IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
January 24, 2012
IN RE M.K. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SHASTA COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
R.H., DEFENDANT AND APPELLANT.
(Super. Ct. Nos. 09JVSQ2824001, 09JVSQ2824101, 09JVSQ2824201, 09JVSQ2824301, 09JVSQ2824401, 09JVSQ2824501)
The opinion of the court was delivered by: Murray , J.
In re M.K.
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The mother of M.K., L.K., C.K., B.G.K., B.S.K. and V.K. (the minors), appeals from the juvenile court's orders denying her request for modification and terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 388, 395.)*fn1
On appeal, mother contends the juvenile court erred by denying her modification request and by failing to find an exception to adoption based on her relationship with the minors. (§ 366.26, subd. (c)(1)(B)(i).) Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A dependency petition was filed by the Shasta County Health and Human Services Agency (the Agency) in November 2009 regarding the minors, ages three to eight, as well as their 12-year-old half brother,*fn2 based on the father's alcohol abuse and anger problems, the mother's inability or unwillingness to protect the children, and the parents' inability or unwillingness to provide a safe residence for the children or to meet their needs. The petition alleged that mother was aware of the father's alcoholism and violent tendencies but allowed him to reside in the home and care for the minors. In addition, the petition alleged that there were unsanitary conditions at the minors' residence and the minors had extremely poor hygiene.
According to the November 2009 detention report, eight-year-old M.K. reported that father "'drinks beer and gets drunk, yells, screams, punches the cupboards in the house, and hits the [minors] in the head.'" According to M.K., during the most recent episode, father became angry with four-year-old B.G.K. for not taking off his pajamas and getting ready for school. Father shook B.G.K. and screamed at him, "slammed [him] on the ground, hitting his head," and pulled off his pajamas, while mother screamed at him to stop. On the same morning, father became upset with M.K. for not changing out of shorts into pants. Father "'ripped his shorts off him,'" hit him on the head, and banged his head on the floor.
After interviewing three of the minors at school later that day, a social worker and two Redding Police officers went to the family's residence. The next day, M.K. told a social worker that after she and the officers left the residence, father "got drunk" and began yelling and punching the cupboards. Mother told father to quiet down, and when father continued to yell, M.K. went upstairs to tell mother. When M.K. came back downstairs, father "'punched him in the mouth,'" injuring his lip.
The detention report discussed the condition of the home and the minors' hygiene. The social worker noted that when she entered the home, there was a "very strong urine stench." One of the toilets was "brimming with soupy fecal matter accompanied by the smell of bleach." J.L. had been given the chore of emptying the feces and bleach mixture with his bare hands, using only two cups. One of the bedrooms "reeked of dirty clothing[ and] urine, and had [a] moldy sweat stench." V.K. had "a ripe moldy odor emitting from her person" that was so strong the social worker had to pull her vehicle over and vomit while transporting her to the foster care agency. M.K. "had a sour smell emitting from his body" when interviewed at his school. The twins, B.G.K. and B.S.K, reportedly regularly came to their Head Start program in dirty clothes and with "a strong smell of filth emitt[ing] from their bodies." In addition, they both had developmental and behavioral problems, including significant delays in speech and in their social interactions.
Father had a lengthy criminal history involving violence and alcohol abuse. This included a conviction in 2007 for willful cruelty to a child, after father assaulted the minors' half sibling, J.L. There had been numerous other law enforcement contacts with the family regarding the father's problems with anger control and substance abuse. Yet, the father did not feel he had a drinking problem and claimed he was not a violent person. Instead, father blamed the minors' half brother, J.L., for the involvement of the Agency, which father described as "'a bunch of crap.'"
There was a long history of Agency involvement with the family. There had been 11 prior referrals in Shasta County, including allegations of physical abuse, emotional abuse, and neglect, dating back to 2003. The most recent referral involved allegations of physical and emotional abuse by father on J.L. and M.K. in May 2009. The emotional abuse allegations were substantiated. Family services through the Agency were offered but refused by the parents.
Mother admitted that father had "a temper" but denied he abused the minors or her. With regard to the events leading to the minors' removal, mother acknowledged only that the father had been "'rough.'" Although mother said she was willing to have father move out if "necessary," she did not feel he was abusive or that she had failed to protect the minors.
In December 2009, the juvenile court sustained the allegations in the petition after a contested jurisdictional hearing and ordered reunification services for both parents.
The minors commenced counseling and were diagnosed with mental health conditions ranging from anxiety and adjustment disorder to posttraumatic stress disorder (PTSD) and "age-inappropriate" and "parentified" behavior. By the time of the 12-month status review report, the minors had begun to disclose additional incidents of abuse by father that had occurred while they were in his care, including reports that father hit mother. Father continued to display angry and intimidating behavior when he was given information he did not like or was challenged about his attitude. Nonetheless, mother had continued to live with him, maintaining she would have left if she had known his behavior would prevent the return of the minors. However, the report noted that, in February 2010, a social worker encouraged mother to consider living separately from father. At that time, mother indicated she would do that if it was necessary, but expressed concern about being able to "make it financially." She knew she would be eligible for HUD housing, but stated she did not know how she would make the car, insurance and other payments.
In December 2010, the father's visitation was terminated after he had an outburst toward the end of a visit, during which he yelled repeatedly in the minors' presence that the social worker was "'trying to get [them] adopted out.'" The minors had adverse reactions following the visit.
One day after the 12-month review hearing in December 2010, mother said she was going to divorce father and move to Washington. In early January 2011, when mother appeared for the visitation, she stated she had come from Washington on a bus to get there.
At a contested review hearing in March 2011, mother testified that, after learning the social worker was recommending termination of services, she left the father and moved to the state of Washington to live with her grandmother. Mother testified at the hearing that she was still looking for her own place to live in Washington.
Although mother maintained she had not had contact with the father since moving out of state, she also stated he appeared to be learning from his services. Mother testified she never viewed the father's behavior as abusive and felt his "primary issue" was that "[h]e yelled a lot" and would "throw things." She continued to describe the father's conduct leading to the minors' removal as "being rough."*fn3
Mother claimed that prior to learning of the social worker's termination recommendation, she thought she was supposed to work things out with father because couple's counseling was part of her case plan. However, the social worker testified that couple's counseling was added to the case plan at the six-month review because mother had chosen to remain with the father and the parents had already begun counseling on their own. The social worker explained that "as a matter of course, the [Agency] doesn't tell people to get divorced" and, instead, dealt with domestic violence situations in which the spouse chose to stay by recommending services to help teach the parent how to exercise better judgment. Mother was referred to classes for this purpose. According to the social worker, mother had been present during the father's displays of a "volatile temper" and "problems with authority," but she had not been able to reach the conclusion on her own that she needed to separate from him in order to protect the minors.
Following the testimony, the juvenile court terminated services and set the matter for a hearing pursuant to section 366.26 to select and implement a permanent plan for the minors. With regard to mother, the court noted that, at the jurisdictional hearing, the court had stressed to her that by allowing the father to remain in the home, she demonstrated she did not "fully recognize the problem." The court stated it was clear that mother still "wasn't getting it" and that she was not strong enough to protect the minors from the father. The court concluded there was not a substantial probability that the minors could be returned to mother in the two months remaining before the 18-month review.
Mother filed a petition for an extraordinary writ challenging the termination of services, which was denied by this court in an unpublished opinion.*fn4 (See fn. 3, ante.)
Three and one-half months after the review hearing, mother filed a request for modification, alleging that she had moved to Washington, had remained away from father, had obtained stable housing and was employed, and the minors could safely be returned to her care. She asserted there was a "deep bond" between the minors and her, that she interacted appropriately with them, and that she had been able to manage them at a chaotic Christmas visit. Shortly thereafter, mother also filed a motion for funds to pay for a "parent/child assessment."
At a hearing on July 1, 2011, the juvenile court denied mother's modification request, ruling there had been no change of circumstances. The court also denied mother's request for a bonding assessment, noting there was already ample information regarding the nature of her relationship with the minors and that an evaluator would have little more to go on than the court, as mother's visits had been reduced to once per month.
According to the social worker's report for the section 366.26 hearing, three of the minors had been placed in adoptive homes, two were transitioning into one of these homes, and one was in the process of transitioning into a different adoptive home. Mother continued to visit the minors once a month, and the minors appeared to enjoy the visits. However, according to the social worker, the minors who were old enough to express an opinion said they wanted to be adopted or to stay in their current homes.
According to the report of the Court Appointed Special Advocate (CASA), M.K., now nine, had been assessed as learning disabled and also was diagnosed with PTSD and attention deficit hyperactivity disorder. The CASA expressed concern about M.K.'s permanency and recommended that "parental rights be terminated, giving M.K. a permanent placement, which will offer him a greater sense of security." Although M.K. told the CASA he would like more visits with mother and "'would kind of be happy'" to live with his parents, he also said, "he was happy with the way things were going."
The CASA reported that seven-year-old C.K., who had been diagnosed with anxiety disorder and PTSD, was thriving in his adoptive placement. C.K. said he wanted to see mother more often and would like to live with his parents, but he also said he was happy "most of the time" and that living in his prospective adoptive placement was "'[g]ood.'" The CASA's "only concern [was] that [C.K.] might be moved out of [his current] situation."
At the section 366.26 hearing, mother made an offer of proof that, if she testified, she would state that visits with the minors had gone well and she believed she had a strong bond with each of them.
I. Modification Petition
Mother contends the juvenile court erred by denying her modification request. We disagree.
A. Applicable Law and Standard of Review
Section 388, subdivision (a), 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 court previously made or to terminate the jurisdiction of the court."
A dependency order may be modified if it is established that (1) there has been a change of circumstance and (2) the proposed modification is in the best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526 (Kimberly F.).) The petitioning party has the burden of proving both of these requirements by a preponderance of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.); Nahid H. v. Superior Court (1997) 53 Cal.App.4th 1051, 1068.)
One of the functions of section 388 is to provide "an 'escape mechanism' when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights." (Kimberly F., supra, 56 Cal.App.4th at p. 528, citing In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).) "Even after the focus has shifted from reunification, the scheme provides a means for the court to address a legitimate change of circumstances while protecting the child's need for prompt resolution of his custody status." (Marilyn H., supra, at p. 309.)
The best interests of the child are of paramount consideration when a modification petition is brought after termination of reunification services. (Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the best interests of the child at this juncture, the juvenile court looks not to the parent's interests in reunification but to the needs of the child for permanence and stability. (Marilyn H., supra, 5 Cal.4th at p. 309.) "A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
A modification petition "is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion." (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) A court abuses its discretion when its decision exceeds the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 (Jasmine D.).) "'"The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court."'" (Ibid.)
B. The Juvenile Court's Findings
The court concluded that mother failed to show a change in circumstances. The court found that mother was in denial about father's treatment of her and the minors and further stated it was not confident mother had cut her ties with father. The court also found it "speculative as to where the mother would be living and whether she could provide a safe and proper home for the children."
1. Changed circumstances
Contrary to mother's claim, her relocation to Washington State did not constitute changed circumstances, as she moved well before the hearing at which her services were terminated and, as we discuss post, failed to substantiate her claim that she had since obtained suitable housing for her and the minors. Nor did mother's claim that she was working and had located housing address the primary obstacle to reunification, which was her inability to recognize that the minors had been abused by the father, despite being provided more than 15 months of services to address this issue.
2. Best interests
Even assuming mother had established changed circumstances, she also had the additional burden of establishing that modification was in the minors' best interests. Mother contends the factors identified in Kimberly F. for evaluating a minor's best interests support granting a modification. These factors include: "(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." (Kimberly F., supra, 56 Cal.App.4th at p. 532.)
a. Seriousness of the problem, its continuation
Mother does not deny the seriousness of the problem underlying the dependency proceedings. Nonetheless, she maintains her requested modification met the minors' best interests because the problem had not continued.
It is true the minors had not been subjected to physical abuse by the father during the dependency proceedings, as they were not in his care. But the dependency petition was also based on mother's failure to protect the minors from the father's abuse and the failure to provide a safe residence for the minors. Mother did not present any evidence of a change in her level of insight regarding the abuse suffered by the minors and her responsibility for failing to protect them. Mother's continued denial regarding the extent of the father's abuse of the minors leads to the conclusion that this circumstance cannot be ameliorated. Nor will mother be able to recognize and protect the minors from similar circumstances in the future.
Additionally, mother did not establish the suitability of the proposed housing for the minors, or even that it really existed. The house where mother was living in Washington was a small, two-bedroom house in which her grandparents and the caretaker for her cancer-stricken grandfather live. Mother claimed to have a friend who was going to allow her and the six minors to move into a four-bedroom home, but mother provided no proof other than her representations to corroborate this circumstance. Furthermore, mother apparently made no attempt to provide information concerning the proposed living arrangements to the Agency at any time prior to the section 388 hearing so the Agency could investigate. Given her previous misrepresentations concerning the father's conduct, the juvenile court was justified in not taking her at her word.
The first and third Kimberly F. factors do not support modification.
b. The relative bonds
With regard to the second factor -- the minors' bonds with mother as compared to the caretakers -- mother contends the juvenile court abused its discretion in denying her request for a bonding study to assist the court in making this evaluation. However, "the trial court is never obliged to appoint an expert to assist it in making a factual, much less a legal, determination . . . unless, as that section provides, 'it appears to the court . . . that expert evidence is . . . required.'" (In re Eric A. (1999) 73 Cal.App.4th 1390, 1394, fn. 4, italics added by Eric A.) The juvenile court here felt it already had ample evidence regarding mother's relationship with the minors and that a bonding study would add little more, as mother's visits had been reduced to once a month. This determination was well within the court's discretion to make. (See In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1341.)
The visits had been reduced. Visitation never progressed from supervised visits to unsupervised or extended visits. As we discuss post, the visits had gone well and there was bonding with two of the minors. But we cannot find that the juvenile court abused its discretion in determining the bonding that existed was insufficient to justify resumption of reunification services.
3. Special needs
The Kimberly F. factors were not intended to be exhaustive. Other factors may be considered (Kimberly F., supra, 56 Cal.App.4th at p. 532), especially where the minors have special needs.
Here, the minors had a variety of developmental and psychological problems and, consequently, had a heightened need for stability and permanence. Under such circumstances, prolonging permanency to see if mother might be able to gain sufficient insight to protect the minors in the future would not serve their best interests. Moreover, mother provided the court with no plan on how she would meet these special challenges and continue the progress the minors had shown toward recovering from the trauma she had allowed them to endure throughout their lives.
Accordingly, we conclude the juvenile court acted well within its discretion in denying mother's request for a bonding study and the request for modification.
II. Beneficial Parental Relationship Exception
Mother also contends the juvenile court erred by failing to find an exception to termination of parental rights based on her beneficial relationship with the minors. We reject this claim as well.
A. Applicable Law and Standard of Review
"Adoption must be selected as the permanent plan for an adoptable child and parental rights terminated unless the court finds 'a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).) Under this provision, "the court must order adoption and its necessary consequence, termination of parental rights, unless [this] specified circumstance provides a compelling reason for finding that termination of parental rights would be detrimental to the child. The specified statutory circumstances--actually, [an] exception--to the general rule that the court must choose adoption where possible--must be considered in view of the legislative preference for adoption when reunification efforts have failed." (In re Celine R. (2003) 31 Cal.4th 45, 53, first italics added.) "'Adoption is the Legislature's first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.'" (Celine R., supra, 31 Cal.4th at p. 53, quoting Jasmine D., supra, 78 Cal.App.4th at p. 1348.)
The parent has the burden of establishing that a statutory exception to adoption applies. (Bailey J., supra, 189 Cal.App.4th at p. 1314; In re Megan S. (2002) 104 Cal.App.4th 247, 252; Cal. Rules of Court, rule 5.725(d)(4).) The burden of proof is preponderance of the evidence. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.)
Mother and the Agency both suggest that we review the juvenile court's decision here under the substantial evidence test. Under the substantial evidence test, we uphold a juvenile court's ruling declining to find such an exception if substantial evidence supports the finding. (In re I.W. (2009) 180 Cal.App.4th 1517, 1529 (I.W.); In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) In employing this test, "'"we are bound by the established rules of appellate review that all factual matters will be viewed most favorably to the prevailing party [citations] and in support of the judgment . . . . 'In brief, the appellate court ordinarily looks only at the evidence supporting the successful party, and disregards the contrary showing.' [Citation.] All conflicts, therefore, must be resolved in favor of the respondent."'" (I.W., supra, 180 Cal.App.4th at p. 1527.)
To prove that the beneficial parental relationship exception applies, the "parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits--the parent must show that he or she occupies a parental role in the life of the child. [Citation.]" (I.W., supra, 180 Cal.App.4th at p. 1527.) Moreover, it is not enough simply to show "some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights." (Jasmine D., supra, 78 Cal.App.4th at p. 1349.) There must be a significant, positive emotional attachment between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.)
And even if there is such a bond, the parent must prove that the parental 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.'" (In re S.B. (2008) 164 Cal.App.4th 289, 297, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575; accord, Jasmine D., supra, 78 Cal.App.4th at p. 1345.) "'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.'" (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953, quoting Autumn H., supra, 27 Cal.App.4th at p. 575.) "When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption." (Jasmine D., supra, 78 Cal.App.4th at p. 1350; Autumn H., supra, 27 Cal.App.4th at p. 575.) "Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (Jasmine D., supra, 78 Cal.App.4th at p. 1350, italics added.)
B. The Juvenile Court's Findings
The juvenile court acknowledged "there [were] positive reports about the visits," but also noted that the minors had "gone through quite a bit and have suffered as a result of the behavior of their parents . . . [,] the father particularly but the mother's inability to protect them and get them out of that situation." The court also noted that the children had "improved quite a bit while in foster care," but continued to have problems. The court concluded the minors needed the safety and security that the permanence of adoption would afford them and, thus, adoption would be the best permanent plan for them. Accordingly, the court ordered a permanent plan of adoption and terminated parental rights.
As already noted, the minors had an extraordinary need for stability and permanence as a result of the trauma they experienced while in the parents' care and the myriad developmental and psychological problems they faced. Such circumstances weighed heavily in favor of adoption, and adoptive homes had been located for all of them.
By the time of the section 366.26 hearing, the minors had been out of mother's care for over a year and a half, and while they enjoyed visits with her, these had been reduced to once per month with no evidence of an adverse effect on any of the minors. Although two of the minors said they would like to have more contact with mother, they also stated they were happy with their current situations. Under such circumstances, the juvenile court was justified in concluding that the advantages of adoption outweighed any benefit to the minors of maintaining a relationship with mother.
Mother analogizes the circumstances here to those in In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207-1208 (Jerome D.), in which the appellate court reversed an order terminating parental rights, in part, because it found that the beneficial parental relationship exception to adoption applied. (Ibid.) Jerome D. involved a child who was nearly nine years old, and who had lived with his mother for six and one-half years and was in a prospective adoptive placement with the mother's former boyfriend. The minor, who had unsupervised, overnight visits with the mother and wanted to live with her, "seemed lonely, sad, and the stepchild or 'the odd child out'" in the prospective adoptive home. (Id. at p. 1206.) A psychologist who observed the minor with his mother concluded he "would grieve and could experience emotional and behavioral difficulties" if the relationship was severed. (Id. at p. 1207.) The psychologist felt the minor would benefit developmentally if the relationship was maintained. (Ibid.)
Unlike Jerome D., here the record is devoid of evidence that the minors would suffer the type of detriment that would constitute a compelling reason for ordering a permanent plan other than adoption if their relationships with mother were severed. Accordingly, Jerome D. is distinguishable.
Mother's reliance on In re S.B. (2008) 164 Cal.App.4th 289 is similarly misplaced. In that case, the juvenile court found that a five-year-old minor had an emotionally significant relationship with his father but declined to find an exception to adoption because the relationship was not "parental." (Id. at pp. 292, 295, 296, 298.) The appellate court concluded this was error because "the only reasonable inference is that [the minor] would be greatly harmed by the loss of her significant, positive relationship with [her father]." (Id. at p. 301, italics added.) The evidence here does not support such an inference, let alone support a conclusion that such an inference would be the only inference.
Accordingly, we conclude there is substantial evidence to support the juvenile court's determination that the benefit to the minors of maintaining a relationship with mother was not sufficient to overcome the preference for adoption. This case does not present the extraordinary circumstance where the beneficial parental relationship exception should apply.
The juvenile court's orders are affirmed.
We concur: NICHOLSON , Acting P. J. ROBIE , J.