Filed 2/27/14 Samantha S. v. Super. Ct. CA5



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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

SAMANTHA S.,
                   Petitioner,
                                                                                       F068463
         v.
                                                                       (Super. Ct. Nos. JJV066587A &
THE SUPERIOR COURT OF TULARE                                                    JJV066587B)
COUNTY,

                   Respondent;                                                     OPINION

TULARE COUNTY HEALTH AND
HUMAN SERVICES AGENCY,

                   Real Party in Interest.


                                                   THE COURT
         ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Hugo J.
Loza, Commissioner.
         Jean Bourn, for Petitioner.
         No appearance for Respondent.
         Kathleen Bales-Lange, County Counsel, and John A. Rozum and Amy-Marie
Costa, Deputy County Counsel, for Real Party in Interest.
                                                        -ooOoo-


        Before Levy, Acting P.J., Gomes, J., and Detjen, J.
       Samantha S. is the former prospective adoptive mother of six-year-old J.C. and
two-year-old R.M. whom respondent Tulare County Superior Court freed for adoption
(Welf. & Inst. Code, § 366.26, subd. (c))1 in 2013. In September 2013, the Tulare
County Health and Human Services Agency (agency) removed the children from
Samantha’s custody after discovering Samantha allowed the children’s biological mother,
Sarah, to live with them. Samantha objected to the children’s removal and requested the
superior court’s review. The superior court acting as the juvenile court found it in the
children’s best interests to remove them from Samantha’s custody and so ordered.
       Samantha seeks writ review (§ 366.28) of the juvenile court’s decision. She
contends the juvenile court violated her due process rights and erred in removing the
children from her custody. We deny the petition.
                    PROCEDURAL AND FACTUAL SUMMARY
       In November 2012, the Riverside County Juvenile Court sustained allegations that
Sarah’s drug abuse, transient lifestyle, domestic violence and untreated mental illness
placed then four-year-old J.C. and one-year-old R.M. at a substantial risk of harm. The
juvenile court also sustained allegations that J.C. and R.M.’s fathers failed to provide care
or support for them, ordered family reunification services for Sarah and R.M.’s father and
transferred the case to Tulare County, Sarah’s county of residence.
       In December 2012, the agency placed the children with Samantha who was
romantically involved with Sarah and lived with her and the children for approximately a
year. During that time, Samantha assumed a parental role for the children and they
looked to her to meet their emotional and physical needs. Samantha reportedly broke off
her relationship with Sarah when the children were placed with her.


1     All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.


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          In April 2013, the Tulare County Juvenile Court conducted an uncontested six-
month review hearing. The agency recommended the juvenile court terminate Sarah’s
reunification services. The agency reported Sarah initially expressed a strong desire to
reunify with the children and said she would do whatever was necessary to that end.
However, she stopped participating in her services plan and visited the children less
frequently as if she had given up on reunifying with them. The juvenile court terminated
Sarah’s reunification services and set a section 366.26 hearing for August. The court
ordered visitation for Sarah to occur twice a week for two hours under the supervision of
the agency or its designee. The agency apparently designated Samantha to supervise the
visits.
          In June 2013, the agency received a report that Sarah was with Samantha at a
medical appointment for one of the children and appeared to be “under the influence.”
She was “fidgety” and made “odd body movements.” When this occurred again in
August, Samantha was counseled not to allow Sarah around the children when she was
under the influence.
          In its report for the section 366.26 hearing, the agency recommended the juvenile
court approve adoption with Samantha as the permanent plan for the children and
informed the court that this was Sarah’s wish. The agency reported Samantha was 18
years old, never married and was raising her 13-year-old brother. She dropped out of
school after seventh grade but was employed and rented a three-bedroom home.
          In August 2013, at an uncontested section 366.26 hearing, the juvenile court
terminated Sarah’s parental rights to J.C. and R.M. as well as those of the children’s
fathers.2 The juvenile court did not order visitation.


2      Sarah filed an appeal from the termination order. The appeal is pending before
this court (F068011).


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         On September 6, 2013, in the early evening, the agency received a report that
Sarah was living with Samantha and the children and the children had no food to eat or
suitable clothing. The agency was aware of the allegation that Sarah was living with
Samantha but had not been able to prove it. An on-call social worker investigated but no
one was at the house.
         Three days later, social worker Cecilia Gomez made an unannounced morning
visit at Samantha’s house. Gomez knocked for approximately eight minutes, first on the
front door and then on the windows near the door. Samantha opened the door wearing a
tank top and pajama bottoms and explained she was asleep and did not hear Gomez
knocking. Samantha allowed Gomez into the home and showed her the children’s
bedroom. The children were lying on the floor watching television. Samantha’s brother
was lying on the only bed in the room. Gomez asked Samantha where the children’s
beds were. Samantha said that J.C. urinated on his bed and it was in the garage. She
looked in the closet for R.M.’s bed and then stated that it was in her bedroom. Samantha
took Gomez to her bedroom where there were two mattresses on the floor with blankets.
She said she did not know where R.M.’s crib was. Gomez heard a shuffling noise and
asked to see the rest of the bedroom. She saw a woman in the closet putting on a T-shirt.
The woman who identified herself as “Liza” had two visible hickeys on her neck. “Liza”
turned out to be Sarah.
         Samantha denied that Sarah lived with her. She said Sarah took her and R.M. to
the emergency room the night before because he had blisters in his mouth. She asked
Sarah to take them because she needed her help. Gomez noted that Sarah was very
fidgety and kept moving around and repeating, “I love my kids, I was just trying to help
them.”
         Gomez contacted her supervisor and the decision was made to remove the
children. Gomez asked to see the children’s clothing. There was no clothing in the

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children’s closet and there was not a dresser in their room. Samantha said their clothing
was in a bag but did not give Gomez a bag of clothing or otherwise provide any clothing
for the children. Gomez also asked to see what food was available in the home. There
was canned food in the cupboards but very little refrigerated food. Samantha explained
that they had been out of town with grandparents and had not gone grocery shopping.
When told that the children were going to be removed, Samantha and Sarah cried. Sarah
told Gomez she would kill herself so that the children could be returned to Samantha.
Sarah got into a red truck and drove off.
       Gomez put the children in a car and drove away. As she did, she saw Sarah
driving back in the direction of Samantha’s home. During the ride, J.C. said he was
“very hungry” and had not eaten. He said Sarah lived with him and R.M. The children
were placed together in a foster home.
       On September 12, 2013, Gomez provided Samantha a Notice of Emergency
Removal (JV-324) to which was attached a copy of the addendum report JV-324
explaining the circumstances requiring the children’s removal (JV-324 report).
       On September 18, 2013, Samantha filed an objection to the children’s removal in
pro se, claiming the children were wrongfully removed. The juvenile court set a removal
hearing for October 17, 2013.
       Samantha retained attorney Jean Bourn who, on October 9, 2013, filed a motion
for discovery and continuance of the October 17 hearing. The court continued the
hearing to October 31 and ordered the department to provide Bourn documents related to
the reason why the children were removed from Samantha by October 23.
       In an addendum report filed for the October 31 hearing, the agency stated that two
women fitting Samantha and Sarah’s description were seen on September 9 and in mid-
October circling J.C.’s school in a red Chevrolet truck around dismissal time. The



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women told school staff that they were J.C.’s older sisters. The one fitting Sarah’s
description was reportedly “extremely fidgety and twitched often.”
       On October 31, 2013, Bourn stated she received the JV-324 report and some of
the social worker’s notes two days before the hearing. However, she said there
were references in the notes to a police report and pictures that were taken of the home
she was not provided. In addition, there were social workers at the home who were not
present in court that she did not have time to subpoena. She said she was ready to
proceed and objected to a continuance. She told the court she would determine if she
needed further discovery after Gomez, who was present, testified.
       The juvenile court continued the hearing and confirmed with Bourn that she
wanted photographs taken of the home and social workers’ notes reviewed by staff
member Gary Kupfer and she wanted social workers Lilly Wallace and Nick Saucedo
present. Asked if there was “anything else,” Samantha’s attorney responded “No.” The
juvenile court ordered county counsel to provide the additional discovery by November 4
and continued the hearing.
       On November 14, 2013, the juvenile court convened the removal hearing and took
judicial notice of the case file over Bourn’s objection.
       Samantha testified and denied letting Sarah live with her, stay with her or spend
the night. She said that the day the children were removed, she called Sarah’s mother to
tell her she was taking R.M. to the hospital. Sarah’s mother could not go with her so she
went by herself. When she got to the hospital around 3:50 a.m. Sarah was already there.
Samantha was at the hospital until around 5:00 a.m. When she arrived home, Sarah
pulled up behind her, gave her some things for R.M. and left. About an hour later, Sarah
returned with medications for the baby, diapers and baby wipes. J.C. saw her and asked
if he could see his mother for a little while. Samantha told Sarah she could only stay for



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20 minutes. While Sarah was holding R.M., he vomited on her. Samantha told her to go
in her closet and get a shirt. At around that same time, Gomez arrived.
       Samantha was asked why the children did not have beds. She explained that J.C.
urinated in his bed just before she had to leave town for a family emergency. Her uncle’s
wife was dying. She threw J.C.’s bed out and did not have time to buy him a new one
before the social worker came. She did not explain why R.M. did not have a bed. She
said she had since obtained beds for J.C. and R.M. She also said that she had clothing for
the children in a laundry bag and that J.C. had eaten that morning.
       Nick Saucedo testified he made an unannounced visit to Samantha’s home on
September 23 and the house was clean and furnished.
       Gina Villalovos, Samantha’s landlord, testified she lived two houses down from
Samantha. She said she was a foster child and felt compassion for Samantha. They
visited each other in their homes every couple of weeks and she saw the children
frequently. She had recently seen a red Chevy Silverado which she believed was
Samantha’s truck. She observed Samantha to be very nurturing and loving with the
children.
       Recalled to testify, Samantha said she returned from Modesto at approximately
2:30 a.m. on September 9. She noticed that R.M. was feverish and had blisters in his
mouth so she rushed him to the hospital. She returned home around 7:00 to 7:10 a.m.
She said R.M. had a travel-type crib. After the children were removed, she remembered
that his crib was in her Ford Explorer.
       Following argument, the juvenile court found that the agency’s removal of the
children on September 9, 2013, was appropriate and that it was not in their best interests
to return to Samantha. This petition ensued.




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                                       DISCUSSION
I.     Due Process
       Samantha contends the juvenile court violated her due process rights by failing to
set the removal hearing within the statutory timeframe and by not providing her access to
the entire case file. The delay in setting the hearing, she further contends, was prejudicial
because it resulted in her not receiving visitation, leaving the children to believe they
were abandoned. Not having full access to the record prevented her from refuting “much
of [Cecilia] Gomez’s testimony.” (Petn. p. 6.)
       A. Removal Hearing
       Section 366.26, subdivision (n) (subdivision (n)) authorizes the agency to remove
a child from a prospective adoptive parent if it believes there is a risk of physical or
emotional harm. (§ 366.26, subd. (n)(4).) The prospective adoptive parent may object to
the removal by filing a petition with the juvenile court and requesting a hearing. (Ibid.)
The juvenile court must set the hearing no later than five court days after the objection is
filed. However, if the court for good cause is unable to set a hearing within that
timeframe, the court must set it as soon as possible. (§ 366.26, subd. (n)(3)(B).)
       In this case, Samantha filed her objection on September 18, 2013, and the juvenile
court set a removal hearing on October 17, well beyond five court days. However, Ms.
Bourn did not complain of the delay at her first appearance on October 10. Instead, she
asked for a continuance, in essence adding to any delay that already existed. More
importantly, however, Samantha fails to show how the timing of the removal hearing
affected visitation. She did not request visitation and there is no reason to believe the
juvenile court would have ordered it had she done so.
       B. Discovery
       The purpose of the removal hearing under subdivision (n) is for the juvenile court
to determine whether the child’s interest is best served by removing the child or allowing

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the child to remain with the prospective adoptive parent. (§ 366.26, subd. (n)(3)(B).) A
prospective adoptive parent is allowed to fully participate in removal hearings but is not
considered a party to the proceeding. (§ 366.26, subd. (n)(3)(C).) The court in Wayne F.
v. Superior Court (2006) 145 Cal.App.4th 1331, 1340-1341 explained the purpose of
permitting such participation: “If, at a removal hearing, the juvenile court were permitted
only to hear evidence and argument from a social service or adoption agency, as a
practical matter the juvenile court would be required to defer to the determination of the
only active litigant in the courtroom.…” (Id. at p. 1341.) Full participation of a
prospective adoptive parent at removal hearings is the most effective means of ensuring
that the juvenile court, rather than a social service or adoption agency, determines
whether removal is in a child’s best interests. (Id. at p. 1342.)
       Samantha contends the juvenile court rendered county counsel the only “active
litigant” and denied her due process by not granting her access to the case file. Had she
had such access, she contends she could have refuted much of Gomez’s testimony. We
disagree that she was denied access.
       Juvenile court records are confidential with limited exceptions. (§ 827, subd.
(b)(1).) The child, parent, guardian, and their attorneys have the right to inspect a
juvenile case file. (§ 827, subd. (a)(1).) No such right is afforded a prospective adoptive
parent.3 Nevertheless, any person, including a prospective adoptive parent, may petition
the juvenile court for disclosure of confidential records pursuant to section 827,
subdivision (a)(1)(P).
       In this case, the juvenile court advised Ms. Bourn that it had to take judicial notice
of the case file, but offered to continue the hearing if she needed additional time. Ms.

3      Samantha argues we should review the issue de novo because it raises pure
questions of law. However, she has not identified any legal error requiring application of
a de novo standard of review.


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Bourn could have, but did not, take advantage of a continuance to file a section 827
petition seeking disclosure of the case file. Consequently, Samantha cannot claim that
the juvenile court denied her access to the case file and that she was denied due process
as a result.
II.    Removal
       Samantha contends the agency failed to establish that it was in the children’s best
interests to be removed from her home. To that end, she argues there was insufficient
evidence that she was unable to protect the children from Sarah and was allowing contact
with Sarah.
       “The juvenile court has the authority and responsibility to determine whether
removal from the home of a prospective adoptive parent is in the child’s best interests.
(§ 366.26, subd. (n)(3)(B).) If a prospective adoptive parent objects to the child’s
removal from the home, the [a]gency must prove by a preponderance of the evidence that
removal from the prospective adoptive parent is in the child’s best interests.…” (T.W. v.
Superior Court (2012) 203 Cal.App.4th 30, 45.)
       We review a juvenile court’s decision to terminate placement for abuse of
discretion. (In re N.M. (2011) 197 Cal.App.4th 159, 171.) Applying this standard, we
concur with the juvenile court that the children’s interests were best served by removing
them from Samantha’s custody in light of lingering questions about their health and
safety and Samantha’s poor judgment in allowing contact with Sarah.
       Dependency proceedings were initiated in this case because of Sarah’s drug use
and her parental rights were terminated in large part because of her failure to address it.
It appears, however, that Sarah opted to relinquish her parental rights to Samantha in the
hope of maintaining contact with the children through her relationship with Samantha.
Instead of gaining safety and stability in a new home, the children were essentially in the
same position they were in before the juvenile court intervened.

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      Contrary to Samantha’s contention, there is substantial evidence from which to
infer Samantha was not protecting the children from Sarah. J.C. stated that Sarah lived
with them. In addition, Samantha’s landlord and neighbor said she saw Sarah’s truck in
front of the house, staff from J.C.’s school saw Sarah and Samantha together at the school
to pick him up, and Sarah attended the children’s medical appointments. Further, Sarah
was described as being under the influence of some substance and exhibiting behavior
suggesting it was methamphetamine. Finally, Gomez found Sarah in the home with
Samantha and the children in the morning dressing in the closet and exhibiting the same
behavior.
      On this record, we find no abuse of discretion in the juvenile court’s determination
that it was in J.C. and R.M.’s best interests to remove them from Samantha’s home.
                                     DISPOSITION
      The petition for extraordinary writ is denied. This opinion is final as to this court.




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