Filed 1/15/14 Ramon S. v. Super. Ct. CA5 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT

RAMON S., 

Petitioner, 

 v. 

THE SUPERIOR COURT OF KERN COUNTY, 

Respondent; 

KERN COUNTY DEPARTMENT OF HUMAN 

SERVICES, 

 Real Party in Interest. 

F068178 

(Super. Ct. Nos. JD128017, 

JD128018) 

GABRIELLA R., 

Petitioner, 

 v. 

THE SUPERIOR COURT OF KERN COUNTY, 

Respondent; 

KERN COUNTY DEPARTMENT OF HUMAN 

SERVICES, 

 Real Party in Interest. 

F068179 

(Super. Ct. Nos. JD128017, 

JD128018) 

LESLIE S. et al., 

Petitioners, 

 v. 

THE SUPERIOR COURT OF KERN COUNTY, 

Respondent; 

KERN COUNTY DEPARTMENT OF HUMAN 

SERVICES, 

 Real Party in Interest. 

F068180 

(Super. Ct. Nos. JD128017, 

JD128018) 

RUBEN S. et al., 

Petitioners, 

 v. 

THE SUPERIOR COURT OF KERN COUNTY, 

Respondent; 

KERN COUNTY DEPARTMENT OF HUMAN 

SERVICES, 

 Real Party in Interest. 

F068181 

(Super. Ct. No. JD128017, 

JD128018) 

OPINION 
2 

THE COURT

 ORIGINAL PROCEEDINGS; petition for extraordinary writ review. William D. 

Palmer, Judge. 

 David Duket, for Petitioner, Ramon S. 

 Keenan S. Perkins, for Petitioner, Gabriella R. 

 Konrad Moore, Public Defender and Valerie Renae Harrison, Deputy Public 

Defender, for Petitioners, Leslie S. et al. 

 Law Office of Glenn E. Stern and Glenn E. Stern, Jan T. Aune, and Richard 

Coberly, for Petitioners R.S. et al. 

 No appearance for Respondent. 

 Theresa A. Goldner, County Counsel, and Kelley D. Scott, Deputy County 

Counsel, for Real Party in Interest. 

-ooOooINTRODUCTION 

Petitioners seek an extraordinary writ (Cal. Rules of Court, rule 8.452 (rule 8.452)) 

from the juvenile court’s orders issued at a combined Welfare and Institutions Code 

section 366.21, subdivision (f) and Welfare and Institutions Code section 3881 hearing in 

which the juvenile court denied the section 388 petition and set the matter for a hearing 

pursuant to section 366.26. The petitioners are the potential adoptive parents, Mr. and 

Mrs. S.; Ramon S. (father); Gabriella R. (mother); and the children, Leslie and Laylah S., 

 

 Before Levy, Acting P.J., Gomes, J., and Kane, J. 

1 All further statutory references are to the Welfare and Institutions Code unless 

otherwise indicated. 
3 

who were born in January 2011.2 We do not find error and affirm the rulings and orders 

of the juvenile court. 

FACTS AND PROCEEDINGS 

Early Proceedings 

 On January 9, 2012, the Kern County Department of Human Services 

(department), filed a petition pursuant to section 300 alleging that mother had left Leslie 

and Laylah with their maternal grandmother on December 31, 2011, despite being 

informed by the grandmother that she could not care for the children. Mother had been 

leaving the children with the grandmother on a regular basis and failed to return for 

several days. Mother’s whereabouts were unknown. The petition further alleged that the 

children were at risk due to mother’s methamphetamine and marijuana use, mother had 

recently tested positive for marijuana, and mother had left the children with the 

grandmother without provisions for support. The petition stated mother was unable to 

care for her children. The children were detained on January 11, 2012. 

 On February 2, 2012, the children were placed with their current foster parents, 

Mr. and Mrs. C. At the jurisdiction hearing on February 16, 2012, the court found the 

allegations in the petition true after the parents waived their rights to a contested hearing. 

Father, who was being housed in juvenile hall, was permitted visits twice a month. 

Mother was not present at the March 20, 2012, disposition hearing. Father was 

present but in custody. The juvenile court ordered that the parents were to receive 

reunification services for a period not to exceed six months. The parents were ordered to 

attend parent training and substance abuse counseling and submit to random drug testing. 

 

2 On November 26, 2013, this court denied the S.s’ motion to take additional 

evidence and to augment the record with that evidence. 

 On December 4, 2013, this court, on its own motion, consolidated case 

Nos. F068178, F068179, F068180, and F068181. 
4 

Mother was also ordered to attend child neglect counseling. The court ordered 

supervised visitation to occur weekly for one hour. 

The social study prepared for the September 20, 2012, review hearing pursuant to 

section 366.21, subdivision (e), noted that mother was living in a sober living facility. 

Father was incarcerated in state prison and had been incarcerated during the entire 

reunification period. The department received a letter from father on September 10, 

2012, stating that he no longer wished to attend any dependency court hearings. Father 

waived his right to visitation with the children during his incarceration. 

On June 29, 2012, mother entered a residential substance abuse counseling 

program and completed it in 45 days. She was referred to an outpatient substance abuse 

counseling program. Between April 2012 and July 2012, mother had two positive drug 

tests (one in April, the other in mid-June), two failures to test that were presumed to be 

positive, and four negative drug tests. Mother missed two visits with the children due to 

illness and showed love and affection toward the children. 

 The social worker noted that mother had made only minimal progress with her 

case plan. Although she completed parenting and neglect classes and a 45-day residential 

treatment program, mother had two positive and two presumptively positive drug tests. 

Mother was disrespectful in the sober living facility and was removed from the program 

several times. Mother’s visitations were regular. The social worker recommended 

reunification services for father be terminated and that they be continued for mother. At 

the review hearing on September 20, 2012, the juvenile court followed the 

recommendations of the department, terminating reunification services for father and 

continuing them for mother. 

 On October 23, 2012, mother told the social worker that the girls were in a good 

home and was sure the foster parents loved them and the girls were attached to the foster 

parents. Mother stated being with the foster parents was the best thing that could happen 
5 

to the girls and because mother loved her children, she did not want them to suffer by her 

side. Mother was not sure that if the girls returned to her care, she would be able to 

advance personally and provide for them because mother had no family support. 

The foster parents were able to place the children in the Early Start program in a 

local elementary school on June 28, 2012. Mrs. C. reported that the girls love the 

program. 

Early 2013

 On January 11, 2013,3 mother explained that she wanted what was best for her 

daughters and was hopeful that Mr. and Mrs. C. would adopt them. Mother observed that 

the foster parents were the only parents the girls had known. Mother stated that she could 

see how much love the girls have for Mr. and Mrs. C. 

On January 17, mother called Social Worker Hernandez-Toro to tell her that a 

great uncle, R.S., was interested in placement. On January 22, the social worker learned 

that Mr. and Mrs. S. had never met the children and had no established relationship with 

them, but they were interested in adopting the children. The social worker had a 

conversation with Mr. S. after obtaining consent to discuss the case with him. Mr. S. 

explained that he and his wife were interested in adopting the children because they had 

just learned that Mrs. S. could no longer have children. Mr. S. believed he and his wife 

could provide a loving home for the girls. A visit was scheduled between Mr. and Mrs. 

S. and the children on January 29. Mother sent an email to Mr. and Mrs. S.’ attorney 

stating that she still had parental rights, she thought her daughters should be placed 

within the family, and she was interested in a voluntary relinquishment to Mr. S. 

Social Worker Hernandez-Toro visited Mr. and Mrs. C. on January 24, and found 

Leslie and Laylah dressed clean and looking well. There were no signs of abuse or 

 

3 Hereafter, all dates refer to the year 2013 unless otherwise designated. 
6 

neglect. Mr. and Mrs. C. had just moved from an apartment to a house. Mrs. C. stated 

everyone loved the new home and the girls had more room to play. Mrs. C. reported that 

everyone loved the girls and they were doing well in the home. The girls were good 

eaters and had no trouble sleeping. Leslie was scheduled for a doctor’s appointment at 

the end of the month for blood work to investigate a potential disorder. The girls had 

colds. Leslie had a boil on her leg and was not allowed back to daycare until it was gone. 

Mrs. C. had no other health concerns for the children. 

Mrs. C. invited the social worker to view the girls’ bedroom. Laylah grabbed the 

social worker by the hand and led her into the room. The room was clean, neat, and free 

of safety hazards. The girls appeared very comfortable in the home. The social worker 

told Mrs. C. about a relative application she had just mailed to Mr. S. and the visit 

scheduled for January 29. Mrs. C. understood, but was concerned that the girls were 

attached to their new family and could be taken from the home. Mr. and Mrs. C. were 

committed to adoption. 

On January 25, mother contacted the social worker to express her confusion over 

the uncle who came “out of nowhere.” Mother did not know Mr. S. and only began to 

talk to him the preceding week. Mother was further conflicted in her feelings because 

she knew the foster parents wanted to adopt the girls and she was okay with that, but on 

the other hand, Mr. S. was family. The social worker explained that placement with Mr. 

S. was not guaranteed even if he is a relative and relatives have preference when they 

come forward prior to the disposition hearing. The social worker reminded mother that 

the disposition hearing had occurred nearly 12 months ago. On January 28, Leslie was 

referred to a specialist by her regular physician. 

The department received Mr. S.’ application for relative placement on January 28. 

Mr. and Mrs. S. had a supervised visit with Leslie and Laylah on January 29. During the 

first meeting with the S.s, the girls stared at them, unsure of what to do. Mrs. S. changed 
7 

the girls’ diapers, fed them crackers, and played with them. The social worker described 

the visit as a good one. On January 31, the S.s sent an email to the department seeking 

verification that their application had been received and further stating they had become 

aware of the less than adequate care that the girls were receiving. 

The social worker replied with an email stating the application had been received 

on January 28 and had been sent to the Relative Assessment Unit that same day. The 

social worker also replied that she understood Mr. and Mrs. S. were concerned with the 

cleanliness of the girls’ clothing. The social worker asked if there were any other 

concerns of abuse or neglect that needed to be brought to the social worker’s attention. 

The social worker further suggested visitations occur every other week until the S.s’ 

background checks were completed. Mrs. S. replied with an email stating that both girls 

had horrible diaper rash with red sores all over their bottoms. Mrs. S. further offered that 

the girls’ hair smelled as if it had not been washed recently, Mrs. S. had seen a picture of 

the girls sitting on a couch with a bag of Cheeto Puffs suggesting that they were not 

receiving proper nutrition, and during the visit the girls ate the crackers Mrs. S. offered 

very quickly suggesting to her that they were not receiving enough proper snacks. Mrs. 

S. challenged the quality of the daycare the children were attending. 

Mrs. S. had a further concern that during the January 29 visit, the girls presented 

with diaper rashes. The public health nurse accompanied the social worker for a home 

visit of the foster parents on February 7. Mrs. C. explained that the girls went to a 

community health clinic on January 28 and were examined by a physician and were 

cleared of any health concerns. Both girls developed boils again on February 4 and Mrs. 

C. took them back to the doctor on February 5. Laylah was seen by a doctor and 

prescribed Bacitracin ointment and Keflex for folliculitis, a bacterial infection. Both girls 

were also diagnosed with Methacillin-resistant Staphylococcus aureus (MRSA), a drug 

resistant bacterial infection making them more susceptible to skin rashes and infections. 
8 

The social worker had a telephone conversation with the public health nurse about Mr. 

and Mrs. S.’ concern over the diaper rash. The public health nurse agreed to go with the 

social worker on a home visit to assess the girls’ health. 

During the home visit and evaluation on February 7, Mrs. C. stated her suspicion 

that the children were both allergic to cow’s milk. Since recently discontinuing cow’s 

milk, both girls had a decrease in respiratory infections and an overall improvement in 

their health. Both girls started getting boils again on February 4, and had a wheezing 

condition. Appropriate medications were provided to Mr. and Mrs. C. for treatment. 

The public health nurse’s evaluation of Leslie and Laylah was that both girls 

appeared to be healthy overall. Both girls suffered, however, from MRSA. Both girls 

were attending an Early Start program. There was a concern that the girls were not age 

appropriate in their development because they were behind in their vocabulary and the 

nurse recommended further screening and intervention. During the home visit, Mrs. C. 

invited the social worker, public health nurse, and another evaluator into the home. The 

house was clean with no safety hazards. The children were described as good eaters who 

both slept well. There were no signs of abuse or neglect. The children’s immunizations 

were up to date. They had not been attending the Early Start program due to abscesses in 

the diaper area. The girls’ room was neat and clean. 

Mrs. C. explained that she was taking the children to the doctor to treat the diaper 

rashes and abscesses as soon as she spots redness. She was giving them prescribed 

antibiotic cream and oral medication to control the condition. The public health nurse 

explained that because the girls have sensitive skin and MRSA, they are both more 

susceptible to skin conditions. Leslie had been referred to Valley Children’s Hospital for 

a possible endocrine condition. Mr. C. was contacted by phone during the visit and 

indicated that he was still interested in adopting both children. The girls had a snack 

consisting of blueberry muffins and almond milk during the visit. 
9 

On February 11, a social worker met with Mr. and Mrs. S. to review the adoption 

process and the girls’ current caretaking situation. Mr. and Mrs. S. were informed of the 

children’s medical conditions, potential allergies, and the fact that both children had 

specialized needs. The social worker explained to Mr. and Mrs. S. that the foster parents 

loved the girls deeply, had developed a bond with them over the last year, were in a new 

and clean home, and there was ample love displayed toward each child. 

Mr. and Mrs. S. met with the children for a supervised visit at the department on 

February 25. Mr. and Mrs. S. set up a table with snacks and juice. They also brought a 

soft piano keyboard mat that played music, a laptop game, a bowling game, and balloons. 

The girls smiled and giggled as they played with the balloons. Mrs. S. changed the girls’ 

diapers. Mr. and Mrs. S. kissed the girls goodbye at the end of the visit. 

Section 388 Petition 

 On February 11, Mr. and Mrs. S. filed a petition pursuant to section 388 seeking 

transfer of custody of Leslie and Laylah to them from foster care. Mr. and Mrs. S. stated 

they sought adoption of both children and were family members. The petition alleged 

that Leslie and Laylah were not receiving proper care because the foster parents left them 

dirty, hungry, and suffering from diaper rashes. Mr. and Mrs. S. further alleged the girls 

were wearing dirty clothes, their hair was unwashed, and their fingernails were long and 

dirty. 

There were also allegations that the foster parents did not leave appropriate 

medicines for the first supervised visit, one of the girls immediately called Mrs. S. 

“mommy,” and the foster parents left the children with Mr. and Mrs. S. without a hug or 

explanation that they would soon return. The section 388 petition stated that Mr. and 

Mrs. S. had sufficient income to care for both children and the girls developed an instant 

bond with them. 
10 

Team Decision Meeting 

The department conducted a Team Decision Meeting on March 8. The meeting 

included the social worker assigned to the case, Beatriz Hernandez-Toro; social worker 

Jamie La Favor; the adoptions social worker, Gayle Achuff; Mr. and Mrs. C. (also 

referred to as substitute care providers or SCP); Mr. and Mrs. S.; public health nurse 

Monique Moreland; foster family agency social worker Michelle Perez; facilitator Anne 

Sarazin; and Macy Albertson from the department. Bonding with Mrs. C. was described 

as loving and affectionate. Mrs. C. did not coddle the children when they cried during 

tantrums. Mr. C. was described as being the children’s world. After a visit with Mr. and 

Mrs. S., the girls ran to Mr. C. Mrs. C. said the girls always ran toward Mr. C. when he 

returned home from work and adored him. The bond between the children and Mr. and 

Mrs. C. was evident. 

Mrs. S. was observed to be very loving and affectionate with the children during 

her visit. She conveyed a positive demeanor, smiled, and had positive responses to the 

children’s needs. Mr. S. was appropriate in his interactions with the children. The ability 

of Mr. and Mrs. S. to create a bond was evident. Both sets of potential adoptive parents 

were “willing and wanting” to adopt both children and willing to undergo an Adoptive 

Home Study. The girls suffered from MRSA and asthma. 

Monique Moreland, the public health nurse (Nurse Moreland), found Mr. and Mrs. 

C. knowledgeable about the children’s medical needs and found no evidence or 

documentation that they were at fault for the children’s MRSA. The C.s had difficulty 

getting Leslie an appointment with an endocrinologist, but this was caused by systemic 

problems with Valley Children’s Hospital denying the primary care physician’s request 

for a consultation with an endocrinologist. 

Mr. and Mrs. C. felt as if the girls were their family. They felt bonded to the girls 

and vice versa. Mr. and Mrs. C. have a teenage child who the girls think of as a sibling. 
11 

Mr. and Mrs. C.’s extended family treat the girls as their biological family. Also, the C.s 

have maintained and are willing to continue a connection with the children’s biological 

family. Mr. and Mrs. S. are part of the children’s biological family. Mr. and Mrs. S. 

would have been caretakers at the beginning of the dependency proceedings but were 

under the impression that the children were being returned to mother. If they received 

custody of the children, Mr. and Mrs. S. would agree to maintain a lifelong connection 

with Mr. and Mrs. C. 

The department concluded that Mr. and Mrs. C. had shown the ability to maintain 

both children in their home since February 2012, or 13 months at the time of the Team 

Decision Meeting. The department also believed there was no reason that the children 

would not be stable in placement if moved to Mr. and Mrs. S., though there was no 

evidence to support that conclusion at that point. At the conclusion of the meeting, it was 

evident that both placement options would lead to a happy, healthy, secure childhood for 

both children. The department was reluctant to remove the children from their current 

placement because they knew their current placement as their home. The relatives 

disagreed with this assessment. It was agreed to permit overnight visitation with Mr. and 

Mrs. S. until the matter was heard by the juvenile court. 

On March 27, the juvenile court granted Mr. and Mrs. C.’s request for defacto 

parent status. 

Visitations with Mr. and Mrs. S. 

 The girls had a weekend visit with Mr. and Mrs. S. between March 8 and 

March 10. Mrs. C. reported that when the girls were returned, they both had diarrhea. 

Mrs. C. thought it may have been from eating something they were not used to eating. 

Leslie appeared relieved once she saw their home and started laughing and became more 

talkative. 
12 

Social Worker Hernandez-Toro spoke to Mrs. C. on March 25, after the girls had 

an overnight visit with Mr. and Mrs. S. Mr. C. dropped the children off for the visit. The 

process was very emotional. Both girls cried hysterically and held tightly onto Mr. C. 

The girls again experienced diarrhea after returning to the C.s’ home. Mr. C. did not 

believe there should be future overnight visits. Mr. C. conveyed this same information to 

Social Worker Hernandez-Toro the next day. 

Hernandez-Toro talked to Mr. and Mrs. C.’s teenage child on March 26 during a 

home visit. The teenage child said that Leslie and Laylah were very attached to everyone 

in the home. When Leslie and Laylah returned home, they ran inside to hug the teenage 

child, who in turn, hugged and kissed each child. Hernandez-Toro found the home to be 

clean and free of safety hazards. The C.s reported that the girls continued to do well 

under their care. They were good eaters and had no trouble sleeping. Leslie had a 

positive report from her blood tests indicating no genetic abnormalities. 

On April 4, Mrs. C. wanted to cancel an upcoming weekend visit with the S.s 

because the girls were sick and were taking antibiotics. Mrs. S. wanted to continue with 

the visit anyway and asked that all medications be included. Mrs. S. did not want to 

continue the visit until the following weekend, insisting that she was competent to care 

for the children. The S.s insisted on keeping the visit as scheduled. The C.s reported that 

the children are very stressed out by the visits with the S.s and cry and cling to the C.s 

prior to departure. They also return from the visits with diarrhea. The girls also have a 

bad attitude upon their return and resort to grunting and fighting with each other. In 

April, the department recommended that the children remain with Mr. and Mrs. C. 

Information provided in a supplemental report signed by Social Worker Carrie 

Burton on June 19, stated that on April 9, Mrs. S. wrote an email to the department 

claiming that Leslie only became upset when being transferred to the S.s after Mr. C. 

woke her up from a sound sleep. According to Mrs. S., upon return, the girls cried when 
13 

they saw the C.s. Mrs. S. explained that the girls were very affectionate toward them and 

gave her and Mr. S. hugs and kisses. 

On April 19, the department assigned a human service aide to assist with the 

transportation and exchange of the children to the S.s. After the April 22 visit, Mrs. C. 

noticed a boil on Leslie that was not present prior to the visit with the S.s. The S.s did 

not report the boil to Mrs. C. The department received two referrals against Mr. and Mrs. 

C. An allegation was made on May 7, that Mrs. C. gave the girls over-the-counter cough 

syrup that clearly stated it was not to be given to any child under age six. The children’s 

clothing was too small and Leslie cried out in pain as she dressed herself. Social Worker 

Hernandez-Toro confirmed that Mrs. C. had a doctor’s note prescribing the cough syrup 

to the children. On June 18, Social Worker Stacey Fox found this allegation to be 

unfounded. 

On May 7 after a visit with Mr. and Mrs. S., Mrs. C. told Social Worker 

Hernandez-Toro that Leslie was moody, as usual, after visiting Mr. and Mrs. S. and the 

girls were fighting with each other more than usual. Leslie returned from the visit with 

diarrhea. Mrs. C. packed all of the girls’ medications, whether or not they were needed. 

Medication packed for one of the girls who had a bad cough was not returned. The 

relatives returned a different over-the-counter cough medication instead. 

Hernandez-Toro reported that she was present in a Kern County parking lot on 

June 1, when Mr. and Mrs. S. returned the girls from an overnight visit. Mr. and Mrs. C. 

were late in picking up the children because Mrs. C. was stuck in traffic and she lost 

phone reception. The girls seemed upset with Hernandez-Toro and asked for Mr. C., 

whom they called “daddy.” Mr. C. had been resting after work, but immediately got in 

his car and arrived to the meeting place. The girls seemed upset until they got into Mr. 

C.’s car. Hernandez-Toro noticed a drastic change in the girls’ attitude. They started to 

giggle and wanted to play with Hernandez-Toro. 
14 

On June 17, another referral was made to the department alleging that the girls 

continued to have MRSA, the foster mother does not hug the children, the children’s 

clothing does not fit, the children have blisters all over their feet, and they arrive for visits 

with dirty hair, fingernails, and clothing. There was an allegation that the children have 

dirty diapers and the foster parents failed to provide a nebulizer. Mr. and Mrs. S. further 

alleged that the girls had red marks around their legs that looked like burns and their 

genital area was red. 

Social Worker Burton contacted Nurse Moreland who reported that on June 18, 

the girls had a doctor appointment. The doctor confirmed that both girls were free of 

MRSA boils or abscesses and was continuing treatment with an intranasal cream and 

bleach baths. Nurse Moreland confirmed with the doctor that bleach baths can cause the 

bottoms of children’s feet to peel. Nurse Moreland provided Burton with a chart of every 

doctor visit the children had dating back to February 2012. The chart showed the foster 

parents had been very proactive in the children’s medical care. The charts were attached 

to the social worker’s report. The foster parents had taken each girl to see a physician 

more than 20 times since becoming the care providers. 

The department sought to have the court order supervised visits with Mr. and Mrs. 

S. to occur monthly for two hours. The department further requested the visits be limited 

to Kern County. The department concluded that visitations with the S.s had become 

detrimental. The department reported the foster parents had been very diligent in 

attending to the children’s medical needs and that the children had been exposed to 

MRSA prior to their placement into protective custody. The doctors reported that the 

children were more susceptible to skin conditions and the foster parents had followed all 

of the doctor’s orders. 

The department further observed that Mr. and Mrs. S. had taken it upon 

themselves to stop prescribed medication when one child was ill and to provide a 
15 

different cough medication. The S.s had failed to return prescribed medications to the 

foster parents. The department stated that the S.s “have continually called or emailed 

Social Service Supervisor Albertson to report the same issues over and over again.” 

The department explained it had addressed all of the issues raised by the S.s and 

that the S.s were not satisfied with the outcome. The department concluded that Mr. and 

Mrs. C. have provided excellent care for the children and the department had not 

documented any issue concerning the care the children were receiving. The department 

described the C.s as providing a healthy, loving, and stable home for the children. The 

department concluded that it had found no evidence to support the truth of any of the 

allegations by the S.s. The department, therefore, sought a reduction in visits by the S.s 

because it was no longer in the children’s best interests to maintain a continued 

relationship with them. It was further in the children’s best interests to remain with the 

current foster parents who remained committed to adopting them and who had cared for 

them for 17 months. 

Relinquishment of Parental Rights to Private Adoption Agency 

 Alison Foster Davis is counsel for Family Connections Christian Adoptions 

(adoption agency), a private non-profit adoption agency licensed by the California 

Department of Social Services. Davis prepared a declaration under penalty of perjury 

setting forth that in May 2013, father executed waivers of his right to further notice of 

adoption planning for Leslie and Laylah, in effect, relinquishing his parental rights. The 

father’s waiver documents were attached to Davis’s declaration. 

 Davis declared that on May 6, 2013, mother signed California designated 

relinquishment documents naming Mr. and Mrs. S. as the intended adoptive parents for 

Leslie and Laylah. Davis declared these documents were submitted to the state on 

May 10, and that her adoption agency was awaiting the receipt of the Acknowledgment 

from the California Department of Social Services. Davis filed a notice of accepting 
16 

mother’s relinquishment that was filed by FAX. Copies of the documents allegedly 

executed by mother and sent to the California Department of Social Services were not 

attached to Davis’s declaration. 

 Davis stated in her declaration that Mr. and Mrs. S. retained the adoption agency 

to complete a domestic adoption home study assessment and were approved for adoption 

of the minors on April 29. In her declaration, Davis requested a stay of the dependency 

proceedings until the adoption is finalized. 

Joint Section 366.21, Subdivision (f) Review Hearing and Hearing on Section 388 

Petition 

 The joint section 366.21, subdivision (f) and section 388 hearing was extended, 

beginning on June 5, and continuing in different sessions until September 11. The court 

conducted a subsequent ex parte hearing on a motion brought by the S.s after the joint 

hearing began to consider the issue of whether the S.s would have immediate custody of 

the children and, alternatively, to maintain unsupervised visitation with the children. The 

court noted that there was no court order concerning relative visitation. The court found 

that the department retained discretion concerning relative visitation and denied the S.s’ 

ex parte motion to change custody or to maintain unsupervised, ongoing visitation with 

the children. Visitation with the S.s was changed to supervised visits once a month for 

two hours. 

Testimony of Alison Foster Davis 

Davis testified that her adoption agency was licensed by the State of California. 

The adoption agency does assessments of families seeking to adopt. The adoption 

agency recommended that Mr. and Mrs. S. become prospective adoptive parents after 

completing an assessment. Davis described Mr. and Mrs. S.s’ commitment to the 

adoption process as exemplary. Davis described Mr. S.’s relationship with his extended 

family as a whole to be good, although they were not immediately aware of the 
17 

dependency action. An adoption, however, cannot occur in the context of a dependency 

action until after the parental rights have been terminated and the child is freed for 

adoption. 

Testimony of Mr. and Mrs. S. 

 Mr. S. testified that he first learned of the girls’ birth when he was informed by 

father that they were about to be born. Mr. S. was very busy at the time with three jobs. 

Also, Mrs. S. had surgery in 2011. Because of his own family’s needs, Mr. S. was not 

able to give the matter the attention it deserved. In late November or early December 

2012, Mr. S. learned that father and mother had lost the girls, but was misinformed by 

another family member that the girls were adopted. 

Mr. S. stated that he was his nephews’ and nieces’ favorite uncle and he regularly 

called them. Mr. S. explained that father stopped talking to family members when he was 

age 14. Mr. S. did not visit father during father’s incarceration, but did talk to father on 

the phone. Although Mr. S. was in regular contact with his nephews and nieces, and 

talked to father, Mr. S. said he was unaware that Leslie and Laylah were in protective 

custody because no one ever mentioned it. 

Mr. S. stated that between February 2012 and December 2012 he had no contact 

with father and next talked with father in January 2013. Some of father’s siblings saw 

Mr. S. at a birthday party, in March 2012, and Mr. S. learned the girls were staying with 

their maternal grandmother. 

On one occasion after the children were born, Mr. S. asked his brother to find 

father. The brother was unsuccessful. Between the time the children were born and 

when he learned the children were in foster care, Mr. S. never tried to contact mother or 

the maternal grandmother. Mr. S. denied telling Supervising Social Worker Macy 

Albertson months before December 2012 that he was aware the girls had been removed 

from mother’s custody. 
18 

 During the first visit with the girls on January 29, Mr. S. observed Mrs. C. leaving 

the room without saying anything to them. One child’s diaper was soiled and leaking. 

Changing the diaper, Mrs. S. found a horrible rash and boils. Mr. S. stated that on the 

second supervised visit, the girls came right up to the S.s and enjoyed themselves during 

the visit.4 Mr. S. stated that on a visitation on April 4 the foster parents sought to 

reschedule the visit because the girls were sick. When the children arrived, they were 

bright eyed and smiling, not sick. 

 Mr. S. explained that later drop-off visits to the S.s’ home were done by a social 

worker and not the C.s. According to Mr. S., the girls’ clothes and shoes were always too 

small and the S.s would immediately change what the girls were wearing. During the 

eighth visitation, Laylah was fussy. The S.s changed her diaper and were appalled at how 

bad her diaper rash appeared. Mr. S. explained there were eight overnight visits and the 

girls got along well with their three-year-old child. The S.s were concerned when the 

girls were obsessed by their shoes and removed them. The S.s went to a store and 

purchased new shoes that were larger. 

 Mrs. S. testified that she read to the girls from the first visit. Her own child is a 

good reader. Mrs. S. testified that from the first unsupervised visit, the girls ran up to the 

S.s, put their arms out, hugged the S.s, and got right into the car. Mrs. C. did not say 

anything to the girls. During the second visit, Laylah was really happy to see the S.s and 

was smiling and laughing. Leslie cried for only five minutes, and then started smiling 

and laughing. From the third unsupervised visit and thereafter, the girls were excited to 

see the S.s and would run to see them. During the first of the extended visitations, the C.s 

 

4 The social worker’s report states that the children were initially hesitant to part 

from Mrs. C. 
19 

would fail to provide the girls’ medication. Later the medications were packed with the 

girls’ things. 

 During an early overnight visit, the C.s failed to provide the girls with provisions 

such as toothbrushes and the girls’ clothes seemed too small. On cross-examination, Mrs. 

S. conceded that the C.s did not always send the girls for extended visits with clothes that 

were too small for them. Sometimes the girls were sent on the visits with clothes that fit 

them. For the first three overnight visits the girls were sent with shoes that were too 

small, but thereafter the girls had shoes that fit. 

Mrs. S. stated that the girls called the birth mother and Mrs. C. mom, but called 

her mommy by the second weekend. Mrs. S. said that the girls would cry when leaving 

the S.s after overnight visitations began. Mrs. S. would go into the back seat of Mrs. C.’s 

car to console the girls and they would stop crying. Mrs. S. was asked when she first 

learned the girls had been removed from their mother. She replied that three to three and 

a half weeks prior to Christmas 2012 they learned from a niece that the children were 

with their maternal grandmother and mother had to attend some type of classes. 

Testimony of Dr. Jeffrey Arden 

 Dr. Jeffrey Arden, a licensed psychologist, does comprehensive child custody 

evaluations in Southern California and the State of New York and testified as the S.s’ 

expert witness. Dr. Arden explained that most children know their primary attachment 

figure by nine or ten months of age. Thereafter, children can develop multiple 

attachments to adults and other children. Attachments and bonds are generally stronger 

between biological relatives. 

 Dr. Arden explained that based on literature in this field, the best time to begin a 

child in preschool is age four, or perhaps age three. The ability to speak and the absence 

of potty training can have an effect on a child entering a preschool program. It may or 

may not negatively affect the child’s self-esteem. According to Dr. Arden, speech 
20 

development is very important to a child’s ability to achieve higher cognitive 

development. 

Children usually have a vocabulary of between 350 and 700 words by the time 

they are two and a half or three years of age. If a child age two had a vocabulary of only 

30 words, Dr. Arden would be concerned.5 A speech development delay can cure itself 

or improve through the use of a speech and language pathologist. Family involvement, 

including reading from age appropriate books, can also help with delayed language skills. 

According to Dr. Arden, a properly stepped transition not done too abruptly could 

be done for the children. If there had been visitations for three or four months and they 

were stopped abruptly, Dr. Arden opined this would be harmful to children. Dr. Arden 

testified that stability and continuity are important for a child’s development. 

Testimony of Department Staff 

Social Worker Hernandez-Toro was the second social worker assigned to the 

children’s case. Hernandez-Toro did not conduct a new search for relatives when she 

was assigned the case. In her review of the file, Hernandez-Toro saw that relatives on 

both the paternal and maternal side of the girls’ families were notified of the dependency 

by a court intake worker. The maternal and paternal grandmothers were called and sent 

letters. Two other people submitted applications for custody, but they were later 

withdrawn.6 

 

5 When they were one and one-half years old, the girls each had a vocabulary of 10 

to 15 words. At the time of the Team Decision Meeting in March 2013, Nurse Moreland 

was initiating a referral based on the children’s “limited speech.” It is unclear from the 

record what the precise vocabulary was for each child at the time of the joint hearing. 

We accept as an established fact that both children had a limited vocabulary and that 

Nurse Moreland was seeking a referral for treatment. 

6 Dina Tucker was the social worker responsible for the intake of Leslie and Laylah. 

The maternal grandmother contacted the department to take the children into custody. 

The mother and father could not initially be located. The department at that time relied 
21 

The children are attending a Head Start, Early Start program in a local school 

through the Community Action Partnership of Kern. The program is a readiness program 

to prepare children to attend school. The curriculum includes vocabulary, reading, math, 

social and developmental skills, and physical and social development skills. HernandezToro believed the children had progressed satisfactorily since attending the program. 

Hernandez-Toro described the C.s as “wonderful foster parents.” The S.s had 

eight overnight visits with the girls. They picked the girls up on Fridays and brought 

them back on Sundays. Hernandez-Toro observed the girls on occasions when the S.s 

returned them and described the girls’ interaction with the S.s as minimal. The girls did 

hug the S.s goodbye. Hernandez-Toro described the girls as always very happy to see the 

C.s when they return from overnight visits. Sometimes the girls would cry upon 

returning, but they were “very happy to return.” 

The S.s had complained about the first meeting with the girls starting 15 minutes 

late. Mrs. C. thought the meeting was in a different building. Hernandez-Toro gave the 

S.s an entire hour with the girls to make up for the lost 15 minutes. Mrs. C. helped 

 

on family members to find potential family caretakers. The department now has a family 

finding unit, added in response to new legislation. The maternal grandmother only had 

the name of a family friend. Tucker did not look up other members of the S. family in 

the phonebook and the department did not have internet services at that time. 

Father was eventually found after he was taken into custody. Father did not first 

appear at any hearing until the jurisdiction hearing on February 16, 2012, did not raise his 

status as a parent until then, and was only an alleged father at that time. At the 

disposition hearing on March 20, 2012, father was designated as the presumed father. 

Children, however, cannot be placed with paternal family members until paternity is 

established. The department can place children with “a non-relative extended family 

member” where there is an existing close bond between that person and the children. 

Neither parent identified potential relatives who could be caregivers. Prior to the 

detention, an emergency response worker had been working with mother and the 

maternal grandmother trying to help them keep the girls, but those efforts “blew up” after 

mother left the children with the grandmother and disappeared. 
22 

Hernandez-Toro place the girls in the visitation room. Mrs. C. verbally reassured the 

girls that everything was going to be fine, she would be back, and for the girls not to 

worry. Mrs. C. did not linger but left immediately as to not upset the girls. 

Hernandez-Toro explained that on the occasion that Mrs. C. was an hour late in 

picking up the children from an overnight visit, Mrs. C. had gotten stuck in traffic and 

lost reception for her cell phone. Mrs. C. was not ignoring the situation. HernandezToro went to the C.s’ house and contacted Mr. C. The two proceeded to the exchange 

location and arrived at about the same time as Mrs. C. 

Hernandez-Toro witnessed the children returning from overnight visits. The girls 

had been upset upon their return, but not at having to go back to the C.s. The girls were 

upset at Hernandez-Toro. They would not look at Hernandez-Toro and they would ask 

for Mr. C., asking for “daddy.” There were times when the children were hesitant to go 

on overnight visits with the S.s. 

Hernandez-Toro investigated allegations that the girls’ clothes and shoes did not 

fit them. Going to the C.s’ home and examining the clothing provided to the children, 

Hernandez-Toro did not find clothes or shoes that were too small. As for medical 

attention, Hernandez-Toro explained that the girls were taken to the doctor many times; 

at least once a month, and often more frequently if necessary. Hernandez-Toro noted that 

the S.s referred to themselves to the girls as mommy and daddy from the first visit. 

Social Worker Albertson testified that Mrs. C. never tried to keep the children 

from mother and the C.s were cooperative with the reunification process. In February 

2013, the C.s definitely wanted to pursue adoption of the girls. It was difficult because 

family members had come forward late in the process. Albertson described Mr. C. as 

“100 percent wanting to adopt.” Mr. C. described the children as “his girls” and told 

Albertson they had cared for them since they were little. There was a difference in Mrs. 

C.’s feelings toward adoption because Albertson thought Mrs. C. “was concerned about a 
23 

situation such as this unfolding,” a “debate over where the children should be.” The C.s 

wanted to keep the girls. 

Albertson had a contact with the S.s in which they explained to her that they 

announced their plan to adopt the girls but learned from a relative at Christmas that the 

girls were in foster care. Mr. and Mrs. S. were shocked to learn this because they thought 

the girls would be returned to mother after a few weeks. The S.s had learned prior to this, 

however, that the girls had been removed from mother’s custody. 

Albertson testified on August 27, 2013. Mr. and Mrs. S. had not called the 

department or Albertson to check on the girls since July 30, 2013. Albertson checked 

with Hernandez-Toro and learned that the S.s had not called to schedule a visit in August 

2013. 

Nurse Moreland testified that Mr. and Mrs. C. were diligent in their efforts to 

obtain an endocrinology referral for one of the girls even though it took from May 2012 

to March 2013 to resolve the issue. Moreland explained that Valley Children’s Hospital 

gave multiple reasons for not accepting such a referral for a child under 10 years old. 

After placing more pressure on the hospital, the hospital provided information clearing 

the child of a problem because they had already seen her a few days after her birth. 

Concerning the dispute over whether the C.s failed to obtain medical treatment for 

MRSA boils on the children between January 29, 2013, and February 5, 2013, Moreland 

was asked if it was inconceivable that the foster parents failed to change the girls’ diapers 

for seven days. Her reply was, “Yes.” When asked if the safest thing would have been 

for the C.s to take the girls to the doctor on January 30, Moreland replied the answer was 

yes if they were MRSA boils. It would not have been safe practice to wait between 

January 29 and February 4 to seek medical treatment. After receiving prescribed bleach 

baths to treat MRSA, the skin on the children’s feet could have blister-like marks and 

peel. 
24 

Concerning the girls’ speech delay, Moreland made a referral to the Kern Regional 

Center. Mr. and Mrs. C. followed up with the referral. Moreland also explained that 

caregivers start children in Head Start to encourage growth in areas that are delayed. 

Testimony of Mr. and Mrs. C. 

 Mrs. C. testified at length concerning the children’s many medical problems and 

her elaborate care for them. Mrs. C. did not learn that the girls were going on their first 

overnight visit with the S.s until the conclusion of the Team Decision Meeting. Prior to 

this, no one suggested to her there would be overnight visits. The exchange of the 

children to the S.s occurred at the children’s school. Mrs. C. was not given a proper 

opportunity to get things together for them, to clean them, or to change their clothes at the 

end of school. 

 The girls wear different sized clothes. Leslie is larger than Laylah. The shoes sent 

back with the girls from the S.s were too big for Leslie and would fall off. The shoes for 

Laylah were also too large. 

 Mrs. C. also explained why she was late meeting the S.s on one occasion to pick 

up the children. Mrs. C. had been visiting a relative in Atascadero and left in time to 

make the exchange, giving herself nearly three hours. There was an accident on the 

highway that delayed her trip between 45 minutes and an hour. Mr. C. had worked a late 

night shift the night before. Mrs. C. was unable to contact Hernandez-Toro until she was 

in Bakersfield. 

 Mrs. C. described the adoption process as full of ups and downs. When the C.s 

first got the girls, they were excited about adoption. As time passed, it looked like 

mother was getting better and there would be no adoption. Then more time passed and 

mother contacted the C.s and indicated she wanted the girls adopted. Mother stated the 

only way she would allow adoption was if the C.s were the adoptive parents. Then the 

S.s became interested in adoption. During that entire span of time, Mrs. C. discussed 
25 

adoption with her husband. Mrs. C. never waivered in her desire to adopt the girls. Mrs. 

C. believed the girls were integrated into her family. 

 Mr. C. testified that when the girls returned from overnight visits, they would 

jump out of their car seats. Mr. C. said that the girls never left the S.s car or returned to it 

crying hysterically because they wanted to stay with the Mr. and Mrs. S. 

Juvenile Court’s Findings 

 On October 4, 2013, the juvenile court issued its minute order denying Mr. and 

Mrs. S.’s section 388 petition and setting the matter for a section 366.26 hearing on 

February 3, 2014. The minute order included an attachment of the juvenile court’s 

written rulings and findings. 

 The court found that the best interest of Leslie and Laylah requires they stay in 

their placement with the foster parents and it is not in the best interest of the children for 

the proposed private adoption with the S.s to go forward. The court found the proposed 

relinquishment appears to be inconsistent with the stated wishes of the mother, who, on 

more than one occasion expressed support for the C.s to adopt her daughters and also 

stated she did not know the S.s. 

 The court noted there was a clear conflict in the facts between the S.s and the C.s. 

In judging credibility, the court first found that counsel for the S.s, either intentionally or 

unintentionally, misstated material facts. The court found the social workers, public 

health nurse, and Mr. and Mrs. C. to be credible witnesses on material issues and found 

Mr. and Mrs. S. not to be credible. The court noted particular concern for the apparent 

motivation of the S.s to gain custody of the children after they found they could no longer 

have biological children. 

 The court stated there was independent evidence of a close, caring, and loving 

relationship with the C.s and the girls. The relationship with the S.s was described only 

by them. Based on expert medical testimony, the C.s took appropriate medical care of 
26 

the girls. The S.s presented no medical testimony. The C.s properly clothed and cared 

for the girls. Based on its determination of credibility, the court held “the evidence is 

clear and overwhelming that the best interest of Leslie and Laylah requires that they stay 

in the care of the [C.s] thus enjoying a safe, stable, caring family who properly cared for 

them in all apparent ways.” 

 The court further found that although the case was still in technical reunification, 

the reality was that both father, who was no longer reunifying, and mother, who conceded 

her efforts to reunify had failed, were no longer reunifying. The court stated this is also 

demonstrated by the parents’ attempted relinquishment. Citing section 361.3, the court 

noted preference for relatives is established at the very beginning of a dependency action 

and again if there is a new placement. (See subdivisions (c) and (d) of section 361.3.) 

REVIEW OF RELINQUISHMENT TO PRIVATE ADOPTION AGENCY 

Introduction 

Mr. and Mrs. S. have filed a petition for extraordinary writ review seeking 

appellate court review of the juvenile court’s orders denying their section 388 petition 

and setting the matter for a hearing pursuant to section 366.26. Father filed his own 

petition, also with points and authorities, agreeing with the position adopted by the S.s. 

Mother and the children have filed petitions joining with the arguments of father and the 

S.s. 

 The S.s’ points and authorities are lengthy. Their arguments, however, can be 

summarized as two contentions. First, they inaccurately argue the juvenile court was 

unaware of the burden of proof for voluntary relinquishment cases and placed the matter 

up for a vote by counsel for each of the parties. The S.s argue that there was no clear and 

convincing reason to deny the voluntary relinquishment, which they argue is legally 

favored. 
27 

Second, reviewing all of the factors for child placement in section 361.3, the S.s 

contend there was insufficient evidence to support the juvenile court’s findings. A 

separate component of the second argument is that the juvenile court abused its discretion 

in making its credibility findings and failed to properly consider the preference for 

relative placement. We disagree with these contentions and deny petitioners’ 

extraordinary writ. 

As we explain below, these arguments fail to set forth the legal and statutory 

distinction between relinquishment of parental rights to a private adoption agency and 

relinquishment of parental rights to a public adoption agency. The juvenile court made 

its factual findings by a standard of clear and overwhelming evidence, an evidentiary 

standard greater than clear and convincing evidence. We further find that the S.s are 

trying to reverse the standard of review we employ to the petitioners in a section 388 

hearing when reviewing the juvenile court’s orders on appeal, or in this instance, an 

extraordinary writ proceeding. 

Father’s petition argues the more subtle legal point that it is unclear the juvenile 

court correctly applied the primary published authority concerning relinquishment of 

parental rights to a private adoption agency, Teresa J. v. Superior Court (2002) 102 

Cal.App.4th 366 (Teresa J.). Father further argues that the juvenile court did not make a 

legal finding, as required by Teresa J., that it was in the children’s best interests to limit 

the parents’ right to relinquish them to a private adoption agency, and only found it was 

in the best interests of the children to leave them with the foster parents. Although father 

has raised an arguable legal issue, we conclude the juvenile court made the necessary 

findings involving voluntary relinquishment to a private adoption agency. 
28 

Analysis

 In Teresa J., the mother was serving a prison sentence when she gave birth to the 

minor. A dependency action was initiated and two foster parents, D. and K., became the 

caregivers of the child from the time he was two days old. (Teresa J., supra, 102 

Cal.App.4th at pp. 368-369.) D. and K. stated they were willing to adopt the minor. Two 

days after the joint jurisdiction/disposition hearing, the department removed the minor 

from D. and K. and placed him with V. and B. The court granted an order that D. and K. 

were defacto parents. Later, V. and B. successfully obtained an order that they were also 

defacto parents and the matter was set for a section 366.26 hearing. (Teresa J., supra, at 

p. 369.) 

 The mother then executed a statement of understanding and a relinquishment, 

relinquishing the minor to ICA, a private adoption agency, with a statement of 

understanding naming D. and K. as adoptive parents. (Teresa J., supra, 102 Cal.App.4th 

at pp. 368, 370.) The State Department of Social Services (DSS) signed an 

acknowledgment and receipt of relinquishment two days later. (Id. at p. 370.) D. and K. 

moved to vacate the section 366.26 hearing, transfer the minor to ICA, and continue the 

matter for a six-month review hearing. (Teresa J., supra, at p. 370.) 

 Two weeks later, the chief of the adoptions policy bureau of DSS wrote ICA that 

the acknowledgment of the relinquishment was void because it did not comply with 

section 361, subdivision (b) (hereafter section 361(b)) because DSS’s interpretation of the 

statute was that a parent could only relinquish a child to DSS or a licensed county 

adoption agency. According to DSS, relinquishment to a private adoption agency was 

not permitted. On October 30, 2001, the juvenile court agreed with DSS’s interpretation 

and found the relinquishment to a private adoption agency invalid. The parties stipulated 

D. and K.’s home was suitable for the minor and the modification hearing was continued 

and joined with the section 366.26 hearing. (Teresa J., supra, 102 Cal.App.4th at p. 370.) 
29 

 The mother, and D. and K. petitioned the appellate court, inter alia, for a writ of 

mandate commanding the juvenile court to set aside its order of October 30, 2001, enter 

an order vacating the section 366.26 hearing, direct the department to deliver the minor to 

the custody of D. and K, and to direct DSS to refrain from refusing to acknowledge 

relinquishment of a child to a private adoption agency. (Teresa J., supra, 102 

Cal.App.4th at p. 370.) 

 In a detailed statutory analysis, the court in Teresa J. found that the legislative 

intent behind Family Code section 8700 and Welfare and Institutions Code section 

361(b)7 was to permit adoptions both to licensed public adoption agencies and licensed 

private adoption agencies. (Teresa J., supra, 102 Cal.App.4th at pp. 371-374.) 

According to Teresa J., read in context, section 361(b), does not limit a parent’s ability to 

relinquish a dependent child for adoption. Rather, it limits the juvenile court’s ability to 

interfere with that decision “when the relinquishment is to a public adoption agency.” 

(Teresa J., supra, 102 Cal.App.4th at p. 374 [emphasis added]; In re R.S. (2009) 179 

Cal.App.4th 1137, 1147-1155 (R.S.).) Teresa J. further rejected the public agencies’ 

argument that the parents in delinquency proceedings could not relinquish a child to a 

licensed private adoption agency. (Teresa J., supra, 102 Cal.App.4th at pp. 374-375.) 

Teresa J. held that a juvenile court retains its jurisdiction over a dependent child 

who is subject to a permanent plan for adoption until the adoption is final pursuant to 

section 366.3. Under section 362, subdivision (a), “the court may make any and all 

reasonable orders for the care, supervision, custody, conduct, maintenance, and support 

of the child, including medical treatment, subject to further order of the court.” The court 

 

7 Section 361(b) provides: “Subdivision (a) does not limit the ability of a parent to 

voluntarily relinquish his or her child to the State Department of Social Services or to a 

county adoption agency at any time while the child is a dependent child of the juvenile 

court, if the department or agency is willing to accept the relinquishment.” 
30 

may also limit a parent’s control over a dependent child under section 361, subdivision 

(a) [hereafter section 361(a)], with the sole exception where the parent relinquishes the 

child to a public adoption agency pursuant to section 361(b). This particular exception, 

however, does not apply where the parent relinquishes the child to a private adoption 

agency. In such a case, “the juvenile court retains its broad power to limit the parent’s 

control over the dependent child, which includes the parent’s ability to relinquish the 

child to a private adoption agency.” (Teresa J., supra, 102 Cal.App.4th at p. 375.) 

 The Teresa J. court further explained that when the juvenile court exercises its 

power to limit the parent’s control: “the juvenile court may consider the concerns raised 

by the various real parties in interest and whether such concerns militate against allowing 

the relinquishment to a private adoption agency. In this decision, as in all others, the 

juvenile court must act in the best interests of the dependent child. (§ 202, subd. (e).)” 

(Teresa J., supra, 102 Cal.App.4th at p. 375.) 

The Teresa J. court found that the juvenile court in that case failed to declare the 

relinquishment invalid in exercise of its power under section 361(a) and to make a 

finding that the relinquishment to the private adoption agency was not in the best interest 

of the minor. The juvenile court operated under the misconception that the mother could 

not relinquish her child to the private adoption agency. Teresa J. found the juvenile court 

misunderstood the law and its own discretion, and remanded the case for the juvenile 

court to consider whether it should limit the mother’s control over the minor as it relates 

to relinquishing him to the private adoption agency, considering the minor’s best interest 

at the time of the hearing. (Teresa J., supra, 102 Cal.App.4th at p. 375.) 

Teresa J. further explained that the proper standard for reviewing the placement 

decision of the agency that has been given exclusive care and control of the minor is not 

the differential abuse of discretion standard because the parent of the dependent child no 

longer has exclusive care and control of the child. The juvenile court retains the authority 
31 

to make reasonable orders for the child’s care, supervision, and custody under section 

362, subdivision (a). “Limiting the parent’s ability to relinquish a dependent child to a 

private adoption agency is such an order when it is in the child’s best interest.” (Teresa 

J., supra, 102 Cal.App.4th at p. 376.) 

The petitioning parties also rely on R.S. which held that once children are 

relinquished to a public adoption agency, and the adoption to that agency becomes final, 

the juvenile court is precluded from making any order limiting the parent’s right to 

relinquishment when the section 366.26 hearing is scheduled but has not yet occurred. 

The relinquishment ends the need for a hearing to select a permanent plan under section 

366.26. (R.S., supra, 179 Cal.App.4th at p. 1155.) 

Citing R.S. and Family Code section 8700, the S.s’ petition seeks a broad 

expansion of the R.S. holding to include, for all practical purposes, private as well as 

public adoption agencies. We decline petitioners’ invitation to limit the power of the 

juvenile court under section 361(a) to establish the best interest of the children where, as 

here, the parents have relinquished their parental rights to a private adoption agency. We 

find R.S. factually inapposite to the facts in the instant action and do not apply its holding 

here. 

We also reject the S.s’ legal construction that effectively reverses the burden of 

proof in a section 388 hearing because the proceeding involves voluntary relinquishment 

to a private adoption agency. A parent, or in this case relatives to the children, may 

petition the juvenile court to vacate or modify a previous order on grounds of change of 

circumstance or new evidence. (§ 388, subd. (a).) The parent or petitioner must also 

show that the proposed change would promote the best interests of the child. (§ 388, 

subd. (d); Cal. Rules of Court, rule 5.570; In re Stephanie M. (1994) 7 Cal.4th 295, 317 

(Stephanie M.).) 
32 

The parent or petitioner bears the burden of showing in a section 388 petition, that 

both a change of circumstance exists and that the proposed change is in the best interests 

of the child. (In re Casey D. (1999) 70 Cal.App.4th 38, 47 (Casey D.).) Petitioners at the 

section 388 hearing had the burden of proof, by a preponderance of the evidence, to show 

there was new evidence or there were changed circumstances that made a change of the 

children’s placement in their best interest.8 (§ 388; Stephanie M., supra, 7 Cal.4th at 

p. 317.) 

Here, the juvenile court made its findings on the credibility of the witnesses and 

the best interest of the children based on what it found to be “clear and overwhelming” 

evidence. In addition, we note the following essential difference between the 

proceedings in Teresa J. and those in the case at bar. In Teresa J., both the juvenile court 

and the public agencies acted under the misconception that the parent could not 

relinquish her parental rights to a private adoption agency. There is nothing in the record 

before us suggesting that the juvenile court failed to understand that the parents could 

relinquish their parental rights to a private adoption agency. 

More importantly, unlike the instant action, there never was a hearing in Teresa J. 

concerning the merits, based on the child’s best interest, of the relinquishment of parental 

 

8 In reviewing the documentation of the parents’ relinquishment of parental rights, 

we found documents attached to motions by the S.s that were executed by father waiving 

his parental rights and notice of all future hearings. The documents purportedly executed 

by mother relinquishing her parental rights were not attached to the S.s’ motions and 

were not introduced into evidence at the section 388 hearing. Although no party has 

challenged the sufficiency of the evidence concerning whether mother executed a 

voluntary relinquishment, we find the absence of these documents and the absence of an 

acknowledgment of receipt by DSS to be troubling. 

 We further note that the declaration under penalty of perjury by Alison Foster 

Davis states that mother executed the voluntary relinquishment and it was sent to DSS. 

For the purposes of our analysis, we assume that mother executed a voluntary 

relinquishment of her parental rights. 
33 

rights to a private adoption agency. The juvenile court in Teresa J. merely found the 

relinquishment invalid. (Teresa J., supra, 102 Cal.App.4th at p. 370.) Here, in contrast 

to Teresa J., the juvenile court conducted a full section 388 hearing considering the 

merits of the points raised by the parties, taking considerable evidence, and making its 

findings based on the children’s best interest. We, therefore, reject the S.s’ argument that 

the juvenile court misunderstood or misapplied the parties’ burden of proof and/or the 

legal standard to apply in cases involving relinquishment of parental rights to a private 

adoption agency. 

This brings us to father’s contentions that the juvenile court misapplied Teresa J. 

and failed to find that it was not in the children’s best interest for the parents to relinquish 

the children to a private adoption agency. Father requests that we remand this case for a 

determination by the juvenile court as to whether the parents’ rights to relinquish to a 

private adoption agency should be limited. 

Father’s first point is that whether the relinquishment is to a public or private 

adoption agency, “the result is the same – the parent has chosen a relative to adopt the 

child, thus participating in the process, avoiding the delay expected in appeals, and 

relieving the juvenile court of the obligation to do anything but designate Family 

Connections [adoption agency] as the adoption agency.” 

We find this to be a misreading of the holding of Teresa J. Like the S.s, father is 

seeking to expand Family Code section 8700 and R.S. to include private adoption 

agencies as well as public ones. We will not do so. As explained in detail above, Teresa 

J. and section 361(a) leave the juvenile court with far more responsibility in evaluating 

relinquishment to a private adoption agency than to merely designate Family Connections 

as the adoption agency. In all matters, the court must evaluate whether the children’s 

best interest is being served. 
34 

Finally, we reach father’s contention that the juvenile court failed to find whether 

it was in the children’s best interest for the parents to relinquish their parental rights to a 

private licensed adoption agency. The juvenile court found it was in the best interest of 

Leslie and Laylah to stay with the foster parents, it was not in the best interest of the 

children for the private adoption to go forward, the testimony of the S.s was not credible, 

the testimony of the C.s was credible, and the testimony of the public health nurse and 

social workers was credible. The court found by clear and overwhelming evidence that it 

was in the best interest of Leslie and Laylah to stay in the care of the C.s who properly 

cared for them in all apparent ways and provided a safe, stable, and caring family. 

 The juvenile court’s finding that it was not in the best interest of the children for 

the private adoption to move forward was tantamount to an express finding that it was not 

in the children’s best interest for the parents to relinquish their parental rights to a private 

adoption agency. There is little or no substantive difference between the court’s actual 

finding and the one father seeks to have the juvenile court elaborate on upon remand. We 

also find that given the juvenile court’s other express findings, there is no doubt how the 

court weighed issues of credibility and that the court found, if not expressly then 

impliedly, that it was not in the best interest of the children for the biological parents to 

relinquish their parental rights to a private adoption agency. 

Furthermore, the juvenile court’s finding that it was in the best interest of the 

children to remain in the care of the C.s, a finding made by clear and overwhelming 

evidence, superseded the need for a finding that parental relinquishment to a private 

adoption agency was or was not in the best interest of the children. We reach this 

conclusion because, unlike Teresa J., the parties here fully adjudicated all issues 

concerning the best interest of the children, including those involving ultimate custody, 

care of the children, and the strength of the children’s bonds to the foster parents and the 

family members. 
35 

There is no reason to remand this case for further findings by the juvenile court. 

We reject all of the petitioning parties’ relinquishment arguments. 

SUFFICIENCY OF THE EVIDENCE 

 The S.s argue at length that the evidence adduced at the hearing favored their 

section 388 petition. The S.s argue the C.s did not provide proper care for the children 

and the S.s would be better caregivers. The S.s reargue the evidence concerning what 

they believe are deficiencies in the C.s’ ability to provide the children with love and 

emotional support. They also challenge the C.s’ ability to deal with the children’s speech 

development, care of MRSA and folliculitis, treatment of asthma and the failure to 

provide medications, and the failure to follow medical advice and obtain medical 

services. 

The S.s fault the department for failing to more diligently search for relatives. The 

S.s reargue the evidence concerning whether the children were in a safe and secure 

environment. Finally, the S.s contend the juvenile court abused its discretion and was 

biased by showing a negative attitude toward them. We reject these contentions. 

A party may petition the juvenile court to vacate or modify a previous order on 

grounds of change of circumstance or new evidence. (§ 388, subd. (a).) The parent or 

other party must also show that the proposed change would promote the best interests of 

the child. (§ 388, subd. (d); Cal. Rules of Court, rule 5.570; Stephanie M., supra, 7 

Cal.4th at p. 317.) 

The parent or petitioner bears the burden of showing in a section 388 petition, that 

both a change of circumstance exists and that the proposed change is in the best interests 

of the child. (Casey D., supra, 70 Cal.App.4th at p. 47.) The petitioners at the section 

388 hearing had the burden of proof, by a preponderance of the evidence, to show there 

was new evidence or there were changed circumstances that made a change of the 
36 

children’s placement in their best interest. (§ 388; Stephanie M., supra, 7 Cal.4th at 

p. 317.) 

Our review of the juvenile court’s finding for sufficiency of the evidence requires 

that all reasonable inferences be given to support the findings and orders of the juvenile 

court. Issues of fact and credibility are determined by the juvenile court, not this court. 

The record must be viewed in the light most favorable to those orders and in the light 

most favorable to the prevailing party, giving the prevailing party the benefit of every 

reasonable inference and resolving all conflicts in support of the juvenile court’s order. 

(In re Tanis H. (1997) 59 Cal.App.4th 1218, 1226-1227 (Tanis H.).) 

The juvenile court’s findings may not be disturbed if supported by substantial 

evidence. Issues of fact and credibility are questions of fact for the juvenile court to 

decide, not this court. The juvenile court’s broad discretion to determine what best serves 

the interests of the children will not be reversed absent a clear abuse of discretion. To 

abuse its discretion, the juvenile court’s decision must exceed the limits of legal 

discretion by being arbitrary, capricious, or patently absurd. (Tanis H., supra, 59 

Cal.App.4th at p. 1227.) 

There were undoubtedly conflicts in the evidence presented by the parties in the 

hearing. The juvenile court, however, resolved the issue of credibility in favor of the 

department’s social workers, the public health nurse, and the C.s. The court found the S.s 

not to be credible in their testimony. We read the record in the light most favorable to the 

prevailing party and the juvenile court’s rulings. 

The evidence adduced at the hearing indicates that the C.s deeply care for the 

children and cared for their outbreaks of MRSA and folliculitis by taking them to the 

doctor, giving them bleach baths as directed, and providing them with antibiotics. The 

C.s administered treatment for the girls’ asthma. When the girls went on their first 

overnight visit, Mrs. C. explained she had very little time to get their things together and 
37 

did not provide them with an inhaler. Mrs. S. testified there was a second overnight visit 

when this occurred, but conceded that inhalers were provided for the remaining overnight 

visits. 

There was a dispute concerning whether the C.s followed through with a referral 

to an endocrinologist. Nurse Moreland explained that the C.s did follow through by 

taking Leslie to the doctor for blood work. Nurse Moreland further explained that Valley 

Children’s Hospital kept refusing the request by the children’s doctor for a consult with 

an endocrinologist. It was later discovered that Valley Children’s Hospital tested Leslie 

shortly after her birth and found she did not have a genetic disorder. Leslie and Laylah 

had several serious medical issues. There was substantial evidence that the C.s provided 

the children with adequate medical care, taking them to the doctor as necessary (a regular 

occurrence for both children) and providing care for them at home with antibiotics, 

bleach baths, nebulizers, inhalers, and over-the-counter medication. 

Throughout the proceedings the S.s challenged whether the C.s should have had 

the children in what they referred to as daycare. The S.s further challenged the C.s’ 

ability to deal with the children’s delayed language skills. The evidence adduced at the 

hearing was that the C.s did not place the children in daycare, but into a Head Start 

program in a local school. According to Nurse Moreland, this was an appropriate 

response to the girls’ delayed language skills. In addition, the C.s had been referred to 

the Kern Regional Center for evaluation of this issue, and according to Nurse Moreland, 

the C.s followed up with the referral. 

There was evidence before the juvenile court that the girls loved the C.s and ran 

back to see them after overnight visits. Mr. and Mrs. C. clearly loved both children and 

wanted to adopt them. Social Worker Albertson thought Mrs. C. “was concerned about a 

situation such as this unfolding,” a “debate over where the children should be.” The C.s 

wanted to keep the girls. Mrs. C.’s concerns turned out to be well-founded. 
38 

Nevertheless, Mrs. C. testified that she wanted to adopt both girls. Mr. C. was 100 

percent in favor of adoption. 

We do not read the record as showing that Mr. and Mrs. S. were unsuitable 

caregivers. The department found at the conclusion of the Team Decision Meeting that 

both the S.s and the C.s were appropriate potential adoptive parents. By the time the joint 

hearing began, however, the children had been in the C.s’ continuous and uninterrupted 

custody for just over 16 months. At the conclusion of the hearing in September 2013, the 

C.s had been the children’s sole caregivers for over 19 months. There was substantial 

evidence before the juvenile court that the C.s were excellent caregivers who loved the 

children, formed deep bonds with them, and were unwavering in their desire to adopt 

both children. 

The S.s also challenge whether the department’s initial search for relatives was 

thorough enough. According to the testimony of social workers, the Legislature changed 

the law to require more exhaustive searches for relatives of children who enter into 

dependency proceedings. There was no search unit in the department when Leslie and 

Laylah became dependent children. 

There is no dispute, however, that the department followed the dependency law in 

effect at the beginning of the dependency. Section 361.3, subdivision (c)(1) creates a 

preference for relative placement at the beginning of a dependency. The department 

contacted the maternal and paternal grandmothers, but neither one was aware of a family 

member willing to care for the children. At the very beginning of the dependency, father 

was not established as a father. There was testimony from social workers that father’s 

family could not be considered for placement until paternity was established. Father was 

found to be a presumed father after the jurisdiction hearing in 2012. 

The presumption for placement with family members can also occur pursuant to 

section 361.3, subdivision (d) after there is a change in custody of the children during the 
39 

dependency proceedings. Such a change never occurred in this case. We further observe 

there was evidence adduced at the hearing through Social Worker Albertson that the S.s 

were aware of the dependency proceeding prior to December 2012 and did not 

immediately come forward. The juvenile court was entitled to give the S.s’ testimony 

concerning their knowledge of the proceedings the weight the court thought it deserved. 

It is not the task of this court to reweigh the evidence. 

The S.s contend the juvenile court generally abused its discretion and acted in a 

biased manner toward them and their counsel. After reviewing the entire record, 

including the hearing transcripts, we disagree. Judge Palmer carefully weighed all of the 

evidentiary objections by each of the parties. The court would occasionally find a 

question repetitive and ask the questioning attorney to move on to the next point. This 

happened with the S.s’ counsel, but also with county counsel, the C.s’ counsel, and the 

other attorneys involved in the proceedings. Judge Palmer was patient and respectful to 

the parties and their counsel and demonstrated thoughtful deliberation in making his 

rulings. 

Children have a fundamental independent interest in belonging to a family unit 

and they have compelling rights to be protected from abuse and neglect and to have a 

placement that is stable, permanent, and that allows the caretaker to make a full 

emotional commitment to the child. (In re Marilyn H. (1993) 5 Cal.4th 295, 306.) In 

denying the S.s’ section 388 motion and leaving the children in their placement with the 

C.s, the juvenile court did not err. 

DISPOSITION 

 The petitions for extraordinary writ relief are denied and the juvenile court’s order 

setting this matter for a hearing pursuant to Welfare and Institutions Code section 366.26 

is affirmed. This opinion is final forthwith as to this court.