In Re David H.
CROSKEY, Acting P.J.
Rosalinda E. and Thomas H., the parents of the minor, David H., appeal under
We affirm the court‘s order. The court correctly found it had no jurisdiction to vacate its former order terminating parental rights under
PROCEDURAL OVERVIEW
On June 20, 1990, when David was three weeks of age, a petition was filed to have him declared a dependent child of the juvenile court under
On June 1, 1992, a disposition hearing was held, and the minor was ordered removed from the custody and control of the parents under
On August 19, 1993, the father filed a motion to set aside the order of May 11, 1993, alleging he had agreed not to contest that order, based upon fraudulent misrepresentations made to him by the Reillys and DCS concerning the fitness of David‘s prospective adoptive parents. The mother joined in
FACTUAL BACKGROUND
The minor David H. was born on May 29, 1990, and was removed from the custody of his mother, Rosalinda E., approximately three weeks later, on June 20, 1990, owing to the mother‘s chronic mental condition, which rendered her unable to care for him. The mother had four other children, who were being cared for by her parents. The grandparents expressed a willingness to have David placed with them for a six-months’ trial period, but doubted they would be able to care for him. David was therefore detained in shelter care, and at some point, placed in the licensed foster home of Gerald and Kelly Reilly.
David was not formally adjudicated a dependent child of the juvenile court until February 5, 1992, and was not formally ordered to be removed from his parents’ custody and control under
While David was in placement, the mother was repeatedly hospitalized and visited David only infrequently. The father was a full-time student, was
At the selection and implementation hearing, held on May 11, 1993, the mother did not appear. The father appeared on March 25, 1993, the date originally set for the hearing, and stated he would not contest termination of his parental rights. He stated he was content to have David adopted by the Reillys, who were agreeable to maintaining contact with the birth parents. The father did not appear at the May 11 hearing.
The court admitted the social worker‘s report into evidence at the hearing. That report had the following to say about the prospective adoptive parents: “The prospective adoptive parents have been married for 7 1/2 years. They dated for 3 years prior to their marriage but describe their relationship as one in which they instantaneously became ‘soul mates‘. They are a family oriented couple and spend a lot of time with extended family members and friends. They enjoy travelling and maintain an active lifestyle. The adoptive father works as a self-employed contractor and he enjoys his work immensely. The adoptive mother works part time as a professional photographer and spends the remainder of her time caring for the minor. The family is financially stable and they live in a four bedroom home in a quiet residential neighborhood.... The prospective adoptive parents have demonstrated that they are committed as a couple and family to meet David‘s needs in every way. They have made a point of involving him in activities and providing him with an environment in which he can grow socially, physically, intellectually and emotionally.... The prospective adoptive parents are firm in their commitment to providing the minor with a loving, stable and nurturing home environment in the hope that he will be better able to realize his potential. They love him dearly and cannot picture their life without him. It is in all likelihood that adoptive placement papers will be signed when parental rights are terminated.”
When the social worker filed the above report, she knew it to be materially false, for on May 6, 1993, Kelly Reilly had informed the social worker that the Reillys were having serious financial difficulties because Gerald refused to work, and further, these financial troubles were straining their
Subsequent investigation uncovered even worse news. The Reillys had recently filed for their second bankruptcy in 10 years. In addition, Gerald Reilly‘s children from his first marriage reported that he was an alcoholic, who had physically abused their mother, sexually molested the daughter from the age of four years to the age of seventeen, had an affair with one or more fifteen-year-old girls, and engaged in bizarre behavior, including holding his family hostage in their living room at gunpoint on one occasion until his son, Mark, was able to escape through a window and summon help from a neighbor. That same son reported that he later murdered his girlfriend by strangling her in the same manner he had seen his father strangling his mother.
After learning the truth about the Reillys, DCS filed a petition under
A motion to vacate the termination order was filed on the father‘s behalf on August 13, 1993. The mother joined in that motion. At the hearing on the motion, David‘s counsel stated that he agreed the termination order should be vacated, and David‘s legal status should be conclusively resolved. On November 16, 1993, the court denied the motion, finding it had no jurisdiction to vacate its order under
CONTENTIONS
Both parents contend the order terminating their parental rights under
1. Overview of Applicable Statutes.
(1) “Maintenance of the familial bond between children and parents — even imperfect or separated parents — comports with our highest values and usually best serves the interests of parents, children, family, and community.” (In re Kieshia E. (1993) 6 Cal.4th 68, 76 [23 Cal. Rptr.2d 775, 859 P.2d 1290].) However, when parents provide so inadequately for their children that the children must be removed from their homes, and the parents fail to overcome such inadequacies after reasonable assistance by public agencies, the state‘s interest shifts from preserving the family to providing a stable, permanent alternative home for the children. (In re Marilyn H. (1993) 5 Cal.4th 295, 306-307 [19 Cal. Rptr.2d 544, 851 P.2d 826].)
Under California‘s current dependency scheme, the process of removing children from families which fail them and the process of placing them in new homes are overlapping, yet distinct, processes, which go forward in three distinct stages. An overview of the statutes which govern each process will assist in evaluating the parents’ claims in this case.
a. Severance of Ties With Natural Parents.
As recently described by the Supreme Court, dependency proceedings which involve removal of a child from his or her home include four phases: jurisdiction, disposition, reunification and implementation of a permanent plan. (In re Matthew C. (1993) 6 Cal.4th 386, 391 [24 Cal. Rptr.2d 765, 862 P.2d 765].) The last phase, implementation of a permanent plan, begins with a determination that the parents are, and are likely to remain, unfit to care for the child. This determination may be made either at the hearing respecting removal of the child from parental custody under
If the court finds by clear and convincing evidence at one of the above hearings that the parents are unfit, and the child cannot be returned to them, the court does three things. First, it orders that reunification services be terminated (
(2) A determination whether the child is adoptable is made at the selection and implementation hearing under
The present existence or nonexistence of a prospective adoptive parent — that is, a person who has filed or intends to file a petition to adopt the child (
If the child is found by clear and convincing evidence to be adoptable, an order is entered terminating the parents’ rights of custody and control of the child. Once such an order is made and is final, it is binding upon the child, the parents and all persons who had notice of the hearing, and the court has no power to vacate or modify it. (
b. Identification and Selection of an Adoptive Home.
Efforts to identify an adoptive placement for a child begin as soon as the court determines the child cannot be returned to his parents’ home within the
As we have observed above, if the court finds at a hearing under
In selecting an adoptive home for a child who has been freed under
After an order terminating the natural parents’ rights is final, a petition for adoption may be filed either in the juvenile court or in the superior court. However, a hearing on the petition can be held only after the natural parents’ rights have been terminated, and the parents’ appellate rights are exhausted. (
The child‘s adoptive placement is determined under laws in the Family Code which govern adoption. These statutes govern adoptions of both dependent children who have been freed for adoption under
If a parent voluntarily relinquishes a child for adoption, the adoption statutes provide for choice by the birth parent of an adoptive home for the child. (
The above statutory scheme establishes a clear time limit within which the parents of dependent children of the juvenile court must become able to assume responsibility for their children, or their parental rights will be extinguished. The statutes also make clear that, once extinguished under
2. The Motion to Vacate the Termination of Parental Rights Was Properly Denied.
The parents contend that, in two ways, the order terminating their parental rights was the product of fraud. First, they claim they were induced to acquiesce in termination of their rights, based upon false representations by the Reillys and David‘s social worker that David would be adopted by a stable and loving family, who would allow them a continued relationship with David. They contend they would have contested the petition if they had known the truth, and that they were effectively deprived of the opportunity to do so by the misrepresentations. Secondly, the parents claim they are entitled to relief from the order because, in making it, the court relied upon misrepresentations in the social worker‘s report, which was admitted into evidence.
a. Fraudulent Inducement to Acquiesce in Order Terminating Parental Rights.
(3a) The claim that the parents were induced by intentional misrepresentations by the Reillys and DCS to forego a contested hearing on the issue of termination constitutes a claim of extrinsic fraud. (4a) A court always has inherent equitable jurisdiction to vacate a judgment or order that was obtained through extrinsic fraud. (Westphal v. Westphal (1942) 20 Cal.2d 393, 397 [126 P.2d 105]; In re Marriage of Stevenot (1984) 154 Cal. App.3d 1051, 1061 [202 Cal. Rptr. 116]; Baske v. Burke (1981) 125 Cal. App.3d 38, 43-44 [177 Cal. Rptr. 794].) (3b) This is no less true of an order under
Extrinsic fraud is fraud which prevents a fair adversary hearing and deprives a party of an opportunity to present his claim or defense to the court. (Weitz v. Yankosky (1966) 63 Cal.2d 849, 855 [48 Cal. Rptr. 620, 409 P.2d 700]; Westphal v. Westphal, supra, 20 Cal.2d at p. 397; see generally, 8 Witkin, Cal. Procedure (3d ed. 1985) Attack on Judgment in Trial Court, §§ 204-206, pp. 602-606.) (4b) To be entitled to relief from a judgment on the ground of extrinsic fraud, a party must show he or she had a meritorious defense, which would have been raised but for the other party‘s wrongful conduct (Page v. Insurance Co. of North America (1969) 3 Cal. App.3d 121, 130 [83 Cal. Rptr. 44]; see generally, 8 Witkin, Cal. Procedure, supra, Attack on Judgment in Trial Court, § 216, p. 620), and also must establish all of the elements of fraud (Zander v. Texaco, Inc. (1968) 259 Cal. App.2d 793, 805-806 [66 Cal. Rptr. 561]; see generally, 5 Witkin, Cal. Procedure, supra, Pleading, §§ 828-829, pp. 273-275), which include an intentional or reckless misrepresentation and justifiable reliance on the
(3c) David‘s parents have not attempted to establish that they had a meritorious defense to termination of their rights. One doubts they could successfully do so, given the mother‘s ongoing mental illness, the father‘s inability or unwillingness to provide a home for David, and both parents’ meager contact with their child. However, we shall assume for the sake of argument that the parents had at least a colorable defense.9
Even making this assumption, the parents’ claim of fraud must fail. As we have observed, when parental rights are terminated under
In any event, the record indicates the parents were informed that there was no guarantee David would be placed with any particular family. The social worker‘s report prepared for the selection and implementation hearing, a copy of which was presumably furnished to each parent, stated only that David would “in all likelihood” be adopted by the Reillys. No promises were made. Further, on March 25, 1993, the date originally set for the selection and implementation hearing, the court observed that an adoption study had not been finalized, and granted a request by the mother‘s attorney to continue the hearing pending completion of the study. It does not appear from the record that an adoption study had been completed by the May 11, 1993, hearing. Nevertheless, neither parent‘s attorney objected to entry of the order terminating rights. Neither parent personally appeared at that hearing. Under these circumstances, there was no basis for justifiable reliance upon any representations concerning David‘s adoptive placement, hence there can be no claim of extrinsic fraud, such as would justify vacating the order.
(5a) The parents next claim the termination order is fatally infected because, in making it, the court relied upon false evidence in the social worker‘s report. This amounts to a claim of “intrinsic fraud.” (6) However, “intrinsic” fraud, which includes the presentation of false evidence in the proceedings, is not a basis for equitable relief from the resulting judgment. (Westphal v. Westphal, supra, 20 Cal.2d at p. 397; Adoption of Bonner (1968) 260 Cal. App.2d 17, 22 [66 Cal. Rptr. 812]; see generally, 8 Witkin, Cal. Procedure, supra, Attack on Judgment in Trial Court, §§ 221-222, pp. 625-627.)
(5b) In any event, the challenged misrepresentations related to matters that are not crucial in a hearing respecting termination of parental rights. As we have observed, the sole issue at the selection and implementation hearing is whether the child is adoptable (
Here, the record does not indicate any facts that would have made David unlikely to be adopted. Indeed, he appeared highly adoptable, for it was reported that David was healthy, developing normally, and performing above average for his age at the time of the selection and implementation hearing. Based upon this assessment of David, there would have been no legal basis for a permanent plan other than adoption, regardless of any assessment of the Reillys.
c. Right to Rescind Acquiescence in Termination of Parental Rights.
(7) In concluding it had no jurisdiction to vacate the order terminating parental rights, the court relied upon In re Ronald V., supra, 13 Cal. App.4th 1803 (Ronald V.). In that case, a mother acquiesced in termination of her parental rights on the understanding that the anticipated adoptive father — a former boyfriend of the mother — would allow her an ongoing relationship with the child. However, the prospective adoptive father died before the adoption took place. The mother thereafter petitioned the court under
The discovery of the true circumstances of the Reillys in this case can hardly be characterized as a “change” of circumstances. Nevertheless, we hold that the same principles which precluded modification of the order in Ronald V. also preclude vacation of the order challenged here, despite the different facts of this case.
Initially, we must reject the parents’ effort in their briefs to characterize their acquiescence in termination of their rights as the equivalent of a voluntary relinquishment of David for adoption. Because the parents acquiesced to termination in reliance upon intentional misrepresentations, they contend they are entitled to rescind their acquiescence and have a contested termination hearing. But a termination of parental rights under
Nor can we imagine any reason in policy why parents should have, or should be able to bargain for, such a right. Parents whose children are the subject of a hearing under
Parental rights are terminated because (1) the parents have been found so derelict in their duties to their children, or so unable to fulfill those duties,
As a general matter, it would be inimical to the policies underlying the juvenile court law to allow parents to raise a collateral challenge to an order terminating parental rights on the ground that the child‘s posttermination placement did not meet with the parents’ expectations. Such relief is not available, whether the parents’ expectations were not met because of an uncontrollable turn of fate (Ronald V., supra, 13 Cal. App.4th at pp. 1805-1806) or for any other reason, including intentional misrepresentations concerning the potential placement. (
3. The Order Terminating Reunification Services Was Correct.
(8) The father next contends the court prematurely and unlawfully ordered a hearing under
In any event, the order setting the selection and implementation hearing was correct. The father‘s challenge to the order is based upon section
What the father neglects to mention in his argument to us is that David was first physically removed from his parents’ custody on approximately June 20, 1990, and he remained outside of their custody continuously from that time until the challenged order was entered, a period of two years, five months and ten days. After that length of time, the court was required by other statutory provisions to set a selection and implementation hearing within 120 days. (
If the child has been removed from his parents’ physical custody,
As a result of the trial court‘s failure to comply with
The two statutory provisions must be construed with reference to whole system of dependency law, so that all parts may be harmonized. (In re Marilyn H., supra, 5 Cal.4th at p. 307; In re Michael G. (1988) 44 Cal.3d 283, 296 [243 Cal. Rptr. 224, 747 P.2d 1152].) We also are required to construe a statute so as to effect the apparent legislative intent and avoid absurd results. (Moyer v. Workmen‘s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230 [110 Cal. Rptr. 144, 514 P.2d 1224].)
The Legislature has determined that a parent who has a child removed for neglect or abuse should be provided with assistance in overcoming the problems that led to the removal. Thus, the dependency scheme generally requires that parents be offered reunification services. However, the Legislature has also recognized that children must not spend their lives in the
Nowhere is it provided that a minimum of 12 months of services is required. To the contrary, the emphasis throughout the statutes is upon setting outside limits to the length of time a child may be kept in foster care before a permanent plan is established. “[O]nce court intervention is determined necessary, children and parents should receive appropriate legal representation, time-limited and clearly focused protective and/or reunification services, and permanency planning at the earliest possible stage for those children who cannot live safely with their family [sic].” (Sen. Select Com. on Children & Youth/ Sen. Bill No. 1195 Task Force Rep. on Child Abuse Reporting Laws, Juvenile Court Dependency Statutes, and Child Welfare Services (Jan. 1988) p. 2, italics added; see also In re Zacharia D., supra, 6 Cal.4th at p. 446.)
It would be absurd and plainly contrary to the legislative intent of prompt resolution of the custody status of children to construe
Parents are not denied due process by the construction of
Here, after nineteen and a half months of preadjudication detention, four additional months before a formal dispositional order, and six months (less two days) in which reunification services were provided, the juvenile court could reasonably find by clear and convincing evidence, as it did, that the length of time for which services were offered was reasonable. It was thus within the court‘s discretion to terminate services, based upon that finding and its additional finding that it would be detrimental to David to be returned to his parents’ custody.
In sum, after David had spent two and a half years — all but three weeks of his life — in foster care, due process did not require him to await further efforts in his parents’ behalf before those charged with his care could focus their efforts upon David‘s increasingly urgent need for a secure home. The order setting a hearing under
DISPOSITION
The order of November 16, 1993, which denied the parents’ motion to vacate the order of May 11, 1993, which terminated their parental rights, is affirmed.12
Kitching, J., and Aldrich, J., concurred.
Notes
Section 366.26 has since been amended to add a new subdivision (e) before former subdivision (e) (Stats. 1994, ch. 1007, § 2), and former subdivisions (e) through (k) are now subdivisions (f) through (l), some of which have undergone internal amendments. Former subdivision (h) is unchanged, but is now renumbered as subdivision (i).
Throughout our analysis, we shall use the current designations of all applicable statutes and subdivisions, but shall refer to earlier designations where necessary for clarity in factual or historical references.