In re I.M.
Filed 10/1/13 In re I.M. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re I.M., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO
COUNTY CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
A.M.,
Defendant and Appellant.
E058647
(Super.Ct.No. J233243)
OPINION
APPEAL from the Superior
Court of
Bernardino County.
Cheryl C. Kersey, Judge.
Affirmed.
Megan Turkat-Schirn, under appointment by the
Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle, County
Counsel, and Jamila Bayati, Deputy
County Counsel, for Plaintiff and Respondent.
A.M. (mother) appeals from an order terminating
parental rights to her preschool-aged son I.M. (sometimes child). She argues that the juvenile court should
have applied the “beneficial parental relationship†exception to
termination. (Welf. & Inst. Code,
§ 366.26, subd. (c)(1)(B)(i).) She
also appeals from an order made at the same hearing denying her “changed
circumstances†petition pursuant to Welfare and Institutions Code section 388
(section 388). We find no error. Hence, we will affirm.
I
FACTUAL AND PROCEDURAL
BACKGROUND
In May 2010, when I.M. was four months old, he
was admitted to Loma Linda
University Medical
Center with symptoms of liver
failure. His treating physician believed
that he needed a liver transplant and recommended diagnostic surgery (including
a liver biopsy) to confirm this.
The mother was argumentative and
uncooperative. She wanted to take the
child home, against medical advice. She
refused to consent to the diagnostic surgery, even though she was told that
I.M. could die if not treated properly; she “showed more concern about the scar
from the procedure than the child’s health.â€
She asked a nurse to take out the child’s intravenous line (IV); the
nurse refused. “A few minutes later,†it
was found that the IV had been removed.
The mother claimed that the child did it himself.
When a social worker interviewed the mother, she
claimed that “all [the] doctors, nurses, and staff had it in for her, and were
all lying about her.†“She believed
there was nothing wrong with [I.M.], and . . . the doctors were using
him to experiment on.†She also accused
the social worker of “watching her from
outside of her house . . . .â€
The social worker’s investigation revealed that
the mother had a history of mental illness and drug abuse. She had a prior conviction for child
endangerment. Two of her older children
had been removed from her custody — one voluntarily (i.e., in a guardianship)
and one involuntarily (i.e., in a dependency).
In June 2010,
Services (Department) detained I.M. and filed a juvenile dependency
petition concerning him.
name="_ftnref2" title="">[2]
The full name and the whereabouts of I.M.’s
father were unknown and remained unknown throughout the dependency.
While awaiting a liver transplant, I.M. was
released from the hospital and placed in a foster home for medically fragile
children.
In July 2010, the mother “got into a physical
altercation†with her boyfriend’s ex-girlfriend. As a result, she was arrested for assault
with a deadly weapon. In August 2010,
pursuant to a plea bargain, she pleaded guilty to an unspecified charge
(possibly battery) and was placed on probation.
In September 2010, I.M. received a liver
transplant.
In October 2010, at the
jurisdictional/dispositional hearing, the mother submitted on the social
worker’s reports. The juvenile court
found that it had jurisdiction based on failure to protect (Welf. & Inst.
Code, § 300, subd. (b)) and, solely as to the father, failure to support (
custody.
While there were no further reports of the mother
being delusional, she seemed “to need constant guidance and reassurance when
completing simple tasks and in the everyday decision making process.†There were concerns that she did not
understand the severity of I.M.’s condition.
According to a psychological evaluation, she tended to blame others and
to minimize her own responsibility.
“[S]he . . . exhibit[s] overly valued ideas in which she is
heavily invested, that border on delusional beliefs, and she appears to deny,
in an unconscious manner, past realities that inconveniently conflict with her
current presentation.†She had
“narcissistic-like tendencies to . . . become preoccupied with her
own needs at the expense of concern about the needs of others.†She had an “oppositional tendency†due to
“underlying feelings of anger and resentment . . . .†She was likely to be “overwhelmed†by caring
for a child like I.M.
The mother and the foster mother had a “strained
relationship.†The foster mother did not
keep the mother informed about I.M.’s condition. She was highly critical of the mother’s
ability to provide medical care for I.M.
For example, she complained that the mother could not administer his
medication without referring to her notes.
However, the foster mother also refused to train the mother in the
mother’s home (because she did not feel safe or comfortable there), in her own
home (because the mother had a criminal record), or in the Department’s office
(because it was unsanitary).
As a result of this tension, in October 2011,
I.M. was moved to a different foster home (also for medically fragile
children). With the first foster mother
out of the picture, the mother started to make better progress toward
reunification. In December 2011, she
began having unsupervised overnight and weekend visits. She was described as “proficient†in managing
I.M.’s medical care. Thus, in April
2012, I.M. was placed with the mother on an “extended visit.â€
Later in April 2012, however, during an argument,
the mother hit her boyfriend in the mouth, giving him a split lip. She was arrested for inflicting corporal
injury on a cohabitant. (Pen. Code,
§ 273.5, subd. (a).) The child was
placed back in his foster home. The
mother pleaded nolo contendere and was released on probation.
In May 2012, at the 18-month review hearing, the
juvenile court terminated reunification services. It did not set a hearing pursuant to Welfare
and Institutions Code section 366.26 (section 366.26), but only because there
were, as yet, no identified prospective adoptive parents.
In October 2012, the mother gave birth to another
child, who was immediately removed from her custody and became the subject of a
separate dependency.
Meanwhile, in October 2012, prospective adoptive
parents were located. In December 2012,
after a two-week “integration period,†I.M. was placed with them. Accordingly, also in December 2012, the
juvenile court set a section 366.26 hearing.
Two days before the date set for the section
366.26 hearing, the mother filed a section 388 petition. The juvenile court set a hearing on the
petition for the same date as the section 366.26 hearing. It specified that the hearing would be for
argument as to whether the petition made a prima facie case — i.e., it would
not be an evidentiary hearing.
In April 2013, at the combined hearing, after
hearing argument, the juvenile court denied the section 388 petition. It then found that I.M. was adoptable and
that there was no applicable exception to termination. Accordingly, it terminated parental rights.
II
SECTION 388 PETITION
The mother contends that the juvenile court erred by
denying her section 388 petition without an evidentiary hearing.
A. Additional Factual and
Procedural Background.
In her section 388 petition, the mother asked the
juvenile court to vacate the order setting a section 366.26 hearing and to
return I.M. to her custody.
As changed circumstances, she alleged that she had
completed a parenting class, counseling, and a medical assistant training
program. She also alleged that she had
“benefit[ed]†from anger management and domestic violence classes.
After hearing argument, the trial court denied
the section 388 petition. It explained
that “the request does not state new evidence or a change of circumstances
. . . .â€
B. Analysis.
“A juvenile court order may be changed, modified
or set aside under section 388 if the petitioner establishes by a preponderance
of the evidence that (1) new evidence or changed circumstances exist and (2)
the proposed change would promote the best interests of the child. [Citation.]
The parent bears the burden to show both a legitimate change of
circumstances and that undoing the prior order would be in the best interest of
the child. [Citation.]†(In re
A.A. (2012) 203 Cal.App.4th 597, 611-612 [Fourth Dist., Div. Two].)
“Section 388 petitions ‘are to be liberally
construed in favor of granting a hearing to consider the [petitioner]’s
request. [Citations.] The [petitioner] need only make a prima facie
showing to trigger the right to proceed by way of a full hearing.’ [Citation.]
‘A “prima facie†showing refers to those facts which will sustain a
favorable decision if the evidence submitted in support of the allegations by
the petitioner is credited.’
[Citation.]†(
141; see also § 388, subd. (d).)
“The petition is addressed to the sound
discretion of the juvenile court, and its decision will not be overturned on
appeal in the absence of a clear abuse of discretion. [Citation.]â€
(In re A.A.,
p. 612.) “ . . .
‘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.’ [Citation.]â€
(In re Stephanie M.
(1994) 7 Cal.4th 295, 318-319, original quotation marks corrected.) “‘The denial of a section 388 motion rarely
merits reversal as an abuse of discretion.’
[Citation.]†(
Cal.App.4th 1438, 1445.)
The order that the mother was asking to change —
the order setting a section 366.26 hearing — had been issued in December
2012. At that point, the mother had
already completed her medical assistant training program (in April 2012) and
counseling (in September 2012).
Admittedly, she had not yet completed her parenting class, which she
ultimately completed in February 2013.
However, this class was not particularly relevant to the underlying
causes of her failure to reunify with I.M. — most significantly, it was not
relevant to anger management or domestic violence, which had derailed I.M.’s
extended visit.
The mother did claim, “I really did benefit from
my . . . anger[ ]management, as well as domestic v[iol]ence
classes.†However, she did not say when
she took these classes or whether she had completed them. Rather conspicuously, her petition included a
certificate of completion for her parenting classes, but not for any other
classes.
At the hearing on the petition, the mother’s
counsel offered to call her counselor to testify that she was “dealing with the
issue of domestic violence . . . .â€
to prove that the mother had successfully completed this additional counseling.
The mother argues that the very fact that she had
not had any “angry outbursts†since April 2012 was a changed circumstance. However, nearly two years had elapsed between
her arrest for assault in July 2010 and her arrest for domestic violence in
April 2012. A lapse of just one year was
insufficient to constitute a meaningful changed circumstance.
In sum, then, her petition showed, at most, that
her circumstances were changing, rather than changed. (See In
re Mickel O. (2011) 197 Cal.App.4th 586, 615 [“[T]he petitioner must
show changed, not changing,
circumstances.â€].)
Finally, the mother complains about the fact that
the juvenile court did not conduct an evidentiary hearing. However, precisely because her petition
failed to make out a prima facie case, it was not required to do so. (In re
Marcelo B. (2012) 209 Cal.App.4th 635, 641-642.)
III
BENEFICIAL PARENTAL
RELATIONSHIP EXCEPTION TO TERMINATION
The mother contends that the juvenile court
should have found that the “beneficial parental relationship†exception
applied. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).)
A. Additional Factual and
Procedural Background.
The evidence before the juvenile court at the
section 366.26 hearing consisted of one particular social worker’s report, plus
the oral testimony of the mother and of the social worker. We confine our review to this evidence (see
Welf. & Inst. Code, § 366.26, subd. (c)(1)), which showed the
following.
When I.M. was initially removed from the mother’s
custody, he was about five months old.
At the time of the section 366.26 hearing, he was three years old.
In December 2012, I.M. had been placed with
prospective adoptive parents, the K.’s.
He was “thriving†in their home.
He called them “Mama†and “Daddy.â€
He would “seek[] out Mr. or Mrs. K. for all of his emotional
needs . . . .†They
appeared to have “an in-depth understanding of their role in providing [for
his] medical needs . . . .â€
I.M. was friendly, outgoing, and polite. However, he had some “issues†with tantrums
(possibly due to a medication he was taking).
The K.’s had learned how to “redirect†him, “and this ha[d] proven to
not only decrease the intensity of the tantrums, but ha[d] also resulted in a
drastic decrease in the[ir] frequency . . . .â€
Before I.M. was placed with the K.’s, the mother
had had weekly supervised visitation.
After the placement, she had supervised visitation twice a month, for
two hours at a time. She had missed only
one visit.
Usually, when I.M. first saw the mother, he would
ask if she had brought him something to eat.
She would bring him candy and cookies; often, he would eat too much of
these, resulting in a stomach-ache.
During visits, she would play with him, read to
him, and watch videos with him. I.M.
appeared to enjoy the visits. He called
the mother “A[.]-mom†or just “A[.]†He
seemed happy to see her. However, he
appeared equally happy to see the social worker. If he was hurt or angry or needed comfort, he
sought out the K.’s, not the mother.
The K.’s reported that, after visits, I.M. went
through “a period of more tantrums and whining behaviors.â€
The juvenile court found that the mother had
maintained regular visitation and contact, but that I.M. would not benefit from
continuing the relationship: “[T]he
child has bonded to the [prospective adoptive] parents, and . . . the
mother here has not occupied a parental role with this child, and it is more
like a visitor-type relationship.
Obviously, he is happy to see [her], like he is happy to see the social
worker, but it is not something that I can look at and say that there is a
bond, parent and child.â€
B. Analysis.
As a general rule, at a section 366.26 hearing,
if the juvenile court finds that the child is adoptable, it must terminate
parental rights. (Welf. & Inst.
Code, § 366.26, subds. (b)(1) & (c)(1).) There is an exception to this rule, however,
if “[t]he court finds a compelling reason for determining that termination
would be detrimental to the child†(id.,
subd. (c)(1)(B)) for one of six specified statutory reasons. (Id.,
subd. (c)(1)(B)(i)-(vi).) One such
reason is that “[t]he parents have maintained regular visitation and contact
with the child and the child would benefit from continuing the
relationship.†(Id., subd. (c)(1)(B)(i).)
“The ‘benefit’ prong of th[is] exception requires
the parent to prove his or her relationship with the child ‘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.’ [Citations.]â€
(In re K.P. (2012) 203
Cal.App.4th 614, 621.) “‘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.’ [Citation.]†(In re
Michael G. (2012) 203 Cal.App.4th 580, 594.)
“[T]he parent must show more than frequent and
loving contact, an emotional bond with the child, or pleasant visits — the
parent must show that he or she occupies a parental role in the life of the
child. [Citation.]†(In re
I.W. (2009) 180 Cal.App.4th 1517, 1527.)
“‘Interaction between natural parent and child will always confer some
incidental benefit to the child. The
significant attachment from child to parent results from the adult’s attention
to the child’s needs for physical care, nourishment, comfort, affection and
stimulation. [Citation.] The relationship arises from day-to-day
interaction, companionship and shared experiences. [Citation.]
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.’
[Citation.]†(
Cal.App.4th 922, 936.)
“‘The burden falls to the parent to show that the
termination of parental rights would be detrimental to the child under one of
the exceptions. [Citation.]’
[Citations.]†(In re C.B. (2010) 190 Cal.App.4th 102, 122.)
The existence of a beneficial parent-child
relationship is a factual issue; we review the trial court’s findings on this
issue for substantial evidence. (
Cal.App.4th 1308, 1314-1315.) ‘“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.†[Citation.]’
(In re C.F. (2011) 193
Cal.App.4th 549, 553.) Thus, ‘a
challenge to a juvenile court’s finding that there is no beneficial
relationship amounts to a contention that the “undisputed facts lead to only
one conclusion.†[Citation.] Unless the undisputed facts established the
existence of a beneficial parental . . . relationship, a substantial
evidence challenge to this component of the juvenile court’s determination
cannot succeed.’ (Bailey J., supra, at
p. 1314.)
The mother argues that there was substantial
evidence that the beneficial parental relationship exception applied. This turns the standard of review on its
head. The issue is whether there was
substantial evidence that the exception did not
apply. As we will discuss, there was.
I.M. called the prospective adoptive mother
“Mamaâ€; he called the mother by her first name (sometimes, but not always,
adding “Momâ€). If he needed comfort, he
went to the K.’s, not to the mother.
While he seemed happy to see the mother, he seemed equally happy to see
the social worker. After visits, he
engaged in more tantrums and more whining.
The juvenile court could properly find that the mother was, at most, a
friendly visitor. Taken together, this
added up to substantial evidence that it was the K.’s, and not the mother, who
played the parental role in I.M.’s young life.
The mother argues that, earlier in the case, I.M.
had had extended unsupervised visits with her, including overnights, with no
apparent problems. However, she did not
introduce any evidence of this at the
section 366.26 hearing. In any event,
the juvenile court could properly give more weight to recent visits than to
visits over a year earlier.
Finally, the mother also argues that the juvenile court
should have considered legal guardianship, rather than adoption, as the
permanent plan. However, unless it found
that one of the statutory exceptions to termination applied, it simply had no
authority to do so. (See Welf. &
Inst. Code, § 366.26, subd. (c)(1) [“the court shall terminate parental
rights unless [an exception] applies . . . .â€].)
IV
DISPOSITION
The orders appealed from are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We
concur:
McKINSTER
Acting P. J.
MILLER
J.
name="_ftn1" title="">[1] The facts in the preceding two
paragraphs are according to the report for the detention hearing.
According to the report for the jurisdictional/dispositional
hearing, however, which was prepared by a different social worker, the mother
flatly denied these asserted facts. She
gave a lengthy and detailed account of her efforts to attend diligently to
I.M.’s medical needs. To the extent that
the second social worker was able to contact the medical professionals
involved, they confirmed the mother’s account.
Moreover, the second social worker “ha[d] consistently observed the
mother . . . to be respectful, of appropriate affect and mood, and
ha[d] not witnessed any paranoia, incoherence, or delusion[al] thought.â€
Nevertheless, because the mother had a history of mental
health issues, and because both the original social worker and hospital staff
reported that the mother had displayed “paranoia,†“delusion,†and “‘bizarre’
and ‘incoherent’ behaviors,†the second social worker concluded that there had
been “medical neglect†and that I.M. had to be removed from the mother’s
custody to ensure his safety.
The mother also told the second social worker that “she
was in agreement with the allegations [of the petition] and . . . she
understands the Department’s concern for the well[‑]being of [I.M.]
. . . .â€
name="_ftn2" title="">[2] The mother also had a two-year-old
daughter, who was detained at the same time and made the subject of a separate
dependency. She is not a party to this
appeal.
