Opinion
D059684 Super. Ct. No. J17425
10-26-2011
In re C.R., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. D.G., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from orders of the Superior Court of San Diego County, Cynthia A. Bashant, Judge. Affirmed.
D.G. appeals orders terminating her parental rights to her son, C.R., and denying her Welfare and Institutions Code section 388 petition. She contends the juvenile court erred by denying her section 388 petition because she showed changed circumstances and that it would be in C.R.'s best interests to return him to her custody. She argues C.R.'s relationship with his foster family cannot prevent his return. In the alternative, she asserts the court erred by terminating parental rights because her relationship with C.R. comes within the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i) to termination of parental rights and adoption. We affirm the orders.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
C.R. tested positive for marijuana at birth in February 2009. C.R.'s father, A.R., and D.G. were offered voluntary services and C.R. remained in their custody. A short time later, D.G. tested positive for marijuana and C.R. was detained voluntarily in foster care. In March D.G. and A.R. engaged in domestic violence in C.R.'s presence. They hit and yelled at each other and A.R. grabbed and choked D.G. and pulled her along the sidewalk. D.G. admitted she and A.R. had had numerous domestic violence incidents.
The San Diego County Health and Human Services Agency (the Agency) petitioned under section 300, subdivision (b) on C.R.'s behalf based on the domestic violence.
After a hearing in April 2009, the court found the allegations of the petition to be true, declared C.R. a dependent child of the court, removed him from parental care, ordered him placed in foster care and ordered reunification services. D.G.'s case plan included domestic violence classes, parenting education and substance abuse treatment.
D.G. started a parenting class in March 2009, complied with substance abuse treatment requirements and in August began domestic violence classes. She had consistent supervised visits with C.R. At the six-month review hearing in December, the court continued D.G.'s services.
However, D.G. then relapsed into marijuana use. She tested positive for marijuana eight out of ten times from December 2009 until March 2010, and she stopped participating in services. Her domestic violence counselor discharged her for nonattendance, she stopped working with her in-home parenting instructor and in February she stopped visiting C.R. She then re-engaged in services and by May was again having consistent visits with C.R. However, the social worker reported, although D.G. was participating in services, she continued to have impaired safety skills and poor boundaries and she needed to recognize children's developmental milestones and better understand how domestic violence affects them. At the 12-month hearing in July, the court terminated D.G.'s services and set a section 366.26 hearing.
The social worker assessed C.R. as adoptable. His foster parent had cared for him since he was one month old. She had become his de facto parent and wanted to adopt him. In addition, there were numerous other families wanting to adopt a child with C.R.'s characteristics.
D.G.'s visits remained supervised. The social worker said D.G. was attentive and affectionate, but D.G. did not readily engage C.R. in hands-on play and he had a flat affect during visits. The visitation monitor said as time went on D.G. began responding to C.R. more appropriately and taking on more of a parental role. At the end of visits he would easily separate from her and waive goodbye.
The social worker said D.G. continued to attend therapy and had completed a substance abuse treatment program. D.G. had recently married and had a new baby. Her new husband, J.T., said he had witnessed domestic violence in his own childhood and he admitted using marijuana, but he said he had stopped when he began dating D.G. in January 2010.
In January 2011, D.G. petitioned under section 388. She argued her circumstances had changed and it was in C.R.'s best interests to return to her care. She said she had completed parenting classes, substance abuse treatment and a domestic violence course, and she had continued to visit C.R. and had established a relationship with him. The court found D.G. had made a prima facie showing and set an evidentiary hearing.
In April 2011, at the section 366.26 hearing and the hearing on D.G.'s section 388 petition, D.G.'s parenting counselor testified D.G. had participated in parenting classes from July until October 2009, had stayed in contact with the teachers and continued to ask them for advice. The leader of D.G.'s domestic violence group testified D.G. had actively participated in domestic violence classes. She said D.G. appeared to have expanded her understanding and awareness of domestic violence, but had difficulty understanding how trauma affects children at different ages. The counselor said D.G. had limited to moderate insight into how to identify family issues and trauma, and this could impact her choices in future relationships.
D.G.'s therapist testified D.G. was able to verbalize behaviors associated with domestic violence, had acquired coping skills to reduce her domestic violence symptoms, had written a safety plan and had acknowledged some of how C.R. was affected by witnessing domestic violence. D.G.'s drug abuse counselor testified D.G. had participated in treatment, tested clean throughout the program and learned skills to prevent relapse.
The visitation monitor testified she had monitored D.G. and C.R.'s visits for seven months. She said D.G. was appropriate during visits, her relationship with C.R. appeared to had grown stronger during the last four months, and C.R. separated easily from D.G. at the end of visits.
The social worker testified, in her opinion, D.G. did not fully understand the dynamics of domestic violence, how it applied to her and how it adversely affects children. She said visits were appropriate and she would have no concerns with D.G. having unsupervised visits, but, although D.G.'s attorney had requested them one month before the section 366.26 hearing, D.G. had never asked for them. The social worker said unsupervised visits were not a focus because services had been terminated. The social worker did not believe D.G. and C.R. had a parent-child relationship or that severing the relationship would be detrimental to C.R. Also, she was concerned that D.G. had married a man with domestic violence in his background, they had a new baby, and she had relapsed while she was in a relationship with him. The social worker also noted D.G. was not financially independent and she did not have a plan of how to care for two children should something harmful happen to the family.
D.G. testified she had been attending Narcotics Anonymous and she understood the red flags of domestic violence and had created a safety plan. She had regular visits with C.R. and her home was ready for him.
After considering the evidence and argument of counsel, the court denied D.G.'s section 388 petition, finding she had shown changed circumstances, but it would not be in C.R.'s best interests to return him to her care. The court found C.R. was likely to be adopted if parental rights were terminated and none of the statutory exceptions to termination of parental rights and adoption were present. The court terminated parental rights and selected adoption as the permanent plan.
DISCUSSION
I
D.G. contends the court abused its discretion by denying her section 388 petition. She maintains she showed changed circumstances and C.R.'s best interests would be served by granting the petition. She argues his relationship with his foster family cannot prevent his return to her custody.
After a court has terminated reunification services, "the focus shifts to the needs of the child for permanency and stability." (In re Hashem H. (1996) 45 Cal.App.4th 1791, 1800.) At this point, the child's interest in a permanent home outweighs the parent's interest in reunifying with the child. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) However, "[e]ven after the focus has shifted from reunification, the [statutory] scheme provides a means for the court to address a legitimate change of circumstances while protecting the child's need for prompt resolution of his custody status." (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
A change of circumstances may be brought to the court's attention through a petition under section 388. Section 388 provides in part:
"(a) Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. [¶] . . . [¶]
"(d) 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 . . . ."
In order to gain the relief sought in a section 388 petition, the petitioner must show both a change of circumstances or new evidence and that the change sought is in the minor's best interests. (§ 388; Cal. Rules of Court, rule 5.570; In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) The petitioner bears the burden of proof to make both showings. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
"The [section 388] 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.) A reviewing court will not disturb a court's discretionary ruling in a dependency proceedingunless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]. (In re Stephanie M., supra, 7 Cal.4th at p. 318.)
The court did not abuse its discretion by denying D.G.'s section 388 petition. By the time of the hearing on the petition, C.R. was two years old and had lived with his foster parent for all but one month of his life. The hearing was held a full two years after the Agency had filed a section 300, subdivision (b) petition on his behalf. During the 16 months D.G. was offered services, her participation was inconsistent and she did not make substantive progress. She re-involved herself in services after the court terminated them, but meanwhile, C.R. had continued to live in his foster home with his caregiver, who provided for all of his daily physical and emotional needs.
Although C.R.'s relationship with his foster mother was a factor for the court's consideration, the denial of D.G.'s section 388 petition was not based on this reason alone. Although D.G. had been participating in reunification services, her understanding of the issues surrounding domestic violence and her ability to apply the concepts she had been taught remained a significant concern. Counselors who had worked with D.G. lacked confidence in her ability to provide a safe home for C.R., free from fighting and violence.
In In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-532, the appellate court listed three factors a court might consider when determining if a child's best interests would be served by granting a section 388 petition: (1) the seriousness of the problem that led to the dependency and the reasons for any continuation of the problem; (2) the strength of the bond between the child and the caretaker; and (3) the degree to which the problem may be removed and the degree to which it has been removed.
D.G.'s history of engaging in domestic violence was very serious. She admitted there had been numerous domestic violence incidents during her relationship with C.R.'s father, A.R. D.G.'s therapist reported D.G. "struggles with denial and minimization surrounding some of the aspects of the domestic violence dynamics she was exposed to in her relationship with her son's father." The counselor for her domestic violence group stated D.G. had some difficulty identifying the effects that witnessing domestic violence had on her children and struggled to understand the long-term effects of trauma and its effects on children of different developmental phases. She also had problems understanding how her own family of origin would affect her choices of future relationships. Her domestic violence counselor noted it would be seen as a red flag for a domestic violence victim to choose a partner with domestic violence in his background, but D.G. had not recognized this, and had not brought up with her therapist the fact that J.T. had experienced domestic violence in his childhood. Also, she was financially dependent on J.T. and did not have a plan for how to provide for C.R. in the event of a domestic violence incident. The concern of domestic violence had not been entirely resolved.
As for the second factor, a comparison of the strength of the bonds between the child and the parent and the child and the caretaker, although D.G. had had consistent visits with C.R. for most of the months of the dependency period, it was the foster mother to whom he looked to provide comfort and stable, reliable parental care. D.G. was affectionate and appropriated during their visits, but the visitation monitor observed C.R.'s demeanor was flat during visits with her, he did not engage with D.G. the way he engaged with the foster mother and he separated easily from D.G. when visits ended. By contrast, he was very bonded to his foster mother and appeared happiest in her presence.
Considering the third factor, "the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been" is not helpful to D.G.'s cause. (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.) D.G. had not been able to understand fully how domestic violence affects children of different ages and stages of development and particularly how it affected C.R. when she and A.R. engaged in domestic violence. The progress reports for D.G.'s domestic violence group showed grades indicating she had limited understanding and insight regarding the video, "Children, Trauma & Attachment," and the topic, "The Effects of [Domestic Violence] on Children," and her grades were limited to moderate for other subjects. The leader of the group said, although D.G. was motivated, she had some difficulty showing she was able to apply the information she learned to her personal experience, and she needed more understanding of child developmental milestones and extra help and repetition to grasp the information presented. D.G.'s therapist wrote that D.G. was in the beginning stages of therapeutic treatment. The therapist testified D.G. was able to articulate only some of a child's developmental milestones and to acknowledge some of the impact to C.R. of witnessing domestic violence as an infant. She further testified D.G. had not informed her that J.T. had come from a family where there had been domestic violence so this fact was not discussed in therapy. Because there was serious concern whether D.G. would be able to apply the information and concepts about domestic violence she had been taught to her own life to enable her to provide a safe home for C.R., she did not show C.R.'s best interests would be served by granting her section 388 petition. The court did not abuse its discretion by denying the petition.
II
As an alternative argument, D.G. asserts C.R.'s positive relationship with her comes within the beneficial parent-child relationship exception to termination of parental rights and adoption of section 366.26, subdivision (c)(1)(B)(i).
If the court finds by clear and convincing evidence that a child is likely to be adopted, it becomes the parent's burden to show termination of parental rights would be detrimental to the child because a specified statutory exception exists. (In re Autumn H. (1994) 27 Cal.App.4th 567, 574.) Under the exception found in section 366.26, subdivision (c)(1)(B)(i), the parent is required to show termination would be detrimental in that "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." In In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, the court noted "[c]ourts have required more than just 'frequent and loving contact' to establish the requisite benefit for [the] exception." In interpreting the meaning of "benefit" in section 366.26, subdivision (c)(1)(B)(i), this court stated in In re Autumn H., supra, at page 575:
"In the context of the dependency scheme prescribed by the Legislature, we interpret the 'benefit from continuing the [parent/child] relationship' exception to mean the relationship 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 reviewing whether there is sufficient evidence to support the trial court's finding, the appellate court reviews the evidence in the light most favorable to the trial court's order, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
Assuming D.G. maintained regular visitation and contact with C.R., she did not show she had a parent-child relationship with him that was so beneficial that termination of parental rights would be detrimental to C.R. D.G. had a friendly relationship with C.R., and she would bring food to visits, choose appropriate toys for him to play with at the visitation center, change his diapers and show affection. Although C.R. was content during the visits and appeared happy to see D.G., he also appeared happy to leave and separated easily from her when visits ended.
At the time of the section 366.26 hearing, C.R. was two years old. He had lived with D.G. for only one month of his life and she had weekly supervised visits with him. He had been with his foster mother for 25 months. She provided for all of his daily needs and he looked to her for comfort and security. D.G. did not show the benefit of maintaining her parent-child relationship with C.R. outweighed the benefit he would gain from adoption into a permanent home. Substantial evidence supports the court's finding the parent-child relationship exception to termination of parental rights and adoption of section 366.26, subdivision (c)(1)(B)(i) did not apply.
DISPOSITION
The orders are affirmed.
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HALLER, J.
WE CONCUR:
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BENKE, Acting P. J.
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O'ROURKE, J.