Opinion
G038760
2-22-2008
In re S.D., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. JUDITH F., Defendant and Appellant; CHRISTOPHER D., Defendant and Respondent; RICHARD H. et al., Interveners and Respondents.
Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant. Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent. Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Respondent Christopher D. Huettl, Malmsten & Associates and Lisa Peskay Malmsten for Interveners and Respondents Richard H. and Kimberly H. Nicole Williams, under appointment by the Court of Appeal, for the Minor.
NOT TO BE PUBLISHED
Judith F., the mother of three-year-old S.D., claims the juvenile court erred in granting two motions filed under Welfare and Institutions Code section 388 (all further statutory references are to the Welfare and Institutions Code) and improperly refused to apply the benefit exception set forth in section 366.26, subdivision (c)(1)(A). We find no error and affirm the orders of the juvenile court.
I
FACTS
This is the second appeal in this matter. The first appeal was filed by the maternal grandmother, Mario O. who appealed the juvenile courts order granting motions brought under section 388. We rejected all of her arguments and affirmed the orders and judgment of the juvenile court.
This appeal is filed by the mother Judith F. The father Christopher D. purports to file a respondent brief which reads like an appellate brief. Orange County Social Services Agency (SSA) and the Hs, who are de facto foster parents, filed respondent briefs. Minors counsel filed a letter brief joining the briefs filed by SSA and the Hs.
We briefly state some of the facts from our prior opinion (In re S.D. (Jan. 2, 2008, G038562) [nonpub. opn.].)
"S.D., the minor, was born in 2004. He was brought to the emergency room when he was seven weeks old. Doctors found healing fractures of four ribs and two healing fractures of his left leg. Among other injuries, he had a soft tissue hematoma and swelling and hemorrhage in his head. The findings were `consistent with non-accidental trauma—child abuse.
"Orange County Social Services Agency (SSA) removed S.D. from his home. The court found there was a substantial danger to the physical health of S.D. and ordered his removal from the parents custody.
"In 2007, SSA made the following assessment: `Although it is unknown as to who caused the extensive injuries to [S.D.] it is known that he spent the majority of his time with his mother and father as well as his maternal grandparents. The parents appear to remain in denial that these injuries occurred putting the child at risk of future injury. Given the severe abuse [S.D.] endured while in the care and custody of his parents and the lack of acknowledgement of this abuse from his parents the undersigned respectfully requests that the child be found adoptable and parental rights be terminated in order to proceed with a permanent plan of adoption. The court ordered termination of reunification services for both parents and ordered a hearing pursuant to section 366.26. On April 23, 2007, the court ordered the parental rights of both parents terminated.
"The court found both the maternal grandparents and the foster parents to be de facto parents. . . . [¶] . . . [¶]
"S.D.s attorney filed a motion under section 388. In the motion, S.D.s attorney requested the court change an order it previously made placing S.D. in the care of the maternal grandparents and place him in the home of the foster parents. The reasons for the requested change were stated in the moving papers: `The requested change is in the childs best interests because the maternal grandparents continue to make statements [which] indicate that they are not convinced that the child was injured in their household or that there is any possibility that their daughter is responsible for the abuse. Therefore, they cannot be relied upon to protect the child from contact with his parents if allowed to adopt, which places the child at risk of further physical injury. [¶] In addition, the [Evidence Code section] 730 evaluator cites additional reasons for his conclusion that the minor[s] best interests would be served by his placement with the [foster parents], including the fact that they have proven themselves to be more successful in parenting their other children than the maternal grandparents and can be trusted to maintain and promote the childs relationship with the maternal grandparents after they adopt.
"On the same day, the foster parents also filed the same motion under section 388. They explained their reason for requesting the change of placement: `In anticipation of adoption following the termination of parental rights, the immediate change of placement of [S.D.] to the home and care of [the foster parents]. In a seven-page nonevidentiary attachment to their motion, the foster parents describe the contents of the most recent SSA report and conclude that if the `facts had been known to the Court, we respectfully contend that the Court would not have made the current placement.
"Over a several-day period, the juvenile court conducted an evidentiary hearing. There was evidence the maternal grandmother observed the father hit the mother when she was pregnant with S.D. The maternal grandmother minimized the mothers explosive behavior. For example, she said it was the father, not the mother, who slammed a door so hard at the courthouse after the judges ruling, that it resulted in a hole in the wall. When she was reminded that a bailiff observed the mother slam the door, the maternal grandmother explained the mother `gets mad easily, but like a normal person and that the mother `was mad at the Court due to what had "happened to her." When the social worker inquired of the maternal grandmother whether or not she thought the mother may have had problems with postpartum depression and may have hurt S.D. under those circumstances, the maternal grandmother stated `she does not know what happened to S.D., nor does she know who did it. The maternal grandmother observed that it could not have been the maternal grandfather who hurt S.D. `because he would not even hold or hug [S.D.] when he was a baby because he was angry with [the mother] for getting pregnant. The social worker reported to the court: `The undersigned is concerned about the ability of [the maternal grandmother] to protect [S.D.], given that she did not take steps to protect her daughter from physical abuse while her daughter was pregnant with [S.D.]. Once [S.D.] was removed from his parents care, [the maternal grandparents] let the man who [the maternal grandmother] believes to have physically abused her daughter while pregnant, move into their home. Despite the evidence . . . she does not seem to believe that [S.D.] was intentionally abused. [The maternal grandmother] `states she does not have a relationship with [the father], yet she and her husband continue to care for his dog.
"Both section 388 motions were granted on April 19, 2007. The court ordered that S.D. be placed with the foster parents. The juvenile court explained its reasons in a lengthy oral statement. It lamented its option of continuing placement with the maternal grandparents, while underscoring `this child barely came out of the womb before he was battered. The court said: `I could keep the kid with the grandparents with a lot of surveillance in place, and then increase the [foster parents] contact, and so on. Whats that going to do for the boy? That doesnt give him a life. That makes him tantamount to a resident of a very large prison in which he will find restrictions for the rest of his life. It doesnt give him a chance to grow up and to be a boy. . . . Clearly, this kid is adoptable. There is no other option but adoption. But, assuming for the sake of argument, I didnt have that option, Id have to sit there and oversee this case for, what, 15 years and ten months, because I dont believe the grandparents are going to protect because they dont have the insight necessary to see.
"More than once, the court indicated the maternal grandparents lacked credibility. The court explained: `I feel for the grandparents. I dont think theyll protect this child. I think the daughter runs their life. I think they dont know how to draw a line in the sand. I think shes a hellion, and if she wasnt an abuser, certainly the father was. And she was running all over these parents from the time that she was old enough to become probably an adolescent, and they cant control her. And I dont believe them when theyre sitting here saying, well, they wont let the daughter back in. What does the report say? Back to the report, page 17 of the .26 report, [S.D.]s maternal grandparents have stated, "They would like [S.D.] returned to his mother, but if he cannot, theyre committed to adopting him." Well, how reassuring is that? The court added, `Ive had two years and four months to make an assessment. And I didnt just fall off the old truck. [¶] . . . [¶]
"From the time of placement of S.D. with the maternal grandparents, the court viewed it as a temporary solution in that the court expressed hope, but not a great deal of expectation, the grandparents would or could protect S.D. Placement with the maternal grandparents was only considered after a planned placement with the paternal grandparents in Nebraska was aborted. The judge articulated the courts continuing reservations about the maternal grandparents because of their failure to acknowledge their daughter might have abused S.D. On February 8, 2006, the court said: `This is not a very good situation, because I dont even know if [S.D.] can do well in their home. I dont really know about long term and their ability to protect. [¶] . . . [¶] Maybe, reluctantly, theyve begun to see that the father is not a very good guy. Maybe, reluctantly, theyve begun to see that the mother in their home wasnt very conducive to [S.D.] being placed there.
"The grandparents expressed a desire to have S.D. `returned to his mother, but if he is not, they are committed to adopting him, an ambivalent commitment at best. At the section 388 hearing, the social worker testified: `My concerns are that the grandparents dont acknowledge that [S.D.] was injured non-accidentally; that they dont acknowledge that it happened in their home. They dont seem to understand that someone in their home did this to [S.D.], and they dont — because of those things, I dont believe they can protect [S.D.]. Regarding the grandparents testimony, the trial court simply did not believe them when they promised to protect S.D.
"At the hearing, the grandmother admitted she knows her other grandchildren visit with the mother and father, the suspected abusers, yet she has never even spoken to her other daughter, the mother of the other grandchildren, about exposing the children to them. The grandfather said S.D.s broken ribs might have been caused from somebody hugging him too tightly.
"The expert psychologists report supports the courts conclusion the grandparents are still in denial about the abuse inflicted upon S.D.: `I do not think that the grandparents hold deeply held beliefs that the Minor was abused in their household. [The grandfather] said he did not witness anything untoward in their household and that, if anything happened, he would suspect the Minors father. [The grandmother] similarly believes that her daughter had nothing to do with the Minor being injured, and also suspects the father. Given that they each assume the daughter cannot be held responsible for the Minors injuries, it is difficult to imagine that they would not facilitate her being involved with the Minor, again; why would they not, if they believe her to have been benign?
"With this record, we must conclude the juvenile court did not abuse its discretion when it granted the section 388 motions. There was significant new evidence regarding the grandparents ability to protect S.D. Circumstances changed in that, 14 months earlier, the juvenile court gave the grandparents the benefit of the doubt vis-à-vis their insight and ability to protect S.D. By the time of the hearing on the section 388 petitions, the court found there was no longer any reason to give them that benefit."
Since the last appeal, the juvenile court conducted a hearing under section 366.26. Several witnesses testified and SSAs reports were admitted into evidence. The court found the provisions of section 366.26 subdivisions "(c)(1)(a)(b)(c)(d)(e) AND (f) DO NOT APPLY," that adoption was in the best interest of the minor and that it is likely the minor will be adopted. Parental rights of the mother and the father were terminated. The minor was placed for adoption.
Monitored visits with the mother were described in the reports. S.D. appeared to be consistently aggressive and agitated with the mother, often hitting and head-butting her at least one time, while being affectionate to others. One of SSAs reports stated: "Although [S.D.s] parents have visited him regularly he does not appear to recognize them as his parents. He prefers to be held and comforted by his current and previous caretakers. The parents have not acted in the parental role the overwhelming majority of [S.D.s] life as he was removed from their care before he was two-months old. He has been cared for physically, medically, emotionally, and financially by others. The benefit of a permanent and stable home for [S.D.] through adoption far outweighs the detriment of terminating parental rights."
In making its findings, the court stated: "I dont even need the report to say one word about whether or not the parents have maintained regular and consistent contact. I think any fair construction of this case would suggest that they have, but thats simply the first prong of the exception. [¶] Going to the latter part of that, whether or not there really exists a parental relationship, within the meaning of the case laws that have been cited here, clearly theres no evidence whatsoever that there is any relationship that is positive, and secondly, theres no evidence that its parental in the sense that does it really — does this child look to either parent for insight, for guidance, for education, for stimulation, for protection, for psychological nourishment, nourishment physically, emotionally, spiritually, if you will, in any way shape or possible, that this child looks to either parent. Clearly theres no evidence supporting that. Theres some evidence that there is at least some appropriate visitation, some degree of cordialness here and there. Theres also some antipathy as well. [¶] The parents have failed to present evidence that would support a finding that the (c)(1)(A) exception would apply, even though I find that the first prong has probably been met."
II
DISCUSSION
The fathers respondents brief
After the father filed his brief, both county counsel and the de facto foster parents filed letter briefs. SSA notes the father did not file a notice of appeal and objects to his brief "on the grounds that it is an attempt by a respondent who has not filed a notice of appeal to urge new errors that were not raised by the appellant and alleged errors that have been rendered moot by this Courts decision in the related appeal (G038562)." The de facto foster parents make the same objection.
The father did not file a notice of appeal which would have vested jurisdiction in this court to consider his arguments. (Adoption of Alexander S. (1988) 44 Cal.3d 857, 864.) "`[A] respondent who has not appealed from the judgment may not urge error on appeal. [Citation.]" (Estate of Powell (2000) 83 Cal.App.4th 1434, 1439.) Indeed, the only difference between an appellant brief and the fathers respondent brief is the color of its cover. In fact, his introduction begins: "This appeal presents two issues." And his conclusion requests this court to reverse the orders of the juvenile court. Accordingly, we decline to consider his arguments.
The mothers notice of appeal
County counsel and the foster parents argue the mothers notice of appeal is deficient, and that this court lacks jurisdiction to hear her arguments as they pertain to the granting of the section 388 petitions on April 19, 2007. The mothers notice of appeal was filed on June 5, 2007. The preprinted form states: "I appeal from the findings and order of the court (specify date of order or describe order)." The mother stated: "Termination of Parental Rights 4/23/07." On the second page of the notice of appeal, there is a section which states: "The order appealed from was made under Welfare and Institutions Code section (check all that apply)." The only box checked is the one relating to section 366.26. In that subsection, the form requests the dates of the hearing, and the mother states: "4/16, 4/17, 4/18, 4/19 and 4/23/07." While there is no specific box relating to orders under section 388, there is one that states: "Other appealable orders relating to dependency (specify)." If that box is checked, the form requests that the dates of the hearings be listed. That box is not checked on the mothers notice of appeal.
The grandmothers notice of appeal, which resulted in this courts previous opinion, was filed a few days after the juvenile court granted the section 388 motions. The grandmother checked the "other appealable orders" box, and listed the dates the section 388 hearings were conducted.
"The notice of appeal must be liberally construed, and is sufficient if it identifies the particular judgment or order being appealed." (Calif. Rules of Court, rule 8.400, subdivision (c)(2).) In the instant notice of appeal, there is nothing specific in the mothers notice of appeal which could be construed as an appeal from the juvenile courts order granting the section 388 motions. However, four of the five dates the mother listed in her notice of appeal were the dates the minute orders from those days list that both the section 388 motions and the section 366.26 hearing were conducted. Therefore, we liberally construe the mothers notice of appeal to include appeal from the juvenile courts grant of the section 388 motions.
Section 388 motions
The mother argues the juvenile court abused its discretion in granting two motions brought under section 388 "as there was not substantial evidence to support changed circumstances or that removal from the court-ordered placement with the maternal grandparents was in [S.D.s] best interests."
"At a hearing on a motion for change of placement, the burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interests of the child. [Citations.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) We review section 388 petitions for abuse of discretion. (Id. at p. 318.) Therefore, we will not disturb the trial courts decision unless the court "`"has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination . . . ." [Citations.] . . . `The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason." [Citations.]" (Ibid.)
The mothers argument is similar to the argument previously propounded by the grandmother. She says the evidence did not support a finding of changed circumstances and that the courts orders were not in the best interests of S.D. She adds, however, that SSA should have proceeded by way of a section 387 motion, rather than a section 388 motion. But since she provides no legal authority for that proposition, we decline to consider it. (In re S.C. (2006) 138 Cal.App.4th 396. 408.) For the same reasons we denied the grandmothers arguments, which we quoted above, we also deny the mothers. The juvenile court did not abuse its discretion.
Relative placement
The mother next contends that once it determined a new placement was necessary, the juvenile court erred in not applying the relative placement. This argument fails, just as it did in the grandmothers appeal, because S.D. was not removed from a parent, a requirement under section 361.3.
The benefit exception
The mother argues the juvenile court erred in finding the beneficial parental relationship exception to adoption did not apply. She states: "[T]he evidence was overwhelming that [S.D.] and Mother, despite his age and confusing upbringing, enjoyed a beneficial parent-child relationship."
Once the juvenile court determines that there is no probability of reunification, adoption is the preferred permanent plan. (§ 366.26; In re Edward R. (1993) 12 Cal.App.4th 116, 122.) Should the court find it likely that the child will be adopted if parental rights are terminated, the burden shifts to the parent or parents opposing adoption to demonstrate that termination would be detrimental to the child under one of four statutory exceptions. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.)
One of these is the benefit exception, which requires an affirmative showing that termination would be detrimental to the child because the parent has maintained regular visitation and contact and the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(A).) The parent must prove a substantive positive emotional attachment such that the child would be "greatly harmed" if deprived of the parent-child relationship. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Moreover, the court must find that the strength of the parent-child relationship outweighs the potential benefit of adoption. (Ibid.)
We review findings as to the section 366.26 exceptions under the substantial evidence rule. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) "[W]e 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 conflicts in support of the order. [Citations.]" (Ibid.)
From the record, it is apparent the juvenile court was very familiar with the history of this matter and carefully considered all of the evidence. SSA reported S.D. does not recognize the mother as a parent and that others provide his physical and emotional needs. The court concluded there is a lack of a parental relationship. Substantial evidence supports the juvenile courts finding regarding the section 366.26, subdivision (c)(1)(A) exception. The court properly rejected the application of the benefit exception under the facts of this case.
III
DISPOSITION
The judgment and orders of the juvenile court are affirmed.
We concur:
RYLAARSDAM, Acting P. J.
IKOLA, J. --------------- Notes: Section 361.3 (a) states: "In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative."