Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIJ118055, Gary Vincent, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant M.G.
Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and Appellant O.R.
Pamela J. Walls, County Counsel, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
I. INTRODUCTION
O.R. (father) and M.G. (mother) appeal from the termination of their parental rights under Welfare and Institutions Code section 366.26 as to their sons. Father and mother (parents) contend the juvenile court erred in denying their petitions under section 388. Mother further contends the juvenile court erred in failing to find that the parental benefit exception to adoption applied. We find no error, and we affirm.
All further statutory references are to the Welfare and Institutions Code.
II. FACTS AND PROCEDURAL BACKGROUND
In May 2009, the Riverside County Department of Public Social Services (Department) filed a petition under section 300, subdivisions (a), (b), (c), and (i) as to minor L.R. (born in 2001) and under section 300, subdivisions (b) and (j) as to minors O.G. (born in 2004) and Lu.R. (born in 2006). The detention report stated that Lu.R. had multiple injuries, including a burn mark on her hand, bruises and scratches on her chest, a swollen lip and cheek, a bruise on her back, and a heel mark on her toe. L.R. told the social worker that mother had inflicted the injuries—mother had twice burned L.R.’s hand on the stove, hit and scratched her chest, hit her with an extension cord, broke cups on her head, and stepped on her toe with a high-heeled shoe. L.R. said father was aware of her injuries but did not protect her, and parents never took her to a doctor for any of her injuries. O.G. stated mother hit the children with a belt, extension cord, and wire hanger, and he was afraid of mother. L.R. said that mother had threatened the children with retaliation if they told. L.R. refused to go home and reported being extremely afraid. Mother was arrested for felony child abuse.
At the detention hearing, the juvenile court found a prima facie case and ordered the children detained. The court also ordered parents to participate in parenting education and counseling, and ordered supervised visitation. The children were placed together in foster care.
In June 2009, the Department filed a jurisdictional/dispositional report. L.R. told the social worker that mother had put Lu.R.’s hand in the bathroom door and then closed the door on his finger; the foster parent noted Lu.R. had a healing injury on his finger. L.R. said that father had once hit her back with a belt, had also hit her brothers with a belt 20 times, and her parents hit each other with a belt and threw things at each other. L.R. said she did not want to visit her parents because she was afraid, and she did not want to return to their home. L.R. reported that 10 times or so mother had made her eat Lu.R.’s feces. L.R. also said mother kissed the boys on their penises and that mother had hit L.R.’s private area with a cord.
O.G. reported that mother made him and Lu.R. drink cooking oil if they did not want to eat. He stated mother hit him on his back with a belt and a hanger, and father also hit him with a belt. The foster mother reported that O.G. had been acting out sexually, and O.G. had told the foster mother that father had told him to kiss L.R.’s private area and would have Lu.R. kiss mother’s and L.R.’s private areas. O.G. said mother and the maternal grandfather kissed the boys’ penises. O.G. also did not want to return to parents’ home.
Father told the social worker he was not aware of all the abuse because he was working to provide for the family, and he wanted to do what was necessary to protect the children from abuse. Father denied any domestic violence between him and mother. Mother reported having been severely physically abused by her own mother while a child in Guatemala.
In July 2009, the Department filed a supplemental report. L.R. was scheduled to begin therapy and had asked to see her parents; she stated she was no longer afraid of them. L.R. told the foster mother that mother had hit her with a folding chair and broke her front teeth. O.G. wanted to return home “after Christmas.”
The parties submitted on jurisdiction, and the juvenile court sustained the petition, finding that L.R. came within section 300, subdivisions (a), (c), and (i), and that O.G. and Lu.R. came within section 300, subdivisions (b) and (j). At the disposition hearing, father’s attorney stated father was not the alleged perpetrator, and he had been working long hours outside the home to provide for his family. He had actively engaged himself in the case plan and was attending counseling and parenting classes. Mother was also participating in services: She had completed five parenting classes, was enrolled in anger management, and had begun counseling. She was working at the same factory with father, six days a week and 12-hour shifts. The juvenile court denied reunification services to both parents under section 361.5, subdivisions (b)(6) and (c), finding there had been severe physical harm to L.R., and services would not be in the best interests of the children. The juvenile court set the matter for a section 366.26 hearing in November 2009.
Both parents filed notices of intent to file writ petitions in July 2009 (case No. E048829). This court dismissed the case when parents did not pursue it. The record in case No. E048829 was incorporated into the record in case No. E049173, parents’ later appeal from the denial of petitions under section 388. Both records have been incorporated into the current appeal.
In late July 2009, father filed a petition under section 388, joined by mother. The petition stated parents’ participation in their case plan had been omitted from the disposition report, and the children now wished to reunify with their parents. The Department opposed the petition.
The juvenile court held a hearing on the petition and heard evidence that father had attended five therapy sessions and seven sessions of a 10-session cooperative parenting course; he was attending anger management/domestic violence classes, and mother was also participating in services. The court found there was new evidence, but it would nonetheless not be in the children’s best interests for parents to receive reunification services. The court therefore denied the petition.
As noted, parents filed an appeal from the denial of their section 388 petitions (case No. E049173). This court dismissed the appeal after their counsel filed no-issue briefs.
In October 2009, mother and father filed new section 388 petitions requesting six months of reunification services. Mother’s petition alleged she was attending a child batterer class and was making progress and gaining insight into her behavior. She also provided documentation of her completion of a 16-week domestic violence/anger management program and a 15-hour parenting class. Father’s petition alleged he had been actively involved with his case plan since June 2009, had participated in counseling and parenting classes, and had gained insight into why the children had been removed. He had not missed any visits with the children, and the children wanted to return home. He provided documentation of his completion of a 16-week anger management program and 15 hours of parenting classes. The court ordered a hearing on the petitions and ordered psychological examinations of both parents, with the therapists to “submit report addressing whether it would be in the best interest of the children for parents to receive family reunification services and to eventually reunify with the children. Also address parents[’] suitability to overcome problems that le[d] to the children’s removal from the home.”
Meanwhile, also in October 2009, the Department filed a combined section 366.36 and section 366.3 report recommending that the children remain in out-of-home placement and that adoption be their permanent plan. The children had adjusted well to their foster home, and L.R. said she never wanted to leave her foster mother. L.R., then eight years old, was talkative and sociable but was struggling in school and was attending therapy. O.G., then five years old, had a history of lying and exaggerating, and his school performance was below grade level. He was attending therapy but was shy and quiet. Lu.R., then three years old, was active and enjoyed playing with his siblings; he had no behavioral problems.
Parents had visited the children weekly since mid-July 2009. Parents were always on time and brought food for the children. During one visit in October, L.R. said she did not feel safe alone with mother and she would be happy if the visits with parents were reduced. Later in October, L.R. refused to attend a visit and said she did not want to visit anymore, although the two boys continued the visits. Parents telephoned the children every Sunday and were appropriate, but the children showed no reaction to the calls.
The Department filed an addendum report in January 2010 to respond to parents’ section 388 petitions. The children were generally doing well in their placements, but L.R. was still struggling to come up to grade level, and O.G. was having nightmares. L.R. resumed attending the weekly visits with parents, and she told the therapist she visited them only because they brought her gifts. The therapist who had been treating L.R. and O.G. reported that the children needed to be in a protective environment and were well adjusted to their foster placement. L.R. had told the therapist she did not want to be reunited with parents.
Copies of parents’ psychological evaluations by Dr. Kenneth Garett were attached to the addendum report. As to mother, Dr. Garett noted she had reported being seriously abused as a child, including her father’s beating her with a stick to the point of her suffering a broken leg at age nine, having her hair pulled, and being hit with wooden objects. Mother admitted to the abuse of L.R. and also admitted abusing O.G., and she was very repentant and sad. She denied any sexual abuse of the children. Dr. Garett’s recommendations were that it would be unwise to allow mother unsupervised time with the children or to return the children to her care, “considering the fact that [mother’s] behavior... was so notably abusive and severe that it is clear that her maternal instincts have been damaged in some significant way that she probably cannot comprehend.” Mother was of normal intelligence, but she had not attended school and was illiterate. Although Dr. Garett believed mother would benefit from psychotherapeutic services and medication for depression, “it seems inadvisable to risk [the children] returning to a situation where we all would question whether [mother] could cope on an ongoing basis.” Dr. Garett concluded that although he believed mother was “a tragic figure who is truly repentant, [she] is grossly damaged and has little interpersonal understanding of the severity of her situation to be able to cope with child rearing.”
As to father, Dr. Garett stated father had grown up in an impoverished rural area of Guatemala and had a sixth grade education. He was of normal intelligence and relatively unemotional. Dr. Garett recommended against “any more than occasional, supervised visitations.” He concluded father was “an integral part of the abuse that transpired because he did nothing to prevent it. Clearly this child had so many injuries on her body that [father’s] inability to respond, as would a protective father, shows a definite lack of paternal instinct....”
The Department filed another addendum report in March 2010. The children had been placed in a prospective adoptive home. O.G. reported that father had told him to say he wanted to go home with parents. L.R. reported that mother had whispered to her during visits to forget about what had happened in the past. L.R. did not want to visit parents anymore, because she feared they would send her back to Guatemala. L.R. had been having bad dreams. In mid-January, visitation had been reduced to once a month because the children were having nightmares about their abuse.
The prospective adoptive parents reported that the children were doing better since visitation was reduced, and they were no longer having nightmares. L.R. was still having difficulty in school, but she got along well with other children. O.G. was doing very well in school and had no behavioral problems. Lu.R. was a happy child.
The Department attached to the addendum report a very positive preliminary adoption assessment. The prospective adoptive parents were committed to the children and wanted to provide them a permanent home. L.R. and O.G. were looking forward to being adopted; Lu.R. was too young to understand the concept.
Also in March 2010, the Department filed an opposition to parents’ section 388 petitions. The Department argued that parents had not met their burdens of showing changed circumstances or the best interests of the children.
Dr. Garett sent a letter clarifying his earlier report. He stated that he believed parents were benefiting from services and that the services should be continued. He could not determine, based on a single evaluation, whether parents could ever function as effective parents, but he had grave concerns based on their history.
The court held a hearing on parents’ petitions in May 2010. Parents withdrew their petitions as to L.R. Mother testified she had taken parenting classes after the children’s removal, and she had learned things she had not known before about how to treat children, discipline them, and care for them. She was very remorseful about her treatment of the children. Mother had also attended a child batterer class, where she was learning how to control her anger. She had 42 sessions of individual therapy, and she believed she had changed in that she would never place her children in danger. She explained that she had injured L.R. because that was the way she herself had been brought up. She believed she could provide safe care for the children if they were returned to her.
Father testified that he had completed anger management classes and was continuing in individual therapy. He felt guilty for having allowed mother to beat the children. He had learned how to discipline the children correctly. Father said that if the court returned the children to him, but not to mother, mother would have to move out. As to his relationship with the children, father testified the boys called him “Daddy, ” and O.G. once tried to get into the car to go home with him.
The prospective adoptive parent testified that the children had been placed in his home in November 2009. At first, Lu.R. seemed afraid, but he was now very comfortable, active and happy. He was enrolled in preschool and was doing very well. He was accepted and loved by the prospective adoptive parent’s extended family. O.G. was a little more timid. He would be starting first grade in August. Both boys called him “Daddy” and sometimes “Papi” and hugged him often.
The juvenile court found that parents had failed to establish either changed circumstances or that modification of prior orders would be in the best interests of the children. The court therefore denied parents’ section 388 petitions.
At the section 366.26 hearing, the juvenile court found it was likely the children would be adopted and no exception to adoption applied. The court terminated parental rights.
Additional facts are set forth in the discussion of the issues.
III. DISCUSSION
A. Section 388 Petitions
Under section 388, a parent may petition the court for a change or modification of any previous order. To succeed on such a petition, the parent must (1) demonstrate a genuine change of circumstances or new evidence and (2) show that the change or modification would be in the best interests of the children. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) The juvenile court found that parents had made neither showing. The court noted that, at most, parents had shown circumstances were changing, not that they had changed, and parents had not shown that the requested modification would be in the best interests of the children.
We agree with the juvenile court’s conclusions. As noted, parents had been making progress through therapy and classes; however, the psychologist who reported to the court expressed serious reservations about whether the children could ever be successfully returned to parents. The psychologist’s conclusions alone justified the juvenile court’s ruling on the issue.
As to the best interests of the children, the juvenile court observed that providing parents more services “would necessitate the reopening of all these wounds in these children’s lives, because the only meaningful therapy that could ever be given here would have to be some type of conjoint therapy eventually. And these parents have shown they are so far from being ready to even enter that realm.” Moreover, the children were thriving in their prospective adoptive home with loving and attentive caretakers. Before January 2010, O.G. had nightmares about the abuse the children had suffered and had only recently ceased bedwetting. During one telephone conversation with father, O.G. had to be asked about five times before he would say he loved father, and father was admonished not to continue to ask the child to do so if the child was not comfortable. O.G.’s therapist reported that O.G. was confused about the abuse L.R. had suffered. We conclude the juvenile court did not err in finding that parents had failed to show that the requested modification would be in the best interests of the children.
B. Parental Benefit Exception to Adoptability
Mother asserts she maintained regular contact with O.G. and Lu.R., and the boys would benefit from continuing the relationship. Thus, she argues, the juvenile court erred in failing to find that an exception to termination of parental rights applied.
If a child cannot be returned to his parents and is adoptable, the juvenile court must select adoption as the permanent plan unless a statutory exception to the termination of parental rights applies. (§ 366.26, subd. (c); In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.) Section 366.26, subdivision (c)(1)(B)(i), often referred to as the benefit exception, provides such an exception when “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” As one court has noted, the benefit exception “may be the most unsuccessfully litigated issue in the history of law.... [I]t is almost always a loser.” (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, disapproved on other grounds by In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) The parent has the burden of showing both regular contact and benefit to the child. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343, 1345.)
We will assume for purposes of argument that mother has shown regular visitation and contact. As far as the record shows, mother participated in every opportunity offered to her for visitation and telephone contact with the children. We note, however, that visitation continued to be supervised throughout the dependency, and the children often had little desire to see parents. In addition, visitation was reduced when the children’s responses to the visitation became negative.
To carry the burden of showing a benefit to the child from continuing the relationship, mother was required to show more than “frequent and loving contact.” (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418). Rather, the parent must show that the benefit the child had from the relationship with the parent outweighed the benefit the child would gain in a permanent home with adoptive parents. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108-1109.)
Here, the children were affectionate with the prospective adoptive parents and appeared comfortable and safe in their presence. The prospective adoptive parents were prepared and able to provide the children with a safe and nurturing home. The social worker stated that O.G. had mixed feelings about his parents and sometimes asked about them, but that he wanted to stay with his current caregiver. O.G. appeared to understand the concept of adoption, said he loved the prospective adoptive parents and was looking forward to being adopted.
Under any standard of review, the record supports the juvenile court’s finding that the benefit exception to termination of parental rights did not apply. There was no evidence the children would suffer great detriment from the termination of parents’ rights (In re Dakota H. (2005) 132 Cal.App.4th 212, 229), whereas, there was a clear indication they had found an adoptive home that could provide the stability, love, and nurturing they needed.
IV. DISPOSITION
The orders appealed from are affirmed.
We concur: RAMIREZ, P.J., MCKINSTER, J.