Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. SWJ004514, Bradley O. Snell, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant S.G.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant H.G.
Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Valerie N. Lankford, under appointment by the Court of Appeal, for Minors.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
S.G. (father) and H.G. (mother) appeal from the juvenile court’s finding that minors A.G. (born in 1993) and N.G. (born in 1998) were adoptable under Welfare and Institutions Code section 366.26. Counsel for the Riverside County Department of Public Social Services (Department) and for minors have jointly stipulated that the juvenile court’s orders should be reversed because of changed circumstances. We will accept the stipulation.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
II. FACTS AND PROCEDURAL BACKGROUND
A.G. and N.G. (the children) came to the attention of the Department in April 2005, when N.G. suffered an asthma attack requiring hospital observation and mother could not be located. Mother was later arrested for being under the influence of a controlled substance. The children were placed with a paternal aunt and uncle. Mother had left the children with their maternal grandfather. A maternal aunt reported that mother was a drug user, the children were neglected, and their home was filthy. A.G. reported seeing mother with a glass pipe. She had not seen mother using drugs, but she knew mother was on drugs when she saw mother acting “weird.” A.G. also reported that father was incarcerated in Nevada, and there had been domestic violence between mother and father. Mother denied having a substance abuse problem or neglecting the children.
In May 2005, the Department filed a petition alleging that the children came within section 300, subdivisions (b) and (g). At the detention hearing, the juvenile court found that a prima facie showing had been made and ordered the children temporarily detained.
The Department filed a jurisdiction/disposition report in May 2005. The report stated that A.G. did not want to return to mother but did want to visit her. A.G. wanted to stay with the aunt and uncle but also reported that her cousins were not “adjusting well” to her being in their home. A.G. admitted having attempted suicide twice in the previous year and five or six times before that. She was placed on suicide watch and referred to counseling. A.G. reported her parents had exposed her to drug use and pornography, and she had witnessed mother having sex. N.G. also liked staying at her aunt’s house, but also wanted to visit mother. Mother admitted her house was “probably” dirty, but denied leaving the children unattended. She admitted past drug use but stated she was currently attending a substance abuse program and Narcotics Anonymous (NA) meetings. Father reported being released from jail earlier that month. He admitted use of marijuana and methamphetamine, but denied having a domestic violence problem.
At the jurisdiction/disposition hearing, the juvenile court found that the children came within section 300, subdivision (b), ordered them removed from parents’ custody, and ordered parents to participate in family reunification services.
The Department filed a status review report in September 2005. The children had been placed in a confidential foster home in July after the aunt and uncle had requested that the children be moved from their home because of the children’s behaviors and needs. Both A.G. and N.G. were healthy and were meeting developmental milestones. A.G. was going to counseling for multiple issues, and she continued to have suicidal ideation. A psychological evaluation showed that A.G. was suffering from major depressive disorder, and psychotropic medication was recommended. Both children were having trouble in school. N.G. was defiant and lied frequently; she was referred for counseling.
The report stated that mother had been evicted from her apartment, and she failed to maintain contact with the Department during much of the reunification period. She tested positive for methamphetamine in July and had dropped out of her substance abuse program. She had failed to complete counseling or a parenting program, and she had failed to visit or contact the children consistently. Father had moved back to Las Vegas, and he had failed to participate in a substance abuse program or drug testing. He had attended only one of six parenting classes. However, he had contacted the children regularly, and their visits had been positive and appropriate.
The juvenile court ordered an additional six months of reunification services, referred mother to family preservation court, and authorized an Interstate Compact on the Placement of Children (ICPC) evaluation of father’s home in Nevada.
The Department filed a status review report in March 2006. The children remained in the same foster home. A.G. had stated that N.G. had been touching her inappropriately, and the foster mother had caught the children acting out sexually. A.G. lied constantly and was manipulative. A.G. disclosed that one of mother’s boyfriends had raped A.G. five years earlier. Although her behavior showed some improvement, A.G. was still exhibiting depression, and she was failing three subjects despite 20 hours per week of tutoring. N.G. was attending counseling, and her behavior had improved.
The foster mother did not wish to provide the children with a permanent home. The Department had found one prospective home, but no placement occurred because N.G. was allergic to the family pet. Mother was in an inpatient substance abuse treatment program with an expected completion date of May 2006, and her drug tests had been negative. She was also participating in a parenting program and individual counseling. Her visits and contacts with the children had been infrequent but positive. Father still lived in Las Vegas and was in an outpatient substance abuse program. He was participating in drug testing and parenting education, and he kept in contact with the children though letters and telephone calls.
The Department filed a status review report in October 2006 recommending termination of services and setting a selection and implementation hearing. Although parents were complying with their programs, ICPC approval had not been obtained. The children had been placed in a new foster home in June 2006, and both continued counseling. They had difficulty adapting to their new placement, and the caregiver did not wish to adopt them or become their legal guardian because of their behavior problems.
Mother had not kept in contact with the Department, and her whereabouts were unknown for some time. The Department then learned mother was employed and had been living with a sister in Las Vegas. She had completed her substance abuse treatment and a parenting program and was participating in counseling, but she had not drug tested. Mother spoke the children weekly by telephone. Father was also employed and living in Las Vegas. He had completed a parenting program and substance abuse treatment, and his drug tests were negative. He was scheduled to undergo a hair follicle test to finalize ICPC approval. He had weekly telephone contacts with the children.
The Department submitted an addendum report in November 2006, stating that both parents had submitted negative hair follicle tests, but the ICPC evaluations of their homes had been denied because of lack of cooperation. Another addendum report stated that the ICPC had been resubmitted as to parents because they were living together, but no response had been received. Meanwhile, A.G. had had two failed foster placements. She was removed from one home because of her defiant behavior and from a second home after she tried to run away and acted out. The juvenile court authorized placement with parents upon ICPC approval.
In an April 2007 addendum report, the Department stated that the parents had not cooperated with the ICPC evaluation, and placement approval had been denied. The children had been reunited in a new foster home, but they continued to lie and exhibit defiant behavior. The foster parents did not wish to adopt them or become their legal guardians.
The juvenile court terminated parents’ reunification services and set the matter for a section 366.26 hearing.
In a report filed in August 2007, the Department recommended a continuance of 120 days to locate an adoptive home. A.G. had had nine placements and N.G. had had seven placements since their detention. The children were both in good health and developmentally on track, but A.G. had made only minimal progress in therapy to address her emotional issues, and N.G. also continued to attend therapy. Both girls stated they wanted to be adopted together, but no adoptive family had been located despite the Department’s efforts. The juvenile court granted the continuance.
In December 2007, the Department requested an additional 30-day continuance. A prospective adoptive home had been located, and the children were having visits with the prospective adoptive mother, who was “experienced with teen girls with behavioral challenges.” The juvenile court granted the continuance.
The Department reported in February 2008 that the children had been placed with the prospective adoptive mother in December 2007 and they were adjusting to the placement.
In April 2008, the Department filed an addendum report recommending termination of parental rights and a permanent plan of adoption. The children had adjusted well to their placement, and their behavioral problems had diminished. The children wished to be adopted. The Department also filed a positive adoption assessment. Mother’s whereabouts had been unknown, and she did not contact the children for a three-month period. In mid-March, she told the children she was pregnant and separated from father, who was incarcerated.
Parents did not appear at the section 366.26 hearing. The juvenile court found the children were adoptable, and no exception to adoption existed. The juvenile court terminated parental rights and selected a permanent plan of adoption.
After the section 366.26 hearing, however, the prospective adoptive mother requested that the children be removed from her home because she had been diagnosed with breast cancer and would be undergoing surgery. A.G. had previously been placed in a therapeutic group home to address behavioral problems. However, in September 2008, A.G. left the group home, and her whereabouts were unknown. A protective custody warrant was issued for her.
We take judicial notice of: (1) an addendum report the Department filed in August 2008, (2) an ex parte application and order the Department filed in September 2008; and (3) the protective custody warrant that issued in September 2008.
III. DISCUSSION
The Department, joined by counsel for the children, has requested a stipulated reversal on the ground that events occurring after the section 366.26 hearing caused the adoptive placement to fall through, and the finding of adoptability was based on the existence of a suitable adoptive home willing to take both girls.
In In re Elise K. (1982) 33 Cal.3d 138, 139, our Supreme Court reversed an order terminating parental rights based on the parties’ stipulation that events occurring after the order was entered undermined the juvenile court’s finding of adoptability. (See also In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 11 [reaffirming that “Elise K. . . . serves as precedent for the proposition that where postjudgment evidence stands to completely undermine the legal underpinnings of the juvenile court’s judgment under review, and all parties recognize as much and express a willingness to stipulate to reversal of the juvenile court’s judgment, an appellate court acts within its discretion in accepting such a stipulation and reversing the judgment”].)
Under Code of Civil Procedure section 128, subdivision (a)(8), we may reverse a judgment upon stipulation of the parties if we find both that “(A) There is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal[,]” and “(B) The reasons of the parties for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement.” (Code Civ. Proc., § 128, subd. (a)(8); see also In re Rashad H. (2000) 78 Cal.App.4th 376, 379-382 [applying Code Civ. Proc., § 128, subd. (a)(8) in a juvenile dependency case].)
We find that the stipulated reversal will not adversely affect the interests of any nonparty or the public. (Code Civ. Proc., § 128, subd. (a)(8)(A).) Although the court in In re Rashad H., supra, 78 Cal.App.4th 376, acknowledged that a stipulated reversal in a dependency case might potentially adversely affect the interests of prospective adoptive parents or delay an adoption (id. at p. 380), here, the prospective adoptive mother has requested that the children be removed from her home because of her serious health problems.
We further find that the stipulated reversal will not erode public trust. (Code Civ. Proc., § 128, subd. (a)(8)(B)) Rather, counsel for the Department and for minors have taken appropriate steps to expedite the resolution of the appeal and return the case to the juvenile court for consideration of the children’s future in light of the significantly changed circumstances.
Finally, we find that this case presents no risk of reducing the incentive for pretrial settlement (Code Civ. Proc., § 128, subd. (a)(8)(B)) because it involves only events that occurred after the section 366.26 hearing.
IV. DISPOSITION
The orders appealed from are reversed. The remittitur is to issue forthwith. (In re Rashad H., supra, 78 Cal.App.4th at p. 382.)
We concur: MCKINSTER, J., RICHLI, J.