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Evelyn R. v. Superior Court (San Bernardino County Department of Children's Services)

California Court of Appeals, Fourth District, Second Division
Jul 22, 2008
No. E044890 (Cal. Ct. App. Jul. 22, 2008)

Opinion

NOT TO BE PUBLISHED

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Marsha Slough, Judge. Petition denied. Super. Ct. Nos. J169819 & J169820.

Harold Gun Lai, Jr., for Petitioner.

No appearance for Respondent.

Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Real Party in Interest.


OPINION

RICHLI J.

Evelyn R. (Petitioner) is the maternal cousin of nine-year-old D.W. and eight-year-old B.W. Petitioner filed a writ petition challenging the juvenile court’s denial of her request for de facto parent status and removing the children from her care pursuant to Welfare and Institutions Code section 366.26, subdivision (n)(3). Petitioner contends that (1) the juvenile court erred in finding that she did not meet the requirements of de facto parent status; (2) she met the criteria for de facto parent status and, therefore, she had standing to participate in the hearing and a right to counsel; (3) the petitions of intent to remove the children were premature; and (4) the court erred in finding it was in the best interests of the children to be removed from Petitioner. For the reasons provided below, we reject Petitioner’s challenges and deny her petition.

All future statutory references are to the Welfare and Institutions Code unless otherwise stated.

I

FACTUAL AND PROCEDURAL BACKGROUND

In June 2000, then three-month-old B.W., then 21-month-old D.W., and their half siblings, I.E. and N.E., came to the attention of the San Bernardino County Department of Children’s Services (DCS) after B.W. was hospitalized due to an unexplained subdural hematoma. B.W.’s treating physician opined the injuries were consistent with shaken baby syndrome. B.W. required a shunt implanted in her head due to accumulated fluid on her brain. Following the surgery, B.W. required “neurological and pediatric follow-up but no specialized care or further treatment.”

I.E. and N.E. are not parties to this appeal.

Section 300 petitions were filed on behalf of the children; the children were eventually removed from their parents. Upon removal, D.W. was placed with her paternal aunt and uncle, Jamie and Stanley J., and it was anticipated that B.W. would be placed in the same home once released from the hospital. However, on July 12, 2000, Jamie requested removal of D.W. Jamie also requested that B.W. not be placed with her due to her travel requirements and threats she had received from the children’s mother. Petitioner requested placement of all four children. Petitioner noted that she was about to adopt a four-year-old boy who was born drug exposed. Relative questionnaire and interest forms were sent to Petitioner. The social worker intended to place the children in Petitioner’s care once clearance was completed.

The social worker conducted a home visit with Petitioner on August 2, 2000. The social worker reported that Petitioner was nice and articulate; she was married, had three children, and was in the process of adopting her foster son; and that she possessed a license for daycare and foster care. The social worker observed that Petitioner’s home was “clean but crowded with family that already resides [t]here.” Petitioner recognized that it was not possible to have all four children placed with her in her current home. Petitioner indicated that the family had made an offer on a larger home and hoped to move before the end of 2000.

Both D.W. and B.W. were meeting their developmental milestones and neither had current mental or emotional problems. Medically, B.W. was normal, but suffered from reflux (a tendency to throw up) for which she received medication. By September 2000, the children were moved to a new foster home with Mr. and Mrs. G. B.W. continued to take medication for reflux, had begun to suffer from asthma, and began to exhibit developmental delays. DCS was pursuing referrals to the Healthy Start Program and the Inland Regional Center. D.W. did not exhibit any current medical problems.

As of November 2000, Petitioner still had not moved into a larger residence to accommodate the children. In addition, Petitioner had not completed or submitted the required relative questionnaire or completed clearance.

At the contested jurisdictional/dispositional hearing on May 22, 2001, the court found the allegations true in the amended petition and services were ordered for the parents. However, the parents failed to reunify with their children and their parental rights were eventually terminated.

From September 7, 2000, until February 21, 2004, B.W. and D.W. resided with their foster parents, Mr. and Mrs. G. While in the G.’s home, the children were well cared for physically, emotionally, and educationally. They experienced good heath, were current on their medical and dental checkups, and B.W.’s shunt continued to function properly with regular monitoring. B.W.’s asthma was described as “mild.” In addition, B.W. was described as a smiling, curious, and an active child who appeared happy. Her foster parents reported that B.W. was talking, walking, and was a fast learner. D.W. was also described as a fast learner; she could dress and undress herself with minimum supervision. Behaviorally, D.W. had experienced a number of temper tantrums, however, the tantrums were decreasing. Both children had no discernible emotional problems. By January 2003, D.W. continued to progress with her language development and B.W. was nearly potty trained. Both children appeared to be bonded with Mr. and Mrs. G.

From October 2003 through January 2004, B.W. continued to make physical and developmental gains; she also had made significant gains in her social, verbal, and academic skills. She had begun to enjoy preschool and was fully potty trained. She was described as active and appeared to sleep well. Medically, B.W. and D.W. had recently suffered from an upper respiratory infection and were prescribed antibiotics. D.W. was also developing well and seemed happy and closely attached to her foster mother. She was attending school with minimal separation anxiety and was doing well in kindergarten.

Petitioner made her first appearance in these proceedings on November 21, 2001. As of May 2002, B.W. and D.W.’s half brother, I.E., continued to reside with Petitioner in their new home in Pixley, California. However, by June 2003, I.E. had begun to destabilize in Petitioner’s care. He was acting out at home and having difficulty in school. Despite the social worker’s assistance, Petitioner had not taken I.E. to therapy for his abandonment issues and rage behavior. The social worker placed I.E. in another foster home in Banning; however, I.E. was later returned to Petitioner’s care.

Because Mr. and Mrs. G were not interested in adopting the children, and Petitioner and her husband were willing to consider adoption of them to keep all of the siblings together, the children were placed with Petitioner on February 21, 2004. According to the adoption assessment dated May 14, 2004, both children were appropriate for adoption due to their ages and the fact that Petitioner and her husband were willing to adopt them. Petitioner reported that B.W. had difficulty holding onto things, such as a cup; that she was not yet potty trained and had to wear diapers; that she had anger issues and temper tantrums; and that she was nervous and scared easily. Petitioner also suspected that B.W. needed speech therapy. In regard to D.W., Petitioner reported that she would pinch and bite kids at school; that she also had anger issues and temper tantrums; and that she was extremely difficult to get up in the morning for school. Petitioner further noted that she had initiated individual educational plans for D.W. and that she believed D.W. needed a specialized classroom because she had reportedly been diagnosed with dyslexia. It was noted that both children were receiving social security benefits for mental retardation. The social worker also noted that the children had visited with Petitioner since 2002 and that Petitioner’s family demonstrated a commitment to the children by traveling long distances for court hearings.

Up until the children were placed with Petitioner, they had maintained the same social worker, Alexis D., for a substantial period of time. The adoption assessment was completed by social worker Paula K. (SW Paula), who did not appear to have any prior contact with the children. SW Paula continued as the social worker through removal of the children from Petitioner’s care.

In July 2004, a request had been made to Tulare County, where Petitioner resided, to complete an adoptive home study and provide courtesy supervision for the children. It was hoped the adoption would be finalized by May 2005. However, by August 2004, it appeared that the children had destabilized. Both children were reportedly anemic; B.W. had asthma and was on a nebulizer; B.W. suffered from frequent headaches; B.W. was not enrolled in school, but was being tested for special services; and D.W. was repeating kindergarten and Petitioner hoped to place D.W. in a special school. Petitioner reported that the children were mentally retarded and delayed in all areas of their life; that both functioned like one year olds; and that both needed constant monitoring and supervision. Petitioner also reported that both of the children wore diapers at night and that B.W. occasionally had to wear them during the day. D.W. was described by Petitioner as having difficulty discerning between reality and fantasy, and that the child would resort to “extended tantrums, including screaming, head-banging, and destruction of property” when she did not get her way. SW Paula continued to note that Petitioner and her family were committed to caring for the needs of the children and had done a wonderful job in stabilizing them in their home and advocating for their special needs.

In January 2005, two social workers from Tulare County visited Petitioner’s home and met the children. D.W. told the social workers that she was hit when she did something wrong. This information was forwarded to SW Paula. Accordingly, SW Paula and another social worker visited the home on February 11, 2005, to investigate the allegations. Petitioner and her husband denied hitting the children and explained that the children got “confused.” SW Paula personally met with D.W., who again indicated that she had been spanked by Petitioner and her husband. SW Paula reminded the couple of DCS’s policy against corporal punishment and they again denied spanking her. SW Paula concluded that the children were not at risk and believed it was in their best interests to continue to reside in Petitioner’s home.

By November 2005, issues arose with the completion of the adoption study by Tulare County. Petitioner reported that the family completed paperwork and delivered it to Tulare County, however, Tulare County reported that they had not received the paperwork. The family had also failed to provide Tulare County with the adoption study completed by San Diego County. Nonetheless, the children were maintained in Petitioner’s home, and on April 25, 2006, Petitioner and her husband were appointed as educational representatives for D.W.

In May 2006, SW Paula noted that the children continued to suffer from their developmental, educational, mental, and emotional issues as reported by Petitioner. SW Paula also noted that Petitioner continued to have problems with the completion of the home study. Petitioner failed to complete the necessary paperwork. SW Paula opined that after several conversations with Petitioner, the family appeared to be constantly busy, bordering on chaotic, and that Petitioner sounded overwhelmed and disjointed during phone calls.

By November 22, 2006, Petitioner still had not submitted a completed adoption application. When a social worker from Tulare County went to Petitioner’s home to obtain the application, the family informed the social worker that D.W. had taken the paperwork to school and promised to get the paperwork from the school. On November 2, 2006, the Tulare County social worker informed SW Paula that she would be closing the agency’s request for an adoption home study because of noncompliance by the family. By February 2007, Tulare County sent notice that they would no longer provide courtesy supervision to Petitioner’s family because the family was not cooperating. On February 16, 2007, SW Paula met with the family and undertook the necessary steps to complete the paperwork.

SW Paula determined that the children were not current on their medical examination and B.W. was not in school. Petitioner claimed that B.W. was being homeschooled; however, when B.W. was questioned in April 2007 as to whether or not she knew her numbers or alphabet, or if she knew how to write her name, she stated she did not. In response, Petitioner and her family claimed that B.W. had problems distinguishing between a truth and a lie, and would often tell stories. They also claimed that she had special needs and, therefore, decided not to send her to kindergarten because they were afraid other kids would tease her. On June 6, 2007, Petitioner and her husband were appointed educational representatives for B.W.

On September 27, 2007, a nonappearance review hearing was held, requesting the court set a special hearing to address the issue of B.W. not being in school. The court set the hearing and ordered Petitioner and her husband to appear and provide evidence to support their claim that B.W.’s special needs prohibited her from attending school.

On October 29, 2007, the court ordered Petitioner to provide proof of attendance or medical notes if B.W. was absent from school, and ordered a written report from B.W.’s doctor if any problems occurred from the shunt in her head.

According to two notices issued by the Visalia Unified School District, the school district set a school attendance review board hearing for October 31, 2007, concerning the attendance of both children. A letter from the children’s school to SW Paula indicated that for the second half of the 2005/2006 school year, D.W. had seven excused absences, two unexcused absences, and one excused tardy; and for the 2006/2007 school year, D.W. had 16 excused absences, 10 unexcused absences, one excused tardy, and 20 unexcused tardies.

By November 2007, SW Paula had serious concerns with Petitioner and her husband, which may have necessitated a placement change. Petitioner continued to fail to produce the requested documents to complete the adoption paperwork. Additionally, Petitioner failed to provide documentation of B.W.’s homeschooling, despite numerous requests from SW Paula. At that time, B.W. was seven years old and had never attended school while in Petitioner’s care. Moreover, Petitioner provided inconsistent statements concerning the children’s medical treatments and developmental progress. B.W.’s physician also indicated suspicion with Petitioner’s care of her adopted son. SW Paula also noted in detail as to the status of B.W. and D.W. prior to placement with Petitioner where all reports indicated good development and health, in contrast to reports of Petitioner after the children were placed with her. The inconsistencies in Petitioner’s statements of the children were also noted by many of the evaluators, teachers, and other professionals involved with the children. SW Paula opined that the current placement was no longer appropriate, based on the many inconsistencies between Petitioner’s statements regarding the children’s progress and those reported by professionals.

SW Paula also noted that I.E. and Petitioner’s adopted son had issues with school attendance. I.E. had missed “a large number of school days” and Petitioner had removed her adopted son from school and was reportedly homeschooling him. In addition, Petitioner had three other children placed in her care: a four month old, a 16 month old, and a four year old.

On November 14, 2007, notices of intent to remove B.W. and D.W. from Petitioner’s care were filed. Petitioner and her husband thereafter filed their objections, noting that they had provided a good home for the children and that the children would suffer mentally and emotionally if removed. They blamed many of the issues on SW Paula and her involvement in the case.

On November 30, 2007, Petitioner and her husband filed de facto parent status requests, along with supporting letters of recommendation from friends and family. The requests were supported by statements from the couple indicating that the children were with them all day long and described activities engaged in by the family. The statements also indicated the issues the children allegedly suffered from, including B.W. urinating on herself and rocking herself to sleep; B.W. having “fallen into the category of mental retardation”; and D.W.’s temper tantrums and complaining of headaches. DCS subsequently filed an opposition, arguing that neither Petitioner nor her husband had acted as parents to the children in neglecting their medical and educational needs.

The hearing on the de facto parent request and on the removal of the children was held on December 27, 2007. Petitioner and her husband were present. The court allowed the couple to present extensive argument on the issue of their de facto parent request, ultimately denying the request. The court then considered the notice of removal, allowing Petitioner and her husband to present argument and evidence, including testimony from the couple’s daughter. The court concluded that removal of the children from Petitioner’s care was in the best interests of B.W. and D.W.

II

DISCUSSION

A. Request for De Facto Parent Status

“The concept of de facto parent has been judicially created to recognize limited rights in dependency cases for a person who has been found by the juvenile court to have assumed, on a day-to-day basis, the role of a parent, fulfilling the child’s physical and psychological needs.” (In re Leticia S. (2001) 92 Cal.App.4th 378, 381; see also Cal. Rules of Court, rule 5.502(10).) “The purpose of conferring de facto parent status is to ‘ensure that all legitimate views, evidence and interests are considered in dispositional proceedings involving a dependent minor.’ [Citation.]” (In re Merrick V. (2004) 122 Cal.App.4th 235, 256.) For individuals who meet those requirements, de facto parent status affords some, but not all, of the rights ordinarily reserved to parents in dependency proceedings, including the right to notice and to be heard by the court. (Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 752; see also Cal. Rules of Court, rule 5.534(e).)

A determination of whether or not a person qualifies as a de facto parent is a factually based assessment, and “[t]he decision to grant de facto parent status depends on an assessment of the particular individual and the facts of the case.” (In re Leticia S., supra, 92 Cal.App.4th at p. 381.) Factors courts generally consider in making this assessment include: (1) whether the minor is psychologically bonded to the adult; (2) whether the adult has assumed the role of a parent on a day-to-day basis for a substantial period of time; (3) whether the adult possesses information about the minor unique from other participants in the process; (4) whether the adult has regularly attended juvenile court hearings; and (5) whether any proceeding may result in an order permanently foreclosing any future contact between the adult and the child. (Id. at p. 383, fn. 4.) All of these factors, however, need not be present. (See In re Patricia L. (1992) 9 Cal.App.4th 61, 67.) “Because a court can only benefit from having all relevant information, a court should liberally grant de facto parent status. If the information presented by the de facto parent is not helpful, the court need not give it much weight in the decision making process. [Citation.]” (Ibid.) “The party seeking de facto parent status has the burden of proving, by a preponderance of the evidence, that he or she falls within the statutory definition. [Citation.]” (In re Jacob E. (2004) 121 Cal.App.4th 909, 919.)

Because “the key to the privileged status of de facto parenthood is adherence to ‘the role of parent,’ both physical and psychological,” a person who otherwise meets the description of de facto parent may be denied that status if he or she has “betrayed and abandoned, not embraced,” the role of parent by inflicting harm on the child or by exposing the child to a risk of serious harm. (In re Kieshia E. (1993) 6 Cal.4th 68, 78.) Stated another way, when a nonparent caretaker commits “substantial harm,” i.e., harm that is “fundamentally at odds with the role of a parent,” that person has no right to de facto parent status. (In re Vincent C. (1997) 53 Cal.App.4th 1347, 1356-1357.) “[T]he court must consider whether that person’s behavior was the basis for a jurisdictional finding by the court.” (In re Leticia S., supra, 92 Cal.App.4th at p. 382; see also In re Kieshia E., at pp. 78-80 [child abuser may not intervene as de facto parent of the victim in proceedings that arose from the abuse; abuse is fundamentally at odds with role of parent].) Conversely, if the caretaker has not committed any substantial harm, and if factors supporting de facto parent status are present, the de facto parent application should be freely granted. (In re Vincent C., at p. 1358; In re Patricia L., supra, 9 Cal.App.4th at pp. 66-68.).

We review the juvenile court’s denial of a petition for de facto parent status for abuse of discretion. (In re Jacob E., supra, 121 Cal.App.4th at p. 919.) “An abuse of discretion occurs when the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. [Citation.]” (In re Leticia S., supra, 92 Cal.App.4th at p. 381.) “‘In most cases, the lower court does not abuse its discretion if substantial evidence supports its determination to grant or deny de facto parent status.’ [Citations.]” (In re Jacob E., supra, at p. 919.)

Here, it is undisputed that B.W. and D.W. were in the care of Petitioner on a day-to-day basis for an extended period of time. In addition, DCS does not dispute that the children appeared bonded to Petitioner and her family or that Petitioner possessed information about the children, which was unique from other people involved with the process. However, this alone was insufficient to demonstrate that Petitioner acted in the role of a parent.

In re Jacob E., supra, 121 Cal.App.4th 909 is illustrative. In that case, the court concluded that although the grandmother had provided a home and cared for her grandson for five years, she did not establish that she had assumed the role of parent on a day-to-day basis, fulfilling the child’s physical and psychological needs. (Id. at p. 920.) The court noted that although the grandmother had a close and loving relationship with her grandson, the record showed that the grandmother had neglected parental responsibilities, in that, the grandmother had failed to comply with court orders concerning enrolling the child in school, scheduling medical and dental appointments, and ensuring the child maintain a relationship with his older brother. (Ibid.) The court stated: “While [the grandmother] did not sexually abuse [the child], the record shows that the juvenile court had good reasons to deny de facto parent status to [the grandmother]. . . . [The grandmother] denied that she needed help in caring for [the child], resented the Department’s repeated attempts to help her with [the child], and misrepresented to [the child’s] attorney and the juvenile court that she had complied with parental responsibilities of ensuring that [the child] had routine medical and dental examinations and was enrolled in school. While [the grandmother] cared for [the child] for five years, the extended period of time that she cared for him is not determinative. The record shows that during the latter part of that period [the grandmother] no longer cooperated with the Department and her recent care of [the child] was inadequate and fundamentally at odds with the role of a parent. We therefore affirm the juvenile court’s order denying [the grandmother] de facto parent status.” (Id. at pp. 920-921.).

Similarly, Petitioner’s actions here were not indicative of one acting in the role of a parent. Petitioner, despite having the children in her care for over three years and having the aid of two counties, never completed the adoption process, failed to provide the required tests and certificates to DCS, and had neglected the children’s medical and educational needs, instead blaming DCS and the social workers. Despite being enrolled and successfully attending preschool prior to her placement with Petitioner, B.W. never attended school while in Petitioner’s care even after the court’s order. Additionally, Petitioner had failed to provide the sufficient proof to demonstrate that B.W. was being homeschooled. Petitioner also neglected the educational needs of D.W., as well as the children’s half sibling and Petitioner’s adoptive son.

Moreover, Petitioner not only neglected the children’s medical care, but created medical and developmental ailments, which had not previously existed. Prior to being placed with Petitioner, both children thrived in their foster home and neither had any significant medical or behavioral issues. We find that none of Petitioner’s actions toward the children were indicative of one who was engaged in a parental role and was interested in protecting the best interests of the children. Rather, Petitioner neglected their educational needs, inflicted upon them ailments from which they did not previously suffer, and created behavioral problems that the children had either never suffered or had overcome long before their placement with Petitioner. We find that the juvenile court did not err in denying Petitioner’s request for de facto parent status.

Accordingly, Petitioner’s unsupported contentions to the contrary are without merit. She argues that had the court granted de facto parent status, she would have been represented by counsel and would have been permitted to present evidence and argument at future hearings. However, as the juvenile court correctly found, Petitioner was not a de facto parent and, therefore, she was not entitled to be represented by counsel or present evidence and argument. In any event, Petitioner’s argument is without merit as she was permitted to present evidence, including witnesses, at the removal hearing and present extensive argument to the court.

B. Removal of Children

Initially, without citation to the record or authority, Petitioner contends that the petition to remove the children from her custody was prematurely filed because she was not “given an opportunity to present any evidence on her behalf regarding her actions as to [B.W.’s] schooling, education and medical situation” or to correct the issues.

Section 366.26, subdivision (n)(3), states: “Prior to a change in placement and as soon as possible after a decision is made to remove a child from the home of a designated prospective adoptive parent, the agency shall notify the court, the designated prospective adoptive parent or the current caretaker, if that caretaker would have met the threshold criteria to be designated as a prospective adoptive parent.”

Section 366.26, subdivision (n)(3)(A), provides that after notification of an intent to remove a child, a prospective adoptive parent may petition the court “objecting to the proposal to remove the child, or the court, upon its own motion, may set a hearing regarding the proposal.”

At a hearing under section 366.26, subdivision (n)(3)(B), 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.”

It is undisputed here that Petitioner was the designated prospective adoptive parent; hence she was entitled to notice and hearing. The record shows that DCS followed the procedural requirements of section 366.26, subdivision (n)(3). Petitioner was notified of the intent to remove the children from her home. Petitioner and her husband thereafter timely objected to the removal and a hearing was set. At the lengthy hearing, they were afforded the opportunity to present evidence, including testimony from both Petitioner and her husband, and to present closing argument. The court rendered its decision following submission of all evidence and argument. Petitioner has failed to provide any authority to support her contention that DCS or the court was obligated to give her an opportunity to correct her issues prior to filing a petition for removal. Regardless, the record shows that Petitioner was given time to correct the issues causing concern. SW Paula raised the issues causing concern to Petitioner months in advance of the removal hearing, including B.W.’s education and the completion of the adoption paperwork.

Petitioner next argues the court erred in removing the children from her care. She again incorrectly focuses on her ability to cure the issues, which had caused SW Paula concern, rather than the ultimate finding required to support removal—the best interests of the children. (§ 366.26, subd. (n)(3)(B).) Unless there is an immediate risk of physical and emotional harm to the child, 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 interests. (§ 366.26, subds. (n)(3)(B), (n)(4); California Rules of Court, rules 5.727, 5.728.) In other words, except in an emergency situation, a hearing must be held before a child is removed from the home of a prospective adoptive parent. DCS has the burden to prove by a preponderance of the evidence that the proposed removal is in the best interests of that child. (California Rules of Court, rule 5.727(g).) When the court is called upon to determine the best interests of a child, the court must consider the current status of that child. (In re Stephanie M. (1994) 7 Cal.4th 295, 322.)

The concept of a child’s best interests “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.” (Adoption of Michelle T. (1975) 44 Cal.App.3d 699, 704; see also In re Ethan N. (2004) 122 Cal.App.4th 55, 66.) A primary consideration in determining a child’s best interests is the goal of assuring stability and continuity of care. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) “‘When custody continues over a significant period, the child’s need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.’” (Ibid.)

We conclude that the trial court did not abuse its discretion when it determined it was in the children’s best interests to remove them from Petitioner’s home. (In re Stephanie M., supra, 7 Cal.4th at p. 322.) The record shows that the children were not thriving in Petitioner’s home, but rather regressing in their development. As set out above, although both children were potty trained before being placed with Petitioner, Petitioner continually placed both children in diapers and reported that they were not potty trained. In addition, even though D.W. had suffered from tantrums during her prior placement with Mr. and Mrs. G., the tantrums had dramatically decreased. However, once placed with Petitioner, it was reported that D.W. had severe tantrums and acted out by hitting and biting other children. Further, B.W., who had suffered from only mild asthma before being in Petitioner’s care, was suddenly described as having a weak immune system, suffered from headaches, and had developed a sensitivity in the area where the shunt had been placed. Moreover, although the children were thriving educationally while in the home of Mr. and Mrs. G., Petitioner consistently reported, without any supporting documentation, that both children were mentally retarded, had speech delays, and required specialized education. Petitioner indicated that B.W. was too retarded to attend school, yet failed to provide any documentation of such a diagnosis. Moreover, Petitioner failed to ensure that the children’s educational needs were being met. She claimed to be homeschooling then seven-year-old B.W., but when questioned, B.W. could not recite the alphabet. Petitioner also failed to consistently send D.W. to school, to the point that a notice of nonattendance was issued by the school district.

The evidence submitted at the removal hearing clearly indicated that Petitioner was not acting in the best interests of the children to ensure that they progressed toward becoming stable adults, but instead cast illness and issues upon them, which did not exist prior to their placement in Petitioner’s home. Despite years of progress while in Mr. and Mrs. G.’s home, once in Petitioner’s care, the children reportedly had regressed to the status of one year olds. The juvenile court correctly found that it was not in the best interests of the children to keep them in Petitioner’s care.

III

DISPOSITION

The petition for extraordinary writ is denied.

We concur:RAMIREZ P. J., HOLLENHORST J.


Summaries of

Evelyn R. v. Superior Court (San Bernardino County Department of Children's Services)

California Court of Appeals, Fourth District, Second Division
Jul 22, 2008
No. E044890 (Cal. Ct. App. Jul. 22, 2008)
Case details for

Evelyn R. v. Superior Court (San Bernardino County Department of Children's Services)

Case Details

Full title:EVELYN R. Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Jul 22, 2008

Citations

No. E044890 (Cal. Ct. App. Jul. 22, 2008)