Filed 12/14/17 R.A. v. Superior Court 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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



R.A.,

Petitioner,

v.

THE SUPERIOR COURT OF
SAN BERNARDINO COUNTY,

Respondent;

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Real Party in Interest.


E068883

(Super.Ct.Nos. J260061 &
J260062)

OPINION


ORIGINAL PROCEEDINGS; petition for extraordinary writ. Annemarie G. Pace, Judge. Petition denied.
R.A., in pro. per.
No appearance for Respondent.
Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Real Party in Interest.
I
INTRODUCTION
Petitioner R.A. is the paternal cousin of four-year-old Za.R. (Za.) and three-year-old Zy.R. (Zy.) After the children were removed from parental custody, they were eventually placed in the custody of R.A. Unfortunately, the children were later removed from R.A.’s care on an emergency removal after the San Bernardino County Children and Family Services (CFS) discovered R.A. had allowed her boyfriend, S.D., who had an extensive criminal history and was the subject of another criminal charge involving the physical abuse of his 17-year-old daughter, to reside in her home. In addition, suspicious marks were found on Zy., raising a concern of physical abuse.
R.A. objected to the removal and was provided a hearing on the matter. At the hearing, R.A. attempted to refute the position of CFS through her own unsworn testimony. At the conclusion of the hearing, the juvenile court found it was in the children’s best interest to be removed from R.A.’s care. Pursuant to California Rules of Court, rule 8.456, R.A. subsequently filed a petition for extraordinary writ, challenging the juvenile court’s order removing the children from her care. We find the juvenile court did not abuse its discretion in removing the children from R.A.’s care and deny R.A.’s petition.
II
FACTUAL AND PROCEDURAL BACKGROUND
In April 2015, CFS filed a juvenile dependency petition under Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). CFS alleged in the petition that the parents had substance abuse problems and a history of domestic violence, which prevented them from adequately parenting their children. Father also had a criminal history. Mother’s whereabouts were unknown, as was her ability and willingness to care for her children.
CFS reported in the detention report that Zy. remained in the custody of Father, and Za., who had undergone a heart transplant and would require extensive follow-up medical care, was detained in a special health care needs foster home. Za.’s surgeon, the hospital social worker, and CFS were concerned the parents would not adequately provide for Za.’s medical care needs.
At the detention hearing on April 29, 2015, Zy. was ordered detained in the home of Father, and Za. was ordered detained in the special health care needs home of Ms. N.
On May 26, 2015, Father informed the social worker that he would be using his paternal cousin, R.A., for child care for Zy. when needed. On June 11, 2015, the social worker visited with R.A., and noted the home was clean and free from visual concerns. R.A. stated she would not be caring for Zy. on a regular basis, but was available for child care needs.
On July 6, 2015, Zy. was detained due to issues in his placement with Father. Father continued to test positive for marijuana and alcohol, he did not appear to be participating in services, he did not provide adequate location information concerning Zy., and he was residing in an unknown location, possibly in Inglewood, California.
On July 28, 2015, CFS reported that R.A. and her boyfriend, S.D., did not pass the Relative Assessment Unit (RAU) process due to S.D.’s criminal record. R.A. indicated she would have S.D. move out, and on July 9, 2015, R.A. confirmed to CFS that she had made arrangements for S.D. to move out so she could pass the RAU process. RAU also noted a concern with R.A. having six children in her care, with only one adult in the home. Adding Zy. and Za. would increase the number of children to eight with only one adult to supervise. In addition, as of July 21, 2015, R.A. had not yet been live scanned.
The contested jurisdictional/dispositional hearing was held on July 30, 2015. At that time, both parents submitted waiver of rights forms, submitting on the social worker’s reports. The juvenile court found the allegations in the petition true and ordered reunification services for the parents.
Zy. was placed with R.A. on January 14, 2016, and Za. remained in a special needs foster home. Za. underwent a heart catheterization and biopsy on January 26, 2016, and was released the same day. He tolerated the procedure well. Za. went to the clinic once a month and appeared to be doing well. He was developing appropriately, was able to say simple sentences, could run and jump with no assistance, and was able to follow simple commands. Za. had been in his placement since April 2015 and was adjusting well. Zy. had no major medical and emotional concerns and appeared to be meeting his developmental milestones. CFS hoped to train R.A. regarding Za.’s medical needs so the children could be placed together.
By July 29, 2016, the children remained in their respective placements. The children continued to do well medically and developmentally, and were happy in their respective placements.
In January 2017, CFS recommended terminating services for the parents and setting a section 366.26 to establish a permanent plan of adoption for the children. By that time, both children had been placed in R.A.’s care and appeared to be thriving in her home. They appeared well adjusted to R.A. and her family, and R.A. was willing to adopt the children.
Reunification services were ordered terminated on January 3, 2017, and a section 366.26 hearing was set.
In April 2017, CFS filed a section 366.26 hearing report recommending that the court terminate parental rights and free the children for adoption. According to the section 366.26 report, the children were doing well medically and developmentally. Za. was placed with R.A. on November 20, 2016, and Zy. had remained in her care since January 14, 2016. R.A. afforded the children the ability to stay in contact with their family members, and set firm boundaries with the birth parents to ensure the safety of the children. R.A. had demonstrated her ability to care for Za.’s long term health care needs, and was thoroughly trained by hospital staff following his heart transplant. R.A. indicated she was in a relationship, however, he was a long distance truck driver and did not have significant contact with the children. R.A. appeared stable, nurturing and honest, and it also appeared that she had formed a strong and loving bond with the children.
On June 14, 2017, the juvenile court terminated parental rights and selected adoption as the permanent plan for the children.
On July 20, 2017, CFS filed an emergency removal notice regarding the children. According to the notice, R.A. had a live-in boyfriend, S.D., who had an extensive criminal history, including a recent charge on March 6, 2017, for violating Penal Code section 273, subdivision (a), involving his 17-year-old biological daughter. The physical abuse of S.D.’s daughter placed the children at risk. CFS confirmed that S.D.’s address was listed as the same as R.A.’s address. R.A., however, denied S.D. was living in her home.
R.A. filed an objection to the removal, contending Zy. had become her son, and made progress since being placed in her home. She further alleged that she had taught him his colors, shapes, numbers, and name, and attended his doctor’s appointments. R.A. also asserted that she was lost without the children and that she would never put the children in harm’s way. R.A. stated it was her job to protect, care for and love the children, and she desired to continue caring for the children. As to Za., R.A. did not feel he should have been removed from her care as she loved him and protected him. She explained that she had taught him how to put his shoes on, his numbers, and letters. She knew his medication routine and was fearful if placed elsewhere his medical needs would not be adequately provided for.
In a report dated August 10, 2017, CFS recommended the children be formally removed from R.A.’s care, and maintained in foster care. At the time of the report, Za. was placed at Children’s Hospital in Los Angeles for another procedure, and Zy. was residing in a foster home. Several referrals regarding physical abuse were received by CFS as to Zy., and as a result a forensic medical examination was conducted. The examination revealed Zy. had several scars on his right thigh, including one that was curved and appeared to be patterned. Zy. also had six, one to three millimeter round scars on his right thigh. The examiner concluded that absent an explanation, there was a concern for inflicted trauma.
During follow up investigations, the social worker learned from the home study agency worker that during the adoption interview and inspection process, men’s clothes were found in R.A.’s home in the master bedroom closet. During a conversation with the social worker, following removal of the children, R.A. indicated “ ‘she has kicked out’ ” S.D. and removed his belongings. This led the social worker to believe S.D. was living in the home, contrary to what R.A. had previously reported. The social worker was also concerned with the smell of strong cigarette smoke in the home, because of Za.’s heart transplant and because Zy. suffered from moderate asthma. R.A. denied being a smoker, and reported the smell was caused by a friend of hers who had just left the home and was a smoker.
Zy. was doing well in his current foster home and was forming an attachment to his foster parents. The family wished to adopt Zy. and already had an approved home study. They showed a significant interest in placement of Za., and were interested in learning more about Za.’s condition and obtaining the proper training for placement.
The social worker remained concerned about placement of the children with R.A., based upon R.A.’s misrepresentations to CFS that S.D. was not living in the home, the immediate response referral that was received regarding S.D. physically assaulting his minor daughter while in R.A.’s home, and R.A.’s failure to correlate S.D.’s behavior with potential safety risks to the children. R.A. also did not appear to understand S.D.’s violent criminal history, and when she discovered it, she did nothing to mitigate the risk to the children.
A hearing on R.A.’s objection to removal was held on August 10, 2017. When asked if she had any evidence to present, R.A. stated she did everything that she was asked to do, including taking domestic violence classes and counseling classes, and visiting the children. She further stated, “He’s [S.D.] no longer in the home.” R.A. also stated the children have a home with her, where they were safe and well taken care of. R.A. was given an opportunity to address the information contained in the report, and vehemently denied abusing Zy., indicating the marks on his legs were the result of immunizations. R.A. also asserted she informed the social worker about the marks on his legs as a result of the shots and she was told they would go away. As to the other suspicious mark, R.A. contended Zy. had the mark when placed in her care. R.A. further explained that she fed the children, made sure they had everything they needed, and took good care of them. R.A. became emotionally upset, stating she did nothing but take care of the children and love them like they were her own. She also asserted that her house smelled like smoke because her father smoked, and although he went outside to smoke, it smelled when he returned into the home. R.A. also stated that during her visits with the children, they would ask her if they were going home with her, and they referred to her as mommy and did not show any fear towards her.
Minors’ counsel argued in favor of removal. Counsel stated Zy. was doing well in his new home and was comfortable with his foster parents, and the family was interested in placement of Za. Counsel highlighted the concerns regarding “manipulation on the part of who was or wasn’t living” in R.A.’s home, as well as R.A. having a child with S.D. and R.A. being unable to pass a home study for adoption. Counsel further noted a lack of trust with R.A. and the new referrals alleging abuse of Zy. Counsel pointed out a recent referral in which Zy. had a “very big fear of what happens to him if he wets the bed.” Counsel explained that Zy. “cowers and is incredibly afraid of what the foster parents would do to him” and “it’s sort of an indication of what’s happened to him before.” CFS’s counsel also argued in favor of removal, based on the best interest of the children, stating R.A. would not be able to adopt the children because she would not be able to clear her home study, which due to their young ages, was a concern.
The juvenile court found, based on the totality of the circumstances, removal was in the best interest of the children. The court ordered removal and terminated R.A.’s designation as a prospective adoptive parent. R.A. was provided with supervised visits, and advised of her appellate writ rights. R.A., in pro per., subsequently filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.456.
III
DISCUSSION
R.A. argues the juvenile court erred in removing the children from her care and denying her reunification services. She also asserts that she was treated unfairly by the social worker and requested a new social worker. CFS responded that R.A.’s petition should be dismissed because it fails to adhere to the requirements of California Rules of Court, rule 8.456, and fails to support R.A.’s arguments with citations to authority. In the alternative, CFS contends the juvenile court did not abuse its discretion in ordering the children removed from R.A.’s care.
A. Failure to Comply with California Rules of Court
California Rules of Court, rule 8.456(b)(2) provides that the memorandum in support of a petition “must state each point under a separate heading or subheading summarizing the point and support each point by argument and citation of authority.” Further, “[t]he memorandum must support any reference to a matter in the record by a citation to the record. The memorandum should explain the significance of any cited portion of the record and note any disputed aspects of the record.” (Cal. Rules of Court, rule 8.456(b)(3).)
R.A.’s memorandum in support of her petition is substantially deficient and does not comply with the requirements of California Rules of Court, rule 8.456(b). R.A. fails to provide a summary of significant facts and does not limit the facts she does provide to the record. Included in the petition are three letters of recommendation and information from a doctor’s visit for Zy., none of which were included in the record on appeal. Further, R.A. fails to state each legal argument under a separate heading or support each point by argument and citation to authority. In fact, there is no legal authority referenced in the entirety of the petition. The only heading provided states “Insufficient evidence to deny Reunification,” which mischaracterizes the challenge in that reunification was not the subject of the hearing. Rather, the hearing concerned the removal of the children.
In any event, although we agree with CFS that R.A.’s petition has substantial deficiencies, we will consider its merits. (Cal. Rules of Court, rules 8.204(e)(2)(C) [court can disregard noncompliance in briefs], 8.452(h)(1) [“[a]bsent exceptional circumstances, the reviewing court must decide the petition on the merits by written opinion”].)
B. Removal of Children from R.A.’s Care
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. (Department of Social Services v. Superior Court (1997) 58 Cal.App.4th 721, 732-733 (Dept. of Social Services).) 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., at p. 72.) Thus, the agency does not have “carte blanche” to make placement decisions (Dept. of Social Services, at p. 734), and the trial court is limited to reviewing whether the agency abused its discretion in placing the child 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 interest. (366.26, subd. (n)(3)(B); T.W. v. Superior Court (2012) 203 Cal.App.4th 30, 45 (T.W.).) A prospective adoptive parent may object to the child’s removal from the home. (§ 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., 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 interest. (§ 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. (§ 366.28, subd. (b)(1).) The juvenile court’s decision is reviewed for abuse of discretion. (In re M.M. (2015) 235 Cal.App.4th 54, 64; 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 juvenile court’s ruling 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 [juvenile court must have exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination].) However, the court’s finding that the change is in the child’s best interest is reviewed for substantial evidence. (In re M.M., at p. 64.)
In this case, the children were removed from R.A.’s care due to the presence of R.A.’s boyfriend, S.D., in the home. S.D. had an extensive criminal history and, at the time of removal, was the subject of another criminal investigation involving the physical abuse of his biological daughter in R.A.’s home. From the outset of the placement process, R.A. was notified that the children could not be placed in her care if S.D. lived in the home due to his extensive criminal history. R.A. subsequently informed CFS that S.D. had moved out of the home. R.A. was thereafter able to pass the RAU process and have Zy. placed in her care. Za. was later placed in her care as well. Although it appeared R.A. was providing good care to the children, CFS later learned that, contrary to its prior instructions, R.A. had allowed S.D. to move back into the home and that S.D. had recently been charged with physically abusing his daughter in R.A.’s home. R.A. denied S.D. was living in the home, even though evidence of S.D. living in the home was found. R.A. later admitted to making S.D. move out of the home. R.A.’s actions caused CFS and minors’ counsel to lose trust in R.A. Furthermore, there were concerns regarding suspicious marks on Zy.’s leg and Zy. possibly being in fear of people living in R.A.’s home. There were also concerns regarding R.A.’s inability to contemplate the risk to the children in allowing a man with an extensive criminal history to live with the children, and R.A.’s failure to mitigate the risk to the children. There is substantial evidence in the record to support the juvenile court’s finding the best interests of the children were served by removing them from R.A.’s care.
Based on the foregoing, the juvenile court did not abuse its discretion in removing the children from R.A.’s care.
IV
DISPOSITION
The petition for extraordinary writ is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:


McKINSTER
Acting P. J.


MILLER
J.