Opposition Brief — Marshall v. San Francisco Department of Social Services

tO,

No. 91-1396 D

r ae 1992

In The

. — 1s CLERK

Supreme Court of the United Statés ~~~

October Term, 1991

e

ABIGAIL RUTH MARSHALL

and DONALD BERGERSON,

Petitioners,

VS.

SAN FRANCISCO DEPARTMENT OF SOCIAL

SERVICES; DAVID AND JOYCE OWEN; STANLEY

MARSHALL; CASSANDRA MARSHALL,

Respondents.

S

Petition For Writ Of Certiorari

To The Court Of Appeal Of The State Of California

First District, Division Three

*

BRIEF OF RESPONDENTS SAN FRANCISCO

DEPARTMENT OF SOCIAL SERVICES,

DAVID AND JOYCE OWEN AND

CASSANDRA MARSHALL IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

¢

Louise H. RENNE,

City Attorney*

Loretta M. Giorci

Jutta Ten Eyck

Deputy City Attorneys

206 City Hall

San Francisco CA 94102

(415) 554-3966

Attorneys for Respondent

San Francisco Department

of Social Services

*Counsel of Record

Rosert L. WALKER*

Law Offices of

Robert L. Walker

685 Market Street,

Suite 690

San Francisco, CA 94105

(415) 243-0726

Attorney for Respondents

David and Joyce Owen

Patricia BLAcK*

Attorney at Law

50 California Street,

Suite 2675

San Francisco, CA 94111

(415) 394-8701

Attorney for Respondent

Cassandra Marshall

COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Did the California Supreme Court err in letting stand

the state Court of Appeal’s decision affirming adop-

tive placement of the minor, Cassandra M., with her

foster family, based on the minor’s best interests in

the lasting emotional bond with the foster parents,

over placement with petitioners, relatives who had

never unequivocally presented themselves as willing

to adopt Cassandra and who had only belatedly

requested custody of the minor one year after she had

been placed with the foster parents?

ii

TABLE OF CONTENTS

Page

CAUES THAN PREG UGES 6660 deeesgneeceectanscuers i

TABLS GOP COUR OES 60k i wesieg asec yereess cechs ii

TABLE OF AUT eepee Cle sb kas cunuee sb eosneses ener’ iii

SEAR EMSS Gr CAs oy aes eehaweseesuas denesakes 1

SUMMARY OF ARLSUNGEIUE 6s ccs ccscnesecssecsenes ns

REASONS THE PETITION SHOULD BE DENIED... 6

I. PETITIONERS HAVE NEVER UNEQUIVO-

CALLY PRESENTED THEMSELVES AS AN

ADOPTIVE PLACEMENT FOR CASSIE AND

NEVER ASKED THAT CASSIE BE PLACED

WITH THEM UNTIL ONE YEAR AFTER CAS-

SIE WAS PLACED WITH THE OWENG...... 6

Il. ADEQUATE CONSTITUTIONAL PRO-

CEDURES TO DETERMINE WHETHER CHIL-

DREN SHOULD BE PLACED WITH

RELATIVES ARE AVAILABLE UNDER CALI-

FORNIA LAW AND WERE FOLLOWED IN

THEES CAGE». vxue ccsdusnaeeteeek ee eeeeeees 20

CONCLUGEIN 6. ss wis eens dunce ene ete ae 29

ili

TABLE OF AUTHORITIES

Page

Cases

Adoption of Baby Boy D., (1984) 159 Cal.App.3d 8.... 25

Collins v. Superior Court, (1977) 77 Cal.App.3d 47.... 25

In re Carmaleta B., (1978) 21 Cal.3d 482.............. 25

In re Marriage of Carney, (1979) 24 Cal.3d 725 ....... 28

In re Albert B., (1989) 215 Cal.App.3d 361........ 25, 27

im ve Auger F., (1961) 26 Cal.3d 906..............%. 25

In re Eugene W., (1972) 29 Cal.App.3d 623........... 25

In re Lynna B., (1979) 92 Cal.App.3d 682............ 24

In re Micah S., (1988) 198 Cal.App.3d 557 ........... 25

Jermistad v. McNelis, (1989) 210 Cal.App.3d 528...27, 28

Moore v. City of East Cleveland, 431 U.S. 496 (1977) .... 26

Prince v. Massachusetts, 321 U.S. 158 (1944).......... 25

Smith v. Organ. of Foster Families for E. & Reform,

Ue ida cee enaseceatareenaitns cas 29

Stanley v. Illinois, 405 U.S. 645 (1972)................ 25

CALIFORNIA WELFARE AND INSTITUTIONS CODE

a GO ys ya say hes 6's 4 44404 4

a ae 20, 21

Ee ee eh es wid kaw aban eA NARS NDS 22

Ee 1

YE EA EO et nee 20

—

iv

TABLE OF AUTHORITIES - Continued

Page

eer rr eee ee rer ee ree 27

IE SE Se ese b ks pac enee keane eK) babe beaken 22

gk | BRET eT Tere Payee rT TE Ce Tee Ter 27

PU DENS 6s banahidarcbestsenenesceuphuus 22, 24

I SEED G05 vo thos ene neh bended bh necuaune ewes 24

PPP Teer ee Tee TT Tere reer ere 3, 4, 23

MISCELLANEOUS

Goldstein, Freud & Solnit, Beyond the Best Interests

OF Fe Ce CO os onsen can ksncasoes esanctuctas 23

R. Mnookin, Child Custody Adjudication: Judicial

Functions in the Face of Indeterminacy, 39 Law

& Contemp. Prob. (no. 3) 226 (1975).............. 28

STATEMENT OF CASE

Cassandra M. (“Cassie”), the minor who is the sub-

ject of this action, was born suffering severe drug with-

drawal, the result of her natural mother’s drug abuse

during the pregnancy. Consequently, on September 19,

1988, the San Francisco Department of Social Services

(“Department”) commenced this action, filing a depen-

dency petition pursuant to California Welfare and Institu-

tions Code section 300(a).!

The San Francisco Juvenile Court sustained the

dependency petition on December 1, 1988. The Juvenile

Court declared Cassie a dependent child within the

meaning of Section 300(a) and committed her to out-of-

home placement. The Juvenile Court expressly found that

placement with relatives was inappropriate due to Cas-

sie’s still fragile medical condition. Petitioners, Abigail

Ruth Marshall and Donald Bergerson, Cassie’s paternal

aunt and uncle, did not appear at the hearing to seek

custody of Cassie. (CT 22-23; RT1 9-11.)?

Dependency was renewed in August 1989, because

Cassie could not yet be reunited with her natural parents.

1 All statutory references hereinafter will be to the Califor-

nia Welfare and Institutions Code, unless otherwise indicated.

For the Court’s convenience, the California Codes governing

child welfare and dependency proceedings are discussed more

fully below at pp. 20 through 24.

2 References are to the Clerk’s Transcript (“CT”) and to the

six volumes of Reporter’s Transcripts (“RT”) of San Francisco

Juvenile Court proceedings below. The Reporters’ Transcripts

will be designated by volume number, as “RT1”, “RT2”, and so

forth. Because the volumes were misnumbered (there are two

numbered Volume 6 of 6), the volumes will be referred to as 1

through 6 for simplicity.

2

Neither petitioner appeared at the dependency status

review hearing. (CT 27-38.)

In November 1989, the Department recommended a

permanent plan of adoption for Cassie. The matter came

before the Juvenile Court for permanency planning pro-

ceedings on November 16, 1989. In order to evaluate the

Department’s recommended permanent plan, on Decem-

ber 28, 1989, the Juvenile Court ordered ex parte indepen-

dent assessments of Cassie’s relationships with the

Owens, Cassie’s foster family, and with petitioners. (CT

41.)

In January 1990, petitioners appeared in these pro-

ceedings for the first time, with the filing of an applica-

tion for modification of the Juvenile Court’s December

1988 dependency order. Concurrently, petitioners

requested an order granting them the status of “inter-

ested parties” and an order placing Cassie with them

rather than with the Owens. (CT 54-59.) The Juvenile

Court granted petitioners standing to proceed with the

application to modify Cassie’s placement pursuant to

Welfare and Institutions Code section 388.7 At the same

3 Welfare & Institutions Code section 388 provides:

Any parent or other person having an interest in

a child who is a dependent child of the juvenile court

or the child himself through a properly appointed

guardian may, upon grounds of change of circum-

stance or new evidence, petition the court in the

same action in which the child was found to be a

dependent child of the juvenile court for a hearing to

change, modify, or set aside any order of court per-

viously made or to terminate the jurisdiction of the

court. The petition shall be verified and, if made by a

person other than the child, shall state the peti-

tioner’s relationship to or interest in the child and

(Continued on following page)

osiaeeamaemaee etiam

3

time, based on the independent evaluation, the court

found that Cassie’s weekly weekend visits to petitioners’

home were detrimental to her well being and conse-

quently ordered the visits decreased to biweekly half-day

visits. The court also ordered separate counsel appointed

for Cassie. (CT 89; RT1 14-38.)

At a court-ordered settlement conference on March 1,

1990, the parties were unable to mutually agree on a

permanent plan for Cassie. The court instead ordered the

parties to submit the matter to mediation with a court-

appointed counselor. Because the parties were too hostile

to use the mediation process productively, the court set

the case for trial on the recommended permanent plan

and the Section 388 petition. (CT 92, 94-95, 98.)

The Juvenile Court commenced trial of the perma-

nency planning and Section 388 proceedings on April 16,

1990. The court denied petitioners’ pretrial motion to

dismiss dependency and place Cassie immediately with

petitioners. Then, on May 17, 1990, after hearing weeks of

exhaustive testimony, the Juvenile Court denied peti-

tioners’ Section 388 application for modification, allowed

(Continued from previous page)

shail set forth in concise language any change of

circumstance or new evidence which are alleged to

require such change of order or termination of juris-

diction.

If it appears that the best interests of the child

may be promoted by the proposed change of order

or termination of jurisdiction, the court shall order

that a hearing be held and shall give prior notice, or

cause prior notice to be given, to such persons and

by such means as prescribed by Section 386, and, in

such instances as the means of giving notice is not

prescribed by such sections, then by such means as

the court prescribes.

+

Cassie to remain in the Owens home and ordered adop-

tion as the permanent plan. (CT 210-232; RT6 197.) Com-

missioner Everett Hewlett, Jr., ruling for the court, found

that, contrary to the assertions made by petitioners, they

“never unequivocally said they wanted the Department

of Social Services to place the child with them until

December 1989.” (Pet. at App.1, p. 6; RT6 191-192.) Com-

missioner Hewlett further found that the Owens had

continuously provided Cassie with the physical and psy-

chological nurturing of parents during the entire period

she was in their home, despite their indecision about

whether they would eventually adopt her. (Pet. at App.1,

p- 7; RT6 192.)

The Juvenile Court later denied petitioners’ applica-

tion for rehearing of the Section 388 petition on the

grounds that petitioners lacked standing to seek rehear-

ing under Welfare and Institutions Code section 252. Peti-

tioners appealed the denials of both the Section 388

petition and the rehearing. (CT2 1-23.)4

The California Court of Appeal affirmed the Juvenile

Court’s permanent plan for Cassie. The Court held that at

the permanency planning stage of the dependency pro-

ceedings, the best interest_of the minor, including the

preference for continuation of the existing emotional

bond between the child and the foster parents, prevails

and any previous preference for placement with relatives

becomes irrelevant once the permanent plan of adoption

4 Petitioners could not appeal from the permanency plan-

ning order. The order confirming the Department’s recom-

mended permanent plan of adoption and refering Cassie’s case

for initiation of proceedings terminating parental rights is a

non-appealable order. Welf. & Inst. Code § 366.25(j).

5

is made. Appendix 1 to the Petition for Writ of Certiorari

(“Pet.”) at 17.

Petitioners’ petition for review in the California

Supreme Court was denied on December 18, 1991.

SUMMARY OF ARGUMENT

There are no sound reasons to grant the petition for writ

of certiorari in this case. Contrary to the assertions made in

the petition now before this Court, petitioners Bergerson and

Marshall have never been ready, willing and able to

unequivocally offer Cassie the stability and commitment of

adoption into their family. This simple fact is amply sup-

ported by the record and informs the decisions of both the

Juvenile Court and the Court of Appeal.

California law grants relatives a preference for place-

ment in dependency proceedings up until the perma-

nency planning stage. Petitioners here were not denied a

preference. They simply came forward for Cassie too late.

From the time Cassie was removed from her natural

parents, petitioners had numerous opportunities to pre-

sent themselves to both the Department of Social Services

and to the Juvenile Court to demonstrate a committment

to adopt Cassie. They never did so. They affirmatively

declined to take Cassie at birth, because of her extreme

fragility and medical complications incident to her drug

withdrawal. Later, they were concerned that Cassie

would interfere with their relationships with their own

two children. Then petitioners offered their friends, Carla

and Tom Garrett, as adoptive parents for Cassie. Finally,

petitioners proposed legal guardianship as a plan for

Cassie, so that she would not lose inheritance rights to

family land and so that she would not be a “rival” to their

own children. Never did petitioners unconditionally offer

to take Cassie in as their adopted child.

6

The trial court found, and the Court of Appeal

affirmed, that petitioners had not even unequivocally

presented themselves as a placement for Cassie until

December 1989, after Cassie had been with her foster

parents, the Owens, for a full year. The court-appointed

expert, Dr. Toni Vaughn Heineman, found in March 1990

that, in Cassie’s mind, Joyce Owen was her mother and

David Owen her father. Indeed, from the beginning Joyce

and David Owen, offered Cassie a loving and stable

home, loved and cared for her as if she were their own

child during her painful drug withdrawal and restored

her to health and happiness. They want Cassie and have

made an unconditional committment to adopt her.

In short, the facts underlying this case are not as

presented by petitioners. The Juvenile Court did not deny

petitioners any fundamental right. The court granted

them standing as interested parties and permitted them

to appear with private counsel and to pursue the Section

388 petition. The Juvenile Court based its decision to

allow Cassie to remain with her foster family on the

factual finding that Cassie’s best interests were best

served by permanent placement in the Owens’ stable

nurturing home. Nothing can change the fact that Cassie

sees the Owens as her parents.

REASONS THE PETITION SHOULD BE DENIED

I. PETITIONERS HAVE NEVER UNEQUIVOCALLY

PRESENTED THEMSELVES AS AN ADOPTIVE

PLACEMENT FOR CASSIE AND NEVER ASKED

THAT CASSIE BE PLACED WITH THEM UNTIL

ONE YEAR AFTER CASSIE WAS PLACED WITH

THE OWENS.

Petitioners present themselves to this Court as “fit

near-relatives” who have been willing and waiting to take

7

Cassie into their home since the inception of this case.

This is not so. In fact, during the four weeks Juvenile

Court trial of the Section 388 and permanency planning

proceedings, the only such portrayal of petitioners came

from the testimony of petitioner Marshall herself.

Because petitioners present such an incomplete depiction

of the facts of the case and because this is a case about

factual determinations, it is necessary to review some of

the factual history of Cassie’s case.

Born September 3, 1988, the only daughter of Teresa

S. and Stanley M., Cassie was four weeks premature and

exhibited severe drug withdrawal symptoms. She tested

positive for cocaine, cocaine metabolites, codeine, mor-

phine, methadone and methadone metabolites. At the

time of Cassie’s birth, Stanley was incarcerated in Illinois,

having been arrested on federal drug charges. (Pet. at

App.1, p. 3; CT 1, 3, 17.)

Cassie was placed first in the Fragile Infant Special

Care (“Baby-Moms”) foster home of Yvonne Eldridge.

Then, in December 1988, Cassie was placed in the Baby-

Moms home of Joyce and David Owen. Cassie has since

continuously resided with the Owens, their two sons,

Michael and Eric and another foster child, LaMar, who

was also a fragile infant placed through Alameda County.

(Pet. at App.1, p. 3; CT 17, 50-52; RTS 16-17.)5

5 The Baby-Moms program is a San Francisco program for

infants suffering from severe drug withdrawal and other

related medical complications. It is the only such program in

the state. Its purpose is to identify children who have special

needs, secure and train special foster parents for those chil-

dren, provide and coordinate medical care and involve other

programs according to the special needs of each child. (CT 16;

RT1 44-45.)

8

Cassie was a child much in need of the Baby-Moms

program. When she was placed in the Eldridge home, she

exhibited signs of severe drug withdrawal, irritability,

sweats and lack of coordination in feeding. She was

hypertonic and difficult to console, sometimes crying for

up to 20 hours a day. (CT 30; RT1 55-56.) When Cassie

was placed with the Owens family three months later, she

was still a difficult child, screaming for hours every day.

She was rigid and would not make eye-contact. Her

feeding was still uncoordinated. Cassie slept in Joyce and

Dave Owens’ bedroom due to her frequent night-waking.

(Pet. at App.1, p. 3; RT6 22.)®

However, Cassie’s condition improved drastically

within the first month of her placement. By her first

birthday, Cassie was a happy baby, just beginning to

walk. She regularly went to bed without crying and slept

through the night. She could make eye-contact with all of

the Owens family members. (Pet. at App.1, p. 3; RTS 23.)

When Cassie was most medically fragile and in the

Baby-Moms program, petitioners did not offer their home

to her. Nor did petitioners or any other relatives come

forward to offer Cassie a home at the time the Juvenile

Court ordered out-of-home placement for Cassie. Nor did

petitioners object when Cassie was placed in the Owens’

home at the age of three months.

The record does not support petitioners’ contention

that Cassie’s father “arranged for her care by asking his

6 Petitioners’ suggestion that the Owens took in foster

children “for money” is not only insulting, but it ignores the

selfless commitment the-Owens made to nurse and heal Cassie

at a time when she was suffering and gravely ill, a commitment

petitioners were not willing to make.

9

sister and her husband, petitioners here, to raise Cas-

sandra on his behalf.” (Pet. at 3) The only statement in

the record that even approximates this assertion was

made by an attorney for Stanley (Cassie’s father) at the

dispositional hearing in December 1988. (RT1 9.)? That

statement is, of course, not evidence. Petitioners did not

appear at the disposition hearing to offer Cassie their

home. Moreover, when the Department’s caseworker,

Geri Dito-Peavey, contacted Stanley in January 1989 to

ask whether he could offer a home for Cassie, he

responded that he could not, because he was incarcer-

ated. More importantly, he did not offer petitioners or

any other relatives as a potential home for Cassie. (RT1

142-143.)

Petitioners contend that during 1989, they “repeated

their request to raise Cassandra.” (Pet. at 3.) This asser-

tion is deceptive in the first instance because, in fact,

petitioners never had made any request to raise Cassie.

Petitioners cite, not the factual record, but only the Court

of Appeal’s opinion, for their assertion. In fact, no cred-

ible evidence was presented to the Juvenile Court, and

that court found none, to support petitioners’ claim that

they had always sought to take Cassie. Rather, the factual

evidence shows that in March and April of 1989, when

Cassie’s drug withdrawal symptoms had begun to abate,

Ms. Dito-Peavey discussed with petitioners the possi-

bility of placing Cassie in their home. Petitioners quote

7 The statement made by Stanley’s attorney was:

[Stanley] says that his sister and her husband can

take Cassandra when the social worker or the health

providers say the baby can leave the frail care center she’s

in now. (RT1 9.)

10

the record out of context when they state that the Depart-

ment’s case worker, Ms. Dito-Peavey, “dragg[ed her]

feet” in placing Cassie with them. (Pet. at 3.) Ms. Dito-

Peavey’s testimony in fact was that in July 1989:

... | talked to [petitioner] Abby about possible

placement options. At that time, I know Abby

had said, “Well, [Cassie’s] at a crucial point in

her skill. Maybe we would wait a little while

until after her first birthday,” and I went along

with that to some extent, dragging my feet.

We also talked about the procedure through the

Department, that the matching committee

would give me three adoptive homes and that

Abby and I would sit down together and go

over those homes. (RT2 404.)

Ms. Dito-Peavey also testified that petitioner Mar-

shall had indicated wanting to be involved in the selec-

tion of Cassie’s adoptive home. In early 1989 petitioner

Marshall was visiting Cassie in her foster home approx-

imately once every four to six weeks. At that time, Cassie

appeared normal and healthy. However, petitioners did

not express any interest in having Cassie in their home.

(RT1 110-111, 147). Instead, petitioners consistently

expressed concern that, having two children of their own,

the economic and emotional burden of having another

child in the home was too great. Petitioner Marshall was

especially concerned about rivalry between Cassie and

her own daughter, Alyse. (RT1 60, 78-79, 109; RT3

662-663.)

Far from desiring to have Cassie in her home, during

July, August and September of 1989, petitioner Marshall

discussed with Ms. Dito-Peavey the possibility, indeed

their hope, that the Owens would adopt Cassie. (RT1

111.) Petitioner Marshall also communicated to Ms. Dito-

Peavey that Stanley too supported the Owens adoption of

Cassie. (RT1 129.) They all regarded the Owens home

Ne ee me ne

11

very favorably and believed life with the Owens would

be wonderful for Cassie. Petitioners even discussed pay-

ing support to the Owens for Cassie in the event the

Owens adopted her. (RT1 61-62, 76-77, 111-129.) In July

1989, petitioner Marshall informed Ms. Dito-Peavey that

she wanted Cassie in a home other than her own, one that

would “spoil” her. (RT1 80, 110-111.) In short, at no time

up to this point had petitioners ever offered Cassie their

home.

At this same time, the Owens were considering

adopting Cassie. According to Ms. Owen, her relationship

with petitioners had been a good one prior to November

1989. Petitioners occasionally visited Cassie in the Owens

home. Later they would pick up Cassie, take her out and

return her a few hours later. (RT5 23-24.) Prior to Decem-

ber 1989, petitioners had never expressed to Ms. Owen

any interest either in adopting Cassie or in becoming her

legal guardian, although the three of them had several

discussions regarding the possibility of the Owens adopt-

ing Cassie.

Ms. Owen recalled first considering adopting Cassie

as early as July 1989, when she went on vacation without

Cassie and truly missed her. The Owens began discussing

adoption of Cassie in September 1989. She also recalled

telling petitioner Marshall in September 1989 that she

loved Cassie very much and was considering adopting

her. On those occasions, petitioner Marshall responded

that she was pleased and that the Owens’ home was the

kind of family she had hoped for for Cassie, because they

lived in the suburbs, had children and were, importantly,

a religious family. (RT 5 24-26.) Granted, the Owens too

had reservations. They had two teenage children of their

own, many financial responsibilities and another foster

child. They were also concerned about starting over late

12

in life with young children. (RT1 75; RT5 27-29.) Nev-

ertheless, the Owens continued to provide Cassie a loving

and supportive home, where Cassie thrived.

Because of their concerns, in approximately October

1989, the Owens told Ms. Dito-Peavey that they could not

adopt Cassie. One month later, in November 1989, peti-

tioners for the first time expressed interest in having

Cassie in their home but on “a trial basis.” At the same

time, they offered their friends, Carla and Tom Garrett, as

a prospective adoptive home for Cassie. Petitioner Mar-

shall felt that if Ms. Garrett, her best friend and former

law partner, took Cassie in, petitioners could maintain

contact with Cassie. (RT1 81-82.) It is apparent that peti-

tioners wanted the benefit of a relationship with Cassie,

when convenient for them and with none of the attendant

responsibility.

In order to begin to move Cassie into a prospective

new home, during December 1989, the Department

allowed overnight visits to be arranged between Cassie

and petitioners and between Cassie and the Garretts.

(RT1 83.) There were two weekend visits and a longer

visit. According to Ms. Owen, Cassie seemed fine and

healthy when she left for the visits. However, Ms. Owen

observed that after returning from visits, Cassie’s behav-

ior was changed. She screamed when she was put to bed,

awoke screaming during the night and screamed when

she woke up in the morning. Whereas before she had

been a very independent little girl, she became “clingy”

and whining, hanging onto Ms. Owen’s leg and crying,

calling out for her if separated from her for a moment.

This was not Cassie’s usual behavior. (RT5 30-32.)

Then, on December 15, 1989, the Owens informed

Ms. Dito-Peavey that they had changed their minds and

made a commitment to adopt Cassie. (RT5 28.) Since then,

13

the Owens have never waivered in their decision to adopt

Cassie. (RT5 29.) Petitioners were fairly angry at this

complication. They informed Joyce Owen that as Cassie’s

relatives, they were entitled to “a right of first refusal” of

Cassie. (RT1 86-87.) However, at that point, petitioners

still had not made any commitment to Cassie. During

December 1989, petitioners indicated to the Department

only that they preferred to have legal guardianship of

Cassie, in order to retain rights to Cassie’s inheritance

and to avoid rivalry with their daughter, Alyse. (RT1

90-91, 112.)

Then, on December 28, 1989, Ms. Dito-Peavey

received a letter from appellant Marshall asking, “for the

record,” that Cassie be placed immediately in their home.

(RT1 91.) This was the first time since Cassie’s birth that

petitioners had definitively requested that Cassie be placed in

their home. (RT3 671.) Petitioners gave no reason for their

change of heart. It was Ms. Dito-Peavey’s impression that

they did not want to “lose” and simply wanted to prevent

the Owens from having Cassie. (RT1 88-89, 182.)® At the

same time, the Garretts announced that they would not

adopt Cassie. (RT1 85, 92.)

Even at this critical stage, petitioners never indicated

that they wished to adopt Cassie. They continued to ask

only for legal guardianship over Cassie, essentially so

8 Petitioners’ thiniy veiled suggestion that the Owens were

anti-Semitic and that Cassie’s “Jewish ancestry” should dictate

her placement with a Jewish family (Pet. at 4,) are unsupported

by the record and are in any event irrelevant. In fact, Cassie’s

natural mother, Teresa, is Catholic. (Pet. at App.1, p. 4.) There-

fore, under traditional Jewish law, Cassie is not actually Jew-

ish. Moreover, nothing in the record suggests that either

Stanley or Teresa have ever expressed to the Department any

concern regarding Cassie’s religious upbringing.

14

that they could tell Alyse that she had no “rival” and that

they were only caring for Cassie because there was no

other “suitable” home for her. (RT1 111-112.) Petitioners

were also looking to the financial benefits to be had

through enforcing child support obligations against Stan-

ley, which would not be available were petitioners to

adopt Cassie. (RT3 719.) Petitioner Marshall also contem-

plated giving Cassie to her friend, Carla Garrett, if peti-

tioners were to become Cassie’s legal guardians. (RT1 90.)

For obvious reasons, the Department did not believe that

petitioners had a strong committment to Cassie. (RT1 91.)

Because the hostilities between the parties were

increasing and because Cassie was reacting adversely to

the tug-of-war and routine “passing around” of the visits,

Ms. Dito-Peavey terminated overnight visits with peti-

tioners, with the concurrence of the Department’s consul-

tant, Dr. Alicia Lieberman. When the visits ceased,

petitioners became still angrier and expressed feelings of

betrayal. They showed no sympathy for Cassie’s feelings

and needs in the situation. (RT1 92-93, 95-96, 102.) How-

ever, Cassie returned to her normally happy, independent

behavior after the overnight visits ceased. (RT5 32-33.)

In January 1990, the Department received correspon-

dence from Cassie’s mother, Teresa, asking that Cassie be

placed with the petitioners. Teresa had up to that time

consistently asked that Cassie not be placed with the

‘petitioners because she, Teresa, did not get along with

them and she believed they would not let her see Cassie.

Teresa had felt that Cassie would be well taken care of by

the Owens and she could visit her there. Ms. Dito-Peavey

later learned that petitioner Bergerson had lied to Teresa,

telling her that Cassie was abused and neglected by the

Owens, in order to coerce her into changing her position.

(RT1 112-114, 118-123.)

15

Because the custody dispute between the parties

grew increasingly antagonistic, Ms. Dito-Peavey deter-

mined that an outside evaluation was necessary in order

to establish a placement recommendation that served

Cassie’s long-term best interest. For that reason, Ms.

Dito-Peavey engaged Dr. Toni Vaughn Heineman to eval-

uate Cassie’s relationships with both petitioners and the

Owens. (RT1 181, 206.) At that point, Ms. Dito-Peavey

had not made up her mind concerning Cassie’s place-

ment. However, the Owens clearly loved Cassie and Cas-

sie had thrived in their home. On the other hand,

petitioners had come on the scene late, were ambivalent

and had only committed to take Cassie in reaction to the

Owens’ decision. (RT1 62-63, 211-212.)

Dr. Heineman, an expert in child psychology with

special expertise in attachment and child development

issues, conducted the evaluation of Cassie’s relationship

with the Owens and with petitioners in February and

March 1990. (RT1 244-245.)

Dr. Heineman testified that Cassie had a positive

relationship with the Owens, who were clearly quite fond

of her, were able to read all of her signals and responded

appropriately to her needs. Cassie was “bouncy and bub-

bly” with them and looked to the Owens as her parents.

(RT1 259.)

On the other hand, Dr. Heineman observed that Cas-

sie was subdued and tentative with petitioners. She was

“pleasant” to them but did not relate to them as her

“parents.” Observing Cassie in petitioners’ home, Dr.

Heineman noted that not only did Cassie not seek out

petitioner Bergerson, she consistently and obviously

avoided contact with him. (RT1 260-261, 343; Exhibit 2 at

trial (4/17/90).) Dr. Heineman also saw Cassie with peti-

tioners in her office. The doctor observed that Cassie was

16

not pleased to be left alone with petitioners. She was

unhappy and “shut down” under the stress of the situa-

tion. By the end of the session with Dr. Heineman, Cassie

had fallen asleep sitting between the petitioners on the

couch. According to Dr. Heineman, this is not a normal

way for children to behave and, under the circumstances,

indicated that Cassie is not strongly attached to peti-

tioners. (RT1 259-262, 278-279, 292-293.)

Based on her evaluation and observations, which the

Juvenile Court found very credible, Dr. Heineman con-

cluded that it would be “very, very detrimental” to Cassie

to remove her from the Owens home and place her with

petitioners. Dr. Heineman testified poignantly that Cassie

would experience the move as if the Owens family left

home one day and was killed in an accident. For Cassie,

the whole Owens family and the family home would

disappear. A child of Cassie’s age and prior history of

medical fragility would be devastated by such a move.

(RT1 263.)

According to Dr. Heineman, Cassie does not now

have the capacity to understand that petitioners are her

“relatives.” (RT1 345, 349.) To move her to a new “fam-

ily”, merely because they were related, would betray

Cassie’s confidence in the world as a safe, reliable and

predictable place. Moreover, Cassie would lose Joyce

Owen, her psychological “mother.” In the opinion of Dr.

Heineman, this would cause Cassie to lose the ability to

develop object constancy, that sense of “a parent” inside

which would allow her to go into the world and feel

secure. Moving Cassie, when there is no compelling need

to do so, would also lead Cassie to develop attachment

problems and would interfere with her later attempts to

develop autonomy and independence. (RT1 284, 288.)

Without this ability, Dr. Heineman concluded, Cassie will

17

be a very empty little girl and could become severely

depressed. (RT1 263, 273-275, 338-339, 355-356.)

Dr. Heineman observed that what a child needs most

is security, lasting relationships and the knowledge that

parents are parents. Anything less than adoption involves

a holding-back by a caretaker, a lack of commitment

depriving the child of emotional definiteness. Conse-

quently, Dr. Heineman recommended adoption as the

most permanent and stable alternative for Cassie. (RT1

269, 271.)9

Ultimately, based on her own case involvement and

on Dr. Heineman’s evaluation, Ms. Dito-Peavey also con-

cluded that adoption by the Owens best served Cassie’s

interests. Petitioners had consistently put their needs

ahead of Cassie’s and could not see what was best for her. —

(RT1 214-231.) Meanwhile, Cassie had been in the Owens’

home for 18 months and had a good relationship with the

Owens and her foster siblings. Cassie had a close and

loving relationship with her foster brothers Michael and

Eric. She also had a close relationship with LaMar, whom

the Owens also intended to adopt. She was clearly

attached to the Owens family. In contrast, Cassie did not

have the same attachment to petitioners. (RT1 63-65.)

Moreover, through the Owens, Cassie also had con-

tact with members of her natural mother’s family. She

° Petitioners’ expert, Dr. William Schwartzman, admitted

having no experience with issues of parent-child attachment,

attachment disorder, nor any experience with children of Cas-

sie’s age. He based his opinion solely on information obtained

from petitioners about the case. He had never spent any time

with Cassie, had never met the Owens and had never seen

Cassie relating to any of the parties. The Juvenile Court found

Dr. Schwartzman’s testimony “unpersuasive” and “not too

credible.” (Pet. at App.1, p. 7; RT4 passim; RT6 195.)

18

saw her mother, Teresa, her great-aunt and uncle,

Maureen and Ron Willis and her great grandparents. She

spent holidays with all of them at the Willis’ home. Joyce

Owen also threw a birthday party for Cassie on her first

birthday and invited all her maternal relatives as well as

petitioners “because they’re Cassie’s aunt and uncle.”

(RT5 34-36.) Nothing in the record suggests that peti-

tioners will similarly provide Cassie with this important

contact with her extended maternal family. Rather, the

facts strongly indicate that petitioners would not honor

or support Cassie’s ties with her maternal family. (RT1

219, 223.) Petitioner Marshall’s remarks to the Juvenile

Court regarding Cassie’s mother, Teresa - that “she exis-

ted” and that appellant “wouldn’t compare her with

mother Teresa despite her name” (RT3 630) - demonstrate

not only a stunning lack of compassion and sensitivity,

but also give the strongest possible indication that if

allowed to have custody of Cassie, petitioners would

negatively prejudice, if not actively thwart, Cassie’s

future relationship with her maternal relatives.

In this case, the evidence clearly demonstrates that

what is best for Cassie is to remain in the stable loving

home provided ty the Owens. The Owens nursed her

through her nightmare of drug withdrawal and provided

her with the loving care to develop into a normal, happy,

secure child. The Owens also provided her with contact

with both of her parents and all of her relatives, maternal

and paternal. Dr. Heineman, who saw Cassie with the

Owens, concluded that Joyce and David Owen were Cas-

sie’s psychological “mother” and “father.” They love her

and want to make a home for her.

On the other hand, petitioners have never uncondi-

tionally offered their home as a permanent placement for

Cassie. They have considered taking her in only out of a

19

sense of familial obligation, and only in reaction to the

Owens’ decision to adopt Cassie. Petitioners have never

committed to adopting Cassie. To the end, petitioner Mar-

shall involved her friend and former law partner, Carla

Garrett, as a potential adoptive placement for Cassie. Ms.

Garrett herself ultimately testified that she would not

have committed to adopting Cassie if petitioner Marshall

had wanted her. (RT3 836, 839.) Thus, they played a sort

of “bait and switch” with Cassie and with the Depart-

ment. Petitioner Marshall has been more concerned with

Cassie’s inheritance and with the emotional burden Cas-

sie might place on their family, than in providing her

with a stable, nurturing environment. (RT2 432-433, 676,

752.)

In short, this is a case decided on factual issues and

does not rise to the level of a federal case, much less a

case suitable for review by this Court. Even if, arguendo,

petitioners, as relatives, can assert a constitutionally-

based placement preference, petitioners in this case were

consistently ambivalent and uncommitted. While this

medically fragile child was developing a close, intimate

and nurturing psychological relationship with her foster

parents, petitioners were keeping their options open,

including considering placement of Cassie with their

friends, the Garretts. The record clearly demonstrates that

despite opportunities to take Cassie, petitioners were

unable or unwilling to make an unequivocal commit-

ment. Therefore, petitioners are not in a position to claim

that their constitutional rights, if any, were abridged. Nor

does this case present a suitable or adequate record for

determining the sensitive issue of whether relatives enjoy

an absolute constitutional placement preference.

20

Il. ADEQUATE CONSTITUTIONAL PROCEDURES

TO DETERMINE WHETHER CHILDREN

SHOULD BE PLACED WITH RELATIVES ARE

AVAILABLE UNDER CALIFORNIA LAW AND

WERE FOLLOWED IN THIS CASE

California child welfare laws set forth the procedural

and substantive protections for children and families that

come within the juvenile court dependency system in this

state. The statutory scheme embodies a strong policy

directing the Juvenile Court to make placement and per-

manency planning decisions that protect and promote the

best interest of the child. Furthermore, the law requires

that the court consider the placement of minors with

appropriate reiatives, consistent with the child’s best

interests and in a manner that promotes the physical and

emotional well-being of the child.

Whenever a minor child is removed from his or her

biological parents, the Juvenile Court and the Department

first consider placing the child with available relatives.

Welfare and Institutions Code section 309 requires that

the Department of Social Services release the minor to the

custody of the minor’s parent, guardian or responsible

relative unless one or more conditions exist. The condi-

tions under which a child is not placed with relatives

include (1) when the parent, guardian or relative is not

able or willing to provide care for the minor, and (2)

when detention is necessary for the protection of the

minor and there are no reasonable means by which the

minor can be protected in his or her home or in the home

of a responsible relative. Welf. & Inst. Code § 309.

Welfare and Institutions Code section 281.5 requires

the Department to give “primary consideration” to plac-

ing a child with relatives if the placement is in the

21

minor’s best interests and will be conducive to reunifica-

tion of the family.'°

10 The California Court of Appeal gave careful attention to

the standard set forth in Section 281.5 in In re Baby Girl D.

(1989) 208 Cal.App.3d 1489. That case presents facts closely

analogous to the instant case. In Baby Girl D., the minor was

born addicted to heroin. Taken into protective custody at birth,

Baby Girl D. was declared a dependent and, at age three

months, placed in a foster-adoptive home. At the permanency

planning hearing, the juvenile court referred the case for termi-

nation proceedings, because the mother could not reunify with

the minor. The mother appealed, contending that the trial court

erred in not placing the child with the mother’s aunt. The

Appellate Court unequivocally rejected the mother’s conten-

tion that the great-aunt deserved preferential consideration as

a “relative” within the meaning of section 281.5 and 361.5 of

the Welfare and Institutions Code. The Court also held that,

even if the great-aunt were considered a “relative”, she failed

to timely intervene and request placement of the minor until

permanency planning hearing, after the minor had bonded

with the foster parents. The Court explains:

“Section 281.5 requires the probation officer who

is recommending removal of a minor from the physi-

cal custody of the parent to prefer placement with a

relative, if it is in the best interests of the child and

conducive to reunification with the parent. . . .

The object of dispositional hearings is to find a

temporary caretaker who will meet the child’s physi-

cal and psychological needs while cooperating in

reunification efforts. A relative, who presumably has

a broader interest in family unity, is more likely than

a stranger to be supportive of the parent-child rela-

tionship and less likely to develop a conflicting emo-

tional bond with the child.

However, once the juvenile court determines at a

permanency planning hearing that reunification is

no longer possible and that a child should be freed

(Continued on following page)

22

In this case, Cassie was removed from the custody of

her mother at birth and placed in a fragile infant care

home because of her medical problems as a result of

severe drug withdrawal. At that time, petitioners did not

request custody or object Cassie’s detention in foster care.

Following the Juvenile Court’s assumption of juris-

diction over a minor (Welf. & Inst. Code § 300), the court

then determines the dispositional issues of whether to

declare the minor a dependent child of the court, and if

so, whether to place the child outside of the parents’

home. If there is a recommendation of out-of-home place-

ment, the Department and the court must give preferen-

tial consideration to a request by a relative for placement of

the child with that relative. Welf. & Inst. Code § 361.3.

Again, in this case, at the dispositional hearing on Cas-

sie’s placement in December 1988, neither petitioners nor

Stanley, Cassie’s father, made any such request for place-

ment in petitioners’ home.

At any time during the course of a dependency

action, any parent “or other person having an interest in

a child who is a dependent of the juvenile court” may,

(Continued from previous page)

for adoption, there is no longer any reason to give

relatives preferential consideration for placement.

The overriding concern at this point is to pro-

vide a stable, permanent home in which a child can

develop a lasting emotional attachment to his or her

caretakers. It is for this reason that in any subse-

quent decision on adoptive placement, a foster par-

ent to whom the minor already has “substantial

emotional ties” is necessarily entitled to preference

over all other candidates.

Id., at 1493-1494, citing Welf. & Inst. Code § 366.25(g),

emphasis added.

<= ll

23

“upon grounds of change of circumstance or new evi-

dence, petition the court in the same action in which the

child was found to be a dependent child of the juvenile

court for a hearing to change, modify, or set aside any

order of court previously made or to terminate the juris-

diction of the court”. Welf. & Inst. Code § 388. In this

case, both petitioners and Stanley could have requested

custody of Cassie at any time between December 1988

and December 1989, before commencement of the perma-

nency planning hearing. However, not until January 1990,

after the permanent plan had been made and after the

Owens had committed to adopting Cassie, did petitioners

finally ask for custody of Cassie. For a young child such

as Cassie, petitioners’ request came too late. Removal of

Cassie from her foster family, with whom she had strong

emotional ties the equivalent of a healthy parent-child

bond, would have been psychologically, emotionally and

developmentally devastating to Cassie.!:

If a dependent child’s natural parents do not com-

plete the court ordered reunification plan within a

twelve-month period, the Juvenile Court must then deter-

mine whether reunification services should be terminated

and which permanent plan - adoption, guardianship, or

1! Child welfare experts agree that continuity of relation-

ships, surroundings, and environmental influence are essential

for a child’s normal development. Since these factors do not

play the same role in later life, their importance is often under-

rated by the adult world. However, it has clearly been shown

that any change of the caretaking person for infants and tod-

diers further affects the course of their emotional development.

These attachments, at young ages, are as thoroughly upset by

separations as they are effectively promoted by the constant,

uninterrupted presence and attention of a familiar adult. Gold-

stein, Freud & Solnit, Beyond the Best Interests of the Child

(1973), pp. 33-35.

24

long-term placement - should be implemented for the

child. Welf. & Inst. Code §§ 366.25; 366.26. The California

legislature and courts have expressed a clear preference

that after twelve months of out-of-home placement, if the

parents are unable to reunify with the child, the child

should be adopted by the person with whom he or she

has resided since the original removal.

Notwithstanding any other provision of law, the

application of any person who, as a foster par-

ent, including relative caretakers, has care for a

dependent child for whom the court has

approved a permanent plan for adoption, or

who has been freed for adoption, shall be given

preference with respect to that child over all

other applications for adoptive placement if the

agency making the placement determines that

the child has substantial emotional ties to the

foster parent and removal from the foster parent

would be seriously detrimental to the child’s

well-being. Welf. & Inst. Code §§ 366.25(g),

366.26(j).

It is noteworthy that Section 366.25(g) and 366.26(j)

both refer to “relative caretakers,” and not mere relatives.

Clearly, the lawmakers recognize what the experts know

- that the person with whom the child had resided and is

bonded is the preferred permanent caregiver for the

child.

Here, petitioners claim simultaneously that they, as

relatives, have a fundamental right to custody of Cassie

and that Stanley’s fundamental right to bring up his child

extends to his right to nominate fit surrogates. No court

has ever so held. Petitioners do not suggest how the court

is to reconcile the competing “rights” of the relatives and

the parent. Nor do petitioners reconcile this unsupported

proposition with the well-settled and paramount right of

every child to be raised with love, emotional security and

physical safety. See In re Lynna B. (1979) 92 Cal.App.3d

a eae

25

682, 699, citing In re Eugene W. (1972) 29 Cal.App.3d 623,

629.

Rather, petitioners argue that they have some consti-

tutional right that should be accorded the same sanctity

as a parental bond and that supersedes the child’s best

interests in this case. The law does not support any of

petitioners’ claims.

Instead, as petitioners themselves point out, the

United States Supreme Court has recognized parental

rights as fundamental in nature and of primary impor-

tance. See e.g., Adoption of Baby Boy D. (1984) 159

Cal.App.3d 8, 17, citing Stanley v. Illinois, 405 U.S. 645, 651

(1972). Dependency proceedings are instituted to protect

the welfare of the child when parents abuse or otherwise

fail to meet their responsibility. Collins v. Superior Court

(1977) 77 Cal.App.3d 47, 52.

As the court explained in In re Albert B. (1989) 215

Cal.App.3d 361:

While parenting is a fundamental right,

- . minors also have rights. As such, parenting

rights are not absolute. The interests of parents

in maintaining their relationship with their chil-

dren must be balanced with the interests of chil-

dren in secure and sufficient parenting.

Id., at 377-378, citing In re Carmaleta B. (1978) 21 Cal.3d

482, 489; In re Angelia P. (1981) 28 Cal.3d 908, 916-917. In

dependency proceedings, “it is no longer open to quss-

tion that the child’s best interest must be paramount.” In

re Micah S. (1988) 198 Cal.App.3d 557, 565, conc. opn. of J.

Brauer.

Just as parenting is not an absolute fundamental

right, nor are the rights of an “extended family” abso-

lutely guaranteed by the Constitution. While there are

realms of family life which the State may not enter, Prince

v. Massachusetts, 321 U.S. 158, 165-166 (1944), there are

26

also arenas, including family relationships, in which the

state, as parens patriae, must involve itself. This case is an

example.

Petitioners rely on various federal authorities for

their argument that the extended family relationship

must be accorded the same sanctity as a parental bond. In

fact, none of the authorities cited by petitioners stand for

this proposition. Indeed, in the context of child welfare

proceedings, the courts have uniformly declined to ele-

vate the extended family over those psychological parent

relationships which have proven to be in the child’s best

interests.

Most notably, petitioners cite to Moore v. City of East

Cleveland, 431 U.S. 496 (1977) to support their position.

Petitioners reliance on Moore is misplaced. In that well-

known case, appellant Moore challenged her criminal

conviction under an East Cleveland zoning ordinance

which limited occupancy of a dwelling unit to members

of a single family. However, the ordinance defined “fam-

ily” in such a way as to exclude appellant’s household

consisting of herself, her son, and two grandsons, also

first cousins. Id., at.495. In reversing appellant’s convic-

tion, this Court held that “the choice of relatives in this

degree of kinship to live together may not be lightly

denied by the State.” Id., at 506-507. Significantly, this

Court did not state that the configuration of extended

families may never be regulated by the state. In fact, the

court expressly held that the family “is not beyond regu-

lation”. Id., at 500. Rather, when a government intrudes

on choices Concerning family living arrangements, the

court must examine carefully the importance of the gov-

ernmental interest advanced and the extent to which they

are served by the challenged statute. Ibid. Such an exam-

ination was indeed made by the lower courts in this case.

ro

27

The result of the courts’ analysis was that Cassie’s place-

ment with her foster family was in her best interests and

was therefore upheld. Even after the weeks of testimony

at the Section 388 and permanency planning hearing, as

well as the subsequent appellate review, the lower courts

found, based upon substantial evidence, that Cassie’s

psychological, emotional and developmental needs were

promoted by her continued placement with the Owens,

not by placement with petitioners.

. Furthermore, contrary to petitioners’ claims, neither

the courts nor any state lawmakers have interpreted

Moore to convey on relatives an absolute right to “config-

ure” an extended family by gaining custody of minors

through the Juvenile Court. For example, in the case of In

re Albert B., supra, 215 Cal.App.3d at 381, the appellate

court held that grandparents had no right to “reunifica-

tion” with a minor, nor did they have even an absolute

right to visitation. Welf. & Inst. Code §§ 361.5(a), 361.2(f).

What is paramount to child custody issues is the child’s

best interests.

Petitioners also object that the best interest standard

is vague. What petitioners term “vagueness” is instead a

flexibility that each court must have in order to make

informed decisions concerning a minor’s welfare based

on the particular facts before it. That flexibility does not

invalidate the standard as an appropriate means of eval-

uating the minor’s placement. Rather, as the court

explained in Jermistad v. McNelis (1989) 210 Cal.App.3d

528, 553:

The standard of best interest of the child has

consistently been viewed as necessarily confer-

ring upon the trial court a large measure of

discretion in assigning custody between parties

competing on an “equal footing.” (See, e.g., 6

ee

28

Witkin, Summary of Cal.Law (8th ed. 1974) Par-

ent and Child, sec. 72.) This stems from the

subtle task at hand. The best interest of the child

is in being raised by the best parent. But that is

not a matter that can be ascertained by crude

calculation. “[The] essence [of parenting] lies in

the ethical, emotional, and intellectual guidance

the parent gives to the child throughout his

formative years, and often beyond. The source

of this guidance is the adult’s own experience of

life; its motive power is parental love and con-

cern for the child’s wellbeing; and its teachings

deal with such fundamental matters and the

child’s feelings about himself, his relationships

with others, his system of values, his standards

of conduct, his goals and priorities in life.”

Id., at 553, quoting In re Marriage of Carney (1979) 24

Cal.3d 725, 739.

Although the court in Jermistad, supra, was speaking

in the context of a domestic relations custody dispute, the

principles are equally applicable in the juvenile court

context. Custody of a child cannot be governed by abso-

lutes, despite appellants’ wishes that it be so. Child law

authority Robert H. Mnookin articulately described the

court’s dilemma in such cases:

When a judge must resolve a custody dispute,

he is committed to making a choice among alter-

natives. The very words of the best-interest-uf-

the-child principle suggest that the judge should

decide by choosing the alternative that “maxti-

mizes” what 1s best for a particular child.

R. Mnookin, Child Custody Adjudication: Judicial Func-

tions in the Face of Indeterminacy, 39 Law & Contemp.

Prob. (no. 3) 226, 255-268 (1975), emphasis added.

Finally, petitioners presume that foster families have

no constitutionally protected liberty interest equal to

those of parents or extended families. In discussing

whether foster families have a constitutional right to

mia i

29

procedural protection, even at the expense of natural

parents’ rights, this Court has stated:

We deal here with issues of unusual delicacy, in

an area where professional judgments regarding

desirable procedures are constantly and rapidly

changing. In such a context, restraint is appro-

priate on the part of courts called upon to adju-

dicate whether a particular procedural scheme

is adequate under the Constitution.

Smith v. Organ. of Foster Families for E. & Reform, 431 U.S.

816, 855-56 (1977).

A fortiori, this Court should exercise even greater

restraint when balancing the lesser interests of non-par-

ental relatives against both the rights of foster parents,

who have become the minor’s psychological parents, and

the best interests of the minor herself. California statutes

and case law are more than adequate to protest the inter-

ests of non-parental relatives. In this area of “unusual

delicacy” entailing subtle “professional judgments,”

Smith v. OFFER, supra, at 855-56, no reason exists to graft

onto California procedural law an absolute and unlimited

constitutional custody preference for relatives.

CONCLUSION

_ In this case, the factual record clearly demonstrated

that what is best for Cassie is to remain in the stable

loving home provided by the Owens. It was the failure by

the petitioners to come forward and assert their interest

in custody of Cassie, prior to the permanency planning

hearing, that led to the situation that petitioners seek to

put before this Court. This case does not entail any failure

of California law to protect the rights of parents, children,

and their families. The issues in this case revolve around

the factual determinations made by the lower courts as to

the petitioners’ lack of willingness to offer Cassie a home

before she had bonded to her foster parents. Accordingly,

30

there are no issues in this case which would warrant

hearing by this Court on the petition for certiorari.

DATED: May 15, 1992

Respectfully submitted,

Louise H. RENNE,

City Attorney*

Loretta M. Giorci

JuuaA Ten Eyck

Deputy City Attorneys

206 City Hall

San Francisco, CA 94102

(415) 554-3966

Attorneys for Respondent

San Francisco Department of

Social Services

Rosert L. WALKER*

Law Offices of Robert L. Walker

685 Market Street,

Suite 690

San Francisco, CA 94105

(415) 243-0726

Attorney for Respondents

David and Joyce Owen

Patricia BLAcK*

Attorney at Law

50 California Street

Suite 2675

San Francisco, CA 94111

Attorney for Respondent

Cassandra Marshall

*Counsel of Record