Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Fresno County No. 07CEJ300064-1 Jane Cardoza, Judge.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin Briggs, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Gomes, A.P.J., Dawson, J., and Kane, J.
C.G. (mother) appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her two-year-old son U.L. She contends the court erroneously denied her a hearing on her request to reopen reunification services and rejected her argument that termination would be detrimental to U.L. because of the relationship they shared. On review, we disagree with each of mother’s claims and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
Respondent Fresno County Department of Children and Family Services (department) detained U.L. in March 2007 when he was three months old based on mother’s neglect, brought on by her methamphetamine and marijuana abuse. She previously received voluntary substance abuse treatment, but continued nevertheless to use. The department in turn initiated the underlying juvenile dependency proceedings pursuant to section 300, subdivision (b) based on parental neglect. The Fresno County Superior Court exercised its dependency jurisdiction over U.L. and in June 2007 adjudged U.L. a dependent child, removed him from parental custody, and ordered reunification services for mother and the child’s father.
Reunification Services
The 2007 court-ordered reunification plan focused on mother successfully completing substance abuse treatment, consisting of a six-month residential phase and a six-month aftercare program. Services also included parenting classes, mental health and domestic violence treatment, as well as supervised twice-a-week, one hour visits with U.L. The parenting, mental health and domestic violence services were available to mother through the drug treatment program. As of March 2008, mother failed to successfully complete any of the reunification plan requirements. The father made essentially no effort to participate in services ordered for his benefit.
Mother initially showed enough progress so that in July 2007 the department placed U.L. with mother in her residential treatment program. However, 28 days later, the program terminated mother due to her disobedience and defiance and the department once again removed U.L. from her care.
Mother entered a second residential treatment program in August 2007 and again made enough progress that the department placed U.L. with her on October 1, 2007. However, this time U.L. was in mother’s care only 12 days when the second program terminated her. She had been involved in a physical altercation with another woman in U.L.’s presence and arrested as a result. The department again removed U.L. from mother’s care.
Although mother entered a third drug treatment program, she chose to discontinue treatment and left the program in November 2007. Soon thereafter she was involved in yet another altercation with another person.
Mother entered a fourth drug treatment program, operated by Fresno County and known as PATHS, in December 2007. As of March 2008, she was behind on her treatment program but showed sufficient improvement that she completed PATHS’ first of three phases of treatment. She also participated in other court-ordered services, but had yet to complete any of the plan’s requirements.
In addition, she attended supervised visits with U.L. during which she interacted with and displayed affection towards U.L. However, the three removals from mother’s care had caused U.L. to suffer emotional distress and negatively impacted his stability.
Termination of Services and Setting of Section 366.26 Hearing
At a March 2008 hearing, the court found that despite reasonable services mother made minimal progress and the father made no progress toward alleviating and mitigating the causes of U.L.’s removal. There was also no substantial probability the child could be returned to the custody of either parent within another six months. The court consequently terminated reunification services and set a section 366.26 hearing to select and implement a permanent plan for U.L. The court also ordered a bonding study between mother and U.L. and directed the department to continue offering mother the services in which she was then participating.
Mother’s Section 388 Request
Approximately 40 days after the court terminated reunification services and set the selection and implementation hearing, mother’s attorney submitted a request pursuant to section 388 for a return to reunification and an order for unsupervised visits. Mother allegedly completed her domestic violence treatment and her parenting classes, continued to make progress in mental health therapy and drug treatment, and maintained regular and good visits with U.L. In her counsel’s view, mother needed “just a little more time” to reunify. Also, a short return to reunification purportedly would be best for U.L. because it would allow mother “to progress in her visitations [and] provide the stability the child needs with his bio parent.”
According to the face of the request, the matter was set for an immediate hearing. Court minute orders confirm the section 388 request was set and continued for hearing over the balance of the proceedings. Starting in September 2008, the minute orders disclosed the hearing on mother’s section 388 request was characterized as contested.
The court initially continued its hearing on the section 388 request to give the department an opportunity to respond. After the department filed its written opposition, mother’s counsel asked the court more than once to trail the hearing on her section 388 request. The department opposed any change in the court’s orders until it received the bonding study results. Similarly, mother’s counsel sought a continuance to await the results of the bonding study.
Although the department made a referral for the bonding study soon after the court ordered it, a series of logistical problems delayed the bonding study from going forward. As of the originally-calendared section 366.26 hearing date in August 2008, mother’s counsel acknowledged the hearing on the section 388 request was trailing, along with the section 366.26 hearing, as all the parties anticipated the bonding study report.
Adoption Assessment
In the meantime, the department prepared its assessment that U.L. was generally adoptable because he was only one-and-a-half-years-old, physically and emotionally healthy, and developmentally on target. Except for the brief periods he was placed with mother, he had lived in the home of a foster mother who was willing to adopt him. The department was awaiting the bonding study results before submitting permanent plan recommendations to the court.
The assessment also revealed mother continued to visit with U.L. and appeared nurturing and attentive to his needs. However, as of their June 2008 visits, U.L. was physically aggressive towards mother. First, he hit when he did not get his way. On another visit, he bit her lip. Later still that month, U.L. hit mother on the face when she put him on the floor to prevent him from throwing food.
Bonding Study
The therapist who conducted the bonding study submitted a written report in October 2008. Her study consisted of an initial review of a recent dependency status review report, followed by lengthy clinical interviews with mother and the foster mother, and last structured play observations between U.L. and mother as well as U.L. and the foster mother. Based on these, the therapist concluded U.L. and mother did not have a parent-child relationship. Neither did U.L. have a substantial, positive emotional attachment to mother such that he would be greatly harmed if their relationship were terminated. Continuing their relationship would not promote U.L.’s well being so as to outweigh the benefit he would gain in an adoptive home. Indeed, the therapist recommended it was in U.L.’s best interest to be adopted by his foster parents to whom he was very attached.
Remarkably, the therapist conducted two structured play observations between U.L. and mother, neither of which could be completed. The therapist stopped the first observation after approximately 40 minutes due to U.L.’s violence towards mother as well as his very apparent distress. He hit, pinched, and bit mother. At one point, he crawled backwards away from mother as he cried. Mother agreed to stop the first observation as she too was quite distressed. A week later, the therapist conducted a second observation but once again U.L. displayed the same behaviors of hitting, biting and pinching mother. Mother asked the therapist to stop the observation after approximately 20 minutes.
Although mother and a social worker expressed surprise about U.L.’s behavior during the structured play observations, the therapist noted that two weeks earlier during mother’s clinical interview, mother reported these same behaviors as being a problem. A copy of visitation logs, which the therapist reviewed, also revealed these same behaviors by U.L. towards mother. Mother previously told the foster mother as well about the hitting and biting.
According to the therapist, U.L. displayed attachment related difficulties. She surmised he was never able to form an attachment to mother as he was removed from her care at a very young age and later was returned to her for only two short periods. In addition, the time he spent in her care was one of turmoil. In order for a healthy attachment to form, a parent or caregiver had to attend to all of a child’s needs more than three quarters of the time on a continuous basis.
By contrast, the child was very attached to his foster mother; this was clear during their structured play observation. U.L. responded to his foster mother with laughter, smiles, and good behavior. This was noticeably different from the behaviors the therapist observed when U.L. was with mother. Also, the foster mother and U.L. successfully completed within the allotted time all the tasks that comprised the structured play observation. Also, according to the foster mother, U.L. never tried to hurt her and did not display violent behaviors in the foster home. The foster mother had no concerns with U.L.’s behaviors and described him as a very happy boy who was well behaved.
The therapist conducted all three structured play observations in the same room and following the same routine.
Trial Proceedings
Once the parties received the bonding study in late October 2008, the department recommended the court select adoption as the most appropriate permanent plan for U.L. and terminate parental rights. Mother’s counsel meanwhile requested and the court set a trial date on her section 388 request and the department’s recommendation to terminate parental rights.
The court eventually conducted a contested hearing on mother’s section 388 request and the department’s recommendation to terminate parental rights in February 2009. At the hearing, the department submitted the case on its social worker’s reports and the bonding study.
Mother testified on her own behalf. She reiterated her attorney’s claim that she completed a parenting course and a domestic violence program in April 2008. However, sometime later she was terminated from the PATHS drug treatment program without completing it. She claimed “CPS won’t pay for services.” Also, mother was no longer in mental health counseling. Although her counselor had not discharged her, mother “just didn’t go anymore.” She stopped attending in August 2008. She did have a two bedroom apartment so that there was room for U.L. if the court were to grant her placement request. Asked why she thought it would be U.L.’s best interests for her to reunify with her or have him placed with her, mother stated “the child should be with his mother.”
In addition, mother testified she visited with U.L. twice a week for an hour at a time. Asked about the reports that the child hit her, mother confirmed he had his moods and he still hit. He stopped biting her sometime after the bonding study. She denied that he would back away from her as he did during the bonding study.
Sometimes during visits, U.L. would take directions from her. Sometimes he also cried. She tried to comfort him and was sometimes successful. According to mother, it just “depends.”
According to mother, U.L. never behaved the way he did during the bonding study. She believed he was throwing a tantrum and did not want to go in the observation room.
Mother also disagreed with the therapist’s assessment that there was no parent-child relationship. In mother’s view, she and U.L. had a “really good bond” with one another and they shared good visits. Also, even though she only saw U.L. a couple of hours a week, mother believed the child would be lost and suffer harm if their relationship were terminated.
In closing arguments, the department’s counsel and mother’s attorney addressed both mother’s section 388 request and the department’s permanent plan recommendations. Upon submission, the court denied mother’s section 388 request and, having found it likely that the child would be adopted, terminated parental rights.
DISCUSSION
I.
Mother contends the court committed an “egregious” error by denying her a full and fair hearing on her section 388 request. According to her, the court summarily denied her request and, in so doing, abused its discretion because she made a prima facie showing for the relief she sought. The record reveals it is only mother’s claim of error that might qualify as egregious. We conclude appellant did receive a full and fair hearing on her request. Furthermore, the court did not err by denying her request.
A party petitioning for modification under section 388 need only make a prima facie showing to trigger the right to proceed by way of a full hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) A prima facie showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 719, fn. 6.) General, conclusory allegations do not suffice. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) A showing under section 388 consists of two elements: (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) There must be some evidence that a hearing would promote the best interests of the child before the court will order a hearing. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
Arguably, as the department claims, mother’s section 388 request did not contain the requisite showing that a hearing on her request would promote U.L.’s best interests. Her allegation -- that a short return to reunification purportedly would be best for U.L. because it would allow mother “to progress in her visitations and provide stability the child needs with his bio parent” -- was long on conclusion and short on facts.
Nevertheless, the court wisely exercised its discretion and did not summarily deny mother’s request. As summarized above, the court set the request for hearing. Although it repeatedly continued that hearing until February 2009, the court did so for good cause, namely the anticipated bonding study and thereafter the time necessary for calendaring a contested hearing on both mother’s request and the department’s recommendation to terminate parental rights. The court eventually heard her testimony as well as her attorney’s argument, both of which specifically addressed mother’s section 388 request. It was only then that the court denied her request. Mother’s argument essentially overlooks all of this.
To the extent that mother assumes the court erred in any event by denying her request, we disagree. By the time of the February 2009 hearing, new facts had emerged which undermined what little evidence there was in support of her request.
First, the changed circumstances she alleged in her section 388 request were essentially that she was making substantial progress towards completing the court-ordered reunification plan and only needed a little more time. However, her testimony in February 2009 demonstrated otherwise. She had been terminated from the PATHS drug treatment program without completing it and she stopped attending mental health counseling without being discharged. To the extent she tried to shift the blame for her shortcomings onto the department, the court properly may have given little weight to such blame-shifting in light of her previous and repeated failures to complete drug treatment.
In addition, there was the evidence about U.L. biting, hitting, and pinching mother and suffering trauma during their visits. This behavior was not only out of character for U.L., it suggested he had not formed a positive attachment to mother. This evidence relates to the second element of a section 388 request, that is, the sought-after change in court order must promote the best interests of the child. (§ 388, subd. (a); In re Jasmon O., supra, 8 Cal.4th at p. 415.)
It was mother’s burden to establish the necessary best interest of the child as well as changed circumstances. (In re Audrey D. (1979) 100 Cal.App.3d 34, 43.) Her opinion testimony that a child should be with his mother was insufficient to prove further reunification efforts would be in U.L.’s best interests, if for no other reason than the child’s interest in permanency and stability at this late stage of the proceedings (In re Stephanie M. (1994) 7 Cal.4th 295, 317). In any event, the evidence about U.L.’s behavior during visitation fatally weakened what little showing mother did make.
On this record, we conclude the court did not abuse its discretion by denying mother’s request. (In re Stephanie M., supra, 7 Cal.4th at p. 318.)
II.
Mother also contends the court should have applied the parent-child relationship exception and found termination would be detrimental to U.L. (§ 366.26, subd. (c)(1)(B)(i).) In her view, U.L.’s aggressive behaviors during the bonding study were unusual and uncharacteristic of his normally affectionate behavior towards her. She also criticizes the therapist’s opinion that U.L. had attachment-related difficulties with her. Accordingly, she argues there was insufficient evidence to support a determination that she did not meet her burden of showing a beneficial relationship.
Once reunification services are ordered terminated, the court’s focus shifts to the child’s needs for permanency and stability. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) If, as in this case, the child is likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
Although section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1347.) It is the parent’s burden to show that termination would be detrimental under one of the exceptions. (In re Zachary G., supra, 7 7 Cal.App.4th at p. 809.) Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence but whether the juvenile court abused its discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
On review of the record, we find no abuse of discretion in this case. Simply put, mother did not present any persuasive evidence that termination would be detrimental to U.L. At most, she hypothesized the child would be lost and suffer harm if their relationship were terminated. Her hypothesis overlooked U.L.’s needs for permanency and stability. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) To the extent she claims U.L.’s aggressive behavior was unusual and otherwise criticizes the bonding study, her argument ignores the law that it was incumbent upon the court to terminate parental rights to U.L. unless she could prove termination would be detrimental to the child. (In re Jasmine D., supra, 78 Cal.App.4th at pp. 1349 & 1351.)
DISPOSITION
The order terminating parental rights is affirmed.