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In re R.T.

California Court of Appeals, First District, Third Division

January 9, 2015

In re R.T., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
v.
PAULA T. et al., Defendants and Appellants; D.K. et al., Movants and Appellants. In re R.T., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
v.
PAULA T. et al., Defendants and Appellants.

Alameda County Superior Court, No. SJ12019365, Willie Lott, Jr., Judge.

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COUNSEL

Valerie E. Sopher, under appointment by the Court of Appeal, for Defendant and Appellant Paula T.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant David D.

Gorman Law Office and Seth F. Gorman, for Movants and Appellants.

Donna R. Ziegler, County Counsel, and Victoria Wu, Assistant County Counsel, for Petitioner and Respondent.

OPINION

Pollak, J.

Before the court are appeals from proceedings in which the social services agency and the juvenile court disregarded the statutory mandate that preference in the placement of a child removed from the custody of his parents be given to qualified family relatives. Not only was this statutory mandate disregarded, but the parents were denied their right to

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relinquish the child for adoption by relatives without an appropriate assessment of whether relative adoption was in the child’s best interest.[1] Although removal of the child and the parents’ attempt to place him with a relative began shortly after the child’s birth, the proceedings were permitted to extend to the point that the child is now almost two and one-half years of age. The errors reflected in this record compel this court to remand for further proceedings conducted under proper standards, although effective redress may or may not be possible given the passage of time spent with other caretakers and the child’s current best interest. We leave that difficult determination for consideration by the juvenile court on remand.

I. Statement of Facts

Paula T. (mother) and David D. (father) appeal from an order terminating their parental rights and placing their minor son R.T. for adoption (Welf. & Inst. Code, § 366.26), and from an earlier order denying their motion to direct the Alameda County Social Services Agency (agency) to accept their relinquishment of R.T. for adoption by paternal relatives, D.K. and R.K. (aunt and uncle). (Fam. Code, § 8700) Aunt and uncle also appeal. Aunt and uncle join in the parents’ challenge to the rejected relinquishment and also contest an order denying their motion to set aside the dispositional order for failure to apply the statutory preference for placement of a dependent child with relatives. (Welf. & Inst. Code, § 388.)[2] These appeals have been consolidated.

R.T. was born drug exposed to methamphetamine, marijuana, opiates, and benzodiazepines. Days later, on July 31, 2012, the agency filed a juvenile dependency petition. (§ 300.) The petition alleged the parents have a history of drug abuse and domestic violence and recently failed to reunite with another son, Gabriel, who was a dependent child of the court. (§ 300, subds. (b) & (j).)

Gabriel was 16 years old when he was removed from his parents’ home in 2011 and was almost 18 years old at the time of R.T.’s birth. The parents separated when Gabriel was three years old and renewed their relationship years later, when he was a teenager. Gabriel told a social worker that renewal of his parents’ relationship created problems at home. Gabriel was placed with Victoria D., father’s ex-girlfriend with whom he had three children close in age to Gabriel. The agency reported that Victoria had known Gabriel “since he was an infant and had informally cared for him at times throughout his childhood.” The agency deemed Victoria and her husband to be Gabriel’s nonrelated extended family members. (§ 362.7.)

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Over father’s objection, the agency placed R.T. in the home of Victoria and her husband. On the day R.T. was taken from the hospital and placed with Victoria, father told the agency he had a “negative relationship” with her and wanted his son placed with him or a relative. On that day or shortly afterward, father identified two of his sisters (paternal aunts) to be assessed for placement. No later than August 6, 2012, when R.T. was just two weeks old, the paternal aunts requested placement of the child with one of them. By statute, “preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative.” (§ 361.3, subd. (a).) The agency initiated home safety inspections “as per” agency “policies, ” but told the paternal aunts it favored “keeping the child in his current placement.” An agency social worker later testified that the agency never considered the paternal aunts for placement.

On August 13, 2012, the agency filed a report in advance of the jurisdictional and dispositional hearing recommending that R.T. be declared a dependent child and the parents denied reunification services because they failed to reunite with their older son. (§ 361.5, subd. (b)(10).) The agency asked the court to schedule a permanency planning hearing to order adoption, noting that Victoria and her husband were “open to adoption.”

The combined jurisdictional and dispositional hearing was held on August 27, 2012. The agency attorney argued that R.T. was “thriving” with Victoria and should remain in her care with the “specific goal” that he be adopted by her and her husband. The child’s counsel also urged the court to keep R.T. with his brother in Victoria’s home. One of the paternal aunts testified at the hearing that the agency had discouraged her request for placement, but she remained interested in assuming custody of the child and adopting him. Both parents, through their attorneys, urged the court to place the child with one of the paternal aunts. The requests were denied. The court adopted the agency’s recommendations that the parents be denied reunification services because they failed to unite with their older son (§ 361.5, subd. (b)(10)), that placement remain with Victoria, and that a section 366.26 permanency hearing be scheduled. Without waiting for completion of the relatives’ home studies, the court ordered a “permanent plan of placement” with Victoria and her husband.

The paternal aunts’ home inspections were completed by October 2012, when R.T. was three-months old, and their homes approved. The agency refused to consider moving the child from his placement with Victoria and there is no indication in the record that the agency ever evaluated the relatives for placement under the relevant statutory criteria. (§ 361.3, subd. (a).) In late November, when R.T. was four months old, aunt and uncle filed a motion to modify R.T.’s placement, asserting they had been denied

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preferential consideration for placement and expressing their desire for custody and adoption. (ยง 388.) A few days later, the agency filed a report for the permanency planning hearing in which it recommended termination of ...


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