In re X.Y.

Filed 1/13/10 In re X.Y. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin)

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L.Y., mother of the minors, appeals from orders of the juvenile court denying her petition for modification and terminating her parental rights. (Welf. & Inst. Code,  366.26, 388, 395 [further undesignated statutory references are to the Welfare and Institutions Code].) Appellant contends the juvenile court abused its discretion in denying her petition for modification and erred in failing to find she had established an exception to the preference for adoption as a permanent plan. We affirm.

FACTS

The minors, Li.Y. (age three), and X.Y. (age two), were removed from appellants custody in March 2006 following infliction of severe blunt trauma to the abdomen of X.Y. which resulted in life-threatening physical injuries. The perpetrator of the injuries was never identified. At the time of X.Y.s injuries, the minors were living with appellant and her boyfriend, who had a history of domestic violence. In August 2006, the court ordered reunification services for appellant.

The status review report in November 2006 stated appellant had begun participation in services, but appellant minimized a recent violent episode between her and her boyfriend. At visits, appellant spent time complaining about the case and had difficulty controlling her emotions. The social worker was concerned appellant was not making the minors her first priority. At the review hearing in January 2007, the court gave the Human Services Agency (Agency) discretion to return the minors to appellant because she had made good progress in services but there was to be no contact between the minors and appellants boyfriend.

An updated report in May 2007 noted both appellant and her boyfriend had been referred to services. The Agency recommended returning the minors to appellant with family maintenance services and continuation of the no-contact order. The court allowed the boyfriend to visit the minors and gave the Agency discretion to return them to appellant.

The minors were returned to appellants custody in June 2007, however, by October 2007, they were again detained on a supplemental petition because appellant had allowed contact between the minors and the boyfriend, X.Y. had a black eye, and there was evidence the boyfriend was living in appellants home. There was also evidence the boyfriend continued to have anger problems. The court sustained the petition and again ordered no contact between the minors and appellants boyfriend.

The report on disposition of the supplemental petition in December 2007 stated appellant continued to have a relationship with the boyfriend and interjected him into visits with the minors despite warnings not to do so. The report further stated that, while the family had been provided more than one and a half years of services, circumstances in the family remain unchanged. Appellant, despite her denials, remained in a violent relationship and resistant to change, continuing to blame others and minimize the risk presented by the boyfriend. The report recommended termination of services noting that appellant was choosing her boyfriend over the minors. At the dispositional hearing, the court terminated services and set a section 366.26 hearing.

A status review in August 2008 report stated appellant visited regularly and the minors were excited about visits. However appellant continued to discuss the case despite being cautioned not to do so and the minors continued to be anxious after visits.

A report in October 2008 for the section 366.26 hearing stated the plan for the minors was adoption and an adoptive home with a relative had been located. A bonding study was pending. The bonding study conducted in November 2008 concluded the minors had a strong, positive bond with appellant and termination of parental rights would be devastating to them. However, due to appellants lack of insight, regular contact would have to be supervised, the minors would need to be in a stable placement, and appellant needed therapy to increase her insight and to adjust to the fact she was no longer the minors primary caretaker.

A status review report in February 2009 indicated appellant visited frequently. The relative who was a potential adoptive placement had done little to develop a relationship with the minors. The foster caretakers were now interested in adoption but only if ongoing contact with appellant was very limited. Li.Y. had asked that her visits with appellant be reduced. Both minors were very attached to the foster parents. The court ordered visits decreased from twice a week to once a week.

In May 2009, appellant filed a petition for modification seeking return of the minors under Agency supervision. The petition alleged she had terminated her relationship with the boyfriend, removing the risk to the minors, and that return was in the minors best interest as shown by the bonding study which had recommended continued contact between appellant and the minors due to the strong bond between them.

A second bonding study performed in May 2009 stated that seven-year-old Li.Y. was happy with her foster parents and willing to stop visiting with appellant. X.Y., now five years old, would be sad if he did not visit appellant and was a little sad at visits because he did not live with her anymore. Concerns about appellants behavior at visits and her impact on the minors remained. The evaluation concluded that appellants judgment regarding the minors was questionable. Appellant continued to minimize her boyfriends impact on the minors and was unable to shift from a role of primary caretaker to support person. Li.Y. had a moderately strong and positive relationship with the foster parents but was conflicted because she continued to have positive feelings about appellant although she was willing to discontinue visits with appellant. X.Y. had become increasingly close to the foster parents over time. He was secure in their ability to meet his needs and had a positive relationship with them. However, his relationship with appellant was of ongoing importance to him. The study concluded both minors had a moderately strong and positive relationship to the foster parents and disrupting that placement would be detrimental to their well-being. Appellant had failed to follow through with recommendations from the prior evaluation and continued to demonstrate lack of insight and judgment about what was important to the minors. The evaluation recommended adoptive placement with the foster care providers even if that meant severing their relationship with appellant. The evaluator cautioned that the foster family needed to remain sensitive to the minors need for a connection to their biological family and to be certain that any negative feelings about the biological family not be conveyed to the minors.

At the hearing, the psychologist who performed the bonding studies testified that the first study recommended continued contact with appellant because there was a significant connection with the minors and the foster home was not considering adoption. The second study looked at the minors bonding with the foster parents, who had expressed an interest in adoption, and at appellants functioning. There were concerns about appellants functioning at the time of the first study which led to the need for supervised visits due to appellants demonstrated lack of judgment and inability to control her emotions. After the second study, the conclusion was that the minors would benefit more from the stability of adoption by the foster parents and no contact with appellant than from another placement which would allow contact. The change was due to the growth of a strong, positive bond between the foster parents and the minors. The psychologist was concerned that returning the minors to appellant would place them at a significant risk of emotional harm if appellant was unable to gain insight into her own problems and the minors were removed again. Appellant still lacked insight into why the minors were removed from her care. The psychologist stated that as recently as two months before the hearing appellant was still identifying the boyfriend as a part of the family. The psychologist stated there was some risk to the minors in terminating appellants parental rights, but termination of their relationship with the foster parents would be riskier to them. The psychologist was concerned that after three years of the dependency, appellant was still unable to conform her conduct to the interests of the minors. In the psychologists opinion, appellant would need at least another year of therapy in addition to the year she already had to make changes in herself which would allow her to act in the minors best interests and keep them safe. The uncertainty for the minors while waiting for such a change would be detrimental to their well-being. The minors now had a strong, positive bond and a sense of belonging in the home of the foster parents.

Appellant testified insisting she did not have ongoing contact with the boyfriend. Appellant explained she had not followed the recommendations of the first study because she could not afford to do so.

The court found appellants testimony unconvincing and of limited credibility and denied her petition for modification. The court discussed the change in level of attachment between appellant and the minors from the first to the second bonding study, concluded no exceptions to the preference for adoption had been shown, and terminated parental rights.

DISCUSSION

I

Appellant contends the court abused its discretion in denying her petition for modification.

A parent may bring a petition for modification of any order of the juvenile court pursuant to section 388 based on new evidence or a showing of changed circumstances.[1] The parent requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is preponderance of the evidence. [Citation.] (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Determination of a petition to modify is committed to the sound discretion of the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) The best interests of the child are of paramount consideration when the petition is brought after termination of reunification services. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the best interests of the child, the juvenile court looks not to the parents interests in reunification but to the needs of the child for permanence and stability. (Ibid.; In re Marilyn H. (1993) 5 Cal.4th 295, 309.)

The evidence did not support a finding either of changed circumstances or that return was in the minors best interests. The court found appellants testimony, which included her insistence she had broken off her relationship with the boyfriend long ago, not credible. The best interests element of the petition was supported by the first bonding study, however, the second bonding study demonstrated that appellant had not taken the recommended steps to improve her ability to function as a parent and keep the minors safe. The second study also demonstrated that the minors were not as bonded to her as they had been and that their interests were now in securing a permanent and stable home rather than continuing in a tenuous placement while waiting for appellant to make the changes necessary to protect and parent them. The juvenile court did not abuse its discretion in denying appellants petition for modification.

II

Appellant claims the bonding study showed that severing the parental bond would be detrimental to the minors and the court should have found an exception to the preference for adoption as a permanent plan.

At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must select one of several possible alternative permanent plans for the minor child. The permanent plan preferred by the Legislature is adoption. [Citation.] [Citation.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, original italics) There are only limited circumstances which permit the court to find a compelling reason for determining that termination would be detrimental to the child. ( 366.26, subd. (c)(1)(B).) The party claiming the exception has the burden of establishing the existence of any circumstances which constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 5.725(d)(3); Evid. Code,  500.)

One of the circumstances in which termination of parental rights would be detrimental to the minor is: 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).) The benefit to the child must 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. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. 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. (In re Autumn H. (1994) 27 Cal.App.4th, 567, 575.) Even frequent and loving contact is not sufficient to establish this benefit absent a significant positive emotional attachment between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Brian B. (1991) 2 Cal.App.4th 904, 924.)

Appellant has maintained regular visits, however, the psychologists testimony at the hearing after the second bonding study made it clear that the well-being of the minors in a permanent home where they had a strong, positive attachment to the caretakers outweighed the benefit to the minors of continuing contact with appellant. The relationship between the minors and the foster parents had deepened and strengthened over time while appellant had done little to improve the quality of her relationship with the minors or understand how her actions had negatively impacted them. The psychologist made it clear that, given her minimal progress in therapy, appellant was looking at at least another year of counseling to make enough progress to consider moving beyond carefully supervised visits. The minors needed permanence and stability in a home where they were safe and their needs were being met. The benefits of adoption clearly outweighed the benefits of contact with appellant. The court correctly concluded no exception to the preference for adoption as a permanent plan had been shown.

DISPOSITION

The orders of the juvenile court are affirmed.

NICHOLSON , J.

We concur:

SCOTLAND , P. J.

ROBIE , J.

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[1] Section 388 provides, in part: Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of the court previously made or to terminate the jurisdiction of the court. . . . [] . . . [] If it appears that the best interests of the child may be promoted by the proposed change of order, recognition of a sibling relationship, termination of jurisdiction, or clear and convincing evidence supports revocation or termination of court-ordered reunification services, the court shall order that hearing be held . . . .