IN RE: JENNIFER S. et al.

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Court of Appeal, Fifth District, California.

IN RE: JENNIFER S. et al., Persons Coming Under the Juvenile Court Law. KINGS COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. LORI H., Defendant and Appellant.

No. F015507.

Decided: February 07, 1992

Carole Greeley, under appointment by the Court of Appeal, Fairfield, for defendant and appellant. Denis A. Eymil, County Counsel, and Deborah A. Bialosky, Deputy County Counsel, for plaintiff and respondent. Lucretia Hoke Parks, under appointment by the Court of Appeal, Berkeley, for minors.

OPINION

STATEMENT OF THE CASE AND FACTS

After appellant Lori H. gave birth to her second daughter, who was born addicted to cocaine, respondent Kings County Department of Human Services filed a petition to have the newborn, Susan, and an older sibling, Jennifer, declared dependent children under Welfare and Institutions Code section 300.1  The court sustained the petition on May 31, 1989, and placed the newborn with foster parents while giving the father of the children custody of the older girl.

Reunification plans were formally established for each parent by July 25, 1989.   Included within the mother's plan were requirements that she take a parenting course, submit to testing for drug usage, attend Narcotics Anonymous and refrain from illegal activities.   At the six-month review hearing in March of 1990, it was established that the mother had failed to fulfill the requirements of the plan.   The court modified the plan to require appellant to enter a residential drug treatment program.   Appellant resisted the new requirement, complained it was unnecessary and refused to cooperate.

In the report filed August 6, 1990, the social worker recommended that Susan continue in foster care;  that Jennifer continue as a dependent child in family maintenance with her father;  that reunification services be terminated as to appellant;  and that the father attend and complete codependency counseling.

The recommendations as to the mother were based on the mother's failure to abide by the service plan.   She failed to complete parenting classes, only attending seven sessions before dropping out and refused to participate in mental health counseling.   She kept her initial interview and two subsequent group sessions and then dropped out.   Appellant moved to Tulare County and failed to notify the agency of her location for weeks at a time, failed or refused to cooperate with drug testing and continued to use drugs during reunification.   Her participation in Narcotics Anonymous was sporadic (she attended 14 meetings out of the 68 recommended for the first 6 months of 1990).   She continued to engage in illegal activities throughout the period of reunification, resulting in numerous arrests and incarceration.   At the time of the 12–month review, appellant was incarcerated with no possibility of release before April of 1991.

At that hearing in September of 1990, the court found the father had fulfilled the plan and ordered legal and physical custody of the older girl to be with him;  the jurisdiction of the court was continued six months so that support services could be continued to the father and daughter.   However, the father stated he did not feel capable of caring for the infant and decided he was willing to give that child up for adoption.

The mother was found to have failed to fulfill the reunification requirements.   As to the infant, the court ordered that a hearing pursuant to section 366.26 be held on January 9, 1991, aiming toward termination.   The court terminated all reunification efforts and visitation rights.

The mother appealed the court's action, claiming insufficient evidence supports the court's order continuing the older child's dependency status for six months and denying her further visitation with the two children.   On December 13, 1990, she filed a petition claiming the court's order of a hearing pursuant to section 366.26 is not supported by substantial evidence;  this issue is only properly raised by writ petition.  (§ 366.26, subd. (k).)  The writ petition also requested a stay of the planned proceedings and reiterates the two issues raised in the appeal.

On January 9, 1991, a special review was held regarding the father's progress in family maintenance with Jennifer.   At the hearing, the juvenile court ordered Jennifer's dependency be terminated and that the father retain exclusive custody and control of Jennifer.

At the section 366.26 hearing held on February 1, 1991, the juvenile court terminated the parental rights of the mother as to Susan.2  The court found by clear and convincing evidence that the minor was likely to be adopted and issued a restraining order against the mother preventing her from molesting or harassing Susan or the foster parents or from coming within 50 yards of the foster parents' residence without their consent.

Appellant filed a timely notice of appeal.

DISCUSSION

I. WHETHER THE ELIGIBILITY OF THE PROSPECTIVE ADOPTIVE PARENTS SATISFIES THE REQUIREMENTS OF SECTION 366.21(i)

 Appellant claims reversible error because the social worker's report filed on January 8, 1991, in preparation for the hearing pursuant to section 366.26, inadequately addressed the issue of suitability of the prospective adoptive parents.

Section 366.21, subdivision (i) provides in pertinent part:

“(i) Whenever a court orders that a hearing pursuant to Section 366.26 shall be held, it shall direct the agency supervising the child and the licensed county adoption agency, or the State Department of Social Services when it is acting as an adoption agency ․, to prepare an assessment which shall include:

“․

“(4) A preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or guardian, particularly the caretaker, to include a social history including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the minor's needs, and the understanding of the legal and financial rights and responsibilities of adoption and guardianship.”  (Emphasis added.)

At the 12–month review hearing, the juvenile court ordered that a section 366.26 hearing be held in 120 days and he ordered that an assessment pursuant to section 366.21, subdivision (i) be prepared for that hearing.

On January 8, 1991, the social worker filed a report in which she recommended that Susan be adopted.   She reported that Jackie Rogers had taken good care of 19–month–old Susan since she was born.   She reported that Susan had experienced many physical problems in the past, but that she was now healthy.   Susan was, however, having some problems with coordination, and it was expected that she would have problems in the future due to her exposure to cocaine during her mother's pregnancy.   Susan had an adequate room and toys and she had established a healthy bond to her foster parents and their sons.

The report was accompanied by a report from the state adoptions worker, who concluded that Susan was adoptable.   She reported that the foster parents want to adopt Susan and that they are being investigated as prospective adoptive parents.

The juvenile court stated that it had read the reports prepared by the social worker and the adoptions case worker.   There was no other evidence presented regarding the eligibility of the foster parents to adopt Susan.

While the assessment filed on January 8, 1991, meets many of the requirements of section 366.21, subdivision (i), it wholly fails to comply with subdivision (4) quoted above.   The reports filed do not include a social history of the prospective adoptive parents.   The record does not show how old they are, their education, their employment, how long they have been married, the stability of the marriage, the existence or nonexistence of a criminal record for any member of the household, nor referrals for abuse or neglect or substance abuse problems, if any.   Nor does the record show whether the prospective adoptive parents are financially able to support a child with some special needs.

In the case of In re Linda W. (1989) 209 Cal.App.3d 222, 257 Cal.Rptr. 52, the court held that in a Civil Code section 232 hearing to terminate parental rights, the investigation, filing, and consideration of a report discussing the present circumstances of the minor is mandatory and the lack of such report is reversible error.

Respondent refers to appellant's contentions as “technical objections [which] ignore the reality of how foster care placements are made.”   Respondent points to the requirements of California Community Care Facilities Act (Health & Saf.Code, § 1500 et seq.) which establishes procedure for regulating foster care families and the licensing of foster family homes.  (Health & Saf.Code, § 1508.)   However, a review of these sections reflects a substantial difference from the in-depth and fact-specific investigation and evaluation required of prospective adoptive parents pursuant to section 366.21, subdivision (i).

Thus, while respondent urges us to presume that the criminal background, previous employment history, financial status and general suitability of the prospective adoptive parents as foster parents were assessed at the time they applied for and received their foster care license, there is no evidence before us that the investigation, if any, was any more thorough or more completely complied with the Health and Safety Code requirements for adoptive families than the preparation of the adoption assessment for this hearing.   As appellant points out, Evidence Code section 664 provides that “it is presumed that an official duty has been regularly performed.”   Yet Evidence Code section 600 states that a presumption is not evidence.

Furthermore, as appellant points out, even if the Rogers family had been properly investigated and licensed before Susan was placed with them in 1989, the results of that investigation do not constitute recent evidence.   Findings at dependency and termination hearings must be based on recent evidence regarding present circumstances.  (In re Carmeleta B. (1978) 21 Cal.3d 482, 493, 146 Cal.Rptr. 623, 579 P.2d 514;  In re Heather P. (1988) 203 Cal.App.3d 1214, 1229, 250 Cal.Rptr. 468.)

An examination of California's dependency statutes reflects the active role our juvenile courts are required to exert over minors in dependency proceedings.   Virtually every action taken on a minor's behalf must have court supervision and approval.  (See §§ 303, 305, 361 et seq.)   This judicial control over the minor's well-being is not only required, it is subject to extensive internal judicial review processes which increase in intensity as the minor is moved closer to permanent removal from his parents.  (See §§ 364, 366, 366.21, subds. (a), (f), (g), (i), 366.26.)   Thus, it is certainly appropriate that the prospective adoptive parents be more closely scrutinized at the time of the section 366.26 hearing than ever before, rather than vice versa.

Parenting has long been considered a fundamental right.  (In re Carmeleta B., supra, 21 Cal.3d 482, 489, 146 Cal.Rptr. 623, 579 P.2d 514.)   Termination is a significant infringement on this important right.   Thus, the termination statutes are subject to a strict standard of judicial review.   Termination can be upheld only if it is necessary to the legislative purpose of the statute—the welfare of the child.  (In re David B. (1979) 91 Cal.App.3d 184, 192–193, 154 Cal.Rptr. 63.)

The requirement of an assessment of prospective adoptive families is clearly intended to protect the individual rights of the minors and their natural parents.   There is nothing in the record before us to establish that there was actual or substantial compliance with section 366.21, subdivision (i)(4) and, therefore, the case must be reversed and remanded for a new hearing after a proper assessment has been completed.

II. SUFFICIENCY OF THE EVIDENCE THAT SUSAN IS ADOPTABLE

The finding of adoptability must be supported by clear and convincing evidence.  (In re Albert B. (1989) 215 Cal.App.3d 361, 374–375, 263 Cal.Rptr. 694.)   Appellant claims insufficient evidence was presented to support a finding that Susan is adoptable and, thus, that termination of parental rights is premature.

Appellant argues that the adoption worker's opinion that Susan was adoptable was based on the assumption that Susan would be adopted by John and Jackie Rogers.   According to appellant's argument, this assumption fails as there is not clear and convincing evidence in this record that they will qualify to adopt her.

Appellant categorizes Susan as a “special needs child” with a lot of medical problems in the past who is “expected to have problems in the future” due to her mother's use of drugs during pregnancy.   Whoever adopts her will have to anticipate and deal with such problems.   Appellant also points to the inconvenience of scheduling visitation with the father and possible problems with the interference of the mother in the future in violation of the restraining order.

This argument, of course, assumes that the Rogers will be found unqualified to adopt Susan.   Since we will remand for a new assessment of their qualifications to adopt Susan, this issue is temporarily moot and thus need not be further addressed here.

It should be noted, however,

“․ if there is any substantial evidence to support the findings of the juvenile court, a reviewing court must uphold the trial court's findings.   All reasonable inferences must be drawn in support of the findings and the record must be viewed in the light most favorable to the juvenile court's order․”   (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036–1037, 177 Cal.Rptr. 783.)

All parties at the outset of her testimony stipulated that state adoptions worker Susan Marie was an expert in making the determination as to whether minors are adoptable.   Susan Marie is a trained expert on adoptions and was accepted as such at the hearing.   She testified that Susan was adoptable and no contrary evidence was submitted.

The report dated December 20, 1990, indicates that Susan is a 19–month–old female of mixed racial ancestry.   She is a

“cute, bubbly child who is very active and appears to be within normal developmental limits for her age.   She is walking, talking, singing and cutting teeth.   She has been in her current foster placement since birth and appears to be happy and very attached to her foster family․  [W]hile Susan has had many health problems in the past, she is currently very healthy and seems to have outgrown her earlier ear, nose, and throat related illnesses.”

Later on in the same report it was noted that the “minor has no known physical, emotional, or developmental handicaps that would make her unadoptable at this time.”   This evidence amply supports the trial court's finding that the minor Susan is adoptable without respect to the suitability of her foster parents to adopt her.

III. FAILURE TO USE JUDICIAL COUNCIL FORM JV–320 AND JUDICIAL COUNCIL FORM JV–250

 Rule 1402(b) of the California Rules of Court (hereinafter Rule(s)) provides:

“Effective January 1, 1991, the following Judicial Council forms are adopted for mandatory use:

“․

“(3) Orders under Section 366.26 of the Welfare and Institutions Code (JV–320).”

Rule 1458(b) provides:

“If a child has been declared a dependent, the court on its own motion may issue orders to either parent enjoining any action specified in Civil Code section 4359(a)(2) or (a)(3).   The court shall direct that Judicial Council form Restraining Order—Juvenile (JV–250) be prepared.   The orders shall be enforceable in the same manner as any other order issued under section 4359 of the Civil Code.”

Government Code section 68511 provides:

“The Judicial Council may prescribe by rule the form and content of forms used in the courts of this state.   When any such form has been so prescribed by the Judicial Council, no court may use a different form which has as its aim the same function as that for which the Judicial Council's prescribed form is designed.   The Judicial Council shall report periodically to the Legislature any statutory changes needed to achieve uniformity in the forms used in the courts of this state.”

Appellant asserts that the case must be reversed and remanded for the failure of the juvenile court to use these mandatory forms, to wit:  the orders made after the section 366.26 hearing and the restraining order were not on the mandated Judicial Council forms.

The California Constitution provides that no judgment shall be set aside or new trial granted unless the error complained of resulted in a miscarriage of justice.  (Cal. Const., art. VI, § 13.)   Judgments will not be reversed because of errors that do not prejudice the substantive rights of the appellant or affect the result of the action.   Appellant has failed to meet her burden that the error in failing to use the mandatory forms resulted in prejudice to any of the parties in order to justify reversal.  (Buckley v. Chadwick (1955) 45 Cal.2d 183, 288 P.2d 12.)

IV. WHETHER THE RESTRAINING ORDER MUST BE REVERSED BECAUSE IT WAS MADE WITHOUT NOTICE OR A SHOWING OF IRREPARABLE HARM AND BECAUSE IT WAS NOT MADE RETURNABLE FOR A NOTICED HEARING

 Counsel for the minor requested a restraining order against appellant to prevent her from contacting Susan or annoying the foster parents.   The judge issued the restraining order without making it returnable for a noticed hearing and without setting an expiration date.   Appellant now contends the restraining order must be rescinded.

Section 304 provides:

“When a minor has been adjudged a dependent child of the juvenile court pursuant to subdivision (c) of Section 360, no other division of any superior court may hear proceedings pursuant to Section 4600 of the Civil Code regarding the custody of the minor.   While the minor is a dependent child of the court all issues regarding his or her custody shall be heard by the juvenile court.   In deciding issues between the parents or between a parent and a guardian regarding custody of a minor who has been adjudicated a dependent of the juvenile court, the juvenile court may review any records that would be available to the domestic relations division of a superior court hearing such a matter.   The juvenile court, on its own motion, may issue an order directed to either of the parents enjoining any action specified in paragraph (2) or (3) of subdivision (a) of Section 4359 of the Civil Code.   The Judicial Council shall adopt forms for these restraining orders.   These form orders shall not be confidential and shall be enforceable in the same manner as any other order issued pursuant to Section 4359 of the Civil Code.

“This section shall not be construed to divest the domestic relations division of a superior court from hearing any issues regarding the custody of a minor when that minor is no longer a dependent of the juvenile court.”  (Italics added.)

Civil Code section 4359 provides in pertinent part:

“(a) During the pendency of any proceeding under Title 2 (commencing with Section 4400) or Title 3 (commencing with Section 4500) of this part, upon application of either party in the manner provided by section 527 of the Code of Civil Procedure, the superior court may issue ex parte orders ․ (2) enjoining any party from contacting, molesting, attacking, striking, threatening, sexually assaulting, battering, or disturbing the peace of the other party, and, in the discretion of the court, upon a showing of good cause, other named family and household members;  (3) excluding one party from the family dwelling or from the dwelling of the other, for the period of time and upon the conditions as the court may determine, regardless of which party holds legal or equitable title, or is the lessee of the dwelling, upon a showing that the party to be excluded has assaulted or threatens to assault the other party or any other person under the care, custody, or control of the other party, or any minor child of the parties or of the other party, and that physical or emotional harm would otherwise result to the other party or any person under the care, custody, or control of the other party, or to any minor child of the parties or of the other party as provided in Section 5102․”  (Italics added.)

Section 527 of the Code of Civil Procedure provides in pertinent part:

“No preliminary injunction shall be granted without notice to the opposite party, nor shall any temporary restraining order be granted without notice to the opposite party, unless it shall appear from facts shown by affidavit or by the verified complaint that great or irreparable injury would result to the applicant before the matter can be heard on notice and, except when applying for an order under Section 546 or under Section 4357, 4359, or 7020 of the Civil Code, the applicant or the applicant's attorney certifies to the court under oath (i) that within a reasonable time prior to the application he or she informed the opposing party or his or her attorney at what time and where the application would be made;  (ii) that he or she in good faith attempted to inform the opposing party and his or her attorney but was unable to so inform the opposing party or his or her attorney, specifying the efforts made to contact them;  or (iii) that for reasons specified he or she should not be required to so inform the opposing party or his or her attorney.   In case a temporary restraining order shall be granted without notice, in the contingency above specified, the matter shall be made returnable on an order requiring cause to be shown why the injunction should not be granted, on the earliest day that the business of the court will admit of, but not later than 15 days or, if good cause appears to the court, 20 days from the date of the order.   In cases under Section 4359 of the Civil Code the matter shall be made returnable not later than 20 days or if good cause appears to the court, 25 days from the date of the order.   When the matter first comes up for hearing the party who obtained the temporary restraining order must be ready to proceed and must have served upon the opposite party at least two days prior to the hearing, a copy of the complaint and of all affidavits to be used in the application and a copy of the points and authorities in support of the application;  if the party is not ready, or if he or she fails to serve a copy of his or her complaint, affidavits and points and authorities, as herein required, the court shall dissolve the temporary restraining order.

“․

“(b) The court may, upon the filing of an affidavit by the plaintiff that the defendant could not be served on time, reissue any temporary restraining order previously issued pursuant to Section 546 and dissolved by the court for failure to serve the defendant.   Any order reissued under this subdivision shall state on its face the date of expiration of the order․”

We note “[a]ppellant concedes that section 304 does not specifically require the juvenile court to follow the procedures outlined in Civil Code of Procedure (CCP) section 527 before issuing a restraining order ․” and respondent apparently concurs in this concession.   We too must agree.   Section 304 authorizes the court to enjoin “any action specified in paragraph (2) or (3) of subdivision (a) of Section 4359 of the Civil Code” without requiring compliance with the substance of the directives in subdivision (a).

Section 527 of the Code of Civil Procedure requires that notice and opportunity to be heard be given the party to whom the temporary restraining order is directed and if issued without affording notice or a hearing on the claim, the order would be violative of constitutional proscriptions.   (Skinner v. Superior Court (1977) 69 Cal.App.3d 183, 188, 137 Cal.Rptr. 851.)   However, the objection that an injunction was granted without notice is waived by making a general appearance.  (Lacey v. Bertone (1949) 33 Cal.2d 649, 651, 203 P.2d 755;  Remillard Brick Co. v. Dandini (1941) 47 Cal.App.2d 63, 65–66, 117 P.2d 432.)

In the instant case appellant was present in court at the time the restraining order was issued and was represented by counsel at the hearing.   Thus, the restraining order in question was not issued ex parte nor was it a temporary order.   As no objection was raised by appellant or her counsel to the imposition of the restraining order, any objection on appeal has been waived.   Thus, this issue on appeal presents a nonjusticiable controversy and any opinion directed to it would be merely advisory.

V. WHETHER SECTION 366.26 IS UNCONSTITUTIONAL ON ITS FACE AS APPLIED IN THIS CASE ***

DISPOSITION

The order of the juvenile court terminating appellant's parental rights is reversed and the matter is remanded for a new assessment and hearing of the suitability of the prospective adoptive parents.

FOOTNOTES

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

2.   The father signed a voluntary relinquishment for adoption in November of 1990.   At the time of the section 366.26 hearing on February 1, 1991, the mother was incarcerated.

FOOTNOTE.   See footnote *, ante.

MARTIN, Acting Presiding Justice.

STONE (Wm. A.) and VARTABEDIAN, JJ., concur.