Opinion
G031424.
7-17-2003
In re ETHAN C., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. G. C. and KAREN G., Defendants and Appellants.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant Karen G. Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant G. C. Benjamin P. de Mayo, County Counsel, and Mark R. Howe, Deputy County Counsel, for Plaintiff and Respondent. Marsha Faith Levine, under appointment by the Court of Appeal, for the Minor.
Karen G. (mother) appeals the termination of her parental rights to 21-month-old Ethan C. pursuant to Welfare and Institutions Code, section 366.26 (.26; all further statutory citations are to this code). She contends her declaration attached to her section 388 petition showed she was entitled to an evidentiary hearing. The juvenile court denied the petition without the requested hearing because, while mother had made general progress in her parenting ability, her petition did not indicate "a change of circumstances . . . relevant to what brought us here . . . ." In particular, she still claimed not to recognize the escalating nature of Ethans injuries as signs of abuse by his father. She also argues the court erroneously found the exception to termination of parental rights to preserve a beneficial parent-child relationship did not apply. (See .26, subd. (c)(1)(A) (hereafter subdivision (c)(1)(A)).) G. C. (father) joins mothers arguments, whereas counsel for Ethan opposes them. Neither argument has merit, and we therefore affirm the judgment of the juvenile court.
I
FACTS AND PROCEDURAL HISTORY
We recently addressed the nature of Ethans injuries and mothers involvement in an opinion denying her writ challenge to the juvenile courts order denying reunification services and setting the .26 hearing. (See Karen G. v. Superior Court (Oct. 16, 2002, G030842) [nonpub. opn.] (Karen G.).) We quote extensively from that opinion:
"Following a 911 call by Ethans father, paramedics brought the then four-month-old child to the hospital where doctors discovered a serious skull fracture, brain hemorrhaging, scattered intraretinal hemorrhages in the left eye, scleral damage to the right eye, five separate rib fractures, a fractured right upper tibia, a possible fracture of the left tibia, and a number of bruises that were not fresh. Father explained Ethans rib fractures by describing a panicked scene in which Ethan choked on his bottled milk and stopped breathing. Father immediately performed CPR on him on the couch and then ran to the kitchen with the child, placed him on the table, called 911, and attempted to perform CPR again (as he had seen on TV) by pressing on Ethans chest with all the force [he] had and with as much force as [he] could possibly muster. The 911 operator heard a child crying in the background, which father confirmed was Ethan, who was obviously breathing. The paramedics and police arrived within minutes. The paramedics did not observe Ethan to be pale or blue, as they expected him to be for lack of air. Mother indicated she believed fathers account in full and, in particular, that the attempted CPR caused a bruise on Ethans rib, even though the bruise was described as not fresh by a physician on the day of the childs hospitalization.
"When asked at the hospital what had caused Ethans skull and brain injuries, his father said at first, `No puedo explicar (I cannot explain). He then related how some three weeks before he had accidentally knocked the remote control from the top of the childs swing, hitting Ethan on his right cheek and causing a bruise. He also suggested `it might have been when I put the pacifier in his mouth, that is, a week after the swing incident, father had been sleeping on the couch and when the baby began to cry father sleepily reached over Ethans body for the pacifier without looking and inadvertently hit him in head. Father said the contact caused a bump `as big as any egg, which turned greenish along the right temple area and resulted in bruising above and below the right eye. Father and mother took Ethan to the doctor around this time and claimed they did so for treatment of this injury.
"Dr. Randell Alexander, an internationally recognized expert on Shaken Baby Syndrome, testified at the disposition hearing. He stated Ethans skull, brain, eye, and rib injuries could not have been caused by the innocuous incidents described by the parents. The skull fracture stretched around the back and both sides of Ethans head; in the doctors words it was `a huge fracture, a monstrously huge fracture, and by itself its [going] to cause some brain injury and problems. Dr. Alexander testified that there was no accidental mechanism for Ethans constellation of injuries; a car crash could conceivably cause the skull fracture, but `it wont give you the retinal hemorrhages . . . . Rather, only the repetitive motion of shaking with `a huge amount of force; [the] sort of force that if youre shaking a pillow, youd think the stuffing might fly out . . . , could account for Ethans combination of retinal and intercranial bleeding. Moreover, to cause the skull fracture, there had to have been an impact in addition to the shaking. `For instance, a child whose head is on the floor, and then you stomp on it, could cause these fractures in both these locations on the back and sides of Ethans head.
"According to Dr. Alexander, CPR, `even done by panicky parents who dont know C.P.R., would not normally cause lateral rib fractures because there has to be a combination of shaking and `squeezing forces exerted from both the front and back of the chest area. Infants ribs are so flexible that injuries to internal organs will occur before the ribs break from direct pressure applied from one direction as in CPR. And while a medical study documented one known case of `small pinpoint retinal hemorrhaging resulting from CPR on a child, Ethan suffered `scattered hemorrhages, which were significant because its not what we see with anything else[,] however remote . . . , besides shaken baby syndrome. Dr. Alexander noted Ethans chest X-ray `doesnt show lungs full of milk, so we actually know . . . this child did not get a whole lot of milk in the lungs. He opined that if Ethan stopped breathing at all, it was because the shaking was so severe as to cause brain trauma resulting in respiratory distress. The doctor concluded: `This is a very scary medical injury which has a much happier outcome than we usually run into, but nevertheless the risk of this was enormous. Any child in that environment would be in imminent risk of serious injury or death.
"The social worker initially believed reunification services would be appropriate but changed her recommendation after speaking with Ethans babysitter and one of his doctors. Mother and father did not initially tell the social worker Ethan had a caretaker they terminated just before the three-week period in which father dropped the remote control on the babys cheek, hit him in the head while reaching for the pacifier, and ultimately hospitalized him. Mother claimed she terminated the caretaker because she believed a seven or eight year old was watching Ethan, rather than the caretaker herself. Mother did not believe the caretaker abused Ethan. The caretaker informed the social worker that mother told her the baby cried a great deal at home and that father `had rubbed vapor rub in the childs eyes in order to get the baby to sleep. The caretaker said mother no longer used her services because father worked nights and was home during the day and therefore capable of caring for Ethan.
"The social worker became alarmed at the parents lack of disclosure and attempts to `alter the truth. When the social worker contacted the doctor to whom the parents said they brought Ethan for his greenish bump, the doctor said `a bump to the head/eye "was not part of the complaint," but rather the child was diagnosed with `"nasal discharge with a cough" and `"early bi-lateral reactive bronchitis." And even though father himself admitted to being `"brusco (rough)" with the child, mother `denied to the undersigned [social worker] knowing so. The worker noted, `The childs mother reported to the babysitter that the child would cry all the time, yet to the undersigned the childs mother stated that the child only cried when hungry or in need of a diaper change. The childs mother stated that she would do anything for her child, yet she continues to reside with the childs father. In view of these failings and the workers belief it was father who caused Ethans injuries, the social worker recommended reunification services not be provided to either parent.
"At the dispositional hearing, father admitted he shook the baby. He claimed he only shook Ethan with one back-and-forth motion. But his very demonstration of `once was two shakes of a stuffed animal. Father admitted mother told him `one time in the weeks preceding Ethans hospitalization `not to be so rough with him. Mother told him, `Well, it seems like youre being really rough with him. Father was twisting Ethans legs and pushing them up into his body to get him to go to the bathroom, "as my grandma taught me to do." He then acknowledged mother had told him `twice not to be so rough, including `another time when I played with my son. Father admitted to the social worker before the dispositional hearing that mother would `often say to him not to be so rough with the child. Father suggested to the social worker that, if no one else could be found to have caused Ethans injuries, he would accept responsibility for them.
"Mother did not testify, but she had previously denied to the social worker that father was ever rough with the child. A week before the dispositional hearing, after four months of therapy that focused on mothers acceptance that father had brutalized Ethan, mother told her therapist she still `"doesnt know" who hurt her son. By this time, mother was no longer living with father, but not because she believed he was a danger to Ethan. Indeed, she `did not know why they should not reside together, but . . . was under the impression if the childs father was out of the home, the child would be returned to her care. While father said Ethan used to smile a lot and acknowledged that after Ethan suffered the large bump on his head he seemed more uptight and fussier, mother continued to insist she had not observed him . . . behave in any unusual way. In denying reunification services to mother and setting the . 26 hearing, the trial court found mother had `significant complicity in Ethans injuries. Mother now pursues this writ." (Karen G., supra, (Oct. 16, 2002, G030842) at pp. 2-7.)
After we denied mothers writ challenge in Karen G., she filed a section 388 petition in the juvenile court asserting changes in her circumstances called for "family reunification services, increased visitation and/or . . . any other relief that the Court deems appropriate." In her declaration, mother stated she completed a 10-week parenting course in which she watched a video on Shaken Baby Syndrome and learned "different ways of disciplining children." She continued to study and educate herself on being a "good parent" from a parenting book she received from Orange County Social Services Agency (SSA). She attended counseling and attached her therapists evaluation to her petition. The evaluation noted generally that mother "appears to be aware of her mistakes and how to prevent them in the future," but also indicated she "was in denial, which made her progress slow." Specifically, the therapist found: "She denies being aware of the abuse prior to the incident. She said if [she] had any indication of it, she could [have] done many things to prevent it." (Italics added.) Mother stated in her declaration she realized "the only possible explanation" for Ethans injuries was that father caused them, and she believed she could "protect my son from further abuse." She only saw father "when we pass in between the visits with Ethan.
Mother consistently visited Ethan twice a week for a total of four hours, in which he "always seems happy to see me"; they played with his toys and watched television, she read to him, and "sometimes he falls asleep in my arms." She strove "to become more independent so that I can raise my son on my own." She obtained a raise at the restaurant where she worked as a shift manager, learned how to drive a stick shift automobile, rented an apartment, found a female roommate, and located nearby childcare that cost just $ 20 for the entire day.
The juvenile court found mothers declaration did not make a prima facie showing justifying an evidentiary hearing. Even accepting everything in the declaration as true, the court held the petition fell short of demonstrating reunification services, increased visitation, or other modification of prior court orders were in Ethans best interests. The court denied the petition and, at the succeeding .26 hearing, terminated mothers and fathers parental rights. Both mother and father now appeal.
II
DISCUSSION
A. Whether Mother Was Entitled to an Evidentiary Hearing on Her Section 388 Petition
Section 388 permits "any parent or other person having an interest in a child who is a dependent child of the juvenile court" to petition the court "upon grounds of change of circumstance or new evidence" for a hearing to "change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court." It rests within the sound discretion of the juvenile court "whether to provide a hearing on a petition alleging changed circumstances." (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431.) "If the petition fails to state a change of circumstance or new evidence that might require a change of order or termination of jurisdiction, the court may deny the application ex parte." (Cal. Rules of Court, rule 1432(b); see In re Jasmon O. (1994) 8 Cal.4th 398, 415, 878 P.2d 1297.) While the applicant need only make a prima facie case "supportive of a conclusion that a hearing would promote the childs best interests [citation]," the juvenile court "need not ignore an allegation which shows a hearing will not promote such interests." (In re Edward H. (1996) 43 Cal.App.4th 584, 593.)
Here, in reading the therapists report relied upon by mother and attached to her declaration, the juvenile court concluded "it just sticks out that mom denies being aware of the abuse prior to the incident, and thats contrary to my recollection of the facts and the Court of Appeals assessment of my findings." The court noted that not just any change in circumstances is sufficient but rather "a change in circumstances . . . relevant to what brought us here . . . ." (See In re Dino E. (1992) 6 Cal.App.4th 1768, 1777 [dependency process aims at "eliminating those conditions which led to the juvenile courts jurisdictional finding"].) The court continued: "And moms failure even after all this counseling and even after sitting through the hearing and hearing all the evidence, including the evidence that was presented from Dr. Alexander, her failure to acknowledge her abuse of this child which she participated in with the father, is just an overriding issue here. [P] So the court finds that mom has failed to make a prima facie showing in the declaration[], so Im going to deny an evidentiary hearing [and] deny the 388."
The court did not abuse its discretion. While mother evidenced some progress in her declaration that abuse by father was the "only possible explanation" for Ethans grievous injuries, by the time of the 388 petition the issue was not who almost killed Ethan but whether mother had gained enough insight to be able to protect him in the future. In the writ proceeding, we concluded the evidence supported dependency jurisdiction because "mother knew full well the escalating nature of injuries Ethan was suffering in fathers care . . . ," and yet she ignored the palpable threat to his safety. (Karen G., supra, (Oct. 16, 2002, G030842) at p. 7; see § 300, subd. (e) [dependency required where "the child is under the age of five and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child," italics added].)
Whereas even father recognized Ethans behavior changed after receiving a bruise on his cheek and then a bump on his head "as big as any egg" in his care, and acknowledged mother "often" told him not to be "so rough" with the child, mother flatly denied these facts. (Karen G., supra, (Oct. 16, 2002, G030842) at p. 7.) Mother knew Ethan cried a lot at home, as she told his caretaker, but refused to see the significance of his peaceful disposition outside the home and away from father. (Ibid.) She overlooked the bruises on Ethans rib and knee that were "not fresh," according to a doctor, and did not make the connection, as father implicitly did, that Ethan was in pain and hence acted "almost like he did not want to be touched." (Id. at p. 8.)
In the face of this evidence, mothers statements after months of counseling that she was not "aware of the abuse prior to the incident" and that, "if [she] had any indication of it, she could [have] done many things to prevent it" (italics added), suggested she had not learned the signs of abuse and could not protect Ethan any better than she had in the past. While she saw a video on Shaken Baby Syndrome and learned alternate means of discipline, mothers problem was not discipline but rather guarding her child from secretive assailants. She did not present prima facie evidence she could do so; instead, the evidence was quite to the contrary. Therefore, even accepting as true her laudable self-improvement and steps towards independence, the juvenile court did not abuse its discretion in denying a full hearing on her petition.
B. Whether the Beneficial Parent-Child Relationship Exception to Termination Applied
Mother contends the beneficial parent-child relationship exception to termination applies. "Section 366.26, subdivision (c)(1)(A) authorizes the juvenile court to avoid the termination of parental rights to an adoptable child if it finds a compelling reason for determining that termination would be detrimental to the child [because] . . . the parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424.) Once reunification services have proved useless, the parent bears the burden of proving that termination of parental rights will be detrimental to the child. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) Subdivision (c)(1)(A) "does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1348, italics added.)
Rather, the exception applies only if "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 re Autumn H. (1994) 27 Cal.App.4th 567, 575.) "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 parents rights are not terminated." (Ibid.) Thus, "the juvenile court must engage in a balancing test, juxtaposing the quality of the relationship and the detriment involved in terminating it against the potential benefit of an adoptive family." (In re Cliffton B., supra, 81 Cal.App.4th at pp. 424-425.) Unless substantial evidence does not support the outcome of the juvenile courts balancing test (id. at p. 425), or the court abused its discretion (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351), its conclusion will not be disturbed on appeal.
Mother did not meet her burden. While her consistent visitation satisfied the first prong of subdivision (c)(1)(A), she did not show how a tenuous relationship with her would outweigh the well-being, security, sense of belonging, and other potential benefits Ethan would gain in a permanent home if he were adopted. The court found it likely Ethan would be adopted. Mothers visits alone are not sufficient to derail termination of parental rights and selection of adoption as the childs permanent plan. (See In re Brian R. (1991) 2 Cal.App.4th 904, 924 ["pleasant . . . visits are, by themselves, insufficient to mandate a permanent plan other than adoption"].) Substantial evidence supports the courts determination that Ethans need for caretakers with the insight to protect him from the horrific abuse he suffered outweighed the detriment he might suffer in terminating mothers parental rights. The court did not abuse its discretion.
C. Whether Father May Join in Mothers Arguments
Father attempts to join in mothers arguments that the court erred in failing to grant a hearing on mothers section 388 petition and in not applying the subdivision (c)(1)(A) benefit exception. Father did not join mothers section 388 petition below and makes no suggestion on appeal how the benefit exception might apply in his favor and not mothers. Father gambles that we might reverse the termination of mothers parental rights and, if that were so, relies on California Rules of Court, rule 1463(a), which provides: "The court may not terminate the rights of only one parent under section 366.26 unless that parent is the only surviving parent, or the rights of the other parent have been terminated under [a statute other than section 366.26] . . . or the other parent has relinquished custody of the child to the welfare department . . . ." The Attorney General argues father does not have standing to join mothers arguments. We need not reach the standing issue because, as we have discussed, mothers arguments have no merit.
III
The judgment of the juvenile court is affirmed.
We Concur: OLEARY, ACTING P. J., and IKOLA, J. --------------- Notes: Minors counsel informs us that subsequent to the .26 permanency hearing Ethan was placed with his maternal grandmother, who is motivated to adopt him. The grandmother presently lives in California, but SSA is evaluating a home study of her residence in Mexico. While useful for context, this information plays no part in our decision today.