Marten v. Thies
| Citation | 160 Cal.Rptr. 57,99 Cal.App.3d 161 |
| Parties | Kelly MARTEN et al., Plaintiffs and Appellants, v. Fred F. THIES, as Director of the County Department of Public Social Services, etc., et al., Defendants and Respondents. Civ. 21214. |
| Decision Date | 29 November 1979 |
| Court | California Court of Appeals Court of Appeals |
The defendant placement agency terminated the status of plaintiffs, husband and wife, as prospective adoptive parents when the agency removed the minor child, Sarah Kelly, from their home. Husband and wife appeal from the denial of their petition for writ of mandate, seeking an order reinstating them as prospective adoptive parents and returning the minor child to the home.
Following the removal of the child from their home, husband and wife sought and obtained a grievance review hearing pursuant to California Administrative Code, title 22, section 30684.
The statement of facts as found by the administrative hearing officer was submitted to the trial court by stipulation and no additional evidence was presented. 1 The facts pertinent to this appeal may be briefly stated.
The husband and wife, Kelly Marten and Kathy Marten, were initially screened, qualified, and accepted by respondent San Bernardino County Adoption Services (Agency) as prospective adoptive parents in January of 1976.
On May 17, 1977, a then 15-week-old minor child, Sarah Kelly, was placed in husband and wife's home on a "quasi-adoptive" basis, which was formalized as an adoptive placement on June 28, 1977, after the child became legally free for adoption. Husband and wife were experiencing "marital problems" of an unspecified nature during the month of May 1977 prior to the placement. This fact was not revealed to the Agency.
Although the husband and wife's relationship temporarily improved, it again deteriorated, and in January of 1978, they separated. Contrary to their agreement with the Agency, they did not inform the Agency of this change in their circumstances, and they did not seek any professional help for their marital problems.
Following their separation, the husband and the wife each dated other persons, and at the time of the grievance review hearing, the husband was cohabiting with another woman, with the announced intention of continuing to do so indefinitely. The husband did continue to provide some financial support to the wife.
In April of 1978, the Agency received an anonymous phone call stating that the husband and the wife were separated, and expressing concern regarding the care of the child by the husband and wife. At that time the wife and the minor child were out of the state. The Agency had authorized the wife to take the minor child to Texas. Instead, she had taken the child to Nebraska without the knowledge or consent of the Agency.
On June 5, 1978, following the wife's return to California, an Agency social worker interviewed the husband and wife jointly. The husband and wife admitted to the social worker at this time that they were having marital problems, had had marital problems at the time the child was placed with them, that they had separated in January 1978, and had no plans to seek marital counseling or to reconcile. They further admitted that they had not informed the Agency of their changed circumstances out of fear that the child would be removed from them.
The social worker advised the husband and wife that she would consult with her supervisors, but that removal of the child was a possibility. On July 5, 1978, in a separate interview between the social worker and the husband, the husband stated that if the child were to be removed from the family home there would be no possibility of a reconciliation with his wife.
In order to obtain a second opinion, an adoptions social worker was assigned to make a psycho-social assessment of the situation. He interviewed the wife on July 24, 1978, and reported the following impressions. The wife was somewhat depressed, suffered from a high level of anxiety, had an immense over-investment in the child as her only source of affection, and felt "abandoned" by the husband. She displayed a passive acceptance of her situation and a continued dependence on the husband for financial aid. Her reality situation was continuing to deteriorate. Since the separation she had managed on financial contributions from the husband and small money contributions from a neighbor and money and food from her mother. She had only managed to be employed for one week, and had no significant work history or job skills.
The second social worker was of the opinion that the child had suffered developmentally since January 1978, because of the absence of a father figure in the home, and that greater difficulties would arise in the future because of this lack. He found nothing to indicate that the child was physically suffering or that she was in any immediate danger; she appeared well cared for. He too advised the wife of the possibility that the child would be removed from her home. Thereafter, he did recommend the child's removal from the home.
Based upon the social workers' assessment of this case situation, the Agency concluded that: (a) the placement did not meet the Agency's commitment to the natural mother to place the child in a two parent family; (b) the placement was not in keeping with section 30627, subdivision (c) of title 22 of the California Administrative Code which gives preference to two parent families over single parent families; (c) the placement did not have sufficient supports and resources to meet the child's continuing physical and emotional developmental needs.
The acting chief of adoptions presented the Agency's evaluation to the Director of the Department of Public Social Services, respondent Fred F. Thies, and recommended that the child be removed forthwith. The acting chief further recommended that no advance notice of the removal should be given to the husband and wife because the Agency believed that such notice would place the child in imminent danger because of the likelihood that the wife would flee with the minor child.
Based upon the evidence presented to him, the director found that the child would be placed in imminent danger if notice were given, and directed that the child be removed from the home without prior written notice.
The husband and wife requested a grievance review hearing pursuant to section 30684 of title 22 of the California Administrative Code. Thereafter, pursuant to the findings and recommendations of the grievance review agent, the director approved and issued a grievance review decision upholding the actions of the Agency, finding that the county adoption services and the director of the Department of Public Social Services had sufficient and substantial cause to believe that the child Sarah Kelly Marten was a child whose health and safety were in jeopardy, and that she was in imminent danger and that the jeopardy would be greatly increased if prior written notice of removal were to be given to the husband and wife.
Following the submission of the petition for writ of mandate in the superior court, that court, exercising its independent judgment found that "the findings of the Review Agent are supported by his summary of facts and that his recommendations are supported by his findings." The court further found that the return of the child, Sarah Kelly, to the husband and wife "would not be in the best interest of the child, and in fact would be detrimental to the child." The petition was denied. This appeal followed.
Husband and wife appear to make the following contentions on appeal.
1. The removal of the minor child Sarah Kelly from their home without prior written notice constituted a denial of procedural due process of law under the Fourteenth Amendment, and
2. The separation of the husband and the wife does not disqualify them for the continuing status of prospective adoptive parents.
In her reply brief, the wife makes the additional contention that,
3. The best interests of the child require that independent counsel be appointed to represent the child in these proceedings.
DUE PROCESS
Subject to constitutional limitations, the controlling authority for the termination of adoptive placement is Civil Code section 224n which provides in pertinent part as follows:
The statute makes no provision for notice and hearing as a basis for terminating adoptive placement and removal of the child prior to the filing of an adoption petition. Nor does the statute provide for judicial review of such agency action. 2 To guard against the possibility of arbitrary agency action, the appellate court in Rodriguez v. Superior Court (1971) 18 Cal.App.3d 510, 95 Cal.Rptr. 923, 924, held that the administrative action of an agency in a pre-adoption placement should be subject to judicial review. The Rodriguez court declared: ...
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Department of Social Services v. Superior Court
... ... (Id., at pp. 918-919, 106 Cal.Rptr. 123; accord Marten v. Thies (1979) 99 Cal.App.3d 161, 171, 160 Cal.Rptr. 57.) ... Here, unlike in C.V.C. v. Superior Court and the other cases cited ... ...
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...adoptive children homes in nuclear families consisting of parents who are husband and wife. ( See, e.g., Marten v. Thies, 160 Cal.Rptr. 57, 63–64, 99 Cal.App.3d 161, 173 [1979] (recognizing that a now repealed version of California Administrative Code “clearly prefer[red]” two-parent homes,......
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Los Angeles County Dept. of Children and Services v. Superior Court (Paul C.)
... ... 2 (Id. at pp. 916, 919-920, 106 Cal.Rptr. 123.) ... The court in Marten v. Thies (1979) 99 Cal.App.3d 161, 168-171, 160 Cal.Rptr. 57 adopted C.V.C.'s analysis to "guard against the possibility of arbitrary agency action," ... ...