94 Cal.App.5th 718
Cal. Ct. App.2023Background
- Paternal grandparents M.F. and J.F. cared for R.F. and B.F.; parents’ rights were terminated and adoption was chosen as the permanent plan in Oct–Nov 2021.
- DPSS recommended the grandparents be designated prospective adoptive parents (PAPs); J.F. had documented substance-use concerns (alcohol; a positive meth/amphetamine saliva test Oct. 19, 2021).
- On March 11, 2022, DPSS made emergency removals of both children from the grandparents’ home, citing a hair-follicle test showing high methamphetamine levels in J.F. (forms JV‑324/JV‑326 filed).
- The JV‑326 proofs stated M.F. was notified “orally, in person” on March 11, but the court file contained no JV‑324 served on M.F. and no evidence she received blank JV‑325 (objection) or JV‑321 (request for PAP designation) forms; M.F. learned at the courthouse she could file objections and filed JV‑325s on March 25.
- The juvenile court never held a removal hearing; it later denied M.F.’s §388 petitions without a hearing, finding she was given proper notice and that her objections were untimely. The Court of Appeal reversed and remanded for a noticed hearing on the March 11 emergency removals.
Issues
| Issue | Plaintiff's Argument (M.F.) | Defendant's Argument (DPSS) | Held |
|---|---|---|---|
| Was M.F. properly notified of the March 11, 2022 emergency removals under §366.26(n)/rule 5.728? | M.F. says she never received the JV‑324 notice or blank JV‑321/JV‑325 forms and was not orally informed of the right to object, so notice did not commence. | DPSS contends oral, in‑person notice on March 11 (as shown on JV‑326) satisfied rule 5.728; blank forms are only required “when possible.” | Court found M.F. made a prima facie showing she was not properly notified; the record contains no evidence DPSS properly informed her. |
| Were M.F.’s March 25 JV‑325 objections timely or subject to extension? | Because she lacked proper notice, the statutory 5 court‑day/7 calendar‑day clock never began (or good cause existed to extend), so March 25 objections were timely. | DPSS asserted objections were untimely because notice occurred March 11. | Court held lack of proper notice meant the filing period did not commence (or could be extended), so objections were timely. |
| Was summary denial of the §388 petitions without a hearing an abuse of discretion? | Denial without hearing was improper where §388 alleged lack of proper notice and therefore the petition made a prima facie showing entitling M.F. to an evidentiary hearing. | DPSS relied on court’s determination that notice had been given and hearing was discretionary. | Court of Appeal held the denial was an abuse of discretion because the petition warranted a noticed hearing under §366.26(n)/rule 5.728. |
Key Cases Cited
- State Dept. of Social Services v. Superior Court, 162 Cal.App.4th 273 (Cal. Ct. App.) (emergency‑removal hearing must decide whether removal should be made permanent based on circumstances at hearing time)
- Wayne F. v. Superior Court, 145 Cal.App.4th 1331 (Cal. Ct. App.) (subdivision (n) gives caretaker/PAP standing to seek a noticed hearing on removals)
- Department of Social Services v. Superior Court, 58 Cal.App.4th 721 (Cal. Ct. App.) (pre‑subdivision (n) standards and agency deference background)
- In re Harry N., 93 Cal.App.4th 1378 (Cal. Ct. App.) (agency removal decisions previously given considerable deference)
- In re Daniel F., 64 Cal.App.5th 701 (Cal. Ct. App.) (§388 is the proper vehicle to challenge a prior order based on lack of proper notice)