In re C.H.





Filed 9/30/11 In re C.H. CA4/1






NOT TO BE PUBLISHED IN OFFICIAL REPORTS


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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re C.H., JR., et al., Persons Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. RACHEL B. et al., Defendants and Appellants.	D059641 (Super. Ct. Nos. EJ3169A-B)

APPEALS from judgments of the Superior Court of San Diego County, Ronald F. Frazier, Judge. Affirmed.
C.H., Sr. (C.H.) and Rachel B. appeal juvenile court judgments terminating their parental rights to their son, C.H., Jr., (C.H.Jr.) and their daughter, F.H., and choosing adoption as the preferred permanent plan. (Welf. & Inst. Code, § 366.26.)[1] The parents contend the court erred by denying their petition for modification under section 388, and insufficient evidence supports the court's finding that the beneficial parent-child relationship exception to the adoption preference (§ 366.26, subd. (c)(1)(B)(i)) is inapplicable. We affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2009 the San Diego County Health and Human Services Agency (the Agency) took C.H.Jr. and F.H., who were then four years old and 15 months old, respectively, into protective custody. The Agency filed petitions on behalf of the children under section 300, subdivision (b), alleging they were at substantial risk of serious physical harm because they had been exposed to incidents of domestic violence between the parents, a voluntary plan had been created, and Rachel failed to follow through with a restraining order against C.H. and had returned to the family home.
The petitions were based on two particular incidents. In July 2009 the parents had an argument over Rachel's wallet. Rachel went to the backseat of the car where C.H.Jr. was in his car seat. When she attempted to remove him from the seat, C.H. grabbed one of his legs so he would remain in the car. Multiple scars were later found on C.H.Jr.'s body, and he reported his father hit him with a belt. The Agency opened a voluntary service case for the family. In October 2009 the children were at home when the parents got into an argument. C.H. slapped Rachel, and she phoned 911 and locked herself in the bathroom. C.H. broke the door open and slapped her some more. C.H.Jr. was scared and crying.
Rachel reported to the Agency a six-year history of domestic violence. She also reported that C.H. called her "dirty" names in front of the children, and called her "stupid," "useless," and "worthless compared to his other girlfriend." Rachel hid all the knives in the home because whenever she and C.H. argue "he likes to 'go for' the knives." A next door neighbor reported "she heard yelling all the time between the parents," and they "would scream at the top of their lungs and the children could be heard crying." The neighbor also heard items being thrown against the wall. The neighbor called the police three to four times because of the fighting. The apartment manager reported that tenants complained about the fighting, and police came six or seven times. C.H.Jr. reported that his father hit his mother on the legs with a knife.
C.H. denied engaging in any domestic violence. He denied that the children had ever even seen the parents argue.
The parents appealed the jurisdiction and disposition orders. We affirmed the orders based on substantial supporting evidence. We concluded "the parents had a six-year history of domestic violence," and to the extent they "participated in services, they had not yet gained an understanding of the detrimental effects of domestic violence on their children. Rather, the parents simply denied that any domestic violence had occurred, despite strong evidence to the contrary."
The Agency's August 2010 report for the six-month review hearing states there was ongoing domestic violence by C.H. Rachel reported that in the preceding six months, C.H. had hit her five or six times in the head; gave her a bloody nose; hit her when she wore traditional African clothing and forced her to change clothes; ripped up all her clothes; scratched F.H.'s cheek, leaving a two-inch mark, in an attempt to hit Rachel; frequently called Rachel a bitch; threatened to kill her if she called the police; and threatened that if he went to jail he would kill everyone involved in the dependency case when he was released.
Rachel had obtained a restraining order against C.H., but the social worker was concerned the parents had reunited. They had been seen together several times and there were reports that indicated they were living together. Neighbors of C.H. reported that in July 2010 Rachel "came out of the apartment with [him] chasing her. [She] then squatted on the sidewalk in a 'duck and cover' position with her hands over her head. [He] grabbed [her] by the back of the neck and punched her in the head with a clenched fist." C.H. had told the children's caregiver "that he and [Rachel] were, 'playing a game' with the Agency by pretending to be apart, but they intended to reunite after the children were returned to them."
The report also explains that Rachel's therapist "has reported repeatedly that [Rachel] does not internalize the significance of the danger to herself and her children in her current relationship with [C.H.]. For most of the sessions [she] discounted or minimized the anger or threat of violence from [him]." Rachel revealed to her therapist that domestic violence "has occurred throughout the case," C.H. "continuously punched, slapped her and threatened her," and he held a knife to her throat when she refused to have sex. The therapist believed the parents continued to see each other.
In June 2010 Rachel missed three out of four therapy sessions, and she missed a session in August. She completed a parenting education class. She "required coaching in playing with her children and watching them to make sure they were engaged in safe activities. On several occasions [she] gave [F.H.] food that could have caused her to choke and then . . . walked away from her. On one occasion [F.H.] did choke." The parenting program did not assess Rachel's ability to protect the children from domestic violence.
C.H.'s initial therapist terminated his services after two sessions. The therapist believed he was not amenable to therapy; he would not benefit from therapy, particularly if it was provided by a white person or a female; he "is verbally combative and attempts to be demeaning"; he "does not recognize his anger, but minimizes, justifies, blames and denies his words and actions"; and he denied all domestic violence incidents. Another therapist refused to accept C.H. as a client after speaking with his initial therapist. He finally began therapy, but he had missed two sessions. The therapist reported that C.H. was combative, but progress was being made. C.H. completed a parenting and domestic violence program, but he did not accept any responsibility for violence and named Rachel as the problem. He refused to attend another parenting program the social worker suggested, which may have increased his visits with the children. He advised the social worker that if the children were returned to Rachel, he wanted to reunite with her after this case is closed.
At a contested six-month review hearing in October 2010, the court terminated reunification services and set a permanency planning hearing under section 366.26. The parents filed notices of intent to petition for writ relief, but they later notified us they would not file petitions because there were no viable issues for review.
In its assessment report, the Agency recommended the termination of parental rights and adoption as the preferred permanent plans. The report describes C.H.Jr. as a handsome boy who is outgoing and talkative, and F.H. as a beautiful girl who is somewhat shy but affectionate and playful. Both children were developmentally on track and neither had any medical problems. The children's caretaker wished to adopt them, and numerous other prospective adoptive families were also available for one or both children.
In February 2011 Rachel gave birth prematurely to a son. He is the subject of a separate dependency action, in which C.H. is named as the father. At the hospital, C.H. displayed "controlling behavior" by, for example, speaking for Rachel; was "verbally aggressive" with the nurses; and, insisted on a paternity test even after being told the hospital performed no such testing. Both parents falsely represented to the hospital that they had custody of F.H.
In March 2011 the parents filed petitions under section 388 for modification of the orders terminating reunification services for C.H.Jr. and F.H. and scheduling a section 366.26 hearing. Since January, the parents had attended five joint counseling sessions with Sam Bruno, MFT, at their own expense, to work on issues of domestic violence.
In April 2011 the court held an evidentiary hearing and denied both section 388 petitions.[2] The court then immediately held a section 366.26 hearing, in which it found by clear and convincing evidence that the children are adoptable and none of the statutory exceptions to adoption is applicable. The court terminated all parental rights and found adoption is in the children's best interests.
DISCUSSION
I
Section 388 Petition
The parents contend the court improperly denied their petitions under section 388 to modify the orders terminating reunification services and selecting adoption as the appropriate permanent plans. They assert the court should have returned the children to their custody, or alternatively, provided additional reunification services so the family could be preserved.
Under section 388, the juvenile court has authority to modify or set aside any order. " '[T]he [party] requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is a preponderance of the evidence. [Citation.]' [Citation.] Determination of a petition to modify is committed to the sound discretion of the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld." (In re S.R. (2009) 173 Cal.App.4th 864, 870.) " ' ["]The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. " ' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
"Not every change in circumstance can justify modification of a prior order. The change in circumstances must relate to the purpose of the order and be such that the modification of the prior order is appropriate." (In re S.R., supra, 173 Cal.App.4th at p. 870.) Further, "[i]t is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must 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.)
In evaluating whether a petitioner under section 388 has met his or her burden, "the trial court should consider: '(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.' " (In re B.D. (2008) 159 Cal.App.4th 1218, 1229; In re Kimberly F., supra, 56 Cal.App.4th at p. 532.)
As to the first factor, C.H.Jr. and F.H. were removed from the home because of their exposure to serious domestic violence. The parents had a six-year history of domestic violence, and their section 388 petitions were based on only seven joint therapy sessions with therapist Bruno between January and April 2011. Bruno's March 5, 2011, report, notes C.H. has an "intense, chaotic interpersonal relationship" with Rachel, and they have a "history of verbal arguments, name calling and domestic violence" in the children's presence. Bruno believed C.H. was becoming more engaged in therapy and "is trying to understand how to cope with the children's mother in a safe and appropriate manner." (Italics added.) Bruno also believed that "[b]oth parents are beginning to show that they are learning to recognize the gradations of anger and when to intervene with [the] other partner for maximum effectiveness." (Underlining omitted, italics added.)
In a brief April 11, 2011 update, Bruno reported that the parents were making good progress in their therapy, as evidenced by improved "anger control skills used at home"; working on "understanding each other[']s differences and accepting them"; learning "to take a time out[] to cool off when they are upset"; and improving "levels of working together as a co-parenting team for the best interest[s] of their children."
In opposing the petitions, the Agency pointed out that in late February 2011, when the parents were in joint therapy with Bruno, a social worker saw Rachel with a black eye. Rachel gave the social worker various conflicting reasons for the injury, including, that it was caused by medication, a fall from a cot, and a bug bite. Given Rachel's propensity for being untruthful during these proceedings, the social worker was concerned that C.H. may have caused the injury. The record also shows that when the parents were in joint therapy, C.H. continued to deny to the Agency that he ever physically abused Rachel.
In finding the parents had not met their burden, the court explained: "While the court acknowledges efforts have been made, and some improvement has been made, the court feels that it is very, very ambiguous given the events of February 2011 as to the . . . mother. [¶] The court finds that the social worker's observation of a bruised eye on the mother to be credible as the reviewing reporter, and the mother, again, as . . . in the past, has been inconsistent with her testimony. [¶] The court previously found this mother to recant her testimony in terms of the initial events. [¶] The court does not find the mother to be credible in her testimony or her version of the events as indicated in the reports."
In other words, the court made a factual finding it was probable that domestic violence continued even when C.H. and Rachel were in joint therapy, and despite Bruno's opinion that they were gaining insight and in the process of changing their behavior.[3] We do not reassess the credibility of witnesses (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113), and thus, we defer to the court's finding that joint therapy did not constitute a sufficient changed circumstance. Rachel asserts the court's finding on her black eye is sheer speculation. The court, however, could reasonably infer from her history of dishonesty and conflicting stories on the cause of the injury that she was covering up ongoing domestic violence.
Moreover, even without considering Rachel's black eye, we would conclude that the first factor favors the court's ruling. The parties have a six-year history of domestic violence, and they had only had a few joint therapy sessions with Bruno. They were in the early stages of addressing their problems. Further, as late as March 2011, when the parents were in joint therapy, C.H. continued to deny to the Agency that he ever physically abused Rachel.
As to the second element, the evidence does not show a parent-child bond that is particularly strong. As discussed below, we affirm the court's finding that it is insufficient to trigger the beneficial parent-child relationship exception to adoption. The children's caregiver, who wishes to adopt them, reports that since placement in January 2010 "she has grown attached to both children . . . and has difficulty envisioning her life without them. She states that she has developed a significant bond to each of them and wishes to adopt the children to offer them stability, safety, and permanence." The social worker observed the children "on many occasions seeking comfort and nurturance from their caregiver when they display both happiness and sadness." At most, factor two is neutral.
As to the third factor, there is no suggestion that a long-term pattern of domestic violence may be easily removed or ameliorated. While perhaps the parents' circumstances were beginning to change, they were not changed, and at this stage in the proceedings the court could reasonably find modification would not be in the children's best interests given their strong and immediate need for stability. (See In re Casey D. (1999) 70 Cal.App.4th 38, 49.) Under all the circumstances, we cannot say the court's ruling was " ' "arbitrary, capricious, or patently absurd," ' or that no reasonable court would have ruled the same way." (In re S.A. (2010) 182 Cal.App.4th 1128, 1139.)
II
Beneficial Parent-Child Relationship Exception
Additionally, Rachel and C.H. challenge the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception to adoption is inapplicable. "On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order." (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
Adoption is the Legislature's preferred permanent plan. (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) At a section 366.26 hearing, the court must terminate parental rights and free the child for adoption if it determines by clear and convincing evidence the child is adoptable within a reasonable time, and the parents have not shown that termination of parental rights would be detrimental to the child under any of the statutory exceptions to adoption found in section 366.26, subdivision (c)(1)(B)(i) through (vi). (In re Asia L. (2003) 107 Cal.App.4th 498, 510.) One exception to adoption applies if termination of parental rights would be detrimental to the child because the "parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).)
The Agency does not dispute that the parents maintained regular visitation and contact with C.H.Jr. and F.H. As to the second prong of the test, this court has interpreted the phrase "benefit from continuing the relationship" in section 366.26, subdivision (c)(1)(B)(i) to refer to a "parent-child" relationship 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 other words, the 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 Autumn H., supra, 27 Cal.App.4th at p. 575.)
A parent must show more than frequent and loving contact or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from the day-to-day interaction, companionship and shared experiences." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)[4] The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment between child and parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
Further, to establish the section 366.26, subdivision (c)(1)(B)(i) exception the parent must show the child would suffer detriment if his or her relationship with the parent were terminated. (In re Autumn H., supra, at p. 575.)
We conclude substantial evidence supports the court's ruling. The Agency's assessment report states: "It has been an ongoing theme during their visits that [the parents] each lose track of one of their children who wanders off. It appears that [C.H.Jr.] and [F.H.] view each visit with their biological parent to be that of a playmate or relative than of a mother or father. Each visit, the children are given treats and snacks they look forward to, although the interaction and physical playtime seems to be ignored by each parent. It is highly concerning to the Agency that neither parent appears to be fully committed to the overall safety of [the children]. . . . Both [children] need someone who is willing to provide them with permanency, stability, and an environment that is free from violence."
The report elaborates that during a February 2011 visit Rachel stuffed two chewable candies in F.H.'s mouth and was unaware the child was struggling to close her mouth and chew. After the social worker pointed to F.H., Rachel told F.H. to spit out the candy. Several times, Rachel was unaware of the whereabouts of one child or the other. At the end of the visit, neither child displayed any distress. In a March visit, Rachel lost track of F.H. several times. While Rachel was attending to F.H., C.H.Jr. wandered out of her sight and climbed onto a six-foot ledge. Again, the children were not upset when the visit was over. Rachel canceled two visits in March.
In a March visit with C.H., the children played on an outdoor structure at McDonald's while he sat down and watched them. C.H.Jr. tried to engage his father, but C.H. gave him no attention. C.H.Jr. went into McDonald's and out of C.H.'s sight without his knowledge several times. C.H. ended the visit 10 minutes early, and neither child displayed any distress. C.H. also canceled two visits in March. According to C.H.Jr.'s play therapist, he "has expressed some sadness in not living with his parents and . . . he becomes angry when his father does not show up for their visits."
The social worker, Lerone Jenkins, testified he had supervised approximately six visits for C.H. and seven separate visits for Rachel. Rachel's cross-examination of Jenkins was limited. She elicited testimony that the children enjoyed visiting her and they are aware she is their mother, even though C.H.Jr. calls her Rachel. Jenkins believed the children looked forward to visits because Rachel gave them candy, snacks, soda and ice cream.
C.H.'s cross-examination of Jenkins was also brief. Jenkins testified that the children appeared to enjoy visits with C.H., he interacted properly with the children, and he set limits with C.H.Jr. Jenkins pointed out that "there have been times during every visit where . . . [C.H.Jr.] has actually wandered into McDonald's without [C.H.'s] knowledge."
Jenkins agreed with the Agency that Rachel allowed C.H.Jr. "to do his own thing" during visits. Jenkins did not believe that either parent was able to adequately supervise both children at the same time. He advised the court the children's caretaker met their day-to-day needs, and the benefits of adoption outweighed any bonds the children had with their parents. The court agreed with that assessment.
While the parents love their children, and visits have been pleasant, they point to no bonding study or other evidence suggesting they have a parental role in the children's lives, the children would suffer any detriment on the termination of parental rights, or the benefits of continuing the parental relationship outweigh the benefits of permanent placement with an adoptive family. Under the circumstances, the children are entitled to stability and permanence with an adoptive family. "Where a biological parent . . . is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.)[5]
DISPOSITION
The judgments are affirmed.


McCONNELL, P. J.

WE CONCUR:



HUFFMAN, J.



HALLER, J.




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