In re A.T.
Filed 9/4/12 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NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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
In re A.T. et al.,
Persons Coming Under the Juvenile Court Law.
SAN
BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
P.P. et al.,
Defendants and Appellants.
E055652
(Super.Ct.Nos. J230170
& J230171)
OPINION
APPEAL
from the Superior Court of
Bernardino County.
Gregory S. Tavill, Judge.
Affirmed.
Konrad
S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant
Father.
Donna
P. Chirco, under appointment by the Court of Appeal, for Defendant and
Appellant Mother.
Jean-Rene Basle, County
Counsel, and Dawn M. Messer, Deputy
County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
Mother and father (parents)
separately appeal from an order terminating their parental rights to their
three-year-old son, A.T. (born in 2009) and six-year-old daughter, M.T.
relationship exception to adoption under Welfare and Institutions Code section
366.26, subdivision (c)(1)(B)(I).
petition under section 388, seeking reinstatement of reunification
services. He argues his circumstances
have changed and it is in the children’s best interests to grant his
petition. We reject parents’ contentions
and affirm the judgment.
II
FACTS AND PROCEDURAL
BACKGROUND
At
the inception of the juvenile dependency
proceedings, parents were living together but had never married. They had two biological children together,
A.T. and M.T. During parents’
relationship, father and another woman, R.M., had a child together, Rosalinda
(born in 2007). Rosalinda lived with her
mother, R.M., but visited father on weekends.
On
Thanksgiving Day, November 26, 2009, father picked up Rosalinda
from her mother’s home at 7:00 a.m. At that time, Rosalinda was healthy, walking,
talking, playing and had no problems.
According to father, later that day, in the afternoon, M.T. told father,
“Rosalinda is down.” Father went to the
bedroom and found Rosalinda on the floor, unresponsive. Father said he had last seen Rosalinda seven
minutes before, and 45 minutes earlier had seen her running around and
playing. At 1:30 p.m., father called 911. The paramedics transported Rosalinda to the
hospital.
Rosalinda suffered
a massive head injury, resulting in bleeding on the brain and left eye retinal
damage. The forensic doctor reported
that the injuries were due to blunt force trauma and were consistent with
abusive head trauma. The injury was so
severe that Rosalinda would have immediately been knocked unconscious. Rosalinda died two days later. The coroner deemed her death a homicide
caused by “[t]raumatic brain injury.”
Parents could not explain
how Rosalinda was injured. Father gave
inconsistent statements as to where he was when M.T. told him Rosalinda was on
the floor. He initially said he was at
his desk, and then said he was in the kitchen.
Father also said mother was in their bedroom, changing A.T.’s diaper at
the time. Mother told the police father
was watching television with the children and she was taking a shower when she
heard a bang or crack. Mother told
father to check on the children and then saw father in the room with Rosalinda,
who was unresponsive. About three months
earlier, Rosalinda’s mother, R.M., reported that Rosalinda had returned home
from visiting father with bruises, which prompted her to file a police
report. R.M. said she believed mother
hurt Rosalinda because, when R.M. was pregnant with Rosalinda, mother had threatened
to harm R.M. and Rosalinda.
Detention Hearing
On November 27, 2009, A.T. and M.T. (the children) were placed in
protective custody because of the high risk of physical harm. A.T. was nine months old and M.T. was four
years old.
title="">[2] The San Bernardino
County Children and Family Services (CFS) filed a juvenile dependency
petition, alleging the children came within section 300, subdivisions (b)
(failure to protect), (e) (severe physical abuse of a child under five), and
(j) (abuse of a sibling). The petition
alleged that parents failed to protect and supervise the children. Rosalinda allegedly had suffered severe
physical harm inflicted nonaccidentally by father, and mother knew or should
have known physical abuse was occurring, but failed to protect Rosalinda. The children were at risk of parents not
protecting them. The petition further
alleged that Rosalinda suffered the following injuries: “Vaginal tear and hemridging [
inner lip, bruising on the upper outer left lips, bruising on the inner left
ear lobe and canal, bruising the size of a quarter of the left lower back above
the buttocks, point of impact on the back of the [head], bruising on the inner
right ear, 2 inch long bruise on the left stomach, bleeding in the brain, and
left eye retinal damage.”
On December 2, 2009, the juvenile court ordered the children removed from
parents, and detained in foster care. On
December 22, 2009, CFS filed an amended
petition, adding that the children came within section 300, subdivision (f)
(caused another child’s death through abuse or neglect). The amended petition alleged the children
were at risk of harm because Rosalinda died nonaccidentally, from unexplained
blunt trauma, while in parents’ care.
Jurisdiction/Disposition
Hearing
CFS
reported in its jurisdiction/disposition hearing report, filed on December 18,
2009, parents were visiting the children twice a week. According to the addendum reports filed in
March, April and May 2010, the children were placed with their maternal
grandparents in February 2010. Mother
was attending counseling and visiting the children almost every day. Father had not participated in any reunification
services offered him. He was referred to
counseling but did not enroll or attend any counseling. The CFS reported that a family member had
reported that on an unknown date father was seen shaking Rosalinda because he
was frustrated with her. The social
worker concluded Rosalinda died because father abused or neglected her and
therefore he should not be offered reunification services.
At
the contested jurisdiction hearing on May 4, 2010, the juvenile court sustained
the amended petition, finding the children came within section 300,
subdivisions (b) (failure to protect) and (j) (abuse of a sibling). At the contested dispositional hearing on May
10, 2010, the juvenile court ordered the children removed from parents’ custody
and offered reunification services to mother, but not to father, under section
361.5, subdivision (b)(6) (inflicting physical injury to a sibling).
Six-Month Review Hearing
CFS reported in the six-month hearing report filed in
November 2010, that on July 15, 2010, the children were removed from the
maternal grandparents’ home and placed with their paternal aunt (Aunt
B.T.). It had become apparent maternal
grandmother did not believe parents were responsible for Rosalinda’s
death. Additionally, maternal
grandmother was allowing unsupervised parental contact, had failed to
communicate with the social worker over a two-month period, and had
inappropriately brought mother to M.T.’s individualized counseling
session. When the therapist refused to
allow mother into the session, mother had an outburst and maternal grandmother
told the therapist M.T. would not talk in therapy. The therapist believed maternal grandmother
was attempting to manipulate M.T. into not speaking freely during therapy. CFS further reported the Choctaw Nation of Oklahoma
determined the children were eligible for membership but would not intervene in
the dependency proceedings because the children were not currently enrolled
members of the tribe.
The children
were doing well in Aunt B.T.’s home and had bonded with her. Aunt B.T. was interested in adopting the
children. Meanwhile parents continued
living together, were both employed, and had not been charged with the death of
Rosalinda, although a murder investigation was pending. M.T. had started kindergarten and parents
assisted her daily with homework. M.T.
attended weekly therapy. Her therapist
believed M.T. did not witness anything traumatic involving parents. Mother had been attending therapy since June
2010 and participated in parenting classes.
The children were happy to see their parents. Mother visited the children almost daily. Father visited them four to five times a
week. Mother continued to deny Rosalinda
was mortally injured in her home. Mother
told the social worker she believed Rosalinda died because R.M. neglected
her.
The social worker
recommended terminating reunification services because neither parent had made
any progress in protecting the children from harm. There was no new evidence as to how Rosalinda
was injured. The social worker concluded
mother “has not shown that she can protect her children. This is evidenced by mother persistently
stating she believes that Rosalinda [] died as a result of the child’s
biological mother abusing or neglecting the toddler. This, despite the substantial evidence that
[father’s] visiting child died as the result of an acute injury. In addition, mother continues to live with
[father]. A preponderance of evidence
shows that Rosalinda was injured, either intentionally or unintentionally, by
an adult present in the apartment on Thanksgiving Day 2009. The undersigned therefore believes that
mother could be in the denial stage of her grieving for the death of Rosalinda,
in that the children’s father caused the child’s death. It is also possible that [mother] knows more
about the circumstances of that day than she has revealed. Whichever circumstance most closely
represents the truth, the children’s mother appears to be incapable of
protecting [the children].”
At
the six-month review hearing on January 3, 2011, mother and her therapist,
Carolyn Williams, testified. Williams testified
that mother denied injuring Rosalinda and did not believe father posed a risk
to the children. Mother denied any
responsibility for Rosalinda’s death.
She also did not believe father was responsible and continued to deny
that Rosalinda was even injured in her home.
According to Williams, mother indicated she felt disappointed and
betrayed when father had a child with R.M., and did not like R.M. Mother told Williams she loved Rosalinda and
had a good relationship with her.
Mother
testified at the six-month hearing that she believed father was a risk to the
children. When asked why she believed
this, mother said, “Because apparently if I don’t think that, you guys aren’t
going to give me my children back.
Mother then stated she did not believe father was a risk to the
children. Mother acknowledged she was
still living with father but did not intend to continue living with him. She claimed she was still living with him
solely for financial reasons.
After
hearing testimony and arguments, the juvenile court ordered mother’s
reunification services terminated and set the section 366.26 hearing.
Section 366.26 Hearing
Report
CFS
reported in its section 366.26 hearing report filed in April 2011, that the
children had lived with Aunt B.T. since July 15, 2010, and had bonded with
her. Aunt B.T. had known the children
since birth. The children looked to Aunt
B.T. as their parental figure. A.T.
called her “mom” and M.T. called her Auntie B.
Aunt B.T. reported in January 2011 that parents were visiting the
children less often, specifically one to two times a week. Aunt B.T. supervised the visits. Visits were appropriate, although sometimes
father would play with the children for only a few minutes and then watch
television. Mother would visit with the
children for five to ten minutes and then take a nap. In April 2011, the social worker explained to
mother that when she visited, parents needed to interact with the children
throughout their visits. The social
worker recommended terminating parental rights and concluded the children would
not suffer harm from doing so.
Father’s Section 388
Petition
On
May 19, 2011, father filed a section 388 petition, seeking reinstatement of his
reunification services, terminated on
May 10, 2010. Father alleged the
following changed circumstances: Father
had completed a parenting program and had attended 16 individual counseling
sessions. Father noted he had continued
to visit the children regularly and believed the children were closely bonded
to parents.
On June 2, 2011, CFS filed a
response to father’s section 388 petition, stating that father did not
participate in reunification services originally offered. It was not until after the court ordered
services terminated in May 2010 that he completed an in-home parenting program
and attended counseling. The social
worker believed the parenting program and counseling did not address or resolve
the issues related to physical abuse of Rosalinda. The social worker also noted that father
claimed he visited the children four to five times a week, but the section
366.26 report showed recorded visits of approximately two times a week, and
during the visits, father interacted with the children for only about five
minutes, and then watched television.
The social worker concluded
that, because father knew or should have known how Rosalinda was seriously
injured, he continued to pose a substantial danger to the children’s physical
health, safety, and physical and emotional well-being. “The force used to cause the acute injuries
leading to the death of 22-month old Rosalinda [] indicates an unpredictable
violent nature that would place the children . . . in danger if returned to the
care of [parents].” CFS concluded there
was no change of circumstances and recommended the court deny father’s section
388 petition.
Mother’s Section 388
Petition
On
June 2, 2011, mother filed a section 388 petition, seeking reinstatement of
reunification services, terminated on January 3, 2011. Mother alleged the
following changed circumstances: Mother
had made substantial progress in her therapy and had continued to visit the
children regularly to maintain her parent-child bond with the children. In mother’s supporting declaration, she
stated that she and father separated the weekend after the hearing on January
3, 2011. She no longer saw him, other
than when their visits with the children overlapped. She maintained daily contact with the
children. She continued counseling, even
after services were terminated. Mother
continued to work at In-N-Out Burger and was also training to become a
pharmacist technician. Mother noted she
first read the autopsy report regarding Rosalinda’s death on January 3,
2011. The juvenile court scheduled the
hearings on parents’ section 388 petitions on the same day as the section
366.26 hearing.
In September 2011, CFS filed
a response to both section 388 petitions, stating that the children continued
to reside with Aunt B.T. Mother
continued to deny that Rosalinda was mortally injured at parents’ apartment and
claimed Rosalinda died because of neglect by R.M. During a recent conversation with the social
worker on September 13, 2011, mother stated that she sometimes thought father
might have hurt Rosalinda. Father never
showed signs of child abuse and therefore she did not initially think of
it. Mother also concluded, after she did
her own research and read the autopsy report, that it was possible R.M. injured
Rosalinda before father picked her up on Thanksgiving Day. Mother told the social worker she was no
longer with father. The social worker
concluded that mother had not demonstrated any progress in her ability to
protect the children. Because mother had
consistently denied the possibility father killed Rosalinda, there remained a
substantial risk of harm to the children if they were returned to either
parent. The social worker recommended
termination of parental rights and adoption.
In September 2011, the
Choctaw Tribe notified the juvenile court that the children and mother were now
enrolled members of the Choctaw Tribe.
The juvenile court granted the Choctaw Tribe’s motion to intervene, and
continued the section 388 and section 366.26 hearings to allow the Choctaw Tribe
to review the case.
CFS filed an addendum report
on February 3, 2012, stating that mother was visiting the children three to
four times a week at Aunt B.T.’s home.
Father’s visits with the children were held at the CFS office because of
a past conflict between father and Aunt B.T.
Father complained that paternal grandfather was living at Aunt B.T.’s
home. Aunt B.T. said paternal
grandfather was not living there, although he did briefly visit. In January 2012, paternal grandfather was
deported. The social worker concluded
there was little evidence that paternal grandfather lived at Aunt B.T.’s home.
The Choctaw Tribe filed an
affidavit with the juvenile court in February 2012, stating the tribe was in
agreement with CFS “in finding it is difficult to believe that neither father
nor the children’s mother were aware that the child was injured so severely
that she died. The force used to cause
the acute injuries leading to the death of 22-month old Rosalinda [] indicates
an unpredictable violent nature that would place the children . . .
in danger if returned [to] the care of [father or mother].” The Choctaw social worker further concluded
that, “As a qualified expert, I believe that from our cultural perspective,
that the parents have failed to demonstrate that they are fit to parent their
children[.] [T]herefore their rights
could possibly be terminated.” The
Indian tribe social worker also concluded continued custody with parents would
result in serious emotional or physical harm to the children; reunification
services were unsuccessful; and it would be appropriate to terminate parental
rights and free the children for adoption with their paternal aunt.
Combined Hearing on the
Section 388 Petitions and Section 366.26 Hearing
On
February 8, 2012, the juvenile court conducted a combined hearing on parents’
section 388 petitions and the section 366.26 hearing. The following testimony was presented during
the combined hearing.
Social Worker Altmire’s
Testimony
CFS social worker, Craig
Altmire, testified that mother did not visit every day. She visited the children three or four times
a week, and visited for six to eight hours per visit. During that time, mother was not primarily
responsible for caring for the children.
Aunt B.T. was, and mother helped.
The two or three visits Altmire observed, were appropriate. Father also visited consistently, about once
a week, depending on his work schedule.
The children appeared excited to see him. The children also appeared very bonded to
mother. Parents initially provided Aunt
B.T. with financial support for the children.
Altmire did not have
anything negative to say about mother’s relationship with the children, other
than that he was concerned mother would not protect the children. Altmire concluded that, although the children
were very close and attached to mother, it would not be detrimental to the
children to terminate their relationship with her because Aunt B.T. was willing
to allow continued visitation and the children were very bonded to Aunt
B.T. Altmire acknowledged it could be somewhat
detrimental if the children were not permitted to have regular contact with
mother. They had become less bonded to
mother because they had not lived with her for the past two years.
Visits with parents had
always been supervised. There had not been
any overnight visits. Altmire did not
believe the children’s emotional attachment with mother was so substantial and
positive that the children would be greatly harmed if deprived of it. Altmire believed Aunt B.T. would provide a
safe and stable home for the children.
Altmire did not believe this as to mother, “because of [the] protection
issue.” Altmire concluded mother’s
relationship with the children did not outweigh the benefit of adoption. Neither parent had disclosed how Rosalinda
died while in their home. Mother never
acknowledged any responsibility for the death.
Mother’s testimony
Mother
testified she initially visited the children every day at maternal
grandmother’s home, from around 7:00 a.m. to 4:00 p.m. When she started school in January 2011, her
visits decreased. She saw the children
three times a week, from 7:00 a.m. to 4:00 p.m.
In July 2011, after mother finished school, she visited the children at
Aunt B.T.’s home, five times a week, from 8:00 a.m. to 4:30 p.m. Mother believed she had an outstanding
relationship with the children. M.T.
always wanted mother to hold her, and A.T. did not leave her side. Mother believed the children were closer to
her than to Aunt B.T. They called her
“Mommy” and their aunt, “Auntie B.”
Mother believed terminating her relationship with the children would be
detrimental. She acknowledged that she
had been telling M.T. that she was “fighting for her to come home,” which was
inappropriate.
Mother provided Aunt B.T.
with about $200 a month in child support, because Aunt B.T. asked her to. Father was also sending money to Aunt
B.T. According to mother, about nine
months before the hearing, she terminated her six-year relationship with
father. She currently saw him a couple
times a week, when their visitation with the children overlapped.
Mother
acknowledged she had previously testified in court that she did not know how
Rosalinda was injured and said she still did not know. Mother denied having any idea as to how
Rosalinda sustained head injuries, bruises to her scalp, ears, body, and mouth,
and an acute tear to her vulva.
Father’s Testimony
Father
testified that he consistently visited the children. His visits were moved from Aunt B.T.’s home
to the CFS office because he and his father and sister, Aunt B.T., were having
a conflict during the fall of 2011.
Before visitation moved to the CFS office, father visited the children
about an hour every other day, depending on his work hours. Father believed he was bonded to his
children. The children would run up to
him and M.T. always wanted to be with him.
Separation at the end of visits was difficult. The children screamed and cried when he left. Father believed they would suffer emotionally
if parental rights were terminated.
Although father was denied reunification services, he took a parenting
course and participated in counseling.
Father
testified that he did not kill Rosalinda.
He acknowledged he and mother were the only adults in their apartment
the day of Rosalinda’s death, and A.T. and M.T. were the only children in the
apartment. Father did not know how she
died or who killed her. The court
interjected: “You both can’t claim ignorance and expect me to believe it. It’s not believable. We need an explanation for who killed the child
and how it happened.” Father replied
that he did not know how Rosalinda died but he had “a clue.” Father then explained that Rosalinda’s
mother, R.M., lived with many family members and friends. R.M.’s oldest daughter was molested and
abused in her home. The incident was
reported to the police. Father said he
believed Rosalinda was abused while in R.M.’s care, although he acknowledged he
was aware the autopsy report and medical reports stated Rosalinda sustained
blunt force trauma while in parents’ home.
Father said the paramedics told him there was nothing in his home that
could have caused Rosalinda’s injuries.
Father did not know how to explain her injuries because she was not
injured in his home and he did not do it.
Before he found Rosalinda unconscious, she had been running around his
home and playing normally with M.T.
Father
denied having a temper. The social
worker reported a couple times that she had to call law enforcement during
father’s visitations because of his temper.
Father explained it was not because of his temper. He and his father were not getting along and
the social worker asked father to leave, but the children were clinging to
him. Father claimed the social worker
had a grudge against him. Father denied
threatening to kick the social worker’s “ass” when she would not allow him to
take his child to a movie unsupervised.
Father also denied having a confrontation with his brother.
After
hearing argument, the juvenile court denied parents’ section 388 petitions,
finding there had been no change of circumstances and that granting the
petitions was not in the children’s best interests. The court found that “the children would
still be at risk of harm by the parents if returned to the parents.”
As to the section 366.26 hearing,
the juvenile court found that mother had established a “substantial, positive,
and emotional” attachment to the children, but father had not. Parents had not shown that they could meet
the children’s needs in protecting them from future abuse. The court concluded the beneficial
relationship exception did not apply.
The court found parents’ testimony not believable. Parents continued to refuse to say how
Rosalinda was killed. The court
acknowledged that parents’ refusal to disclose this alone was not determinative
of the beneficial relationship exception.
But evidence that parents knew how Rosalinda was killed, and parents’
lack of disclosure of who killed Rosalinda and how it occurred, supported a
finding parents were not protective of the children. The court ordered parental rights terminated,
with the children referred for adoption.
III
FATHER’S SECTION 388
PETITION
title="">[3]
Father
contends the trial court abused its discretion in denying his section 388
petition, seeking to set aside the disposition order, denying father
reunification services. Father argues
his circumstances changed and granting his petition was in the children’s best
interests.
During the disposition
hearing on May 10, 2010, the juvenile court denied father reunification services
because he had not made use of reunification services offered and continued to
deny any responsibility for Rosalinda’s death.
After father was denied services, he completed a parenting course and
attended 16 counseling sessions on his own.
These were essentially the only changes alleged in his section 388
petition filed on June 2, 2011. On
February 8 and 9, 2012, the juvenile court heard and denied father’s section
388 petition, finding there were no changed circumstances because parents
continued to deny any responsibility for Rosalinda’s death and would not
disclose how it happened. The court also
concluded it was not in the children’s best interests to set aside the orders
terminating reunification services because there remained the risk that the
parents would not protect the children from harm.
A. Applicable law
“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 or changed
circumstances exist, and (2) the proposed change would promote the best
interest of the child. [Citation.] 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. [Citation.] 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. [Citation.]”
(In re S.J. (2008) 167
Cal.App.4th 953, 959-960 [Fourth Dist., Div. Two].)
In evaluating whether
parents have met their 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. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.) These factors become less significant once
reunification services have been terminated, as in the instant case. This is because, “[a]fter the termination of
reunification services, . . . ‘the focus shifts to the needs of the child for
permanency and stability’ [citation], . . .”
(In re Stephanie M. (1994) 7
Cal.4th 295, 317.)
B. Discussion
Father did not meet his
burden of establishing changed circumstances.
The problem that led to the dependency of the children was not
resolved. (In re Edward H. (1996) 43 Cal.App.4th 584, 592.) The parents took no responsibility whatsoever
for the death of the children’s sibling, which occurred while the deceased
child was solely in the parents’ care.
They completely denied that it occurred in their home, when the autopsy
report and other evidence conclusively established Rosalinda died in their
home, while in parents’ care. There were
no other adults present. The only others
in the home were A.T., who was nine months old, and M.T., who was four years
old. The evidence established M.T. could
not have possibly caused Rosalinda’s catastrophic injuries. That left parents, and they continued to act
as if nothing happened in their home, when it was irrefutable that something
horrific happened to Rosalinda while in their care, and they must have known
about it.
Under such circumstances,
the juvenile court did not abuse its discretion in denying father’s section 388
petition. Without parents’ disclosure of
how Rosalinda was injured, there remained the danger parents would not protect
the children from harm. While father did
eventually complete a parenting course and attend counseling on his own, there
was no evidence there was any change in the circumstances that led to the
dependency proceedings. Because there
remained a veil of uncertainty as to how Rosalinda was killed and who killed
her while in parents’ sole care, the juvenile court reasonably found it was not
in the children’s best interests to reinstate father’s reunification services
and delay adoption.
Furthermore, by the time the
court heard father’s section 388 petition, the children had been in protective
custody for over two years. For over two
years the children had been living in the safe and stable home of their aunt,
and were closely bonded to her. At the
time of the hearing on father’s section 388 petition, the focus was on the
permanency and stability of the children, and the presumption was against
disrupting the stability of the children’s placement. (In re
Angel B. (2002) 97 Cal.App.4th 454, 464; In re Stephanie M., supra, 7 Cal.4th at p. 317.) Although parents maintained a close
relationship with their children by visiting them often and consistently,
visitation remained supervised because of the serious and egregious injuries
Rosalinda sustained in parents’ care, and because of parents’ refusal to take
any responsibility for her death or disclose how it happened. We cannot say that it was in the best
interests of the children to set aside the disposition order denying father
reunification services, which would have delayed terminating parental rights
and impeded adoption proceedings.
Father argues that it was
uncertain how Rosalinda died and it was unclear that father was responsible for
her death. But the evidence in the
record is clear that Rosalinda’s lethal injuries occurred while she was within
his and mother’s sole care and it was highly probable they were responsible for
her death and knew how it happened.
According to the autopsy report, the injuries were so severe, Rosalinda
was instantaneously knocked unconscious.
This indicates she did not sustain the injuries before arriving at his
home. There was undisputed evidence that
Rosalinda was conscious and in good health when father picked her up from
R.M.’s home in the morning. In addition,
father told the social worker that 45 minutes before finding Rosalinda
unconscious, he had seen her running and playing. Father denied hearing anything, such as a
bang from Rosalinda falling or any other noise.
Mother, however, reported she had heard a bang or “wood cracking,”
possibly from the toddler bed breaking.
According to the forensic
doctor who examined Rosalinda, her injuries were “consistent with a high force
trauma causing the injury, and falling from a two story home’s roof on concrete
floor would be consistent with the injuries observed.” The injuries were not consistent with falling
in her room, which had carpet. According
to the paramedics, there was nothing in parents’ apartment that could have led
to Rosalinda sustaining such injuries accidentally and without parents knowing
they were occurring. If Rosalinda’s
injuries occurred inside parents’ apartment, parents would have heard the
impact and, in all probability, either mother or father caused Rosalinda’s
injuries. Mother and father have not
provided any evidence to the contrary, other than self-serving statements that
they were not responsible for Rosalinda’s injuries and she was not injured
while within their care. These
circumstances lead to the well-founded concern that the children were at risk
of harm if left unsupervised with parents.
Furthermore, as father
acknowledges in his appellate opening brief, “mother could have been the
perpetrator of R.T.’s death as R.T. was the product of an illicit affair [father]
had with another women [R.M.] during his relationship with mother. . . . Mother certainly [had] a reason to hate the
child, R.T., as representative of her partner’s infidelity and another woman’s
intrusion into her life.” While this
motive is speculative, the facts are not.
The injuries occurred while Rosalinda was in the care of both parents,
and it is highly unlikely that they did not both know when and how Rosalinda
was injured or who injured her. Yet they
both feign a total lack of responsibility and knowledge of the incident, which
is not believable. Under such
circumstances, the juvenile court did not abuse its discretion in denying
father’s section 388 petition. Circumstances
were not sufficiently changed and it was not in the children’s best interests
to set aside the order denying father reunification services.
IV
THE BENEFICIAL RELATIONSHIP
EXCEPTION
Mother
and father contend the juvenile court erred in rejecting the beneficial
relationship exception to adoption (§ 366.26, subd.(c)(1)(B)(i)). This exception is often raised but rarely
applies. (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5,
disapproved on other grounds in In re
Zeth S. (2003) 31 Cal.4th 396, 413.)
While it can have merit in an appropriate case (e.g.,
296-301), this is not such a case.
A. Applicable Law
Generally, at a section
366.26 hearing, if the juvenile court finds that the child is adoptable, it
must terminate parental rights. (§
366.26, subds. (b)(1) & (c)(1).) This
rule, however, is subject to a number of statutory exceptions (§ 366.26, subds.
(c)(1)(A) & (c)(1)(B)(i)-(vi)), including the beneficial relationship
exception, which applies when “termination would be detrimental to the child”
because “[t]he 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).)
“When applying the
beneficial parent-child relationship exception, the court balances the strength
and quality of the parent-child relationship in a tenuous placement against the
security and sense of belonging that a stable family would confer on the
child. If severing the existing 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.’ [Citation.]”
(In re B.D. (2008) 159
Cal.App.4th 1218, 1234-1235.) “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. [Citation.]
While the exact nature of the kind of parent/child relationship which
must exist to trigger the application of the statutory exception to terminating
parental rights is not defined in the statute, the relationship must be such
that the child would suffer detriment from its termination. [Citation.]”
(In re Angel B., supra, 97
Cal.App.4th at p. 467.)
“‘[F]or the exception to
apply, the emotional attachment between the child and parent must be that of parent
and child rather than one of being a friendly visitor or friendly nonparent
relative, such as an aunt.’
[Citation.]” (
922, 938.) “‘A biological parent who has
failed to reunify with an adoptable child may not derail adoption merely by
showing the child would derive some
benefit from continuing a relationship maintained during periods of visitation
with the parent. [Citation.] A child who has been adjudged a dependent of
the juvenile court should not be deprived of an adoptive parent when the
natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child’s need
for a parent.’ [Citations.]” (Id.
at p. 937.)
“We must affirm a trial
court’s rejection of these exceptions if the ruling is supported by substantial
evidence. [Citation.]” (In re
Zachary G. (1999) 77 Cal.App.4th 799, 809.)
“We . . . review[] the evidence most favorably to the prevailing party
and indulg[e] in all legitimate and reasonable inferences to uphold the court’s
ruling. [Citation.]” (In re
B.D., supra, 159 Cal. App.4th at p. 1235.)
Because parents had the burden of proof, we must affirm unless there was
“indisputable evidence [in parents’ favor] no reasonable trier of fact could
have rejected . . . .” (
187, 200.)
B. Discussion
Parents argue they have a
significant parent-child bond with the children, they love their children, the
children view them as their parents, they visited the children frequently and
consistently, and their relationship could not be easily overlooked upon
adoption of the children. Even though
parents maintained a close relationship with the children, we conclude parents
have not established that the benefits from continuation of their relationship
with the children outweigh the benefit to the children of being placed in a
safe, stable, permanent adoptive home.
In considering the four factors commonly determinative of whether a
relationship is important and beneficial, we conclude the detriment suffered by
the children from its termination does not outweigh the security and sense of
belonging that a stable family would confer on the children. (In re
Angel B., supra, 97 Cal.App.4th at p. 467.)
The children were relatively young when removed from parents. A.T. was only nine months old and M.T. was
four years old. A.T. spent the majority
of his life living with Aunt B.T. and M.T. spent about a quarter of her life
living with her.
While parents’ interaction
with the children may have had a positive effect on the children, maintaining
the relationship required continued supervised visitation. Parents never had unsupervised visits or
overnight visits because of the concern parents would not protect the children
from serious physical harm. The
children’s sibling suffered lethal injuries while in parents’ exclusive care
and parents continued to deny any responsibility for her death or knowledge of
how she died. There was also evidence
that on one occasion, after Rosalinda returned from visiting father, R.M.
noticed Rosalinda had sustained bruises, which prompted R.M. to file a police
report. In addition, a family member
reported seeing father shaking Rosalinda when he was frustrated with her.
The juvenile court
reasonably rejected the beneficial relationship because of the continued risk
of harm to the children if placed in parents’ unsupervised care. The risk remained that parents would not
protect the children if they were left in parents’ care unsupervised. Furthermore, the record demonstrates that
Aunt B.T. has been willing to allow parents supervised visitation of the
children, and would likely continue to allow it after adopting the
children. We thus affirm the juvenile
court’s rejection of the beneficial relationship exception. (In re
Zachary G., supra, 77 Cal.App.4th at p. 809.)
V
DISPOSITION
The
judgment is affirmed as to both mother and father.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
name="_ftn1" title=""> [1] Unless
otherwise noted, all statutory references are to the Welfare and Institutions
Code.
name="_ftn2" title=""> [2] The
juvenile dependency petition and detention report incorrectly state M.T. was
born in December 2005, and was three years old at the time of detention. According to a copy of her birth certificate,
M.T. was born in September 2005, and was four years old when first detained in
November 2009.
