In re Es. C.

Filed 12/3/08 In re Es. C. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County, Terry T. Truong, Juvenile Court Referee. Reversed in part; affirmed in part; remanded.

Raymond G. Fortner, Jr., Los Angeles County Counsel, James M. Owens, Assistant County Counsel, O. Raquel Ramirez for Plaintiff and Appellant.

Merrill Lee Toole for Defendants and Respondents C.C. and R.Y.

Eva E. Chick, under appointment by the Court of Appeal, for minors Ad.C. and Al.C. Joseph D. Mackenzie, under appointment by the Court of Appeal, for minor Es.C.

Jennifer Mack, under appointment by the Court of Appeal, for minor I.C.

Aida Aslanian, under appointment by the Court Of Appeal, for minor El.C.

I. INTRODUCTION

The Los Angeles County Department of Children and Family Services (the department), J.H. and F.H., de facto parents, appeal from a juvenile courts orders and findings of July 21, 2008, granting the Welfare and Institutions Code^[1]section 388 modification petitions filed by the five childrens attorney. The department argues the juvenile court abused its discretion by: giving the relatives preferential consideration for placement; ordering the removal of the children from their de facto prospective adoptive parents and placement with paternal relatives; and, determining that placement with the paternal relatives would be in all of the childrens best interest. Appointed appellate counsel for the youngest child, I.C., who is two years, five months, joins in the departments position. We reverse the order granting the modification petition only as to I.C.

II. BACKGROUND

This case involves the six children of R.Y. (the mother) and C.C. (the father): J.C. (born December 1992); Es.C. (born August 1997), Ad.C. (born October 1998), Al.C. (born October 1999), El.C. (born July 2004), and I.C. (born May 2006). The eldest child, J.C., is not a party to this appeal. On August 26, 2005, the department filed a section 300 petition on behalf of all the children except I.C. who was not yet born. As sustained at the September 23, 2005 hearing, the petition contained the following allegations: the mother physically abused Es.C. by striking him in the face with her fist; the father knew about the altercation between the mother and Es.C.; the father failed to take action to protect the children upon discovering the physical abuse to Es.C.; such abuse endangered Es.C.s physical and emotional health and safety and created a detrimental home environment; the abuse placed all the children at risk of physical and emotional harm, damage, danger, and physical abuse; the children were exposed to violent physical confrontations between the mother and father; and exposure to the confrontations endangered the youngsters physical and emotional health and safety, created a detrimental home environment, and placed the children at risk of physical and emotional harm, damage, and danger. The five children were detained and placed together with a foster parent, A.N. All of the children were represented by a single attorney, Abby Eskin.

The August 26, 2005 detention report stated that the department received a report the father punched the mother in the nose in the childrens presence. The father admitted hitting the mother, but said he did not consider it to be domestic violence because he did not hit her hard enough. The father accused the mother of having sex with other men and not taking care of the children. (As noted, I.C. was not yet born.) The mother said she had not been involved in prostitution since she was 20 years old. The father said the mother did not take good care of the children, cook, or clean the house. While investigating the allegations, Susana Torres, the social worker, learned from the father that the mother had hit Es.C., her then 8-year-old son, in the face with a closed fist two weeks earlier. The mother admitted that she lost control and hit Es.C. with her closed fist. The mother thought Es.C. had dropped El.C., his then four-year-old sister, from the bed. Es.C. told Ms. Torres that the mother had punched him on the cheek. Then 12-year-old J.C. arrived home during the interview. J.C. had remained at a friends home until almost 10 p.m. J.C. did so because he did not want to listen to his parents argue and fight. J.C. said the father constantly insulted the mother and called her bad words in front of the children. The mother and the father screamed at one another. J.C. said he knew his the mother needed help because she cried a lot and always felt sad. The mother admitted that when he was only 18 months of age J.C. had been removed from her custody in 1994, when they resided in Las Vegas, Nevada. The mother stated, I lost control and got [J.C.] and took him in the middle of the street and began to kick him and throw him to the ground. The mother stated she was very depressed. The mother indicated she knew she needed help and wanted to get help but sometimes became very sad and could not control herself. The Nevada child protective services case was opened in August 1994 and closed in October 1998. When interviewed for the Jurisdiction/Disposition Report in this matter, the mother admitted that she had been a prostitute up until earlier in 2005 to supplement the household income because the father was unemployed.

At the September 23, 2005, hearing, the parents pled no contest to the allegations in the petition. The juvenile court ordered: family reunification services; parenting and individual counseling to address domestic violence and anger management issues; and monitored visitation. The juvenile court noted that a Desarrollo Integral de la Familia evaluation regarding potential placement of all of the children with the paternal grandparents in Mexico was pending. On November 18, 2005, the juvenile court ordered that the matter be continued three weeks to accommodate the preparation of the Desarrollo Integral de la Familia report. However, at the December 12, 2005 progress hearing, the report was not yet available. Ms. Eskin, who represented all five children, reported that J.C. and Es.C. indicated that they did not want to go to Mexico. Moreover, Ms. Eskin did not believe it was in their best interests to be placed in Mexico. The juvenile court ordered the evaluation for placement with paternal grandparents continue. At the January 13, 2006, progress hearing, the mothers counsel, Emma Castro, reported that the report was still pending. However, Ms. Castro further noted that neither the parents nor the children desired relocation to Mexico on a permanent basis. On December 22, 2005, the department social worker, Lorena Guzman, verified that the paternal grandparents could not provide a suitable home for the five children, as the residence was too small. On February 16, 2006, J.C., who was then 12 years of age, was removed from the foster placement with A.N. because of his defiant and disruptive behavior and placed in a group home.

I.C. was detained in May 2006 shortly after her birth. When detained, I.C. was placed in the licensed foster home of F.H. and J.H. On May 30, 2006, a section 300 petition was filed by the department. Ms. Eskin represented I.C. The petition realleged the physical abuse allegations of the prior section 300 petition involving the four siblings of I.C. In addition, the May 30, 2006 petition alleged that siblings of I.C., J.C., Es.C., Ad.C., Al.C., and El.C., had been declared dependents based on the same physical abuse allegations. On June 6, 2006, a pre-release investigation hearing was conducted. A department report stated it was in the best interest of I.C. to be placed in foster care. At the June 22, 2006 disposition hearing, the parents submitted on the petition and, the juvenile court sustained the petition pursuant to section 300, subdivision (b) as to I.C. finding substantial danger exists to her physical and emotional health and safety. The juvenile court ordered family reunification services be provided. The mother was ordered to: complete domestic violence counseling; participate in individual counseling to address domestic violence, parenting, and relationship issues; and comply with psychiatric treatment and take all prescribed medication. The father was ordered to complete domestic violence counseling and participate in individual counseling to address relationship issues. The juvenile court further ordered weekly monitored visits by the parents and siblings with I.C. At the August 16, 2006 progress hearing, the juvenile court ordered that all treating therapists be provided with the Evidence Code section 730 report prepared by Dr. Timothy D. Collister.

The section 366.26 permanency planning hearing was scheduled for September 22, 2006. A progress hearing was scheduled for I.C. on the same date. In light of the departments recommendation that parental rights be terminated, the parents requested that a contested hearing be held on the parental termination rights issue. The department filed a status review and progress report for the two scheduled hearings. The September 22, 2006 department report revealed: the oldest child, J.C., was in a group home where he had been placed on February 16, 2006 ; Es.C., Ad.C., Al.C., and El.C. were in the home of A.N. where they had been placed at least since August 25, 2005; and I.C., who was now approximately five months old, remained in the home of F.H. and J.H. since being placed there on May 24, 2006. The social workers status report revealed that although the parents had enrolled in domestic violence and parenting classes, they had not completed all of them. In addition, the parents only enrolled in individual counseling when informed that reunification could be terminated. Also, at an unsupervised visit with Es.C., Ad.C., Al.C., and El.C. on September 17, 2006, the parents brought their compadres who had recently been released from prison. The parents got into a loud argument. According to the mother, the father called her names like, prostitute, whore and puta and spit in her face. The mother reported that the father also pushed her and called her names. The compadres were staying at parents residence until they could save money for their own place. The father told the social worker that mother had begun prostituting again and came home at 1:30 or 2 a.m. Es.C., Ad.C, Al.C., and El.C. returned to their foster home crying and emotionally distressed. Es.C. told the foster mother, I dont want to go with my mom and dad, promise me I am not gonna to [sic] back with mom and dad. The social worker reported that the children continued to make positive adjustments to their foster placement and academically. J.C., who was still residing in the group home, continued to exhibit negative behavior and defiance.

The contested section 366.22 hearing on November 6, 2006, was held as to all six children. The juvenile court found by a preponderance of the evidence: the return of the children to the physical custody of the parents would create a substantial risk of detriment to the youngsters physical and emotional health and safety; there was a continuing necessity for current placement; the parents had partially complied with the case plan, but had not adequately addressed the issues that led to the dispositional orders; and reasonable effort had been made to return the children to the parents. The juvenile court ordered that the children remain dependents of the court under section 300. The juvenile court terminated family reunification services and ordered that the suitable placement order remain in full force and effect.

On February 27, 2007, Es.C., Ad.C., Al.C., and El.C, were moved to the foster home of the F.H. and J.H., where I.C. had been placed since birth. A.N., the foster parent of Es.C., Ad.C., Al.C., and El.C. since at least since August 25, 2005 was unwilling to adopt them. Additionally the relatives of A.N. were unwilling to adopt Es.C., Ad.C., Al.C., and El.C. F.H. and J.H. had come to know Es.C., Ad.C., Al.C., and El.C. during visits with I.C. F.H. and J.H. were interested in adopting all five children. As can be noted, the oldest child, J.C., who remained in a group home, was not among the children who moved into the home of F.H. and J.H. In the March 5, 2007 section 366.26 report, Social Worker Trainee Maria Sosa noted: [I.C.] has become very closely bonded with Mr. and Mrs. H. and their entire family. [I.C.] displays behaviors indicative of a healthy attachment.

At the scheduled March 5, 2007 section 366.26 hearing, the father was not present. But the fathers sister, M.L. was present. After the parents reiterated their desire for a contested permanency planning hearing, the fathers counsel, Lynda Attenborough, asked that his sister, M.L., be evaluated for placement. Ms. Attenborough explained, She didnt come forward before because she believed the parents would be able to get the children back. The juvenile court noted that M.L. could be evaluated but an assessment pursuant to the Interstate Compact on the Placement of Children would be necessary since she lived in Nevada. (Fam. Code ,  7901.) However, no such assessment was ordered on March 5, 2007. However, the department was ordered to evaluate M.L. as a possible placement.

M.L., the paternal aunt, was interviewed by social worker Nathan Singer. M.L. said she visited the children, except I.C., every six months. M.L. learned that the former foster mother, A.N., declined to adopt Es.C., Ad.C., Al.C., and El.C. Thereupon, M.L. and her husband, A.L., agreed that they would like to adopt them. M.L. explained that the prior visits were sporadic because the mother had claimed that everything was fine and the children would be returned to the parents. The April 24, 2007 report by Ms. Sosa also described the relationship of I.C. with F.H. and J.H., [I.C.] appears to be very close to the Prospective Adoptive Parents, she refers to them as mama and dada. I.C. was described by Ms. Sosa as well adjusted to her home and prospective adoptive parents. F.H. and J.H. wanted to adopt all of the children except J.C. who remained in the group home.

On April 26, 2007, the juvenile court conducted a continued section 336.26 hearing. M.L. and A.L. were present. Ms. Eskin, who represented all of the children, reported that Es.C. and Ad.C. did not want to stay with the prospective adoptive parents, F.H. and J.H. Rather, Es.C. and Ad.C. preferred to live with the paternal aunt and uncle, M.L. and A.L. in Nevada. The juvenile court declined to order an interstate assessment because the two children would not be able to see their siblings that often but approved monitored visits for M.L., the paternal aunt, with the children; although the oral order did not limit the proposed visitation to youngsters with whom she had previously visited. The juvenile court further ordered that the former foster parent, A.N., be allowed two monitored visits with the children. Neither M.L. nor A.N. were to discuss the facts of the case or possible placements with the children or in their presence.

On May 7, 2007, M.L. and A.L. filed a request to change order. In that request, M.L. and A.L. requested the juvenile court allow the children, except for J.C., to remain with F.H. and J.H. for three months. If after three months the children were unhappy, M.L. and A.L. requested placement of the five youngest children, including I.C., in their home. The juvenile court denied the request finding it was not in the best interests of the children to change the existing order. When interviewed by the social worker at their school, Es.C., Ad.C., and Al.C. indicated that they wanted to live with M.L. in Nevada. The three children had never been to M. L.s home. The children stated M.L. told them she wants them to go live with her in Las Vegas. The children said they wanted to live with M.L. because, [S]he has a pool and, [W]e can play and eat there.

On May 7, 2007, a review hearing for all six children was held. The juvenile court indicated that it had considered all permanency planning options for J.C. and found he was not a proper subject for adoption and no one was willing to accept legal guardianship. Permanent placement with a foster parent with a goal of emancipation was ordered as the permanent plan for J.C. At the request of Ms. Eskin, who continued to represent all of the children, the juvenile court ordered an interstate assessment for placement of the other children with M.L. and A.L. in Nevada. M.L. and A.L. were present at the hearing.

A section 366.26 hearing was held on July 16, 2007. Ms. Eskin, who represented all of the children, requested that the permanent plan hearing be continued because: four of the five children had only been living with F.H. and J.H. for a few months; some mental health goals had not been met by the children; and the Nevada placement was still being assessed. The juvenile court ordered that there be no discussion with the children regarding placement. The juvenile court also found that the permanent placement of J.C. with a foster parent with the specific goal of legal guardianship for independent living was appropriate.

On October 2, 2007, the Clark County Department of Family Services concluded it would not be in the best interests of the five youngest children if they were placed in Las Vegas with M.L. and A.L. The reasons for the finding concerning the childrens best interests were: M.L. and A.L. had never parented children with special needs; Es.C., Ad.C., and Al.C. all were special needs children; M.L. and A.L. were in denial about the special needs of Es.C., Ad.C., and Al.C.; the child care plans and sleeping arrangements were of concern; there was a lack of availability due to the involvement of M.L. and A.L. in their church; M.L. and A.L. do not believe in psychotropic medications; and M.L. and A.L. intend to address the childrens special needs from a scriptural/religious perspective. The assessing social worker stated, [T]his worker has strong reservations about their [] ability to follow through and accept and act on suggestions due to their personal beliefs [Es., Ad. and Al.] clearly have special needs that will need to be closely monitored and ongoing professional intervention will be required. M.L. and A.L. minimized the childrens behavior by stating they believed the current foster parents are exaggerating so they will receive a special foster care rate. It was noted that A.L. failed to reveal any law enforcement history on his application or during the interview. However, a local police check revealed findings for A.L. The social worker foresaw problems with the ability of M.L. and A.L. to appropriately manage the childrens behaviors and meet their counseling needs. At the November 5, 2007 progress hearing, the juvenile court found continued jurisdiction and placement necessary and appropriate. The juvenile court ordered the permanent plan of adoption should continue. The status review report prepared for the hearing noted that the home study for F.H. and J.H. was approved and they had agreed to adopt all five children. Social Worker Kathia Flores noted: [Es.C., Ad.C., and Al.C.] have expressed they like their current placement and refer to foster parents as mom and dad. They have also expressed they want to live there, but that they also wouldnt mind living with their paternal aunt, [M.L.] in Las Vegas. Ms. Flores also noted: The minors have improved in their behavior, eating habits, school grades and in their personal appearance. The minors also seem well bonded with their foster parents. [I.C.] has been with the foster parents since she was 5 days old, thus has known her foster parents all her life and has a good attachment to them.

At the section 366.26 hearing on January 14, 2008, it was noted that the Nevada authorities had reconsidered their decision regarding the placement of the children with M.L. and A.L. under the Interstate Compact on the Placement of Children. The Clark County Department of Family Services requested that the California authorities resubmit the interstate referral for approval. The department objected to this reconsideration based upon sufficient facts regarding the inappropriateness of the placement in the Nevada social workers initial assessment. Moreover, the department argued that I.C. had been with F.H. and J.H. since birth and the other four children had been placed with them since March 2007. Actually, the four remaining children had been placed with F.H. and J.H. on February 27, 2007. In his informational report for the juvenile court, Nathan Singer, the children adoptions social worker noted, The children continue to thrive in their current placement, and the caregivers remain fully committed to adopting them. At the January 14, 2008 hearing, the department argued that at the July 16, 2007 section 366.26 hearing, the matter was continued because the children had only been with F.H. and J.H. a few months. The department objected to further continuance noting that the adoption by F.H. and J.H. and termination of parental rights was the appropriate plan. Ms. Eskin, who represented all of the children, and the parents argued that the placement with M.L. and A.L. in Nevada should be pursued. The juvenile court ordered that counsel be appointed for F.H. and J.H. and that the interstate request be resubmitted to Nevada. The Interstate Compact for the Placement of Children request was submitted for reconsideration on January 24, 2008. On February 7, 2008, the Nevada social worker indicated she was completing her home study. On February 13, 2008, Nevada authorities indicated they were awaiting: a waiver for A.L., the paternal uncle; a background check for the sister of M.L. who would provide babysitting; and construction of a fence around the pool.

On February 15, 2008, the juvenile court granted unmonitored visits with the children for M.L. in Southern California over the objections of the department. The visits of A.L. were to be monitored by M.L. The juvenile court granted de facto parent status to F.H. and J.H.. The children had an unmonitored visit with M.L. on March 1, 2008. Upon returning, the children informed F.H. that they had seen their parents and former foster parent, A.N. M.L. telephoned the social worker on March 4, 2008 to explain that she drove the children to Los Angeles. While in the childrens old neighborhood, they saw the parents walking along the street. M.L. explained she allowed the parents to speak with the children. M.L. claimed the encounter was coincidental and unplanned. M.L. had contact with A.N. M.L. said she and the children were in Los Angeles and made arrangements for a meeting. When the social worker, Karina Reyes, interviewed the children on March 6, 2008, Al.C. reported that they saw their parents walking down the street near their old house. Al.C. further reported that they saw A.N. at a pizza parlor. Ad.C. told Ms. Reyes that his parents came out of nowhere when they were driving in their old neighborhood. Ad.C. told Ms. Reyes how their old house had changed as the furniture was re-arranged. However, he corrected himself to say that his parents told him how it was different. Ad.C. also acknowledged the presence of A.N. at the pizza restaurant. Es.C. said that while they were parked near their old house, their parents were walking down the street. While at the pizza parlor, Es.C. saw A.N. but did not really speak to her. On March 12, 2008, a departmental group discussion resulted in a decision to change the visitation status of M.L. to monitored based on what had occurred. However, at a non-appearance hearing on March 21, 2008, the juvenile court ordered the visitation with M.L. remain unmonitored.

The Nevada home study was signed on April 2, 2008, approving placement with M.L. and A.L. The home was approved for six months, expiring on October 7, 2008, if not used or cancelled. The Clark County social worker noted: 1) You will need court permission to place; 2) the foster home study remains pending in NV. . . . [and] IV E payment on the basis of this approved relative home, [and] will not be able to do so until we receive the approved foster 100as [and] foster license . . . . The departments interim review report dated April 7, 2008, expressed concerns that the Nevada authorities stated a local police check revealed findings regarding A.L. but did not state what criminal conduct was involved. The report also stated that A.L. did not pass the federal background check. No further explanation was given. However, a waiver was obtained by Clark County. The department also noted: In regards to the specialized parenting [the report] states the only issue of concern noted in this section is that they [M.L. and A.L.] do not seem to have realistic expectations about caring for the [] children. They seem, to believe that once they are placed with them that a lot of there[ sic] special needs will be alleviated. The department noted that M.L. and A.L. had only six visits with the children in two years and only recently showed an interest in caring for them. The department continued to recommend adoption by F.H. and J.H. be identified as the permanent plan for the five younger children based upon their provision of a stable environment for five youngsters. Also, the department based its recommendation on the ability of F.H. and J.H. to meet the childrens special needs. F.H. and J.H. were willing to maintain contact with the parents after the adoption is finalized. Moreover, I.C. had been in the care of F.H. and J.H. within several days of birth. Further, Social Worker Karina Reyes noted that I.C. was extremely attached to the Hs as the only caretakers she has known. The department believed the removal of I.C. from F.H. and J.H. could cause emotional attachment issues.

At the May 5, 2008, permanent review hearing, the juvenile court found as to the five youngest children, The permanent plan of adoption is appropriate and is ordered to continue as the permanent plan. The juvenile court also granted Ms. Eskins request for overnight weekend visits with M.L. and A.L. at their Nevada home. The juvenile court also ordered and Evidence Code section 730 evaluation by Dr. Nancy Kaser-Boyd for all of the children, including J.C. The evaluation was ordered to assess the sibling relationship among all of the children. In its May 9, 2008, written order the juvenile court noted particular concern regarding the relationship between I.C. and the other children. The order stated: The court is considering two options for a permanent plan for these siblings. One plan is placing minors 2-5 (and minor 1 in the future) with their paternal aunt and uncle [M.L. and A.L.] with a plan of adoption and leaving I.C. (minor 6) as currently placed with [F.H. and J.H.] with a plan of adoption. The other plan is placing minors 2-6 with their aunt and uncle in Las Vegas. The court would like an analysis of the attachment between [I.C.] and her siblings and between Irene and [F.H. and J.H.], including the emotional harm caused to I.C. if she were to be removed from her siblings compared to the harm caused to I.C. if she is removed from [F.H. and J.H.]. [] Considerations of each plan include that: supervised visitation with birth parents will be maintained if children are placed with aunt and uncle. [I.C.] has been placed with [F.H. and J.H.] since birth. On June 3, 2008, the juvenile court granted the request of F.H. and J.H. for prospective adoptive parents status.

On June 11, 2008, Ms. Eskin, who represented all of the children, filed a section 388 petition regarding Es.C., Ad.C., Al.C., and El.C. Ms. Eskins modification petition sought to remove these four children from the placement with F.H. and J.H. and place them with M.L. and A.L. in Las Vegas. Ms. Eskin argued the juvenile court should modify the existing order based upon their preference and to promote the safe and appropriate contact between the four youngest children and J.C. as well as the parents. On June 25, 2008, Ms. Eskin filed a similar petition on behalf of I.C.

On June 24, 2008, nearly three years after the initial section 300 petition was filed, the juvenile court heard testimony regarding the section 388 petition filed by Ms. Eskin regarding Es.C., Ad.C., Al.C., and El.C. The testimony continued to June 25, 2008, at which time the juvenile court noted that a section 388 petition had also been filed on behalf of I.C. The parties waived notice on that petition. The juvenile court ordered that the second petition would be part of the written closing arguments as well as the decision to be made on July 14, 2008.

On July 21, 2008, the juvenile court granted the section 388 petition as to Es.C., Ad.C., Al.C., and, El.C., noting that the changed circumstance justifying that modification was Nevadas approval for placement with M.L. and A.L. The juvenile court further found: [I]t would be in those four childrens best interest to reside with the paternal aunt and uncle since they have all indicated - - at least, the three older have indicated - - they want to live with the aunt and uncle. [] As for [El.C.], shes always lived with her siblings, and it would also be in her best interest to go with her siblings to the aunt and uncles home.

The juvenile court noted that the section 388 petition as to I.C. was more problematic. The changed circumstance was also the Nevada placement approval. However, the juvenile court stated, The best interest argument turns on whether it is in [I.C.s] best interest to stay with her siblings. The juvenile court observed that I.C. had been placed when she was several days old. The juvenile court found, Clearly, there is a bond between [I.C.] and [F.H. and J.H.], and [F.H. and J.H.] have taken good care of [I.C.]. The juvenile court noted a difference of opinion regarding I.C.s bond with her siblings: J.H., the prospective adoptive mother, testified there is no bond. M.L., the paternal aunt, testified there is a deep relationship between all the siblings; Dr. Kaser- Boyds evaluation noted the siblings reject I.C.; and the childrens therapist observed the youngsters played together and helped one another, including I.C. The juvenile court observed: Whats troubling to this court is that while [F.H. and J.H.] state that they want to adopt the children in their care, they do not have much positive things to say about the children except for [I.C.]. Their main concern seems to be to protect [I.C.] from the other children, which raises the concern they may be keeping [I.C.] away from the other siblings. [] It is questionable whether [F.H. and J.H.] would continue with the sibling contact if they adopt [I.C.], given their concerns about the other siblings harming [I.C.]. Ultimately, the juvenile court granted the section 388 petition as to I.C. finding: By preponderance of the evidence, the court finds that there is sufficient evidence to find that there is a sibling relationship among the children and that it would be in I.C.s best interest to join her siblings in being placed with her paternal aunt and uncle, and that petition is granted.

III. COURT ORDERED EVALUATIONS

A. Dr. Timothy Collister

In June 2006, the juvenile court ordered an Evidence Code section 730 evaluation be conducted. Dr. Timothy Collister reviewed the records related to the parents and the four oldest children. Medical records related to the mother revealed a diagnosis of recurrent major depressive disorder and bipolar disorder. The mother readily admitted to performing prostitution from age 16 to present and to physically abusing both J.C. and Es.C. Testing revealed that the mothers understanding and empathy for others and awareness of how she hurts and alienates them was seriously distorted. The father admitted having striking the mother. This occurred after the mother hit Es.C. in the face. The father, who has epilepsy, became aware of the mothers prostitution early in their relationship. Further, the father dropped out of school in the fourth grade while in Mexico and demonstrated significant anger regarding the mothers betrayal and actions.

J.C. lived with his aunt from age one through five when he was returned to his parents. He reported that after being removed from his parents home in August 2005, he was in a foster placement with his four younger siblings. J.C. admitted having been removed because he behaved badly. Following another foster placement failure, J.C. was placed in Eggleston Youth Center. J.C. reported being struck once or twice weekly by the father. J.C. was aware of his mothers prostitution. J.C. was found to have a depressive disorder with prior suicidal ideation. J.C. also suffered from a defiant disorder.

A.N. reported that Es.C. had difficulty understanding and comprehending. He had progressed from completing one out of multiple-step commands to two-step commands. Es.C.s intelligence testing demonstrated verbal comprehension was at the lower end of the normative level, causing concern about neuropsychological deficits. Dr. Collister concluded: [The Rorschach test] perhaps is most indicative of defense mechanisms being near their limit, nearly being overwhelmed, in their ability to contain underlying emotional pressures and turmoil, with it very easy now for psychiatric symptoms or decompensation to occur as further stress is imposed. The Rorschach results also suggested significant underlying emotional pressure which may tend to vent in an unmodulated fashion. Further, Dr. Collister stated the Rorschach results indicated the emotional pressure would lead to defiant conduct.

A.N. reported that Ad.C. was suspected of having autism. Ad.C. attended special education classes. Ad.C. communicated more with signs than words. Ad.C. became very angry with Al.C. and hit her hard. Ad.C. tried to drown Al.C. Ad.C. exploded when things did not go his way. Ad.C. had tantrums approximately three times each day. Ad.C. and Es.C. had frequently been hit by J.C. Dr. Collister found Ad.C. to have regressed behavior and anxiety and low frustration tolerance. Dr. Collister noted: The Rorschach as well as the other projectives were highly noteworthy for a level of aggressive ideation which is rarely seen in these evaluations, even with children who have been exposed to substantial violence. Violent responses on the Rorschach were noted throughout, then with the regression noted in the manner in which he responded, which appeared to relate to emotional neediness.

A.N. reported that Al.C. also had difficulties with limited comprehension. Al.C. reported that she was physically abused by her brother, Es.C. Al.C. also indicated that Ad.C. had sexually abused her. Al.C.s overall level of cognitive function was at the lower end of the borderline range, There was borderline function for abstract reasoning, as well as for general comprehension, as well as appreciation of societal norms and social judgment. Al.C. was found to have an adjustment disorder.

Dr. Collister also observed the parents interaction with Es.C., Ad.C., and Al.C. in a playroom during a second interview. Dr. Collister concluded: It stands out that both the mother and father show limited cognitive function. The mothers cognitive function has probably been limited across her life. In addition, there is major depression which apparently emerged at least by age 15, with suicidal ideation. In addition, her life history as well as test results suggest the probability of a mixed personality disorder, marked by borderline features as well as possible schizoidal traits. The father . . . quite possibly had more significant cognitive function previously . . . However, those results in the average range are clearly discrepant from the results on measures which may relate more to current function. . . . It is reported that he experiences a neurological process which is reminiscent of cysticercosis, which appears to involve tumerous masses in the brain, and may relate to seizures.

J.C. was described as having a mild depressive disorder along with reactive oppositional defiant disorder. With regard to Es.C., Dr. Collister noted: The results of projective testing suggest significant ego fragility, viewing the world about him as aggressive, rendering him overwhelmed. There is also gross identity disturbance for his age. Dr. Collister continued regarding Ad.C.: Perhaps the most complicated situation psychiatrically relates to [Ad.C.]. His projective protocol was highly disturbed, with a quite unusually high level of aggressivity seen across all projective tests in most all items. His defense mechanisms appear to be overwhelmed. The most optimistic formulation is that this would be reactive to what has occurred in the home with substantial chaos, domestic violence by the father against the mother, physical abuse against the older brothers, and physical abuse by [J.C.] and [Es.C.] against him. . . . All told, the protocol with projective testing and his behavioral status, as well as his regressed manner of interacting during the evaluation raises the possibility of a more significant psychiatric disorder such as a bipolar disorder. Regarding Al.C., Dr. Collister stated: [She] shows the least reaction to what has occurred. However, this may simply relate to her utilizing defense mechanisms including repression and denial successfully, pushing off and refusing to interact with material which provokes and elicits underlying emotional turmoil.

Dr. Collister recommended that: Es.C., Ad.C., Al.C. remain in foster care and that J.C. remain in the Eggleston Youth Center; J.C. and Es.C. receive therapy with possible medication; Ad.C. receive at least weekly therapy; Al.C. receive biweekly therapy; and monitored visitation with parents be continued. Dr. Collister believed the prognosis for successful reunification was low even if the parents complete the court ordered therapy.

B. Dr. Kaser-Boyd

Dr. Kaser-Boyd conducted the court-ordered psychological evaluations of the five children and F.H. and J.H. regarding placement and subsequent adoption. Dr. Kaser-Boyd saw the five youngest children and F.H. and J.H. in an office setting, observed their interactions, and interviewed them individually. Dr. Kaser-Boyd submitted a report dated June 3, 2006.

Es.C. has a history of learning disabilities. Es.C. indicated he preferred to live with M.L. and A.L. in Las Vegas. Es.C. reported that he and his siblings recently had a two-day visit with them in Las Vegas. Es.C. indicated, J.C. and the parents were also present at that time. Es.C. liked F.H. This was because F.H. bought toys for them, took them to the park, and performed magic tricks. When asked why the older children did not play with I.C., Es.C. said, Its because she doesnt want to.

Ad.C. was very guarded during his interview. Ad.C. also voiced a preference for living with M.L. and A.L. But Ad.C. did not know A.L.s name. Ad.C. became more defensive as the interview progressed, often giving no responses. Ad.C. was asked why the other children did not play with I.C. Ad.C. said Al.C. did not want to play with I.C. This was because I.C. would hit Al.C. No interaction between Ad.C. and I.C. was observed during the four hours at Dr. Kaser-Boyds office.

Al.C. was more verbal than her older brothers. However, like them, Al.C. realized that she was speaking to a psychologist. Al.C. wanted to live with the paternal aunt, M.L. in Las Vegas. Al.C. was asked about I.C.: I asked [Al.C.] about her sister [I.C.]. She said, Only kind of good. I asked what she meant by only and she said[:] She keeps on bothering me. She destroys my stuff. She hits me for no reason, when I did nothing to her. Her tone her is very negative and not at all forgiving that her sister is basically a baby. Dr. Kaser-Boyd explained that Al.C.s tone of voice displayed dislike of I.C. During the play session, Al.C. directed two behaviors at I.C. Al.C. would sometimes ignore I.C. Or Al.C. would angrily stare at I.C. Al.C. was asked if her parents were in Las Vegas during the visit with M.L. and A.L. Al.C. looked anxious and denied they were present. When asked how life was with the F.H. and J.H., Al.C. said, They care about me but I dont like them.

El.C. and I.C. were evaluated through observation rather than pursuant to interviews based on their ages. El.C. played with her older siblings. Also, El.C. went to F.H. and J.H. in another room 25 feet away for attention. El.C. essentially ignored I.C. El.C. played on a parallel fashion with I.C. rather than interactively. However, Dr. Kaser-Boyd believed a relationship could eventually develop between the two girls based on their ages and El.C.s temperament. I.C. was clear in her pattern of attachment. I.C. started out with the other siblings in the playroom. The older siblings completely ignored I.C. and dominated playing with the toys. When this occurred, I.C. returned frequently to F.H. and J.H. in the adjoining room. Al.C. was observed to hoard toys, taking them out of reach from I.C. Al.C. handed them to her brothers. The effect of this activity was to keep the toys away from I.C. At times, when I.C. went back to the playroom, she called to F.H.: Dad! Dad! Play toys! Thereafter, I.C. would go back to F.H. and J.H. for attention.

Dr. Kaser-Boyd observed no playful interaction between the older siblings and I.C. They did not talk to I.C., ask her what she was doing or where she had been. I.C. spent approximately 25 minutes of the 1 hour of observation returning to F.H. and J.H. Over the 4 hours of interviews and observation, I.C. spent 85 percent of her time with F.H. and J.H. I.C. did not seek any of her siblings for comfort. At one point, J.H. stood up to go to an individual interview. I.C. ran after J.H. yelling, Mommy! I.C. was allowed in the interview room and spent the time in J.H.s lap. Eventually, I.C. left to see Daddy but returned within minutes yelling, Mommy! I.C. went back and forth between F.H. and J.H. and displayed significant attachment to them. The older children were positive toward F.H. and J.H. Es.C. called F.H., Dad. Al.C. searched out F.H. and J.H. on several occasions, usually to enforce rules to protect her toys.

F.H. reported that I.C. was placed with him and his wife several days after birth. When they learned she was available for adoption, they immediately said yes. F.H. and J.H. were familiar with I.C.s older siblings because they had several four-hour visits with the youngsters and the parents. When F.H. and J.H. learned that the adoptive plan for the other siblings did not materialize, they agreed to have all of the children (except J.C.) placed with them so that I.C. could unify with them. When asked how the children interacted with one another, F.H. said that because E.C., Ad.C., and Al.C. had been sexually molested by J.C., they openly touched themselves and each other. This required close supervision by F.H. and J.H. F.H. indicated that they had caught Al.C., Es.C., and Ad.C abusing El.C. F.H. further reported that Al.C. hit El.C. and Ad.C. F.H. noted that Es.C. would bully and intimidate the younger children. F.H. worked with El.C. to teach the youngster that the children are all equal. F.H. stated Es.C. quickly angers and punches the wall. Al.C. also has a very short temper. However, F.H. tried to be impartial and teach them to be fair. F.H. stated that Es.C. had stolen things from the home.

Ad.C. had a habit of inappropriately touching his sisters. After their recent visit to Las Vegas, Ad.C. got close to Al.C., who pulled down her top. Ad.C. was licking Al.C.s nipples. After being separated and watched closely, F.H. saw Al.C. again pull down her t-shirt while Ad.C. kissed her nipples. As noted, this occurred after the five youngsters had returned from the Las Vegas visit. El.C. also told F.H. that her brother was bothering her. Al.C. had previously told F.H. and J.H. that J.C. used to pee in her mouth. F.H. and J.H. were told that J.C. had sexually molested his four younger siblings. F.H. expressed concerns about I.C. After the trip to Las Vegas, I.C. pulled her pants down and went over to Ad.C. El.C. reported that Ad.C. touched I.C. in the bathroom in Las Vegas. Al.C. was also caught manipulating El.C.s private parts.

Despite all these problems, F.H. believed that significant progress had been made in the previous six months and that he was committed to raising all the children if the juvenile court gives him the opportunity to adopt them. F.H. said, After all, they are just children and they can improve. F.H. reported that I.C. has epilepsy as does the mother. F.H. worried that she might not be developing appropriately. Dr. Kaser-Boyd noted that F.H. appeared to be very sincere in his efforts to help these children. She observed that I.C. and El.C. are attached to F.H. F.H. also made a financial commitment to add rooms on to his house for each child if the juvenile court allowed him to adopt them.

J.H. was observed to be very loving and maternal toward I.C. She was also seen to be very kind with all of the children. Dr. Kaser-Boyds report states: [J.H.] was observed to be very loving to [I.C.] Like her husband she appears to be a very warm person with good values. She was observed to be very kind with all the children. She got a little tearful as described how the older children exclude [I.C.] and take toys away from her. She said for example, If all the children are playing at a table and [I.C.] comes to approach them to play, they will take all their toys and move to another table. J.H. reported that I.C. was very distraught after the Las Vegas visit. I.C. had cried, Mom! Dad! all night and said, [Es.C.]! No! I.C. followed J.H. around for three days after returning. J.H. stated that with more time, patience, and love she hoped the children would improve. J.H. wanted all of the children to be together. J.H. feared that the children did not love I.C. During the interview, J.H. stated, Es.C. is very attached to me. He comes and gives me a kiss or a hug and when I leave to [go to] the store he wants to know where I am going. However, Al.C. is more to herself, often did sexually related acts, and lied for no apparent reason. Dr. Kaser-Boyd found J.H. to be credible, kind, and nurturing. J.H. was committed to I.C. and wanted to extend the family to the other siblings (except J.C.).

Dr. Kaser-Boyd concluded that I.C. was very significantly attached to F.H. and J.H. While I.C. seems interested in her siblings, they did not include her in play nor interact in any way over a long period of observation. I.C. was very affectionate and engaged with both F.H. and J.H. Dr. Kaser-Boyd concluded: It is my opinion that the attachment is equivalent to that of a natural parent and child. When there is this level of attachment, there is a clear detriment to disrupting the attachment equivalent to taking a child from their real parents. There is typically a period of grieving, as if the parent has died. In addition to the grief response, which can include disruptions in sleep and appetite, there can be angry acting out, which alienates new caretakers and puts the child at risk for rejection or abuse. Some children develop a formal attachment disorder, and have serious difficulty forming a trusting bond with a new caretaker.

Dr. Kaser-Boyd further believed that the four older siblings were overtly rejecting I.C. Dr. Kaser-Boyd noted: While there is no doubt there is an abstract benefit of a relationship with siblings, if the younger children are the target of the older childrens aggression, there is a clear detriment to the younger child[children]. I observed that [Al.C.] is quite angry at [I.C.] and I could not rule out the possibility that [Al.C.] would be mean or abusive to [I.C.] when adults are not looking. There is also the spectre of sexual abuse of the girl siblings . . . . Dr. Kaser-Boyd continued: I was given a history of substantial sexual acting out by [Es.C., Ad.C., and Al.C.], and this presents a clear risk to the minor I.C. It is my opinion that the other girls are also at risk and that [Al.C.] is both a victim and a perpetrator. Dr. Kaser-Boyd concluded: For the above reasons, it is my opinion that it is in [I.C.s] best interest to be adopted by [F.H. and J.H.] Sibling visits could be of potential benefit, but only if these are tightly supervised and the issues surrounding angry and sexual acting out are resolved. If sibling visits are ordered, I would suggest that [F.H. and J.H.] be the [persons] supervising as they have much clarity about the effect of sexual abuse and reasonable interventions for sexual-acting out children.

IV. SECTION 388 HEARING TESTIMONY

A. Veronica Gonzalez

Veronica Gonzalez, a marriage and family therapist intern, was the treating therapist for Es.C., Ad.C., and Al.C. from September 2007 to the June 2008 hearing. Ms. Gonzalez testified at the section 388 hearing on June 24, 2008. Ms. Gonzalez met weekly with Es.C., Ad.C., and Al.C. at their home for 45 to 60 minutes each. F.H., J.H., El.C., and I.C. are present in the home during the therapy. Ms. Gonzalez observed El.C. and I.C. as they passed by the living room during a discussion with the older children. Ms. Gonzalez reported that all three of the older siblings had been diagnosed as having post-traumatic stress disorder. They had also been found to have been exposed to violence in the home. The treatment goals for Al.C. were to reduce: symptoms of depression; sexual acting out; and both daytime and nighttime urinary accidents. The goals for Ad.C. included: reducing anxiety and confusion; decreasing avoidance; and increasing pro-social behaviors. Ms. Gonzalez reported that while Ad.C. had begun to open up more in therapy, he also appeared to express more anger. Ms. Gonzalez indicated that recently Ad.C. expressed a desire to live with M.L. and A.L. Within the previous three months, F.H. and J.H. had told Ms. Gonzalez that Al.C. had tried to lure the younger girls into her bed. Ms. Gonzalez incorporated discussions of inappropriate sexual behavior in Al.C.s therapy sessions. Ms. Gonzalez also met with all three children regarding inappropriate touching. Ms. Gonzalez believed if family and individual therapy were provided, the five children could function well despite the sexual behavior. However, Ms. Gonzalez believed J.C. should be separated from the younger children. In the previous week, Ms. Gonzalez had asked Al.C. to write down what events occurred in Las Vegas, specifically regarding whether there had been any touching and who was present. When Ms. Gonzalez arrived at the residence of F.H. and J.H., Ad.C. and Al.C. were writing letters on the same subject. F.H. had asked Ad.C. and Al.C. to write letters on the touching issues. Al.C. admitted touching either El.C. or I.C. while at the home of M.L. Al.C. believed J.C., Es.C., and their male cousin had played together doing something but did not further explain what had occurred in writing. When asked if she had previously said that J.C. was not present in Las Vegas, Al.C. said that F.H. told her to write that down. Al.C. seemed uncomfortable about talking further about the subject, so Ms. Gonzalez did not pursue it. Ms. Gonzalez never resolved whether J.C. was present when the children visited Las Vegas.

Ms. Gonzalez met with the five children, M.L. and A.L., and their two children on June 23, 2008, for over two hours. The children had begun to share about their visit with M.L. and her husband, A.L. The children spoke mostly about the pool and having done fun things and appeared very happy. However, after a short time, they moved to the lobby area of Ms. Gonzalez office due to the warmth in the room where the interview was transpiring. The children then began playing on the floor. I.C. sat on the lap of M.L. I.C. was smiling and referred to M.L. as Mom on various occasions. After the group moved to the lobby, I.C. was with the children part of the time and then on the lap of M.L. Al.C. was trying to help El.C. color with crayons. Ms. Gonzalez believed that Al.C. gave I.C. a piece of paper for coloring. Ms. Gonzalez did not believe I.C. was too interested. Al.C. appeared happy. Ms. Gonzalez noted: [Al.C] was not fighting with the girls. What Ive observed, sometimes shes kind of pulling things away from them, and she didnt do that at all this time. The fact that I actually seen her ask [El.C.] to come over - - you know, she called her over to give her the crayons. I was very surprised. I didnt think she would be that cooperative with her and just volunteer for help . . . . Es.C. and Ad.C. also seemed happy.

Ms. Gonzalez spoke to M.L. and A.L. about the need for continued therapy to address Es.C.s and Ad.C.s anger. M.L. and A.L. were responsive to family therapy if recommended. Al.C. liked the fact that M.L. had been playing in the pool with them rather than just watching over. M.L. and A.L. shared that they had grown up in large families and were willing to take on what they knew was a difficult challenge. Ms. Gonzalez stated that Ad.C. would require special classes in a new school and that the children might need to be evaluated regarding understanding and processing information. In addition, Ms. Gonzalez believed the three older children should continue with individual counseling. Al.C. had recently opened up about how J.C. had sexually abused her. Ms. Gonzalez believed that therapy regarding that subject should be continued. Es.C. and Ad.C. needed help managing anger.

Ms. Gonzalez indicated that she had no expertise in evaluating sibling bonds. Ms. Gonzalez acknowledged that I.C. played with the other children only briefly then was often with M.L. Ms. Gonzalez saw I.C. cry when J.H. left to go somewhere. I.C. was looked over during some of the interview by M.L.s daughter, who seemed to get along well with El.C. and I.C. Ms. Gonzalez acknowledged that F.H. and J.H. had been very receptive to trying different ways of addressing the childrens problems. F.H. and J.H. were very cooperative with Ms. Gonzalez. F.H. and J.H. were very interested in getting extra help for the children and learning how to work with them. However, Ms. Gonzalez did not believe that placement with M.L. and A.L. would be detrimental for the childrens behavioral and emotional progress based upon how happy the children appeared when they were interviewed with the paternal relatives the previous day.

B. M.L.

M.L. lived with the mother and father in Las Vegas until J.C. was one year old. M.L.s sister had custody of J.C. for four years in New Mexico after he was removed from the parents custody. The parents moved to New Mexico during that time. The parents regained custody of J.C. and moved to Los Angeles after Ad.C. was born. M.L. came to Los Angeles regularly to visit with the mother and father and their children. M.L. learned that J.C., Es.C., Ad.C., Al.C., and El.C. were placed in foster care about a month after they had been removed the parents custody. M.L. had weekly contact with the children by phone who were placed at that time with A.N. M.L. visited the children twice while they were living with A.N. M.L. learned that the children, other than I.C., had been removed from A.N.s care. Upon learning Es.C., Ad.C., and El.C. were removed from A.N.s custody, M.L. attended the next juvenile court hearing. M.L. indicated an interest in having the children placed in her home at that time. M.L. continued to attend the juvenile court hearings thereafter.

M.L. participated in the interstate assessment. M.L. attended the required parenting classes on orientation, kinship, teamwork, and discipline. M.L. believed that she was prepared to have the children in her home. M.L. and her husband had the five children at her home, where they talked to them and played with them. M.L. observed the children to be happy and never fighting. When asked what kind of services M.L. thought the children would need if placed in her home, she responded: I think they will keep having therapy probably for a while because, like, I saw different. Probably they will be normal and feel like a family development maybe, but they need therapy. M.L. said she was willing to participate in the therapy as well. M.L. said she was told that the children had sexually acting-out behaviors. M.L. said: Thats what they said, but I talked to the kids the other day. And we stayed in the bedroom on the floor, and we start talking about it. And they didnt - - [] [El.C.], who is three year old, I ask her when it happened, because in my house we were everything with them. We put them in the room until they were sleeping. And I said, Thats impossible, because we always were together, playing, having fun. [] So I never see any - - something different, something weird. Never touching or nothing. So [El.C.] said, Well, he touched me in my private - - [Ad.C.]. M.L. said she would talk to the children and supervise them if she learned of inappropriate sexual behavior.

The five children had visited with M.L. in Las Vegas on two occasions for three-day weekends. In addition, M.L. had approximately five monitored and five unmonitored visits with all five of the children. M.L. was asked about the special needs of Es.C, Ad.C., and Al.C. When asked if she was aware of their special needs, M.L. responded: Not exactly. They told me they need, like therapy, a lot of patience, a lot of love. Thats what they need. Arrangements had not yet been made to enroll Es.C., Ad.C., and Al.C. in special education classes in Nevada. M.L. testified that the interaction with I.C. during the last weekend visit was really good. M.L. said I.C. never cried and was always happy. M.L. gave I.C. a cup rather than a bottle. M.L. said that I.C. and El.C. were like twins, doing everything together. M.L. also reported that Al.C. was very good with El.C. and I.C. during the visit. The three girls never fought. M.L. reported that Es.C. was protective of I.C. and Ad.C. hugged I.C. M.L. believed that the older children had a really deep relationship with I.C. M.L. thought I.C. should be placed with her because Es.C., Ad.C., Al.C. and El.C. were attached to her. M.L. acknowledged that I.C. cried briefly during the initial part of the first visit in Las Vegas. M.L. did not witness any emotional reaction on I.C.s part when she returned to F.H.

C. J.H.

J.H. had been a foster parent for five years. During that time, she had approximately 20 to 25 children placed with her. None of the previous children had been available for adoption. J.H. first learned that I.C. was available for adoption when the youngster was three months old. J.H. wanted to adopt all five of the youngest children, Es.C., Ad.C., Al.C., El.C., and I.C. When asked if she thought it was in all of the childrens best interest to be adopted together, J.H. responded, It depends, because the children are not very attached to I.C. J.H. explained that when the children played and I.C. got close to them, they moved to a different table with the toys. J.H. did not have any good examples of I.C. having a good relationship with her siblings. J.H. did not see any disadvantage that I.C. might have by being permanently separated from her siblings. Es.C., Ad.C., Al.C., and El.C. had been placed in J.H.s home in February 2007. During the time the younger children had been with her, J.H. ensured that they attended school, medical, and dental appointments, and were well groomed and fed. J.H. considered all five of the younger youngsters to be her children and wished to adopt them.

V. REMOVAL OF ES.C. FROM PLACEMENT WITH F.H. AND J.H. AND OTHER POST-MODIFICATION EVENTS

We have taken judicial notice of post-judgment evidence filed by the department on September 11, 2008. We consider this evidence for a specific limited purpose. We do not consider the post-modification orde