L.H. v. Super.
Filed 5/9/13 L.H. v. Super. Ct. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION THREE
>
L.H., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest. | B245600 (Los Angeles County Super. Ct. No. CK76327) |
ORIGINAL
PROCEEDINGS in mandate. Terry T. Truong,
Juvenile Court Referee. Petition denied.
Christian
D. Jackson for Petitioner.
No
appearance for Respondent.
John
F. Krattli, County
Assistant County Counsel,
and Kim Nemoy, Principal Deputy County Counsel, for Real Party in Interest.
_________________________
INTRODUCTION
Lakesha
H., prior caretaker, appeals from the order of the juvenile court removing
siblings G. (age 4 years) and Genesis (age 26 months) from her custody (Welf.
& Inst. Code, § 366.26, subd. (n))
and denying her modification petition to have the children returned to her care
(§ 388). We conclude the evidence
supports the court’s finding that removal of the children was in their best
interest and return would not be in their best interest. Accordingly, we deny the petition.
FACTUAL
AND PROCEDURAL BACKGROUND
We
are familiar with this dependency and so we derive the background facts from
our earlier opinion: G. was six months
old in February 2009 when the Department of Children and Family Services (the
Department) detained her. Her biological
mother’s female companion told the Department that she signed G.’ birth
certificate as the “father†with the intention of becoming G.’ “ ‘ “legal
father.†’ â€
name="_ftnref2" title="">[2] The juvenile court sustained a petition (§
300) naming the mother and a subsequent petition (§ 342) naming the female
companion. The court terminated
set a permanent plan hearing (§ 366.26).
The earlier appeals arose from the efforts of an alleged father to be
declared a presumed father of G. (Case Nos. B234918 & B236794).
1. The
children’s placement with appellant and their removal from her care
G.
was initially placed in the care of her maternal great-grandmother. When that caregiver died in October 2010, the
Department placed G. in Riverside California
with her godmother Lakesha. Lakesha is a
single mother of two elementary-school-aged children.
Two
months later, G.’ mother gave birth to Genesis, who was declared a dependent of
the court and eventually placed with his sister in Lakesha’s care. The court terminated parental rights over G.
in October 2011 and designated Lakesha as the prospective adoptive parent.
In
Lakesha’s care, G. stole, threw tantrums, fought with and bit other children,
had trouble sleeping, and stared for long periods of time. She qualified for Regional Center Services
and for a special level of care as she was deemed a medically fragile
child. Genesis also had medical
issues. In May 2011, the juvenile court
ordered that G. be assessed for
testing. Despite G.’ behavior, she
was identified as adoptable.
Lakesha
requested play therapy for G., financial assistance to pay for G.’ swimming
lessons, reimbursement for childcare, and for expenses incurred to modify
Lakesha’s house for the adoption home study.
Lakesha was also unhappy with G.’ school and filed complaints
there. She felt the administration was
retaliating against her.
Lakesha
first requested that G. be removed from her home in August 2011 because of a
concern that the child’s behavior could put Lakesha’s family and employment in
jeopardy. Lakesha transported G. to Los
Angeles from Riverside
for visits, which was physically difficult, expensive, interfered with the
child’s attendance at Head Start, and disruptive to Lakesha’s own
children. Also, despite referrals, Lakesha
could not afford therapy for the child.
The matter was resolved when the Department agreed to provide Lakesha
with a higher reimbursement rate for her care of G. and assistance in arranging
appropriate therapy. Lakesha agreed to
adopt G. The juvenile court ordered the
Department to provide Lakesha with respite care.
Lakesha’s
second request for G.’ removal occurred six months later in February 2012. Lakesha was bedridden after surgery in early
2012. G. became clingy and jealous when
Lakesha paid attention to Genesis, and so she hit her brother. Lakesha reported that G.’ behavior was
“ ‘too much for her to handle alone’ †and Lakesha’s mother would not
help. Lakesha wanted to adopt Genesis,
but not G. because G.’ behavior was worsening and Lakesha believed the
Department had not provided the child with adequate services. Lakesha later claimed she gave notice to
remove the child to get the Department’s attention because the social workers
had not provided support services.
Lakesha
made her third removal request in March 2012.
This time she requested that both children be removed from her care on
an emergency basis. She gave the
Department written notice two days in advance that she would bring the children
into the Department’s office, and requested that no one try to change her
mind. Lakesha wrote “I have done the
best I can do for them and have realized they need and deserve more than what I
can give. I have to accept that it is in
their best interest to stay together and I can’t hold on to Genesis to replace
my daughter. . . . [T]here is no way I can handle another
7 days. . . . I am not interested in respite or any
reunification services.â€
2. Placement
with the S.s
The
Department placed the children in the prospective adoptive home of Josh and
Joseph S. The children quickly did
“wonderfully.†They “adapted remarkably
well†and appeared to be “happy and thriving.â€
Despite warnings about G.’ significant behavioral problems, the S.s
reported having only seen what they termed a “normally precocious three year
old girl, who naturally and understandably tests boundaries (none related to
aggression.)†The S.s found G. to be “a
happy, well-balanced, spirited little girl, whose behavior [was] representative
of a normal 3-year-old child.†Genesis,
who came to the S.s unable to walk, began walking in a few short days and
within a month was nearly able to run.
G. showed no symptoms of the asthma and allergic rhinitis she had been
diagnosed with while in Riverside. Although G. had been considered for Regional
Center services in Lakesha’s care in Riverside, her doctor in Los Angeles
characterized the child as “ ‘amazing,’ †as the S.s had her tested
and found she was “ ‘very bright’ †and had “ ‘no health issues
whatsoever.’ †Despite severe
behavioral issues that jeopardized her educational programs in Riverside,
in July 2012 G.’ doctor noted no developmental concerns. Although G. was at times overactive and
defiant, her behaviors were common in foster children and were not
pathological. The physician was “very
impressed†with the S.s. The Department
reported that the children were happy and secure in their environment and doing
well. The S.s were providing a calm home
and firm, consistent, and nurturing parenting.
The S.s had established a “cohesive family unit that is loving,
supportive, and stable.†The children
both referred to the S.s as “daddy†and “papa.â€
(Bold omitted.)
Meanwhile, after
the children were placed with the S.s, Lakesha began taking them to the
hospital during her visits with them to report injuries and illnesses that
proved non-existent. Lakesha was told
not to conduct body checks on the children, as they caused the children
distress and anxiety. She refused to
comply.
A
referral was made in May 2012 against the S.s alleging emotional abuse and
neglect. The Department investigated and
concluded the allegations were unfounded as the children were in excellent
health and were doing well. There was no
sign of G. being aggressive toward her brother.
The S.s were very loving and caring toward the children who were
comfortable in the S.s’ presence. The
investigating social worker found that the children were “extremely well taken care of.â€
(Italics added.)
Lakesha
attempted to obtain a restraining order
against the S.s, but it was dismissed.
She claimed the S.s told G. that Lakesha was just her foster mother and
punished the child for referring to her as mommy. In the social worker’s view, Lakesha was
constantly searching for complaints to make about the children’s care.
3. Lakesha’s
motions to have the children returned to her custody
Lakesha soon
regretted her decision to have G. and Genesis removed and filed two section 388
petitions for modification requesting the children’s return. She claimed that the removal had not been
completely voluntary as she had received little help or support from the
Department. Lakesha also filed a request
to be designated the prospective adoptive parent for Genesis, and objections to
the removal of both children (§ 366.26, subd. (n)(3)).
The Department
expressed concern that as Lakesha had requested the children’s removal before,
she would likely request it again.
Although Lakesha demonstrated affection for the children, the hurried
manner in which she dropped them off at the Department’s office indicated her
inability to permanently commit to the children and some disregard for their
best interest, the Department wrote. The
Department was also troubled by what appeared to be Lakesha’s negative and
exaggerated portrayals of the children’s behavior, development, and medical
condition, given they did not demonstrate these behavioral or medical problems
in the S.s care.
Lakesha
admitted to the juvenile court that she had a poor relationship with her prior
social worker and no relationship with the current worker because she made
several complaints to the Board of Supervisors about the Department’s handling
of the case.
4. The
psychological evaluation
The
juvenile court appointed Dr. Michael Dishon as an expert under Evidence Code
section 730 to evaluate (1) the children’s mental health needs, (2) each
caregivers’ ability to follow through with services, and (3) the kind of
relationship and level of attachment the children had with Lakesha.
Dr.
Dishon submitted an 80-page evaluation in which he concluded that both Lakesha
and Josh S., the children’s primary caretaker, had certain difficulties, but
were capable of following through with services as they were both intelligent and
disposed to help the children. Although
Dr. Dishon was concerned by Lakesha’s claims she had been unsuccessful in
obtaining services from the Department, he viewed her as better equipped to
deal with stress than Josh S., based on the psychological testing. Dr. Dishon identified developmental delays in
the children and found that stability
would be very important to the children as they had already experienced
numerous changes in caretakers and attachment figures. Yet, Dr. Dishon expressed doubt about the
quality of stability Lakesha could offer the children. Lakesha and Josh S. shared numerous
psychological traits which indicate neither is well suited toward offering a
secure attachment to the children.
Although Dr. Dishon did not make a clear-cut recommendation about
placement, he cautiously concluded that G. might be receiving something from
the S.s that was lacking during her stay with Lakesha, given the child has been
relatively free of behavioral problems since her placement with the S.s. Dr. Dishon opined that Josh S. offered a
preferred style of parenting that is more conducive to the development of a
secure attachment, whereas Lakesha offered a style more likely to create an
anxious attachment.
5. The
juvenile court’s ruling
At
the hearing on the removal petition, Lakesha’s motions, and to review the
permanent plan for Genesis, the juvenile court found that the Department met
its burden under section 366.26, subdivision (n)(3) and the removal, done on an
emergency basis, was proper given Lakesha’s multiple requests. The court denied Lakesha’s section 388
petition to have the children returned to her care because the change in order
would not be in the children’s best interest, in part because Lakesha did not
get along with the Department and in part because the social worker failed to
provide certain services. The juvenile
court found that it was in the children’s best interest to remain with the S.s
because they were doing “fine†in that household and “[i]f I were to return to
[Lakesha], I don’t know if they would also be doing fine.†The court terminated parental rights over
Genesis and designated the S.s as the children’s prospective adoptive
parents. Lakesha appealed.
CONTENTIONS
Lakesha
contends the juvenile court erred under section 366.26, subdivision (n) in
approving the children’s removal and under section 388 in denying her petition
seeking their return to her care.
DISCUSSION
1. The
record supports the juvenile court’s finding that the Department did not abuse
its discretion in removing the children as it was in the children’s best
interest to be removed and placed with the S.s (§ 366.26, subd. (n)).
“Once
a dependent child is freed for adoption, the [Department] to which the child is
referred for adoption is responsible for the child’s custody and
supervision. The [Department] is
entitled to the exclusive care and control of the child at all times until a
petition for adoption is granted. [Citations.]†(In re
Shirley K. (2006) 140 Cal.App.4th 65, 71.)
The Department has discretion to terminate an interim or adoptive
placement at any time before the petition for adoption is granted. (Ibid.)
However, the
Department’s discretion concerning interim and adoptive placement “is not
unfettered.†(In re Shirley K., supra,
140 Cal.App.4th at p. 72.) The juvenile
court retains jurisdiction over the child, among other things, to ensure that
adoption is completed as expeditiously as possible and to ascertain the
appropriateness of the placement. (
Pursuant to section 366.26, subdivision (n), the court is also empowered
to review the Department’s decision to remove a child from a prospective
adoptive parent. (§ 366.26, subd.
(n)(3).)
Accordingly,
section 366.26, subdivision (n) provides in relevant part that, at the hearing
to determine whether the child shall be removed from the custody of a
prospective adoptive parent, “the court shall determine whether the caretaker
has met the threshold criteria to be designated as a prospective adoptive
parent pursuant to paragraph (1), and whether the proposed removal of the child
from the home of the designated prospective adoptive parent is in the child’s
best interest, and the child may not be
removed from the home of the designated prospective adoptive parent unless the
court finds that removal is in the child’s best interest.†(§ 366.26, subd. (n)(3)(B), italics added.)
It
is undisputed that Lakesha was originally designated as the prospective
adoptive parent for G. (§ 366.26, subd. (n)(1)) and that she has affection for
the children and has done her best in trying circumstances. However, the record supports the juvenile
court’s conclusion that it was in the children’s best interest to be removed
from Lakesha and placed with the S.s.
Lakesha herself requested G. be removed from her home, not once but
three times. The first two times, the
Department managed to discourage Lakesha.
The third time, however, Lakesha requested both children be removed, that
the removal be on an emergency basis, and that no one dissuade her. Each time she requested removal, Lakesha
claimed the Department was not providing her with the services and support she
needed. Yet, the Department frequently,
although not always, provided increased services and arranged for increased
funding for Lakesha. Often the reason
for Lakesha’s difficulties was her own schedule or behavior, or the competing
demands of her own children.
Furthermore, Lakesha admitted she did not get along with her social
worker. She also had difficulties with
school authorities, the S.s, and subjected the children to unnerving body
checks and hospital visits to report nonexistent injuries and illnesses after
they were removed from her care. Dr.
Dishon opined that stability was very important for the children. The Department was concerned that Lakesha was
likely to request removal again.
Lakesha’s pattern of requesting removal whenever the children become
difficult supports the court’s finding that in Lakesha’s care, the children’s
stability is undermined with the result removal from Lakesha was in the
children’s best interest.
2. The
record supports the juvenile court’s finding that it was not in the children’s
best interest to return them to Lakesha’s care.
Section 388 allows
a parent or guardian to petition the court for a hearing to modify or set aside
any previous order on the grounds of change of circumstance or new evidence,
such that the proposed change would be in the children’s best interests.
In
ruling on a section 388 petition, the juvenile court’s task is to determine whether
the petitioner demonstrated by a preponderance of the evidence “that [(1)]
there is a change of circumstances or new evidence, and [(2)] the proposed modification is in the minor’s best
interests. [Citations.]†(In re
S.M. (2004) 118 Cal.App.4th 1108, 1119, italics added; citing
415.) That is, “[i]t is not
enough . . . to show just
a genuine change of circumstances under the statute. The [petitioner] must show that the undoing
of the prior order would be in the best interests of the child. [Citation.]â€
(In re Kimberly F. (1997) 56
Cal.App.4th 519, 529.) A petition under
section 388 is addressed to the juvenile court’s sound discretion and on
appeal, we will disturb the decision only on a clear abuse of that
discretion. (In re Jasmon O., at
p. 415.)
Here,
Lakesha failed to demonstrate the second prong of section 388, namely that
returning the children to her care would be in their best interests. She requested removal because she was
overwhelmed by the children’s behavioral and developmental needs and a lack of
services. She blamed the problems she
had in providing the children with services on the Department, or at least her
difficulty in getting along with her social worker, the school, and the Regional
Center. By contrast, the children
displayed none of the behaviors that concerned Lakesha once they were placed
with the S.s. Indeed, the children’s
behavior improved markedly in the S.s’ care where they were thriving remarkably
well. In the S.s’ care, the children
have a “cohesive family unit that is loving, supportive, and stable,†and where
they are not subjected to disturbing and unnecessary body checks and hospital
visits. (Bold omitted.) Although Dr. Dishon did not identify
personality traits in Lakesha that were overly worrisome, and while Josh S.
exhibited some traits similar to Lakesha’s, Dr. Dishon slightly favored
placement with the S.s. over placement with Lakesha based on Josh S.’s
preferred parenting style. Therefore,
the record supports the juvenile court’s conclusion that it would not be in the
children’s best interest to return them to Lakesha’s care. The court did not abuse its discretion in
denying Lakesha’s section 388 petition for modification.
DISPOSITION
The
petition for extraordinary writ is denied.
ALDRICH,
J.
We concur:
CROSKEY,
Acting P. J.
KITCHING,
J.
Institutions Code, unless otherwise noted.
is a party to this appeal.
