Kuehnel v. PHH Mortgage



















Filed 4/11/13 S.S. v. Super. Ct. CA4/3













>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.











IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FOURTH
APPELLATE DISTRICT



DIVISION
THREE




>

S.S., v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; ORANGE COUNTY SOCIAL SERVICES AGENCY, et al., Real Parties in Interest.

G047800 (Super. Ct. Nos. DP020946 & DP020947) O P I N I O N

Original proceeding;
petition for a writ of mandate to challenge an order of the Superior
Court of Orange
County, Jacki Brown, Judge. Petition denied.

Nicole Williams for
Petitioner.

No appearance for
Respondent.

Law Office of Harold LaFlamme
and Yana Kennedy for the Minors.

Nicholas S. Chrisos, County
Counsel, Karen L.
Christensen and Aurelio Torre, Deputy County Counsel for Real Party in Interest
Orange County Social Services Agency.

Petitioner S.S., the
maternal grandmother and prospective adoptive mother of child 1 and child 2
(collectively the children), now four and two years old, respectively,
challenges an order removing the children from her care pursuant to Welfare and
Institutions Code section 366.26, subdivision (n) (all statutory references are
to this code). She claims the court
abused its discretion when it removed the children because there was
insufficient evidence removal was in their best interests, and it failed to
consider the children’s circumstances at the time of removal.

Real party in interest href="http://www.mcmillanlaw.com/">Orange County Social Services Agency
(SSA) opposes the petition, arguing there was sufficient evidence to support
the court’s discretionary ruling ordering removal. The children joined in SSA’s opposition.

We conclude the court
did not abuse its discretion and deny the petition.



FACTS AND PROCEDURAL HISTORY



After child 2 was born
in March 2011, he and his two-year-old brother child 1 were taken into custody
by SSA because child 2 and his biological motherhref="#_ftn1" name="_ftnref1" title="">[1]
tested positive for methamphetamine and marijuana. The children were placed with
grandmother. Six years earlier
grandmother had adopted the children’s half-brother, R.S., who had been born
with methamphetamine in his system, after mother failed to complete her service
plan.

In 2006 there were two
child abuse registry referrals against grandmother about R.S. In one mother was driving while intoxicated
with R.S. in the car. Grandmother
advised she allowed mother to take R.S. without supervision because mother had
been taking substance abuse classes for about six months and grandmother did
not believe she had been on drugs or drinking.
A dependency petition was filed and later dismissed after grandmother
was put on an intense supervision program. R.S. was returned to her custody. When asked about this in 2011, grandmother
explained she had not given mother permission to take R.S.

Another
referral occurred six months later when mother and her boyfriend, who had each
been drinking, drove home from a party with R.S. in the car. During the drive in the course of a fight,
the boyfriend began to hit mother and during the altercation hit R.S. in the
mouth, cutting his lip. Paramedics were
called. Grandmother then allowed mother
to stay overnight at her house despite knowing she was not allowed to do so. General neglect claims against grandmother
were found to be “inconclusive.”

In June 2011 when the
children were declared dependents and removed from parents’ custody, the court
granted parents reunification services.
During this time mother was allowed visits with the children at
grandmother’s home; grandmother was authorized to act as monitor.

Visits went well until
November when mother and grandmother began arguing. Mother physically attacked grandmother until
the babysitter interceded and grandmother called 911. The children were in the house and not
involved. Thereafter, upon mother’s
report the babysitter had recently been arrested for possession of
methamphetamines and his admission, grandmother had him leave. The babysitter advised grandmother mother had
threatened to kill grandmother and then herself if she was not allowed to visit
the children.

SSA and grandmother set
up a safety plan, including grandmother’s agreement to call the sheriff’s
department about mother’s threat.
Subsequently grandmother called the social worker, relating she had not
called the sheriff because she thought the babysitter might have told her about
the threat in retaliation for mother’s disclosure of his drug arrest. She also was concerned if the sheriffs
contacted mother she might become even more upset. But grandmother did agree to abide by the
safety plan and call 911 if she had any concerns about safety.

In December the
children’s counsel asked the court to at least temporarily move mother’s visits
to another location with a different monitor until mother could become more
stable. A social worker who observed
mother visiting at grandmother’s home called the interactions
“appropriate.” Grandmother told the
social worker she did “not feel threatened” and wanted to continue monitoring
the visits at her home. She also advised
she had arranged for another adult to be there during visits. Nevertheless the court ordered the visits to
be at a neutral location until its next review hearing in January 2012. At that hearing the court terminated parents’
services and set a permanency hearing (§ 366.26).

In March 2012 in a
report originally prepared by the children’s Court Appointed Special Advocate
(CASA) Kathi Smith noted child 2 appeared to be “very bonded to his grandmother
and to his brothers” and both children were “happy, loved, and well-cared
for.” She also advised grandmother would
be “an excellent caregiver.”

On May
5, 2012 a social worker went to grandmother’s home to investigate
the November 2011 altercation between mother and grandmother. When she arrived child 2 was there with
mother and father; neither grandmother nor the approved caregiver were
present. Mother appeared to be under the
influence of something. Mother was
dressed in beachwear and had a bag holding beach paraphernalia; father was also
in beach clothing.

When grandmother arrived
home with child 1, he also was dressed in beach clothes and carried new beach
toys. Grandmother explained father was
allowed monitored visitation and a monitor had been there when she had gone to
the market. But the monitor had left
before the visit ended. She also stated
mother was not allowed to be at the house.
The social worker found a closet full of mother’s clothes in R.S.’s
bedroom along with a mattress on his bedroom floor; a pair of mother’s
underwear was nearby.

Grandmother explained
one of the children must have taken them out of the closet. She also stated neither parent lived with her
or even stayed the night. She denied
there was a family beach day in the offing.
She told the social worker she had last seen mother about the time
mother had assaulted her in November but explained child 1 said he had seen
mother on the outside of the backyard fence.
A few days later R.S. confirmed grandmother’s statement mother had not
been there since November and did not live there.

When the social worker
spoke to the monitor, Diane, Diane stated she had left because she believed
grandmother would be home soon and “‘was just ready to go home.’” Diane is mother’s godmother. She explained she loves mother a lot and
likes to spend time with her. When she
stopped by grandmother’s home, sometimes mother is there. Diane does not think mother would harm the
children although she did concede mother was having problems with
sobriety.

A safety plan was put in place “[d]ue to the grandmother’s
lack of boundaries” to include daily safety checks and a prohibition against
either parent entering the home. The
social worker also suggested mother’s belongings be removed from the house,
which grandmother arranged.

SSA then determined the
children should be removed from grandmother’s care “[d]ue to a constellation of
events and risk factors that include the grandmother’s inadequate boundaries
and judgment regarding the parents.” It
did “not believe . . . grandmother [could] protect the
children . . . from their
parents . . . .” It
noted “poor decisions” grandmother had made, including in the case of R.S,
despite “many years of involvement with SSA and the Juvenile Court, and ongoing
instruction by several different social workers over the years.” It also described the positives about
placement of the children with grandmother, including grandmother’s love of the
children and her “belie[f] she is providing them with excellent care,” the
children’s attachment to R.S., and CASA Smith’s belief grandmother should be
allowed to adopt.

The next day SSA, joined
by counsel for the children, moved to terminate the children’s placement with
grandmother. Grandmother informed the
court she would remain with the children at all times. In the interim the court allowed the children
to remain with her, issued the restraining order against the parents
grandmother had requested, and ordered grandmother to remove all of parents’
possessions from her home.

The parents’ permanency
hearing report stated grandmother verified she had removed parents’ belongings
from the home. The social worker did not
see “any obvious signs of” them but could not distinguish mother’s and
grandmother’s possessions. It concluded
grandmother should not be allowed to adopt because she was unable to protect
the children from their parents. A few
weeks later CASA Smith reported her belief it would be “traumatic” for the
children to be removed, grandmother knew she needed to take part in services,
and that the incident in May had made her realize she needed assistance to help
her set boundaries.

There were three case
social workers who handled the case for different periods of time and one
social worker who was assigned to evaluating the potential adoption by
grandmother. At the removal hearing, the
testimony of the three case social workers was mixed. Two had no reason to recommend removal of the
children from grandmother. One of them
testified that grandmother took good care of them; her problem was protecting
them from mother. He also testified it
would be hard on the children to be separated from grandmother and R.S.

The third case social
worker was the one who had been present at the May incident and she repeated
what she had included in her earlier report.
She also testified mother had told her she would be going to the beach
after finishing with the children. On
that day she believed there was a “high possibility” the children would need to
be removed. It was her opinion
grandmother had problems setting boundaries for the parents. The social worker was concerned grandmother
could be allowing unapproved visits by mother.
She noted Diane’s statement she sometimes saw mother at grandmother’s
home. Grandmother had been paying
mother’s cell phone bill but when she suggested grandmother no longer do so,
grandmother agreed she would stop.

The adoption social
worker was recommending against a home study, whether or not the children were
removed. As opposed to the care social
workers, who look at “short-term care,” she had to look at care extending over
the rest of the children’s lives. Her
concern was that grandmother did not have the “ability to protect the children
from their birth parents,” and she had concluded grandmother did not have the
ability to keep mother away from the children.
Grandmother’s behavior since the May incident did not change her mind.

CASA Smith saw nothing
in her 12 or so visits to grandmother’s home that would point to removal. Rather, she saw a “very loving relationship”
and believed removal would be detrimental.
The paternal grandmother agreed, praising grandmother’s care and
testifying removal would be “utterly devastating.”

During grandmother’s
testimony she explained the two incidents with R.S., stating as to the first
she had never given mother permission to take him in the car and denying she
had ever told the social worker any different.
She later testified that as to the party to which mother had taken him,
she had given permission for R.S. to attend because there was to be a monitor
there and there was only a remote possibility mother might be there. She thought mother had progressed in her
treatment so that even if she attended it would not be a problem

As to the second
incident, she stated mother had talked the daycare provider into letting R.S.
leave with her. She also testified
mother had never stayed at her home since that day. She had begun voluntary services after that
second incident, had gone to counseling and Alanon meetings, which she still
attended.

Grandmother also stated
she had had no personal contact with mother from the second incident with R.S.
until the May 5 incident. As to May 5,
she testified she had not planned for mother to be there. In addition, she denied everyone was wearing
beach clothing, explaining that was normal wear for the the children and that
she had purchased a plastic swimming pool a few weeks earlier. As to the statement by Diane, mother’s
godmother, that she had seen mother at the house, Diane meant her own house,
not grandmother’s. Grandmother also did
not believe it was a problem to let Diane monitor visits, even though she was
close to mother.

Grandmother disagreed
with the testimony that she was unable to keep mother away, although she did
concede it was “very stressful to have to constantly push [mother] away and
keep her at a distance . . . .” She believed she could protect the children,
as evidence by her 911 calls when mother had come to her house. She testified she would enforce the
restraining order against the parents.
Neither parent should have a relationship with the children except maybe
monitored visitation at a safe place.
But she would never allow anyone to be alone with the children except
for herself or R.S.’s paternal grandmother, who also loved them.

In ruling in favor of
removal of the children the court noted the evidence that showed grandmother
was “a very loving, affectionate and nurturing
woman[,] . . . described [as] quite intelligent and [who]
has consistently worked and shown the children how to prepare their life in a
way to be productive and constructive.”
The children’s best interest “for love, nurturing and good health have
been exhibited in exemplary fashion by” grandmother. But “[t]hat is not the sole responsibility of
an adoptive parent. . . . [S]afety and stability are
as important as love and affection. Love
and affection can do so, so very much for a child. But if the child is not safe, it is for
[naught]. [¶] As has been characterized,
the safety issue and stability issue, those two issues have not been provided
consistently for the two [children]. . . . [A]s to
the totality of the circumstances, as present from 2010, 2011 and 2012, are
such that one cannot reasonably conclude these children have been safe nor in a
stable environment. [¶]
. . .

[T]he
best interests of the child for safety and stability have not [been exhibited
in exemplary fashion by this caregiver].”


In making these
statements the court relied on SSA’s reports and testimony, including that of
the adoption social worker. Reviewing
the totality of the circumstances it also found it was not unreasonable for SSA
to conclude that mother, “who is a concededly criminal person,” did not
hesitate to lie when it suited her and had “contact with these children of an
improper nature.” She did not find
grandmother credible when she said she did not know mother was at her house
during May 2012. Even though she told
mother to leave she was not surprised to see her.

The court acknowledged
the children would be “devastate[ed]” to be removed, but again emphasized their
safety was “fundamental.” It recommended
that the children be removed gradually “with [a] full compl[e]ment of therapy
and safety mechanisms in place . . . .”



DISCUSSION



A child may be removed
from the custody of a prospective adoptive parent if “removal is in the child’s
best interest.” (§ 366.26, subd.
(n)(3)(B).) We review a court’s decision
to terminate placement for abuse of discretion.
(In re N.M. (2011) 197
Cal.App.4th 159, 171 [abuse of discretion used in reviewing whether removal of
child from home in child’s best interest]; see In re C.B. (2010) 190 Cal.App.4th 102, 123, fn. 5 [whether
termination of parental rights in child’s best interest reviewed for abuse of
discretion]), giving the juvenile court’s decision “‘“broad deference’”” (>In re Levi H. (2011) 197 Cal.App.4th
1279, 1291). In doing so, we view the
evidence in the light most favorable to the court’s decision (>ibid.) and do not substitute our
judgment for that of the trial court (In
re Stephanie M. (1994) 7 Cal.4th 295, 318).
We do not reverse “‘“unless the trial court has exceeded the limits of
legal discretion by making an arbitrary, capricious or patently absurd
determination.”’” (Ibid.)

None of the witnesses
dispute, and the court found that, grandmother is a wonderful caretaker and the
children love her. In addition, there is
no disagreement that it will be very difficult for the children to leave
her. The only question is whether, on
balance, grandmother can ensure the children’s safety, specifically whether
grandmother can keep mother away from them.

Grandmother argues the
court erred because it failed to take into account her current circumstances,
including her therapy and participation in other services, rather than exclusively
considering the prior occurrences. But
the court considered all the events, the SSA reports, and the testimony,
including that of the adoption social worker.
The court specifically stated it had reviewed the totality of the
circumstances, which perforce must include current circumstances. Furthermore, unless there is a specific
failure to include current circumstances in the court’s analysis, we must
presume it did. (See >Armando D. v. Superior Court (1999) 71
Cal.App.4th 1011, 1025.)

Further,
only seven months had elapsed since the May 5 incident. Given the past history of multiple
occurrences where grandmother had not protected the children from mother, that
is not a particularly long time to guarantee that, over the long run,
grandmother would not allow additional contact with mother. The court specifically did not believe
grandmother’s testimony she did not know mother would be visiting on May
5. And some of grandmother’s testimony
gives pause. She still believed it might
be acceptable for the children to see their parents, albeit at a neutral
location with a monitor. Moreover, she
saw nothing wrong with allowing mother’s godmother, who is close to mother and
enjoys her company, to act as a monitor.
And grandmother was unable to accept responsibility for prior actions,
instead making excuses.

Finally, but not least
important, grandmother testified it is difficult for her to “constantly push
[mother] away and keep her at a distance . . . .” This does not support grandmother’s no doubt
well-intentioned belief she would be able to prevent mother from seeing the
children but instead reveals the underlying problem that apparently has plagued
grandmother from the beginning.href="#_ftn2"
name="_ftnref2" title="">[2] Although grandmother focuses on the current
circumstances, the adoption social worker was clear her evaluation was based on
the long term, and it is reasonable to consider grandmother’s overall history
with mother. She had made promises
before to keep mother away and had not been able to fulfill them.

In
a related argument grandmother argues SSA did not prove by a preponderance of
the evidence removal was in the children’ best interests. But, as discussed above, there was
substantial evidence that allowing the children to remain with grandmother
would be detrimental to their best interests.
That there was conflicting evidence is not relevant to our
consideration. “On review of the sufficiency of the evidence, we presume in
favor of the order, considering the evidence in the light most favorable to the
prevailing party, giving the prevailing party the benefit of every reasonable
inference and resolving all conflicts in support of the order.” (In re
Autumn H. (1994) 27 Cal.App.4th 567, 576.)


Grandmother relies on
the prior ruling of a commissioner who decided the application for a
restraining order. When the commissioner
analyzed the circumstances she came out on the side of keeping the children
with grandmother. And grandmother notes there
were no additional negative facts thereafter to bolster a finding of removal. But, as SSA points out, there was no full
hearing with testimony before she issued the restraining order. In addition, the commissioner stated she
would not order removal “today”
(italics added). The fact a second
judicial officer reached a different conclusion after hearing extended
testimony does not mean the ruling at issue here was incorrect or that there
was insufficient proof to support it.

Grandmother also
comments that SSA has not taken any action to remove R.S. from her custody,
arguing this proves there is no danger to any of the three children. But R.S. is grandmother’s adopted son. His removal from her custody involves a
different procedure with stricter standards.
(§ 361, subd. (c).) And
there is nothing in the record to show SSA will not initiate such a procedure.

We do not doubt the
court had to make a difficult decision.
As stated above, no one questioned grandmother’s love for the
children. Grandmother disagrees with the
trial court that the children’s safety and stability is as important as the
fact they have a strong attachment to her and R.S, pointing to testimony to
support this. But safety is a primary
factor. Children are removed from their
parents’ custody in the same situation.
The parents may love their children and the children have never known
another home. But if the parents cannot
protect them, the children cannot remain in their custody.

We applaud grandmother
for the care and love she has given the children and we sympathize with
them. We do not doubt this will be very
difficult for them and agree with the court’s order of gradual removal and
therapy. But the record does not reveal
the court abused its discretion in ordering removal and we must affirm.



DISPOSITION



The petition is denied.





THOMPSON,
J.

WE CONCUR:





O’LEARY, P. J.





RYLAARSDAM, J.