Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeals from an order and judgment of the Superior Court of Orange County, Super. Ct. No. DP012674 James Patrick Marion, Judge.
Lori A. Fields and John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L.Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
SILLS, P. J.
On July 17, 2008, the juvenile court terminated N.I.’s parental rights to her son, A.I. In these consolidated appeals, N.I. appeals from the summary denials on May 6, June 25, and July 14 of her three separate petitions under Welfare and Institutions Code section 388, claiming each petition made a prima facie case of changed circumstances and best interests of the child and should have received a full hearing. The mother also appeals from the termination of her parental rights, claiming the juvenile court should have applied the benefit exception based on her relationship with A.I. We affirm.
FACTS
In December 2005, three-year-old A.I. was detained by the Orange County Social Services Agency (SSA). Neighbors reported hearing the child scream for help, and police discovered him alone in his crib in the home he shared with his mother, N.I. The home was filthy: “flies and maggots on windows, ceilings and walls; black sludge rings . . . inside every sink and toilet; trash throughout the house . . . with flies crawling on it . . . . The kitchen counter [had] unidentifiable black stains, hairs, dust, dirt, and soap scum . . . . [P]olice officers noted a foul odor emitting from the entire home; . . . and a trashcan was overflowing with dirty diapers.” A.I. was also filthy, and a plastic bag large enough to fit over his head was in the crib with him. The mother did not return to the home for over six hours after the police arrived.
A dependency petition was sustained on A.I.’s behalf, and he was removed from the mother’s custody and placed in a foster home. The mother was offered reunification services, which required her to participate in therapy, which was to address parenting issues, and to be evaluated by a “mental health professional.” The court appointed Dr. Kenneth Fineman to perform an Evidence Code section 730 evaluation of the mother.
Dr. Fineman believed the mother had a propensity to neglect A.I. He based that belief on her “‘denial concerning her role in her present circumstances’” and her tendency “‘to blame things on the child’s father and to minimize the extent to which the home cleanliness could cause a medical or physical problem to the child.’” He opined the neglect was not caused by mental illness but by “‘certain problematic personality characteristics.’” He recommended “assertiveness training, social skills training, insight oriented therapy and ‘behavioral therapy focused on reducing anxiety, depression and general tension,’ on a weekly basis for at least the next twelve months, a psychiatric consultation and compliance with medication if recommended; a minimum of thirty hours in a parent training workshop; and increased visitation assuming ‘that the child does have an appropriate and normal attachment to his mother.’”
The six-month review hearing, which was contested, was finally held in September 2006. The mother received therapy from February to June 2006 from Diane Calahan, who held a master’s degree in social work. Calahan referred the mother to Dr. Habeeb-Elzatat, a psychiatrist, who saw her monthly. Dr. Habeeb-Elzatat reported “there is ‘not much psychopathology or depression’ that he can determine, but he did prescribe Prozac (40mg) for the mother based on her self-report of ‘compulsive behavior’ and ‘doing things over and over.’” The mother apparently wanted to change therapy from Calahan to a “Ph.D. level therapist[],” and SSA provided three referrals. The mother opted to seek therapy with a psychologist of her choice, Dr. Leslie Drozd, in June 2006. A.I. was thriving in his foster home; however, he was glad to see his mother at visits. The court heard testimony from the social worker and the mother, then found the mother had received reasonable reunification services and it would be detrimental to return A.I. to his home. More reunification services were ordered, and the 12-month review hearing was set for December 2006.
The 12-month review hearing was repeatedly continued and ultimately combined with the 18-month review hearing, held in October 2007. The SSA reports during the intervening year showed that the mother’s visits with A.I. became more problematic as time went on. The mother endured verbal and physical abuse from the child, seeming unable to set limits and provide structure for him. At the suggestion of Drozd, the mother hired a parenting coach, Valerie Christopherson, who was a retired sheriff with “many years of monitoring experience.” Christopherson coached the mother about eight times during visits in November and December 2006 and January 2007; she reported the mother “has been open to suggestions and feedback and is trying to implement them, but is ‘not quite there yet.’” Christopherson reported her “biggest safety concern is the child’s tendency to run away from the mother.”
Unsatisfied by the mother’s progress, the court decided to change the mother’s therapist in January 2007. “I just want to know that we have somebody that’s qualified in terms of their approach.” Dr. Fineman recommended Dr. Patricia Yglesias, who began seeing the mother in February. The mother continued to see Dr. Habeeb on a monthly basis. He prescribed medication “to treat symptoms of depression as well as Obsessive Compulsive Disorder (OCD).”
Also in January 2007, the court ordered in-home parenting services and monitored visits in the mother’s home. Safety issues continued to crop up during visits. In March, A.I. and the mother were playing tennis on her balcony when their ball landed on a nearby roof. The mother pulled a chair up to the balcony wall adjoining the rooftop, then left A.I. there while she went inside to change her shoes. A.I. climbed up on the chair and had to be restrained by the monitor from going onto the roof, which had a steep drop to the street below. Another time, the mother allowed A.I. to swim with a flotation device in her apartment complex pool while she visited with a friend. According to the monitor, the mother was not focusing on the child while he was in the pool by himself. During an outing to Dave and Busters, a video game arcade that also houses a sports bar and caters to adults and teenagers, the mother allowed A.I. to go to the men’s bathroom by himself, despite signs that minors should be accompanied by an adult at all times.
Although the mother was able to implement many of the suggestions made by the service providers, she was often defensive and argumentative when confronted with her problematic behavior and “minimize[d] the reasons for the child’s detention and subsequent child welfare involvement.” She completed 12 sessions of an in-home parenting course, but failed to make significant progress in basic safety issues and nutrition. Dr. Yglesias reported slow progress because the mother was resistant to input.
Anthony’s behavior regressed after visits with the mother, to the point where his therapist recommended reduced contact. But the monitors reported Anthony “appear[ed] to enjoy visitation with his mother and easily ran to her and hugged and kissed her.” None of the monitors or therapists felt the mother could handle unmonitored visits, however, “due to safety concerns and her inability to control the child.”
At the 18-month hearing, the social worker testified he did not recommend returning A.I. to the mother. “The child . . . is extremely dysfunctional. He has poor boundaries. He becomes easily agitated, very controlling, and the mother allows him to completely take charge without asserting herself as a parental authority.” The social worker stated it was obvious that the mother loves Anthony and was trying “the best she can to establish a relationship with this child, but there seems to be a complete lack of understanding of what this child’s needs are. And the mother views this child as a normal child, and he . . . needs intense therapy. His behaviors are still not normal.”
Dr. Yglesias testified the mother’s “poor judgment can affect her ability to ensure her child is safe . . . .” The mother did not see Anthony as having the problems ascribed to him. “She sees him as a very active little boy.” Dr. Yglesias continued, “[T]herapy would need to be longer and . . . it’s a slow process. She’s made progress but it’s been slower than, I think, everyone was hoping that she would demonstrate.”
Christopherson testified she monitored additional visits in March and June 2007. The mother seemed to understand she needed to “be more aggressive in her parenting style” and “be in charge of the activities and disciplining,” but she had trouble implementing the suggestions. “[I]t seemed to be a process and a struggle, something that she just needs to keep working on.”
The court found the mother had received reasonable services, and that she had complied with her case plan. But it found there was a substantial risk to A.I. if he were returned to her. “[The] facts indicate there’s a serious lack of judgment. Over the last couple of years she’s tried. She’s tried very hard, but [the fact] remains . . . that it would be – I would be derelict in my duty as a judge if I sent Anthony back to her. . . . [I]f the purpose of reunification is to overcome what led to removal in the first place, she hasn’t done it.” The court terminated reunification services and set a permanent plan selection hearing for February 2008. (Welf. & Inst. Code, § 366.26.).
All statutory references are to the Welfare and Institutions Code unless otherwise stated. The mother filed a petition under California Rules of Court, rule 8.450 challenging the order terminating reunification services and setting the hearing under section 366.26. This court denied the petition. (N.I. v. Superior Court (Feb. 11, 2008, G039453) [nonpub. opn.].)
In October 2007, the mother asked that she be allowed to videotape her monitored visits with the child because she felt SSA was preparing inaccurate and negative visitation reports. She also requested a bonding study. The court ordered a bonding study but denied her other requests. The bonding study was submitted by Dr. Jane Mak in January 2008. Mak interviewed A.I., the mother, and the foster mother. She also observed A.I. twice with the mother and twice with the foster mother. Mak spoke by telephone to the mother’s therapists, Yglesias and Drozd, and to A.I.’s therapist and behavior coach. Mak summarized: “When [A.I.] was removed from home at age three and one-half years, he was strongly attached to his mother. Over the past 20 months, he has formed a new attachment to his foster mother and his attachment to his biologic mother weakened but [is] not lost. [A.I.] feels confused. [The foster mother] is his primary psychological parent but he still harbors a connection to [the mother]. He seeks his daily physical and emotional needs from his foster mother. He is relaxed and comfortable in her presence. He seeks her closeness and feels safe and secure in her love and care. They share a strong and healthy parent-child relationship. [¶] With [the mother] [A.I.] feels the shadow of a shared past compounded with her desire for a shared future. He passively accepts her hugs and kisses but does not spontaneously reciprocate. He enjoys their time together and looks forward to the foods and gifts she brings, at times expecting more. . . . [¶] [A] prolonged state of uncertainty is likely to be damaging to [A.I.]’s psychological integrity. . . . Until [he] is certain with whom his permanent home will be, he will be forced to live in a distressful limbo state, unwilling to fully trust and unable to totally transfer his attachment and be free to attend to the tasks of being a child.”
The mother filed a section 388 petition in February 2008, asking the court to change its order terminating reunification services and setting a permanency planning hearing. She wanted the child returned to her care or, alternatively, more reunification services and unmonitored visitation. She claimed she had made substantial progress in her counseling and psychiatric treatment, she had positive and loving visits with A.I., and it would be in his best interests to be returned to her care.
The mother attached letters from her psychotherapists, Drozd and Yglesias, to her petition. Drozd stated she had been seeing the mother in psychotherapy since October 2007. “The turn around and improvement in this patient has been remarkable. Over time she has become quite punctual and consistent in keeping her sessions. She is no longer depressed. Her thinking is clear. Her judgment has been unimpaired and in fact good, and her knowledge of children and how to nurture and protect them, have improved dramatically.” Pointing to the mother’s “significant progress,” Drozd stated, “[The mother] is ready, from what I have been able to observe and what I have been told, to move onto the next stage in transitioning to once again being a full time parent. There is nothing that I am aware of that stands in her way.” Yglesias reported that the mother had described “significant improvement in managing her son’s behavior during monitored visits. . . . Most significantly she accepted responsibility for her actions.” Yglesias opined the mother might be ready for unmonitored visits, “[a]lthough her progress has been slower than anticipated . . . .”
SSA submitted a report for the permanent plan selection hearing in February 2008. The social worker reported the visits between the mother and A.I. needed to be monitored because she was unable to control the child’s emotional or physical outbursts. There was constant tension between the two. A.I. attended weekly sessions with a behavior coach and a therapist, which were helping him address his defiance and angry outbursts. He had positive qualities, however, that made him generally adoptable. Furthermore, his foster parents wanted to adopt him. A.I. told the social worker he did not ever want to leave his foster family.
The permanent plan selection hearing was continued repeatedly. In April, SSA reported A.I. called his foster mother his “real mom” and the mother his “pretend mom.” Both A.I. and his mother continued with their respective therapies. In May, the foster mother reported that A.I. had improved physically and emotionally since he came to live with them over two years before.
In May 2008, the court heard argument on whether to grant a hearing on the mother’s section 388 petition. It found the petition merely demonstrated that she was working on her problems and making progress, but not that circumstances had significantly changed. It also found the proposed change of order was not in A.I.’s best interests because the mother’s problems were very serious and had not been ameliorated and because A.I. had a strong bond with his current caretakers. The court summarily denied the petition and again continued the permanent plan selection hearing. The mother appealed from the denial of the section 388 petition.
Less than a week later, the mother filed another section 388 petition, again asking the court to return A.I. to her care with family maintenance services or reinstate reunification services and increase visitation. She also wanted A.I. to be placed in a “culturally sensitive home” if he remained out of her care. The mother claimed A.I. had a “strong, loving bond” with her and the termination of the bond would be detrimental to him. She submitted, inter alia, updated information from Yglesias and Drozd and an undated letter from the Council on American-Islamic Relations. The court summarily denied the petition on June 25, ruling that the circumstances “appear[] to be changing still. There’s really not new evidence the court sees in this. . . . [Y]ou also have to show . . . the best interests of [A.I.] and at this stage where he’s with this caretaker for most of his life,” granting the petition would not be in his best interests.
The permanent plan selection hearing began on July 14. The court first considered another section 388 petition which the mother had filed on that date. The petition again sought A.I.’s immediate return with family maintenance services. The court again found no genuine change of circumstances and summarily denied the petition. “Unfortunately, it’s just taken a long, long, long time, and the law doesn’t allow that long, long, long, time. . . . I don’t think it’s the best interest of [A.I.] at this point in time to grant your request.”
The court proceeded with the permanent plan selection hearing. A new visitation monitor, Nellie Hernandez, had been assigned to A.I.’s case in late May, subsequent to the most recent SSA report. She testified the mother’s conduct with A.I. was appropriate during the approximately five visits she had monitored and she had no concerns about the child’s safety. Although Hernandez had been told “that [A.I.] at times seemed to be manipulating to the mother and the mother [is] not too assertive in her parenting skills,” she did not observe any such behavior. In fact, on one occasion when A.I. misbehaved, the mother responded appropriately by “being assertive and explaining to him that he should not be disrespectful.”
The social worker, who had been assigned this case for about one year, acknowledged that “lately, the last month, maybe month and a half, with the new monitor, mother seems to have a more positive interaction, is able to curtail some of his tantrums, is exercising more authority.” He was recommending adoption rather than legal guardianship as a permanent plan for A.I. due to “the age of the child, the fact that he’s in a home where the foster parents are willing to make a permanent commitment to the child. It’s more permanent than guardianship. And the relationship that the child has, the emotional attachment . . . with the foster parents.” The social worker had no concerns that the child would suffer “emotional detriment” if he never saw his biological mother again. He based that opinion “on the security and the emotional attachment that he has with his current foster parents. I’m basing it on the care and supervision that they’re giving him and the length of time that he’s been with them.”
The mother testified A.I. is “very much bonded” to her and would be hurt if their relationship were severed. She felt her therapy was helping her interactions with the child. During their visits, she played games with him, provided him with a balanced and varied diet, and taught him about safety issues and respect for others.
A.I. testified he has “two moms.” He said he loves his biological mother and wants to spend more time with her, but he does not want to live with her. He likes living with his foster family and wants to grow up there. He would be sad if he could not see the mother anymore.
The court found that A.I. is “very adoptable.” Even if [the foster parents] aren’t going to adopt him, he wouldn’t have any problems. I don’t think there’s any question.” The court found the benefit of a permanent home outweighed his relationship with the mother and terminated parental rights.
DISCUSSION
In the first appeal, the mother challenges the summary denial of her section 388 petition on May 6, 2008. She contends she presented a prima facie case of changed circumstances and that A.I.’s best interests would be served by returning him to her custody; thus, she should have been entitled to an evidentiary hearing. We disagree.
Section 388 allows a parent to petition the juvenile court to change or modify a previous order “upon grounds of change of circumstance or new evidence.” (§ 388, subd. (a).) The court must hold a hearing on the petition only “[i]f it appears that the best interests of the child may be promoted by the proposed change of order. . . .” (§ 388, subd. (d).) Thus, the petition must state a prima facie case of both changed circumstances and best interests of the child. “The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
Although the petition should be liberally construed in favor of granting a hearing (In re Mary G. (2007) 151 Cal.App.4th 184, 205), the juvenile court need not put blinders on when determining whether the required showing has been made. Rather, the court can consider the “entire factual and procedural history of the case” when evaluating the significance and strength of the allegations in the petition. (In re Justice P. (2004) 123 Cal.App.4th 181, 189; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.) Allegations of changing, rather than changed, circumstances are not sufficient to warrant a hearing. (See In re Casey D. (1999) 70 Cal.App.4th 38, 49.) We review the trial court’s decision to deny a hearing for an abuse of discretion. (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)
Neither Drozd nor Yglesias suggested the mother was ready to have A.I. returned to her care; they merely suggested she was ready to move on to unmonitored visits. This was merely evidence of changing circumstances, rather than changed circumstances. A.I. had been in foster care for two and one-half years. There was no more time for the mother to work on her parenting skills. The bonding study stated that the child needed closure on a permanent home. It would not be in his best interests to delay that closure.
In the second appeal, the mother challenges the summary denial of her second and third section 388 petitions. These petitions suffer from the same problems as the foregoing. While the mother documented continuing improvement, she was unable to make a prima facie case that A.I. should be returned to her. She had received more than 18 months of reunification services. At this point in the proceeding, if A.I. could not be returned to her care, circumstances had not changed so as to justify the change of order she requested.
The mother also argues the court erred in failing to apply the beneficial relationship exception so as to obviate the termination of parental rights. We disagree.
At the permanent plan selection hearing, the juvenile court will ordinarily terminate parental rights if it finds by clear and convincing evidence that the child is adoptable. The termination of parental rights to an adoptable child can be avoided, however, if the court finds “a compelling reason for determining that termination would be detrimental to the child” due to at least one of several statutorily-described circumstances. (§ 366.26, subds. (c)(1)(B)(i)-(iv).) The so-called beneficial relationship exception describes circumstances where “[t]he 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 evidence demonstrated that A.I. was thriving in his foster home and enjoyed a positive parental relationship with that family. He testified he wanted to live there and that he considered them his forever family. He seemed to understand that while he loves his mother, he should not live with her. In order to prove that the benefit exception applies, a parent must overcome the strong statutory presumption in favor of adoption and show the relationship between her and the child is so beneficial that it renders the termination of parental rights detrimental to the child. (In re Helen W. (2007) 150 Cal.App.4th 71, 80-81.) It is not the role of this court to reweigh the evidence or substitute our judgment for that of the juvenile court. “Under the substantial evidence rule, we must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact. [Citation.]” (In re Casey D., supra, 70 Cal.App.4th at p. 53.) The juvenile court was entitled to infer that A.I. would benefit more from the permanence and stability of adoption than the continuance of his relationship with the mother.
DISPOSITION
The order and judgment are affirmed.
WE CONCUR: RYLAARSDAM, J., ARONSON, J.