Amanda v. Super.
Filed 12/27/12
Amanda v. Super. Ct. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF
FIFTH APPELLATE DISTRICT
AMANDA E.,
Petitioner,
v.
THE SUPERIOR COURT OF KERN COUNTY,
Respondent,
KERN COUNTY
HUMAN SERVICES AGENCY,
Real
Party in Interest.
F065671
(Super. Ct. Nos.
JD099542-02, JD123701-00, JD125397-00)
MICHAEL P.,
Petitioner,
v.
THE SUPERIOR COURT OF KERN COUNTY,
Respondent,
KERN COUNTY
HUMAN SERVICES AGENCY,
Real
Party in Interest.
F065672
(Super. Ct. Nos. JD099542-02, JD123701-00, JD125397-00)
THE COURT
ORIGINAL
PROCEEDINGS; petition for extraordinary
writ review. Jon Edward Stuebbe,
Judge.
Amanda E., in
pro. per., for Petitioner.
Michael P., in
pro. per., for Petitioner.
No appearance
for Respondent.
Theresa
A. Goldner, County Counsel, and
Jennifer E. Feige, Deputy County Counsel, for Real Party in Interest.
-ooOoo-
Petitioners Amanda E. and Michael P. are the
former prospective adoptive parents of three juvenile dependents, who range in
age from nine to three years of age and have been freed for adoption. Petitioners in propria persona seek an
rule 8.456) from superior court orders upholding the removal of the children
from petitioners’ care under Welfare and Institutions Code section 366.26,
subdivision (n).
name="_ftnref2" title="">[1]
The superior court found removal of the children from petitioners’ care
was in the children’s best interests based on evidence that all of them lost
significant amounts of weight while placed with petitioners.
Petitioners contend they should have been
given an opportunity to help the children gain weight. Petitioners also argue the court did not give
them an opportunity to explain their thoughts.
On review, we conclude their petitions are meritless.
PROCEDURAL AND
FACTUAL HISTORY
The dependent children in this
matter are nine-year-old Tori D., her three-year-old sister Alexis D., and
four-year-old sister D.A., who is unrelated to Tori and Alexis. In April 2011, real party in interest
Department of Human Services (department) placed Tori and Alexis in the
petitioners’ foster home. The following
month, the department placed D.A. in the same home.
The superior court terminated
parental rights in December 2011 with regard to D.A. In April 2012, the superior court terminated
parental rights regarding Tori and Alexis.
Petitioners had expressed interest in adopting all three children.
In July 2012, a social worker
discovered that D.A. had lost more than two pounds since August 2011. The social worker also saw that D.A.’s ribs
were discernible on her back and the child had noticeable dark circles under
her eyes. When confronted with
information about the weight loss, Amanda appeared unconcerned. She claimed the child had “stretched out†and
was “tall for her age.†She also claimed
D.A. ate a lot all of the time.
A doctor saw D.A. on July
19, 2012. The doctor determined from plots in the child’s
growth chart that she had steadily gone from being in the 50th percentile in
weight to the 5th percentile for children her age. According to the doctor, typically being
underweight comes from being underfed.
D.A.’s weight loss commenced around the same time she was placed with
petitioners.
The doctor advised Amanda on providing D.A.
with a high calorie diet, by using high fat foods. “‘Every bite’†should be supplemented in some
way with more calories. The doctor anticipated a weight gain with the high
caloric diet, if there was not a medical cause underlying D.A.’s poor weight.
By the time of D.A.’s return appointment on July
30, 2012,
petitioners had yet to start the high caloric diet recommended by the
doctor. Amanda still minimized concerns
about D.A.’s weight and said “she’s just tall for her age.†Amanda, who appeared defensive, also claimed
D.A. was just small. The doctor
explained to Amanda that D.A. met the criteria for failure to thrive based on
the sharp decline in weight in the previous year.
During a visit to petitioners’ home by a
public health nurse the following day, Amanda questioned increasing D.A.’s fat
intake. “With all that fattening food,
I’m gonna get fatter.†Amanda also
pointed out that nine-year-old Tori was happy when she lost one pound.
Tori also had lost weight. In December 2010, she weighed 67 pounds,
while in February 2012, she had dropped to 63.4 pounds. The nine-year-old appeared to be
malnourished. As of early August 2012,
Tori weighed 62.2 pounds.
The public health nurse also determined that
Alexis had lost four pounds between June 2011 and July 30,
2012. She had dropped from the 75th percentile for
weight to below the 5th percentile for her age range. The children’s doctor later confirmed Alexis
had dropped to “well below the 3rd percentile.â€
Alexis was also diagnosed with failure to thrive.
On July 31,
2012, the
department removed the children from petitioners’ home due to the imminent risk
to their health as well as the department’s ongoing concerns regarding the
children’s treatment in the home. There
had been five referrals by different reporters voicing the same concerns within
the preceding three months. All had been
determined to be unfounded. However, the
county adoption agency had reason to believe Amanda had intimidated the
children. During each investigation the
children were interviewed in petitioner Amanda’s presence. All three children appeared to have been coached.
When they were transported away from
petitioners’ home, the children were laughing and chatting. They also smiled and “seemed ok†when they
arrived at their new foster home.
The children, Tori in particular,
had also made a number of unsolicited remarks about petitioners after the
children were removed from petitioners’ home.
Tori’s statements suggested that Amanda appeared concerned about her
weight and size. Amanda also told the children “don’t eat so much, I don’t want
you to become fat like me.†Tori also
volunteered that the children “were not able to eat a lot, no seconds.â€
According to Tori, the younger children were too scared to ask for more food.
As of August 7, 2012, the weights of all three
children had dramatically increased. The weight gains for D.A. and Alexis were
characterized as “HUGE.†D.A. gained six
and one-half pounds. Tori gained two
pounds. Alexis gained four pounds.
Petitioners filed objections to the
removal. In her objection, Amanda
claimed the children had been properly cared for and had “never been deprived
from eating or drinking.â€
At an August 8, 2012, hearing on
petitioners’ objection, the court offered petitioners the opportunity to
provide any further information with regard to their objection. It explained:
“If you want
to speak to the Court about the situation, if you want to testify, if you have
other witnesses you’d like to have testify, this would be the time to do it.â€
With the assistance of the
children’s counsel, petitioners called, as witnesses, an adoption worker and
director of the foster family agency involved in the children’s placement with
petitioners. Neither witness could
address the children’s weight issues. At
most, the director testified, based on communications from all of the agency’s
social workers who had been in petitioners’ home, that the children were in a
safe and appropriate environment. As of
the hearing, the children were no longer placed through the foster family
agency.
After these witnesses testified, the
court asked petitioners if they had any other witnesses they would like to
call. Petitioner Amanda E. replied those
were the only witnesses.
The court then invited each
petitioner to “say what you want the Court to hear that you think I should
consider to make a decision whether or not to -- to grant your objection.â€
Amanda told the court that “the
girls were fine. They weren’t sick.†She
also said she was trying to get into some nutrition classes. She added the children’s stomachs were not
hurting and they were “eating fine.†“We
always have food in our refrigerator when they come and check.â€
Petitioner Michael P. told the court “I
believe the children are living in a safe home.
We’re feeding them. And we treat
them well. We don’t hit them. We give them everything they ask for. What else do they want?â€
After listening to closing
arguments, the court denied petitioners’ objection to the children’s
removal. The court found removal of the
children from the petitioners’ care was in the children’s best interest.
DISCUSSION
The purpose of writ proceedings such
as this is to facilitate review of the juvenile court’s order regarding the
children’s removal. (Cal. Rules of
Court, rule 8.454.) The court’s decision
is presumed correct. (
557, 564.) It is up to petitioners to
raise one or more claims of reversible error or other defect and present
argument and authority on each point made.
This court will not independently review the record for possible
error. (In re Sade C. (1996) 13 Cal.4th 952, 994.)
Here, petitioners claim, in conclusory fashion
and without citation to legal authority, that they should have been given an
opportunity to help the children gain weight.
They overlook the evidence that they had the opportunity to provide
D.A., in particular, with the high caloric diet that the doctor
recommended. However, they did not
pursue the doctor’s advice. In addition,
the legal issue is not about the caregivers’ interests, but rather what is in
the children’s best interest. (§ 366.26,
subd. (n).)
Here the court as well as the department
could properly find that petitioners were underfeeding the children in their
care based on: (1) the younger
children’s failure to thrive since they had been placed with petitioners; and
(2) the children’s dramatic weight gain in one week’s time after their removal
from petitioners’ home.
To the extent petitioners complain about the
court in this matter, they ignore the record, which undermines their
complaint. The court gave petitioners
more than an adequate opportunity to express themselves. There is no indication on this record that
the court prevented petitioners from presenting evidence or making their
positions known.
DISPOSITION
The petition for extraordinary writ
is denied. This is opinion is
immediately final as to this court.
name="_ftn1" title="">* Before Kane, Acting P.J., Poochigian, J. and Detjen, J.
name="_ftn2" title="">[1] All statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
