In re T.R.

Filed 7/3/07 In re T.R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

CONSOLIDATED appeals from orders of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed.

E.R. appeals orders terminating her parental rights to her children, T.R. (T.), Sienna R., A.R. (A.), Alina R., and Alec R., and orders suspending visits and denying her request for a bonding study. She contends the orders must be reversed because the juvenile court's denial of her request for a bonding study deprived her of due process and constituted a manifest abuse of discretion. We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

On January 11, 2006, Bella R., the youngest of E.R.'s six children, died from injuries sustained when she was in the care of Bella's father, Michael W. The pediatrician who examined Bella opined she had died of a head injury that could have resulted from her being thrown to the floor.

The San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of the five surviving children under Welfare and Institutions Code^[1]section 300, subdivisions (a) and (b) based on domestic violence in the home. It later amended the petitions to add another allegation under section 300, subdivision (b) and allegations under section 300, subdivisions (f) and (j) based on the domestic violence and the severe physical abuse of Bella.

At the jurisdictional and dispositional hearings, after making some modifications, the court found the allegations of the petitions true, declared the children dependents, removed custody, denied services to the parents and set a section 366.26 hearing. It also denied services to and terminated the guardianship of the children's maternal grandmother, who had been the five older children's guardian and with whom they had lived for a time in Arizona.

In the adoption assessment report for the children, dated October 23, 2006, the social worker reported T., Sienna, A., Alina and Alec had been placed with their maternal aunt and her significant other (the aunt and uncle) in New Mexico in June 2006. The social worker said the aunt and uncle had been providing a loving environment, but the children were struggling with emotional issues and receiving therapy because of Bella's death and the domestic violence and abuse to which they had been subjected.

The social worker reported that even though visits were authorized, E.R. did not visit the children for five months after they were placed with the aunt and uncle. E.R. had telephoned them about five times. During the first two calls she made reference to a large house and insinuated they could all live there together. For the next two calls, only A. wanted to talk with her. All of the children spoke with E.R. during the most recent call on September 27, 2006, but subsequently they began acting out at school. A. and Sienna were involved in a fist fight and A. tried to kiss a boy. After E.R.'s visit Alec had special difficulty listening to his teacher and had a kicking and screaming tantrum.^[2] The aunt and uncle expressed their desire to adopt all five children. The social worker opined it was highly likely their home would be approved for adoption and there were eight other families approved to adopt a set of five siblings with the children's characteristics.

On November 22, 2006, E.R. had a supervised visit during which she was affectionate with the children and acted appropriately. After the visit, however, the children acted out again. Alec wore dirty clothing and soiled his underwear. The oldest, 10-year-old T., began bribing the other children to misbehave. But then she told the aunt about E.R. "partying" and not being home with the children and said she would run away if she were sent back to live with E.R.

On December 19, 2006, in response to E.R.'s request for a bonding study, the court authorized funding for a bonding study if it would not be detrimental to the children. It also authorized visits to take place in a therapeutic setting. However, the children's therapist opposed a bonding study or further visits. He cautioned that additional contact with E.R. would harm the children because E.R. minimized and denied the abuse she and the children had suffered. He warned contact with her might undermine the children's ability to attach to the aunt and uncle and opined the children had endured a "deplorable amount of abuse and neglect" and that "continued visitation would compromise the therapeutic progress they've made."

At a hearing on January 5, 2007, the court denied E.R.'s request for a bonding study, finding further contact with her would be detrimental to the children.

At the section 366.26 hearing on February 5, 2007, the social worker testified she had based her assessment of the children on the history of the case plus the New Mexico social worker's report of the one visit E.R. had with the children after they were placed with the aunt and uncle. It was stipulated that were E.R. to testify she would state she loves her children, wants contact with them and opposes adoption.

The court found the children were likely to be adopted and none of the statutory exceptions to adoption applied. It terminated parental rights and referred the children to the Agency for adoptive placement.

DISCUSSION

E.R. contends the juvenile court abused its discretion and denied her due process by denying her request for a bonding study. She has not shown an abuse of discretion or a denial of due process.

"There is no requirement in statutory or case law that a court must secure a bonding study as a condition precedent to a termination order." (In re Lorenzo C. (1997)54 Cal.App.4th 1330, 1339.) A court's denial of a request for a bonding study is reviewed under an abuse of discretion standard. (Id. at p. 1341.) A determination "committed to the sound discretion of the juvenile court . . . should not be disturbed on appeal unless an abuse of discretion is clearly established." (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) " 'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.' " (Id. at pp. 318-319..)

Although at disposition the preservation of the family is of critical importance, when reunification services have been terminated or were never ordered, the focus is on the needs of the child for permanency and stability, rather than on the parent's interest in the care, custody and companionship of the child. (In re Angel B. (2002)97 Cal.App.4th 454, 464.)

E.R. has not shown an abuse of discretion. The children's therapist opined a bonding study and even further visitation with E.R. would be harmful to the children. He said they had lived a "life of terror" with E.R. and were only beginning to work through the emotional problems this had caused. He also believed further contact with her would interfere with their sense of security and ability to attach to the aunt and uncle. The court reasonably denied the request for a bonding study based on the therapist's assessment.

Further, E.R. has not shown a denial of due process. "The essence of due process is fairness in the procedure employed . . . ." (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 757.) E.R. did not visit the children for five months after they were placed with the aunt and uncle. The Agency recommended adoption as the permanent plan in October. E.R. had a visit with the children in November. On December 19, the date that had been set for the section 366.26 hearing, she requested a bonding study. The court tentatively authorized the study, unless the children's therapist was against it, then determined not to allow a bonding study because the children's therapist had opposed it and opined that any further contact between E.R. and the children would be detrimental to them. We see no due process violation on these facts.

Moreover, even if the court had ordered a bonding study, the result would have been the same. For a finding of the exception to adoption of section 366.26, subdivision (c)(1)(A), E.R. would have to have shown a parent-child relationship that was so beneficial it would outweigh the benefits to the children of a permanent, stable adoptive home. ( 366.26, subd. (c)(1)(A); In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Even assuming a bonding study would show the children shared child-parent bonds with E.R., she could not have shown the benefit of that relationship would outweigh the benefits of adoption. The social worker opined the children did not share beneficial relationships with E.R. and they needed stability because of the trauma they had endured. The children's therapist said the children needed to feel protected and secure, but they did not feel safe with E.R. The prospective adoptive home with the aunt and uncle offered them the security they required. The court assumed E.R. shared a parent-child bond with the children, but found the relationship was not beneficial. It commented to E.R.:

"There's no question that a parent-child relationship existed for some period of time. Primary thrust of this court's analysis has to be whether it's beneficial. . . . It has to be beneficial to the kids. It just isn't. They're still scared to death.

"It's not so much they're scared of you, but they're scared. They're so scared of [Michael] and the relationship you had with him that [it] makes them afraid of almost everybody."

E.R. has not shown she was prejudiced by the court denying her request for a bonding study.

DISPOSITION

The orders are affirmed.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

NARES, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

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

^[2] Four-year-old Alec had particular emotional problems. There were reports that before the dependencies he had been spanked hard enough to cause blisters and Michael had led him to believe that he (Alec) had killed Bella. Alec said he was afraid Michael might "pop[] up" and get him.