Opinion
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County, Ct. No. CK74023 Margaret S. Henry, Judge.
Joseph D. MacKenzie, under appointment by the Court of Appeal, for Defendant and Appellant Samantha B.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant Kent M.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.
ROTHSCHILD, Acting P. J.
Samantha B. (Mother), the mother of 11-year-old Trinity B. and 4-year-old Jeremiah M., and Kent M. (Father), the biological father of Jeremiah M., challenge the court’s order denying Mother’s motion to reinstate her family reunification services and unmonitored visits with the children and its order terminating Mother’s and Father’s parental rights. We affirm both orders.
FACTS AND PROCEEDINGS BELOW
A. Events Leading Up To Jurisdiction Over The Children
Our previous unpublished opinion in this matter (In re Jeremiah M. (Feb. 25, 2010, B218098) contains a detailed discussion of the facts that led the juvenile court to assume jurisdiction over Trinity and Jeremiah. We summarize those facts below.
In 2008, the Department of Children and Family Services (DCFS) received four referrals alleging parental neglect of Trinity and Jeremiah and Father’s physical abuse of Mother. One referral alleged that Mother and the maternal aunt were using drugs in the home in front of the children and that Mother left the children unattended or with their 88-year-old great grandmother who was incapable of providing adequate care. Another referral alleged that Father battered Mother and two referrals alleged that Father physically abused Trinity.
In a July 2008 interview, Mother told the DCFS worker that Father had choked her, hit her, and put a gun in her mouth and threatened to “‘blow [her] brains out.’” Trinity confirmed that she had seen Father kick and strike Mother. Mother stated that she had recently ended her relationship with Father because of his physical abuse toward her.
DCFS requested that Mother take a drug test. She tested positive for marijuana and cocaine and admitted that she had stopped taking medication for her bipolar disorder.
In August 2008, DCFS filed a petition under Welfare and Institutions Code section 300 alleging that Mother and Father had a history of domestic violence and had engaged in violent altercations in the children’s presence. The petition further alleged that Mother had a history of drug abuse, had tested positive for marijuana and cocaine, had mental and emotional problems, including a diagnosis of bipolar disorder, and had failed to take prescribed medications. The petition also alleged that Father had used marijuana in the children’s presence. At the detention hearing that same month, the court found that the petition stated a prima facie case for detaining the children and ordered them detained in shelter care.
All statutory references are to the Welfare and Institutions Code.
Prior to the jurisdictional hearing, DCFS learned of a 1998 child abuse referral regarding Father. The referral stated that one of Father’s daughters reported to police that she had run away from home and did not want to return. She filed a complaint stating that Father had slapped her across the face with the back of his hand and had threatened to knock her teeth out. In 2005, the same daughter filed another complaint against Father claiming that he had sexually abused her and her siblings, as well as some of their friends. Upon learning of these complaints, DCFS interviewed Father’s daughters, now adults, who both described how Father had physically, mentally, and sexually abused them, beginning when they were young girls. They both also reported that Father had sexually abused some of their young friends as well. Daughter J.M. reported that her “‘first memories are being in his bed with him or him sneaking into [her] bed’ while naked from the waist down.” Beginning when J.M. was five years old and continuing until she was 13, Father regularly fondled her breasts, digitally penetrated her, and orally copulated her, telling her it would help her relax. J.M. recalled that at least three times Father had forced her to orally copulate him. Father often watched J.M. as she showered and sometimes forced her at knifepoint to let him digitally penetrate her as she showered.
Father’s adult daughters and their friend, C.T., reported that Father often took his oldest daughter A.M. into his bedroom and closed the door, and that A.M., who subsequently committed suicide, had always resisted and made a “big hassle.” C.T. reported that she believed Father was raping A.M. because she often saw them lying together in his bed, and because A.M. always seemed depressed. C.T. reported that during an overnight visit when they were in the fourth or fifth grade, she woke up to find Father lying in bed rubbing her vagina. C.T. reported that on another occasion Father rubbed her vagina over her clothing while the children were playing a game. When C.T. told the daughters what he had done, J.M. and C.M. started crying and told her that Father had been doing the same thing to them for years.
The adult daughters also described incidents in which Father used guns or knives to terrorize them or to enforce compliance with his wishes. Father’s daughter, J.M., stated that she suspected he might have played a role in A.M.’s suicide. J.M. reported that on a few occasions when she had threatened to kill herself, Father had handed her a gun and told her “‘just do it.’” J.M. described Father as “‘very manipulative’” and a person who “‘really breaks people down.’”
Finally, the DCFS investigation revealed that Father had lied when interviewed by police in this case when he told them he was a police officer and that he had been employed by the Office of Homeland Security, the FBI and other law enforcement agencies.
At the jurisdiction and disposition hearing in September 2008, the court sustained the allegations of the petition under section 300, subdivisions (a), (b) and (g), declared Trinity and Jeremiah dependents of the juvenile court and ordered them removed from Mother’s and Father’s custody. The court ordered reunification services for both parents including random drug testing and anger management classes. The court further ordered that Father have no visitation with Trinity and only monitored visits with Jeremiah. Mother was not to be the monitor of these visits. Mother was allowed monitored visits with both children to be liberalized in the discretion of DCFS.
B. Events Subsequent To Jurisdiction
We pick up now with the events following the jurisdiction and disposition hearing.
1. Amendment of the petition as to Father
In November 2008, the court sustained an amended petition under section 300, subdivisions (a), (c) and (d) alleging that Father had sexually abused Jeremiah’s adult half-sisters and some of their friends when they were children and that such abuse placed Jeremiah and Trinity at risk of physical and emotional harm. The court terminated Father’s reunification services and repeated its order that Father have no contact with Trinity. Father was allowed to continue his weekly monitored visits with Jeremiah. We rejected Father’s appeal from an order denying his motion to modify the order terminating his reunification services. (In re Jeremiah M., supra, B218098.)
2. Mother’s loss of unmonitored visitation and reunification services
Mother tested positive for marijuana twice in September 2008 and did not appear for her test on October 2, 2008. She did, however, enroll in a one-year outpatient drug treatment program in September 2008 which included anger management and domestic violence counseling. In March 2009, DCFS concluded that Mother was in general compliance with her case plan and allowed her two-to-three hour unmonitored visits with the children. The court conditioned these visits on Mother’s promise that she not allow Trinity to be in Father’s presence. Mother signed a document agreeing to this condition. Later that month, in violation of her agreement, Mother took the children to a museum where they met and spent the day with Father.
At the six-month review hearing in March 2009, the DCFS submitted evidence of the museum visit with Father and a telephone call on the foster mother’s answering machine in which Father and Mother could be heard arguing and swearing at each other. Mother denied it was her voice on the answering machine and claimed it was purely a coincidence that she and the children met Father at the museum. The court found Mother “not believable.” The DCFS also submitted uncontradicted evidence that Mother was meeting Father prior to her visits with Trinity and that Mother told a DCFS worker that if she could not have custody of the children she wanted them placed with Father rather than adopted.
In reviewing Mother’s progress toward the return of her children the court characterized Mother’s compliance with her case plan as “partial.” The court noted that although Mother tested positive for marijuana early on, all of her subsequent tests had been negative. In addition, the court found Mother was in a program that provided individual counseling in parenting and domestic violence but that there were “problems” with Mother taking her medications and seeing her counselor. The court’s principal concern was Mother’s violation of its order that Father not be allowed contact with Trinity. Mother was restricted to monitored visits with both children. In making this order the court stated: “Mother has not been compliant with the court orders that she not monitor visits with Father, and that Father have no contact [with Trinity.]” The court found a substantial probability that the children may be returned to Mother by the time of the twelve-month review but only “if she complies with the court orders and stays away from [Father].” Mother’s response to the court’s statement was: “Bullshit.”
On the recommendation of DCFS the court, in September 2009, granted Mother unmonitored visits with the children on condition that during those visits neither Mother nor the children have any contact with Father.
In January 2010, DCFS filed a petition under section 388 to reinstate monitored visits for Mother based on a report from the children’s foster mother that Jeremiah returned from a two-day visit with Mother with a large bruise on his leg. A doctor who examined Jeremiah told the foster mother “the child was probably hit with a belt.” Mother told the DCFS worker that she had not seen a bruise on Jeremiah during his visit but Trinity told the worker that Mother hit Jeremiah causing the bruise. At the April 2010 hearing on the section 388 motion, Trinity changed her story and testified that Jeremiah already had a bruise on his leg at the beginning of his visit with Mother and that he acquired a second bruise jumping from his bed onto Mother’s bed. Other evidence at the section 388 hearing showed that Father had had no contact with Trinity since the museum visit but that Mother and Father often conversed before Trinity arrived for her visits and that Father gave Mother a car. This evidence contradicted Mother’s claim that she had no contact with Father since the museum visit. At the conclusion of the hearing, the court granted the DCFS request to reinstate monitored visits for Mother. In addition, the court terminated Mother’s family reunification services and set the matter for a permanent placement hearing. The court found that although Mother loves the children “she is [not] capable of protecting them at all.” The court concluded: “The children would very much be in danger with [Mother] now. She does not have the capability to know who to trust in life and she will trust her children to [Father] or someone equally dangerous because she just doesn’t understand things.”
Mother filed a section 388 petition in August 2010 seeking reinstatement of her family reunification services and a resumption of unmonitored visits with the children or return of the children to her custody. In support of her petition Mother filed a declaration stating that she had consistently visited the children, engaged in parenting activities with them during the visits, had no further contact with Father, arranged with the DCFS to visit the children at times when she would not encounter Father and moved to a different geographical area of the county to avoid even inadvertent contact with him. Mother also submitted a bonding study of her and the children conducted by a clinical psychologist who concluded “it appears that these children have a significant bond with [Mother]” and terminating this relationship “would be very detrimental to the children.” The court ordered Mother’s section 388 petition and the permanency planning hearing for the children to be heard together. After considering Mother’s evidence and the arguments of counsel for the parties the court concluded that Mother had failed to show a change of circumstances warranting a hearing under section 388 and denied the petition. The court then turned to permanency planning for Trinity and Jeremiah.
3. Termination of parental rights
At the permanency planning hearing Mother and Father produced evidence they claimed showed that a “beneficial relationship” between them and the children precluded termination of their parental rights under section 366.26, subdivision (c)(1)(B)(i). After hearing the testimony of Mother, Father, Trinity, the foster mother, and the psychologist who conducted the bonding study, the court terminated the parents’ rights. The court concluded that Mother was in denial about the danger Father posed to the physical and emotional safety of the children and therefore the children would be in danger if they were returned to her custody and control. The court further found that the beneficial relationship exception did not apply.
Section 366.26, subdivision (c)(1)(B)(i) provides an exception to the termination of parental rights if “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
The evidence showed the foster mother wished to adopt both children and that a home study had been completed and approved.
4. Parents’ appeal
Mother and Father filed timely appeals. They challenge the court’s denial of Mother’s section 388 petition to restore her reunification services and unmonitored visits and its order terminating their parental rights.
DISCUSSION
I. DENIAL OF MOTHER’S SECTION 388 PETITION FOR REINSTATEMENT OF FAMILY REUNIFICATION SERVICES AND UNMONITORED VISITATION
Section 388 allows a party to file a petition requesting the dependency court to change, modify, or set aside a previous order. The burden is on the petitioning party to make a prima facie showing of a change in circumstances or new evidence and that the proposed change would be in the child’s best interest. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.) Here, the court found that Mother failed to show a change in circumstances relevant to reunification services and unmonitored visits and summarily denied her petition without a hearing. “We review a summary denial of a hearing on a modification petition for abuse of discretion. [Citation.] Under this standard of review we will not disturb the decision of the trial court unless the court exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination.” (In re A.S. (2009)180 Cal.App.4th 351, 358.) No abuse of discretion occurred in this case.
Mother argues that the bonding study, her sobriety, her regular visits with the children and her new living arrangement with a “stable, long-standing friend” constituted changes in circumstances sufficient to warrant a hearing on her petition.
Father joins in this argument.
Mother’s argument fails because it addresses non-issues and fails to address the crucial issue whether she will protect Trinity and Jeremiah from physically and sexually abusive Father. Neither the DCFS nor the court expressed any doubt that there was love between Mother and her children, or doubted her sobriety, the regularity of her visits, or the stability of her living arrangements. As the court explained at the April 2010 hearing (see discussion at page 7, ante) the stumbling block to Mother’s reunification with her children was her continued association with Father and the court’s fear that if the children were returned to her she would allow Father contact with them. The court concluded that nothing in Mother’s petition alleviated that fear.
It is true that Mother’s declaration stated that she was avoiding contact with Father and that she had “no intention of resuming my relationship” with him. But, as the court noted, “When she testified in April she said the same things that she is saying in this [petition] except for the difference that [they do] not visit on the same day, which I don’t consider a significant difference.” Furthermore, the court observed that it had heard Mother’s previous denials of contact with Father and did not believe her. “The problem is, ” the court stated, Mother “has always been willing to say whatever she thought she needed to say.” In dependency proceedings, issues of fact and credibility are issues for the court. (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.) Given Mother’s previous prevarications regarding contact with Father we cannot say that the court abused its discretion in not crediting her latest statements on that subject.
II. DENIAL OF THE BENEFICIAL RELATIONSHIP EXCEPTION
Mother challenges the sufficiency of the evidence supporting the court’s refusal to apply the beneficial relationship exception with respect to Trinity and Jeremiah. Father makes the same argument as to Jeremiah. We find no merit to either challenge.
A. Mother’s Relationship with Trinity and Jeremiah
As previously noted, section 366.26, subdivision (c)(1)(B)(i) affords an exception to termination of parental rights if “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” A parent has a beneficial relationship under the statute if it promotes the well-being of the child to such a degree as to outweigh the benefit the child would gain in a permanent home with adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The burden of proving a beneficial relationship exists rests on the parent. (Ibid.)
Because the issue of the beneficial relationship exception “turns on a failure of proof at trial, ” “it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) Rather, “the question for the reviewing court [is] whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.’ [Citation.]” (Ibid.) As we explain below, there was contradictory evidence regarding the strength of the bond between Mother and her children. Furthermore, given the continuing danger that Mother would fail to protect the children from Father, the court could reasonably conclude that Mother failed to establish that the children would benefit more from maintaining their relationship with her than they would in a permanent home with an adoptive parent.
It is undisputed that Mother maintained regular visitation with the children throughout the dependency proceedings. There was virtually no evidence, however to support a finding that the children would benefit from continuing their relationship with Mother.
In support of her claim of a beneficial relationship, Mother submitted evidence from the section 388 hearing including the bonding report prepared in August 2010 by Dr. Daniel Kramon, a clinical and forensic psychologist and his oral testimony. Kramon interviewed Mother for approximately 90 minutes, Trinity for approximately 4 minutes and observed interaction between Mother, Trinity and Jeremiah for approximately 60 minutes. He also reviewed the file in this case.
Kramon stated in his report that the interaction between the children and Mother “was characterized by spontaneous communication, affection and appropriate limit setting with Jeremiah.” For example, Kramon observed that “[w]hen the children first entered the office and saw their mother, Jeremiah enthusiastically ran full speed towards [Mother] and hugged her. Trinity approached more slowly and kissed her mother while smiling.” Trinity “was more low-keyed than Jeremiah but was affectionate and appeared very happy to see her mother.” At one point, “Trinity spontaneously began to gently stroke her mother’s hair and the two of them cuddled.” Trinity gave Mother a list of items she would like before school started and Mother “indicated that she would get them for her.” Trinity appeared sad at the end of the visit and “Jeremiah began to cry profusely and repeatedly stated ‘I want mommy.’”
In his testimony at the section 388 hearing Kramon added that when he asked Trinity to name the people she loved she named her foster mother first which, he believed, “could be significant.” He also noted that there was “spontaneous affection” between Mother and Trinity and that the children referred to their mother as mommy or mom and referred to the foster mother by her first name. Kramon described the interaction between Mother and the children as exactly what he would expect to see between an intact family. “There was the initiation of affection on the part of the children and clearly on the part of their mother. That goes beyond a normal, what you might call pleasant visit with somebody.” Kramon testified that on a scale of 1 to 10 the bond between Mother and the children was a 10 but he acknowledged that in his interviews with Trinity she assessed her relationships with Mother and her foster mother as “equal” and stated she wanted to be with them “equally.”
Based on his study of the family’s interaction and his interviews, Kramon’s report concluded that there is no “unequivocal and conclusive answer as to whether it would be better for the children to remain in their foster home, as opposed to being returned to their mother.” On one hand, Kramon stated: “It does appear that to terminate the relationship with the mother would be very detrimental to the children.” He immediately followed this statement with the observation that if Mother “manifests any more instability in her life, in terms of... associating with a man who has physically assaulted [her] and whose daughters have reported rape and brutal behavior on his part, then the children would be at detriment with their mother.” Finally, Kramon stated: “It is not concluded at this time that ‘the benefits of permanence and security of an adoption out[weigh] any detriment suffered by the children in being permanently separated from their mother.” The detriment to the children that Kramon predicted would follow from a termination of parental rights was the “quite high” likelihood that Trinity would “have a protracted longing for contact with [Mother] that could last years.” But, in his trial testimony, Kramon stated that Trinity would have a “longing” for whichever mother figure she was separated from.
Trinity testified she knew that adoption meant that her foster mother “will be like legally my parent” and that she might not be able to see her mother and maternal grandmother in the future. Asked how she felt about that, Trinity answered: “Well, I’m okay with it because [foster mother] is like my mom too. Like that’s how mom’s supposed to be. I’m okay with that.” When asked if she wanted to be adopted by her foster mother Trinity answered “Yes.” She gave several reasons for her answer. She stated the foster mother is like what a mom is supposed to be—“Nice. You could trust her.... She will be there for you. If you call her, she’ll always answer her phone.” Summing up, Trinity testified she feels safe in her foster mother’s home, she wants to stay with her foster mother and that she loves her foster mother. Section 366.26, subdivision (h) requires the court to consider Trinity’s wishes as to adoption. (In re Joshua G. (2005) 129 Cal.App.4th 189, 201.)
Three-year-old Jeremiah did not testify.
To trigger the application of the beneficial relationship exception, the parent must show the parent-child relationship is sufficiently strong that the child would suffer detriment from its termination. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) The best Mother’s evidence shows is that there is a loving relationship between her and her children but the loss of mere “frequent and loving” contact with a parent is insufficient to show the degree of detriment required to trigger the exception. (Ibid.) What is missing is evidence that Mother plays “‘a parental role’ in the child’s life.” (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) As our Legislature has recognized, one of the principal roles of a parent is to protect her child from “a substantial risk that the child will suffer[] serious physical harm.” (§ 300, subd. (b).) In this case, the court found Mother is incapable or unwilling to assume that role and we cannot say its finding lacks support in the record. For these reasons, we affirm the court’s denial of the beneficial relationship exception.
B. Relationship Between Father And Jeremiah
Father’s evidence showed that he regularly visits Jeremiah three hours a week, brings him snacks and toys, engages with him in books and educational materials, and provides appropriate discipline when necessary. Jeremiah responds to Father with love and affection. Nevertheless, as we explained above, “[T]he parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits—the parent must show that he or she occupies a parental role in the life of the child.” (In re I.W., supra, 180 Cal.App.4th at p. 1527.) Father’s evidence only shows that Jeremiah looks at him as a friendly visitor who comes to play once a week. A friendly relationship “is simply not enough to outweigh the sense of security and belonging an adoptive home would provide” (In re Helen W. (2007) 150 Cal.App.4th 71, 81) especially where adoption would allow Jeremiah and his half-sister to remain together.
Finally, because a permanency planning hearing only occurs “after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) This is not an “extraordinary case” justifying application of the beneficial relationship exception. The trial court did not err in terminating Father’s parental rights.
DISPOSITION
The orders are affirmed.
We concur: CHANEY, J.JOHNSON, J.