In re Jeffrey S.

Filed 3/2/07 In re Jeffrey S. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from judgments and orders of the Superior Court of San Diego County, Cynthia Bashant, Judge. Affirmed.

Kathleen S., the mother of Jeffrey S. and Christian S., appeals the judgments terminating her parental rights under Welfare and Institutions Code^[1]section 366.26. Kathleen contends the juvenile court erred by not applying the beneficial parent-child relationship exception to adoption ( 366.26, subd. (c)(1)(A)). Kathleen also contends the court erred by denying her section 388 petition.

FACTS

On the night of April 29, 2004, police responded to neighbors' reports of a loud argument between Kathleen and the boys' father (Father).^[2] When police arrived, the door to the residence was open and the lights were on. Officers found Christian, then one year old, awake in a back bedroom and Jeffrey, then four years old, asleep on the living room couch. No adults were present. Police found sex toys, pornographic magazines on the floor and pornography on the computer screen. Police waited for one hour before Father returned; Father said he had left the residence to make a telephone call. Police then telephoned Kathleen, who said she was "out walking" and would return soon to the residence. Kathleen did not arrive during the next 40 minutes and, at 1:22 a.m. on April 30, the police took Jeffrey and Christian into protective custody.^[3]

On May 3, 2004, the San Diego County Health and Human Services Agency (Agency) filed dependency petitions on behalf of Jeffrey and Christian, alleging they were at substantial risk of harm because of their parents' failure to adequately supervise them. ( 300, subd. (b).)^[4]

The social worker reported that Kathleen's home environment was unsafe, and she demonstrated poor judgment and could not set proper boundaries. Further, Kathleen worked as a dominatrix and had a website called "Mistress Ashley," advertising her services. One of Kathleen's adult children said that Kathleen frequently exposed Jeffrey and Christian to pornography. Jeffrey suffered from a seizure disorder, which was treated with medication.

On June 3, 2004, the court sustained the dependency petitions and continued the dispositional hearing in order to have the parents complete psychological evaluations. The psychologist who evaluated Kathleen opined that she exercised poor judgment and did not act in the children's best interests because of narcissistic traits and impulsive behaviors. The psychologist reported Kathleen had a dysfunctional relationship with Father and had not established a healthier, independent role for herself. The psychologist opined that it was too early for Kathleen to reunify with Jeffrey and Christian, but added that she had the capacity to make the necessary changes within six months. The psychologist recommended individual therapy for Kathleen.

In July 2004, the social worker reported to the court that she was concerned because Kathleen and Father appeared to still have a relationship even though Kathleen had continually represented that they were divorced and she no longer had anything to do with him. The social worker also was concerned about Kathleen's communication with Agency because Kathleen had lied to the social worker several times.

At the July 30, 2004 dispositional hearing, the court declared Jeffrey and Christian dependents of the court, removed them from Kathleen's custody and placed them in foster care. The court ordered the parents to comply with their case plans and to visit the children separately.

Kathleen started participating in services, but showed little progress over the next six months. Kathleen had angry confrontations with the foster parents, lied to her therapist, and was seen several times with Father. The social worker opined that neither parent was demonstrating any positive changes in behavior. According to the social worker, the parents were spending most of their time trying to manipulate everyone rather than working on the problems that resulted in the boys' removal from the home.

At the six-month review hearing on February 8, 2005, the court found neither parent had made substantive progress with services or alleviating the causes of their children's dependencies. The court granted the parents six more months of services.

In May 2005, after seven months of weekly sessions, Kathleen's therapist^[5]reported that Kathleen was not progressing as quickly as needed to meet the statutory deadlines in dependency cases. The therapist opined that progress was being undermined by Kathleen's fears of losing her children. The therapist also was concerned about Kathleen's judgment because she was still involved with Father.

For the upcoming 12-month review, Agency recommended Kathleen's services be terminated and a section 366.26 hearing be set. The social worker reported Kathleen had not made any progress in therapy, continued to lack insight, continued to have poor judgment, and was involved in pornography. On September 13, 2005, the court followed Agency's recommendation.

In January 2006, Agency reported that Jeffrey's and Christian's foster parents were considering adopting them, but had not yet made a decision. The court granted Agency's request that the section 366.26 hearing be continued to allow Agency more time to determine whether the children were likely to be adopted within a reasonable time. In May, the court granted another continuance after Agency reported that the foster parents had decided not to adopt and the social worker was having difficulty finding another adoptive home.

In the meantime, Laurel McIntyre, who had been Kathleen's therapist since July 2005, reported that Kathleen had made good progress in individual therapy.^[6] Kathleen also was attending an anger management/domestic violence class. McIntyre opined that Kathleen had "made a major shift in her consciousness with regard to domestic violence and taking responsibility" and now understood "the dynamics and impact of domestic violence." The therapist also reported that Kathleen had made "remarkable progress" on her co-dependency issues, no longer blamed other people, took the initiative in changing her behavior, and expressed deep regret for placing her children at risk. McIntyre opined that Kathleen no longer presented a risk to her children and recommended the "children be returned to her, either now or after an accelerated reunification process, which would include unsupervised visits as soon as possible."

In May 2006, Kathleen filed a section 388 petition requesting the children be returned to her custody with or without family maintenance services.

By the end of the month, Agency located an approved adoptive family, who was interested in adopting Jeffrey and Christian, and had started transitioning the boys to the family's home. Jeffrey and Christian were placed in the home on July 2, 2006.

On July 5, 2006, the children's Court Appointed Special Advocate (CASA) recommended the court choose adoption as Jeffrey's and Christian's permanent plan. CASA told the court that Kathleen had not made any real progress with reunification; her visits were still supervised, Jeffrey's behavior seemed to deteriorate after visits, and Kathleen often lied about the facts of the case. CASA also reported that Jeffrey and Christian were excited about their new adoptive parents and home.

Kathleen and the boys underwent a bonding study on August 3, 2006. Psychologist Robert Kelin, who conducted the study, opined that the children had a moderate bond with Kathleen and "there could be some detriment to the boys if their relationship with their mother were terminated." At trial, Kelin testified that Jeffrey and Christian had a "fairly strong" bond with Kathleen and looked to her as a parental figure.

On August 14, 2006, McIntyre reported that Kathleen had "made some dramatic changes."^[7] The therapist opined that Kathleen had (1) become more independent, (2) completely separated from Father, (3) made progress in dealing with issues of abuse from her own childhood, (4) taken responsibility for failing to protect her children, and (5) taken classes that were not required of her. Further, McIntyre reported that Kathleen was able to see how her relationships with men had been dysfunctional and abusive, and was remorseful about Jeffrey's and Christian's dependencies. According to McIntyre, Kathleen had "gained enough skills and knowledge about parenting, relationships, and protection of children through therapy and classes, in order to safely parent her children."

At the hearing on Kathleen's section 388 motion, McIntyre testified that Kathleen had made tremendous progress in therapy, and had met all her treatment goals. McIntyre said Kathleen was more discriminating about childcare providers and accepted responsibility for Jeffrey's and Christian's dependencies. Kathleen also had decreased her co-dependency characteristics and was more independent. Additionally, Kathleen had learned the difference between healthy and dysfunctional ways of resolving conflict, had gained awareness of her own childhood abuse and had raised her awareness of domestic violence and abuse. McIntyre opined that Kathleen would be less impulsive than before and make better choices for Jeffrey and Christian, putting their needs before her own.

In her testimony, Kathleen admitted she had used poor judgment, had exposed Jeffrey and Christian to a domestic violent relationship, and had established poor boundaries.

Social Worker Valerie Pofahl testified that throughout the case, the parents had lied and been manipulative and this made it difficult to monitor their progress because they "would say . . . one thing and do another thing." Pofahl acknowledged Kathleen's visitation was consistent and regular - she "attended almost every visit" during the time the case was assigned to Pofahl. Further, Kathleen showed a lot of creativity in arranging themes and activities for the visits. However, Pofahl opined that, to Jeffrey and Christian, their visits with Kathleen were merely part of their routine - "something they do on Friday." Pofahl characterized Kathleen as "an adult playmate" for Jeffrey and Christian. "[T]hey have fun and they don't want to leave, but they have no problems separating [at the end of] the visit." Pofahl said Jeffrey and Christian no longer viewed Kathleen as their parent.

Pofahl opined that Kathleen had not fully accepted responsibility for the boys' dependencies and the domestic violence, which has been part of the lives of all her children. Kathleen "blame[s] . . . CPS and even myself," Pofahl testified.

Pofahl called Kathleen "a work in progress." "I definitely think that she is in the process of making changes and has some real eye-opening moments," the social worker testified. "Unfortunately, I think it has come at a point where it is a little too late. A lot of this work seems to have been done within the last couple of months and she really needed to be making that progress in the beginning."

On August 17, 2006, after a two-day hearing, the court denied Kathleen's section 388 petition, finding Kathleen had not shown a change in circumstances and had not demonstrated it would be in the children's best interests to grant relief. The court proceeded to the section 366.26 hearing. The parties relied on the evidence presented at the section 388 hearing and closing arguments. The court found Jeffrey and Christian were likely to be adopted and none of the statutory exceptions to adoption applied. The court continued the matter to receive additional responses from Indian tribes to comply with the Indian Child Welfare Act (ICWA). On September 13, after receiving the required ICWA responses, the court terminated parental rights and selected adoption as the permanent plan for Jeffrey and Christian.

DISCUSSION

I. Denial of Section 388 Petition

Kathleen contends she met the statutory requirements of section 388 and, therefore, the juvenile court erred by denying her modification petition. The contention is without merit.

Under section 388, a parent may petition the court to change, modify, or set aside a previous court order on the grounds of changed circumstances or new evidence. ( 388, subd. (a).) The petition shall set forth why the requested modification is in the best interests of the dependent child. ( 388, subd. (b)(4).)

The parent bears the burden of showing both a change of circumstances exists and that the proposed change is in the child's best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47, italics added.) The juvenile court may consider the entire factual and procedural history of the case in considering a section 388 petition. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)

Rulings on section 388 motions are reviewed for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) An order on a section 388 motion will not be disturbed on appeal unless the court has exceeded the bounds of reason by making an " '. . . "arbitrary, capricious, or patently absurd determination" ' . . . ." (In re Stephanie M. at p. 318.)

In her section 388 petition, Kathleen alleged as changed circumstances: (1) she had made a breakthrough in her therapy; (2) she was helping other domestic violence victims by addressing women at different groups and creating San Diego's first domestic violence website, which listed resources for domestic violence victims, (3) she had not seen Father for more than eight months and there was no possibility of reconciliation, (4) she had consistently visited Jeffrey and Christian by arranging with a private agency to monitor visits, (5) the boys' caregiver at the time did not want to adopt them, and (6) there no longer was a protective risk to Jeffrey and Christian if they were placed with Kathleen.

In denying Kathleen's section 388 petition, the court commended Kathleen for working on the various issues that led to Jeffrey's and Christian's dependencies, but added "she has a very long way to go." The court continued:

"I think she has years of issues and years of working on herself and focusing on herself and that's important, but that has been kind of the problem in this case . . . she focuses on herself and we need someone who is prepared to focus on the children instead and I don't see that she has reached that point where she is ready to focus on the attention that the children need. She is still busy focusing on herself.

"I am not saying that's wrong. I am just saying that there is a lot of work there to be done and she still needs to work on that. And so you hear the Agency say a lot, this is changing, not changed circumstances, but I do think that's what the situation is, that she is working on herself, it is changing but it is not changed to the point where it . . . would be good for the children to return them home."

There is substantial evidence supporting the court's assessment. It is not disputed that Kathleen had recently made significant improvements in dealing with domestic violence issues, as evidenced by her domestic violence resource website. At the same time though, Kathleen was just beginning to address other issues, such as her own abuse as a child and the abuse of her adult children. Although Kathleen had finally accepted responsibility for the April 2004 incident in which she left Jeffrey and Christian with Father, who in turn left the young boys alone in the home, Pofahl opined that Kathleen had not accepted responsibility for her role in the abuse and neglect of her adult children. According to Pofahl, Kathleen continued to blame Agency for her not reunifying with Jeffrey and Christian and continued to act impulsively and outside the boundaries of appropriate behavior.

A section 388 petition that alleges merely changing circumstances does not promote stability for the child or the child's best interests because it would mean delaying the selection of a permanent plan to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point. (In re Casey D., supra, 70 Cal.App.4th at p. 47.) " '[C]hildhood does not wait for the parent to become adequate.' [Citation.]" (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.)

Kathleen argues unpersuasively that she had demonstrated changed circumstances through her testimony and that of McIntyre, among others. As trier of fact, it is the juvenile court's role to assess the credibility of the various witnesses and to weigh the evidence to resolve conflicts in the evidence. (In re Casey D., supra, 70 Cal.App.4th at p. 52.) It is not within our purview as an appellate court "to judge the effect or value of the evidence, to [re]weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence . . . ." (Id. at pp. 52-53.)

Even had Kathleen shown sufficient changed circumstances, to prevail she would have had to satisfy the second prong of section 388 - demonstrating that it was in Jeffrey's and Christian's best interests to grant her petition and return the children to her. (In re Casey D., supra, 70 Cal.App.4th at p. 48.) Kathleen failed to do so.

In her petition, Kathleen noted that Jeffrey's and Christian's caregiver did not wish to adopt them and alleged that the boys' best interests would be served by returning them to her rather than placing them in another foster home.

Once reunification services are terminated, the parent's interest in the care, custody and companionship of the child is no longer of overriding concern. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) It then becomes more difficult to meet the second prong of section 388 because the focus has shifted to the child's need for stability and permanency, and there is a rebuttable presumption that continued foster care is in the child's best interests. (Ibid.)

Jeffrey's and Christian's primary need was a safe, stable and permanent home in which they could thrive. During these dependency proceedings, which spanned two years, Jeffrey and Christian had been moved back and forth between Polinsky Children's Center and four foster home placements. The longest placement - 14 months - was with a relative caregiver. The record shows that Kathleen had not progressed beyond supervised visits and needed more therapy before Jeffrey and Christian could safely be returned to her. The boys' best interests would markedly be better served by the stability and permanence an adoptive family could provide than by a tenuous placement with Kathleen. The court properly evaluated the evidence presented at the section 388 hearing in light of the boys' need for stability and continuity (In re Stephanie M., supra, 7 Cal.4th at p. 317), and found their best interests would not be served by returning them to Kathleen's custody with or without family maintenance services.

Kathleen relies on In re Kimberly F. (1997) 56 Cal.App.4th 519 and its three-part test for analyzing the "best interests" requirement of a section 388 petition:

"(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. at. p. 532.)

The reliance is misplaced because Kathleen cannot prevail under the test set forth in In re Kimberly F.

The original problem in this case - domestic violence between Father and Kathleen with Kathleen leaving Jeffrey and Christian with Father, who in turn left the young boys in a home alone at night with the door open - demonstrates the seriousness of the problems that led to Jeffrey's and Christian's dependencies. This is particularly so because Kathleen had twice earlier left Jeffrey, then two years old, in the middle of a street after arguing with Father.

Regarding the second In reKimberlyF. factor, Jeffrey and Christian were moderately bonded with Kathleen, according to the bonding study, but there was conflicting evidence whether Kathleen was or was not a parental figure to the boys.

Kathleen cannot prevail on the third In reKimberly F. factor. Although Kathleen had recently made progress in therapy, it was too little, too late. Kathleen had significantly improved her insight into domestic violence, but she still had "a very long way to go" in dealing with her various deep-rooted psychological and emotional problems and demonstrating that they had been ameliorated to the extent necessary to allow her to safely parent Jeffrey and Christian.

The court acted well within its discretion by denying Kathleen's section 388 petition. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)

II. Finding Beneficial Parent-Child Relationship Exception to Adoption Did Not Apply

Kathleen contends the court erred by finding the beneficial parent-child relationship exception to adoption ( 366.26, subd. (c)(1)(A)) did not apply because the evidence showed that she and the boys shared a positive, loving familial relationship and terminating her parental rights would be detrimental to Jeffrey and Christian. The contention is without merit.

Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) At the selection and implementation hearing, the court must terminate parental rights if the child is likely to be adopted within a reasonable time unless a statutory exception applies. ( 366.26, subd. (c)(1).) The parent bears the burden to establish by a preponderance of the evidence that an exception to the statutory preference for adoption applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345;  366.26, subd. (c)(1).)

The beneficial parent-child relationship exception is codified in section 366.26, subdivision (c)(1)(A), which provides that after the court finds the child is likely to be adopted, the court shall not terminate parental rights if it finds 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." The exception applies only if both prongs are met.

Our standard of review is the substantial evidence test. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) We determine if there is substantial evidence, contradicted or uncontradicted, to support the conclusions of the juvenile court, resolving all conflicts favorably to the prevailing party, and drawing all legitimate inferences to uphold the lower court's ruling. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.)

Agency has acknowledged that Kathleen had maintained regular visitation, and there is substantial evidence that she satisfied the first prong of section 366.26, subdivision (c)(1)(A).

At issue, therefore, is whether Kathleen satisfied the second prong of the statute - namely, whether Jeffrey and Christian would benefit from continuing their legal relationship with Kathleen. To establish a beneficial parent-child relationship, the parent must show more than frequent and loving contact, an emotional bond with the child, pleasant visits, or incidental benefit to the child. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) To overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) "The significant attachment from child to parent results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

In In re Autumn H., supra, 27 Cal.App.4th at page 575, we explained that to come within the beneficial parent-child relationship exception to adoption, a parent must show the "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." (Italics added.) The court must balance "the strength and quality of the . . . parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (Ibid.) The court's balancing test must be performed on a case-by-case basis, taking into account variables such as "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child and the child's particular needs . . . ." (Id. at pp. 575-576.) We affirmed this balancing test, explaining the standard "reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist . . . ." (In re Casey D., supra, 70 Cal.App.4th at p. 51, italics added.)

Substantial evidence supported the court's finding that the parent-child beneficial relationship exception to adoption did not apply. Social Worker Pofahl opined that Kathleen did not have a beneficial parent-child relationship with Jeffrey and Christian and termination of parental rights would not be detrimental to the boys. Further, Pofahl opined that continuing the relationship between Kathleen and the boys did not outweigh the benefits of adoption. The juvenile court was entitled to accept the social worker's expert opinion and rely on it. (In re Casey D., supra, 70 Cal.App.4th at p. 53.)

We acknowledge that Kathleen and the boys had a positive and loving relationship, but it was not a beneficial parent-child relationship within the meaning of section 366.26, subdivision (c)(1)(A). Rather it was the various caregivers who assumed the parental role for Jeffrey and Christian for two years, by providing them with a safe, stable and nurturing home - something they desperately needed.

We also acknowledge that Kathleen had a creative knack for arranging elaborate and enjoyable activities during her visits with Jeffrey and Christian. But, as Pofahl testified, the visits were merely part of the boys' routine - "something they d[id] on Fridays." Kathleen was more of "an adult playmate" than anything else, according to the social worker. Pofahl pointed out that the boys had no difficulty separating from Kathleen at the end of the visits.

Kathleen, who had not fulfilled a parental role for two years, did not meet her burden of showing her relationship with Jeffrey and Christian was sufficiently strong that the boys would not suffer detriment from its termination. The loss of "frequent and loving" contact with a parent is insufficient to show detriment. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.)

Further, Kathleen also failed to show her relationship with Jeffrey and Christian promoted their well-being to such a degree that it outweighed the well-being the boys would gain in a permanent home with new, adoptive parents.

Where, as here, the biological parent does not fulfill the parental role, "the child should be given every opportunity to bond with an individual who will assume the role of parent. . . . To hold otherwise would deprive children of the protection that the Legislature seeks to provide." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.)

The evidence here is sufficient to support the finding that the section 366.26, subdivision (c)(1)(A) exception did not apply.

DISPOSITION

The judgments and orders are affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

AARON, J.

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^[1] All statutory references are to the Welfare and Institutions Code.

^[2] Father is not a party to this appeal. According to Kathleen, she and Father were no longer married; their divorce was final on April 7, 2004.

^[3] In addition to Jeffrey and Christian, Kathleen has five adult children and an extensive history of involvement with child protective services (CPS). Starting in 1980, there were 63 referrals to CPS, with Kathleen being listed 46 times as the perpetrator or the primary parent when the children were abused or neglected. Over the years, Kathleen's adult children had been removed from the home eight times.

^[4] This was the second dependency petition filed on behalf of Jeffrey. In March 2002, when Jeffrey was two years old, Agency filed a dependency petition on his behalf, alleging there was a substantial risk that Jeffrey would suffer serious physical harm inflicted non-accidentally by his parent. ( 300, subd. (a).) The petition alleged that on two occasions Kathleen placed Jeffrey in the middle of a street during arguments with Father. The petition also alleged Father grabbed Kathleen by the hair while she was holding Jeffrey and dragged her, causing an abrasion to her knee.

During Jeffrey's earlier dependency, Kathleen's compliance with her case plan was considered marginal, which was attributed to a high-risk pregnancy (with Christian), other illnesses, and transportation problems. Nonetheless, Agency recommended jurisdiction be terminated at the 12-month review hearing. On May 13, 2003, the court followed the recommendation and placed Jeffrey with Kathleen.

^[5] This was Kathleen's second therapist during these proceedings.

^[6] McIntyre, a licensed marriage and family therapist, was Kathleen's third therapist during these proceedings.

^[7] By this time, Kathleen had attended 26 individual therapy sessions and 26 sessions of anger management/domestic violence class.