In re Marcus B.
Filed 4/12/11 In re Marcus B. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| In re MARCUS B., a Person Coming Under the Juvenile Court Law. | |
| SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. A.B., Defendant and Appellant. | D058501 (Super. Ct. No. NJ014110) |
APPEAL from orders of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Affirmed.
A.B. appeals an order terminating parental rights to her son, Marcus B., under Welfare and Institutions Code section 366.26.[1] She also appeals an order denying her petition for modification under section 388. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
On January 23, 2009 the San Diego County Health and Human Services Agency (the Agency) detained three-month-old Marcus B. in protective custody. Marcus had multiple bruises on his ears, eyes and face that were in different stages of healing, indicating that he had been subjected to multiple incidents of physical abuse. His mother, A.B.,[2] and her boyfriend, Jacob M., said that Marcus had rolled off a bed and injured himself while he was in Jacob's care.
A.B. defended Jacob. She said that Marcus was able to roll over, and described an incident in which she and Marcus were lying on a couch together and Marcus rolled over her arm and onto the floor.
A.B. was serving in a branch of the armed forces (military). Her supervising officer stated that the military had concerns about A.B.'s mental health and her cognitive abilities. A.B. had experienced constant problems in the military due to her poor judgment, constant deceit and irresponsible decisions. Another member of her military unit said that A.B. would continuously and unnecessarily lie. A.B. constantly made excuses for Jacob, who had been discharged from the military due to mental health problems.
In April 2009, the juvenile court took jurisdiction over Marcus and ordered a plan of reunification services for A.B., including a psychological evaluation, parenting classes and therapy. The juvenile court authorized unsupervised visitation between A.B. and Marcus. Marcus' caregiver had an "open door" visitation policy. The social worker encouraged A.B. to visit Marcus at mealtimes, bedtime and on weekends.
A.B. was diagnosed with an adjustment disorder with mixed anxiety and depressed mood, posttraumatic stress disorder, and borderline and narcissistic personality traits. A.B.'s therapist reported that A.B. was an immature 21-year-old who appeared to have difficulty bonding and tended to engage in detrimental relationships. After observing a visit between A.B. and Marcus, the therapist reported that A.B. seemed "out of sync" with Marcus and did not understand his needs.
The social worker reported that A.B.'s infrequent visits with Marcus were short in duration and of low quality. The social worker could not verify the excuses that A.B. gave for not visiting Marcus. A.B. said that she could not visit Marcus because of restrictions imposed by the military. A.B.'s superior officer told the social worker that although A.B. was on restriction, the military was always willing to make provisions to facilitate visitation.
The social worker received reports that Jacob was at A.B.'s apartment in August 2009.
In early October 2009, A.B. came to work with a black eye and other injuries. Her superior officer said that A.B. looked as if she had been in a fight. A.B. told the social worker that the injuries were none of the social worker's business. During a later psychological evaluation, when asked about the incident that had caused her injuries, A.B. told the psychologist that "the secrecy acts of the [military]" prevented her from discussing the injury.
A.B. was facing a less than honorable discharge from the military due to an ongoing pattern of misconduct since the time of her enlistment.
At the six-month status review hearing, the juvenile court found that A.B. had not made substantial progress with her case plan, but exercised its discretion to extend reunification services to the 12-month review date.
In November 2009, at the Agency's request, the juvenile court changed the previous order for unsupervised visitation to supervised visitation.
In December 2009, A.B. underwent a comprehensive psychological evaluation, which resulted in diagnoses of dysthymia and borderline personality disorder. The psychologist stated that A.B. demonstrated "a consistent pattern of being nearly incapable of telling the truth" to her command, the social worker, the caregiver and her other outpatient psychotherapist. A.B.'s fabrications made assessing her psychological functioning extraordinarily difficult and would complicate therapy because her therapist would not be able to accept anything she said at face value. Of significant concern to the psychologist was A.B.'s pervasive failure to take advantage of visiting Marcus on a consistent basis despite the "extraordinarily open contact" offered by Marcus' caregiver.
The psychologist believed that A.B.'s mental health condition would significantly impact her ability to appropriately and safely parent her son. A.B. had deficits in her ability to form meaningful, emotional attachments in a healthy manner. She provided an idealized description of the man who was accused of injuring her son, creating a strong suspicion that she was still in contact with him. A.B. was unable to take any responsibility for her behavior and actions. Based on the severity of her clinical presentation, the psychologist believed that it was very unlikely that A.B. would be able to sufficiently resolve the deficits that prevented A.B. from safely parenting Marcus, even if the juvenile court significantly expanded the dependency timelines to allow A.B. to participate in extensive therapy.
In January 2010, A.B. received an "other than honorable" discharge from the military. She became homeless.
From October 2009 to mid-March 2010, A.B. saw Marcus for a total of nine hours.
At the 12-month status review hearing in April 2010, the juvenile court terminated reunification services and set a section 366.26 hearing.
At the end of April 2010, the Agency placed Marcus with his maternal aunt and uncle, who live in Florida. A.B. returned to Florida in May. She had weekly supervised visits with Marcus.
In August 2010, A.B. filed a petition for modification under section 388 seeking reinstatement of reunification services, or placement of Marcus in her care.
A.B. gave birth to a daughter in September 2010.
The hearing on A.B.'s section 388 petition was held on October 13 and 14, 2010. The section 366.26 hearing was held immediately thereafter.
The social worker testified that A.B.'s reunification services were terminated because A.B. did not fully participate in visitation and reunification services. A.B. had made changes after she returned to Florida. She had an adequate support system, had visited Marcus 11 times in five weeks, and Marcus' caregiver reported that A.B. was making efforts to play with Marcus and feed him.
Based on information provided by A.B.'s new therapist, the social worker stated that A.B. appeared to be making significant progress. However, in view of the information in the case file, the social worker did not believe that A.B. had made sufficient progress to allow her to safely parent Marcus. There was nothing in the therapist's letter to show that A.B. was addressing her mental health condition. The social worker testified that it was not in Marcus' best interest to return to A.B.'s care because he was attached and bonded to his caregiver and her family.
A.B., appearing telephonically, testified that she contacted a therapist on her own initiative when she returned to Florida. She was working with the therapist to be able to establish healthy relationships, recognize red flags and strengthen her relationship with Marcus. A.B. stated that after she moved back to Florida, Marcus recognized her better and knew who she was. Marcus was a little confused because he called his aunt "mommy." He called A.B. "Mama [A]."
The juvenile court found that A.B. had not made a substantial change that would warrant a modification of the previous order. Although A.B.'s circumstances were changing, her serious mental health issues had not been addressed. Further, Marcus needed stability and it was not in his best interests to extend services to A.B. because there was no indication that A.B. would be able to reunify with Marcus within six months.
The juvenile court proceeded to the section 366.26 hearing. The court considered the evidence admitted at the section 388 hearing and heard additional testimony from the social worker. After finding that A.B. had not maintained regular visitation and contact with Marcus and that Marcus did not have a significant, positive emotional attachment to his mother, the juvenile court terminated parental rights.
DISCUSSION
A
The Court Did Not Abuse Its Discretion When It Denied the Section 388 Petition
Under section 388, a parent, interested person or the dependent child (generically, petitioner) may petition the court to change, modify or set aside a previous order on the grounds of changed circumstances or new evidence. (§ 388, subd. (a).) The petitioner requesting the modification has the burden to show a change of circumstances or new evidence, and that the proposed modification is in the child's best interest. (In re Jasmon O. (1994) 8 Cal.4th 398, 415; Cal. Rules of Court, rule 5.570(e).)
We review the grant or denial of a petition for modification under section 388 for an abuse of discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) While the abuse of discretion standard gives the trial court substantial latitude, "[t]he scope of discretion always resides in the particular law being applied, i.e., in the 'legal principles governing the subject of [the] action . . . . ' Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an 'abuse' of discretion. [Citation.]" (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.)
In evaluating whether the petitioner has met his or her burden to show changed circumstances, the juvenile court should consider a number of factors, including: "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531-532 ["While this list is not meant to be exhaustive, it does provide a reasoned and principled basis on which to evaluate a section 388 motion"].)
On this record, there is substantial evidence to support the juvenile court's finding that A.B.'s circumstances were not sufficiently changed to allow Marcus to safely return to A.B.'s care, and that it was not in his best interests to delay permanency in view of the uncertainty of reunifying with A.B. Although A.B.'s physical circumstances changed when she moved from California to Florida, and she started visiting Marcus regularly and engaged in therapy focused on improving her relationship with Marcus, her relationship with Marcus was tenuous.
At the time of the section 388 hearing, Marcus had been in protective custody for 20 months. He was three months old when his dependency proceedings began. At the time of the section 388 hearing, Marcus was less than two weeks shy of his second birthday. Despite being given ample opportunity to do so, A.B. did not regularly visit Marcus during the reunification period. On his first visit with A.B. after her return to Florida, Marcus initially did not recognize A.B. At the next visit, Marcus was confused and cried. He was more receptive to A.B. at the next visit when A.B. gave him ice cream and fed him lunch. On another occasion, the caregiver's daughter reported that she saw A.B. "popping" Marcus in the mouth, which A.B. denied. The caregiver, who had previously adopted two children, stated that A.B. did not know how to properly care for a child and that she would be overwhelmed trying to meet the needs of a toddler and an infant.
A.B. did not present any evidence to show that she had resolved her serious mental health condition, which included diagnoses of borderline personality disorder, posttraumatic stress syndrome, depression, chronic lying and an inability to form healthy emotional attachments. Thus, the record supports the finding that A.B. had not ameliorated the problems that necessitated Marcus' continued placement in protective custody.
Under section 388, subdivision (a), the focus of a petition for modification is on whether the petitioner has shown a legitimate change of circumstances. The court could reasonably conclude that A.B. did not make the required showing. A.B.'s circumstances, while changing, were not yet changed. (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.) Further, the court did not abuse its discretion when it determined that neither Marcus' placement with A.B. nor the extension of reunification services would be in Marcus' best interests.
B
There is Substantial Evidence to Support the Court's Finding that the Beneficial Parent-Child Exception Does Not Apply
A.B. asserts that the court erred when it determined that the beneficial parent-child relationship exception under section 366.26, subdivision (c)(1)(B)(i) does not apply to preclude termination of parental rights.
At a permanency plan hearing, the court may order one of three alternatives—adoption, guardianship or long-term foster care. (In re S.B. (2008) 164 Cal.App.4th 289, 296-297.) If a child is adoptable, there is a strong preference for adoption over the alternative permanency plans. (Ibid.; San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888.) Once the court determines that a child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.)
Section 366.26, subdivision (c)(1)(B)(i) provides an exception to termination of parental rights when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." In order to overcome the statutory preference for adoption, the parent must prove that he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent. (In re Derek W. (1999) 73 Cal.App.4th 823, 827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
We recognize that interaction between parent and child will almost always confer some incidental benefit to the child. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) (Autumn H.) However, in the context of section 366.26, subdivision (c)(1)(B)(i), "benefit" means that the parent-child 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." (Autumn H., supra, at p. 575.) "If severing the natural parent/child parental 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." (Ibid.)
We determine whether there is substantial evidence to support the court's ruling by reviewing the evidence most favorably to the prevailing party, and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re S.B., supra, 164 Cal.App.4th at pp. 297-298; In re Misako R. (1991) 2 Cal.App.4th 538, 545.) We do not reweigh the evidence, evaluate the credibility of witnesses or resolve evidentiary conflicts. A judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result if it had believed other evidence. (In re Casey D., supra, 70 Cal.App.4th at p. 52; Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.)
There is ample evidence to support the finding that A.B. did not maintain regular visitation and contact with Marcus. During the reunification period, the caregiver had an "open door" visitation policy. To engage in more parental activities with Marcus, as suggested by the social worker, A.B. could have visited Marcus at mealtimes, bedtime and on the weekend. Instead, A.B.'s visits with Marcus were irregular, short and low in quality. A.B. was not affectionate with Marcus and did not interact with Marcus while she fed him. In October 2009, A.B. had a two-hour visit with Marcus. She did not visit him in November. A.B. visited Marcus for two hours in December and two hours in January 2010. She had two visits in February.
When visitation resumed in June 2010, Marcus initially did not recognize A.B. He became more comfortable as visits continued. A.B. cut some visits short, and visitation was reduced from twice weekly to once a week. Marcus' caregiver reported that during visits, Marcus was quieter than he was at home. She believed that Marcus did not realize that A.B. was his mother. As visits continued, Marcus enjoyed playing with A.B.
The record shows that, at most, A.B. was a friendly visitor to Marcus, and that she did not occupy a parental role in his life. (In re Derek W., supra, 73 Cal.App.4th at p. 827; In re Elizabeth M., supra, 52 Cal.App.4th at p. 324.) There is no evidence to indicate that Marcus had a significant, positive emotional attachment to A.B. such that the continuation of their relationship would outweigh the well-being that Marcus would gain in a permanent home with new, adoptive parents. (Autumn H., supra, 27 Cal.App.4th at p. 575.) Thus, there is substantial evidence to support the court's finding that termination of parental rights would not be detrimental to Marcus, and that he would greatly benefit from the security of a stable, permanent home with a committed, capable adoptive parent. (§ 366.26, subd. (c)(1)(B)(i); Autumn H., supra, at p. 575.)
DISPOSITION
The orders are affirmed.
AARON, J.
WE CONCUR:
McDONALD, Acting P. J.
O'ROURKE, J.
