Fresno Cnty. Dep't of Soc. Servs. v. Elisa G. (In re J.C.)
| Decision Date | 15 April 2019 |
| Docket Number | F077586 |
| Parties | In re J.C. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. ELISA G., Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from orders of the Superior Court of Fresno County. Gary Green, Commissioner.
Linda J. Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.
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Elisa G. (mother) and Ricardo C. (father) are the parents of six children, now seven-year-old J.C., six-year-old Johnny C., five-year-old twins A.C. and R.C., four-year-old Isaiah C., and three-year-old G.C. In May 2017, a Welfare and Institutions Code section 366.26 permanency planning hearing (permanency hearing) was held in which the juvenile court issued an order terminating mother's and father's parental rights. The parents appealed. In January 2018,1 this court filed an opinion which reversed the order terminating parental rights and remanded for the juvenile court to set a contested permanency hearing. (In re J.C. (Jan. 11, 2018, F075711) [nonpub. opn.] (J.C.).) Before the remittitur issued, the judicial officer whose decision was reversed on appeal set a contested permanency hearing in his department. On the day of the contested hearing, which was held after the remittitur issued, mother filed a motion to disqualify the judicial officer under Code of Civil Procedure section 170.6,2 which was denied. Following the hearing, the judicial officer terminated parental rights.
Mother appeals, seeking review of the order denying the disqualification motion.3 We elect to treat the appeal as a petition for writ of mandate and conclude the judicial officer erred in refusing to disqualify himself, thereby rendering any subsequent order issued by him null and void. Accordingly, we issue a peremptory writ of mandate directing the juvenile court to vacate its order denying the motion to disqualify and all subsequent orders, and to assign the matter to another judicial officer.
These dependency proceedings began in February 2016, when the Fresno County Department of Social Services (Department) received a referral that mother and G.C. tested positive for methamphetamine at G.C.'s birth. A prior dependency case involving the five older children was dismissed just four months before G.C.'s birth, in which mother was granted sole physical custody of the five children and joint legal custody with father.
The Department filed a petition alleging the children came within the provision of Welfare and Institutions Code section 300, subdivision (b), based on mother's substance abuse problem from which father failed to protect the children, and G.C. came within the provision of Welfare and Institutions Code section 300, subdivision (j), based on her siblings' prior neglect. The children were taken into protective custody and ordered detained. The children were separated into two homes, with the four oldest children placed together in one foster home, and the two youngest in the home of their paternal aunt and her partner.
At the May 2016 combined jurisdiction and disposition hearing, the juvenile court found the allegations of an amended petition true after the parents submitted on the reports, took dependency jurisdiction over the children, and removed them from parental custody. The juvenile court ordered reunification services for mother, while father was denied services. Mother was given twice weekly supervised visits, and father was given monthly supervised visits.
Mother did not participate in her reunification services and failed to maintain regular contact with the Department. At the December 2016 review hearing, the juvenile court terminated mother's reunification services, decreased her visits to once a month, and set a combined review and permanency hearing for April 4, 2017. The juvenile court noted that mother had not visited the children since October.
In a report prepared for the permanency hearing, the Department recommended adoption as the children's permanent plan and termination of parental rights. The children remained in their same placements and their foster parents, who the Department identified as prospective adoptive parents, wanted to adopt them.
Mother and father visited the children monthly following the six-month review hearing. They brought snacks for the children and hugged and kissed them. The parents played with the children, interacted with them "fairly well," and were very affectionate and nurturing. Mother responded to the children's needs and both parents comforted the children when they fell while playing. The parents constantly told the children they loved them.
The children were considered "generally adoptable" based on their ages (ranging from one to five), their good physical health, and their lack of any significant behavioral concerns that would prevent their adoption. The five older children had speech delays—the four oldest children were receiving speech therapy through their school district, while Isaiah C. was receiving services through Exceptional Parents Unlimited (EPU). The children's speech had improved since being placed with their prospective adoptive parents, and they were able to follow directions, dress themselves, and interact with others. The children enjoyed playing with each other and interacting with their prospective adoptive parents, although they sometimes had age-appropriate physical outbursts. While Isaiah C. was a Central Valley Regional Center (CVRC) client, his development was improving through EPU services. J.C. and R.C. had been referred to CVRC, but their eligibility had not been determined, while A.C. and Johnny C. were determined not to be eligible for CVRC services.
The children also were considered "specifically adoptable," as they were placed with prospective adoptive parents who wanted to adopt them. The prospective adoptive parents had formed healthy parent-child relationships with the children and stated on numerous occasions that they loved them and wanted to adopt them. The children appeared comfortable and happy with the prospective adoptive parents and saw them as their primary caregivers who met their daily needs. The prospective adoptive parents were committed to adoption, and to maintaining and nurturing sibling relationships through frequent visits. The two sets of prospective adoptive parents had good relationships with each other and were willing to maintain sibling relationships.
The Department opined that due to the lack of visitation, there did not appear to be a parent-child relationship, and termination of parental rights would not be detrimental to the children. The children were well adjusted to their care providers and looked to them to meet their daily needs. The children were considered to be "very easygoing"; they loved to play, smile and laugh. The children needed a permanent parent-child relationship which adoption would provide.
Both parents were present at the April 4, 2017 permanency hearing. The juvenile court continued the hearing because the parties had not received the Department's report until April 3, 2017, and set dates for updated discovery and filing a statement of contested issues. The juvenile court set May 4, 2017, for the continued permanency hearing and settlement conference, and ordered the parents to appear at the hearing.
Mother's attorney filed an issue statement, which stated mother was requesting a contested hearing on the issues of the children's adoptability, and the applicability of the beneficial parent-child and sibling relationship exceptions to adoption. Mother objected to the termination of parental rights and requested a permanent plan of either guardianship or long-term foster care.
On May 3, 2017, the Department provided the parties with an addendum report which addressed paternal grandmother's application for placement of the four older children. The Department recommended against placing the children with paternal grandmother, as it was concerned for the children's safety and it would be detrimental to the children if they were removed from their current care providers. The social worker opined it was in the children's best interest to be adopted and remain with their prospective adoptive parents.
The report also discussed the results of the Consortium for Children Permanency Planning Mediation. The children's biological family and prospective adoptive parents agreed the two sibling sets would have contact at least six times per year, and the visits would include paternal grandmother. The children's respective prospective adoptive parents encouraged and invited the children to celebrate important occasions such as birthdays, school functions, and sport activities; they developed the plan to maintain and support the sibling connection.
The parents were not present at the beginning of the May 4, 2017 settlement conference. The juvenile court5 noted the Department had filed the addendum report the day before, and mother had set the contest. County counsel and the children's attorney both confirmed they were submitting on the reports. Father's attorney thought the matter should be continued, as the addendum report was filed the prior afternoon and the attorney wanted to review the...
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