Filed 8/20/19; Certified for Publication 9/12/19 (order attached)




                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                DIVISION ONE

                                         STATE OF CALIFORNIA


In re L.M., a Person Coming Under the
Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND                                  D075120
HUMAN SERVICES AGENCY,

         Plaintiff and Respondent,                           (Super. Ct. No. EJ3761B)

         v.

D.M.,

         Defendant and Appellant;

KATE K. et al.,

         Objectors and Appellants;

JOHN E. et al.,

         Respondents.


         APPEAL from orders of the Superior Court of San Diego County, Michael

Popkins, Judge. Affirmed.
       William Hook, under appointment by the Court of Appeal, for Defendant and

Appellant, D.M.

       Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County

Counsel, and Kristen M. Ojeil, Deputy County Counsel, for Plaintiff and Respondent.

       Amy Z. Tobin, under appointment by the Court of Appeal, for Minor.

       James Legal Group, Kelly A. James for Objectors and Appellants, Kate K. and

Jaime S.

       Gary S. Plavnick for Respondents, John E. and Rita E.

       Kate K. and Jaime S. are the de facto parents of L.M., who was placed in their

foster care soon after birth. They challenge the juvenile court's order, made when L.M.

was 10-months old, removing her from their care and placing her with Rita and John E.

(the E.'s), who had previously adopted L.M.'s sister, V.E.

       The juvenile court had an immensely difficult decision to make in this case. As

the court recognized, Kate and Jaime had provided L.M. excellent care for essentially her

entire 10-month life. Yet, the E.'s are also "good people and excellent parents as well"

and have adopted L.M.'s sister. L.M. thrives in both environments.

       The tipping point was the relationship between L.M. and V.E., who "hit it off

immediately" and "simply love each other." An experienced social worker testified that

these girls "are so attached to each other. . . . It's nothing like I've ever seen."

       After five days of evidence including expert testimony, and in a sensitive and

thoughtful ruling, the court found that it is in L.M.'s best interest to be removed from

Kate and Jaime's care so that she may be placed with the E.'s.

                                                2
       On appeal, Kate and Jaime assert that the juvenile court erred by applying the

"wrong" legal standard. Invoking rights afforded prospective adoptive parents under

Welfare and Institutions Code section 366.26, subdivision (n) [hereafter, § 366.26(n)],1

they contend the court first had to determine if it was in L.M.'s best interest to be

removed from their care, without regard to whether it was in L.M.'s best interest to be

placed with the E.'s. Kate and Jaime further assert that under this standard—focusing

only on grounds for removal—the order must be reversed because the juvenile court

recognized that they provided excellent care and did nothing wrong.

       Placing a child in the best adoptive home is among the most important rulings in

dependency. The overriding goal, embodied in the best-interest standard, is to maximize

the child's opportunity to develop into a healthy, well-adjusted adult. The question in any

given case is whether removal from a current placement is in the child's best interest?

The answer depends on drawing reasonable inferences, in large part looking to the future,

about how the child will develop, mature, and thrive in both the current and proposed

placement. Where, as here, there are two good competing placements, determining

whether removal is in the child's best interest necessarily requires the court to evaluate

which placement best serves these goals.

       Accordingly, even assuming that Kate and Jaime were entitled to rights afforded

to prospective adoptive parents, the juvenile court applied the correct legal standard, and

we affirm because the court's findings are supported by substantial evidence.


1      Undesignated statutory references are to the Welfare and Institutions Code.

                                              3
                  FACTUAL AND PROCEDURAL BACKGROUND

A.    L.M.'s Sister, V.E.

      Although L.M. was born in February 2018, the relevant facts begin four years

earlier in December 2013 when her half-sister V.E. tested positive for methamphetamine

at birth. At 10-weeks of age, the San Diego County Health and Human Services Agency

(Agency) placed V.E. with the E.'s. In October 2015 the E.'s adopted V.E.

      V.E. is African-American; the E.'s are Caucasian.2 After adopting V.E. and

learning more about transracial adoptions, the E.'s moved from San Diego to Tampa,

Florida, which is 26 percent African-American. The E.'s reside in a multiracial

neighborhood there. V.E. attends a racially diverse school, and the family attends a

church having a predominantly African-American congregation.

B.    L.M.'s Dependency and Placement with Kate and Jaime

      At birth L.M. tested presumptively positive for methamphetamine. L.M.'s mother

(Mother) was homeless. L.M.'s biological father was in custody on weapons and drug

charges.3

      The Agency ordinarily attempts to place a child with a sibling who had been

previously removed from the same parents. Two days after L.M. was born, in response

to the Agency's inquiry, the E.'s stated they wanted L.M. placed with them. However, the




2     Kate and Jaime are also Caucasian.

3     L.M. and V.E. have the same mother, but different fathers.

                                            4
Agency could not do so until Florida licensed the E.'s as foster parents. The E.'s

immediately began doing the things necessary to become licensed in Florida.

        The Agency placed L.M. with Kate and Jaime. It did not take long for L.M. to

capture their hearts. By March, Kate and Jaime told the Agency they wanted to adopt

her.4

C.      Sibling Visits and Competing Placement Requests

        In mid-May, Rita and V.E. traveled from Tampa to San Diego to visit L.M. The

visit went well. Later that month, the E.'s told Kate they wanted to adopt L.M.

        In early June, Kate and Jaime filed a request to be designated L.M.'s de facto

parents.5 Later that month, the juvenile court granted Kate and Jaime de facto parent

status, declared L.M. a dependent, removed her from her parents' custody, and declined

to grant the parents reunification services.

        From July through September, the Agency facilitated monthly visits between L.M.

and the E.'s, including four-year-old V.E. The visits, which included several lasting

overnight, went well; L.M. was comfortable being with the E.'s and V.E. John explained

how L.M. and V.E. interacted, stating:


4       Hereafter, dates are in 2018 unless otherwise specified.

5      A de facto parent is "a person who has been found by the court to have assumed,
on a day-to-day basis, the role of parent, fulfilling both the child's physical and
psychological needs for care and affection, and who has assumed that role for a
substantial period." (Cal. Rules of Court, rule 5.502(10).) De facto parents have certain
procedural rights in dependency proceedings. (In re B.G. (1974) 11 Cal.3d 679, 693; In
re P.L. (2005) 134 Cal.App.4th 1357, 1361; R.H. v. Superior Court (2012) 209
Cal.App.4th 364, 371.)

                                               5
          "It's interesting to watch when [L.M.] sees [V.E.] and [V.E.] moves
          around the room, watching [L.M.'s] head track where [V.E.] goes.
          And you can see her smile. You can just hear [V.E.] giggling and all
          that. And it's just one of those feelings that makes the hassle, the
          time, and all that all worth it because you hear the joy of a child's
          laughter. You see the smiles on their faces. And it's . . . an
          awesome thing."

D.     Pretrial Developments and Proceedings

       To become licensed foster parents in Florida, the E.'s completed parenting class,

passed a criminal background check, and showed financial stability. The Florida

department of children and families inspected their home to ensure it was child-safe and

interviewed their references. The references "all spoke very highly of the [E.'s] and

thought they would be amazing foster parents and thought they were amazing parents to

[V.E.]. They all talked about how [V.E.] was very well-mannered and how the [E.'s]

were very active in their church. None of the references that were provided had any

concerns."

       By early October, Florida licensed the E.'s as foster parents. The Agency notified

the parties it intended to place L.M. with them.

       Meanwhile, in June police had arrested Mother on charges including vehicle theft.

Mother had not visited L.M. since birth. And in July, police had arrested L.M.'s father,

D.M., (Father) on charges including robbery. Since the date of her birth, Father had

visited L.M. once.

       In October, the juvenile court considered three interrelated motions: (1) The

Agency asked the court to terminate parental rights, order a permanent plan of adoption

under section 366.26, and place L.M. with the E.'s.; (2) the E.'s and V.E. filed a request

                                             6
under section 388 to change L.M.'s placement to their care6; and (3) Kate and Jaime filed

a request under section 366.26(n) to be designated prospective adoptive parents.7

       In November, the juvenile court conducted a hearing to address the order in which

the court would rule on these issues. Mother and Father submitted on the Agency's

recommendation to terminate their parental rights. However, the Agency asked the court

to defer doing so. This would retain the parents' standing to have a voice in placement.

The court concurred and continued the hearing on termination of parental rights. The

court ruled that Kate and Jaime's request to be designated prospective adoptive parents

was premature because it was not cognizable until after parental rights were terminated.

Nevertheless, emphasizing the "need for a secure ruling on appeal," L.M.'s lawyer urged

the court to take the most conservative approach, giving Kate and Jaime the benefit of

prospective adoptive parent status—even without designating them as such—by placing

upon the Agency the burden to show it was in L.M.'s best interest to be removed from

their care. The court agreed "out of consideration and respect for the de facto parents,

and the fact that [L.M.] has lived with them for, pretty much, most of her life."

       The court stated that although the issues would be tried "simultaneously," it would

first decide removal. If removal was warranted, the court would next decide the E.'s


6      Generally, section 388 provides for modification of juvenile court orders when
changed circumstances show that modification of a previous order is in the child's best
interest. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.)

7      A prospective adoptive parent is a caretaker with whom a dependent child has
lived for at least six months, who expresses a commitment to adopt the child, and has
taken at least one step to facilitate the adoption process. (§ 366.26(n)(1) & (2).)

                                             7
motion for placement. Third, the court would decide whether to terminate parental rights.

Last, the court would consider Kate and Jaime's request to be designated prospective

adoptive parents.

E.     Trial

       1.      The Agency's case

       The E.'s and V.E. visited L.M. monthly from July through December, which

included seven overnight visits. L.M. displayed no emotional distress in transitioning

between Kate and Jaime and the E.'s for these visits. The visits quickly established a

bond between L.M. and V.E. Laura Chavis, the Agency's case worker assigned to L.M.'s

care, explained:

            "Well, the visits—they're beautiful. The girls are so attached to each
            other. [L.M.] will actively look for [V.E.]. If—because [V.E.] is an
            active child. So when she runs around, [L.M.] will follow her with
            her eyes. She'll smile. She'll point. She wants to be with her sister.
            You can see it. It's nothing like I've ever seen in my ten years
            working in social services, that she knows that that's her sister. The
            way she looks at her is nothing like I've seen before.

            "And [V.E.] loves to—you know, yesterday they had a tea party in
            the visit. [V.E.] loves to give her kisses. She reads her bedtime
            stories at the overnights. [V.E.] was thrilled when they had
            overnights because they got to have little sleepovers.

            "And visits go really, really well. And you can tell the girls have a
            really good relationship, and they have established a relationship
            during the 16 visits . . . ."

       Chavis acknowledged that Kate and Jaime are excellent caregivers, testifying, "I

can feel the love they have for the child." "I do feel [that L.M.] loves them" and "looks at

them in a parental role since they were caring for her on a day-to-day basis." Chavis also


                                               8
recognized that L.M. has a "secure attachment" to Kate and Jaime and has "flourished" in

their care. Nevertheless, Chavis "strongly" believed it was in L.M.'s best interest "to

have a sibling to grow up with, someone that shares her biology, her culture, her

race . . . ." She explained, "I'm not just thinking about [L.M.] 9 months old. I'm thinking

about [L.M.] when she's 5, when she's 10, when she's 17. I'm thinking long-term and

permanency." Chavis added, "[G]iven the contentious relationship that's developed

between the caregivers and [the E.'s] . . . I can almost guarantee these kids will never see

each other again and not be able to grow up and have life experiences together, which is

why I feel so strongly we need to place [L.M.] with her sister."

       Henrietta Himelstein, a psychologist, observed L.M. interact with the E.'s and V.E.

and saw no signs that L.M. experienced anxiety or distress. Dr. Himelstein opined that

L.M. would not suffer trauma by being placed with the E.'s., in part because L.M. is

already familiar with them. Moreover, a child who has a secure attachment with one

caregiver is more open to being cared for by others. Thus, L.M.'s secure attachment to

Kate and Jaime would actually ease a healthy transition to the E.'s. Although any move

entails adjustments involving diet, bed time, and things of that nature, Dr. Himelstein

believed that removing L.M. and placing her with the E.'s would "not be traumatizing at

all." She also testified that growing up with a sibling of the same race and in an African-

American neighborhood would benefit L.M.

       Jantel Thomas, who is employed by the Florida department of children and

families, expressed no concerns about the E.'s ability to provide appropriate care to L.M.,

nor about their commitment to adopt L.M. Thomas, herself African-American, thought it

                                              9
would be "priceless" for L.M. to grow up with V.E. Thomas testified that social services,

including mental health care, would be provided L.M. in Florida if needed.

      2.     Kate and Jaime's case

      Kate and Jaime have had a stable relationship for seven years. Kate is a marriage

and family therapist. Jaime, who holds a master's degree in clinical social work, stays

home to care for L.M. L.M. has a loving relationship with both of them. Recognizing

the importance of L.M.'s family and cultural connections, Jaime placed photographs of

L.M.'s parents in her room. Kate and Jaime have also "made it a priority" for L.M. to

frequently visit her paternal grandmother, who resides in San Diego. Kate and Jaime

believe it is more important to maintain L.M.'s relationship with her grandmother than

that with V.E.

      Meaghan O'Connor is L.M.'s case manager. In her opinion, L.M. will "suffer

trauma" if removed because L.M. has a healthy and secure attachment to Kate and Jaime

and will not understand where or why they are gone. L.M. would suffer additional

trauma from losing her relationship with her grandmother. Trauma causes sleep

disturbances, gastrointestinal upset, and developmental regression. O'Connor testified

that L.M.'s biological connection with a sibling does not outweigh her secure and healthy

attachment to Kate and Jaime.

      Juana Vaquero, a psychologist, conducted a "developmental evaluation" of L.M.

Kate and Jaime reported that after L.M. visited the E.'s, she began waking up during the




                                            10
night screaming. Dr. Vaquero opined that L.M. is having "some difficulties adjusting to

changes."8

       Michael Jones, a psychotherapist, testified that if a secure attachment between

caregiver and child is disrupted, the child will suffer emotional and physical trauma.

Moreover, the younger the child at the time of removal from a secure attachment, the

more trauma.9 Jones opined that L.M. is securely attached to Kate and Jaime and would

be traumatized if removed from their care. This trauma would manifest in developmental

regression and later in life, emotional and social difficulties. In his opinion, placing L.M.

with V.E. "does not fix the trauma of this removal."10

       3.      The court's ruling

       After closing arguments, the court prefaced its ruling by recognizing the difficulty

of its task:

            "When one becomes a judge, they send you to new judge orientation
            for a week, and then a little while after that, they send you to judge's
            college for two weeks. And then finally, if you get assigned to a[n]


8      On cross-examination Dr. Vaquero conceded there could be "other reasons aside
from sibling visits" for L.M.'s sleep disturbances. Dr. Vaquero declined to opine on
whether L.M. should be removed from Kate and Jaime's care.

9       Dr. Himelstein disagreed, stating that when a child under one-year old is removed,
later in life the child does not even remember the first primary caregiver. "They don't
remember. Do you remember when you were ten months old?"

10     On cross-examination, Jones conceded that when he was formerly employed as a
social worker, he would strive to place a newborn with siblings to promote identity and
cultural issues that are "a huge factor in self-esteem, functioning, social-emotional
development, especially toward teenage years." He acknowledged there were no studies
of long term effects, if any, from removing a child less than one year of age.

                                               11
           area of the law like dependency, they send you to primary
           assignment training for a week. None of those programs teach you
           how to make decisions like I have to make today.

           "In making rulings like I have to make today is really the hardest
           part of this job. I recognize no matter how I rule, there will be
           people who will be devastated. And I take no joy in that."

       The court commended Kate, Jaime, and the E's, and focused on the best-interest

standard governing its decision:

           "Prior to making my ruling, I want the record to reflect that this
           court finds that based on all the evidence, that [Kate] and [Jaime]
           have done an excellent job of taking care of [L.M.] I believe them
           both to be good people, and excellent parents. I also want the record
           to reflect that based on the evidence Mr. and Mrs. [E.] have taken
           excellent care of [V.E.] and when [L.M.] has visited with them, I
           find that they have taken excellent care of [L.M.] as well. I believe
           them both to be good people and excellent parents as well.

           "With or without [V.E.] in the mix, either of these two families
           would be an ideal family for [L.M.]. The issue here . . . is not
           whether one family is better than the other, the fact is they are both
           excellent. Both of them. The issue here for me to decide is not what
           is best for [Kate] or [Jaime] or what is best for Mr. or Mrs. [E.] or
           even what is best for [V.E.], what I am here to decide is what is in
           the best interest of [L.M.]."

       Consistent with its pretrial ruling, the court stated that it was the Agency's burden

to show that removal is in L.M.'s best interest. However, in a departure from that pretrial

plan to separately consider removal first, the court stated, "I cannot and I do not believe I

should separate removal from placement, because I have to consider all the facts

involved, as to what is in [L.M.'s] best interest. And that would include considering what

the future placement would be. . . . I have to consider the big picture and all the evidence

in this case."



                                             12
       The court found that it is in L.M.'s best interest as she grows older to live with

V.E., an older sister of her same race. The court found Thomas's testimony on this point

to be persuasive. The court recognized the importance of L.M.'s relationship with her

grandmother, who "can fulfill some of that need, some of that void for racial mirroring

for [L.M.]." However, the court noted there is a "significant generational difference"

between L.M. and her grandmother that is not present in L.M.'s relationship with V.E.

The court further explained:

           "[V.E.] as a young four-year old has already taken on the role of big
           sister. It can be expected that that role will only get better as the
           children grow up. Fast forwarding into the future by the time [L.M.]
           is 15 and [V.E.] is 19, one can only imagine how much value and
           benefit [L.M.] will have in her life for having a big sister to confide
           in . . . . "

       Of the experts, the court found Dr. Himelstein was the "most credible." The court

recognized there would be adjustments for L.M. in placing her with the E.'s, but also

noted, "We move children from foster families all the time."

       In sum, finding that the relationship between [L.M.] and [V.E.] is "substantial" and

"compelling," the court found "by clear and convincing evidence that it is in [L.M.'s] best

interest to be removed from her current caregivers and placed in the home with her sister,

[V.E.]."

       After again thanking Kate and Jaime for being "fantastic parents" who have done

"nothing wrong," the court emphasized that its decision "is based on what I believe in the

overall picture, not just today, but for the rest of her minority, is in L.M.'s best interest."

The court authorized the Agency to remove L.M. from Kate and Jaime's care and granted


                                               13
the E.'s section 388 motion to have L.M. placed with them. The court terminated parental

rights and ordered a permanent plan of adoption.

                                       DISCUSSION

A.     The Juvenile Court Correctly Applied the Best Interest Standard

       1.     The parties' contentions

       Kate and Jaime contend they qualified as L.M.'s prospective adoptive parents

under section 366.26(n) and, therefore, the court should have granted their request for

that designation at the outset. They argue that if the court had done so, L.M. could not

have been placed with the E.'s without the court first separately determining that

removing L.M. from their care was in her best interest. In short, Kate and Jaime contend

the court prejudicially erred by considering removal and placement together. 11

       The parties debate whether the juvenile court properly deferred deciding whether

to designate Kate and Jaime prospective adoptive parents until after terminating parental

rights. Kate and Jaime assert that the juvenile court was required to decide this issue first

because their status as prospective adoptive parents controls the applicable "standard and

burden of proof." In contrast, the Agency and the E.'s contend the court correctly

deferred this decision to the end of the case because section 366.26(n) does not apply

until after parental rights are terminated. More specifically, the Agency asserts there is a


11     Father's attorney filed an opening brief; however, he does not challenge the order
terminating his parental rights. He acknowledges that as a result, he lacks standing to
challenge the order placing L.M. He requests that we consider his brief "akin to that of
amicus curiae" on behalf of Kate and Jaime. Since the parties have not objected to that
request, we will consider his comments.

                                             14
split of authority on this point, and asks us to follow In re Jayden M. (2014) 228

Cal.App.4th 1452, 1458 [notice requirements under section 366.26(n) not applicable prior

to the termination of parental rights] rather than In re M.M. (2015) 235 Cal.App.4th 54,

65 (M.M.) [requiring notice and hearing under section 366.26(n) before parental rights

are terminated]. The Agency further asserts that to the extent the juvenile court has

discretion on this issue, the court acted within its discretion because by postponing a

ruling terminating parental rights, the parents retained standing to contest their daughter's

placement.

       It is unnecessary for us to resolve those issues. The court did not designate Kate

and Jaime as prospective adoptive parents. Therefore, we need not consider the Agency's

contention that doing so before terminating parental rights would be error. Nor need we

address Kate and Jaime's contention that the court erred in not designating them

prospective adoptive parents. Even assuming without deciding that it was error, it was

harmless because the court afforded Kate and Jaime rights they claimed as prospective

adoptive parents. For example, designated prospective adoptive parents have the right to

"offer evidence, examine witnesses, provide the court with legal authorities and make

arguments to the court." (Wayne F. v. Superior Court (2006) 145 Cal.App.4th 1331,

1334 (Wayne F.).) Through counsel, Kate and Jaime exercised all these rights by

examining witnesses, offering expert witness testimony, and giving closing argument.

Furthermore, under section 366.26(n)(3)(B), the child may not be removed from the

designated prospective adoptive parent's care unless the court finds removal is in the

child's best interest. Here, the juvenile court afforded Kate and Jaime this right, requiring

                                             15
the Agency prove removal was in L.M.'s best interest. Indeed, in one sense, the court

imposed an even greater burden on the Agency than that imposed by section 366.26(n).

Under section 366.26(n)(3), the Agency's burden of proof is preponderance of the

evidence. (T.W. v. Superior Court (2012) 203 Cal.App.4th 30, 45 (T.W.).) However,

here the court found "by clear and convincing evidence" that removal is in L.M.'s best

interest.

       2.     The statutory interpretation issue

       Kate and Jaime frame their appeal by asserting the court applied the "wrong" legal

standard. As we have explained, however, the court applied the best-interest standard

applicable to prospective adoptive parents, the same standard Kate and Jaime urged the

court to apply. Their argument really is that the court erroneously applied that standard

by considering L.M.'s proposed placement when section 366.26(n)(3) required the court

to determine whether "removal is in the child's best interest." (Italics added.) Thus, the

issue is one of statutory interpretation. In determining whether "removal is in the child's

best interest" under section 366.26(n)(3)(B), may a court consider the proposed

placement?

       "[I]n construing a statute we ascertain the Legislature's intent in order to effectuate

the law's purpose. [Citation.] We must look to the statute's words and give them 'their

usual and ordinary meaning.' [Citation.] 'The statute's plain meaning controls the court's

interpretation unless its words are ambiguous.' [Citations.] 'If the statutory language

permits more than one reasonable interpretation, courts may consider other aids, such as



                                             16
the statute's purpose, legislative history, and public policy.'" (Reid v. Google, Inc. (2010)

50 Cal.4th 512, 527.) We review the issue de novo. (Ibid.)

       3.     The court may consider future placement in deciding whether removal is in
              the child's best interest under section 366.26(n)(3)(B).

       Under section 366.26(n)(3), "prior to a change in placement" removing a

dependent child from the prospective adoptive parent, the child welfare agency must give

notice of such intended action. The prospective adoptive parent may object to the

proposed removal, triggering a hearing in which the court—after making the threshold

determination that the objector meets the qualifications of a prospective adoptive parent,

may order the removal of the child only if "the court finds that removal is in the child's

best interest." (§ 366.26, subd. (n)(3)(B).)

       "The purpose of the California dependency system is to provide maximum safety

and protection for dependent children, and to ensure their physical and emotional well-

being. (§ 300.2.) The Legislature has declared it is state policy to facilitate the proper

placement of every child in residential care in a placement that is in the best interests of

the child." (T.W., supra, 203 Cal.App.4th at pp. 42-43.)

       In furtherance of this policy, the Legislature enacted section 366.26(n) "to

strengthen the juvenile court's oversight and to protect the stability of children after

parental rights are terminated . . . ." (T.W., supra, 203 Cal.App.4th at p. 44.) The statute

addresses a legislative concern that an unjustified agency action in removing a child from

a long-term caregiver might not be in the child's best interest. (State Department of

Social Services v. Superior Court (2008) 162 Cal.App.4th 273, 284 (State Department).)


                                               17
       Kate and Jaime assert that "removal" and "placement" have different meanings,

the Legislature did not intend to use them interchangeably, and therefore the court erred

by considering L.M.'s interests in being placed with the E.'s rather than whether removal

from their care was warranted. We agree that "removal" and "placement" are not

synonymous. (T.W., supra, 203 Cal.App.4th at p. 45.) However, section 366.26(n)(3)(B)

does not direct the court to decide "removal" in a vacuum. Rather, the statute provides

the court must determine whether removal "is in the child's best interest."

(§ 366.26(n)(3).)

       Thus, the best-interest standard is what drives a decision whether to remove under

section 366.26(n)(3)(B). In determining the child's best interest, the dependency court

"must consider the minor's current circumstances." (State Department, supra,

162 Cal.App.4th at p. 286.) For example, in In re F.A. (2015) 241 Cal.App.4th 107,

initial foster parents filed a petition seeking return of a child who had been erroneously

removed from their care. Even though the child welfare agency admitted that the

removal was erroneous, that did not necessarily establish that returning the child to that

home was in her best interest because she spent 100 days with other caregivers who

provided excellent care in which she flourished. (Id. at pp. 109-110.) Applying these

same considerations here, the court could properly consider L.M.'s "current

circumstances," including her sibling bond and her relationship with the E.'s.

       Moreover, a court " 'should avail itself of all evidence which might bear on the

child's best interest.' " (In re Emily D. (2015) 234 Cal.App.4th 438, 446.) The E.'s ability

to provide L.M. a sibling relationship in a loving home directly bears on whether L.M.'s

                                             18
best interests are furthered by removal. Additionally, the purpose of the best interest

standard is to "maximize a child's opportunity to develop into a stable, well-adjusted

adult." (Adoption of Michelle T. (1975) 44 Cal.App.3d 699, 704.) Thus, in deciding

what is in the child's best interest, the court properly considers the long-term nurturing

and growth of the child, as well as the child's future physical, mental, and emotional

needs. (In Interest of B.T. (Iowa Ct. App. 2017) 894 N.W.2d 29, 33.) In this sense, the

best interest standard is necessarily forward looking. As applied here, where L.M.'s

future includes a sibling relationship with V.E., the court properly considered future

placement with V.E. in determining whether L.M.'s best interests compelled removal.

       Although our conclusion is required by the statute's text, it is also supported by

legislative history. In 2005, the Legislature added subdivision (n) to section 366.26 by

way of Senate Bill No. 218. (Wayne F., supra, 145 Cal.App.4th at p. 1336-1337.) A bill

analysis prepared for the Senate Judiciary Committee states that the legislation is

intended to provide judicial oversight of an agency's recommendation to remove and

place the child with a different person:

          "The sponsor contends that children who have lived for long periods
          of time with their caretakers could be psychologically harmed by
          being moved to a different home pending a petition for adoption.
          Their proposed solution is to require that when the D[epartment of]
          S[ocial] S[ervices] or the licensed adoption agency recommends that
          a child be removed from a caretaker who wishes to adopt the child,
          only to be adopted by a different person, that recommendation
          should be reviewed by the dependency court." (Senate Com. on
          Judiciary, analysis of Sen. Bill No. 218 (2005-2006 Reg. Sess.) as
          amended Apr. 7, 2005, p. 4, italics added.)




                                             19
       This same bill analysis, with remarkable prescience of the circumstances here,

indicates that "removal" as used in section 366.26(n)(3)(B) is not a limit on the best-

interest inquiry, but rather a timing provision:

          "There may be a number of reasons why the . . . agency may wish to
          remove the child from the caretaker's home and place him or her in
          another home, such as . . . the home of another set of prospective
          adoptive parents who appear to be more suitable for the
          adoption. . . .

          "However, SB 218 recognizes that there could be reasons why a
          child should not be removed from a caretaker's home, and those
          reasons could amount to removal not being in the best interest of the
          child. Therefore, rather than have the child removed and placed
          elsewhere first, pending a review of the department's decision which
          could only be challenged using an abuse of discretion standard, this
          bill would establish a notice and hearing procedure prior to
          removal." (Senate Com. on Judiciary, analysis of Sen. Bill No. 218
          (2005-2006 Reg. Sess.) as amended Apr. 7, 2005, p. 6, italics
          added.)

       A subsequently prepared bill analysis for the Assembly Judiciary Committee also

indicates that the child's proposed placement is integral to the best-interest analysis:

          "Supporters of the bill . . . argue that it will provide greater stability
          for children awaiting adoption by preventing them from being moved
          needlessly. Moreover, the bill will ensure that children are not
          removed from prospective adoptive parents unless the move is truly
          in the child's best interest. Supporters argue that 'the determination
          concerning a child's placement in the best possible adoptive home
          may be the single most important determination made for and about
          the child. That determination should be made with adequate judicial
          oversight and governed by the child's best interest." (Assembly
          Com. on Judiciary, analysis of Sen. Bill No. 218 (2005–2006 Reg.
          Sess.) as amended June 2, 2005, p. 7, italics added.)12



12     On our own motion, we took judicial notice of these bill analyses and provided the
parties an opportunity to file supplemental briefs addressing their impact here.

                                              20
       Additionally, we note that "[w]hen a minor is in the custody of a person who is not

the minor's parent or predependency probate guardian, the juvenile court may grant a

section 388 petition to change a minor's placement based solely on the best interest of the

minor, and need not find that the current placement is detrimental." (A.H. v. Superior

Court (2013) 219 Cal.App.4th 1379, 1393.) In sharp contrast, if the agency recommends

removing the child from the home of his or her parents or predependency petition

guardian, the government must prove detrimental circumstances exist by clear and

convincing evidence. (§ 361, subd. (c).)13 Thus, where the Legislature intends certain

classes of caregivers to retain placement absent a showing of grounds for removal alone,

it knows how to do so. The absence of such language from section 366.26(n) further

supports our conclusion that the juvenile court correctly considered L.M.'s proposed

placement as part of its best interest analysis under section 366.26(n)(3).

13     Section 361, subdivision (c) provides in part: "A dependent child shall not be
taken from the physical custody of his or her parents, guardian or guardians . . . with
whom the child resides at the time the petition was initiated, unless the juvenile court
finds clear and convincing evidence of any of the following circumstances listed in
paragraphs (1) to (5), inclusive . . . . [¶] (1) There is or would be a substantial danger to
the physical health, safety, protection, or physical or emotional well-being of the minor if
the minor were returned home, and there are no reasonable means by which the minor's
physical health can be protected without removing the minor from the minor's parent's,
guardian's . . . physical custody. . . . [¶] (2) The parent, guardian . . . is unwilling to
have physical custody of the minor . . . . [¶] (3) The minor is suffering severe emotional
damage . . . and there are no reasonable means by which the minor's emotional health
may be protected without removing the minor from the physical custody of his or her
parent, guardian . . . . [¶] (4) The minor or a sibling of the minor has been sexually
abused, or is deemed to be at substantial risk of being sexually abused, by a parent,
guardian . . . and there are no reasonable means by which the minor can be protected
from further sexual abuse or a substantial risk of sexual abuse without removing the
minor from his or her parent, guardian . . . . [¶] (5) The minor has been left without any
provision for his or her support . . . ."

                                             21
B.     The Best Interest Finding is Supported by Substantial Evidence

       Kate and Jaime contend the court abused its discretion in removing L.M. from

their care because "expert testimony showed that [L.M.] would suffer detriment should

her secure attachment with Kate and Jaime be severed." They also assert it was "entirely

uncertain" and speculative how L.M. "would fare in transitioning" to the E.'s home.

       On appeal from an order of removal under section 366.26(n)(3), we determine

whether the record contains substantial evidence to support the trial court's finding that

removal was in the child's best interest. (See M.M., supra, 235 Cal.App.4th at p. 64.)

Under the substantial evidence standard of review, an appellate court reviews the record

in the light most favorable to the trial court's findings. (See In re George T. (2004)

33 Cal.4th 620, 630-631.) " ' " 'If the circumstances reasonably justify the trier of fact's

findings, the opinion of the reviewing court that the circumstances might also be

reasonably reconciled with a contrary finding does not warrant a reversal of the

judgment.' " ' " (Id. at p. 631.) We may not reweigh or express an independent judgment

on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.)

       Kate and Jaime's argument fails because it disregards Dr. Himelstein's testimony.

She testified, "I do not believe it would be traumatizing" for L.M. to move to another

loving home. In response to the court's questioning, Dr. Himelstein reiterated that L.M.

would not suffer any trauma by being removed from Kate and Jaime's care and placed

with the E's:

          "THE COURT: In your professional opinion, knowing what you
          know about this case and the persons involved in the case, including


                                              22
           [L.M.], do you have an opinion professionally whether or not you
           think she might have trauma by being moved to another home?

           "[Dr. Himelstein]: To this home, to the [E.'s] home?

           "THE COURT: Right.

           "[Dr. Himelstein]: I do not think—I do not see that she would be
           traumatized by it."

       To support their argument, Kate and Jaime cite Dr. Vaquero's testimony that a

change in placement places the child at risk of a disruption in development. They also

rely on O'Connor's testimony that in her opinion, L.M. would suffer trauma if removed

from her healthy and secure attachment to Kate and Jaime. The juvenile court expressly

stated, however, that "[a]s to the experts, and the trauma . . . I found that Dr.

Hemmelstein [sic] was the most credible expert." As a reviewing court we can neither

reweigh the evidence nor reject the juvenile court's credibility determinations. (T.W.,

supra, 203 Cal.App.4th at p. 47 [appellate court must "defer to the juvenile court's

findings of fact and assessment of the credibility of witnesses"].) Additionally, Dr.

Himelstein testified that "absolutely" L.M. would benefit from growing up with a

biological sibling in her home. She also explained that as L.M. "grows up, develops her

core beliefs and identity," having a "warm biological sibling relationship in her home on

a daily basis" would be a "powerful and positive" influence on her development,

exceeding that which L.M. would enjoy from a warm relationship with a grandparent

who sees her twice a month. Accordingly, the juvenile court's finding that L.M. will

flourish with the E.'s is supported by substantial evidence and not unduly speculative.




                                              23
       Kate and Jaime also contend their case is "similar" to M.M., supra, 235

Cal.App.4th 54, where the Court of Appeal vacated a placement order. We disagree

because M.M. is materially distinguishable. There, the child (M.M.) was placed with a

prospective adoptive parent prior to termination of her biological parents' parental rights.

Shortly before the hearing to terminate those rights, the agency recommended that M.M.

be placed with her aunt. Although the prospective adoptive parent was present at the

hearing, she was only in the audience; she "was not asked to join the parties at the

counsel table, or asked her position on the proposed change of placement." (M.M., at

p. 59.) The agency did not present any evidence in favor of changing M.M.'s placement,

but the court nonetheless ordered her placed with the aunt—and effectively removed her

from the prospective adoptive parent. (Ibid.) The prospective adoptive parent appealed,

asserting she was deprived of the notice and hearing to which she was entitled under

section 366.26(n). (M.M., at pp. 59-60.) The appellate court agreed, stating that the

prospective adoptive parent "had no notice, or even reason to suspect, that [the agency]

intended to continue to pursue its request to remove the minor from her home." (Id. at

p. 63.) The error was prejudicial because both the prospective adoptive parent and the

aunt were suitable caregivers, and there was no evidence that removing the child was in

her best interest. (See id. at p. 64.)

       Unlike the situation in M.M., supra, 235 Cal.App.4th 54, here Kate and Jaime

fully participated in the hearing. In addition, there is ample substantial evidence,

including expert testimony, that removing L.M. from Kate and Jaime's care and placing

her with the E.'s is in L.M.'s best interest.

                                                24
       Kate and Jaime's reliance on In re M.H. (2018) 21 Cal.App.5th 1296 is also

unavailing. There the court faced the similarly difficult task of deciding whether to

remove a one-year old and place the child elsewhere (in that case, his maternal great-

aunt's home). Both homes were potentially beneficial to the child. The de facto parents

in that case had cared for the child since birth and he was thriving in their care. On the

other hand, the maternal great aunt offered a biological connection and was willing and

able to provide the child a loving home. (Id. at p. 1305.) The juvenile court concluded

that continued placement with the de facto parents was in the child's best interest. (Id. at

pp. 1305-1306.) In affirming the juvenile court's decision, the Court of Appeal

recognized the deference it, as a reviewing court, owed the juvenile court in making a

difficult placement decision. (Ibid.)

       Here, although the juvenile court's decision was the opposite of that made in In re

M.H., supra, 21 Cal.App.5th 1296, the same standard of review compels affirmance. We

understand, as did the Court of Appeal in In re M.H., that the juvenile court was in the

best position to make the difficult decision of which placement, between two excellent

options, was in L.M.'s best interest. Substantial evidence supports the court's finding that

removal here was in L.M.'s best interest, and in so ruling the court did not abuse its

discretion.14



14     Because we affirm the juvenile court's ruling based on its finding that removing
L.M. is in her best interests under a standard applicable as if Kate and Jaime were
designated prospective adoptive parents, it is unnecessary to address the E.'s and V.E.'s
contentions that the order may be affirmed on an alternative basis under section 388.

                                             25
                                       DISPOSITION

       The juvenile court's orders entered December 28, 2018, including but not limited

to its order authorizing the Agency to remove L.M. from Kate and Jaime's care, and

determining that it is in L.M.'s best interest to be placed with the E.'s, are affirmed.



                                                                                     DATO, J.

WE CONCUR:



HUFFMAN, Acting P. J.




GUERRERO, J.




                                              26
Filed 9/12/19
                          CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                STATE OF CALIFORNIA


In re L.M., a Person Coming Under the
Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND                     D075120
HUMAN SERVICES AGENCY,

        Plaintiff and Respondent,               (Super. Ct. No. EJ3761B)

        v.

D.M.,

        Defendant and Appellant;
                                                ORDER CERTIFYING OPINION
KATE K. et al.,                                 FOR PUBLICATION

        Objectors and Appellants;

JOHN E. et al.,

        Respondents.


THE COURT:

The opinion in this case filed August 20, 2019, was not certified for publication. It

appearing the opinion meets the standards for publication specified in California Rules of

Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for publication is

GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication

specified in California Rules of Court, rule 8.1105(c); and

ORDERED that the words "Not to Be Published in the Official Reports" appearing on

page one of said opinion be deleted and the opinion herein be published in the Official

Reports.


                                                                 HUFFMAN, Acting P. J.

Copies to: All parties




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