Filed 5/9/22 J.M. v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Christie Canales Norris, Judge.

Jenae McDonald for Petitioners.

No appearance for Respondent.

Margo A. Raison, County Counsel, and Jennifer E. Feige, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

Petitioners, A.M. and J.M., who were the prospective adoptive parents for minor T.W., bring this petition for an extraordinary writ under Welfare and Institutions Code section 366.28,[1] challenging the juvenile court’s finding that removing T.W. from their custody served T.W.’s best interest. (§ 366.26, subd. (n)(3)(B).) We find no error in the juvenile court’s ruling and deny the petition.

PROCEDURAL AND FACTUAL SUMMARY

Newborn T.W was taken into protective custody in February 2021 by the Kern County Department of Human Services (department) after he and his mother, T.G. (mother), tested positive for opiates. Mother has a longstanding history of substance abuse, which resulted in the removal of three other children. After two days in the hospital, T.W. was discharged into petitioners’ care where he remained.

The juvenile court exercised its dependency jurisdiction over T.W., denied mother and the biological father reunification services and set a section 366.26 hearing.

At the section 366.26 hearing on September 2, 2021, the juvenile court terminated parental rights, approved a permanent plan of adoption and placed T.W. in the care of the adoption agency for adoptive placement.

Petitioners expressed their desire to adopt T.W. They did not have any biological or adoptive children of their own but did have a one-year-old foster child in their care.

On February 4, 2022, the department filed a notice of intent to remove T.W. from petitioners’ custody because of three child protective service referrals regarding the one year old (the child). The first referral, received in May 2021, alleged the child had a bruise between the crease of his nose and in the corner of his eye. It was also alleged he wore the same clothing for two days, his neck appeared red in the skin folds and there was a piece of dirt in the folds of his neck. A public health nurse evaluated the child and concluded the bruise was a vein. However, the creases in his neck were red. The second referral was received in October 2021, alleging the child was wearing the wrong size diaper, had a severe diaper rash and a bruise on his cheek and J.M. cancelled visits because the child was sick. J.M. told the public health nurse she was aware the child’s diaper was too small. The facial bruising was the result of him hitting himself while attempting to walk. The department substantiated the third referral which was received in December 2021, alleging the child had a severe diaper rash around his bottom and blood in his diaper. Petitioners blamed the child’s mother for the referrals, stating she complained about everything. The social worker explained to petitioners that the referrals could result in the children’s removal and advised them to continue taking the children to their doctor’s appointments and to be vigilant about the child’s diaper rash.

On January 25, 2021, the department conducted a meeting to discuss its concerns regarding petitioners’ home and the children’s placement. The children were bonding with the family, were happy and petitioners were involved with their care. However, the department was concerned about the child’s diaper rash as well as the home environment. There was a box full of dirty diapers, an electrical saw and tools which were accessible, stacked boxes which was a hazard and the outdoor area was messy. The diapers for the children were the incorrect size. The department required petitioners to take corrective action within 30 days by completing specific classes regarding child abuse and neglect, cultural issues in parenting, trauma-informed parenting, the child welfare team and transitioning from foster care to adoption. Petitioners were also required to remove any safety hazards, check the children’s diapers more often, treat their rashes and report any unusual incidents, doctor’s visits, or hospitalizations.

On January 26, 2022, a placement social worker visited petitioners’ home and found it considerably cleaner. J.M. reported that T.W. had diarrhea and started to develop a slight rash. She made an appointment for him to see the doctor on February 4, 2022. The social worker spoke with J.M. on January 31 and she said T.W. no longer had diarrhea or a diaper rash.

On February 1, 2022, J.M. informed the social worker she and A.M. completed the classes. The social worker reminded her that she was supposed to inform the social workers of any change in T.W.’s condition and told her she should have taken T.W. in to see a doctor sooner.

On February 4, 2022, social workers made an unannounced visit at petitioners’ home to inform them the department intended to remove T.W. from their home. The department had already removed the child.

Petitioners filed an objection to T.W.’s removal, stating they were the only parents he had ever known. They and their extended family loved and cared for him. He was happy and bonded to them. They believed they were being punished by the actions of the child’s mother who complained about their care of the child. T.W. never had any health issues. If he did, it was minor and they addressed it immediately. They asked the juvenile court to let him stay with them for the rest of his life.

The juvenile court conducted a hearing on petitioners’ objection on February 9, 2022. The court designated them T.W.’s prospective adoptive parents and granted them the opportunity to address the court. J.M. stated they had been with T.W. his entire life and they wanted to continue to be in his life. She believed she and her husband were “being misjudged by other actions.” They had taken care of him and met all his needs. They had letters from other families supporting his continued placement in their care. County counsel argued it was in T.W.’s best interest to remove him in light of the substantiated general neglect allegation. The department believed it would be easy to locate another adoptive home.

The juvenile court set aside petitioners’ prospective adoptive parent status and granted the department’s request for T.W.’s removal. In ruling, the court acknowledged petitioners had been a significant part of T.W.’s life but explained the substantiated referral precluded their adoption of him and continued placement in their care. The court found it would be in T.W.’s best interest to be removed.

DISCUSSION

Petitioners seek T.W.’s return to their custody, contending the referral regarding the child should not have been substantiated. As supporting documentation, they detail the circumstances under which T.W. and the child were placed in their care and their efforts to obtain medical care for the children. They also attached certificates of completion of various online courses and statements from friends and coworkers attesting to their loving care of the children. We disregard the support letters and certificates of completion because they were not before the juvenile court. (In re Zeth S. (2003) 31 Cal.4th 396, 405.) We find no error in the court’s order removing T.W. from petitioners’ custody.

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. (Department of Social Services v. Superior Court (1997) 58 Cal.App.4th 721, 724.) As a general rule, an interim or adoptive placement may be terminated at the agency’s discretion at any time before the petition for adoption is granted. (Id. at pp. 732−733.) However, the agency’s discretion is not unfettered. (Id. at p. 724.) The court retains jurisdiction over the child to ensure that placement is appropriate. (Id. at p. 731.) Thus, the agency does not have “carte blanche” to make placement decisions, 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. 734.)

The Legislature has enacted additional safeguards for when an agency seeks to remove a child from the home of a prospective adoptive parent (PAP). Where a PAP objects to the child’s removal, the agency must prove by a preponderance of the evidence that removal is in the child’s best interest. (T.W. v. Superior Court (2012) 203 Cal.App.4th 30, 45.) The juvenile court must determine whether the proposed removal of the child from the home is in the child’s best interest, “and the child may not be removed from the home unless the court makes that finding.” (Ibid.) “The concept of best interest ‘is an elusive guideline that belies rigid definition. Its purpose is to maximize a child’s opportunity to develop into a stable, well-adjusted adult.’ [Citations.] A primary consideration in determining the child’s best interest is the goal of assuring stability and continuity of care. [Citation.] This can occur only by considering all the evidence available to the court at the time the court makes its decision regarding removal of the child.” (State Dept. of Social Services v. Superior Court (2008) 162 Cal.App.4th 273, 286−287.)

The juvenile court’s decision to remove a child from a specific placement is reviewable by way of a petition for an extraordinary writ. (§ 366.28, subd. (b)(1).) The determination of whether the proposed removal is in the child’s best interest is committed to the sound discretion of the juvenile court, and its ruling will not be disturbed unless an abuse of discretion is clearly established. (See In re Stephanie M. (1994) 7 Cal.4th 295, 318.) “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.” (In re M.M. (2015) 235 Cal.App.4th 54, 64.) We defer to the juvenile court’s assessment of witness credibility (T.W. v. Superior Court, supra, 203 Cal.App.4th at p. 47), and we review the record in the light most favorable to the trial court’s findings. (In re L.M. (2019) 39 Cal.App.5th 898, 913.) “ ‘ “ ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ ” ’ ” (Id. at p. 914.) “We may not reweigh or express an independent judgment on the evidence.” (Ibid.)

Here, the department exercised its discretion to remove the child from petitioners’ care based on its determination they neglected him. Whether the department abused its discretion in that case is not before us. Further, according to the department at the removal hearing, the substantiated referral and removal of the child precluded petitioners from being approved as an adoptive placement for T.W. Neither county counsel at the hearing nor real party in interest on appeal cite any legal authority or administrative procedure to support the department’s assertion. Nevertheless, it is undisputed and we must presume the juvenile court followed the applicable law in granting the removal. (In re D.W. (2011) 193 Cal.App.4th 413, 417−418.) Given the preclusive effect the substantiated referral had on petitioners’ ability to adopt, we conclude the juvenile court properly found that maintaining T.W. in petitioners’ care delayed establishing him in an adoptive home and did not serve his best interest.

We find no error.

DISPOSITION

The petition for extraordinary writ is denied. This court’s opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.

* Before Levy, Acting P. J., Snauffer, J. and DeSantos, J.

[1] Statutory references are to the Welfare and Institutions Code.