Opinion
A123500 A123501
3-10-2009
G.M., Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; ALAMEDA COUNTY SOCIAL SERVICES AGENCY et al., Real Parties in Interest. E.B., Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; ALAMEDA COUNTY SOCIAL SERVICES AGENCY et al., Real Parties in Interest.
Not to be Published in Official Reports
E.B., a minor who has been freed for adoption, and G.M., her current caretaker (collectively, petitioners), have filed petitions for extraordinary writ relief, challenging orders the juvenile court entered after respondent Alameda County Social Services Agency (Agency) denied G.M.s application to adopt E.B. Petitioners contend that the juvenile court erred by: (1) denying their requests for reversal of Agencys decision on the adoption application (Welf. & Inst. Code, § 388 ); (2) denying their request that G.M. be designated E.B.s prospective adoptive parent (PAP) (§ 366.26, subd. (n)); and (3) following improper procedures in denying Agencys request to remove E.B. from G.M.s home (§ 366.26, subd. (n)).
All further statutory references are to the Welfare and Institutions Code unless otherwise specified. All rule references are to the California Rules of Court.
We issued orders to show cause in both matters, and ordered the two matters consolidated for decision. We now deny the petitions.
I. FACTUAL AND PROCEDURAL BACKGROUND
E.B. was born in December 2005. She was placed with G.M. in February 2006 and was later declared a dependent of the juvenile court. In January 2007, following termination of reunification services to E.B.s biological parents, Agency recommended that the court terminate parental rights and select adoption as the permanent plan for E.B. Agency made this same recommendation in subsequent reports to the court.
In several discussions in 2006 and 2007, G.M. told Agency that she wanted to be E.B.s legal guardian but was not interested in adopting E.B., although Agency representatives advised G.M. that adoption was the preferred plan for E.B. G.M. believed that she would not receive as much financial assistance if she adopted E.B. After Agency explained that the amount of financial assistance would be essentially the same, G.M. said she would consider adoption, but later told Agency she was not interested in adoption.
In April 2007, the court granted G.M.s request to be designated E.B.s de facto parent.
In August 2007, E.B.s counsel informed the court that she and G.M. opposed termination of parental rights and selection of adoption as the permanent plan for E.B. E.B.s counsel stated that G.M. wanted to become E.B.s legal guardian. E.B. and G.M. later filed briefs urging the court to find that the "relative caretaker" exception to termination of parental rights applied. However, in October 2007, the court ruled that the exception did not apply.
G.M. applied to adopt E.B. in November 2007.
In January 2008, the court terminated parental rights and selected adoption as the permanent plan for E.B.
On April 10, 2008, after conducting a home study, Agency denied G.M.s application to adopt E.B. The social worker noted in the home study that G.M. had a lengthy history of child abuse and neglect allegations relating to other foster children in her care; three of the complaints were substantiated. The social worker also expressed concern about the nature of the attachment between G.M. and E.B., concluding that G.M. appeared "to have great difficulty with empathy," "minimize[d] [E.B.s] developmental and attachment needs," and made contradictory statements about corporal punishment. Finally, the social worker expressed concern about G.M.s motivation for seeking to adopt E.B., which was "slow to develop and appear[ed] to be a response to external pressures," as well as G.M.s opposition to Agencys consideration of placing E.B. with a Caucasian lesbian family. Agencys notice denying the adoption application stated that the denial was based on: (1) G.M.s "social history, including the results of screenings for criminal background and child abuse/neglect referrals;" (2) G.M.s "motivation for seeking adoption and the ability and willingness to assume permanent responsibility for the care, guidance and protection of a child through adoption;" and (3) G.M.s "commitment and capability to meet the minors emotional needs."
G.M. requested that Agency conduct a grievance review hearing. After an evidentiary hearing on June 9, 2008, Agencys review officer issued a decision upholding the denial of the adoption application.
Also in June 2008, Agency served a notice of its intention to remove E.B. from G.M.s home. G.M. and E.B. objected to the proposed removal and asked the court to designate G.M. as E.B.s prospective adoptive parent (PAP).
E.B. and G.M. also filed "Request[s] to Change Court Order" under section 388, seeking review of Agencys denial of the adoption application. E.B.s petition asked the court to "find [Agency] abused [its] discretion in denying the [home study] of [G.M.], violated [G.M.s] right to due process, and approve [G.M.s] home for adoption." G.M.s petition included similar requests.
On November 10, 2008, counsel for G.M. submitted to the juvenile court nearly 300 pages of documents relating to the home study and the grievance hearing. Also on the same date, Agency submitted to the court its administrative record, including a redacted copy of the home study, a transcript of the grievance hearing, and the written decision of the review officer.
After holding hearings over two days, the juvenile court ruled on the parties motions on November 18. The court denied the section 388 petitions, finding that Agency did not abuse its discretion in denying G.M.s adoption application. Based on this ruling, the court denied petitioners requests to designate G.M. as a PAP. However, the court denied Agencys request to remove E.B. from G.M.s home, and stated that any removal would occur after Agency had identified an appropriate adoptive home. The court stated that the parties would have the ability to litigate the appropriateness of removal at that time.
G.M. and E.B. filed timely writ petitions.
II. DISCUSSION
A. Review by Writ Rather Than Appeal
The courts rulings on the PAP and removal issues under section 366.26, subdivision (n) are nonappealable and are reviewable by writ. (§ 366.26, subd. (n)(5) [court order "issued after a hearing pursuant to [section 366.26, subdivision (n)]" is not appealable and must be challenged by writ petition].) In contrast, the denial of a section 388 petition is ordinarily appealable. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71; In re Aaron R. (2005) 130 Cal.App.4th 697, 702-704.) In this instance, however, it is appropriate to review the courts section 388 ruling by writ. First, the section 388 ruling was issued contemporaneously with the courts PAP and removal rulings "after a hearing pursuant to [section 366.26, subdivision (n)]," and thus arguably is nonappealable. (See § 366.26, subd. (n)(5); cf. In re Anthony B. (1999) 72 Cal.App.4th 1017, 1019, 1021-1022, 1024 [in pretermination context, orders setting permanency planning hearings, and other orders entered contemporaneously with setting orders, are nonappealable].) Second, even if the section 388 ruling is appealable, we have discretion to review it by writ. (In re Kristin W. (1990) 222 Cal.App.3d 234, 248-249, criticized on another ground in In re Elizabeth M. (1991) 232 Cal.App.3d 553, 562-563.) Such review is appropriate here, because petitioners challenge to the denial of G.M.s adoption application should be promptly resolved; the parties have fully briefed that issue; and it is closely related to the courts rulings on the PAP and removal issues.
B. The Section 388 Petitions
We review the juvenile courts denial of the section 388 petitions for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
In turn, the juvenile courts review of Agencys decision was for abuse of discretion. Although section 388 only expressly authorizes petitions to modify prior court orders (§ 388, subd. (a)), the Court of Appeal in In re Esperanza C. (2008) 165 Cal.App.4th 1042 (Esperanza C.), held that a juvenile court has jurisdiction under section 388 to review an agency decision for abuse of discretion. (Esperanza C., supra, at pp. 1049-1050, 1058-1060.) In their section 388 petitions, petitioners cited Esperanza C. and asked the juvenile court to review Agencys denial of G.M.s adoption application for abuse of discretion. Such review was permissible, in light of the need for prompt resolution of objections to the denial of the adoption application. (See Esperanza C., supra, at p. 1060.)
Petitioners principal contention is that the juvenile court erred by deciding the section 388 petitions based on oral argument and documentary evidence, rather than holding an evidentiary hearing with live witness testimony. Petitioners assert that the juvenile court should have permitted them to cross-examine (1) Dr. Deepa Abraham, who, in an October 2008 report, made negative findings concerning the nature of the attachment between G.M. and E.B., (2) Dr. Fortunee Kayra-Stuart, who, in a November 10, 2008 report, opined that it was in E.B.s best interest to stay in G.M.s home, and (3) the social worker who prepared the home study.
A juvenile court generally has discretion as to the manner of proof in a section 388 hearing (rule 5.570(h)(2)), but it must permit live witness testimony if "[t]here is a due process right to confront and cross-examine witnesses." (Rule 5.570(h)(2)(B).) Such a due process right can exist "where there is a contested hearing with an issue of credibility." (E.g., In re Clifton V. (2001) 93 Cal.App.4th 1400, 1405.)
In asserting that live witness testimony was required, petitioners assert that the section 388 petitions asked the juvenile court to take two separate actions: (1) to review Agencys denial of G.M.s adoption application for abuse of discretion pursuant to Esperanza C.; and (2) to "approve [G.M.s] home" for adoption even if Agency did not abuse its discretion, a step petitioners contend the court had authority to take under Family Code section 8704. As to the first assertion, petitioners do not articulate a clear argument as to why the juvenile court was required to consider live witness testimony in deciding whether Agency abused its discretion in denying G.M.s adoption application. As Agency points out, the juvenile court, in addition to hearing extensive oral argument, had available to it the administrative record of Agencys decisions, including the nearly 300 pages of documents that G.M. had submitted, as well as documents submitted by Agency. Nor do petitioners ever explain how cross-examination of Dr. Abraham or Dr. Kayra-Stuart about reports they prepared in October and November 2008 would have been relevant to whether Agency abused its discretion in making its earlier decisions (in April & June 2008) denying the adoption application.
Petitioners section 388 petitions did not clearly state that these were two separate requests. Instead, each petition included a request to approve G.M.s home for adoption as part of the same sentence asking the court to find Agency had abused its discretion. The petitions did not cite Family Code section 8704, and did not assert that the court could overrule Agencys decision even if it found no abuse of discretion.
In any event, petitioners waived any claim that the juvenile court erred by failing to hold an evidentiary hearing on the question of whether Agency abused its discretion. At the November 10 hearing, before hearing oral argument, the court asked the parties "whether or not they believe they need to call witnesses with respect to this 388 motion." G.M.s counsel responded by referring to the documentary evidence she had submitted to the court, but did not request the opportunity to present witnesses. E.B.s counsel responded by separating the two issues that she said she had raised in her section 388 petition. E.B.s counsel stated that, although the "bulk" of her petition pertained to whether Agency abused its discretion in conducting the home study and the grievance hearing, the petition "also request[ed] that the Court approve [G.M.s] home for adoption [under Family Code section 8704] despite the Agencys denial of the [home study] and refusal to approve [G.M.] for adoption." (Italics added.) E.B.s counsel contended that, in connection with the Family Code section 8704 issue, petitioners "should be allowed to present evidence regarding whether or not the Agencys decision was in the best interest of the child." E.B.s counsel then stated: "With that said, I am prepared to argue." Thus, neither petitioner requested an evidentiary hearing on the question of whether Agency abused its discretion in denying G.M.s adoption application.
At the conclusion of oral argument, the court twice asked if the parties had "[a]nything else?" E.B.s counsel did not respond. G.M.s counsel responded, "Submitted." The court took the section 388 petitions under submission and stated that, at the next hearing, it would "issue its ruling unless there is any other information or issue that needs to be addressed." The parties did not present any further evidence, and the court ruled on the section 388 petitions at the November 18 hearing. Inasmuch as petitioners did not request an evidentiary hearing on the question of whether Agency abused its discretion, they waived the right to claim on appeal that the juvenile court erred by failing to hold an evidentiary hearing on that issue. (E.g., In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339 (Lorenzo C.) [failure to object in trial court waives right to claim error on appeal].)
There is also no merit in petitioners claim that the juvenile court erred by failing to hold an evidentiary hearing on petitioners purportedly separate request for approval of G.M.s home for adoption. As noted above, E.B.s counsel stated at the November 10 hearing that, in the context of a request for approval of G.M.s home for adoption under Family Code section 8704, she wanted to present evidence on G.M.s fitness for adoption and whether Agencys decision was in E.B.s best interest. After holding oral argument on the section 388 petitions, the court deferred consideration of any motion and supporting evidence under Family Code section 8704, pointing out that no such motion was before it. However, neither petitioner filed a subsequent motion under Family Code section 8704, and, at the subsequent hearing on November 18, neither of them mentioned the Family Code section 8704 issue or asked the court to hold an evidentiary hearing on it. Accordingly, petitioners waived any claim that the court was required to hold a hearing on that issue. (E.g., Lorenzo C., supra, 54 Cal.App.4th at pp. 1338-1339.)
E.B.s counsel did file a "post-trial brief" on November 14, 2008, in which she included a short argument that, if the court found Agency had not abused its discretion, it should nevertheless hold a hearing under Family Code section 8704 to decide whether to override Agencys decision based on the "best interest" of E.B. At the November 18 hearing, Agencys counsel mentioned that E.B. had filed a post-trial brief, and the court advised the parties that it had not received the brief. E.B.s counsel stated that she had submitted the brief and asked that the court consider it, but she never expressed the belief that the court should conduct a hearing under Family Code section 8704 before ruling on the section 388 petitions.
We note that, even if petitioners had properly presented and preserved an argument for relief under Family Code section 8704, they have failed to prove that this statute applied in this case or that it authorized the juvenile court to overrule an Agency decision that was ruled not an abuse of discretion. Petitioners argument essentially stems from the final sentence of Family Code section 8704, subdivision (b), which states that if the agency "refuses to consent to the adoption of a child by the person or persons with whom the [agency] placed the child for adoption, the court may nevertheless order the adoption if it finds that the refusal to consent is not in the childs best interest." (Fam. Code, § 8704, subd. (b), italics added.) However, neither petitioner provides any authority or argument supporting the requisite finding that G.M. was a "person . . . with whom [Agency] placed [E.B.] for adoption[.]" (Fam. Code, § 8704, subd. (b), italics added.) This court is not obligated to seek to develop such an argument for petitioners, or to locate supporting authorities or record evidence that might support such a theory. (E.g., Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546; Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.)
G.M.s final argument is that the juvenile court should have found that Agency violated G.M.s due process rights by failing to provide certain documents to G.M. prior to the grievance hearing. G.M. claims that since she did not have access to "underlying criminal records, CPS reports, and a psychological evaluation that the Agency had and on which it based its [home study], . . . there was no way [G.M.] could prepare to testify adequately at the Grievance Hearing regarding those issues." This argument provides no basis for reversing the courts decision.
Agency provided G.M. with a redacted copy of the home study document prior to the grievance hearing. The redacted material included excerpts from the psychological evaluation of Y.L., another minor who lived with G.M., and summaries of four unfounded or inconclusive reports of child abuse and/or neglect of foster children cared for by G.M. In a discovery request dated June 3, 2008, G.M. requested that Agency produce additional documents underlying the home study "within fifteen days of the date of service of this request." The grievance review hearing was held on June 9, 2008, and G.M. acknowledged at the hearing that a response to the request was "not due yet[.]" Documents underlying the home study were later provided to G.M., who submitted them to the juvenile court on November 10, 2008, prior to the hearings on the section 388 petitions.
G.M. has not shown that she was prejudiced by Agencys redaction of limited material from the home study document or by not having access to additional documents prior to the grievance hearing. The redacted home study document that G.M. received included an extensive discussion of G.M.s relationship with Y.L., as well as G.M.s comments on that relationship. The home study also reflects that the social worker showed G.M. the criminal history and child abuse reports and that G.M. responded to issues raised in those documents. The juvenile court found that G.M. had made "no showing or representation" that the information she did not receive before the grievance hearing "affected the Agencys decision or [] that non-disclosure would have affected [G.M.s] participation in that hearing." G.M. has not shown that the juvenile courts conclusion on this point was incorrect, or that the juvenile court abused its discretion.
C. The Request for PAP Designation and the Removal Request
Under section 366.26, subdivision (n), the juvenile court "may" designate a childs current caretaker as a PAP if certain "threshold criteria" are met, i.e., "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," such as applying for or cooperating with a home study or requesting de facto parent status. (§ 366.26, subds. (n)(1)-(n)(3).) When an agency seeks to remove a child from the home of a PAP or a caretaker who meets the threshold criteria to be a PAP, the agency must provide notice to the caretaker and the childs attorney of its intent to remove the child. (§ 366.26, subd. (n)(3); Wayne F. v. Superior Court (2006) 145 Cal.App.4th 1331, 1339 (Wayne F.).) The caretaker or the childs attorney may file an objection to the removal; a caretaker who meets the threshold criteria to be a PAP may also file a petition seeking designation as a PAP. (§ 366.26, subd. (n)(3)(A); Wayne F., supra, 145 Cal.App.4th at p. 1339.) If the court designates a caretaker as a PAP, the caretaker has the right to participate in the removal hearing. (Wayne F., supra, at p. 1335.) Except in emergencies (see § 366.26, subd. (n)(4)), a child may not be removed from the home of a PAP unless the court finds, after a hearing, that removal is in the childs best interest (§ 366.26, subd. (n)(3)(B)), an issue on which the agency has the burden of proof. (Rule 5.727(g); State Dept. of Social Services v. Superior Court (2008) 162 Cal.App.4th 273, 285.)
Here, the juvenile court denied the requests to designate G.M. as a PAP, but also denied Agencys request to remove E.B. from G.M.s home, stating that any removal would occur after Agency had identified an appropriate adoptive home. Petitioners argue that the juvenile court erred by failing to hold an evidentiary hearing on the PAP and removal issues; E.B. also asserts that the courts denial of the PAP request was an abuse of discretion. We disagree.
1. The PAP Application
When a caretaker meets the "threshold criteria" for designation as a PAP, the court still has discretion as to whether to designate the caretaker as a PAP. (See § 366.26, subd. (n)(1) [court "may" designate a caretaker who meets the threshold criteria].) In making this discretionary decision, the court may consider the recommendation of the social services agency. (§ 366.26, subd. (n)(1).) In opposing PAP designation for G.M., Agency did not dispute that G.M. met the threshold criteria, but recommended that the court deny PAP designation because Agency had denied G.M.s adoption application. The juvenile court, in declining to designate G.M. as a PAP, stated that it was taking into consideration Agencys recommendation and the courts own ruling that Agency had not abused its discretion in denying the adoption application. The courts decision was not an abuse of discretion.
E.B. had lived with G.M. for more than six months (since February 2006); G.M. expressed a commitment to adopt E.B.; and G.M. had taken steps to facilitate the adoption process, including applying for and participating in a home study, and obtaining de facto parent status. (§ 366.26, subd. (n)(2).)
The court also did not err by not holding an evidentiary hearing on the PAP issue. As required by rule 5.726(c)(4), the court did schedule a hearing on the contested PAP requests. At the November 10 and 18 hearings, the court had available to it several hundred pages of documentary evidence relating to the home study and the grievance hearing, and heard extensive oral argument. Petitioners did not request the opportunity to present additional evidence specifically directed to the PAP issue, and they may not claim now that the court erred by failing to hold an evidentiary hearing on that issue.
G.M. contends the court should have held a hearing on whether G.M. met the PAP threshold criteria. (See § 366.26, subd. (n)(3)(B) [at hearing under section 366.26, subdivision (n), court determines whether caretaker meets threshold criteria].) But Agency did not dispute that G.M. met the threshold criteria. And the court did not deny PAP designation based on a failure by G.M. to meet the threshold criteria; it made a discretionary decision based on Agencys recommendation and its own prior rulings. G.M. was not prejudiced by the failure to hold an evidentiary hearing on the undisputed fact that she met the threshold criteria.
2. The Removal Request
Only a party "aggrieved" by a trial court ruling has standing to challenge the ruling on appeal. (In re Aaron R., supra, 130 Cal.App.4th at p. 703.) A party is "aggrieved" if he or she has "a legally cognizable interest that is injuriously affected by the courts decision." (Esperanza C., supra, 165 Cal.App.4th at p. 1053.)
The juvenile court denied Agencys request to remove E.B. from G.M.s home. This was the result petitioners sought. Petitioners thus are not aggrieved by the ruling and do not have standing to challenge the courts alleged procedural error in failing to hold an evidentiary hearing before denying the removal request.
Petitioners nevertheless assert that the courts disposition of Agencys removal request prejudices them. But the prejudice they perceive comes from different court rulings. G.M. argues that the courts failure to hold an evidentiary hearing on the removal issue prejudices her because Agency may file another removal request once it locates a proposed adoptive home, and G.M. may not have standing to oppose that removal request because the court has denied her application for PAP status. However, any change in G.M.s ability to oppose future removal requests results from the courts denial of her PAP request, not from the courts ruling on Agencys removal request.
Similarly, E.B. suggests that she is also aggrieved by the courts ruling. She reasons: although the court did not order immediate removal, it "essentially made an initial finding that removal would be appropriate once an adoptive home is found." At the November 18 hearing, the court stated: "[E.B.] should stay with [G.M.], unless there is a good reason to remove her, until an adoptive home is found." The court added, however, that any future request for removal to a specific adoptive home would be subject to review by the court. These statements do not constitute a ruling that any specific proposed removal or adoptive placement will be appropriate. They do reflect the fact that E.B. may, at some point, be removed from G.M.s home and placed in another home for adoption. But that fact is a consequence of the courts ruling that Agency did not abuse its discretion in denying G.M.s adoption application; it is not the result of the courts ruling on Agencys removal request.
III. DISPOSITION
In No. A123500, the petition for extraordinary writ relief is denied. The order to show cause issued on January 9, 2009, is discharged.
In No. A123501, the petition for extraordinary writ relief is denied. The order to show cause issued on January 5, 2009, is discharged.
We concur:
SIMONS, ACTING P.J.
NEEDHAM, J.