San Diego Cnty. Health & Human Servs. Agency v. S.N. (In re A.K.)

In re A.K., a Person Coming Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTHAND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. S.N., et al., Objectors and Appellants.

D074207

D074675

D074844

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

January 8, 2019

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. J519469)

APPEALS from an order of the Superior Court of San Diego County, Ana L. Espana, Judge. Proceedings for extraordinary writ relief under Welfare and Institutions Code section 366.28, Edlene C. McKenzie, Judge. Appeals dismissed. Petitions denied and stay lifted.

Emily Uhre and Leslie A. Berry, under appointment by the Court of Appeal, for Defendant and Appellant S.N. Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant Sharon N.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa Maldonado, Deputy County Counsel for Plaintiff and Respondent.

Jamie A. Moran, under appointment by the Court of Appeal, for minor.

These juvenile dependency appeals and related petitions for extraordinary writ review under Welfare and Institutions Code section 366.28, subdivision (b)(1)¹ involve the efforts by two-year-old A.K.'s paternal grandmother, Sharon N., and paternal aunt, S.N., to prevent her adoption by her long-term caregivers and de facto parents, and to gain placement of the child with them.

In her appeal, which S.N. joins, Sharon asserts that the San Diego County Health and Human Services Agency (Agency) and juvenile court did not adequately comply with the notice requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901, et seq.). In her initial petition for writ review, S.N. asserts that reversal of the juvenile court's order denying her and Sharon placement is required because the Agency failed to adequately search for A.K.'s paternal relatives throughout the dependency. In her initial petition, Sharon argues the juvenile court improperly imposed restrictions on the paternal relatives' access to the juvenile court file on appeal, which, she contends, requires reversal of the denial of her section 388 petition seeking placement of the minor.In the third petition, Sharon and S.N. challenge an order denying their subsequent section 388 petition seeking video visitation with A.K.

We reject these challenges, dismiss Sharon and S.N.'s appeals for lack of standing, lift the stay imposed by this court when the first petitions for extraordinary writ review were filed (D074675) and deny those petitions, and dismiss the subsequent petitions for extraordinary writ review (D074844).

PROCEDURAL AND FACTUAL BACKGROUND

A.K. tested positive for methadone at birth in November 2016 and shortly thereafter was taken into protective custody as a result of her parents' drug use and domestic violence. Her parents failed to reunify with her and their parental rights were terminated on February 20, 2018. That day, A.K. was freed for adoption and the court granted her foster and de facto parents prospective adoptive parent status under section 366.26, subdivision (n).² A.K. was placed with her prospective adoptive parents at three weeks old and is currently awaiting the finalization of her adoption by them.

After the termination of his parental rights, A.K.'s father, Casey K., appealed, asserting ICWA notice was not properly given based on A.K.'s mother's claims of NativeAmerican ancestry. This court rejected the challenge and affirmed the termination of his parental rights in an unpublished opinion issued on August 16, 2018. (In re A.K. (Aug. 16, 2018, D073572).) Before that opinion was issued, in May 2018, Sharon and S.N. came forward for the first time and asked the Agency to place A.K. in their shared home. On May 22, 2018, they submitted petitions for modification under section 388, asserting they had just learned that A.K. was in foster care. In the petitions, Sharon and S.N. explained they had lost contact with Casey several years earlier and did not know that Casey had a young daughter or that he had been in prison for over a year. They stated they had only established communication with him a month before their petitions were filed, when they learned for the first time of A.K.'s existence and that Casey and the child's mother did not have custody.

The juvenile court set a hearing on the petitions for June 12, 2018. In the Agency's response, filed 10 days after Sharon's first contact, it notified the court that Sharon wanted placement of A.K. and it had already begun the process of evaluating her home. The Agency's filing also indicated that A.K.'s prospective adoptive parents were concerned about their confidentiality because Sharon and S.N. had submitted confidential information to the court from A.K.'s medical provider. On June 1, 2018, Sharon and S.N. submitted additional modification petitions asserting the Agency had acted improperly by failing to locate them and again requesting placement of A.K. The Agency's response to the new petitions stated that Casey had not provided any information concerning his relatives, but that "a relative search was completed in December 2016 through the database. The paternal grandmother's personal information was utilized and the addressreturned was listed as 'older than 5 years.' The telephone number was no longer valid." The Agency recommended the court deny the petitions so A.K.'s permanent plan of adoption would not be further delayed.

S.N. filed another modification petition on June 8, 2018, asserting that the Agency's report was inaccurate in several respects, and referencing an earlier Agency report, dated September 26, 2017, in which Casey told the social worker that he wanted A.K. to reside with Sharon, but did not know her whereabouts or have her contact information.³ The petition also attached a letter from Casey contradicting statements he made to the Agency when A.K. was first taken into protective custody and stating that he never alleged Sharon abused him.

Before the June 12, 2018 hearing, the Agency submitted a supplemental report explaining its search efforts for paternal relatives in more detail. The Agency's social worker who conducted the search explained that Casey told her his mother was "extremely abusive, listed specific instances of his mother's abuse and stated he did not want [A.K.] placed with her or the Agency to contact her." Casey told the social workerhis mother's name and his brother's name, and the social worker tried various phone numbers she located for the relatives but was unable to find a working number. The social worker also reported that during her investigation of the paternal relatives she found multiple aliases for each relative, which impeded her search. The Agency's report noted that Sharon and S.N. had moved to a remote part of the state and received mail only at a post office box, and not their physical address.

The supplemental report again raised concern about confidentiality in the case based on Sharon's and S.N.'s apparent access to information received from Casey. The report also noted that Casey's older daughter N.K., A.K.'s half-sister, had established a GoFundMe account on the internet to raise money for an attorney to help her seek placement of A.K.

At the June 12, 2018 hearing, Sharon and S.N. appeared telephonically and argued that their home had been approved for placement and that the Agency was delinquent in not locating them sooner. A paternal uncle who lived in another state appeared in person and argued the Agency should have easily been able to locate him because he was a veteran, a pediatric nurse for 13 years, and a former foster parent. The relatives also complained that once they made contact with the Agency and the minor's attorney, they were unable to get sufficient information about the process and how to intervene.

The Agency's counsel and the minor's counsel objected to these arguments. The Agency's counsel stated that the Agency had notified the court within days of being contacted by the paternal relatives and had begun the process of clearing the relatives' homes for placement expeditiously. Counsel clarified that neither Sharon and S.N.'shome in Northern California nor the paternal uncle's out-of-state home had yet been approved for placement. The Agency also reiterated the efforts it made to locate the paternal relatives and noted that it was not disputed that Sharon and S.N. had not been in contact with Casey for three years, and that they had moved out of San Diego County and changed their telephone numbers. The minor's counsel noted that she had attempted to assist Sharon and S.N. the same day that they contacted her, and that Sharon and S.N. filed their initial documents with the court prior to contacting the minor's counsel.

Both the Agency's and minor's counsel argued that because the relatives' homes had not yet been approved for placement, the court could not make a prima facie finding of changed circumstances under section 388 and also asserted the relatives had not shown that a change in placement would be in A.K.'s best interest. The juvenile court agreed and found there were no changed circumstances or evidence to show a change in placement was in the minor's best interest. The court made its finding without prejudice and invited the paternal relatives to file a section 388 petition as soon as they were notified that their homes were approved for placement.

Both the Agency's counsel and minor's counsel then raised their concern that Casey had provided the paternal relatives with confidential documents concerning the proceedings. The court stressed the seriousness of the...