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N.B. v. Superior Court of Contra Costa Cnty.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Feb 20, 2018
A152641 (Cal. Ct. App. Feb. 20, 2018)

Opinion

A152641

02-20-2018

N.B., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. Nos. J13-01186, J13-01187, J13-01188, J13-01189)

INTRODUCTION

Petitioner N.B., the former foster mother, prospective adoptive parent, and de facto parent of four siblings, petitions this court for extraordinary writ relief from orders of the superior court removing the minors from her home and placing them with N.B.'s former partner, K.P. (Welf. & Inst. Code, §§ 366.28, 366.26, subd. (n); Cal. Rules of Court, rule 8.456.) She asks for immediate return of the children. N.B. also requests a stay of all further proceedings. We issued an order to show cause on November 22, 2017. N.B. accuses the Contra Costa County Children and Family Services Bureau (CFS or Bureau) of acting in bad faith, alleges denial of due process from the failure to provide timely notice of removal and protracted court delays, and argues substantial evidence does not support the court's determination that removal from N.B. is in the children's best interests. After careful consideration of the record and the parties' contentions, we deny N.B.'s petition and request for stay.

Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.

COMBINED STATEMENT OF CASE AND FACTS

We set forth only those facts deemed relevant to the issues raised in the petition.

Minors E.J. (born 2008), W.D.1 and W.D.2 (twins born 2011), and W.D.3 (born 2013) were detained from their parents in October 2013 following sustained allegations of physical abuse and domestic violence. (§ 300, subds. (b), (j).) The parents failed to reunify, and in 2015 their parental rights were terminated.

The minors were placed in a foster home with N.B. and K.P from October 2013 to 2016, save for a brief return to the natural parents in April 2015. N.B. and K.P., a same sex couple, had been together for over five years and had previously fostered six children together. Initially, the minors were placed with N.B. as the sole foster parent. K.P. joined the foster care license in October 2015. The social worker admitted that through an oversight, a new foster parent agreement was never signed adding K.P. The couple had intended to sign adoptive placement together after completing an adoptive home study.

In October 2015, the court ordered a permanent plan of adoption for the minors. As of March 18, 2016, the Bureau was waiting for the remittitur to issue in mother's appeal before finalizing the adoption. By September 2, 2016, the remittitur had issued, but due to stressors, including adjustment to a new family home, job changes, relationship struggles, and increased acting out behavior by the children, N.B. and K.P. requested a slow-down in the adoption process. However, "[t]he couple's desire to adopt the children . . . never wavered." CFS recommended the court continue the permanent plan of adoption and set a further review hearing in six months.

In late October 2016, N.B. and K.P. separated. K.P. notified CFS about the separation on October 17, 2106. After consultation with the couple, her adoptions supervisor, the children's various services providers and their attorney, CFS social worker Jennifer Lund determined it was in the best interest of the children to maintain them with their primary caregiver, K.P. On October 18, 2016, N.B. and K.P. were told the Bureau supported K.P. keeping custody of the children because she was considered the "primary caregiver." N.B. was not happy to be told the primary bond was with K.P. and maintained the children were being taken from her without reason. Nevertheless, N.B., an experienced real estate broker, rented a house for K.P. and the children to live in. N.B. agreed the twins should remain with K.P. as they were strongly bonded with her. But she wanted E.J. and W.D.3 to stay with her. However, consensus among the children's therapists was that the sibling group should not be separated. The children moved to the new home with K.P. on November 30, 2016.

On December 6, 2016, K.P. filed a request to be appointed the minors' de facto parent (JV-295). The request was granted on December 8, 2016.

On December 15, 2016, N.B. filed a request to be appointed the minors' de facto parent. N.B. also filed an "Objection to Removal" (JV-325), in which she stated she met the definition of a prospective adoptive parent and would be filing a request for prospective adoptive parent (PAP) designation and a hearing. She averred the social worker should not remove the children from her home because she was the foster parent placement for the four children, three of whom had lived with her for approximately three years. She stated she and her partner had recently split up and "the [Bureau] allowed the children to leave the home and live with my former partner. I have objected to this arrangement . . . . I have asked for a grievance and was never told by the [Bureau] that I was entitled to a hearing on this issue. I was served with no removal papers and I have not been 'heard' as to the issues with the removal . . . . The removal was without adequate grounds or cause and the minimal visitation plan the County has developed with me and the children is wholly inadequate/inappropriate and not in the children's best interest." She also filed a request for prospective adoptive parent designation (JV-321), indicating she had applied for an adoptive home study, cooperated with an adoptive home study, requested de facto parent status, and had taken other steps to adopt the children.

With the parties' agreement, the court ordered mediation of the visitation and placement issues, which was scheduled for December 27, 2016.

In January 2017, the social worker reported to the court that "[a] number of options were explored prior to the move of the children." N.B. lobbied for E.J. and W.D.3 to remain in her care, while acknowledging that the twins were "extremely bonded" to K.P. N.B. also suggested the children remain in her home while K.P. picked them up for school in the morning and dropped them off in the evenings. However, the team, consisting of the Bureau, the children's attorney, and all treating professionals, was opposed to separating the children. They did not see the pick-up/drop-off option as realistic, inasmuch as K.P. "has done nearly every night of bedtime routines for the children since their placement." CFS offered N.B. visitation of one full weekend day and a weekday evening with the children for the month of December. The treatment team did not support overnight visits. The social worker also reported that "[t]he children have struggled with all the changes." The twins, in particular, had become completely dysregulated and were showing signs of extreme anxiety towards visits with N.B. E.J. expressed the belief he would be going to live with N.B. soon, and W.D.1, the parentified child, was concerned about N.B. crying a lot when the children were gone from her. The consensus of the treatment team was that the primary caregiver should be K.P. and there should be visits with N.B. However, the team did not believe it should force visits on the children if they did not want to visit. CFS stated its intent to use the upcoming reporting period "to determine what is in the best interests of the children with regards to their permanent plan and/or ongoing contact with the non-primary parent, [N.B.]. Any changes to the living situation[] and primary parent would be detrimental to these children. The Bureau will continue to have on-going conversations with the numerous service providers working with this family to make a thorough and complete assessment."

On January 6, 2017, the parties reported that mediation had been unsuccessful. The court set N.B.'s request for de facto parent status for hearing on March 10, 2017, and designated K.P. the minors' de facto parent. The hearing on N.B.'s objection to the removal of the children from her home was continued from February 22 to March 8, 2017.

On January 25, 2017, N.B. filed a petition for writ of mandate to compel the superior court to set an immediate hearing on the children's removal pursuant to section 366.26, subdivision (n). (N.B. v. Superior Court, A150356.) The petition was denied February 15, 2017.

We grant petitioner's request for judicial notice of county counsel's opposition to the writ petition, filed February 3, 2017 in N.B. v. Superior Court, supra, A150356, on grounds of mootness and ripeness, given that hearings on petitioner's objection to removal and other requests were set, by agreement, for February 22, March 8, and March 10, 2017, and that the children were removed from the home by petitioner, not CFS. (Evid. Code, §§ 459, 452.) --------

In advance of the February 22, 2017 hearing on N.B.'s objection to removal, de facto parent status, and prospective adoptive parent recognition, Lund prepared a report stating the Bureau's position that it had not removed the children. Rather, with significant input from the minors' attorney and team of therapists, CFS allowed all the children to remain in the care of K.P., one of their two foster parents. The Bureau officially denied N.B.'s request to separate the children on November 16, 2016. The Bureau was not in favor of granting N.B. either de facto parent or PAP designation, because she was not the current caretaker of the children. Lund opined that if N.B. had requested PAP designation after the section 366.26 hearing when parental rights were terminated, she would have qualified as a PAP along with K.P. However, the Bureau would be requesting removal of PAP status from N.B. at this point in time, if it had been granted in the past.

Lund stated she had been working with the family since July 2015. In her view, N.B. "had more of an absentee parent role in the children's lives." According to Lund, N.B. admitted she had "chosen to focus on growing her business, which has meant significant hours working. This has also meant that her role in the day to day life of the children was minimal. [K.P.] has always been the contact person and primary parent for the children." Lund recommended denial of N.B.'s motions.

Lund testified at hearings on February 22, March 10 and March 20, 2017. On March 20, 2017, the court granted N.B. de facto parent status. The court also set a contested hearing on PAP status for May 8, 2017.

On May 5, 2017, N.B. filed a second JV-321 request for PAP designation and objection to removal. On May 8, 2017, CFS filed a notice of intent to remove a child (JV-323). As Lund would later explain in a court memo, "This was not a concession to our prior stance that the children were [not] removed from [N.B.] on Novem[b]er 30, 2017 [sic]. It was filed with the intention of advising the Court and all parties that the Bureau has made a placement decision regarding the children and the agency is ready to proceed with permanent planning." CFS proposed reducing visitation with the intention of stopping all visits and reassigning educational rights solely to K.P. "The Bureau strongly believes that both of these requested changes are in the best interests of the children," as the couple had no intention of reconciling, were not amicable towards each other, and were unable to communicate effectively. Their discord had a negative effect on the children, who continued to struggle emotionally with all the changes. W.D.2 had aggression and sleep issues. The two girls had separation anxiety about leaving K.P. E.J. found the dynamic between N.B. and K.P. stressful and anxiety-producing.

On May 31, 2017, the court recognized N.B. as a PAP and found that she "qualified for it when the children started to live in [K.P.'s] home." A further contested hearing on whether the move was in the children's best interest was set for June 12, 2017.

Lund testified on June 12, 14, 15 and 26, 2017. Melissa Cassem (in-home behavioral support person for W.D.2 and W.D.1) and Christopher Fenaroli (E.J.'s therapist) testified on August 28, 2017. Candice Arrow (W.D.3's and W.D.2's therapist) testified on August 30, 2017. Candice Arrow, Shelly Kwak (W.D.1's therapist), and Lund testified on August 31, 2017.

On October 4, 2017, the court heard argument and ruled a removal occurred on November 30, 2016. The court found the removal of the children from N.B. and placement with K.P. was in the children's best interest.

Summary of Testimony Taken at Removal Hearing

Lund testified at length about the events leading up to the move. Lund was informed on October 17, 2016, that K.P. and N.B. intended to break up. In late November 2016, after K.P. and N.B. broke up, the Bureau had to make a decision about with whom the children would live. This was a unique situation, in that the Bureau had placed these children with both women in a licensed foster home. The couple were not married, nor was either partner an adoptive parent of the children. Lund consulted other members of the Bureau, her supervisor, Holliedayle Hertweck, and others who had been through this type of situation, about what to do.

On November 8, 2016, N.B. suggested splitting up the children, with the twins going to live with K.P. and E.J. and W.D.3 remaining with her. N.B. was very clear the twins needed to be with K.P. because they were much more connected to her emotionally. Lund then spoke with each therapist and behavioral support person about the proposal. On November 14, 2016, she spoke with Arrow, the therapist for W.D.2 (one of the twins) and W.D.3 (the youngest child). Arrow felt it was extremely important for both of them to stay with K.P., who "represented the center of their universe"; they had totally embraced her as mommy. Arrow believed it would be detrimental to separate them from K.P.

Arrow also felt overnights with N.B. were not appropriate at that time because the children needed the safety and stability of K.P.'s home, which was an environment they trusted. Arrow viewed K.P. as the children's primary caretaker and expressed it was "a battle" to get N.B. to participate in their therapy sessions. N.B. also reacted negatively to ideas that were presented in therapy, especially with regard to bedtime routines, and had stated in conversations with Arrow that the children were manipulative or coddled. Arrow was concerned that N.B. did not understand the effects of trauma on children, even after it had been explained to her several times that the sleeping issues were recurring ones. Arrow also felt that N.B.'s behavior—yelling and screaming at the children, and imposing overly severe consequences on them, especially W.D.2—was vindictive and triggered the children. Conversely, Arrow felt that K.P. was very thoughtful with the children and tried very hard to meet their needs.

Lund also spoke with Fenaroli, E.J.'s therapist, on November 14, 2016. Although he recognized that E.J. had a relationship with N.B., Fenaroli viewed E.J. as more connected to K.P. Fenaroli also complained that N.B. was not involved in E.J.'s therapeutic process, aside from two sessions she attended when K.P. was away, and N.B. tried to dictate the content of those two sessions.

Lund spoke with Cassem on November 15, 2016. Cassem is the intensive home behavioral specialist who worked with W.D.2 and met with all the children every week. Cassem was of the opinion that the children should not be split up and that most of her work in the past several months had been spent repairing the relationship between the children and forging more of a bond between them. W.D.2 had begun to show a lot of empathy for his siblings and she feared splitting up the sibling group would destroy all the work and progress they had made. She was also concerned that N.B. would not be able to keep to W.D.2's therapy schedule consistently, based on N.B.'s past history of minimal involvement. Cassem also opposed overnight visits with N.B. because she was concerned that all the progress that had been made with K.P. to create consistent sleeping routines would be undone.

On November 16, 2016, Lund spoke with Kwak, W.D.1's therapist. Kwak felt that for W.D.1 to spend more time with N.B. and less time with K.P. there would need to be more support in both homes and more similarity in parenting styles. Kwak could not say if N.B. could provide for those things because she had not participated in W.D.1's therapy. Kwak feared that a dual-custody situation would adversely affect W.D.1's emotional "safe space," and that W.D.1 was already showing signs of losing her coping skills, being less happy, and having more tantrums. Lund also spoke with minors' counsel, who did not want the children to be separated.

After speaking with Kwak on November 16, 2016, Lund and Hertweck met with K.P. and N.B. At the time, K.P. and N.B. were still residing in the same home. Lund explained she had checked with all the children's service providers and the consensus was that all the children should stay with K.P. N.B. reacted angrily, storming out of the meeting at one point and accusing Lund of taking her children away from her. N.B. eventually returned to the meeting to discuss the offer of visitation. As a result, N.B. proposed dates and times during the month of December. Lund modified some dates and times, and also solicited the therapists' advice about a one-week-on, one-week-off custody schedule, and overnights. None of the therapists thought overnights would be appropriate at that point; nor do they think overnights are appropriate now. It is still all of the therapists' opinions that the children should not be separated, and should remain in K.P.'s home.

On November 30, 2016, K.P. and the children moved from N.B.'s home into a separate rental unit. The lease was arranged by N.B., who works as a realtor. The residence was approved by the Bureau as a licensed foster home. At that point, K.P. was a licensed foster parent. The children continued to live with K.P. at that residence up to the time of trial. K.P. has consistently been involved in the children's therapy sessions and has consistently kept the Bureau and the therapists abreast of the children's behavior with detailed written updates. N.B. has not consistently kept the Bureau updated on her visits with the children. The Bureau and the children's therapists continue to believe that the children should remain with K.P.

Lund spoke to Fenaroli again on April 12, 2017. E.J. was present during a conversation between Fenaroli and N.B. in which she spoke to Fenaroli in a verbally aggressive manner. E.J. hid under a table. Fenaroli told Lund he was concerned "about the level of control [N.B.] needed to have . . . and that he would have to find a way to manage it if he were to include her in sessions with [E.J.]." Fenaroli expressed to Lund that generally E.J. felt positively about N.B., and was less anxious and more comfortable with her by April 2017. E.J. had been more guarded in speaking to Lund about N.B.

Lund had contact with Cassem, Arrow, and Kwak on May 5, 2017. Cassem reported that K.P. was insightful and able to reflect on and correct her parenting mistakes. Arrow expressed concerns that W.D.3 and W.D.2 had been unable to concentrate on working out the previous trauma with their biological mother since the turmoil caused by the foster parents' breakup. She continued to state strongly that the children were very connected to K.P., their primary attachment figure. And Arrow reported that W.D.2 did not include N.B. in his therapeutic play sessions.

On January 27, 2017, Lund asked E.J. if he felt the time he spent at N.B.'s house was too much time, just right, or not enough. He responded it was just right. Later in that conversation, Lund asked him if there was anything he would change if he could. E.J. told Lund he would like her to tell the judge he wanted to spend alternate weeks with N.B. and K.P., and that N.B. wanted the judge to know that, too. Lund was concerned E.J. was being coached by N.B. Since then, E.J. has told Lund he would like to remain with K.P. He has also told K.P. that he thought he was already adopted by her.

W.D.1 has consistently expressed the desire to stay with K.P. and on April 14, 2017, Cassem informed Lund that W.D.1 had informed her that she did not want to go on visits anymore. W.D.1 had telephoned Lund to say, "I don't want to go with [N.B.]" and "I want to stay with mama [K.P.]." Of all the children, W.D.1 is the one who has struggled most with all the changes.

W.D.2 has not been able to state his preference. He tends to run out of the room or act up when hard problems are brought up. Cassem reported that since resuming visits with N.B., W.D.2 had regressed to more babyish sleeping routines and his aggression had increased.

Cassem also reported to Lund that on January 27, 2017, she had met with Head Start staff, K.P., and N.B. to develop a plan for dealing with W.D.1's increased aggression at school. At that time, the director and site supervisor advised Cassem that they had been working with W.D.1 for two years and had met N.B. for the first time in July 2016 when K.P. was away for two weeks. Arrow, Kwak, and Cassem also reported that N.B. had not participated in the children's therapy until after the separation.

Lund believed N.B. was not being forthright about the children's negative behaviors in her house. While N.B. reported no negative behaviors occurred when they were with her, the children reported to Lund and to K.P. that they engaged in the same aggressive behaviors—spitting, touching somebody's butt, hitting, pushing—that have always been an issue. The children also reported to Lund and to K.P. that W.D.2 was not getting consequences for the negative behaviors he engaged in at N.B.'s house.

Melissa Cassem testified she had been providing services to W.D.2 since February 2016 and to W.D.1 since January 2017. She is not a licensed therapist. Her role is to teach the caregivers strategies to help address the children's trauma and behaviors that are impacted by their trauma. She works with the primary caregiver who has the children more than 50 percent of the time when there is a split. It was made clear to her by K.P. and N.B. from the inception of services that K.P. was the primary caregiver for the children and was the one who would be engaged in services. N.B. told Cassem she would participate in meetings but would not be the one engaged in the behavioral support services in the home due to her work schedule. Since all of Cassem's work had been focused on implementing strategies to help the children form a secure attachment with K.P., after the split she continued to provide services only in K.P.'s home.

At meetings attended by both caregivers, the social workers, and Cassem prior to the separation, N.B. and K.P. often disagreed about some of the strategies used, and the meetings focused on getting both caregivers to "compromise about how they were going to utilize these strategies." The main disagreement was about W.D.2's lengthy bedtime routine. W.D.2 had fears about abandonment, going to bed, and being in the room by himself. Cassem and the other children's therapists encouraged K.P. to stay close to him at bedtime to provide reassurance that she would be there all through the night and in the morning when he woke up. N.B. did not want the bedtime routine to interfere with her personal time with K.P. and said she felt that at some point enough was enough and he should just be able to go to sleep on his own and not need K.P.

At one point, N.B. told W.D.2, "[Y]ou are not getting mommy anymore, there is no more mommy," which scared and upset W.D.2. During K.P.'s two-week absence, N.B. reported to Cassem that she was using various calming tools and bedtime strategies with success, but Cassem did not see them in use. She was at the house only one hour per week during that time, but the children seemed pretty regulated. N.B. reported that W.D.2 went to bed earlier. W.D.2 reported it was because he was afraid.

Cassem never made a recommendation to the Bureau that the children should go with K.P. She was informed of the decision that the children would go with K.P. She had concerns about overnight visits with N.B. because of the conflict over W.D.2's bedtime routines. When she drew up a visitation schedule and presented it to W.D.2, he tried to destroy the calendar and said he was scared and did not want to go.

W.D.1 had also expressed to Cassem on several occasions that she did not want to go on visits to N.B.'s house and she asked Cassem to inform Lund for her. Cassem encouraged W.D.1 to call Lund herself. Cassem believed it was important to acknowledge W.D.1's feelings in this regard. Since her revelation, she had been suffering from somatic symptoms such as stomachaches and headaches. She also was shutting down her feelings and saying, "I already told you what I wanted. Why doesn't anyone listen to me?"

The impact of splitting up the children was discussed at a team meeting, "and it was agreed by all parties that that would be detrimental and would not be in the best interests of the children." Cassem's work with the children included repairing the sibling relationships and helping W.D.2 develop empathy for his siblings. In her view, a split would be "absolutely" counterproductive.

Christopher Fenaroli has been E.J.'s individual therapist since January 2016. He meets with E.J. weekly. E.J. gets support from both K.P. and N.B. and seems fine with the way things are now. He has not asked for more time with N.B. E.J. enjoys spending time with N.B., but turns to K.P. emotionally most of the time. Fenaroli confirmed the incident when N.B. asked to participate in therapy sessions and E.J. hid under the table. At that time Fenaroli invited her to contact him if there was a conflict or if something came up she was uncomfortable with, but she has not contacted him. Fenaroli had not been told K.P. would be the adoptive parent. He was never involved in any discussion about splitting up the siblings. From Fenaroli's therapeutic sessions with E.J., it appears E.J. is close to and cares for his siblings. "They are a family."

Candice Arrow began providing therapy to W.D.3 in January of 2016 and to W.D.2 in August of 2016. She had one therapy session with W.D.3 and N.B. together at school during K.P.'s absence in July 2016. N.B. was "appropriate, kind, involved, engaged." She had never seen N.B. with any of the other children. Lund asked her opinion about what the children needed in a caretaker and whether she had any concerns. Arrow responded that the children needed stability, predictability, consistency, and a caregiver who was reflective and trauma informed. She observed those qualities in K.P. She had concerns about whether N.B. was trauma informed, based on N.B.'s resistance during meetings to some of the behavioral interventions the therapists had suggested, especially with regard to W.D.2. She did not think those strategies or tools were implemented by N.B. Arrow questioned whether it was clinically appropriate to begin incorporating N.B. in the children's therapy around the time of the break-up because there was so much uncertainty about who would be the children's caretaker. It was clinically appropriate to include K.P. in therapy because that was a continuation of what they had already been doing.

At a team meeting after July 2016, either Cassem or K.P. told her that during K.P.'s absence W.D.2's bedtime routine had not been followed. Also, N.B. acknowledged at the school meeting that during those two weeks W.D.3 had trouble separating and going to school. W.D.3 came into that meeting crying.

Arrow confirmed she did tell Lund that K.P. appeared to be the center of the children's universe. With respect to overnight visits with N.B., Arrow believed she probably said that overnight visits to Santa Claus would be difficult for these children. On examination by the court, Arrow confirmed all of the statements that Lund attributed to Arrow during her testimony. Arrow did not question that both K.P. and N.B. loved these children. She believed it was in the children's best interests and imperative that they remain together.

Arrow opined that W.D.3 and W.D.2 were having a difficult time with the changes in their living situation during the past nine months, and she did not believe increasing visits with N.B. would improve their behavior.

Shelly Kwak started therapy with W.D.1 in August 2016. She has weekly parent-child therapy visits with W.D.1 and K.P. and weekly collateral meetings with K.P. All of the therapy sessions involve K.P. and W.D.1 together. It was established from the beginning that all appointments were going to be with K.P. Kwak mainly sees W.D.1 at school but will see her at her home if school closes early. N.B. completed a one-on-one, eight-part Circle of Security program facilitated by Kwak that started the first week in January. The purpose of the program is to help increase a caretaker's understanding of a traumatized child's emotional and behavioral needs. N.B. came to every appointment and was engaged in the process, open, and genuine.

In the past year, W.D.1 has made progress in treatment but has also regressed. For a four- or five-week period in March and April, W.D.1 became withdrawn and her tantrums increased. Kwak believed that more reports of dysregulation had been made since visitation started around the end of 2106. However, she did not attribute W.D.1's regression to living with K.P. and her siblings. Kwak had observed that W.D.1 was comfortable and attached to her siblings and was attuned to K.P.'s feelings. Kwak was concerned that, in general, W.D.1 took on a caretaking role for both K.P. and N.B.

When asked by Lund in the Fall of 2016 if splitting up the children would be appropriate, Kwak said that it probably would not be in the children's best interest to do so. She also opined that overnights between W.D.1 and N.B. would not be appropriate at that time. She felt more parent-child support services needed to be in place before that happened, although Kwak was unable to identify any specific service, other than Circle of Security. Kwak believed she told Lund that the best placement for W.D.1 would be one that was stable and consistent and could provide her with a nurturing environment and safety. She also told Lund that W.D.1 tended to present as happy but was actually "stuffing" or holding in her negative feelings and emotions.

N.B. testified she never received from the Bureau a notice of intent to remove the children, or a seven-day notice prior to the removal of foster children, and never agreed to any removal. However, Hertweck told her the meeting of November 8, 2016 was her notice. She wanted a shared coparenting arrangement with the children staying at her house and K.P. moving out. She never agreed to the children moving out with K.P. on November 30, 2016. However, from November 8, 2016 onward, the Bureau was determined that the children should move and that K.P. should be the sole adoptive parent. N.B. repeatedly asked to be included in therapy sessions but had never been included.

N.B. recalled that her relationship with K.P. began to fray in April or May 2016 and that the main area of disagreement was about their different styles of taking care of the children. "[W]e kept butting heads." They were engaged in couples' therapy during the summer of 2016 when they were also doing the adoption home study, but N.B. did not inform the Bureau about their relationship problems at that time. Also in 2016, K.P. and N.B. agreed that K.P. would quit her job to pursue certification as life coach. At that point, N.B. would take on all the household bills as well as K.P.'s personal bills. N.B. was the sole support for herself, K.P., the four foster children, K.P.'s biological child, and N.B.'s mother. From June to October 2016, N.B. was working more than usual to make ends meet, but the agreement was that she and K.P. would switch roles in October 2016 so K.P. could work and N.B. would take the children to therapy and do other household chores. However, even when N.B. was working, she and K.P. divided the family responsibilities between them. When K.P. was gone for two weeks in July 2016, N.B. became the children's sole provider. She kept all appointments and maintained the children's routines, especially W.D.2's nighttime rituals. N.B. denied she used fear tactics to gain the children's compliance with nighttime routines.

After the break-up, K.P. was having trouble finding a rental and asked N.B. if she knew of anything that might be available. As it happened, N.B. had a client who was about to turn his house into a rental, and N.B. put them in touch with each other. N.B. drew up the lease and represented the landlord in the transaction. She did not pay the deposit. Her assistance did not mean she wanted the children to move out. She wanted them to stay with her in her house because she understood they did not do well with change and were retraumatized by it. N.B. communicated this to Lund, Hertweck, K.P., and the therapists. She did everything she could to communicate her objection to the children moving out, but under the foster care licensing agreement she signed, she had to do what the Bureau told her to do. N.B. agreed that the Bureau was in control of placement changes, but she also had the right to object to the placement change. She was never given the choice of having the children stay with her.

N.B. admitted she believed it was appropriate for K.P. to have the twins live with her, because they were more bonded to her, leaving E.J. and W.D.3 to live with N.B. That proposal, as well as other co-adoption options, were discussed at meetings in November with her, K.P., Lund, and Hertweck. N.B. also proposed that all the children continue to live with her, while she and K.P. shared the drop-off and pick-up duties, and K.P. would "come over for Saturdays, come over for popcorn and movie night. . . . [J]ust not have [K.P.] live at the house at that point in time."

Despite her earlier proposal to split up the children between the two households, N.B. now "totally agree[d]" the children should be kept together.

DISCUSSION

The Statutory Framework

Section 366.26, subdivision (n) was added to the dependency statutes in 2005, and became effective on January 1, 2006. (Stats. 2005, § 1, ch. 626, p. 4666.) "In enacting section 366.26, subdivision (n), the Legislature intended to 'limit the removal of a dependent child from his or her caretaker's home after parental rights are terminated, if the caretaker is a designated or qualified as a prospective adoptive parent, as defined, in order to "protect the stability and best interests of vulnerable children." ' [Citation.] The legislation was designed to correct the ' "nearly complete, unchecked authority" ' appellate courts had given to a child welfare agency to decide a dependent child's adoptive placement after termination of parental rights." (T.W. v. Superior Court (2012) 203 Cal.App.4th 30, 44 (T.W.); see State Dept. of Social Services v. Superior Court (2008) 162 Cal.App.4th 273, 284 (State Department).)

Section 366.26, subdivision (n) "provides for a hearing to review an agency's decision to remove a child from the home of a [PAP]." (State Department, supra, 162 Cal.App.4th at p. 284.) A PAP is defined by the statute as "a current caretaker . . . if the child has lived with the caretaker for at least six months, the caretaker currently expresses a commitment to adopt the child, and the caretaker has taken at least one step to facilitate the adoption process." (§ 366.26, subd. (n)(1).)

Under the statute, the agency may remove the child from his or her PAP prior to holding the hearing under emergency circumstances only, where there is an immediate risk of physical or emotional harm to the child. (§ 366.26, subd. (n)(4).) Otherwise, the agency is required to provide notice to the designated PAP, the court, the child's attorney, and any child who is at least 10 years old prior to the removal. (§ 366.26, subd. (n)(3).) In the nonemergency situation, the child remains in the PAP's custody until the PAP's petition "objecting to the proposal to remove the child" can be heard. (§ 366.26, subd. (n)(3)(A).) That hearing "shall be held as soon as possible and not later than five court days after the petition is filed with the court or the court sets a hearing upon its own motion, unless the court for good cause is unable to set the matter for hearing five court days after the petition is filed, in which case the court shall set the matter for hearing as soon as possible." (§ 366.26, subd. (n)(3)(B).) "At the hearing, the court shall determine whether the caretaker has met the threshold criteria to be designated as a prospective adoptive parent . . . and whether the proposed removal of the child from the home of the designated prospective adoptive parent is in the child's best interest, and the child may not be removed from the home of the designated prospective adoptive parent unless the court finds that removal is in the child's best interest." (§ 366.26, subd. (n)(3)(B), italics added.) The agency bears the burden of proving by a preponderance of the evidence that the child's best interests require removal. (T.W., supra, 203 Cal.App.4th at p. 45, In re M.M. (2015) 235 Cal.App.4th 54, 60 (M.M.).)

The court correctly ruled a removal had occurred within the meaning of section 366.26, subdivision (n) on November 30, 2016, and that a removal hearing should have been set promptly. At issue is the court's further ruling that the Bureau's decision to remove the children was consistent with their best interests, given the "pretty overwhelming evidence" from the therapists that K.P. "provided the emotional stability for the children" and the universal consensus among them that "the kids should not be separated." N.B. Was Not Denied Due Process.

N.B. argues CFS violated its statutory duty under section 366.26, subdivision (n) and denied her due process by (1) failing to provide notice of intent to remove the children prior to removal on November 30, 2016, and (2) falsely advising the court in bad faith that she agreed to the children's removal when she did not, thereby contributing to court delays. N.B. also argues the court delays in setting a hearing violated her due process rights. We disagree.

On February 15, 2017, this court denied N.B.'s petition for extraordinary writ (N.B. v. Superior Court, supra, A150356), which raised essentially the same arguments she advances in the current writ petition. Petitioner sought a hearing on her request for PAP designation and a hearing on the propriety of removal. At that time, the requested hearing had already been set for February 22, 2017. At this juncture, the hearings sought by N.B. in the prior writ proceeding have been held and N.B. has prevailed, in part. After several hearings at which evidence was taken and arguments were heard, the trial court ruled that on November 30, 2016, N.B. qualified as a prospective adoptive parent within the meaning of section 366.26, subdivision (n), and the children's move to a separate abode with K.P. was a "removal" for the purposes of triggering "the need for a Notice of Intent to Remove." Even though N.B. was no longer the children's day-to-day caretaker, out of fairness the court granted N.B. prospective adoptive parent status and held subsequent hearings on the propriety of the removal. At these further hearings, N.B. was accorded all the rights of a PAP and a de facto parent. To the extent N.B.'s current writ petition asks for relief which has already been granted, it is moot. (Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1247.)

Section 366.26, subdivision (n) provides that in a nonemergency situation, the hearing on the PAP's objection to removal is to be held within in five court days after the petition is filed, "unless the court for good cause is unable to set the matter for hearing" within that time frame, "in which case the court shall set the matter for hearing as soon as possible." (§ 366.26, subd. (n)(3)(B).) N.B. has not shown the court lacked good cause when it continued the matter, or that it failed to act as soon as possible. Furthermore, given the ambiguous circumstances surrounding the couple's separation and the children's removal to a new residence with K.P., the record does not support a finding of bad faith on the Bureau's part.

In any event, it is not clear what remedy, if any, this court can provide at this juncture. "[D]ue process requires 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' " (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418, quoting Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314.) Here, by the time the hearings were set, N.B. had notice of the pending action, notice of the basis for the pending action, and the opportunity to argue her objections. Section 366.26, subdivision (n) requires the "full participation of PAP's at removal hearings [as] the most effective means of meeting the Legislature's expressed direction that the juvenile court, rather than a social service or adoption agency, determine whether removal is in a child's best interest." (Wayne F. v. Superior Court (2006) 145 Cal.App.4th 1331, 1342; R.H. v. Superior Court (2012) 209 Cal.App.4th 364, 374-375.) Full participation means that "designated PAP's, like other litigants, may offer evidence, examine witnesses, provide the court with legal authorities and make arguments to the court." (Wayne F., at p. 1343.) Hearings on the propriety of the children's removal commenced on June 12, 2017, and the matter was fully litigated over several hearings at which N.B. was accorded all the due process rights to which she was entitled as a PAP and a de facto parent. She was represented by counsel and had access to the social worker's reports and case notes. She was able to cross-examine the social worker extensively and call the children's therapists as witnesses. She testified on her own behalf. In short, she had a meaningful opportunity to be heard. (See In re Matthew P. (1999) 71 Cal.App.4th 841, 847, 851.) Petitioner's counsel admitted N.B. "got due process here in this trial kind of on everything." Due process does not require more. A new hearing is not warranted. Nor is the return of the children to N.B.'s custody, in the absence of a finding that such return in is their best interests. "If the outcome of a proceeding has not been affected, denial of a right to notice and a hearing may be deemed harmless and reversal is not required." (In re James F. (2008) 42 Cal.4th 901, 918.) In light of subsequent proceedings, any error in the Bureau's failure to file a timely removal petition, or the court's delay in setting hearings, did not prejudice her ability to make her best case against removal and is harmless error. (Ibid.) Substantial Evidence Supports the Juvenile Court's Best Interest Determination.

N.B. asserts it was not in the children's best interests to remove them from her home and place them with K.P. We disagree.

A court hearing a motion for change of placement after termination of parental rights "must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) We review a juvenile court's decision on whether to change a minor's placement for abuse of discretion and substantial evidence. (M.M., supra, 235 Cal.App.4th at p. 64.)

In this case the trial court recognized that both prospective adoptive parents are qualified caretakers who love the children, but their separation forced a difficult choice on the Bureau about where the children should live. The decision was made after consultation with both caretakers and numerous stakeholders in the children's well-being. The evidence before the court overwhelmingly pointed to K.P.'s household as the most secure placement for the four traumatized siblings. The therapists' recommendation was unanimous that the children must stay together in the home of the parent who was the primary emotional caregiver, and that K.P. was that caregiver, even though N.B. also played an important part in their lives and support. We need not repeat the evidence we exhaustively summarized in this opinion. Suffice it to say the social worker and therapists were extensively cross-examined about their actions, opinions and motives. The court decision was well informed and thoughtful. It was not arbitrary or capricious. Substantial evidence supports the juvenile court's finding that it was in the children's best interest to be placed together in K.P.'s household. Thus, the court did not abuse its discretion.

N.B. also argues she was prejudiced because she was a parent in a same-sex relationship. N.B. never raised this concern in the trial court; it is therefore waived. More importantly, the record refutes the argument. Finally, N.B. asserts the adoption was unnecessarily placed on hold, in violation of section 366.26, subdivision (n). The argument in favor of this contention consists of an abbreviated version of the arguments we have already rejected, and is meritless.

DISPOSITION

The petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).) The request for stay of all further proceedings is denied.

/s/_________

Dondero, J. We concur: /s/_________
Humes, P. J. /s/_________
Banke, J.


Summaries of

N.B. v. Superior Court of Contra Costa Cnty.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Feb 20, 2018
A152641 (Cal. Ct. App. Feb. 20, 2018)
Case details for

N.B. v. Superior Court of Contra Costa Cnty.

Case Details

Full title:N.B., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

Date published: Feb 20, 2018

Citations

A152641 (Cal. Ct. App. Feb. 20, 2018)