Dep't of Soc. Servs. v. Superior Court of Siskiyou Cty. (58 Cal. App. 4th 721, 1997)

Opinion

SCOTLAND, J.

In this consolidated appeal and petition for writ of mandate, we address whether the juvenile court has authority to independently determine the appropriate interim placement of minors pending their adoption after the court has terminated parental rights and referred the minors to the Department of Social Services (DSS) for adoptive placement, or whether DSS has the sole authority to determine such placement, subject only to judicial review for abuse of discretion.

We agree with DSS that the juvenile court erred in ordering the agency to move the minors, Theodore D. and Katelin D., from the placement selected by DSS to one chosen by the court.

As we shall explain, the Legislature has granted the agency to which a minor is referred for adoption, in this case DSS, the “exclusive” custody, control and supervision of the minor referred for adoptive placement. (Welf. & Inst. Code, § 366.26, subd. (j); Fam. Code, § 8704.) This exclusive authority includes the “discretion” to place the minor in, and if necessary remove the minor from, a prospective adoptive home or “temporary care,” i.e., foster care placement for the minor pending adoptive placement. (Fam. Code, § 8704.) Under the statutory scheme, DSS’s discretion regarding adoptive and interim foster care placement is not unfettered. The juvenile court retains jurisdiction over the minor to ensure the adoption is completed as expeditiously as possible and to determine the “appropriateness of the placement.” (Welf. & Inst. Code, § 366.3) This does not mean the court may substitute its independent judgment for that of DSS because the Legislature has given the agency exclusive custody and control of the minor and the discretion to make placement decisions. Rather, the court is limited to reviewing whether DSS abused its discretion in placing the minor or in determining that the placement, once made, remains appropriate. Absent a showing that DSS’s placement decision is patently absurd or unquestionably not in the minor’s best interests, the court may not interfere and disapprove of the placement.

Because the record shows DSS did not abuse its discretion in placing the minors in the Culver family home, the court erred in “vetoing” DSS’s placement decision.

Facts

Theodore D. and Katelin D., and their older siblings, Diana B., Sacha B. and Jasmine D., were declared dependent children of the juvenile court and were removed from parental custody. The Siskiyou County Human Services Department placed Theodore and Katelin with the Bringles. Diana, Sacha and Jasmine were placed with the Stocktons.

When the children’s parents failed to cooperate and avail themselves of reunification services, the court terminated those services and scheduled a hearing to determine the appropriate permanent plan for the minors. (Welf. & Inst. Code, § 366.26; further section references are to the Welfare and Institutions Code unless otherwise specified.)

Following the section 366.26 hearing, the court found that Theodore and Katelin were likely to be adopted, terminated parental rights, and ordered a permanent plan of adoption for them. The court found that it was unlikely Diana, Sacha and Jasmine would be adopted, and thus ordered long-term foster care for these siblings.

The court directed DSS to place Theodore and Katelin for adoption and ordered the Siskiyou County Human Services Department to place Diana, Sacha and Jasmine in suitable long-term foster care. Finding sibling visitation was in the children’s best interest, the court ordered that such visitation “be allowed and encouraged to take place to the greatest extent possible taking into account circumstances of the foster and/or adoptive parents, including time, distance, expense, etc.”

Placement of Theodore and Katelin continued with the Bringles; Diana, Sacha and Jasmine remained with the Stocktons.

At a review hearing, the court appointed special advocate (CASA) urged the juvenile court to order DSS to move Theodore and Katelin to the Stocktons’ home pending adoptive placement. According to CASA, (1) the Bringles were not providing the disciplined environment needed by the minors and had been ruled out as adoptive parents, (2) the Stocktons were “interested in having Theodore and Katelin placed with them, not just as foster children, but to adopt them,” and (3) Diana, Sacha and Jasmine wanted to maintain contact with their siblings and, although Theodore and Katelin were too young to “understand that the three girls are their sisters,” it would be in their best interest to place them with the Stocktons because this would allow all the children to remain together as a family.

DSS acknowledged it was not considering the Bringles as an adoptive home for Theodore and Katelin. Nevertheless, DSS intended to continue this placement pending identification of an appropriate adoptive family. Referring to an assessment which reported that Theodore and Katelin “seem[ed] to be secure in the [Bringles’s] home” where they had been living for most of the past two years, and that an “adjustment” in placement would be “difficult for the children,” DSS opined that it was in the minors’ best interest not to be moved from the Bringles pending placement with an adoptive family.

The question then arose whether the juvenile court had power to direct DSS to place Theodore and Katelin with the Stocktons pending adoption, or whether DSS had exclusive authority to determine preadoptive placement. The matter was taken under submission by the court, which ordered that the minors “shall remain within the jurisdiction of State Adoptions and in the Bringle home” until the court’s ruling. (Italics added.)

Before the court ruled on the submitted matter, a petition was filed pursuant to section 388 to modify the court’s order specifying that Theodore and Katelin shall remain in the Bringle home until the ruling. According to a DSS adoptions caseworker, the Bringles no longer were able to cope with the minors’ “escalating behavior,” which included fighting, biting and screaming. DSS intended to move Theodore and Katelin to another family which could provide consistent care for the minors’ special needs pending adoption. While DSS ordinarily would have considered this to be a “lateral move” that it could make “unilaterally,” the petition for modification was filed in this case simply because “we have a court order that specifically states these children will not be moved from a certain home until further court order,” an order DSS did not want to flout.

At the hearing on the petition, CASA agreed the order should be vacated and again urged the juvenile court to direct DSS to place Theodore and Katelin with the Stocktons. In CASA’s view, the court had the authority to supervise and regulate DSS’s decisions on preadoptive placements and thus could order a placement other than that selected by DSS. DSS disagreed, reasserting that it had exclusive authority to make preadoptive placements after the court terminated parental rights and referred the minors to DSS for adoptive placement. Although DSS was “not necessarily opposed to adoption by the Stocktons,” it was pointed out that the Stocktons had “not set in motion formally all the mechanisms to kick in the review of them as a potential adoptive home [for Theodore and Katelin].” In addition, a concern was expressed that placing two more young children with the Stocktons might make it more difficult for them to care for the foster siblings who exhibit physical and emotional problems.

The court vacated the order specifying that Theodore and Katelin shall remain in the Bringle home pending a ruling on the previously submitted issue. However, the court declined to rule on CASA’s request; instead, it continued the matter for a status review and further proceedings on the questions whether the court had authority to direct DSS to place the minors with the Stocktons and, if so, whether it should do so.

In later ruling on the submitted matter, the court held it had “jurisdiction to tell [DSS] what to do” with respect to preadoptive placement. For this proposition, it cited “the overall Welfare and Institutions Code, and specifically [section] 202[, subdivision (d)], that [the court] must act in the best interests of the children.” It acknowledged that section 366.26, subdivision (j) gives DSS “exclusive care and control” of the minors who had been declared free from parental custody and been referred for adoptive placement. The court stated, however, that other sections required it to retain jurisdiction over the minors and, in doing so, it “[did] not prefer to be a puppet.”

Accordingly, the court indicated it would “receive all the information from the various parties and the various agencies that are involved. And if the court feels that [DSS] is not proceeding appropriately in placement of the children, then the court will exercise veto power over what [DSS] proposes to do and may order [DSS] to place the children elsewhere.”

The court granted DSS’s request for a continuance to prepare for an evidentiary hearing on the appropriate placement and ruled that, pending the hearing, DSS could place Theodore and Katelin in any home DSS felt would most benefit the children. DSS chose the Culvers, who had been a successful foster family for over five years.

DSS then filed a writ petition with this court and requested a stay of the evidentiary hearing, arguing the juvenile court usurped DSS’s authority under section 366.26, subdivision (j) when the court ruled that it, and not DSS, would decide the appropriate placement of minors. We issued an alternative writ of mandate, but denied the request for a stay of the evidentiary hearing.

At the evidentiary hearing, the parties stipulated that the Bringle home no longer was appropriate for the minors. The court also was made aware that the minors’ sister, Diana, had moved from the Stocktons’ residence to the home of her father. The court stated that, because DSS had exclusive custody and control of the minors, a presumption existed that DSS’s recommendation regarding placement was correct and CASA had the burden of proving otherwise. The following evidence was adduced at the hearing.

DSS adoptions caseworker Karen Baily, a licensed clinical social worker, testified that Theodore had been diagnosed with reactive attachment disorder, which meant he has difficulty bonding, has poor impulse control, and is insensitive to the needs of others. Because of this disorder, and based upon her experience with the minors, Baily opined that Theodore and Katelin need a home with flexibility and reasonable expectations of them as well as a family with no close-in-age children to deflect attention from the minors, who need substantial attention and a structured environment.

Baily and DSS were concerned about the Stocktons’ ability to parent Theodore, Katelin, and their siblings because Jasmine and Sacha also were overcoming emotional and behavioral problems, including attachment disorder and sexual acting out. In DSS’s view, this would affect the amount of individual attention the Stocktons could give to Theodore and Katelin. Furthermore, DSS was concerned about the emotional demands that Jasmine and Sacha would place on Theodore and Katelin who, due to their young age when they were removed from their parents’ home, did not understand that Jasmine and Sacha are their sisters. Bailey felt Theodore and Katelin needed an emotionally neutral environment in order to stabilize after problems which had occurred at the Bringles.

For these reasons, DSS had placed Theodore and Katelin with the Culvers, who Baily believed could best meet the minors’ needs. The Culvers were known to DSS, which had worked with them in the past and had been successful in using their home for transitioning children into eventual adoptive placement. The Culvers provided nurturing and firm limits, which are essential for the minors. Furthermore, the Culvers were not responsible for any young children, which would enable them to devote their full attention to the minors. The Culver home provided an emotionally neutral environment with no investment in adopting Theodore and Katelin, thereby allowing the minors to stabilize emotionally.

CASA presented evidence that the Stocktons had done an admirable job with Sacha and Jasmine, as well as Diana before she moved in with her father.

Dolores Williams, the counselor for Jasmine and Sacha, testified the Stocktons were a “quality family” with numerous hours of training on how to care for children who have attachment disorder and children who have been the victims of sexual abuse. According to Williams, Jasmine and Sacha were grieving the loss of their siblings and wanted to recreate their family unit. Williams opined that it would be therapeutic for them to have Theodore and Katelin placed in the same home, and that the Stocktons could handle and effectively parent all of the children. Although Sacha and Jasmine masturbated on occasion when under stress, they had not acted out sexually on each other and would not be a threat to Theodore and Katelin.

On cross-examination, Williams, who has a master’s degree in counseling but was not licensed, conceded she had the authority to recommend foster care placements but not adoptive placements. She admitted that Sacha’s and Jasmine’s need for contact with Theodore and Katelin could be met through frequent and ongoing visitation. Williams had spent one and a half hours evaluating Theodore, had never evaluated Katelin, and had spent a total of eight to ten hours with the two minors. She agreed that, in order to determine the best interests of Theodore and Katelin, she would need to evaluate them on an extended long-term basis. She also acknowledged that her testimony primarily addressed Sacha’s and Jasmine’s needs. Williams said she would not be willing to sacrifice the best interests of Theodore and Katelin in favor of Jasmine and Sacha, but stated that, if a qualified person who was better acquainted with Theodore and Katelin testified it would be harmful to place them with the Stockton family, Williams would defer to that opinion.

Kathy Stockton testified she was willing to adopt the four children and stated she was capable of caring for all of them. When asked about her back surgeries in 1993 and 1995, she indicated they were successful and her back condition would not hamper her from being able to physically care for the children.

DSS responded that it was not ruling out placement of Theodore and Katelin with the Stocktons. However, given the Stocktons’ interest in adopting, DSS wanted to do an adoptive home study first. DSS explained that adoptive placement is scrutinized more acutely than foster care placement; the fact that people are qualified as foster parents does not mean they necessarily would be approved as adoptive parents.

In DSS’s view, it was too risky to place Theodore and Katelin with the Stocktons on a trial basis pending the adoptive home study. If the placement did not work out or if the Stocktons were not approved as adoptive parents, it would be more damaging emotionally to remove the minors from the home and separate the siblings once again—a concern that did not exist if the Culver placement did not work out.

DSS’s witnesses agreed that siblings generally should be kept together if possible, but noted that the best interests of individual children could dictate otherwise. DSS believed it was not sufficient that Dolores Williams felt placing Theodore and Katelin with the Stocktons would be optimal for the minors. According to Constance Lathrop, a supervisor with Siskiyou County Human Services, she had worked with Williams for many years and learned that Williams was not able to assure the best needs for adoptive children. Williams previously had suggested foster placements with people who wished to adopt, and the placements had not worked out. Furthermore, by her own admission, Williams was more familiar with the needs of Jasmine and Sacha than those of Theodore and Katelin.

DSS also wanted to ensure that Mrs. Stockton’s back injury was healed as successfully as she indicated, but it had not yet seen a medical report to this effect. In addition, DSS wanted to make sure that Jasmine’s and Sacha’s sexual acting out would not be directed toward the minors. An adoptive home study would provide the information DSS needed regarding these matters and the Stocktons’s ability to parent four emotionally needy children. Until completion of the home study, supervised visits between the siblings would enable them to maintain contact without placing undue emotional burdens on Theodore and Katelin.

Citing section 366.3, subdivision (e)(1) and (e)(4), the juvenile court ruled that the current placement of the children with the Culvers was not appropriate and that the proposed services to the children were not adequate. The court ordered DSS to place Theodore and Katelin with their siblings in the Stocktons’ home until an adoptive home study was completed and adoptive placement was identified. The court noted it was not dealing merely with the best interest of Theodore and Katelin; rather, the best interest of all of the siblings was at issue. Citing section 16002 as an indication of the Legislature’s intent to have siblings placed together whenever possible, the court found that the detriment to Sacha and Jasmine if the siblings were not placed together outweighed the possible detriment to the Theodore and Katelin expressed by DSS.

The judge also noted that he was adopted himself, had raised adopted children, and could assure all the parties that a sense of family unity and sibling contact will become increasingly important as time progresses. He stated: “[I]n chapter 28 of Deuteronomy, the blessings of obedience to God are measured against the curses of disobedience. After such curses as sickness, death and even cannibalism, the ultimate curse in verse 64 is that, ‘the Lord will scatter you among all peoples, from one end of the earth to the other. . . .’ These siblings have been scattered and this Court has the opportunity at this point in time to reunite them. This Court. . . does not wish to have to explain to them later, why such an opportunity was ignored.”

DSS filed a timely appeal from the juvenile court’s “Ruling re Contested [Section] 388 petition & Status Review Hearing,” in which the court directed the agency to place Theodore and Katelin in the Stockton home.

Discussion

I

DSS contends the juvenile court erred in substituting its judgment for that of DSS and vetoing DSS’s placement of Theodore and Katelin pending the filing of an adoption petition. DSS argues the Legislature has given it the exclusive care, custody and control of minors referred for adoptive placement following the termination of parental rights (§ 366.26, subd. (j)), and this encompasses interim foster care placement of the minors. DSS does not dispute that the juvenile court retains jurisdiction over the minors until they are adopted and may review the appropriateness of the minors’ placement (§ 366.3, subds. (a), (d), (e)), but asserts that this does not mean the court can usurp the authority of DSS by using independent judgment to select a different foster home which the court prefers. Rather, the court must review DSS’s placement decision under an abuse of discretion standard. According to DSS, no such abuse is demonstrated in the present case.

The resolution of this matter turns upon the interpretation of three statutes—section 366.26, section 366.3 and Family Code section 8704. In construing these sections, we look to the words of the statutes to ascertain legislative intent and effectuate the purpose of the law. (Gooch v. Hendrix (1993) 5 Cal.4th 266, 282 [19 Cal.Rptr.2d 712, 851 P.2d 1321]; In re Heraclio A. (1996) 42 Cal.App.4th 569, 574 [49 Cal.Rptr.2d 713].) The ordinary, commonsense meaning of the words generally applies, and the plain meaning of the language governs as the Legislature is presumed to have meant what it said. (Lennane v. Franchise Tax Bd. (1994) 9 Cal.4th 263, 268 [36 Cal.Rptr.2d 563, 885 P.2d 976]; Younger v. Superior Court (1978) 21 Cal.3d 102, 113 [145 Cal.Rptr. 674, 577 P.2d 1014]; Western Growers Ins. Co. v. Workers’ Comp. Appeals Bd. (1993) 16 Cal.App.4th 227, 240 [20 Cal.Rptr.2d 26]). When the words are clear, there is no room for interpretation. (Rossi v. Brown (1995) 9 Cal.4th 688, 695 [38 Cal.Rptr.2d 363, 889 P.2d 557]; Western Growers Ins. Co. v. Workers’ Comp. Appeals Bd., supra, at p. 240.)

Section 366.26, subdivision (j) provides: “If the court, by order or judgment declares the minor free from the custody and control of both parents, or one parent if the other does not have custody and control, the court shall at the same time order the minor referred to the State Department of Social Services or a licensed adoption agency for adoptive placement by the agency. However, no petition for adoption may be granted until the appellate rights of the natural parents have been exhausted. The State Department of Social Services or licensed adoption agency shall be responsible for the custody and supervision of the minor and shall be entitled to the exclusive care and control of the minor at all times until a petition for adoption is granted. With the consent of the agency, the court may appoint a guardian of the minor, who shall serve until the minor is adopted.” (Stats. 1995, ch. 540, § 6, italics added.)

Similarly, Family Code section 8704, subdivision (a), which governs a child’s adoptive placement whether the child was freed for adoption under section 366.26 or was voluntarily relinquished for adoption (In re David H. (1995) 33 Cal.App.4th 368, 379 [39 Cal.Rptr.2d 313]), provides: “The department or licensed adoption agency to which a child has been freed for adoption by either relinquishment or termination of parental rights is responsible for the care of the child, and is entitled to the exclusive custody and control of the child until an order of adoption is granted. Any placement for temporary care, or for adoption, made by the department or a licensed adoption agency may be terminated in its discretion at any time before the granting of an order of adoption. In the event of termination of any placement for temporary care or for adoption, the child shall be returned promptly to the physical custody of the department or licensed adoption agency.” (Stats. 1992, ch. 162, § 10, p. 231, italics added.) Subdivision (b) of section 8704 of the Family Code provides that court approval to remove a child from the home of prospective adoptive parents is required only after a petition for adoption has been filed.

The words of these statutes are clear. The Legislature has granted to the agency, in this case DSS, the exclusive custody, control and supervision of a child referred for adoptive placement. “Exclusive” means sole, excluding others from participation, and vested in one person alone. (Webster’s New Intern. Dict. (3d ed. 1986) p. 793; Black’s Law Dict. (6th ed. 1990) p. 564, col. 1.) This exclusive authority expressly includes decisions on adoptive placement as well as temporary care, i.e. foster care placement pending adoptive placement. Moreover, the Legislature explicitly has provided that, prior to the filing of a petition for adoption, the agency may change an adoptive placement at its discretion. (But see C.V.C. v. Superior Court (1973) 29 Cal.App.3d 909 [106 Cal.Rptr. 123].)

This clear grant of exclusive authority and discretion over adoptive placement and temporary care pending such placement evidences a legislative intent to defer to DSS’s expertise once parental rights have been terminated and a child is referred for adoption. This deference is evidenced further by the fact that DOS’s consent is necessary for the court to appoint a guardian for a minor referred for adoption. (§ 366.26, subd. (j).)

It is equally clear that, notwithstanding section 366.26 subdivision (j) and Family Code section 8704, DSS’s discretion regarding adoptive placement and interim foster care placement is not unfettered because the Legislature has authorized the juvenile court to review the agency’s exercise of discretion.

Section 366.3 provides in pertinent part: “(a) If a juvenile court orders a permanent plan of adoption or legal guardianship pursuant to Section . . . 366.26, the court shall retain jurisdiction over the minor until the minor is adopted or the legal guardianship is established. The status of the minor shall be reviewed every six months to ensure that the adoption or guardianship is completed as expeditiously as possible. When the adoption of the minor has been granted the court shall terminate jurisdiction over the minor. HQ . . . [*]Q (d) If the minor is in a placement other than the home of a legal guardian and jurisdiction has not been dismissed, the status of the minor shall be reviewed every six months. This review may be conducted by the court or an appropriate local agency. The court shall conduct the review under the following circumstances: [IQ (1) Upon the request of the minor’s parents or guardians. ['JQ (2) Upon the request of the minor. [<]Q (3) It has been 12 months since a hearing held pursuant to Section 366.26 or an order that the minor remain in long-term foster care . ... [‘JO (4) It has been 12 months since a review was conducted by the court. [‘JQ (e) At the review held every six months pursuant to the subdivision (d), the reviewing body shall inquire about the progress being made to provide a permanent home for the minor and shall determine all of the following: [