Opinion
No. H045140
01-10-2018
R.C., Petitioner, v. THE SUPERIOR COURT OF SANTA CRUZ COUNTY, Respondent, SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 16JU00097)
D.C. (the minor) was placed in protective custody in April 2016 following his birth. A.L. (Mother) tested positive for amphetamines and methadone at the time she delivered the minor. The minor suffered from respiratory distress and withdrawal symptoms, and he was not released from the hospital until 24 days after his birth.
The Santa Cruz County Human Services Department, real party in interest (Department), filed a petition alleging the failure of Mother and Father to protect and provide support for their children under Welfare and Institutions Code section 300, subdivision (b). It was alleged in the petition that Mother and Father had longstanding untreated substance abuse problems, and that Father had untreated mental health issues. In June 2016, the minor was placed with his paternal grandmother, R.C., petitioner herein (Petitioner). In April 2017, after a hearing pursuant to section 366.26, the court terminated Mother's and Father's parental rights, found the minor to be adoptable, and found the permanent plan of adoption to be appropriate with Petitioner as the prospective adoptive parent.
Further statutory references are to the Welfare and Institutions Code unless otherwise stated.
In June 2017, police—who were looking for Father (Petitioner's son) and his brother, O.C.—executed a search warrant at Petitioner's home; they found an assault rifle and ammunition under a bed that were readily accessible to all occupants, including the minor. The Department immediately removed the minor from Petitioner's care and filed an emergency petition. Petitioner objected to the minor's removal. After an evidentiary hearing, the juvenile court concluded that removal of the minor from Petitioner's care and custody was in the minor's best interests.
Petitioner R.C. seeks a writ of mandate to compel respondent superior court to vacate its order approving removal of the minor. She contends that there was no substantial evidence supporting the court's finding that removal was in the minor's best interests. We conclude that respondent court did not err, and we will therefore deny the petition.
I. FACTS AND PROCEDURAL HISTORY
A. Petition, Detention, and Jurisdictional/Dispositional Orders
On April 7, 2016, the Department filed a petition alleging that the parents had failed to protect the minors. (§ 300, subd. (b).) The Department alleged, inter alia, that Mother had an 11-year history of drug abuse that included heroin and methamphetamine, she had used both substances while she was pregnant with the minor, and that she had last used both drugs two days before giving birth to the minor. The minor was born with methadone and amphetamines in his system and had respiratory failure that required the use of a ventilator. Father also abused controlled substances, including heroin, and over the past 10 years, had suffered from mental health issues, namely, anxiety and depression. Three years earlier, he had ceased taking medication and receiving mental health treatment. The Department also alleged that there were prior dependency proceedings involving the minor's siblings and Mother which had resulted in the termination of her parental rights.
On April 8, 2016, the court ordered the minor detained pursuant to section 319.
On June 15, 2016, after a contested hearing, the court found the allegations true and sustained the petition. The Court ordered the minor a dependent with out-of-home placement with Petitioner, and with Mother and Father to receive reunification services.
Pursuant to section 366.21(e), a six-month review hearing, took place on December 20, 2016. The court terminated reunification services for both parents, and ordered supervised visitation of the minor by both parents for a minimum of once per month. The court also set a selection and implementation hearing pursuant to section 366.26 (section 366.26 hearing).
B. Report and Order After Section 366.26 Hearing
In its report in connection with the section 366.26 hearing, the Department stated that the minor had spent nearly a month in the hospital's neonatal intensive care unit, and he had then spent one month in foster care before being placed with Petitioner. The Department concluded that the minor was generally and specifically adoptable, and it identified Petitioner as the prospective adoptive parent. It noted that it had "had to set firm expectation[s] with [Petitioner], as she has continued to contact her son, [Father,] to assist her with emergencies regarding [the minor]. On two occasions, [Petitioner] contacted [Father] to provide transportation for [the minor] to the [emergency room], while [Petitioner] was working. On both occasions [the minor's] childcare provider contacted [Petitioner] to pick up [the minor] due to sickness. [Petitioner] was unable to leave work and asked [Father] to take [the minor] to the [emergency room] where she would meet them. [Social Worker Kirsten (Qualey) Juel] had made it very clear to [Petitioner] that [Father] was not to have unsupervised visitation with [the minor]. [Petitioner] seems to understand that since [Father] has not been able to demonstrate that he can remain sober, it is unsafe for him to have unsupervised contact with [the minor]. In addition, it is unsafe for [Father] to be driving [the minor] if he is under the influence. [Petitioner] agreed with the Department's concerns . . ."
At the section 366.26 hearing on April 11, 2017, which was not attended by the parents, the court adopted the recommendations of the Department, including the termination of parental rights of Mother and Father. The court found the minor to be generally and specifically adoptable and thus ordered adoption to be the permanent plan.
All dates hereafter are 2017 unless otherwise specified.
C. Emergency Removal Notice
On June 13, the Department filed an emergency removal notice and supporting documents. It stated that after hours on June 9, a social worker accompanied by law enforcement had gone to Petitioner's home and removed the minor from her care.
The Department alleged in a report in support of removal that on June 9, it was informed that a Santa Cruz County anticrime/gang task force had raided Petitioner's home in an effort to locate two alleged " 'residents' " of the home, Father and O.C. (Father's brother and the minor's uncle). Both men were alleged to be involved with the Sureño street gang. During the raid, officers located an assault rifle and ammunition stored under the bed in the room occupied by J.R. and R.R., girls who are 14 and 13, respectively. J.R. and R.R. are Petitioner's grandchildren and adoptive children, and are the minor's cousins. The rifle and ammunition were readily accessible to children in the home, including the minor. The minor's cousin, J.R., who was home at the time, denied any knowledge of the rifle and ammunition; she told police that Father, O.C., and A.C. (her adult cousin) were the only people who generally visited the home and would have had access to her room.
A.C. is Father's adult son.
Petitioner, after being called home by the police on June 9, denied any knowledge of the rifle. She stated that it had probably been placed there by Father or O.C. Petitioner explained to police that because the side door was kept unlocked, both Father and O.C. could gain access to her home. She indicated further that she did not know the whereabouts of either man, and she could not provide their addresses, telephone numbers, or any vehicles associated with them. In the same interview, the minor's adult half-brother, A.C., confirmed Petitioner's statements. The police reported that Petitioner and A.C. "[b]oth . . . appeared to be evasive in their answers."
The Department alleged further in its report that in the five months prior to the minor's emergency removal, there had been five reported incidents in which Petitioner had "allow[ed] unauthorized contact between [the minor] and his birth parents." In the report and in attached investigation narratives, the Department detailed, among other things, (1) an incident on February 26 in which the minor was under the unsupervised care of Mother, notwithstanding her and Father's longstanding drug use and prohibition of them having unsupervised contact with the minor; (2) Petitioner's acknowledgement of the February 26 incident that she explained had resulted from her asking Father to pick the minor up from daycare because he was ill and Petitioner could not leave work; (3) an incident occurring on March 17 in which Father again transported the minor unsupervised to Petitioner's work, where, upon arrival, it was reported that he was under the influence of drugs; and (4) Petitioner's acknowledgment that the March 17 incident had occurred because the minor was again sick, Petitioner was unable to leave work, and she had asked Father to pick the minor up from daycare.
In its report, the Department referred to prior investigations, and incorporated separate narratives, concerning both Petitioner and the minor's cousins, J.R. and R.R. It explained that Petitioner was the adoptive mother of the two girls.
A referral involving the minor's two cousins was made on April 11. The reporting party advised that R.R. was being neglected by Petitioner, as well as by R.R.'s adult cousin, A.C., and his girlfriend, with whom R.R. had occasionally been staying. R.R. told the reporting party that there was no room for her at Petitioner's home because R.R.'s biological father was living there at the time. R.R. also stated "that her aunt and uncle go into the bathroom, use drugs, and then come out and are subdued and 'out of it.' "
We infer from the contents of the investigative narrative that R.R.'s aunt and uncle are the minor's Mother and Father.
A social worker interviewed R.R. on April 28 in connection with that referral. R.R. told the social worker that R.R., J.R., O.C. (their father), the minor, Father, and Mother were all living in Petitioner's home, even though R.R., J.R., and the minor were the only ones who were supposed to live there. (R.R. said that her father, O.C., was presently in jail.) R.R. said that she had found needles in the home; Father used drugs in the bathroom; and a crack pipe belonging to Father had been found in Petitioner's car.
Also in connection with the April 11 referral involving the minor's two cousins, two social workers, Erin Burton and Social Worker Juel, interviewed Petitioner, J.R. and R.R. on May 3. The Department reported that Petitioner, R.R., J.R. and the minor lived in Petitioner's two-bedroom, two-bathroom, mobile home. Petitioner and the minor shared one bedroom. J.R. and R.R. were supposed to share the other bedroom, but there was only one bed in that room. There was a mattress in the dining room that, according to Petitioner, could be moved into J.R.'s room by R.R. The Department noted that it appeared R.R. was not staying with Petitioner at the time.
During the May 3 interview, Petitioner denied that Father, Mother, or O.C. lived in her home. Petitioner told the social workers that Father and Mother had moved into a motor home approximately one month earlier, and before that time, had slept in their car. Social Worker Juel expressed her concern to Petitioner that she had been permitting Father to care for the minor, despite the fact that she had been told that the parents could only have supervised visits.
Also during the May 3 interview, both of the girls "expressed concerns about [Petitioner] adopting [the minor]," stating that Petitioner was not sleeping and was not taking care of herself, particularly because she was diabetic. They reported that Petitioner was "overwhelmed with the care" of the two girls and the minor. Petitioner referred to her sons (Father and O.C.) during the interview as "her 'angels,' " and "[J.R.] responded by telling [Petitioner] that they were the 'devil.' [J.R.] became visibly upset and cried when [Petitioner] spoke about her sons." The social workers reported that "[the girls'] body language made Social Workers feel as though [Petitioner] was not being honest about allowing her sons into her home."
At the conclusion of the May 3 interview, Petitioner was asked to and signed a safety plan. Included in its requirements was that Petitioner was not to permit any contact with the minor by Mother, Father, or O.C. unless approved by Social Worker Juel.
In Social Worker Burton's interview of R.R. on May 22, R.R. said that her father, O.C., had taken a shower at Petitioner's home on May 6 after his release from jail. R.R. also stated that Father had cared for the minor approximately six times since the May 3 interview with the social workers. R.R. explained that Petitioner allowed Father to take care of the minor on Mondays. R.R. told Social Worker Burton that over the weekend prior to May 22, Father came to the home while R.R. was cooking breakfast. He left after R.R. threatened to call 911 because Father was not supposed to be at Petitioner's home. When asked the time of day that Father or O.C. visited the home, R.R. stated that it was generally between the hours of 1:00 a.m. and 10:00 a.m.
On June 5, Social Worker Juel made an unannounced visit to Petitioner's home. Petitioner stated she had not permitted her sons, Father and O.C., into her home. After Juel informed her there were reports that Father was having unsupervised contacts with the minor, Petitioner denied that this had occurred.
The Department summarized in its report: "[Petitioner] has allowed her son, [Father], to transport [the minor] while he was reportedly under the influence, allowed dangerous weapons to be within [the minor's] reach, and doesn't seem to understand the danger she is placing [the minor] in. [Petitioner] continues to report that she does not allow [Mother] and [Father] access to [the minor] and yet, the Gang Task Force reports that [Father] lives at her residence and [R.R.] has informed the Department that [Father] and [Mother] have resided at [Petitioner's] home throughout the duration of [the minor's] dependency. The Department has attempted to work with [Petitioner] to educate her on safely parenting and caring for the [minor]. Unfortunately, [Petitioner] is unable to follow the Department's direction [or] . . . to provide a safe and stable home environment for [the minor]. She is also unable to accurately report and is not forthcoming with the Department. The Department cannot trust [Petitioner] to be honest [or] to act protectively on behalf of [the minor]."
D. Objection to Removal and Request for De Facto Parent Status
Petitioner filed an objection to the removal petition on June 26. She stated that she had cared for the minor since he was a newborn, she was in the process of adopting him, she was the only caregiver the minor had known, and it would be detrimental to remove him from her home. She stated further that the minor had siblings whom Petitioner had adopted who were living in her home who loved and cared about the minor.
Also on June 26, Petitioner filed a request that she be appointed the de facto parent of the minor and that she be designated his prospective adoptive parent.
E. Contested Hearing On Removal Notice
A contested hearing on the Department's removal notice commenced on August 28 and concluded on September 8. The court heard testimony from three witnesses.
1. Kirsten (Qualey) Juel
The Department called Kirsten (Qualey) Juel, a Department social worker, to testify as an expert witness on "risk assessment, placement assessment, and selection and permanent placement and removal assessment." Juel has a bachelor's degree in psychology and a master's degree in social work. She is registered as an Associate Social Worker (ASW) with the Board of Behavioral Science, and at the time of the hearing was in the process of completing the required hours to become a Licensed Clinical Social Worker. Juel worked in the Department for approximately one year in family reunification and family maintenance, and for two years in the permanency unit. In her capacity as a social worker, she was constantly involved in risk assessment for the physical and emotional safety of children as well as in making assessments as to whether the placement or removal of the child was in his or her best interest.
Juel was also "the case carrying social worker" for the dependency involving the minor while he was in Petitioner's care and custody. She testified that, prior to the section 366.26 hearing, the Department had concern about Petitioner's ability to protect the minor from Mother and Father. The first instance of concern occurred in February, in which Mother—who was not to have any unsupervised contact with the minor—was seen by an on-call social worker having unsupervised contact with the minor at the hospital where Petitioner worked; Mother was holding him. Juel informed Petitioner that the Department was concerned about Petitioner's having permitted Mother to have the minor in her unsupervised care. Petitioner told Juel that she had permitted the minor to be placed in the unsupervised care of Father, a convicted felon with substance abuse and mental health issues; he, in turn, had passed the minor to Mother. Juel testified that Petitioner had "said it was an emergency and that she understood that having [the minor] in the care of [Father] and [Mother] unsupervised put him in danger, and that she would never do it again." Petitioner said that the minor had fallen ill at daycare and he had needed to be picked up; she had to work, so she called Father.
Juel testified that a second incident in which Petitioner left the minor in the unsupervised care of Father occurred in March. The police were contacted after Father appeared with the minor at the hospital where Petitioner worked, and hospital staff assessed that Father was under the influence of drugs and therefore the minor was in danger. A referral was opened, and Juel and another social worker met with Petitioner to discuss the incident. Petitioner "again said that she learned her lesson. She would never do it again. And she signed a safety plan stating that she would not allow [Mother] and [Father] to have unsupervised access to [the minor]."
Juel testified that these incidents of leaving the minor in the unsupervised care of Father and/or Mother constituted unsafe or risky behavior. The incidents caused Juel concern regarding the permanent placement of the minor. This concern was reinforced on May 3, based upon a referral involving neglect of J.R. and R.R. by Petitioner, their adoptive mother. During the investigation of that referral, R.R. advised the social worker that Father and Mother, as well as O.C., had been living at Petitioner's residence "throughout the duration of the dependency." R.R. stated that Father had used "drugs in the bathroom and that she had found hypodermic needles inside the home and a crack pipe inside [Petitioner's] car." R.R. also informed the interviewing social worker that Father and Mother had moved out of Petitioner's home a week before the May 3 interview.
A further incident that Juel described as having been relevant to assessing the risk of the minor's current placement occurred on June 9, when the Department received a referral from law enforcement that, during a raid on Petitioner's home, a rifle and ammunition were found unsecured and accessible to the minor under the bed in the bedroom of J.R. and R.R. As a result of this incident, the Department removed the minor on an emergency basis from Petitioner's home. As Juel explained concerning the risk to the minor's physical and emotional safety: "The guns [sic] and the ammunition that were unlocked underneath the bed, it was noted that they were accessible to the children. This was assessed to be an immediate danger [to the minor]. Although the guns [sic] were removed, the Department believed that [Petitioner] had continued to allow access for her son to come into the home. And it was . . . the fourth or fifth incident in five months in which we believed that [the minor] was at risk for harm. And it was just the tipping point for us to come to the conclusion that this placement was not in the best interests of [the minor] and that his safety needed to be protected and he needed to be removed in order for his safety to be sound." This assessment was Juel's, as well as the assessment of her supervisor and of the on-call social worker and supervisor. Juel testified further that the social worker assigned to conduct the home study relative to Petitioner for Lilliput Children's Services, Inc. (the outside agency retained to evaluate Petitioner's suitability to adopt the minor) advised Juel it was unlikely that Petitioner would pass the study and therefore there would be no recommendation of adoption granted to her.
2. Petitioner , R.C.
Petitioner testified that Father had not been in her home since March. She also stated that her son, O.C., had not been to the home for approximately six months. Petitioner was not home in June when police searched her home and found a gun. She was not aware of a gun being in her home before the police discovered it.
On cross-examination, Petitioner acknowledged that in February, the Department had expressed concern about the minor being under the unsupervised care of Mother. At the time, she told the Department—because she recognized that the minor could not be safe under the unsupervised presence of his birth parents—that it would not happen again. Petitioner also acknowledged that the next month, there was an incident in which Father, at her request, drove the minor from . . . daycare to the hospital where she worked. Although she did not know that Father at the time had been under the influence, she was informed by a "nurse that he had become violent." Also on cross-examination, when Petitioner was asked about entrusting the minor to Father to pick the minor up from daycare, she responded that she was "sure that he could not hurt him by taking him from the daycare to the house [sic]. It's about six blocks." In response to the follow-up question as to whether Petitioner's view that Father could not have harmed the minor by transporting him from daycare to the hospital would change if he had at the time been under the influence of drugs, Petitioner responded, inferentially, in the negative, stating: "Because my son is not using drugs the entire time."
Petitioner testified that some time prior to the September 8 hearing, Mother had passed away. The Department stated in a status report filed on August 25 that Mother, after many years of struggling with substance abuse issues, took her own life on July 27.
Before the June incident involving the discovery of the gun and ammunition, it had been Petitioner's practice to leave the back door unlocked in case J.R. or R.R. did not have a key. In response to the question on cross-examination as to whether her sons, Father and O.C., were aware that the back door was kept unlocked, Petitioner testified: "I don't know whether they knew or not, but I think it's through that door that they would come in when I was working." Petitioner explained that J.R. had told her that Father would enter the house through the back door while Petitioner was at work. She began locking the back door after the June incident.
She began caring for the minor when he was two months old. Petitioner testified that he should be placed with her because he is her grandson, she loves him very much, and it would be best if he were in the home with J.R. and R.R., her two granddaughters, whom Petitioner had adopted. Petitioner began the application process for adoption of the minor, but it was suspended after the minor was removed from the home.
After the minor was removed, Petitioner applied for a restraining order against Father. A hearing on the matter was scheduled for September 12.
3. J.R.
Petitioner called her granddaughter, J.R., to testify. J.R. was alone at home the day the police came to search for Father and O.C. Police found a gun underneath J.R.'s bed, but J.R. did not know how it got there or how long it had been there before the police discovered it. J.R. testified that neither Father nor O.C. had lived in the home at any time in 2017. It had been months before July 2017 when J.R. had last seen Father. Mother did not live there either. J.R. testified that she had "never" seen Father in the home; Father did not have access to the home, but J.R. admitted that the back door was always unlocked. J.R. testified that Petitioner took good care of the minor and she was not concerned that Petitioner was a danger to the minor.
J.R. testified that she and her sister, R.R., had spoken together with two social workers approximately one to one and one-half months before the minor was removed. J.R. did not recall hearing R.R. tell the social workers that Father and Mother had been living at the home. J.R. testified she was not present when R.R. told social workers about syringes or having found a crack pipe in Petitioner's car. J.R. recalled Petitioner having referred to Father and O.C. as her angels; this made J.R. annoyed or angry, and she told Petitioner that they were the devil.
By offer of proof, Petitioner's counsel submitted that if called to testify, C.C. and R.R. (not R.R., the minor's teenage cousin) would testify that they had frequently been in Petitioner's home, that Petitioner was a good caregiver to the minor, and they believed the minor should be placed with Petitioner. All counsel stipulated that the evidence could be admitted by such offer of proof without formally calling the two witnesses to testify.
4. Court's Ruling
The juvenile court first ruled, without objection by the Department or the minor's counsel, that Petitioner's request to be deemed the prospective adoptive parent would be granted. Then, after hearing argument concerning the issue of removal, the court ruled that the Department had met its burden of showing by a preponderance of the evidence that the minor's removal from Petitioner's care and custody was in the minor's best interest. In so concluding, the juvenile court judge noted that she had "presid[ed] over almost every single one of these hearings. So I've seen [Petitioner], and I've seen her consistency, her support, her care, and her love for [the minor] since that time when this case began in April of 2016. So I am very well aware of her dedication to [the minor]." But the court found that there was a substantial safety risk to the minor posed by Petitioner's ongoing association with her sons, Father and O.C. The court cited (1) "the strong language" used by J.R. and R.R. concerning Petitioner's sons; (2) Petitioner's "inability to understand the risk that . . . [Father's] substance abuse poses to the safety of [the minor]"; (3) Petitioner's conduct of permitting Father to pick up the minor from daycare after being warned by the Department that she should not use him as an emergency contact; and (4) Petitioner's allowing her sons to have access to her home through an unlocked back door when the minor was not present, which apparently resulted in a gun being placed in the home.
By order of July 13, the court granted Petitioner's request for de facto parent status.
F. Petition for Writ of Mandate
Petitioner filed timely under rule 8.454(e) a notice of intent to file a writ petition to review the placement order entered after termination of parental rights under section 366.26. Thereafter, Petitioner filed her petition for writ of mandate with this court on November 28. (See rule 8.456.) Real party in interest Department filed its opposition on December 12.
All rule references hereafter are to the California Rules of Court.
Real party in interest Department erroneously designated its brief as "respondent's brief" and itself as "respondent." No opposition was filed on behalf of respondent superior court.
II. DISCUSSION
A. Applicable Legal Principles
1. Dependency Law Generally
Section 300 et seq. provides "a comprehensive statutory scheme establishing procedures for the juvenile court to follow when and after a child is removed from the home for the child's welfare. [Citations.]" (In re Celine R. (2003) 31 Cal.4th 45, 52.) As our high court has explained, "The objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time. [Citations.] Although a parent's interest in the care, custody and companionship of a child is a liberty interest that may not be interfered with in the absence of a compelling state interest, the welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect. [Citations.] The Legislature has declared that California has an interest in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with their parents have been unsuccessful. [Citations.] This interest is a compelling one. [Citation.]" (In re Marilyn H. (1993) 5 Cal.4th 295, 307.)
The court at the jurisdictional hearing must first determine whether the child, by a preponderance of the evidence, is a person described under section 300 as coming within the court's jurisdiction. (§ 355, subd. (a).) Once such a finding has been made, the court, at a dispositional hearing, must hear evidence to decide the child's disposition, i.e., whether he or she will remain in, or be removed from, the home, and the nature and extent of any limitations that will be placed upon the parents' control over the child, including educational or developmental decisions. (§ 361, subd. (a).) If at the dispositional hearing, the court determines that removal of the child from the custody of the parent or guardian is appropriate, such removal order must be based upon clear and convincing evidence establishing that one of five statutory circumstances exists. (§ 361, subd. (c).)
After it has been adjudicated that a child is a dependent of the juvenile court, the exclusive procedure for establishing the permanent plan for the child is the permanency hearing as provided under section 366.26. The essential purpose of the hearing is for the court "to provide stable, permanent homes for these children." (§ 366.26, subd. (b); see In re Jose V. (1996) 50 Cal.App.4th 1792, 1797.)
When the dependent child is removed from parental custody, the juvenile court is ordinarily required to provide the parent with services to facilitate the reunification of the family. (§ 361.5, subd. (a); see Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 303.) If reunification services are ordered, they generally (subject to exceptions and instances in which the period may be extended) begin with the dispositional hearing and, for children three years or older, end 12 months thereafter. (§ 361.5, subd. (a)(1)(A).) But when the child is under the age of three at the time of removal, "the maximum period of reunification services is generally six months [from the dispositional hearing]. [Citation.]" (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1009, fn. 4; see § 361.5, subd. (a)(1)(B).)
2. Post-Termination Removal Proceedings
Under subdivision (n)(3) of section 366.26, before changing the placement of a dependent child by removing him or her from the prospective adoptive parent, the agency must give notice of such intended action. The prospective adoptive parent may object to such proposed removal, triggering a hearing in which the court—after making the threshold determination that the objector meets the qualifications of a prospective adoptive parent, may order the removal of the child only if "the court finds that removal is in the child's best interest." (§ 366.26, subd. (n)(3)(B); see also Wayne F. v. Superior Court (2006) 145 Cal.App.4th 1331, 1340-1341 [Legislature intended to afford custodial prospective adoptive parent full participation at removal hearings].) If the "agency determines that the child must be removed from the home of the caretaker who is or may be a designated prospective adoptive parent immediately, due to a risk of physical or emotional harm, the agency may remove the child from that home and is not required to provide notice prior to the removal." (§ 366.26, subd. (n)(4).) In such a case, the agency must give notice no more than two court days after such removal, and the prospective adoptive parent may object to and request a hearing to adjudicate the propriety of such removal according to the same standards as where the removal is not done on an emergency basis. (Ibid.)
The Legislature, "[i]n enacting section 366.26, subdivision (n), . . . intended to 'limit the removal of a dependent child from his or her caretaker's home after parental rights are terminated, if the caretaker is designated or qualified as a prospective adoptive parent, as defined, in order to "protect the stability and best interests of vulnerable children." ' [Citation.]" (T.W. v. Superior Court (2012) 203 Cal.App.4th 30, 44 (T.W.).) As explained by the T.W. court, after termination of parental rights, the process of removal of a child from the care of a prospective adoptive parent is as follows: "The juvenile court has the authority and responsibility to determine whether removal from the home of a prospective adoptive parent is in the child's best interests. [Citation.] If a prospective adoptive parent objects to the child's removal from the home, the Agency must prove by a preponderance of the evidence that removal from the prospective adoptive parent is in the child's best interests. This standard applies whether the Agency has filed a notice of intent to remove the child under section 366.26, subdivision (n)(3), and the child is still in the home of the prospective adoptive parent, or the Agency has removed the child from the home on an emergency basis under 366.26, subdivision (n)(4) . . . . Under either circumstance, the juvenile court determines whether the proposed removal of the child from the home is in the child's best interests, and the child may not be removed from the home unless the court makes that finding. [Citation.]" (Id. at pp. 44-45, original italics.) And, "[t]he core function of both the agency and the juvenile court after parental rights have been terminated is to ensure the child's prompt adoption in a safe, stable, loving home." (Id. at p. 46.)
3. Standard of Review
The Third District Court of Appeal has described the standard of review as follows: "A juvenile court's decision to authorize a change in the minor's placement is reviewed for abuse of discretion. [Citation.] But we must also review the juvenile court's finding that the change is in the minor's best interests to determine whether there is substantial evidence in the record to support it. [Citations.]" (In re M.M. (2015) 235 Cal.App.4th 54, 64.) As argued by Petitioner, since the issue is whether removal was in the minor's best interests, this court should determine whether substantial evidence existed to support the trial court's best-interest finding. The Department concurs with Petitioner on this issue.
In determining whether substantial evidence supports the court's decision, "we review the record in the light most favorable to the court's determinations and draw all reasonable inferences from the evidence to support the findings and orders. [Citation.] 'We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.' [Citation.]" (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 688-689.) And "[w]e defer to the juvenile court's . . . assessment of the credibility of witnesses." (T.W., supra, 203 Cal.App.4th at p. 47.)
B. Substantial Evidence Supports Removal Order
As noted, the trial court found that the Department had met its burden of showing by a preponderance of the evidence that the minor's removal from Petitioner's care and custody was in the minor's best interest. Although acknowledging Petitioner's dedication to and love for the minor, the court concluded that there was a substantial safety risk posed to the minor from Petitioner's ongoing association with her sons, Father and O.C. The court cited evidence of prior instances of Petitioner's exposing the minor to risk by allowing unsupervised contact by Father, as well as Petitioner's own testimony which the court held demonstrated Petitioner's lack of insight regarding her actions.
As we have explained, in ruling on whether removal of a child under section 366.26, subdivision (n)(3) is appropriate, the court must first make the threshold determination that the objector meets the qualifications of a prospective adoptive parent. Department here concedes that Petitioner met the statutory requirements of a prospective adoptive parent, so that issue need not be discussed further.
There was substantial evidence to support the trial court's decision. There were multiple incidents within five months of the minor's removal in which Petitioner permitted unsupervised contact between the parents and the minor. In February, Petitioner allowed Father to drive the minor from daycare to Petitioner's workplace at the hospital; Mother also had unsupervised contact with the minor on this occasion. Petitioner permitted this to occur, notwithstanding the parents' long history of substance abuse (and Father's mental health history and convicted felon status), and her acknowledgement afterwards that she should not have allowed the unsupervised contact and would not do it again. In March—less than three weeks after the first incident—Petitioner again allowed Father to have unsupervised contact with the minor when she asked him to transport the minor from daycare to the hospital. On this occasion, Father was observed at the hospital as being under the influence; Petitioner testified a nurse told her that Father "had become violent." According to Social Worker Juel, Petitioner "again said that she learned her lesson. She would never do it again. And she signed a safety plan stating that she would not allow [Mother] and [Father] to have unsupervised access to [the minor]."
There was evidence—contradicted by Petitioner—that after these two incidents, she continued to place the minor at risk through unsupervised contact with the parents. The minor's cousin, R.R., reported to the Department on April 28 that (1) Father, Mother, and O.C. (the minor's uncle) were living in Petitioner's home; (2) R.R. had found hypodermic needles in the home; (3) Father had used drugs in the bathroom; and (4) R.R. had discovered a crack pipe belonging to Father in Petitioner's car. And on May 22, R.R. advised the Department that Petitioner allowed Father to care for the minor on Mondays, and Father had cared for the minor approximately six times between May 5 and May 22.
And it was uncontradicted that on June 9, a gang task force executing a search warrant looking for Father and O.C. found an assault rifle and ammunition under the bed in the room of J.R. and R.R. The rifle and ammunition were unlocked and readily accessible to the minor and his two cousins. At the time, J.R. told police that, in general, only Father, O.C., and A.C. (her adult cousin) visited the home and would have had access to the room. Indeed—although Petitioner denied knowing how the rifle and ammunition came to be in her home, and denied that Father had lived in or visited the home—she testified that she typically left the back door unlocked and was told by J.R. that Father would enter the house through the back door when Petitioner was not home. This June 9 incident—emphasized by the court in its comments concerning its ruling—was described by Social Worker Juel as the "tipping point" for the Department's conclusion that Petitioner's actions in exposing the minor to risk of harm required his removal from Petitioner's care.
In addition, there was significant evidence supporting the trial court's finding that Petitioner lacked insight into behaviors that created a risk of harm to the minor. When Social Workers Burton and Juel interviewed Petitioner, J.R., and R.R. on May 3, Petitioner described her sons (Father and O.C.) as "her 'angels,' " causing J.R. to call them "the 'devil.' " And during the interview, "[J.R.] became visibly upset and cried when Petitioner spoke about her sons." This and other interactions with Petitioner led the Department to conclude that she was not being honest with it concerning the critical issue of whether she was permitting Father and O.C. into her home. Further, the court's conclusion concerning Petitioner's lack of insight concerning the minor's safety may have been based in part on Petitioner's own testimony. In responding to questions about her allowing Father to have unsupervised contact with the minor in March when he drove him—apparently while under the influence of drugs—to the hospital, Petitioner attempted to minimize the potential danger to the minor by (1) stating that Father had only driven six blocks and she was thus "sure that he could not hurt him"; and (2) discounting the possibility that Father might harm the minor while he was using drugs, stating, "[b]ecause my son is not using drugs the entire time."
Petitioner argues that there was no evidence that, after the February 26 and March 17 incidents, she allowed Father again to transport the minor and that, from this it may be inferred that Petitioner developed insight into the risks of such behavior. This argument lacks merit because there was evidence—albeit disputed by Petitioner—that after March 17, she continued to permit Father and Mother to have contact with the minor by allowing them to reside in Petitioner's home and by permitting Father to take care of the minor on a number of occasions in May. (See T.W., supra, 203 Cal.App.4th at p. 47 [appellate court gives deference to juvenile court in determining credibility of witnesses].)
Additionally, Petitioner asserts that the two incidents of February and March in which Petitioner allowed Father to transport the minor were known to the Department prior to the section 366.26 hearing and it nevertheless recommended adoption as the permanent plan with Petitioner as the prospective adoptive parent. From this, Petitioner argues that Petitioner's prior conduct of placing the minor at risk was irrelevant to the court's September determination concerning removal because "[e]ssentially the matter was closed." This argument ignores two points. First, the Department was indeed concerned at the time of the section 366.26 hearing on April 11 about Petitioner's prior conduct in permitting Father's unsupervised contact with the minor. This concern was shown in the Department's report at the time, and was confirmed through Social Worker Juel's testimony. Second, the court's assessment as to whether removal was in the minor's best interests consisted of the cumulative record—including all that transpired before the section 366.26 hearing, events occurring between April 11 and the minor's emergency removal on June 9 (including the evidence of risk to the minor discussed above), and matters occurring after removal and before the court's decision in September. As such, Petitioner's prior conduct that placed the minor at risk in February and March was relevant to the court's decision, and was not a "closed" matter.
Further, Petitioner contends that the evidence was that Father had not been to her home for approximately six months prior to the September hearing. This was Petitioner's testimony. But, as noted, there was contrary evidence that Father (and Mother) had been living in Petitioner's home as late as May, and that Father had cared for the minor on several occasions in the home in that month. And even Petitioner's testimony was seemingly contradictory, since she testified that she had been told by J.R. that when Petitioner was away, Father had entered the home (apparently multiple times) through the unlocked back door. Again, we defer to the trial court's assessment of the credibility of witnesses. (T.W., supra, 203 Cal.App.4th at p. 47.)
Finally, Petitioner argues that the court should have, but did not, consider postremoval circumstances that showed that removal was unwarranted and that she had gained insight concerning risks to the minor, such as Petitioner's ceasing the practice of keeping her back door unlocked and her obtaining a restraining order to prevent contact with Father. She cites State Dept. of Social Services v. Superior Court (2008) 162 Cal.App.4th 273, 286 in support of this position. While we agree that the juvenile court should consider facts occurring after an emergency removal but before the hearing (ibid.), there is no indication that the trial court here failed to consider those facts in deciding removal was in the minor's best interests. The order here, "like any other judgment or order of a lower court, is presumed to be correct, and all intendments and presumptions are indulged to support the order on matters as to which the record is silent. [Citation.]" (Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, 88, citing Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We will therefore presume that the juvenile court in fact considered postremoval matters in reaching its decision.
It is very apparent to this court that Petitioner loves the minor very much and has made great efforts to provide a loving home for him. There was, however, substantial evidence supporting the juvenile court's finding that removal from Petitioner's home was in the best interests of the minor. Accordingly, the court did not err in finding it appropriate for the Department to remove the minor from the custody and care of the prospective adoptive parent, Petitioner.
DISPOSITION
The petition for writ of mandate is denied.
Petitioner included a request for stay of proceedings in her petition for writ of mandate. That request for stay is denied.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.