In re Todd T.

Filed 6/21/06 In re Todd T. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEALS from judgments and orders of the Superior Court of San Diego County, Joe O. Littlejohn, Judge. Affirmed.

Michelle T. (the mother) and Todd T., Sr., (the father) appeal orders denying their petitions under Welfare and Institutions Code section 388^[1] and judgments terminating

their parental rights to their sons, Todd T., Jr., (Todd) and Daniel T. The mother asserts she also is appealing the order denying her section 388 petition concerning her daughter and the boys' half-sister, Bianca B. The mother maintains the court abused its discretion in denying her petition to place the children in her care or provide her with additional services. The father contends the court erred in denying his petition to grant further services. Both parents argue their circumstances had changed and the relief they sought was in the children's best interests. The parents also contend the court erred in terminating their parental rights to Todd and Daniel because the evidence showed the presence of the beneficial relationship exception to adoption of section 366.26, subdivision (c)(1)(A). We affirm the judgments and orders.

FACTUAL AND PROCEDURAL BACKGROUND

On August 1, 2003, the San Diego County Health and Human Services Agency (the Agency) petitioned under section 300, subdivision (b), on behalf of two-year-old Todd and three-week-old Daniel because of domestic violence between the parents. The petition alleged the parents had a history of mutual combat and, on July 30, 2003, when the children were present, the father sustained a stab wound to his chest and lacerations to his finger and gave inconsistent explanations about the incident. The mother's 10-year-old daughter, Bianca, also was detained.

The social worker reported that on July 30, 2003, the mother called 911 to report the father had tripped and stabbed himself with a knife. He was airlifted to a hospital for treatment. The social worker at the hospital trauma unit said the injuries did not appear to be accidental and the hand wounds were possibly defense wounds. The father insisted the injuries were caused accidentally. The parents were married in 2002, but had lived together for only a short time because the father was deployed in the military. There had been two earlier domestic violence incidents.

On August 21, 2003, the court found the petitions true. On October 22. it declared the children dependents, placed them in foster care, and ordered the parents to comply with their case plans.

The psychologist who performed a psychological evaluation of the mother opined the children should remain out of the mother's care until she addressed domestic violence issues. The psychologist who evaluated the father said he was rigid, defensive and emotionally immature. The social worker reported the parents were participating in services and having supervised visits.

On February 14, 2004, the mother reported the father had entered her apartment by force and tried to rape her. On February 17, the father, after continuing to insist the stab wound was accidental, told an investigator the incident had not been an accident. Subsequently, the mother said he made up that story because he was mad at her.

In April 2004, the mother said the father had entered her apartment by punching out a window. He denied this, saying he was restricted to the military base at the time. At the six-month review hearing on April 28, the court continued the children as dependents and ordered six more months of services.

In August 2004, there was another domestic violence incident. The mother scratched the father and threw a glass of wine at a door. She was arrested. The father picked her up when she was released.

The social worker reported that Todd had behavioral problems, and his therapist said that during therapy he played aggressively with toy animals and had them fight with each other. In August 2004, Todd and Daniel were placed together in Alameda County with paternal relatives whose home had been approved for placement. The mother had periodic visits, but the father was unable to leave work in order to make the trip.

The social worker reported that although the parents had received 12 months of services, the father continued to have a short fuse and low tolerance for frustration. The mother completed a 52-week domestic violence program, but she was unable to use the skills she had learned and minimized the domestic violence.

At the 12-month hearing on October 14, 2004, the court found returning the children to the parents would be detrimental and there was not a substantial probability of return within the next six months. It terminated services and set a section 366.26 hearing.

The social worker reported the two boys were doing well in the care of their relatives. Todd sometimes woke in the night, screaming, " 'No mommy, no!' " After visits with the mother, he was defiant, had temper tantrums, chewed his fingertips and attempted to choke Daniel. He did not show the same behavior after visits with the father. The social worker stated the boys were likely to be adopted and, in addition to the paternal relatives, there were 18 approved families interested in adopting two children like Todd and Daniel. She recommended terminating parental rights.

On March 17, 2005, the mother petitioned under section 388 for return of all three of the children, or, in the alternative, for additional reunification services. The father also filed a section 388 petition. He requested reunification services be reinstated.

The social worker in Alameda County reported Todd displayed disturbing behavior after visits with the mother. After one visit, he threw a stuffed animal the mother had given him into a toilet. At night he awoke saying, " 'No stab Daddy' " and

" 'monsters with hands chasing me.' " The social worker said the boys picked at their skin, causing scabs, and banged their heads against a wall. She also said the mother had difficulty managing their behavior during visits and that after the visits both boys were angry and irritable. After one visit, the caregiver discovered Todd lying on top of Daniel and pushing his head into a pillow. Todd told his therapist about visits with the mother, " 'Only visit, no live.' "

In August 2005, the social worker requested suspension of the mother's visits. She said the father and the children's caregiver had reported the mother had threatened the father and the boys. The mother denied this. The court ordered supervised visitation in a therapeutic setting, but Todd's therapist refused to supervise visits, noting Todd was showing symptoms of post traumatic stress disorder two years after the stabbing incident. The court found visitation in a therapeutic setting could not be accomplished.

In October 2005, the social worker reported the children's well-being had improved after visits with the mother were stopped. Their caregivers and Todd's therapist reported the boys were happy, not fighting and were more loving to each other.

The psychologist who completed updated psychological evaluations of the parents said they were at risk of repeating the violence and had problems monitoring their anger. He expressed concern about the children's safety in their care.

The section 388 and section 366.26 hearings were held on October 21 and December 15, 2005. The mother's therapist testified she had been helping the mother to understand triggers in the cycles of violence and to manage her anger. She said the incident in August 2004, when the mother threw a glass of wine, was a relapse. The court-ordered four conjoint sessions she conducted for the parents in 2004 were not productive. She recommended further reunification services and supported more visitation. She said the mother's long-standing issues included dysthymia (a milder form of depression), anxiety and a personality disorder.

The mother testified verbal abuse by her mother had an impact on her relationships with the father and the children. She said she and the father divorced in June 2005, but she saw him soon after their daughter was born in May 2005. She admitted engaging in domestic violence, but said she never started the physical violence. She denied stabbing the father and said she was no longer seeing him. The mother had not seen the boys since July 2005, when visitation was discontinued. She wanted her children returned to her.

The father testified Todd and Daniel lived with his parents. He had completed a 52-week domestic violence program and had some therapy, in which he dealt with parenting issues, domestic violence and controlling his temper. The father was in the United States Marines and expected to be returned to Iraq. He saw the boys every day for about two weeks in August 2005, when he traveled to northern California. He said he was intoxicated at the time of the knife incident so could not remember it well, but he had told others the mother had stabbed him. He said the mother told him in August 2005 that she wanted to kill him. She denied this.

The current social worker for Todd and Daniel's case opined the parents were not prepared to meet Todd's special needs and the relative caregivers provided the structure and stimulation both children required. She supported a plan of adoption. The social worker in Bianca's case recommended guardianship. She testified Bianca said she enjoyed visits with the mother, but did not want to live with her.

The paternal grandmother testified she had been caring for the boys for 16 months and was willing to adopt them. She said the boys' aggressive behaviors had stopped after visits with the mother ended in July 2005.

Todd's therapist testified that at the beginning of his therapy Todd kicked and spit on the therapist and he was more aggressive after visits with the mother. During play therapy a repetitive theme was a bad object, usually a woman, who was trying to hurt him.

The supervisor of three visits in the summer of 2005 testified that Todd was very aggressive on the way to visits, kicking and screaming in the car, and neither boy wanted to leave the paternal grandmother. On the way home both children were calm and happy. A social worker who observed two other visits testified the first was pleasant, but the mother had difficulty managing Todd. For the second visit, Todd did not want to go, and, at the end of the visit, the boys separated easily from the mother.

The court denied the section 388 petitions. It chose a permanent plan of guardianship for Bianca. It terminated parental rights to Todd and Daniel, finding they were likely to be adopted and none of the statutory exceptions applied. It referred the matter to the Agency for Todd and Daniel's adoptive placement.

DISCUSSION

I

Both parents contend the court erred in denying their section 388 petitions. The parents have not shown an abuse of discretion.

Section 388 provides in part:

"(a) Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstances or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of the court previously made or to terminate the jurisdiction of the court . . . ." [¶] . . . [¶]

"(c) If it appears that the best interests of the child may be promoted by the proposed change of order . . . the court shall order that a hearing be held . . . ."

In order to gain the relief sought in a section 388 petition, the petitioner must show both a change of circumstances or new evidence and that the change sought is in the child's best interests. (§ 388; Cal. Rules of Court, rule 1432(c); In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) "It is not enough for a parent to show just a genuine change of circumstances under the statute[;] [t]he parent must [also] show that the undoing of the prior order would be in the best interests of the child." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) A petition is liberally construed in favor of its sufficiency. (In re Angel B.(2002) 97 Cal.App.4th 454, 461.) The petitioner bears the burden of proof, however, to make both showings. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) A reviewing court will not disturb a court's ruling in a dependency proceeding " ' "unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]." ' " (Id at p. 318, quoting In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.)

We first discuss the mother's claim that Bianca is included as a part of her appeal because she listed her as a subject of her section 388 petition and her notice of appeal indicates she is appealing the denial of her section 388 petition. We note that only Todd and Daniel, and not Bianca, are named as subjects on the mother's notice of appeal. We also observe that during the hearing on the section 388 petitions, the mother's counsel stated the mother was willing to submit to the court's discretion regarding a recommendation that Bianca be placed in guardianship. Moreover, Bianca, who was 12 years old at the time of the hearing, expressed her desire to stay in her foster home, saying she enjoyed visits with the mother, but specifically stating she did not want to return to live with the mother. The mother agreed Bianca had not said she wanted to go home with her. Even were we to consider the mother's argument the court erred in denying her section 388 petition concerning Bianca, she has made no showing of a change of circumstances or that Bianca's best interests would be served by granting the petition.

The court also did not err in finding there had been no showing of a change of circumstances or that granting the relief requested would be in Todd and Daniel's best interests. Although both parents had completed 52-week domestic violence programs, had additional therapy and had finalized their divorce, they did not show significant changes. Both of them had difficulty putting into practice the skills they had been taught in their domestic violence programs. The mother continued to minimize the violence and denied initiating it. The parents remained in contact. The mother's therapist did not recommend returning the children to the mother. The psychologist who completed the most recent evaluations of both parents also cautioned against placement with either parent.

The boys were doing well in the home of their paternal grandparents, who were able to meet their special needs and were willing to adopt them. At the time of the hearing, Todd was four years old and Daniel was two. They had been out of the parents' care for more than two years and needed a stable permanent home. The court did not abuse its discretion in denying the petitions.

II

Each parent also asserts the court erred in not applying the beneficial parent-child relationship exception to adoption of section 366.26, subdivision (c)(1)(A), with regard to Todd and Daniel. The parents have not shown error.

Adoption is the permanent plan favored by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If a child is found to be adoptable it becomes the parents' burden to show termination of parental rights would be detrimental because one of five specified exceptions listed in section 366.26, subdivision (c)(1), exists. (In re Autumn H., supra, 27 Cal.App.4th at p. 574.) Under the exception in section 366.26, subdivision (c)(1)(A), the parent must show termination would be detrimental in that "[t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."

In reviewing whether sufficient evidence supports the trial court's finding, the appellate court reviews the evidence in the light most favorable to the court's order, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H, supra, 27 Cal.App.4th at p. 576.)

In In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, the court noted "[c]ourts have required more than just 'frequent and loving contact' to establish the requisite benefit for [the exception of section 366.26, subdivision (c)(1)(A)]." "The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (In re Autumn H, supra, 27 Cal.App.4th at p. 575.)

Substantial evidence supports the court's finding the beneficial relationship exception of section 366.26, subdivision (c)(1)(A), did not apply. The father did not have regular visits with the boys. The mother visited regularly until the end of the summer of 2005, when visitation was discontinued because the evidence showed it was having a detrimental effect.

Moreover, neither parent showed a parent-child relationship that was so beneficial that termination of parental rights would be detrimental to the children. During the long dependency period, the boys had relied on others to care for them. Visits continued to be supervised. Todd said he did not want to live with the mother, saying, " '[o]nly visit, no live,' " and his therapy revealed he wanted protection from a " 'bad mommy.' " The boys needed stability. Even after many months of services, the parents' psychological evaluations indicated risks that they would continue to be violent. The court did not err in not finding the beneficial parent-child relationship exception to adoption of section 366.26, subdivision (c)(1)(A).

DISPOSITION

The judgments and orders are affirmed.

NARES, J.

WE CONCUR:

McCONNELL, P. J.

AARON, J.

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