BARON, J., Concurring and Dissenting. I concur in part and dissent in part. I agree with the majority that the question of whether Cordelia B. or Mr. and Mrs. G. should adopt Paul is not at issue in this writ petition, and I too conclude that the juvenile court should be directed to vacate its order denying the Los Angeles County Department of Children and Family Services’ (DCFS) request to transfer Paul from the G.’s home to Cordelia B.’s home. However, I reach this conclusion on different grounds, and my reasoning leads me to dissent in part from the relief ordered by the majority.
The attack on the constitutionality of Welfare and Institutions Code section 366.26, subdivision (j),1 made by Paul, the G.’s, and the court appointed special advocate (CASA) persuades me to diverge from my colleagues’ views. Substantial justice calls out for this court to consider arguments on the important constitutional issue involved in this case, even though it was not raised before the juvenile court. (See Bonner v. City of Santa Ana (1996) 45 Cal.App.4th 1465, 1476-1477 [53 Cal.Rptr.2d 671].)
Children like Paul who have been freed for adoption are not chattels, and we should not lose sight of their deepest interests in the thicket of conflicts surrounding their adoption. (See In re Bridget R. (1996) 41 Cal.App.4th 1483, 1506-1507 [49 Cal.Rptr.2d 507].) Paul has fundamental and constitutionally protected interests in his relationships with families to which he has emotional ties (ibid.), and hence a due process right to a meaningful voice in decisions that affect these interests. In my view, the gravity of his constitutional concerns requires us to hear his voice in this court.
Paul must be heard in the juvenile court as well. The decision about where Paul resides pending his permanent adoptive placement may have a significant impact on the ultimate adoptive decision in his case. It is my position that, because Paul has a fundamental interest in where he will be placed pending the final adoption decision in his case, that he was entitled to an [14]evidentiary hearing in which the parties were accorded the right to present supporting and rebutting evidence, and to receive a ruling based on the juvenile court’s independent assessment of that evidence. The record reflects that Paul requested such a hearing, and that the juvenile court denied this request. Although it granted Paul’s request to remain in the G.’s home, the court did so based upon its personal judgment, uninformed by the totality of the evidence upon which judges reach objective well-reasoned decisions.
Therefore, it is not surprising that the record and the oral arguments of the parties before this court disclose serious and unresolved factual disputes which we, as an appellate court, cannot settle. Accordingly, the juvenile court’s order must be vacated.
I further conclude that the majority’s order mandating the juvenile court to grant DCFS’s request to return Paul to the care of Cordelia B. in Los Angeles, based upon its interpretation of subdivision (j) of section 366.26, violates Paul’s right to procedural due process concerning his fundamental interests. I think subdivision (j) is constitutionally infirm unless it permits Paul an evidentiary hearing and independent judicial review of DCFS’s request. Accordingly, I would direct the juvenile court to vacate its order and reconsider the matter after an appropriate evidentiary hearing.
A. Due Process
The majority concludes that DCFS did not abuse its discretion in deciding to return Paul to Cordelia B.’s home, and that the juvenile court improperly failed to defer to DCFS’s request. Citing Department of Social Services v. Superior Court (1997) 58 Cal.App.4th 721 [68 Cal.Rptr.2d 239] (hereafter Theodore D.), the majority reasons that section 366.26, subdivision (j), mandates deferential review of DCFS’s placement decisions by the juvenile court.
Subdivision (j) of section 366.26, as so understood, denies Paul procedural due process because it bars him from meaningfully litigating DCFS’s temporary placement decisions, which in turn, can critically impact the final adoptive decision in his case. The federal and state Constitutions “guarantee that no state shall deprive any person of life, liberty or property without due process of law” (In re Marilyn H. (1993) 5 Cal.4th 295, 306 [19 Cal.Rptr.2d 544, 851 P.2d 826]), although the state due process clause sweeps more broadly than the analogous federal clause (San Jose Police Officers Assn. v. City of San Jose (1988) 199 Cal.App.3d 1471 [245 Cal.Rptr. 728]).
Under the federal Constitution, the guarantee of due process “requires notice and an opportunity to be heard before an individual suffers governmental deprivation of a fundamental interest. Entitlement to procedural [15]protections depends upon the extent to which ‘grievous loss’ is threatened; it requires the court to weigh the individual’s interest in avoiding the loss against the governmental interest in summary adjudication. The opportunity for hearing must precede, not follow, the deprivation, except for extraordinary occasions where some valid governmental interest justifies summary deprivation. The formalities and procedural requisites for the hearing may vary according to the quality of the governmental function, the character of the private interest and the nature of the subsequent proceedings.” (C.V.C. v. Superior Court (1973) 29 Cal.App.3d 909, 915-916 [106 Cal.Rptr. 123], fns. omitted.)
Here, subdivision (j) of section 366.26 provides that once a minor is declared free of parental custody and control, DCFS “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.” Under section 366.3, subdivision (d), the minor in a preadoption placement may petition for reviews at six-month intervals to assess “[t]he appropriateness of the placement.” (§ 366.3, subd. (e)(1).)
In Theodore D., supra, 58 Cal.App.4th at page 733, the court reasoned that this statutory language was clear and evidenced the Legislature’s intent “to defer to DSS’s expertise once parental rights have been terminated and a child is referred for adoption.” The court thus concluded that “prior to the filing of a petition for adoption, [an agency such as DCFS] may change an adoptive placement at its discretion,” and that “the juvenile court is limited to reviewing whether [the agency] abused its discretion in placing the minor or in determining that the placement, once made, remains appropriate. [Citation.]” (Id. at pp. 733, 734.)
That subdivision (j) of section 366.26, as so interpreted, denies Paul due process is evident when viewed in context with C.V.C. v. Superior Court, supra, 29 Cal.App.3d 909. In C.V.C., a county welfare agency placed an 18-month-old girl with the C.’s as prospective adoptive parents. (See id. at p. 912.) The agency then decided to remove the girl from the C.’s’ home pursuant to former Civil Code section 224n, a predecessor of Family Code section 8704, which granted the agency “custody and control” over children freed for adoption, and the discretion to terminate a placement for adoption “ ‘at any time prior to the granting of a petition for adoption.’ ” (29 Cal.App.3d at p. 914 & fn. 3.) The superior court denied the C.’s’ writ petition, reasoning that its role was limited to reviewing the agency’s actions for abuse of discretion. (Id. at p. 914.)
The court in C.V.C. concluded that former Civil Code section 224n denied the C.’s procedural due process under the federal Constitution because, inter [16]alia, judicial review for abuse of agency discretion did not give adequate protection to the C.’s’ interest as prospective adoptive parents. (C.V.C. v. Superior Court, supra, 29 Cal.App.3d at pp. 915-920.) The court reasoned that this interest was “fundamental” due to “its effect in human terms and its importance to [their] life situation”: “Gain of a child for adoption fulfills the prospective parents’ most cherished hopes. The event marks the onset of a close and meaningful relationship. The emotional investment does not await the ultimate decree of adoption. Love and mutual dependence set in ahead of official cachets, administrative or judicial. The placement initiates the ‘ “closest conceivable counterpart of the relationship of parent and child.” ’ [Citation.] To characterize enforced removal of the child as a ‘grievous loss’ is to state the obvious.” (Id. at p. 916, fn. omitted.)
The C.V.C. court recognized that the state had a weighty interest in promoting the interests of children through agency action. It determined that former Civil Code section 224n expressed a firm legislative design “to elevate the placement agency’s discernment of danger above the interests of the prospective parents.” (C.V.C. v. Superior Court, supra, 29 Cal.App.3d at p. 916.) Nonetheless, the C.V.C. court held that due process entitled the C.’s to “a ‘limited’ trial de novo” and independent judicial review of the agency’s determination.2 (Id. at pp. 916, 919-920.)
The court in Marten v. Thies (1979) 99 Cal.App.3d 161, 168, 171 [160 Cal.Rptr. 57] adopted C.V.C.’s analysis to “guard against the possibility of arbitrary agency action,” by holding that a juvenile court “correctly applied the independent judgment test in weighing the evidence” of an agency’s decision in removing a child from her preadoptive home even though former Civil Code section 224n gave the adoption agency “exclusive custody and control of the child at all times until a petition for adoption has been granted.” Similarly, in Jinny N. v. Superior Court (1987) 195 Cal.App.3d 967, 972-973 [241 Cal.Rptr. 95], the court followed C.V.C., even though [17]Civil Code former section 224n uses language tracking subdivision (j) of section 366.26, to accord agencies “exclusive custody and control” of preadoptive children3 by holding that “prospective adoptive parents are constitutionally entitled to notice and hearing if an agency seeks to remove a child from their home even before a formal petition for adoption has been filed. [Citation.]” (195 Cal.App.3d at p. 971, original italics.)
In view of C.V.C. and its progeny, Paul, too, is entitled to an evidentiary hearing and independent judicial review of DCFS’s proposal to return him to Cordelia B. provided he has a suitably fundamental interest in his placement with the families that wish to adopt him. Although no court has squarely addressed this issue, several courts have stated that placing a child in long-term foster care or a prospective adoptive home implicates the child’s independent and fundamental interests. Closest to point is In re Bridget R., supra, 41 Cal.App.4th 1483, in which the court confronted a federal law granting Indian tribes jurisdiction over custody proceedings involving Indian children. (Id. at pp. 1496-1498.) The court declined to apply the law to twins in a prospective adoptive home, reasoning that the twins had a fundamental and constitutionally protected interest in their relationship with the only family they had ever known. (Id. at pp. 1507, 1511-1512.)
The Supreme Court in In re Jasmon O. (1994) 8 Cal.4th 398 [33 Cal.Rptr.2d 85, 878 P.2d 1297], a case pitting a father against a child’s long-term foster parents, recognized that “[c]hildren, too, have fundamental rights—including the fundamental right to be protected from neglect and to ‘have a placement that is stable [and] permanent.’ [Citations.]” (Id. at p. 419.) Likewise, in In re Arturo A. (1992) 8 Cal.App.4th 229 [10 Cal.Rptr.2d 131], the court “adopt[ed] the proposition that a child has a constitutional right to a reasonably directed early life, unmarred by unnecessary and excessive shifts in custody” although it had “difficulty in finding any specific authority for this proposition.” (Id. at p. 241, fn. 6.)
In addition, siblings may have a fundamental interest in living in the same family in order to preserve their relationships with one another. (In re Devin [18]M. (1997) 58 Cal.App.4th 1538, 1541 [68 Cal.Rptr.2d 666]; In re Nachelle S. (1996) 41 Cal.App.4th 1557, 1562 [49 Cal.Rptr.2d 200].) The Legislature has made it abundantly clear that separating siblings is presumptively detrimental to their best interests. (§ 16002.)4 I read section 16002 to mean that dependent children have a fundamental interest in maintaining a relationship with their siblings in a common home, unless “sibling interaction is detrimental to a child or children.” (§ 16002, subd. (b).) Accordingly, separated siblings can suffer a “ ‘grievous loss’ ” that entitles them to the same due process rights as prospective adoptive parents. (See C.V.C. v. Superior Court, supra, 29 Cal.App.3d at p. 916.)
Here, Paul has emotional relationships with two loving families that want to adopt him, and one of these families includes Paul’s sibling. The choice between these families will permanently shape the contours of his life. The “effect [of this choice] in human terms and its importance to [Paul’s] life situation” is unmistakable. (C.V.C. v. Superior Court, supra, 29 Cal.App.3d at p. 916.) Under C.V.C., Bridget R., and the other authority described above, [19]he has a fundamental interest in the decisionmaking process and its outcome. Thus, Paul is entitled to have the juvenile court conduct an evidentiary hearing and independently review DCFS’s placement decision.5
I think the majority misplaces its reliance on Theodore D. In Theodore D. the department of social services placed five siblings freed for adoption in two different homes pending adoption. The court-appointed counsel for some of the siblings sought their placement in a single home. (58 Cal.App.4th at pp. 725-730.) Following an evidentiary hearing, the juvenile court ordered the siblings placed in a single home. (Id. at pp. 730-731.) The appellate court reversed the juvenile court, distinguished C.V.C., and rejected constitutional challenges to section 366.26, subdivision (j), holding that the Legislature had placed the children in the “exclusive control” of the agency and citing the siblings’ failure to show that they had a fundamental interest in living in a single home. Under its statutory analysis, the appellate court held that the juvenile court improperly failed to review the agency’s decisions under the abuse of discretion standard. (58 Cal.App.4th at pp. 734-737, 741-743.)
For the reasons cited above, I disagree with Theodore D. insofar as it held that sibling relationships are not “akin to a parent-child relationship,” and rejected C.V.C.’s “judicial review of the agency’s decision . . . using the independent judgment standard” because the siblings in question were not being removed from the home of prospective adoptive parents. In my opinion, the relationships among the siblings in Theodore D. helped bind together the “only family they had ever known” prior to their placement in separate foster homes. (See In re Bridget R., supra, 41 Cal.App.4th at p. 1507.) Given the interest at stake, I think the juvenile court in Theodore D. properly conducted an independent review of the agency’s decision to divide the group of siblings between two foster homes. The appellate court failed to recognize that the siblings’ fundamental interests were impacted by that agency’s decision. Thus, too, the appellate court erred in its standard of review. It should have limited its review of the juvenile court’s decision to the existence of substantial evidence. (See Marten v. Thies, supra, 99 [20]Cal.App.3d at p. 171; cf. Davis v. Civil Service Com. (1997) 55 Cal.App.4th 677, 686 [64 Cal.Rptr.2d 121],)6
In sum, Paul has a fundamental interest in dwelling with his sibling, and in the decision to place him with one of the loving families that wish to adopt him. He is therefore entitled to independent judicial review of DCFS’s transfer request based upon an evidentiary hearing at which all of the pertinent facts can be made known to the court.
B. Evidentiary Hearing
Here, the juvenile court erred in substituting its independent judgment that the requested transfer was not in Paul’s best interest, without holding a suitable evidentiary hearing in which the court properly weighed the evidence presented by DCFS, both prospective adoptive families, and the minor through his attorney and CASA. When, as here, the issue concerns placement pending adoption and “no administrative hearing was prescribed, none occurred and no evidentiary record was created . . . , the court should receive and consider any competent evidence produced by either side. [Citation.]” (C.V.C. v. Superior Court, supra, 29 Cal.App.3d at p. 920.)
The record discloses that DCFS framed its transfer request in terms of its authority under section 366.26, subdivision (j), and the statutory adoption [21]preference accorded foster parents such as Cordelia B. under section 366.26, subdivision (k). At the hearing on DCFS’s request, Paul’s counsel and CASA (who also serves as Paul’s guardian ad litem) opposed the request, and CASA asked for an evidentiary hearing. The juvenile court declined to grant a hearing, and denied DCFS’s request because, absent DCFS’s delays, Paul would have been in the G.’s home before Cordelia B. decided to adopt Paul, and because it believed that it was in Paul’s best interest to stay in the G.’s home.
Because no evidentiary hearing was held, the juvenile court’s determinations rested on an undeveloped and conflict-ridden record. Regardless of the tangled proceedings prior to the hearing on DCFS’s request, Paul is presently in Oregon living with the G.’s, and there is little or no evidence, merely the conflicting opinions of the parties, concerning the effects on Paul of returning him, or not returning him, to Cordelia B.
The record is similarly undeveloped with respect to DCFS’s purported delays, Cordelia B.’s change of mind, and the proper applications of the statutory adoption preference in section 366.26, subdivision (k) and sibling preference in section 16002. The record suggests that as early as June 1996, DCFS was told that Paul’s sibling had been placed in an adoptive home, yet DCFS appears to have delayed in following up on this information. Furthermore, when the G.’s told DCFS that they wished to adopt Paul in January 1997, they were informed that the requisite arrangements for Paul’s transfer to them would be made in a month or six weeks, yet their phone calls to DCFS went unretumed and the Interstate Compact took several months to complete. Although DCFS reported to the juvenile court as late as May 22, 1997, that Cordelia B. had agreed to Paul’s adoption by the G.’s, a subsequent report contains conflicting statements. In a report dated June 6, 1997, DCFS indicated Cordelia B. had filed an adoption application in March 1997, and that DCFS knew that she had been considering pursuing her application since April 1997, after a social worker discussed her rights with her. However, the juvenile court did not permit the evidence on these and related issues to be developed.
Because the parties were not given an opportunity to produce competent evidence on the issues pertinent to DCFS’s transfer request, Paul was denied a constitutionally adequate evidentiary hearing on a matter of grave importance to him. I would direct the juvenile court to reconsider the matter and exercise its independent judgment on the transfer request following an [22]evidentiary hearing at which the juvenile court must “receive and consider any competent evidence produced by either side. [Citation.]” (C.V.C. v. Superior Court, supra, 29 Cal.App.3d at p. 920.)
A petition for a rehearing was denied April 6, 1998, and the petition of real parties in interest for review by the Supreme Court was denied June 10, 1998.
All further statutory citations are to this code unless otherwise indicated.
In my discussion I have substituted “evidentiary hearing” as a more accurate term than “ ‘limited’ trial de novo.” As the C.V.C. court explained: “Relative to the permissible range of evidence, the hearing should not be beclouded by decisional references to a ‘limited’ trial de novo. Such references occur in the context of judicial review after a formal administrative hearing decreed by statute or regulation. (See Bixby v. Piemo [(1971)] 4 Cal.Sd [130] at p. 143 [93 Cal.Rptr. 234, 481 P.2d 242]; cf. Code Civ. Proc., § 1094.5, subds. (a), (d).) They are designed to prevent a party from making a skeleton showing at the administrative hearing to be fleshed out later in court. (Dare v. Bd. of Medical Examiners (1943) 21 Cal.2d 790, 795 . . . .)” (C.V.C. v. Superior Court, supra, 29 Cal.App.3d at p. 920.) In C.V.C., as in the present case, “. . . no administrative hearing was prescribed, none occurred and no evidentiary record was created. Absent such a record, the court should receive and consider any competent evidence produced by either side. (Dare v. Bd. of Medical Examiners, supra, 21 Cal.2d at pp. 797-798.)” (C.V.C. v. Superior Court, supra, at p. 920.)
Former Civil Code section 224n, subdivision (a) read as follows: “ ‘The department or licensed adoption agency to which a child has been freed for adoption by either relinquishment or termination of parental rights shall be responsible for the care of the child, and shall be entitled to the exclusive custody and control of the child until either an interlocutory decree of adoption or a final decree of adoption has been granted. Any placement for temporary care, or for adoption made by the department or a licensed adoption agency, may be terminated at its discretion at any time prior to the granting of an interlocutory decree of adoption or final decree 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 agency.’ ” (Jinny N. v. Superior Court, supra, 195 Cal.App.3d at p. 971, fn. 3, italics added.)
Section 16002 states in pertinent part: “(a) It is the intent of the Legislature to maintain the continuity of the family unit, and ensure the preservation and strengthening of the minor’s family ties by ensuring that when siblings have been removed from their home, either as a group on one occurrence or individually on separate occurrences, the siblings will be placed in foster care together, unless it has been determined that placement together is not in the best interest of one or more siblings. The Legislature recognizes that in order to ensure the placement of a sibling group in the same foster care placement, placement resources need to be expanded.
“(b) The responsible local agency shall make a diligent effort in all out-of-home placements of dependent children, including those with relatives, to maintain sibling togetherness and contact. When maintaining sibling togetherness is not possible, diligent effort shall be made, and a case plan prepared, to provide for ongoing and frequent interaction among siblings until family reunification is achieved, or, if parental rights are terminated, as part of developing the permanent plan for the child. If the court determines by a preponderance of the evidence that sibling interaction is detrimental to a child or children, the reasons for the determination shall be noted in the court order, and interaction shall be suspended.
“(c) When there has been a judicial suspension of sibling interaction, the reasons for the suspension shall be reviewed at each periodic review hearing pursuant to Section 366. When the court determines that sibling interaction can be safely resumed, that determination shall be noted in the court order and the case plan shall be revised to provide for sibling interaction.
“(d) If the case plan for the minor has provisions for sibling interaction, the minor, or his or her parent or legal guardian shall have the right to comment on those provisions.
“(e) By February 1, 1995, the State Department of Social Services shall conduct a study, including the review of existing licensing laws and regulations, to identify barriers that limit the placement resources available for sibling groups and to develop solutions to those barriers. The study shall include exploring the feasibility of providing incentives to foster parents to ensure their availability to accept sibling groups, and providing support services to foster parents and relatives that would enable them to accept sibling groups. The study shall also explore appropriate alternatives to placement of siblings.
“(f) For the purpose of placement and visitation ‘sibling’ is defined as sister, brother, half-sister, half-brother, or as appropriate, stepsister or stepbrother.”
This conclusion is not disturbed by Paul’s inability to articulate his interests. Paul has a court-appointed special advocate and guardian ad litem, and is represented by court-appointed counsel, charged by statute with advocating Paul’s independent interests. (§ 317, subds. (c), (e).) At least two courts have recognized that permitting such counsel to challenge agency decisions and to present evidence concerning a minor’s interests contrary to agency determinations promotes reliable assessments of the minor’s welfare. (Guadalupe A. v. Superior Court (1991) 234 Cal.App.3d 100, 105-107 [285 Cal.Rptr. 570]; Allen M. v. Superior Court (1992) 6 Cal.App.4th 1069, 1073-1075 [8 Cal.Rptr.2d 259].)
Under this standard, the facts recited in Theodore D. raise the inference that substantial evidence did not support the juvenile court’s determination because the juvenile court substituted its personal experience as an adopted child and an adoptive parent for the overwhelming evidence presented by the agency that placement of the siblings in one home was not in the best interest of any of the children and would actually be detrimental to all of them. (See Theodore D., supra, 58 Cal.App.4th at pp. 725-731.) “The objective of [the juvenile court in conducting a] de novo judicial review is not to supplant the adoption agency or to denigrate the expertise of trained social workers. Their decisions and their expert opinions should be received with respect. Rather, the objective is to prevent arbitrary judgments; to guard against placement terminations generated by the subjective inclinations of case workers and supervisors untaught in the analysis of evidence and not doctrinated in the concept of fair hearing; to promote fairness by interposing a law-trained judge between the agency and prospective parents [and minors]; to insure that the ultimate decision is firmly hinged to the only permissible criterion—the welfare of the child.” (C.V.C. v. Superior Court, supra, 29 Cal.App.3d at p. 919, fn. omitted.)
In a caveat to the foregoing quotation, the C.V.C. court noted: “Realism, however, compels recognition of the following observation: ‘Although adoption agencies are supposed to be guided solely by what is most beneficial to the child entrusted to them, it is only natural that they develop the conviction at times that their decisions and choices concerning a child’s future are superior to those of others.’ (Bodenheimer, [The Multiplicity of Child Custody Proceedings—Problems of California Law (1971)] 23 Stan.L.Rev. 703, 717, quoted in San Diego County Dept, of Pub. Welfare v. Superior Court [(1972)] 7 Cal.3d [1] at p. 10, fn. 4 [101 Cal.Rptr. 541, 496 P.2d 453].)” (C.V.C. v. Superior Court, supra, 29 Cal.App.3d at p. 919, fn. 14.) It bears remembering that judges, too, are not immune from this natural tendency.