San Mateo Cnty. Human Servs. Agency v. Lionel N. (In re J.N.)

In re J.N., a Person Coming Under the Juvenile Court Law.

SAN MATEO COUNTY HUMAN

SERVICES AGENCY, Plaintiff and Respondent, v. Lionel N., Defendant and Appellant, L.B., Defendant and Appellant, L.T., Intervener and Appellant, Shauna M., Appellant, J.N., Appellant.

A129824

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

Filed: February 21, 2012

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

San Mateo County Super. Ct. No. JV79610

This unusual dependency involves the following parties who appear before us: (1) the San Mateo County Human Services Agency (Agency); (2) the dependent minor,J.N.; (3) Lionel N., who is J.N.'s father; (4) L.B., who is J.N.'s mother; (5) L.T., who is L.N.'s adult daughter and J.N.'s half sister; and (6) Shauna M., who during the dependency was J.N.'s foster parent and who was recognized by the juvenile court first as a de facto parent and then as the prospective adoptive parent. At issue here are two orders: The first, made on August 6, 2010, terminated the parental rights of the mother and the father; the second, made on September 15, 2010, rejected the Agency's recommendation that the minor should be placed with her half sister in anticipation of adoption, and ordered the minor's placement to remain with the de facto parent.

Every individual—that is, every party except the Agency—filed a notice of appeal, although the minor and the de facto parent advise that their appeals are "protective" only, and will be moot if the appeals of the mother, the father, and the half sister do not succeed. Most of the appeals deal with issues allegedly stemming from the unusual procedure adopted by the juvenile court. At the time it terminated the parents' rights on August 6, the court ruled that custody would be transferred from the local de facto parent to the half sister in Louisiana, but only after a "transition period" of at least 30 days. However, by September 15, matters had changed so materially that the court in effect reversed itself and changed its indicated decision on placement. In essence, the court treated its placement decision of August 6 as interlocutory, not final.

Given the distinct circumstances of the minor's evolving situation at the time of both orders, we conclude that the court's approach was sensitive to the quickly changing context of a very young and vulnerable child. Accordingly, we reject the various objections made by the mother, the father, and the half sister against the procedure. We also conclude that the failure to make a timely determination of whether the father had Indian ancestry under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)), has been shown to be harmless. We thus affirm.

BACKGROUND

Much of the considerable record on appeal is neither contested nor germane to the issues that must be resolved. We reiterate only the salient details and events.

In June 2009, the Agency filed a petition in which it alleged that the newborn minor came within the provisions of Welfare and Institutions Code¹ section 300, subdivision (b), in that the mother had failed to protect . The particulars were that the mother "has a long history of illegal drug use," and "has given birth to a total of nine children." Like the minor here, "at least four of the children were exposed in utero to controlled substances." Two of the other children were placed with their father (not the father to the minor here); one is "in long-term foster care under the San Francisco Juvenile Court"; and two were adopted after the mother's parental rights were terminated. The minor was immediately detained.

The allegations of the petition were sustained, and paternity testing ordered, at the jurisdictional hearing held in July 2009. At the dispositional hearing held the following month, the juvenile court ruled as follows: "I am going to declare dependency. I will make the ICWA finding that [the minor] may be a member of a tribe and that notice has been filed. [¶] I will make the other orders [as recommended by the Agency] in their entirety. [¶] . . . [¶] The case plan is approved. [¶] . . . [¶] This is a fost/adopt case. That's the current plan for this child. Visitation is terminated. [¶] We are setting a .26 hearing." No reunification services were ordered provided for either the mother or the father—she, because of her history (§ 361.5, subds. (b)(10), (b)(11), (b)(13))—and he because he waived them. As recommended by the Agency, the court declared Lionel N. to be the alleged father.

In November 2009, the court also learned that the Father—whom the court now recognized from paternity testing as the minor's biological father—had changed his mind and now wished to receive reunification services, which the Agency opposed. The Agency also opposed the father's request to be elevated to presumed parent status.

It was about this time that the mother and the father began indicating to the Agency "their desire to have the paternal half sister . . . assessed for placement," although the Agency favored the existing placement with a maternal aunt.

In its December 2009 "366.16 WIC Report," the Agency recommended that the court terminate the parental rights of the mother and the father, and select adoption as the permanent plan for the minor. The Agency identified a maternal great aunt as likely to adopt the minor.

In February 2010, the father filed a "Waiver of Reunification Services." Later that month the court found that he qualified as a presumed parent.

In April 2010, foster parent Shauna M. was granted de facto parent status. But by July the Agency was recommending that the court place the minor with her half sister, the father's adult daughter, in Louisiana. The attorney for the minor opposed this change, arguing that "a change in placement would be detrimental to the minor and contrary to the minor's best interests."

The actual termination hearing was finally concluded on August 6, 2010. The court terminated the parental rights of both the mother and the father, and then ruled that, following appropriate transition measures, the minor would be placed with the half sister in Louisiana. The court directed the Agency to prepare and submit a "transition plan" which the court would review in 30 days, during which period no change in the minor's placement would occur without the court's express permission. Because the minor was being moved from the de facto parent, the court denied her motion to be named the prospective adoptive parent.

The de facto parent did not let it go at that. She filed another "Request for Prospective Adoptive Parent Designation," by which she informed the court that she had already "had her home approved as an adoptive home (since October, 2009)" and that she "has been the sole caretaker of this child since 1/21/10." Days later, the minor filed a motion for reconsideration of the placement decision to move her out of the de facto parent's home. When the half sister filed opposition to the minor's motion, the de facto parent argued that she—the half sister—had no standing or right to participate in "theseproceedings." The de facto parent also filed a motion pursuant to section 388, again requesting the court to grant her prospective adoptive parent status, which would in turn "give me preference as the child's current caregiver" by operation of subdivision (k) of section 366.26.

After hearing extensive argument, the court decided that the half sister would be allowed to participate, and that counsel for the mother and the father, notwithstanding the termination of the parental rights, would be "re-invited back to the table" at the next hearing. The de facto parent dropped her opposition to the half sister's participation.

The mother responded to the court's invitation with a trial brief in which she took the position that, following the termination of parental rights and selection of adoption as the permanent placement, "[a]t this time the court has no jurisdiction over the placement of [the minor] and can only review the [Agency's] decision regarding placement for abuse of discretion."

On September 14 and 15, 2010, the juvenile court held what it and the parties termed a "subdivision (k)" hearing to determine whether the minor's custody should be changed to the de facto parent or left with the half sister. ² Neither parent was present. At the outset of the hearing, counsel for the minor objected to the presence of counsel for the mother and the father: "Unless Your Honor has decided that she is reversing her decision . . . and reinstating parental rights, or if they are here to make a motion requesting that you reinstate parental rights, otherwise they have no standing to participate in these proceedings. And in fact, the law is quite clear they are confidential. And parents'counsel is not to be present in these proceedings unless . . . their rights [sic] have been reinstated or perhaps if they were making a request that their rights be reinstated."

The court then ascertained that neither counsel was seeking reinstatement of parental rights. Over the minor's objection, the court made it clear that each counsel would not be allowed to argue, cross-examine witness, or make motions, but would be permitted to remain at the hearing merely "as an observer."

Over the course of two days the court then heard testimony from: Deborah Torres, the director of Child Protective Services; Lori Durand, a mental health specialist; Agency case worker Dagoberto Gavidia; Dr. David Brodzinsky, a psychologist accepted by the court "as an expert in the area of adoptions, developmental psychology, mental health of children, the effects of foster care and systematic trauma on...