Opinion
G056010
06-19-2018
Y.T., Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; ORANGE COUNTY SOCIAL SERVICES AGENCY et al., Real Parties in Interest.
The Law Office of Cara Bender and Donna P. Chirco for Petitioner. No appearance for Respondent. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency. Rebecca N. Captain for Real Party in Interest M.C.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DP024113-0001) OPINION Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Dennis J. Keough, Judge. Petition denied. The Law Office of Cara Bender and Donna P. Chirco for Petitioner. No appearance for Respondent. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency. Rebecca N. Captain for Real Party in Interest M.C.
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INTRODUCTION
Petitioner Y.T. is the maternal great-aunt and was the caretaker and prospective adoptive parent of real party in interest, M.C., who was taken into protective custody soon after his birth in August 2013. Parental rights were terminated in 2014, and this matter is in the permanent plan stage. By writ petition, Y.T. challenges the juvenile court's order under Welfare and Institutions Code section 366.26, subdivision (n) (section 366.26(n)) removing M.C. from her care. M.C.'s counsel agrees with SSA that the writ petition should be denied.
The juvenile court faced a difficult and heart-wrenching task in deciding whether to remove M.C. from Y.T.'s care. As the court recognized, Y.T. had provided M.C. loving care for nearly his entire life and in effect had been the only mother he had ever known. After 13 days of hearings, the court considered the evidence and, in a sensitive and intelligent ruling, found that removal was in M.C.'s best interest. Substantial evidence supports that finding, and the court properly exercised its discretion in ordering removal. We join in the juvenile court's expression of gratitude to Y.T. for her devotion in caring for M.C.
FACTS AND PROCEDURAL HISTORY
I.
Prior Opinion
In a prior opinion, In re M.C. (February 15, 2018, G055148) (nonpub. opn.), we concluded Y.T. lacked standing to appeal from the juvenile court's order authorizing SSA to arrange for M.C. to have overnight visitation with his siblings. In that opinion, was recited the background facts and procedural history from M.C.'s birth through mid-June 2017. On our own motion, we take judicial notice of our opinion in In re M.C., supra, G055148. (Evid. Code, §§ 452, subd. (d); 459, subds. (a), (b) & (c).)
II.
Events from June 2017 to the Removal Hearing
We pick up the narrative in June 2017. M.C. continued to reside with Y.T. in the home of her sister (R.T.B.), R.T.B.'s husband, and maternal great-grandfather. M.C. was healthy but had exhibited aggressive behavior in preschool. As of July 5, 2017, Y.T.'s home study application was incomplete because Y.T. had not provided addresses for three references, and clearances for R.T.B.'s husband and maternal great-grandfather had not been received. Y.T. and R.T.B. intended to co-adopt M.C.
Medical examination forms were received for Y.T. and R.T.B. On R.T.B.'s form, it was noted that R.T.B. had been diagnosed with diabetes but her prognosis was good and her general health was good.
Y.T.'s physician checked the box indicating she would not recommend Y.T. as an adoptive parent. Y.T.'s physician checked the box for "Questionable" next to the question how she would assess Y.T.'s adjustment to adoptive placement. Y.T.'s physician noted Y.T. had "[u]ncontrolled diabetes," an "[e]ye disorder," lacked "[c]ontinuity of [c]are," and "needs to be followed up monthly until stabilized." Y.T. attended doctor's appointments on June 5, 9, and 22, 2017. In addition to diabetes, Y.T. was being treated for uncontrolled hypertension, morbid obesity, and cataracts.
In late June 2017, the assigned social worker learned Y.T.'s daughter O.T. was residing in the home. Y.T. and R.T.B. had been earlier admonished that O.T. could not reside in the home due to her criminal history and outstanding warrants, and a criminal exemption to allow O.T. to reside in the home had been denied.
As of August 2017, Y.T. had not provided necessary reference information for her home study. SSA remained concerned about O.T.'s ongoing contact with M.C. M.C.'s paternal uncle (paternal uncle) had been approved for placement and maintained a strong interest in having M.C. placed in his care. M.C. was having overnight visits with paternal uncle.
Y.T. and M.C. continued to participate in Parent Child Interactive Therapy. Y.T. attended all sessions, completed homework assignments and actively participated in all activities presented. Y.T. had been working with M.C. in therapy to reduce his aggressive outbursts to one time per day. Y.T. was also participating in individual therapy to address her anxiety and depression over M.C.'s possible removal, and to address protecting M.C. from other family members, communicating effectively, controlling emotions, and parenting skills. The therapist believed the eight sessions with Y.T. were "too short" and Y.T. would benefit from more sessions.
On September 18, 2017, Y.T. and R.T.B.'s home study was denied based on Y.T.'s failure to follow through with submitting documents, Y.T's medical examination form, concerns over Y.T's ability to provide for M.C., and Y.T.'s inability to effectively parent and protect M.C.
On September 27, 2017, SSA filed a notice of intent to remove M.C. The reasons given for removal were Y.T.'s home study, two prior home studies had been denied, and SSA had located other relatives who were interested in adopting M.C. SSA's position was: "[M.C.]'s permanence has been delayed in an effort to allow the caregiver to successfully complete an adoptive home study. She has been granted three opportunities to complete the home study, and she has been unable to do so. There are two other families approved for [M.C.]'s placement, both of which would allow contact with siblings. It is the opinion of [SSA] that it is necessary to remove [M.C.] from his current placement in order to establish permanency for the child."
Paternal uncle continued to have visitation with M.C. into October 2017. Paternal uncle reported M.C. was becoming very open with the family and quite talkative too. If granted placement, paternal uncle understood the move could be difficult emotionally for M.C., and he intended to maintain contact between Y.T. and M.C.
Y.T. continued to participate in joint therapy sessions with M.C. The therapist reported Y.T. had achieved a mastery of phase one—building a healthy relationship between her and M.C.—and they were working on phase two—creating rules. Y.T. was doing well and was consistent in completing homework. The interactions between M.C. and Y.T. were positive. M.C. would play nicely with Y.T. and hug her throughout the session. Y.T. was comprehending and implementing the skills learned in sessions, and M.C. was "mak[ing] progress in minimizing aggressive behaviors." Y.T. had recently obtained employment. R.T.B. would care for M.C. while Y.T. was at work.
SSA reported in January 2018 that maternal grandfather visits Y.T.'s home weekly to see maternal great-grandfather. During a recent visit, maternal grandfather yelled at M.C. so loudly that M.C. cried. Maternal grandfather was outside with M.C., and Y.T. was inside the house at the time. The neighbors called the police as a result of the incident. Y.T. informed the assigned social worker that R.T.B. takes M.C. to visit maternal grandfather. The assigned social worker told Y.T. that, due to maternal grandfather's history of alcoholism and sexual abuse against M.C.'s mother, maternal grandfather was not to have any unsupervised contact with M.C.
In an addendum report dated January 12, 2018, SSA recommended removal of M.C. from his placement with Y.T. SSA gave this summary of reasons for its recommendation: "[M.C.] is a healthy young boy with educational and developmental challenges. He had a difficult time learning to behave in the classroom and was referred for therapy. [Y.T.] has worked very hard in therapy with the child, and he has shown much improvement. Educationally, [M.C.] is behind, and he may need speech therapy. In regards to [Y.T.]'s desire to adopt [M.C.], [SSA] understands that she and [M.C.] do have a strong emotional bond, but her ability to provide for [M.C.]'s financial and emotional needs for the remainder of his formative years is of concern. [¶] [Y.T.] has not been able to provide for either her or [M.C.]'s financial needs on her own. She receives financial aid for both herself and [M.C.] She is dependent on [R.T.B.] for housing and has only recently obtained a part-time janitorial job. She has been unable to protect [M.C.] from being hit by [maternal great-grandfather] and verbally abused by [maternal grandfather]. . . . Her physical health is not stable and [she] was for sometime unable to see due to complications with her diabetes. She began her adoptive home study three different times, and on each occasion, she was not approved. There have been ongoing difficulties clearing the members of the household or physical aspects of the home, her inability to provide documents needed to complete the home study, concerns regarding her parenting skills and protective capacities, her poor health and financial instability. . . . Based on past behavior and history, it is likely that the pattern of instability and the inability to independently care for [M.C.] will continue if her request for adoption is granted."
III.
The Removal Hearing
The hearing on the notice of intent to remove M.C. from Y.T.'s care was conducted over 13 days in January and February 2018. Julie Akau (the assigned social worker), Cynthia Molina (a senior social worker), R.T.B., Sylvia Cordova (an administrative manager), and Y.T. testified. SSA reports dated September 6 and 25, October 30, December 1, 2017, and January 12, 2018 were received into evidence. A. Akau's Testimony
Akau testified that she had been assigned to the case since May 2017. Akau understood that M.C. had been residing with Y.T. his entire life, believed that M.C. and Y.T. were attached to one another, and acknowledged that M.C. had thrived in her care. Akau had not read all of the SSA reports generated in this matter.
When Akau was assigned to the case, SSA's recommendation was to remove M.C. from Y.T.'s home because the previous home studies had been denied and Y.T.'s grievance had not been reversed. In making that recommendation, Y.T.'s inability to successfully complete the adoptive home study was considered. The adoptive home study social worker, not Akau, is responsible for processing the adoptive home study. Y.T.'s most recent home study had been denied because Y.T. could not provide a doctor's note stating she was in good health and well enough to adopt and care for a child, Y.T. did not follow up with her doctor on a monthly basis as the doctor requested, and R.T.B. was not involved in M.C.'s daily care.
Akau learned from the adoptive home study social worker that Y.T.'s physician did not recommend Y.T. be allowed to adopt M.C. Akau was concerned that Y.T.'s diabetes was not under control and understood the side-effects of uncontrolled diabetes could range from vision impairment to risk of coma. Akau testified Y.T. told her she was not experiencing any complications from diabetes and "was fine." Akau had never observed any complications from diabetes interfering with Y.T.'s ability to care for M.C. Despite concerns about Y.T.'s health, Akau had not sought a release in order to speak directly to Y.T.'s doctor.
Y.T.'s daughter O.T. was not allowed to live in the home or provide child care for M.C. because O.T. had criminal warrants. When Akau took the case, O.T. was living in the home, but later O.T. moved out. Akau had suspicions that O.T. looked after M.C. because R.T.B. works late. Akau recently had been informed that O.T. had taken M.C. to and from a court hearing. Akau testified O.T. had recently told her O.T.'s criminal warrants had been cleared.
Y.T.'s sister R.T.B. also lived in the home and had a relationship with M.C. Akau was told that R.T.B. looked after M.C. while Y.T. was at work. R.T.B. was a co-applicant with Y.T. to adopt M.C. R.T.B. had submitted all of her required paperwork, had her fingerprints taken, and had passed her medical exam. The home study was denied for Y.T. and R.T.B. Akau was concerned R.T.B. did not take an active role in M.C.'s daily care and that R.T.B. did not occupy a parental role.
Maternal great-grandfather lived in the home during the entire time in which M.C. had been placed there. An unsubstantiated child abuse report against maternal great grandfather alleged he dragged M.C. down a hall. Maternal great-grandfather had been arrested in the past for murder and attempted murder and appeared on the terrorist watch list. Other than the one report, there were no other concerns about interactions between maternal great-grandfather and M.C. Maternal great-grandfather is in his 90's and suffering from late-stage Alzheimer's.
Akau was concerned that M.C. would have contact with maternal grandfather and maternal step-grandmother. The maternal grandfather had a history of child sexual abuse and the maternal step-grandmother had a history of physical abuse. Akau had told Y.T. during the last home visit that M.C. was to have no contact with maternal grandfather. The prior social worker had told Y.T. the same thing. Akau testified about a recent incident in which the police had been called to the house because maternal grandfather had been yelling loudly at M.C. Maternal grandfather and M.C. were in the front yard while Y.T. was in the house at the time. Although a child abuse report was not filed, the incident was of concern to Akau because it showed maternal grandfather was visiting the home, Y.T. was not supervising the interaction between maternal grandfather and M.C., and the yelling was so loud that police were called.
Akau was of the opinion that M.C. should be removed from Y.T.'s home and placed with paternal uncle for adoption. Akau testified she believed placement with paternal uncle was in M.C.'s best interest because "[Y.T.] has been denied the ability to adopt him, and [paternal uncle], who is also a family member, has already been approved for [M.C.'s] placement." Akau testified: "There appear to be not any barriers to [paternal uncle's] being able to adopt [M.C.], and that would provide the most stability and permanence for [M.C.] He is a young child and deserves to have a stable home."
Paternal uncle lived with paternal grandparents in their home, and they had adopted M.C.'s two older brothers, R.C. and A.C. The home had been approved for placement of M.C. Akau believed M.C. enjoyed visiting his siblings and benefitted from contact with them. She was concerned M.C.'s relationship with his siblings would diminish absent placement with paternal uncle because Y.T. had not initiated or participated in visits. Akau believed, as a general principle, sibling bonds are particularly important for adopted children.
M.C. had never lived with his siblings, and paternal uncle had never played a primary role in M.C.'s daily life or acted in a parental role. Akau could not provide assurance that M.C. would have permanence if placed with paternal uncle. But, Akau testified: "Based on the approval from [paternal uncle] for emergency placement and the swiftness in which he completed all the requirements and his continued interest in maintaining contact with [M.C.], I believe that he will continue to do whatever else is necessary to adopt [M.C.]" B. Molina's Testimony
Molina is assigned to the SSA Resource Family Approval and Assessment Unit (RFAU). Her job responsibilities include obtaining documents, conducting a psychosocial assessment, interviewing adults and children in the home, and writing the family study for approval.
Molina was assigned to M.C.'s adoptive home study in May 2017. She had been informed that Y.T. had not been compliant with the home study process in the past. Shortly after being assigned to this case, Molina sent Y.T. a Spanish-language application package. Although Y.T. returned her application fairly quickly, the application was incomplete in that it lacked information about Y.T.'s references and the required information about the other adults in the home. Y.T. later provided Molina the information for the other adults and more complete information for other references.
Molina received Y.T.'s physician form on June 21, 2017. The form stated the physician did not believe Y.T. was qualified to parent a child due to her medical condition and Y.T. needed to follow up with appointments to stabilize her diabetes. Molina contacted the clinic and spoke with the nurse at the clinic. The nurse told Molina Y.T. had uncontrolled hypertension and uncontrolled diabetes and, at her doctor's visit on June 22, 2017, had numbness in her feet, a potential side effect of diabetes. Y.T. also had cataracts in both eyes. The nurse explained to Molina the diagnostic basis for describing Y.T.'s diabetes as uncontrolled.
Y.T.'s home study was denied on September 18, 2017 due to Y.T.'s medical condition and because she was not following through with her doctor to stabilize her diabetes. In addition, R.T.B., who applied to co-adopt M.C., did not attend some of his school, medical, and therapy appointments, and had not taken a parental role in his life, a requirement for those wishing to adopt.
Molina could not recall having a discussion with her supervisor about whether Y.T.'s health was actually affecting Y.T.'s ability to care for M.C. Molina also could not recall ever seeing a home study approved without a favorable report from the applicant's doctor. She believed that Y.T.'s health issues and lack of follow-through on those issues posed a risk to M.C.'s long-term care. C. R.T.B.'s Testimony
Y.T. had lived with R.T.B. for 20 years, and M.C. had lived in R.T.B.'s home since he was 10 days old. Y.T. pays rent to R.T.B.
R.T.B. takes care of M.C. in the afternoon while Y.T. is at work. R.T.B. feeds, bathes, and puts M.C. to bed. Before Y.T. took her most recent job, R.T.B. provided caretaking such as changing M.C.'s diapers, feeding him, and bathing him. R.T.B. has her own cleaning business with flexible hours.
R.T.B. wanted to help Y.T. by being a co-applicant with her to adopt M.C. R.T.B. testified that M.C. is "a blood relative" and "has been living in the home for so long that it would be impossible for me to let him live apart from us." R.T.B. testified she loves M.C. "with all my heart" and "[h]e is our son." R.T.B. believed M.C. would be upset if removed from the home.
R.T.B. had no present concerns about Y.T.'s health and did not believe Y.T.'s diabetes interfered with Y.T.'s ability to care for M.C. R.T.B. is the caretaker for her father (maternal great-grandfather) and he also is diabetic. R.T.B. was concerned when Y.T. was having vision problems, but they were not related to diabetes. Although maternal great-grandfather lived in the home, M.C. has no contact with him. R.T.B. did not see any problem with M.C. having unmonitored contact with maternal grandparents. O.T. is never left alone with M.C.
M.C. mainly looked to Y.T. to have his needs met because she was his mother. R.T.B. acted in the mother role when Y.T. is not home. R.T.B. helps M.C. with his homework, disciplines him, and provides financial support and a place to live.
R.T.B. had not met with M.C.'s teacher and was not aware of any problems M.C. had at school. R.T.B. had not participated in the in-home therapy sessions between Y.T. but had not been told she needed to do so. Since M.C. and Y.T. participated in therapy, M.C. has been calmer and more relaxed, and Y.T. has been better able to communicate with and control him.
R.T.B. understood if she co-adopted M.C. with Y.T., both she and Y.T. would be adoptive parents. R.T.B. understood and agreed to accept legal responsibility for M.C., and to meet his medical and physical needs, until he was at least 18 years old. R.T.B. decided to adopt M.C. when she "realized that [Y.T.] was not going to be able to achieve that on her own" and believed that by being a co-applicant, she could help Y.T. obtain approval. D. Cordova's Testimony
Cordova was an administrative manager for RFAU from December 2016 to January 2018. Because M.C. was placed with Y.T. before implementation of the RFAU guidelines in Orange County, Y.T.'s adoptive home study was not subject to some of the additional requirements of the newer approval process.
Cordova testified medical clearances are required as part of the adoptive home study process in order to ensure an applicant has the physical ability to care for the child. A co-applicant has the same medical clearance requirement.
Both the applicant's present and long-term capability are considered in the medical analysis. Cordova testified: "[I]f [applicants] have a diagnosis that can be managed with medical advisement and treatment, and . . . they can still provide the protective capacity to the child, that is part of a comprehensive assessment that we utilize when we're receiving medical information." SSA relies on the applicant's medical provider for that assessment. If an applicant is deemed not medically qualified by the treating physician, SSA cannot waive the requirement of a medical clearance. The applicant has the responsibility to provide further information to counter the original medical assessment.
For applicants and co-applicants, SSA must assess "the willingness and readiness of the applicant to be able to parent the child, which includes [the applicant's] current and past relationship with that child." Applicants are required to occupy a parental role with the child. The requisite commitment to the child is demonstrated through an applicant's interviews and actions. E. Y.T.'s Testimony
Y.T. testified she was 58 years old and had cared for M.C. for about four years, since he was 10 days old. About four months before testifying, she got a job cleaning banks to provide for M.C. Before then, she was not employed because she had dedicated herself to taking care of M.C. Once M.C. goes to school, Y.T. plans on working more. R.T.B. cares for M.C. while Y.T. is at work.
Y.T. works part-time and is paid $300 every two weeks. R.T.B. helps her financially, and Y.T. receives $400 per month in public assistance for taking care of M.C. Y.T. pays R.T.B. $300 per month in rent and has about $200 in additional monthly expenses. Y.T. testified she could provide for M.C. even without the $400 per month in assistance she received for M.C.'s expenses.
Y.T. attended therapy with M.C. for about a year. She learned in therapy how to deal with M.C.'s screaming. M.C. attends a Head Start program three hours a day, five days a week. Y.T. drives M.C. to school, helps him with his homework, and addresses his behavioral issues. M.C. has friends at school and in his neighborhood with whom he plays daily. Y.T. takes M.C. to the park a few times each week. She disciplines M.C. by talking with him.
Y.T. wants to adopt M.C. because she feels as though she is his mother. She believes she is able to take care of M.C.
When asked about her health conditions, Y.T. testified, "I'm fine." She has had diabetes for 28 years and has been taking insulin by injection daily for the past 10 years. She sees her doctor every six months for diabetes and her last doctor's visit was in December 2017. She tests her blood sugar level three times a day. If her blood sugar is too low, she eats something; if her blood sugar level is too high, she does nothing. Y.T. testified she has no side effects from her diabetes.
In June 2017, Y.T. took steroids for an eye that was closing. An ophthalmologist told her the eye trouble, which resolved itself, was not a result of her diabetes. She has had no other medical conditions.
Y.T. visited her doctor in June 2017 because she had the flu. At that time, the doctor did not say anything about her diabetes. Her diabetes does not affect her ability to work and does not cause lack of energy.
Y.T. completed all of the adoption paperwork and cooperated with the social worker but was never told why her application to adopt M.C. and the prior home study were denied. A social worker never met with Y.T. to go over the adoption application. R.T.B. applied as a co-applicant to adopt M.C. because she is his aunt.
Y.T. denied telling the social worker R.T.B. takes M.C. to visit maternal grandfather. Although O.T. did on one occasion transport M.C. to a court hearing, O.T. is never allowed to babysit him. Maternal grandfather does come to the house to visit maternal great-grandfather but has no contact with M.C. during those visits. M.C. told Y.T. that he saw his biological mother once while visiting paternal uncle.
The court asked Y.T. what she wished for M.C. She answered: "I wish for [M.C.] to be happy either by my side or with somebody else, and for him not to be harmed." The court asked Y.T. what she wanted between the alternatives offered. She answered: "I want him with me. I am not the mother. . . . I didn't give him birth, but I want him with me, and I want the best for him."
IV.
The Juvenile Court's Ruling
After counsel gave closing argument, the juvenile court rendered its decision to order removal. The court explained the basis for its decision in a thorough and careful, yet ultimately moving, statement on the record.
The court began by stating: "This is a case that has caused the court to evaluate and re-evaluate again the evidence that was presented in court and read and consider the reports that have been offered and also, as the court has indicated, the court has taken judicial notice and has reviewed the case files. [¶] The court would note that the standard that the court applies in this instance is one of the best interests of the child. . . . [¶] The child was born drug exposed without prenatal care. . . . The child was placed with [Y.T.] upon discharge from the hospital and has remained with her to this day. Society asks tremendous things of caretakers and people like [Y.T.] [She] has given all her heart to this case. [¶] . . . I think one of the aspects that makes this case particularly difficult is the brute fact of [Y.T.]'s love for this child. That is beyond question even to the point where she has been criticized for putting the interests of [M.C.] ahead of her own interests. She has devoted years of her life to [M.C.]. Nothing that this court will say, that will order, that this court will enter will change those years and the benefits that [M.C.] will carry with him for the rest of his life because that unqualified love and affection will sustain and nurture him."
The court noted Y.T. was a presumed adoptive parent and extolled her accomplishments in participating in counseling, dealing with her family issues, and her willingness "to do everything within her power to parent and nurture this child." The court concluded M.C. was bonded to Y.T., "perhaps more than a child of four and a half normally is," and Y.T. had sought services for M.C.
The court candidly admitted its personal preference might be to allow M.C. to stay with Y.T. But, the court explained, it had an obligation to consider the facts and make a decision based on M.C.'s best interests. In that regard, the court expressed several concerns.
One concern was the presence of maternal grandfather whose "presence in the home of [R.T.B.] and [Y.T.] and ultimately [M.C.] is something that basically undermines that setting." Maternal grandfather, who was the subject of molestation allegations, had "significant contact" because he visited his father, maternal great-grandfather, at R.T.B. and Y.T's home every week. On one visit, maternal grandfather shouted so loudly at M.C. that a neighbor called the police. The court was concerned that Y.T. was not able to serve M.C.'s bests interest by preventing unsupervised contact with maternal grandfather. In addition, R.T.B. took M.C. to visit maternal grandfather.
Another concern was that O.T. was "a significant player in the household." O.T. had outstanding warrants and unresolved criminal issues, and there was "potential friction" between her and Y.T. The court was also concerned that maternal great-grandfather, who was on the terrorist watch list, lived in the home and on one occasion had dragged M.C. down the hall.
The court also expressed concern over Y.T.'s health issues. Y.T.'s doctor would not recommend Y.T. as an adoptive parent. It was questionable whether Y.T.'s diabetes had stabilized and Y.T. did not follow through when her blood sugar level was high. Although the court was concerned with Y.T.'s health issues, had they been the sole issue in the case, the court would have ordered services for Y.T. rather than order M.C.'s removal. The court expressed concern that Y.T. was burdened with the care of her own father (maternal great-grandfather).
Balanced against those concerns was that placement with paternal uncle would give M.C. "continued contact" with his brothers, who had been adopted by paternal uncle's parents, the paternal grandparents. The court concluded: "[The] court balances the short-term impact of [M.C.] and the harm he is going to suffer, if he is going to suffer by this removal, against his long-term interests. And his long-term interests in maturation and development in a safe environment, safe and secure from particularly the influence, longer term influences of the grandfather are something that ultimately this case, the evidence . . . persuades the court that SSA has carried its burden of proving by a preponderance of the evidence that the change in placement is appropriate. [¶] It's not something the court takes any joy in. The court is concerned that the transition be structured, that it be structured to mitigate the impact on [M.C.]"
To Y.T., the court offered these words of assurance and gratitude: "The court is going to laud [Y.T.] It will tell her, because [M.C.] does not have the words, of their gratitude that is owed to you, debt of gratitude. You'll always have been a part of his life. It's anticipated as the transition period moves forward you'll continue to be part of his life. You'll carry him in your heart forever. Likewise, he will carry you in his heart forever. [¶] [The] court wishes that there was something the court could say or do that would take away the pain. I know there's not. But I know what will be solace to your heart is the notion that [M.C.] will grow to be strong, to be confident, and to be thankful not only for your contributions that you have made through the first four and a half years of his life giving him the start that nobody else could have and that he will grow in this new environment to reach his full potential."
DISCUSSION
I.
Background Law
Section 366.26(n) provides for a hearing to review an agency's decision to remove a child from the home of a prospective adoptive parent. "The addition of subdivision (n) to section 366.26 was intended to address a legislative concern that an unjustified agency action removing a minor from a long-term caregiver might not be in the child's best interest." (State Dept. of Social Services v. Superior Court (2008) 162 Cal.App.4th 273, 284.) "At the hearing, the court shall determine 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(n)(3)(B).)
In determining the child's best interest, the juvenile court considers the current circumstances and the circumstances that prompted removal. (State Dept. of Social Services v. Superior Court, supra, 162 Cal.App.4th at p. 286.) "It is well recognized that dependency proceedings, despite statutory guidelines, may be protracted and, when delays occur, it is likely that the circumstances of the case change." (Ibid.)
SSA bore the burden of proving by a preponderance of the evidence that M.C.'s best interest required removal from Y.T. (T.W. v. Superior Court (2012) 203 Cal.App.4th 30, 45.) We review the juvenile court's order for removal and change of placement for abuse of discretion and review the best interest finding for substantial evidence. (In re M.M. (2015) 235 Cal.App.4th 54, 64.)
II.
The Juvenile Court Did Not Err by Ordering Removal of
M.C. from Y.T.'s Care.
Y.T. argues the juvenile court abused its discretion by ordering removal of M.C. because substantial evidence did not support a finding that removal is in M.C.'s best interest. Y.T. stresses that M.C. had lived with Y.T. for all but the first 10 days of his life, M.C. was deeply bonded with Y.T. (who was the only mother he had ever known), Y.T. loved M.C. and viewed him as her son, M.C. was thriving in Y.T.'s care, Y.T. provided for M.C. and made sure his medical needs were met, Y.T. helped M.C. with his school work, and M.C. had neighborhood and school friends. Y.T. asserts that no evidence was presented that her diabetes or any of her health issues impaired her ability to take care of M.C.
But the evidence presented also showed, as the trial court found, that Y.T. was not able to prevent M.C. from having contact with maternal grandfather, maternal great-grandfather, and O.T., each of whom posed a degree of risk to M.C. In particular, maternal grandfather, who visited the house weekly, suffered from alcoholism, was the subject of molestation allegations against M.C.'s mother, and had on one occasion yelled so loudly at M.C. that the police were called. There was evidence that R.T.B. took M.C. with her to visit maternal grandfather. Y.T. had been unable to prevent those contacts despite being admonished by at least two social workers about them.
Evidence was presented of Y.T.'s health issues, which included uncontrolled diabetes, uncontrolled hypertension, and eye problems. In placing a removed child with a relative, Welfare and Institutions Code section 361.3, subdivision (a)(8)(B) states "a physical disability, such as blindness or deafness, is no bar to the raising of children, and a county social worker's determination as to the ability of a disabled relative to exercise care and control should center upon whether the relative's disability prevents him or her from exercising care and control." The juvenile court was careful not to place too much importance on Y.T.'s medical assessment in which the doctor would not recommend Y.T. as an adoptive parent. But that evidence is in the record and it supports the best interest finding. Testimony by Molina and Cordova established the negative medical assessment likely means that SSA would never approve Y.T. as an adoptive parent. Further, the juvenile court was concerned Y.T.'s diabetes had not stabilized and Y.T. did not take the necessary actions when her blood sugar level was too high. The court stated that it would have ordered services for Y.T. instead of ordering removal if her health were the sole issue.
The juvenile court correctly considered M.C.'s long-terms interests, and evidence was presented that M.C.'s pending placement with paternal uncle would best serve those interests. Although paternal uncle did not yet play a parental role, he had maintained a strong interest in having M.C. placed in his care. Placement with paternal uncle would allow M.C. to live with and develop bonds with his brothers, who had been adopted by paternal grandparents. M.C. benefitted from and enjoyed visits with paternal uncle and his siblings. Akau testified that, as a general principle, sibling bonds are particularly important for adopted children. Akau also was confident, based on the swiftness with which paternal uncle completed the approval requirements, that he would continue to do whatever is necessary to adopt M.C. If granted placement, paternal uncle intended to maintain contact between M.C. and Y.T.
Y.T. argues this case is similar to In re M.M., supra, 235 Cal.App.4th at page 54. In that case, the Court of Appeal vacated an order removing a child from the caregiver with whom the child had lived for nearly her entirely life because there was no evidence that removal was in the child's best interest. (Id. at pp. 64-65.) The court in In re M.M. explained: "The minor had been living with appellant for nearly all of her life; comparatively, the minor had visited with the aunt on a monthly basis for six months and there was some evidence of recent overnight visits. There was absolutely no consideration of the impact of removal on the minor, despite evidence that the minor was showing stranger anxiety and looked to appellant to meet her needs." (Id. at p. 64.) Here, by contrast, there was evidence that removal would be in M.C.'s best interest and the juvenile court considered the effect of removal on M.C. Thus, the court ordered the transition to paternal uncle be structured to mitigate the impact on M.C.
The evidence in this case did indeed show that M.C. and Y.T. were bonded, loved each other, and enjoyed a parent/child relationship. That is why, as the juvenile court recognized, the decision to remove M.C. was so difficult to make.
The juvenile court in In re M.H. (2018) 21 Cal.App.5th 1296, 1299, faced the similarly difficult task of deciding whether to remove a one-year-old child from his current nonrelative foster placement and placing the child in the Minnesota home of his maternal great-aunt. Both homes were potentially beneficial to the child. The foster/de facto parents had cared for the child since birth and he was thriving in their care; the maternal great-aunt offered a biological connection and appeared willing and able to provide the child a loving home. (Id. at p. 1305.) The court concluded that continued placement with the de facto parents was in the child's best interest. (Id. at pp. 1305-1306.)
In affirming, the Court of Appeal recognized the deference owed the juvenile court in making a difficult placement decision: "Placement in this case presented an unusually difficult question. The court was faced with two good options: both the de facto parents with whom the minor had lived since shortly after birth and the great-aunt who cared for the minor appeared willing and able to provide the minor with a loving home. [Great-aunt] offered the minor important biological family connections, but the minor had already bonded with the de facto parents. . . . [T]he court was fully aware of the difficulty of the choice and, with the parties before it, was best able to make the hard call of which placement, under the circumstances as they then existed, was in the minor's best interest. The uncontroverted evidence was that M.H. was thriving in his current placement. Faced with the successful bonding of the minor with the de facto parents, and the uncertainty of how the minor would respond to removal from the parental figures he had known since birth, we cannot say that the court abused its discretion in concluding that his continued placement was in his best interest." (In re M.H., supra, 21 Cal.App.5th at pp. 1305-1306.)
Although the juvenile court's decision here was the opposite of that made in In re M.H., the application of the abuse of discretion standard in that case supports affirmance. We understand, as did the Court of Appeal in In re M.H., that the juvenile court was in the best position to "make the hard call" of deciding which placement, between two options, was in M.C.'s best interest. Substantial evidence supported the court's finding that removal was in M.C.'s best interest, and we cannot say the court's ruling was an abuse of discretion.
DISPOSITION
The writ petition is denied.
FYBEL, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.