Filed 5/9/13 L.H. v. Super. Ct. CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


L.H.,                                                                       B245600

         Petitioner,                                                        (Los Angeles County
                                                                            Super. Ct. No. CK76327)
         v.

THE SUPERIOR COURT OF
LOS ANGELES COUNTY,

         Respondent;

LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,

         Real Party in Interest.



         ORIGINAL PROCEEDINGS in mandate. Terry T. Truong, Juvenile Court
Referee. Petition denied.
         Christian D. Jackson for Petitioner.
         No appearance for Respondent.
         John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Kim Nemoy, Principal Deputy County Counsel, for Real Party in Interest.
                                        _________________________
                                    INTRODUCTION
       Lakesha H., prior caretaker, appeals from the order of the juvenile court removing
siblings G. (age 4 years) and Genesis (age 26 months) from her custody (Welf. & Inst.
Code, § 366.26, subd. (n))1 and denying her modification petition to have the children
returned to her care (§ 388). We conclude the evidence supports the court’s finding that
removal of the children was in their best interest and return would not be in their best
interest. Accordingly, we deny the petition.
                   FACTUAL AND PROCEDURAL BACKGROUND
       We are familiar with this dependency and so we derive the background facts from
our earlier opinion: G. was six months old in February 2009 when the Department of
Children and Family Services (the Department) detained her. Her biological mother’s
female companion told the Department that she signed G.’ birth certificate as the “father”
with the intention of becoming G.’ “ ‘ “legal father.” ’ ”2 The juvenile court sustained a
petition (§ 300) naming the mother and a subsequent petition (§ 342) naming the female
companion. The court terminated reunification services for both women and set a
permanent plan hearing (§ 366.26). The earlier appeals arose from the efforts of an
alleged father to be declared a presumed father of G. (Case Nos. B234918 & B236794).
       1. The children’s placement with appellant and their removal from her care
       G. was initially placed in the care of her maternal great-grandmother. When that
caregiver died in October 2010, the Department placed G. in Riverside California with
her godmother Lakesha. Lakesha is a single mother of two elementary-school-aged
children.
       Two months later, G.’ mother gave birth to Genesis, who was declared a
dependent of the court and eventually placed with his sister in Lakesha’s care. The court



1
      All further statutory references are to the Welfare and Institutions Code, unless
otherwise noted.
2
       Neither G.’ mother nor the companion is a party to this appeal.


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terminated parental rights over G. in October 2011 and designated Lakesha as the
prospective adoptive parent.
       In Lakesha’s care, G. stole, threw tantrums, fought with and bit other children, had
trouble sleeping, and stared for long periods of time. She qualified for Regional Center
Services and for a special level of care as she was deemed a medically fragile child.
Genesis also had medical issues. In May 2011, the juvenile court ordered that G. be
assessed for neurological and psychological testing. Despite G.’ behavior, she was
identified as adoptable.
       Lakesha requested play therapy for G., financial assistance to pay for G.’
swimming lessons, reimbursement for childcare, and for expenses incurred to modify
Lakesha’s house for the adoption home study. Lakesha was also unhappy with G.’
school and filed complaints there. She felt the administration was retaliating against her.
       Lakesha first requested that G. be removed from her home in August 2011 because
of a concern that the child’s behavior could put Lakesha’s family and employment in
jeopardy. Lakesha transported G. to Los Angeles from Riverside for visits, which was
physically difficult, expensive, interfered with the child’s attendance at Head Start, and
disruptive to Lakesha’s own children. Also, despite referrals, Lakesha could not afford
therapy for the child. The matter was resolved when the Department agreed to provide
Lakesha with a higher reimbursement rate for her care of G. and assistance in arranging
appropriate therapy. Lakesha agreed to adopt G. The juvenile court ordered the
Department to provide Lakesha with respite care.
       Lakesha’s second request for G.’ removal occurred six months later in February
2012. Lakesha was bedridden after surgery in early 2012. G. became clingy and jealous
when Lakesha paid attention to Genesis, and so she hit her brother. Lakesha reported that
G.’ behavior was “ ‘too much for her to handle alone’ ” and Lakesha’s mother would not
help. Lakesha wanted to adopt Genesis, but not G. because G.’ behavior was worsening
and Lakesha believed the Department had not provided the child with adequate services.
Lakesha later claimed she gave notice to remove the child to get the Department’s
attention because the social workers had not provided support services.


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       Lakesha made her third removal request in March 2012. This time she requested
that both children be removed from her care on an emergency basis. She gave the
Department written notice two days in advance that she would bring the children into the
Department’s office, and requested that no one try to change her mind. Lakesha wrote “I
have done the best I can do for them and have realized they need and deserve more than
what I can give. I have to accept that it is in their best interest to stay together and I can’t
hold on to Genesis to replace my daughter. . . . [T]here is no way I can handle another 7
days. . . . I am not interested in respite or any reunification services.”
       2. Placement with the S.s
       The Department placed the children in the prospective adoptive home of Josh and
Joseph S. The children quickly did “wonderfully.” They “adapted remarkably well” and
appeared to be “happy and thriving.” Despite warnings about G.’ significant behavioral
problems, the S.s reported having only seen what they termed a “normally precocious
three year old girl, who naturally and understandably tests boundaries (none related to
aggression.)” The S.s found G. to be “a happy, well-balanced, spirited little girl, whose
behavior [was] representative of a normal 3-year-old child.” Genesis, who came to the
S.s unable to walk, began walking in a few short days and within a month was nearly able
to run. G. showed no symptoms of the asthma and allergic rhinitis she had been
diagnosed with while in Riverside. Although G. had been considered for Regional
Center services in Lakesha’s care in Riverside, her doctor in Los Angeles characterized
the child as “ ‘amazing,’ ” as the S.s had her tested and found she was “ ‘very bright’ ”
and had “ ‘no health issues whatsoever.’ ” Despite severe behavioral issues that
jeopardized her educational programs in Riverside, in July 2012 G.’ doctor noted no
developmental concerns. Although G. was at times overactive and defiant, her behaviors
were common in foster children and were not pathological. The physician was “very
impressed” with the S.s. The Department reported that the children were happy and
secure in their environment and doing well. The S.s were providing a calm home and
firm, consistent, and nurturing parenting. The S.s had established a “cohesive family unit



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that is loving, supportive, and stable.” The children both referred to the S.s as “daddy”
and “papa.” (Bold omitted.)
       Meanwhile, after the children were placed with the S.s, Lakesha began taking
them to the hospital during her visits with them to report injuries and illnesses that proved
non-existent. Lakesha was told not to conduct body checks on the children, as they
caused the children distress and anxiety. She refused to comply.
       A referral was made in May 2012 against the S.s alleging emotional abuse and
neglect. The Department investigated and concluded the allegations were unfounded as
the children were in excellent health and were doing well. There was no sign of G. being
aggressive toward her brother. The S.s were very loving and caring toward the children
who were comfortable in the S.s’ presence. The investigating social worker found that
the children were “extremely well taken care of.” (Italics added.)
       Lakesha attempted to obtain a restraining order against the S.s, but it was
dismissed. She claimed the S.s told G. that Lakesha was just her foster mother and
punished the child for referring to her as mommy. In the social worker’s view, Lakesha
was constantly searching for complaints to make about the children’s care.
       3. Lakesha’s motions to have the children returned to her custody
       Lakesha soon regretted her decision to have G. and Genesis removed and filed two
section 388 petitions for modification requesting the children’s return. She claimed that
the removal had not been completely voluntary as she had received little help or support
from the Department. Lakesha also filed a request to be designated the prospective
adoptive parent for Genesis, and objections to the removal of both children (§ 366.26,
subd. (n)(3)).
       The Department expressed concern that as Lakesha had requested the children’s
removal before, she would likely request it again. Although Lakesha demonstrated
affection for the children, the hurried manner in which she dropped them off at the
Department’s office indicated her inability to permanently commit to the children and
some disregard for their best interest, the Department wrote. The Department was also
troubled by what appeared to be Lakesha’s negative and exaggerated portrayals of the


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children’s behavior, development, and medical condition, given they did not demonstrate
these behavioral or medical problems in the S.s care.
       Lakesha admitted to the juvenile court that she had a poor relationship with her
prior social worker and no relationship with the current worker because she made several
complaints to the Board of Supervisors about the Department’s handling of the case.
       4. The psychological evaluation
       The juvenile court appointed Dr. Michael Dishon as an expert under Evidence
Code section 730 to evaluate (1) the children’s mental health needs, (2) each caregivers’
ability to follow through with services, and (3) the kind of relationship and level of
attachment the children had with Lakesha.
       Dr. Dishon submitted an 80-page evaluation in which he concluded that both
Lakesha and Josh S., the children’s primary caretaker, had certain difficulties, but were
capable of following through with services as they were both intelligent and disposed to
help the children. Although Dr. Dishon was concerned by Lakesha’s claims she had been
unsuccessful in obtaining services from the Department, he viewed her as better equipped
to deal with stress than Josh S., based on the psychological testing. Dr. Dishon identified
developmental delays in the children and found that stability would be very important to
the children as they had already experienced numerous changes in caretakers and
attachment figures. Yet, Dr. Dishon expressed doubt about the quality of stability
Lakesha could offer the children. Lakesha and Josh S. shared numerous psychological
traits which indicate neither is well suited toward offering a secure attachment to the
children. Although Dr. Dishon did not make a clear-cut recommendation about
placement, he cautiously concluded that G. might be receiving something from the S.s
that was lacking during her stay with Lakesha, given the child has been relatively free of
behavioral problems since her placement with the S.s. Dr. Dishon opined that Josh S.
offered a preferred style of parenting that is more conducive to the development of a
secure attachment, whereas Lakesha offered a style more likely to create an anxious
attachment.
       5. The juvenile court’s ruling


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       At the hearing on the removal petition, Lakesha’s motions, and to review the
permanent plan for Genesis, the juvenile court found that the Department met its burden
under section 366.26, subdivision (n)(3) and the removal, done on an emergency basis,
was proper given Lakesha’s multiple requests. The court denied Lakesha’s section 388
petition to have the children returned to her care because the change in order would not
be in the children’s best interest, in part because Lakesha did not get along with the
Department and in part because the social worker failed to provide certain services. The
juvenile court found that it was in the children’s best interest to remain with the S.s
because they were doing “fine” in that household and “[i]f I were to return to [Lakesha], I
don’t know if they would also be doing fine.” The court terminated parental rights over
Genesis and designated the S.s as the children’s prospective adoptive parents. Lakesha
appealed.
                                      CONTENTIONS
       Lakesha contends the juvenile court erred under section 366.26, subdivision (n) in
approving the children’s removal and under section 388 in denying her petition seeking
their return to her care.
                                       DISCUSSION
       1. The record supports the juvenile court’s finding that the Department did not
abuse its discretion in removing the children as it was in the children’s best interest to be
removed and placed with the S.s (§ 366.26, subd. (n)).
       “Once a dependent child is freed for adoption, the [Department] to which the child
is referred for adoption is responsible for the child’s custody and supervision. The
[Department] is entitled to the exclusive care and control of the child at all times until a
petition for adoption is granted. [Citations.]” (In re Shirley K. (2006) 140 Cal.App.4th
65, 71.) The Department has discretion to terminate an interim or adoptive placement at
any time before the petition for adoption is granted. (Ibid.)
       However, the Department’s discretion concerning interim and adoptive placement
“is not unfettered.” (In re Shirley K., supra, 140 Cal.App.4th at p. 72.) The juvenile
court retains jurisdiction over the child, among other things, to ensure that adoption is


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completed as expeditiously as possible and to ascertain the appropriateness of the
placement. (Ibid.) Pursuant to section 366.26, subdivision (n), the court is also
empowered to review the Department’s decision to remove a child from a prospective
adoptive parent. (§ 366.26, subd. (n)(3).)
       Accordingly, section 366.26, subdivision (n) provides in relevant part that, at the
hearing to determine whether the child shall be removed from the custody of a
prospective adoptive parent, “the court shall determine whether the caretaker has met the
threshold criteria to be designated as a prospective adoptive parent pursuant to paragraph
(1), and whether the proposed removal of the child from the home of the designated
prospective adoptive parent is in the child’s best interest, and the child may not be
removed from the home of the designated prospective adoptive parent unless the court
finds that removal is in the child’s best interest.” (§ 366.26, subd. (n)(3)(B), italics
added.)
       It is undisputed that Lakesha was originally designated as the prospective adoptive
parent for G. (§ 366.26, subd. (n)(1)) and that she has affection for the children and has
done her best in trying circumstances. However, the record supports the juvenile court’s
conclusion that it was in the children’s best interest to be removed from Lakesha and
placed with the S.s. Lakesha herself requested G. be removed from her home, not once
but three times. The first two times, the Department managed to discourage Lakesha.
The third time, however, Lakesha requested both children be removed, that the removal
be on an emergency basis, and that no one dissuade her. Each time she requested
removal, Lakesha claimed the Department was not providing her with the services and
support she needed. Yet, the Department frequently, although not always, provided
increased services and arranged for increased funding for Lakesha. Often the reason for
Lakesha’s difficulties was her own schedule or behavior, or the competing demands of
her own children. Furthermore, Lakesha admitted she did not get along with her social
worker. She also had difficulties with school authorities, the S.s, and subjected the
children to unnerving body checks and hospital visits to report nonexistent injuries and
illnesses after they were removed from her care. Dr. Dishon opined that stability was


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very important for the children. The Department was concerned that Lakesha was likely
to request removal again. Lakesha’s pattern of requesting removal whenever the children
become difficult supports the court’s finding that in Lakesha’s care, the children’s
stability is undermined with the result removal from Lakesha was in the children’s best
interest.
       2. The record supports the juvenile court’s finding that it was not in the children’s
best interest to return them to Lakesha’s care.
       Section 388 allows a parent or guardian to petition the court for a hearing to
modify or set aside any previous order on the grounds of change of circumstance or new
evidence, such that the proposed change would be in the children’s best interests.
       In ruling on a section 388 petition, the juvenile court’s task is to determine
whether the petitioner demonstrated by a preponderance of the evidence “that [(1)] there
is a change of circumstances or new evidence, and [(2)] the proposed modification is in
the minor’s best interests. [Citations.]” (In re S.M. (2004) 118 Cal.App.4th 1108, 1119,
italics added; citing In re Jasmon O. (1994) 8 Cal.4th 398, 415.) That is, “[i]t is not
enough . . . to show just a genuine change of circumstances under the statute. The
[petitioner] must show that the undoing of the prior order would be in the best interests of
the child. [Citation.]” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) A petition
under section 388 is addressed to the juvenile court’s sound discretion and on appeal, we
will disturb the decision only on a clear abuse of that discretion. (In re Jasmon O., at
p. 415.)
       Here, Lakesha failed to demonstrate the second prong of section 388, namely that
returning the children to her care would be in their best interests. She requested removal
because she was overwhelmed by the children’s behavioral and developmental needs and
a lack of services. She blamed the problems she had in providing the children with
services on the Department, or at least her difficulty in getting along with her social
worker, the school, and the Regional Center. By contrast, the children displayed none of
the behaviors that concerned Lakesha once they were placed with the S.s. Indeed, the
children’s behavior improved markedly in the S.s’ care where they were thriving


                                              9
remarkably well. In the S.s’ care, the children have a “cohesive family unit that is loving,
supportive, and stable,” and where they are not subjected to disturbing and unnecessary
body checks and hospital visits. (Bold omitted.) Although Dr. Dishon did not identify
personality traits in Lakesha that were overly worrisome, and while Josh S. exhibited
some traits similar to Lakesha’s, Dr. Dishon slightly favored placement with the S.s. over
placement with Lakesha based on Josh S.’s preferred parenting style. Therefore, the
record supports the juvenile court’s conclusion that it would not be in the children’s best
interest to return them to Lakesha’s care. The court did not abuse its discretion in
denying Lakesha’s section 388 petition for modification.
                                      DISPOSITION
       The petition for extraordinary writ is denied.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 ALDRICH, J.




We concur:




              CROSKEY, Acting P. J.




              KITCHING, J.



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