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In Re B.C., A Person Coming Under the Juvenile Court Law. v. E.C

January 27, 2011

IN RE B.C., A PERSON COMING UNDER THE JUVENILE COURT LAW.
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, PLAINTIFF AND RESPONDENT,
v.
E.C., DEFENDANT AND APPELLANT; N.D., INTERVENOR AND APPELLANT.
IN RE B.C., A PERSON COMING UNDER THE JUVENILE COURT LAW.
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, PLAINTIFF AND RESPONDENT,
v.
E.C., DEFENDANT AND RESPONDENT; E.O. ET AL., INTERVENERS AND APPELLANTS; N.D., INTERVENOR AND RESPONDENT; B.C., APPELLANT.



APPEALS from orders of the Superior Court of Los Angeles County, Stephen Marpet, Temporary Judge.*fn1 (Los Angeles County Super. Ct. No. CK74820)

The opinion of the court was delivered by: Croskey, Acting P. J.

CERTIFIED FOR PUBLICATION

Order (B219979) is affirmed; orders (B223063) are reversed.

In this dependency case (Welf. & Inst. Code, § 300 et seq.), on the eve of a hearing to terminate parental rights to the minor (Welf. & Inst. Code, § 366.26) and determine whether the child's foster parents should be designated prospective adoptive parents (Welf. & Inst. Code, § 366.26, subd. (n)), the child's mother filed a relinquishment of her parental rights, designating the child's maternal aunt as the person with whom she intended the child to be placed for adoption (Fam. Code § 8700, subd. (f)). Despite having been granted numerous opportunities to visit with the child, the aunt had failed to form a bond with the child, who was quite attached to the foster parents with whom he had spent much of his life. Nonetheless, the aunt, the mother, and the Department of Children and Family Services (DCFS) sought the immediate placement of the child with the aunt, a position which brought them in conflict with the foster parents and the minor. At the hearing, the dependency court apparently believed that its hands were tied by the mother's designated relinquishment. Upon receipt of the official acknowledgement of mother's relinquishment, the court immediately terminated the hearing, and lifted its previous order which had prevented DCFS from removing the child from the foster parents' home without court approval.

In these consolidated appeals, we review three earlier orders of the dependency court, as well as its order lifting its "do not remove" order.*fn1 We ultimately conclude that the court erred in lifting the "do not remove" order without conducting a hearing to determine whether placement with the aunt was " ' "patently absurd or unquestionably not in the minor's best interests." ' " (In re R.S. (2009) 179 Cal.App.4th 1137, 1150.) We also conclude that the court erred in granting mother a continuance of the Welfare and Institutions Code section 366.26 hearing, which had been sought on the basis that mother needed additional time to complete her relinquishment of parental rights.*fn2 Finally, we find no error in the court's summary denial of two Welfare and Institutions Code section 388 petitions (for modification of prior order), which denial is challenged by mother and aunt.

FACTUAL AND PROCEDURAL BACKGROUND

B.C. was born on September 27, 2008. At the time of his birth, his mother was in the custody of a law enforcement agency on a robbery charge, and subject to a mental health hold (Welf. & Inst. Code, § 5150). A DCFS social worker attempted to speak with mother, but mother refused. Mother had no plan for the care of the child while she was incarcerated, and DCFS could discover no relatives of mother. Shortly thereafter, mother was returned to jail, and DCFS placed the minor in a foster home. Throughout this case, the child's father has been unknown.

Mother appeared at the October 1, 2008 detention hearing, but she was not verbally responsive. The court indicated that the issue of the possible appointment of a guardian ad litem would be raised at the following hearing, as it was not clear if mother's muteness was caused by a physical or mental ailment. However, mother was released from jail three weeks after the detention hearing, and disappeared;*fn3 she would not be located again until August of 2009.

In the interim, the minor was adjudicated dependent,*fn4 and ultimately placed in the foster home of Eve O. and Sheri O. (foster parents). The minor was placed with foster parents on February 19, 2009; an adoptive home study had already been approved on their home.*fn5 The minor thrived in the home of foster parents, and strongly bonded with them. There is no suggestion in the record that foster parents' care for minor has been anything but exemplary or that the child does not feel safe, secure and happy in their home.

Although DCFS's efforts to find mother were unsuccessful, some of their contact letters reached mother's relatives. The relatives contacted DCFS, indicating that they had been searching for mother themselves. In early May 2009, mother's sister (aunt) stated that she would like to adopt the minor. Monitored visits were arranged for the child with aunt and members of her family, and a home study was begun. By the time of a June 12, 2009 hearing, DCFS had designated aunt as the prospective adoptive parent for the minor. By this date, the child had been in the home of foster parents for four months and was quite bonded to them. Under the circumstances, minor's counsel requested that DCFS not change the child's placement without first notifying the child's counsel and obtaining a court order. The court agreed, and issued the order. It is the court's subsequent lifting of this "do not remove" order that is the main issue on appeal.

Mother was finally located in August 2009; she was living in a mental health rehabilitation center in Long Beach. By this time, the court had set a Welfare and Institutions Code section 366.26 hearing for August 28, 2009. As mother had been located, she was personally served with notice of the hearing.

By the time of the August 28, 2009 hearing, foster parents had sought de facto parent status*fn6 (Cal. Rules of Court, rule 5.534(e)) and expressed their continued interest in adopting the minor. They presented evidence of the following facts: (1) the minor was continuing to thrive in their care; (2) the minor was deeply bonded to them, and they, in turn, loved him; (3) they were committed to having the minor remain close to, and have continued contact with, his maternal relatives; (4) although all of the maternal relatives had been encouraged to visit with the minor, aunt alone attended the bulk of the visits; (5) although aunt had been encouraged to visit three times per week, over the most recent 14 weeks, aunt visited only 15 times, frequently canceling or simply not scheduling further visits; (6) aunt appeared overwhelmed at the visits, and frequently talked about how stressful the process was, rather than asking about the child or engaging with him; (7) as a result, the child was not comfortable being alone with the maternal relatives;*fn7 (8) at the first visit where the child was to be left alone with the relatives, the relatives phoned the foster parents after 15 minutes, saying the child had been crying inconsolably; he calmed immediately when foster parents picked him up; (9) after that visit, the child would become hysterical when foster parents were out of his sight; (10) the child had since become "unusually clingy" with foster parents, and experienced night terrors on days when he was separated from them; (11) aunt repeatedly stated that she wished DCFS had never found the maternal relatives; and (12) aunt confided to foster parents that although she and her husband planned to adopt the minor, they planned to have mother raise him, if she stayed on her medication.

DCFS, in contrast, still focussed on aunt as the prospective adoptive parent for minor, planning frequent visits to aid in the transition of minor to aunt's home, and planning for aunt and her husband to participate in family therapy, including "attachment therapy." DCFS appeared concerned with minor's "identity development," and his future desire to know about his origins - something believed to be a lifelong issue for all adopted children. It was DCFS's position that adoptive placement with aunt was in his best interests, as any short-term detriment he would suffer by being removed from foster parents would be less severe than the lifelong detriment he would experience by being adopted by non-relatives.*fn8

The court continued the Welfare and Institutions Code section 366.26 hearing to September 25, 2009. The court indicated that the issue of whether minor should be replaced in aunt's home would be considered at that hearing.

Despite the fact that the court indicated the issue of whether minor should be replaced would be considered at the continued hearing, aunt nonetheless filed a Welfare and Institutions Code section 388 petition seeking that replacement. Mother also filed a section 388 petition, arguing that the dependency court erred in failing to appoint a guardian ad litem for her at the initial hearing, an error which she argued required setting aside all orders (including the adjudication of dependency) and proceeding again de novo. Mother argued that, since the proceedings should begin again de novo, the minor should be placed with aunt under the relative placement preference.

At the September 25, 2009 hearing, evidence was presented regarding additional visits between minor and the maternal relatives. Although foster parents believed minor was starting to become more comfortable around some of the maternal relatives, they stated that there was no evidence that he could be left with them for more than 30 minutes or that separation from them would not constitute a major trauma. DCFS agreed that minor still needed comforting at the visits and that he "was inconsolable at times." Faced with this evidence, the dependency court decided to appoint an expert for a bonding study.*fn9 Given that the court would be considering the issue of placement after the bonding study, the court denied the section 388 petitions as "superfluous."

The court appointed Lynda Doi Fick, M.A., M.F.T. to prepare a bonding study. The case was continued to December 10, 2009 for a contested hearing--first on the issue of possible replacement, then the Welfare and Institutions Code section 366.26 hearing. Both mother and aunt appealed from the denial of their Welfare and Institutions Code section 388 petitions.

The bonding study report is 51 pages long, and was based on interviews with the foster parents, aunt, aunt's husband, aunt's father, and child's babysitters. Fick observed the child alone, with the foster parents, with aunt, with aunt's husband, and with aunt's parents.*fn10 She reviewed the visitation logs, DCFS reports, and other documentation. The report ultimately concluded that the child: (1) had a bonded and secure attachment with his foster parents; (2) had an "insecure" attachment to aunt and her husband; and (3) had no attachment at all to the maternal grandparents. According to Fick, the interaction between child and the aunt and her family seemed "unusual given the duration of their visit plan." After speaking with the child's babysitters, as well as making her own observations of the child with her alone, Fick concluded that the child "does . . . have the ability to effectively transfer to others and has exhibited appropriate adaptive skills." However, the child's distress when observed with aunt and her family indicated that "[i]t is likely that [the minor] associates negative experiences with the maternal family's caretaking or distressful events occurring during prior visits. He does not appear to trust their care and will not accept sustained comfort from them." The therapist concluded that the visits with aunt and her family were not frequent and consistent enough to produce a level of trust "required to assume a custodial role." She recommended a visitation plan with frequent and consistent visits - at least three one-hour visits per week. She concluded that, at the time of the report, "it would be detrimental to change [the minor's] placement as he does not demonstrate the necessary adaptive skills or strength in attachments with his family to support an effective custodian exchange. He would potentially experience the loss of the ability to form effective attachment to others later in life if the Court were to interrupt this valuable attachment process. [¶] He has formed insecure and disorganized attachments . . . [to his maternal aunt and her husband]. These attachments do not indicate a readiness for them to assume the role as primary caretakers."

After receiving the report, DCFS continued to recommend replacing the child with the aunt and her family. DCFS believed that the attachment concerns raised by the bonding study could be mitigated by "attachment-based therapy." At the December 10, 2009 hearing, the court ordered that visits with aunt and her family be monitored by foster parents. ...


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