No. E067793.


Court of Appeals of California, Fourth District, Division Two.

Attorney(s) appearing for the Case

Mokri & Associates, Jennifer N. Harris , for Petitioner K.S.

No appearance for Respondent.

Jean-Rene Basle , County Counsel, Michael A. Markel , Principal Assistant County Counsel and Jamila Bayati , Deputy County Counsel, for Real Party in Interest.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



K.S. was the foster parent and prospective adoptive parent to E.G., born in 2011 with drugs in his system and developmental delays. In 2016, with adoption the approved permanent plan and an approved home study, K.S. received into her home a four-month old infant; one week after placement, that infant was hospitalized in cardiac arrest, with a depressed skull fracture and subdural hemorrhaging from an acute, non-accidental trauma. As a result, E.G. was removed from the home of K.S., he was placed in a relative home, and K.S.'s application for de facto parent standing was denied. K.S. objected to the removal of E.G. from her home, but, after a contested hearing, the court found that it would not be in his best interests to return to her home. K.S. appealed the removal, but later filed a petition captioned as a petition for writ of habeas corpus.

We treated the writ petition as one filed pursuant to California Rules of Court, rule 8.452/8.456 and issued an order to show cause why relief should not be granted. The San Bernardino County Children and Family Services (CFS) submitted a response. We now deny the petition.


E.G. was born in 2011, and tested positive for methamphetamines. He was placed in the home of K.S. when he was eight days old. Despite his unique needs, K.S. was diligent about providing for each need, including asthma, a congenital heart condition for which he had open heart surgery in 2012, as well as other health problems and developmental delays. K.S. ensured that E.G. received all necessary follow-ups for his medical conditions.

E.G. did well in his prospective adoptive home and K.S., his caregiver was diligent in providing for each need. On May 18, 2015, the parental rights of E.G.'s parents were terminated. On November 18, 2015, the juvenile court found that the permanent plan of adoption was appropriate, and maintained E.G. in the home of K.S. K.S. filed a request to be designated the prospective adoptive parent on May 12, 2016.

That same day, on May 12, 2016, before the court had an opportunity to rule on the request to be designated prospective adoptive parent, CFS filed a notice of emergency removal of E.G. from the home of K.S. The notice reflected that an infant who had recently been placed in the home of K.S. had been hospitalized with a depressed skull fracture and subdural hemorrhaging due to a traumatic brain injury that was acute and non-accidental. The treating physicians ruled out a re-bleed from the pre-existing grade 3 bleed the infant had suffered at birth and prior to discharge to foster care.1 Although there was insufficient evidence to prove that K.S. was the cause of the injury, CFS held her responsible because the injury was inflicted while the infant was in her care. E.G. was placed in the relative home of his maternal great aunt, who was the guardian of E.G.'s siblings.

K.S. filed an objection to the removal and the matter was set for a contested hearing. On September 12, 2016, the trial court commenced the contested hearing on the removal of E.G. from the custody of K.S. By way of additional information to the court, the social worker recommended that the court deny the request for de facto parent standing. The social worker noted that although K.S. denied that the infant had fallen or that anything had hit him, she was the sole caregiver for the baby who had only been discharged from the hospital eight days earlier. The social worker also filed an additional information report recommending the removal of E.G. The social worker attached medical records relating to the hospitalization and treatment of the infant, pointing out that the injury was attributed to acute traumatic injury, consisting of a depressed fracture of the occipital bone, highly suggestive of non-accidental trauma.

At the contested hearing, Dr. Amy Young, who had examined the baby many times during his second hospitalization, testified about the medical history of the infant. She indicated that the baby's original intraventricular hemorrhage was detected by way of an ultrasound, and that such bleeding was common in preterm infants. In Dr. Young's opinion, the infant had no symptoms of continuing hemorrhage at the time of his discharge on April 29, 2016, although no head ultrasounds or other imaging had been conducted after March.

According to Dr. Young, the fracture had to have been inflicted during the week the baby was in the care of K.S., based on the baby's presentation in significant distress and the significant amount of bleeding in his brain. The bleeding he suffered when readmitted in May was much more severe than the intraventricular hemorrhage suffered at birth. Further, the baby came in with some normal laboratory values, but when the labs were repeated, the hemoglobin level dropped, indicating active bleeding at the time of admission. In addition, while an infant's soft skull might result in some changes in the slope of his or her head, this infant suffered a traumatic depression of the skull bone with associated hemorrhage beneath it. If the blunt impact that caused the fracture had occurred during the infant's original hospitalization following delivery, he would have had symptoms prior to discharge.

On January 19, 2017, the juvenile court granted CFS request for emergency removal, finding it was not in the best interest of E.G. to return him to the home of K.S. On February 15, 2017, K.S. appealed the order granting the removal motion. On March 10, 2017, the appeal was dismissed on the ground it was taken from a nonappealable order. (Welf. & Inst. Code, § 366.26, subd. (n)(5).) On March 16, 2017, appointed appellate counsel filed a motion to relieve K.S. from default due to trial counsel's failure to file a notice of intent to file a writ petition, causing K.S. to miss the deadline for such a notice. This court granted the motion to vacate dismissal and deemed the notice of appeal to be a timely notice of intent to file a petition for extraordinary writ pursuant to California Rules of Court, rule 8.854.

On April 24, 2017, appellate counsel filed a petition for writ of habeas corpus on the ground of ineffective assistance of trial counsel in failing to retain an independent medical expert to testify on behalf of K.S. at the contested hearing. The petition was based on a declaration of a medical expert who expressed the opinion that the injury to the infant that precipitated the removal of E.G. could have been inflicted prior to the discharge of the child to the care of K.S. We issued an order to show cause on April 25, 2017, requesting a response from real party in interest, CFS. That response has been filed and the petition is denied.


K.S. argues that she was deprived of effective assistance of counsel during proceedings leading to the order removing E.G. from his placement with her. The petition is styled as a petition for writ of habeas corpus, which may be employed to challenge a custodial order for a child, but, as we will explain, was not properly invoked in this case.

a. Writ Review Pursuant to Rule 8.456

Because we deemed the petition for writ of habeas corpus to be a petition for extraordinary relief pursuant to California Rules of Court, rule 8.456, we first address K.S.'s claim under that provision.

A prospective adoptive parent may object to the child's removal from the home. (Welf. & Inst. Code, § 366.26, subd. (n)(3)(A). At the hearing on the objection, the court shall determine whether the caretaker has met the threshold criteria to be designated as a prospective adoptive parent and whether the proposed removal of the child from the home of the designated prospective adoptive parent is in the child's best interests. (Welf. & Inst. Code, § 366.26, subd. (n)(3)(B).) The court's decision is not appealable at any time, but may be reviewed by way of a petition for extraordinary writ review. (Welf. & Inst. Code, § 366.28, subd.(b)(1).) The trial court's decision is reviewed for abuse of discretion. (In re N.M. (2011)197 Cal.App.4th 159, 171.)

The determination of whether the proposed removal is in the child's best interest is a determination committed to the sound discretion of the juvenile court and the trial court's rule should not be disturbed unless an abuse of discretion is clearly established. (R.H. v. Superior Court (2012) 209 Cal.App.4th 364, 374, citing In re Stephanie M. (1994) 7 Cal.4th 295, 318 [trial court must have exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination].)

Here, K.S.'s argument is directed at whether her attorney's representation fell below the standards of competence for failing to retain an expert to testify that the injuries could have been inflicted prior to the infant's discharge into K.S.'s home. She asserts a different result was likely if the court had heard such an opinion. We disagree.

Trial counsel fully cross-examined Dr. Young regarding her opinion as to when the injuries were inflicted and whether it was possible that the child had suffered a depressed skull fracture in the hospital prior to discharge. Dr. Young explained it was highly unlikely the child suffered a skull fracture prior to the initial discharge because the hemorrhaging found upon readmission was hyperdense, showing a very acute bleed, as recent as a few days, and not five or six days. A blunt impact that causes fracture and intracranial hemorrhage would have produced significant symptoms, such that the baby would have been "very, very ill" on April 29, 2016. But he was discharged in good condition.

Dr. Grogan's opinion that the lack of bruising noted on the outside of the child's scalp indicated that the skull fracture "could have been present at the time of the discharge from the hospital on April 29." While this opinion certainly introduces another theory of the timing of the injury, it does not explain the findings of the hyperdense hemorrhaging at the time of readmission, or the child's symptoms, including cardiac arrest, which pointed to a more recent acute traumatic event. In short, Dr. Grogan's opinion was not sufficient to cast doubt on the opinion of Dr. Young.

The trial court considered all the evidence presented at the hearing and made a determination that removal from the home of K.S. was in the best interests of E.G. The juvenile court did not abuse its discretion in ordering removal.

b. K.S.'s Standing to Petition to File a Writ of Habeas Corpus

A person entitled to the physical custody of a child may enforce his right thereto as against one wrongfully withholding the child by a petition for writ of habeas corpus. (In re Richard M. (1975) 14 Cal.3d 783, 789, citing Ferreira v. Ferreira (1973) 9 Cal.3d 824, 834; In re Croze (1956) 145 Cal.App.2d 492, 495; see also, Adoption of Alexander S. (1988) 44 Cal.3d 857, 866-867.) Appellate courts have long recognized that habeas corpus may be used to assert child custody rights, rather than to secure relief from confinement resulting from criminal prosecution, but "`the gist of this charge is not that the child is unlawfully deprived of its liberty, but that such restraint is in prejudice of the right of the relators to its custody. The case is really one of private parties contesting private rights, under the form of proceedings on habeas corpus.'" (In re Richard M., supra, 14 Cal.3d at p. 790, quoting In re Holt (1917) 34 Cal.App.290, 292.)

However, a person who is neither a parent nor a guardian is not entitled to physical custody of a child. Even a party who has been designated as a de facto parent lacks a fundamental right to custody of a child. (In re P.L. (2005) 134 Cal.App.4th 1357, 1361 ["De facto parent status does not confer the rights of a parent or even a legal guardian."], citing In re B.G. (1974) 11 Cal.3d 679, 692, 693, fn. 21; In re Kieshia E. (1993) 6 Cal.4th 68, 77-78.)

As we reasoned in In re P.L., de facto parents have limited rights that include: (1) the right to an attorney; (2) the right to be present at hearings; and (3) the right to present evidence and be heard. Specifically, they do not have the right to reunification services, custody, or visitation. (In re P.L., supra, 134 Cal.App.4th at p. 1361, citing In re Kieshia E., supra, 6 Cal.4th at p. 82; Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 752.) While de facto parents are entitled to participate in the proceedings, that status does not give them the custodial rights accorded to a parent or legal guardian. (In re Cynthia C. (1997) 58 Cal.App.4th 1479, 1490-1491; In re Crystal J. (2001) 92 Cal.App.4th 186,191.) Those who attain the status of de facto parenthood are not equated with parents or guardians for purposes of dependency proceedings, and standing to participate does not give them all of the rights and preferences accorded to parents or guardians. (Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, 508.)

"The rights of prospective adoptive parents are akin to those of de facto parents, but are even more circumscribed." (R.H. v. Superior Court (2012) 209 Cal.App.4th 364, 372, citing Welf. & Inst. Code § 366.26, subd. (n).) Even after being designated a prospective adoptive parent, the caretaker does not become a party to the dependency proceeding and has no standing to object to any action of the social services agency. (Welf. & Inst. Code, §366.26, subd. (n)(3)(C).)

When a child is removed from the custody of a parent or guardian, the court orders the care, custody, control and conduct of the child to be under the supervision of the social worker, who may place the child in the home of a noncustodial parent, relative, or foster family, among other alternatives. (Welf. & Inst. Code, § 361.2, subd. (e).) The department or licensed adoption agency to which a child has been freed for adoption by termination of parental rights is responsible for the care of the child, and is entitled to exclusive custody and control of the child until an order of adoption is granted. (Dept. of Social Services v. Superior Court (1997) 58 Cal.App.4th 721, 733.) The agency has the sole authority to determine placement, subject only to judicial review for abuse of discretion. (In re F.A. (2015) 241 Cal.App.4th 107, 118.) Thus, in a dependency, custody is awarded to the social services agency; a foster parent does not receive an award of custody.

Nevertheless, foster parents have certain procedural rights to participate in dependency proceedings, although is it not a constitutional or statutory right to custody. (Christina K. v. Superior Court (1986) 184 Cal.App.3d 1463, 1469.) A current caregiver has the right to be heard, including the right to submit information about the child to the court before the hearing. (Cal. Rules of Ct., rule 5.534(j).) However, this does not translate into a fundamental liberty interest that confers standing to challenge a placement order. K.S.'s status did not confer a right to the minor's continued placement with her. (In re Cynthia C., supra, 58 Cal.App.4th at p. 1490.)

The lack of a fundamental right to custody is fatal to a petition for writ of habeas corpus, even if ineffective assistance of counsel had been established. K.S.'s procedural due process rights were observed by the setting of a contested hearing at which she was given the right to notice of the proceedings, to present evidence, and to cross-examine witnesses. Lacking a right to custody, K.S. lacked standing to challenge the legality of CFS's removal or detention of E.G.

c. Ineffective Assistance of Counsel

On the merits, even if K.S. were able to establish standing to challenge the placement decision, we would nonetheless affirm. To prevail on a claim of ineffective assistance of counsel, petitioner K.S. must show that counsel's representation fell below an objective standard of reasonableness and resulted in prejudice, i.e., had Dr. Grogan testified at the contested removal hearing, it is reasonably probable that K.S. would have prevailed. (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223, citing In re Jackson W. (2010) 184 Cal.App.4th 247, 261; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711.)

The materials appended to the petition provided Dr. Grogan's opinion that the depressed fracture could have been inflicted on the other infant in K.S.'s care prior to the child's placement with K.S. However, if such evidence had been presented, the trial court would have had to weigh it against Dr. Young's testimony that if such an injury had occurred prior to discharge from the hospital, the child would have manifested symptoms of such a severe injury. Instead, the infant's condition progressively improved leading to the decision that he could be placed in a nonmedical setting. Dr. Grogan's report did not offer an explanation for the lack of symptoms at discharge on April 29; he only noted that no bruising was evident upon readmission eight days later. His opinion did not establish that the injury had to have occurred prior to placement with K.S. As such, even if it had been presented to the trial court, there is little likelihood that a different result would have occurred.

A depressed skull fracture is not a minor boo-boo, and occurring, as it did, to an already extremely fragile infant, the trial court had little choice but to remove that child, as well as E.G., from their placement with K.S. No matter who caused the injury or how they were caused, the risk was too great.


The petition is denied.

McKINSTER, J. and FIELDS, J., concurs.


1. The infant remained hospitalized from birth, in January 2016, until discharge on April 29, 2016 due to a grade 3 ventricular hemorrhage. This complication is one of the most common neurologic injuries in preterm neonates, attributed to the premature infant's inability to autoregulate cerebral blood pressure; thus, fluctuations in cerebral blood pressure and flow can rupture vessels or lead to other complications. (Omar Islam, M.D., Germinal Matrix Hemorrhage Imaging, November 24, 2015, Medscape, http://emedicine.medscape.com/article/408862-overview [as of June 12, 2017].) Periventricular hemorrhage and intraventricular hemorrhage is a significant cause of both morbidity and mortality in infants born prematurely. (David J. Annibale, M.D., Periventricular Hemorrhage-Intraventricular Hemorrhage, March 19, 2014, Medscape, http://emedicine.medscape.com/article/976654-overview [as of June 12, 2017].)


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