In re F.A., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. C.B., Defendant; H.S. et al., Movants and Appellants; V.M. et al., Movants and Respondents.
No. G051494
Fourth Dist., Div. Three
Oct. 9, 2015
241 Cal. App. 4th 107
COUNSEL
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
Grace Clark, under appointment by the Court of Appeal, for Movants and Respondents.
Nicole Williams, under appointment by the Court of Appeal, for Minor.
OPINION
IKOLA, J.—Six days after F.A. (F.) was born exposed to methamphetamine, she was placed with Mr. and Mrs. S. (the S.s), foster parents who hoped to adopt her. Unfortunately, when F. was almost seven weeks old, the Orange County Social Services Agency (SSA) removed F. from the S.s’ care, mistakenly believing exigent circumstances required the removal, and immediately placed the baby with Mr. and Mrs. M. (the M.s), who were also foster parents who hoped to adopt her. When SSA realized its mistake and decided to re-place F. with the S.s, the M.s filed a grievance, which kept F. in the M.s’ home during the grievance process. The S.s and the M.s filed competing
On appeal, the S.s contend (1) this appeal should be treated as a writ petition, (2) SSA should have returned F. to the S.s before the M.s could file a
We find no merit as to the S.s’ first four contentions, but conclude that what happened to the S.s was wrong, and potentially could have been prevented had regulations and policies been in place allowing the foster parents to promptly challenge the grounds for removal before SSA placed the child with another couple. We nevertheless conclude the court did not abuse its discretion under the difficult circumstances presented, and accordingly affirm the court‘s orders. We decline to offer the requested guidance on how to avoid similar occurrences in the future. Having determined the court did not abuse its discretion in this case, any such guidance would amount to an advisory opinion and would potentially violate the separation of powers doctrine.
FACTS
In August 2014,2 F. was born exposed to methamphetamine and placed in protective custody.3 Six days later, SSA placed her with the S.s. Within three weeks, the S.s informed SSA they wished to adopt F.
On October 2, at Children‘s Hospital of Orange County (CHOC), a social worker removed F. from the S.s’ care and terminated the placement because of concerns regarding the S.s’ behavior at the hospital, including their alleged resistance to having F. hospitalized.4 A child abuse investigation was commenced against the S.s based on allegations they refused to follow medical instruction.
The next day, on October 3, the S.s attempted to meet with SSA, but the SSA supervisor was unable to speak with them. Three days later, on October 6, the S.s met with SSA and asked for an explanation of what they had done wrong. SSA merely advised the S.s “they were not considered matched for adoptive placement and [had only been] asked to [provide] short term” placement for F.
That same day, SSA placed F. with a new foster family, the M.s. The M.s were selected as an adoptive match for F. and their home had been approved for adoptive placement.
Also on that same day, SSA interviewed the S.s as part of the child abuse investigation against them. The S.s provided documentation and a chronology of events. In September, they took F. to a pediatrician and expressed their concerns that F. “was having tremors, mild seizures and difficulty feeding.” The pediatrician believed these were symptoms of methamphetamine withdrawal. The S.s were concerned that F.‘s symptoms might indicate a more serious condition, so they took F. to CHOC. A CHOC neurologist recommended several tests for F., which could be done by individual specialists or could be expedited by having F. admitted to the hospital so all the tests could be done in one day. The next day, the S.s took F. to the hospital for the expedited tests. They were told an MRI was scheduled for the next day. Because F. was crying inconsolably and unable to sleep at the hospital, the S.s asked if they could take the baby home and return the next day for the MRI and more tests. The emergency room doctor replied if they went home, the baby would die. Mr. S. explained to the doctor that the reason for the hospital admission that day had been for F. to be watched and evaluated and undergo tests. The S.s contacted one of their referring CHOC doctors, who explained that if F. were checked out of the hospital, the referrals to specialists would be delayed. The S.s then understood the rationale for keeping F. at the hospital and agreed to do so. In short, the S.s denied wanting to leave the hospital against medical advice. The S.s stated they were “blindsided” when the social worker entered F.‘s hospital room that day and told them the placement was being terminated and they had to leave the hospital. Before the S.s could talk to the social worker, hospital security escorted the S.s out of the building.5
Three days later, on October 10, SSA informed the S.s “the matter did not qualify for a grievance review due to the placement ending for exigent circumstances.” In October, the S.s posted an online request for donations toward legal fees to obtain F.‘s return to them. The S.s “lodged a complaint against” SSA.
On November 7, a social worker met with the M.s to advise them of SSA‘s decision to re-place F. with the S.s. The M.s were given a “seven day notice for the child‘s removal.” Six days later, on November 13, the M.s filed a grievance requesting that F. remain in their care. California‘s State Department of Social Services (CDSS) policies mandated that F. remain with the M.s pending the decision on the M.s’ grievance, unless the child was in immediate danger.
At a court hearing on November 24, the court continued the matter “to allow [the M.s‘] grievance hearing to be completed.” The court also scheduled a
On December 5, the grievance officer at the M.s’ grievance hearing determined F. should not be removed from the M.s, because SSA “presented documentation and testimony that the [M.s] are a loving family who [have] done nothing but love and care for [F.] in an appropriate manner. [SSA‘s] proposed removal of [F.] from the [M.s‘] home is not based on any concern regarding risk to the child or the care that the child is receiving in the home.”
On December 11, SSA‘s chief deputy director overruled the grievance officer and denied the M.s’ grievance request, making the “final decision” that F.‘s best interests would be promoted by her return to the S.s and their two sons, with whom F. had formed bonds and from whose home she had been “imprudently removed.”
At a hearing on December 11, the court stated that both parties had filed
SSA‘s December 17 report recommended F. be returned to the S.s and that the M.s’
On December 19, the court stated the parties and their counsel lacked standing to receive SSA‘s report. The court found each party‘s
At the January 7, 2015 hearing, the court stated it agreed with SSA that the families could “appropriate[ly]” receive copies of SSA‘s report. The S.s
In a January 15, 2015 letter to the judge, the S.s stated the M.s were not their enemy and the S.s had made a decision not to “‘fight’ against them.” The S.s wished to avoid being pitted against the M.s, in a way that would require them “to point out their flaws, exploit their vulnerabilities and question their decency,” since the M.s did “not deserve to be accused or have their good name and reputation questioned or slandered” as the S.s had experienced during the erroneous termination of F.‘s placement with them. Nor was fighting the M.s in F.‘s best interests. Because SSA agreed F. was improperly removed from their home, the S.s requested to release their retained attorney. The S.s did not desire to call any witnesses or to cross-examine any of the M.s’ witnesses. The S.s opined SSA had the jurisdiction to re-place F. with them. The S.s believed that “allowing this situation to continue any longer is not in [F.‘s] best interest and we ask for closure and a swift conclusion to this case.”
At the January 21, 2015 hearing, the court continued the hearing for another week due to the unavailability of F.‘s attorney. The court relieved counsel for the S.s at the S.s’ request.
At the January 28, 2015 hearing, the S.s spoke first, after the court stated it had read the many letters of support submitted by the S.s, which showed how active they were in church activities and volunteer work. The S.s have two biological sons (then six and three years old) and many pets. Mr. S. owned his own company and had a flexible schedule. Mrs. S. stayed home full time, had coordinated Mothers of Preschoolers for many years, and led the children‘s ministry program at the family‘s church. Prior to staying home with her children, Mrs. S. was a full-time elementary school teacher and also had experience in special education. She has a master‘s degree in education with an emphasis on brain research in children. The S.s had fostered 14 children under the age of three. The S.s expressed some concern about whether F. was meeting developmental benchmarks or might be delayed due to her prenatal exposure to drugs. The S.s were “strongly in favor” of continuing a relationship with the M.s if F. were placed with them.
The M.s spoke next. When F. was placed in their home, Mrs. M. took a 13-week leave of absence from her marketing job to care for the child 24 hours a day. Upon Mrs. M.‘s return to work, her parents provided care for F.
Both families stated that, if they were chosen to adopt F., they were ready to meet the challenges that might arise from her prenatal exposure to drugs, although Mr. M. stated they “really [did not] foresee too much of the bad right now.”
The social worker testified that her personal professional opinion was that F. should remain with the M.s because F. was receiving adequate care in that home and had shown significant improvement in her health and development. The social worker was mindful that F., as a child born exposed to drugs, was likely to experience developmental delays. F. appeared to be bonded with the M.s. County counsel had informed the social worker that SSA‘s executive director had deferred her “best interest” analysis to the social worker; however, SSA‘s executive director had not directly confirmed this with the social worker.
County counsel argued that SSA‘s official recommendation was to return F. to the S.s.
The court took the matter under submission. Pending the issuance of its final order, the court continued the S.s’ weekly 10-hour visitation with F.
On February 10, 2015, the court rendered a written decision denying the S.s’
DISCUSSION
This Case Should Proceed as an Appeal, Not as a Writ
This court has already summarily denied the S.s’ substantively identical petition for writ of mandate in case No. G052017. (H.S. v. Superior Court (June 8, 2015, G052017), petn. den.) In their opening brief on appeal, the S.s argue that, if they “are to obtain any relief, this appeal must proceed quickly.” And, indeed, we have expedited this case, as we do all juvenile dependency cases. Practically speaking, this case could not have been handled any more quickly by this court.
F. recently celebrated her first birthday and has now been in the M.s’ care for over 11 months. In their reply brief, the S.s express frustration that the M.s’ counsel delayed in filing the M.s’ respondent‘s brief on appeal, but that brief was filed only six days late. The S.s state they “understand what the passage of time did, what they want is a solution. Even if [F.] is not returned to them, they do not want this to happen to any other foster family or foster child.”
SSA Followed CDSS Rules by Keeping F. in the M.s’ Home Pending a Final Decision on the M.s’ Grievance
The S.s contend SSA should have returned F. to them before the M.s could file a grievance.7 But SSA was prohibited from doing so by the regulations set forth in California‘s Child Welfare Services Manual of Policies and Procedures (CDSS Manual).8 Under CDSS Manual, section 31-440.1, the M.s were entitled to “at least seven calendar days’ advance written notice of intent to remove a child, and of the right to request a grievance review.” CDSS Manual, section 31-020, part 7 mandated that, because F. was not in “immediate
The Court Did Not Abuse Its Discretion by Continuing the Hearing Four Times After December 11
The S.s contend the court abused its discretion by granting four continuances after December 11—i.e., after the date when the M.s’ grievance process had been completed and SSA had made a final decision to re-place F. with the S.s.
“Continuances are discouraged in dependency cases.” (In re Giovanni F. (2010) 184 Cal.App.4th 594, 604.) Nonetheless, upon request of counsel for the minor or petitioner, the court may continue a hearing unless a continuance would be “contrary to the interest of the minor. In considering the minor‘s interests, the court shall give substantial weight to a minor‘s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.” (
The two months between the December 11 continuance and the court‘s final February 10, 2015 orders constituted over a third of F.‘s young life at that time. It is unfortunate that the court first appropriately ruled that the M.s and the S.s, as nonparties, could not receive copies of SSA‘s report, but then decided three weeks later, at SSA‘s urging, that the couples could receive the report, resulting in another two week continuance, over the S.s’ objection, to allow the M.s’ counsel to read the report.
Nonetheless, the court did not abuse its broad discretion. The court expressed several times its intent and concerted effort to expedite the process, stating as early as December 19 it was trying very hard to minimize delay and apologizing for any delays for which it was responsible, but also recognizing its duty to decide whether F‘s best interest would be served by placing her with the M.s or with the S.s. The court‘s reason for each respective continuance was neither arbitrary nor capricious.
Court Authority and SSA Discretion
The S.s contend the court was authorized to review SSA‘s placement decision to return F. to the S.s’ home only for an abuse of discretion. They argue SSA‘s decision was not an abuse of discretion. They conclude the court erred by ruling F. could not be moved from the M.s’ home, even after
On December 11, the M.s’ grievance process had been completed and SSA had determined it was in F.s’ best interests to be re-placed with the S.s. According to the court‘s comments on that date, both the S.s and the M.s had filed
At the evidentiary hearing on the
After a court has terminated parental rights and referred the child to an agency for adoptive placement, the agency “has the sole authority to determine such placement, subject only to judicial review for abuse of discretion.” (Department of Social Services v. Superior Court (1997) 58 Cal.App.4th 721, 724 (Social Services).) This is because, in subdivision (j) of
In Lauren R., supra, 148 Cal.App.4th 841, we held that a different subdivision of
In contrast to
We Urge CDSS and SSA to Consider Whether New Procedures Should Be Adopted for the Protection of Foster Parents When Children Are Removed from Their Care Under Perceived Exigent Circumstances
The S.s request that we find that “what happened in this case should not have happened and give trial courts and attorneys guidance on how to proceed with similar issues that are likely to repeat themselves, so other families and children are not put through a similar litigation.” They “understand the chances of regaining custody of [F.] is remote solely due to the passage of time.” “The S.s respectfully request a remedy be set by this Court so this issue, that has a great potential to repeat itself, does not harm other families or children.”
Recognizing that we review the court‘s orders under the abuse of discretion standard of review, thereby making it unlikely they will achieve a personal remedy, such as the return of F. to them, the S.s request that we address what went wrong here, in the hope of potentially forestalling future heartache for foster parents caught in similar situations. The S.s argue this appeal should not be treated as moot, relying on In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404, which states “a reviewing court may exercise its inherent discretion to resolve an issue rendered moot by subsequent events if the question to be decided is of continuing public importance and is a question capable of repetition, yet evading review.”
We agree with the S.s that this case presents “heart wrenching facts.” The system failed the S.s. Why? Is the system defective, or was it wrongly implemented by the court and/or SSA?
The S.s suggest “the correct remedy” is that F. “should have been immediately returned to the S.s the moment SSA discovered she should not have been removed.” Yet, as discussed above, the CDSS Manual prevented SSA from doing so, because the CDSS Manual guaranteed
The S.s, on the other hand, were denied any accommodations in the immediate aftermath of SSA‘s removal of F. from their care. The following is a chronology of what happened. On October 2, a social worker came into F.‘s hospital room and summarily told the S.s that SSA was forthwith removing the baby from their care, whereupon CHOC security escorted the S. family from the building. On the day after the emergency removal, the S.s sought an explanation of what they had done wrong.10 The SSA supervisor, however, was “unable” to speak with the S.s, nor, apparently, was anyone else at SSA available or authorized to speak with them. Three days later, SSA told the S.s the agency had never approved them as candidates for adopting the child. The next day, F. was released from the hospital, and SSA immediately placed the baby with the M.s., who signed a concurrent planning agreement “indicating their unequivocal desire to adopt” her. Three days later, SSA informed the S.s they were not entitled to lodge a grievance due to the exigent nature of the removal of F. from their care. But, at some point, SSA did begin investigating a child abuse referral against the S.s based on the October 2 events at CHOC. The S.s retained an attorney and lodged a complaint against SSA. Finally, one month after F. was placed with the M.s, SSA determined (1) the agency had wrongly removed F. from the S.s’ home, (2) the situation at CHOC had not been exigent, and (3) if SSA had given the S.s the seven-day notice required in non-exigent circumstances, F. would not have been removed from the S.s’ care.
The system, i.e., the CDSS Manual provisions, do not appear to provide any procedural protections for foster parents from whom a child “in immediate danger” is removed.11 The CDSS Manual specifies that the “county” is not required to provide seven-day notice of intent to remove a child if the “child is in immediate danger.” (CDSS Man., §§ 31-440.2, 31-440.21.) And, when a child is in immediate danger at the time of removal, a grievance review may “not be granted.” (CDSS Man., § 31-020.2; see id., § 31-020.21.)
Apparently, SSA‘s policies, at least as they were implemented here, do not afford any such protections either. Within the first few days after F.‘s removal from the S.s’ care, SSA gave the S.s no chance to articulate a prima facie
When allegations of immediate danger to the child are unfounded, the wronged foster parent suffers, not just the loss of a foster child, but also harm to the foster parent‘s reputation, particularly when a child abuse referral has been lodged against him or her. The problem is compounded when the agency immediately places the child in a concurrent planning home with another family, creating the potential for instant conflict between two families and inevitable heartbreak for at least one family. The child, meanwhile, is caught in limbo between two families for an extended period of time.
The parties have not raised or briefed the issue of the absence of procedural protections for foster parents from whom a child allegedly “in immediate danger” is removed.12 But, the S.s have asked us to afford guidance as to a possible “remedy” which might be advisable in the future. We truly sympathize with the S.s. But we have determined the court did not abuse its discretion in making the difficult decision with which it was tasked. It is not appropriate that we issue an advisory opinion suggesting a remedy for an unknown future case. And under the doctrine of separation of powers, we may not encroach upon SSA‘s own “internal management” (In re Ashley M. (2003) 114 Cal.App.4th 1, 9) or “matters of administrative detail” (Smith v. Board of Education (1946) 76 Cal.App.2d 662, 668). We do suggest, however, that CDSS and SSA consider whether new regulations, procedures, or policies should be implemented to provide some measure of protection for foster parents who suffer the removal of a child from their care under perceived exigent circumstances that turn out to be unfounded.
The court‘s orders are affirmed.
Aronson, Acting P. J., and Thompson, J., concurred.