Opinion
A163939
03-28-2022
In re L.M., a Person Coming Under the Juvenile Court Law. T.V., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent. CONTRA COSTA COUNTY SOCIAL SERVICES BUREAU, Real Party in Interest.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J18-00138
BROWN, J.
Petitioner, T.V., who was the prospective adoptive parent (PAP) for minor L.M., brings this petition for an extraordinary writ under Welfare & Institutions Code section 366.28, challenging the juvenile court's finding that removing L.M. from placement with T.V. was in L.M.'s best interest (§ 366.26, subd. (n)(3)(B)). We find no error in the juvenile court's ruling and deny the petition.
All further statutory references are to the Welfare & Institutions Code unless otherwise indicated.
BACKGROUND
L.M. was born in January 2018. Based on his mother's drug use and inability to provide a safe home, as well as L.M.'s positive drug test at birth, he was removed from his mother's care and declared a dependent under section 300.
L.M. was placed with T.V. in April 2018. The juvenile court terminated his mother's reunification services in April 2019 and designated T.V. as the de facto parent. At around the same time, the Contra Costa County Social Services Bureau (Bureau) informed the court of its intent to move L.M. to the adoptive home of his half-sibling, and, in the ensuing months, the Bureau documented positive visitation between L.M., his half-sibling, and his half-sibling's adoptive family. In July 2019, the court denied the Bureau's request to move L.M., finding that it was in L.M.'s best interest to remain with T.V. The Bureau's ensuing section 366.26 report indicated that L.M. was doing well in T.V.'s home, and he had a strong bond with T.V. In August 2019, the court held a section 366.26 hearing, found L.M. to be adoptable, and terminated his mother's parental rights. The court identified T.V. as L.M.'s PAP.
Over the course of the next two years, the Bureau reported that L.M.'s placement with T.V. was stable and he appeared to be doing well. L.M. was accepted at the East Bay Regional Center because of developmental delays and extremely limited vocabulary. He was diagnosed with autism and global developmental delays. T.V. remained committed to adoption, which had been delayed due to L.M.'s lack of birth certificate, and the Bureau reported in January 2021 that Triad Family Services (Triad), the foster family agency on this case, completed a home study. At post-permanency review hearings during this timeframe, the juvenile court found that adoption was the appropriate plan for L.M.
In January 2020, a post-permanency status review update first reported on a child welfare referral for T.V., alleging that she provided inadequate supervision as an eight-year-old child in her care disclosed that a 16-year-old foster brother touched him in a sexual manner. In August 2020, a Child Family Team (CFT) meeting occurred to discuss the number of children in T.V.'s home, which had been as high as eight and had recently decreased to six, and the Bureau's concern about the individualized level of care being given to each child. The CFT resulted in T.V.'s submission of a structured, day-to-day schedule for her home. At the CFT, T.V. told the Bureau that she had one-on-one time with each child and L.M. was doing well working with a speech therapist from the Regional Center on a weekly basis. The Bureau's April 2021 status update reported on three additional child welfare referrals received in September and October of 2020. Two alleged physical abuse of a foster child by T.V. and/or her boyfriend, and the third alleged sexual abuse of a child by another foster child. Community Care Licensing (CCL) investigated the referrals, and CCL determined that the two physical abuse referrals were unfounded and the sexual abuse referral was unsubstantiated.
Daniel Oquendo of CCL explained that "unfounded" means that the agency had sufficient information to dismiss the allegation, whereas "unsubstantiated" means that the agency did not have enough information to dismiss or confirm the truth of the allegation.
In July 2021, a sibling set of three was removed from T.V.'s care. On July 26, 2021, the Bureau filed a notice of intent to remove L.M. The stated reasons were that a recent out-of-home investigation substantiated a child welfare referral for general neglect; there had been ongoing concerns regarding the care provided by T.V.; L.M. was vulnerable due to his autism and severe speech delay; and the court had ordered the removal of the sibling set of three. T.V. filed an objection to removal.
At the August 11, 2021, hearing on removal, the court set a date for a contested hearing. The court observed that L.M. had been placed with T.V. since April 2018 and the Bureau had represented in prior reports that this was a good placement. The court thus requested that the Bureau prepare a memorandum focusing on how circumstances had changed and explaining when the issue of neglect became apparent.
The Bureau submitted four memoranda over the course of the removal proceedings. The first, dated August 11, 2021, stated the Bureau had substantiated the allegations in a May 2021 child welfare referral for general neglect as to L.M. This was based on findings that T.V. was negligent in the treatment of the foster children in her care by failing to provide timely medical and dental follow-up, T.V.'s lack of supervision resulted in unexplained injuries, the foster children had poor hygiene, and possible food withholding had occurred. The memo reported that social workers and service providers stated that T.V. failed to timely provide required paperwork and needed frequent prompting, L.M.'s medical records stated that T.V. failed to submit L.M.'s required Regional Center paperwork in a timely fashion, and, although L.M. had been invited in January 2021 to begin an Early Start Program (with services the Bureau deemed "vital" to address L.M.'s speech impediment and other potential developmental delays), L.M. was not participating because he went to an alternate day care. The children's school teachers also reported the children appeared excessively hungry and became upset when told there was no more food, which caused the teachers to suspect that T.V. did not feed the children before school. The Bureau also noted that CCL had substantiated a personal rights violation (pertaining to the children's hygiene) and a violation of the "[r]esponsibility of providing care and supervision."
An August 24, 2021, memo gave a more comprehensive history of the referrals and the care provided to L.M. Therein, the Bureau explained that the December 2019 child welfare referral for sexual abuse, although determined to be unfounded, sparked a concern about the number of children in T.V.'s care and her ability to meet their needs. In July 2020, when there were eight children in T.V.'s care, the Bureau provided the court with a memo about these concerns. The court requested a CFT meeting, and the meeting yielded a day-to-day schedule for T.V.'s home. In September and October 2020, three child welfare referrals were sent to CCL for investigation; two alleging physical abuse were determined to be unfounded, and one alleging sexual abuse was unsubstantiated. The Bureau reiterated that there had been a referral for L.M. and two other young children in T.V.'s care in May 2021 for general neglect, the Bureau substantiated this referral, and Triad had T.V. complete online trainings as a result.
Regarding the care provided, the Bureau explained that L.M. is a Regional Center client with developmental delays. The Regional Center recommended speech therapy, audiology follow-up screening, community activities, and transition planning with the school district at 30-33 months. As of August 2020, L.M. had missed six and attended eleven of his Zoom speech therapy sessions. On October 19, 2020, there was a meeting to transition L.M. to the school district since he would turn three in January 2021. T.V. had to enroll him with the school district before he could receive services, and she turned in the enrollment package in December 2020 without proof of residency. At the end of January 2021, T.V. provided that proof. L.M.'s school district assessment could not be completed before he turned three due to COVID restrictions, but the district offered specialized speech and learning services to L.M. as part of his transition at three. The school district reported that L.M. did not regularly participate in a specialized remote class offered due to the family's challenge with the class time, though they had been accessing the asynchronous learning materials provided. In February 2021, L.M. was diagnosed with autism, speech impairment, and developmental delays. He began school in July 2021.
In August 2020, the Bureau referred T.V. to a public health nurse for assistance scheduling dental exams for four children, including L.M. On August 25, 2020, the public health nurse reported that dental resources were given to T.V. and an overdue wellness exam was scheduled for L.M. for September 2020. L.M. missed the September 2020 appointment, and it was rescheduled for November 2020. L.M. missed another wellness exam appointment on January 29, 2021, and he went in June 2021. Dental exams are required every six months. L.M. had dental exams on January 22, 2020, and December 7, 2020. As of the date of the report, he was scheduled for a dental appointment on August 23, 2021.
The Bureau stated there was no doubt that T.V. loved L.M., but it was concerned that the care he and the other children received had deteriorated. Although L.M. was not the focus of the referrals received, the Bureau noted that the care in the home received by others was reflective of the care L.M. received. The Bureau stated that when the number of children decreased from eight to six, the care did not improve. It also reported that a sibling set of three was removed from T.V.'s care after two years, and since removal, a dentist determined that one sibling had fifteen cavities and another sibling needed a root canal.
The Bureau's October 15, 2021, post-permanency status review reported on a September 7, 2021, child welfare referral for general neglect. Two siblings of the three-sibling set that had been removed from T.V.'s care reported being touched in a sexual manner by T.V.'s nephews and a 13-year-old foster child in T.V.'s home. The Bureau completed a safety plan because L.M. shared a bedroom with the 13-year-old. L.M. was unable to articulate anything during the Bureau's interview.
The Bureau's October 19, 2021, memo stated that the Bureau would be substantiating a finding of general neglect as to L.M. The reason provided was that L.M. lived in the home where sexual abuse allegedly happened, he was vulnerable to sexual abuse, and he shared a room with the 13-year-old who allegedly touched another child in T.V.'s care. T.V. denied knowledge of any allegations against the 13-year-old and denied any sexual abuse among the foster children.
The Bureau followed up with another memo confirming that it had substantiated the most recent allegation of general neglect as to L.M. This memo stated that T.V. failed to provide adequate supervision to the children under her care, and, as a result, there was a strong possibility that the children were exposed to inappropriate behavior and were touched inappropriately by youth in the home. The Bureau reported that the children interviewed (who had since been removed) consistently maintained that they were touched in their private areas by other youth and that they told T.V. on various occasions. Due to L.M.'s young age and developmental and speech limitations, he was especially vulnerable to sexual abuse and/or exposure to inappropriate touching. The memo noted that a CCL investigator had been assigned but had not concluded CCL's investigation.
In addition to receiving the Bureau's reports and memoranda into evidence, the court heard testimony from Frosene Kouhi, a Triad social worker; Daniel Oquendo, a CCL analyst; T.V.; and Stella Truong, the Bureau's social worker.
Kouhi had worked on the case since November 2019 and met with the children in T.V.'s home once a week. She described the home as having an atmosphere of peaceful chaos. Despite there being up to eight children in T.V.'s home, Kouhi did not see any indication that T.V. was not meeting L.M.'s needs. T.V.'s two adult daughters helped care for the children.
Kouhi said she never noticed hygiene issues with the children, although she testified briefly that she had heard of complaints from the school that L.M. attended about hygiene. The only issue that ever arose regarding medical visits occurred with respect to dental appointments because dentists were only seeing emergencies during the pandemic. Kouhi was aware that T.V. missed some appointments scheduled by the public health nurse, but she stated those appointments were rescheduled.
In response to the court's questioning, Kouhi conceded that she observed T.V. having difficulty meeting the needs of the school-aged children during 2020 with remote learning. The children were not participating in remote learning, and her understanding was that, initially, the remote learning was not being monitored as closely. Things got better towards the end of the school year. Kouhi also explained that T.V. began the process to adopt the set of three siblings who were ultimately removed in July 2021. She said that L.M. is and should be T.V.'s priority. However, she agreed that things started to deteriorate or "diverge" when T.V. agreed to take placement of, and wanted to adopt, the three-sibling set.
Kouhi stated that the child who made the allegations of sexual abuse at issue in the December 2019 and September 2020 referrals recanted. She believed that CCL had determined that all allegations in the May 2021 referral were unsubstantiated. To "err on the safe side," however, Triad had T.V. take some extra parenting courses.
Kouhi forcefully testified that she saw a mother-son attachment between T.V. and L.M. She also testified that she placed two children from Alameda County with T.V. at the end of August 2021.
Oquendo testified next. He confirmed that CCL found the December 2019 sexual abuse referral and a September 2020 referral alleging that T.V. hit a child to be unfounded. CCL found to be unsubstantiated another referral from September 2020 alleging a child in T.V.'s home touched another child in her care in a sexual manner. Of the three 2021 complaints, CCL substantiated the May 2021 referral alleging that T.V. did not meet hygiene goals of one child in her care (not L.M.), and that same child sustained several injuries due to lack of supervision. An August 2021 complaint stemmed from the CPS report from the May 2021 incident and alleged T.V. hit or spanked foster children, did not have adequate food for them, did not meet their medical needs, used inappropriate discipline and language, and had older foster children cook for the younger ones. These allegations were unsubstantiated. Finally, in September 2021, a referral came in alleging that T.V. did not provide adequate supervision to children in her care, and CCL was investigating that complaint.
T.V. testified that she had been a foster parent for eighteen years. In May 2019, after she received two additional siblings of a sibling set of three, she had eight children in her care. Eight children were not a problem for her. She was used to that many children because she had six biological children.
T.V. identified for the Bureau that L.M. was exhibiting delays and needed to be referred to the Regional Center. T.V. said she followed all the directions for getting L.M. assessed by, and enrolled in, his local school district, and he started on time and on schedule, despite what the Bureau was leading the court to believe. T.V. testified that L.M. had been to all of his medical appointments, though she conceded rescheduling one in September 2020, and she only used a public health nurse when she needed help finding dental care during the pandemic.
Regarding remote learning, T.V. said that she only had issues with one child and none of the other kids. She testified that it was the County who thought the other kids were having issues. She said there was never any problem with giving individualized attention to L.M. when she had eight kids, and she disagreed with any contrary testimony. With respect to the hygiene violation, she testified that, after a school visit, a CPS worker complained about L.M.'s long fingernails and another child's ear wax build-up, lint, and long, dirty fingernails.
T.V. had four children in her care when she testified. She anticipated that the two children from Alameda County would reunite with their parents in January 2022. She answered affirmatively when she was asked whether she intended to maintain her foster license for up to six kids, but she said she did not want to take any more placements "right now." She intended to keep L.M. and another child in her care after the children from Alameda County left, but she told the court in her closing comments that she would move the children who had been recently placed from Alameda County if L.M. remaining in her care depended on it.
The Bureau called Truong in rebuttal. She stated that, as part of the adoption process, she requested L.M.'s medical and dental records, and the concern was that the dental attention was not consistent with the number of locations for treatment. With respect to medical appointments, she felt that despite referrals to the public health nurse, T.V. either missed appointments completely or rescheduled the appointments. Of the sibling set of three that had been recently removed, Truong testified one had fifteen cavities, another had five, and the dentist said the cavities formed pre-COVID.
Truong confirmed the Bureau substantiated the September 2021 referral for general neglect. She also confirmed that L.M. was nonverbal, and it would be difficult for him to provide any details about what had or had not happened to him. The Bureau would not be placing more children in T.V.'s home, and it would not formalize adoption with T.V. given the two substantiated referrals.
The court asked Truong whether the Bureau had considered the emotional impact on L.M. if he were to be removed and whether that could be addressed in a placement, and Truong conceded removal would "definitely impact" L.M. She testified that, based on the positive past experience with L.M.'s half-sibling's adoptive family, she was hopeful the Bureau could do the same with the concurrent family with whom they would place L.M. She testified that the family that would take L.M. had one child, and they were aware of L.M.'s needs and that he had been with T.V. almost all of his life. Truong said that L.M. was a happy child who goes to those who provide affection, several families expressed interest in him, he was adoptable, and she believed removal was in his best interests.
The Juvenile Court's Ruling
The court started its oral ruling by stating that it had listened very carefully to the evidence, it had considered the documentation submitted, and it was cognizant of the case history. T.V. was the PAP, so the Bureau had to show by a preponderance of evidence that removal was in L.M.'s best interest. The court recognized that this was a difficult situation. However, it stated that things had clearly changed since the court denied the Bureau's request to move L.M. in July 2019, and it found removal was in L.M.'s best interest.
The court acknowledged that there were complications caused by the pandemic, but it found that the level of care in T.V.'s home began to decline after placement of eight children. The court noted that Kouhi herself, while very complimentary of T.V., testified to an impact. Referrals began coming in. The court acknowledged that Kouhi testified that one child recanted his sexual abuse allegations from 2019 and 2020, but it observed that those were not all the referrals. The court stated that it simply could not ignore the multitude of referrals, and it specifically noted that two had been substantiated, including the most recent referral. Despite T.V.'s best efforts and her attempt to give great care to the children to the extent possible, the court found that things "had become truly, I think, overwhelmed in this home when there were that many children." Considering the nature of the referrals and the fact that L.M. had special needs and could not verbalize or articulate things, the court concluded that it was in L.M.'s best interests to remove him. The court made its ruling with a "heavy heart" and recognized removal would be a true change and difficulty for L.M. Nonetheless, given the preponderance of the evidence standard and "all of the evidence, the totality of the circumstances here," it found the Bureau had met its burden.
DISCUSSION
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 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 (T.W.); In re M.M. (2015) 235 Cal.App.4th 54, 60.) 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." (T.W., at p. 45.) "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., supra, 235 Cal.App.4th at p. 64.) We defer to the juvenile court's assessment of witness credibility (T.W., 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.)
The central issue in dispute is whether substantial evidence supports the juvenile court's conclusion that the Bureau had sustained its burden of proving it was in L.M.'s best interest to remove him from T.V.'s care. In making its ruling, the juvenile court relied on its determination that the individualized level of care for the children declined because of the number of children in the home; the "plethora" and nature of the referrals, two of which the Bureau substantiated; and L.M.'s special needs and inability to verbalize. Applying the standards set forth above, we conclude that the juvenile court adequately considered what was in L.M.'s best interest and substantial evidence supports the juvenile court's decision.
With respect to the children's care, Kouhi testified that, when T.V. took in eight children and sought to adopt the sibling set of three, things started to deteriorate and diverge. Kouhi also said that T.V. had difficulty supervising and meeting the needs of the school-aged children during 2020 with remote learning. There was evidence that T.V. missed and had to reschedule an appointment for an overdue wellness exam for L.M. in 2020 and missed a wellness exam appointment for him in 2021. L.M.'s August 2021 dental appointment was about two months overdue. L.M. missed six of seventeen remote speech therapy sessions with the Regional Center in 2020, although T.V. told the Bureau that L.M. worked with the center on a weekly basis. There was evidence suggesting some delay in T.V.'s furnishing the proof of residency required to enroll L.M. in the school district, and, as of June 2021, the school district reported that L.M. did not regularly attend a specialized class offered remotely by the school district due to a timing conflict. There was also evidence that, after being in T.V.'s care for two years, one child had fifteen cavities and another had five and needed a root canal, with the dentist opining that the cavities were formed pre-COVID.
Next, the record contained evidence that CCL substantiated a May 2021 child welfare referral for lack of supervision that led to several unexplained injuries and poor hygiene for a child in T.V.'s care. Related to this same referral, the Bureau made findings that T.V. was negligent in the treatment of the foster children through failure to provide timely medical and dental follow-up, lack of supervision resulting in unexplained injuries, poor hygiene of the foster children, and possible food withholding. The Bureau substantiated a September 2021 referral of general neglect related to L.M., and its memo stated that T.V. failed to provide adequate supervision. It also stated the children interviewed from the sibling set of three that were removed from T.V.'s home consistently maintained they were inappropriately touched by youth in T.V.'s home. One of the youths alleged to have been involved, over whom T.V. has legal guardianship, shared a bedroom with L.M. Ample evidence established that L.M. had special needs and was largely nonverbal. The court was entitled to credit this evidence, and it did so when it explained that the declining care, the nature of the substantiated referrals, and L.M.'s inability to verbalize his needs or what may happen to him supported its conclusion that removal was in L.M.'s best interest.
Largely discounting the above-described evidence, T.V. argues that the court erred because, at the time of the hearing, she no longer had eight children; she completed the training required after the substantiated May 2021 referral; there was a safety plan in place for L.M.; and she committed to not taking any more placements. But the court found that T.V. had allowed more children than was ideal into her home in the past because "she was so kind and could not say no," and the record shows that T.V. accepted placement of two children after the three siblings were removed and after the Bureau filed its notice of intent to remove L.M. Additionally, in contrast to evidence the court credited, T.V. testified that having eight children was not a problem for her; she only had issues with one child during remote learning; she was able to give all eight children the attention they needed; and she disagreed with testimony to the contrary. The court heard testimony that removal would definitely impact L.M., but based on L.M.'s past experience with his half-sibling's adoptive family, the Bureau was hopeful that, with its support, transition to a concurrent family with only one other child would be successful. We agree with the trial court that this was a difficult situation, but our standard of review is circumscribed. Given the evidence before the court, we cannot say the court abused its discretion in deciding that removal was in L.M.'s best interest.
DISPOSITION
The petition for extraordinary writ is denied, as is the stay requested. 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.
WE CONCUR: STREETER, ACTING P. J., DESAUTELS, J. [*]
[*]Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.