Rita M. v. Superior Court of San Diego County, D051025 (Cal. App. 9/21/2007)
| Decision Date | 21 September 2007 |
| Docket Number | D051025 |
| Court | California Court of Appeals Court of Appeals |
| Parties | RITA M., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest. |
Appeal from the San Diego County Super. Ct. No. J511912C.
Proceedings in mandate to review an order designating the specific placement of a dependent child after termination of parental rights. Cynthia A. Bashant, Judge. Petition denied.
Rita M. seeks review of a juvenile court order removing her foster son, J.J. from her home under Welfare and Institutions Code section 366.26, subdivision (n).1 She contends the court erred when it did not place J.J. in her care for adoption. She also contends the court should have granted her request for de facto parent status. We deny the petition.
J.J. was born in November 2003. His mother, Shelly W., had a history of drug use.2 Two days after his birth, the San Diego Health and Human Services Agency (Agency) initiated dependency proceedings and placed J.J. in the foster care home of Rita M. The court adjudicated J.J. a dependent of the juvenile court and ordered a plan of family reunification. Shelly did not comply with her case plan. At the six-month-review hearing, the court terminated reunification services and set a hearing to select and implement a permanency plan for J.J. (§ 366.26, subd. (c)(1).)
In May 2005 the court found that J.J. was adoptable, terminated parental rights, and referred him to the Agency for adoptive placement. In the Agency's prospective adoptive assessment, social worker Noreen Harmelink stated that J.J. was a happy, even-tempered, loveable baby who was bonded to Rita. He was comfortable and well-adjusted in her home. Harmelink reported Rita passed criminal and child welfare services (CWS) clearances, and had previously adopted a child.
In November 2005 Harmelink reported J.J. was "very bonded" to Rita and was a happy child without any emotional or behavioral concerns. In May 2006 Harmelink reported Rita initiated an adoptive home study and was in compliance with the permanent plan. Two and one-half year old J.J. was developmentally on target but appeared to need speech therapy. He was "well-adjusted, happy and attached to the caregiver and the other children in the home."
On June 23, 2006, social worker Linda Johansen asked the court to authorize J.J.'s removal from Rita's care. Johansen reported there had been 11 referrals to child protective services (CPS) concerning the care in Rita's home and it was unlikely the Agency would approve her adoptive home study. The Agency was concerned about the quality of care Rita was able to provide because she worked full-time and had six children in her home. On June 28 the court granted the Agency's ex parte application to remove J.J. from Rita's home. However, J.J. remained in Rita's home while the Agency looked for a new adoptive home for him.
Rita objected to J.J.'s removal from her home. She filed an application for designation as his prospective adoptive parent. On July 20, 2006, the day of the hearing, the Agency filed a supplemental report detailing its concerns about Rita's home. The Agency reported that after March 21 Rita did not send in the paperwork or forms necessary to proceed with the home study, and the study had been closed for noncompliance. The Agency did not intend to approve Rita's home study now or in the future due to its concerns about her home. The court denied Rita's application as J.J.'s designated prospective adoptive parent and authorized the Agency to remove J.J. from her home. Rita filed a petition for extraordinary writ.
The Agency placed J.J. in a new adoptive home on October 6, 2006. After his removal, the Agency placed two other foster children in Rita's home, a two-year-old child and an infant.
On October 25, 2006, this court held that Rita was not given sufficient notice to allow her to adequately respond to the Agency's concerns about the care of the children in her home. This court issued a writ directing the juvenile court to vacate its order finding Rita did not qualify as J.J.'s designated prospective adoptive parent, and to hold a new hearing regarding her application for prospective adoptive parent status and the Agency's request to remove J.J. from her home. (Rita M. v. Superior Court (Oct. 25, 2006, D049099) [nonpub. opn.].)
On October 26, 2006, the juvenile court set a hearing as directed by this court. Rita filed a request for de facto parent status. She stated she developed a bond with J.J. when she picked him up from the hospital, and she loved him like she loved her natural born children. In interim proceedings, the court appointed an attorney to represent her at the hearing under section 366.26, subdivision (n)(3)(B) (removal hearing). The court designated Rita as J.J.'s prospective adoptive parent but deferred consideration of her application for de facto parent status.
After several delays, the removal hearing was held on May 30 and 31, 2007. Harmelink testified she had been J.J.'s social worker since August 2004. J.J. was affectionate and playful with his current caregiver. He called her "mommy." Harmelink recommended J.J. remain with his current caregiver for adoption. She opined J.J. saw Rita as a "grandma figure."
Although Rita was sweet and loving to the children in her home, Harmelink was looking for "a higher standard of care" for J.J. Because of the number of foster children in Rita's care, Rita's home "was chaotic and had the feel of [a] small group home." Harmelink believed J.J.'s best interests would not be served by choosing that type of environment as his permanent home. Rita worked full-time and cared for six children, some of whom had special needs, and she could not provide the "one-on-one" attention J.J. deserved. J.J.'s visits with Rita were positive. He was happy to see her and his former foster brother. On several occasions, J.J. demonstrated some resistance to leaving the visits. However, in the past eight months, J.J. developed a strong attachment to his new caregivers. Harmelink believed it would be detrimental to J.J. to return him to Rita's care.
Harmelink was also concerned about the number of child abuse referrals the Agency had received about the care provided to foster children in Rita's home. Although most of the CPS referrals were "unfounded," which meant the investigator determined the allegations of abuse did not occur, Harmelink believed the referrals showed Rita had problems disciplining older children, and this would present a future risk to J.J.'s well-being in Rita's care. After J.J. was removed from Rita's home, the CPS received allegations that a foster child in Rita's care arrived at daycare, unwashed, with dirty clothes and a dirty diaper, and that Rita's adopted son was spanked and bruised. The allegations were determined to be inconclusive.
Rita testified she had been a licensed foster care provider since 1999. Her license had been placed on hold 12 or 13 times, beginning in 1999 or 2000. It was never revoked. Rita admitted using inappropriate discipline on a child in February 2000, and accidentally hit another child with a clothes hanger when she threw the hanger at a mouse. Other CPS referrals included her refusal to pick up a teenage foster child out after midnight, allowing a young child to sleep in a top bunk, allowing two children to share a bed, having debris and junk in her backyard and sending a child to school dirty. Rita adopted her son after the Agency had investigated eight child abuse referrals. After J.J. was removed, the Agency placed two foster children in her care.
Rita completed the paperwork to adopt J.J. on more than one occasion. The Agency did not do a home study. Rita's telephone calls to the adoption agency were not returned. Later, the Agency told her they would not approve her home for adoption because she had too many CPS referrals.
Other witnesses testified the two children who had alleged abuse in Rita's home had difficulties telling the truth and had made up other stories. Deborah Jordan, an Agency social worker for two of Rita's former foster children, opined that Rita was a wonderful caregiver and provided the children with the care and services they needed. Kesha T., a licensed foster care provider who helped with daycare in Rita's home, testified J.J. had a close relationship with Rita. He hugged and kissed her, and cried when Rita left.
The court stated it did not share the Agency's concerns about the number of CPS referrals, Rita's delay in obtaining speech therapy for J.J., J.J.'s identification of Rita as a grandparent rather than a parent, or the conditions in her home. The court reasoned the conditions in Rita's home were a result of the number of children placed there by the Agency, and a grandparent could raise a child as well as a parent. The court noted almost all the CPS referrals occurred before J.J. was placed in Rita's home, and later allegations were determined to be unfounded or inconclusive.
The court stated its focus was on J.J.'s current well-being and stability. Although the Agency's treatment of Rita was "horrendous," the evidence showed J.J. was in a stable home, and he was happy and bonded to the parent in that home. The court was concerned about Rita's delay in completing adoption paperwork. The court determined removing J.J. from his new home was not in his best interests. The court ordered the Agency to maintain J.J. in his current placement and to proceed with J.J.'s adoption by his new caregiver. It did not rule on Rita's application for de facto parent status.
Rita filed a petition for writ of mandate under California Rules of Court, rule 8.454.3 This court issued an Order to Show Cause, the Agency responded and the parties waived oral argument.
Rita contends this is a case...
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