Filed 5/29/13 In re R.M. CA4/2
California Rules of Court, rule 8.1115(a), prohibits courts and parties
from citing or relying on opinions not certified for publication or ordered
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In re R.M. et al., Persons
Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF
PUBLIC SOCIAL SERVICES,
Plaintiff and Respondent,
v.
Y.D.,
Defendant and Appellant.
E057408
(Super.Ct.No. RIJ118753)
OPINION
APPEAL from
the Superior Court
of
County. Matthew C.
Perantoni, Temporary Judge. (Pursuant to
Cal. Const., art. VI, § 21.) Affirmed.
Joseph T.
Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J.
Walls, County Counsel,
and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
Mother
appeals from a judgment terminating her parental
rights to three children, R.M., A.G., and G.D. (Welf. & Inst. Code,
The children became dependents due to physical abuse of two of the
children, and domestic violence in the home.
After an incident between mother’s oldest child, S.R.,
Sr. was required to move out of the family home. Mother eventually was allowed unsupervised
visits with the children providing G.D., Sr. was not present in the residence,
but the Department of Public Social Services
(DPSS) learned that mother had allowed G.D., Sr. back into the home when the
children were present. At the 12-month
review hearing, mother’s services were terminated and a section 366.26 hearing
was set. Prior to the section 366.26
hearing, mother filed a petition for modification (§ 388) which was
denied. The court terminated parental
rights and mother appealed.
On appeal,
mother argues that the court erred (1) in denying her section 388 petition, and
(2) in terminating her parental rights.
We affirm.
BACKGROUND
Y.R. is the
mother of all the children. G.D., Sr.,
is father of G.D., Jr., and S.D.
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On July 26,
2009, a cousin of the children called police to report that her uncle, the
father in this case, was abusing her cousin and aunt. R.M., then 11 years old, A.G., then eight
years old, along with their older brother S.R.,
response due to physical abuse by G.D., Sr., and mother. The three children were afraid to go home,
describing a history of excessive discipline by both parents, including
hitting, throwing shoes at the children, and forcing A.G. to eat from the trash
if he did not finish a meal. Because
G.D., Jr., was not present, a detention warrant was obtained. When picked up on the warrant, G.D., Jr. had
bruises on his legs and a large red mark on his back.
Dependency petitions were filed in
San Bernardino County, then the county of domicile of the family, as to the
four older children (including S.R.) alleging physical abuse of R.M. and A.G. (§ 300, subd. (a)), neglect, failure to
protect, and a history of domestic violence (§ 300, subd. (b)), parent left
children without provisions (§ 300, subd. (g)), and physical abuse of
siblings. (§ 300, subd. (j).) Prior to the jurisdictional hearing, the
parents moved out of the county. At the
jurisdictional hearing, the court dismissed the physical abuse allegations (§
300, subd. (a)), but found the children came within section 300, subdivisions
(b) and (j).
At the dispositional hearing held
in Riverside County on December 17, 2009, the court declared the children
dependents, and removed custody from all parents. The court ordered supervised visits for the
mother, but gave the social worker authority to liberalize visits if they went
well. The court also authorized the
social worker to place the children with mother if appropriate. On February 14, 2010, unsupervised overnight
and weekend visits commenced. On April
8, 2010, the maternal grandmother’s home was cleared for placement of the
children.
On May 20, 2010, a sibling petition
was filed respecting S.D., who was born in April, 2010. (§ 300, subd. (j).) In the detention report, the social worker
noted that the parents had completed parenting and anger management, but there
was a domestic violence incident shortly before S.D.’s birth, in which father,
who had been drinking, became verbally abusive to mother. When S.R. tried to quiet him down, father
grabbed S.R.’s collar, and choked him.
Because of this incident, the parents’ visits were made supervised and
father reportedly moved out of the home.
Mother was informed that for S.D. to remain in the home, father needed
to remain out of the home and mother indicated she understood. S.D. was detained from father, but placed
with his mother on a family maintenance program.
Mother’s compliance with services
was marginal during the first six months:
although she attended parenting classes, she was reported to be
inattentive and disinterested in class and did not participate in group discussions
or complete homework. She did not appear
to understand the dynamics of children trying to get their basic needs met and
was not motivated to improve. In fact,
her participation was described as hostile-passive and she did not learn the
skills taught or demonstrate the ability to change her behavior, despite
receiving a completion certificate.
Mother did better in anger management where she appeared to benefit from
the service, but she was discharged from individual therapy for failure to
attend, claiming she did not need therapy.
After the domestic violence
incident in April 2010, mother was informed she needed to repeat parenting and
anger management classes, and to address issues of domestic violence; mother
disagreed with this decision, as she did not see the need to repeat
services. Visitation with the children
during this period vacillated between acceptable and destructive, showing the
parents had made minimal progress. A.G.
and G.D., Jr., wanted to go home with their mother, but R.M. wanted to live
with her grandmother.
On July 21, 2010, the court
conducted a combined six-month review hearing (as to the older children) and
jurisdictional-dispositional hearing as to the baby, S.D. The reports were received into evidence
without objection and the court found mother’s progress was minimal. At the hearing, mother’s counsel represented
that mother absolutely would not allow father back into the home and that her
children were her number one priority.
Although the children’s attorney informed the court that they wanted to
return to their mother, counsel stated they were adamant about not wanting to
live with father. Minor’s counsel also
expressed the children’s confusion about mother’s representations she would keep
the father away, when mother was receiving services geared at reuniting with
father. Mother admitted she had not told
the children she was in the process of reunifying with father.
The court
ordered unsupervised overnight and weekend visits for mother on the condition
that father not be present and not reside in the home, admonishing mother that
a violation of this order would mean “go[ing] all the way back to square
one.†As to S.D., the court found the
allegations of the sibling petition to be true, allowed mother to retain
physical custody, and ordered her to participate in maintenance services.
By August 2010, mother had a
part-time job in retail sales, and was cooperative in participating in
services. However, on July 31, 2010,
mother attended a family party with the children where father was also present,
cooking on the grill. As a result,
visits were made supervised and the social worker assessed the parents’
progress as minimal to satisfactory. On
October 20, 2010, the court conducted a progress review hearing; it reinstated
unsupervised visits for mother on condition that father was not present, and
authorized the social worker to return the children to mother when appropriate.
During the next reporting period,
mother was compliant with individual therapy but continued to maintain her
innocence, denied abusing her children, and denied any history of domestic
violence. Her progress was considered
minimal. In December of 2010, the
children told their now-adult older brother S.R. that father was at
Thanksgiving dinner with them, which S.R. relayed to the social worker. The social worker was concerned that mother
continued to allow father in the home; additionally, on three home visits,
mother’s residence was unkempt, with debris on the floor that presented a
choking hazard for the baby, S.D. The
social worker’s assessment questioned whether mother had benefitted from
services based on her continued involvement with father.
On January 3,
2011, a record search revealed father had been arrested for drunk driving,
resisting arrest, assaulting a peace officer, driving on a suspended license,
and failure to provide proof of insurance.
Mother and S.D. were in the car at the time of the arrest, so he was
also charged with willful cruelty to a child.
On January 11, 2011, the social
worker made an unannounced visit with law enforcement (a fugitive warrant
against father was outstanding) to mother’s residence. While the authorities were there, father was
seen escaping out a bedroom window. The
children admitted to the social worker that father had been present at all or
most of the children’s unsupervised visits with mother, and that he spent the
night in the mother’s residence. A
supplemental petition, pursuant to section 387, was filed as to S.D., and he
was detained.
On February 9, 2011, the court
conducted a contested review hearing as to the older children, and a
jurisdictional-dispositional hearing on the supplemental petition as to
S.D. As to the status review of the
older children, the parties submitted on the social worker’s reports and the
court terminated reunification services as to R.M., A.G., and G.D., Jr. At that same hearing, the court also
terminated the dependency of S.R., who was an adult. As to the jurisdictional-dispositional
hearing on the supplemental petition relating to S.D., the court removed
custody of S.D. from the mother and denied her reunification services pursuant
to section 361.5, subdivision (b)(10) [failure to reunify with siblings].
On June 21, 2011, the social worker
submitted a section 366.26 report recommending that the maternal grandmother be
appointed as legal guardian of the three older children who were still
dependents. A paternal aunt and uncle
sought placement of S.D. for adoption.
Due to non-exemptible convictions, the paternal relatives’ home could
not be certified, so the court determined that S.D. should be placed with the
maternal grandmother along with his sibling and half-siblings. However, S.D. could not be placed with
grandmother until her home was certified.
Certification had been delayed because of lack of beds and bedding,
which she acquired by the time of the August 25, 2011 post-permanency review
hearing. (§ 366.3.)
In September 2011, the social
worker submitted an addendum to the section 366.26 report, recommending
adoption of all four children by the maternal grandmother. Mother visited S.D., the youngest child,
monthly, while he remained in foster care with the paternal relatives, but had
not visited the other children because she refused to call the maternal
grandmother to set up visitation. On
September 19, 2011, the court continued the section 366.26 hearing to
facilitate an adoption home study of the maternal grandmother’s home, and
ordered S.D. placed with maternal grandmother for an extended visit pending the
next hearing.
On February 10, 2012, the social
worker submitted a post-permanency review report which indicated that mother
had moved to Arizona to be with her husband, G.D., Sr., and that she had been
in Arizona since the previous hearing.
The report indicated that at visits, mother talked about the case in
front of the children and screamed at the maternal grandfather, creating a
scene at a McDonald’s restaurant. Mother
informed the social worker that she had moved to Arizona to be with father.
On February 17, 2012, another
addendum report was submitted to provide the court with the completed adoption
assessment. R.M. and A.G. expressed a
desire to be adopted by the maternal grandmother. G.D., Jr., wanted to stay with his
grandmother, but also expressed a desire to go home, although he did not want
to be with his father.
On June 25, 2012, mother filed a
petition for modification of the prior order denying services as to S.D., and
terminating services as to the older children.
Mother alleged her circumstances had changed in that she had completed
another parenting program, maintained visits, shared a strong bond with all the
children, had stable full-time employment and maintained housing for the
children. Attached to the petition was
an undated certificate of completion of a 10-hour parenting program, and a
short letter (not written on letterhead stationery) signed by the back office
supervisor of John C. Lincoln, stating mother worked there and was doing a
great job.
The combined sections 388 and
366.26 hearing was conducted on August 30, 2012. No party objected to the admission into
evidence of the social worker’s reports.
Mother testified in support of her petition for modification, and her
testimony was considered at the section 366.26 portion of the hearing. Mother indicated that since services had been
terminated on March 9, 2011, she had completed an additional parenting program
in Arizona and is also enrolled in an additional domestic violence course, of
which she has completed six of the 12 required sessions.
Mother also indicated she had moved
to Arizona for job reasons. She denied
telling the social worker that she lived with father or had a relationship with
him. However, she acknowledged that
father also lived in Arizona, although in a different city than mother
currently resides, and admitted she had talked to his sister recently about
father’s health issues and that she had spoken to him a month or two prior to
the hearing. She visited her children
regularly and described the quality of the visits and the children’s excitement
to see her.
The court admitted all reports in
evidence without objection and found no change in circumstances to warrant the
requested modification. The court then
proceeded with the section 366.26 hearing.
Mother objected to the proposed termination of her parental rights
because she had maintained visits and severance of the parental relationship
would be detrimental. The court admitted
the section 366.26 reports into evidence without objection, found the children
to be adoptable, determined that termination of parental rights would not be
detrimental as none of the statutory exceptions applied, and severed the
parental rights of the parents.
Mother appealed.
DISCUSSION
1. The Court Did Not Abuse Its Discretion
in Denying Mother’s 388 Petition.
Mother
contends that the court abused its discretion in denying her section 388
petition to reinstate reunification services.
Mother contends that she demonstrated a substantial change of
circumstances insofar as she had taken another parenting class, was taking an
additional domestic violence course, had gained skills from these programs, was
gainfully employed full time, and was not involved with G.D., Sr. We disagree.
A juvenile
court order may be changed, modified or set aside under section 388 if the
petitioner establishes by a preponderance of the evidence that (1) new evidence
or changed circumstances exist, and (2) the proposed change would promote the
best interests of the child. (
316-317.) The parent bears the burden to
show both a legitimate change of circumstances and that undoing the prior order
would be in the best interest of the child.
(In re Kimberly F. (1997) 56
Cal.App.4th 519, 529 (Kimberly F.).) Generally, the petitioner must show by a
preponderance of the evidence that the child’s welfare requires the
modification sought. (
1228.)
In
evaluating whether the petitioner has met the burden to show changed
circumstances, the trial court should consider:
(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. (
at p. 532.) The petition is addressed to
the sound discretion of the juvenile court, and its decision will not be
overturned on appeal in the absence of a clear abuse of discretion. (In re
Stephanie M., supra, 7 Cal.4th at p. 318; In re S.J. (2008) 167 Cal.App.4th 953, 959.)
Here, the
court correctly determined that mother’s circumstances were changing, but not
changed. However, changing circumstances
do not warrant a modification of a prior order.
(In re Casey D. (1999) 70
Cal.App.4th 38, 47.) Mother’s testimony
that she was no longer in a relationship with father and no longer resided with
him was not entitled to any weight in light of the history of the case in which
mother repeatedly made the same claims which turned out to be untrue. Additionally, mother did not object to the
admission of the social worker’s reports indicating mother informed the worker
that she had moved to Arizona to be with G.D., Sr., nor did she call the social
worker to the witness stand to cross-examine her on that issue.
Mother’s
additional programs do not demonstrate changed circumstances where she had
taken the same programs during the reunification period but failed to benefit
from the services, as demonstrated by allowing father into the home while the
children were present in violation of court orders. In any event, mother never completed the
individual therapy requirement of the original plan and showed no inclination
to do so at the hearing on her petition.
Nor had she completed the second domestic violence program she had
started in Arizona, despite having a year to do so. The reason for the dependency was mother’s
inability to protect her children from father’s violent tendencies and this
circumstance continued to pose a risk at the time of the hearing on mother’s
section 388 petition. Her circumstances
were not changed.
Further,
mother failed to demonstrate that modification of the prior order would be in
the children’s best interest. We accept
that the children were bonded to mother; however, all of them were adamant
about not wanting to live with father.
Mother’s testimony that she was no longer involved with father was
belied by her history of maintaining that relationship while making similar
promises to put her children’s welfare first.
Her inability to protect the children from the father’s violence
supports the conclusion that modification would not be in their best
interests. The court did not err in
denying the modification petition.
2. Substantial Evidence Supports the
Court’s Findings that the Children Are Adoptable and that Terminating Parental
Rights Would Not Be Detrimental.
Mother argues that the court erred
in terminating parental rights because the evidence showed the children had a
beneficial parent-child relationship with their mother. We disagree.
Section 366.26, subdivision (c)(1),
provides that if the court determines, based on the [adoption] assessment and
any other relevant evidence, that it is likely the child will be adopted, the
court shall terminate parental rights and order the child placed for adoption,
unless one of several statutory exceptions applies. Once the court determines a child is likely
to be adopted, the burden shifts to the parent to show that termination of
parental rights would detrimental under one of the exceptions listed in section
366.26, subdivision (c)(1)(B). (
799, 809, citing In re Lorenzo C. (1997)
54 Cal.App.4th 1330, 1343-1345.) We must
affirm a trial court’s rejection of the exceptions if the ruling is supported
by substantial evidence. (
One such exception applies when the
court finds a compelling reason for determining that termination would be
detrimental to the child because the parents have maintained regular visitation
and contact with the child, and the child would benefit from continuing the
relationship. (§ 366.26, subd.
(c)(1)(B)(i).) This exception applies
only when the relationship with a natural parent 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 re Autumn H. (1994) 27
Cal.App.4th 567, 575.) The determination
of whether a beneficial parent-child relationship exists is reviewed for
substantial evidence. (
1308, 1314.)
To overcome the preference for
adoption and avoid termination of the natural parent’s rights, the parent must
show that severing the natural parent-child relationship would deprive the
child of a substantial, positive
emotional attachment such that the child would be greatly harmed. (
454, 466 [italics in original], citing In
re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.) The factors to be considered when looking for
whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the
child’s life spent in the parent’s custody, (3) the positive or negative effect
of interaction between the parent and the child, and (4) the child’s particular
needs. (In re Angel B., supra, 97 Cal.App.4th at p. 467; see also
at p. 1315.)
Here, R.M. and
A.G. had spent a larger portion of their lives in mother’s custody, but they
expressed the preference for adoption by their grandmother. G.D., Jr., lived five-eighths of his life
with mother, and while he wanted to see his mother, he was happy in his current
placement. S.D. has spent more than half
his life removed from his parents’ custody, and was described as loving toward
his relative caretaker and siblings.
We agree mother visited
regularly. Nevertheless, she failed to
show that the attachment was so strong that severing the relationship would
greatly harm the children. Mother’s
choice to move to Arizona, which increased geographic distance and made
visitation problematic, was aggravated by the lack of attention she paid to the
older children during monthly visits. In
fact, in June 2012, mother told R.M. she should go on with her [R.M.’s] life
and she [mother] would forget her. The
children desired to be adopted, demonstrating that termination of parental
rights would not be detrimental. The
risk that mother would resume her relationship with father, if she was not
maintaining it, was a real threat, also demonstrating that severing the
relationship of parent and child would not be detrimental.
The court properly found that none
of the exceptions in section 366.26, subdivision (c)(1), applied.
The judgment is affirmed.
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.
J.
We concur:
McKINSTER
J.
CODRINGTON
J.
further references are to the Welfare and Institutions Code, unless otherwise
indicated.
became an adult during the dependency and the petition was dismissed as to him.
