be asked to participate in services because they were a waste of her time and Daves time, and she showed the social workers a picture album to demonstrate they were a happy family. Several of the photos depicted beer bottles and adults drinking beer, however. In the Departments view, the pictures indicated a pattern of habitual use and "a minimization of the level of alcohol consumption allowed around the children." At one point, Jackie said she was not truly interested in adopting the girls but felt coerced into adopting. She grew progressively hostile and walked out of the meeting angrily.
Both the Department and State Adoptions reported difficulties working with Jackie because sometimes she was compliant but sometimes she was hostile and uncooperative. The Department believed Jackie minimized the impact of alcohol because she herself grew up in a family in which excessive consumption was the norm, but there was reason for concern that the children would suffer from this familial pattern. The Department and State Adoptions requested that Jackie and Dave complete alcohol and drug assessments, and follow through on treatment, and that Jackie receive therapy for codependency and anger management. The agencies did not recommend removal of Autumn and Jacquelyn, but the Department expressed frustration that, after a two-and-a-half year placement, Jackie was unwilling to engage in services the Department and State Adoptions believed were necessary for her to meet the childrens needs. The agencies recognized how much the girls had bonded with Jackie, but they wanted Jackie and Dave to complete services and "demonstrate an understanding of the reasons chronic alcohol use is detrimental to the children and their family as a whole. Merely attending meetings and being a warm body in the room is not sufficient evidence of compliance." Counsel appointed for the minors supported these recommendations.
The court echoed the Departments concerns at the December 7, 2004, review hearing and asked Jackie and Dave "to look into their hearts" and decide if they were willing to complete a corrective plan to keep the girls in their placement. If not, the Department would remove the children and find a more suitable long-term placement. The court expressed a desire for both Jackie and Dave to complete an adoption assessment and follow through on the recommendations of the assessment.
Jackies family situation had improved by the second semi-annual review hearing, held June 7, 2005. The Department reported that Jackie and Dave had "become more committed to doing whatever is necessary to be able to adopt Jacquelyn and Autumn." Specifically, Jackie had been attending Alanon meetings and Dave was participating in group sessions. Based on the Departments recommendations, the court ordered placement services to continue, with adoption remaining the permanent plan.
The next review hearing was set for November 22, 2005, but matters deteriorated before this scheduled hearing could occur. Autumn and Jacquelyn were removed from Jackies care on November 7, 2005, and the Department filed a supplemental dependency petition under section 387 alleging that Jackie was unable to provide the minors with a home free of the negative effects of drugs and alcohol and domestic violence, and that Jackie had emotionally abused Autumn. The petition was based largely on statements the girls made in recent interviews with social workers. Initially, Renee told the Department she did not like to visit her Aunt Jackies home because Jackie and her boyfriend " `drink all the time. " Autumn also said Jackie and Dave " `drink beer a lot, " and she reported watching them smoke marijuana. On one occasion, Autumn said Jackie took her to a house on a hill where the people had " `pot, " and she described the plants as " `smell[ing] really bad. " When two social workers visited Jackies home on November 7, 2005, they observed two large bags and one large garbage can filled with empty beer and soda cans, as well as two empty 12-pack boxes of beer. Autumn also reported abusive behavior in Jackies household. She said Jackie and her boyfriend " `get crazy " when they drink alcohol. The couple yelled and fought almost every day, and during these incidents they hit one another and spat in each others faces, and sometimes Jackie threw things. Autumn said she got scared when Jackie and Dave fought, and she would hide in her room and cry. Autumn told the social workers Jackie had used profanity toward her, calling her " `you little B, "and had threatened to send Autumn to live somewhere else, saying she didnt care what CPS had to say about it. The court ordered the children detained, observing that if any of the allegations in the petition were proven true, the court "would be very hard-pressed not to find that the agencies are acting within their discretion in finding a more appropriate placement for the girls."
The Department filed a status review report on November 15, 2005, and attached a report prepared by State Adoptions. Jackie and Dave had been attending meetings to address alcohol abuse, though the Department expressed concern that Dave had been provided with only six weeks of counseling services. Few visits between the siblings had occurred during the review period because, after a visit in June 2005, Renee said she was "afraid" to visit her sisters home. She told the social worker she was afraid because Jackie and Dave " `drink all the time. " After describing drinking and violent episodes between Jackie and Dave, Autumn told this social worker, " `I kinda wanna go live somewhere else. " The Department concluded its efforts to stabilize the home situation had failed. Although Jackie and her boyfriend had been "minimally compliant," the services offered caused little or no change in their behaviors. In addition, State Adoptions concluded it would not approve an adoptive home study for Jackie or allow her to adopt the children. State Adoptions recommended the court search for a suitable adoptive family or consider changing the permanent plan to long-term foster care to ensure ongoing supervision if the children were to remain placed in Jackies home.
Before a contested jurisdictional hearing could be held, the Department filed a motion to dismiss its section 387 petition on the ground that it was procedurally improper. The court granted the motion and instead held a contested hearing on January 19, 2006, to address removal of the children from their placement based on newly enacted section 366.26, subdivision (n). Although all post-termination review hearings had been conducted by the same judge, Hon. Cindee Mayfield, the January 19, 2006, hearing was set before a newly assigned juvenile court judge, Hon. Leonard LaCasse.
The Department noted section 387 no longer applies after parental rights are terminated. (See In re A.O. (2004) 120 Cal.App.4th 1054, 1060-1061.)
At the outset of the hearing, Jackies attorney asked for a continuance so that he could present the testimony of State Adoptions social worker Beverly Glover, who had worked on the case before she moved to Oregon. According to counsel, Glover agreed to travel to California to testify in the matter. The court decided to proceed with the hearing subject to a future continuance to allow Jackie to submit additional evidence. On the threshold issue of whether Jackie was a prospective adoptive parent for purposes of section 366.26, subdivision (n), Jackies counsel made an offer of proof that the children had been in Jackies care for three years and nine months, and Jackie had expressed an interest in a commitment to adopting them and had taken steps to facilitate the adoption such as overcoming impediments that had been identified by the Department.
In rebuttal, the Department presented testimony from State Adoptions supervisor Brian McGuire and from Department social worker Tina Moore. McGuire described the process for adopting a child. A person who wants to adopt first fills out an application, then completes a home study and an assessment process with State Adoptions. Once the applicant has been approved to adopt and the child is released by the court for adoption, the applicant signs an adoptive placement agreement with State Adoptions. Although the agency had a file on Autumn and Jacquelyn, McGuire knew of no application to adopt them completed by Jackie. Jackie had not completed a home study or assessment, and she had not been approved as an adoptive parent. The Department and State Adoptions had encouraged Jackie and her boyfriend to participate in treatment for alcohol abuse, but McGuire testified they were resistant about complying. Both State Adoptions and the Department had concerns about Daves admitted excessive alcohol use and his criminal history. Tina Moore explained Dave could not have qualified as a foster parent without a waiver, and he failed to complete the waiver process. The Department also had concerns about Jackies apparent inability to control her emotions, based on the hostile behavior she sometimes displayed toward social workers. Both Moore and McGuire described Jackies angry departure from the November 2004 meeting, and both repeated her statement that she felt coerced into adopting the girls.
Based on the testimony from McGuire and Moore and the arguments of counsel, the juvenile court found Jackie was not a prospective adoptive parent for purposes of section 366.26, subdivision (n). Jackies counsel urged the court to reconsider, noting the court had based its decision on evidence about Dave but Dave was no longer living in Jackies home. However, the court refused, stating: "I can only decide these cases once. I cant reconsider. Everyone wants me to reconsider, reconsider. Somebody has to decide, and this is where the buck stops. The next step is the Court of Appeals [sic]. Its 120 miles south." Jackie filed a notice of appeal less than a week later.
The Department correctly points out that the juvenile courts order is expressly not appealable. (§§ 366.26, subd. (n)(5), 366.28, subd. (b)(1).) Jackie did not seek extraordinary writ review. However, because she filed her notice of appeal only five days after the juvenile courts order, she gave actual notice of her intent to challenge the order within the time frame required for the filing of a notice of intent to seek writ review. (Cal. Rules of Court, rule 8.454(e).) "An appellate court has discretion to treat a purported appeal from a nonappealable order as a petition for writ of mandate, but that power should be exercised only in unusual circumstances. [Citation.]" (H. D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1366-1367; see also People v. Superior Court (Manuel G.) (2002) 104 Cal.App.4th 915, 925.) We shall construe the notice of appeal as a notice of intent and exercise our discretion to treat the appeal as a writ petition.
Recognizing this error, Jackies appellate counsel filed a petition for writ of habeas corpus claiming trial counsel rendered ineffective assistance by filing a notice of appeal instead of a notice if intent to seek writ review. (See In re Kristin H. (1996) 46 Cal.App.4th 1635, 1658, 1660-1663 [habeas corpus is proper way to pursue claim for violation of statutory right to competent counsel in dependency proceedings]; see also In re Dennis H. (2001) 88 Cal.App.4th 94, 98, fn. 1.) Rather than considering this appeal through the lens of habeas corpus—which would theoretically be available since, in light of our conclusion on the merits, the prejudice from trial counsels error is manifest—we conclude the more expeditious solution is to construe the appeal itself as a writ petition.
DISCUSSION
I. The Statutory Scheme
On January 1, 2006, only weeks before the order at issue in this case, newly enacted section 366.26, subdivision (n) took effect. This statute provides that the juvenile court "may designate a current caretaker as a prospective adoptive parent if the child has lived with the caretaker for at least six months, the caretaker currently expresses a commitment to adopt the child, and the caretaker has taken at least one step to facilitate the adoption process." (§ 366.26, subd. (n)(1).) With respect to the third requirement, subdivision (n)(2) states that "steps to facilitate the adoption process include, but are not limited to, the following: [¶] (A) Applying for an adoption homestudy. [¶] (B) Cooperating with an adoption homestudy. [¶] (C) Being designated by the court or the licensed adoption agency as the adoptive family. [¶] (D) Requesting de facto parent status. [¶] (E) Signing an adoptive placement agreement. [¶] (F) Engaging in discussions regarding a postadoption contact agreement. [¶] (G) Working to overcome any impediments that have been identified by the State Department of Social Services and the licensed adoption agency. [¶] (H) Attending classes required of prospective adoptive parents." Moreover, in determining whether to designate a caretaker as a prospective adoptive parent, "the court may take into consideration whether the caretaker is listed in the preliminary assessment prepared by the county department in accordance with subdivision (i) of Section 366.21 as an appropriate person to be considered as an adoptive parent for the child and the recommendation of the State Department of Social Services or licensed adoption agency." (§ 366.26, subd. (n)(1).)
A person who has been designated as a prospective adoptive parent is entitled to notice before the minor can be removed from his or her home and, upon request, a hearing to challenge the removal. (§ 366.26, subd. (n)(3).) At a hearing under section 366.26, subdivision (n), "the court shall determine whether the caretaker has met the threshold criteria to be designated as a prospective adoptive parent pursuant to paragraph (1), and whether the proposed removal of the child from the home of the designated prospective adoptive parent is in the childs best interest, and the child may not be removed from the home of the designated prospective adoptive parent unless the court finds that removal is in the childs best interest. If the court determines that the caretaker did not meet the threshold criteria to be designated as a prospective adoptive parent on the date of service of the notice of proposed removal of the child, the petition objecting to the proposed removal filed by the caretaker shall be dismissed." (§ 366.26, subd. (n)(3)(B).)
Before section 366.26, subdivision (n) went into effect, child welfare agencies had broad authority to change a minors post-termination placement, subject only to limited court review for abuse of discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71-72; Department of Social Services v. Superior Court (1997) 58 Cal.App.4th 721, 733-734.) Section 366.26, subdivision (n), which was enacted by Senate Bill No. 218 (2005-2006 Reg. Sess.), was designed to enhance the courts role in such decisions. The bills sponsor, the Los Angeles Affiliate of the National Association for Counsel of Children, expressed concern that "children who have lived for long periods of time with their caretakers could be psychologically harmed by being moved to a different home pending a petition for adoption," and it argued increased court oversight of agencies placement decisions after termination of parental rights was needed to " `protect the stability and best interests of vulnerable children. " (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 218 (2005-2006 Reg. Sess.) June 7, 2005, p. 4.)
We grant Jackies request for judicial notice of legislative history documents concerning the enactment of Senate Bill No. 218.
The new statutory scheme clearly anticipates a two-step process. At a removal hearing, the juvenile court must first determine whether the caretaker meets the "threshold criteria" (§ 366.26, subd. (n)(3)(B)) to be designated as the childs prospective adoptive parent. These criteria are not especially onerous. To meet the minimum statutory requirements, a caretaker need only have had the child in her home for six months, express a current commitment to adopt the child, and have taken one step to facilitate the adoption process. (§ 366.26, subd. (n)(1).) The caretaker may make the request orally (Cal. Rules of Court, rule 5.726(a)(2)) or by filling out a Judicial Council form (Cal. Rules of Court, rule 5.726(a)(3) [requiring written requests to be made on Judicial Council form JV-321]). Only after the court makes a ruling on this threshold question—i.e., whether the caretaker meets the requirements of a prospective adoptive parent—do the proceedings move to the second stage, in which the court considers whether removal from the caretakers home is in the best interests of the child. (§ 366.26, subd. (n)(3)(B); Cal. Rules of Court, rules 5.727(a), (g).) A caretaker who has been designated a prospective adoptive parent has the right to participate fully in this hearing and, "like other litigants, may offer evidence, examine witnesses, provide the court with legal authorities and make arguments to the court." (Wayne F. v. Superior Court (2006) 145 Cal.App.4th 1331, 1334.)
II. Reliance on "Best Interests" Evidence Was an Abuse of Discretion
In this case, Jackies attorney made a succinct offer of proof that she satisfied the three criteria for being designated a prospective adoptive parent. The Department then called two witnesses. Although social workers McGuire and Moore were presented only as rebuttal evidence to Jackies offer of proof, their testimony veered several times into a substantive assessment of deficiencies in the placement. For example, McGuire described Daves alcohol consumption and answered several questions from the minors counsel relating to Daves criminal history. Moore also testified about these issues at length. After noting parental rights had been terminated due to alcohol and substance abuse, she went on to describe Daves alcohol consumption and his criminal history, which, unless he obtained a waiver, would have disqualified him from serving as a foster parent. These matters would have been relevant to an examination of the childrens best interests, had the court reached the second stage of the hearing, but they were not relevant to the threshold question of whether Jackie was a prospective adoptive parent. Indeed, when discussing Daves alcohol consumption and criminal history in her argument, counsel for the Department commented that her remarks were "flowing over into whether removal of the children was in their best interest."
Even more troubling is the clear indication that the juvenile court concluded Jackie was not a prospective adoptive parent based in large part on this "best interests" evidence, which Jackie never had an opportunity to address. The court observed Jackies offer of proof met the initial burden of showing she met the statutory definition of a prospective adoptive parent, but the court concluded this showing had been rebutted by the Department. However, the rebuttal evidence cited by the court was exactly the sort of "best interests" evidence that was irrelevant at this initial stage of the proceeding. The court focused on facts that led to the childrens removal from Jackies home and its assessment of what their best interests required going forward, stating: "I think its, in my view, a person authorized to weigh the evidence—I think its clear and convincing that they have rebutted that [offer of proof] by showing that theres clear and convincing evidence that there is rampant, consistent, and chronic alcohol abuse in the family which, in addition to being a problem in itself for the children, is apparently fueling domestic violence. [¶] Ive read the reports, and the indication is that one of the children is testifying—I cant quote her, but basically they get drunk and get crazy. And when she was pressed about that, she said that they fight, and she ends up hiding in the closet. So thats the environment that those kids are in right now." Like the Departments witnesses, the court focused on Daves deficiencies, even though the only issue was whether Jackie met the criteria to be designated a prospective adoptive parent (and despite information that Dave was no longer living in the home). The court observed: "Additionally, [Dave] would not qualify, the household would not qualify as an adoptive household with him in it. Hes in complete denial about the nature and extent of his alcohol usage and in addition to the problems it creates in and of itself, its fueling a domestic violence situation which we cant have the children exposed to any longer."
The court went on to chide Jackie for failing to complete an adoption application or home study and expressed its view that the word "prospective" in section 366.26, subdivision (n) means something "a little closer to actually bringing this [adoption] into fruition" than Jackie had demonstrated. The court noted that, although the Department and State Adoptions "were maybe hoping" Jackie would complete services and be able to adopt, "its just not happening." As evidence of this failure, the court lapsed again into a best interests analysis: "We still have alcoholism. We still have, you know, the constant fighting. We have the fact that the household is never going to qualify as a prospective adoptive household with [Dave] until he gets a waiver, and you know thats not going to happen. And it certainly, given the timelines weve got, its not realistic to wait any longer and have that happen. So Im making a finding that shes not a prospective adoptive parent." The court then made its best interests analysis explicit by concluding: "And I want to state for the record that even if I found she was a prospective adoptive parent, I dont find its in the best interest of these two kids to be with [Jackie] at this time."
Judicial determinations affecting the custody of dependent children are generally committed to the sound discretion of the juvenile court, and " ` "a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]." [Citations.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) However, a trial courts discretion must be " `an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law . . . . [Citations.]" (In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.)
We conclude the juvenile court abused its discretion by basing its decision about Jackies status on facts surrounding the removal of the children from her home and the courts impressions about whether removal served the childrens best interests. As discussed, section 366.26, subdivision (n)(1) lists only three criteria to be satisfied by a caretaker who seeks to be designated a prospective adoptive parent. The statute neither invites nor authorizes the trial court to base its decision on an assessment of the merits of the childs placement in the caretakers home. Indeed, such a construction would almost certainly defeat the purpose of the law. The law was designed to give a caretaker who wishes to adopt (and meets certain minimum criteria) the right to a contested hearing to consider whether removal from the caretakers home is in the childs best interests. (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 218 (2005-2006 Reg. Sess.) June 7, 2005, p. 4.) If evidence concerning the reasons for removing the child, and concerning the childs best interests, could be appropriately considered on the threshold question of whether the caretaker is a prospective adoptive parent, there would be no need for a further hearing on these issues. Worse, it strikes us as fundamentally unfair for the court to rely on evidence going to the ultimate question of best interests as a basis for denying standing to a caretaker who seeks a hearing on best interests. Jackie never had an opportunity to rebut statements in the Departments reports about why the girls were removed, or an opportunity to attempt to show why placement with her was in their best interests, because the courts ruling precluded her from obtaining a contested hearing on these issues. (Cf. Wayne F. v. Superior Court, supra, 145 Cal.App.4th at pp. 1341-1342 [caretaker who is designated a prospective adoptive parent may participate fully in a removal hearing].) "[A] trial courts discretion is not `unfettered but must be ` "`exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. " (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 275, quoting Martin v. Cook [(1977)] 68 Cal.App.3d 799.)" (In re Robert L., supra, 21 Cal.App.4th at p. 1067.) The juvenile courts apparent attempt to short-cut the section 366.26, subdivision (n) process by basing its standing decision on best interest considerations was an abuse of discretion.
III. The Error Resulted in a Miscarriage of Justice
In the case In re Celine R. (2003) 31 Cal.4th 45, the Supreme Court confirmed that a judgment in dependency proceedings may not be reversed unless the error resulted in a miscarriage of justice. The court explained: "The California Constitution prohibits a court from setting aside a judgment unless the error has resulted in a `miscarriage of justice. (Cal. Const., art. VI, § 13.) We have interpreted that language as permitting reversal only if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) We believe it appropriate to apply the same test in dependency matters." (In re Celine R., supra, 31 Cal.4th at pp. 59-60.) We conclude the order in this case must be reversed because it resulted in a miscarriage of justice. Absent consideration of inappropriate factors, Jackie had a reasonable probability of prevailing on her request to be designated a prospective adoptive parent of Autumn and Jacquelyn.
The first statutory requirement is easily met, since the girls lived in Jackies home for three years and nine months—more than three years longer than the minimum period of six months. (§ 366.26, subd. (n)(1).) Jackie also satisfied the second requirement by "currently express[ing] a commitment to adopt" the children. (Ibid.) Jackies counsel made an offer of proof that she wished to commit to adoption, and the State Adoptions worker testified that, when he met with her a week before the removal hearing, Jackie expressed a current desire to adopt the children. Moreover, reports prepared by the Department throughout the dependency proceedings indicate Jackie consistently expressed a desire to adopt Autumn and Jacquelyn. Likewise, two adoption assessment reports prepared by State Adoptions at the time parental rights were terminated stated Jackie was "committed to the children and ha[d] expressed a desire to adopt" them. In rebuttal, the Department relied heavily on Jackies statement to social workers at the November 2004 meeting that she "d[id]nt want to adopt anyway" and was "being forced to adopt." However, this one statement, made in anger just before Jackie and Dave walked out of the meeting, is simply not sufficient to contradict her consistent expression over three years time of a desire to adopt the children. The Department and State Adoptions recognized as much because they left Autumn and Jacquelyn in their aunts care for a full year after her outburst. Moore explained that even after the November 2004 meeting, the two agencies remained hopeful Jackie "could do the things she needed to do to be an adoptive parent," and they believed the goal of her adopting the girls could still be met.
The third criterion for being designated a prospective adoptive parent requires the caretaker to have taken "at least one step to facilitate the adoption process," and the statute lists several examples of what these steps include. (§ 366.26, subd. (n)(1)-(2).) One such step is "[b]eing designated by the court or the licensed adoption agency as the adoptive family." (§ 366.26, subd. (n)(2)(C).) McGuire believed Jackies home had been designated by State Adoptions as the adoptive placement for Autumn and Jacquelyn, and his testimony is consistent with the record. State Adoptions prepared two preliminary adoption assessment reports (§ 366.21, subd. (i)) in advance of the section 366.26 hearing. One statutory requirement of such reports is a "preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, particularly the caretaker." (§ 366.21, subd. (i)(4).) Both reports stated, with respect to Autumn and Jacquelyn, "The prospective adoptive parent is the paternal aunt, Jackie." This designation in the reports is especially significant because, in addition to subdivision (n)(2)(C), the prospective adoptive parent statute specifically directs the juvenile court to consider whether the caretaker is listed as an adoptive parent in a section 366.21, subdivision (i) preliminary assessment. (§ 366.26, subd. (n)(1); see also Sen. Com. on Judiciary, Analysis of Sen. Bill No. 218 (2005-2006 Reg. Sess.) Apr. 12, 2005, p. 6 [describing the preliminary assessment report as one opportunity for a caretaker to express a commitment to adoption].) Although the State Adoption reports indicated further work needed to be done—especially by Dave—before the family would be ready to adopt, both reports stated that Jackie "appear[ed] suitable for the adoption of Autumn and Jacquelyn."
Another step toward facilitating adoption identified in the statute is "[w]orking to overcome any impediments that have been identified by the State Department of Social Services and the licensed adoption agency." (§ 366.26, subd. (n)(2)(G).) The Department and State Adoptions identified three impediments to adoption in this case: Daves alcoholism, Daves criminal history and Jackies codependency. Evidence presented at the hearing showed the couple had worked, with direction from the social workers, to overcome each of these impediments. McGuire testified that State Adoptions wanted the couple "to attend alcohol treatment, to go to classes." Specifically, the agency wanted Jackie to attend Alanon classes and Dave to attend Alcoholics Anonymous (AA) meetings. In fact, although McGuire was not aware of it when he testified, Jackie and Dave did engage in these services. In its May 24, 2005, status report, the Department advised the court that Jackie had been attending Alanon and Dave had been "engaged in process groups with AODP." Moore testified that Jackie brought the Department proof of her attendance at Alanon sessions, and records of Jackies Alanon attendance and Daves AA attendance were attached to the Departments May 2005 report. In addition, the evidence indicates Dave sought to overcome the impediment of his criminal history, because Moore testified he sent the Department letters seeking a waiver. Although the agencies criticized the extent of Jackies compliance with services, complete, uncomplaining compliance is not the standard. The statute requires only that a caretaker who wishes to be designated a prospective adoptive parent show she has been "[w]orking to overcome . . . impediments." (§ 366.26, subd. (n)(2).) Jackie did so.
The Department found one of these letters inadequate and stated another letter was required, but Moore did not know if Dave was advised of this conclusion.
Because the evidence presented at the hearing—from the Departments own witnesses—establishes that she met the threshold criteria to be designated a prospective adoptive parent, Jackie had a right to a contested hearing on whether removal of Autumn and Jacquelyn was in the childrens best interests. (§ 366.26, subd. (n)(3).) The juvenile courts refusal to grant such a hearing, based on its consideration of inappropriate factors, was a prejudicial abuse of discretion.
DISPOSITION
Let a writ issue directing the superior court to vacate its order of January 19, 2006, denying Jackies request to be designated a prospective adoptive parent of Autumn and Jacquelyn. The juvenile court is directed to set a hearing forthwith to address, in light of current circumstances, whether: (1) Jackie continues to satisfy the threshold criteria for designation as a prospective adoptive parent; and (2) the minors continued removal from Jackies home is in their best interests. (§ 366.26, subd. (n)(3)(B).) Jackies petition for habeas relief is denied as moot.
We concur:
PARRILLI, J.
SIGGINS, J.