Opinion
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County No. CK68755, Stephen Marpet, Commissioner.
Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Senior Deputy County Counsel, for Plaintiff and Respondent.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant Samuel V.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant Angelica G.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Appellants Samuel V. (father) and Angelica G. (mother), parents of Joseph V. (Joseph), born in March 2007, appeal from orders terminating their parental rights and denying their petitions to set aside prior court orders. (Welf. & Inst. Code, §§ 366.26, subd. (b)(1), 388, subd. (a); undesignated section references are to that code.) We affirm.
FACTS
The proceedings were initiated by a petition under section 300, subdivisions (a), (b), and (e), filed June 13, 2007 by respondent Los Angeles County Department of Children and Family services (DCFS). The petition alleged that on or about June 2, 2007, Joseph had been found by medical examination to be suffering from severe head trauma, acute ischemic injury, and retinal hemorrhages, all consistent with physical abuse and being violently shaken. Appellants had provided no explanation of how the injuries occurred.
The detention report stated that appellants had taken Joseph to Children’s Hospital on June 2, after he stopped breathing for over four minutes. After professional indications of shaken baby syndrome, a DCFS social worker had placed Joseph under protective custody, while hospitalized and under life support. Father and mother, the sole caretakers, respectively denied any disposition to hurt Joseph, or having done so.
On June 13, 2007, the court ordered Joseph detained. Appellants were granted monitored visitation at the hospital, and appropriate reunification services through DCFS.
DCFS’s jurisdiction/disposition report of July 26, 2007 included statements by a nurse practitioner from Joseph’s trauma surgical team, that Joseph required a gastric tube (g-tube) to eat, his ability to see may be affected, and he would not develop normally. Joseph’s injuries as alleged in the petition also were documented. Both appellants had commenced parenting classes. DCFS, however, recommended they not receive reunification services and that Joseph proceed to guardianship or adoption.
The July 27, 2007 jurisdictional hearing was continued to September 10, 2007, for a contested hearing. Joseph had just been removed from the hospital to a foster home that had medical experience. Appellants were participating in individual counseling as well as parenting education.
In an interim report for September 10, 2007, DCFS reported that father had failed a polygraph test, administered by Los Angeles police as part of their investigation of the possibility of child abuse. Mother had completed parenting classes, and both appellants were on a waiting list for individual therapy. Mother had been visiting Joseph regularly, but father had not attended all visits. An ophthalmologist had indicated to Joseph’s caregiver that he may be blind.
DCFS’s report for the continued hearing date of October 9, 2007, stated that Joseph had been given water orally, but he did not swallow it. The foster mother reported that appellants were visiting Joseph for three hours twice weekly, and also were attending his medical visits. They were responsible, calling if they expected to be late or miss a session.
The contested adjudication-disposition hearing was further continued several times, until December 11, 2007. In the interim, Joseph had undergone several medical appointments, and one of the physicians noted that he was familiar with the foster mother, as having had five foster children with cerebral palsy. Dr. Crespo, a psychologist with whom father was enrolled in counseling, opined that father loved Joseph, and was highly motivated to comply with requirements for reunification. Dr. Crespo believed reunification services could be successfully implemented.
At the December 11 adjudication hearing, Dr. Karen Imagawa, who had attended Joseph at Children’s Hospital, opined that his symptoms were consistent with having been vigorously and violently shaken. Dr. Imagawa held this opinion to a reasonable medical certainty, and could not perceive any other reasonable medical explanation for Joseph’s history. She did not view as such a possible cause the fact that he had had multiple vaccinations shortly before requiring hospitalization. The court also received extensive medical reports and records.
Over appellants’ objections, the court sustained the petition, noting that the evidence was consistent with shaken baby syndrome, and that appellants had not provided any reasonable explanation. Disposition was continued to January 15, 2008, to permit testimony by Dr. Crespo. Mother expressed a wish to learn how to change Joseph’s g-tube, and the court directed DCFS to provide her appropriate training.
DCFS next reported that both appellants had completed 20 parenting sessions. After the disposition hearing had been continued until February 22, 2008,DCFS reported that appellants continued to visit and to attend Joseph’s doctor’s appointments. Mother participated in Joseph’s physical therapy, but father did not.
At the February 22, 2008 disposition hearing, Dr. Crespo testified he had examined and tested both appellants and that both could benefit from family reunification services, including but not limited to therapy with a licensed mental health professional, rather than the unlicensed persons they had been seeing. In his opinion, appellants were motivated to engage in such services, and could progress to avoid situations similar to the present one, even though they were still in denial about responsibility for Joseph’s injuries.
Over DCFS’s objection, the court ruled that appellants should receive reunification services, including therapy with licensed, Spanish-speaking therapists, family therapy, parenting classes for special needs children, g-tube training, and regional center programs regarding special needs children. A case plan was entered. The court set a hearing under section 366.21, subd. (f) for June 18, 2008, as well as an interim hearing regarding provision of services for March 26, and told appellants that if progress were not soon made, services would be terminated.
Appellants had arrived too late for a previously scheduled g-tube training. Whether they had been properly informed of its time was in dispute.
At the March 26 progress hearing, the court determined that both appellants were enrolled with licensed therapists, and were continuing their visitation with Joseph, for two hours twice weekly. The court directed DCFS to schedule another g-tube training, and remarked that appellants appeared to be meeting the case plan well.
For the June 18, 2008 permanency hearing, DCFS reported that Joseph had developed severe gastric reflux, for which surgery had been recommended. In addition, Joseph’s head was not growing, although his body was. As before, he could not hold his head up. He also appeared to be blind, and was receiving vision therapy at the Junior Blind Society. The social worker related that Joseph was “thriving” in foster care.
Mother was continuing with individual counseling, special needs parenting classes, and a support group for parents of special needs children. She and father had been trained regarding the g-tube and accompanying feeding pump, but the trainer recommended mother use them with a nurse, as she required repeated demonstrations and close observation. The same recommendation applied to father.
Although father was pursuing the same courses as mother, he had discontinued his individual therapy on May 2. He told the case worker that $50 per session was too much to pay, and it should be satisfactory that mother was attending her therapy. Informed that this would not resolve all case issues, father had replied that it would be up to the court to decide to give him back his son without compliance.
Mother’s therapist reported to DCFS that mother had made progress in disclosing possible causes of Joseph’s abuse. Mother had stated that father used to play with Joseph by throwing him into the air and catching him in his arms. This occurred at age two months, when Joseph was unable to support his head. Mother had considered this practice inappropriate, and had argued with father about it several times
Appellants regularly attended visitation, generally with a pastor who interpreted for them. Appellants also attended various of Joseph’s medical visits, including occupational and vision therapy. Father, however, hardly participated in the occupational therapy. According to the foster mother, during visits appellants did not take on a parental role, by asking to change Joseph’s diaper, feed or bathe him, or change his clothes. In light of Joseph’s sensitive medical condition, father’s relative noninvolvement with him, and mother’s apparent failure to comprehend his specific needs, DCFS recommended termination of reunification services and setting of a section 366.26 hearing.
At the June 18, 2008 hearing, the trial court rejected DCFS’s recommendation, and set a section 366.22 hearing for December 10, 2008. In response to appellants’ assertions that the foster mother was hindering their efforts to parent Joseph (e.g., changing, feeding), the court directed that the case worker be present at some visits to assess the matter. The court also added a third two-hour weekly visitation, to permit appellants to interact with Joseph without overlapping therapy sessions. An appearance to assess the progress of visitation was set for August 13, 2008.
Before August 13, DCFS reported that parents had attended all visits, and since the previous hearing had become more involved, participating and inquiring further. Joseph had had surgery for his reflux and was healing well. However, he was undergoing swallowing problems, with frequent choking. At the hearing, DCFS agreed to pursue supervision to facilitate appellants’ use of the g-tube. DCFS was also directed to maximize appellants’ visitation, and was given discretion to liberalize it.
DCFS’s report for December 10, 2008 characterized Joseph as “very sensitive and very fragile,” with severe developmental delays. Appellants were in full compliance with the case plan of parenting and visitation. But visitation remained twice weekly; the report did not assign responsibility for this deviation from the court’s order. Adoption personnel had stated that a prospective adoptive family had been identified.
Although mother had attended more therapy sessions than father, mother’s therapist had informed DCFS that mother had not been attending weekly, but rather only once a month for five months, owing to financial incapacity. The therapist believed mother should attend weekly, to work on “the many issues of her case,” and urged that financial aid be provided. DCFS’s recommendation was that reunification services continue.
The therapist’s phrasing caused the report to state mother had attended only once over the entire period. DCFS’s next report showed the actual dates of attendance, once or twice monthly.
At the hearing, appellants requested further visitation, and the court directed DCFS to make best efforts to accord more visitation time. DCFS having changed its recommendation of termination of reunification services, the matter was continued to January 29, 2009, for a contested section 366.22 hearing.
DCFS’s next report showed that father had been attending therapy twice a month, for the most part. Joseph’s physical therapist stated appellants were participating in that therapy but needed assistance. She volunteered that if allowed unmonitored visits, appellants would not know what to do with Joseph. The foster mother had criticized appellants, stating for example that in a warm doctor’s office they did not remove Joseph’s coat until prompted, and that once when Joseph cried, father snapped his fingers in front of Joseph’s face and began making barking noises, techniques that would not work with someone of Joseph’s diminished mental capacity. DCFS summarized that although appellants had complied with the case plan, they did not comprehend the extent of their son’s medical needs, which if not met would endanger him. There was a high likelihood for Joseph’s adoption, and DCFS again recommended termination of services and a section 366.26 hearing.
At the January 29, 2009 section 366.22 hearing, Susana Preciado, a social worker employed by the law firm representing father, testified she had attended 15 of appellants’ visits with Joseph in 2008, and that father had always acted appropriately. Ms. Preciado described Joseph’s various therapies (physical, occupational to improve oral faculties, and vision) and appellants’ participation in them. The foster mother had monitored the visits. The witness had never seen father bark or snap his fingers at Joseph. Ms. Preciado also testified to mother’s participation at the visits, including twice changing Joseph’s diaper.
The court then interjected at length that the present issue was whether or not to return Joseph to appellants, and that although the evidence showed compliance, it did not thus far indicate that appellants were capable of taking care of their severely afflicted and underdeveloped child. Ms. Preciado then stated that appellants had to ask the foster mother for permission to diaper, bathe, or change Joseph, and the foster mother did not always agree. Except for a training session, Joseph was not fed while appellants were present.
An investigator with the law office testified she had attended about seven visits, and that appellants participated in the various therapies. They also fed Joseph using the g-tube, with the training nurse observing. She had never witnessed father barking or snapping his fingers at Joseph, and on the occasion when the foster mother told appellants to remove Joseph’s coat the doctor’s office had been cool not warm.
When the hearing resumed on February 4, 2009, registered nurse Judith Quick described how she had trained appellants in feeding with the g-tube, which they competently performed. She also had apprised appellants of specific circumstances in which they should call a doctor for Joseph. Joseph’s vision therapist testified that appellants had observed and then participated in her exercise sessions with Joseph, weekly for a year. Joseph had cortical vision impairment, so that his brain did not process what he saw; the exercises enhanced his tracking. The witness testified that when either of appellants spoke to him, Joseph recognized their voices, and responded by smiling.
Occupational therapist Julie Miller testified that her role was supporting on Joseph’s movement and play skills. (Her initial assignment, regarding oral feeding, had been halted because Joseph’s swallowing was unsafe, producing aspiration.) Appellants had initially been reluctant to participate, but eventually they became more comfortable, and she taught them positioning and stretching. Nurse Quick stated that Joseph’s feeding needs probably would change in the future, and she questioned appellants’ ability fully to understand “suggestions” in this connection, and to change their positive expectations of Joseph. Presently, there was no indication that Joseph would be able to feed orally in the future.
After hearing offers of proof, the court ruled that testimony by appellants about their visitation and compliance would be redundant of that already heard. The court opined that return of Joseph to appellants would be problematic, in view of his condition and need for constant care. The court also expressed “major concern” that appellants had never expressed responsibility for causing Joseph’s injuries, even if accidentally. But paramount was appellants’ present unpreparedness to resume custody. If that changed, the court added, appellants could file a section 388 petition. The court agreed, however, to hear from mother’s therapist, and continued the hearing to February 10, 2009.
At that session, the therapist was unavailable, but the court accepted as evidence counsel’s representation that mother was pursuing the fact that Joseph’s injuries stemmed from abuse. After arguments, the court found that although appellants had partly to substantially complied with the case plan, and had “done a lot,” return of Joseph to them would pose a substantial risk to his well-being. The court terminated reunification services, and ordered a section 366.26 hearing for June 9, 2009, with visitation to continue.
The first of DCFS’s two reports for the section 366.26 hearing disclosed that Joseph’s foster parents were the prospective adoptive parents. Caregivers for children with special needs, they had several medically fragile children in their home, two already adopted. An adult daughter also assisted with the care. The second report stated that these parents did not want appellants to continue visiting with Joseph after adoption. DCFS recommended termination of parental rights, and preadoptive proceedings.
On June 9, 2009, appellants requested a contest, and announced they would file section 388 petitions. The court continued the section 366.26 hearing to July 16, and told appellants to file their petitions at least 10 days before. When informed that the foster mother had reduced visitation to once weekly for three hours, the court again ordered twice weekly for two hours each.
On June 19, 2009, father filed a petition under section 388, requesting an order placing Joseph with appellants, or alternatively reinstating reunification services and commencing unmonitored visitation leading to such placement. As changed facts or circumstances since the section 366.22 order, father cited his training and proficiency in caring for Joseph, his pursuit of therapy, and appellants’ possession of proper housing. He alleged that Joseph would benefit from living with appellants.
The petition included various documents regarding these matters. Most of the documents had previously been presented with DCFS’s reports. However, a June 8, 2009 letter from mother’s therapist reported four recent joint sessions with appellants. Father had admitted having played with Joseph inappropriately, but had denied shaking or abusing him. Mother similarly denied abuse, but she felt responsible for Joseph’s condition, because she had not known more about child vulnerabilities and had not been more assertive when father played with Joseph inappropriately. Both appellants considered their behavior irresponsible and selfish, and having resulted in great harm to Joseph. The therapist concluded that appellants had admitted some responsibility, but “Some concerns remain because they have not admitted to the physical abuse.”
On June 25, 2009, the court denied father’s petition without ordering a hearing. (See § 388, subd. (d).) The court found that the proposed change of order would not be in Joseph’s best interests, and that there had not been a change of circumstances since the prior order.
In an interim review report of July 9, 2009, DCFS informed the court that the foster mother had reached agreement with appellants for one four-hour visit per week. The report also cited statements by Joseph’s physical and occupational therapists, which DCFS had requested, regarding appellants. While reiterating appellants’ participation in the therapies, those therapists respectively commented that appellants had not demonstrated the knowledge to properly care for Joseph, or an understanding of the seriousness of his condition. The report recommended termination of parental rights, with adoption as the permanent placement plan.
Mother filed a section 388 petition on July 16, 2009, the day of the section 366.26 hearing. The petition alleged as changed circumstances mother’s substantial compliance with the court’s orders, including parental and medical education, therapy, and participation in Joseph’s therapies, which had produced proficiency in necessary parenting tasks. Mother sought the same relief as father had: return of Joseph, or services and visitation leading to it. In response to why the change would be “better for the child,” Mother alleged that “Parents are strongly bonded to the child,” who recognizes and responds to them. Moreover, mother had visited Joseph as often as permitted, and was ready to parent him. Mother attached letters, reports, and certificates, most of them previously produced, and also the June 8, 2009 therapist’s letter.
At the 366.26 hearing, the court denied mother’s petition, finding that it would not be in Joseph’s best interests and there was not a change of circumstances. The court then stated it would consider the recommendation for termination of parental rights, and the statutory exception of section 366.26, subdivision (c)(1)(B)(i) (termination detrimental to child because parents have maintained regular visitation and contact and child would benefit from continuing that relationship; hereafter subdivision (c)(1)(B)(i)).
Father then testified. He stated that Joseph could not speak, but when father addressed him, in Spanish, he would turn his head and look at father. Joseph also would grasp father’s finger, and touch cheeks with him. Appellants attended all of Joseph’s doctor’s appointments. Father had changed his work schedule to be able to attend them and all visits. He loved Joseph and wanted to take care of him. Father confirmed that had mother participated with him, and the court permitted mother to incorporate father’s testimony as to herself. In argument, father urged that the court find a sufficient parent-child relationship to order guardianship rather adoption.
Addressing the exception of subdivision (c)(1)(B)(i), the court noted that appellants had satisfied its first prong, of regular visitation and contact. But the court could not find that the relationship and its prospective benefit were strong enough to outweigh the benefits of adoption. Finding also that Joseph was likely to be adopted, the court terminated appellants’ parental rights. The court ordered DCFS to investigate the possibility of an agreement for post-adoption visitation or contact by appellants.
DISCUSSION
Appellants assert essentially identical contentions. First, they argue that the court erred and denied due process when it summarily denied, without a hearing, their respective petitions under section 388. Second, appellants contend that substantial evidence does not support the court’s findings that the “beneficial relationship” exception to termination of parental rights (subd. (c)(1)(B)(i)) did not apply in this case. We conclude that these contentions are unmeritorious.
1. Section 388 Petitions.
Appellants’ petitions under section 388 essentially requested that the court set aside its February 10, 2009 orders under section 366.22, refusing to return Joseph to appellants’ custody and terminating reunification services. Appellants sought an order of custody, or alternatively resumption of reunification services, looking toward such return. Appellants challenge the summary denials of their petitions as erroneous and violative of due process.
Section 388, subdivision (a) provides that a party may petition to change a prior order “upon grounds of change of circumstance or new evidence.” The court must order a hearing on the petition “[i]f it appears that the best interests of the child may be promoted by the proposed change of order....” (§ 388, subd. (d).) Correspondingly, the court may deny the petition ex parte if it “fails to state a change of circumstance or new evidence that may require a change of order... or, that the requested modification would promote the best interest of the child.” (Cal. Rules of Court, rule 5.570(d)(1); see In re Zachary G. (1999) 77 Cal.App.4th 799, 806-807.) This procedure comports with due process, which requires a hearing only if the petition makes such a prima facie showing. (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) Denial of a section 388 petition without a hearing is reviewed for abuse of discretion. (E.g., In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
Father’s petition did not make a prima facie showing. First, almost all of the facts and circumstances the petition alleged to be new or changed in fact preexisted the section 366.22 order that father was seeking to reverse. The court had been appraised of these facts – involving father’s training and abilities in child care and therapeutic measures – before it rendered the challenged order. They were not new or changed.
The one item of new evidence in the petition was the therapist’s letter of June 8, 2009, which reported that although father still denied shaking or abusing Joseph, he had admitted playing with the infant inappropriately, and recognized he had caused Joseph harm. This information did not, however, indicate, prima facie or otherwise, that the change of custody or restoration of services father sought would be in Joseph’s best interests. Father makes no such showing here.
The Supreme Court has recently reiterated that “Once services have been terminated, the juvenile court’s focus shifts from family reunification to the child’s permanent placement and well-being, and the burden accordingly shifts to the parent to show that a termination of parental rights is not in the child’s best interests. [Citations.] A parent may regain custody after reunification services have been terminated only by showing that changed circumstances demonstrate a return to parental custody is in the child’s best interests.” (In re Nolan W. (2009) 45 Cal.4th 1217, 1237.) However, apart from its reference to the matters that were not new or changed, father’s petition only stated as a conclusion that Joseph would benefit from living with his parents. The petition thus did not present a prima facie case under section 388, and the court did not abuse its discretion in denying father’s petition without a hearing.
The same holds true with respect to mother’s section 388 petition. In wording and in exhibits, it closely resembled father’s petition. Mother’s petition focused on her previous accomplishments, and, like father’s, it did not allege or show new facts or circumstances since the section 366.22 order, or how the requested modification might be in Joseph’s best interests. The court therefore was justified in denying it.
2. Termination of Parental Rights.
Appellants contend that the court erred in finding inapplicable the beneficial relationship exception to termination of parental rights set forth in subdivision (c)(1)(B)(i). Appellants had the burden of proving this exception applicable (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345), and we presently review under the substantial evidence test the court’s ruling that it did not apply. (E.g., In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
We agree with the trial court that the first element of the exception was satisfied, in that appellants “maintained regular visitation and contact with the child.” (Subd. (c)(1)(B)(i).) The problem is with the second predicate, that “the child would benefit from continuing the relationship.” (Ibid.) As persistently interpreted, this language requires (1) a relationship involving significant emotional attachment from child to parent, and (2) that the benefit to the child from continuing the relationship outweigh the benefit the child would gain in a permanent home with new, adoptive parents. (E.g., In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
In the present case, Joseph’s age and limited abilities necessarily made it difficult to find that he experienced the requisite level of relationship with appellants. Appellants stress, at length, the strength of their own attachment to their son. But although natural, that is not the vector of relationship that must be considered. And even giving full credit to appellants’ descriptions of how Joseph “related” to them, substantial evidence still supports the court’s implicit adverse finding with respect to the benefit of the relationship. In brief, it was proper for the court to find that the benefit to Joseph of adoption by the couple who had lived with and taken care of him since he was three months old, and who possessed experience and expertise in his serious disabilities, would outweigh the benefit he would gain from retaining his relationship with appellants. (See also In re Jose V. (1996) 50 Cal.App.4th 1792, 1798-1799 [adoption is the preferred plan, and court has no discretion to consider guardianship if exceptions under section 366.26, former subdivision (c)(1) (now subd. (c)(1)(B)) do not apply].)
In re Dakota H. (2005) 132 Cal.App.4th 212 presented an analogous situation. Dakota, an autistic child, was removed from his mother and placed in foster care at age six. His mother visited him consistently and devotedly, but when she did not progress with her reunification programs, the court terminated them and set a section 366.26 hearing. The local agency then found a prospective adoptive home, out-of-state, with a couple that had adopted two special needs children, one with autism. The prospective father was knowledgeable about autism and involved in support programs. At the hearing, one psychologist testified that Dakota seemed to have a significant attachment to his mother, but another one questioned the degree and quality of that attachment in light of the autism, and did not believe the mother would be able to meet Dakota’s special needs. The trial court terminated parental rights and referred the matter for adoption.
The Court of Appeal affirmed the trial court’s rejection of the beneficial relationship exception. The court found that mother had proven the element of visitation and contact, but not that of benefit. In view of Dakota’s exceptional needs and the excellent educational benefits the adoptive family would provide him, as well as mother’s vulnerability to misunderstanding those needs, the benefit of adoption outweighed both the benefit of a continued relationship with mother and the detriment of its severance. (In re Dakota H., supra, 132 Cal.App.4th at pp. 229-231.)
The evidence in the present case is stronger than that in In re Dakota H., supra, 132 Cal.App.4th 212. Here, Joseph’s disabilities were systemic and life-threatening. And although appellants cared deeply about Joseph, the benefit to him of their relationship with him could not readily be accounted significant. But the benefits to Joseph of remaining with the foster parents, in a secure, stable family, were palpable and strong. Those parents had already provided knowing and effective care for Joseph for most of his life. Given the severity of Joseph’s injuries and disabilities, the trial court was justified in finding that the beneficial relationship exception to termination of parental rights did not apply.
DISPOSITION
The orders under review are affirmed.
We concur: BIGELOW, P. J. RUBIN, J.