In re T.C.

In re T.C.

Filed 8/5/08 In re T.C. CA21/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re T.C., a Person Coming Under the Juvenile Court Law.	B202846 (Los Angeles County Super. Ct. No. CK47092)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. TRACEY C., Defendant and Appellant.

APPEAL from orders of the Los Angeles County Superior Court. Albert J. Garcia, Commissioner. Affirmed.

Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.

* * * * * * *

Tracey C. (father) appeals from juvenile court orders denying his petition under Welfare and Institutions Code^[1]section 388 and thereafter terminating parental rights to his daughter, T.C., under section 366.26. Father contends the juvenile court abused its discretion because there was substantial evidence of a change in his circumstances and the evidence compelled application of the beneficial parental relationship exception to adoption. We affirm.

FACTS AND PROCEDURAL HISTORY

The record in this case is voluminous, but the essential facts are simple.

In June 2005, four-month-old T.C. was detained after being hospitalized for failure to thrive. Her toxicology screen was positive for marijuana. An amended petition filed by the Department of Children and Family Services (Department) in August 2005 alleged, among other things, that T.C. was underfed or undernourished, that mother had failed to comply with a voluntary family maintenance agreement to participate in individual counseling and to take appropriate care of T.C.,^[2]and that mother and father had medically neglected the child. The amended petition further alleged that T.C.s four half siblings by a different father were dependents of the juvenile court due to mothers physical abuse and medical neglect of half sibling S.B. Father allegedly also physically abused three of the half siblings, placing T.C. and her other half siblings at risk of similar physical abuse by father.^[3]

Father admitted the allegations and was ordered to comply with a case plan that included parent education, individual counseling to address the issues in the petition, and anger management. Father was granted twice weekly monitored visitation with T.C.

T.C. was placed in the home of a paternal cousin who was willing to adopt T.C. if the parents could not be reunified with the child.

Father attended anger management classes and enrolled in parenting classes. However, he refused to attend individual counseling, claiming he was not ordered to do so. He threatened to sue the Department if T.C. was not returned to him.

The court ordered an Evidence Code section 730 evaluation of father to determine if father presented a physical risk to T.C. He blamed mothers abuse of T.C.s half sibling on drug dealers in the area who had made threats. He also believed the doctors who admitted T.C. into the hospital wrongly diagnosed her condition and that there was a false positive for marijuana in her system. Father discounted an incident that allegedly had occurred when he was an employee of the Los Angeles Unified School District (LAUSD) in which he was accused of grabbing an 11-year-old boy around the neck and hitting the boy repeatedly in the head with a basketball, after the minors basketball had accidentally hit fathers car. Fathers testing showed defensiveness and denial that was so entrenched as to invalidate the test results. The psychologist recommended that fathers visits with T.C. remain monitored until father showed a willingness to address in counseling his high threshold for tolerance of abuse or neglect of children. The evaluation suggested father might benefit from individual therapy to confront a pattern of defensiveness, denial and blaming of others for the conditions that led to T.C.s detention.

In a supplemental report prompted by fathers threat to report him to the medical board, the psychologist notified the court that father had failed to reveal during the prior evaluation the sustained allegations of his physical abuse of T.C.s half siblings. The psychologist urged the court to exercise caution in imminently releasing the minor to [father].

In April 2006, the juvenile court granted father an additional six months of reunification services specifically ordering him to attend individual counseling. The court expressly told father he had only six more months to reunify with T.C.

For the contested 12-month hearing, the Department reported father had claimed to have attended individual counseling and completed his court-ordered programs. Father provided the Department with a note from a psychotherapist tersely stating only that father had attended his counseling regularly and that he had made sufficient progress. (Underscoring omitted.) The note purported to recommend reunification as soon as possible because [t]here is no need for further counseling. (Underscoring omitted.) But, the therapists note failed to include any particulars, including what issues had been discussed in counseling or basis for the therapists recommendation, and there was no showing that the therapist ever met T.C. or observed father interacting with her.^[4]

The Department advised the court it would be in T.C.s best interest to maintain her current placement. The social worker recommended that father obtain additional individual counseling and anger management. It was also learned that father was involved in a civil lawsuit in which it was alleged he had physically assaulted his own father.

A contested permanency hearing commenced in October 2006. Meanwhile, mother had given birth to T.C.s full sibling, A.C., while incarcerated, and A.C. was taken into care. Mother opposed having T.C. or A.C. placed with father citing fathers prior dismissal by the LAUSD over the basketball incident. The social worker reported that father had attended anger management classes without disclosing that he had been ordered to attend the class following a sustained petition involving violence toward his girlfriends (mothers) children. Instead, he told the facilitator he was attending the class because of issues at work.

The supervising social worker testified that although father showed he loved T.C., he had not benefitted from his programs and continued to display oppositional behavior. Father claimed he had benefitted from his programs and had bonded with T.C. The juvenile court found father was in substantial compliance with the case plan. The court extended fathers reunification services, but ordered father to be more cooperative.

By the time of the permanency review hearings in December 2006, father had enrolled in individual counseling. His counselor, however, could not recommend that T.C. and her sister be returned to father, saying father needs to be in counseling to deal with his own issue[s]. Mother expressed concern over the children being returned to father, saying it was father who had charge of S.B. the day the child sustained the burn injuries for which mother had been incarcerated.

In January 2007, fathers counselor reported that although father was beginning to acknowledge his role in the charged abuse, he argued a lot and needed more counseling for a better therapeutic response. After hearing fathers evidence and reviewing the Departments reports,^[5]the court found father had not made substantive progress in the case plan and it would be detrimental to T.C. to return her to fathers care. The court terminated fathers family reunification services, set the matter for a permanency planning hearing, and ordered the Department to complete a home study for T.C.s adoption by her foster mother.

Father filed an unsuccessful writ petition in this court. (Tracey C. v. Superior Court (May 16, 2007, B196726) [nonpub. opn.].) In denying father writ relief, we noted that at the permanency review hearing: the court is required to consider the efforts or progress, demonstrated by the parent, and the extent to which the parent took advantage of the services provided. The failure of the parent to participate regularly and make substantive progress in court-ordered treatment programs is prima facie evidence that the return would be detrimental. ( 366.22, subd. (a).) (Ibid.)

We found substantial evidence supported the juvenile courts conclusion that father failed to make substantive progress in eliminating the conditions which led to the courts involvement. (Tracey C. v. Superior Court, supra, B196726.) We stated: [Father] has a history of physical abuse and neglect of children, and throughout the case he continued to deny these problems or blamed the abuse and neglect on someone else. His denial was so entrenched that the results of a psychological test administered by [the court appointed psychologist] were invalidated. Nonetheless, [the psychologist] was very clear in his evaluation and recommendation that [father] had to address in individual counseling his high threshold for tolerance of abuse or neglect of children and that he had to be confronted in such counseling with his pattern of defensiveness and denying responsibility through blaming others. Substantial evidence supports the juvenile courts finding that [father] never truly made progress in resolving these important issues. (Ibid.)

We further concluded that father showed a consistent pattern of either failing to entirely disclose the facts and issues of his case with his counselors and therapists or selectively giving them only partial information, thereby preventing his ability to make substantive progress. As the juvenile court aptly stated, [father] was his own worst enemy. [Fathers] failure over a 20-month period to make substantive progress by not addressing his anger, physical abuse and neglect of children, as well as his recalcitrant denial of the circumstances that made the juvenile courts involvement necessary, showed [father] could not yet be trusted to keep T.C. safe and that she was . . . at risk in his care. (Tracey C. v. Superior Court, supra, B196726.)

As of May 2007, T.C. had been living with the paternal cousin since the age of seven months, and the foster mother had provided a stable and loving home for the child throughout the proceedings. T.C. was doing well. She got along with her peers, did not need medication and had no mental health issues. T.C. and the foster mother had formed a very strong bond. When consulted about adoption, mother had said she wanted T.C. to be safe, she knew the foster mother would take good care of T.C., and T.C. would be safe with the foster mother. Mother did not believe T.C. would be safe with father. The social workers report to the court indicated that father did not appear to object to adoption in the abstract, but he wanted T.C. to be adopted by a different relative. The Department informed the court there was a strong likelihood T.C. would be adopted.

In June 2007, father filed a section 388 petition stating he had completed some programs beyond the time that reunification services were terminated. He declared he had a stable relationship with a fiance, steady employment, and a home in which to provide for T.C. He requested that the juvenile court continue the section 366.26 permanency planning hearing and allow him liberalized visits with T.C.^[6] He asserted he was reunifying with T.C.s sister and that the Department was not giving him credit for the quality of his visits with T.C., who called him daddy and cried when he left at visits.

The juvenile court set fathers section 388 petition for hearing with the permanency planning hearing immediately after.

The juvenile court held the combined section 388 and section 366.26 hearing on August 9, 2007. The court found father had failed to meet his burden of showing by a preponderance of the evidence that there had been a change of circumstances and a modification of the courts prior orders would be in the best interest of the child. The court accordingly denied fathers section 388 petition.

The juvenile court then turned its attention to the section 366.26 hearing. It was essentially undisputed that, even with demands by father that visitation be tailored to his own schedule rather than the childs, father had maintained regular visitation and contact with T.C. However, after hearing conflicting testimony regarding the best interests of the child and considering the evidence presented, the juvenile court found by clear and convincing evidence T.C. was likely to be adopted and that no exception to adoption applied. The court terminated parental rights over T.C. and transferred her custody and control to the Department for adoptive planning and placement.

This appeal ensued.

DISCUSSION

1. The Juvenile Court Properly Denied the Section 388 Petition

A determination whether new evidence or change of circumstances justifies a modification is a question committed to the juvenile courts sound discretion, and the trial courts ruling should not be overturned on appeal unless an abuse of discretion is clearly established. (In re Stephanie M. (1994) 7 Cal.4th 295, 318 (Stephanie M.).) The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. (Walker v. Superior Court (1991) 53 Cal.3d 257, 272, quoting Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.) The parent has the burden of showing changed circumstances by a preponderance of the evidence. (Stephanie M.,at p. 317;In re Marilyn H. (1993) 5 Cal.4th 295, 309-310 (Marilyn H.).)

After reunification services have been terminated, the juvenile courts focus shifts to the childs need for permanency and stability. (In re Zacharia D. (1993) 6 Cal.4th 435, 447; Marilyn H., supra, 5 Cal.4th at p. 309.) When, as here, the section 388 modification petition is filed after reunification services have been terminated and the section 366.26 selection and implementation hearing has been set, the childs interest is paramount over the parents interest in reunification. (Stephanie M., supra,7 Cal.4th at p. 317;Marilyn H.,at p. 310.)

Father contends he had a conflicted personal relationship with the social worker that resulted in fathers portrayal in a bad light that minimized his positive interaction with his daughter. He notes that even then, however, his interaction with T.C. was generally described as appropriate and loving. Father states he began to participate in services immediately, and he continued to engage in them for a lengthy period. There is no indication he abused drugs, he was always employed and he had no criminal history. He points out that the sustained allegations in the petition related to T.C.s lack of proper nourishment leading to a diagnosis of failure to thrive, mothers failure to comply with the terms of a voluntary family maintenance contract respecting four half siblings who were not fathers children, and fathers physical abuse of the half siblings. Father admits he had issues with the social worker and the Department generally, and there were indications in the record he had a temper. He admits he physically disciplin[ed] mothers other children and had pleaded no contest to the amended petition.

Father asserts, however, that the Department portrayed him as unreasonable and violent while in reality he had no criminal record, was not a drug user, and remained fully employed and housed during these proceedings. He argues the evidence shows he was living with his fiance, who had a child living with her and no child protective services or criminal history. Father argues that the Department had not removed the fiances child even though both lived with father. Father contends from these facts there is a reasonable inference that whatever problems had led to the removal of T.C. had been ameliorated.

Father also argues there is substantial evidence showing a change of circumstances, including his participation in numerous services. Granted some services were completed before reunification services were terminated, but father continued with counseling after that time. Father claims he was unaware that his counselor had recommended continued counseling for anger issues and parenting. Nevertheless, he claims he received spiritual counseling at his church, which father contends complied with the counseling component of his case plan.

The trial court did not act beyond the bounds of reason. Although father presented evidence of some change in circumstances, there was also abundant evidence from which the juvenile court could properly infer there was no change in fathers circumstances or a change in the courts orders would not be in T.C.s best interests.

Throughout the case, fathers inability to control his anger thwarted his desire to reunify with T.C. Father admitted he was angry and bitter at being brought into the dependency system. Although by the time of the section 388 hearing father professed to have a change in attitude in his personal interactions, the social worker continued to raise safety concerns over fathers problems with anger management. As recently as June 2007, father had verbally threatened the social worker (you better watch out, someone is watching you . . . .) during a monitored visit. The social worker reported the pattern of fathers interactions with adults raised questions whether T.C. might be placed at risk for maltreatment or severe emotional distress. Moreover, father persisted in his refusal to take any responsibility for his physical abuse of T.C.s half siblings alleged and sustained in the underlying petition. Father had failed to follow through with the recommendations of two of his counselors that he undergo further counseling for anger management issues. He continued to lay blame on others for any difficulties encountered, such as in professing not to have been advised further counseling was needed even though the social worker testified he had informed father both orally and in writing and provided referrals.

Fathers professed reformation exemplifies the adage, too little, too late. As the Supreme Court has observed, childhood does not wait for the parent to become adequate, and it is up to the parent to show more than a last-minute attempt to delay permanency for a child who has already spent years in out-of-home placement. (Marilyn H., supra, 5 Cal.4th at p. 310.)

2. The Juvenile Court Properly Terminated Parental Rights

Adoption is the preferred permanent plan for a dependent child who is not reunified with her parent. (In re Celine R. (2003) 31 Cal.4th 45, 49, 53; In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) An exception exists when termination of parental rights would be detrimental to a child who has an ongoing parent-child relationship with a noncustodial parent. ( 366.26, subd. (c)(1)(B); In re Angel B. (2002) 97 Cal.App.4th 454, 467 (Angel B.).) The exception applies when the benefits to the child from the continuance of the relationship outweigh the detriment to the child from the loss of an adoptive familys permanency and stability. (In re Jamie R. (2001) 90 Cal.App.4th 766, 773; In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) The parent bears the burden of proving the parent-child relationship exception applies. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449 (Aaliyah R.).) Whether viewed under the substantial evidence or abuse of discretion standard of review, the juvenile courts order terminating parental rights was proper. (Compare In re Derek W. (1999) 73 Cal.App.4th 823, 827, with Aaliyah R.,at p. 449 and In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)

For the parental relationship exception to apply, the juvenile court must find a compelling reason for determining that termination would be detrimental to the child . . . . ( 366.26, former subd. (c)(1)(A), now  366.26, subd. (c)(1)(B)(i), italics added.) The parent must show (1) regular visitation and contact with the child, and (2) that the child would benefit from continuing the relationship. (Ibid.) That parental role must involve more than frequent and loving contact between the child and parent (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418) or an emotional bond with the child (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108). 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 parents rights are not terminated. (Autumn H., supra,27 Cal.App.4th at p. 575.)

The courts balancing of the competing considerations must be made on a case-by-case basis, taking into account variables such as the childs age, the portion of the childs life spent in the parents custody, the positive or negative effect of interaction between the parent and child, and the childs individualized needs. (Aaliyah R., supra, 136 Cal.App.4th at p. 450; Angel B., supra, 97 Cal.App.4th at p. 467.)

T.C. was only four months old when she was first detained, too young to understand the concept of a biological parent. (See Angel B., supra, 97 Cal.App.4th at p. 467.) By his own admission, when T.C. was in fathers custody, father was working long hours, spending little time with T.C., and supposedly ignorant of T.C.s malnourishment. Although father visited with T.C. as often as possible after she was detained, those visits never progressed beyond twice weekly monitored visitations after a reduction from four times a week. T.C. had been in the home of the paternal cousin, the prospective adoptive parent, since she was seven months old. By the time of the permanency planning hearing, T.C. had been in the placement for about two years, most of her life. She was thriving and had developed a physical and emotional attachment to the foster mother, with whom she shared a strong bond.

Father did not show he had a positive effect upon T.C., nor did the evidence indicate he could or would see to the childs welfare. Father had completed parenting classes, but he continued to have problems in caring for T.C., especially during visits including T.C.s sibling, A.C. There were problems concerning fathers lack of parenting skills and placing his own needs above T.C.s. He failed to have appropriate food available for T.C. during visits and sent her home in dirty soiled diapers. When T.C. threw tantrums during a visit, father would ignore her rather than soothe her as the social worker had shown him to do. On one occasion, when the foster mother left the room, T.C. started banging her head on the floor and wall, crying and hitting and kicking father. Father could not manage her, and T.C. did not calm down until she was taken to the other room to be with her foster mother. Despite the fact that T.C. called father daddy, T.C. did not attempt to hug father during visits and would readily leave when the visits were over. At the end of the visit, she would run to her foster mother, hug and kiss her, saying, Lets go. Lets go. A childs reluctance to visit with a parent despite regular visitation and her unhappiness and acting out with respect to parental visits are indications of a lack of the positive relationship necessary for the parental relationship exception to apply. (Angel B., supra, 97 Cal.App.4th at pp. 467-468, fn. 4; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1155; In re Amanda D. (1997) 55 Cal.App.4th 813, 822.)

Father, moreover, did not use his time with T.C. productively. He would spend much of the visit complaining about the Department, the accommodations at the site or the social worker rather than focusing on T.C. During visits following the termination of reunification services, father had threatened the social worker, upset the childrens caretakers and inappropriately tried to videotape the worker and caretakers instead of interacting with T.C. Fathers conduct was such that none of his relatives who had originally offered to help him with visits wanted to have anything more to do with him.

On this record, there is no showing T.C. will suffer detriment if her relationship with father came to an end. The evidence shows a very significant risk of detriment to T.C. if parental rights were not terminated to free her for potential adoption. (Angel B., supra, 97 Cal.App.4th at p. 468.)

DISPOSITION

The orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P. J. RUBIN, J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise noted.

^[2] Mother is incarcerated and not a party to this appeal.

^[3] T.C.s four half siblings had been detained from mothers custody in December 2004. It was alleged that father, while living with mother, had hit five-year-old K.B. and four-year-old S.B. very hard with a belt, leaving welts on K.B.s feet and on S.B.s buttocks. Father also allegedly tied eight-year-old L.B. to a chair putting soap in her mouth and in S.B.s mouth as well.

^[4] The therapist reportedly died in a car accident in August 2006.

^[5] Surprisingly, fathers counselor testified during the hearing that father should be able to take T.C. home because he showed interest in being a changed person and in becoming a better parent. Nevertheless, she conceded father should continue in counseling to see how far he will go in progress in dealing with children.

^[6] At the subsequent hearing, the court construed the section 388 petition as also requesting that T.C. be returned to father.