Filed 5/3/18 In re R.S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 R.S., a Person Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

J.G. et al.,

Defendants and Appellants.


E069622

(Super.Ct.No. J266300)

OPINION


APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant, J.G.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant, B.S.
Michelle D. Blakemore, County Counsel and Adam E. Ebright, Deputy County Counsel, for Plaintiff and Respondent.
Mother and father appeal orders which led to the termination of their parental rights over their son, who was three months old at the time he was removed due to serious physical abuse. Mother argues the trial court erred when it determined (i) she did not establish a change of circumstances to justify giving her reunification services (Welf. & Inst. Code, § 388, unlabeled statutory citations refer to this code) and (ii) the parent-child relationship did not outweigh the benefits of adoption. (§ 366.26, subd. (c)(1)(B)(i).)
Father appeals the trial court’s ruling that ICWA does not apply to the child. He argues the trial court’s finding that San Bernardino County Children and Family Services (the department) provided adequate notice to the tribes is not supported by substantial evidence. He says the department’s notice was faulty because they spelled his maternal grandmother’s name as “Cathleen Jordan” rather than “Kathleen Jordan.”
We affirm as within its discretion the trial court’s denial of mother’s section 388 petition and its determination the parent-child relationship exception does not apply. We affirm the ICWA ruling because father has not carried his burden of establishing prejudicial error and, in any event, the record shows the department substantially complied with the ICWA notice requirement.
I
FACTUAL BACKGROUND
A. The Abuse and Detention
R.S. came to the attention of the department on a referral saying the child, who was only three months old, had suffered a brain injury. Hospital staff observed R.S. having seizures, and a CT scan revealed brain bleeding.
Father, who had been watching R.S. at his home at the time of his injury, said his dog had panicked from hearing fireworks and knocked the baby out of a bouncer seat. Father said the floor was carpeted, but a toolbox and other items were lying on the floor. He said he found the baby lying on the floor among those items, crying and screaming.
Mother told the social worker father had called her to tell her of the injury and said, “I’m sorry I didn’t mean to do this.” She said she did not know whether father’s story was true because the child didn’t seem to have any marks or scratches from the dog. Mother reported father does drugs, is very controlling, and is easily upset. R.S.’s five-year-old sibling said he doesn’t like going to father’s because he doesn’t feel comfortable and father scares him. The social worker observed the home and reported it was full of trash and clutter and not habitable for small children.
Mother said R.S. had been injured on two other occasions while in father’s care. Once, he returned home with a scratch on his chin and a blister on his tongue. A second time, he came home with a bruise on his face. Mother admitted to the child’s doctor that she thought father was abusing R.S. She said her three older children refused to go to father’s home and had made a suicide pact if they were ever forced to return to his care. The children told the social worker father was emotionally and verbally abusive to mother. They said they feared father and mother did too. According to one of them, mother said father had threatened to kill everyone in the family if she left him. The older children said they believed father hurt R.S.
R.S.’s medical caretakers concluded the injuries were nonaccidental. A medical examination revealed R.S. had suffered several nonaccidental injuries, including subdural hematoma, acute respiratory failure, retinal hemorrhages, tonic-clonic seizures, acute and chronic bilateral hematomas, bruises, and scattered scars on his legs and back. Doctors ultimately diagnosed R.S. with cerebral palsy.
The social worker prepared a section 300 petition alleging R.S. had suffered serious physical harm and severe physical abuse by father (§ 300, subds. (a) & (e)) and both parents had failed to protect him (§ 300, subd. (b)). At the July 13, 2016 detention hearing, the court found a prima facie case that R.S. came under section 300. The court appointed counsel for the parents, and ordered weekly supervised visits.
B. Jurisdiction and Disposition
The social worker prepared a jurisdiction/disposition report recommending the court find the section 300 allegations true and deny both parents reunification services.
She reported mother and father had been together for about 10 years, but in an on-again-off-again relationship since August 2014. Mother moved from father’s house to her mother’s house and back again, depending on the status of their relationship. In an interview, mother repeated father’s story about R.S.’s injury, but this time explained the bouncer was only one or two feet above the ground. She reported R.S. had been injured while in his father’s care on other occasions. Father continued to deny physical abuse even though the injuries were inconsistent with his story. He said the prior injuries were simply minor accidents being embellished by mother.
At the January 26, 2017 detention hearing, father’s neighbor gave testimony corroborating father’s story about R.S.’s injury. She said father’s dog was outside, got spooked by fireworks, and ran and jumped over a barrier and into father’s house. She said she could not see what happened inside, but she heard a crash, the baby crying, and then saw father come out of the house carrying R.S. saying he needed help. The court found the neighbor lacked credibility and found the medical evidence clearly showed R.S.’s injuries were nonaccidental. The court found the section 300 allegations true by clear and convincing evidence, and concluded R.S. came under the provisions of section 300, subdivisions (a), (b), and (e).
At the dispositional hearing four days later, mother testified she had previously obtained a family court restraining order against father and would be seeking a criminal restraining order. She said she had completed a 12-session parenting class and 20 individual therapy sessions. The court found the parents had not made progress in alleviating the underlying reasons for dismissal and there was no likelihood R.S. could be returned to either parent within the statutory time period. The court found it was clear R.S. had suffered injuries that could and did cause permanent physical disability and mother knew he was being abused but allowed it to continue. The court also found R.S. had suffered severe physical abuse by a parent (§ 361.5, subd. (b)(5)) resulting in severe physical harm (§ 361.5, subd. (b)(6)), and therefore bypassed reunification services, and set a hearing to select a permanent placement plan.
C. Termination, Permanent Plan, and Changed Circumstances Petition
The social worker’s section 366.26 report initially recommended a permanent plan living arrangement. However, she concluded R.S. was a good candidate for adoption and reported she would continue to seek an adoptive home until the hearing. Both parents had monthly two hour supervised visits with R.S. in the interim, but on May 22, 2017, father was arrested and incarcerated.
On September 19, 2017, the social worker reported the department had located an adoptive home. The would-be adoptive parents began visiting R.S. on June 19, 2017 and R.S. began living with them on July 17, 2017. R.S. had adjusted well to the placement and was forming a healthy attachment to his new parents. The adoptive parents own a three-bedroom home with a fenced backyard. The social worker observed R.S. crawling around and playing with the adoptive parents’ dogs. The adoptive parents said R.S. is a blessing in their lives, and R.S. appeared to have developed a healthy mutual bond with the adoptive parents. The social worker recommended terminating both parents’ rights and making adoption the permanent placement plan.
Mother filed a petition requesting a change to the court’s order denying her reunification services and sought to increase her visits, claiming her circumstances had changed (section 388 petition). She reported she had completed seven counseling sessions, and attended classes on domestic violence, CPR training, and the needs of children with cerebral palsy. She also said she obtained a three-year criminal restraining order against father. The court heard argument, but denied an evidentiary hearing, and denied the motion. The court noted mother started therapy only five months earlier, had attended only seven sessions in that period, had engaged in domestic violence sessions only a week and a half earlier, and had obtained the restraining order against father only after he was incarcerated. The court said beginning therapy and obtaining a restraining order were positive steps, but found she had shown only that she was starting to change her circumstances. In addition, the court found mother still had not indicated she accepted her role and responsibility for father’s treatment of R.S. and found granting the motion would not be in R.S.’s best interests.
On December 1, 2017, the court held a contested section 366.26 hearing. After testimony and closing arguments, the court found R.S. was only in the parents’ care for three months, the parents had not progressed from supervised visits, and the parents were not parental figures in R.S.’s life. The court concluded the parental bond exception did not apply. The court also found R.S. was generally and specifically adoptable. The court terminated parental rights and ordered adoption as the permanent placement plan.
Mother and father both filed timely notices of appeal. Mother challenges the termination order based on the denial of her section 388 petition, and father challenges it based on the adequacy of the department’s ICWA notices.
II
DISCUSSION
A. Mother’s Section 388 Petition
Mother argues the trial court erred by summarily denying her petition to change its reunification and visitation orders. She contends she made a prima facie case her circumstances had changed, which required the trial court to hold an evidentiary hearing under section 388, subdivision (d). We disagree.
A trial court may change, modify, or set aside a juvenile court order “under section 388 if the petitioner establishes by a preponderance of the evidence (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.” (In re S.J. (2008) 167 Cal.App.4th 953, 959.) The change in circumstances must be substantial. (In re Heraclio A. (1996) 42 Cal.App.4th 569, 577.) A petition must allege changed circumstances, not merely circumstances are in the process of changing. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) Addressing a section 388 petition lies within the discretion of the juvenile court, and we will not overturn its decision unless the juvenile court clearly abused that discretion by making an arbitrary, capricious or patently absurd determination. (In re S.J., at pp. 959-960; In re A.S. (2009) 180 Cal.App.4th 351, 358.)
Here, the primary cause of the removal from mother’s custody was her failure to protect her children from known or at least suspected abuse by father. Mother contends she alleged a change in circumstances. She points out she had attended individual therapy sessions and taken some classes to help her deal with domestic violence and R.S.’s cerebral palsy. She also relies on the fact she obtained a criminal restraining order against father to protect herself and the children from future harm.
The trial court accepted mother’s representations about these steps, but found them insufficient to show changed circumstances. The problem was mother had not done enough soon enough to warrant the conclusion things had changed. The court noted mother did not begin her therapy sessions until April 2017, which was nine months after the events that led to the removal, and had attended only seven sessions in the five months before her petition. It also noted mother had engaged in a domestic violence class her therapist had repeatedly recommended only a week and a half before the petition. These were, as the court emphasized, positive steps, but they were only the first steps to addressing the very serious problems that had led to R.S. suffering a severe injury. The court also pointed out mother did not obtain a restraining order against father until he was incarcerated and she could not see him in any event. The court reasonably concluded this was a case of too little too late, and that even accepting mother’s contentions as true would support only finding her circumstances were changing, not that they had changed. (In re Casey D., supra, 70 Cal.App.4th at p. 47.)
Even if mother had presented facts that could demonstrate a substantial change in circumstances, reunification services would not be in the child’s best interest. Once reunification services are denied or terminated, “‘the focus shifts to the needs of the child for permanency and stability.’” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) R.S. has been out of mother’s care for most of his young life. Though he had only recently begun living with his prospective adoptive family, they were developing a strong and healthy bond and the new parents were providing a stable, nurturing environment and were committed to adopting him. Granting a section 388 petition would delay selection of a permanent home for the child and not serve his best interests. (In re Casey D., supra, 70 Cal.App.4th at p. 47.) “‘Childhood does not wait for the parent to become adequate.’” (In re Ernesto R. (2014) 230 Cal.App.4th 219, 224.) We cannot conclude the trial court acted unreasonably or arbitrarily in finding it would be detrimental to disturb the growing bond between the child and his prospective adoptive family and to introduce further delay in the adoption process. Denial of the petition was proper.
B. The Beneficial Relationship Exception to Termination of Parental Rights
Mother argues the court erred in failing to find the parental benefit exception to terminating parental rights applied to R.S. We find no abuse of discretion.
The Legislature prefers adoption where possible. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.) Once the juvenile court finds a child is adoptable, the parent bears the burden of proving one of the exceptions to terminating parental rights exists. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343.) “[I]t is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
The exception at issue here, commonly called the parental benefit exception, “applies when there is a compelling reason that the termination of parental rights would be detrimental to the child. This exception can only be found when the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (In re Anthony B. (2015) 239 Cal.App.4th 389, 395; see also § 366.26, subd. (c)(1)(B)(i).) California courts have interpreted this exception to apply to only those parent-child relationships the severance of which “would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
“[T]he court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (In re J.C. (2014) 226 Cal.App.4th 503, 528-529.) We defer to the juvenile court’s determination whether a beneficial parental relationship exists, reversing only where the court has abused its discretion by basing findings of fact on less than substantial evidence or by acting arbitrarily or capriciously in determining whether the relationship provides “a ‘compelling reason’ for finding detriment to the child.” (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1315.)
Here, mother has not even arguably established that severing the parent-child relationship would deprive R.S. of a substantial, positive emotional attachment. Indeed, there is little in the record to establish a parental relationship existed at all. R.S. was three months old when he was removed from mother. While R.S. was in her care, she failed to protect him from serious abuse by the father, though she either knew or suspected father was abusing the child. Mother had only limited visitation rights and, because of the seriousness of the problems that led to removal, never received reunification services and never had the opportunity to progress beyond supervised visitation. At this point R.S. has spent more time in the custody of his prospective adoptive parents than he ever did with mother.
At the permanency stage, we must balance the bond the child shares with the parent and the harm that might arise from terminating parental rights against the benefits of a permanent stable home, and “it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) The parental benefit exception will apply only where the parent has demonstrated the benefits to the child of continuing the parental relationship outweigh the benefits of permanence through adoption. Nothing in this record suggests any benefit R.S. might gain by continuing his relationship with mother outweighs the well-being he would gain from having a permanent home.
We cannot conclude the trial court acted arbitrarily and without substantial evidence by determining the parent-child bond did not override the child’s need for the stable, permanent home with a prospective adoptive family who was already meeting his needs and interested in adopting him.
C. ICWA
1. Background on ICWA determination
The court inquired about the parents’ Indian ancestry at the July 13, 2016 detention hearing. Father said he may have Indian ancestry on his mother’s side. He reported his mother’s name and verified the correct spelling of her name. He also gave the name of his maternal grandmother. He did not provide a spelling for the court, but the court reporter recorded her name as “Kathleen Jordan.”
The department prepared an ICWA declaration of due diligence dated August 29, 2016, indicating it had sent notice to several relevant tribal agencies. The notices included an ICWA-030 form with information about the parents, the maternal and paternal grandmothers, and the maternal and paternal grandfathers. The department received several responses saying the children were not enrolled and the tribes would not intervene.
However, the notices omitted information about father’s maternal grandmother. On November 3, 2016, the trial court noted the omission. The department corrected the oversight by preparing a second ICWA-030 form, dated December 23, 2016. The new notice form spelled father’s maternal grandmother’s name “Cathleen Jordan” and gave her place and date of birth.
At the dispositional hearing, the court indicated ICWA noticing had begun. On May 19, 2017 the court signed an order saying notice was provided as required by ICWA, indicating no affirmative responses had been received, and concluding ICWA does not apply.
2. Analysis
Father argues the trial court’s finding proper ICWA notice was given is not supported by substantial evidence because the department’s notice to the relevant tribes spelled his maternal grandmother’s name “Cathleen Jordan” instead of “Kathleen Jordan.” We disagree.
It is undisputed the department sent notice to the relevant tribes. Father complains only that the department spelled the child’s great-grandmother’s first name as “Cathleen” instead of “Kathleen.” This purported error does not require reversal for two reasons. First, father has not provided any reason to believe the spelling the department submitted was, in fact, mistaken. The court reporter transcribed the name as “Kathleen Jordan,” when father identified her as a relative with Indian heritage. But she did so without father’s assistance. Nor does father represent on appeal that the court reporter’s spelling was correct. Thus, it is equally likely that “Cathleen” was correct as incorrect, and father has failed to carry his appellate burden of establishing prejudicial error. (Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1672.)
Second, given the minor difference in the spelling and the fact the department also provided the maternal grandmother’s correct last name, birth date, and birth place, we conclude the tribes received meaningful notice, and the department substantially complied with the ICWA notice requirements. (In re I.W. (2009) 180 Cal.App.4th 1517, 1531-1532.)
III
DISPOSITION
We affirm the trial court order and the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH
J.

We concur:


McKINSTER
Acting P. J.


MILLER
J.