In re A.T.

Filed 1/13/10 In re A.T. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Marsha Slough, Judge. Affirmed.

Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant, L.E.

Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant, A.M., Sr.

Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.

L.E. (mother) is the mother of A.T., a girl born in November 2003, and A.M., a boy born in January 2001 (the children). A.M., Sr. (father) is the father of A.M., and, along with mother, of the childrens deceased younger sister, E.M. Mother appeals from the juvenile court rulings: 1) denying her petition under Welfare and Institutions Code Section 388^[1]; and 2) terminating her parental rights to both children and selecting adoption as their permanent plan. Specifically, mother argues: 1) she established changed circumstances and that allowing reunification services or visitation would have been in the childrens best interest; and 2) the court erred in declining to apply the parental relationship benefit exception to the presumption for adoption.

Father joins in mothers opening brief and additionally argues that the court erred in terminating his parental rights to A.M. and selecting adoption as his permanent plan. Father argues the court erred in declining to apply the parental relationship benefit exception to the presumption for adoption.

As discussed below, we conclude the juvenile court did not err and therefore affirm its rulings.

Summary of Facts and Procedure^[2]

In December 2007, mother and her boyfriend of three months brought the childrens nearly two-year-old sister, E.M., to the emergency room after mother awoke to find her not breathing. E.M. was dead on arrival at the hospital. She had multiple deep bruises and abrasions on her thighs, abdomen, chest, back and head. An autopsy showed that she had a laceration to her liver, multiple impacts to her abdomen, a possible rupture to her pancreas, internal bruising to her stomach, and bleeding and laceration to the mesentery. E.M.s abdomen was filled with bloody matter. Peritonitis had set in. The cause of death was blunt force trauma.

A. Petition

On December 18, 2007, Children and Family Services (CFS) filed a section 300 petition, alleging serious physical harm (subd. (a)), failure to protect (subd. (b)), causing another childs death through abuse or neglect (subd. (f)), and abuse of sibling (subd. (j)).

B. Detention

The children, then ages six and four, along with the boyfriends own young son, were taken into custody. In the detention report prepared for the December 19, 2007 detention hearing, the social worker described the police interview with mother. Mother stated that she and the boyfriend had been together for three to five months. At first she claimed he was a good person and was appropriate with the children. Then mother admitted that he hits the children, spanks them on the thighs and buttocks, grabs them, pushes them down and pokes them in the chest area. Mother stated that the boyfriend hit E.M. on Tuesday night (the girl died on Saturday) and had time alone with her on Wednesday. Mother took E.M. to a medical clinic on Wednesday night because she had been vomiting. Mother said the boyfriend hit E.M. on Thursday because she was vomiting and not eating. Mother said she was aware that the boyfriend was hitting E.M. and said she heard the girl crying after he hit her.

The social worker also observed the police interviews with A.M. and A.T. and later interviewed them in foster care. Both children stated that both mother and the boyfriend hit them and left bruises. A.M. stated that the boyfriend hit both him and his own son with a closed fist and showed them how to make a fist with the knuckle of the second finger sticking out. A.T. said that both adults hit her with an open hand and a belt. She told the social worker that the boyfriend hit E.M. because she would not eat and threw [E.M.] on the bed and now shes dead.

At the detention hearing, the juvenile court ordered A.M. and A.T. detained in foster care and ordered visitation with mother once she was released from custody.

C. Jurisdiction and Disposition

In the jurisdiction and disposition report filed January 9, 2008, the social worker recommended that mother receive no reunification services.

Mother had told the social worker that, in the week before E.M. died, she was aware that the boyfriend was hitting the girl, and that she heard E.M. crying after he hit her. Mother had a violent relationship with the boyfriend. She said he hit her every few days in the back and told people he just got done beating her. Mother stated she asked the boyfriends family to help her to get him to leave. Mother said that when things got bad she would take the children and leave for a few days. She never called the police.

Mother said she had been using marijuana since age 11 and drinking since age 13, except for a period in her teens when she was serving God, and while she was pregnant. For the past year she had used marijuana several times a day, almost every day. Mother stated that both of her parents had used drugs and alcohol, and that she was sexually abused by the men in her mothers life from the age of two until fourteen, and that her mother was aware of this but did nothing to stop it. She moved away from home with father at age sixteen.

Mother stated father would hit her several times a week while they were together. Father admitted to hitting and pushing mother during one incident, after which mother called police and he was deemed to have violated his parole. Father has an extensive arrest record that includes assault with a deadly weapon, battery with serious bodily injury, car theft (for which he received a two-year prison sentence), multiple parole violations, weapons charges, drug charges, and spousal battery.

The jurisdiction and disposition hearing was held on January 9, 2008, but was continued. The social worker filed an addendum report on February 4, 2008, with the police report attached. The police report included the police interview of mother. In the interview, mother stated that E.M. would cry and was scared all the time. She also stated that the boyfriend is rough with the kids and that she has to calm him down. Mother told the police detective that she had seen the boyfriend hit E.M. on Monday, Tuesday, Wednesday, Thursday and Friday the week she died, and that he hit E.M. especially hard on Monday, and on Thursday was hitting E.M. and calling her a bitch. Mother told the detective that she saw bruises on E.M.s body, but did not call police. Mother stated that she and E.M. fell asleep on the living room floor Friday night around 11:00 p.m., and that E.M. was moaning. E.M. was not breathing when mother woke up to check her at 5:00 a.m.

The police arrested the boyfriend for murder and assault on a child. Mother was arrested for child endangerment.

Mother attended the jurisdiction and disposition hearing on February 7, 2007. The hearing was set contested and continued.

The contested jurisdiction and disposition hearing was finally held on March 11, 2008. Mothers counsel called the social worker as a witness. The social worker testified that he had no evidence that mother had caused severe injury to E.M., but that mother had admitted to spanking the girl with a belt. The social worker testified that the failure to protect allegations in the section 300 petition were based on Mothers negligence in failing to protect her children, even after the children told her the boyfriend was hitting them. The social worker also stated his opinion that mothers judgment and ability to protect her children were dulled by her marijuana use, specifically on the last night that E.M. was alive, Friday, December 14, 2007.

At the end of the hearing, the juvenile court ordered CFS to provide father with reunification services as to A.M. and set a six-month review hearing for A.M. The court denied reunification services and visitation to mother as to both children pursuant to section 361.5, subdivisions (b)(4) [death of another child] and (b)(6) [severe physical harm to a sibling]. The court based its decision on mothers de minimis efforts to protect her children and the fact that she continued to leave them in the care of the boyfriend despite her knowledge that he was violent with them. The court set a section 366.26 hearing for A.T. Mother appealed the ruling concerning A.M. In an opinion filed October 10, 2008, in Case No. E045372, this court affirmed the juvenile courts orders as to A.M. Mother also filed a writ petition concerning A.T., which this court denied on May 14, 2008, in opinion number E045368.

D. A.T.s Section 366.26 Hearings Continued.

In the section 366.26 report dated July 9, 2008, the social worker recommended the court terminate parental rights as to A.T. and select adoption as the permanent plan. Before she was incarcerated and the court made the no-visitation order, mother visited with the children twice in December 2007, missed two visits in January, had a telephone conversation in January, missed one visit in February 2008 and had the final visit on February 11, 2008. The children were in their second placement together and the current foster family was interested in adopting both children. The section 366.26 hearing held on July 9, 2008, was set contested by mother and continued.

In an addendum report regarding A.T. dated July 28, 2008, the social worker reported that A.T. had stated she did not want to stay with the current foster parents and that she wanted a new mommy and daddy. The foster parents had asked in June that A.M. be removed from the home because of his sexual behaviors with A.T. and with another child in the home. A.M. was to remain in the home while he received therapy to address these behaviors. However, the social worker discovered that the foster parents had not yet arranged for either of the children to receive therapy, and determined that these foster parents could not meet the childrens needs. The social worker requested the children be removed and placed in a home more suited to their needs. The section 366.26 hearing held on July 28, 2008 for A.T. was continued because CFS wanted to get both children into therapy and stabilize their placement before proceeding. Both children were placed in a new foster home on August 18, 2008.

E. A.M.s Six-Month Review Hearing

The social worker filed a six-month review report regarding A.M. dated September 11, 2008, in which CFS recommended father continue to receive reunification services. Father had been sentenced in September 2008 to six months of jail time on charges unrelated to A.M., and was expected to be released in February 2009. Prior to his arrest, father and A.M. visited on a weekly basis and the visits were very positive. A.M. enjoyed the visits with his father. The social worker interviewed father in jail. Father expressed a strong desire to reunify with A.M. and the social worker opined that the two shared a bond and wished to reunify. Father was attempting to transfer to a facility that offered reunification services because his current facility offered no services. Father stated he would attempt to complete the services after his release if he could not do so while incarcerated. A.M. expressed that he would rather reunify with his father than stay in foster care.

Mother stayed in contact with the social worker during her incarceration and after her release. She sent gifts and letters to both children through the social worker on a consistent basis.

At the six-month hearing held for A.M. on September 11, 2008, the juvenile court continued reunification services to father for six more months.

F. Mothers First Section 388 Petition

On August 28, 2008, mother filed a section 388 petition. Mother asked the court to change its order of March 11, 2008, denying her visitation with the children. Mother asked to have the childrens therapist provide an opinion as to whether having visits with her would be in their best interest. CFS filed a response to the petition on October 3, 2008. As of September 25, 2008, A.M.s therapist did not offer a recommendation regarding visitation with mother, presumably because the therapist had not been seeing A.M. long enough. A.T. had not yet begun therapy. At the October 3, 2008, hearing on the section 388 petition, mothers counsel asked for a further hearing so he could question the social worker and the childrens therapists. The court denied the motion and, after hearing arguments from all parties, denied the petition.

At an appearance review hearing held on January 22, 2009, the childrens attorney declared a potential conflict because A.M.s status in a reunification plan with father was a factor in several families declining placement of both children. CFS had determined that the children should be placed together. The juvenile court appointed a separate attorney for A.M.

G. A.M.s Twelve-Month Review Hearing

The 12-month review hearing for A.M. was eventually held on April 17, 2009. The social worker reported that both children had been placed in a new foster home in December 2008 and that the foster parents had expressed interest in adopting both children. The juvenile court terminated reunification services for father and set a section 366.26 hearing for July 13, 2009.

H. Mothers Second Section 388 Petition

On April 1, 2009, mother filed a second section 388 petition. Mother sought six months of reunification services. Mother argued that her circumstances had changed in that she had hit bottom while in an isolation cell on suicide watch and had vowed to change with Gods help. Mother was released from prison on August 12, 2008, on three years of probation after pleading guilty to felony child endangerment. Without the help of CFS, mother had participated in narcotics anonymous and other drug program after her release, for which she provided certificates of completion, had moved in with her parents and obtained a job at a day care facility. Mother argued that the proposed change was in the childrens best interest because they needed their mother after all that they had lost. Father was in and out of jail and not visiting A.M. consistently, father had stopped visiting A.T. once it was determined she was not his daughter, and both children had seen their sister die and their mother taken from them.

The juvenile court granted a hearing on the petition. The hearing was initially set to coincide with A.M.s 12-month review hearing, but was continued to the same date as the childrens combined section 366.26 hearing. CFS filed a response in the form of an addendum report on April 15, 2009.

I. Combined Section 366.26 and Section 388 Hearings for Both Children

The section 366.26 hearing and the hearing on the section 388 petition were held on July 13, 2009, but continued to August 7, 2009 to obtain an opinion from A.M.s therapist as to whether he should have visits with father, and to allow mother to obtain a letter from her new employer to attach to her section 388 petition.

The hearing went forward on August 7, 2009. A letter from A.M.s therapist was entered into evidence. The therapist stated that A.M. was previously guarded and angry and thought he would return to his fathers care, but insisted he did not want to live with his mother. The therapist noted that A.M. had responded positively when asked how he felt about being adopted by his current foster parents. A.M. stated that he never wanted to move again. A.M. did not ask about his father. The therapist opined that if A.M. resumed contact with father, he would think he was going to live with his father, which would cause him to be angry and guarded again and not be happy in the foster home. In addition, the foster parents were not likely to adopt A.M. if he kept in contact with father because they were not comfortable with fathers lifestyle.

Mother testified that she had left her previous employment at the childcare center and was working as a caretaker for an older gentleman three or four days per week. She was not currently being paid but had applied to receive payment from the county for her services. Mother was living with her mother, stepfather and brother, was attending Narcotics Anonymous, and was going to school to earn her GED. On cross-examination mother stated that she was attending parenting classes at the local library and was being counseled by her pastor. However, she was not attending individual therapy sessions because she could not afford them.

Mother also testified about her background. Before leaving home at age sixteen to live with father, mother was beat and sexually molested every day, either by her father or her mothers boyfriends. Her parents also introduced her to drugs at the age of seven. No one taught her how to be a mother.

Mother testified about the abuse the children suffered while they still lived with her and the events that lead to the death of their sister. She stated that she asked family members to intervene with the boyfriend, and kicked him out of the home once, but he broke back in. Mother admitted I just never called the police because she didnt believe they would help. Mother also admitted I feel that its my fault too, because shes dead . . . I should have been the mom that I should have been, and I wasnt.

The social worker testified that she was opposed to offering mother services because the bonds the children felt for mother had been severed. The children had come far in the healing process and she believed further contact with mother would be confusing and detrimental. The children did not ask about mother. When the social worker passed on the gifts and letters from mother, A.T. would state that she knew who they were from, but did not inquire further. The children had been in their current placement longer than six months and were feeling comfortable there. The social worker also opposed services for mother because she believed mother needed intensive individual therapy for a much longer period than the children could be made to wait for permanency. Mother called the social worker monthly to get an update on the children and to share with the social worker the progress she was making.

The social worker testified that A.M. had enjoyed the visits with his father but that A.M. was beginning to bond with his foster father and family. The social worker believed that further visits with father would set back A.M. emotionally and psychologically. The social worker believed the bond between A.M. and his father had been severed because of diminished contact. A.M. had not recently asked about either parent.

Father testified that he was living in a program and taking parenting classes. Since the dependency began in December 2007, father had been incarcerated for one year and eight months. Father stated that he and A.M. enjoyed their visits and that they had a good relationship. Father desired to build a further relationship with A.M. and believed A.M. would be traumatized if their relationship were to be severed.

After hearing argument from all parties, the juvenile court denied mothers section 388 petition. The court complimented mother on the progress she had made, but did not believe it would be in the childrens best interest to offer mother services.

The juvenile court then heard argument on the section 366.26 issues. The court terminated all parental rights to the children and set adoption as their permanent plan. The court commented that mothers issues were quite severe and that it was unlikely she should make sufficient progress within six months if provided with services. Mother and father filed their respective appeals.

Discussion

1.      Section 388 Petition as to Mother

Mother contends the juvenile court erred when it denied her section 388 petition because she had established changed circumstances and that granting her reunification services would be in the childrens best interest.

Section 388 allows a parent to petition the juvenile court to modify a previous order upon grounds of change of circumstance or new evidence . . . . ( 388, subd. (a).) The moving party bears the burden of proof to show, by a preponderance of the evidence, changed circumstance or new evidence and that the modification would promote the best interests of the child. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446 (Aaliyah R.).) Whether an order regarding reunification services should be modified rests within the sound discretion of the juvenile court, and its decision will not be disturbed on appeal absent a clear abuse of discretion. (Id. at p. 447; see also In re Kimberly F. (1997) 56 Cal.App.4th 519, 522 (Kimberly F.)[[i]t is rare that the denial of a section 388 motion merits reversal as an abuse of discretion].)

Here, even if mother had established changed circumstances, we are not convinced that the juvenile court abused its discretion when it found that it would not be in the childrens best interest to grant mothers petition seeking reunification services. The factors to be evaluated in determining the best interests of a child include the seriousness of the reason for the dependency, the strength of the bond between the parent and child, and the degree to which the problem has been removed. (Kimberly F., supra, 56 Cal.App.4th at p. 532.) The seriousness of the reason for the dependency cannot be overstressedmother did nothing to stop her boyfriend from murdering the childrens sister. The strength of the bond between mother and the children can best be described as tenuous. At the time of the section 366.26 hearing, the children had not visited with their mother in eighteen months. The children never asked about mother and, when they received her gifts and letters, A.T. had no comment other than I know who these are from. Finally, mother was unable to establish at the section 366.26 hearing the extent to which the problem (her lack of protection toward the children that lead to the death of their sister) had been removed. Mother testified that she was attending Narcotics Anonymous and parenting classes and was being counseled by her pastor, but had attended no individual therapy classes and could produce no evidence that she was ready to parent. In addition, she could produce no negative drug tests, which would be essential because her use of drugs contributed to her failure to protect her deceased child. Thus, mother has not established that the juvenile court abused its discretion when it found that granting reunification services would be in the childrens best interest.

2.      Parental Relationship Benefit Exception as to Mother

Mother further contends that the parental relationship benefit exception applies in this case and therefore the trial court erred in terminating her parental rights. We disagree for reasons we now explain.

We review a trial courts order terminating parental rights to determine whether it is supported by substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) Under 366.26, subdivision (c)(1), the juvenile court must terminate parental rights if it finds by clear and convincing evidence that a child is adoptable unless it finds a compelling reason for determining that termination would be detrimental under one or more of the exceptions set out in subdivision (c)(1)(B). Under section 366.26, subdivision (c)(1)(B)(i), the court may forego adoption and refrain from terminating parental rights only if a parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. To trigger the application of the parental relationship exception, the parent must show the parent-child relationship is sufficiently strong that the child would suffer detriment from its termination. [Citation.] The benefit to the child from continuing such a relationship must also be such that 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. [ Citations.] A child who is determined to be a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may benefit the child to some degree but does not meet the childs need for a parent. [Citation.] Adoption, when possible, is the permanent plan preferred by the Legislature if it is likely the child will be adopted. [Citation.] (Aaliyah R., supra, 136 Cal.App.4th at pp. 449-450.) To overcome the strong policy in favor of terminating parental rights and to fall within section 366.26, subdivision (c)(1)[(B)(i)]s purview, the parent must show more than frequent and loving contact, [citation], and be more to the child than a mere friendly visitor or friendly nonparent relative. [Citation.] The parent must show the parent-child bond is a substantial, positive emotional attachment such that the child would be greatly harmed if parental rights were terminated. [Citation.] (In re Helen W. (2007) 150 Cal.App.4th 71, 81.)

Here, mother cannot show that the children had any bond with her at all, much less a bond that would result in detriment to either of the children if it were severed. We need merely refer again to the evidence that, at the time of the section 366.26 hearing, the children had not visited with their mother in 18 months, and neither child had ever even inquired about her. Thus, mother has not established that the trial court erred in finding that the parental relationship benefit exception does not warrant making an exception to the preference for adoption.

3.      Parental Relationship Benefit Exception as to Father

Father argues that the parental relationship benefit exception applies to the relationship between himself and his son, A.M. We do not question that A.M. felt a significant attachment to father, which he expressed on more than one occasion. A.M. looked forward to visits with his father. A.M. loved his father and had stated on several occasions that he wanted to live with father. However, substantial evidence supports the juvenile courts apparent conclusion that A.M.s relationship with his father does not promote 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. (Aaliyah R., supra, 136 Cal.App.4th at pp. 449-450.) The reasons for this conclusion are several. First, as CFS points out, father was never A.M.s caretaker; before the dependency he saw A.M. once per week. Second, A.M.s relationship with his father did not prevent or alleviate any of A.M.s negative behaviors that resulted in or contributed to several failed placements. Rather, the benefit to A.M. came from finally finding a prospective adoptive home in which he felt comfortable and supported. After being placed in this home, A.M. went from being guarded and angry to being more open emotionally and able to express his needs. A.M.s relationship with his sister, A.T., also improved in this home. A.M. even expressed that he thought it would be a good idea to be adopted by his foster parents and to live with them for the rest of his live. Third, both the social worker and A.M.s therapist opined that continued contact with father could derail A.M.s emotional progress. This is because, although A.M. had not asked about his father recently, if visits resumed A.M. would be likely to focus on his wish to live with his father at the expense of settling into his prospective adoptive home, and would become angry if things with his father did not work out as he had hoped. For these reasons, we conclude that substantial evidence supports the juvenile courts decision to terminate fathers parental rights.

Disposition

The juvenile courts rulings are affirmed.

NOT TO BE PUBLISHED IN OFFCIAL REPORTS

RAMIREZ

P.J.

We concur:

HOLLENHORST

J.

MILLER

J.

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^[1] All section references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] The facts through the end of the jurisdiction and disposition hearing are condensed from the opinion in Case No. E045372 (filed October 10, 2008).