Katzoff v. Superior Court

• Decision Date: 30 January 1976
• Parties: Meta KATZOFF and Richard Katzoff, Petitioners, v. The SUPERIOR COURT, CITY AND COUNTY OF SAN FRANCISCO, JUVENILE COURT DEPARTMENT, Respondent; DEPARTMENT OF PUBLIC SOCIAL SERVICES OF SAN FRANCISCO, Real Party in Interest. Civ. 38076.
• Court: California Court of Appeals Court of Appeals

Page 178

127 Cal.Rptr. 178

54 Cal.App.3d 1079

Meta KATZOFF and Richard Katzoff, Petitioners, v. The SUPERIOR COURT, CITY AND COUNTY OF SAN FRANCISCO, JUVENILE COURT DEPARTMENT, Respondent DEPARTMENT OF PUBLIC SOCIAL SERVICES OF SAN FRANCISCO, Real Party in Interest.

Civ. 38076.

Court of Appeal, First District, Division 4, California.

Jan. 30, 1976.

Hearing Denied March 24, 1976.

Robert L. Walker, Susanne Martinez, Youth Law Center, San Francisco, and John B. Segall, Ross, Hackett & Segall, San Bruno, for petitioners.

Thomas M. O'Connor, City Atty., City and County of San Francisco, Marie Burke Lia, Deputy City Atty., San Francisco, for respondent.

Office of the Public Defender, City and County of San Francisco, Robert Nicco, Public Defender, Walter D. Herrick, Deputy Public Defender, Juvenile Court Div., San Francisco, for real party in interest.

CALDECOTT, Presiding Justice.

Petitioners Meta and Richard Katzoff seek review of an order of the San Francisco Superior Court allowing the Department of Public Social Services of the City and County of San Francisco to remove two-year-old Dimitri Wallace from their home, where they have been caring for him as a foster child.

Dimitri was born to Diane and Howard Wallace on December 26, 1973. Shortly after his birth, he exhibited symptoms of withdrawal from neonatal drug dependence. On January 16, 1974, he was admitted to a San Francisco hospital with a fracture of the left humerus, 'analogous to the battered child syndrome.' Dimitri was placed in the Katzoff home in San Rafael in February 1974. He has remained with the Katzoffs, who recently moved to Petaluma, until the present time.

On March 15, 1974, Dimitri was declared a dependent child of the superior court (Welf. & Inst.Code, § 600 et seq.) on the ground that his home was 'unfit for him by reason of the neglect and physical abuse of his parents.' (See Welf. & Inst.Code, § 600, subd. (d).) ¹ The Wallaces then moved to Marin County, and the dependency petition was thereafter transferred to the Marin County Superior Court. On May 30, 1974, after Mrs. Wallace moved back to San Francisco, the case was returned to the San Francisco Juvenile Court which committed Dimitri 'to the care and custody of the Department of Social Services for placement, supervision, and planning.'

Pursuant to Welfare and Institutions Code section 729, an annual review hearing of Dimitri's dependency status was held on November 13, 1975. A report by the child welfare worker was prepared and submitted to the court before the hearing.

At the hearing, the deputy city attorney, representing the San Francisco Department of Social Services (DSS), requested that Dimitri's dependency status be reviewed, and that Mrs. Wallace (who was present and represented by counsel) be advised that an abandonment proceeding (Civ.Code, § 232) might be commenced against her if she does not establish and maintain a relationship with her son. The city attorney also requested that Dimitri be removed from the petitioners' home and placed in another foster home in San Francisco, stating: 'The Foster parents have done an excellent job in providing care. But the Foster parents have had some difficulties with consenting with the re- unification of the mother and child and some difficulties of visitation between the mother and child. And they have had objections to our working--the Department of Social Services--working in the past on the case to the extent we have been contacted by the authorities in Marin County, the State of California, and now Solano County, indicating an interest to use the other jurisdictions.'

The city attorney also referred to the fact that since Dimitri is black, and the Katzoffs are white, their home is not an adoptive possibility and that the department was prepared to place Dimitri in a black foster home in San Francisco 'which understand the relationship with the natural parents and their obligations.'

Attorney for petitioners denied that the Katzoffs had failed to cooperate with the DSS in allowing the natural mother to visit with Dimitri; he asserted that the Katzoffs' primary interest was to have Dimitri placed in a suitable adoptive home, and that to place him in a new foster home pending further action by the DSS would not be in the child's best interests. Petitioners' attorney submitted six letters from physicians, psychiatrists, and friends which support the Katzoffs' contention that Dimitri should not be placed in a new foster home. Petitioners' attorney then offered the testimony of Mrs. Katzoff to the effect that she and her husband had fully cooperated with the DSS in allowing Dimitri's natural parents to visit him. The trial court refused to allow this or any other testimony. The court ordered that dependency status be continued and that 'the Social Worker (is) authorized to remove (the) child from (the) present foster home.' Dimitri was removed from the custody of the Katzoffs and placed in a San Francisco foster home that afternoon.

On November 20, 1975, petitioners again appeared before the court with the request to reconsider the order. After hearing argument by counsel, the motion was denied.

On December 1, 1975, the Katzoffs filed a petition for writ of mandate with this court. We issued an alternative writ and stayed the trial court's order of November 13, 1975, pending our decision on the petition. We specifically ordered that 'during the pendency of these proceedings that the minor, Dimitri Wallace, be returned to the foster home of petitioners Meta Katzoff and Richard Katzoff.'

I

Petitioners assert that under the recent Supreme Court case of In re B.G., 11 Cal.3d 679, 114 Cal.Rptr. 444, 523 P.2d 244 they have standing as Dimitri's 'de facto parents' to contest the removal of Dimitri from their home.

The children in In re B.G. were born in Czechoslovakia of Czechoslovakian parents. In 1968, the father and the two children came to the United States; the mother refused to join them. One year later the father died and the children were placed with foster parents. The mother, while in Czechoslovakia, made arrangements through the embassy to have the children returned to her. On the day of the flight, the foster parents and the children went into hiding.

In response to a petition of the foster parents' attorney, the Court of Appeal ordered the court to hold a 'dispositional hearing.' The trial court's decision denying the mother custody of the children was the subject of the appeal. The court's conclusion that a parent may be denied custody only if the trial court first determines that parental custody would be harmful to the child is not directly in point here. However, the following holding on the legal status of the foster parents is the basis of petitioners' claim: 'The status of the de facto parent received statutory sanction with enactment of the Family Law Act in 1969. Previously Civil Code section 138 distinguished only between awards of custody to parents and to nonparents; the Family Law Act, in Civil Code section 4600, added the stipulation that when an award of custody to the parent would be detrimental next in order of preference stands 'the person or persons in whose home the child has been living in a wholesome and stable environment.'

'The juvenile court in a dispositional hearing must undertake 'a judicious appraisal of all available evidence bearing on the child's best interests' including an evaluation of the relative merits of alternative custody awards. (In re A.J. (1969) 274 Cal.App.2d 199, 202, 78 Cal.Rptr. 880, 882.) The presence of de facto parents will aid the court in that endeavor; the views of such persons who have experienced close day-to-day contact with the child deserve consideration; moreover, an award of custody to such de facto parents is often among the alternate dispositions which the court must evaluate.

'We conclude that de facto parents, such as the foster parents in this case, should be permitted to appear as parties in juvenile court proceedings. Their standing should not depend upon the filling of a petition for guardianship, although the filing of such petition may aid in attesting to their interest in the custody of the child; nor should their participation be restricted to the limited role of...