Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and orders of the Superior Court of San Diego County, Cynthia Bashant, Judge., Super. Ct. No. J512231B.
AARON, J.
Rafael T. and Carolina T appeal a judgment terminating their parental rights to their son, R.T. They also appeal orders denying their petitions for modification under
Welfare and Institutions Code section 388. We affirm the judgments and orders.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
R.T. was born in April 2005 to Carolina T. and Rafael T. (collectively, the parents), who are developmentally disabled. The San Diego Health and Human Services Agency (Agency) detained R.T. at birth and filed a petition under section 300, subdivision (j). The Agency alleged that R.T. was at substantial risk of abuse or neglect because his older brother, Rafael T., Jr. (Rafael Jr.) had suffered an unexplained, nonaccidental rib fracture while in the care of his parents in 1998, when he was three months old. After Rafael Jr. was injured, the parents received 18 months of family reunification services, and he was returned to their care. Less than one year later, Rafael inflicted multiple bruises on Rafael Jr.'s buttocks and face. The Agency removed Rafael Jr. from parental custody a second time, and he was subsequently adopted by his maternal grandmother (Grandmother).
In May 2005, the court sustained the allegations of the section 300 petition, removed R.T. from parental custody and ordered a plan of family reunification. The court also ordered Carolina and Rafael to participate in psychological evaluations. R.T. was placed in Grandmother's care.
In 1998, after Rafael Jr. was removed from his parents' custody, Rafael was diagnosed with "Intermittent Explosive Disorder[] and Adjustment Disorder with Mixed Emotional Features." He also had a mild case of cerebral palsy and epilepsy, which was controlled by medication. In August 2005, psychologist Louise B. Green, Ph.D., performed a psychological evaluation of Rafael in connection with this case. Dr. Green determined that a diagnostic impression of Intermittent Explosive Disorder (IED) could not be ruled out. She believed Rafael was mildly mentally retarded. She opined that Rafael's cognitive deficiencies made it unlikely that he would be able to protect R.T. in the foreseeable future. Risk factors included Rafael's past physical abuse of Rafael Jr., his poor impulse control, and his inappropriate responses to emotionally-charged stimuli.
Intermittent Explosive Disorder is characterized by the occurrence of discrete episodes of failure to resist aggressive impulses, resulting in serious assaultive acts or destruction of property. The degree of aggressiveness expressed during an episode is grossly out of proportion to any provocation or precipitating psychosocial stressor. The course of the disorder is variable, and may be chronic or episodic. (American Psychiatric Assn.'s Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000, text revisions) pp. 663-665.)
In October 2005, Ira Grossman, Ph.D., a board-certified clinical psychologist, also evaluated Rafael. Dr. Grossman did not diagnose Rafael with IED or other psychopathology. He determined that Rafael had borderline intellectual functioning, and that he was not mentally retarded. Dr. Grossman believed that treatment efforts were likely to be ineffective because of Rafael's cognitive limitations. He advised against family reunification.
Carolina participated in psychological evaluations in July and September 2005. In July, psychologist Robert Kelin, Psy.D., concluded that Carolina had partner relational problems, mild mental retardation, and dependent personality disorder. Dr. Kelin did not believe Carolina's intellectual functioning limited her ability to parent. He opined that Carolina would benefit from reunification services, but expressed concerns about her ability to protect R.T. from Rafael. Dr. Kelin noted that Rafael had been diagnosed with an intermittent explosive disorder.
Alan R. Flitton, Psy.D., a clinical and forensic psychologist, reported that Carolina had mild mental retardation. He did not diagnose a personality disorder, but noted that Carolina had dependent traits. Dr. Flitton concluded that Carolina did not present with any notable personality or clinical pathology that would impede her parenting abilities. He believed she was not a direct risk to R.T., but that she might not take assertive action to protect R.T. if Rafael were to become abusive.
At the 12-month review hearing, the court found that the parents had made some progress in alleviating the causes of the dependency, but that returning R.T. to parental custody would create a substantial risk of detrimental to his well-being. The court terminated reunification services and set a permanency plan hearing under section 366.26. Carolina and Rafael filed petitions for extraordinary relief under California Rules of Court, rule 8.542. This court denied their petitions. (Rafael T. v. Superior Court (Oct. 30, 2006, D048953) [nonpub. opn.].)
Further rule references are to the California Rules of Court.
On January 2, 2007, Rafael and Carolina filed petitions for modification under section 388 seeking R.T.'s return to their custody under a plan of family maintenance services. A combined hearing on the petitions for modification and the Agency's permanency plan recommendation was held on January 19 and February 6, 2007.
Psychologist Deloris Rodriguez-Reiman, Ph.D, had treated Carolina since August 2003. She testified that Carolina had made progress in her ability to protect R.T. and that she had developed a safety plan. Carolina was generally slow to understand concepts, but once she did, she was very thoughtful in her responses. Dr. Rodriguez-Reiman believed that Carolina would do everything she could to protect R.T. During her high-risk pregnancy with R.T., Carolina took her responsibilities seriously and "did exactly everything that they asked" of her. Dr. Rodriguez-Reiman opined that Carolina was able to understand and adhere to her court-ordered treatment plan, and that she had the ability to be a good parent.
Clinical psychologist Michael F. Boyle, Ph.D., testified that he had treated Rafael weekly from May 2005, when the Agency referred Rafael to him for treatment for IED and Obsessive-Compulsive Personality Disorder (OCPD). During the course of evaluation and therapy, Rafael did not exhibit any signs of IED or OCPD. Dr. Boyle did not agree with the diagnosis of IED. He opined that Rafael's behavior was within normal range for a person with borderline intelligence.
Grandmother testified that the parents were appropriate with R.T. They saw him every day. In Grandmother's opinion, Carolina was a good mother and had improved her parenting skills. Grandmother believed R.T. was as bonded with his parents as he was with her; however, R.T. came to her for assistance when he was tired or if he needed something. Grandmother was concerned that, on their own, Rafael and Carolina would not be able to consistently and adequately care for R.T.
Agency social worker Cheryl Corkill testified that the parents' visits with R.T. typically went very well. Carolina was very appropriate with R.T. Corkill opined that R.T. had significant relationships with his parents and that those relationships should continue. Corkill characterized Carolina's and Rafael's relationships with R.T. as nonparental. R.T. looked to Grandmother as his primary caregiver. Because of the history of the case, Corkill remained concerned about R.T.'s safety in his parents' care. In order to safely parent and protect a child, a person must be able to identify safety risks, regulate his or her emotions, and have the capacity to protect the child in an unsafe situation. Corkill questioned Carolina's and Rafael's abilities to parent R.T. "24 hours a day and unsupervised."
The court found that Rafael and Carolina did not show changed circumstances or that it would be in R.T.'s best interests to return to their care. The court found that R.T. enjoyed his visits with the parents, but concluded that R.T.'s need for stability outweighed any benefit R.T. might gain from visitation. The court determined that R.T. was adoptable and that no exceptions under section 366.26, subdivision (c)(1) applied to preclude termination of parental rights. The court terminated parental rights.
DISCUSSION
A
The Court Did Not Abuse Its Discretion When It Denied the Parents' Petitions for Modification Under Section 388
Rafael and Carolina contend that the juvenile court erred when it denied their petitions for modification under section 388. They argue that they showed changed circumstances and that granting the petition would promote R.T.'s best interests. (§ 388, subds. (a), (c); rule 5.570(e).) Rafael points out that he is no longer diagnosed as having IED and does not have any apparent anger management problems, and argues that he has resolved the protective risks to R.T. Carolina maintains that she is not as passive as she was when the case began, and that she has demonstrated her commitment and ability to care for and to protect R.T.
Under section 388, a parent, interested person or the dependent child (generically, petitioner) may petition the court to change, modify or set aside a previous order on the grounds of changed circumstances or new evidence. (§ 388, subd. (a).) The petitioner requesting the modification has the burden to show a change of circumstances or new evidence, and that the proposed modification is in the child's best interest. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) Generally, the petitioner must show by a preponderance of the evidence that the child's welfare requires the modification sought. (Rule 5.570(e).)
We review the grant or denial of a petition for modification under section 388 for an abuse of discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) While the abuse of discretion standard gives the trial court substantial latitude, "[t]he scope of discretion always resides in the particular law being applied, i.e., in the 'legal principles governing the subject of [the] action . . . . ' Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an 'abuse' of discretion. [Citation.]" (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.)
In evaluating whether the petitioner has met his or her burden to show changed circumstances, the trial court should consider: "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531-532 ["While this list is not meant to be exhaustive, it does provide a reasoned and principled basis on which to evaluate a section 388 motion"].)
Substantial evidence supports the finding that the parents' circumstances have not sufficiently changed to allow the court to safely return R.T. to their care. The parents' developmental disabilities and psychological problems resulted in physical injury to a very young child on two occasions. Rafael physically abused Rafael Jr. after he and Carolina had received 18 months of services. Carolina knew that Rafael was spanking their two-year old son, but did not intervene to protect him. A pattern of nonaccidental physical injury to a child or a child's sibling, coupled with the other parent's failure to protect the child or sibling, is a serious problem, particularly when the child or sibling is an infant or toddler. (Cf. In re Kimberly F., supra, 56 Cal.App.4th at pp. 531-532.)
After R.T. was detained, the Agency provided 12 months of court-ordered reunification services to the parents. Grandmother was concerned that Rafael and Carolina would not be able to provide adequate long-term care to R.T. on their own. At visits, the parents would hand R.T. back to Grandmother if R.T. was crying or upset. Social worker Corkill opined that the parents did not have the ability to benefit from services to the extent required in order to safely parent R.T. She expressed concerns about the parents' ability to care for R.T. on a full-time basis without supervision. Dr. Grossman recommended against returning R.T. to Rafael's care and saw "no realistic hope of any significant change occurring as the result of [Rafael's] education or treatment."
In addition to services ordered by the juvenile court, Rafael had been receiving services from the San Diego Regional Center for approximately 14 years, including family support and independent living services. According to Sally Holshouser, the executive director of Family Support Services, Rafael had some difficulty understanding basic concepts. Both parents reported that they did not know how Rafael Jr. had been injured.
The record supports the inference that the problems that led to R.T.'s dependency were not easily removed or ameliorated. Although Carolina in particular had made some progress in her ability to parent R.T., the problems were not resolved to the degree that would allow the court to safely return 22-month-old R.T. to parental custody. (In re Kimberly F., supra, 56 Cal.App.4th at pp. 531-532.)
The record also supports the finding that granting the petition would not promote R.T.'s best interests. R.T. was removed from parental custody at birth, and Carolina and Rafael had never cared for him without supervision. Grandmother was R.T.'s primary caregiver, and he looked to her for comfort and support. R.T. went to Grandmother when he was tired or if he needed something, even when his parents were present. R.T. also had a significant relationship with his older brother, whom Grandmother had adopted. The court could reasonably conclude that R.T. was closely bonded with Grandmother and his brother, and that leaving the security of their home for an uncertain placement was not in R.T.'s best interests.
Under section 388, subdivision (a), the focus of a petition for modification is whether the petitioner has shown a legitimate change of circumstances. The court could reasonably conclude that Rafael and Carolina did not make the required showing. (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.) Thus, the court did not abuse its discretion when it determined it was not in R.T.'s best interest to be placed in the custody of his parents. (Ibid.)
B
Substantial Evidence Supports the Court's Finding that the Beneficial Parent-Child Exception Under Section 366.26, Subdivision (c)(1)(A) Does Not Apply
Rafael and Carolina assert that the court erred when it determined that the beneficial parent-child relationship exception under section 366.26, subdivision (c)(1)(A) does not apply to preclude termination of parental rights. They contend that the court's findings are not supported by substantial evidence.
At a permanency plan hearing, the court may order one of three alternatives—adoption, guardianship or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) If a child is adoptable, there is a strong preference for adoption over the alternative permanency plans. (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; In re Zachary G. (1999) 77 Cal.App.4th 799, 808-809.) Once the court determines that a child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.)
Section 366.26, subdivision (c)(1)(A) provides an exception to termination of parental rights when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." In order to overcome the statutory preference for adoption, the parent must prove that he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent. (In re Derek W. (1999) 73 Cal.App.4th 823, 827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
We recognize that interaction between parent and child will almost always confer some incidental benefit to the child. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) However, in the context of section 366.26, subdivision (c)(1)(A), "benefit" means that the parent-child relationship "promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (Autumn H., at p. 575.) "If severing the natural parent/child parental relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (Ibid.)
We determine whether there is substantial evidence to support the court's ruling by reviewing the evidence most favorably to the prevailing party, and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) We do not reweigh the evidence, evaluate the credibility of witnesses or resolve evidentiary conflicts. (Autumn H., supra, 27 Cal.App.4th at p. 576.) A judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result if it had believed other evidence. (In re Dakota H. (2005) 132 Cal.App.4th 212, 230; Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.)
R.T. was removed from his parents' custody at birth. Although Rafael and Carolina had extensive visitation with R.T. throughout the dependency proceedings, their interactions remained supervised. Social worker Corkill concluded that Rafael's and Carolina's relationship with R.T., although emotionally significant, was not a parental relationship in that they were not able to safely parent R.T. without supervision. Dr. Green concluded that Rafael's cognitive deficiencies made it unlikely that he would be able to safely parent R.T. or be able to make important decisions regarding R.T.'s welfare. Drs. Kelin and Flitton expressed concerns about Carolina's ability to protect R.T. from Rafael. The court could have reasonably concluded that Rafael's and Carolina's relationships with R.T. were not that of responsible, protective caregivers, that is, the relationships were not parental in nature.
We recognize that there is substantial evidence in the record to support Carolina's assertions that she was capable of being a good parent, and that she consistently demonstrated her devotion and commitment to parenting R.T. However, as noted above, a judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence. (In re Dakota H., supra, 132 Cal.App.4th at p. 230; Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 631.)
There is substantial evidence supporting the trial court's conclusion that R.T. did not rely on his parents for security or stability. Social worker Corkill testified that Grandmother was R.T.'s primary caregiver and parent, and that his relationship with Rafael and Carolina was that of a child to relatives. Dr. Kelin concluded that R.T. had only a mild bond with Rafael. Although Carolina and Rafael had constantly been a part of R.T.'s life, he looked to Grandmother to meet his needs, even when his parents were present. The court could thus reasonably have concluded that the parent-child relationship did not "promote the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (Autumn H., supra, 27 Cal.App.4th at p. 575.)
Carolina argues that the fact that Grandmother would continue to promote the parents' relationships with R.T. has no bearing on whether the parent-child relationship benefits the child and is worthy of protection under section 366.26, subdivision (c)(1)(A). Carolina maintains that Grandmother's promise of future visitation is illusory, and the parents will have no right to protect their relationships with R.T. if their parental rights are terminated.
Although termination of parental rights will deprive the parents of the legal authority to make decisions with respect to R.T.'s care, custody, health, education and welfare, as a practical matter, the evidence shows that the parents will continue to be a part of R.T.'s life. The juvenile court is not required to disregard the practical circumstances of the child's situation when it considers whether there is a "compelling reason for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1).) In view of R.T.'s age, the stability of his placement, Grandmother's parental role, the supportive relationship between Grandmother and the parents, and R.T.'s relationship with his brother, the court could reasonably have concluded that adoption would provide R.T. with lifelong security in the home of his primary beneficial caregiver, and would also allow R.T.'s relationships with Carolina and Rafael to continue, under Grandmother's supervision. Grandmother's stated intent to continue to allow Carolina and Rafael to maintain their relationships with R.T. was not a mere promise. Grandmother had a substantial history of supporting and encouraging the parents' relationships with both Rafael Jr. and R.T. On this record, we cannot conclude that the court erred when it found that there was not a compelling reason for determining that R.T. would be greatly harmed by the termination of parental rights. (§ 366.26, subd. (c)(1).)
Although the record shows that R.T. enjoyed his interactions with Rafael and Carolina, and that he derived some benefit from his relationships with them, there is substantial evidence to support the court's finding that termination of parental rights would not be detrimental to R.T. and that he would benefit from the security of a stable, permanent home with a committed, capable adoptive parent. (§ 366.26, subd. (c)(1)(A); Autumn H., supra, 27 Cal.App.4th at p. 575.)
DISPOSITION
The judgment and orders are affirmed.
WE CONCUR: O'ROURKE, Acting P. J., IRION, J.