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T.W v. the Superior Court of San Diego County

January 31, 2012

T.W., PETITIONER,
v.
THE SUPERIOR COURT OF SAN DIEGO COUNTY, RESPONDENT; SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, REAL PARTY IN INTEREST.



(San Diego County Super. Ct. No. J516851)

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

CERTIFIED FOR PUBLICATION

PROCEEDINGS in mandate to review an order designating the specific placement of a dependent child after termination of parental rights. Carol Isackson, Judge. Petition granted with directions.

T.W., a minor child, seeks review of a juvenile court order denying the petition of the San Diego County Health and Human Services Agency (Agency) to remove him from the home of his prospective adoptive parent under Welfare and Institutions Code*fn1 section 366.26, subdivision (n). He contends the juvenile court abused its discretion when it determined removal from the home was not in his best interests. The Agency joins T.W.'s petition, asserting the juvenile court did not have jurisdiction to review or override its executive decision under section 16514, subdivision (c), denying T.W.'s placement in the prospective adoptive parent's home.

Here, T.W.'s prospective adoptive father had previously adopted a highly traumatized foster child who was active to the gang suppression unit, had committed an escalating series of violent crimes, and was adjudged a ward of the juvenile court under section 602 in April 2010, before T.W.'s placement. The Agency did not consider the ward's status to present a risk to T.W. until August 2011, eight months after he had been placed in the home of his prospective adoptive parent, and after T.W. was told he was to be adopted. The social worker and her supervisor then determined that section 16514, subdivision (c), which generally prohibits the placement of a dependent child with a section 602 ward, barred T.W.'s placement in the home, and sought his removal under section 366.26, subdivision (n).

We conclude that after a child has been placed in the home of a prospective adoptive parent, the Agency does not have the authority to change the child's placement when an alleged placement violation involves a discretionary determination by the social worker, and is not otherwise mandated by law. Further, although the juvenile court retains its clear grant of authority under section 366.26, subdivision (n), to determine whether removal from the home of the prospective adoptive parent is in the child's best interests, in exercising that authority it must give considerable weight to the statutory prohibition against placement with a section 602 ward, and the public policy against placement in a home in which a family member had a criminal history or substance abuse problem, as well as the social worker's determination the placement is not appropriate.

Here, notwithstanding the juvenile court's finding the testimony of the social workers and their supervisor was "contrived, unsupported, and not credible" concerning their reasons for seeking to remove the child from the home of the prospective adoptive parent, we conclude that the court did not give appropriate weight to the Legislature's goal of securing an adoptive home for a dependent child that is free from the influences of criminal activity and substance abuse, and providing maximum safety and security for the child. Under these circumstances, we conclude the court abused its discretion when it denied the Agency's petition to remove T.W. from the home of his prospective adoptive parent. Accordingly, we grant the petition and direct the juvenile court to review T.W.'s status on an expedited basis, consistent with its responsibility to ensure his adoption is completed as expeditiously as possible. (§ 366.3, subd. (a).)

FACTUAL AND PROCEDURAL BACKGROUND

T.W., now eight years old, has been a dependent of the juvenile court since he was four years old.*fn2 During the reunification period, T.W. had five placements in less than two years. In December 2009, the Agency placed T.W. in the prospective adoptive home of a non-relative extended family member (prospective adoptive mother), and in April 2010 he was freed for adoption. His adoptions social worker, Jaime Hills, said T.W. was a bright, happy child who was thriving in the home of his prospective adoptive mother.

On December 1, 2010, the Agency removed T.W. from the home of his prospective adoptive mother, who had been hospitalized for three weeks and did not contact the social worker to arrange appropriate respite care for T.W. The Agency placed T.W. at Polinsky Children's Center (Polinsky), and then in the licensed foster home of Mr. B. Mr. B. had been a foster parent for 15 years and previously had adopted a foster child, David, who had had a very traumatic background, and been adjudged a ward under section 602 in April 2010, when he was a teenager.

In February 2011, social worker Jaime Hills learned that David was in Juvenile Hall, but did not inquire further about David's circumstances. Hills informed her supervisor, Jorge De La Toba, of David's status. De La Toba was not concerned about T.W.'s placement because David was not in the home at that time. T.W. was doing well in Mr. B.'s home and the placement was stable. T.W. liked living with Mr. B. Mr. B. expressed an interest in adopting T.W. T.W. was very happy in the home and wanted to be adopted by Mr. B.

In early June, adoption applicant social worker Valerie Hills, who had approved Mr. B.'s adoptive home study for David, met with Mr. B. to begin the application process for an updated home study. Mr. B. told her that David was on probation, and they discussed his concerns about David's level of functioning and current gang involvement.

Jennifer Hancock, an adoptions social worker, was assigned the case in June, replacing Jaime Hills. At their first meeting, Hancock and Mr. B. had a disagreement about T.W.'s participation in football camp and the condition of T.W.'s tennis shoes. Mr. B. asked the Agency to assign another social worker to the case. At a meeting on August 1 to resolve the conflict, Mr. B. told Hancock and De La Toba that David was on probation. Hancock and De La Toba consulted foster care licensing, a separate division of the Agency, and learned for the first time of the statutory prohibition against placing a dependent child with a section 602 ward.

On August 4, Hancock and De La Toba filed a petition to remove T.W. from Mr. B.'s home. The petition alleged:

(1) Mr. B.'s 16-year old son, David, was adjudicated a ward under section 602 for assault with a deadly weapon (not a firearm), battery and burglary. Mr. B. did not notify Foster Home Licensing about David's section 602 status. His home has been placed on "hold" for any foster home placements due to David's status;

(2) David had a history of sexually reactive behaviors.*fn3 After Mr. B. adopted David, he took David out of a treatment program for child sexual offenders (STEPS program). To maintain his foster care license, Mr. B. was required to obtain therapy for David and not allow him to share a room with Mr. B.'s foster children. The foster home licensing supervisor, Alicia Rogers, reported that David did not participate in therapy and Mr. B. was not in compliance with the corrective plan;

(3) Mr. B. did not follow through with services for the foster children placed in his home, and would not transport a foster child to therapy every week, requiring the assistance of the social worker on alternate weeks;

(4) T.W. and his foster brother reported that Mr. B. placed them in "lockdown" where they could not leave their bedrooms for two to three days. They were not allowed to play and could only leave their bedrooms when they went on outings with Mr. B.

(5) T.W. and his foster brother had inadequate clothing. In June, T.W. had on a pair of worn tennis shoes with no laces. He said he did not have other shoes. When the foster brother was removed from Mr. B.'s home, Mr. B. provided clothing that was too small for the child and extremely worn. He did not return all of the child's clothing.

When notified of the removal petition, Mr. B. asked Hancock to remove T.W. from his home immediately. Although he telephoned Hancock a short time later to tell her he did not want T.W. removed from his home, T.W. had already been detained at Polinsky. On August 5, Mr. B. filed an objection to removal and a request for status as T.W.'s prospective adoptive parent.

During the first week of August, an investigator with the foster licensing unit investigated the allegation that Mr. B. had placed T.W. and his foster brother in "lockdown" for several days. The investigator reported that T.W. did not describe the disciplinary measures as lockdown, but T.W. said that on one occasion, after he returned home from the Boys and Girls Club, he was restricted to his bedroom. The investigator also spoke to Mr. B. and other foster children who had been placed in the home, but there were no reports of excessive discipline. The investigator determined the report of excessive discipline was inconclusive, which meant there was not sufficient evidence to substantiate the allegation.

On August 16, David was detained in Juvenile Hall on new charges of robbery, burglary, possession of stolen property, willful cruelty to an elder and assault with a firearm. He was later sentenced to a ...


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