Filed 6/27/17 B.M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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



B.M.,

Petitioner,

v.

THE SUPERIOR COURT OF
SAN BERNARDINO COUNTY,

Respondent;

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Real Party in Interest.


E067969

(Super.Ct.No. J257669)

O P I N I O N


ORIGINAL PROCEEDINGS; petition for extraordinary writ. Annemarie G. Pace, Judge. Petition denied.
Harold Gun Lai, Jr. for Petitioner.
No appearance for Respondent.
Jean-Rene Basle, County Counsel, and Michael A. Markel, Deputy County Counsel, for Real Party in Interest.
The juvenile court removed D.H. (born in March 2015) and K.G. (born in February 2014) (collectively Minors) from petitioner, B.M., the prospective adoptive mother (PAM). The PAM has filed a petition for extraordinary writ in which she contends the juvenile court abused its discretion by removing Minors from her custody. The petition is denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
Real Party in Interest, San Bernardino County Children and Family Services (the Department), took K.G. into protective custody and placed her with the PAM on November 25, 2014. In a jurisdiction and disposition report filed on December 17, 2014, the social worker noted K.G. “appears to be doing well in the home.” The Department took B.M., K.G.’s sibling, into protective custody and placed him with the PAM on April 2, 2015.
On April 30, 2015, the juvenile court removed K.G. from her biological mother, denied the biological mother reunification services, and set the Welfare and Institutions Code section 366.26 hearing. On June 18, 2015, the juvenile court removed D.H. from his biological mother, denied the biological mother reunification services, and set the matter for a section 366.26 hearing.
In the section 366.26 report on K.G., the social worker noted K.G. had “made a positive adjustment to the home and continues to thrive while in [the PAM’s] care.” The PAM “understands [the] roles and responsibilities of being an adoptive parent, and has realistic expectations of the child . . . .” The social worker further observed that the PAM is an “extremely loving, caring, and nurturing individual as eviden[ced] by the way in which she speaks about [K.G.] and cares for her and the sibling.” K.G. referred to the PAM as “Ma Ma.” K.G. received “love and affection from extended family and friends [with] whom [the PAM] share[s] strong ties. [K.G.] and [the PAM] appear to be developing a mutual shared attachment.” The social worker recommended the juvenile court terminate the biological mother’s parental rights; the social worker opined that it was in K.G’s best interest to be adopted by the PAM.
In the section 366.26 report on D.H., the social worker recommended the court terminate the biological mother’s parental rights as to D.H. The social worker observed that D.H. “receives love and affection from extended family and friends [with] whom [the PAM] share[s] strong ties. [D.H.] and [the PAM] appear to be developing a mutual shared attachment.” On November 23, 2015, the juvenile court found Minors adoptable and terminated the biological mother’s parental rights as to both.
 
In a status review report filed on May 18, 2016, the social worker recommended Minors remain in the PAM’s home until their adoption was finalized. The social worker observed the PAM had “demonstrated [her] commitment to the children’s well-being and [was] committed to legalizing [their] permanency through Adoption.” Minors “continue to thrive in their prospective adoptive home. The prospective adoptive parent continues to meet all of the children’s needs. [Minors] view the prospective adoptive parent as a parental figure. The prospective adoptive parent ha[s] a strong desire to adopt the child[ren] and continue to provide a safe, loving and permanent home for [Minors]. The adoptive home of [the PAM] continues to be [an] appropriate placement for [Minors].”
In a status review report filed on November 14, 2016, the social worker again recommended Minors remain with the PAM until the adoption was finalized. The social worker noted K.G. “appears to be attached to her prospective adoptive parent and is comfortable in her home environment.” The social worker further observed that “[t]he caregiver and the children appear to be attached to one another and the children see [the PAM] as their parental figure. The prospective adoptive parent continues to have a sincere desire to adopt [Minors]. She . . . appears to be committed to the children’s well-being on a permanent basis.” Nevertheless, the Department had received a referral on November 7, 2016, alleging physical and emotional abuse by the PAM. The social worker was awaiting completion of an investigation of the allegations.
On December 2, 2016, a notice of emergency removal of Minors was filed. On November 1, 2016, there was a report confirmed by two of the PAM’s previous foster children that the PAM had used profanity towards Minors and hit K.G. on the buttocks multiple times with an open hand after K.G. had accidentally urinated on herself. On December 5, 2016, the PAM filed an objection to the removal.
In the interim review report filed on January 18, 2017, the social worker recommended Minors remain in their current foster care placement and that the juvenile court uphold the Department’s decision to remove Minors from the PAM. During the investigation, a social worker had interviewed three other foster children residing in the PAM’s home. It was reported that the PAM spanked K.G. on the buttocks 10 times whenever she did not believe K.G. was listening. It was further reported that the PAM hit D.H. on the back hard to stop him from crying. One of the foster children related that the PAM attempted to coach her as to what to tell the social worker.
Due to the Minors’ young age and nonverbal skills, the social worker decided to remove the Minors from the PAM’s custody. The Minors’ foster parent subsequently reported that D.H. continually banged his head against his crib. The PAM thereafter reported that D.H. had been banging his head against the crib for over a month. She said it was how he comforted himself before going to bed; she said all her biological children had done so as well.
The foster parent also reported that both children walk on their toes. D.H. was completely nonverbal and unable to use utensils to feed himself. K.G. was speech delayed and difficult to understand. She was aggressive and hit other children in the home.
In March 2016, it was found that the PAM had violated several provisions of the foster children’s personal rights. A corrective action plan and training was provided to her. On July 25, 2016, a foster child reported that the PAM would make one of the foster children stand in the corner against the wall and hold his or her hands in the air. It was also alleged the children were not allowed to use the toilet while serving a time-out. The PAM was found to have violated the children’s personal rights and given another corrective action plan. On November 3, 2016, the Department received a report the PAM was using profanity within the hearing of the foster children. The PAM was provided a third corrective action plan.
The instant allegations of emotional and physical abuse were deemed inconclusive by the Department. However, the social worker noted that the foster licensing agency was still investigating the matter and that it might be difficult for the PAM to receive an approved adoptive home study now.
The social worker for two of the other foster children testified at the hearing on the PAM’s objection to removal. The social worker had never observed any problems during
 
her home visitations. Minors interacted with the PAM and seemed to enjoy being with her. A referral had been filed in October by the biological mother of one of the other foster children. Those foster children were subsequently removed at the PAM’s request during the pendency of the investigation. One of the foster children reported that the PAM dictated long time-outs, frequently cursed openly, and would slap K.G. when she peed on herself. The PAM denied the behavior.
Minors’ social worker testified he did not observe any problems during any of his home visitations. K.G. “seemed cared for. Her needs were met . . . .” Both Minors appeared to have a strong bond with the PAM. The PAM appeared to love and care for Minors.
The social worker received the referral regarding physical and emotional abuse in November 2016; it had been made by two other foster children in the PAM’s care. An intake worker had conducted the investigation and deemed the emotional abuse allegation unfounded and the physical abuse allegation inconclusive.
Nevertheless, the social worker was concerned because he initially believed Minors only had speech delays. He “later found out that they had a lot more developmental needs and special needs that [he] was not aware of. [The PAM] did not tell [him of] any of these behaviors.” The behaviors of D.H. which concerned the social worker were Minor’s head banging, hand flapping, complete lack of eye contact, lack of verbal skills, scratching himself when frustrated, and his inability to use utensils to eat. The social worker was surprised, because during his meetings with the PAM during which they would discuss development issues, the PAM never mentioned these behaviors.
The social worker was also surprised and concerned to learn about several behavioral issues with K.G.: K.G. walked on her toes, walked on her knuckles, and flinched whenever an adult approached her. The social worker viewed himself and prospective adoptive parents as a team; it was of concern to him that the PAM never mentioned these behaviors when they met. Thus, continued placement with the PAM was “extremely concerning” to the social worker because Minors were both nonverbal and the situation put them at a higher risk because no one else who could speak for Minors any longer resided in the home.
Subsequent to removal, the PAM had three visits with Minors. During the first visit, D.H. went to the PAM, but K.G. hid from her and was shaking. The latter two visits were reported to have gone well.
The PAM testified that she immediately had problems with her other foster children once they were placed with her. She reported to the social worker concerns she had regarding K.G.’s potential medical problems. The PAM denied making any children hold their hands up or disallowing them to use the restroom during time-outs. One of the other foster children put his hands up on his own during two time-outs in order to pick paint off the wall.
The PAM denied ever physically or emotionally abusing any foster child. She denied ever using profanity in front of the children or threatening them. K.G. called the PAM “Mom.” The Minors and the PAM all loved each other very much. The PAM intended to give up fostering other children to spend all her time with Minors once she was able to adopt them. The juvenile court found it was not in Minors’ best interests to be placed with the PAM and formally ordered them removed from her custody.
II. DISCUSSION
The PAM contends the court abused its discretion by ordering Minors removed from her custody. We disagree.
“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. [Citation.] If a prospective adoptive parent objects to the child’s removal from the home, the [Department] must prove by a preponderance of the evidence that removal from the prospective adoptive parent is in the child’s best interests. This standard applies whether the [Department] has filed a notice of intent to remove the child under section 366.26, subdivision (n)(3), and the child is still in the home of the prospective adoptive parent, or the [Department] has removed the child from the home on an emergency basis under [section] 366.26, subdivision (n)(4), as here. Under either circumstance, the juvenile court determines whether the proposed removal of the child from the home is in the child’s best interests, and the child may not be removed from the home unless the court makes that finding. [Citation.]” (T.W. v. Superior Court (2012) 203 Cal.App.4th 30, 45.)
“A juvenile court’s decision to authorize a change in the minor’s placement is reviewed for abuse of discretion. [Citation.] But we must also review the juvenile court’s finding that the change is in the minor’s best interests to determine whether there is substantial evidence in the record to support it. [Citations.]” (In re M.M. (2015) 235 Cal.App.4th 54, 64.) “‘We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court’s order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence.’ [Citation.]” (In re Liam L. (2015) 240 Cal.App.4th 1068, 1087.)
Here, the court acted within its discretion in ordering formal removal of Minors from the PAM’s custody. The court noted that the PAM was the subject of more than one corrective action plan. The court found that the foster children’s statements with respect to physical abuse corroborated one another. The court found the PAM’s nondisclosure of Minors’ developmental issues supported the removal order. Finally, the court noted that the difficulty the PAM would have obtaining an approved adoptive home study also supported removal. Sufficient evidence supports the court’s findings and ruling.
 
The PAM had already received three corrective action plans based upon allegations that she improperly fed, inappropriately disciplined, and used profanity in front of and toward her foster children. The instant allegations specifically involved physical and emotional abuse toward Minors, including hitting K.G. on the buttocks, slapping her, hitting D.H. on the back, and using profanity. Although the allegations were deemed, respectively, inconclusive and unfounded, the investigation by the foster care agency had yet to be completed.
Minors were found to have much more serious verbal issues than simply delayed speech; D.H. was completely nonverbal while K.G.’s speech was difficult to understand. Thus, the social worker was concerned that the PAM failed to inform him, and thereby seek remediation, of the problems and that it left Minors in a home with no one to advocate for them if they were, in fact, emotionally or physically abused.
The allegations derived from the reports of at least two foster children other than Minors supports the court’s finding that the foster children’s statements corroborated one another. The social worker had encountered numerous problematic behavioral issues by Minors which the PAM had failed to disclose during Minors’ placement with her. These included serious issues, such as D.H.’s head banging, lack of eye contact, self-injury, lack of verbal skills, hand flapping, and inability to use eating utensils. With respect to K.G., the issues included walking on her toes and flinching when approached by adults. The social worker noted that due to the corrective action plans and the status of the foster licensing agency investigation, it might be difficult for the PAM to obtain an approved adoptive home study. Thus, sufficient evidence supported the juvenile court’s ruling.
III. DISPOSITION
The petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
J.


We concur:

RAMIREZ
P. J.

MILLER
J.