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A.P. v. Superior Court of Alameda County

Court of Appeals of California, First District, Division Four.
Nov 7, 2003
A103948 (Cal. Ct. App. Nov. 7, 2003)

Opinion

A103948.

11-7-2003

A.P., Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Real Party In Interest.


A.P. seeks review pursuant to California Rules of Court, rule 39.1B, to vacate a juvenile court order made on August 25, 2003, setting a hearing under Welfare and Institutions Code section 366.26[] with respect to her son, A.R. We find no error in the order and deny the petition on the merits.

Background

A.R. was born in November 1991. In May 2000, real party Alameda County Social Services Agency (Agency) filed a petition pursuant to section 300 alleging that petitioner had injured A.R. by striking him with a belt on two occasions. The Agency further alleged that for the two preceding years, petitioner and her boyfriend had physically abused A.R. and his sister, who was also the subject of a petition. The Agency alleged that petitioner had "a mental health condition which she denies" as well as "a history of psychiatric hospitalizations."

On October 25, 2002, the court made an order setting the matter for a ".26 hearing (Legal Guard.)" to be held on February 24, 2003. At that time the proposed permanent plan was to place A.R. in legal guardianship with his then-foster parent. However, in anticipation of the February 24 hearing, the social worker reported that in his opinion there was a "high likelihood" of A.R.s being adopted by a paternal aunt and uncle. The social worker also reported that petitioner had recently been admitted to the hospital, apparently for psychiatric treatment. Petitioner reportedly had not visited the children since the suspension of visitation in June 2002, when she "had active auditory and visual hallucinations and made threatening statements which caused great concern for the safety of the children." As to A.R., the Agency recommended a permanent plan of long-term foster care in contemplation of eventual adoption by the aunt and uncle. After the hearing was continued to March 10, 2003, the court issued an order finding that a permanent plan of "planned permanent living arrangement" was appropriate, and that it would adopt a permanent plan on or about December 24, 2004. Petitioner filed a timely notice of appeal from the March 10 order. That appeal is pending before this court. (Social Services Agency v. A.P. (A102176).)

On August 25, 2003, the court conducted a "report and review" hearing, after which it found, among other things, that A.R.s current placement was necessary and appropriate, the permanent plan of "adoption" was appropriate, and a permanent plan was expected to be adopted on or about July 24, 2004. The order set a date of December 16, 2003, for a hearing under section 366.26.

On September 2, 2003, petitioner filed a standard form "notice of intent to file writ petition and request for record, [California Rules of Court,] rule 39.1B" seeking to challenge the order of August 25, 2003. This document includes the handwritten notation, "My mother will take care of [A.R.]. [A.R.]s grandmother. I would like for my mother to take care of him. My son has a bond with my mother." On the same date, petitioner filed the instant petition, stating that she sought relief from the order "[m]aking plans for reunification or another relative for joint cus[to]dy." She also prayed for a stay, stating, "I dont [know] the uncle and never met his wife . . . . These people [were] never interested in my child before. The social worker is forcing this couple to take my son . . . . [T]hey [were] never willing to in the past . . . . [M]y mother had asked the social worker, that she would like to care [of] the two children[.] Then the social worker, called the aunt and uncle, to take the children[]. The uncle and aunt do not have a bonding relationship with my son. I want a long term placement at this time and not adoption. I would like for my mother to have vi[s]itation rights, in the plan of placement. At this time I feel that adoption would be detrimental, to his health. My son gets survivors insurance from his deceased father. I would like for his benefits to be put in a[] Trust Fund, [u]nless the court . . . grant[s] that it be used for child sup[p]ort. I would like to give my mother the opportunity to adopt both of my children[]. If Im not able to take the children[] now, I would like long term placement with visitation rights. I would like to [know] why do[es] his uncle want[] to adopt him? An[d] the child do[es] not have a lawyer."

DISCUSSION

Nothing in the petition or otherwise before us provides a sound or sufficient reason to set aside the courts order of August 25, 2003. Petitioners primary contention appears to be that A.R. should be placed with his grandmother, petitioners mother, instead of with his paternal aunt and uncle. Nothing in the record of the juvenile proceedings establishes that placement with the grandmother was possible. Even if it was, its rejection by the trial court could only be set aside if it were affirmatively shown to be an abuse of discretion. (See In re Robert L. (1993) 21 Cal.App.4th 1057, 1065-1067.) No abuse of discretion appears. Uncontradicted evidence shows that the aunt and uncle can provide A.R. with a suitable home, and indeed with educational and other opportunities significantly above the norm. In contrast, the grandmother reportedly "acknowledge[d]" in late 2002 that "she cannot take the minors due to lack of space/housing." Nothing in the record shows that this condition has changed. Petitioners doubts about the commitment of the prospective adoptive parents or the extent of their bonds with A.R. are not substantiated by anything in the record, and do not provide a basis to overturn the order under review.

Petitioner raises other matters which have apparently not been presented to the court below and therefore cannot be considered in this court, most notably the suggestion that some order should be made, or action taken, with respect to A.R.s claimed entitlement to insurance proceeds. Questions of visitation, whether by petitioner or A.R.s grandmother, must be presented to the juvenile court before they can be considered by us.

The petition is simply mistaken in asserting that the order of August 25 is defective because A.R. did not have a lawyer. The reporters transcript plainly reflects that an appearance was made by an attorney "on behalf of the minor, who is not present."

Without foreclosing any further points petitioner may be able to make in the trial court, nothing in her petition, or otherwise coming to our attention, would support setting aside the order of August 25, 2003.

The petition is denied on the merits. (Cal. Rules of Court, rule 39.1B(o).) This opinion is final immediately as to this court. (Cal. Rules of Court, rule 24(b)(3).)

We concur: Reardon, Acting P.J. and Rivera, J. --------------- Notes: All further statutory references are to the Welfare and Institutions Code.


Summaries of

A.P. v. Superior Court of Alameda County

Court of Appeals of California, First District, Division Four.
Nov 7, 2003
A103948 (Cal. Ct. App. Nov. 7, 2003)
Case details for

A.P. v. Superior Court of Alameda County

Case Details

Full title:A.P., Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent…

Court:Court of Appeals of California, First District, Division Four.

Date published: Nov 7, 2003

Citations

A103948 (Cal. Ct. App. Nov. 7, 2003)