In re M.J.

Filed 5/2/07 In re M.J. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from orders of the Superior Court of Los Angeles County, Sherri Sobel, Referee. Affirmed.

Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant David J.

Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and Appellant Florencia M.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel and Frank J. Da Vanzo, Principal Deputy County Counsel, for Plaintiff and Respondent.

David J. and Florencia M. appeal from orders of the juvenile court denying their motions for modification and terminating their parental rights. We find no error and affirm the orders.

FACTUAL AND PROCEDURAL SUMMARY

In May 2005, M. J.s babysitter called the Child Abuse Hot Line after seeing bruises on the 19-month-old child. After investigating, the Department of Children and Family Services (the Department) filed a petition pursuant to Welfare and Institutions Code section 300^[1]to declare M. J. a dependent child based on physical abuse and failure to protect. The petition alleged that mother physically abused M. J. by striking her with a shoe and a belt, throwing her to the ground, and pulling her hair; that M. J. sustained multiple bruises, welt marks, a bite mark, lacerations, a black eye, and a bruised head; that mother threatened to tie the childs arms and legs and leave her in a closet; that mother had been arrested for that conduct; that father knew of the ongoing abuse and failed to take action to protect the child; that the parents failed to obtain necessary medical treatment for M. J.s injuries; and that the parents have a history of domestic violence and have engaged in violent confrontations, and had been arrested for that conduct. M. J. was detained and placed in foster care, and mother was arrested and charged with child abuse.

Father visited M. J. regularly in foster care, but according to the monitor, the child appeared largely indifferent to his visits. Consistently when he visits she either ignores him or keeps a distance from him. M. J.s paternal aunt also visited regularly with M. J., but M. J. did not appear to have a strong attachment to her, either.

In July 2005, while mother was incarcerated for the same abuse that gave rise to this dependency proceeding, she gave birth to I. J. The Department placed I. J. in foster care with M. J., and filed a section 300 petition on his behalf. In August 2005, the court sustained the section 300 petitions, finding M. J. and I. J. to be dependent children. The court denied reunification services to mother pursuant to section 361.5, subdivision (b)(5) and (6). Father was given twice weekly monitored visitation, and was ordered to participate in a 52-week parenting class, a 52-week domestic violence for victims counseling program, and individual counseling to address domestic abuse and bonding.

In September 2005, the children were placed with their paternal aunt. At the time of the social workers November report, father was participating in all ordered programs and therapy, but had only visited the children three times since their move. The social workers report for January 2006 indicated that father continued to participate in his programs, but had not maintained contact with his children. At the January 20 review hearing, father asked that visitation be moved to a neutral setting because of problems with his sister, the childrens caretaker. After confirming that the aunt was willing to accommodate any needs father had, the court rejected his request, finding that father was making excuses, and should just work out any conflict he was having with his sister. The court granted mothers request for a visit in the social workers office.

On February 9, 2006, the court found that father was in compliance with his treatment plan except with respect to visitation. The court noted that one of the objectives in the treatment plan was that father bond with his children, which he had not done. Finding no substantial probability the children could be returned to fathers care within six months, the court terminated his reunification services and set the matter for a section 366.26 permanency planning hearing. Mother was given once a week visitation, and father was given visits in a neutral setting with a neutral monitor, upon 24 hours advance notice.

Father filed a section 388 motion seeking reinstatement of reunification services and return of the children to his custody. Mother filed a section 388 motion asking the court to grant her reunification services and increased visitation. At the hearing, the parents presented evidence about their visitation with the children, their programs, and their progress. The social workers and the paternal aunt also testified. The court found that it would not be in the childrens best interests to extend reunification services and denied both motions.

The court proceeded to the section 366.26 hearing. It found the children were adoptable and that no exception to the adoption preference applied, and terminated parental rights. The parents appeal from the denial of their section 388 motions and from the termination of parental rights.

DISCUSSION

I

Father claims the Departments failure to exercise reasonable efforts to promote his visits and the juvenile courts refusal to reinstate reunification services deprived him of any chance to establish the grounds for a change of order under section 388 or an exception to adoption under section 366.26, subdivision (c)(1). We find no support for this claim.

Father at all times had the ability to visit with his children, and in fact exercised that right during the early months of the dependency case. When the children were moved to his sisters care, his visits all but stopped. He visited twice in September when they were first placed in her home; on two other occasions he visited for less than an hour. In October, he informed the social worker that he was unable to visit the children during the week because he was looking for additional employment in the evenings, and his sister was not available on the weekends for visits. The social worker told the paternal aunt she needed to facilitate visits on Sundays, and the aunt agreed to do so. Except for a 20-minute visit in late October, father did not visit the children on Sundays or any other day.

According to the social workers January 20, 2006 report, in early November she asked father why he did not make any effort to visit on Sundays, as had been worked out. Father told her that Sunday is the day he spends cleaning his house. The social worker told father that his visits were as important as his participation in court-ordered programs, and with his agreement, set up a schedule for Sunday visits, from 10:00 a.m. to 1:00 p.m. Father did not make these visits.

There was no evidence that his sister interfered with his visits, or that she made it difficult to schedule visits. The record shows that father had the opportunity for visitation, that the Department attempted to facilitate the visits by adjusting the schedule, and that his sister agreed to accommodate his scheduling needs. Even with this assistance, father did not visit his children regularly at his sisters home. There is substantial evidence that the Department provided reasonable services to help father visit with his children.

At the hearing on January 20, 2006, father asked the court for visitation in a neutral setting because he was having a problem with his sister. The court was concerned that he had waited several months before asking the court for help with his visitation problems, despite the emphasis in his reunification plan that he work on bonding with the children. The court also found that the Department had contacted father repeatedly to encourage him to see the children, but he gave excuses each time and did not visit. Given fathers failure to respond to the Departments efforts to help him and the young age of the children, the court did not abuse its discretion in refusing his request to change visitation to a neutral setting.

At the next hearing on February 9, 2006, the court terminated fathers reunification services. Father did not seek writ review to challenge the adequacy of reunification services based on the visitation problems. Nor would such a claim have been successful. The Department made repeated efforts to encourage and assist father in visiting his children at his sisters home. His sister cooperated in these efforts. His sister, the social worker, and the court repeatedly prodded father to visit. He was told in plain language that bonding with his children was part of his reunification plan. At no point did his sister deprive him of visits with the children in her home. He chose not to make the visits, making excuses to the social worker. Only after failing to visit for nearly four months did he complain that he wanted visits moved to a neutral setting because he and his sister were not getting along. Fathers lack of visitation during that four-month period resulted from his own choice, not the inadequacy of services or support from the Department or the court.

Based on this conclusion, we reject fathers claim that the court abused its discretion in denying his section 388 petition seeking reinstatement of reunification services or return of the children to his custody. Section 388 allows a parent or other person having an interest in a dependent child to petition the court to change or set aside an order based on a change of circumstances and a showing that modification based on that change would be in the best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) A ruling on a section 388 petition is committed to the sound discretion of the juvenile court, and the trial courts ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. . . . The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319, citations omitted, quoting Walker v. Superior Court (1991) 53 Cal.3d 257, 272.)

Father was unable to establish either a change of circumstances, or that reinstatement of reunification services would be in the childrens best interests. It was undisputed that father participated in the required programs. It also was undisputed that, with the exception of the four-month period from September 2005 to February 2006, he visited the children regularly. What is lacking in the record, however, is evidence that fathers relationship with the children had progressed to such an extent that it would be in their interest to provide additional reunification services.

Social worker Isela Vigil observed fathers twice weekly visits from February 2006 to the time of the section 388 hearing in July 2006. M. J. had initially been hesitant to interact with father or play with him, but now she does interact with her father. She is eager when she sees him. She will hug him and give him a kiss, but she shows no sadness when the visits end. During the visits, M. J. brings books to the room and father watches her and looks at the pictures with her. Father holds I. J. or plays with him on the floor. I. J. will smile at father, but he smiles at any familiar face, and shows no other sign of affection to father. Between visits, father did not call the social worker to ask about the well-being of the children. He also did not inquire about M. J.s involvement with the regional center.

Father testified about his activities during visitation: What happens is that I spend my time playing with a three-year-old child, which is my daughter. And, with a one-year-old child, theres not much you can do other than trying to keep them busy with the three year old. And because theyre such small children, there is nothing much you can do. I mean, I cant do adult stuff with them. He was aware that M. J. was receiving services at the regional center for speech problems, but his conversation with the social worker about that was difficult because the worker does not understand Spanish well.

Father submitted a report from his therapist, who stated: Client expresses frustration because at times, circumstances beyond his control impedes his Court Order requirements to enjoy Visitation Rights at prearranged time, date and location with his Children. Client appears very concerned because he seems to understand that his Children will be recommended for adoption. What Client does not understand is the motive for Adoption and seems to be very concerned about the motives of the apparent prospective Adoptive parents. Client further expresses Frustration as to how can anybody ensure that it is in the Best Interest of his Children to be reared by other people rather then by his own Father. Client bemoans that he can not understand why anybody would deny his Children the opportunity to be reared by their own Father. Indeed, Client takes utter delight in the fact that he has Completed every Treatment program that the Court has order him to complete. This Programs Completion Delight and Satisfaction seems to give strength and optimism to Client that he indeed is a Responsible Parent who has dedicated himself to what he feels is in the best Interest of his Children.

Strikingly absent from this letter, and from the other evidence, is any sign that father had developed a relationship with either child, or that he recognized the need to do so and was working toward accomplishing that goal. Given that bonding with his children was an express, and very necessary part of his reunification plan, he has not shown any change of circumstances in this regard that would support a change of order. The court did not abuse its discretion in denying his section 388 petition.

The same lack of relationship precluded the court from finding the visitation exception under section 366.26, subdivision (c)(1)(A). The court did not err in terminating his parental rights and choosing adoption as a permanent plan for the children.

II

Mother also claims the court abused its discretion in denying her section 388 petition, in which she asked the court to order reunification services and increase her visitation. We find no abuse of discretion.

Mother presented evidence that despite the courts denial of reunification services, she had participated in domestic violence counseling, anger management counseling, individual counseling, and parent education. From the time the court permitted her to visit with the children, she had consistently visited with them. The visits were once a week for an hour and a half. During the visits, mother played with the children. She would sing to them, draw with them, and read to them. She gave a party for I. J. for his first birthday. She felt her relationship with [M. J.] was good, that it is moving along really well with her. She testified that she loves both children very much, and I treat them equally.

The social worker testified that mothers visits were appropriate. But she also testified that during a few visits, M. J. would get upset or begin to cry. Mother was unable to console her. Instead, M. J. ran to the social worker to be consoled. The paternal aunt testified that mother had one visit with the children in her home. On that occasion, M. J. did not want to go with mother on a shopping outing to buy shoes for the baby. And so the child, against the mothers will, decided that she wanted to stay with me, and the mother gave her a really dirty look. And thats when I decided I didnt want the visitations to continue at my home, that I wanted them to be at the social workers office.

The social worker testified that she had spoken with mothers initial therapist, Dr. Baca. The therapist did not feel mother was making progress in her therapy [b]ecause mother was not accepting responsibility for causing severe physical abuse towards [M. J.]. Mother submitted a letter from her new therapist, Dr. Lien, who had seen mother for seven individual sessions. Dr. Lien reported that mother had been cooperative with her treatment, and has worked extensively on the traumatic and confusing relationship that she had with the childrens father. According to the therapist, mother acknowledged that on the day of the incident, when M. J. would not stop crying, she hit her with a belt and with her hands. But mother denied hitting M. J. with a shoe or biting her. Mother insisted that M. J. did not have a black eye when she was taken to the babysitters home. These assertions were inconsistent with the sustained allegations in the dependency petition. Mother told Dr. Lien that her previous therapist insisted on having her describe[] how all of the injuries occurred and that she was unable to do so. She states that she did not cause all of the injuries that are described in social workers report. [Mother] believes that [M. J.s] babysitter injured the child on the day in which she was left in her house and subsequently taken away.

The court was understandably concerned that a year into the dependency case, mother had not accepted responsibility for M. J.s injuries. The court found that these parents have just gotten started, and good for them. But it was unable to find there were changed circumstances, or that it would be in the best interest of the children to grant the section 388 petition for provision of reunification services. The court aptly quoted In re Debra M. (1987) 189 Cal.App.3d 1032, 1038: The reality is that childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it.

The court acted well within its discretion in denying mothers section 388 petition. This same evidence supports the findings necessary to support the courts selection of adoption as a permanent plan for the children and the termination of mothers parental rights.

DISPOSITION

The orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

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