Department of Social Services v. Superior Court

• Decision Date: 21 October 1997
• Docket Number: Nos. 3,s. 3
• Citation: 68 Cal.Rptr.2d 239,58 Cal.App.4th 721
• Parties: , 97 Cal. Daily Op. Serv. 8145, 97 Daily Journal D.A.R. 13,117 DEPARTMENT OF SOCIAL SERVICES, Petitioner, v. The SUPERIOR COURT of Siskiyou County, Respondent; Siskiyou County Child Protective Services et al., Real Parties in Interest. In re THEDORE D., et al., Persons Coming Under the Juvenile Court Law. DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Appellant, v. Jennifer DeVINE, as Court Appointed Special Advocate, etc., Defendant and Respondent. Civ. C024898, 3 Civ. C025067.
• Court: California Court of Appeals Court of Appeals

Page 239

68 Cal.Rptr.2d 239

58 Cal.App.4th 721, 97 Cal. Daily Op. Serv. 8145,

97 Daily Journal D.A.R. 13,117

DEPARTMENT OF SOCIAL SERVICES, Petitioner, v. The SUPERIOR COURT of Siskiyou County, Respondent;

Siskiyou County Child Protective Services et al., Real Parties in Interest.

In re THEDORE D., et al., Persons Coming Under the Juvenile Court Law.

DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Appellant, v. Jennifer DeVINE, as Court Appointed Special Advocate, etc., Defendant and Respondent.

Nos. 3 Civ. C024898, 3 Civ. C025067.

Court of Appeal, Third District, California.

Oct. 21, 1997.

Rehearing Denied Nov. 14, 1997.

Review Denied Jan. 21, 1998.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Charlton G. Holland, III, Senior Assistant Attorney General, Dennis Eckhart and Frank S. Furtek, Deputy Attorneys General, for Plaintiff and Appellant, and Petitioner.

Michael D. Thamer, Yreka, for Defendant and Respondent, and Real Parties in Interest.

No appearance for Respondent Superior Court.

Don Langford, County Counsel (Siskiyou), for Real Parties in Interest.

Janet H. Saalfield, Saulsalito, under appointment of the Court of Appeal, for the Minors.

SCOTLAND, Associate Justice.

In this consolidated appeal and petition for writ of mandate, we address whether the juvenile court has authority to independently determine the appropriate interim placement of minors pending their adoption after the court has terminated parental rights and referred the minors to the Department of Social Services (DSS) for adoptive placement, or whether DSS has the sole authority to determine such placement, subject only to judicial review for abuse of discretion.

We agree with DSS that the juvenile court erred in ordering the agency to move the minors, Theodore D. and Katelin D., from the placement selected by DSS to one chosen by the court.

As we shall explain, the Legislature has granted the agency to which a minor is referred for adoption, in this case DSS, the "exclusive" custody, control and supervision of the minor referred for adoptive placement. (Welf. & Inst.Code, § 366.26, subd. (j); Fam.Code, § 8704.) This exclusive authority includes the "discretion" to place the minor in, and if necessary remove the minor from, a prospective adoptive home or "temporary care," i.e., foster care placement for the minor pending adoptive placement. (Fam.Code, § 8704.) Under the statutory scheme, DSS's discretion regarding adoptive and interim foster care placement is not unfettered. The juvenile court retains jurisdiction over the minor to ensure the adoption is completed as expeditiously as possible and to determine the "appropriateness of the placement." (Welf. & Inst.Code, § 366.3) This does not mean the court may substitute its independent judgment for that of DSS because the Legislature has given the agency exclusive custody and control of the minor and the discretion to make placement decisions. Rather, the court is limited to reviewing whether DSS abused its discretion in placing the minor or in determining that the placement, once made, remains appropriate. Absent a showing that DSS's placement decision is patently absurd or unquestionably not in the minor's best interests, the court may Because the record shows DSS did not abuse its discretion in placing the minors in the Culver family home, the court erred in "vetoing" DSS's placement decision.

not interfere and disapprove of the placement.

FACTS

Theodore D. and Katelin D., and their older siblings, Diana B., Sacha B. and Jasmine D., were declared dependent children of the juvenile court and were removed from parental custody. The Siskiyou County Human Services Department placed Theodore and Katelin with the Bringles. Diana, Sacha and Jasmine were placed with the Stocktons.

When the children's parents failed to cooperate and avail themselves of reunification services, the court terminated those services and scheduled a hearing to determine the appropriate permanent plan for the minors. (Welf. & Inst.Code, § 366.26; further section references are to the Welfare and Institutions Code unless otherwise specified.)

Following the section 366.26 hearing, the court found that Theodore and Katelin were likely to be adopted, terminated parental rights, and ordered a permanent plan of adoption for them. The court found that it was unlikely Diana, Sacha and Jasmine would be adopted, and thus ordered long-term foster care for these siblings.

The court directed DSS to place Theodore and Katelin for adoption and ordered the Siskiyou County Human Services Department to place Diana, Sacha and Jasmine in suitable long-term foster care. Finding sibling visitation was in the children's best interest, the court ordered that such visitation "be allowed and encouraged to take place to the greatest extent possible taking into account circumstances of the foster and/or adoptive parents, including time, distance, expense, etc."

Placement of Theodore and Katelin continued with the Bringles; Diana, Sacha and Jasmine remained with the Stocktons.

At a review hearing, the Court Appointed Special Advocate (CASA) urged the juvenile court to order DSS to move Theodore and Katelin to the Stocktons' home pending adoptive placement. According to CASA, (1) the Bringles were not providing the disciplined environment needed by the minors and had been ruled out as adoptive parents, (2) the Stocktons were "interested in having Theodore and Katelin placed with them, not just as foster children, but to adopt them," and (3) Diana, Sacha and Jasmine wanted to maintain contact with their siblings and, although Theodore and Katelin were too young to "understand that the three girls are their sisters," it would be in their best interest to place them with the Stocktons because this would allow all the children to remain together as a family.

DSS acknowledged it was not considering the Bringles as an adoptive home for Theodore and Katelin. Nevertheless, DSS intended to continue this placement pending identification of an appropriate adoptive family. Referring to an assessment which reported that Theodore and Katelin "seem[ed] to be secure in the [Bringles's] home" where they had been living for most of the past two years, and that an "adjustment" in placement would be "difficult for the children," DSS opined that it was in the minors' best interest not to be moved from the Bringles pending placement with an adoptive family.

The question then arose whether the juvenile court had power to direct DSS to place Theodore and Katelin with the Stocktons pending adoption, or whether DSS had exclusive authority to determine preadoptive placement. The matter was taken under submission by the court, which ordered that the minors "shall remain within the jurisdiction of State Adoptions and in the Bringle home " until the court's ruling. (Italics added.)

Before the court ruled on the submitted matter, a petition was filed pursuant to section 388 to modify the court's order specifying that Theodore and Katelin shall remain in the Bringle home until the ruling. According to a DSS adoptions caseworker, the Bringles no longer were able to cope with the minors' "escalating behavior," which included fighting, biting and screaming. DSS intended to move Theodore and Katelin to another family which could provide consistent care for the minors' special needs pending adoption. While DSS ordinarily would have considered this to be a "lateral move" that it could make "unilaterally," the petition for modification was filed in this case simply because "we have a court order that specifically states these children will not be moved At the hearing on the petition, CASA agreed the order should be vacated and again urged the juvenile court to direct DSS to place Theodore and Katelin with the Stocktons. In CASA's view, the court had the authority to supervise and regulate DSS's decisions on preadoptive placements and thus could order a placement other than that selected by DSS. DSS disagreed, reasserting that it had exclusive authority to make preadoptive placements after the court terminated parental rights and referred the minors to DSS for adoptive placement. Although DSS was "not necessarily opposed to adoption by the Stocktons," it was pointed out that the Stocktons had "not set in motion formally all the mechanisms to kick in the review of them as a potential adoptive home [for Theodore and Katelin]." In addition, a concern was expressed that placing two more young children with the Stocktons might make it more difficult for them to care for the foster siblings who exhibit physical and emotional problems.

from a certain home until further court order," an order DSS did not want to flout.

The court vacated the order specifying that Theodore and Katelin shall remain in the Bringle home pending a ruling on the previously submitted issue. However, the court declined to rule on CASA's request; instead, it continued the matter for a status review and further proceedings on the questions whether the court had authority to direct DSS to place the minors with the Stocktons and, if so, whether it should do so.

In later ruling on the submitted matter, the court held it had "jurisdiction to tell [DSS] what to do" with respect to preadoptive placement. For this proposition, it cited "the overall Welfare and Institutions Code, and specifically [section] 202[, subdivision (d) ], that [the court] must act in the best interests of the children." ¹ It acknowledged that section 366.26, subdivision (j) gives DSS "exclusive care and control" of the minors who had been declared free from parental custody and been referred for adoptive placement. The court stated, however, that other sections required it to retain jurisdiction over the minors and, in doing so, it "[did] not prefer to be a puppet."

Accordingly, the court indicated it would "receive all the...