Filed 8/8/17 In re D.M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re D.M., et al., Persons Coming Under the Juvenile Court Law.
___________________________________

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent;

v.

M.G.,
Defendant and Appellant.


E066891

(Super. Ct. Nos. J254634 &
J254635)

OPINION


APPEAL from the Superior Court of San Bernardino County. Erin Kathleen Alexander, Judge. Affirmed.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle, County Counsel and Adam E. Ebright, Deputy County Counsel, for Plaintiff and Respondent.
D.M. and M.M. (the twins), are twin siblings who were placed in the foster home of M.G. and A.A. shortly after birth in 2014. About a year later, their 10 year-old half-sister J.P. was placed in the same home. When their parents failed to reunify, parental rights of the twins were terminated, and a permanent plan of adoption by the foster parents was ordered. After being told by the San Bernardino Children and Family Services (CFS) that the now 11 year-old J.P. could not share a room with her two-year-old siblings, and J.P.’s reports that the foster parents were spanking the twins and neglecting her, the foster parents gave a seven-day notice to have J.P. removed from their home. Concluding it was in the twins’ best interests to remain with their older sister, all three children were removed from the home. The foster parents objected to the removal of D.M. and M.M. only, but, after a contested hearing, the court approved the removal of the twins. M.G. appealed.
On appeal, M.G. argues that the trial court abused its discretion in approving the removal of the twins from her custody. We affirm.
BACKGROUND
The twins were born in April 2014, with methamphetamine in their systems. After a brief time in their parents’ custody, on May 2, 2014, when they were approximately two weeks old, CFS placed the twins in the foster family agency home of M.G. and A.A. The older half-siblings were initially maintained in the parents’ custody. However, at some point in 2015, J.P., age 11, the twins’ older half-sibling, was also placed in M.G.’s home. In February 2016, the court terminated parental rights respecting the twins.
In April 2016, J.P. reported to a social worker that M.G. was spanking the twins, would send J.P. to her room for extended periods without food, and made J.P. take care of her siblings – feeding them, changing their diapers, and getting up with them at night. About a week later, a second referral was made in which J.P. reported she was not invited to eat with the family at dinner, and was sent to her room after being told by M.G. that M.G. did not want to see J.P.’s face. Upon investigation of the referral, J.P. complained she had not eaten in a day and repeated the report of the twins being spanked, complaining that she had to wake up with the twins at night to take care of them J.P. felt unwanted. The twins called J.P. “mama,” which caused the social worker concern because the twins had lived with the prospective adoptive parents for two years.
On the same date as the second referral, M.G. gave the social worker a seven-day notice to remove J.P. from the home, stating that the house did not have room to accommodate J.P.
The social worker investigated the three referrals and found that J.P. was sleeping on a toddler bed in the same room with the twins. The room was dirty and smelled of urine, and there were moldy bottles in the room. The social worker informed M.G. that all three children would be removed and asked M.G. to pack the twins’ belongings. M.G. refused to participate, so the social worker and an intern packed the children’s belongings while M.G. and her adult daughter made crude statements about J.P. in Spanish. The twins were found to have urine-soaked diapers when they reached the CFS office.
The allegations of the referrals were found to be inconclusive. M.G. denied any physical discipline of the twins, and informed the social worker that J.P. ate breakfast and lunch at school. J.P. revealed that she ate frozen burritos for dinner at home that M.G. purchased. M.G. informed CFS that she would be willing to take J.P. back into the home if CFS would return the twins. However, the social worker expressed to the foster mother her concern over the lack of empathy for J.P. and the manner in which she gave the seven-day notice, in particular because M.G. did not attempt to resolve issues prior to seeking removal, which indicated a lack of commitment.
On April 19, 2016, the social worker filed notices of the emergency removal of the twins from their placement, alleging the current placement was unstable and the inappropriate physical discipline by the prospective adoptive parents as to all three children. The prospective adoptive parents (M.G. and A.A.) filed objections to the removal of the twins only, arguing the twins had lived with them essentially since birth, that the sudden removal of the children from the home deprived the twins of the care and love of the prospective adoptive parents, and that there was no risk of imminent physical or emotional harm.
A contested hearing was held on the issue of removal from the home of the prospective adoptive parents. The testimony revealed additional details. In the prospective adoptive parents’ home, J.P. took good care of her twin siblings, changing their diapers approximately three times per day, and feeding or bathing them. The twins called her “mom,” a term they also used to refer to M.G.
On April 15, 2016, when the second and third referrals were made, the social worker noticed J.P. was sleeping on a toddler bed in the same room with the two-year-old twins. M.G. was informed by the licensing social worker that this was not an appropriate sleeping arrangement. Upon being told this, M.G. gave a seven-day notice to remove J.P., because the twins were her priority and she did not have enough room. She also complained about J.P.’s lies.
After J.P. learned about the seven-day notice, her behavior changed: J.P. reported that the twins were receiving corporal punishment, and that she was ostracized by the family, being sent to her room for hours, with meals withheld. M.G. felt that learning about the seven-day notice led to the change in behavior, because up until that point, J.P. had made no accusations against the caretaker. M.G. blamed a former foster child, the sister of J.R., a teen for whom M.G. was appointed as legal guardian, for telling J.P. lies. The social worker followed up on the seven-day notice, and determined that J.P. did not feel a sense of belonging in the home. As the three children were being removed from the home of the prospective adoptive parents, M.G. and her adult daughter called J.P. derogatory names in Spanish.
After hearing testimony and considering the reports of the social worker, the juvenile court found that the sibling group was extremely bonded: J.P. cared very much for the twins, and they looked to her as a parent figure, so they should remain placed together. The court did not believe the caretakers were abusive or neglectful, even if there had been corporal punishment, but the court was concerned that discussion of J.P.’s removal had taken place in J.P.’s presence. The court also found that the twins were the priority for M.G. and that J.P. was an afterthought. The court therefore concluded that it was not in J.P.’s interest to return to the home of the prospective adoptive parents, and, due to the strong sibling bond, approved the removal of all three children from the home of prospective adoptive parents because it was in the children’s best interests to keep them together. M.G. appealed.
DISCUSSION
In her opening brief, M.G. requests that her appeal be deemed a petition for extraordinary writ, and be deemed timely, where the trial court failed to instruct her on how to challenge the removal order. Respondent argues that the writ petition is untimely and the prospective adoptive parent has failed to show good cause to excuse the late filing. The trial court is not required to advise a prospective adoptive parent or other caretaker from whose placement children have been removed how to seek review. (Welf. & Inst. Code, §§ 366.26, subd. (n)(5) [removal order nonappealable], 366.28, subd. (b)(1); A.M. v. Superior Court (2015) 237 Cal.App.4th 506, 515 [rule of court implementing Welf. & Inst. Code, § 366.28 does not require trial court to advise parties of writ requirement].) Nevertheless, we exercise our discretion to reach the merits, insofar as the standing to object to a removal, which is conferred by statute, is a mere formality unless meaningful review is available.
On the merits, M.G. argues that the juvenile court abused its discretion in ordering removal of the twins because they had lived with her since they were infants and were bonded to her. We disagree.
Once a dependent child is freed for adoption, the agency to which the child is referred for adoption is responsible for the child’s custody and supervision. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71.) An interim or adoptive placement may be terminated at the agency’s discretion at any time before the petition for adoption is granted. (Dept. of Social Services v. Superior Court (1997) 58 Cal.App.4th 721, 732-733.) However, the agency’s discretion is not unfettered. (Id. at p. 724.) The court retains jurisdiction over the child to ensure that the adoption is completed expeditiously and that the placement is appropriate. (In re Shirley K., supra, 140 Cal.App.4th at p. 72.) Thus the agency does not have “carte blanche” to make placement decisions (Dept. of Social Services, supra, 58 Cal.App.4th at p. 734), and the trial court is limited to reviewing whether the agency abused its discretion in placing the minor or in determining that the placement, once made, remains appropriate. (Id. at p. 724.)
The juvenile court has the authority and responsibility to determine whether removal from the home of a prospective adoptive parent is in the child’s best interests. (Welf. & Inst. Code, 366.26, subd. (n)(3)(B), T.W. v. Superior Court (2012) 203 Cal.App.4th 30, 45.) A prospective adoptive parent may object to the child’s removal from the home. (Welf. & Inst. Code, § 366.26, subd. (n)(3)(A).) “If a prospective adoptive parent objects to the child’s removal from the home, the [social services a]gency must prove by a preponderance of the evidence that removal from the prospective adoptive parent is in the child’s best interests.” (T.W. v. Superior Court, supra, 203 Cal.App.4th at p. 45.) 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 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].) The trial court’s decision is reviewed for abuse of discretion. (In re N.M. (2011) 197 Cal.App.4th 159, 171.)
Here, M.G. does not challenge the removal of J.P., nor could she, because it was she who requested the removal of J.P. J.P., at a minimum, was neglected in the sense that her feelings and well-being were never taken into consideration by M.G., who had J.P. sleeping in a toddler bed in the same room as her two-year-old siblings, and sought J.P.’s removal rather than provide adequate accommodations for the pre-teen. Additionally, the condition of the twins and the room they shared with J.P. on the date of removal supports the allegation that M.G. neglected them, while supporting J.P.’s allegations that she was required to act as their caretaker. Further, M.G. does not address the trial court’s determination that the twins and their older sister were a strongly bonded sibling group, which was the basis for the juvenile court’s finding that removal of the twins was in their best interests, where removal of J.P. was necessary.
Instead, M.G. appears to argue that removal of the twins would be detrimental to them because of their bond to M.G., and that the juvenile court was required to consider only the stability and continuity of care of the younger twin siblings when determining whether their best interests would be served by removal, without considering their relationship to J.P., whose interests diverged from theirs. We may agree with the general principle that stability and continuity are primary considerations in determining the children’s best interest, particularly where custody continues over a significant period. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) However, the test for the propriety of removal from a placement is whether it is in the best interests of the child (Welf. & Inst. Code, § 366.26, subd. (n)(3)), not whether the child will be emotionally affected by the removal. Because J.P. had to be removed, and because the twins were bonded to her, their best interests required their removal, notwithstanding the possibility of emotional trauma. (See In re Terry D. (1978) 83 Cal.App.3d 890, 897 [traumatic ramifications of removal of a child from custody of its parents do not govern judicial determinations of parental neglect].) If the potential for emotional trauma caused by removal from custody were the only consideration, no neglected child would be removed from parental custody in the first place.
The evidence was presented to the juvenile court that J.P. had to be removed due to the seven-day notice request by M.G. The twins were bonded to their sibling, who was significantly parentified, such that separating the sibling group would have been detrimental to the twins. M.G. does not argue otherwise. The social worker was appropriately concerned for the stability of the twins in M.G.’s home where M.G. had requested removal of J.P. (and possibly D.R., the older sister of J.R., the teen-aged ward of M.G.’s) when her behavior over a two week period following M.G.’s decision to have her removed rather than find proper accommodations for her, became challenging. Appropriately, the social services agency was concerned about M.G.’s lack of commitment and empathy for J.P. in discussing removal in J.P.’s presence, demonstrating poor judgment on M.G.’s part, with detrimental emotional consequences to a child in her care.
M.G.’s argument focuses on how the twins have been in her care since infancy, but she presented no evidence at the hearing respecting the nature of the bond between her and the twins, or any potential detriment that might be suffered by them as a result of the removal other than her attachment to the twins. However, M.G.’s attachment to the twins does not compel a finding that removal would not be in their best interest. To the contrary, the evidence showed the twins were bonded to their older sister such that separating the sibling group would be detrimental, and they were adjusting well in their new placement.
M.G. acknowledges the sibling bond, but argues that the twins also had a bond with her, and protests that the trial court could not reasonably conclude that the bond that the twins had with M.G. was inferior to the sibling bond. The trial court did not find that the sibling bond was superior to the bond with the foster parents. The trial court found that the children had a strong emotional bond to each other and that separating them was not in their best interests. M.G. has not addressed this finding, other than to argue that the trial court failed to consider how the twins would be affected by the deprivation of the relationship with her.
M.G.’s argument that there is no evidence that the best interests of the twins were served by removing them from her care is belied by the trial court’s finding that keeping the siblings together was in their best interests, and that separating the twins from J.P. would not be in their best interests, a finding that finds support throughout the record. M.G. also argues that there is no evidence that the best interests of the twins are being served by removing them from her care. This statement is also contradicted by the record, where the August 30, 2016, post-permanent plan review report (Welf. & Inst. Code, § 366.3) shows the twins were adapting well to their new placement, they sought the new adoptive parents for comfort and guidance, appeared to be connected to the new adoptive parents, and referred to the new caretakers as “mom” and “dad.” M.G. has not met her burden of establishing an abuse of discretion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.


We concur:

McKINSTER
J.

FIELDS
J.