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In re A.B.

Court of Appeal of California
Apr 22, 2009
No. B211762 (Cal. Ct. App. Apr. 22, 2009)

Opinion

B211762.

4-22-2009

In re A.B., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. N.B., Defendant and Appellant.

Not to be Published in the Official Reports


THE COURT:

Appellant N.B. (mother), the mother of A.B. (minor) (born Aug. 2007), appeals from the order denying her petition, under Welfare and Institutions Code section 388, seeking to change the juvenile courts prior order denying her reunification services. Mother also appeals from the order terminating her parental rights.

All further statutory references are to the Welfare and Institutions Code.

BACKGROUND

In March 2008, the Department of Children and Family Services (the Department) detained six-month-old minor after he was found to have sustained 17 fractures, in various stages of healing, to his arms, legs, and ribs, and multiple bruises on his forehead, cheek, and chin. Mother said the bruises were caused by the child hitting his own face with toys, but had no explanation for the multiple fractures. Minors attending physician concluded that the fractures were caused by physical abuse and could not be accidental.

The Department had received a previous referral in January 2008, when minor had suffered a fractured femur, but the injury was determined to be accidental and the case was closed. At the Departments recommendation, mother voluntarily attended parenting classes.

On March 7, 2008, the Department filed a petition under section 300, subdivisions (a), (b), (e), (g), and (i) alleging that mother had inflicted severe physical abuse, cruelty, and nonaccidental serious physical harm on a child under the age of five. A skeletal survey performed in May 2008 confirmed that minors injuries were the result of nonaccidental/inflicted trauma. At the July 7, 2008 jurisdictional hearing, the juvenile court sustained the section 300 petition. The court ordered no family reunification services for mother, pursuant to section 361.5, subdivisions (b)(5) and (b)(6), but allowed monitored visits. The court also ordered individual counseling for mother, including counseling with a licensed clinical therapist to address issues concerning severe physical abuse of an infant. The court further ordered the Department to provide permanent placement services for minor and to prepare an adoptive home study.

Section 361.5, subdivision (b)(5), allows reunification services to be withheld from a parent when the juvenile court finds, by clear and convincing evidence, that a child under the age of five has suffered severe physical abuse as the result of the parents conduct. (§ 300, subd. (e).) Section 361.5, subdivision (c)(6) allows reunification services to be denied to an offending parent when the child is adjudicated a dependent of the court as the result of the infliction of severe physical harm.

By the time of the October 29, 2008 section 366.26 hearing, minor was placed with prospective adoptive parents who were willing to adopt him. Mother had maintained some contact with minor, but had not visited since May 2008.

On October 29, 2008, mother filed a petition under section 388 seeking to change the order denying her reunification services. In support of her petition, mother submitted a letter from her therapist stating that mother had enrolled in counseling on August 7, 2008, and had attended nine sessions focusing on stress management, anger management, and the importance of self-nurturing. The juvenile court denied the section 388 petition on the ground that it presented no new evidence or change of circumstances. The court noted that mother had entered the counseling program only three months before the hearing and was at the "beginning stages" of addressing the issues that brought minor under the juvenile courts jurisdiction.

At the October 29, 2008 section 366.26 hearing, the juvenile court found, by clear and convincing evidence, that minor was likely to be adopted and that it would be detrimental to minor to return him to mothers custody. The court then terminated mothers parental rights. This appeal followed.

MOTHERS CONTENTIONS

We appointed counsel to represent mother in this appeal. After examination of the record, counsel filed a letter pursuant to In re Sade C. (1996) 13 Cal.4th 952, 959, indicating an inability to find any arguable issues. On January 7, 2009, we advised mother that she had 30 days in which to submit any contentions or arguments she wished us to consider. On January 26, 2009, mother filed a letter in which she raised the following contentions in support of her position that the juvenile courts orders should be reversed: (1) she was denied a fair trial because she had no idea what was going on in her defense and none of her court appointed attorneys ever explained anything to her; (2) she completed the parenting classes and counseling requested by the court but was nevertheless denied reunification services or custody; (3) she took all necessary actions to ensure that minor was healthy, and if the doctor who initially examined minor could not detect minors multiple bone fractures, she could not be expected to know about the injuries; and (4) minors current placement is unsafe for him. We have reviewed the record and conclude these contentions do not raise any arguable issues.

DISCUSSION

I. Section 388 Petition

Section 388 provides in relevant part: "Any parent . . . [of] a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . to change, modify, or set aside any order of court previously made." To obtain the requested modification, the parent must demonstrate both a change of circumstance or new evidence, and that the proposed change is in the best interests of the child. (§ 388; Cal. Rules of Court, rule 5.570; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The parent bears the burden of proving the requested modification should be granted. (Cal. Rules of Court, rule 5.570; In re Stephanie M. (1994) 7 Cal.4th 295, 317.) A juvenile courts determination on a petition brought under section 388 will not be disturbed on appeal absent a clear abuse of discretion. (Stephanie M., at p. 318.)

The record discloses no abuse of discretion. Mother was denied reunification services because of the severe physical abuse minor suffered while under her care. The juvenile court concluded that mothers petition presented no change of circumstance or new evidence sufficient to set aside the previous order denying her reunification services. That conclusion was not arbitrary or capricious, nor did it exceed the bounds of reason or the limits of the juvenile courts legal discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 318.)

II. Termination of Parental Rights

The order terminating parental rights is presumed to be correct. (In re Sade C., supra, 13 Cal.4th at p. 994.) Reversal is required only if the parent raises claims of reversible error, which are supported by argument and authority on each point. (Ibid.) "Under section 366.26, once the court determines a child is adoptable, it must terminate parental rights unless it finds one of the section 366.26, subdivision (c)(1) exceptions applies. [Citation.] The only exceptions to terminating parental rights are those prescribed by section 366.26, subdivision (c)(1)." (In re Carl R. (2005) 128 Cal.App.4th 1051, 1070.)

Mother does not dispute the findings that minor was adoptable and that the childs caretakers were willing and able to adopt him. Her arguments to reverse the order terminating parental rights are either unsubstantiated or provide no legal basis for reversal. There is nothing in the record that indicates mother was denied a fair trial or that her attorneys failed to communicate with her. The juvenile court did not find mothers purported lack of knowledge concerning minors injuries to be credible, and an appellate court must defer to the juvenile courts determination on issues of credibility. (In re Albert T. (2006) 144 Cal.App.4th 207, 216.) There is no evidence that minors placement with his prospective adoptive parents is unsafe for him.

DISPOSITION

Mother has established no error in the proceedings below, nor any legal basis for reversal. Our own independent review of the record discloses no reversible error. We therefore dismiss the appeal. (In re Sade C., supra, 13 Cal.4th 952.)

DOI TODD, Acting P. J.

ASHMANN-GERST, J.

CHAVEZ, J.


Summaries of

In re A.B.

Court of Appeal of California
Apr 22, 2009
No. B211762 (Cal. Ct. App. Apr. 22, 2009)
Case details for

In re A.B.

Case Details

Full title:In re A.B., a Person Coming Under the Juvenile Court Law. LOS ANGELES…

Court:Court of Appeal of California

Date published: Apr 22, 2009

Citations

No. B211762 (Cal. Ct. App. Apr. 22, 2009)