Opinion
A151481
01-05-2018
ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; DAWN H. et al., Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. OJ14023406)
This is an unusual proceeding at a stage of the dependency process which rarely receives the attention of a reviewing court. Ordinarily, the petitions for extraordinary writs we see are brought by parents pursuant to section 366.26 of the Welfare and Institutions Code and rule 8.452 of the California Rules of Court in order to halt the termination of parental rights. Here, the termination of parental rights has already occurred, and the petition is brought by the Alameda County Social Services Agency (Agency) pursuant to section 366.28 and rule 8.456. The Agency filed the petition to overturn the order of respondent court denying the Agency's motion to remove dependent W.T. from the placement with real party in interest Dawn H., who is the dependent's long-time foster parent, de facto parent, and, as initially recommended by the Agency, W.T.'s prospective adoptive parent.
Unless otherwise indicated, statutory references are to the Welfare and Institutions Code. References to a "rule" are to the California Rules of Court.
The Agency's petition cannot be judged in isolation. It is the latest of the Agency's repeated attempts to achieve judicial vindication of its position that it is under no legal obligation to pay real party for the care and feeding of W.T. for a number of months when he was placed with her, for either or both of the following reasons: (1) because Dawn H. forfeited her foster parent license when she moved out of Alameda County, and (2) because the Agency became aware of a report that Dawn H. had possibly been physically abusive with her natural-born teenage son who was not living with her.
As the parties are well aware, this petition is the third such effort by the Agency. Two prior efforts were rebuffed by respondent court on December 14, 2016, and March 3, 2017. The Agency's consolidated appeals (A150147 & A150706) are fully briefed and awaiting decision. It is only by reason of the expedited deadlines imposed by rule 8.456 that the Agency is allowed to jump the appellate queue and get accelerated review. The Agency then moved for permission to remove W.T. from real party's custody.
The Agency's subsequent, and equally unsuccessful fourth try, is the subject of a third pending appeal (A151482) from the order May 30, 2017. We denied the Agency's petition for extraordinary relief to overturn the fifth denial by respondent court on July 10, 2017 (A151791), which is the subject of yet another appeal (A151843) by the Agency.
It is the denial of that motion that the Agency challenges here. That ruling was made at the conclusion of a lengthy and contested permanent plan hearing at which many witnesses testified.
The hearing for May 30, 2017 is the only one for which there is a reporter's transcript in this record. Virtually all 15 pages of the transcript record respondent court stating its determinations. There is no need for lengthy quotation, but it should be noted be noted that the transcript reflects the utmost seriousness and thoroughness given the matter by respondent court. For present purposes it is sufficient to quote the pertinent language of the minutes:
"THE COURT MAKES THE FOLLOWING FINDINGS: [¶] . . . [¶]
"The Court finds removal from the home of Ms. H[.] is not appropriate.
"THE COURT MAKES THE FOLLOWING ORDERS: [¶] . . . [¶]
"The Court finds [W.T.] is not to be removed from the home of Dawn H[.]
"The adoption process is to go forward."
Respondent court's decision not to change W.T's placement would ordinarily be reviewed for abuse of discretion, and the actual or implied finding of what is in W.T's best interest would be sustained if it has the support of substantial evidence. (See In re M.M. (2015) 235 Cal.App.4th 54, 64; Adoption of A.S. (2012) 212 Cal.App.4th 188, 218.)
But the Agency has elected not to do so, its sole contention being a renewal of its claim that real party's foster parent license was nullified by her move to Sacramento County. The sole supporting authority invoked by the Agency is Health and Safety Code section 1524, which provides in pertinent part: "A license shall be forfeited by operation of law when one of the following occurs: [¶] . . . [¶] (c)(1) The licensee moves a facility from one location to another."
However, in the precise context of this proceeding, the matter of whether Health and Safety Code section 1524 achieved that result is virtually moot because, even if it did, it would not effect the removal of W.T. from his existing placement with real party. That could only be achieved by the order of respondent court on the basis of what was in the best interests of the minor. The statutes on this point are unambiguous.
Hearings subsequent to the termination of parental rights are governed by subdivision (n) of section 366.26 ("a hearing held pursuant to this section or anytime thereafter"). More precisely, paragraph (3) of subdivision (n) governs changes in the dependent's placement. At "[a] hearing ordered pursuant to this paragraph" "the court shall determine whether the caretaker has met the threshold criteria to be designated as a prospective adoptive parent . . . , and whether the proposed removal of the child from the home of the designated prospective adoptive parent is in the child's 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 child's best interest." (§ 366.26, subd. (n)(3)(B).)
This is so regardless of whether the prospective adoptive parent currently meets the statutory standards for placement. (See T. W. v. Superior Court (2012) 203 Cal.App.4th 30, 46.)
Accordingly, it must be accepted that W.T. could not be removed without the leave of respondent court if it concluded that the removal was in W.T.'s best interests. (E.g., In re Shirley K. (2006) 140 Cal.App.4th 65, 72-73 ["The ultimate responsibility for the well-being of a dependent child rests with the juvenile court."]; Department of Social Services v. Superior Court (1997) 58 Cal.App.4th 721, 734; Cal. Juvenile Dependency Practice (Cont.Ed.Bar 2017) § 8.26, p. 680; Seiser & Kumli. Cal. Juvenile Courts Practice & Procedure (2017 ed.) § 2.198[3], p. 2-736.)
But the Agency makes no attempt to do so. There no analysis of respondent court's best interests finding. (Rule 8.204(a)(1)(C).) Moreover, by failing to provide a reporter's transcript of the evidentiary hearings leading up to that finding, the Agency is precluded from demonstrating either an abuse of discretion (Lemelle v. Superior Court (1978) 77 Cal.App.3d 148, 156-157), or that the finding lacks the support of substantial evidence. (In re Kathy P. (1979) 25 Cal.3d 91, 102-103.)
The petition is denied on its merits, and is final as to this court forthwith. (Rule 8.490(b)(2)(A).)
/s/_________
Richman, Acting P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.