Opinion
D082102
12-19-2023
In re A.B., a Person Coming Under the Juvenile Court Law. v. S.B. et al., Defendants and Appellants SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,
Jacob I. Olson, under appointment by the Court of Appeal, for Defendants and Appellants. Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. J518198D, Marissa A. Bejarano, Judge. Affirmed.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendants and Appellants.
Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and Respondent.
BUCHANAN, J.
In this juvenile dependency proceeding, two approved resource families sought placement of 20-month-old A.B. Both families were capable of and committed to providing the best care for her. N.B. (Mr. B) and S.B. (Ms. B) (collectively referred to herein as the B. Family) had cared for A.B. since she was two days old. There is no dispute that A.B. was bonded to them and thriving in their care. J.S. (Mr. S) and E.S. (Ms. S) (collectively referred to herein as the S. Family) are the adoptive parents of A.B.'s nine-year-old halfsister, D.S. Although they lived in a different state, the S. Family and D.S. had 17 months of virtual visits with A.B., followed by multiple in-person, and overnight visits, and the evidence shows that she was bonded to them as well.
After three days of trial, the court determined that it was in A.B.'s best interests to be placed with the S. Family so that she could grow up with D.S. The juvenile court was faced with an undoubtedly difficult decision in choosing between two excellent options. In these circumstances, however, we cannot say that the juvenile court abused its discretion in making its choice. Accordingly, we affirm the juvenile court's order.
FACTUAL AND PROCEDURAL BACKGROUND
A. Pretrial Developments and Proceedings
When A.B. was born in August 2021, she and her mother (Mother) tested positive for amphetamine and methamphetamine. After A.B. was discharged from the hospital two days later, she was placed in the approved resource home of the B. Family, who were later declared de facto parents. They wanted to adopt A.B. from the moment they saw her. The S. Family had adopted A.B.'s older sister D.S., and they also expressed interest in placement and adoption of A.B. from the beginning of the proceedings. However, they had recently moved to Louisiana and had to renew their foster license through the Interstate Compact on the Placement of Children (ICPC) process.
The San Diego County Health and Human Services Agency (Agency) filed a petition under Welfare and Institutions Code section 300, subdivision (b), alleging a substantial risk of harm to A.B. due to substance abuse. In the months leading up to the contested jurisdiction and disposition hearing, Mother was either incarcerated or her whereabouts were unknown. There were several alleged fathers who did not maintain contact with the Agency and the identity of A.B.'s biological father remained unknown throughout the proceedings.
All further statutory references are to the Welfare and Institutions Code.
In January 2022, the court sustained the petition, declared A.B. a dependent, and made a general placement order that she be placed in foster care. The court bypassed reunification services and set a section 366.26 permanency planning hearing.
The Agency requested continuances of the section 366.26 hearing to allow time for the S. Family to complete the ICPC process. In the meantime, A.B. remained in the B. Family's care and the S. Family had consistent visits with her by video starting in November 2021 and one in-person visit in July 2022.
After the ICPC home study was approved in August 2022, the Agency recommended that the court terminate parental rights, order a permanent plan of adoption, and order that A.B. be placed with the S. Family so she could be with her older sister D.S. The B. Family and the S. Family filed competing section 388 petitions to change the general placement order to a specific placement order for A.B. to be placed in their respective homes. The court set the petitions for trial together, with the section 366.26 hearing trailing.
B. Trial
A three-day trial commenced in April 2023. By this time, A.B. had spent 20 months in the B. Family's care. A.B. also had many unsupervised visits with the S. Family and D.S., including numerous overnight stays. There was evidence, on both sides, of A.B.'s meaningful and positive relationship with B. Family and the S. Family, including D.S., and each families' commitment and ability to provide excellent care for her.
Mr. B testified that receiving A.B. into their home was the best day of their lives. A.B. was the first child he and Ms. B raised together. A.B. called Ms. B "mom" and Mr. B "daddy" or "daddy bear." She had even been initiating "I love yous." A.B. also developed a relationship with Mr. and Ms. B's extended family, particularly their nephews by adoption, who were two and four years old. A.B. was thriving in the B. Family's care. Mr. B felt like her father. They wanted to raise her, encourage her, and provide everything for her.
Mr. B acknowledged he and Ms. B cancelled numerous visits with the S. Family but explained that they initially thought the visits were voluntary, and they would not have cancelled so many had they known it was required. Still, he acknowledged that he consistently requested that the S. Family not have overnight visits with A.B. Mr. B testified that if they adopted A.B., they were willing to continue visits with D.S. "or whatever we are asked to maintain that relationship." His plan for maintaining contact between A.B. and D.S. was through virtual visits, but he was still adverse to overnight stays and testified that he would be open to that "maybe when she is a little older."
The B. Family's expert testified that A.B. was "extremely attached" to them and was thriving in their care. A.B.'s relationship with their extended family was also full of love and joy. He testified that the nephews' and A.B.'s shared experience with adoption could be a great benefit for A.B. He had no information about A.B.'s relationship with D.S. or the S. Family, however, he acknowledged that her ability to form a secure attachment with the B. Family suggested she would be able to form a similar attachment with the S. Family.
Ms. S testified that she and Mr. S were licensed foster parents for seven years and fostered over 30 children before they closed their license when they moved to Louisiana. All but three of their foster children were returned to their biological families. The S. Family adopted the three children who were unable to be placed with family, including D.S. D.S. was a happy child who was thriving in their care.
Each adopted child in the S. Family had a "tummy family book" containing photos, baby mementos, tokens, letters, or cards the child had received from their biological family. The S. Family explained adoption to the children in an age-appropriate manner and kept the dialogue open as they expected the children would continue to have questions as they grew up. Ms. S testified that they also worked with resistant biological family members to involve them as much as possible when it was safe to do so. They made extensive efforts to facilitate safe contact between D.S. and her biological parents. If A.B. were placed with the S. Family, Ms. S testified that it "would be great" for her to have continued contact with the B. Family because "[y]ou can't have too many people love a child."
Ms. S believed that sibling relationships were so crucial that when they were foster parents, they kept three open beds in their home in order to take sibling groups. She described A.B. and D.S. as "inseparable." When A.B. was in their care, she called Ms. S "mommy," Mr. S "daddy," Ms. S's mother "nana," and D.S. "la la."
An expert for the S. Family, Dr. Himelstein also observed A.B. calling Mr. and Ms. S "da da" and "mamma." She explained that at 20 months old, A.B. did not understand the concept of parents but called people who took care of her by those names. A.B. was loving toward the S. Family, looked to them for reassurance, and responded to their redirection. She was especially enamored with D.S. and wanted to spend every minute with her when they were together. D.S. was also very attuned to A.B.'s needs. Dr. Himelstein testified that having a sibling helps alleviate possible symptoms that an adopted child may experience as he or she goes through different stages of self-doubt, confusion, disappointment, and feeling rejected. There is also value in that A.B. and D.S. look very much alike, which creates a sense of belonging. She strongly believed that it would be in A.B.'s and D.S.'s best interests to grow up together. The closer they are, the more A.B. can depend on D.S. to help her through difficult times.
Ms. Baggett was the adoption social worker assigned to the case from February to November 2022. She observed A.B.'s first in-person visit with D.S. and Ms. S in July 2022. She testified that A.B. recognized D.S. immediately and began kicking her feet and smiling. D.S. acted like a big sister to A.B. A.B. did not show any distress when she separated from Mr. and Ms. B for this visit. When Ms. Baggett recommended placement with the S. Family, she took into consideration the long-term benefits to A.B. of being placed with a sibling. It would give A.B. a sense of belonging because she would share physical characteristics and genetics with D.S. and grow up sharing experiences in the same home. She explained that adopted children's needs regarding their sense of identity change as they get older. Placing A.B. with her sibling would help minimize that sense of grief and loss. Not placing A.B. with her sibling would cause her to lose a piece of her family.
Ms. Baggett acknowledged that A.B. looks to Mr. and Ms. B as her parents. She also took into consideration the fact that the B. Family met all her needs and took great care of her. However, she explained that "we have to look at the future . . . and how placing her with her sibling will help her." She also testified that children who are securely attached are much more likely to be able to securely attach in the future. She believed A.B. would be able to have a secure attachment to the S. Family based on her observations of visits and because A.B. "has just always been easy going. It's her personality."
Ms. Ambriz, the adoption social worker who received the case in November 2022, also strongly believed it was in A.B.'s interests to be placed with D.S. She understood that transitioning A.B. could have "some little bit" of a negative impact at first, but she was considering A.B.'s entire life and the opportunity to grow up with D.S. in the same home, experiencing daily interactions with her and having her as a role model. Ms. Ambriz testified that she observed that A.B. gets excited when she sees D.S., and follows her around wanting to play with her and be with her. A.B. also goes to Mr. and Ms. S without concern. She agreed that A.B. had a secure attachment to the B. Family but testified that children with secure attachments are able to securely attach with other people. A.B. was an easygoing baby, which reinforced her belief that she would be able to transition into another securely attached caregiver.
The B. Family's attorney argued for placement with the B. Family, while the S. Family's attorney, the Agency, Mother's counsel, and minor's counsel argued for placement with the S. Family.
C. The Juvenile Court's Ruling
After taking the matter under submission for the weekend in order to "thoroughly and thoughtfully" review the evidence, the juvenile court determined that it was in A.B.'s best interests to be placed with the S. Family and D.S. In doing so, the court recognized the difficulty and gravity of an adoptive placement decision and that one party in this case would walk away devastated. It also addressed the public policy in favor of placing siblings together when possible, as articulated in section 16002. Although sibling placement is not a mandate under that statute, it is a factor to consider in determining the child's best interests.
The court stated there was no question A.B. was thriving in the B. Family's care for the past 20 months and was bonded to them as well as their extended family. However, the evidence also showed A.B. had bonded with D.S. and the S. Family during the previous 17 months. The court noted that A.B. recognized and was happy to see D.S. at the first in-person visit and had since enjoyed multiple overnight visits with the S. Family. Photographs of A.B. "smiling and snuggling" with D.S., Mr. S, and Ms. S. corroborated the testimony that she had developed a close bond with them. She also called Mr. and Ms. S by variations of "daddy" and "mommy" and was described as being inseparable from D.S.
The court considered that not only was D.S. thriving in the S. Family's care, but the S. Family demonstrated a commitment to keeping an open dialogue with their adopted children about their "tummy family" and allowing biological family members to be involved as long as it was safe to do so. In contrast, the court did not find Mr. B's testimony credible when he claimed he would continue to facilitate visits between A.B. and her biological mother or D.S.
The court was also persuaded by the social workers who observed A.B. with the B. Family as well as the S. Family and D.S. Both social workers acknowledged and considered that A.B. was securely attached to the B. Family. Nonetheless, they both testified that it would be in A.B.'s best interest to be placed with the S. Family because of the long-term benefits of being able to grow up with D.S. in the same home and having daily contact and sharing experiences, which would give her a sense of belonging and minimize her sense of grief or loss in the future. The court found compelling Dr. Himelstein's expert testimony regarding the importance of sibling relationships, particularly in alleviating potential issues related to adoption.
Accordingly, the court granted the S. Family's and denied the B. Family's section 388 petition. The juvenile court then proceeded to the section 366.26 portion of the hearing, terminated parental rights, and ordered the permanent plan of adoption.
DISCUSSION
Section 388 provides that any person with an interest in a child who is a dependent of the juvenile court may petition the court to change, modify, or set aside a previous order. (§ 388, subd. (a)(1).) At a hearing on a motion for change of placement, the burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or a change of circumstance that makes the requested change of placement in the child's best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) The ultimate question is what placement is in the best interests of the child, and the trial court's determination will not be disturbed unless an abuse of discretion is clearly established. (Id. at p. 318.) A reviewing court cannot reweigh the evidence and substitute its judgment for that of the juvenile court. (Id. at p. 319.)
The B. Family argues that the juvenile court abused its discretion in determining that it was in A.B.'s best interest to be placed with the S. Family. They contend the court's decision, "solely focusing on placing [A.B.] with a half-sibling to whom she had no sibling relationship" was based on "merely a hopeful and at best an up-and-coming sibling relationship." On the other hand, A.B. had lived with the B. Family her entire life and was thriving and bonded to them.
There was no dispute below and we fully appreciate that the B. Family provided loving care for A.B., who had developed a meaningful, positively attached relationship with them. However, substantial evidence shows that A.B. was also bonded with the S. Family, including D.S. Contrary to the B. Family's belief that A.B. and D.S. had an undeveloped sibling relationship, each of the social workers and the expert who observed their interactions testified to A.B.'s excitement and desire to spend "every minute" with D.S. during visits. She was "enamored" with D.S., who also acted like a big sister to her. They also testified to the importance and benefits of having a sibling relationship. Dr. Himelstein further testified that growing up with D.S. in the same home with daily contact and shared experiences would benefit A.B. and be in her best interests.
The court properly weighed the evidence and found this testimony compelling. Given the choice between two loving and caring families, both of which A.B. knew and felt comfortable with, the court chose the family in which A.B. would have a biological older sister. As an appellate court, it is not our proper function to second-guess such a difficult judgment call by the juvenile court judge who presided over trial and heard the testimony. Substantial evidence supports the juvenile court's finding that placement with the S. Family was in A.B.'s best interests.
This case is distinguishable from In re M.H. (2018) 21 Cal.App.5th 1296, cited by the B. Family. There, the Court of Appeal affirmed a juvenile court's decision not to move a one-year-old child from the de facto parents with whom the minor had lived since shortly after birth and was bonded, to be placed with a maternal great-aunt who would offer biological family connections. (Id. at p. 1299.) While the juvenile court had to decide between two good options, as is the case here, it was not faced with the considerations that accompany the importance and benefits of a sibling relationship. (Id. at p. 1305.) And in affirming the order, the Court of Appeal emphasized that the juvenile court "was best able to make the hard call of which placement, under the circumstances as they then existed, was in the minor's best interest." (Ibid.)
In re L.M. (2019) 39 Cal.App.5th 898, is factually more similar to this case. In that case, we affirmed the juvenile court's order removing a 10-month-old child from the de facto parents with whom she was securely attached and placing her with her sister's adoptive parents. (Id. at p. 900.) We noted that "the juvenile court was in the best position to make the difficult decision of which placement, between two excellent options, was in L.M.'s best interest." (Id. at pp. 915-916.)
As in both In re M.H. and In re L.M., when faced with two excellent choices, the juvenile court was in the best position to make the call. On this record, we cannot say that it was arbitrary, capricious, or patently absurd for the juvenile court to determine that it was in A.B.'s best interests to be placed with the S. Family and her half-sister, D.S. (Stephanie M., supra, 7 Cal.4th at p. 318.)
DISPOSITION
The juvenile court's May 1, 2023 orders granting the S. Family's section 388 petition, and denying the B. Family's section 388 petition, are affirmed.
WE CONCUR: DATO, Acting P.J., KELETY, J.