Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS in mandate. Kenneth Hahn, Judge. Petitions denied., Los Angeles County Super. Ct. No. CK62232
Children’s Law Center of Los Angeles, CLC 3, Patricia G. Bell and Melissa Heath-Rondilla for Petitioner S.C.
No appearance for Respondent.
Law Offices of Alex Iglesias, Steven D. Shenfeld and Henry Parks for Real Parties in Interest Sofia S. and Ricardo O.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Jeanette Cauble, Deputy County Counsel for Real Party in Interest Los Angeles County Department of Children and Family Services.
EPSTEIN, P. J.
S.C., a minor represented by counsel, and the Department of Children and Family Services (DCFS) seek writ review of an order of the juvenile court denying DCFS’s request that S.C. be removed from the home of her prospective adoptive parents, real parties in interest Sofia S. and Ricardo O. S.C. and DCFS contend the juvenile court imposed a heightened burden of proof and abused its discretion. We disagree and deny the writ petitions.
FACTUAL AND PROCEDURAL SUMMARY
S.C. was declared a dependent of the court in March 2006 when she was six years old. She was placed at Sofia and Ricardo’s home in June 2006. Her biological mother’s reunification services were terminated in March 2007. An adoption home study was completed in October 2008. In April 2009, the biological parents’ parental rights were terminated, and Sofia and Ricardo were declared prospective adoptive parents.
During this period, S.C. reported having auditory hallucinations and was diagnosed with enuresis (bedwetting) in 2006 and attention deficit hyperactivity disorder (ADHD) in 2007. She was prescribed medication and received counseling for her conditions. S.C.’s anxiety symptoms (bedwetting, nightmares, and sleep disturbances) flared up during 2008 when she had unmonitored visits with her biological mother, who pressured her to resist adoption. Also in 2008, S.C. reported she had been sexually abused by her brother and by another male on separate occasions while she was in the care of her biological mother. The biological mother in turn accused Sofia of manipulating S.C. and blamed S.C.’s various problems on her placement with Sofia. S.C. performed at grade level at school, notwithstanding some absences and tardiness noted in 2006-2007, difficulty interacting with peers noted in 2007, and difficulty remaining on task noted in 2008. Between 2006 and 2009, DCFS consistently reported that S.C. was stable, well cared for and bonded with the foster parents.
Child abuse referrals regarding three other foster children in the same home were received in October and November 2009. Department 420, to which those children’s dependency case was assigned, authorized Dr. Constance Lillas to investigate and report back to the court. The referrals were deemed unfounded, but Dr. Lillas noticed a pattern suggesting that the family may have a financial interest in having the children diagnosed with developmental and emotional delays in order to obtain increased funding. As a result of the investigation, DCFS filed a notice of removal of the three children in April 2010; they were removed in July 2010, and on September 17, 2010, Department 420 ruled that the children’s return would not be in their best interest.
We take judicial notice of Department 420’s minute orders. (Evid. Code, §§ 452, subd. (d)(1) & 459, subd. (a)(1).)
We take judicial notice of our decision affirming the September 17, 2010, order. (Sophia S. v. Superior Court (Jan. 21, 2011, B227718) [nonpub. opn.].) Sofia’s name was misspelled in that case.
On May 5, 2010, DCFS filed a notice of removal in S.C.’s case. The notice was based on the child abuse referrals and concerns regarding the other three foster children. Sofia and Ricardo, as well as S.C.’s counsel, filed objections to S.C.’s proposed removal. S.C.’s adoption was placed on hold, the adoptive home study rescinded, and an Evidence Code section 730 evaluator appointed. On October 5, 2010, the juvenile court granted Sofia de facto parent status, and S.C.’s counsel withdrew her opposition to the removal.
Meanwhile, S.C. performed well and even excelled in fifth grade but was repeatedly absent or late to school. She was awarded student of the month in March 2010 but was not in school to pick up the award. In addition, Sofia missed two parent-teacher conferences. At the start of sixth grade, S.C. was failing her first and last period classes due to frequent absences. In October 2010, DCFS reported that since the removal of the three children the family had moved in with Sofia’s mother. Sofia had not been proactive regarding S.C.’s school work and had been less than truthful in other respects: she had hidden her fourth pregnancy from DCFS, had stated incorrectly that teachers were complaining S.C. was defiant at school and that S.C. wore diapers during the day, and had failed to buy ear drops prescribed for S.C. on the false excuse that they were optional. In December 2010, DCFS reported some progress in Sofia’s handling of S.C.’s school attendance and school work—she had begun scheduling S.C.’s therapist appointments later in the afternoon to avoid taking her out of school and had met with the school’s counselor. But S.C. was still failing two of her classes, and in November DCFS had begun investigating new allegations of physical and emotional abuse made by the three removed children against Sofia and her mother.
In October 2009, Dr. Molina had diagnosed S.C. with posttraumatic stress disorder (PTSD), Asperger’s disorder, tic disorder, sexual abuse of child, and bedwetting. Her symptoms reportedly intensified in May 2010 at the prospect of being removed. Dr. Amanat, a psychiatrist who provided a second opinion in July 2010, diagnosed S.C. with PTSD and generalized anxiety “due to the recent stress and possible replacement, ” with co-morbid diagnosis of attention deficit disorder. He recommended that S.C.’s wish to stay at her current placement be accommodated. S.C.’s adoption therapist reported that S.C. wanted to remain at her placement and had threatened to harm herself if removed. The adoption therapist recommended that she not be removed. Dr. de Armas, the expert appointed by the court to evaluate S.C.’s placement under Evidence Code section 730, saw a close bond between S.C. and Sofia, saw no indication that Sofia would harm S.C., and therefore saw no reason to remove S.C. S.C.’s court appointed special advocate (CASA), who was also a CASA for the three removed children, reported that S.C.’s needs were met at her current placement and recommended that she remain there.
Contested hearings were held in December 2010. The court admitted into evidence Dr. Lillas’s report and took judicial notice of Department 420’s minute orders as to the other three children, noting that objections to these documents went to their weight. DCFS’s social worker testified, consistent with DCFS’s reports that Sofia had been deceitful; had treated S.C. as a confidante; had not made any progress on S.C.’s problems with bedwetting, hearing voices, and school work; had delayed implementing the recommendation for community based recreational activities for S.C. over two years; and had been the subject of multiple referrals. S.C. testified she wanted to live with Sofia, who educated and loved her and let her visit with her biological mother. S.C. also testified that the biological mother now wanted her to live with Sofia. S.C.’s adoption therapist and her CASA testified that removing S.C. would be traumatic and devastating to her.
Sophia testified that, before the three other children were removed, she had received over $10,000 a month in total funding. Of that amount, about $3,000 had been for each of the three children, all of whom had special needs. The reimbursement rate for S.C. went from about $400 in 2006 to $1,142 in 2008, when psychotropic drugs were prescribed and Sofia started receiving a higher “D-rate” payment for S.C.’s specialized care. Sofia claimed to have used the money to pay for a babysitter and a housekeeper and to have spent the rest on the children. The adoption therapist testified that, based on Sofia’s representation that S.C. had difficulty relating to her peers, she arranged for a referral, which resulted in the Asperger’s disorder diagnosis. Sofia admitted that S.C.’s other therapist had disagreed with her suggestion that S.C. might be autistic. Sofia admitted to not taking S.C. to the doctor in 2009 due to problems with S.C.’s medical insurance. Sofia stated she scheduled therapist appointments later in the afternoon and monitored S.C.’s school work, but S.C. would forget to turn in her homework and would miss school due to sleeplessness caused by anxiety over visits with her mother.
The court found that removal was not in S.C.’s best interest. S.C.’s counsel and DCFS filed timely notices of intent to petition for writ review of the court’s order. (See Cal. Rules of Court, rules 8.454(e), 8.456.) S.C.’s counsel filed a timely writ petition, and DCFS’s writ petition was filed with this court’s permission. Sofia and Ricardo filed a return. (See Welf. & Inst. Code, §§ 366.26, subd. (n)(5) & 366.28, subd. (b)(1).)
DISCUSSION
At a removal hearing, the court must 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.” (Welf. & Inst. Code, § 366.26, subd. (n)(3)(B).) The agency “must prove by a preponderance of the evidence that the proposed removal is in the best interest of the child.” (Cal. Rules of Court, rule 5.727(g).)
Consideration of “the best interest of the child” is meant “‘to maximize a child’s opportunity to develop into a stable, well-adjusted adult.’ [Citations.]” (State Dept. of Social Services v. Superior Court (2008) 162 Cal.App.4th 273, 286-287.) “A primary consideration in determining the child’s best interest is the goal of assuring stability and continuity of care. [Citation.] This can occur only by considering all the evidence available to the court at the time the court makes its decision regarding removal of the child.” (Id. at p. 287.)
Custody determinations in dependency cases are “committed to the sound discretion of the juvenile court, and the trial court’s ruling should not be disturbed on appeal unless an abuse of discretion is clearly established.” (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) When two or more inferences can reasonably be deduced from the evidence, the reviewing court may not substitute its decision for that of the trial court. (Id. at p. 319.)
S.C. and DCFS contend that the juvenile court incorrectly required proof by clear and convincing evidence rather than by preponderance of the evidence. The court did state that it was unsure about the proper burden of proof. But its ruling indicates that the court believed the evidence to be evenly balanced: “I am still at best 50-50.... No way is this clear and convincing evidence this is in the best interest to remove [S.C.] from the home she wants to be in. The question is whether we are at the tipping point where it is a preponderance of the evidence, and regardless of the fact that another bench officer looking at Dr. Lillas’ report concluded that [the other three] children should be removed. Regardless of the fact that [S.C.’s] own attorney... recommends that [S.C.] be removed. [¶] I think [S.C.] has been through enough emotional anxiety that this court doesn’t want to be a party to causing anymore anxiety. [¶]... I don’t have the results of [the investigation into the three children’s more recent allegations of abuse].... I do note that the CASA, Phil Stein, who has no ax to grind in this case one way or another, believes that what he has observed about [S.C.] she’s very bonded to [Sofia] and that it would be very traumatic for her to be removed.” By stating that it was “at best 50-50” and then balancing the evidence for and against removal, the court in effect ruled that the DCFS had not met its burden of proof by preponderance of the evidence. The ruling was thus based on the correct burden of proof.
DCFS contends that the court abused its discretion in light of Sofia’s neglect of S.C.’s school attendance and school work and her failure to take S.C. to the doctor for a year; the safety concerns raised by the three removed children’s abuse allegations against Sofia; the pattern established in Dr. Lillas’s report indicating that Sofia may have a financial incentive to burden the foster children in her care with multiple special needs diagnoses; and the parallels between that pattern and S.C.’s proliferating diagnoses. DCFS discounts S.C.’s reasons for wanting to remain at her current placement, arguing they do not result from a deep connection with Sofia and Ricardo and emphasizing her counsel’s belief that S.C. would survive a replacement. In essence, DCFS invites us to reweigh the evidence and to draw different inferences than those drawn by the juvenile court. We cannot do that because the established rule is that on appeal “[w]e do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court’s order, and affirm the order even if other evidence supports a contrary conclusion.” (In re Megan S. (2002) 104 Cal.App.4th 247, 251.)
The circumstances of each child are different, and the juvenile court carefully reviewed S.C.’s circumstances in this case. The court acknowledged that the other three foster children had been removed from the home, and that S.C.’s counsel supported her removal. But the court did not find these factors significant enough to tip the balance of other evidence in the case, and it reserved judgment on the unsubstantiated allegations of abuse made by the other children against Sofia. The court was not persuaded that S.C.’s case was analogous to those of the other three children or that Sofia and Ricardo had personally profited from the children’s increased funding rate. Dr. Lillas’s report was not about S.C., and there was no evidence that Sofia had engineered the Asperger’s disorder diagnosis for S.C. other than mentioning her difficulty relating to her peers, for which there was some support in S.C.’s school records. The court was concerned that Sofia had not been truthful with DCFS and had failed to take S.C. to the doctor for a year. It noted that the evidence regarding S.C.’s school progress was contradictory. The court gave considerable weight to DCFS’s long-standing support for S.C.’s placement with and adoption by Sofia and Ricardo, as well as DCFS’s role in keeping so many children diagnosed with special needs in the home for years. But most importantly, the court was persuaded that removal would not be in S.C.’s best interest because S.C. had bonded with Sophia, the prospect of removal was exacerbating her symptoms, and removal would traumatize this already traumatized child even further.
In light of the goal of achieving stability and continuity of care for S.C. and the consensus among S.C.’s adoption therapist, examining psychiatrists, court-appointed evaluator and CASA that she should stay at her current placement, we cannot conclude that the juvenile court abused its discretion in ruling that removal was not in S.C.’s best interest.
DISPOSITION
The petitions are denied.
We concur: WILLHITE, J. MANELLA, J.