Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Super. Ct. No. DP009023 Carolyn Kirkwood, Judge.
Law Office of J. Michael Hughes and Lawrence A. Aufill for Petitioner.
No appearance for Respondent.
OPINION
MOORE, J.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Real Party in Interest Orange County Social Services.
Law Offices of Harold LaFlamme and Tina Stevens for the Minor.
Petitioner, maternal grandparent, and de facto parent, Abigail C., contends the juvenile court erred in finding it was in the best interest of the minor to be removed from her home under Welfare and Institutions Code section 366.26, subdivision (n). (All statutory references are to the Welfare and Institutions Code.) We deny her petition.
I
FACTS
The minor, age 5, suffered from withdrawal symptoms at birth. His mother used heroin throughout her pregnancy; her last known use was two days prior to his birth. The mother left the hospital following the birth and prior to the arrival of the Orange County Social Services Agency (SSA). Her whereabouts became unknown, as are the whereabouts of the minor’s father. He was placed with his maternal grandmother who became the prospective adoptive parent. The adoption finalization was scheduled for May 24, 2007.
On May 4, 2007, a child abuse report was filed alleging that the grandmother’s son, who is the minor’s uncle Sergio, had sexually molested the minor’s half-sibling, Alex. The adoption finalization was taken off calendar.
SSA investigated and discovered that Alex is now an adult and lives outside the minor’s residence, had not only been molested when he was a child, but had also molested his cousin who does reside with the minor. Additionally, the investigator found there were allegations another uncle, Marcos, had molested the minor’s half-sibling, Sandra. There were also allegations the grandmother “was aware of this abuse two years ago and did not believe it to be true.”
On May 24, 2007, county counsel filed a notice of intent to remove the minor from the grandmother. The reasons given included the fact the child abuse investigator substantiated the allegations contained in the May 4 child abuse report, and learned of a third victim. On October 1, 2007, the grandmother filed an objection to the removal. The hearing was commenced on January 23, 2008.
At the hearing, the grandmother admitted she knew a year earlier there was a concern that Sergio molested Alex. At the same time, she also learned there was information that Marcos had abused Sandra. She was specifically questioned whether or not she believed Sergio capable of molesting the minor, and answered: “I don’t think so. He loves him as a father.”
Senior social worker Julie Akau also testified at the hearing. She works in “the adoption focus unit of specialized family services.” She was assigned to this case “shortly after parental rights were terminated,” which was “about three years ago.”
Akau explained why she was concerned about the grandmother’s ability to protect the minor: “When the emergency response worker to the C.A.R. [child abuse report] that was filed on May 4 spoke with [the grandmother], [the grandmother] continued to deny any allegations of Sergio possibly molesting [the minor]’s brother or any allegations of her own son, Marcus, molesting other members of the family.”
The grandmother was given sexual abuse counseling from both a focus program at U.C.I. and therapist Kathy Ramos. Because there was a June 25, 2007 court order that the minor have no unauthorized contact with his uncle Sergio, the grandmother’s son, Akau gave instructions to the grandmother: “I told her there were two rules that I had: One, that if she needed to rely on her son for transportation to take [the minor] to a doctor or dentist appointment, that she must be present, that he was not to ever transport him alone; and, two, that if he were to visit the home, that she was present, that [the minor] was not to ever have contact with him unsupervised.”
With regard to contact between the minor and the minor’s half brother, Alex, Akau told the grandmother: “I explained to her that the contact between Alex and [the minor], and if there were any, was to be monitored. She told me Alex never visited the home. She hadn’t seen him in years. And in regards to Marcos, she told me that he no longer visits the home, either, and lives far away.”
Ramos contacted Akau on September 13, 2007 to say that the grandmother “was using a belt and hitting it on a bed in order to threaten [the minor] to behave. She was concerned that there was not very much food in the refrigerator.” Ramos called again on September 26, 2007, “Again, Ms. Ramos called because she was concerned. She had gone to have an appointment with [the grandmother], and [the grandmother] was not home, and neither was the child, but Sergio was there, and Sergio had told Ms. Ramos that he had walked [the minor] to school, and that he would be returning, himself, shortly, to complete the volunteer hours at the school that were required by the school.” Ramos explained that Sergio walks the minor to school alone. Ramos also said that Sergio was present three or four times in the home, and “she was concerned that the court order may not be abided by properly.”
Akau explained her concerns: “It alarmed me, because it showed me that the grandmother did not believe that Sergio could molest [the minor] or any other child. And she had placed all of those children at risk in that classroom as a result of designating Sergio as the person to volunteer those school hours every month.” She conferred with supervisors and the home study worker. They determined the minor was at risk for possible sexual abuse because he was not supervised properly. The minor was removed from the home on September 26, 2007.
When the juvenile court ruled, the judge stated: “[W]e have conducted a hearing pursuant to section 366.26, [subd.] (n), and the court has exercised its discretion to allow grandmother to file her objection to ensure that grandmother had her day in court on this issue of the removal of [the minor]. The court has now conducted that hearing. And the court in looking at whether the child’s best interests warrants removal, I have considered the apparent deep bond that the child has with his grandmother and that the grandmother has with the child. [¶] I have also considered the fact that the child has been in the home of his grandmother since he was just a month or so old. This is really the only home that [the minor] has known. On the other hand, looking at the evidence that has been received in this case and the credibility of witnesses, well, let me just comment first on the credibility of witnesses. [¶] With regard to Sergio, the court agrees with Ms. Stevens that Sergio was not credible on the stand. The court finds that his frequent answers that he doesn’t remember or that he doesn’t have a good memory, to be disingenuous and offered in an attempt to avoid answering questions regarding his living and sleeping arrangements in his mother’s home. [¶] Additionally, the court finds that he was not credible in other areas, such as when he testified that he and his mother had never talked about the allegations that were made against him by Alex. The court finds that just not to be credible. [¶] In looking at whether or not there was an intentional violation of the letter of the order of the agency or the spirit, in looking at that question the court agrees with Mr. Hughes that certainly the agency could have made it crystal clear to the grandmother exactly what contact was to be allowed and what contact wasn’t. There was room for misunderstanding. [¶] But the court believes at this point that I am not just required to look at whether there was an intentional violation of the rule, but actually whether there is a risk posed to the child by remaining in that home and whether removal is in his best interests. [¶] . . . [¶] I am troubled by the fact that grandmother was not forthcoming that Alex and Sergio shared a bedroom. [¶] In looking at the allegation of molestation of Alex, I have considered what Ms. Stevens has pointed out that Alex, later as an adult, has sustained substantiated allegations of child molest himself. [¶] In looking at the motive there for Sergio, the court finds that it appears that he does have an unusual interest in the minor, . . . being involved in his school and either living at the home in violation of the social worker’s direction in order to stay close to [the minor], or coming over to the house almost daily to walk him to school, is troubling to the court. [¶] . . . [¶] So the court does overrule the objection filed by the de facto parent and finds that the best interests of the child does warrant removal of the child from the grandmother’s care. The court does terminate de facto status due to a sufficient change of circumstances in this case.”
II
DISCUSSION
The grandmother contends the juvenile court erred in finding it was in the best interest of the minor to remove him from her home. She requests that her de facto parent status be reinstated.
“A prospective adoptive parent has the right to a hearing before SSA can remove a child from his or her home unless there is an immediate risk of harm to the child. . . . (§ 366.26, subds. (n)(3)(A) & (B).)” (In re Lauren R. (2007) 148 Cal.App.4th 841, 848-849, fn.3.) “At the hearing on an intent to remove the child, the agency intending to remove the child must prove by a preponderance of the evidence that the proposed removal is in the best interest of the child.” (Calif. Rules of Court, rule 5.727(g).)
The agency has exclusive custody, control and supervision of the minor, including decisions on adoptive placement and temporary care, after he was freed for adoption and referred for adoptive placement. (§ 366.26, subd. (j).) But there is judicial review in that there is “a legislative intent that the juvenile court is limited to reviewing whether [SSA] abused its discretion in placing the minor or in determining that the placement, once made, remains appropriate. [Citation.] In other words, the court must assess whether [SSA] acted arbitrarily and capriciously, considering the minor’s best interests. [Citation.]” (Department of Social Services v. Superior Court (1977) 58 Cal.App.4th 721, 734.)
When a determination is committed to the sound discretion of the juvenile court, “the trial court’s ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. [Citations.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) The reviewing court will not disturb the juvenile court’s determination unless it exceeds the limits of legal discretion by making an arbitrary, capricious, or patently absurd decision. (Ibid.)
The facts here reveal there was no abuse of discretion on the part of the juvenile court. The grandmother demonstrated bad judgment and appeared to be in denial regarding the extent of molestation within her family. The juvenile court’s determination removal was in the best interest of the minor because the grandmother can not be depended upon to protect the minor from the obvious risk of molestation is well supported by a preponderance of evidence in the record.
III
DISPOSITION
The petition for writ of mandate is denied.
WE CONCUR: SILLS, P. J., BEDSWORTH, J.