In re Kylie B.

Filed 2/27/07 In re Kylie B. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy Barnett Williamsen, Commissioner.

Thomas P. Owen, under appointment by the Court of Appeal, for Defendant and Appellant.

Michael H. Krausnick, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.

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INTRODUCTION

Ronald B. appeals from an August 26, 2006, order terminating his parental rights (Welf. & Inst. Code,  366.26).^[1] On appeal, Ronald contends the court erred in failing to acknowledge his arguments that the court erred in denying his petition to change earlier orders due to changed circumstances ( 388) and termination of parental rights would be detrimental to the child based on the beneficial relationship exception ( 366.26, subd. (c)(1)(A)). We disagree and will affirm the judgment.

FACTS AND PROCEEDINGS

Dependency

Ronald was married to Kylies mother until they separated after Kylie turned three. In June 2003, Ronald was divorced from Kylies mother. Ronald received physical custody of Kylie. One week after Kylie turned four, her mother was killed in an automobile accident. Ronald married Carrie B. in May 2004. Kylie remained in Ronalds care.

On October 24, 2005, Kylie was brought to school wearing gloves. She had been absent a week from school. The gloves covered large blistering burns on Kylies hands. Kylies teacher brought her to the principals office. Kylie reluctantly explained that she had been pulling weeds in the garden. To clean her hands, Carrie placed Kylies hands into scalding water. Kylie said that her father was present and heard Kylies complaint that the water was too hot. Ronald, however, did not intervene.

Carrie stated that Kylie missed school because she had been throwing up. Carrie told investigators that Kylie wore gloves because she tore at her nails which caused bleeding. Kylies teacher reported that this was not the first incident she suspected Kylie had been abused. In August 2005, Kylie came to school with redness under her eye. When the teacher asked Kylie what happened, Kylie replied that her stepmother rubbed hot sauce under her eye when the stepmother thought Kylie was bad. Two weeks later, the teacher saw sores on Kylies hand. Kylie told the teacher she was made to pull weeds without gloves because her stepmother thought Kylie was bad.

Kylie was placed into protective custody and Kylies burns were examined by Dr. Felix, a pediatrician.^[2] Dr. Felix treated Kylies hands for second degree burns. Kylie also suffered bruises and scratches all over her body. There was a two to three inch laceration in the middle of Kylies back just above her buttocks. Kylie told the doctor she got it when Carrie hit her with something and caused a cut by accident. Kylie told the doctor she was a bad girl. Kylie had a bruise under her eye and an infection on her scalp.

Ronald told investigators he placed Neosporin and bandages on Kylies blisters and that blistering was a natural way of the body protecting itself. Ronald did not know how Kylie developed blisters. Ronald told investigators he did not take Kylie to the doctor because he was not raised going to the doctor. It appeared, however, that Kylie had her vaccinations.

On January 23, 2006, a jurisdiction hearing was conducted. No testimonial evidence was presented. The case was submitted on investigative reports. The court found the petition true. The court found Kylie at substantial risk of physical harm, sustaining the petition on all three allegations, and removed her from the custody of her father and stepmother.

Disposition Hearing

In late March and early April 2006, there was a contested disposition hearing. The recommendation of the Agency was to deny Ronald services pursuant to section 361.5, subdivision (b)(6).

Kylies mental health clinician, Gloria Christine Fallentine, testified that Kylie was angry with Ronald because he did not protect her from Carrie. Kylie reported to Fallentine that on one occasion, Ronald threw Kylie into a swimming pool and held her under water. He then made Kylie sit by the edge of the pool during a cold evening. Kylie would try to hide from Ronald when he became mean. Kylie felt fondness for Carrie. From Kylies comments, Fallentine did not believe Kylie had a healthy or loving relationship with Ronald. Fallentine believed Kylie should remain in the care of her grandparents where she was expected to feel safe and to flourish. Kylie was more spontaneous in her conversations, less guarded, and more playful around her grandparents.^[3]

A report of a psychological evaluation of Ronald by Dr. Trompetter, a clinical psychologist, found Ronald to be narcissistic, showing the essential features of Narcissistic Personality Disorder. Testing showed Ronald is a dramatic person who enjoys emergencies. Ronald can be deceitful and conniving. Ronald flouts rules, finding them inapplicable to himself.^[4] Dr. Trompetter found that Ronald was at high risk to place his head in the sand when it comes to providing protection to his daughter. Dr. Trompetter doubted that the therapy Ronald was undergoing would change his behavior.

Dr. Barry Olson, who was retained to conduct a bonding study testified that Kylie missed Ronald and Carrie. At the end of a visit with Ronald, Kylie cried bitterly, running down a hall. Dr. Olson noted that Kylie appeared to miss Carrie more than Ronald. Dr. Olson prepared a report of his evaluations. In the report, Olson noted that Carrie and Ronald required extensive therapy, including parenting skills, empathy skills, child management skills, and anger management skills for Ronald prior to Kylie being placed in their custody. Dr. Olson noted in his report that it would be best for Kylie to remain in the custody of her grandparents. Dr. Olson believed that treatment for Ronald, if it was successful at all, would take years to complete. Such treatment could not be effective over the span of just months. Dr. Olson found that Kylies bond with her grandfather was much stronger than her bond with Ronald.

A third psychologist, Dr. Joseph Hernandez, concluded Ronald was amenable to treatment for his narcissism and believed Ronald could be treated successfully within nine months to a year. Dr. Hernandez took issue with the bonding study by Dr. Olson because it was conducted with Kylie interacting with both Ronald and Carrie, not just one parent at a time.^[5]

Ronalds mother testified that he had a loving relationship with Kylie. After Kylies dependency, she made Valentine cards, gifts, and jewelry for Ronald and Carrie. Kylie told her grandmother that she wanted to go home.

Ronald testified that he had been a single parent for over a year after Kylies birth mother died in a car accident. Ronald remarried in May 2004. Ronald only saw warm and loving interactions between Kylie and Carrie. Carrie was in a car accident in October 2005. A few days later, the hand burning incident occurred. Ronald was not aware that Kylies hands were burned until after Child Protective Services (CPS) removed her. Though Ronald saw blisters on Kylies hands, he thought they were caused by cotton gloves Kylie wore while pulling weeds.

Ronald acknowledged that prior to Kylie being detained by CPS, he saw blisters on Kylies hand, and he could tell they were severe. Ronald saw one blister about the size of a quarter and administered Neosporin to it. Kylie missed school that week due to illness. Ronald does not have a medical background but does have medical insurance.

Ronald conceded that he, unfortunately, had a limited bond with Kylie. He admitted striking Kylie with a belt and bruising her. Ronald also spanked Kylie. Ronald explained that the cut on Kylies back occurred when she fell off of her bicycle. Ronald expressed his belief that Kylie had an eating disorder for which he sought medical assistance. Ronald denied punishing Kylie by keeping her at the swimming pool. Ronald explained that Kylie must have confused pool play with being punished.

Ronald admitted he administered hot sauce, though he said it was a mild hot sauce, to Kylies mouth to assist her in swallowing. He adamantly denied using hot sauce as a disciplinary measure but acknowledged that after taking parenting classes, he now knows this would not assist Kylie in swallowing. Ronald further admitted that he did not consult a professional concerning Kylies alleged eating disorder. Ronald thought the burns on Kylies hands came from the friction caused by wearing gloves for pulling weeds. Ronald admitted punishing Kylie by having her pull weeds. At the time of the hearing, Ronald had separated from Carrie.

At the conclusion of the hearing on April 11, 2006, the court determined that Kylie sustained the infliction of serious physical harm pursuant to section 361.5. The court found Kylie had been burned by her stepmother, and though Ronald had the ability to do so, failed to help his daughter. Also Ronald did nothing to alleviate the pain and discomfort Kylie endured after being burned. The court found Ronald had not met his burden to establish by clear and convincing evidence that continuing services for reunification would benefit Kylie. The court found a weak bond between Ronald and Kylie. The court further found only a rare chance that Ronald would benefit from services and have Kylie returned to him in 12 months and denied services pursuant to section 361.5, subdivision (b)(6). The court scheduled a section 366.26 hearing to terminate Ronalds parental rights.

Modification and Termination Proceedings

On June 14, 2006, Ronald filed a section 388 petition requesting the juvenile court modify its order. Attached to the petition was a letter from Dr. David G. Greenhalgh written to Carries attorney regarding the criminal charges pending against Carrie for causing Kylies burns. Dr. Greenhalgh was the Chief of Burns at Shriners Hospital in Sacramento. His letter is directed to a Stanislaus sheriffs detective. Dr. Greenhalgh opined that the second degree burns he saw in unspecified photographs of Kylies injuries appeared to be superficial. Most people who sustain hand burns sustain burns to their palms. The absence of such burns in Kylies case suggested the injury was accidental. There appeared to be a splash-like pattern, again indicating an accident. Dr. Greenhalgh surmised the temperature of the water was between 150 to 160 degrees Fahrenheit, but the duration of the water on Kylies skin was short.

Counsel for Ronald stated in the motion that this exculpatory information constituted changed circumstances in Ronalds dependency action. The social worker was not aware of this letter even though she had requested all police reports pertaining to the investigation.

On June 29, 2006, the court heard the motion. Kylies counsel argued that Dr. Greenhalghs letter added little new information and she, therefore, opposed the motion. Dr. Greenhalgh did not hear Kylies account of the events that the injuries were intentionally inflicted. The juvenile court found that the Agency complied with discovery rules pertaining to dependency cases. The court found the letter was based upon speculation and offered no opinion as to the source of Kylies injuries and would have been excluded for lack of probative value. The court denied the section 388 petition.

On August 21, 2006, Ronald filed a nearly identical section 388 petition. This petition alleged that Ronald and Carrie were separated. The attachments included the letter from Dr. Greenhalgh. Dr. Hernandez stated Ronald had initiated treatment with him on March 29, 2006, and was cooperative. Dr. Hernandez stated Ronald was benefiting from a treatment program. Ronald was seeing Dr. Hernandez on a weekly or biweekly basis. Dr. Hernandez did not indicate when he expected to complete treatment or when Ronald would be able to safely parent a child. The juvenile court denied the petition without a hearing because the petition failed to state new evidence or a change of circumstances, and, the petition failed to show how the modification would be in the best interests of the child.

The section 366.26 hearing began on August 24, 2006. Ronald briefly testified that he exercised all afforded visits with Kylie and maintained a bond with her to the best of his ability. He was voluntarily enrolled in a 52-week domestic violence counseling program. Ronald explained that it would permanently harm Kylie to have her removed from his care.

The court accepted into evidence the report of the Agency that recommended that Ronalds parental rights be terminated. The report indicated that Kylies grandparents had bonded with Kylie and sought to adopt her. The court found by clear and convincing evidence that Kylie was likely to be adopted and Ronald had not met his burden to invoke the exception to the statutorily preferred plan of adoption. The court found the bond between Ronald and Kylie was insufficient and there was no evidence presented by Ronald to suggest that severing whatever bond that did exist would cause Kylie detriment. The court terminated Ronalds parental rights.

CHANGED CIRCUMSTANCES

Ronald argues the court abused its discretion by denying his section 388 petition. We disagree. It was Ronalds burden of proof to show there was new evidence or there were changed circumstances that made a change of the childs placement in her best interest. ( 388; In re Stephanie M. (1994) 7 Cal.4th 295, 317.)

Ronald argues at length that he provided new evidence that undermined the initial assessment that Kylies burns were not serious and not caused intentionally. Ronald relies on Dr. Greenhalghs letter to support his contention that Kylies burns were superficial and could have been caused accidentally. We find this argument unconvincing. Dr. Greenhalgh did not personally examine Kylie. He only viewed unspecified photographs of Kylies burns. Dr. Greenhalgh acknowledged that the burns appear to be second degree burns. He posits the theory that Kylies exposure to hot water was of limited duration.

As the trial court noted, however, most of Dr. Greenhalghs letter is filled with speculation and casts virtually no light on how Kylie was injured. Dr. Greenhalgh, of course, was not a percipient witness to Kylies injuries and was not her treating physician. The trial court was entitled to give greater credence to the medical evaluation of Kylies treating physician over Dr. Greenhalghs speculation.

Ronalds argument largely ignores the finding of the juvenile court at the conclusion of the disposition hearing that he failed to obtain medical treatment for Kylie. Ronald acknowledged in his testimony that when he finally saw the burns on Kylies hands, they were clearly serious. Though Ronald had health insurance, he did not take Kylie to a physician or a hospital but merely applied Neosporin to her hands. Even if Ronald was not present when Kylie was burned, evidence that is contradicted by Kylies account of events, by Ronalds own admission he failed to obtain medical help for her in a timely fashion.

There was other evidence before the juvenile court concerning Ronalds questionable care of Kylie. Kylie suffered a serious laceration across her back. The treating physician found Kylie with bruises and wounds on other parts of her body. School authorities had observed questionable injuries to Kylie, including a wound under her eye, for months prior to the dependency. Ronald admitted applying hot sauce to Kylies mouth to treat what he thought was an eating disorder. Kylie reported that Carrie applied hot sauce to her as well. Ronald forced Kylie to stay outside next to the pool at night as a form of punishment. Ronald and Carrie made Kylie pull weeds as a form of punishment. According to Kylie, she was not given gloves to pull the weeds. Kylies soiled hands, which happened from weed pulling, led to the burning incident. Kylie reported being told by Ronald and Carrie that she was a bad girl.

Although Carrie burned Kylies hands, Kylie had a closer bond with Carrie than her father. There was evidence Kylie was afraid of her father. There was further evidence that Ronald was mentally disconnected from the seriousness of Kylies injuries posing a serious risk to Kylies care, safety, and mental development.

Most importantly, Dr. Greenhalghs letter provides no evidence concerning why a further relationship between Ronald and Kylie would be in Kylies best interests. In his reply brief, Ronald reargues that evidence showing what he believes to be his devotion to Kylie. He largely ignores contrary evidence presented to the juvenile court. To the extent that there is a conflict in the evidence, we defer to the trial courts findings of fact.^[6]

To understand the element of best interests in the context of a section 388 motion brought, as in this case, shortly before the section 366.26 hearing, we look to the Supreme Courts decision in In re Stephanie M., supra, 7 Cal.4th 295. At this point, a parents interest in the care, custody, and companionship of his or her children is no longer paramount. Rather, the focus shifts once reunification efforts end to the childrens needs for permanency and stability; there is in fact a rebuttable presumption that continued out-of-home care is in the best interests of the child. (Id. at p. 317.) A court conducting a modification hearing at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child. (Ibid.) Notably, in advocating his position, both here and in the juvenile court, Ronald ignores his childs need for permanence and stability. Neither the juvenile court nor this court, however, may do so.

BENEFICIAL RELATIONSHIP EXCEPTION

Ronald contends the court erred in failing to apply the section 366.26, subdivision (c)(1)(A) exception and preserve his parental rights.

When reunification efforts cease, the scale tips away from a parents interest in maintaining family ties and towards the childs interest in permanence and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) A section 366.26 hearing is designed to protect childrens compelling rights to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. (In re Marilyn H., supra, 5 Cal.4th at p. 306.) At that point, adoption becomes the preferred permanent plan.

Provided a dependent child is likely to be adopted, the statutory presumption at the permanency planning stage is that termination is in the childs best interests and therefore not detrimental. ( 366.26, subd. (b); see also In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1344.) In other words, the decision to terminate parental rights at a section 366.26 hearing is virtually automatic if the child is going to be adopted. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.)

Although section 366.26, subdivision (c)(1) acknowledges that termination is detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (Ibid.) It is up to a parent or other party to prove that termination would be detrimental. (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1343.) The statutory exceptions merely permit the court, in exceptional circumstances, to exercise its discretion and choose an option other than the norm, which remains adoption. (In re Celine R. ((2003) 31 Cal.4th 45, 53.) Consequently, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is whether the juvenile court abused its discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)

Ronald relies on the statutory exception, which the court may find if a parent has maintained regular visitation and contact with his or her child and the child would benefit from continuing the relationship ( 366.26, subd. (c)(1)(A)). However, Ronald ignores his burden of proving the child would so benefit from continuing his relationship that it would be detrimental to her to terminate it.

The existence of interaction between natural parent and child will always confer some incidental benefit to the child. Nevertheless, the exception in section 366.26, subdivision (c)(1)(A), requires that the parent-child relationship promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) A juvenile court must therefore: balance[] the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated. (Id. at p. 575.) (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.)

Ronald failed to meet his burden to show that the beneficial relationship exception should apply to his daughters case. Kylie expressed fear of her father. The bonding evaluation by Dr. Olson and the psychological evaluation by Dr. Trompetter did not show Ronald to have a strong bond with his daughter. The reports of the social workers assigned to Kylies case also showed little optimism concerning Ronalds future relationship with Kylie. With the exception of Dr. Hernandez, the other therapists evaluating Ronald considered his psychological narcissism unlikely to be amenable to change with short-term treatment. Dr. Trompetter and Dr. Olson concluded Ronalds psychological profile would not change without long-term treatment.

Ronald himself admitted that his bond with Kylie was not strong. Ronald failed to establish the special kind of bond contemplated in the section 366.26, subdivision (c)(1)(A) exception. Having reviewed the entire record, we conclude the trial court did not abuse its discretion by terminating Ronalds parental rights.

DISPOSITION

The orders denying appellants section 388 petition and terminating his parental rights are affirmed.

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^*Before Vartabedian, Acting P.J., Harris, J., and Cornell, J.

^[1] Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.

^[2] On October 26, 2006, the Stanislaus County Community Services Agency (Agency), filed a section 300 petition alleging physical harm ( 300, subd. (a)), failure to protect ( 300, subd. (b)), and cruelty ( 300, subd. (i)). At that time, Kylie was five. She was less than two months away from her sixth birthday.

^[3] The court also received the report of Emil Winniski, a clinical social worker, who assessed Ronald. Winniski found Ronald to be self-absorbed and was mentally disconnected from the reality of Kylies injuries. This posed grave concerns concerning Kylies safety, care, and mental development.

^[4] Ronald reported not filing tax returns and carrying a concealed firearm without a permit.

^[5] The court received all of the therapists reports into evidence.

^[6] When sufficiency of the evidence to support a finding or order by the juvenile court is challenged on appeal, reviewing courts determine if there is any substantial evidence to support the conclusion of the trier of fact. All conflicts are to be resolved in favor of the prevailing party. Issues of credibility are questions for the trier of fact. In dependency proceedings, a trial courts determination will not be disturbed unless it exceeds the bounds of reason. (In re P.A. (2006) 144 Cal.App.4th 1339, 1344.)