Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. CK58833, Margaret S. Henry, Judge, Debra L. Losnick, Commissioner, and Jacqueline Lewis, Referee. Affirmed.
Kate Chandler, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Aida Aslanian, under appointment by the Court of Appeal, for minors.
FLIER, J.
Beatriz S. (mother) is the parent of Crystal S. (born July 2001), Omar G.S. (born October 2004), and Celeste S. (born December 2005). Mother appeals the juvenile court orders of March 16, 2007, denying her petition for modification (Welf. & Inst. Code, § 388), and severing her parental rights to all three children (Welf. & Inst. Code, § 366.26). The children’s biological father, Jose G., is not a party to the appeal. The children appear as respondent, seeking affirmance of the juvenile court’s orders.
Subsequent statutory references are to the Welfare and Institutions Code unless otherwise stated.
The Los Angeles County Department of Children and Family Services (the Department) has not filed a brief, but has submitted a letter to explain its position. At the juvenile court level, the Department supported mother’s position that the section 388 petition should be granted, so that she would receive further reunification services and unmonitored visits, including weekend overnight visits. The Department asserts in its letter that it is not in a position to file a brief, as it did not file a notice of appeal, but it believes the issues have been fully discussed in mother’s opening brief.
We previously denied mother’s petition for extraordinary relief, on the merits, in Beatriz S. v. Superior Court (Jan. 26, 2007, B194288 [nonpub. opn.]), a 10-page opinion (hereafter our prior opinion). Our prior opinion rejected mother’s attack on rulings in October 2006, ordering no child welfare services and setting the date for the section 366.26 hearing.
Mother contends: (1) Her section 388 petition should have been granted. (2) The children’s trial counsel should have declared a conflict of interest. (3) There was substantial evidence to support a finding that termination would be detrimental to the children pursuant to section 366.26, subdivision (c)(1)(A). That statutory provision, which we hereafter call the beneficial relationship exception, precludes termination of parental rights if “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
We reject mother’s contentions and affirm.
PROCEDURAL BACKGROUND AND FACTS FROM OUR PRIOR OPINION
“The juvenile court filed a dependency petition and detained Crystal, Omar, and Celeste from mother and their father on June 27, 2006. A June 2006 detention report filed by DCFS stated mother, father, and the children had been the subject of a prior dependency petition in 2005 when Omar, then five months old, was diagnosed with a skull fracture and a fracture to his right shoulder. The juvenile court had found in 2005 that Omar’s injuries were caused by mother and father allowing Omar to be exposed to their domestic violence, including one altercation where father’s abuse caused Omar’s severe injuries. The juvenile court had granted reunification services to mother only and placed the children, Omar and Crystal, with their maternal aunt, Maria G. Father never completed any programs to deal with his domestic violence or anger. Crystal and Omar were eventually released to mother, and the juvenile court terminated jurisdiction on May 22, 2006.
“Just nine days later, on June 1, 2006, Aunt Maria made an unannounced visit to mother’s home and discovered father there. Father then grabbed a bag of his belongings and left the home. The news of father’s re-emergence resulted in DCFS conducting an investigation and filing a new dependency petition. The new petition was based upon the domestic violence in 2005 and the renewed risk of harm presented to the children (including newborn Celeste) by mother’s continued relationship with father.
“DCFS reported that during interviews with mother and father in June 2006, mother said she had been letting father visit the children and admitted she wanted to be with him as long as he completed some programs. Father said he had been deported to Mexico but wanted to reunite with mother and the children. He also stated that prior to the juvenile court terminating jurisdiction on the 2005 petition mother had told him to not go to court to obtain services because the court was going to finish the case and give the children to her anyway. Father admitted to using crystal methamphetamine and marijuana.
“Aunt Maria told the DCFS social worker that mother had moved out of her home two months before and that mother was looking for an excuse to move away. Relatives in Mexico informed Maria that father had remained in contact with mother all along and had left Mexico two months before. She indicated mother had paid smugglers to get father back across the border into the United States. Aunt Maria was afraid father would kill mother or the children.
“In a July 2006 report, DCFS provided details of the violent altercations between mother and father and Omar’s severe injuries, including copies of police reports. In April 2005, father had gone to one residence to pick up mother and take her home. They argued because father had been with another woman. At this first residence, father struck mother behind the ear with a closed fist, then four other times in the head and stomach. Arriving at their home, father said he would kill mother. Mother grabbed father’s sister for protection, telling her not to leave because father was going to hurt her. Father threw a beer bottle at her and missed, and then walked around his sister to get at mother, hitting her twice on the head and six times on her body. These blows caused mother to fall on top of Omar, who was in her arms. Father stopped hitting only when his sister observed Omar had been hurt.
“Crystal reported to the social worker that she saw what happened, had seen father throw the bottle at mother, and began crying. Maternal Aunt Sylvia, a resident of Texas, stated that at the time Omar was hurt Crystal called her and begged the aunt to pick her up. Crystal told the aunt, ‘My daddy hits my mommy a lot and he throws me against the wall and now baby is vomiting a lot.’ Sylvia also believed mother and father were traumatizing Crystal by making her say that she had been the one to hurt Omar. Sylvia actually drove from Texas to California to put pressure on mother to take Omar to the hospital. Along with Aunt Maria, Aunt Sylvia intervened with a social worker at the hospital to prevent Omar’s release to mother.
“In the hospital emergency room, Omar underwent a CT scan and a full skeletal survey that revealed fractures in the skull and mid-shaft humerus. Omar’s broken arm was treated with a splint, and he was covered with a complete body wrap in order to immobilize his arm. Mother lied to emergency room personnel by stating Crystal, then almost four years old, had mishandled Omar and caused his injuries. Mother later lied again to police when she said Omar had been injured by falling off the bed. She also implicated Crystal as having hurt Omar, telling police Crystal had been playing with Omar around the time she noticed the injury to Omar’s arm.
“Aunt Maria stated mother and father had been living together before the second dependency petition had been filed. Mother admitted that father had moved into her home in June 2006.
“Up to the time of the contested jurisdiction hearing on August 29 and 30, 2006, mother and father continued to reside together. After considering all of the evidence and oral argument, the juvenile court sustained allegations under section 300, subdivisions (a), (b), (e), (i), and (j) regarding Omar’s injuries, that the children were returned to mother and that she had again exposed them to risk of harm from father by continuing her contact with him, that father was an abuser of methamphetamine and marijuana, and that mother and father engaged in violent altercations.
“On October 10, 2006, after hearing argument from counsel, the juvenile court found by clear and convincing evidence that the children were described by section 361.5, subdivisions (5) and (6), and ordered that no reunification services be offered to the parents. The court said, ‘The court and the department made every effort to allow this mother to safely reunify, to allow her to prove . . . that her children come first; that she loves them; that she’s willing to protect them. Mother failed abysmally. [¶] She went to classes. She clearly learned nothing; but, moreover, she lied to the department. She learned enough to lie to the department, to lie to the court. [¶] . . . [¶] . . . Mother clearly made no progress in the programs. She allows her children to be put in a place where they are in significant risk of harm. [¶] . . . [¶] I will note court makes its actual finding that it would not benefit the children to pursue reunification services with either parent here.’ ”
SUMMARY OF OUR PRIOR OPINION
Mother’s writ petition contended that there was no substantial evidence to support the juvenile court’s finding of jurisdiction, the court improperly utilized the allegations from the first petition to support the second petition, and there was no evidence to support the denial of reunification services. We found that mother’s continuing relationship with father supported the second petition, as it exposed the children to the risk of further domestic violence. We further found that there was substantial evidence to support the denial of services, as Omar had previously suffered severe physical harm when father beat mother while mother was holding Omar in her arms.
PROCEDURAL BACKGROUND AND FACTS SUBSEQUENT TO OUR PRIOR OPINION
While the writ petition was pending, the Department reported in November 2006 that the children were living with foster parents, and father’s whereabouts were unknown. Mother said that father no longer lived with her, and she did not know where he resided. The court later made a finding of due diligence, as to father. All three children were likely to be adopted, either by their aunt Maria, in Los Angeles, or their aunt Sylvia, in Texas. Mother insisted that she had not concocted a reason to move with the children from Maria’s home and did so because Maria’s teenage son molested Crystal. The Department investigated the complaint of molestation and found it to be unfounded.
The Department’s report for proceedings on February 6, 2007, indicated that the children were doing well in foster care. Mother visited them weekly at a restaurant with monitoring by the foster parents. Father had telephoned the caseworker the preceding month. He said he was living in Mexico, planned to marry another woman there, and had no intention of returning to the United States. The Department recommended termination of mother’s and father’s parental rights with adoption as the permanent plan. The Texas home of Sylvia and her husband had been approved after a home study.
At the February 6 proceedings, mother requested a contested section 366.26 hearing. The request was granted. The following day, mother filed the section 388 petition that is involved in this appeal.
The section 388 petition requested a return of the children to her home, or in the alternative, family reunification services including unmonitored overnight visits. As changed circumstance or new evidence, she alleged: “Mother has completed 1) domestic violence counseling 2) parenting classes 3) individual counseling 4) consistently visited with her children weekly 5) stable home 6) stable job 7) severed all contacts with the children’s father.” The petition continued: “Mother has clearly made the choice to protect her children from their father. She has re-enrolled and completed in [sic] programs to become a better parent. She recognizes her mistakes and is now willing and able to provide a safe home for her children. She is their biological mother and she has a very strong bond with them.”
A letter from appellant’s therapist was attached to the petition along with documentation of her completion of the required programs.
On February 20, 2007, the juvenile court granted a hearing on the section 388 petition and ordered the Department to prepare a report about it.
In its new report, dated March 7, 2007, the Department changed its position. It now recommended granting of mother’s section 388 petition with resumption of family reunification services for her and unmonitored overnight visits.
According to the new report, Crystal wanted to live with mother. Mother was working at night as a waitress and lived alone in a clean, one-bedroom apartment. During his single telephone call with the caseworker, father had said he was getting on with his life in Mexico, and the children were mother’s problem. Mother said that she no longer acted on impulse and had acquired maturity and strength. She had completed all required courses and benefited from individual counseling. She indicated that she would call the police if father returned, as she did not want anything more to do with him. Separation from the children was different for her this time than in the past, as they were with foster parents, rather than with her sister, so she only saw them for one hour each week. She thought they were suffering by not being with her. She was no longer speaking to Maria or Sylvia. If the children were returned to her, she planned to spend the daytime with them and have her mother, or a neighbor, watch them at night while she worked.
The caseworker’s opinion about granting the section 388 petition was based partly on the strong bond between mother and the children. Five-year-old Crystal had repeatedly said that she missed mother and wanted to be returned to her. The foster mother had reported that all the children were very happy to spend time with mother during their weekly visits at a restaurant, seemed sad when the visits ended, and were happy again when mother telephoned them the next day.
At the March 13, 2007 proceedings, the court considered the Department’s recent reports, the letter from appellant’s therapist, and the documentary proof about the programs mother had completed. Mother then took the witness stand. She said she had not been strong enough in the past to say “no” to father and should not have let him go near the children, as he had abused them and her in the past. She had now completed the programs twice and had learned that she needed to be strong for the children. The first time she took the course, she learned not to allow any violence from father. She did not allow father to stay with her after he returned from Mexico because she realized that he had not changed. The second time she took the courses, she became stronger. She now had a job and a home of her own. If father came back into her life, she would never again accept him and would call the police. Her children were her life, and she would never again put them at risk. She and her children were hurting because they loved each other and needed to be together. She insisted that she was now telling the truth, had not been in contact with father since the previous August, and would never again reunite with him.
On cross-examination, counsel for the children asked mother what had changed. She answered that she had made a life of her own and was no longer dependent on her sisters. She now understood that every mistake she made had consequences. Her mistakes had taught her that she needed to have more self-assurance and to defend herself from other people.
The juvenile court then asked these questions:
“THE COURT: Ma’am, tell me about your mistakes. What were your mistakes in this case?
“THE WITNESS: I should have never allowed the father to be near my children, nor near me.
“THE COURT: So why did you?
“THE WITNESS: Because I didn’t think the same way I do now, because I reacted on impulses. Now I know that those mistakes have serious consequences.
“THE COURT: What did you do where you acted on impulse?
“THE WITNESS: I don’t know. Perhaps, it was that I had to learn more about life.
“THE COURT: Well, what action -- you indicated that it was because you acted on impulse, what did you do quote, ‘on impulse,’ in this case?
“THE WITNESS: I remember when I stopped seeing the children’s father, I remember feeling good, feeling good about my daughter. [¶] I wasn’t thinking about consequences. But now I know that it doesn’t -- that one can’t go by feeling, because that things can come along [sic].
“THE COURT: Ma’am, you testified that you were -- what you did wrong is that you were not strong enough to tell the father, no. [¶] Now how do you explain, given that sentence how you managed to tell the father; ‘No, don’t come to court,’ so that the children would be given back to you?
“THE WITNESS: Excuse me? I don’t understand the question.
“THE COURT: Well, you managed to tell the father, ‘No,’ when he wanted to come to court, because you didn’t want the court to know that he was still around, so that the children would be given back to you and that the case would close; so how did you tell him ‘no’ then?
“THE WITNESS: No, what I’m trying to say is I wasn’t strong enough to stop him, not allowing him to ever -- for him to ever come near us again.
“THE COURT: But you managed to say no to him when he wanted to come to court; is that correct?
“THE WITNESS: No. I did not tell him not to come to court.
“THE COURT: You testified that everything you do is with your children in mind. [¶] When you paid the coyotes to bring him back from Mexico, was that with your children in mind?
“THE WITNESS: That is not true.
“THE COURT: Okay. So basically what you’re saying is what you said previously, is that he has caused everything that has happened; is that correct?
“THE WITNESS: He has caused -- He has been the cause of everything, but I should have stopped him. I should have been strong enough to stop him, to tell him ‘No,’ to not allow him to do what he did.
“THE COURT: Ma’am, I have one other question. You testified that no one can feel the pain more than you. So do you think that you felt more pain than Omar, who suffered the skull fracture and the fracture to his shoulder?
“THE WITNESS: I know that my son has suffered and that is why I am paying for it. And that’s why I have learned that I never again should be with a violent person. [¶] Because children are the ones who afterwards suffer the consequences. And what happened to my son was when I was also a victim, and now I will not allow anyone to hurt us.”
Proceedings were then continued so that the Department’s caseworker, Ms. Cisneros-Franco, could be present. When proceedings resumed, the court asked Cisneros-Franco why she thought that the section 388 petition should be granted. She said there was a change in circumstances, as mother had previously been dependent on her sister Maria, but she now had a steady job, paid rent on her own apartment, and was stronger and more stable than in the past. The court asked how mother’s greater independence increased her willingness to protect her children. Cisneros-Franco responded that, with the help of weekly individual therapy sessions, mother had become more cooperative, more able to stand up for her children, and more willing to accept help. However, if mother denied in court the allegations that brought the case back to court, that would change her opinion. The questioning continued:
“THE COURT: I’m not trying to put words in your mouth. Do you have anything other than, ‘Mother is more independent,’ to support your belief that there’s been any change in this case that would warrant this court reinstating or instating reunification services after she paid for a coyote to bring this gentleman back across, let him come back into the home, and lied to the court, and lied to you, anything else?
“THE WITNESS: None other than she’s in a different situation, no.”
Under further questioning, Cisneros-Franco added that, although she believed mother would not currently allow father back into her life, there was “always a possibility” of that happening in the future.
The court heard argument from counsel the following day. Mother’s counsel maintained that the substantial changes in mother’s life justified granting her petition, particularly since Crystal wanted to reunite with her, and the foster mother had observed the bonds between mother and the children. Counsel for the Department and for father submitted the issue. The children’s counsel argued that the section 388 petition should be denied, as mother had not established a change of circumstances. The juvenile court agreed with the children’s counsel and denied the section 388 petition. It found that father had “always been part of their lives,” despite mother’s statements to the contrary. Given mother’s numerous previous lies, the court had “absolutely no reason to believe a word that comes out of this mother’s mouth.” The court was particularly concerned that, after Omar was injured and father was deported, mother had paid to have father returned to the United States. The children needed permanence, stability, love, and protection, and it was not in their best interest to leave them in limbo any longer.
The court then went on to the section 366.26 issue. It considered all the Department’s reports and the documentary evidence submitted with the section 388 petition. Counsel for the Department had nothing to add. The children’s counsel asked the court to find that the children were adoptable and that there were no exceptions that outweighed their need for permanence. Mother’s counsel argued against a termination of parental rights, based on the beneficial relationship exception. The court found that the children were adoptable, and that the beneficial relationship exception did not apply, because the children’s relationship with their mother did not outweigh the benefit of permanence that they gained through adoption. That finding was based partly on the facts that the children had been out of mother’s care and custody for most of their lives, and she had failed to protect them when they were with her. Therefore, the children were declared free from their parents’ custody and control, with adoption as the permanent plan. Sylvia and her husband were in the courtroom hoping to drive the children back to Texas. The court ordered immediate placement of the children with them. This appeal followed.
DISCUSSION
1. The Section 388 Petition was Properly Denied
“If the petition states a change of circumstance or new evidence and it appears that the best interest of the child may be promoted by the proposed change of order,” a section 388 petition may be granted. (Cal. Rules of Court, former rule 1432(c), current rule 5.570(c).) The petitioner has “the burden of showing not only changed circumstances but that a change in the child’s placement would be in the best interests of the child . . . .” (In re Casey D. (1999) 70 Cal.App.4th 38, 48; see also In re Zachary G. (1999) 77 Cal.App.4th 799, 807.)
A juvenile court’s ruling on a section 388 petition will not be disturbed unless an abuse of discretion is clearly established. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) “ ‘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.’ ” (Id. at pp. 318-319, quoting Walker v. Superior Court (1991) 53 Cal.3d 257, 272 & Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.)
We find no abuse of discretion here. Although mother had adopted a more independent lifestyle and had completed all court-ordered programs, there remained the issue of the best interest of the children. Mother had failed to protect the children in the past, by exposing them to resumed contact with father, who abused drugs and had previously hurt mother and the children. The caseworker believed mother’s assertion that she had ended her relationship with father and had not seen him for many months. The juvenile court specifically found that mother was lying. We cannot reweigh the issue of mother’s credibility, particularly since the juvenile court’s refusal to believe mother was justified by mother’s previous pattern of telling lies, on such issues as whether she still had contact with father, and on the manner in which Omar was injured.
2. The Children’s Trial Counsel did not Have a Conflict of Interest
Mother contends that the children’s trial counsel had a conflict of interest that precluded use of the same counsel for all three children because only the eldest, five-year-old Crystal, was able to express her wish to return to mother. The argument lacks merit. Children in a dependency case may be represented by the same counsel, unless there is an actual conflict between them. (In re Celine R. (2003) 31 Cal.4th 45, 50, 56-58.) Crystal’s ability to express herself did not create an actual conflict. It is understandable that Crystal wanted to return to mother, as she and her siblings had been placed with foster parents whom they had not previously known. Even so, it was the responsibility of appointed counsel for the children “to advocate for the protection, safety, and physical and emotional well-being of the minor.” (§ 317, subd. (c).) That is exactly what the children’s counsel did by ensuring that they would not again be exposed to father’s violence.
3. Sufficiency of the Evidence
Finally, we reject mother’s argument that she established the beneficial relationship exception.
“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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).)
“In the context of the dependency scheme prescribed by the Legislature, we interpret the ‘benefit from continuing the [parent/child] relationship’ exception to mean the relationship 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.” (Autumn H., supra, 27 Cal.App.4th at p. 575.)
The record supports the trial court’s finding that mother failed to meet the requirements for the beneficial relationship exception. She visited the children regularly while they were placed with Maria and with the foster parents, but they did not live with her for much of their lives. She exposed them to the risk of harm from father when they did live with her. She failed to establish that severing her parental relationship with them would greatly harm them. The children were very young and they needed a safe, permanent home. We therefore conclude that there was substantial evidence to support the order terminating mother’s parental rights. (Autumn H., supra, 27 Cal.App.4th at p. 577.)
DISPOSITION
The orders denying the section 388 petition and severing mother’s parental rights are affirmed.
We concur: COOPER, P. J., EGERTON, J.
Judge of the Superior Court of Los Angeles County, appointed by the Chief Justice pursuant to article VI, section 6 of the California Constitution.