Opinion
E066359
01-24-2017
In re A.M., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. B.B., Defendant and Appellant.
William Hook, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Carole Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWJ1500010) OPINION APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge. Affirmed. William Hook, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Carole Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
B.B., the mother of A.M., appeals an order terminating her parental rights. She contends that the juvenile court abused its discretion when it denied her petition, pursuant to Welfare and Institutions Code section 388, for modification of a prior order denying her reunification services. We will affirm the judgment.
All further statutory citations refer to the Welfare and Institutions Code. Hereafter, we will identify the child as "A." and the parents as "mother" and "father." Father is not a party to this appeal.
FACTUAL AND PROCEDURAL HISTORY
On December 31, 2014, the Department of Public Social Services (DPSS) received an immediate response referral with allegations of domestic violence and physical abuse. The referral stated that A., an infant, had been transferred from Hemet Valley Medical Center to the Children's Hospital of Orange (CHOC) because she had stopped breathing. At CHOC, they completed thorough testing consisting of a head scan, skeletal survey and eye exam. The maternal grandmother reported two incidents of domestic violence between the parents, involving physical injuries to mother.
Mother and father were A.'s primary caregivers, and mother did not report that A. had suffered any injuries. However, the maternal grandmother reported three incidents when A. was bleeding. On November 24, 2014, when father was caring for A., the maternal grandfather was in another room and heard A. screaming. Father called mother and told her the baby was bleeding from her upper lip. When the maternal grandmother and mother got home, they noticed blood and a tear on A.'s upper lip. Father said that a bottle had caused it. They did not seek medical treatment. One week later, when mother was in the shower, father was feeding A., and the grandparents were in another room, the maternal grandmother heard father scream, "The baby is bleeding, come help." The maternal grandmother went to the room and saw blood gushing from A.'s injured lip. The grandmother suggested taking the baby to the doctor, but the parents refused, stating that they had already switched her bottle. On December 1, 2014, when mother was asleep and father was changing A.'s diaper, the maternal grandmother heard father yell, "The baby is bleeding from her butt." At the grandmother's insistence, they took A. to the hospital but, when A. was seen, she had been having diarrhea and the parents were told it was normal to have some bleeding during diaper changes.
The maternal grandmother stated she had father leave the home on December 3, 2014, and both parents then moved in with the maternal great-grandmother. Thereafter, the parents did not allow the grandmother to see A.
"It was reported" that on December 29, 2014, while father was holding A. on his left arm, A. jerked forward and father jerked her back kind of roughly.
On December 31, 2014, DPSS received A.'s medical records, which showed that A. had multiple fractures of different ages, in differing stages of healing, suggestive of repeated nonaccidental trauma. A. had the following injuries: two healing fractures of the left fourth rib; healing fractures of the posterior left fifth and sixth ribs; healing nondisplaced fractures of the posterior right sixth and eighth ribs; a mildly displaced acute fracture of the posterior right sixth rib; a healing nondisplaced fracture of the posterior right eighth rib; a nondisplaced acute fracture of the right tenth rib; a nondisplaced healing fracture of the right mid femur; a nondisplaced corner fracture of the left femur; a suggestion of fractures on the right wrist; and, a possible nondisplaced fracture of the mid left humerous, which may be acute. A. also had probable distal metaphyseal fractures of the distal left radius and ulna.
A. was detained on December 31, 2014. A section 300 petition was filed as to A., who was then two months old, on January 5, 2015. An amended petition was filed on April 16, 2015, alleging in part, under section 300, subdivision (b), the following: That while in the care of her parents, A. had suffered serious physical harm in that she had multiple fractures, occurring at different times, which was suggestive of nonaccidental trauma; mother had unresolved mental health issues; mother exposed A. to acts of domestic violence involving father; father engaged in acts of domestic violence with mother; and that father had unresolved mental health issues, including a diagnosis of bipolar disorder. Under section 300, subdivision (e), the petition alleged that two-month-old A. had suffered serious physical harm while in the care of her parents in that she had multiple fractures, occurring at different times, which was suggestive of nonaccidental trauma.
The detention hearing was held on January 6, 2015. The court found a prima facie showing had been made that A. came within section 300 and ordered supervised visitation for mother at a minimum of two times a week.
Prior to the jurisdiction and disposition hearing, mother said she no longer wanted to be in a relationship with father because their relationship was violent. Mother also said she believed father had hurt A. because she knew he was the only one who could have harmed her. However, even though father blamed mother that there was a warrant out for his arrest and had threatened mother, she refused to obtain a restraining order because she did not believe father meant what he said. The paternal grandmother said father had threatened several times that he was going to "take someone" to beat mother up. The paternal grandmother said it was very frightening. Nevertheless, when DPSS recommended that she obtain the restraining order to protect herself and possibly A. if she were returned to her care, mother said she did not want to get one. DPSS considered this negligent, in that mother claimed to know that A. was being abused by father but did nothing to protect her, and was now unwilling to obtain a restraining order against father.
Mother was having weekly visits with A. for two hours. The foster mother reported that mother bonded well with the child.
The jurisdiction and disposition hearing was held on April 16, 2015. The juvenile court found all the allegations in the first amended petition true and adjudged A. a dependent of the court. Section 361, subdivision (c)(1), findings were made as to both parents. Reunification services were denied as to mother pursuant to section 361.5, subdivision (b)(5). A contested section 366.26 hearing was set for August 17, 2015, and mother's visitation was reduced to once a month. Mother had monthly visits with A. from May 2015 through June 2016.
Section 361, subdivision (c)(1), provides that a child may be removed from the physical custody of the parent or parents if the court finds by clear and convincing evidence that 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 or guardian's physical custody."
Section 361.5, subdivision (b), provides that a juvenile court shall not order reunification services under several circumstances, including where the court has found that the child has suffered severe physical harm and that the parent knew or should have known that another person was inflicting severe physical abuse on the child, unless the court finds by clear and convincing evidence that reunification is in the child's best interest. (§ 361.5, subds. (b)(5), (b)(6), (c).) --------
Mother filed a section 388 petition on December 2, 2015. Attachments to the petition included a letter from the Family Service Association regarding counseling services mother had received, mother's notes regarding visits with A., and photographs of the visits. Mother asked that the section 366.26 hearing be vacated and reunification services be offered to her. The court set a hearing for February 17, 2016.
A. was placed in an adoptive home on December 23, 2015. A. had previously been placed with her maternal great-aunt, K.W., on May 11, 2015, but she no longer desired to provide permanency for A. K.W. was originally planning to give the child to the maternal grandmother once the adoption was final and the dependency was closed, although she knew the maternal grandmother could not be approved for placement. K.W. reported that the family as a whole was very dysfunctional, and that there were no other relatives that would be appropriate for placement.
The section 388 hearing was continued several times. The first continuance was granted because an attorney substituted in for mother on the original hearing date, February 17, 2016. The petition was heard on June 24, 2016, the same day as the section 366.26 hearing. Mother submitted numerous documents, including a letter from her therapist, for the hearing.
The court denied the petition based on its finding that offering reunification services was not in A.'s best interest. (We discuss the details of the court's finding below.) The court then terminated parental rights.
On June 27, 2016, mother filed a timely notice of appeal.
DISCUSSION
Mother argues that the juvenile court abused its discretion by denying her modification petition because the evidence showed she had made substantial progress in remedying her parenting issues and because she had a bond with A. We disagree.
"A juvenile court dependency order may be changed, modified, or set aside at any time. (§ 385.) A parent may petition the court for such a modification on grounds of change of circumstance or new evidence. (§ 388, subd. (a).) The parent, however, must also show that the proposed change would promote the best interests of the child. (§ 388, subd. (a)(2); [citation].)" (In re J.C. (2014) 226 Cal.App.4th 503, 525.) Accordingly, a parent seeking to change an order of the dependency court bears the burden of proving that (1) there is a change in circumstances warranting a change in the order, and (2) the change would be in the best interest of the child. (In re S.J. (2008) 167 Cal.App.4th 953, 959.)
In this case, the juvenile court sustained the allegation that A. had suffered severe physical abuse within the meaning of section 300, subdivision (e). When a juvenile court denies reunification services based on such a finding, "the focus of the dependency proceedings turns to the child's need for permanence and stability instead of family reunification. [Citation.] Once severe abuse has been found, a court is 'prohibited from granting reunification services "unless it finds that, based on competent testimony, those services are likely to prevent reabuse . . . or that failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent."' [Citation.] Stated another way, in the 'comparatively extreme situation[]' when a child is the victim of severe abuse, the legislative presumption is that services are not to be provided to the parent. [Citation.] When this presumption applies, the evidentiary burden is heightened at any hearing to consider a section 388 petition requesting reunification services. In such a case, a juvenile court may modify an order denying reunification services only if there is clear and convincing evidence that the services would be in the child's best interests, and only if it makes the same findings that would have been required to offer services at the disposition hearing instead of bypassing services. [Citations.]" (In re G.B. (2014) 227 Cal.App.4th 1147, 1157-1158.)
Here, the juvenile court concluded that although mother had perhaps shown changed circumstances, she did not meet her burden to show that offering her reunification services would be in A.'s best interest. We review that finding for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) The Supreme Court articulated this standard as follows: "As one court has stated, when a court has made a custody determination in a dependency proceeding, '"a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]."' [Citations.] And we have recently warned: 'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' [Citations.]" (Id. at pp. 318-319.) With respect to the best interest prong, mother's petition asserted only that she had a bond with A. and that a permanent home had not yet been found for A. By the time of the hearing, however, A. had been placed in a preadoptive home and had been there for about six months, or nearly one-third of her life. Further, the juvenile court found, among other things, that even if mother and A. had some degree of bond, A. was no longer bonded to mother in a parental relationship. Rather, A. regarded mother as a friendly visitor and was bonded to her prospective adoptive parents.
This finding is supported by substantial evidence: A. had lived with mother for only the first eight weeks of her life and had been out of her custody for nearly a year and a half by the time of the hearing on the petition. From the time A. was removed from mother's custody until the disposition hearing (from Jan. to mid-Apr. 2015), mother had 24 to 28 hours of supervised visitation with A. From May 2015 to June 2016, she only had a single supervised visit each month. Although A. initially displayed a bond with mother, by the date of the hearing on mother's section 388 petition, A. did not have any problems leaving the visits and at times was reluctant, or refused, to hug or kiss mother goodbye. At a monthly visit before the section 388 petition was heard, A. pulled away from mother as she tried to reach for A. By that time, A. clearly identified the prospective adoptive parents as her mother and father and was bonded to them.
In the preliminary assessment of the prospective adoptive parents, the social worker observed that A. enjoyed playing independently, but periodically ran to see both of her prospective adoptive parents and wanted to make sure they were paying attention to what she was doing. When she felt uncomfortable, she sought out the prospective adoptive parents. Elsewhere, the social worker observed that on one occasion when the prospective adoptive father was attempting to leave the room after dropping A. off for a visit with the mother, A. wanted to stay with him rather than going to mother. On other occasions, A. would cry when being transported without the caregivers, but would smile upon her return to them. She also sought her prospective adoptive parents out for comfort and attention. In addition, the prospective adoptive parents reported that after visits with her birth family, A. would wake up screaming in the middle of the night. She would then clutch onto the prospective adoptive mother and refuse to go back to sleep. These facts are sufficient to establish that it was not an abuse of discretion to conclude that mother did not meet her burden of showing that reunification would be in A.'s best interest based on her purported bond with mother.
Mother argues that other evidence in the record supports a finding that she retained a parental bond with A. She points to the social worker's statements in the report prepared for the section 366.26 hearing that mother acted in a parental capacity during visits and that A. was very happy to be with mother and would run to her and hug her. However, the question before us is not whether the juvenile court could reasonably have reached a different conclusion, based on the evidence. Rather, the question is whether the court's conclusion was arbitrary or irrational, or in some way exceeded the bounds of reason. (In re Stephanie M., supra, 7 Cal.4th at p. 318.) Where two or more conclusions can reasonably be drawn from the evidence, the reviewing court has no authority to substitute its decision for that of the trial court. (Id. at pp. 318-319.) Here, the court's conclusion was reasonably drawn from the evidence, and the court in no way exceeded the bounds of reason in finding that ordering reunification services was not in A.'s best interest.
In re Kimberly F. (1997) 56 Cal.App.4th 519 (Kimberly F.), on which mother relies for her assertion that it was in A.'s best interest to grant the section 388 petition, has been largely disavowed by the court that authored it. In that case, the appellate court recommended a list of factors, not meant to be exhaustive, which should be considered in analyzing a section 388 petition. (Kimberly F., at pp. 526-532.) They are as follows: "(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." (Id. at p. 532.) In In re J.C., supra, 226 Cal.App.4th 503, the same court declined to apply the Kimberly F. factors because they failed to take into account the Supreme Court's analysis in In re Stephanie M., supra, 7 Cal.4th 295 and in In re Marilyn H. (1993) 5 Cal.4th 295, both of which hold that after reunification services have terminated, the focus shifts from the parent's interest in reunification to the child's need for permanence and stability. Therefore, a parent's petition for either an order returning custody or reopening reunification efforts must establish how such a change will advance the child's need for permanency and stability. (In re J.C., at pp. 526-527.) We agree with this analysis. Neither mother's petition nor any evidence in the record establishes that initiating reunification services at this juncture would advance A.'s need for permanency and stability. Accordingly, Kimberly F. does not assist mother in this case.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. HOLLENHORST
J.