Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. Ct. No. CK67662, Stanley Genser, Commissioner.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Frank J. DaVanzo, Deputy County Counsel for Respondent.
CHAVEZ J.
Appellant Y.M. (mother) appeals from the juvenile court’s order terminating her parental rights over her son, Jaiden (born December 2005). Mother contends the order must be reversed because the juvenile court abused its discretion by denying her Welfare and Institutions Code section 388 petition requesting that Jaiden be returned to her custody. Mother further contends the order must be reversed because the parental exception to terminating parental rights set forth in section 366.26, subdivision (c)(1)(B)(i) applies.
All further statutory references are to the Welfare and Institutions Code.
The juvenile court did not abuse its discretion by denying mother’s section 388 petition. Mother failed to sustain her burden of establishing a change in circumstance and that granting her request for custody was in Jaiden’s best interest. Substantial evidence supports the juvenile court’s determination that the parental exception to terminating parental rights did not apply. We therefore affirm the court’s order.
BACKGROUND
1. Detention and Section 300 Petition
On April 4, 2007, the Los Angeles Department of Children and Family Services (the Department) received an emergency response referral alleging that Jaiden was at substantial risk of emotional abuse by mother and father David M. (father). Mother had been arrested on March 29, 2007, following a physical altercation with father while Jaiden was present. After she was released from custody, mother removed Jaiden from father’s residence and went to live at the home of Jaiden’s maternal grandmother. When father learned that mother had taken Jaiden, he went to the maternal grandmother’s home and was arrested while attempting to remove the child.
On April 9, 2007, the Department filed a petition pursuant to section 300, subdivisions (a) and (b) alleging that the parents’ domestic violence placed Jaiden at substantial risk of serious physical and emotional harm. The petition further alleged that father’s history of substance abuse and marijuana use, and mother’s history of emotional and mental health problems, periodically interfered with their respective abilities to provide regular care and supervision for their child.
In an interview with the Department’s social worker, mother said that although she had been arrested for domestic violence on March 29, 2007, father was the aggressor and she had simply been defending herself against him. According to mother, father became violent soon after Jaiden was born. In August 2006, she sought protection in a shelter and then obtained a restraining order against father. Mother also instituted family law proceedings and obtained primary custody of Jaiden, allowing father to have the child on weekends. Despite issuance of the restraining order, mother continued to associate with father.
Mother told the social worker she had been diagnosed as bipolar and took medication to stabilize her condition. She admitted to being hospitalized in March 2007 following an attempted suicide.
On April 9, 2007, the juvenile court ordered Jaiden detained from both parents. The court further ordered father to stay 100 yards from mother’s home and that both parents not visit with the child at the same time. Jaiden was subsequently placed with a paternal aunt and her husband.
2. Jurisdiction and Disposition of Section 300 Petition
On May 25, 2007, both parents pleaded no contest to the allegations of an amended petition stating that domestic violence between the parents, father’s substance abuse, and mother’s history of emotional and mental health problems placed Jaiden at substantial risk of physical and emotional harm. The juvenile court sustained the amended petition and ordered mother to complete a 52-week domestic violence counseling program, and to participate in individual counseling and mental health treatment, including taking her prescribed medications. The court ordered father to stay away from mother’s home and accorded both parents family reunification services and separate monitored visits.
3. Review Proceedings
By November 2007, mother had completed a parenting program and an intensive outpatient mental health program. She had enrolled in a domestic violence counseling program, and appeared to be making progress in that program. Mother was also participating in individual counseling, meeting with her psychiatrist on a monthly basis, and taking her medication. The Department recommended an additional six months of services.
In December 2007, the Department’s social worker recommended against unmonitored visits for the parents because Jaiden’s caregivers had reported that mother and father had resumed living together. At a December 3, 2007 hearing, both mother and father withdrew their separate requests to obtain unmonitored visits, but the juvenile court granted mother unmonitored visits so long as father was not present.
The Department reported in January 2008 that mother’s visits with Jaiden went well. She was attentive to him and he appeared to be content with her. On January 17, 2008, the juvenile court amended its visitation order, allowing mother to attend Head Start programs with Jaiden outside her home.
Mother’s visits with Jaiden continued to go well through April 2008. Mother had also made progress in her domestic violence program. The Department recommended that mother be allowed overnight visits with Jaiden, and in June 2008, the juvenile court accorded mother overnight weekend visits. The court terminated reunification services for father.
By July 2008, mother had completed her parenting class, and had nearly completed her domestic violence counseling program. She was attending individual therapy sessions and taking her medication. The Department recommended that Jaiden be returned to mother’s custody and that mother receive family maintenance services.
On July 9, 2008, the juvenile court placed Jaiden with mother, on the condition that she continue to meet Jaiden’s emotional and educational needs, maintain housing approved by the Department, keep the Department apprised of her address and telephone number, cooperate in receiving family maintenance services, and comply with her treatment plan.
By September 2008, mother had completed her domestic violence program. Her counselor stated that mother was now able to discuss openly the abuse she had suffered during her relationship with father. The Department recommended that mother receive an additional six months of services.
4. Section 387 Petition
On October 14, 2008, the Department filed a supplemental petition pursuant to section 387 for more restrictive placement of Jaiden. The petition alleged that mother had continued to expose Jaiden to father, in violation of the restraining order she had against father, and that she had not consistently taken her psychotropic medication.
The October 2008 detention report stated that concerned relatives had contacted the Department because mother had left Jaiden with paternal relatives for much of the week. The relatives reported that mother’s mental condition appeared to have deteriorated, and that she had resumed contact with father.
Mother attended an October 8, 2008 team decision meeting, at which she admitted allowing father to come to her home to pick up Jaiden for visits. She also admitted that she had been in telephone contact with father. Mother then disclosed an incident that had occurred two days earlier, when father physically assaulted a male companion of mother’s who had accompanied her to a laundromat. She said that Jaiden was not present during the assault, and that she did not report the incident to the police.
Mother’s domestic violence counselor, who was also present at the meeting, commented that mother had not accepted that her relationship with father was over. The counselor noted that mother was very dependent on others, particularly, the maternal grandmother. When the maternal grandmother, who is also bipolar, experienced an emotional breakdown and left the home for nine days, mother was unable to care for Jaiden and sent him to stay with paternal relatives.
Mother acknowledged that she was experiencing overwhelming stress and anxiety. She admitted drinking alcohol on the weekends, despite warnings from her physician against using alcohol while taking psychotropic medication. Mother said she wanted to resume participating in an intensive six-month mental health program and agreed that Jaiden should be cared for by relatives while she attempted to stabilize herself.
The parties agreed that Jaiden should be detained and again placed with his paternal aunt and her husband, and that mother should begin participating in an intensive mental health program and continue with individual therapy and domestic violence counseling. The juvenile court ordered Jaiden detained from mother’s custody and placed with his former caregivers, and accorded mother and father separate monitored visits.
5. Jurisdiction and Disposition of Section 387 Petition
In a November 2008 jurisdiction/disposition report, the Department reported that Jaiden was again placed with his paternal aunt and her husband, who were willing to care for Jaiden permanently if his parents were unable to reunify with him. Mother was attending a mental health services program three days a week and was taking her medication. Although mother denied seeing father, her statements were contradicted by the paternal grandfather, who said that mother and father continued to see other regularly.
On December 15, 2008, the juvenile court sustained an amended section 387 petition stating that Jaiden was at risk of physical and emotional harm because mother continued to have frequent contact with father in violation of the restraining order against him and because she did not consistently take the psychotropic medication prescribed by her doctor. The court accorded mother monitored visits and gave the Department discretion to liberalize the visits. The court ordered mother to continue seeing her psychiatrist and to continue taking her medication and set the matter for a further review hearing.
6. Further Review Proceedings
In February 2009, mother told the Department social worker that she intended to marry her new boyfriend and that she had informed father of her plan to do so. After the social worker expressed concerns about mother’s contact with father, mother obtained a new cellular telephone number and ceased having contact with father for several months.
Mother married in February 2009 and moved in with her new husband and his two children. She completed a 12-week parenting class. Mother’s therapist reported that she had made progress in her treatment goals, and her psychiatrist confirmed that mother regularly attended her appointments and took her medication.
Mother’s visits with Jaiden had become sporadic, and she had missed 20 of 52 scheduled visits during the reporting period. In addition, the Department’s social worker expressed concerns about the quality of mother’s visits. Mother did not interact much with Jaiden during the visits and spent much of the time text messaging instead. Jaiden’s caregivers reported that the child did not want to attend the visits and referred to mother as a monster. The social worker observed that although Jaiden was hesitant at the outset of the visits, he eventually calmed down and enjoyed himself. The social worker noted, however, that there did not appear to be a strong bond between Jaiden and mother.
On June 19, 2009, the juvenile court terminated reunification services and accorded mother weekly monitored visits in a neutral setting, such as a park, as well as unmonitored weekend visits. The court then set the matter for a section 366.26 hearing.
7. Section 388 Petition and Section 366.26 Proceedings
Mother filed a section 388 petition on October 14, 2009, requesting that Jaiden be returned to her custody because he was bonded to her, she was able to meet his needs, and she had complied with her court ordered case plan. Mother’s petition was supported by her own declaration, in which she described her visits with Jaiden, his attachment to her, and his reluctance to return to his caregivers when the visits ended.
In its October 2009 section 366.26 report, the Department reported that father had appeared during a monitored visit between mother and Jaiden at a public park on September 16, 2009, and became verbally abusive when he was asked to leave. The Department’s social worker expressed concern that father had known about the date, time, and location of mother’s scheduled visit and changed the location of mother’s future monitored visits to the Department’s offices. Following the change in venue, father left threatening voice messages for the social worker.
Both the social worker and Jaiden’s caregivers expressed concerns about Jaiden’s unmonitored visits with mother. The caregivers observed that a male companion accompanied mother when she arrived to pick up Jaiden and that the child returned from the visits hungry and thirsty. On September 1, 2009, the caregivers reported that Jaiden initially refused to get into the car to drive to the visit with mother. The child cried en route to the visit and then fell asleep. Thereafter, the social worker observed some of the visits and noted that there was very little communication between Jaiden and mother.
In November 2009, the Department reported that Jaiden’s caregivers had an approved home study. The caregivers were looking forward to adopting Jaiden. Jaiden, in turn, was well adjusted in his placement, emotionally stable, and bonded to his caregivers.
The hearing on mother’s section 388 petition commenced on December 8, 2009. Mother testified that it was in Jaiden’s best interest to be returned to her care because no one could love a child as much as a mother could. She said that Jaiden ran to her at the outset of their visits and cried when the visits ended. Mother further testified that she was consistent in attending mental health therapy and in taking her medication, and that she no longer saw father. She said that she lived in a home with relatives where Jaiden could have a separate bed in her bedroom. When the hearing resumed on December 9, 2009, the juvenile court ordered the matter continued until an Evidence Code section 730 evaluation of Jaiden’s relationship with mother and with his caregivers could be completed. Because the expert appointed to undertake the evaluation was unavailable until the second half of 2010, the court reset the hearing on mother’s petition to June 4, 2010.
On May 5, 2010, the Department filed an ex parte application seeking to restrict mother to monitored visits pending an investigation into an allegation that Jaiden had been sexually abused. The caregivers had reported that on several occasions during the preceding six months, Jaiden had returned from unmonitored visits holding his penis and complaining of pain and discomfort. The caregivers observed redness on the child’s penis but had not reported the condition sooner because they were afraid that the Department would not believe them. A therapist came to question Jaiden, who used toy figurines to demonstrate how a male friend of mother’s named Josh had positioned himself on top of the child. Jaiden then described in his own words how Josh had masturbated in his presence. The juvenile court restricted mother’s visits to a monitored setting and ordered a forensic examination for Jaiden.
Jaiden underwent two separate rounds of forensic interviews and a physical abuse sexual examination. When the examination showed no signs of physical abuse, and the child did not verbally disclose any sexual abuse, the juvenile court reinstated mother’s unmonitored visitation schedule.
The Evidence Code section 730 evaluation of Jaiden, mother, and Jaiden’s caregivers was conducted by Dr. Alfredo Crespo in July 2010. After interviewing the caregivers, Jaiden, and mother, and observing mother’s interactions with Jaiden, Dr. Crespo concluded that Jaiden was stable and thriving in the home of his caregivers and that the child had, at best, a “visiting relationship” with his mother. Dr. Crespo further concluded that Jaiden was at risk of experiencing separation distress if he were removed from the stable home environment where he has been placed for most of his life and returned to mother’s care.
A combined hearing under section 366.26 and on mother’s section 388 petition commenced on August 27, 2010. Dr. Crespo testified regarding his evaluation of mother and Jaiden. He said that it took approximately an hour and half to interview mother and that he had observed mother interacting with Jaiden for approximately 20 minutes. Mother testified that she visited regularly with Jaiden and had cancelled only one visit over the past 18 months. She described the visits and said that Jaiden ran to her at the outset of each visit and was excited and happy to see her. Mother further testified that she regularly attended mental health therapy and was consistent in taking her medication. She denied knowing anyone named Josh.
Mother’s counsel argued that mother had established a change of circumstances, that Dr. Crespo’s evaluation did not accurately reflect mother’s relationship with Jaiden, and that it was in Jaiden’s best interests to be with mother and his maternal relatives. Jaiden’s counsel argued against termination of parental rights and advocated for a plan of legal guardianship, in part because she believed Jaiden’s caretakers had fabricated allegations of sexual abuse. The juvenile court initially denied mother’s section 388 petition, but then took the matter under submission.
The case reconvened on September 17, 2010, and the juvenile court denied mother’s section 388 petition. The court found that there was no evidence that mother had made progress to stabilize her life such that she could safely parent Jaiden “seven days a week, 24 hours a day.” The court found that Jaiden’s caretakers met his needs and brought him stability and that any plan short of adoption would destabilize the child’s life by allowing the parents to intervene in the relationship between Jaiden and his caregivers. The juvenile court found by clear and convincing evidence that Jaiden was adoptable and terminated parental rights. This appeal followed.
DISCUSSION
I. Section 388 Petition
Section 388 provides in relevant part: “Any parent... [of] a child who is a dependent child of the juvenile court... may, upon grounds of change of circumstance or new evidence, petition the court... to change, modify, or set aside any order of court previously made.” To obtain the requested modification, the parent must demonstrate both a change of circumstances or new evidence, and that the proposed change is in the best interests of the child. (§ 388; Cal. Rules of Court, rule 5.570(a), (e); In re Casey D. (1999) 70 Cal.App.4th 38, 47.) “[T]he change of circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged prior order.” (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485.)
The parent bears the burden of proving the requested modification should be granted. (Cal. Rules of Court, rule 5.570(i); In re Stephanie M. (1994) 7 Cal.4th 295, 317.) A juvenile court’s determination on a petition brought under section 388 is reviewed under the abuse of discretion standard. (Stephanie M., supra, at p. 318.)
Mother failed to meet her burden of demonstrating a change in circumstance. Here, domestic violence and the lack of a stable home were problems that led to Jaiden’s removal from mother’s care. Although mother had obtained a restraining order against father, she did not enforce the order, and continued to expose Jaiden to father through at least October 2008. Thereafter, mother remained in contact with father. The month before mother filed her section 388 petition father inexplicably appeared during mother’s scheduled visit with Jaiden at a public park and became verbally abusive when he was asked to leave.
Mother failed to establish that she had achieved stability in her life. She changed residences frequently throughout the case, residing in the home of Jaiden’s paternal grandparents; in a shelter; in the home of Jaiden’s maternal grandmother; in the home of a new husband, whom mother subsequently left; and, at the time of the hearing on her section 388 petition, in the home of Jaiden’s maternal great-grandmother. When Jaiden was returned to mother’s custody after his initial detention, mother began using alcohol with her psychotropic medications, suffered an emotional breakdown, and left Jaiden with paternal relatives for much of the time. After Jaiden’s second detention, mother remarried and her visits with Jaiden became sporadic. During the period preceding termination of mother’s reunification services, she missed 20 out of 52 visits.
Although mother’s visits with Jaiden subsequently became more consistent, mother failed to demonstrate that returning Jaiden to her custody is in the child’s best interest. At the time of the hearing on mother’s section 388 petition, Jaiden had been placed with his caregivers for most of his life and was strongly bonded to them. The caregivers provided Jaiden with a stable home and demonstrated their ability to meet his needs on a daily basis. Mother, on the other hand, appeared to share little or no bond with Jaiden. Her relationship with him was that of a friendly visitor.
In light of mother’s mental health and domestic violence issues, the lack of stability in her life, and her relatively attenuated relationship with Jaiden in comparison to the child’s relationship with his caregivers, the denial of mother’s section 388 petition was not an abuse of discretion. (In re Kimberly F. (1997)56 Cal.App.4th 519, 530-532.)
II. Termination of Parental Rights
Section 366.26, subdivision (c)(1), provides for the termination of parental rights if family reunification services have been terminated and the juvenile court finds by clear and convincing evidence that the child is likely to be adopted. Once reunification services have been terminated, “‘[f]amily preservation ceases to be of overriding concern... the focus shifts from the parent’s interest in reunification to the child’s interest in permanency and stability. [Citations.]’” (In re Richard C. (1998) 68 Cal.App.4th 1191, 1195.) “Adoption, where possible, is the permanent plan preferred by the Legislature. [Citation.]” (In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).) Although the statutory preference is in favor of adoption, section 366.26 lists certain exceptions that may preclude termination of parental rights, if the juvenile court finds “a compelling reason for determining that termination would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) The exception relevant to the instant case provides as follows: “The parents 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 parent bears the burden of proving that this exception applies. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 952-954.) “[T]he exception 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. (2000) 78 Cal.App.4th 1339, 1348.)
For the exception to apply, the parent must have maintained regular visitation with the child, and the juvenile court must determine that the parent/child relationship “promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) A parent must establish more than merely some benefit to the child by continuing the parent child/relationship. That relationship must be “a substantial, positive emotional attachment such that the child would be greatly harmed” if the relationship were severed. (Ibid.) To overcome the benefits associated with a stable, adoptive family, the parent seeking to continue a relationship with the child must prove that severing the relationship will cause not merely some harm, but great harm to the child. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.) Factors that the juvenile court should consider when determining the applicability of the exception include “[t]he 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....” (Autumn H., supra, 27 Cal.App.4th at p. 576.)
The juvenile court’s ruling on whether an exception applies to terminating parental rights pursuant to section 366.26 is reviewed under the substantial evidence standard. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425; Autumn H., supra, 27 Cal.App.4th at p. 576.) Under this standard, an appellate court must affirm the juvenile court’s order if there is evidence that is reasonable, credible, and of solid value to support the order (In re Christina A. (1989) 213 Cal.App.3d 1073, 1080), and the evidence must be considered “in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citations.]” (Autumn H., at p. 576.)
There is ample support in the record for the juvenile court’s determination that the parental exception to terminating mother’s parental rights did not apply. Mother conceded that she appeared to have no more than a “visiting” relationship with Jaiden. The attenuated nature of mother’s relationship with Jaiden was confirmed by his caregivers, who reported that Jaiden resisted attending visits with mother, and by the Department’s social worker who found Jaiden to be well adjusted, comfortable, and more alert and responsive when with his caregivers and to have more of a friendship or sibling relationship with mother. Dr. Crespo, the court appointed independent expert, concluded that there would be no short term affect on Jaiden if he were freed for adoption, but that the child was likely to suffer distress if he were removed from his caregivers with whom he had been placed for most of his life. Substantial evidence supports the juvenile court’s determination that Jaiden’s need for stability outweighed any benefit he would derive from continuing a parent/child relationship with mother.
DISPOSITION
The order denying mother’s section 388 petition, and terminating mother’s parental rights is affirmed.
We concur: BOREN, P. J., DOI TODD J.