Opinion
B192733
4-25-2007
In re L.B., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. L.J., Defendant and Appellant.
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant L.J. Aida Aslanian, under appointment by the Court of Appeal, for Appellant L.B. Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Judith A. Luby, Senior Deputy County Counsel, for Respondent.
NOT TO BE PUBLISHED
L.J. and her minor son, L.B., appeal from orders of the juvenile court (1) refusing to continue the selection and implementation hearing until a decision by the Department of Corrections and Rehabilitation on mothers application to participate with her son in the Community Prisoner Mother Program and (2) terminating mothers parental rights. For the reasons discussed below we hold the juvenile court committed prejudicial error when it used, and allowed the child welfare agency to use, threats and misinformation to bully L.B.s caretaker relative into agreeing to adopt L.B. instead of hearing and considering her reasons for preferring a legal guardianship. We reverse the order terminating parental rights and remand the matter for further proceedings consistent with the views expressed in this opinion.
FACTS AND PROCEEDINGS BELOW
L.J. was convicted of selling illicit drugs and sentenced to five years in prison. Her expected release date is August 2007.
Before entering prison L.J. placed her three year old son, L.B., in the care of his maternal grandfather. This proved to be a bad decision. The squalid condition of the grandfathers home and the accidental death of one of the children living there led the Department of Children and Family Services (DCFS) to remove the remaining children from the home.
DCFS filed a petition to declare L.B. a dependent child of the court under Welfare and Institutions Code section 300 alleging his mother was incarcerated and had made an inappropriate plan for his care and supervision. L.J. pled no contest to the allegations of the petition. At the disposition hearing the court declared L.B. a dependent child of the court, denied family reunification services because of the length of his mothers sentence and set the matter for selection and implementation hearing under Welfare and Institutions Code section 366.26. L.B. was placed in the home of his paternal great aunt, Rita B., a potential adoptive parent.
At the initial selection and implementation hearing in January 2006 L.J. advised the court she was interested in participating in the Community Prisoner Mother Program (CPMP). The court ordered DCFS to look into the possibility of L.B. being placed in the CPMP and to conduct an adoption home study with respect to Rita B. The matter was continued to a later date for reports on these issues.
Welfare and Institutions Code section 361.5, subdivision (e)(3) states: "Notwithstanding any other provision of law, if the incarcerated parent is a woman seeking to participate in the [CPMP] the court shall determine whether the parents participation in a program is in the childs best interest and whether it is suitable to meet the needs of the parent and child."
At a review hearing in March 2006 DCFS reported Rita B. had "wavered" in her decision to adopt L.B. and preferred to seek legal guardianship. She hoped L.J. would be released from prison soon and be able to regain custody of L.B. The report stated the adoptions social worker "explained to the aunt that if she chose legal guardianship that the Court would insist on L.B. being adopted due to his young age and that DCFS would seek an adoptive home for him." According to the report, "after careful thought the paternal aunt decided that adoption was the best alternative for [L.B.]" because she did not want the family to be split up. Nevertheless, Rita B. arrived at the review hearing still not convinced she should adopt L.B. as evidenced by this colloquy with the court:
Rita B. was not represented by counsel and there is no indication in the record she was advised of the statutory preference for relative caretaker adoption under Welfare and Institutions Code section 366.26, subdivision (k) or the living-with-a-relative exception to termination of parental rights under Welfare and Institutions Code section 366.26, subdivision (c)(1)(D). We discuss these statutes below.
"[Rita B.]: Would you consider me getting legal guardianship?
"The court: Not in the meantime.
"[Rita B.]: No?
"The court: The most permanent plan is adoption. If the age of the child is that the child is adoptable, I am mandated—I have to go for adoption. You may want something lesser, but the chances are that they will have to remove the child from you and find an adoptive home.
"[Rita B.] Okay.
"The court: If that child is adoptable [then] I have to go for the most permanent plan, and thats adoption.
"[Rita B.] Okay. . . . Because I just want the mother to have a chance to get her stuff together.
"The court: [G]iving them a chance, maam is not what this is all about. . . . As far as their chances go, thats well beyond that. I didnt make the law. I have to follow it."
A week before this hearing L.J. wrote to the court stating she was participating in prison programs designed to allow her to reunite with her son including parenting classes, N.A. and A.A. meetings, and anger management, sober living and aftercare programs. She asked the court to allow her and her son to participate in the CPMP.
The court ordered adoption as the permanent plan and continued the matter two weeks for DCFS to complete its home study.
At the next hearing the DCFS social worker testified the home study had not been completed but she hoped to have it in two weeks. Responding to a DCFS report Rita B. "has repeatedly informed [the department] that she would rather [have] legal guardianship of [L.B.]," the court again addressed this issue with Rita B. stating: "I went over this thing about the legal guardianship thing and what I am mandated to do. I have to proceed to the most permanent plan." Furthermore, the court explained, "Children need stability and I am mandated to push it. . . . Down the road things can happen and things can change. But right now we got to go with whats going on and very few of these people change their attitudes later on. Very few come back, and I have done thousands of cases."
In the social workers next report she informed the court "[Rita B.] has accepted adoption as a means to hold the family cultural ties and has followed through with all requirements in order to proceed with the adoption plan."
In May 2006 the court ordered DCFS to prepare a new report for the selection and implementation hearing and to include in that report "all possible permanent plans, including preferences of caretaker.
DCFS responded to this order with a report which stated, in relevant part: "[Rita B.] has strong feelings as to the mother/childs bond and relationship and if there was a possibility of [L.B.] being returned to mother . . . [Rita B.] would only seek guardianship of [L.B.] However, [Rita B.] also knows the importance of permanency and stability in a childs life and . . . is devoutly steadfast in her commitment to adopt L.B.] . . . If [L.J.] were not in prison [R.B.] would opt for legal guardianship. She would [not] make a choice for this option now, however, if this would mean that [L.B.] would be taken away from her and placed with someone outside the family . . . ."
In July 2006 the court conducted contested hearings on the plan to terminate L.J.s parental rights and on a motion by L.J., joined by counsel for L.B., for a continuance to enable L.J. to complete the application process for CPMP.
After denying the motion for a continuance the court proceeded with the selection and implementation hearing.
L.B.s social worker recommended parental rights be terminated and L.B. placed for adoption by his great aunt, Rita B. The worker stated she had discussed the situation with Rita B. who would prefer mother and child stay together if that was possible without jeopardizing the childs welfare. According to the worker Rita B., understood this is not possible and therefore wanted to adopt the child.
Counsel for L.B. asked Rita B.: "Is it your preference to adopt [L.B.] or is it your preference to become his legal guardian so he can remain having contact with his biological mother?" Counsel for DCFS objected to this question "on grounds of relevancy" arguing "this is a decision the court has to make based on the law." The court responded: "You are correct, but I am going to allow the answer." Rita B. answered: "My preference was to become the legal guardian until [L.J.] comes home and gets herself together to where she can take care of her own child." On cross-examination counsel for DCFS asked: "If the court were to terminate parental rights today, would you be willing to adopt this child?" Rita B. answered: "Yes, so he could stay in the family."
In a brief closing argument counsel for DCFS contended L.J.s parental rights should be terminated because "this minor is adoptable, and we have a preapproved adoptive home, and I think the court is mandated by the law to terminate parental rights."
L.B.s counsel stated on behalf of his client he opposed the termination of parental rights and believed legal guardianship would be a better plan for the boy. Counsel disputed the claim by DCFS the law "mandates" termination of parental rights if a child is adoptable. "The court can make exceptions," counsel observed. L.J.s counsel joined in this argument.
The court found "by clear and convincing evidence that it is likely that the child will be adopted [and] that it would be detrimental to the child to be returned to the parents and the parents rights are terminated." The court also stated: "Now, the issue of an exception—there is no exception in this case. Thats clear. I dont see any exception in this case . . . ."
L.B. and L.J. filed timely appeals from the orders terminating parental rights and denying the continuance for CPMP processing.
L.B.s father was represented in the proceedings but did not file an appeal.
Because we reverse the order terminating parental rights we need not address the denial of a continuance of the selection and implementation hearing.
DISCUSSION
At a selection and implementation hearing the court has three options. It can terminate parental rights and order the child placed for adoption. It can appoint a legal guardian for the child. Or, it can order the child placed in long term foster care. If the child is adoptable the court must terminate parental rights unless one or more of eight statutory exceptions applies. In this case we are concerned with the "caretaker relative exception" which allows the court to make a relative the legal guardian of a child living with a relative "who is unable or unwilling to adopt the child because of exceptional circumstances . . . but who is willing and capable of providing the child with a stable and permanent environment."
Section 326.26, subdivision (b).
Section 366.26, subdivision (c)(1), (2).
Section 366.26, subdivision (c)(1)(D).
The overwhelming evidence in this case shows Rita B. at all times was unwilling to adopt L.B. and only agreed to the adoption because she was deceived by DCFS and the court into believing if she persisted in her preference for a legal guardianship L.B. would be stripped from his family and adopted by strangers
In her initial report on a permanent plan for L.B. the DCFS social worker admitted she "explained to the aunt that if she chose legal guardianship that the Court would insist on L.B. being adopted due to his young age and that DCFS would seek an adoptive home for him." Rita B. clearly understood this advice by the social worker to mean DCFS would seek an adoptive home for L.B. outside his family. This understanding is shown by the fact that upon hearing the social workers explanation of what would occur if she insisted on legal guardianship Rita B. "decided that adoption was the best alternative for [L.B.]." Even after this "decision" the evidence further shows whenever Rita B. met with the social worker she continued to resist adoption of L.B. and, according to the social workers report, accepted it only because she believed insisting on a legal guardianship "would mean that [L.B.] would be taken away from her and placed with someone outside the family . . .." (Italics added.)
Whether intentionally or negligently the social worker misled Rita B. about the consequences of pursuing a legal guardianship of L.B. A caretaker relative may seek a permanent plan for the child other than adoption and not forfeit her statutory "relatives preference" for adoption under section 366.26, subdivision (k). This statute provides, "Notwithstanding any other law, the application of any person who, as a relative caretaker or 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 relative caretaker or foster parent and removal from the relative caretaker or foster parent would be seriously detrimental to the childs well-being." Thus, under this statute a relative caretaker who has cared for the child is assured if parental rights are terminated and the child placed for adoption her application will be considered before those submitted by strangers. The "relative preference" statute clearly would have applied in the present case because the social workers reports evidenced a strong bond between L.B., Rita B. and the other children she was raising, all of whom were related to L.B. The reports also stated L.B. was progressing well in his aunts home and was loved and nurtured there. Nevertheless, Rita B. was never told about the "relative preference." Instead, she was led to believe if she continued to express her desire for a legal guardianship L.B. would be removed from her home and adopted by strangers.
In re P.C. (2006) 137 Cal.App.4th 279, 289 (McDonald, J. concurring).
In re Lauren R. (2007) 148 Cal.App.4th 841, ____. (D.J. DAR (3/21/07) 3708.)
In addition to giving Rita B. wrong information about L.B.s adoption it appears the social worker never told Rita B. the law actually provides for legal guardianship as an alternative to adoption in the case of a caretaker relative "who is unable or unwilling to adopt the child because of exceptional circumstances . . . but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her relative . . . would be detrimental to the emotional well-being of the child." None of the social worker reports show Rita B. was advised of this "caretaker relative exception" to the general rule favoring adoption much less invited to discuss with the social worker or the juvenile court the reasons for her unwillingness to adopt L.B. We only know from the social workers reports Rita B. "has strong feelings as to the mother/childs bond and relationship" between L.J. and L.B. and hoped that upon her release from prison a year from the time of these proceedings L.J. would be able to regain custody of her son. To paraphrase one of our perceptive colleagues, "Are you willing to adopt L.B. to prevent someone outside the family from adopting him?" is the wrong question. The proper questions to have asked Rita B. were "What are your reasons for believing terminating L.J.s parental rights would be detrimental to L.B.?" and "Why are you unable or unwilling to adopt him yourself?"
Section 366.26, subdivision (c)(1)(D). As discussed above, the social workers own reports establish Rita B. was willing and capable of providing L.B. with a stable and permanent home and removing him from her custody for adoption by strangers would be detrimental to his emotional well-being.
See In re P.C., supra, 137 Cal.App.4th at page 290 (McDonald, J., concurring).
When its turn came, the juvenile court underscored the misinformation given by the social worker. In response to Rita B.s question whether the court would consider a legal guardianship the court stated: "I have to go for adoption. You may want something lesser, but the chances are that they will have to remove the child from you and find an adoptive home." (Italics added.) The court also kept the pressure on Rita B. to adopt L.B. telling her three times if the child is adoptable the law "mandates" adoption.
At the selection and implementation hearing Rita B. testified she was willing to adopt L.B. thereby allowing the court to find, as a matter of law, the "caretaker relative exception" did not apply. But because the evidence shows Rita B.s willingness was coerced, L.B. and L.J. are entitled to a new hearing on the permanent plan for L.B.
In a contested dependency hearing it is beyond dispute due process requires "that not only must there be actual fairness in the hearing but there must be the appearance of justice." This hearing lacked both fairness and an appearance of justice. A judgment based on the government-coerced testimony of a key witness must be reversed in order to protect the due process rights of the parent and child to a fair trial, and in particular, to ensure the reliability of the testimony on which the juvenile court judgment is based. Furthermore, the proceedings lacked an appearance of justice due to the courts continued references to its "mandate" to order L.B. adopted and its legally erroneous advice to Rita B. warning if she continued to pursue guardianship of L.B. "the chances are that they will have to remove the child from you and find an adoptive home." While the court may not owe a duty to fully inform the caretaker relative of the complex juvenile dependency law, it certainly owes her a duty not to misinform her of the law.
Gloria M. v. Superior Court (1971) 21 Cal.App.3d 525, 527.
See People v. Boyer (2006) 38 Cal.4th 412, 444.
It is also clear L.B. and L.J. were prejudiced by the courts failure to consider the applicability of the "caretaker relative exception" to the termination of parental rights because had it done so there is a reasonable probability the court would have found the exception applicable and not terminated L.J.s parental rights. Rita B. was plainly "unwilling" to adopt L.B. but willing and capable of providing him with a stable and permanent home. It is undisputed removing L.B. from the physical custody of Rita B. would have been detrimental to his emotional well-being. And, it is reasonably probable an unbiased judicial officer would have found Rita B.s unwillingness to adopt L.B. stemmed from "exceptional circumstances." Exceptional circumstances need not be extraordinary circumstances. A circumstance is exceptional if it is uncommon or out of the ordinary. A reasonable judicial officer could find Rita B.s desire to take legal responsibility for her great nephew when she was already raising three children, and her commitment to giving L.J. the opportunity to reestablish her life with L.B. coupled with the fact L.J. would be released from prison in about a year were exceptional circumstances justifying legal guardianship as an alternative to adoption.
See discussion at page 9, above.
Wesbsters New International Dictionary (2002) at page 791, column 3.
Because the circumstances surrounding dependency cases often change between the time of the juvenile courts order and the appellate courts opinion we will not direct the juvenile court to order legal guardianship for L.B. Instead, we will remand the matter to the juvenile court for further proceedings consistent with the views expressed in this opinion. Upon remand, however, the juvenile court is to assign the case to a different judicial officer.
DISPOSITION
The order terminating L.J.s parental rights and identifying adoption as the permanent plan is reversed and the matter remanded for further proceedings consistent with the views expressed in this opinion. The juvenile court is directed to assign this case to a different judicial officer.
We concur:
WOODS, J.
ZELON, J.