In re Skyler M.

Filed 7/24/07 In re Skyler M. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from orders of the Superior Court of Los Angeles County. Jan Levine, Judge, and Jacqueline H. Lewis, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed.

Nicole Williams for Defendant and Appellant Bryce H.

Rich Pfeiffer for Defendant and Appellant Dawn M.

Raymond G. Fortner, Jr., County Counsel, Kim Nemoy and Lisa Proft, Deputy County Counsel, for Plaintiff Respondent.

_______________________

Dawn M. and Bryce H., parents of Skyler H., appeal the juvenile courts termination of their parental rights (Welf. & Inst. Code,[1]  366.26) and the courts denial of Dawns petition under section 388. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This court has twice been called upon to review aspects of these dependency proceedings, and we describe past events in brief: Born in 2004, Skyler became a dependent child of the court within her first year of life after she suffered numerous unexplained bone fractures. The juvenile court denied reunification services. The parents sought extraordinary writ relief from this order, which we denied. (In re Skyler H. (Sept. 14, 2005, B183391) [nonpub. opn.].) Dawn filed a section 388 petition to present newly obtained evidence to the juvenile court concerning the cause of Skylers injuries. The juvenile court denied an evidentiary hearing on that petition. The parents appealed, and in a nonpublished opinion, we directed the court to hold an evidentiary hearing prior to any selection and implementation hearing for Skyler H. (In re Skyler H. (May 16, 2006, B187245) [nonpub. opn.].)

Shortly before our decision was filed, however, on April 26, 2006, the juvenile court conducted a hearing under section 366.26 to select a permanent plan for Skyler H. The Department of Child and Family Services argued that Skyler should be freed from parental custody and control so that she could be adopted by relatives. Skylers attorney concurred. Counsel for Dawn and Bryce argued that they had maintained regular visitation and contact with Skyler and that continuing the relationship would benefit her. The juvenile court stated, This case has been a sad and a difficult case and this hearing under any circumstance is always a difficult hearing, but in order for me to not go forward and terminate parental rights, I have to find a compelling reason for determining that termination of those rights would be detrimental to Skyler. And under the (c)(1)(A) exception she would benefit from continuing the relationship. I cant find a compelling reason that termination of parental rights would be detrimental to her.

As counsel is aware, the court did not grant family reunification services to the parents in this case because I couldnt find that family reunification was in Skylers best interest. We had grave physical injuries to her in her earliest infancy. We had no explanation for those injuries. Any medical causes were ruled out by testing and subsequent to Skylers removal from her parents care, she had no further injuries. None whatsoever, which further reinforces, at least in the courts view, that the injuries were not accidental or the product of some medical condition.

As a result, I cant find that it would be in her interest to preserve the relationship of parent and child when Skyler has been living in the home of the [prospective adopters] as their child and they have been parent and child to her. Adoption is by far the preferred permanency plan for a child and she deserves to have that permanence and stability.

I am glad that the parents have found a way to stay in Skylers life in a way that the court can feel confident that Skyler remains safe and that she benefits for having them in her life in that fashion. That will be up to her prospective adoptive parents to make that judgment as time passes.

As for today, the court admits intohas admitted into evidence petitioners [exhibits] one through five. The court finds continued jurisdiction is necessary. The court finds by clear and convincing evidence that the child is adoptable. The court finds it would be detrimental for her to be returned to the parents.

The juvenile court concluded, [T]he parental rights of Dawn M[.] and Bryce H[.] and anyone else who claims to be a parent to Skyler H[.] are hereby terminated and the child is declared free from the custody and control of her parents.

The parents appealed the termination of their parental rights. This court stayed that appeal on June 12, 2006, to permit the juvenile court to conduct the section 388 hearing we ordered in Case No. B187245. We wrote, To permit the juvenile court to conduct the proceedings ordered in B187245, the matter embraced by this appeal is also remanded to the juvenile court for the limited purpose of vacating its order under Welfare and Institutions Code section 366.26. If the juvenile court grants Dawn M.s petition under section 388, the parties shall immediately notify this Court if this appeal should be dismissed as moot. If the juvenile court denies Dawn M.s petition, it may reinstate its order under section 366.26 unless the court determines subsequent developments require a new selection and implementation hearing, in which case the court may order additional proceedings or enter such further orders as are appropriate.

The juvenile court did not, as ordered, vacate the orders it had made under section 366.26. The court did, however, conduct the section 388 hearing ordered by this court.[2] The court heard testimony from Samantha Han, a physician who treated Dawn during her pregnancy; a registered nurse friend of Dawns; a neighbor of Dawns; pediatrician and neonatologist Jeffrey Pietz, M.D., testifying as an expert witness; David Boxstein, M.D., a pediatrician who treated Skyler; and Lynne Ticson, M.D., a physician from the office that performed a child abuse consultation on Skyler. The court also received stipulations concerning the testimony of several other witnesses. The juvenile court excluded one witness, Charles Hyman, M.D., based on failure to provide discovery, with concerns that he had committed perjury by denying that he had notes pertaining to this case.

The juvenile court denied the section 388 motion on the grounds that Dawn did not establish a substantial change in circumstances with this new testimony as to Skylers injuries. The parents appealed this ruling, and these appeals were consolidated with the pending appeal of the order terminating their parental rights.

DISCUSSION

I. Section 388 Petition

Section 388 is a general provision permitting the court, upon grounds of change of circumstance or new evidence . . . to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. ( 388, subd. (a).) The statute, an escape mechanism that allows the dependency court to consider new information even after parental reunification efforts have been terminated (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1316), permits the modification of a prior order only when the petitioner establishes by a preponderance of the evidence that (1) changed circumstances or new evidence exists; and (2) the proposed change would promote the best interests of the child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) We review the ruling on a section 388 petition for an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

Although she presented several witnesses, mothers case for new evidence or changed circumstances here rested primarily on the testimony of Dr. Pietz, who testified that an undefined medical condition (first labeled temporary brittle bone disease, then not named at all), caused perhaps by drugs administered to mother during pregnancy, mothers bed rest during pregnancy, mothers nutritional intake during pregnancy, Skylers premature birth, and/or nutritional deficiencies early in Skylers life, could have caused Skyler to have weakened bones that were susceptible to the fractures she suffered without any abuse. Dr. Pietz opined that Skyler was not abused. The juvenile court, however, was not persuaded by Dr. Pietzs testimony or by the oft-changing explanation of Skylers medical condition. The court explained, [T]here are several, I would say, possible diagnos[e]s thrown out by mothers counsel of things that could be other than child abuse.

The main doctor used as an expert witness was Dr. P[ie]tz. This court found that Dr. P[ie]tz was sincere. All my years of sitting here, I dont think Ive ever seen a doctor cry on the witness stand, but Dr. P[ie]tz sure did, so I believe he believed what he was saying somehow. He is emotionally involved in this case. He was sincere, but thats different from credibility. It is very distressing to this court.

The court was not troubled only by the doctors emotional involvement, but also by the shifts in his testimony. I think [county counsel] put it best when he indicated the ball kept moving, and it sure did in this matter. The original letters that were attached said that, from Dr. P[ie]tz, he had diagnosed temporary brittle bone disease, so [county counsel] does a motion saying temporary brittle bone disease is not a medical diagnosis accepted by the medical community.

We set this matter for hearing to determine whether or not temporary brittle bone disease is widely medically accepted, and Dr. P[ie]tz get[s] on the stand during that hearing and changes his diagnosis, presents another letter, and takes it out. Ive never seen anything like it. Basically, what he said [is], Well, lets not get hung up by a label. If you do not like that diagnosis, Ill give you another one[.]

This hearing has taken many twists and turns because we sort of got away from determining whether or not temporary brittle bone disease was a diagnosis widely accepted through the medical community, so the court let Dr. P[ie]tz testify and tried to determine whether, if you took away the actual diagnosis, whether the individual things that Dr. P[ie]tz indicated went into his diagnosis of temporary brittle bone disease, whether those individual factors were widely accepted by the medical community.

No further evidence was presented in regard to whether those factors were widely accepted in the medical community. We know from the articles that were admitted and from the testimony of various doctors clearly temporary brittle bone disease is not widely accepted.

Then Dr. P[ie]tz said, Well, I like some of Dr. Millers theories and not others[.] We were really never able to get to whether any of Dr. P[ie]tzs testimony conclusions were widely accepted in the medical community.

The court expressed skepticism about Dr. Pietzs tendency to discount evidence that did not conform to his theory, observing, Dr. P[ie]tz talked about a lack of fetal movement and then indicated that he could not trust the ultrasound tech who talked about good fetal movement because he basically must not have known what he was talking about. He could not trust mothers comments. There [was] no lack of fetal movement because she had not been pregnant before, so she did not know what she was talking about either. His testimony[,] frankly[,] was all over the globe here.

The court said, Im concerned that both Dr. P[ie]tz as well as [testifying pediatrician] Dr. Boxstein came to the conclusion that Skyl[e]rs bones must be brittle because they broke. Thats an algebra equation the court just cannot do. The question is not how they got broken. Just they must have been brittle because they were broken. I believe more likely than not they were perfectly normal bones that were broken through abuse.

The court expressed further reservations about the testimony of Dr. Boxstein, who had treated Skyler. Dr. Boxstein said brittle bones are common in premature infants, and its always a consideration.

So I was a little confused and said, Well, did you ever give any training? Did you ever tell the parents that it could be fragile?

Well, no. I never did anything like that, never told them to do anything special for the child. Oh. Then testified it was not even a routine to look for brittle bones in a six[-]week premature infant.

And the only reason []he believed she had brittle bones again was because they broke and that he did not consider her fragile when he first started seeing her but basically because parents were loving; attentive; concerned; and inquisitive, that there must be another explanation for the childs broken bones.

I think in all the things I see in court, that could be true, but its not necessarily true.

The court reviewed the other evidence put forth at the section 388 motion and explained why the court was not persuaded that there had been a change in circumstances: Then we had Dr. Hyman who perjured himself on [the] witness stand, leaving his credibility deeply in question, and then the other expert that was called by the mother proffering the 388 was Dr. Ticson who indicated she believed those were broken bones based on child abuse. Broken bones were caused by child abuse.

It appears to me that what Mother has done is thrownin spite of all the testing, et cetera, that what shes trying to do is throw a number of theories at [the] court and hope that the court is somehow confused by that.

But the reality is here that we are at a 388 and that [the] court must find a substantial change of circumstances, and the court does not find a substantial change of circumstances.

After hearing all the evidence, the court concluded, there is no new evidence in this matter, simply a number of possible theories still not accepted in the medical field for things that could have caused this childs broken bones other than child abuse. [] Theres no indication that any of those theories are widely accepted in the medical field nor that Skyl[e]r specifically suffered from a single one of them.

We have reviewed the evidence and cannot say that the juvenile court abused its discretion with these conclusions. With respect to the courts estimation of witnesses credibility, it is the exclusive province of the trier of fact to determine the credibility of a witness. (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.) As to the persuasiveness of the evidence, Dawn simply did not present coherent evidence of any medically-recognized specific cause of Skylers fractures other than abuse, merely opinions about potential causes of fragile, brittle, or weakened bones that included conditions that Skyler did or likely did experience. As Dawn herself noted in her appellate brief, at the hearing she offered medical opinions of potential causes that could result in Skyler suffering from weakened bones, it also brought new evidence that the staff at U.S.C. Medical Center failed to perform tests that could possiblyhave either found those conditions existed, or proved they did not exist. (Italics added.) Dawns own best-case statement of her evidencethat maybe there were other causes and that maybe such causes would have been found if other tests had been runitself shows how the proffered evidence fell short of establishing that changed circumstances or new evidence existed and that any change in existing orders would promote Skylers best interests. The juvenile court reasonably concluded that at best Dawn had presented a number of other possible causes of infant bone fractures, but that she did not establish to any reasonable level of certainty that any of these contenders actually caused Skylers injuries. This decision is abundantly supported by the evidence submitted at the hearing, and we therefore cannot say that the decision was arbitrary, capricious, or patently absurd. (In re Stephanie M., supra, 7 Cal.4th at p. 318.) Accordingly, the court did not abuse its discretion in denying the section 388 petition.

II. Termination of Parental Rights

At a hearing under section 366.26, the court must select and implement a permanent plan for a dependent child. Where there is no probability of reunification with a parent, adoption is the preferred permanent plan. (In re Edward R. (1993) 12 Cal.App.4th 116, 122.) In order for the juvenile court to implement adoption as the permanent plan, it must find, by clear and convincing evidence, that the minor is likely to be adopted if parental rights are terminated. ( 366.26, subd. (c)(1).) Then, in the absence of evidence that termination of parental rights would be detrimental to the child under one of six statutorily-specified exceptions ( 366.26, subd. (c)(1)(A)-(F)), the juvenile court shall terminate parental rights. ( 366.26, subd. (c)(1).) One of these exceptions, in section 366.26, subdivision (c)(1)(A), provides that the court may decline to terminate parental rights if it finds a compelling reason for determining that termination of rights would be detrimental to the child because [t]he parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. Here, the juvenile court found Skyler to be adoptable, and finding no reason that the termination of parental rights would be detrimental to her, terminated Dawn and Bryces parental rights.

Dawn and Bryce appeal on the sole ground of the sufficiency of the evidence to support the juvenile courts ruling that the exception contained in section 366.26, subdivision (c)(1)(A) has not been satisfied here. Most courts review a juvenile courts determination that the section 366.26, subdivision (c)(1)(A) exception does not apply for substantial evidence (In re Autumn H. (1994) 27 Cal.App.4th 567, 576), although at least one court has concluded that it is properly reviewed for an abuse of discretion. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) We need not resolve this difference of opinion here, for under either standard the termination of parental rights would be upheld. Analyzing the juvenile courts ruling under the more exacting standard, we affirm the order because it is supported by substantial evidence.

[T]o establish the exception in section 366.26, subdivision (c)(1)(A), the parents must do more than demonstrate frequent and loving contact [citation], an emotional bond with the child, or that the parents and child find their visits pleasant. [Citation.] Rather, the parents must show that they occupy a parental role in the childs life. [Citation.] (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108-1109.) A beneficial relationship within the section 366.26, subdivision (c)(1)(A) exception is one that 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 Autumn H., supra, 27 Cal.App.4th at p. 575.)

It is clear from the record that at the time of termination of parental rights the relationship between Skyler and her parents was loving, warm, and enjoyable for all. However, Dawn and Bryce did not establish the kind of parental relationships that section 366.26, subdivision (c)(1)(A) was designed to preserve. At the time of the section 366.26 hearing, Skyler had been out of the custody of her parents for nearly all her short life. Dawn and Bryce regularly visited with Skyler three times per week, with visits lasting at least an hour and a half each. Visits went well. Bryce and Dawn provided Skyler with toys and clothing on occasion, and during visits fed her and changed her as needed. Skyler was excited about visits and met her parents at the door. They interacted appropriately with her and encouraged her to practice walking when she was learning to walk. The social worker observed that Skyler had an observable bond with and affection for her parents.

This evidence evinces frequent, consistent, and regular visitation and a warm and loving relationship between Skyler and her parents, but it does not demonstrate that the relationships reached the level at which the section 366.26, subdivision (c)(1)(A) exception would apply. Dawn and Bryce did not establish that their relationships with Skyler promote[d] 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 [a] new, adoptive parent[]. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Accordingly, substantial evidence supported the juvenile courts finding that the section 366.26, subdivision (c)(1)(A) exception did not apply.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ZELON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

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

[2] A new bench officer conducted the section 388 hearing on remand.