Opinion
E067884
09-27-2017
In re J.A., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. E.A., Defendant and Appellant.
Marissa Coffey, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWJ1600047) OPINION APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge. Affirmed. Marissa Coffey, 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.
Appellant E.A. (mother) appeals from a juvenile court's order terminating parental rights as to her daughter, J.A. (the child). She claims that the court erred in denying her Welfare and Institutions Code section 388 petition, and that the beneficial parental relationship exception applied. (§ 366.26, subd. (c)(1)(B)(i).) We affirm.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
On January 28, 2016, the Riverside County Department of Public Social Services (DPSS) filed an amended section 300 petition on behalf of the child, who was four months old at the time. The petition alleged that the child came within the provisions of section 300, subdivisions (a) (serious physical harm), (b) (failure to protect) and (e) (severe physical abuse). The petition alleged that, while in the custody of mother and the child's father (father), the child suffered serious physical harm that was inflicted nonaccidentally, including four skull fractures and subdural hemorrhaging, and that the child was at continued risk of suffering serious physical harm.
Father is not a party to this appeal.
The social worker filed a detention report which stated that DPSS received a child abuse referral when mother and father (the parents) took the child to the emergency room and reported that she had rolled off the bed. A CT scan showed that the child had subdural bleeding and old skull fractures; thus, the parents' story did not match the child's injuries. The child was transferred to a children's hospital. She was in critical condition and was possibly not going to survive. A second CT scan was completed at the children's hospital, and it showed four skull fractures, all with subdural hematoma. The social worker reported that mother gave various accounts to different medical staff members, as well as to her. Mother told the emergency room doctor that she put the child down on the middle of the bed, and the child rolled off the bed and hit the floor. She said father arrived home moments later, and they went to the emergency room. In some versions, she said she called 911, and in other versions, she did not. Mother told the social worker she was in the restroom when she heard a "thump" and then heard the child crying; thus, she did not see the child roll off the bed. One doctor opined that the injuries were caused by blunt force trauma.
The police interviewed mother, and she said that she and father were the child's only caregivers. Mother recanted her original account and stated that the child did not roll off the bed. She said she took the child out of the car seat, cradled her in her arms, and then started dancing and twirling around. Mother said the child "might have" hit her head on the refrigerator, or the handle of the refrigerator, or the corner of the doorway. Mother said she did not know exactly what happened, but offered those suggestions. As the other fractures, she said there had never been any accidents that could have caused those injuries.
The court held a detention hearing on January 29, 2016. The court detained the child in foster care. The court ordered that the parents be provided with services pending further proceedings.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on February 18, 2016, recommending that the child be adjudged a dependent and that reunification services be denied the parents pursuant to section 361.5, subdivision (b)(5) and (b)(6). The social worker reported that the child was currently placed in a certified medically fragile foster home. Mother was arrested on February 4, 2016, and charged with child abuse (Pen. Code, § 273a, subd. (a)) and being an accessory (Pen. Code, § 32). Father was also arrested and charged with child abuse. (Pen. Code, § 273a, subd. (a).) He reported that, on the night of the incident he had nine beers, and when he arrived at home, he got into an argument with mother. He then threw his cell phone at her and accidentally hit the child. After father told this story to the police, mother told the same story.
The social worker filed an addendum report on March 10, 2016. She reported that mother started participating in classes with alternatives to domestic violence, and that she had been having supervised visits with the child, twice a week. Mother was bonding with the child, and she brought clothes, formula, and toys for her.
The court held a contested jurisdiction/disposition hearing on May 23, 2016. The court sustained the amended petition, adjudged the child a dependent, and denied reunification services to both parents, pursuant to section 361.5, subdivision (b)(5) and (b)(6), as services were not in the best interest of the child. The court ordered visitation to be twice a month and set a section 366.26 hearing for September 23, 2016.
Section 366.26 and Section 388 Petitions
The social worker filed a section 366.26 report on September 8, 2016, recommending that the court continue the section 366.26 hearing for 120 days, in order to complete a preliminary adoption assessment for the prospective adoptive family. The child was placed in her current home on August 22, 2016. The child had adjusted well to the home, and the family was interested in adopting her. The social worker further reported that mother was convicted of being an accessory and was placed on formal probation. She was currently living with her father, but she had applied for housing assistance and was on the waiting list. Mother was receiving food stamps and was eight months pregnant. She was having consistent supervised visits with the child twice a month, for one hour each visit. Father was convicted of child abuse on August 22, 2016, and was sentenced to six years in prison. Mother said she was no longer in a relationship with him, although he had attempted to contact her.
Mother filed a section 388 petition on September 16, 2016, requesting six months of reunification services. As to changed circumstances, she alleged that she had participated in domestic violence and parenting classes, she had complied with court orders, and she had a good attitude and high level of participation. As to best interest, mother alleged that she had visited the child consistently, and she loved the child and had a strong bond with her. Mother also attached a report by Dr. Edward Ryan, who had psychologically evaluated her. He recommended that the court order reunification services.
On September 23, 2016, the court held a combined hearing pursuant to sections 366.26 and 388. It acknowledged the classes mother had participated in, but noted that she had not done anything to address her deception, her efforts to undermine the police's investigation, and her efforts to undermine the doctor's ability to identify the cause of the child's injuries. The court remarked that the doctors never did determine how the injuries occurred or who the perpetrator was. Thus, the court found that there had not been a prima facie showing of changed circumstances and denied the section 388 petition. It continued the section 366.26 hearing to January 24, 2017.
Mother filed a second section 388 petition on January 24, 2017, again asking for reunification services. As to changed circumstances, she alleged that she had taken responsibility and was remorseful for lying to the police and hospital staff. She also alleged that she completed domestic violence and parenting classes and had learned from them. She participated in therapy, where she had repeatedly expressed her regrets. As to best interest, mother alleged that she had consistently visited the child and loved her, and she had learned from her past failures. She attached a personal letter, a list a personal goals, a personal log of her visits with the child, and another copy of Dr. Ryan's evaluation.
The social worker filed an addendum report on February 14, 2017, and reported that the child was thriving in the prospective adoptive home. She appeared happy, safe, and comfortable in the home. She called the caregiver "mami" and was comforted by her and her husband. The caregivers had fallen in love with the child and wanted her to be a part of their family. They were committed to adopting the child and providing her with a safe, loving, and stable living environment.
The social worker further reported that the child had consistent and high-quality visits with mother. The caregiver supervised visits and observed that mother played an active role in caring for the child by feeding her, bathing her, and supplying some necessities. The child recognized mother and disliked it when she would leave the visits.
The social worker also reported that, during the times she met with mother, mother indicated that she ended her relationship with father when he was incarcerated. However, on February 8, 2017, mother confirmed that she accepted collect calls from him from mid-December to early January 2017, and she spoke with him almost every other day on the phone. She said he asked about how the child was doing, and she would tell him she was doing well. This contact made the social worker concerned about whether mother would be protective of the child, since it was uncertain if she truly saw father as a perpetrator. The social worker was uncertain if mother would ensure that father had no contact with her or the child, if the child was placed in her care.
The court held another combined hearing pursuant to sections 388 and 366.26 on February 23, 2017. Mother testified on her own behalf. She explained that she accepted phone calls from father in order for her to express to him how she felt, since she was not currently in therapy. When asked about the incident that led to the removal of the child, mother testified that father threw his cell phone and hit the child in the back of the head. She said that on the way to the hospital, father suggested they say the child fell off the bed. So, she told the nurse at the hospital that the child fell off the bed and repeated that story to the doctor and the police. She did not tell the police that the child was hit in the head with a cell phone until the day she was arrested, almost two weeks after the incident. She only told the police what actually happened after father said he was going to tell them what happened. When asked if she knew what caused the older fractures, mother said no. She recounted that she told the police there were times when she was dancing with the child, and the child might have hit her head, and when a rattle fell on top of the child's head. When asked if she felt that the child needed to be protected from father, she said, "He's gone. He's in prison . . . I don't need to have contact with him." She said that if there ever was contact, father could have supervised visits.
Mother testified that she learned she should have initially told the truth about what happened to the child, and if she had done so, the child would not have been removed from her. She said that by not telling what happened, it prevented the child from getting the proper treatment.
On cross-examination, mother testified that only she and father took care of the child. When confronted with the assessment that either she or father had to have caused the older fractures, mother said she was in labor for 20 hours and the fractures could have been caused by the birthing process. When asked if she believed father could have caused those fractures, mother initially said she would not know how to answer that question. When asked again, she said, "yeah."
Mother further testified that she had completed a domestic violence program by the time she started having telephone conversations with father. She testified that she learned from her program that she was not supposed to have contact with the perpetrator. Mother did not tell her father, the social worker, or her therapist that she was receiving calls from father. When asked if she had any feelings for father currently, she said she felt "the feeling that he's the father of my kids." She affirmed that, even if he purposely hurt one of her children, he was still the father of her kids. When asked if she believed he purposely hurt the child, she said, "I don't know if he did or not or [if] it was intentional or not." When asked again, she changed her answer to, "yeah." When asked why she would then continue to have contact with him, she said there was no other way for her to express how she felt (e.g., her emotions about not having her children).
After hearing testimony and argument from counsel, the court noted that mother had contact with father and did not tell anyone about it. The court stated that mother lied to the social worker about her contact with him, and it was only after DPSS advised her they could contact the prison to verify contact that she admitted the phone calls. The court stated that this situation demonstrated that mother's secretive and deceptive behavior had not changed, and she was clearly still willing to lie to conceal her behavior. The court also noted its concern about mother's ability to protect the child, in light of her continued contact with father. The court concluded that mother had not shown changed circumstances, since she was still engaging in deceptive behavior and had not demonstrated her ability to be protective or any insight into the dangers of domestic violence. The court stated that, since mother failed to meet her burden of showing changed circumstances, it did not need to determine whether the requested change would be in the child's best interests. The court then denied the section 388 petition.
As to the termination of parental rights, mother argued that the beneficial parental relationship exception should apply. The court found that mother had had regular visitation; however, for the same reasons it denied the section 388 petition, it concluded that the beneficial parental relationship exception did not apply. The court found that adoption was in the child's best interest, terminated parental rights, and set adoption as the permanent plan.
ANALYSIS
I. The Court Properly Denied Mother's Section 388 Petition
Mother argues that the court abused its discretion in denying her (second) section 388 petition, since she showed that her circumstances had changed and that it was in the child's best interests for her to be provided with reunification services. We see no abuse of discretion.
A. Relevant Law
"When a child is removed from parental custody, the juvenile court may order reunification services to assist the parents in reuniting with the child. [Citation.] However, if any of the circumstances set forth in section 361.5, subdivision (b) are established by clear and convincing evidence, 'the general rule favoring reunification is replaced by a legislative assumption that offering [reunification] services would be an unwise use of governmental resources' and the court may bypass services. [Citations.] Nonetheless, services may still be provided if section 361.5, subdivision (c) is shown to apply." (In re L.S. (2014) 230 Cal.App.4th 1183, 1193.) Section 361.5, subdivision (c)(2), provides that the court is prohibited from granting reunification services "unless [it] finds, by clear and convincing evidence, that reunification is in the best interest of the child." "In making this 'best interests' determination, the juvenile court 'shall consider any information it deems relevant, including . . . [¶] (1) [t]he specific act or omission comprising the severe sexual abuse or the severe physical harm inflicted on the child or the child's sibling or half sibling [¶] (2) [t]he circumstances under which the abuse or harm was inflicted on the child or the child's sibling or half sibling; [¶] (3) [t]he severity of the emotional trauma suffered by the child or the child's sibling or half sibling; [¶] (4) [a]ny history of abuse of other children by the offending parent or guardian; [¶] (5) [t]he likelihood that the child may be safely returned to the care of the offending parent or guardian within 12 months with no continuing supervision [and] [¶] (6) [w]hether or not the child desires to be reunified with the offending parent or guardian.' " (In re A.M. (2013) 217 Cal.App.4th 1067, 1075 (A.M.).)
In order to grant services, the court is also required to "find[] that, based on competent testimony, those services are likely to prevent reabuse or continued neglect of the child or that failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent." (§ 361.5, subd. (c)(3); see A.M., supra, 217 Cal.App.4th at pp. 1074-1075.)
Section 388 allows a parent to petition the court to change, modify, or set aside any previous order. (§ 388, subd. (a).) "The petitioner has the burden of showing by a preponderance of the evidence (1) that there is new evidence or a change of circumstances and (2) that the proposed modification would be in the best interests of the child." (In re Mickel O. (2011) 197 Cal.App.4th 586, 615.) However, when the legislative presumption against services 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." (In re G.B. (2014) 227 Cal.App.4th 1147, 1157-1158 (G.B); see § 388, subd. (a)(2).)
Seeking reunification services by moving under section 388 for modification of the juvenile court's prior order does not excuse the court from following the requirements of section 361.5, subdivision (c), in granting services to parents found subject to section 361.5, subdivision (b)(5) and (b)(6). (A.M., supra, 217 Cal.App.4th at p. 1075.)
A section 388 petition is addressed to the sound discretion of the juvenile court, and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
B. There Was No Abuse of Discretion
Mother argues that the court erred in denying her section 388 petition, since her circumstances had changed. She asserts that she had taken responsibility for her actions and was remorseful, she completed group sessions pertaining to parental rights and responsibilities, and domestic violence; she was also attending classes for a medical assistant certificate program, therapy sessions, and anger management; additionally, she terminated her relationship with father. However, at the time of its ruling, the court acknowledged the programs mother had completed, but noted that mother's contact with father showed her conduct of engaging in secretive and deceptive behavior had not changed. The evidence showed that mother initially lied about how the child was injured and told the hospital staff and police that the child rolled off the bed. Mother testified that she only told the "true" story to the police when father said he was going to tell the police that he threw a cell phone, which hit the child's head. She testified that only she and father took care of the child, but she did not know how the other fractures occurred. When confronted with the fact that either she or father had to have caused the older fractures, she suggested that the fractures could have been caused when the child was born, since she had a hard labor. When asked if she believed father could have caused those fractures, mother said she would not know how to answer that question. She was clearly trying to hide the truth, as she offered no plausible explanations or definitive answers.
We note that the doctors apparently never determined how the injuries occurred or who the perpetrator was.
Furthermore, as the court observed, mother was deceptive about her relationship with father. She told the social worker that she ended her relationship with father when he was incarcerated. However, she was talking with him consistently, and did not tell anyone. Mother later admitted to having phone contact with him while he was in prison. The contact with father caused the social worker to be concerned about whether mother would be protective of the child, since it was uncertain she truly saw him as a perpetrator. The court remarked that it also was deeply concerned about mother's ability to protect the child, since she was "willing to lie to conceal her behavior." We conclude the evidence supported the court's determination that mother was still engaging in secretive and deceptive behavior, and, as such, her circumstances had not changed. Moreover, because the court properly found that mother's circumstances had not changed, it did not need to reach the question of best interest of the child.
Furthermore, there was no evidence presented that services were likely to prevent reabuse. (G.B., supra, 227 Cal.App.4th at p. 1158; § 361.5, subd. (c)(3).) Rather, the record shows that mother essentially refused to acknowledge any abuse. Despite the evidence that the child had been abused on more than one occasion and that either she or father had inflicted the injuries, mother was unwilling to admit any abuse or explain the source of the child's injuries. "Since [m]other knows which of the two of them must have inflicted the injuries, her refusal amounts to a willful denial of the injuries themselves. In those circumstances, there is no reason to believe further services will prevent her from inflicting or ignoring the infliction of similar injuries in the future." (A.M., supra, 217 Cal.App.4th at pp. 1077-1078.) We also note that, although there was evidence that the child was closely attached to mother, there was no evidence presented that failure to try reunification would be detrimental to the child. (§ 361.5, subd. (c)(3).)
Mother argues that it was in the child's best interest for her to be provided with reunification services because she and the child loved each other, she had a parental relationship with the child, she provided necessities for her, and she felt it was a privilege to parent the child. While the record does demonstrate that mother had consistent and bonding visits, her relationship with the child was only one factor. Moreover, since mother refused to acknowledge any abuse, and further services were not likely to prevent her from inflicting or ignoring the infliction of injuries to the child in the future, there was no basis for finding by clear and convincing evidence that reunification would be in the child's best interest. (See A.M., supra, 217 Cal.App.4th at p. 1078.)
Mother claims the court erred in failing to grant the section 388 petition, pursuant to the factors delineated by the court in In re Kimberly F. (1997) 56 Cal.App.4th 519 (Kimberly F.) However, Kimberly F. is inapposite, since it involved a mother who lost custody of her children when social workers found her home to be dirty and unsanitary, and the court initially granted reunification services, but then terminated them. (Id. at pp. 521-524.) It did not involve a case where reunification services were bypassed under section 361.5, subdivision (b)(5) and (b)(6). (§ 388, subd. (a)(2).) --------
In light of the heightened evidentiary burden for a section 388 petition requesting services after they were bypassed under section 361.5, we conclude that the court properly denied mother's petition. (See G.B., supra, 227 Cal.App.4th at pp. 1157-1158.)
II. The Beneficial Parental Relationship Exception Did Not Apply
Mother contends that the court erred in not applying the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i). As she points out, the court found that she had regular visitation with the child. Mother then argues that "for the same reasons why granting her reunification services was in [the child's] best interests, it [was] evident [the child would] suffer detriment through the termination of parental rights." We disagree.
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Celine R. (2003) 31 Cal.4th 45, 53.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds a compelling reason for determining that termination of parental rights would be detrimental to the child under one of the exceptions set forth in section 366.26, subdivision (c)(1)(B). One such exception is the beneficial parental relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i). (See In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) This exception applies when the parents "have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) The phrase " 'benefit from continuing the . . . relationship' " refers to a parent/child relationship that "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. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child 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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H).) It is the parent's burden to show that the beneficial parental relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)
"There is some dispute about the precise standard of review that applies to an appellate challenge to a juvenile court ruling rejecting a claim that one of the adoption exceptions applies." (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.) However, "[s]ince the proponent of the exception bears the burden of producing evidence of the existence of a beneficial parental or sibling relationship, which is a factual issue, the substantial evidence standard of review is the appropriate one to apply to this component of the juvenile court's determination." (Id. at p. 1314.) "On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order." (Autumn H., supra, 27 Cal.App.4th at p. 576.)
In support of her position, mother specifically asserts that her relationship with the child was "significant, emotional, supportive, and loving," and she believes "her continued role as a parent in [the child's] life cannot be substituted by any other adult." The evidence she points to includes the social worker's reports that she had "consistent and high-quality visits" with the child, and the child got fussy and upset when she had to leave. She also provided necessities for the child, gave her baths, put her down for naps, changed her diapers, and helped her take her first steps.
Mother's interactions with the child do not even begin to demonstrate that her relationship with her promoted her well-being "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.) Although the record reflects that the visits went well, mother has not proffered any evidence to support a finding that the child had a "substantial, positive emotional attachment [with her] such that the child would be greatly harmed" if the relationship was severed. (Ibid.)
Moreover, the evidence showed that the child and her current caretakers had a strong mutual attachment. By the time of the section 366.26 hearing, the child had lived with them for six months. The family had fallen in love with the child and wanted her to be a part of their family. They were more than capable of meeting her needs, and they had been providing her with excellent care. They wanted to provide her with a safe and stable home, and they were fully committed to adopting her.
We conclude that mother failed to meet her burden of showing that the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i), applied.
DISPOSITION
The court's order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MILLER
J.