Opinion
NOT TO BE PUBLISHED
APPEALS from a judgment of the Superior Court of Los Angeles County No. CK49868 Marilyn Kading Martinez, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.).
Cristina Gabrielidis Lechman, under appointment by the Court of Appeal, for Defendant and Appellant C.A.
Lee Gulliver, under appointment by the Court of Appeal, for Defendant and Appellant James J.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Frederick Kling, Deputy County Counsel, for Plaintiff and Respondent.
BOREN, P.J.
C. A. (Mother) and James J. (Father) appeal from a dependency court order terminating their parental rights to three children. The children were removed from parental custody after the youngest, an 11-week-old infant, suffered major brain trauma stemming from “shaken baby syndrome.” The parents contend that they have visited regularly and the children would benefit from continuing the family relationship. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).) Mother also contends that parental rights should not be terminated because it would substantially interfere with the children’s sibling relationship (§ 366.26, subd. (c)(1)(B)(v)), and she challenges the court’s denial of her petition for a modification (§ 388). We find no error in any of the court’s orders.
All undesignated statutory references are to the Welfare and Institutions Code.
FACTS
Mother’s Dependency History and Parental Criminal History
Mother has lost custody of seven children: D.B. (born in 1999); Donald C. (2002); James W. (2005); E.J. (2006); Jamel J. (2007); J.J. (2008); and J.J. (2010). Mother did not reunite with her three oldest children, who received permanent placement services from the Department of Children and Family Services (DCFS). The youngest child, Jam., is currently the subject of another dependency petition. E., Jamel and J. (collectively, the children) are the subjects of this appeal.
D. was a victim of neglect and physical abuse by Mother, who used cocaine at “crack houses, ” and left drug paraphernalia within the child’s reach. Mother was a gang member who received welfare for D., but did not give any of it to the child’s caregiver, the maternal grandmother. Mother reportedly beat D. with tree branches. Mother tested positive for cocaine twice while pregnant with Donald, and he was born with symptoms of drug withdrawal. She tested positive for cocaine and amphetamines while pregnant with James. Mother denied using drugs and claimed she was exposed to the father’s drugs. Mother admits that she did not reunify with D., Donald, or James. She denies “any current substance abuse and any past history of substance abuse; however, the children, Donald and James[, ] were removed from the care of [Mother] for substance abuse.” Jam. was born in 2010, during this dependency proceeding.
As Father notes in his brief, Jam. was taken into protective custody in May 2010 “with medical conditions for contusion, hematoma and hemorrhage.” The court asserted jurisdiction over Jam. on September 21, 2010.
Mother has a criminal history for grant theft auto; making terrorist threats; and cruelty to an elderly person. Father has a criminal history that includes convictions for battery on a police officer; robbery; burglary; and taking a vehicle without the owner’s consent.
Events Leading to the Current Proceeding
On August 14, 2008, 11-week-old J. was brought by paramedics to an emergency room, suffering from a “right parietal contusion, left frontal subdural hematoma, a right frontal subdural hematoma... and retinal hemorrhages.” The treating physician stated that “someone had shaken this baby recently and in the past.” Although J. had no fractures, the physician believed that the baby’s injuries were not accidental and resulted from deliberate shaking. The physician thought that Mother lacked credibility and was responsible for J.’s prior injuries; he urged DCFS to detain the children. The children were detained on August 15, 2008.
Mother and Father offered various and conflicting explanations for J.’s injuries. Mother informed health workers and DCFS that she went to a job interview, leaving J. in Father’s care at the home of the baby’s paternal grandmother (PGM). Upon her return, Mother found J. crying, his body unnaturally stiff, and his eyes unfocussed. Father denied that anything was wrong with the baby. Mother called 911 and J. was taken to the hospital. After learning of the gravity of J.’s injuries, Mother asked Father to explain what happened to J. in her absence. Father told Mother that two-year-old E. “was jumping on the bed and there is nothing else.” Father stated that he went outside to talk to a neighbor, leaving the children unattended. When he returned, E. was on the bed jumping and J. was crying.
Father told the social worker that this was the first time he had taken care of the children by himself. He, E. and J. were in the bedroom and E. was jumping on the bed. Father left the room briefly to retrieve Jamel from the living room. When he heard J. cry out, Father rushed back and saw that E.’s feet were on J.’s back. J. seemed fine when Father examined him. Father rocked J. to make him stop crying. At that point, Mother came home.
At the detention hearing, Mother asserted that J. fell from Father’s lap and “hit his head directly on the floor.” One month later, Mother told DCFS that E. and Jamel were playing in another room while Father changed J.’s diaper in his lap. When Father went to investigate the sound of breaking glass, J. rolled from Father’s lap onto the floor. Father elaborated on this new theory about J.’s injuries in a DCFS assessment interview, saying he “forgot” the baby was on his lap when he stood up.
On September 15, 2008, J. was found unresponsive in his crib in foster care and was rushed to the hospital. J. had suffered cardiac arrest and had no heartbeat for 20 minutes before reaching the hospital. He underwent surgery to evacuate bleeding on his brain from the subdural hematomas. He had “no spontaneous movement and no spontaneous breath, ” was put on a ventilator, and was in a “vegetative state.”
The Petition
On September 18, 2008, DCFS filed a petition on behalf of the children. It alleges that J. suffered head contusions, right and left hematomas, and retinal hemorrhages. The injuries are consistent with nonaccidental trauma, physical abuse, and violent shaking. The parents failed to explain the injuries. These deliberate or neglectful acts of physical harm place J. and his siblings at risk of physical and emotional harm, damage, danger and death. The petition also alleges that Mother has a history of substance abuse, including cocaine, which renders her incapable of providing regular care and supervision for the children.
Mother and Father denied the allegations in the petition. The court found a prima facie case for detaining the children, and removed them from parental custody. The parents were given monitored visitation.
The Jurisdiction/Disposition Report
Mother was interviewed on October 16, 2008. She related a story about J.’s falling from Father’s lap while his diaper was being changed, but acknowledged the treating physician’s assessment that “the story was not consistent with the injuries that the child had” because “there were old injuries to the child that were healing and... he believed that the baby (J.) had been abused.” Mother was “completely shocked” at this news and denied that she ever abused her children. The only people who have tended the children are Mother, Father, and the PGM.
Mother commented on her failure to reunify with her older children. With respect to D., she was not in a position to care for the child because she had no job or housing. Mother “gave up trying to fight” to keep Donald and James. Mother claimed, “I admit that I used to sell drugs and that is how the baby got the drugs in his system. I have never used drugs before in my life.” DCFS was unsuccessful in contacting Father for an interview.
DCFS assessed the risk to the children’s safety as “very high.” Although Mother was at a job interview on August 14, and acted appropriately by calling 911 when she returned and found J. stiff and unresponsive, “at this time it cannot be determined who inflicted the injuries to the child.” Mother could not explain why J. has old injuries, and his injuries are inconsistent with parental claims that there was some small accident. DCFS asked the court to deny reunification services.
Mother began parenting classes, but her attendance was inconsistent. She had a negative drug test on October 16, 2008, but missed a test on November 3, claiming that she could not leave her job. Mother’s drug testing site was moved to within one mile of her job, yet she continued to miss tests on December 8 and 17. Father missed drug tests on November 6 and 18, and December 18, 2008. Mother’s weekly visits with the children went well and she has appropriate interactions with them. J. is functionally impaired and unable to establish a relationship with his caregiver.
Multi-Disciplinary Assessment Team (MAT) Report
A MAT report was made in November 2008. Mother told the assessor that “she has never used drugs in her entire life.” Mother was happy with the permanent placements of her three older children, who reside with the maternal grandmother (D.), a paternal grandmother (Donald), and an aunt (James). Mother is employed and rents a room in a house. She has attended two parenting sessions; has had two clean drug tests; and is seeking counseling services.
Father described the events of August 14. He told the assessor that he was babysitting the children: E. was playing in the bedroom while Jamel played in the living room, as Father changed J.’s diaper in his lap. Hearing the sound of breaking glass, Father rushed to see what Jamel was doing “dropping infant sibling on the floor, ‘forgetting’ he had him on his lap to change his diaper.” Confronted with the physician’s opinion that J. was shaken several times, Father recalled two other incidents in which (1) Father accidentally bumped J.’s head on a bunk bed while carrying the infant on his shoulder, and (2) E. hit J. in the head with a cell phone.
E. was beginning to develop a bond with her foster mother, but does not appear to have an attachment to Father. Her speech is delayed, which is typical of a neglected child deprived of stimulus and attention. E. was undisciplined and had temper tantrums when the foster mother set limits. Similarly, Jamel screamed, threw himself down on the floor and banged his head when given limits. His language skills are impaired, his eyes are glazed, he has a flat affect, and he is not interested in engaging with others or his environment. J. is in a medical placement, “is neurologically devastated, ” and must be fed by a tube. His functional impairments prevent him from developing language skills, smiling, making eye contact, moving, or sucking on a bottle or pacifier. His prognosis is poor.
Though Mother and Father visit consistently, they do not interact much with E. and Jamel. Based on its assessment of E.’s and Jamel’s “significant impairment in [their] mental health function, ” and the information provided by the parents, the MAT recommended that visitation be monitored.
The Jurisdiction Hearing
At the contested jurisdiction hearing in March 2009, Mother flatly stated, “I’ve never used drugs.” She recently enrolled in a drug abuse program, but has been too busy visiting J. in the hospital to attend any meetings. Also, she has missed random drug tests since October 2008 because she is visiting the children. Mother administers medications to J. and calms him when he cries. Mother testified that on the day J. first took ill, she was told that he had fallen from a bed.
Father presented an expert witness, Dr. Grogan, a pediatric orthopedist. He testified that J.’s hospital records show two acute and chronic subdural hematomas, which usually resolve themselves and require no drainage. There “were several episodes of bleeding at different times, ” resulting from head injuries sustained on different occasions. In September 2008, J. “most likely [suffered] a re-bleed” that led to cardiac arrest requiring surgical intervention and drainage of the hematoma. Dr. Grogan opined that J.’s injury “typically is an acceleration-deceleration injury to the brain” that could be caused by someone shaking the baby or by an indirect trauma such as another child jumping on the bed containing the baby. J. had no fractures or bruises that are usually seen when a child is shaken. J.’s retinal hemorrhages are also signs of an acceleration-deceleration injury. His injuries were “ongoing” and “repetitive” because the hematomas were sustained on “multiple occasions.”
The court took the matter under submission and rendered a written decision. It found “overwhelming” evidence of a nonaccidental trauma, and “it appears to be a classic case of ‘shaken baby.’ J. was seriously physically abused.” The various explanations offered of dropping the child, bumping his head on a bunk bed, or hitting his head with a cell phone could not have led to the type of injuries sustained, according to the treating physician. The vague report of a sibling jumping on a bed is an unsupported theory, because J. was shaken on at least two different occasions. Mother lacks credibility as a witness: she denies ever using drugs in the face of positive toxicological tests with her older children, a state of denial that the court found “very disturbing.” Mother has primary custody, so it appears that J. sustained an unexplained injury in her care before he sustained injury in Father’s care.
The court sustained four counts: (1) J. suffered serious physical harm consistent with nonaccidental violent shaking, trauma that would not occur except as a result of deliberate, unreasonable and neglectful acts of the parents, and these acts place J.’s siblings at risk of harm (§ 300, subd. (a)); (2) Mother has an unresolved history of substance abuse, including cocaine, which renders her incapable of providing the children with regular care and creates a risk of harm (§ 300, subd. (b)); (3) the parents knew or should have known that J. suffered severe physical abuse but failed to take action to protect him (§ 300, subd. (e)); and (4) the nonaccidental physical abuse of J. places his siblings at risk of harm (§ 300, subd. (j)). The court stated at the hearing, “there’s no question in the court’s mind that this baby was shaken.”
Moving to disposition, the court declared the children to be dependents of the court, and they were removed from parental custody for their safety. The parents were given monitored visitation. The court ordered reunification services for Mother, but not for Father because he inflicted severe physical abuse on a child. Mother was ordered to undergo drug rehabilitation with random testing; parenting education; individual counseling with a licensed therapist; and medical training to care for J.
Six-Month Review Report
In September 2009, DCFS reported that E. and Jamel were doing well in their placement and bonding with their foster mother. E. is happy, outgoing, affectionate with the social worker, and is developing appropriately. At 25 months, Jamel was talking more than before, enjoys the company of others and is affectionate, but he functions at the level of a 12- to 15-month-old. His foster mother reads to him and provides him with educational activities, and he is making developmental progress. J. was in a medical facility where he receives 24-hour nursing care. A CT scan in August 2009 revealed bilateral chronic subdural hematomas. J. continued to be fed by a tube and at one year of age, he had the language, motor, adaptive and social development of a four-week-old baby.
Mother was not in compliance with the court-ordered case plan. She had not started individual counseling and was not submitting to drug testing, although DCFS had provided her with verbal and written referrals on 12 different occasions between May and September 2009. Mother missed nine random drug tests between April and September 2009. She completed a parent education program in March 2009. Mother stated that she was living with a friend, but refused to disclose her address to DCFS. She visited the children once a week and the visits went well. Father usually attended visits, as did the PGM. Mother interacted with the children by asking questions, singing and dancing with them, teaching them colors and the alphabet song, bringing movies and often food. The children appear to enjoy the visits, but do not cry when the visits end.
Mother claimed to have tested negative at a facility of her choosing, on the dates of her choosing, which destroys the “randomness” of the testing. The facility lost Mother’s file and could not verify her drug test results.
Nine-Month Status Review Report
In December 2009, DCFS reported that Jamel and E. continued to do well in foster care. They are happy and content. Jamel was working on his developmental skills. J. remained in a medical facility. Mother enrolled in counseling in November 2009, but the therapist was an unlicensed intern. Mother failed to appear for five drug tests between September and December 2009. She submitted a negative test on December 2, 2009; this was Mother’s first drug test since May 18, 2009. Mother refused to meet with the social worker, and did not have stable housing. She was not taking advantage of liberalized visits with J., and her visits were sporadic according to medical staff.
Mother continued to minimize or ignore the issues that brought the family to the attention of DCFS. For example, Mother felt that she does not need to drug test because the current case does not involve drug-related issues. She continued to assert that she has never had a drug problem, and only tested positive with her older children because she was cutting and selling crack cocaine and it entered her pores. Mother attended weekly visits with the children, and Father attended most visits, along with the PGM. The children interact well with the parents and are comfortable with them. DCFS recommended that the court terminate reunification services because Mother has not complied with the case plan.
Supplemental Progress Report
DCFS submitted a supplemental progress report in February 2010, to address Mother’s compliance with court orders. Mother enrolled in individual counseling in September 2009. She attended three sessions with the unlicensed intern on November 19, December 3, and December 19, 2009. The counseling did not meet the court’s requirement that Mother see a licensed therapist. The counseling service reassigned Mother to a licensed therapist, but she never met with him. She complained of the cost, her dislike of having a male therapist, and scheduling conflicts. Mother did not have an intake appointment scheduled with a new therapist until March 2010. Mother’s former counseling service opined that Mother “definitely needs a lot more therapy” as well as another parenting class.
Mother finally began random drug testing with Pacific Toxicology. She had negative results on December 17, 2009, January 5, 22, and February 2, 2010. Mother claimed to be living on her own in appropriate housing; however, the PGM informed the social worker “that mother and father were residing in her home since the case opened and are now living together in North Hollywood.” Mother denied living with Father.
Mother and Father visited J. in his medical facility on Christmas Day 2009, but there were no additional visits between Christmas and February 18, 2010. J. can perceive bright light but is otherwise blind. He cannot crawl or eat, and must be fed by a tube. He occasionally smiles. Because Mother did not fully comply with court orders after 17 months of reunification services, and the children would be at high risk if returned to parental care, DCFS recommended that the court set a selection and implementation hearing, with a permanent plan of adoption.
12-Month Review Hearing (§ 366.21, subd. (f))
A contested review hearing was conducted in February 2010. The DCFS social workers testified that Mother’s initial three sessions of counseling were not appropriate because the therapist is unlicensed, and Mother has not attended any sessions with a licensed therapist. Although Mother completed a parenting class, her therapist wrote that Mother could benefit from more parenting education. Mother planned to begin in March with a licensed therapist who has an office at Mother’s drug testing facility.
Mother’s self-selected drug testing facility, “Help the People, ” lost Mother’s file and could not verify her results. Mother paid for these results; by contrast, the DCFS facility, Pacific Toxicology, does not charge to test. The authenticity of Mother’s tests at Help the People is questionable. Since Mother recently began testing at Pacific Toxicology, all of her results were negative. Mother testified that she completed a 12-session drug rehabilitation program at Help the People.
Mother has consistently visited E. and Jamel, and there were no negative observations by the visitation monitor. Mother stated that she visits J. weekly and knows how to take care of his medical needs. When Mother sees E. and Jamel, she brings them lunch and they talk, play and mostly watch movies. Mother believes she is compliant with the case plan and indicated that the PGM was lying when she told DCFS that Mother and Father have lived together throughout these proceedings. According to Mother, E. and Jamel do not know J.: they had one sibling visit and are unaware of his condition.
The court observed that Mother signed the case plan on April 1, 2009, acknowledging the requirement of individual counseling with a licensed therapist. DCFS attempted to refer Mother to licensed therapists, but Mother insisted on finding her own, unlicensed therapist. Mother repeatedly cancelled appointments with the DCFS social worker to discuss her progress in meeting case plan requirements. Mother rejected all efforts to provide her with assistance: as a result, the court stated, this case is about Mother’s “failing to follow court orders.” The court found that returning the children to parental custody would create a substantial risk of harm. DCFS made reasonable efforts to ensure Mother’s compliance with the case plan; however, Mother was only in partial compliance and her failure to fully comply and make substantive progress in court-ordered treatment is prima facie evidence that returning the children would be detrimental. There is no likelihood that Mother could comply with the case plan within the statutory time frame, which was one month away. The court terminated reunification services for Mother and set a permanent plan hearing.
Petition For Modification
Mother filed a petition for modification on April 30, 2010. She claimed that reunification services were improperly terminated because DCFS did not make reasonable efforts to help Mother with court-ordered classes. The court denied the petition because Mother sought review of the correctness of its order, which must be taken up by writ in the Court of Appeal.
Permanency Planning Report
On June 17, 2010, DCFS reported that E. and Jamel are thriving in their prospective adoptive placement, where they have lived since March 2010. E. is meeting appropriate developmental milestones. Jamel has shown “significant improvement” and is no longer requiring special services. At ages three and four, they are “happy and contented.” The prospective adoptive parents are committed to the children and wish to provide them with a stable and permanent home.
Mother and Father continued to attend regular, weekly monitored visits. The visits go well; however, E. began to have “night terrors” the day before visits, and was confused because Mother told her she would soon return home. Mother and Father were arrested on June 1, 2010. Mother was incarcerated for threatening a crime with the intent to terrorize. Father was arrested on an outstanding warrant for a 2009 battery on Mother, to which he pleaded no contest. During the period that the parents were incarcerated, their visits with the children ceased, and E. had no night terrors.
Mother and Father stopped visiting two-year-old J. He was placed in a prospective adoptive home with his baby sister Jam., who was detained in May 2010. J. is partially sighted, and has seizures, reflux disorder and encephalopathy. J.’s caregiver is a nurse who expressed enthusiasm about adopting him. She has three adult children by birth, and through DCFS has adopted a 10-year-old child with numerous health problems. She has “a wealth of medical knowledge” for addressing J.’s medical and developmental needs, provides the children “with wonderful care” and is committed to them.
Mother’s Second Petition for Modification
Mother renewed her request to reinstate reunification services on July 10, 2010. She claimed that she is enrolled in counseling, the children are bonded with her, and they should continue their relationship. The court set the matter for hearing.
Supplemental and Interim Review Reports
In July 2010, DCFS reported that Mother was continuing to have a relationship with Father despite the sustained allegations against him. The social worker found Father at Mother’s home, wearing only boxer shorts, holding baby Jam. DCFS opposed placing the children with the PGM, who has no concerns about the parents’ behavior and denies that they ever used drugs. Father indicated that he has been living with the PGM and intended to continue living with her after his release from jail. Although the dependency case began in mid-2008, the PGM waited two years to express an interest in having custody of the children. The PGM was present when J. was injured but did not protect the child or take him to a doctor.
Mother did not attend any parenting or drug programs after the court terminated reunification services. Mother reported that she found a licensed therapist, but he could only see her twice monthly. Mother has not found another therapist who could provide her with appropriate counseling services. She is not in counseling. Mother and Father were having monitored weekly visits with J.
J.’s prospective adoptive parent has an approved home study. She underwent months of visitation and medical training with J. before taking custody of him. J. seems happy and the caregiver is able to provide for his needs. E. and Jamel were forming a “strong attachment” to their prospective adoptive parents. E. enjoyed taking dance and gymnastics classes. The children report that they love the foster parents and refer to them as “mommy” and “daddy.” The children hid when the DCFS social worker visited, and would only come out when she assured them that she was not going to remove them from the home of the prospective adoptive parents. Jamel was using full sentences and had made great progress. E. continued to experience nightmares and regressive behaviors like crying, bedwetting and hitting before and after visits with Mother and Father, and it appears that the visits are triggering the problems. At the DCFS office, the children act playfully before parental visits, but their demeanor changes and they “stiffen up and say little” during the visits. During a visit, E. repeatedly called Mother by her given name, but Mother corrected her and instructed her to say “mommy.”
The Combined Section 366.26 and Section 388 Hearing
At the permanency planning hearing in September 2010, Mother’s former, unlicensed therapist testified that the children would benefit if Mother was given additional reunification services, so that Mother could continue to develop parenting skills and resolve any personal issues. She and Mother did not address drug abuse issues, and Mother told the therapist that J. “had a fall”—an accident in the home—that caused his injuries. The goal of the therapy was to provide safe housing for the children, develop healthy age-appropriate relationships, and develop communication skills. The therapist saw Mother from September to December 2009.
Mother testified that she saw a licensed therapist on March 1, 2010. She has not had any further counseling sessions since March 1, but is on a waiting list. Mother stated “I don’t think I learned anything” from her sessions with the unlicensed therapist back in 2009. She informed the therapist that the incident with J. was an accident, but that the doctors and court said he was shaken. Father made an offer of proof that he has maintained regular visitation, fed the children, taught them their numbers, disciplined them, and filled a parental role. They identify with him, run to him and hug him, and are bonded with him. Mother similarly made an offer of proof that she has visited regularly, the children are bonded to her, and they do not want to return to foster care.
The court found that Mother is not a credible witness, and that she blames others as an excuse for her failures. It denied Mother’s petition for a modification. DCFS and the children’s attorney asked the court to terminate parental rights. The court found that the children are likely to be adopted. The parents “have not really occupied [a] parental type of relationship” and the benefits of permanency outweigh the benefits of continuing the parental relationship. Further, the “sibling exception” does not apply here. The court terminated parental rights, freed the children from parental custody and control, and identified adoption as the permanent plan.
DISCUSSION
General Principles
When reviewing an order terminating parental rights, we determine if substantial evidence supports the conclusions of the dependency court. All conflicts are resolved in favor of the prevailing party and all legitimate inferences are drawn to uphold the lower court’s ruling. (In re Josue G. (2003) 106 Cal.App.4th 725, 732; In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.) We cannot reweigh the evidence or substitute our judgment for that of the trial court. (In re Jamie R. (2001) 90 Cal.App.4th 766, 774.)
At the selection and implementation hearing, the court must select adoption as the permanent plan and terminate parental rights if it finds that the child is likely to be adopted. (§ 366.26, subd. (c)(1); In re Celine R. (2003) 31 Cal.4th 45, 49; In re Jamie R., supra, 90 Cal.App.4th at p. 773.) Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826; In re Ronell A. (1995) 44 Cal.App.4th 1352, 1368.) A parent may avoid termination of parental rights by showing that it would be detrimental to the child. (In re Celine R., supra, 31 Cal.4th at p. 53.)
Mother and Father do not dispute that the children are likely to be adopted.
Mother and Father argue that termination of parental rights would be detrimental because they 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 parents must show why the statutory exception applies, and that termination would be detrimental to the child. (In re Derek W., supra, 73 Cal.App.4th at p. 826; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.) They carry the burden of proving that the children would be “greatly” harmed by termination of parental rights, and that they hold a “parental” role with the child. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853-854; In re Angel B. (2002) 97 Cal.App.4th 454, 466-468.)
Mother’s Appeal
1. Denial of Mother’s Petition for a Modification
A party may petition for a modification of a prior court order by showing (1) changed circumstances, and (2) that the proposed modification would be in the child’s best interests. (§ 388.) The dependency court’s denial of a petition for modification is reviewed for an abuse of discretion. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079.)
Mother made no showing of changed circumstances. She claimed that she had finally—two years into the dependency proceeding—started court-ordered individual counseling. Upon questioning, Mother admitted that she participated in a single counseling session between February 2010 (when reunification services were terminated) and September 21, 2010. That single session was on March 1, 2010. Attending a single session with a licensed counselor in two years is not evidence of changed circumstances. It is not even evidence of changing circumstances. Rather, it is evidence of Mother’s implacable resistance to getting help, her attitude that she cannot learn anything from counseling, and her misplaced sentiment that her parenting techniques are perfectly sound.
For a decade, Mother has blamed everyone else for her troubles. In Mother’s view: she tested positive for drugs during pregnancy because she worked in a crack house, not because she used drugs; her son Donald tested positive for drugs at birth because Donald’s father used drugs; E. and Father were responsible for J.’s injuries, even though the baby had multiple unexplained head traumas and Mother was the primary caretaker; the PGM was lying when she said that Mother and Father lived together during these proceedings, never mind that the DCFS social worker found an undressed Father at Mother’s home, dandling newborn Jam.; and it is DCFS’s fault that she did not complete her case plan, even though DCFS provided her with no-cost or low-cost drug testing and counseling referrals. During her few sessions with an unlicensed therapist, Mother refused to discuss drug issues or disclose the cause of J.’s injuries.
Against this sorry backdrop, Mother asked the dependency court—and now asks us—to believe that there are changed circumstances. Nothing has changed. Mother has continuously denied accountability for her actions with all seven of her children, and has lost custody of them as a result. Absent a sea change in Mother’s approach to life, nothing will change. In light of the entire factual and procedural history of the case (In re Justice P. (2004) 123 Cal.App.4th 181, 189), the dependency court did not abuse its discretion by denying Mother’s petition for a modification.
2. Termination of Mother’s Parental Rights
a. Application of the “Benefit to the Child” Exception
Mother must show both prongs of the exception: regular visitation and a benefit to the children if the relationship were continued. As to the first prong, Mother’s visitation has been consistent with E. and Jamel, but sporadic with J. As to the second prong, the dependency court determined that the children’s relationship with Mother is not so substantial that they would be greatly harmed if it were severed.
This dependency case lasted for two years before parental rights were terminated. During that entire time, Mother never participated in sustained individual counseling to address her various unresolved issues, having only three sessions with an unlicensed intern. Despite testing positive for cocaine and amphetamines while pregnant with her older children, and having one child born with symptoms of drug withdrawal, Mother emphatically denies any history of drug abuse: she never discussed drug issues with a counselor, insisting that it was not part of this case. Mother told her therapist that J. was injured in an accidental fall, concealing the dependency court’s finding that his injuries resulted from shaken baby syndrome. Mother’s failure to address her drug abuse issues and child abuse issues prevented her from resolving the problems that brought her family to the dependency court. Mother has never taken responsibility for losing custody of her seven children, in spite of the many sustained findings against her.
As a result of Mother’s defiant and uncooperative attitude, she was unable to have unmonitored, weekend or extended visits, let alone custody of the children. A showing that a child would be greatly harmed by termination of parental rights is difficult to make when, as here, “the parents have... [not] advanced beyond supervised visitation.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) A true parental relationship would not require a third party to monitor parent-child visits. Mother’s visits were never liberalized because she failed to address the problems that lead to dependency jurisdiction. In fact, she denied that she had any problems that needed to be addressed.
Mother argues that she has consistently visited the children, the visits were positive and appropriate, the children told her they love her, and they were sorry when visits ended. Even frequent and loving contact between parent and child is not sufficient to establish the requisite benefit to the child if Mother does not occupy a parental role and is unable to take custody. (In re Teneka W. (1995) 37 Cal.App.4th 721, 728; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108-1109.) While the children are bonding with their prospective adoptive parents, Mother has not progressed to the point where she can have unmonitored or overnight visits, even if the visits are enjoyable for Mother and the children. A relationship that is “pleasant” is not enough to establish a benefit to the child because “it bears no resemblance to the sort of consistent, daily nurturing that marks a parental relationship.” (In re Derek W., supra, 73 Cal.App.4th at p. 827.) “Interaction between natural parent and child will always confer some incidental benefit to the child.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
Here, E. and Jamel looked forward to their monitored visits with Mother as they might look forward to a play date. After all, Mother brought treats and toys, and they watched movies together. By the same token, the reports show that the children interact minimally with their parents, and that their playful demeanor before visits at the DCFS office changes and stiffens when Mother and Father arrive. E. had nightmares before and after her visits with Mother; the nightmares ceased while Mother was incarcerated and unable to visit. From this, the court could infer that E. was traumatized by the idea of returning to Mother’s care. E. began referring to Mother by her given name, until Mother instructed E. to say “mommy.” This indicates that E. does not view Mother as her parent. Both E. and Jamel hid from the DCFS social worker when she came to inspect their foster home, and she had to assure them that she would not remove them from the home. The children saw the prospective adoptive family as their family, and the prospective adoptive home as their home. Apart from the incidental benefit of parent-child interaction, we must consider “the many variables which affect a parent/child bond. The age of the child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child’s particular needs are some of the variables which logically affect a parent/child bond.” (In re Autumn H., supra, 27 Cal.App.4that p. 576.) E., Jamel and J. were very young (two, one, and 11 weeks) when they were detained. Most of their young lives has been spent away from Mother. All three of the children were suffering developmental delays when they were removed from Mother’s custody. E. and Jamel showed signs of neglect, with delayed speech and a lack of socialization skills, and J. had brain damage. J. will have special medical needs for the rest of his life, stemming from the 11 weeks he spent in parental custody. In short, it cannot be said that the time the children spent with Mother was positive. Mother does not dispute that the children are thriving in their placements. Mother did not carry her burden of showing that the children would be greatly harmed by the termination of her parental rights, or that the benefits of continuing their relationship outweigh the benefits of a stable, permanent home. Where, as here, the children are likely to be adopted, the court must choose adoption over a guardianship to give them “the most permanent and secure alternative that can be afforded them.” (In re Beatrice M., supra, 29 Cal.App.4th at p. 1419.)
b. Application of the “Sibling” Exception
Parental rights should not be terminated if a “substantial interference with a child’s sibling relationship” would be detrimental to the children. (§ 366.26, subd. (c)(1)(B)(v).) The dependency court found “zero merit” to the claim of a significant relationship between J. and his siblings: J. was separated from his siblings when he was less than three months old, so they were not raised in the same home, did not share significant common experiences, and do not have a close or strong bond with each other. Nevertheless, Mother asserts that the children must be kept together because they were removed from parental custody at the same time, have the same parents, and have visited together. She blames DCFS for the erosion in J.’s relationship with his siblings because the three children were not all put in the same foster placement.
Mother’s argument defies reality. She fails to acknowledge that baby J. landed in the hospital with brain trauma, suffered on multiple occasions while he was in parental custody. J. has spent most of his life in hospitals or in skilled nursing facilities with 24-hour care, on a ventilator and being fed through a tube. After one and a half years, J. was placed in a prospective adoptive home with a nurse who trained for months to provide J. with the medical care he will require for life.
It is unseemly that Mother blames DCFS for J.’s living situation. Surely, she does not think that E. and Jamel should have been placed in a medical facility with their younger brother, or that J.’s current caregiver should take in all of Mother’s children while providing quality care for a neurologically devastated child. As Mother testified in February 2010, E. and Jamel barely know J. Under the circumstances, it is fortunate that E. and Jamel could be placed together, and that DCFS found an exceptional caregiver who is prepared to adopt J. despite his severe disabilities. If the children had to be separated, and if they did not develop a sibling relationship, the blame for it lies squarely on parental shoulders. The parents were responsible for the injuries that caused J. to be placed in a medical facility. As the dependency court found, Mother failed to carry her burden of showing a strong sibling relationship that outweighs the benefits of adoption.
Father’s Appeal
J. was in Father’s care at the time he suffered severe brain injuries from shaken baby syndrome. Father was denied reunification services at the disposition hearing. In certain circumstances, reunification services may be denied because they would be “fruitless.” (Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 750.) In this instance, reunification services were not ordered because Father inflicted severe physical harm on a child. (§ 361.5, subd. (b)(6); Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 851.) When reunification services are denied, the primary focus of the proceeding is to provide the children with a safe, stable permanent home in a timely manner. (Kimberly H. v. Superior Court (2000) 83 Cal.App.4th 67, 72.)
Father objects to the termination of his parental rights to E. and Jamel (but not to J.). Given the history of this case, Father had a long way to go to establish that the children would benefit from continuing their relationship with him. At the outset, there were Father’s feeble and conflicting excuses for J.’s injuries—maybe E. jumped on J.’s head; maybe E. hit J. in the head with a cell phone, maybe J.’s head struck a bunk bed when Father stood up with the baby on his shoulder, maybe Father stood up and dropped J. head first onto the floor because he forgot that the baby was in his lap during a diaper change. “Maybe, ” indeed; however, the emergency room physician ascribed J.’s injuries to repeated, deliberate trauma, specifically shaking. It hardly helps to know that in November 2009, Father pleaded no contest to committing a battery on Mother.
When reunification services are denied to a parent who by act or omission inflicts severe physical harm on a child, there is an inherent and “very real concern for the risk of recidivism by the parent despite reunification efforts.” (Deborah S. v. Superior Court, supra, 43 Cal.App.4th at p. 751.) Father has made no showing whatsoever that he has addressed his violent behavior through counseling or parenting classes. Father’s attack on Mother during this dependency proceeding indicates that Father’s tendency to commit domestic violence remains unaddressed and unresolved.
Apart from Father’s violence against J. and Mother, the record also shows that E. and Jamel were neglected while in parental custody. When detained, E. and Jamel had developmental delays, which are typical of neglected children deprived of stimulus and attention. E. did not seem attached to Father. Jamel seemed impaired, his eyes were glazed and he was uninterested in engaging with others or his environment. Thus, the children did not thrive while Father had custody of them.
Father’s cordial visits with his children, in a monitored setting, give no insight into Father’s ability to parent his children in a safe and appropriate manner. Like Mother, Father never advanced beyond monitored visitation, so it is difficult for him to show that the children would be greatly harmed by termination of his parental rights. (In re Casey D., supra, 70 Cal.App.4th at p. 51.) The children have spent very little of their lives with Father. They were removed from his custody at a tender age; since then, they have seen Father once a week for two hours. This is, at most, a pleasant but not parental relationship. Absent any evidence that the children would suffer great harm, or that Father has any interest in seeking counseling for his violent tendencies, the court did not err by terminating Father’s parental rights. As things now stand, Father would never be allowed to see the children without a monitor present.
CONCLUSION
The trial court’s order terminating parental rights is supported by substantial evidence and must be upheld. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) Balancing Mother’s and Father’s friendly—but not parental—relationship with the children against the security of a permanent home, it is clear that the legislative preference for adoption applies here. Adoption will provide the children with permanency, stability and security, and continued foster care or a legal guardianship is not equivalent to the stability of a permanent home. (See In re Lukas B. (2000) 79 Cal.App.4th 1145, 1156; Jones T. v. Superior Court (1989) 215 Cal.App.3d 240, 249-251.)
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, J., ASHMANN-GERST, J.