Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for extraordinary writ review Nos. JD112100 & JD111424, H.A. Staley, Judge.
B.H., in pro. per., for Petitioner.
No appearance for Respondent.
B.C. Barmann, Sr., County Counsel, and Judith M. Denny, Deputy County Counsel, for Real Party in Interest.
OPINION
Before Vartabedian, Acting P.J., Wiseman, J., and Dawson, J.
Petitioner, B.H., is the maternal aunt of two preschool-age dependent children (the children) whom the superior court freed for adoption (Welf. & Inst. Code, § 366.26) in 2007. The children lived with petitioner in a pre-adoptive placement for over 20 months, when in June 2008 real party in interest Kern County Department of Human Services (department) removed the children because petitioner left them unsupervised with their birth mother. Petitioner objected to the emergency removal, which the superior court subsequently found was in the children’s best interests.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Petitioner seeks extraordinary writ relief from the superior court’s finding. (§ 366.28.) She contends she was not given a timely hearing or an opportunity to present evidence. On review, we will deny the petition.
PROCEDURAL AND FACTUAL HISTORY
In early June 2008, Bakersfield police discovered the children with their birth mother. According to an unsubstantiated report by the birth mother’s girlfriend, the birth mother had abused the children and was going to take them with her to Los Angeles. During their investigation, police officers spoke with petitioner who explained that she had custody of the children but that their mother saw them two or three times a week and she (petitioner) did not worry about the children being in their mother’s care. According to petitioner, the birth mother and her girlfriend were always fighting and calling the police on each other for petty reasons.
The children’s social worker had suspected for some time that petitioner was permitting the children to have visits with their birth mother without prior authorization or court order. The same social worker purportedly cautioned petitioner against such unauthorized visits.
Days later, other social workers contacted petitioner in her home. She allegedly admitted she was aware the birth mother was not permitted actual visits. Nonetheless, petitioner allowed visits to occur and claimed the children’s social worker was aware of the visits and had no problem with the current arrangement. Confronted with the claim by the children’s social worker that she had cautioned against such visits, petitioner appeared upset and stated she recently had problems with the birth mother taking the children “unlawfully” for visits. Petitioner denied telling police that the children’s visits with their birth mother occurred two to three times a week.
The children were not in petitioner’s home at the time of the social workers’ visit. Instead, they were with the maternal grandmother who had offered some respite for petitioner. On the way to see the children in the grandmother’s home, social workers received a call that police had detained the birth mother as she was observed leaving the maternal grandmother’s home. The birth mother later confirmed she lived with the maternal grandmother although the maternal grandmother said the birth mother was frequently not there. The maternal grandmother also maintained that the children were in her home for the purpose of visiting with her and not their birth mother.
The birth mother reportedly told the social workers that petitioner left the children with her (the birth mother) on the day the police were called. Petitioner was supposed to return “right back.” Both the birth mother and the maternal grandmother maintained that the children’s social worker had approved visits between the children and the birth mother so long as the visits were supervised.
At this point, the social workers took the children into protective custody.
The department’s adoption agency apparently gave notice of its emergency removal of the children to petitioner, the children’s attorney and the court. We qualify the department’s action with the word “apparently” because the proof of service filed with the court on June 23, 2008, was neither dated nor signed under penalty of perjury. Petitioner, however, acknowledges in her petition that she did receive the notice. The department alleged it removed the children from their current home because of an immediate risk of harm, specifically:
“… law enforcement removed [the] children on June 4, 2008, due to suspected child abuse by the children’s biological mother. Mother’s girlfriend claimed that she observed the mother physically abusing the two girls. The children’s caretaker stated that she leaves the children with the biological mother, “two to three times a week,” and, “does not worry about the children being in her custody.” Parental rights were terminated as to the mother on October 9, 2007. When the children were placed into protective custody, the mother, her girlfriend, and the children were at a Greyhound Bus Depot, allegedly leaving for Los Angeles. Mother’s girlfriend has an open CPS referral at this time. Mother has a recent history of drug use.”
In fact, according to the record, the children were removed on June 10th. June 4th was the date of the police report and investigation.
On June 19, 2008, petitioner executed Judicial Council forms requesting: one, the court designate her as the children’s prospective adoptive parent because she was committed to adopting them and had applied for and cooperated in an adoptive home study; and two, the court conduct a hearing on her objection to the department’s removal of the children. She declared under penalty of perjury:
“I feel like I can provide the best home for [the children] physically, emotionally, and mentally. [The children have] been placed with me for [approximately] 2 years now and we have created a bond that would be hard on me as well as the children to break apart. I will ensure the safety and well being of [the children] and be sure there is no contact with mother at all. Social adoption worker Jan Wheeler always informed me that [the children] can have contact with mom as long as she was not left alone. I understand that it is not in the best interest of [the children] to be around biological mom and realize the situation in question was a mistake. I love [the children] and will be sure that they are not placed in situation again.”
In response to petitioner’s objection, the court set the matter for a July 2008 hearing and the department filed two supplemental reports detailing their investigation and that of the police.
At the July 2008 hearing, the court stated it had the department’s two supplemental reports and asked if the department had any other comment. County counsel on behalf of the department asked the court to find the emergency removal was in the children’s best interests based on the information contained in those reports. The children’s attorney submitted the issue. The court in turn stated it would make a best interest finding as to each child.
At this point, county counsel interrupted the court to advise that petitioner was present although counsel did not know if petitioner had anything to offer to the court. In response to the court’s request for any comments, petitioner stated “I would like them to be placed back in my care. I don’t believe it is in the best interest for them to be --.” Petitioner claimed she understood the concern. When asked by the court why there was continued contact with the mother that was not approved, petitioner replied “I know it wasn’t what the Court ordered at that time, but I never -- the social worker never told me that it was not okay for her to have supervised visits. I can guarantee it will not ever happen again. I am willing to do everything to get the kids back in my care.”
Petitioner had nothing else to add. County counsel reminded the court that the department disagreed with petitioner’s contention and added the visit in question was not a supervised visit.
The court, later that day, executed a written order finding the emergency removal was in the children’s best interest and terminated petitioner’s status as the children’s prospective adoptive parent.
DISCUSSION
Petitioner does not deny she permitted the birth mother to visit the children without supervision. Rather, she contends she was not told she qualified as a prospective adoptive parent as well as she was not given a timely hearing and an opportunity to present evidence. She also claims for the first time that she never received copies of the department’s reports to the court. Finally, she asks for “a chance to plead my case to the judge and maybe hire a lawyer to help me.” Having reviewed the record and the relevant law, we conclude petitioner is not entitled to any relief.
i.
At the time of a section 366.26 permanency planning hearing or anytime thereafter, a court may designate a caretaker with whom a dependent child has lived for at least six months as a prospective adoptive parent provided the caretaker expresses a commitment to adopt the child and has taken at least one step to facilitate the adoption process. (§ 366.26, subd. (n)(1) & (2).) Thereafter, if a decision is made to remove the child from the home of a designated prospective adoptive parent, the prospective adoptive parent is entitled to notice, as well as an opportunity to formally object and be heard. (§ 366.26, subd. (n)(3).) Otherwise, a prospective adoptive parent designation does not confer any standing upon the caretaker to object to any other action of the department. (§ 366.26, subd. (n)(3)(C).)
For all practical purposes, the department and the court treated petitioner as the children’s prospective adoptive parent even though the court had not formally designated petitioner as such. The department had characterized petitioner as the children’s prospective adoptive parent in its 2007 report to the court recommending the children be freed for adoption. It also gave petitioner notice of its decision to remove the children and the court set petitioner’s objection for hearing. To the extent petitioner now claims she was not told she qualified as a prospective adoptive parent, we fail to see, even assuming that were the case, how she was prejudiced. (People v. Watson (1956) 46 Cal.2d 818, 836 [petitioner must show it is reasonably probable that a result more favorable to her would have been reached had the alleged error not occurred].)
ii.
The law anticipates that a court will hold a hearing once an objection to an emergency removal is filed “as soon as possible and not later than five court days [thereafter] ... unless the court for good cause is unable to set the matter for hearing five court days after[.]” (§ 366.26, subd. (n)(3)(B).) Here, the clerk of the superior court set the hearing for 20 court days after petitioner filed her objection and without any showing of good cause for the delay. While this was error on the court’s part, petitioner fails to demonstrate how she was prejudiced by the delay. (People v. Watson, supra, 46 Cal.2d at p. 836.) We note in this regard that the department was entitled to immediately remove the children before either it gave notice, petitioner objected or the court held the hearing. (§ 366.26, subd. (n)(4).)
iii.
Finally, we disagree with petitioner that the court somehow deprived her of an opportunity to present evidence at the hearing. No doubt the court essentially “jumped the gun” announcing its ruling before inquiring whether petitioner was present and wished to be heard. Nevertheless, once the court became aware of petitioner’s presence, it did acknowledge her and gave her the opportunity to address the court.
To the extent petitioner complains she did not know what the department was saying about her in its reports, we note the court expressly stated it had considered the department’s reports in finding the emergency removal was in the children’s best interest. However, when given the opportunity to address the court, petitioner never told the court that she did not receive copies of those reports. Although those reports include additional information beyond the explanation the department gave in its notice of the emergency removal, the critical fact was that petitioner permitted the birth mother to have unsupervised contact with the children. Petitioner did not dispute that fact either in her objection, her remarks to the superior court or in her petition to this court.
In addition, while petitioner asks us for the opportunity to present evidence, we note she did not ask the trial court to present any evidence. Instead, she essentially reiterated what she stated in her objection, that is, she had made a mistake and would be sure not to leave the children alone with their mother again. To the extent she would now like to “maybe hire a lawyer to help [her],” petitioner should have either made those arrangements before the July 2008 hearing or made her desire known to the superior court in the hopes that it would grant her a continuance.
In essence, petitioner criticizes the superior court for not anticipating and granting requests which she never made. That is not a basis on which we will grant petitioner any relief. Points not urged in the superior court may not be argued for the first time on review. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338.)
DISPOSITION
The petition for extraordinary writ relief is denied.