IN RE: YURIDIA et al.

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Court of Appeal, Fourth District, Division 3, California.

IN RE: YURIDIA et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. ANA M. et al., Defendant and Appellant.

Nos. G022986, G023096.

Decided: December 31, 1998

Janette Freeman Cochran, Pasadena, under appointment by the Court of Appeal, for Defendant and Ana M. Lori A. Fields, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant Salvador C. John L. Dodd, Tustin, and Patricia Ihara, under appointment by the Court of Appeal, for Defendants and Appellants Fidel A. and Maria C. Laurence M. Watson, County Counsel, and James C. Harmon, Deputy County Counsel, for Plaintiff and Respondent. Harold LaFlamme, Santa Ana, and Craig E. Arthur, under appointment by the Court of Appeal, for the Minors.

OPINION

Introduction

Adoptability is one of the few issues that may be raised on appeal from a Welfare and Institutions Code section 366.26 selection and implementation hearing.1  Usually the issue is a loser for the party objecting to a finding that-to use the statutory phrase-there is clear and convincing evidence that a child will be adopted.   After all, in the usual case an adoptability argument reduces natural parents to asserting that their child is so unlovable that no other persons would want to raise the child as their own.

Unlovability is hardly the key issue here, though this case presents one of those rare instances when the objectors have a meritorious adoptability argument.   Unfortunately, the point is based on something more serious.   The case centers on two orphaned Mexican children, now ages 4 and 5, the younger of whom has AIDS.2  Everybody in the case agrees that they are a “sibling pair” who should not be broken up.   The children's parents both died of AIDS in Mexico in 1994, but before her death the children's mother made her wishes known that she wanted her own mother to care for them.   The maternal grandparents soon sent the children to live with their maternal aunt and uncle in Santa Ana so that the younger child could be treated for her disease.   About two and one-half years later the children were taken away when the aunt was arrested for child abuse of her own child (the aunt had hit the child on the back with a jar of cream).   Within the year the juvenile court terminated all parental rights of either the aunt and uncle or the two maternal grandparents, found both children “adoptable” and selected adoption as their permanent plan.   The juvenile court found the children both “adoptable” despite the fact that no prospective adoptive parents have been identified for the younger child 3 and in face of the fact that the children's aunt, uncle and maternal grandparents all want to adopt them.

As an abstract matter, it is true that a child with AIDS may be “adoptable.”   One could hardly say otherwise.   Indeed, here we have the extended family of a little girl who, despite knowing that she has AIDS, want to adopt both her and her sister.   But the social service agency opposes having the girls adopted by their relatives;  it wants them adopted by strangers.   However, as of the date of this writing there is no evidence that there are any prospective adoptive parents outside the family who, having been fully informed of the one child's medical condition and consequent needs, still desire adoption.   As we explain below, under the particular circumstances of this case, that absence means there is no “clear and convincing” evidence that the children will be adopted.   And given the absence of such evidence,4 the net effect of the juvenile court's order is to deprive them of the extended family who want to adopt them in what may prove to be the chimerical hope that a better arrangement will come along.   Accordingly, we reverse and remand for the juvenile court to take additional evidence on the question of adoptability.   Perhaps the defect in the evidence may have been cured by now, but if it hasn't, these girls should not be left in “foster care limbo” (see In re Cristella C. (1992) 6 Cal.App.4th 1363, 1370, 8 Cal.Rptr.2d 342) when there is a viable extended family willing and eager to care for them, either by guardianship or adoption.   In all other respects, however, we affirm orders appealed from.

A Brief History of the Case

Endira and Yuridia were both born in Puebla, Mexico in September 1993 and November 1994 respectively.   Both of their parents died of AIDS within a few weeks of each other in September 1995, and Yuridia has AIDS herself.   After the father died, his sister requested that the children be sent to the United States because they might need medical treatment.   Aunt Maria, the mother's sister, brought them to the United States about two months after the parents' deaths to live with her family, the children having been cared for in the interim by the maternal grandmother, Ana.   The care included taking Yuridia for medical treatment on a monthly or fortnightly basis, and included admitting her to a hospital in February 1997.   Maria and her husband Fidel took care of the children until March 1997 (Endira was then 3 years old, Yuridia 2), when Maria was arrested for willful child cruelty to her own child, Heydee, because Maria allegedly hit the child on the back with a jar of cream.   Endira also told social workers at that time that Maria hit her.

A jurisdictional hearing was held in April 1997;  neither aunt and uncle Maria and Fidel, nor maternal grandparents Ana and her husband Salvador, were present.   The court found that the children were orphans (see § 300, subdivision (g)) without provision for support and noted that a selection and implementation hearing under section 366.26 “need[ed] to be set.”

By August, Ana and Salvador had joined Maria and Fidel in their home in Santa Ana and were expressing an interest in adopting both children;  meanwhile Endira's foster parents expressed an interest in adopting Endira but not Yuridia.   In September 1997 Ana and Salvador filed a section 388 petition alleging that they were the guardians of the children under Mexican law.   The hearing on their petition was not held until February 26, 1998;  meanwhile the court conducted two hearings on preliminary topics-whether the maternal grandparents were the guardians of the children under Mexican law (and whether that guardianship was subsequently transferred to the aunt and uncle) and whether the aunt and uncle and the maternal grandparents were de facto parents under California law.

On February 9 the court ruled that the maternal grandparents were not the guardians of the two children under Mexican law.   On February 19 the court ruled that the maternal grandmother Ana was a “de facto parent,” but neither Maria nor Fidel nor Salvador were.

The court then proceeded with the hearing on the section 388 petition based solely on Ana's standing as a de facto parent, and, on March 5, 1998, ultimately denied it on the ground that the children's best interests would not be served by placement with her.   In so ruling, the court noted that the evidence was “overwhelming” that the children should remain together.   A section 366.26 selection and implementation hearing then began that day.   The court found the children were adoptable, and terminated (non-existent) “parental” rights.5

The aunt and uncle Maria and Fidel have filed an appeal from the order of February 19, denying their request for de facto parent standing.   Ana and Salvador have each filed separate appeals of their own.   Ana has appealed from the February 9 ruling that the maternal grandparents were not the guardians of the children by operation of Mexican law, from the denial of the section 388 petition on March 5, and from the March 5 judgment terminating parental rights and ordering adoption as the permanent plan.   Salvador has appealed from the February 9 order ruling that he was not a guardian by operation of Mexican law, and from the February 19 order denying him de facto parent status.

 Ana and Salvador's appeals are clearly timely, having been filed March 18, 1998 and February 25, 1998 respectively.   We now dismiss Maria and Fidel's appeal, filed April 21, 1998 as untimely.6

Guardians By Operation of Mexican Law? Definitely Not-No Decree

 Under sections 3413 and 3424 of the Family Code (which is part of the Uniform Child Custody Jurisdiction Act (see Fam.Code, §§ 3400 et seq.))  California recognizes, subject to certain qualifications set out in the statutes, the custody decrees of “other nations.”   Here it is undisputed that the grandparents have no decree from a Mexican court naming them as Endira's and Yuridia's guardians.   Accordingly, the grandparents contend that they were guardians by operation of Mexican law, without the need for any formal “decree.”

We may quickly dispense with the argument.   Even under Mexican law, a guardianship is not automatically established when parents die.   Under article 418 of the Mexican Civil Code a court must still decide which of two sets of grandparents is to have la patria potestad, or “parental authority.” 7

Salvador points to provisions in the Mexican Civil Code governing formal guardianships (specifically, articles 482,8 483 9 and 495 10 ) which can be read to indicate that a formally appointed guardian is required only when a relative does not automatically ascend to the job.   However, just because a guardianship is justified when “no one has parental authority” (under article 414) does not mean that “parental authority” automatically devolves without the act of a Mexican family judge.   The plain Spanish of article 418 (“en el orden que determine el juez de lo Familiar, tomando en cuenta las circunstancias del caso”) still contemplates a determination of the order of the grandparent succession by a family judge looking at particular circumstances.

Forum Non Conveniens?  No.

 We may also quickly dispense with Ana's and Salvador's argument that the trial court abused its discretion by refusing to transfer the case to Mexico under the inconvenient forum doctrine.  (Cf. In re Stephanie M. (1994) 7 Cal.4th 295, 313, fn. 7, 27 Cal.Rptr.2d 595, 867 P.2d 706 [urging courts to carefully consider doctrine in cases involving foreign nationals].)  The fact is that the children and the caretaking aunt and uncle were in the United States when the juvenile dependency court took jurisdiction, and all relevant parties were in the United States by the time the court made the orders appealed from.   Moreover, social workers presented evidence that the Mexican consulate was not interested in asserting any Mexican jurisdiction over the children.

De Facto Parents?  It Makes No Difference

 Under In re Vanessa P. (1995) 38 Cal.App.4th 1763, 1769, 45 Cal.Rptr.2d 760, the nomination of a relative to be a guardian “cannot be ignored” and is normally enough to entitle the nominee-not necessarily to an actual guardianship, of course-but at least to de facto parent standing.   And so the trial judge correctly recognized Ana, the maternal grandmother, as a de facto parent, though denying that status to Salvador, Maria, and Fidel.   After all, there is no dispute that Ana was the dying mother's nominee.   Salvador, Maria, and Fidel, however, challenge the order denying de facto parent status as to them, presenting much fact-intensive argument about their care for and relationship to the children.

 The critical point on the de facto parent issue, however, is that even if Salvador, Maria and Fidel were recognized as de facto parents, they would still, like Ana who was, not be entitled to reunification services.  (In re Kieshia E. (1993) 6 Cal.4th 68, 77, 23 Cal.Rptr.2d 775, 859 P.2d 1290, fn. 7 [“De facto parents are not entitled to reunification services․”].)  We therefore need not wade through the quagmire of whether the evidence of how Maria and Fidel treated the two girls compelled a finding of de facto parent status in the face of Maria's child abuse conviction concerning her own child and the evidence that she “hit” Endira.11  Even if they had prevailed they could not have derailed the selection and implementation order.   The best they could have done would have been to add, as litigants with formal standing before the court, their cumulative voices to Ana's on the adoptability issue.   Any error was thus harmless.

Adoptable? Maybe, But Not In This Case Without Identified Parents Waiting in the Wings

 Section 366.26 subdivision (c)(1) requires a finding that there be “clear and convincing evidence” evidence that a child “will be adopted” before parental rights are terminated and adoption is selected as the permanent plan for a child.   The cases construing the statute have said that there is no requirement that a potential adoptive home be “waiting in the wings” for such a finding.  (See In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649, 28 Cal.Rptr.2d 82 and authorities mentioned therein.)   The absence of a requirement derives from the focus of the statute “on the minor, e.g., whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor.”  (Ibid., original emphasis.)

There is no dispute that Endira and Yuridia should be kept together, and no real dispute about the adoptability of the two children absent Yuridia's AIDS affliction.12  But that affliction cannot be ignored.   Indeed, it is the reason that Endira's foster family did not want to adopt Yuridia.   There are no doubt many prospective adoptive parents who would prefer not to adopt a child with the disease, particularly given the vigilant administration of medications currently required to stabilize AIDS patients and the likelihood of an early death even with the advances in treatment which have come about during the 1990's.   If there is a measure of rare saintliness in prospective adoptive parents-people who are willing to undertake the grave responsibilities of child rearing for other people's children-how much rarer are those prospective adoptive parents who are willing to raise a young child with a dangerous and fatal disease.

Moreover, any prospective adoptive parents are going to have to be told about Yuridia's condition.   As Justice Arabian wrote for the Court of Appeal in Michael J. v. Los Angeles County Dept. of Adoptions (1988) 201 Cal.App.3d 859, 875, 247 Cal.Rptr. 504, “Public policy cannot extend to condone concealment or intentional misrepresentation which misleads prospective adoptive parents about the unusual calamity they are assuming.”   That is a duty which cannot be avoided by such transparent artifices as having one set of social workers dealing with dependency not inform another set dealing with adoptions.   When it comes to the kind of full disclosure of medical conditions envisioned in Michael J., there is no option of having the left hand kept ignorant of what the right hand knows.   If dependency case workers know about a medical condition, full disclosure as required by Michael J. cannot be circumvented by preventing adoption case workers from knowing about it.

 As of the time of the selection and implementation hearing-indeed at least until June 1998-no prospective adoptive parents have been found-except Ana and Salvador or Maria and Fidel, who are eager to take in a family member.   Under the circumstances of this case-that is, a child with AIDS-we cannot elevate the language in the case law that there is no requirement for a prospective adoptive home to be waiting in the wings into a straitjacket which might leave two children shuttled around in foster care for the rest of their lives.   As Sarah M. points out, the statutory focus is on the child's attributes, including physical condition.  (Sarah M., supra, 22 Cal.App.4th at p. 1649, 28 Cal.Rptr.2d 82.)   When a child is suffering from such a serious medical condition as AIDS-and there are relatives who want to take care of that child-something stronger than speculation is obviously needed to fulfill the statutory mandate of “clear and convincing” evidence that a child will be adopted by a stranger.   Otherwise, the very purpose of the statute-to prevent children from being in permanent foster care when their family ties have already been severed-would be perversely thwarted.

Under the circumstances of this case, then, the statutory requirement of clear and convincing evidence of adoptability can only be faithfully implemented by a showing that there really are adoptive parents waiting in the wings.   The danger of letting the children fall into foster care limbo is simply too great otherwise.13

 Accordingly, the judgment terminating parental rights and ordering adoption as the permanent plan is reversed.   The case is remanded for another hearing on adoptability.14  If there is not a fully informed prospective parent (other than the family members who have brought this appeal, of course) “waiting in the wings” by the time our decision is final, then the court is to appoint at least one legal guardian for the children from the pool of appropriate family members (either Maria and Fidel, or Ana and Salvador, depending on which couple would be in the children's best interests), assuming that no intervening reason has arisen which would otherwise make them unsuitable.  (See § 366.26, subd. (b)(3)) 15 It is ridiculous-and contrary to the self-evident intent of the statute-to let these girls languish in a series of foster homes when there is an extended family of relatives who are eager to have any kind of legal custody of them that they can obtain.   Of course, if the juvenile court does find that there is at least one fully informed prospective parent waiting in the wings, then it is to again order adoption as the permanent plan.  (See § 366.26, subd. (b)(1).)

Our disposition makes it unnecessary to consider Ana's request for an “open adoption” should one occur.   If such an arrangement might even arguably be appropriate, the matter must first be considered by the trial court.  (See In re Sylvia R. (1997) 55 Cal.App.4th 559, 563-564, 64 Cal.Rptr.2d 93 [requirement of proper record before open adoption can be considered on appeal].)

FOOTNOTES

1.   All statutory references in this opinion are to the Welfare and Institutions Code.

2.   The record is unclear whether it is a case of full-blown AIDS, as distinct from HIV-positive status.   When the question was asked at oral argument, we got several different answers.   The parties have briefed the adoptability issue, however, on the assumption that the child has AIDS.

3.   There was a foster family willing to take the elder, noninfected child, but not the younger one.

4.   At the request of the attorney for the aunt and uncle (made before the dismissal of their appeal, see footnote 6 below), this court has taken judicial notice of a newspaper advertisement placed by the social services agency in June 1998.   The advertisement shows two adorable children smiling at the camera and resting their cheeks on their fists.   The ad states that the two siblings “will be placed together” and Yuridia “has severe health problems & is on seven medications/day” but does not otherwise disclose her condition.

5.   At worst, the action was a harmless redundancy given the fact that the natural parents were already dead and any de facto parents would not have been entitled to reunification.   At best, it was necessary to facilitate adoption, since the existence of any parental rights “out there” serve only to deter prospective adoptive parents.

6.   Appellate counsel for Maria and Fidel (who had nothing to do with the preparation or filing of the notice of appeal) acknowledges that the document was not filed until April 21-61 days after February 19-due to “miscalendaring and inadvertence.”   He also acknowledges that the doctrine of constructive filing which allows appellants in criminal cases some leeway does not normally apply in juvenile dependency cases.  (See In re A.M. (1989) 216 Cal.App.3d 319, 322, 264 Cal.Rptr. 666 (special need for finality in juvenile dependency cases precludes criminal law doctrine of constructive filing)), but argues that particular factual circumstances in this case-here, an order denying de facto status as distinct from terminating parental rights-call for a variance of that rule.   However, the factual intensive nature of a de facto parent ruling mean that, if anything, the need for finality is even greater.   In any event, however, the dismissal of Maria and Fidel's appeal makes no difference because (1) the court was correct in holding that the maternal grandparents were not the children's guardians under Mexican law, and any claim that Maria and Fidel might make on that basis is dependent on the maternal grandparent's claim;  and (2) even if, as we explain below, Maria and Fidel were de facto parents they still would have not been entitled to reunification services.   Moreover, our dismissal of their appeal is obviously without prejudice to Maria and Fidel to file a section 388 petition on remand based on changed circumstances, such as would be the case if dependency jurisdiction over Heydee were terminated or the child was otherwise returned to them.

7.   Article 414 of the Mexican Civil Code establishes three categories of relatives-the parents and the two sets of grandparents-who may exercise la patria potestad.   The article reads, when translated into English:  “Parental authority over children born to a marriage shall be exercised:  [¶] I.   By the father and the mother;  [¶] II.   By the paternal grandfather and grandmother;  [¶] III.   By the maternal grandfather and grandmother.”   When the parents die, however, article 418 of the Mexican Civil Code expressly requires a Family judge to make a decision as to which set of grandparents shall “exercise parental authority.”   Here is an English translation of Article 418:  “In the absence of parents, parental authority shall pass to the remaining ascendants referred to in subparagraphs II and III of Article 414, in the order to be determined by the Family judge, who shall take into consideration the particular circumstances of the case.”  (Emphasis added.)Ana argues that a Mexican judicial determination was unnecessary because the paternal grandmother was also dead and the paternal grandfather was ill-but those facts are precisely the kind of “particular circumstances of the case” that a Mexican family judge presumably would take into consideration.   What if, for example, the ailing paternal grandfather were wealthy and able and willing to pay for the best medical care for a sick grandchild that money could buy, owned a medical clinic to boot, while the maternal grandparents held some eccentric belief about medical care which made them reluctant to take a sick child to a doctor?   The Mexican family judge might very well make the sensible decision in that case to vest parental authority in the ailing paternal grandfather;  and if in that case, then it can hardly be said that we can just assume that the decision would be automatic in any case.

8.   Translated into English, Article 482 provides:  “A legal guardianship is justified:  [¶] I.   If no one has parental authority and there is no testamentary guardianship for a minor;  and [¶] II.   If it is required by reason of divorce.”

9.   Translated into English, Article 483 provides:  “The appointment of a legal guardian shall be from among:  [¶] I.   Brothers and sisters with preference of those of the same parents;  [¶] II.   In the absence of brothers and sisters, from other collateral relatives up to and within the fourth degree.”

10.   Translated into English, Article 495 provides:  “A legal guardianship appointment shall be made:  [¶] I.   If there is no testamentary guardian or any other person who, pursuant to law, can act a natural guardian;  [¶] II.   If the testamentary guardian is temporarily disabled to perform his duties and there is no parental relative as provided by Article 483 to assume them.”

11.   We may observe, however, that the issue is hardly frivolous.   Maria and Fidel took in two orphan children and raised them as their own.

12.   There is some evidence in the record that Endira can be given to, among other things, tantrums and bossiness.   So can Lucy Van Pelt. We are not about to predicate a holding that the evidence did not support adoptability on such common children's behavior as that.   Endira has also been described as “sweet and charming.”

13.   Our holding is thus a narrow one.   We do not say that there is a requirement that an adoptive parent be waiting in the wings in cases of serious medical conditions alone.   There must also be family members who are willing and able to take care of the child as well.

14.   In the meantime the children will have to remain in foster care, though visitation should obviously be structured with an eye to the fact that there is a high likelihood that the children will once again be living with their relatives.

15.   Of course, in the very unlikely event that all of the appealing relatives have made themselves unsuitable in the interim (e.g., by developing a drug problem), then the logic of our decision (see footnote 13, above) is that the juvenile court should again select adoption under section 366.26(b)(1) as the permanent plan.

SILLS, P.J.

WALLIN, J., and SONENSHINE, J., concur.

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