Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County Super.Ct.No. RIJ109979. Christian F. Thierbach, Judge.
Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant Kimberly R.
Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant, Brent R.
Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Jennifer Mack, under appointment by the Court of Appeal, for Minors.
OPINION
RAMIREZ, P.J.
Introduction
Kimberly R. (Mother) and Brent R. (Father) appeal the denial of a second set of Welfare and Institutions Code section 388 petitions (388 petitions or 388s) and the findings and orders of the juvenile court terminating their parental rights to K.T. and K.R. Respondent Riverside County Department of Social Services (the Department) and counsel for K.T and K.R. urge us to affirm, which we will do.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Facts and Procedural history
This is the fifth time proceedings related to this case have been filed in this court. The facts we use here are from the records in three: E040917, section 38.1(a) writ petitions filed on May 9, 2006, and dismissed on September 6; E041950, an appeal contesting the denial of section 388 petitions filed November 2006; and E042893, the present case. Our tentative opinion affirming the trial court in case number E041950 was mailed to the parties on November 9, 2007; all have now waived oral argument and that opinion has been filed.
The case numbers of the filed actions are E040479, E040917, E041916, E042262, and E042893 (the present appeal).
We begin with a slightly abbreviated version of the facts we outlined in E041950. K.T. (born in November 2002) and K.R. (born in July 2004) are the sons, respectively, of Mother and D.A.. and Mother and Father. Both boys are developmentally delayed clients of Inland Regional Center. They were taken into protective custody by the San Bernardino County Department of Children’s Services (DCS) on March 10, 2005, after Mother decided to check herself into Arrowhead Regional Medical Center for treatment of depression. Mother had a history of multiple hospital admissions for mental illness and Father had a history of arrests for assault and spousal battery.
D.A. is not a party to this appeal and facts concerning him will be included only where necessary for clarity.
Jurisdiction
On May 5, the San Bernardino County Juvenile Court found true allegations in a second amended petition filed on April 4: that K.R. and K.T. were at risk of injury and/or abuse due to Mother’s history of mental illness and domestic violence and Father’s history of alcohol abuse and domestic violence. Regarding K.T., the court found that D.A. was not in a stable living situation and his ability to parent K.T. was unknown. (§ 300, subd. (b).) The matter was then transferred to Riverside County, where the family resided, for disposition.
Disposition
The Department filed a disposition report on June 27. The report noted that Mother and Father greatly minimized the extent of the domestic violence in the home. “The parents have not yet acknowledged the problems that led to the detention of the children, nor have they remedied those issues that pose a threat to the safety of the children.” Mother had a long record of mental illness and amphetamine use; she said that Father beat her when he was drunk. Father admitted drinking up to four quarts of alcohol per day. He explained to the social worker that they did not need any help with their children, but that Mother needed to learn to be a better wife. The social worker concluded that Father “clearly [saw] the violence [in the home] as justified and unimportant to the safety of the children.”
The report documented the many service referrals provided to the parents: drug testing, parenting classes, and anger management for Father, who was in therapy; drug testing, domestic violence counseling, and parenting classes for Mother, who was also in therapy; and drug testing, parenting classes, and individual therapy for D.A. It also documented the social worker’s disclosure that if the parents failed to reunify within six months, services would be terminated. Termination of services, in turn, could lead to termination of parental rights and to the children being adopted. All three parents said they understood these disclosures.
According to an addendum filed on August 9, Father and Mother appeared to be working diligently on their reunification plans. They had completed seven of ten scheduled parenting class sessions. Father was attending Alcoholics Anonymous (AA), anger management classes, and a 52-week batterer’s treatment program. Mother was attending domestic violence counseling and receiving services from a mental health clinic. However, her mental health counselor was concerned because Father continued to minimize the role of domestic violence in their relationship and continued to use power and control in his relationship with his wife. The social worker who supervised the weekly family visits reported that both parents had trouble relating to K.T. In response to his “out of control” behavior, Mother interacted less with him while Father antagonized the child by laughing at his temper tantrums. Father continued to deny that the children had ever been mistreated.
At a contested dispositional hearing on August 11, the court ordered the social worker to continue providing services to all three parents, but advised them that the reunification period would not exceed the statutorily permitted six months and would expire on November 7.
Section 366.21, Subdivision (e) Six-month Review
Over the next two months, according to the October 25 status review report, Father completed parenting and medically fragile training courses and was still attending AA meetings and the batterer’s program. His AA sponsor thought he was “doing great” and was convinced he was not drinking. Mother was taking medication to treat her mental illness and had also completed the parenting and medically fragile training courses. She continued to participate in domestic violence and mental health counseling. However, the psychologist who evaluated her in August reported that she denied ever having used illicit drugs in her life and said she had no marital problems and that her husband had always been good to her. The examiner felt that Mother’s inability to be open and honest during testing indicated an unfavorable prognosis.
In an addendum filed November 3, the Department requested a six-month extension of services and recommended that the court liberalize visitation to include overnight and weekend visits and authorize the social worker to return the children home without further order. The boys had been removed from their placement in a godmother’s home because she insisted on using corporal punishment to control K.T. Father objected strongly to the removal and tried to talk the case worker into leaving K.R. in the godmother’s home: “No one will hit a 16-month old, Leslie, use common sense.”
At the hearing on November 7, the court expressed concern about Father’s progress. “Your behavior when they had to remove the children from the godmother concerned me greatly. You weren’t concerned about the fact that she said she had to spank the children. . . . You argued with the social worker. You called numerous people. You know, it’s still that same sort of controlling, angry behavior that we saw at the beginning of the case. [¶] You just—I’m not convinced that you’re really benefiting from your programs. I need to believe that you’re benefiting from your programs, not just that you’re doing them.” Minors’ counsel objected to an order permitting an extended (all day) visit between the children and defendants because of continued “grave concerns” about Mother’s mental health as well as Father’s behavior. Like the court, counsel doubted whether either parent was benefiting from services. The matter was set for contest on December 19.
A December 15 addendum reported that the extended day visits were going well and recommended progression to overnights and weekends. All three parents attended the hearing on December 19. Notwithstanding the earlier concerns of minors’ counsel, the court authorized weekend visits for Mother and Father.
Things seemed to be progressing well until March 2006 when the Department reported another instance of abuse. On March 6, K.T. had returned from a weekend visit with a bruise on his ear, scratch marks on his face, and a set of fingerprint bruises on his arm. Father told the social worker different stories about when he had noticed the ear bruise. He said he was concerned about its location because of K.T.’s shunt but had not reported it earlier because he could tell from his own “medical training” that it was about six days old. Mother dismissed the injuries as the result of K.T.’s being an active little boy who got hurt all the time. She said the fingerprints on his arm were the result of Father’s having had to grab his arm to prevent his falling off an outside wall.
The physician who examined K.T. the day he returned from the visit said that the bruise on his ear was about 24 to 48 hours old and appeared to be a thumb print, as if someone had grabbed his ear. The child abuse clinic physician thought the marks on K.T.’s arm, back, face, and ear were “suspicious for inflicted injury.” The bruises on his arm and back were consistent with his having been grabbed too forcefully by fingers.
Section 366.21, Subdivision (f) 12-month Review
On April 24, 2006, the Department filed its report for the 12-month review hearing scheduled for May 8, 2006. The report acknowledged that Mother and Father had completed their case plans but concluded that they had not benefited from the services they had received. They continued to deny the recently substantiated physical abuse allegation. The Department recommended that reunification services be terminated and that a section 366.26 (366.26) selection and implementation hearing be set.
The recommendation was repeated in an addendum filed July 7. As a result of the new allegations, the parents had requested and received additional parenting, domestic violence, and counseling referrals. But Mother was denying that any domestic violence occurred and had attended only one or two domestic violence support group sessions because, she said, they conflicted with her work schedule. Her therapist remained concerned about her level of denial. Father’s new counselor reported that Father was evading him and not returning phone calls; when the counselor did make contact by phone, Father said he did not need his services and hung up. The counselor eventually closed the referral due to lack of cooperation. At the time of the addendum, Father had cancelled his first two appointments with still another counselor, but had an appointment with her later that week. Father accepted no responsibility for his actions.
At the contested 366.21(f) hearing on July 19, the Department’s reports were admitted without objection. Mother testified on her own and her husband’s behalf. She said that she had finished a domestic violence class and Father had completed an anger management class, and their relationship had improved as a result. She had also completed a parenting class and believed she had benefited from it. During weekend visits from the end of December 2005 to March 2006, she had used her newly acquired parenting skills. Regarding K.T.’s most recent injuries: the marks to his face occurred when he jumped off a chair and fell on the cement; the fingerprints on his arm were from Father’s having grabbed him to keep him from falling over a railing or wall; and she did not know how he had received the bruise to his ear. She and Father had registered to repeat the parenting class and were waiting for a call to begin.
Father did not testify, but during argument his counsel recited all the remedial classes he had finished and confirmed that he was continuing in counseling and had again enrolled in parenting class. Counsel asked the court to extend reunification another 60 days to “the 18-month statutory” limit. Mother’s attorney asked the court to either return the children home that day or extend services for two more months. Minors’ counsel agreed with the Department that services should be terminated.
The court terminated reunification services and set a contested section 366.26 selection and implementation hearing for November 16. In explaining its decision, the court pointed out that because of the children’s ages the statutory limit for reunification was actually six months with an extension to 12 months possible only if it found “substantial evidence.” The parents had already received more reunification time than was allowed. “I don’t know what more we could give these parents. Having them do stuff over again is not going to lead to any better result I think.” “We extended services an extra 10 months, 10 months for these parents in the hopes that we could place the children with them. [¶] It is clear that the children are at physical risk with them. It doesn’t really matter whether it’s physical risk from the neglect or intentional acts.”
It appears that the court was referring to section 366.21, subdivision (g)(1) which provides that services may be extended six months if the court finds a substantial probability that the child will be returned to the physical custody of the parent and safely maintained in the home within the extended period of time.
On November 1, the Department filed the 366.26 report. K.T. had been moved to a new placement on October 4 because of bruises in his diaper area that the examining physician determined were the result of child abuse. The Department had identified a prospective adoptive home for the two boys, but was asking that the selection and implementation hearing be continued for 90 days to provide for additional time to secure the placement and complete a preliminary adoption assessment. At their weekly visits the parents focused mainly on K.R. and had difficulty “redirecting” to K.T. When K.T. tried to interact with his brother, Father “redirected” him away from K.R. K.R. had no change of emotion before or after visits. K.T. appeared to enjoy them but was ready for the next activity when the visit ended. The adoptions worker was requesting that visits between the children and the biologic parents be limited to once a month during the adoption transition and be discontinued altogether once the children had been successfully placed with the adoptive family.
On November 6 and 13, pursuant to the provisions of section 388, Mother and Father each submitted a Request to Change Court Order (JV-180) form asking for a modification of the order setting the 366.26 hearing. (§ 388; Cal. Rules of Court, rule 5.570(b).) As changed circumstances, Mother’s petition stated that she was actively participating in mental health treatment and anger management and parenting programs. K.T. and K.R. would benefit from the requested change because she had benefited from services and would like an opportunity to show the court that she could effectively parent the children. Father’s petition stated that he had completed a parenting course and was participating in a mental health counseling program. K.R. would benefit from a changed order because he and Mother were working hard to remedy past problems. A stable adoptive home had not been found and the biological parents believed they were the best option for eventual placement. Attached to Father’s petition were letters documenting his and Mother’s attendance at seven and six psychotherapy sessions, respectively (with four more to go), and parenting class attendance and completion certificates. The court set the petitions for hearing on November 16, the date already scheduled for the contested selection and implementation hearing.
According to the date stamps, Mother’s petition was received by the court on November 6 and filed on November 15. Father’s was received on November 13 and filed on November 16.
On November 16, the court held the section 388 and 366.26 hearings together. The social worker was present, but neither side called her to testify. Counsel for the Department urged the court not to order additional services and reiterated its requests for a 90-day continuance of the selection and implementation hearing and a decrease in the frequency of visits. Minors’ counsel supported the Department, arguing that there had been no substantial change of circumstances and that it was not in the minors’ best interests to grant the 388 petitions. Counsel for D.A. also supported the Department’s requests. D.A. could not take K.T. himself, but was concerned about the way his child had been treated and did not believe Mother and Father had benefited from the services they had received.
Counsel for Mother and Father reiterated the information in their clients’ petitions. Mother’s attorney reviewed her completed case plan accomplishments and asserted that she had met both prongs of section 388. She was now working on her own to increase her parenting skills, she was visiting the children, and they were benefiting from visits. Mother had brought pictures of the visits to show that she had a significant bond with the children and counsel had shared them with other counsel and with the court. Counsel opposed the Department’s request for a continuance and emphasized the uncertainty of the prospective adoptive placement. The children should not be left “in limbo” when the parents were ready and willing to take care of them.
Father’s counsel joined Mother’s arguments and suggested that K.T.’s injuries during the weekend visit were not “significant.” Father too had completed a second parenting class, was still in mental health counseling, and was “working very hard.” Counsel asked the court to extend visitation and addressed the uncertainty of the prospective placement: “The parents are the only people that we know for sure love the children and want the children back in their home at this point.”
Before announcing the decision to deny the 388 petitions, the court explained its reasoning. No doubt that the parents loved their children and had worked diligently on their services, but, “[U]nfortunately we do have . . . two very special needs children. They will not be able ever to protect themselves, to be able to complain when there’s a risk of their injury. And we’ve allowed the parents to basically show us that they have not benefited from services. Doing a parenting class over again when they have already done one and not benefited will not, I think, change the result. They’ve already done that. [¶] So the Court is going to deny their [JV-]180s and find specifically that there is no change of circumstances that has been addressed by those [JV-]180s. And a ten-week parenting class will not cure the problem.”
As to the 366.26 proceedings, the court granted the Department’s requests for a 90-day continuance and reduced parental visits to once a month.
Subsequent Events
The children were placed together in the prospective adoptive home on December 19, 2006. Over the next four months, according to Department reports filed January 19, February 8, and March 19, 2007, they were thriving in their new placement. Each time the social worker visited, she found the children clean, well groomed, and appropriately dressed for their ages and the weather. Each boy had his own bedroom with age-appropriate furniture, clothes, books, and toys. The prospective adoptive mother, a 58-year old single woman, was observed to be very affectionate with the children and they appeared safe, secure, and loved by her. K.T. referred to her as “Mom.” He was attending, and loving, pre-school five mornings a week. The prospective adoptive mother had a strong church and family support system and was strongly committed to adopting the boys. Her income was “more than adequate to provide for the family” and she intended to be a full-time stay-at-home mother. She was on disability for back problems, but this did not hinder her ability to care for the children.
The parents had attended all of the once-a-month visits provided to them and had been attentive to the children during the visits. K.T. appeared hesitant to participate in the visits and wanted his caretaker (the prospective adoptive mother) to bring him home. When told he would be visiting the parents the next day, K.T. said “no.” He required reassurance by his caretaker and the adoptions worker before he would enter the visitation room, and he appeared happy to return to the caretaker after the visit. The Department recommended that visitation between the parents and the children be discontinued.
On February 9, 2007, without the aid of counsel, the parents filed a second set of JV-180 forms requesting that the placement orders be changed. The new section 388 petitions stated that the parents had twice completed the MFI parenting courses and had participated in mental health counseling “with significant remarkable progress,” that they had a “long standing residence,” and that they had stable employment. Mother had obtained health insurance. Their main focus, they said, was on the best interest of their children. On February 15, Mother and Father filed a declaration in support of the petitions and included a number of photographs of themselves interacting with the children.
Proceedings on the new 388 petitions and the contested section 366.26 selection and implementation hearing took place on April 5. As the hearing opened, Counsel for the Department opposed the requests to change the placement orders, arguing that none of the information on the petitions was new or different from the November 2006 petitions. The court agreed and, without objection or argument from any party, denied the requests.
The proceedings then moved into the section 366.26 hearing. The Department, joined by the minors and D.A., submitted on the section 366.26 reports and the adoptions assessment. The parents both testified that they loved their children. Father described their once-a-month visits with K.T. and K.R. as “wonderful” and said they had gone “extremely well.” He submitted a copy of a two-year sobriety certificate from his A.A. program. Mother said the children were “very ecstatic” to see the parents at the visits and that when a visit was over, “[K.T.] does start kind of throwing a fit because he doesn’t want to go.” Mother submitted a number of photographs of herself and Father with K.T. and K.R.
The parents’ counsel argued that they had a special bond with the children and that pursuant to the exception in section 366.26, subdivision (c)(1)(A), their parental rights should not be terminated. Counsel for K.T. and K.R. acknowledged Mother and Fathers’ love for her clients but supported the Department’s recommendation that parental rights be terminated. Counsel emphasized the children’s need for permanency and stability that made adoption the preferred permanent plan.
After receiving and considering all the evidence, the court terminated Mother and Fathers’ parental rights, finding that termination would not be detrimental to the children. “[N]one of the exceptions contained in Welfare and Institutions Code section 366.26 (c) (1) A through E are applicable in this case. [¶] I agree that the parents have not met their burden in showing that they do apply.” The next review hearing was set for August 21.
Discussion
Two of the issues the parents raise here are almost identical to those addressed in our opinion in case number E041950: what standard of review we must use in analyzing a juvenile court’s decision to deny a section 388 petition and whether the court erred in denying the parents’ 388 petitions. We explained that abuse of discretion is the correct standard of review and that the court did not abuse its discretion in denying the November 2006 section 388 petitions. Mother and Father now make similar arguments regarding the juvenile court’s denial of their most recent 388 petitions. We decline to address the standard of review issue again and will only briefly consider the denial of the new petitions. Instead we focus our attention on Mother and Fathers’ additional arguments: that the court erred by not finding a beneficial relationship exception to the termination of parental rights, and that because of their handicaps the children are not adoptable.
Section 388 Petitions
We review both a juvenile court’s decision to summarily deny a section 388 petition and a denial on the merits for abuse of discretion. (In re Aaron R. (2005) 130 Cal.App.4th 697, 705; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416.) In order to proceed by way of a full hearing on a 388 petition, a petitioner must show that there is a genuine change of circumstances or new evidence, and that revoking the previous order would be in the best interests of the children. (In re Marilyn H. (1993) 5 Cal.4th 295, 310; In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)
Here, despite Mother and Fathers’ arguments to the contrary, we cannot see that the petitions they filed in February 2007 are substantially different from those filed, and denied, in November 2006. Neither set of petitions offered new information regarding a change of circumstances such that the children would benefit from a change of placement or an order reversing the setting of a section 366.26 hearing. The new petitions merely stated that the parents had completed the classes they were taking at the time of the first petitions and that Mother had obtained health insurance through her job. None of this information demonstrated how the children’s interests would be advanced by removing them from an adoptive home where both were thriving. The court did not abuse its discretion in so finding.
Standard of Review and the Section 366.26, Subdivision (c)(1)(A) Exception
At the time of the selection and implementation hearing, “if the court [finds] that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. . . . unless the court finds a compelling reason for determining that termination would be detrimental to the child due to . . . [t]he parents [having] maintained regular visitation and contact with the child and [that] the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A).) We review the decisions of a juvenile court regarding applicability of this exception for sufficiency of the evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) This means that “ . . . we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflict in support of the order. [Citations.]” (Id. at p. 576.) In the context of the dependency scheme, benefit from continuing the relationship means that “the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (Id. at p. 575.)
Here, by April 5, 2007, the date of the termination hearing, the juvenile court had before it ample evidence that K.T. and K.R., despite their handicaps, were likely to be adopted by their prospective adoptive mother. She was aware of their physical and developmental issues but was willing to provide them with a stable family life. They had been with her for four months and by all reports were flourishing in her care. Both were showing improvements in their developmental capabilities. K.T. was attending school and doing well there as well as at home. K.R. was interacting more with his environment. The prospective adoptive mother was often observed playing with, praising, and nurturing the children. She had a strong support system and was diligent in meeting their needs and in obtaining medical care for them. Thus, unless the court found that termination would be detrimental to the children because the parents had maintained regular visitation such that the boys would benefit from continuing the relationship, it was obligated to order them placed for adoption. (§ 366.26, subd. (c)(1)(A).)
It is true that Mother and Father were visiting the children as often as they were allowed to do so. But evidence about how these visits were going and the nature of their relationship with the children was mixed. Which accounts were more credible is an issue not for us, but for the trial court. (In re Tania S. (1992) 5 Cal.App.4th 728, 733.) Mother and Father testified that the visits were wonderful and that the children enjoyed them. According to Mother, the children were “ecstatic” at the beginning of visits and K.T. acted up only when the visits ended and he had to leave. According to Father, the children were “excited and happy” to see the parents. The adoptions social worker and the caretaker reported otherwise. According to them, K.T. said “no” to visits the day before they were to occur and had to be reassured before he would willingly enter the visitation room. When Mother asked for a hug at the beginning of visits, K.T. did not give her one. K.R. sat on Mother and Fathers’ laps and crawled around during the visits, but, like K.T., left without any sign of distress. In sum, whatever the nature of the relationship between the parents and their children, there was substantial evidence that it did not outweigh the well-being the children would gain in a permanent home with their new adoptive parent.
Adoptability
“In resolving [the adoptability] issue, the court focuses on the child – whether his age, physical condition and emotional state make it difficult to find a person willing to adopt him. [Citation.]” (In re David H. (1995) 33 Cal.App.4th 368, 378; accord, In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) “Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. [Citation.]” (In re Sarah M., supra, at pp. 1649-1650.)
Here, as discussed above, there was ample evidence that K.T. and K.R. were adoptable and likely to be adopted by the prospective adoptive mother with whom they had been placed and in whose home they were thriving. Both children were indisputably handicapped, but they had obviously found a person willing to adopt them, a prospective adoptive mother who was not only “meeting their basic and special needs in a loving and assertive manner” but was also “always looking for more resources in the community to help them reach their full potential.” No more can be asked of any parent.
Disposition
The judgment is affirmed.
We concur: McKINSTER, J., RICHLI, J.