Opinion
A154572
12-12-2018
In re T.N., a Person Coming Under the Juvenile Court Law. H.R.-D. et al, Petitioners, v. THE SUPERIOR COURT FOR THE COUNTY OF LAKE, Respondent; LAKE COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. JV320482)
This writ matter arises from dependency proceedings involving T.N., a boy born in 2016. When T.N. was a newborn, the Lake County Department of Social Services (Department) filed a petition on behalf of the boy under Welfare and Institutions Code section 300, subdivision (b) and removed him from the custody of his mother. He was placed with petitioners H.R-D. and E.R-D., who were subsequently granted de facto parent status. The following year, after parental rights were terminated, a permanent plan of adoption was ordered. T.N. was placed with his maternal grandmother, who resides in Oregon. Petitioners did not contest this placement. The placement was unsuccessful, however, and T.N. was returned to Lake County. Petitioners sought to have the boy returned to their home; however, the Department placed the child with a different prospective adoptive family. The juvenile court denied petitioners' request to change a court order and return him immediately to their care and custody. Petitioners then filed this writ petition, contending the juvenile court erred in affirming the Department's decision to place T.N. in his current foster/adoptive placement. We recognize the loving care petitioners provided to T.N.; however, in view of the entire record, we agree with the Department that the court did not abuse its discretion in deferring to the Department's placement decision. We therefore deny petitioners the requested relief.
All statutory references are to the Welfare and Institutions Code unless otherwise stated. All rule references are to the California Rules of Court.
Rule 5.502(10) states: " 'De facto parent' means a person who has been found by the court to have assumed, on a day-to-day basis, the role of parent, fulfilling both the child's physical and psychological needs for care and affection, and who has assumed that role for a substantial period."
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On October 6, 2016, the Department filed a petition on behalf of T.N. under section 300, subdivision (b)(1), alleging his biological mother had substance abuse issues that rendered her incapable of providing adequate care and supervision for her son. Reportedly, T.N. tested positive for methamphetamines at the time of his birth.
On October 7, 2016, the juvenile court conducted a detention hearing and ordered the minor detained. The child was placed in petitioners' home.
On November 7, 2016, a jurisdiction hearing was held. The Department had filed a jurisdiction report in which it indicated that the whereabouts of T.N.'s mother were unknown. T.N.'s father had not been identified. The boy's maternal grandmother reported that T.N.'s mother had told her she (the birth mother) wanted the maternal grandmother to raise the boy. The Department's petition was sustained and the matter was set for disposition.
In a disposition report filed on December 7, 2016, the Department indicated that it would request an adoption assessment for the maternal grandmother, who resided in Oregon. The Department's initial case plan was for adoption.
On February 21, 2017, petitioners filed a de facto parent request and a request for prospective adoptive parent designation. They indicated that they had completed an adoption home study in September 2016 and were attending trainings.
On March 17, 2017, the Department filed a report recommending that parental rights be terminated and a plan of adoption ordered. In the report, the Department noted that petitioners wanted to adopt T.N. However, the Department had not identified a prospective adoptive parent because the maternal grandmother had expressed interest in providing permanence to T.N. Petitioners had been advised there was a high likelihood that relatives would come forward requesting placement. Reportedly, they accepted this possibility.
At a hearing held on April 5, 2017, petitioners did not appear. The juvenile court was advised petitioners had decided not to pursue de facto status or prospective adoptive designation at that time, and so the juvenile court denied their requests for such status without prejudice.
On April 7, 2017, petitioners filed another de facto parent request. The request was granted on May 8, 2017.
On June 20, 2017, petitioners filed a request for prospective adoptive parent designation.
On July 21, 2017, the Department informed the juvenile court that it was waiting for social workers in Oregon to complete the home study for the maternal grandmother.
On October 16, 2017, the Department filed a section 366.26 report recommending that the juvenile court terminate parental rights and order a plan of adoption for T.N. The Department identified the maternal grandparents as prospective adoptive parents. In an updated adoption assessment, the Department reported that petitioners were cooperative and supportive of T.N.s transition to his maternal grandparents' care.
At the section 366.26 hearing held on November 1, 2017, petitioners appeared and told the juvenile court that they liked the maternal grandparents but were still worried about how the change in custody would impact T.N.'s well-being. They expressed a desire to maintain contact with him after the transition so that he would know they had not abandoned him and still loved him. The court terminated parental rights and deferred to the Department to oversee T.N.'s transition to his new home. The court thanked petitioners for caring for T.N. Their request for prospective adoptive parent designation was not ruled on.
On February 22, 2018, petitioners filed a request to change a court order under section 388. They asked the juvenile court to change its November 1, 2017 order placing T.N. with his maternal grandparents by placing him back in their care. The boy reportedly had been removed from the maternal grandparents, and the Department had placed him with different foster parents rather than returning him to petitioners' home. Petitioners expressed their desire to adopt him, now that the relative placement had failed. The maternal grandmother submitted a declaration in support of petitioners' request.
On February 23, 2018, the Department filed papers indicating that the relative placement had failed after Oregon social workers identified immediate safety threats to T.N.'s physical safety in the home. It was determined that the relative caregivers had omitted from their home study serious information regarding immediate family members. The Department had transported T.N. back to California and placed him with "his newly identified prospective adoptive parents." In a statement, Department social workers stated: "After careful assessment of available families (including the previous caretakers), the resource parents at which he is currently placed were selected by the county adoption agency with a view toward permanent placement and adoption."
On March 5, 2018, the juvenile court set petitioners' section 388 petition for hearing.
On March 27, 2018, petitioners submitted 20 letters from friends, family members, and others in support of their section 388 petition. The letter writers attested to petitioners' parenting skills and their devotion to T.N.'s well-being.
On March 29, 2018, the Department filed a report regarding its placement decision. The Department stated that T.N. had been placed with his current caregivers on February 3, 2018, after returning from Oregon. Reportedly, the boy was doing well in the caregivers' home, showing no sign of significant stress or discomfort. He was making gains in expressive language skills, and was social and playful. He demonstrated a healthy preference for his primary caregivers, seeking and accepting assistance, interaction, physical affection, and nurturing from them. The Department asserted that maintaining the current placement was in the child's best interests. The Department also revealed that petitioners' adoption home study, which was completed shortly after they received T.N. in their care, "recorded significant mental and physical health issues for one of the applicants, past substance abuse as well as current substance use that raised concern, and marital history raising questions of relational stability."
On April 18, 2018, the hearing on petitioners' section 388 petition commenced. Petitioners' witnesses testified as to T.N.'s attachment to them while he was in the couple's care. They also testified to the child's good health and apparent happiness with them, and spoke of petitioners' dedication to him and their long-standing intention to adopt him. Witnesses also testified that petitioners did not engage in substance abuse and their relationship appeared stable, though they had separated for about six months before they were married. They also opined that T.N. should be placed with petitioners because he had attached to them initially. As to why the Department had not returned the boy to petitioners' home, some witnesses surmised it was done because petitioners are a gay couple.
Sandra Miller, the former adoption supervisor who had overseen T.N.'s case, testified that a home study was done shortly after T.N. was placed with petitioners. The study raised long-term concerns that did not impact the child's immediate need for care. During the time the Department was waiting for the Oregon agency to clear the maternal grandparents for adoption, Miller became aware that petitioners would sometimes bicker over T.N.'s care in the presence of social workers. Miller herself observed belittling conduct and discord. She reported her concerns but there were no attempts to remove T.N. since she anticipated the home study for the grandmother's home would be approved soon and the minor would be moved to her home. Miller was also concerned because the home study showed petitioners' background included multiple marriages, as well as issues with substance abuse, separation, and mental health. She said petitioners had never been identified as a concurrent planning family because the maternal grandparents had stepped forward to adopt the child.
After the Oregon adoption fell through, Miller wanted to find a family that would be able to provide T.N. with a stable, nurturing home environment. Because he was exposed to drugs in utero and had a family history of mental illness, he would need a family that would understand the potential problems that could develop over time, such as learning disabilities and behavior issues. Petitioners were considered as a potential adoptive home; however, staff decided to see if a family could be found that did not have their concerning issues and would be able to serve T.N's long-term needs. Miller also stated that T.N. was able to adjust and make new attachments after he was removed from his maternal grandparents. She attributed his resilience to the care that petitioners had provided him.
In evaluating potential adoptive homes for T.N., the current prospective adoptive parents stood out to Miller because the couple had a long relationship, had made decisions together, and were able to work towards their goals together. They had dated for seven years and had been married for 11 years. The mother is a marriage family therapist who works with children with special needs. The father also knows about working with people who have mental illness. Miller believed the two parents would be able to address any needs T.N. might have in the future.
E.R.-D., who was 40 years old at the time of the hearing, testified that the Department never expressed concerns regarding the home study. Instead, petitioners were consistently told that they were providing T.N. with excellent care. Petitioners informed the Department multiple times that they had an interest in adopting T.N. She denied that she and H.R.-D. had ever had arguments about T.N.'s care, and testified that their relationship had been stable since 2012. Prior to their marriage, the couple had separated as a result of emotional trauma that E.R.-D. suffered in connection with a botched surgical procedure. She had one suicidal ideation after the surgery. She received corrective surgery in March 2016 and was no longer experiencing any physical health issues. Currently she was taking Wellbutrin and was under the care of a psychiatrist. She had been diagnosed with bipolar disorder and posttraumatic stress syndrome related to the surgery, but was in the process of getting those diagnoses removed. She had not used illicit drugs since 1995 and last smoked marijuana twice when she was 25. She drank alcohol about four to seven times a year.
E.R.-D. said that during the time he was with them, T.N. bonded with petitioners as his parents. He always ran to them when either one of them came home and looked to them for care and love. They constantly played with him, while making their house safe so that he could explore on his own. He was in day care for four, or at most six, hours per day, two to three days a week. At all other times he was with one or both of the petitioners.
Petitioners were told about the maternal grandmother soon after they began caring for T.N. They had concerns about T.N. being placed with her because they did not know much about her. E.R.-D. wanted to make sure that the placement would be best for the child. Except for possible placement with his grandmother, the Department never discussed placing T.N. with anyone other than petitioners. They learned the placement with the maternal grandmother failed only after they received a court notice. They were confused as to why T.N. was not returned to them. She did not think the mental health and substance abuse allegations that the Department raised were valid reasons not to place him in their care. She noted the Department mentioned that the current adoptive placement is with a heterosexual family that attends church, which led her to conclude that he was not returned to them because they are gay and do not go to church.
E.R.-D. admitted that she had been upset during a June 2017 meeting with Miller in which Miller had indicated that the adoption with the maternal grandmother was likely to go through. She denied that she and H.R.-D. had bickered about the child's care during that meeting. Petitioners are still licensed as foster caregivers and hope to adopt.
H.R.-D. testified that she became aware of the potential placement with the grandmother in January 2017. She had concerns because the child was attached to petitioners and the grandmother had not been visiting as often as had been planned. Petitioners decided not to contest placement with the grandmother because they did not want to keep him from his biological family.
Robin Moritz is a Department social worker in permanent planning. She worked on T.N.'s case. She testified that she visited T.N. about eight times when he lived with petitioners. She had no concerns about the care they were providing him. She did observe two occasions when petitioners got into a verbal altercation regarding his care. Both times H.R.-D. belittled E.R.-D. and told her she did not know what she was talking about. Moritz told Miller about these incidents. Moritz has observed T.N. in his current placement, and he is flourishing. The parents work as a team and are very supportive of each other. They communicate well regarding his needs and are very engaged with him.
Kim Costa is a program manager with the Department. She testified that in deciding whether to return T.N. to petitioners' care the Department considered the length of time he had lived with them. It also considered petitioners' relationship history, as well as E.R.-D.'s mental health issues, including her suicidal ideation. The fact that they were a gay couple was not a consideration. Costa said T.N. had a secure attachment with petitioners. However, he now has a secure attachment to his current family. The family has a history of stability, with no reported mental health issues or substance abuse issues. In considering adoptive placement, there are no regulations that would have required the Department to place T.N. with petitioners, even though they were his previous care providers. The goal in the adoption process was to ensure T.N. was placed in a permanent family setting that could promote secure attachment and provide him with a stable future.
On April 24, 2018, the Department filed a status review report. Reportedly, T.N. was thriving and adjusting well to his current prospective adoptive placement, and a secure parent-child relationship was developing. It was anticipated that the target for finalization of the adoption would be prior to September 28, 2018.
In their written closing arguments filed on May 21, 2018, petitioners argued the issue was whether the current placement was in T.N.'s best interest, not whether the Department abused its discretion in making the placement decision. They noted the Department was aware of any concerns regarding them very early after the initial placement, yet allowed T.N. to remain in their home for over a year after the completed home study. Additionally, many of the stated concerns had already been resolved following the successful surgical procedure that resolved E.R.D.'s physical and related mental health issues. They argued that his attachment to them for the first 13 months of his life indicated that it was in his best interests to be placed with them. They did not contest that the current family could provide him with "a full and satisfying life where he is loved and cared for"; however, they asserted they could provide the same. The difference was that he had bonded with them as his psychological parents during his time with them, a factor which, in their view, the Department had inappropriately discounted.
On June 11, 2018, the juvenile court ruled that it could not find that the current placement was not in T.N.'s best interest. The court evaluated the matter under an abuse of discretion standard. Petitioners subsequently filed a notice of appeal and a notice of intent to file a writ petition.
On August 9, 2018, we dismissed petitioners' appeal because the order at issue is not an appealable order.
DISCUSSION
Petitioners assert the juvenile court abused its discretion in failing to give proper weight to T.N.'s attachment to them. I. Standard of Review
Under section 388, a person having an interest in a dependent child may petition to modify a prior order "upon grounds of change of circumstance or new evidence." (§ 388, subd. (a)(1); see rule 5.570(a).) At a hearing on a section 388 petition seeking to change a child's placement, the moving party must show a change of circumstances or new evidence and that a change in placement is in the child's best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) We review the juvenile court's ruling on a section 388 petition for abuse of discretion. (In re Stephanie M., at p. 318.) II. The Juvenile Court Did Not Abuse Its Discretion by Denying the Section 388 Petition
A. De Facto Parent Status
We first note that de facto parents do not have the same substantive rights and preferences as parents or even legal guardians. (R.H. v. Superior Court (2012) 209 Cal.App.4th 364, 371; see In re B.G. (1974) 11 Cal.3d 679, 693, fn. 21.) De facto parents have no right to reunification services, visitation, custody, continued placement of the child (In re P.L. (2005) 134 Cal.App.4th 1357, 1361 (In re P.L.)), "or to any degree of independent control over the child's destiny whatsoever" (In re Kieshia E. (1993) 6 Cal.4th 68, 82 (dis. opn. of Kennard, J.)). De facto parent status "merely provides a way for the de facto parent to stay involved in the dependency process and provide information to the court." (In re Bryan D. (2011) 199 Cal.App.4th 127, 146.)
However, de facto parents do have significant procedural rights in dependency proceedings, including (1) the right to be present at hearings, (2) the right to be represented by retained counsel, and in the discretion of the court, appointed counsel, and (3) the right to present evidence and be heard. (In re P.L., supra, 134 Cal.App.4th at p. 1361; rule 5.534(a).) The extent of a de facto parent's right to present evidence depends on the relevant circumstances. (Cf. In re Matthew P. (1999) 71 Cal.App.4th 841, 851; In re Damion B. (2011) 202 Cal.App.4th 880, 889.) By exercising their procedural rights to appear, participate, and present evidence, de facto parents may " 'assert and protect their own interest in the companionship, care, custody and management of the child,' " and " 'ensure that all legitimate views, evidence, and interests are considered . . . .' " (In re Jonique W. (1994) 26 Cal.App.4th 685, 693.)
B. Post-termination Placement
After termination of parental rights, a juvenile court may only disturb a social services department's placement decision if that decision constitutes an abuse of discretion. Section 366.26, subdivision (j) provides that, once the juvenile court has terminated parental rights and referred a child for adoptive placement, the social services department "shall be responsible for the custody and supervision of the child and shall be entitled to the exclusive care and control of the child at all times until a petition for adoption . . . is granted." (Accord, Fam. Code, § 8704, subd. (a); Department of Social Services v. Superior Court (1997) 58 Cal.App.4th 721, 733 (Theodore D.).)
The Department's discretion, however, is not unfettered. The juvenile court retains jurisdiction over the child until he or she is adopted, and thus may review the Department's exercise of its discretion as to post-termination placement. (§ 366.3, subds. (a), (d), (e)(1); Fresno County Dept. of Children & Family Services v. Superior Court (2004) 122 Cal.App.4th 626, 649-650.) The court may not substitute its independent judgment for that of the Department. Instead, the court may only overturn the Department's decision as to the child's placement pending adoption if the Department has abused its discretion in making or maintaining the placement. (Los Angeles County Dept. of Children Etc. Services v. Superior Court (1998) 62 Cal.App.4th 1, 10.) "Absent a showing that [the Department's] placement decision is patently absurd or unquestionably not in the minor's best interests, the juvenile court may not interfere and disapprove of the minor's placement, thereby requiring that the minor be relocated to another home." (Theodore D., supra, 58 Cal.App.4th at p. 734.)
Here, the juvenile court did not exceed the bounds of reason by making an arbitrary, capricious, or patently absurd determination. (In re E.S. (2011) 196 Cal.App.4th 1329, 1335.) We have reviewed the court's detailed reasoning as reflected in the June 11, 2018 reporter's transcript. In concluding the Department did not abuse its discretion in placing T.N. with his prospective adoptive parents, the court noted that petitioners' home was an emergency placement and had never been deemed a concurrent adoptive home. As for T.N.'s adoptive placement, the court highlighted that the Department considered the stability of the family unit, the stability of the parents, and whether the parents could understand and address the child's needs. The court noted the "uncontradicted evidence" of the minor's secure attachment to the adoptive parents. The Department did consider that T.N. had lived with petitioners for 13 months and factored that into their "decision making."
Additionally, in concluding the Department had not abused its discretion, the juvenile court observed the Department had found certain negative factors relating to petitioners, including that this was H.R.-D.'s third marriage and that the parties had experienced a period of separation before their marriage. It also appeared the couple had some relationship issues, as evidenced by the bickering that was witnessed by social workers. Moreover, the Department was concerned about E.R.-D.'s history of substance abuse, and her history of physical and mental health problems. The Department acknowledged in the home study that some of these problems had already been mitigated and the juvenile court noted, additional mitigation was presented by petitioners at the hearing. However, even if all the mitigating information had been known, it still would not have chosen to place T.N. in their home. In contrast, T.N.'s prospective adoptive parents have relational stability, with no history of drug use or mental health issues. Both parents have training to address any future psychological or behavioral problems that T.N. may experience, and they have a strong extended family. The court concluded there was no evidence that the Department's decision was related to the fact that petitioners are gay. The court explained: "I cannot conclude on the basis of this evidence that the placement was motivated by some kind of bias, such as a bias towards someone's sexual orientation or someone's religious orientation or lack of religious orientation. . . . [I]f these were concerns, I question whether there would have been an initial placement or that there would be continued placement."
Petitioners ask in their writ petition that we reconsider the attachment T.N. may have developed while in their care and reevaluate the child's best interest, relying on In re Shirley K. (2006) 140 Cal.App.4th 65. As noted above, after the juvenile court has terminated parental rights and referred a child for adoptive placement, the court may not substitute its independent judgment for that of the agency, but is limited to determining whether the agency has abused its discretion in making or maintaining the placement. (Id. at p. 72.) In effect, petitioners are asking this court to reweigh the evidence and substitute our independent evaluation of it for that of the juvenile court. Whether our review is for substantial evidence, abuse of discretion or under a hybrid standard, it is not within our purview to reweigh the evidence. (In re I.J. (2013) 56 Cal.4th 766, 773; In re Shirley K., at p. 72.)
On November 26, 2018, petitioners filed a "Motion to Have New Evidence Considered on the Petition for Writ," requesting that this court receive as additional evidence documents filed in the Superior Court, County of Sonoma, relating to their current guardianship and pending adoption of T.N.'s infant sibling: (1) an adoption request form (ADOPT-200) filed on July 25, 2018; (2) an order appointing guardian filed August 15, 2018; and (3) letters of guardianship, also filed on August 15, 2018.
On December 4, 2018, respondent filed an opposition to petitioners' motion and a request for judicial notice. We decline to consider the request for judicial notice as it is not relevant to this writ.
Absent exceptional circumstances, appellate courts review " 'the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.' " (In re Zeth S. (2003) 31 Cal.4th 396, 405.) This rule applies in dependency proceedings. (Id. at pp. 405, 411-412.) To the extent the matters disclosed by petitioners' documents were not before the juvenile court when it made the order that is the subject of this writ proceeding, they are not pertinent to our review. Simply put, we are not in a position to evaluate the significance of petitioners' pending adoption of T.N.'s sibling. Nor do these facts fall within the recognized exceptional circumstance where all parties are in agreement and stipulate to this court accepting this new evidence. (Id. at p. 413, fn. 11.) Accordingly, we deny petitioners' motion.
C. Current Caregiver Preference Was Not Applicable
Petitioners contend the juvenile court refused to consider whether they qualified for the current caregiver preference under section 366.26, subdivision (k).
Section 366.26, subdivision (k) provides: "(1) Notwithstanding any other law, the application of any person who, as . . . foster parent, has cared for a dependent child for whom the court has approved a permanent plan for adoption, or who has been freed for adoption, shall be given preference with respect to that child over all other applications for adoptive placement if the agency making the placement determines that the child has substantial emotional ties to the . . . foster parent and removal from the ... foster parent would be seriously detrimental to the child's emotional well-being. [¶] (2) As used in this subdivision, 'preference' means that the application shall be processed and, if satisfactory, the family study shall be completed before the processing of the application of any other person for the adoptive placement of the child." (Italics added.)
Section 366.26, subdivision (k) merely gives preference in time for the processing of the current caregiver's application by the agency "but does not necessarily mandate that other applications will not also be considered." (In re Harry N. (2001) 93 Cal.App.4th 1378, 1397.) The subdivision also appears to contemplate that the child is being removed from the foster parents' home. Here, as the juvenile court noted, T.N. had already been removed from petitioners' home.
As of this writing, T.N. has been in the prospective adoptive home for over nine months. It seems very plausible that removing him from this home would be "seriously detrimental to [his] emotional well-being."
CONCLUSION
In sum, the juvenile court properly concluded that the Department did not act arbitrarily and capriciously when it chose to place T.N. in a stable, permanent home, with parents that the Department determined could best meet his potential long-terms needs, after reunification with the maternal grandparents had failed. (In re Shirley K., supra, 140 Cal.App.4th at p. 71.) In making this determination, the court considered the best interests of the child. While we agree with the juvenile court that the prospective adoption process could have been handled better, all the evidence suggests T.N. is thriving in his current prospective adoptive placement. Although it may be small consolation, we also concur with the juvenile court that petitioners are to be commended for having provided the child with such good care during his infancy.
DISPOSITION
The petition is denied.
/s/_________
Kelly, J. We concur: /s/_________
Humes, Acting P. J. /s/_________
Margulies, J.
Judge of the Superior Court, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.