Other Cases Affecting Children

Adoption of Baby Girl B. (1999) 74 Cal.App.4th 43 [87 Cal.Rptr.2d 569] Court of Appeal, Fourth District, Division 2.

The trial court, without holding an evidentiary hearing, denied the petition of a prospective adoptive mother for the adoption of a baby girl. The baby girl was initially placed with the mother by the local county social services agency. The denial was based on the state DSS of Social Services (DSS) report stating that the mother had failed to respond to the DSS requests for information, was unemployed, had a criminal record and was living with her ex-husband and son both of whom had criminal records. The report concluded that the mother’s home was not suitable for the baby girl. The mother filed a motion to vacate the order, which was denied by the trial court. The mother appealed, claiming that the denial of the evidentiary hearing was a denial of her and the baby’s due process rights as well as the baby’s right to equal protection. Furthermore, she claimed that the denial of the motion to vacate the order was an error because (1) DSS failed to give adequate notice of the reasons for and nature of the order it was seeking, (2) the order was due to excusable neglect on the part of the mother, and (3) DSS filed its report in an untimely fashion.

The appellate court found that it was reversible error per se to deny the mother an evidentiary hearing. Although the court found that prospective adoptive parents have a constitutionally protected liberty interest in the care and custody of the child that has been placed with them, the issue was resolved on statutory grounds. The court found that the mother was statutorily entitled to an evidentiary hearing according to Family Code section 8612(a), which requires the court to "examine all persons appearing before it pursuant to this part." The event that triggers the need for an evidentiary hearing is the DSS adverse report, which must be submitted for the court’s review according to Family Code section 8822(a). They reasoned that if the court were powerless to grant an adoption without a favorable report from DSS, then there would be no reason to have the court review the report. Since the report must be reviewed at the hearing on the petition for an adoption, the report must be admissible into evidence. The court found that there was no statute analogous to the dependency statutes that provided for the admissibility of social services’ reports. DSS would have to call witnesses in order to substantiate the report. Likewise, the court found that the petitioner is not given the opportunity to file any further pleadings or declarations in response to the report and therefore must present witnesses to oppose the report. The lack of provisions in the Family Code allowing for the submission of papers that would give the court the opportunity to rule on the report as if it were a motion leads the appellate court to the conclusion that the Family Code must have contemplated an evidentiary hearing.

The appellate court rejected the DSS claim that because the baby was in imminent danger, necessitating swift action, the trial court could deny the petition for adoption without holding an evidentiary hearing.The appellate court held that the danger to the child must be weighed against the parent’s interest in a prior hearing and that if that must yield to the child’s safety interest, the parent is still entitled to a postseparation hearing. The court reasoned that even in the most extreme of situations, where the child is in so much danger that he or she is removed pursuant to the dependency statutes, a petition must be filed within 48 hours and an evidentiary hearing held on the next judicial day. The court held that no matter how serious the danger the baby was in, at some point the mother was entitled to an evidentiary hearing.

The appellate court reversed the order denying the adoption petition and removing the baby from the mother’s custody. However, because the child had been in the custody of other caregivers while this appeal was pending (more than one and a half years), the appellate court left the issue of custody to the trial court to decide based on the child’s best interests.