In re Dakota S.
| Decision Date | 13 December 2000 |
| Docket Number | No. C033411.,C033411. |
| Citation | 102 Cal.Rptr.2d 196,85 Cal.App.4th 494 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re DAKOTA S., a Person Coming Under the Juvenile Court Law. Sacramento County Department of Health and Human Services, Plaintiff and Respondent, v. Sandra S., Defendant and Appellant; Artemeas K., Respondent. |
Robert A. Ryan, Jr., County Counsel, Lilly C. Frawley, Deputy County Counsel, for Plaintiff and Respondent.
S. Lynne Klein, for Respondent.
John L. Dodd, under appointment by the Court of Appeal, Tustin, for Minor.
Sandra S. (appellant), the mother of Dakota S. (the minor), appeals from orders of the juvenile court modifying the minor's placement and selecting a permanent plan of guardianship with the minor's foster parent, who had been given de facto parent status. (Welf. & Inst.Code, §§ 366.26, 388; further section references are to this code unless specified otherwise.) Among other things, appellant claims that the orders must be reversed because the Sacramento County Department of Health and Human Services (DHHS) did not prepare, and the juvenile court did not consider, an assessment of the foster parent as the prospective guardian.
In the published portion of this opinion, we observe that DHHS failed to comply with its statutory obligation to submit a preliminary assessment of the foster parent's eligibility, commitment, and suitability as a prospective guardian. (Welf. & Inst.Code, § 366.22, subd. (b).) We do not take this omission lightly. After all, the purpose of the assessment is to provide the juvenile court with information necessary to determine whether guardianship is in the dependent child's best interests, and whether the prospective guardian is an appropriate person to assume the duties of guardianship. Nevertheless, we conclude that, by failing to object in the juvenile court that DHHS had not submitted a preliminary assessment of the prospective guardian, appellant has waived her right to raise this omission as a basis to reverse the guardianship order. In any event, we find the lack of a preliminary assessment required by statute did not result in a miscarriage of justice because the juvenile court received, in other forms, the information that would have been contained in the preliminary assessment.
In the unpublished parts of this opinion, we reject the remaining claims of error. Accordingly, we shall affirm the orders.
After appellant was arrested for selling drugs, the minor was removed from parental custody in November 1996. The juvenile court ordered appellant to comply with a family maintenance plan, and returned the minor to her custody. Almost a year later, the court found that appellant had failed to comply with the service plan. Consequently, the minor was placed with a licensed foster parent, Ms. Artemeas K. (the foster parent), under the auspices of Abriter Foster Family Agency, Inc. (Abriter).
By the time of the 18-month review, the minor had reacted positively to foster placement, but continued to have a strong bond to appellant. Unfortunately, appellant continued to have drug problems and failed to complete reunification services. The foster parent wanted to adopt the minor, and the social worker opined it was in the minor's best interests "that a permanent plan of either adoption or guardianship be offered with his current foster parent." The juvenile court terminated reunification services and scheduled a section 366.26 hearing.
In January 1999, the minor was removed from the foster parent's home based upon allegations that the foster parent inflicted corporal punishment upon Frankie, another foster child in her home. Thereafter, the foster parent petitioned for de facto parent status and filed a section 388 petition, seeking an order returning the minor to her care and custody.
The DHHS assessment prepared for the section 366.26 hearing recommended placement of the minor in long-term foster care rather than guardianship due to the circumstances surrounding the minor's removal from the foster parent's home and because the social worker believed that the foster parent was attempting to interfere with the minor's bond to appellant. Letters attached to the assessment stated that the foster parent had lost her certification, and it was reported that the minor had said he did not want to return to the foster parent's home.
The juvenile court combined the section 366.26 hearing with the hearing on the foster parent's request for de facto parent status and her petition for modification to return the minor to her custody. The court proceeded first on the motion for de facto parent status.
Lawrence Budney, who had been the DHHS reunification social worker on this case, testified that he rated the foster parent "good" to "exceptional" and that the foster care agency had said she was "one of [its] best" foster parents. Budney testified he never saw evidence that the foster parent had inflicted corporal punishment on any child or that she had tried to alienate the minor from appellant. Based upon his past experience and knowledge of her, Budney opined that the foster parent would be "an excellent guardian of [the minor]."
Leon Wells, an Abriter social worker who had worked with the foster parent and her two foster children from October 1997 to May 1998, testified that she was a particularly good foster parent. In Wells's view, the foster parent was a nurturing and caring person with a gentle manner who explained things to the children rather than punishing them. Having observed that the minor had a genuine attachment to the foster parent, Wells never suspected the foster parent of employing corporal punishment on the minor or her other foster child, Frankie. Rather, Frankie had been struck by his biological mother during a visit in November 1997, and had bruises after another visit in July 1998. Also, Wells never saw any indication that the foster parent was attempting to alienate the minor against appellant. Wells opined that the foster parent would be an appropriate guardian for the minor based upon "the totality of her experience with [the minor]" and because "she does appear to have his best interest at heart. . . ."
Abriter social worker Pamela Pittsford, who had been assigned to work with the foster parent in July 1998, testified that the minor told her Frankie had been spanked, and that Frankie confirmed the spanking had occurred. Pittsford did not ask when the incident occurred, and an examination of Frankie revealed no evidence of physical abuse. When asked about it, the foster parent denied hitting the children. According to Pittsford, an Abriter administrator concluded that there was "probably nothing to it [the reported spanking]." However, without being specific as to why, Pittsford testified that she had "doubts" about the foster parent and "mistrusted" her. Pittsford acknowledged that she had continued to make positive reports about the foster parent because Pittsford "wanted to believe [her]." Pittsford explained: "Do you know what, I put in all the good stuff and none of the bad stuff as I was hoping it was all okay."
At the conclusion of this phase of the combined hearings, the court granted de facto parent status to the foster parent and ordered that evaluations be made of appellant, the foster parent, and the minor's aunt "for the purposes of determining the appropriate placement and/or guardianship of [the minor]."
The evaluations, submitted by the Child & Family Institute, concluded that the minor was "bonded very well" with the foster parent and demonstrated a greater range of emotion and spontaneity while with her than with appellant. According to the study, appellant was not attuned to the minor's needs, was physically intrusive, and could not spend time with the minor without trying to get him to meet her needs. Opining that the minor should not be placed with his aunt and should not have unsupervised contact with appellant, the study recommended that the foster parent be given care and custody of the minor.
Based upon this study, DHHS made an "oral recommendation" that the minor be returned to the foster parent's custody. At the court's direction DHHS prepared a supplemental report reiterating its new recommendation, but requesting that the "dependency be continued for six months in order to monitor the placement and the visitation schedule between [appellant] and the minor."
When the combined hearings proceeded in June 1999, the juvenile court accepted stipulations that witnesses would testify to the following: The minor enjoyed and looked forward to visits with appellant, and on one occasion appeared fearful of returning to the foster parent's home. On the other hand, the minor was happy in the foster parent's care, but was a very sensitive child who would get upset if deprived of privileges.
For reasons we need not recount here, appellant testified that she believed it was not in the minor's best interests for the foster parent to be his guardian.
Eileen Heinrich, a DHHS supervisor in the guardianship unit, testified about her observations of a visit during which the minor, the foster parent, and her teenage son played together in April 1999. In Heinrich's view, the foster parent was "very appropriate" and had a "positive bonding" with the minor, who hugged the foster parent, sat in her lap, and spontaneously shared a treat with her. According to Heinrich, this interaction was inconsistent with statements made by the minor indicating that he did not want to return to the foster parent's custody. Although she did not personally observe any such acts, Heinrich "had some suspicions" that the foster parent had used corporal punishment on the minor. Nonetheless, Heinrich had approved the recommendation that the foster parent be designated the...
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