Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK74063. Stephen Marpet, Commissioner.
Cristina Gabrielidis Lechman, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Melinda White-Svec, Deputy County Counsel, for Plaintiff and Respondent.
ROTHSCHILD, J.
The mother of three dependent children appeals from orders denying her motion for additional reunification services and terminating her parental rights. We affirm.
FACTS AND PROCEEDINGS BELOW
A. Initial Dependency Proceedings on Behalf of Isabelle and Joseph
In August 2008, Susie B. (Mother) and her children, Isabelle and Joseph, came to the attention of the Department of Children and Family Services (DCFS) when four-month-old Joseph was brought by helicopter to Los Angeles Children’s Hospital, escorted by his father, David C. (Father).
Father claimed that he was bathing Joseph in the bathroom sink when the child fell backward and struck his head on the sink. Father called the paramedics when the child’s eyes rolled backward and he became quiet and nonresponsive. A DCFS worker came to the hospital to investigate the incident. The doctor who treated Joseph told the worker that Joseph was suffering from bilateral retinal hemorrhages and a subdural hematoma at his right forehead. The doctor stated that these injuries were not consistent with Father’s version of how they occurred but were consistent with shaken baby syndrome.
Mother, who had been at work, rushed to the hospital when she learned of the incident. She told the DCFS worker at the hospital that she did not believe Father had abused Joseph although she acknowledged he had a history of domestic violence and that recently he had grabbed her arm and left bruises. Later that day, in Mother’s presence, the worker and police officers inspected the family’s home and met Mother’s and Father’s other child, two-year-old Isabelle. They found the home clean and well-organized. All utilities were working. There were no signs of alcohol. The worker inspected Isabelle’s arms, torso, back, genital area, buttocks and legs. She found no visible or suspicious marks or bruises. The worker described Isabelle as “healthy and robust, ” “dressed appropriately, ” and “thriving in the care of her mother.”
Isabelle and Joseph were taken into protective custody based on Joseph’s injuries and the juvenile court found prima facie evidence to detain them. Joseph remained at Children’s Hospital and Isabelle was placed with her maternal aunt.
The DCFS filed a petition to have the children declared dependents of the court on the grounds they were suffering or at risk of suffering serious physical harm inflicted nonaccidently by a parent (Welf. & Inst. Code, § 300, subd. (a)) and suffering or at risk of suffering serious physical harm as a result of a parent’s failure to adequately protect them from harm (§ 300, subd. (b)). The petition further alleged that Joseph came within section 300, subdivision (e) because he was under the age of five and had suffered severe physical abuse by a parent or a person the parent knew or reasonably should have known was physically abusing the child and that he came within section 300, subdivision (i) because he had been subjected to an act of cruelty by his parent. Finally, the petition alleged that because Joseph had been abused or neglected there was a substantial risk that Isabelle would also be abused or neglected. (§ 300, subd. (j).)
All statutory references are to the Welfare and Institutions Code except where otherwise noted.
In December 2008, the court held a hearing on the petition. The parents submitted on the petition and by stipulation of the parties the court struck the allegations under section 300, subdivisions (i) and (j), struck the allegations of domestic violence under subdivision (b), and amended the allegations under subdivisions (a), (b) and (e) to remove references to Joseph being intentionally and “violently” shaken. The court sustained the petition as amended, including the allegation that Joseph’s injuries “would not ordinarily occur except as the result of unreasonable and neglectful acts by the child’s mother... and father.” Isabelle was placed in Mother’s home, “conditioned on the father not residing in the family home at this time.” Mother and Father were allowed monitored visits with Joseph who had been placed in foster care. Mother was awarded family reunification services consisting of participation in a DCFS-approved program for parent education and individual counseling to address issues in the case including domestic violence. The court also ordered Mother to attend all of Joseph’s medical appointments and to attend medical training classes to address Joseph’s special needs.
B. Review Hearings for Isabelle and Joseph
In January 2009, a few weeks after the adjudication hearing, a doctor evaluated Joseph for neurological damage and sent a report to the DCFS. In the report the doctor noted that during the evaluation Mother expressed the opinion that Joseph did not have a head injury or neurological damage. “This gives me great pause, ” the doctor stated, “[because] it suggests strong denial of father’s capacity to inflict harm and further suggests that [Mother] will likely not follow through on therapy.” The doctor recommended that Joseph remain in foster care for a minimum of another six months, with visits from Mother “to ascertain her ability to recognize deviations from norm and willingness to follow through on care-giving.”
The DCFS reported that during the month following the adjudication Mother visited Joseph on a regular basis twice a week. Those who monitored the visits described Mother as “appropriate with the minor.” During this same time period, Mother and Isabelle moved in with Isabelle’s maternal grandmother, aunt and uncle. Mother informed the DCFS worker that she was six months pregnant but receiving no prenatal care.
In its April 2009 status review report, DCFS stated that in January and February 2009, Father broke into Mother’s home four times. In the first break-in, Father went into the bedroom where Mother and Isabelle were sleeping and pulled Mother out of bed. As they argued, he grabbed Mother by the jaw leaving a bruise on the side of her lip. The maternal grandmother heard the argument and called the police. On the second occasion, the police arrested Father as he attempted to break into Mother’s home. In the third break-in, Father stole Mother’s cell phone and cursed at her in the presence of the children. In the fourth break-in, Father stole $1000 and a check from Mother’s purse. The police arrested Father after this break-in but released him from jail about a week later. In March 2009, the juvenile court issued a restraining order barring Father from contacting Mother and the children and from coming within 100 yards of their residence or Isabelle’s school.
At the April 2009 review hearing, the DCFS reported that Mother visited Joseph twice a week on a regular basis and attended all of Joseph’s medical appointments as the court had directed. She also participated in five counseling sessions addressing domestic violence, missing two. Her counselor stated: “‘[Mother] is cooperative and willing to work on her personal issues. She appears motivated to be a good mother for her children and to comply with all court requirements. [She] has been addressing her past childhood experiences in order to not repeat the same pattern with her own children and on [sic] the abusive behavior relationship she had with the father of her children. She appears to be making good progress in therapy.’” The DCFS also reported that prior to the December 2008 adjudication hearing Mother had enrolled in a parenting class and attended eight sessions before dropping out. Following the adjudication hearing Mother re-enrolled in the parenting classes and had attended five classes between February and March 2009. Finally, the DCFS reported that Mother was receiving family preservation services through the Boys and Girls Club which included weekly in-home counseling services and referrals to parenting and individual counseling.
In summarizing the family’s situation, the DCFS stated that “since the last review period mother has cooperated with the Department and is in compliance with court orders.” The Department’s only concerns were that Mother was pregnant and expected to give birth in April 2009 and that her current living quarters with her mother, aunt and uncle were too small to accommodate Joseph and the new baby. It recommended that until Mother obtains suitable housing, Joseph should remain in placement with unmonitored visits by Mother.
The DCFS concluded its report with the recommendation that the court find “[t]here is a substantial probability that Joseph will be returned to and safely maintained in the home of the mother prior to 10/07/09, because mother has consistently and regularly contacted and visited with Joseph, and has made significant progress in resolving problems that led to the child’s removal from the home, and she has demonstrated the capacity and ability both to complete the objectives of her treatment plan and to provide for [the] child’s safety, protection, physical and emotional well-being, and special needs.”
The court continued Mother’s reunification services, ordered that she be allowed reasonable, unmonitored visits with Joseph and scheduled the next review for October 2009.
C. Dependency Proceedings on Behalf of A. and Motion to Remove Isabelle from Mother’s Home
In April 2009, Mother gave birth to A. by the same father.
In August 2009, the DCFS removed Isabelle and A. from Mother’s home and filed a petition to have A. declared a dependent child of the court based on the injuries previously suffered by her brother, Joseph, and on the incidents of domestic violence that had occurred after Isabelle and Joseph were adjudicated wards of the court. (See discussion at pp. 4-5, above.) The DCFS also moved for an order under section 387 removing Isabelle from Mother’s home based on these new instances of domestic violence.
In its September 2009 detention report, the DCFS stated that beginning in August 2009, Father had been coming to Mother’s home on a daily basis. On at least one occasion he grabbed her face and left an inch long scratch on her jaw. The DCFS learned about Father’s presence at Mother’s home from a district attorney investigator who went to Mother’s address to attempt to subpoena Father as a witness in an unrelated matter. While the investigator was there he saw Father in the home with Mother and heard a baby crying. Mother did not report Father’s physical abuse to a DCFS worker nor did she seek a restraining order against Father. The detention report also stated that during the past three months Mother had been inconsistent in visiting Joseph and attending his medical appointments.
At the detention hearing in September 2009, the parties offered conflicting evidence as to whether Father had been staying with Mother and the children at the maternal grandmother’s home. Father claimed he had been living there for three weeks, ever since he was released from jail. The maternal grandmother testified that Father had come to the house twice in the last two weeks but he did not stay there and he did not sleep there. At the conclusion of the hearing the court ordered that Mother and maternal grandmother be allowed monitored visitation with Isabelle, Joseph and A., issued a temporary restraining order barring Father from coming within 100 feet of Mother and the children and “allow[ing] the children to be replaced back with the mother once she obtains appropriate housing at a shelter.” The court continued the matter to December 2009 for a hearing on the section 300 petition as to A. and the section 387 motion to remove Isabelle from Mother’s home.
The court later amended that order to give the DCFS discretion to allow the children to be placed with Mother once she was in a shelter.
The DCFS prepared a report in October 2009 for A.’s adjudication hearing and its motion to remove Isabelle from Mother’s home. The report contained the following additional information about events that occurred since Isabelle and Joseph were declared dependents of the court in December 2008.
In an October 2009 interview with a DCFS worker, Mother stated that she had continued to see Father after she regained custody of Isabelle and moved in with her mother, aunt and uncle. Most times Father initiated the contact by coming to her house. Mother stated that when this happened she would call the police or tell Father to leave and he would leave. Mother admitted that on two occasions she and Isabelle visited Father at a motel. Asked if she knew these visits violated the court’s restraining order Mother replied, “‘Yes, but he owed me money and I needed it.’” Mother insisted, “I wasn’t going to be there and stay with him or nothing.”
A motel manager disputed Mother’s claim that she never spent the night at the motel. The manager told a DCFS worker that the motel records showed Father, Mother and the children stayed at the motel August 24 through August 26, 2009.
Persons who monitored Mother’s visits with her children reported that during the month of September 2009, Mother repeatedly missed visits without notice and terminated visits early. According to the report, the monitors also described Mother as having “a lack of interest in visiting with her children” and noted that when she does visit “she is not engaged with the children and shows no affection or nurturing behavior.” When a DCFS worker asked Mother about her apparent disinterest in her visits with her children, Mother replied: “‘I just cannot stay focused. I have a real difficult time staying in a room with my children. I have always had that problem.... I just can’t focus for a long time and I get anxious and need to leave.’”
Counseling agencies reported to the DCFS that Mother had attended ten individual domestic violence counseling sessions, 13 parenting classes and had “met all of the goals” of the Family Preservation Program.
An interim review report prepared by the DCFS in December 2009 quoted Mother as stating that she does not feel like she has a bond with Joseph and A. because they were “‘taken from me at such a young age.’” On the other hand, Mother stated that she has a bond with Isabelle because “‘she was with me the longest.’” Joseph’s foster parent reported that when Joseph returns from visits with Mother he is emotional and clings to her and cries a lot. The foster parent described Joseph as “‘a wonderful little boy who doesn’t have a bond or relationship with his parents or siblings.’” The report also stated that between October and November 2009, Mother attended only one of Joseph’s Regional Center appointments and none of his medical appointments although she was informed of the dates and times for both.
In a January 2010 addendum to the December 2009 report, the DCFS stated that Mother claimed her inconsistency in visiting the children resulted from her enrollment in a new “work readiness program” called “LA’s Youth.” As of the date of the addendum report, the DCFS had not confirmed Mother’s enrollment and attendance at the work readiness program but the Department had changed the times of Mother’s visits to accommodate her schedule.
Mother testified at the combined adjudication and removal hearings in January 2010. She stated that four times between July and August 2009, Father came to the home she and Isabelle were sharing with her mother. She was not home the first time Father came and he was allowed to come in to retrieve his clothing. Mother was at home the other times Father came and she refused to let him into the house. On the fourth occasion, however, Father forced his way into the house and “grabbed” Mother on her face leaving marks. While Father was in the house “for about ten minutes, ” an investigator from the District Attorney’s office came by to serve papers on Father and saw him there. Mother denied that Father was living in the home. Mother admitted that on one occasion she went to meet Father at a motel, taking Isabelle with her. She testified she went there to get money from Father for the children’s diapers and only stayed “about 15 minutes.”
When asked by her attorney what plans she had “to keep the children safe from [Father], ” Mother replied that she was attending a job training program and “as soon as I get [a] job, I’ll probably be moving out, like out of the city.” Mother’s attorney then asked Mother what she had learned in her domestic violence classes “with regard to protecting [her] kids.” Mother answered: “I just know that next time something happens, just to call the cops.”
Finally, Mother testified that she completed her parenting classes and the domestic violence program and had re-enrolled in the domestic violence classes.
The court sustained the petition as to A. and declared her a dependent child of the court. The court also ordered Isabelle removed from Mother’s custody. In explaining the reasons for its rulings the court stated: “Mother may have done the programs but has absolutely not learned from those programs to protect her children. I allowed one of her children to go home on condition Father not reside with her, and as soon as Father got out of jail, the next day, she violated it....” Referring to Mother’s statement that she had learned that “next time something happens [she should] call the cops, ” the court noted: “You got in a fight with [Father]. Did you call the police? No. You just ignored it.” As to Mother’s claims that she and Father did not live together with the children at her mother’s house or a motel the court stated: “... I have absolutely no belief in anything Mother testified to here today. [¶]... [¶] I’m completely confident that Mother’s testimony was just not truthful.”
The court terminated Mother’s family reunification services, ordered monitored visitation for both parents and set a date for a permanent plan hearing for all three children.
D. May 2010 Status Review Report
A report prepared for the May 2010 status review described Mother’s monitored visits with the children. It stated that Mother “still does not appear to be making her children’s visits a priority and when she does show up, she is not engaged with them and has opted to terminate her visits early.” At the visits, her interaction with the children consisted mostly of holding A. and interacting with Joseph and Isabelle from the couch. The worker who prepared the report summarized the relationship between Mother and her children as follows: “Although Isabelle seems to recognize [Mother] as her mother, case records indicate that there is limited interaction. [Mother] is diligent when it comes to her children’s safety and meets their needs when a diaper needs to be changed or the children need to be fed; however, most of the interaction [is] between the children [and] the maternal aunt and at times, with the maternal grandmother when they come to the visits. As the months of visits have progressed, Isabelle is observed to run and greet her aunt who has been the primary person who is involved in the play and interaction. [Mother] will usually sit and hold A. while she observes her other two children.” The worker further noted that Mother had admitted to the DCFS that she did not have a bond with Joseph and A. as she does with Isabelle. Mother attributed this lack of bonding to the children have been taken away from her at a young age.
E. Mother’s Motion for Additional Reunification Services and Unmonitored Visits with Her Children and Trial Court’s Termination of Parental Rights
The court held a permanent plan hearing for the three children in November 2010. On the day of the hearing, Mother filed a modification petition under section 388 asking the court to grant her six additional months of family reunification services and to either allow her unmonitored visits with the children or return them to her. Attached to the petition was a progress report from Mother’s domestic violence program showing that she was currently enrolled in the program and had attended 10 of the last 14 sessions and a report from Mother’s parenting program stating she had attended 11 of the last 14 sessions. Mother submitted no other evidence and made no offers of proof in support of her petition.
The court summarily denied Mother’s modification petition finding that there had been no change of circumstances and that further reunification services would not be in the children’s best interests.
At the permanent plan hearing, Mother testified that she had been visiting the children once a week every week for at least an hour and more recently for an hour and a half. She said the children call her “Mommy” and like her to read to them. According to Mother, a DCFS worker told her that she could no longer attend Joseph’s medical appointments because the prospective adoptive parents did not want her to be there. She also said a DCFS worker rejected her request for two hour visits with the children. In rebuttal, the primary DCFS worker on the case denied that she told Mother she could only have one hour visits with the children and denied telling Mother that she could not attend Joseph’s medical appointments. The worker admitted, however, that the prospective adoptive parents were counseled that Mother should not attend Joseph’s medical appointments because they were “supposed to be confidential.”
A report the DCFS prepared for the permanent plan hearing stated that during the six days in September 2010 that A. was hospitalized with an ear infection Mother visited the child once. Mother also had a monitored visit with Isabelle to celebrate her 4th birthday. Mother sporadically attended her regularly scheduled visits with the children. She missed all of her visits in May 2010. She also missed four visits between July and August 2010. According to the report, the DCFS originally scheduled the visits for two hours but Mother stated she wanted one visit a week for one hour. Persons monitoring the visits reported that Mother never asked them any questions about how the children were doing.
The report also showed that Isabelle, Joseph and A. were currently living with a family that wished to adopt all three children. The prospective adoptive mother was a nurse and the father was an elementary school teacher.
The court terminated parental rights and ordered adoption as the permanent plan. In doing so, the court found that all three children were likely to be adopted by the family with whom they were currently living and that the “benefit exception” to adoption (§ 366.26, subd. (c)(1)(B)) did not apply.
Mother appeals from the orders denying her petition for modification and terminating her parental rights. Father is not a party to this appeal.
DISCUSSION
I. DENIAL OF MOTHER’S PETITION FOR ADDITIONAL FAMILY REUNIFICATION SERVICES, UNMONITORED VISITS OR RETURN OF THE CHILDREN
Section 388 allows a party to file a petition requesting the dependency court to change, modify, or set aside a previous order. The burden is on the petitioning party to make a prima facie showing of a change in circumstances or new evidence and that the proposed change would be in the child’s best interest. (In re Marilyn H. (1993) 5 Cal.4th 295, 309–310.) Here, the court found that Mother failed to show a change in circumstances relevant to reunification services and unmonitored visits and summarily denied her petition without a hearing. “We review a summary denial of a hearing on a modification petition for abuse of discretion.” (In re A.S. (2009)180 Cal.App.4th 351, 358.) “Under this standard of review we will not disturb the decision of the trial court unless the trial court exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination.” (Ibid.) We find no abuse of discretion in this case.
The allegations of a section 388 petition must be liberally construed, but conclusory claims are insufficient to require a hearing. In other words, it is not enough to plead a change of circumstances and that a new order would be in the children’s best interests. The motion requires specific descriptions of the evidence constituting the changed circumstances and showing the purported benefit to the child. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
Mother’s petition was verified by her attorney and therefore its allegation that Mother has “terminated her relationship with the father” had no evidentiary value. (Code Civ. Proc., § 446, subd. (a).) The petition did include evidence in the form of letters from two social services agencies attesting to Mother’s attendance at 10 out of 14 domestic violence classes and 11 out of 15 parenting classes. Neither agency, however, expressed a view that Mother was benefiting from the classes as opposed to just sitting through them. Moreover, Mother’s petition contained no evidence which would allow a finding of a substantial probability that the children would be returned to Mother in six months if she was afforded six more months of reunification services. The court was not required to delay the selection of a permanent home for these three children to see if Mother, who repeatedly failed to reunify with them, might be able to reunify at some future time. “Childhood does not wait for the parent to become adequate.” (In re Marilyn H., supra, 5 Cal.4th at p. 310.)
II. DENIAL OF THE BENEFICIAL RELATIONSHIP EXCEPTION
Section 366.26. subdivision (c)(1)(B)(i) provides an exception to 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.” A parent has a beneficial relationship under the statute if the relationship promotes the well-being of the child to such a degree as to outweigh the benefit the child would gain in a permanent home with adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The burden of proving that a beneficial relationship exists rests on the parent. (Id. at. p. 574.)
Mother challenges the sufficiency of the evidence supporting the court’s refusal to apply the “beneficial relationship” exception to termination of parental rights. We find no merit to her challenge.
Because the issue of the beneficial relationship exception “turns on a failure of proof at trial, ” “it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) Rather, the question for the reviewing court is “whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.’ [Citation.]” (Ibid.)
Although a factual dispute arose between Mother and the DCFS about whether Mother had requested visits of one hour or two hours, the evidence was undisputed that in the 11 months preceding the permanent planning hearing Mother’s visits with the children had been sporadic and inconsistent. (See discussion at pp. 6, 8-11, above.) Mother’s failure to maintain regular visitation with the children was a sufficient basis for not applying the exception to termination of parental rights.
Furthermore, Mother failed to show that preserving her parental rights would promote the well-being of the children to such a degree as to outweigh the benefit the children would gain in a permanent home with their prospective adoptive parents. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) To make that showing, Mother had to show that she “occupies a parental role in the life of the child.” (In re I.W., supra, 180 Cal.App.4th at p. 1527.) The evidence does not support the conclusion that Mother plays a “parental role” in the life of any of her children. Mother admitted to the DCFS that she had no bond with Joseph and A. (See discussion at pp. 8, 10, above.) The evidence showed that her visits with the three children were short, sporadic, and mostly devoid of engagement, affection and nurturing. (See discussion at p. 8, above.) Although Mother professed a bond between her and Isabelle, the trial court found otherwise and we cannot say as a matter of law that the court erred. The evidence supports a conclusion that the bond was between Isabelle and her aunt, not Isabelle and Mother. (See discussion at p. 10, above.)
An incident in September 2010, although it only involved A., illustrates Mother’s lack of engagement in her role of parent to her three children. During the four days that A. was hospitalized with a staph infection, Mother visited her one time. In contrast, the prospective adoptive father “spent every night at the hospital holding child A.’s hand until she fell asleep.”
DISPOSITION
The orders are affirmed.
We concur: MALLANO, P. J., JOHNSON, J.