Opinion
B232662
11-01-2011
In re BYRON A., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. MIRNA L., Defendant and Appellant.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK58408)
APPEAL from an order of the Superior Court of Los Angeles County, Terry Truong, Referee. Affirmed.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Mirna L. (Mother), the mother of a child declared a dependent of the juvenile court in 2005, appeals from an order denying her petition pursuant to Welfare and Institutions Code section 388 to modify prior orders and return her son to her care. She also appeals from the subsequent order terminating her parental rights, arguing that the court should have found that the beneficial parental relationship exception applied, and precluded termination of parental rights. We affirm. The trial court properly concluded Mother's petition failed to allege sufficient facts to show that the best interests of the child would be served by the proposed change of order. We further conclude that Mother failed to demonstrate that the beneficial parental relationship exception applied such that her parental rights should be preserved.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Initiation of Dependency Proceedings
Byron A. (born in September 2002) came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) in March 2005 based on a referral alleging he was a victim of general neglect and physical abuse by Mother. It was further alleged that Mother had physically abused her roommate's two children, for whom she provided child care. It was alleged that she hit all of the children with belts and withheld food from them. Mother's home was filthy, cluttered, and infested with roaches. Byron was taken into protective custody. DCFS filed a section 300 petition in which it alleged Byron was a minor described by section 300, subdivisions (a), (b), (i), and (j) based upon Mother's physical abuse of Byron and the unrelated children, Mother's history of domestic violence with Byron's father, and the unsanitary condition of Mother's home. The court ordered Byron detained.
Allegations regarding Byron's father were also included in the petition. The father, Israel A., had very little involvement in the case and he is not a party to this appeal, so we need not discuss those allegations.
In May 2005, the juvenile court sustained the allegations pursuant to subdivisions (a) and (b) of section 300, and ordered DCFS to provide family reunification services for Mother. Mother was granted unmonitored visits with Byron.
As of July 2005, Mother's home was found to be clean and orderly. She had completed 12 parenting classes and 10 individual counseling sessions, and had been visiting with Byron regularly. During September 2005, Byron reported to his foster mother that his father had come to Mother's home during a visit and hit him in the face, then pushed Mother when she tried to summon help.
In October 2005, based on DCFS's recommendation, the juvenile court returned Byron to Mother's custody, but ruled that the family was to remain under DCFS's supervision, with family preservation services in place.
In January 2006, DCFS reported that Mother had been evicted from her apartment. DCFS was asked to initiate an evaluation of the home of a paternal cousin in Arizona as a potential place for Byron and Mother to live. It appeared, however, that Byron's father was living there, and DCFS reported that the parents had not adequately addressed the domestic violence issues between them. The court ordered that an evaluation be done of the home, but stated that Mother was not allowed to move to Arizona pending further investigation.
The social worker visited Mother at an apartment building where she said she lived, but upon arrival, it appeared to the social worker that Mother and Byron were living in her car. Shortly thereafter, Mother could not be located, and her family preservation services were therefore terminated in February 2006. At the request of DCFS, the court issued a protective custody warrant for Byron and an arrest warrant for Mother.
In late March 2006, the social worker learned that Mother was receiving mail at Byron's father's home in Arizona. The following month, a social worker spoke to Mother. Mother admitted that she had visited Arizona with Byron, but said she had been living with friends locally. However, Mother could not be reached at the telephone number she provided. Mother did not understand why her family preservation services had been terminated.
The Child's Second Detention
DCFS took Byron into protective custody and, in April 2006, filed a subsequent petition (§ 342) alleging Mother had abducted Byron and secreted him for two months in defiance of court orders. Byron had a medical examination and was found to have tonsillitis, head lice, and borderline anemia. DCFS filed an amended section 342 petition alleging Mother had failed to provide Byron with adequate medical care. The juvenile court sustained those allegations in June 2006, and changed the placement order from the home of Mother to a general suitable placement order. DCFS was ordered to provide family reunification services. Mother was ordered to participate in individual counseling, and was granted monitored visits for a minimum of four hours weekly.
In August 2006, DCFS reported that Mother was attending counseling and had obtained suitable housing. The juvenile court changed Mother's visits to unmonitored, provided she continue to attend counseling.
In December 2006, DCFS reported that Mother had moved into the home of nonrelatives, where she was renting the master bedroom. The social worker told Mother the other occupants of the home would have to submit to criminal background checks before Byron could be returned to her. However, the owners did not wish to do so; they were renovating the house without having obtained permits, and were also concerned about their immigration status. Mother had a new boyfriend, Jose R., who was attending counseling with Mother and accompanying her on visits with Byron. Byron's foster parents reported that he had been misbehaving and acting out aggressively in school. He had also been having toileting accidents, especially after returning from visits with Mother. When told about these problems, Mother blamed the social worker and the foster parents for the child's behavioral problems. The court ordered that Mother was to have unmonitored day visits on Saturdays, Sundays, and during the week, conditioned upon her continuing with counseling and complying with the case plan, and upon Mother and Jose R. not using corporal punishment.
By March 2007, Mother had moved into an apartment with Jose R. Both were employed, and Mother's therapist reported that she was consistently attending counseling. At the 12-month review hearing (§ 366.21, subd. (f)) held in March 2007, the court ordered that DCFS had discretion to release Byron to Mother's custody once "Wraparound" services were in place to assist Mother and Byron after reunification occurred. Mother was granted weekend overnight visits.
In late March 2007, Byron told his attorney's investigator that Jose R. had slapped his face and Mother had hit him with a belt on the face and buttocks. In addition, Mother and Jose R. had an argument in his presence that involved yelling and Mother throwing a phone against the wall. Byron also said that Mother was pregnant. Byron's foster mother reported that Mother and Jose R. had called her repeatedly and angrily threatened to sue her, accusing her of being the translator for the attorney's investigator and providing inaccurate information about the abuse. The record reflects that the investigator in fact spoke Spanish and did not need a translator. Byron repeated the same information to the DCFS social worker, indicating Mother had hit him with a belt more than once. The foster parents asked that Byron be removed from their home because his physical aggression coupled with the threats from Mother and Jose R. were too much to handle. The foster mother said that when Mother's visits were monitored, the visits ended well and Byron was not having problems with aggression at home or at school. When the visits were changed to unmonitored day visits, Byron began to display anger, physical aggression, and verbal outbursts toward his peers, teachers, and foster mother. Byron also began behaving angrily at the end of visits, and Mother had become argumentative and accusatory toward the foster mother once visits were unmonitored. For her part, Mother blamed Byron's aggressiveness on "the system," and made inappropriate statements to the foster mother such as, '"he does not like going back with you, he wants to be with me.'"
Mother initially denied that she was pregnant. However, a Wraparound service provider had observed in late March that Mother appeared to be about four to five months pregnant; Mother admitted shortly thereafter that she was, although she acted as if she had just discovered that fact. Mother denied that she or Jose R. hit Byron, and also denied arguing in front of him. Mother accused the foster mother of hitting Byron, although Byron denied this. The Wraparound provider also said there appeared to be another person living with Mother and Jose R., possibly Jose R.'s teenage son. The social worker expressed concern that Mother was dishonest even about insignificant issues.
Byron was placed in a new foster home in early April 2007. DCFS filed another section 342 petition, alleging that Mother and Jose R. had engaged in domestic violence in Byron's presence, and physically abused him by hitting him with a belt and slapping him. After holding a lengthy hearing over several days and considering briefing filed by the parties, the juvenile court sustained the petition, and ordered DCFS to continue providing family reunification services, including individual counseling, parenting classes, and domestic violence counseling. Mother and Jose R. were granted four hours of monitored visitation per week.
In late July 2007, Byron's new foster mother informed DCFS that she could no longer care for Byron because his behavior was uncontrollable. He physically attacked others when he was angry, wrecked his bedroom, yelled, and threw severe tantrums. Byron was therefore placed in a different home with foster parents who had agreed to care for him on a temporary basis.
Mother and Jose R. enrolled in a parenting class and domestic violence counseling, but the latter was a program for victims of violence and DCFS indicated Mother and Jose R. instead needed to be in a program for batterers. Mother had given birth to a baby girl, Kathy R. Mother continued to deny that she had done anything wrong with regard to the original allegations of physical abuse that led to Byron's initial detention, her absconding with Byron to Arizona, or Byron's most recent revelations of abuse. DCFS expressed doubt that Mother had benefited from the 25 months of family reunification services she had received, despite her compliance with court orders, and expressed concern that she would not stop using belts to discipline Byron.
DCFS filed a section 300 petition with regard to Kathy R., which was sustained as amended. In early December 2007, DCFS held a team decisionmaking meeting at which it was decided Kathy could safely remain in Mother's custody. The juvenile court held an 18-month review hearing (§ 366.22) regarding Byron in late December 2007. The court noted that Mother had complied with court-ordered programs, but had not made substantial progress toward alleviating the circumstances which necessitated Byron's being declared a dependent child. The court therefore terminated Mother's family reunification services, and scheduled a section 366.26 permanency planning hearing.
Proceedings After Termination of Family Reunification Services
Family reunification services were terminated in December 2007. It was not until April 2011 that a section 366.26 hearing was finally concluded. It appears that the delay was occasioned by the fact that Byron's severe behavioral problems made finding an adoptive family difficult, and even when one was located, Byron required a substantial period of time to adjust to the new placement.
Following termination of family reunification services, DCFS reported in April 2008 that Byron was being seen by a psychiatrist, who evaluated Byron as demonstrating hyperactivity, impulsivity, and physical aggression. The psychiatrist prescribed medication to help control his behavior. Byron's foster mother monitored Mother's visits and remarked that Mother tended to hold her baby daughter and pay little attention to Byron, and did not intervene when Byron misbehaved or had an angry outburst. During visits, Byron "'[did] his own thing' and hardly approache[d] his mother when he need[ed] something."
Byron's foster mother was very effective at setting limits and controlling his behavior, but she was not interested in adopting him. DCFS requested that the court continue the section 366.26 hearing to give it more time to locate a prospective adoptive home for Byron.
In its June 2008 status review report, DCFS reported that Byron's foster mother said his behavior had improved. However, he often defecated on himself when he got angry and frequently cried out of frustration. A new social worker had been assigned to Byron's case, and observed a visit between Byron and Mother in April 2008. She noticed that Byron appeared very happy to see Mother and sat in her lap; Byron seemed to be bonded to Mother. However, during a visit with Mother in late April 2008, which was monitored by the foster mother, Byron had a tantrum and defecated in his pants. Mother asked the foster mother to hold her infant while she took Byron to the restroom to change his clothes. They stayed in the bathroom for half an hour. Byron later told his foster mother that Mother had hit him on the face; his cheek was red and he had a cut on his upper lip. Mother denied hitting him, and said he had fallen and gotten injured. Mother told the social worker that she believed she could provide proper care for Byron, and did not believe that he had any behavioral problems or special needs because she had never witnessed any. DCFS recommended that Mother's parental rights be terminated because she had not taken responsibility for her previous actions, continued to use inappropriate corporal punishment, and did not comprehend the extent and severity of Byron's "extreme special needs."
In contrast, in December 2008, based upon DCFS's recommendation, the juvenile court terminated dependency jurisdiction over Byron's half-sister, Kathy.
Byron's foster mother reported that Mother was frequently one to two hours late for scheduled visits, and noted that visits occurred only because the foster mother made sure they happened. During visits, Mother continued to focus on Kathy and pay little attention to Byron. Even when he endangered his safety by, for example, climbing on a high chair, standing on a table and jumping off, and dangling his legs off the sides of a slide, Mother did nothing to control his behavior. During one visit, Jose R. told Mother to stop reading her book and pay attention to Byron, and Mother angrily threw the book aside. Mother did not request any visits with Byron during the holidays in December 2008. Byron's severe misbehavior in school necessitated that a meeting be arranged to establish an individualized educational plan, but the social worker had difficulty getting Mother to return the required forms, and when invited to attend the meeting in April 2009, Mother declined, saying she had "other things to do." DCFS therefore recommended that Byron's foster parents be appointed to hold educational rights instead of Mother. Mother telephoned Byron most every day, and they would talk for about five minutes.
Byron was placed in a new foster home in January 2009 because DCFS felt his previous foster mother was hindering the adoption process. Byron had severe difficulty adjusting to his new school, where he was in first grade. When he was angry or frustrated, he would cry, scream, run away and hide, or wedge himself under or between objects, or run toward the street. He threw things, and kicked and hit other children and teachers. He broke a school staff member's finger during June 2009. Byron wet his pants almost every day and also during the night. His psychiatrist prescribed medication for this condition, and two additional medications to control his ADHD and mood disorder.
In March 2009, Byron began having visits with a prospective adoptive mother, who had been his Wraparound specialist and was therefore familiar with his behavioral issues. Byron enjoyed his visits and the prospective adoptive mother appeared well able to control and redirect his misbehavior. In July 2009, Byron expressed a desire to live with the prospective adoptive mother. However, in December 2009, DCFS reported that although Byron enjoyed visits with his prospective adoptive parent, he said he wanted to live with Mother because she loved him.
In April 2010, Byron began living with the prospective adoptive mother and her partner. Byron had difficulty adjusting to the new placement. His behavior at home and at school had again deteriorated. Byron began threatening his prospective adoptive mother that he would tell the social worker or Mother that she hit him. Byron was performing below grade level in school, and was receiving special education services. He was hitting and biting other children at school, and disrupting class by running around, screaming, kicking tables, and making noises. Byron was assigned a one-on-one assistant to attend him during school hours. He continued to have toileting accidents, frequently wetting and soiling himself. The social worker noted that Byron had learned that his defiance and tantrums had in the past caused adults to give in to him, but he was finding himself unable to manipulate his prospective adoptive mother. She established a structured environment for him, setting clear expectations and consistently imposing consequences for misbehavior. The prospective adoptive mother had increased his therapy sessions to twice per week to assist him with the transition, talked to Byron's teacher several times per week, and advocated for Byron at school to ensure that he received the special educational services he needed. She had also acquired a tutor for Byron to improve his academic skills.
Mother visited with Byron on a consistent basis, and the visits were described as being appropriate. Mother also telephoned almost every day, but the calls lasted only about two minutes because Byron refused to talk. During a visit monitored by the prospective adoptive mother, Byron hit another child. The prospective adoptive mother began to correct Byron, but Mother undermined her and instead babied Byron. The prospective adoptive mother reported that Byron tended to soil himself either before, during, or after visits with Mother. Byron seemed to distance himself from Mother during visits, often engaging more with his sister.
The Section 388 Petition
In June 2010, Mother filed a section 388 petition in which she requested that the court order that Byron be returned to her custody with family maintenance services in place, or at least grant her unmonitored overnight visits. She asserted that she had fully complied with her case plan, been appropriate with Byron during visits, and gained further insight into his diagnosis of ADHD. She pointed out that Byron had been in numerous placements, and argued that his interest would best be served if he were returned to his Mother as that would be the most permanent placement for him. The court granted Mother a hearing on the section 388 petition.
In response to Mother's section 388 petition, DCFS reported in August 2010 that the social worker had discussed Byron's behavioral problems with Mother to ascertain her level of insight into those problems. Mother said that on a scale of one to ten (one being good behavior and ten being severe acting out), that Byron was a three when he was with her and a four to five when he was at school. Mother said he sometimes got frustrated, but that he was merely confused and unstable because of his multiple placements. In her view, Byron needed a lot of patience and love, but she questioned whether he needed medication. Mother felt Byron was no longer aggressive and that he only had problems at school. She said that day was the first time Byron had ever thrown a tantrum during a visit with her. Asked if she believed the child was hyperactive and whether the child acted out, Mother replied, "'No, I think he is like any other child who runs and plays with other children.'"
The prospective adoptive mother's home study was approved in early August 2010. The prospective adoptive mother reported that there had been several incidents during monitored visits and at school when Byron was physically aggressive toward other children and even school personnel. Byron continued to test everyone in the household to see who would give in to him. When he began living with the prospective adoptive mother, she had to redirect Byron's behavior several times every hour, but of late, she was only required to redirect him two or three times per day. She stated that she provided a highly structured environment in which she immediately imposed consequences for misbehavior, and also immediately praised him for good behavior. Byron's school indicated that he needed constant supervision during class, recess, and lunch times, otherwise he would punch, kick, bite, run away, have tantrums, and yell. He was taking several prescribed medications in order to regulate his behavior. DCFS opposed returning Byron to Mother's care because she did not understand how severe his behavioral problems were, and DCFS believed Mother could resort to physical abuse in response to his behavior, as she had done in early 2007 during an unmonitored visit, and again in early 2008 during a monitored visit.
In late September 2010, the juvenile court ordered DCFS to obtain a report from Byron's therapist addressing the strength of the child's relationships with his prospective adoptive parents and Mother. In the meantime, the social worker observed Byron's visits with Mother on two occasions, and reported that Mother had begun to interact with Byron more but did so at the expense of her daughter, Kathy. Mother immediately gave in to Byron's tantrums and gave him whatever he wanted, including items Kathy was playing with, and Mother did not appear to realize or be concerned that Kathy became very upset. Mother did not establish any rules, boundaries, or structure for Byron, and let him have his way in order to avoid his tantrums.
DCFS reported in December 2010 that Byron told the social worker that he was happy in his prospective adoptive mother's home and wanted to live with her forever. He said he did not want to live with Mother. DCFS noted that Mother had been visiting Byron for one hour per week, but requested that her visits be increased to four hours per week when Byron moved to the prospective adoptive mother's home, which was closer to Mother's residence. When Mother's visitation time increased, however, Byron began acting out considerably more at home and in school. Mother continued to demonstrate her inability to effectively manage Byron's behavioral issues.
Byron's therapist stated that Byron said he did not want to visit Mother anymore. Byron had recently been aggressive toward the therapist, his peers, and school staff (including biting the principal). He tended to act out on days he visited with Mother or the following day. The therapist had worked closely with the prospective adoptive mother, and said she was very supportive, provided structure, sought outside help, and collaborated well with professionals involved in Byron's case. Byron appeared to feel understood, trusting, attached, and safe with the prospective adoptive mother and her partner, as evidenced by the fact he confided in them regarding his thoughts, feelings, and actions.
Mother's interaction with Byron was observed by a neutral therapist, who observed that Byron did not engage much with Mother. Byron appeared to be withdrawn as he played by himself, and sometimes isolated himself by sitting or lying down on the jungle gym. Mother appeared to lack limit setting as she allowed Byron and Kathy to break the jungle gym rules. Byron was prompted at the end of the visit by his prospective adoptive mother to hug Mother, but he only "half hugged" Mother "without moving." The prospective adoptive mother reported that before the visit, Byron had difficulty taking his medication and following his routine, had wet himself, and was hyperactive at school. He appeared to be back to his usual self after the visit, though he was moody the following day. The therapist noted that Byron's interactions with the prospective adoptive mother and her partner were playful and affectionate, and he was talkative and comfortable speaking up for himself with them.
In an addendum report prepared in February 2011, the social worker reported that Byron said he wanted to be adopted by his prospective adoptive parents. When asked about the possibility of living with Mother, Byron said she could live closer to them and just visit. He said visits with Mother were fun because he got to play with other children in the playground. Byron said that during visits Mother would talk to the former foster mother (the monitor) for four hours. He said he would spend 10 seconds with Mother and then go play.
The Hearing on the Section 388 Petition, and the Permanency Planning Hearing
In April 2011, the juvenile court held a contested hearing regarding Mother's section 388 petition and the termination of her parental rights. Byron first testified he did not want to live with Mother, rather he wanted to live with his prospective adoptive mother. He said he wanted to visit with Mother. Byron said he would feel mad and sad if he did not get to see Mother and Kathy. He said he loved Mother. When his own counsel asked if he wanted to live with Mother, he said, "Yes and maybe no," and explained that it was hard to make a choice about living with someone. Byron later said he considered his prospective adoptive mother to be his mother.
Mother testified that she was aware Byron had ADHD, and that meant he needed medical treatment. She knew he behaved aggressively. She said she had read books about his diagnosis. She had completed programs in parenting (which included information about ADHD), domestic violence, and individual counseling. She felt she was prepared to have Byron in her care. During visits with Byron, she had never seen him misbehave or show symptoms of his behavioral problems such as severe aggression. She learned in parenting classes that children with behavioral issues need to be treated with a lot of patience and understanding. Asked what structure she would put in place for Byron, she said, "[a] lot of control with chemicals and stuff like that with him, and being very careful that he's not going to hurt himself." She said she was aware that Byron needs one-on-one attention, and said her sisters would help her care for Kathy while she was with Byron. She said she would not use physical discipline with Byron. Mother had attended meetings at Byron's school regarding his individualized educational plan, and they had discussed his aggressive behavior toward other children.
Mother's counsel argued with regard to the section 388 petition that Mother had demonstrated changed circumstances by completing her court-ordered programs, and noted that family preservation services could assist Mother in dealing with Byron's behavioral problems. Regarding termination of parental rights, Mother's counsel argued that Mother was involved in Byron's life and it would be detrimental to him to terminate her parental rights. Mother had visited with Byron consistently and interacted well with him in the context of the monitored visitation she was allowed.
Byron's counsel countered that although Mother had completed her programs, the nature of her relationship with Byron had not changed, as she was not involved with Byron during visits and did not take parental action when he needed redirection. Counsel requested that the court deny Mother's section 388 petition because returning Byron to Mother's custody would not be in his best interest. It did not appear that Mother would be capable of addressing Byron's behavioral problems in a consistent manner. Regarding termination of parental rights, Byron's counsel argued that Mother had never acted in a parental role after Byron was removed from her custody. Byron enjoyed the visits and spending time with his sister, but not such that continuing those relationships outweighed the benefit that permanency would afford him.
The court took the matter under submission, and later issued a written ruling denying the section 388 petition and terminating parental rights. The court found that while Mother arguably demonstrated changed circumstances by completing her court-ordered programs, she had not demonstrated that it was in Byron's best interest to be returned to her custody or have overnight, unmonitored visitation with her. It did not appear to the court that Mother had benefited from the classes and counseling, as she had difficulty setting limits for Byron during monitored visits. She had not acted in the role of parent and did not appear to fully understand Byron's special needs. Regarding the nature of the relationship between Mother and Byron, the court noted it was significant that Mother had not moved beyond monitored visitation since Byron was removed from her care the second time. He enjoyed visitation, but appeared to enjoy his relationship with his sister more than that with Mother. The court found there was insufficient evidence to show that the parent-child relationship between Mother and Byron outweighed the benefit Byron would gain from remaining with his prospective adoptive family.
This timely appeal followed.
DISCUSSION
I. Modification of Prior Orders Was Not in Byron's Best Interest
Section 388 authorizes a petition to modify a prior order of the juvenile court "upon grounds of change of circumstance or new evidence." (§ 388, subd. (a).) "If it appears that the best interests of the child may be promoted by the proposed change of order . . . the court shall order that a hearing be held . . . ." (§ 388, subd. (d).)
A section 388 petition may be filed and heard at any time, up to and including the time of the section 366.26 hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) However, once reunification services are terminated, a presumption arises that "continued care [under the dependency system] is in the best interest of the child." (Id. at p. 310.) At that point, the burden is on the parent to "rebut that presumption by showing that circumstances have changed that would warrant further consideration of reunification." (Ibid.) Whether to grant the petition "is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion." (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
In order to revive the reunification issue and obtain additional reunification services through a section 388 petition, "[t]he parent must show that . . . undoing . . . the prior order would be in the best interests of the child. [Citation.]" (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) The specific factors a court may consider in deciding whether to grant a petition for modification vary with each case; at a minimum, however, "each child's best interests would necessarily involve eliminating the specific factors that required placement outside the parent's home." (In re Angel B. (2002) 97 Cal.App.4th 454, 463-464.) Among the factors the court may consider are "the seriousness of the reason for the dependency in the first place" (Kimberly F., supra, 56 Cal.App.4th at p. 530); "the strength of the existing bond between the parent and child" compared to "the strength of [the] child's bond to his or her present caretakers, and the length of time a child has been in the dependency system in [relation] to the parental bond" (id. at p. 531); and "the nature of the change, the ease by which the change could be brought about, and the reason the change was not made before . . . ." (Ibid.)
Here, Byron was removed from Mother's home in March 2005 because she used physical abuse as a form of discipline, and was herself involved in an abusive relationship with Byron's father. Although Byron was returned to her custody in October 2005 for a brief period, he was promptly removed again in April 2006 after Mother defied court orders by taking the child to Arizona. During that time, she also appeared to be homeless, and neglected his medical needs, leading to the filing of a subsequent petition. Thereafter, Mother visited Byron on a regular basis, and was granted unmonitored visitation in August 2006. But that lasted only until March 2007, when Byron reported that Mother hit him with a belt and her boyfriend slapped his face during a visit, and they fought in his presence. Mother never regained unmonitored visitation, and family reunification services were terminated in December 2007. In April 2008, Mother hit Byron again during a monitored visit when he soiled his pants. Thus, even though Mother participated in parenting classes and counseling, she did not incorporate the necessary changes into her life that would have made returning Byron to her custody a possibility. She minimized or failed to understand the severity of his behavioral problems, and never demonstrated that she had the capacity to care for him and provide him with the consistent structure and limits he needed. During visits, she gave in to his tantrums immediately to placate him rather than trying to set limits and require his compliance. Perhaps most importantly, she refused to acknowledge the fact that she had hit him in the past, and she therefore presented the risk that she would use corporal punishment in response to his acting out if he were returned to her custody and she was left to care for him on her own. Her comments to the social worker and at trial made clear that she knew very little about how to manage a child with his behavioral difficulties.
In addition, Mother's bond with Byron was not a strong one. He had been out of her care for five years by the time the court decided her section 388 petition. During that time, their visits were pleasant enough, but numerous observers noted that neither of them focused on one another during visits. On the other hand, Byron's prospective adoptive mother demonstrated an abiding commitment to caring for him, and also demonstrated excellent ability in providing him with a structured environment and in advocating for him at school and with other professionals involved in his care. Although Byron initially had difficulty adjusting to her home because she was so firm with him, by the time the section 388 petition was heard, he stated quite clearly that he wanted to be adopted by her and live with her forever. At the hearing, he expressed some ambivalence about choosing where he wanted to live because he still wanted to have contact with Mother. But therapists and other observers were unanimous in reporting that he appeared most bonded, comfortable, and secure with his prospective adoptive family.
Byron had remained in limbo for a lengthy amount of time. Byron required constant supervision, and during the year that Byron lived with his prospective adoptive mother, she showed that she was able to provide him with the care he needed. His prospective adoptive family represented long-awaited stability. Returning Byron to Mother's custody was manifestly not in his best interest, and delaying the permanency adoption would afford in order to allow Mother to have unmonitored overnight visitation was also counter to his interests. We find that the court acted well within the bounds of its discretion in denying the section 388 petition.
II. The Beneficial Parental Relationship Exception to Termination of Parental Rights Does Not Apply Here
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Celine R. (2003) 31 Cal.4th 45, 53.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds a compelling reason for determining that termination of parental rights would be detrimental to the child under one of the exceptions set forth in section 366.26, subdivision (c)(1). One such exception is the beneficial parental relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i). (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206 [discussing former § 366.26, subd. (c)(1)(A)].) This exception applies when the parents "have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) The phrase "benefit from continuing the relationship" refers to a parent/child relationship that "promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) It is the parent's burden to show that the beneficial parental relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)
We note that respondent filed a motion to strike the references in Mother's opening brief to articles by Beyer & Mlyniec that were not before the juvenile court. Given the facts presented here, we find the articles to be irrelevant and we therefore did not consider them in reaching our conclusions.
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As we discussed above in relation to the denial of Mother's section 388 petition, Mother failed to demonstrate that she and Byron shared a significant bond. She did not show that their relationship was such that it would be detrimental to him if her parental rights were terminated. Indeed, it appeared that at times contact with Mother was detrimental to Byron's emotional state. He had more toileting accidents and behavioral problems when the length of Mother's visits was increased after he began living with the prospective adoptive mother. His description of visits with Mother indicated he had fun, but what he most enjoyed was the free play time, and playing with his younger sister, while distancing himself from Mother. However, he was playful and comfortable with his prospective adoptive family, and demonstrated that he trusted them to provide for his needs. We readily conclude that the court did not abuse its discretion by finding that Mother and Byron's relationship did not constitute a compelling reason to preclude adoption.
DISPOSITION
The order of April 22, 2011, denying Mother's section 388 petition and terminating parental rights is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J.
We concur:
WILLHITE, Acting P. J.
MANELLA, J.