Opinion
F079616
09-19-2019
D.B., Petitioner, v. THE SUPERIOR COURT OF STANISLAUS COUNTY, Respondent; STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Real Party in Interest.
Robert D. Chase for Petitioner. No appearance for Respondent. Thomas E. Boze, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 518204)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Ann Q. Ameral, Judge. Robert D. Chase for Petitioner. No appearance for Respondent. Thomas E. Boze, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for Real Party in Interest.
Before Detjen, Acting P. J., Franson, J. and Meehan, J.
-ooOoo-
INTRODUCTION
Petitioner D.B. is the adult cousin and presumptive prospective adoptive parent of now five-year-old Anthony B. After Anthony was removed from parental custody, he was eventually placed in petitioner's custody. Following termination of parental rights and on the eve of a hearing to review petitioner's request for adoption, the Stanislaus County Community Services Agency (agency) removed Anthony from her custody under exigent circumstances after he reported she spanked him with a belt, resulting in bruises. The agency was required but failed to notify petitioner of Anthony's removal under Welfare and Institutions Code section 366.26, subdivision (n)(3) and provide her a blank copy of Objection to Removal (form JV-325) under California Rules of Court, rule 5.727(c). Rather than object to the removal by filing the required form JV-325, petitioner's trial attorney objected by filing a Request to Change Court Order (form JV-180) pursuant to section 388. The juvenile court, proceeding under section 388, denied the petition without an evidentiary hearing.
Although petitioner was not officially designated as Anthony's prospective adoptive mother, she met the statutory definition, which the juvenile court acknowledged. (Welf. & Inst. Code, § 366.26, subd. (n)(1).)
Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Rule references are to the California Rules of Court.
On appeal, petitioner contends the juvenile court violated her due process right to an evidentiary hearing on the agency's decision to remove Anthony from her custody. Her attorney challenged the court's order by filing a petition for extraordinary writ instead of a notice of appeal, which is the proper method for challenging the denial of an evidentiary hearing under section 388. Real party in interest does not object to this court treating the matter as an extraordinary writ petition, which is the appropriate appellate remedy for challenging a child's removal under the circumstances presented here. (§ 366.28, subd. (b)(1); rule 8.456.) We have discretion to treat this case as a petition for extraordinary writ. (A.M. v. Superior Court (2015) 237 Cal.App.4th 506, 515.) We elect to do so and grant the petition.
PROCEDURAL AND FACTUAL SUMMARY
Dependency Proceedings on Initial Petition
Dependency proceedings were initiated in February 2018 following the investigation of a severely abused two-year-old child unrelated to Anthony but residing in the same home. The perpetrator of the abuse was unknown but could have been any of six adults living in the home, including Anthony's maternal grandmother (the grandmother). Then three-year-old Anthony had been left in his grandmother's care by his mother, who was homeless. Most of the other adults in the home smoked marijuana or methamphetamine, sometimes in front of Anthony. An adult granddaughter living in the home reported the grandmother called Anthony " 'mother f*****' " and a " 'piece of sh**' " and told him, " 'I don't want you and your mother doesn't want you.' " The granddaughter heard the grandmother smack Anthony and knew that she smoked marijuana and methamphetamine a few times a day around him. Anthony's alleged father was reportedly incarcerated and his whereabouts were unknown.
The agency took Anthony into protective custody, filed a dependency petition seeking his removal under section 300 and placed him in foster care.
In March 2018, the juvenile court exercised its dependency jurisdiction over Anthony pursuant to the petition and denied his mother reunification services because her whereabouts were unknown. (§ 361.5, subd. (b)(1).) The court denied his alleged father services because he was not entitled to them. (§ 361.5, subd. (a).) The court set a six-month review hearing for September 2018.
On June 18, 2018, Anthony was placed with petitioner in a concurrent relative placement in Santa Clara County. His mother's whereabouts remained unknown. On the agency's recommendation, the juvenile court set a section 366.26 hearing for January 10, 2019.
In its report for the section 366.26 hearing, the agency recommended termination of parental rights. Petitioner and Anthony lived together in a two-bedroom home and she was committed to adopting him. Anthony appeared to be very happy and content in her care.
On January 10, 2019, the juvenile court terminated parental rights and referred Anthony for adoption. On May 22, petitioner filed an adoption request, which the court set for a hearing on June 7.
Anthony's Removal from Petitioner
On June 4, 2019, Anthony was removed from petitioner's custody because of physical abuse and placed in a temporary foster home. According to a mandated reporter, Anthony stated " 'momma hit me with a belt.' " He had a deep purple bruise along with other bruises on his thigh, linear bruises on his buttocks and a bruise on his ankle. Petitioner denied physically disciplining him but did not have an explanation for his bruises and did not appear concerned.
On June 7, 2019, the agency filed a document titled "Additional Information (Notice of Removal)" with the court. The notice was in the form of a letter addressed as "To Whom it May Concern." It indicated that on June 4, 2019, Anthony was removed under Penal Code section 273d for unlawful corporal punishment. It further stated that he was placed in a foster home and the adoption hearing set for June 7 was vacated. A copy of the letter was served on county counsel and minor's counsel.
On June 14, 2019, petitioner's attorney filed a petition under section 388, asking the juvenile court to find that she met the criteria for prospective adoptive parent and to return Anthony to her custody or grant her a hearing under section 366.26, subdivision (n) and rules 5.727 and 5.728. She alleged the agency did not provide her Notice of Intent to Remove (JV-323), Notice of Emergency Removal (JV-324) and Objection to Removal (JV-325) forms. She further alleged her requests served Anthony's best interests because they had bonded in the year they were together, and she wanted to adopt him. The court set a hearing on whether to grant or deny an evidentiary hearing on her petition for July 3, the date set for the post-permanency plan review hearing (combined hearing).
On June 25, 2019, the agency filed another document titled "Additional Information" consisting of eight photographs of Anthony taken on June 4, 2019, depicting his injuries.
Hearing on the Section 388 Petition
On July 3, 2019, petitioner appeared with her attorney at the combined hearing. The juvenile court first addressed the section 388 petition, indicating that the issue before it was whether to grant a hearing to address the merits. Counsel for petitioner argued that in order to remove a child from a person who meets the criteria for prospective adoptive parent, the agency must give the person notice and an opportunity to be heard before removing the child. Here, "they removed the child from her custody and sent her a letter." He argued that they did not give notice on the specified form or give her an opportunity to be heard by objecting to the removal. He argued she was not given the due process rights to which she was entitled under the statute. The court agreed petitioner qualified as Anthony's prospective adoptive parent stating, "I agree that presumably your client would have ... [had] the ability to be designated as a prospective adoptive parent."
County counsel conceded the agency did not provide petitioner the required JV forms under rule 5.727 but argued the removal letter satisfied the notice requirements of section 366.26, subdivision (n). County counsel argued petitioner failed to make a prima facie showing that returning Anthony to her custody served his best interest. Minor's counsel concurred.
The juvenile court gave petitioner and her attorney an opportunity to review the photographs of Anthony's injuries since they had not received copies of them. After reviewing the photographs, petitioner's attorney stated they merely wanted an opportunity to be heard. He pointed out that if petitioner had filed an objection to removal on the proper JV form, the court would have scheduled a hearing.
The juvenile court agreed the agency should comply with the rules but stated, "the removal [did] not appear to have been arbitrary, but appear[ed] to have been based upon some very severe physical abuse that occurred while the child was in the care of your client. So the Agency would have been remiss if it failed to remove. And I don't see at this point that there is any possibility of the child being placed back in the care of your client. [¶] These injuries are very significant and severe ...." The court found it would not be beneficial to consider returning Anthony to petitioner. The court denied the petition and proceeded to the permanency plan review phase of the hearing. County counsel informed the court the agency located a new adoptive placement for Anthony and referred him for mental health counseling to deal with the recent abuse.
DISCUSSION
Petitioner contends the agency's failure to provide her notice of Anthony's removal under section 366.26, subdivision (n) and the juvenile court's refusal to conduct an evidentiary hearing denied her due process. We concur she was denied due process.
Agency's Authority to Remove
"Once a dependent child is freed for adoption, the agency to which the child is referred for adoption is responsible for the child's custody and supervision." (In re Shirley K. (2006) 140 Cal.App.4th 65, 71.) An interim or adoptive placement may be terminated at the agency's discretion at any time before the petition for adoption is granted. (Department of Social Services v. Superior Court (1997) 58 Cal.App.4th 721, 732-733 (Dept. of Social Services).) However, the agency's discretion is not unfettered. (Id. at p. 724.) The court retains jurisdiction over the child to ensure that the adoption is completed expeditiously and that the placement is appropriate. (In re Shirley K., at p. 72.) Thus, the agency does not have "carte blanche" to make placement decisions (Dept. of Social Services, at p. 734), and the trial court is limited to reviewing whether the agency abused its discretion in placing the child or in determining that the placement, once made, remains appropriate. (Id. at p. 724.)
The juvenile court has the authority and responsibility to determine whether removal from the home of a prospective adoptive parent is in the child's best interest. (§ 366.26, subd. (n)(3)(B); T.W. v. Superior Court (2012) 203 Cal.App.4th 30, 45 (T.W.).) A prospective adoptive parent may object to the child's removal from the home. (§ 366.26, subd. (n)(3)(A).) "If a prospective adoptive parent objects to the child's removal from the home, the [social services a]gency must prove by a preponderance of the evidence that removal from the prospective adoptive parent is in the child's best interests." (T.W., at p. 45.) At the hearing on the objection, 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. (§ 366.26, subd. (n)(3)(B).) Section 366.26, subdivision (n)
Section 366.26, subdivision (n) governs the removal of a child from the home of a caretaker who is either designated or qualifies as a prospective adoptive parent. The statute was enacted to " 'limit the removal of a dependent child from his or her caretaker's home after parental rights are terminated, if the caretaker is a designated or qualified as a prospective adoptive parent, as defined, in order to "protect the stability and best interests of vulnerable children." ' [Citation.] The legislation was designed to correct the ' "nearly complete, unchecked authority" ' appellate courts had given to a child welfare agency to decide a dependent child's adoptive placement after termination of parental rights." (T.W., supra, 203 Cal.App.4th at p. 44.)
A prospective adoptive parent is defined as "a current caretaker ... 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).) No one disputes that petitioner qualified as Anthony's prospective adoptive parent.
Section 366.26, subdivision (n) "provides for a hearing to review an agency's decision to remove a child from the home of a prospective adoptive parent." (State Depart. of Social Services v. Superior Court (2008) 162 Cal.App.4th 273, 284.) The agency may remove the child prior to a hearing under emergency circumstances only, where there is an immediate risk of physical or emotional harm to the child. (§ 366.26, subd. (n)(4).) However, as soon as possible, and not later than two court days after the removal, the agency must provide the prospective adoptive parent a completed Notice of Intent to Remove Child (form JV-323) along with blank copies of Objection to Removal (form JV-325) and Request for Prospective Adoptive Parent Designation (form JV-321) (rule 5.727(c)) forms. A parent objecting to the removal must file the JV-325 with the court within five court or seven calendar days from the date of notification, whichever is longer. (Rule 5.727(e)(1), (2).) The court must set a hearing as soon as possible but not later than five court days after the objection is filed with the court. (Rule 5.727(e)(3)(A).)
"At the hearing, 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 ...." (§ 366.26, subd. (n)(3)(B).) The agency bears the burden of proving by a preponderance of the evidence that the child's best interests require removal. (T.W., supra, 203 Cal.App.4th at p. 45.)
"[D]ue process requires 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' " (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418, quoting Mullane v. Cent. Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314.) Section 366.26, subdivision (n) requires the "full participation of [prospective adoptive parents] at removal hearings [as] the most effective means of meeting the Legislature's expressed direction that the juvenile court, rather than a social service or adoption agency, determine whether removal is in a child's best interest." (Wayne F. v. Superior Court (2006) 145 Cal.App.4th 1331, 1342.) Full participation means that "designated [prospective adoptive parents], like other litigants, may offer evidence, examine witnesses, provide the court with legal authorities and make arguments to the court." (Id. at p. 1343.)
The Juvenile Court Erred in Denying Petitioner an Evidentiary Hearing
The sole issue in this case is whether the juvenile court violated petitioner's due process right by not conducting an evidentiary hearing. While the agency did not comply with the notice requirements under rule 5.727(c), petitioner received the agency's removal letter and through her attorney timely objected to the removal and appeared at the hearing on her section 388 petition. Consequently, any defect in notice was cured. The error here occurred when the juvenile court treated petitioner's objection under section 388 rather than under the appropriate statute, section 366.26, subdivision (n).
As we stated above, petitioner qualified as a prospective adoptive parent and her section 388 petition objecting to the removal, though an incorrect method, was filed on the seventh calendar day from the agency's removal letter, making it timely under the statute.
Respondent contends the juvenile court's decision to deny petitioner an evidentiary hearing was not error because: (1) petitioner failed to make a prima facie showing under section 388 that returning Anthony to her custody served his best interests; (2) section 366.26, subdivision (n) does not require the juvenile court to set a hearing; and (3) petitioner fails to show prejudice. We disagree.
Section 388 allows a parent to petition the juvenile court to change, modify or set aside a prior order on a showing new evidence or changed circumstances exist and that changing the order will serve the child's best interests. (§ 388, subd. (a).) Section 388 requires the parent as the moving party to make a prima facie showing of both elements to trigger an evidentiary hearing. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) Therefore, if the parent makes a prima facie showing of changed circumstances, the juvenile court can deny the petition without an evidentiary hearing if the parent fails to make a prima facie showing that the relief sought would promote the child's best interests. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-190.)
Here, there was no prior order removing Anthony from petitioner's custody. Therefore, the provisions of section 388 did not apply to petitioner's request for his return. Because it did not apply, petitioner was not required to make a prima facie showing of best interests. Real party in interest nevertheless contends petitioner's attorney, having filed a petition under section 388 rather than an objection to removal, was "bound by the requirements of § 388." We disagree. The juvenile court was aware that section 366.26, subdivision (n) applied but nevertheless erroneously believed that since the ultimate determination under sections 388 and 366.26, subdivision (n) was the same; i.e., Anthony's best interest, that the procedure for making that determination under both statutes was also the same. It is not. Section 388 requires the petitioner to make a prima facie showing the proposed request serves the child's best interest in order to obtain an evidentiary hearing. Section 366.26, subdivision (n) contains no such requirement. If the prospective adoptive parent objects to the removal and requests a hearing, the court is required to set one. By ruling on petitioner's section 388 petition rather than proceeding under section 366.26, subdivision (n), the court improperly denied petitioner a hearing to present her case.
Real party in interest disputes the mandatory language in section 366.26, subdivision (n) concerning a hearing, arguing the juvenile court "may" conduct a hearing. The statute could not be any clearer. It provides the juvenile court "shall" conduct a hearing as soon as possible and no later than five days after a caretaker qualified to be a designated prospective adoptive parent files a petition objecting to the proposed removal of the child. (§ 366.26, subd. (n)(3)(B).)
Real party in interest refers to the juvenile court's ability to set a hearing on its own motion. Section 366.26, subdivision (n)(3)(A) states the court "may" on its own motion set a hearing on the agency's proposal to remove the child. However, the statute does not grant the court discretion to decide whether it will conduct a hearing if requested by a prospective adoptive parent. --------
Finally, real party in interest argues the juvenile court would have reached the same result even if petitioner had been allowed to present evidence. However, since the court deprived petitioner the opportunity to present evidence, there is nothing in the record on which to conduct a prejudice analysis. Consequently, we grant the petition.
DISPOSITION
The petition for extraordinary relief is granted. The order denying petitioner's section 388 petition is reversed. On remand, the juvenile court shall consider petitioner's request for designation as Anthony's prospective adoptive parent and reconsider his placement, after a full and fair hearing, in light of current circumstances and Anthony's best interests. Our decision is immediately final as to this court. (Rules 8.452(i), 8.490(b)(2)(A).)