Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County No. 08CEJ300100, Jane Cardoza, Judge.
Mary R. Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin B. Briggs, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Vartabedian, A.P.J., Wiseman, J. and Levy, J.
F.N. (mother) appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her daughters, one-year-old M. and five-year-old K. She contends the court erred by effectively vacating a previous order it made for a bonding study and by rejecting her claim that termination would be detrimental. On review, we affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In or around April 2008, then four-month-old M. suffered multiple rib and bone fractures. Her injuries were in different stages of healing. Mother had no reasonable explanation as to how M. sustained her injuries. Meanwhile, an April 2008 examination of then four-and-a-half-year-old K. revealed she had suffered a physical injury, not limited to a rib fracture. These discoveries led respondent Fresno County Department of Children and Family Services (department) to detain M. and K. from mother’s custody and initiate the underlying dependency proceedings.
Subsequent medical evidence disclosed M. suffered other injuries, including a subdural hematoma.
The Fresno County Superior Court subsequently determined the children came within its dependency jurisdiction under section 300. The court specifically found: M. and K. had suffered severe physical abuse inflicted nonaccidentally while in mother’s charge (§ 300, subd. (a)); M. and K. had suffered their injuries while in a half-sibling’s care and mother failed to adequately protect M. and K. from that half-sibling (§ 300, subd. (b)); and M. and K.’s alleged father had left them without provision for their care (§ 300, subd. (g)).
At an October 2008 dispositional hearing, the court adjudged M. and K. dependent children and removed them from parental custody. The court also ordered no reunification services for the children’s parents. In particular, the court denied mother reunification services due to the severe physical harm inflicted on M. and because it would not benefit either M. or K. to pursue reunification services with mother. (§ 361.5, subd. (b)(6).)
In turn, the department asked the court to set a section 366.26 hearing to select and implement a permanent plan for each child, while mother’s counsel requested a bonding study. The department’s case manager at the time had testified she observed a bond between mother and the children during mother’s supervised visits. The department did not object to the bonding study request. It did ask the court to include M. and K.’s foster parents in the study.
The court set a February 2009 section 366.26 hearing and ordered a bonding study in which M., K., mother, and each child’s foster parents would participate. The court further ordered a January 2009 interim review hearing for an update as to the time and date of the bonding study.
At the January interim review, the department’s court officer reported the case had been referred for a bonding study and the family was number four on the waiting list. The court responded by inquiring whether mother currently had supervised visits. Informed that was its order, the court directed the department’s assessment worker to supervise mother’s visits.
Prior to the original section 366.26 hearing date, the department’s assessment worker, Susan Quezada, submitted a “366.26 WIC Report” to the court recommending the court find M. and K. adoptable and order termination of parental rights. Much of the report focused on the children’s likelihood of adoption which was and is undisputed.
The report also asked the court to vacate its bonding study order. Quezada explained she had been supervising mother’s once-a-week, one hour visits with the children. Quezada later described in the report two visits she had supervised. In Quezada’s professional opinion, there was no significant bond between mother and the children. Quezada reached her opinion based on her assessment of both mother’s and the foster parents’ ability to provide structure, nurturing, challenge and engagement to the children.
At the February 2009 section 366.26 hearing, the department submitted its case on its report. The department’s court officer also informed the court: “[t]he bonding study has not been completed. The family has recently been referred to CPI. No appointments have been scheduled[.]” The court officer added that Quezada supervised visits and was confident she could provide the court with her opinion regarding the parent/child relationship.
Mother’s counsel asked the court to set the matter for trial. Mother was not in agreement with either the department’s recommendation or Quezada’s assessment. Mother’s counsel also objected to vacating the bonding study order, noting the former case manager testified at the October 2008 hearing that there was a bond between mother and K. The alleged father’s counsel also objected to vacating the bonding study order. He further questioned Quezada’s qualifications to render an opinion.
Confirming that no date had been set for the bonding study, the court ordered Quezada to continue personally supervising mother’s visits with the children, narrate those visits and provide discovery of the narratives. The court further announced: “I won’t vacate the bonding study, but I’ll be very clear here that not having a bonding study will not be a reason for this Court to continue the contested.26.” The court then set a contested trial for March 2009.
At the March 2009 trial, no mention was made of the court-ordered bonding study. Rather, mother’s counsel called mother, Quezada and Lisa Reyna, the former case manager, as witnesses.
Mother described her relationship with M. and K. in the following terms. “[W]hen I go to the visits, I play with them. I try to be with them. But the times are very short that I get to visit them.” Asked if she felt she had a relationship with the children, mother replied “[y]es, because sometimes they don’t want to go. They cry.”
She did not agree to adoption as the permanent plan for M. and K. because she believed a parent’s “love is more important than anybody else’s love.” Mother added it would be harmful to M. and K. to terminate parental rights because when they grew up, they would be damaged. They would not know who their parents were.
Preserving the children’s relationship with her would also benefit them in mother’s opinion. It would help them to earn better grades in school and make them “feel better.” Mother did not think any child wanted to be without or away from his or her parents. “[R]elations between a child and his parents are a lot stronger than they would be with any other person[.]” Also, “a mother and her daughter have a really good relationship on talking one with the other especially when they get into adolescence.”
Quezada, the assessment worker, testified she had both a bachelor’s degree and a master’s degree in social work. Asked if she had any special training in assessing the strength of parent/child bonds, Quezada mentioned different college classes in child development, child psychology, and child welfare. She also attended several on-the-job trainings. Quezada admitted she had no training that was specific to the four areas - structure, nurturing, challenge and engagement - she looked at in reaching her opinion about a parent/child bond.
Quezada observed mother with the children three times; two of those visits occurred before she wrote her February 2009 report. During those observations, K. would greet mother with hugs and kisses. When mother failed to attend one visit in February, K. cried and asked for her mother. The child also indicated she wanted to see her mother. Quezada was aware that earlier in the case K. stated she wanted to reunify with her mother.
Asked “wouldn’t that be indicative to you there is a bond between [mother] and K[.],” Quezada replied as follows.
“K[.] is aware of her visits with her mother because of foster parent has other children in the home, so she knows those kids visit with their mom and she asked when do I visit with mine. [Mother] has missed several visits and that was the first time I ever seen K[.] cry for [mother], and its because she’s told she’s coming downtown to visit with mom.”
Lisa Reyna was the case manager for M. and K. starting in August 2008 and until the case was transferred to Quezada. In her capacity as case manager, Reyna also observed three visits between mother and the children. It appeared during those visits that the children had a good relationship with mother. At the March 2009 trial, Reyna confirmed she had previously testified at the October 2008 hearing that there was a bond between the children and mother.
During the visits Reyna observed, mother interacted with the children, played with them, and showed them some affection with hugs at the beginning and after each visit. Most of the time, K. would play independently and run up to mother to show her what she (the child) was doing. Mother usually sat holding M. Mother did not get on the floor with K. or play with her. Mother would acknowledge K. when she approached mother to show her different toys.
Mother assumed the role of the adult during the visits. She took pictures, held the baby and showed affection. Reyna had no concerns about mother’s ability to interact or respond to the children’s needs or cues. Mother did bring snacks for K. M. was unable to eat at the time because she was using a G-tube.
In closing argument, mother’s counsel argued mother had a special relationship with the children, the relationship between a mother and a daughter as she had testified. Mother asked the court to find her relationship with the children outweighed the benefits of an adoptive home (§ 366.26, subd. (c)(1)(B)(i)) and order a permanent plan other than adoption for the children. The alleged father’s attorney joined in the mother’s argument and separately raised a notice issue.
The court continued the matter in progress for a further hearing on the notice issue. This eventually led to two additional hearings. There was no mention made of the bonding study at either of those hearings.
Finally, in late April 2009, with the notice issue resolved and no further argument offered by any of the attorneys, the court found the children adoptable and terminated parental rights. After the court announced “[t]hat’s all for today,” county counsel on behalf of the department asked the court to vacate the bonding study order. The court replied “[s]o ordered.”
DISCUSSION
I.
Mother contends the court effectively vacated its order for a bonding study when, at the February 2009 hearing, it announced “not having a bonding study will not be a reason for this Court to continue the contested.26 [hearing].” With this as her premise, she argues on alternative grounds that the court abused its discretion by vacating the bonding study.
First, she claims the court vacated its bonding study order because it impliedly ruled the department could not arrange for a completed bonding study in time for the contested hearing in March 2009. Mother argues, however, there was no evidence to support such a finding. Second, she assumes the court impliedly found the bonding study was no longer necessary because Quezada could provide her observations and her opinion, which would suffice as a substitute for a bonding study on the question of whether the children had a beneficial relationship with mother. Mother asserts such a rationale was not supported by the record and in fact was contradicted by the record. Third, mother urges that the facts in this case established a bonding study was particularly needed to resolve whether termination would be detrimental.
In mother’s view, the court permitted the department to forego the bonding study for “rather scant and ‘hollow’ reasons.” The court therefore abused its discretion and deprived itself of evidence needed to determine whether termination would harm, rather than benefit, the children so that reversal is required.
Mother’s extensive argument is fatally flawed. This is because her premise is unfounded. The court did not vacate its bonding study order at the February 2009 hearing. Indeed, the court specifically stated it was not vacating its earlier order. Mother’s assumptions about what the court impliedly ruled or found consequently lead to little more than strawman arguments. In essence, mother’s argument depends on suspending the fundamental rule of appellate review, namely that we draw all legitimate inferences from the record to uphold the decision, if possible. (In re Laura F. (1983) 33 Cal.3d 826, 833.) The legitimate inference to be drawn on this record is the court did not abuse its discretion because it did not vacate its bonding order at the February 2009 hearing. What happened after the February 2009 hearing -- regarding the bonding study -- is anyone’s guess given the silent record. That does not mean, however, the court should be charged with having wrongfully vacated its bonding study order. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [it is appellant’s burden to affirmatively show error on the record].)
We assume the court realized that it would be error to grant the department’s request. The department did not properly petition under section 388 to modify the court’s order or, in any event, establish there were changed circumstances that warranted vacating the bonding study order and to do so would be in the children’s best interests. (See In re S.R. (2009) 173 Cal.App.4th 864, 870-871.) Although the bonding study order was an exercise of the court’s discretion to appoint an expert (Evid. Code, § 730), the court’s authority to change, modify or set aside any of its orders, discretionary or not, remains subject to the procedural requirements of notice and a proper petition. (In re S.R., supra, 173 Cal.App.4th at p. 870.)
The court did eventually vacate its bonding study order, but did so only after it terminated parental rights. At that point, its prior order was superfluous.
II.
Mother also challenges the court’s implicit rejection of her argument that termination would be detrimental to M. and K. due to the relationship they shared with her (§ 366.26, subd. (c)(1)(B)(i)). She presumes the court relied on Quezada’s visitation narratives and opinion -- that mother had an insignificant bond with the children -- because the court did not articulate the factors it considered in arriving at its decision. Mother in turn disputes Quezada’s analysis.
According to mother, Quezada wrongfully compared mother’s relationship with the children to the foster parent’s relationship with the children. Quezada also allegedly failed to provide the court with information and opinion on how a continuing parent/child relationship would benefit the children and how the loss of that relationship would be detrimental to them. Therefore, in mother’s view, the court’s decision was based on improper factors and was not supported by substantial evidence.
Although section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) It is the parent’s burden, not the department’s, to show that termination would be detrimental under one of the statutory exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Consequently, when the court rejects a parent’s detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence, as mother argues, but whether the juvenile court abused its discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) On review of the record, we find no abuse of discretion.
Once again, mother bases her appellate argument on a faulty premise, namely her presumption that the court relied on Quezada’s visitation narratives and opinion in rejecting mother’s claim of a beneficial relationship with the children. She admits section 366.26 does not require a court to state its rationale when it is not persuaded by a parent’s detriment argument. She also acknowledges the court did not state it found Quezada’s opinion evidence persuasive. Nevertheless, mother claims because the court previously ordered Quezada to supervise mother’s visits and provide narratives of them, “it must be presumed” the court relied on Quezada’s visitation narratives and opinion in the absence of a completed bonding study.
Mother fails to cite any authority and we know of none to support her presumption. She also overlooks another fundamental rule of appellate review. The trial court’s reasoning is not a matter for this court’s review. (Davey v. Southern Pac. Co. (1897) 116 Cal. 325, 329.) It is judicial action and not judicial reasoning which is the proper subject of appellate review. (El Centro Grain Co. v. Bank of Italy, Etc. (1932) 123 Cal.App. 564, 567.)
In addition, mother incorrectly assumes the court -- by ordering the assessment worker first to supervise mother’s visits and later to narrate those visits and provide discovery of those visits -- intended the narratives to somehow serve as a substitute for a bonding study. There is nothing in the record to support such an assumption. The fact that the assessment worker was confident she could provide the court with her opinion regarding the parent/child relationship does not mean the court was likewise confident and necessarily considered that opinion. Indeed, to the extent Quezada based her opinion of no significant parent/child relationship on her so-called assessment of both mother’s and the foster parents’ ability to provide structure, nurturing, challenge, and engagement to the children, the court properly could have concluded Quezada lacked the requisite expertise to offer such an opinion given that she had no specialized training on assessing those factors. (See Evid. Code, § 720, subd. (a).)
In this case, there was evidence of consistent and happy visits. However, because contact between parent and child generally confers some benefit on a child, a parent must demonstrate more than pleasant visits or frequent and loving contact. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954.) “Interaction between natural parent and child will always confer some incidental benefit to the child.... The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) If severing the existing parental 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 parent's rights are not terminated.” (Ibid.) But for mother’s conclusory testimony that the children would suffer harm as they grew older, there was no evidence that the children would be harmed, let alone greatly harmed.
Finally, in determining whether the beneficial relationship exception applies, the court takes into account variables such as a child’s age, the portion of the child’s life spent in the parent’s custody, the positive or negative effect of interaction between the parent and child, and the child’s individualized needs. (In re Jasmine D., supra, 78 Cal.App.4th at pp. 1349-1350.) Those variables in this case did not compel a detriment finding as to either M. or K.
DISPOSITION
The order terminating parental rights is affirmed.