Opinion
B164383.
10-29-2003
In re JOSIAH S., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. DIANA S., Defendant and Appellant.
Lisa M. Bassis, under appointment by the Court of Appeal, for Defendant and Appellant. Lloyd W. Pellman, County Counsel, and William Sias, Deputy County Counsel, for Plaintiff and Respondent.
Diana S. appeals from a juvenile court post-permanency hearing order which does not prohibit the Department of Family and Children Services (DCFS) from placing her medically fragile son, minor Josiah S., in a pre-adoptive home in Northern California. In addition to contesting the order, mother argues that the juvenile court made an implicit finding of the minors adoptability that was not supported by clear and convincing evidence. We conclude that the juvenile court properly exercised its discretion in not prohibiting the boys transfer to prospective adoptive parents who had prior successful experience with a medically fragile child, and who met Josiah, were apprised of his medical problems and expressed interest in adopting him. Absent any explicit finding of adoptability in the record, we reject mothers adoptability argument as lacking merit. Accordingly, we affirm.
FACTS
This is the sixth time that we revisit this case to address the merits of a juvenile court order. The last time the case was before us mother petitioned us for a writ of mandate compelling the juvenile court to vacate its November 22, 2002 order setting a permanent planning hearing regarding the minor. We denied the petition in an unpublished opinion filed March 12, 2003, and numbered B163705.
Briefly, the minor, who was born in November 1997 with multiple health problems, including serious heart and lung conditions, was removed from his mothers care as an infant, and he was declared a dependent child under Welfare and Institutions Code section 300. Josiah was initially placed in a foster home in Long Beach, but was subsequently placed in Riverside County after the initial foster parents complained about being antagonized by mother.
As we indicated in our last opinion, in September 2002, pulmonologist Terry Chin, M.D. wrote that Josiahs "best hope for prolongation of his life is a transplantation procedure, possibly combined heart and lung. Life expectancy without a transplant is grim."
Meanwhile, in August 2002, a Northern California family with an approved home study expressed interest in adopting Josiah. The family previously adopted a medically fragile child who successfully underwent a kidney transplant. CSW (childrens social worker) Eddie Adams of DCFS reported that Josiahs "lack of an adoptive family in the past combined with his diagnosis of global developmental delays have heretofore negatively impacted his prospects for receiving a heart and lung transplant. Now that an adoptive family has been identified, particularly one that has successfully provided care for a child who has received an organ transplant, his chances of receiving this transplant within a few months improve significantly." Given the new prospective adoptive family, DCFS recommended that Josiah be placed with the prospective adoptive family and that adoptive planning proceed.
Finding long-term foster care with the "specific goal of adoption" appropriate, the juvenile court ordered this plan as the permanent plan, ordered a progress report to address health issues regarding transport of the minor to Northern California, and set a progress review hearing for November 27, 2002.
At issue before us is the result from the juvenile courts progress review hearing of November 27.
According to the DCFS report for the hearing, Josiahs pediatrician, Dr. Richard Chinnock, advised CSW Adams that Josiah was "stable to travel to his adoptive home in Northern California by either car or airplane. . . . Josiahs adoptive parents have informed CSW Adams that they are planning to transport him to their home by car."
CSW Adams opined in his DCFS report, "Due to the extent of Josiahs medical and developmental problems, he would not ordinarily be considered an adoptable child. It is extremely rare that a family would be willing to adopt a child with Josiahs diagnosis, particularly one that has experience providing the intensive follow-up care necessary for a child that has received an organ transplant. Josiahs adoptive family was visiting his foster placement in August 2002 to visit another child, however once they met with Josiah they immediately bonded with him. Such a family will likely not be available in the future. Although this family has been offered several children from various counties to adopt, they have stated that they have committed themselves to adopting Josiah and are . . . saving the available room in their home for [him]. This is an opportunity that should not be wasted."
CSW Adams further opined, "With the prognosis of Dr. Chin on 4/3/02 that Josiah requires a heart and lung transplant and will likely not survive two years without one, it is all the more imperative that he be placed immediately. The adoptive family has already begun making arrangements with the physicians and medical center in their local area for Josiahs arrival. . . . As the number of heart and lung transplants are limited, the lack of an adoptive family capable of providing the intense follow-up care required, coupled with Josiah[s] additional medical/developmental problems, would likely mean he would not be considered a viable candidate. He needs to be placed immediately." CSW Adams opined that mother repeatedly demonstrated her inability to care for her sons special needs, and that she "repeatedly acted in a manner detrimental to his physical and emotional well being, including jeopardizing his various placements (The Court is again referred to all Court Reports submitted from 1998-2002)."
In a minute order dated November 27, 2002, the juvenile court ruled that its March 22, 1999 placement order remain in full force and effect.
DISCUSSION
Mother contends that the juvenile court abused its discretion in allowing the minor to be placed in the pre-adoptive home in Northern California, and that the courts implicit finding of adoptability is not supported by clear and convincing evidence. She seeks a remand "for a hearing on the appropriateness of life saving medical treatment for the minor, based upon the testimony of two independent medical opinions following their examination of the minor is required." We review the courts November 27, 2002 order for abuse of discretion.
"`The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. [Citations.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) After the termination of family reunification services, as here, placement decisions are based on the childs best interest at the time of placement. (Id. at p. 322.)
Mother contends that the juvenile court abused its discretion in allowing her sons transfer because the transfer was based on Josiahs supposed need and increased chance of eligibility for a heart and lung transplant. Mother argues that there is no evidence that her son "even qualifies for a transplant let alone it is in his best interests to have one."
As DCFS points out, the juvenile court at the November 27, 2002 hearing was not ordering a new placement. At the hearing, Judge Margaret Henry stated, "Im not ordering that the child be moved. That is in the Departments discretion." Mothers trial counsel responded, "Then our argument would be . . . that the Department is abusing their discretion." Judge Henry replied, "Essentially Im denying your motion that I . . . find that the Department is abusing its discretion in moving the child."
Like the juvenile court in In re Cynthia C. (1997) 58 Cal.App.4th 1479, the juvenile court in the present case did not make an ordered placement with a particular foster family. Instead, "its order vested custody with [DCFS] to select a suitable placement. That order never changed throughout the proceedings. [DCFS] was always authorized to exercise its discretion to reassess the suitability of the environment in which it had placed the child and, if deemed unsuitable, move the minor to an improved situation. [Citation.]" (Id. at p. 1490, italics in original.)
Significantly, we concluded in our most recent opinion that sufficient evidence supported the juvenile courts prior factual finding that mothers behavior had not significantly improved so as to constitute a change of circumstance for section 388 purposes warranting a modification of the juvenile courts prior disposition order. Further, we consider the stage of the proceedings here, where family reunification services already have been terminated and the focus has shifted "from reunification to the childs need for a stable and permanent home." (In re Casey D. (1999) 70 Cal.App.4th 38, 48.) We also consider the opportunity of a prospective adoptive family willing and evidently able to care for Josiah. The evidence in the record is that Josiah remains a medically fragile child who may require a heart and lung transplant. It is unrefuted that the availability of a permanent and stable home with adults capable of caring for a transplant recipient is a preliminary factor for Josiahs eligibility for potential surgery. Under the circumstances here, the juvenile court did not abuse its discretion in not disturbing DCFSs decision to place Josiah in the pre-adoptive home in Northern California.
Mother cites in part In re Christopher I. (2003) 106 Cal.App.4th 533, 552, for the proposition that a clear and convincing standard should apply in the decision to permit Josiahs transfer from Riverside County to Northern California. Christopher I. held that "the juvenile court has jurisdiction to determine whether life-sustaining medical treatment for a dependent child should be withdrawn" and that "the standard of proof for such determination is clear and convincing evidence." (Id. at pp. 539-540.) We agree with DCFS that mothers reliance on Christopher I. is misplaced because the juvenile court did not order any medical procedure. The court merely ordered that its prior order regarding placement remain in full force and effect.
Conceding that the juvenile court was not asked to approve a transplant, mother argues that "the issue of the propriety of the transplant was squarely before the Court; the reason for the transfer was to evaluate the minor for a possible . . . heart-lung transplant, a decision which necessarily required an implied finding the procedure was in the minors best interest, otherwise for what other reason would there have been to transfer the minor?" The argument is premature. The only issue before this court is whether the juvenile court abused its discretion in refusing to interfere with DCFSs placement decision.
Finally, mother argues that clear and convincing evidence does not support the juvenile courts finding of adoptability. But the juvenile court did not make a finding of adoptability on November 27, 2002. Such a finding would be premature at this stage of dependency proceedings. A finding that a child is likely to be adopted is made, if at all, at the permanent planning hearing set pursuant to section 366.26.
DISPOSITION
The order is affirmed.
We concur: VOGEL (C.S.), P.J. and EPSTEIN, J.
All further statutory references are to the Welfare and Institutions Code.