Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County No. 07CEJ300202-1, Jane A. Cardoza, Judge.
Karen Jean Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin Briggs, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J., and Gomes, J.
M.B. (mother) appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her three children. She contends the court erred by denying her request (§ 388) to reinstate reunification services and increase her visits as well as rejecting her claim that her relationship with the children outweighed the benefits of adoption. On review, we disagree and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In late December 2006, authorities in Madera County took mother’s two daughters, then six and four years old, and 14-month-old son into protective custody after her husband who was the father of her two youngest children, engaged in a physical altercation with his sister in the presence of the children. Through its investigation, a Madera County agency discovered the family had a history of instability and mother was being treated for bipolar disorder. Consequently, juvenile dependency proceedings were initiated (§ 300, subd. (b)) in the Madera County Superior Court (Madera court).
First Sexual Abuse Referral
Not long after the children’s detention, their foster parent reported the four-year-old masturbated while on the toilet and disclosed that her father “touched” her. As a result, the social worker generated a suspected child abuse report and arranged for the child to undergo a sexual assault examination, which yielded no evidence of sexual trauma. However, while supervising visitation between the parents and the children, the social worker had to tell the father to stop giving the four-year-old “wedgies” (pulling her underwear in an upward direction from behind). The social worker also saw the father kiss his four-year-old on the lips for what the social worker perceived as a prolonged period of time.
Dispositional Hearing
At a February 2007 dispositional hearing, the Madera court adjudged the children dependents and removed them from parental custody. The Madera court also ordered reunification services for the parents. Mother’s plan only required her to complete a parenting course. The Madera court also ordered the two girls assessed for counseling and set a six-month review hearing for August 2007.
Second Sexual Abuse Referral
Within days of the dispositional hearing, there was a referral alleging the father sexually abused his stepdaughter and daughter. Their foster mother told an investigating social worker the four-year-old said her father touched her vagina and the six-year-old said he hurt her a lot “down there,” pointing to her crotch.
The four-year-old told the social worker her father would insert two fingers in her vagina, which she simulated by extending her right index and middle fingers, thrusting them upward as if into something and wiggling them. This occurred while she was on the toilet. The four-year-old also told the social worker that, while her father had his fingers in her vagina, he had his hand in his pants “on his peanuts.”
In a later interview with a police officer, the four-year-old said her father touched her private parts five times. During the touching, he told her she was a bad girl. The four-year-old also reported the abuse to mother who agreed it was bad. The six-year-old refused to be interviewed by the police officer.
The Madera County Department of Public Welfare substantiated the sexual abuse allegations but did not file a subsequent petition (§ 342).
The children meanwhile had been placed with a maternal aunt. The girls were seeing a therapist and a social worker supervised the parents’ weekly visits with the children. The father’s inappropriate behavior continued during the supervised visits. During one visit, the father picked up the four-year-old by his forearm between her legs, and gave her a hard-pressed kiss on the mouth. The four-year-old later told her aunt that the father tried to lick her. In a mid-June 2007 disclosure to her therapist, the four-year-old stated she was afraid her father would hurt her private parts. In late July, the aunt reported finding the four-year-old masturbating in the bathroom with two fingers inserted in her vagina. When the aunt talked to the child about her behavior, the child stated she missed her daddy.
Six-Month Review Hearing
At the August 2007 six-month review hearing, the juvenile court found the department provided reasonable services, ordered continued services for both parents, and ordered the case transferred to Fresno County because it appeared the parents were living there. The court also amended mother’s and father’s case plans to include non-offender sexual abuse counseling and offender’s sexual abuse counseling respectively.
Transfer in Proceedings
In January 2008, the Fresno County Juvenile Court (Fresno court) accepted the case and ordered the Fresno County Department of Children and Family Services (department) to offer mother and father parenting classes, domestic violence, mental health and substance abuse assessments and any recommended treatment and random drug testing. The Fresno court set a review hearing which was continued and conducted in April 2008.
Although the January 2008 minute order makes no mention of the parents’ sexual abuse treatment, it is undisputed that such treatment remained part of each parent’s case plan.
Mother’s mental health evaluation revealed her poor insight, judgment, and ability to empathize with her children as well as her seeming unwillingness to consider new information. Mother made it clear to the evaluator she did not want or see a need to change and blamed her circumstances on her birth family and associates. She had previously reported that she was physically and sexually abused as a child. The evaluator opined mother would need 5 to 10 years of intensive therapy to make significant changes and suggested the department refer her for a psychological evaluation. Meanwhile, the evaluator recommended the department closely monitor mother during visitation.
12-Month Status Review
In April 2008, the department filed a 12-month status review, in which it reported mother completed a parenting course, was participating in therapy, and was on medication. She also began non-offender sexual abuse counseling in February 2008 but denied that her husband touched the girls even though the four-year-old reported it to her. Mother stated she was only participating in counseling because she was court ordered to attend.
The department also reported concerns about visitation. The six-year-old child told her care provider she did not want to attend visits. She frequently sat alone while the other children visited their parents. The department recommended the court terminate reunification services and set a permanency planning hearing. The department also initiated a referral for therapeutic visitation.
By the time the Fresno court conducted its status review, there had been many off-the-record discussions and the department agreed to continue services until the court conducted an 18-month review. The department acknowledged that, after the six-month review in Madera County and during the inter-county transition, referrals for service were untimely and thus conceded there had been unreasonable services. The Fresno court ordered the department to continue providing reunification services until an 18-month review hearing, which the court set for June 2008.
18-Month Status Review
A problem with the children’s placement arose in the interim and led to their placement in another home. This also led to a continuance of the permanency review hearing to September 2008. In its reports for the hearing, the department opined mother had not sufficiently addressed her mental health issues. Also, the therapist supervising visits believed the children would be at risk if left unsupervised with the parents. In addition, both girls stated they did not want to return to their parents.
Following a September 2008 contested hearing, the Fresno court found mother as well as father received reasonable services but only made moderate progress. The court further found it would be detrimental to return the children to their custody. As a result, the Fresno court terminated reunification services and set a section 366.26 hearing.
Mother sought this court’s review by petitioning for extraordinary writ (Cal. Rules of Court, rules 8.450-8.452). She challenged the Fresno court’s reasonable services finding and argued she made substantive progress in her reunification plan. In our written opinion, we disagreed and denied her petition for extraordinary writ. (M.B. v. Superior Court, (Dec. 17, 2008, F056168) [nonpub. opn.].)
Mother’s Section 388 Request
Around the same time, mother filed a request (§ 388) that the Fresno court reinstate reunification services for her and increase her visitation. She alleged circumstances had changed since the court terminated services because she had continued to participate in mental health therapy and allegedly made positive progress. A therapist’s letter that mother attached in support of her request spoke only to mother’s decision to continue therapy. It did not address what, if any, progress mother was making.
Mother also alleged her visits were going very well, as evidenced by photos of the family that were taken at an October visit, and the children expressed their love, affection and attachment to her and the father through recent drawings the children made and a note her middle child purportedly wrote.
In mother’s view, reinstating reunification services for her and increasing her visitation would be in the children’s best interest. She saw herself as the children’s “constant” and “stability.”
Section 366.26 Report
The department prepared a “366.26 WIC Report” in January 2009 in which it recommended the court find the children were likely to be adopted and order termination of parental rights. Because the children’s adoptability is undisputed, we need not summarize that evidence here.
The reporting social worker addressed in relevant part to this appeal the recent visits the children shared with the parents. The parents had been told that unless they made changes in their approach to the children all visits would cease. The parents then appeared to make a more concerted effort to provide structure and reasonable discipline during the visits as well as show affection to the children. Both parents struggled with setting and following rules.
There were several examples of the children avoiding father and verbally responding negatively towards him that indicated the children were not comfortable with father. The children seemed to be more comfortable with mother. Their foster parents also reported the children had definite behavioral problems immediately before and after visits with the parents.
During visits, the father was somewhat overbearing and very physical in his play while mother tended to be very passive. There were also instances when the father’s roughhousing play, during visits, led to the children being hurt.
In particular, during an early January visit the father was roughhousing with the younger of the two girls and she was hurt as a result. He responded not by apologizing but by attempting to coerce her into keeping quiet by whispering she would get him into trouble. Mother reacted by commenting it was the child’s fault that she was hurt. The department recommended all visits cease immediately based on the observed attempt by father to coerce his daughter and mother’s failure to protect the child.
January 2009 Interim Order Suspending Visitation
On the originally calendared section 366.26 hearing date, the court continued the case for a contested trial in February 2009 at the parents’ request. In the interim, the court issued an order granting the department’s request to suspend visitation. The court thereafter continued the hearing into April 2009. The department sought a new adoptive home for the children after their foster parents changed their mind about wanting to adopt.
April Trial
By the April hearing, the children had been placed together with a new pre-approved risk-adopt family. At the April trial, the court heard testimony from each of the girls, the parents, and the social worker.
Mother’s younger daughter reported the best part about visits with her parents was “we got to play.” The subject of her birthday came up and the child identified adults and peers whom she planned on inviting. She did not mention either of her birth parents. When asked of all the places she had lived, what place would she want to live in, the child did not identify a home with either of her birth parents. She did not remember much about ever living with her birth mother, but it would make the child happy to spend the day with her. She liked and loved mother.
Mother’s older daughter testified if she had a choice, she wanted to live where she and her siblings were “living right now.” This was with her current caregivers because they were nicer than her parents. She did not want to visit her parents.
Mother testified the children would get “riled up” and “try... to rough house” during visits. She attributed the children’s behavior to the visitation house and the other families there. She claimed she gave the children time-outs.
According to mother, the children told her “[a]ll the time” that they loved her or missed her. At every visit, the children were excited to see her and father. She also claimed that although her visits had been supervised, the supervisors were not observing the visits most of the time.
The social worker testified about the children’s adoptability and her resulting recommendation to terminate parental rights. In the process, she observed three separate visits between the parents and the children for a total of five hours. Mother appeared affectionate. She would hug the children and they would hug her in return. There were several times, however, that the children had to be prompted to give hugs. In addition, mother was very passive during the visits. She primarily sat on the couch and she would read a story to the children.
The social worker also testified that since visitation had been suspended, the children had not asked to visit the parents. The children had a minimal response to learning the visits were suspended. They went to bed easier and were neither distressed nor otherwise adversely impacted by the recent lack of visits.
Following closing arguments, the Fresno court denied mother’s section 388 request. It noted there was no change in circumstances and the evidence was overwhelming that it would not be in the children’s best interests to grant the request. Having found the children adoptable, the Fresno court also terminated parental rights. The court specifically commented there was a lack of evidence to support the parents’ arguments in favor of finding an exception to adoption.
DISCUSSION
I. Mother’s Section 388 Request
Mother contends the Fresno court abused its discretion by denying her request to reinstate reunification services for her and increase her visitation. We disagree. The Fresno court did not abuse its discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
When the court terminated services in September 2008, it found mother had made only moderate progress in her case plan and return of the children to her care would create a substantial risk of detriment. According to the evidence at the time, mother had not sufficiently addressed her mental health issues and the therapist supervising visits believed the children would be at risk if left unsupervised with her or father.
Therefore, in seeking to reinstate services and increase visitation, it was incumbent on mother to show a change of circumstances or new evidence and that the proposed change would promote the best interests of the children. (See § 388.) In both her section 388 request and her trial testimony, however, mother failed to show that circumstances had since changed. Although she alleged she was making positive progress in therapy, she failed to introduce any evidence to support her claim. At most, she offered a therapist’s letter. However, it spoke, albeit in positive terms, only to mother’s decision to continue therapy after services were terminated. It did not address what, if any, progress mother was making.
Given mother’s failure to satisfy her burden of establishing changed circumstances, not to mention the children’s best interests (In re Audrey D. (1979) 100 Cal.App.3d 34, 43), the Fresno court properly could deny her request on this ground alone.
II. Beneficial Relationship Exception
Mother also contends there was no substantial evidence to support the Fresno court’s rejection of her argument that she had a beneficial relationship so as to warrant a finding that termination would be detrimental to the children. We disagree. Mother applies an incorrect standard of review and overlooks her failure to produce evidence warranting a detriment finding.
Once reunification services are ordered terminated, the focus shifts to the needs of the children for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as in this case, the children are likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
Section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, including if the parent has maintained regular visitation and contact with the child and the child would benefit from a continuing relationship (§ 366.26, subd, (c)(1)(B)(i)). However, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) It is rather the parent’s burden to show that termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence, as mother argues here. Rather, the question is whether the juvenile court abused its discretion. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) Having reviewed the record as summarized above, we conclude the Fresno court did not abuse its discretion.
No doubt mother maintained regular visitation with the children. Arguably, those visits were pleasant experiences for the children. However, the beneficial relationship exception (§ 366.26, subd. (c)(1)(B)(i)) required much more. For the beneficial relationship exception to apply,
“the parent-child relationship [must] promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) A juvenile court must therefore: ‘balance... 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.’ (Id. at p. 575.)” (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)
Mother introduced no such evidence in this case. In addition, there was evidence that since the court suspended visitation, the children were neither distressed nor adversely impacted by the lack of visits. They in fact had a minimal response to learning the visits were suspended and had not asked to visit mother.
Accordingly, we conclude the Fresno court did not abuse its discretion by rejecting mother’s argument in favor of a beneficial relationship exception.
DISPOSITION
The orders denying mother’s section 388 request and terminating parental rights are affirmed.