In re L.M. CA4/2 ( 2015 )

Filed 9/8/15 In re L.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re L.M., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E063065
Plaintiff and Respondent, (Super.Ct.No. J255531)
v. OPINION
J.M.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Christopher B.
Marshall, Judge. Affirmed.
Christy C. Peterson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Jean-Rene Basle, County Counsel, Kristina M. Robb, Deputy County Counsel, for
Plaintiff and Respondent.
1
Appellant J.M. (mother) appeals from the juvenile court’s denial of her Welfare
and Institutions Code1 section 388 petition regarding her child, L.M. (the child). We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On July 8, 2014, the San Bernardino County Department of Children and Family
Services (CFS) filed a section 300 petition on behalf of the child, who was seven months
old at the time. The petition alleged that the child came within section 300, subdivisions
(a) (serious physical harm) and (b) (failure to protect). The petition included the
allegations that, while in mother’s custody and care; the child received an injury (a
fracture); that mother engaged in domestic violence in the presence of the child; that the
alleged father, J.G. (father),2 failed to provide care, food and shelter for the child; and
that father knew or reasonably should have known that the child was at risk of physical
abuse while in mother’s custody, but failed to protect him.
The social worker filed a detention report, which stated that CFS received a
referral alleging physical abuse and general neglect. The child was brought to the
hospital after he sustained a mid-left spiral fracture of his left humerus, which mother
reported was the result of him falling from a bed to the carpeted floor. Mother told the
hospital worker she was in the bathroom painting her nails, when she heard a “thud” and
1
All further statutory references will be to the Welfare and Institutions Code,
unless otherwise noted.
2 Father is not a party to this appeal.
2
crying. Mother said she was the only one at home at the time and said her boyfriend was
at the store. Mother found the child on the floor, with his left arm injured. When she
touched his arm, he began to cry louder, so she called 911.
The social worker met with mother at the hospital. Mother again reported that she
was the only one home when the child fell off the bed. Mother stated that no one hurt the
child and reiterated that he fell off the bed.
The social worker interviewed Dr. Adam Hutchinson at the hospital. He examined
the child upon admittance and found that the child sustained a spiral fracture to the
humerus in his left arm. It was the doctor’s opinion that the child could not have
sustained the injury from falling off the bed, since the type of injury he sustained required
excessive force. Thus, Dr. Hutchinson requested a consultation with a forensic doctor.
The next day, the social worker went to mother’s home and met with J.P.,
mother’s boyfriend. J.P. said that he was in the home when the child was injured. He
said mother was in the bathroom painting her nails, and the child was with her. J.P. then
took the child into the room with him. When they were on the bed, the child started to
cry and tried to get away from him. J.P. said he was holding the child’s leg, but once the
child started crying more, he let go. J.P. said he turned around to grab a few things, and
the child fell off the bed. He stated that he did not hurt the child. Later in the interview,
J.P. said the child was always falling and getting hurt and that mother was not a good
mother. He said he and mother argued a lot in front of the child, and when she was upset
with him, she would allow the child to get hurt (e.g., fall off the bed).
3
After interviewing J.P., the social worker talked to mother again. Mother then
admitted that she lied in the first interview. She said she was scared for her boyfriend
and did not want him to be blamed for the child’s injury. Mother said that J.P. was in the
kitchen when the child fell off the bed. She stated that she did not leave the child alone
with J.P., but was always with him.
The social worker further reported that Dr. Mark Massi examined the child and
opined that he had an oblique fracture to his left arm and that the injury was non-
accidental. He said the child could not have sustained this injury from falling off the bed
onto carpeted flooring. He also said the child had an old fracture to the ulna and radius to
his left arm, as well. That fracture occurred about one or two months prior and was in the
process of healing. Dr. Massi stated that it would take significant force for the child to
have sustained these fractures. Dr. Massi suspected physical abuse and neglect, including
nutritional neglect.
A detention hearing was held on July 9, 2014. The court detained the child in
foster care. It also ordered visitation to be twice a week.
On July 29, 2014, the social worker filed an amended section 300 petition, adding
an allegation under section 300, subdivision (e) (severe physical abuse). The amended
petition alleged that, while in mother’s custody and care, the child received an acute, left
humerus fracture.
4
Jurisdiction/disposition Report and Hearing
The social worker filed a jurisdiction/disposition report on July 28, 2014,
recommending that the court declare the child a dependent and that reunification services
be provided to mother. The social worker reported that mother said she had only left the
child alone with J.P. one time, in February 2014. She said that, after that time, the child
always seemed frightened around J.P. and would cry incessantly whenever he was around
him or tried to hold him. Mother had concerns about the child’s fear of J.P. Mother
further told the social worker that she and J.P. had a domestic violence relationship, and
he was verbally abusive most of the time. She used to stay quiet and let J.P. yell at her,
but recently, she began to argue back. They would end up yelling at each other, often in
the presence of the child. Lately, their arguments seemed to occur daily. Mother said
that on one occasion, J.P. almost hit her. Mother reportedly said at the time of removal
that she would get a restraining order against J.P.; however, as of the writing of the
report, she had not followed through.
Regarding visitation, the social worker reported that visits had gone well, the child
appeared happy to see mother, and mother was appropriate during visits.
On July 30, 2014, the court held a jurisdiction/disposition hearing. Mother denied
the allegations in the amended petition and set the matter contested. County counsel
informed the court that it was changing its recommendation to no reunification services
for mother.
5
On August 4, 2014, mother requested, and was granted, a temporary restraining
order against J.P. until the jurisdiction/disposition hearing.
The social worker filed an addendum report on August 21, 2014, recommending
that mother not be provided with reunification services, pursuant to section 361.5,
subdivision (b)(5) and (6). The social worker expressed that she was concerned with
mother’s willingness and/or ability to protect the child from future harm. During the
initial investigation, mother lied to the investigating social workers about the
whereabouts of the alleged perpetrator, J.P., in order to protect him. Mother told the
social worker that she was not protecting J.P., but in fact lied because she was afraid for
herself. The social worker was also concerned because mother admitted that she was in a
domestic violence relationship, yet continued to have J.P. in her life and around the child.
Mother ignored warning signs that J.P. may have been hurting the child. The social
worker noted that the child sustained a fracture a few months ago to the same arm, and it
went undetected and untreated.
The court held a contested jurisdiction/disposition hearing on September 4, 2014.
Mother testified at the hearing and said she and J.P. were dating and had been living
together since the time the child was born in November 2013. He started being verbally
abusive with her around January 2014. He would yell and scream at her, and he
threatened to hit her once, in front of the child. Mother testified that one or two months
before the child was removed from the home, she had left the child alone with J.P. After
that time, the child started reacting to J.P. differently. When J.P. held him, he would cry
6
more intensely and fearfully than before. Mother admitted that, on the day of the
incident, she reported to the hospital staff and social workers that J.P. was not at home
when the child was injured. Mother said she did not think J.P. had done anything to the
child, and she did not feel the need to cover for him. She said she lied simply because
she was scared and overwhelmed. When mother was confronted with J.P.’s admission
that he was at home when the incident occurred, she then told the story that he was there,
but not in the bedroom. She agreed that she said J.P. was not in the room to avert
suspicion from him. When asked why she finally admitted the truth, mother said she
realized that her lie “caught up with” her. Mother testified that she now believed J.P.
broke the child’s arm and that he caused the older fractures as well. Mother agreed there
were signs that J.P. could become violent. She said he would get agitated easily and was
very impatient. In addition, mother testified that she completed a 13-session parenting
course.
The social worker testified at the hearing, as well. She recommended no services
for mother, due to the severity of the child’s injuries. She said the child had three broken
bones, from at least two separate occasions. The social worker said that she observed one
of mother’s visits with the child, and that mother was very attentive to him and played
with him.
The court found that the child came within section 300, subdivisions (a), (b), and
(e), and declared him a dependent of the court. The court said there was no question that
there was severe, physical abuse and that there were three fractures involved. It stated
7
that two of the fractures went undetected and untreated, until the most recent humerus
fracture led to the hospital visit. The court stated there was no evidence that services
would be likely to prevent reabuse. The court noted that all it had was mother’s
testimony, but “most of it [was] a wish and the mother’s thoughts as to what she believes
can happen.” The court stated that, judging from the credibility of the witnesses, it was
very clear that mother was protecting J.P., and to some extent, was still protecting him.
The court did not believe mother when she said she did not intentionally mislead people
when she gave several different stories about the incident. As to mother’s relationship
with the child, the court noted it had evidence that the visits went well and there was an
apparent attachment. However, given the child’s age, the court did not believe the
relationship rose to the level that the failure to try reunification would be detrimental.
The court noted that, although the child had only been with the current caretaker for two
months, the placement was stable, and it addressed the need that the child had for
continuity. The court considered all the reports and testimony, and found that the burden
had not be satisfied to show that services were likely to prevent reabuse, or that the
failure to try reunification would be detrimental to the child because of the close
attachment to the parent. The court further found that the child was severely abused, and
it was not in his best interest to offer services to mother. The court denied reunification
services, pursuant to section 361.5, subdivision (b)(5) and (6), and it ordered visitation to
be one time a week. The court also set a section 366.26 hearing.
8
On December 4, 2014, CFS informed the court that the child was placed in a
concurrent planning home on December 2, 2014. He was placed in the home of his third
cousin, Eva C.
Section 366.26 Report
The social worker filed a report pursuant to section 366.26 on January 5, 2015,
and recommended that parental rights be terminated and the permanent plan of adoption
be implemented. The social worker reported that mother had supervised visits one time a
week, and the child responded well to her. Mother was appropriate during visits. The
social worker noted that, at time of the report, the child had been in his prospective
adoptive home for one week. Although the relationship was new, Eva C. (the prospective
adoptive mother), reported that she and her children were “completely in love with [the
child].” The child was making a smooth transition to his new home, and he sought out
the prospective adoptive mother frequently to be picked up briefly and then let down to
explore his environment. The prospective adoptive mother felt that she was suited to
adopt the child because she could provide him with a good home, and with a lot of love
and attention. She was committed to raising him to adulthood.
On January 9, 2015, the court held a section 366.26 hearing, and mother set the
matter contested. The court continued the hearing to March 6, 2015.
Section 388 Petition
On February 6, 2015, mother filed a section 388 petition, requesting that the court
order reunification services for her. As to changed circumstances, mother alleged that
9
she completed a 13-week parenting class and a domestic violence class. She was also
participating in counseling, and she enrolled in college. She further alleged that she had
attended all visits with the child, and they went well. As to best interest of the child,
mother alleged that she loved her son very much, and he loved her. She also felt that she
was now fit and capable of caring for the child, and that if the court did not order
services, it would be detrimental to him, since they had a close bond. Mother attached a
letter from her therapist stating that she was “on the road to recovery” and was motivated
to get back to caring for her son. The therapist reported that mother was “making steady
progress at facing up to her issues in an honest and forthright manner.”
The social worker filed a response to mother’s petition and continued to
recommend the termination of parental rights. The social worker reiterated that mother
exposed the child to J.P., even though she knew the child showed discomfort around him.
Moreover, when mother learned of the physical abuse, she did not protect the child, but
lied and covered for the perpetrator. With regard to the bond mother claimed to have
with the child, the prospective adoptive mother reported that during some of the visits,
the child would hit and bite mother and pull her hair. She also reported that, at some
visits, the child did not want to go to mother. He would not leave the prospective
adoptive mother’s side. The prospective adoptive mother further stated that the child
showed no distress when mother departed from the visits. The child was thriving in the
prospective adoptive mother’s home, and he responded well when she consoled him after
nightmares. The social worker opined that the child appeared to identify the prospective
10
adoptive mother as the primary parent, and that it was highly unlikely that he would
suffer any detriment if mother’s parental rights were terminated.
Sections 366.26/388 Hearing
The court held a contested, combined hearing pursuant to sections 388 and 366.26
on March 6, 2015. Mother testified on her own behalf. She talked about the parenting
course and domestic violence course that she had completed. She said that she did not
consider herself a victim of domestic violence before taking the class, but now she did.
She thought her relationship with J.P. was normal, but learned that the verbal and
emotional abuse and constant criticisms were considered domestic violence. Mother also
learned from her parenting class about different principles, such as attachment, empathy,
discipline, and having a healthy lifestyle. When asked how the child showed his
attachment to her, mother said she knew he felt bonded to her because of the way he
looked at her and how they played with each other. When asked how she would parent
differently now, mother said she would tend to all of the child’s needs. Mother said that
she had learned to be honest with her feelings, through her counseling sessions. When
asked whether it would be in the child’s best interests for the court to offer her services,
mother answered that it would be, since she realized she made a big mistake in failing to
protect him. She felt that if she were given services, she could get a second chance to
prove that she was capable of taking care of her son. When asked how the court could be
sure she would protect the child, mother said she now understood what she had to do in
order for the child to have a safer environment to live in. On cross-examination, mother
11
said she did not know why she lied about J.P. not being home at the time of the incident.
Mother said that when she lied, she was not trying to protect J.P. However, upon further
questioning about her lies, she finally acknowledged that she was trying to shield J.P.
from suspicion. When asked whether the reason she did so was because she knew in her
heart that he had done something wrong to the child, she replied, “No. Not, not at all.”
With regard to visits, mother admitted that there were times when the child sought
comfort from the prospective adoptive mother, and there were a couple times then he was
reluctant to leave her. Mother further testified that she never knew the child broke his
arm the first time, and he was never treated then.
After hearing testimony and arguments from counsel, the court denied mother’s
section 388 petition. The court felt that mother’s therapist said it best when he said
mother was making steady progress. The court stated that her circumstances were
changing, but had not changed. The court said that mother’s testimony indicated she was
looking to CFS for more services, and she was on a journey, and that, since the
jurisdiction/disposition hearing, she had “entered a number of things” that were starting
to change for her. However, the court noted that it had only been six months. With
regard to the best interest of the child, the court cited In re G.B. (2014) 227 Cal. App. 4th
1147 (G.B.), which held that, when there was severe physical abuse and reunification
services were bypassed because of it, the focus of the dependency turned to the child’s
need for permanency and stability, instead of reunification. Moreover, there was a
requirement of competent testimony that services were likely to prevent reabuse or that
12
the failure to try to reunify would be detrimental to the child because he was closely and
positively attached to the parent. The court noted that the evidentiary burden was
heightened at any section 388 petition hearing requesting services, and it required
findings by clear and convincing evidence. The court found that mother had not met her
burden of proof. It acknowledged that mother visited the child, the visits went well, and
she loved the child. The court also noted that mother recognized that the child sought
comfort from the prospective adoptive mother, and that he had no reaction when visits
with her ended. The court further observed that there was no evidence from mother’s
therapist showing that services would prevent reabuse or that there was a close and
positive attachment to mother. Therefore, the court denied the petition.
The court then proceeded to the section 366.26 hearing and heard argument from
mother’s counsel that the beneficial parental relationship exception (§ 366.26,
subd. (c)(1)(B)(1)) applied. The court rejected that argument and found it likely that the
child would be adopted. The court then terminated parental rights and ordered adoption
as the permanent plan.
ANALYSIS
The Court Properly Denied Mother’s Section 388 Petition
Mother argues that the juvenile court abused its discretion in denying her section
388 petition, since she had shown a change of circumstances. She no longer had the
same beliefs and attitudes about domestic violence, her relationship with J.P., and her
failure to protect the child. She further contends that it was in the child’s best interest to
13
grant her services because it would have allowed him the opportunity to reunify with her
and preserve their parent-child relationship. It would have also given her the chance to
show her ability to protect him from future harm and to “continue her personal work.”
We conclude the court properly denied mother’s petition.
A. The Court Did Not Abuse its Discretion
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 or changed
circumstances exist, and (2) the proposed change would promote the best interest of the
child. (In re Stephanie M. (1994) 7 Cal. 4th 295, 316-317 (Stephanie M.).) A section 388
petition is addressed to the sound discretion of the juvenile court, and its decision will not
be disturbed on appeal in the absence of a clear abuse of discretion. (Id. at p. 318.)
However, “[w]hen a juvenile court bypasses reunification services due to a finding
that a child suffered ‘severe physical abuse’ (§ 300, subd. (e)), the focus of the
dependency proceedings turns to the child’s need for permanence and stability instead of
family reunification. [Citation.] Once severe abuse has been found, a court is
‘prohibited from granting reunification services “unless it finds that, based on competent
testimony, those services are likely to prevent reabuse . . . or that failure to try
reunification will be detrimental to the child because the child is closely and positively
attached to that parent.” ’ [Citation.] Stated another way, in the ‘comparatively extreme
situation[]’ when a child is the victim of severe abuse, the legislative presumption is that
services are not to be provided to the parent. [Citation.] When this presumption applies,
14
the evidentiary burden is heightened at any hearing to consider a section 388 petition
requesting reunification services. In such a case, a juvenile court may modify an order
denying reunification services only if there is clear and convincing evidence that the
services would be in the child’s best interests, and only if it makes the same findings that
would have been required to offer services at the disposition hearing instead of bypassing
services.” (G.B., supra, 227 Cal.App.4th at pp. 1157-1158.)
1. Mother Failed to Show Changed Circumstances
The juvenile court here did not abuse its discretion in denying mother’s section
388 petition, as she failed to show changed circumstances. She alleged that she had
completed a 13-week parenting class, a 10-week domestic violence class, and that she
had been attending counseling for approximately four months. She also alleged that she
attended all visits with the child, and that she had enrolled in college. However, at the
time the court denied her services, mother had already completed the parenting class and
was attending visits. Thus, those were not actually changed circumstances. Moreover,
when the court denied mother services, it was concerned that she was in a domestic
violence relationship with J.P., yet she lied to several people about his presence in the
home at the time of the incident. Moreover, when questioned about it, she said she was
not trying to protect him. However, the court found that mother was protecting him and,
to that day, was still protecting him. Significantly, at the section 388 hearing, mother still
somewhat disagreed that she was trying to protect J.P. by her lying. Only after more
questioning, and denying several times that she was trying to protect him, mother finally
15
admitted that she was trying to deflect suspicion from him. Thus, even after completing a
domestic violence course, a parenting class, and participating in counseling, mother was
still in denial about her attempts to protect J.P. This evidence clearly showed, as the
court found, that there were changing circumstances, but mother’s circumstances had not
changed.
2. Mother Failed to Meet Her Heightened Burden of Proof That Services Were
Likely to Prevent Reabuse
In initially bypassing reunifications services, the court relied on section 361.5,
subdivision (b)(5) and (6). With regard to section 361.5, subdivision (b)(5), “the juvenile
court is prohibited from granting reunification services ‘unless it finds that, based on
competent testimony, those services are likely to prevent reabuse or continued neglect of
the child or that failure to try reunification will be detrimental to the child because the
child is closely and positively attached to that parent.’” (In re A.M. (2013) 217
Cal. App. 4th 1067, 1074-1075 (A.M.), see § 361.5, subd. (c).) With regard to section
361.5, subdivision (b)(6), services cannot be provided “‘unless the court finds, by clear
and convincing evidence, that reunification is in the best interest of the child.’” (A.M., at
p. 1075.)
We note mother’s claim in her reply brief that the juvenile court here erred when it
required her to meet the evidentiary burdens of proof contained in section 361.5,
subdivision (c), and show that services were likely to prevent reabuse and that failure to
try reunification would be detrimental because the child was closely and positively
16
attached to the parent. In support of her position, mother relies on In re L.S. (2014) 230
Cal. App. 4th 1183 (L.S.). However, L.S. is distinguishable. In that case, the parents’
petition for modification sought to modify an order bypassing reunification services,
based on section 361.5, subdivision (b)(11) and (13).3 (L.S., at p. 1194.) In the instant
case, mother sought to modify the court’s order bypassing services under section 361.5,
subdivision (b)(5) and (6).
Moreover, A.M., supra, 217 Cal. App. 4th 1067 is directly on point. The court there
expressly held that, although the mother in that case sought reunification services “by
moving under section 388 for modification of the juvenile court’s prior order, rather than
directly under section 361.5, subdivision (a) at the time of the dispositional hearing, that
did not excuse the court from following the requirements of section 361.5, subdivision (c)
in granting reunification services to parents found subject to subdivisions (b)(5) and (6).
Nothing in the language of subdivision (c) suggests the requirements need not be
observed if services are requested at some time after the dispositional hearing has
occurred. On the contrary, the language is absolute. Further, section 388 merely
3 Section 361.5, subdivision (b)(11), provides that services need not be provided
to a parent when the court finds that his/her parental rights “over any sibling or half
sibling of the child had been permanently severed, . . . and that, according to the findings
of the court, this parent has not subsequently made a reasonable effort to treat the
problems that led to removal of the sibling or half sibling of that child from the parent.”
Subdivision (b)(13) provides that services need not be provided if the parent “has a
history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior
court-ordered treatment for this problem during a three-year period immediately prior to
the filing of the petition that brought that child to the court’s attention, or has failed or
refused to comply with a program of drug or alcohol treatment described in the case plan
required by Section 358.1 on at least two prior occasions, . . .”
17
authorizes the court to modify a prior order. It does not purport to excuse the juvenile
court from satisfying any other legal requirements that might apply to the modification.
Put another way, Mother could not evade the requirements of section 361.5, subdivision
(c) merely by waiting a few months and then seeking relief under section 388.” (Id. at
pp. 1075-1076, fn. omitted.) Although the court in L.S., supra, 230 Cal.App.4th at page
1195 disagreed with the reasoning in A.M., as mother points out, we choose to follow the
A.M. court’s reasoning.
We further note that, in her opening brief, mother applies the requirement and
reasoning set forth in A.M. She first argues the evidence showed that services would
likely prevent reabuse. However, she mostly relies on her own, self-serving testimony
that she acknowledged that J.P. caused the child’s injury, and that he had “brutally
treated” the child on more than one occasion. She also points to her testimony that she
acknowledged that she ignored warning signs about J.P. and that she lied to protect him
from suspicion. She also cites her testimony concerning the warning signs of domestic
violence and other things she learned in her domestic violence class. Mother then asserts
that none of the factors indicating that services were unlikely to be successful, as
identified in section 361.5, subdivision (c), existed in this case. Such factors include the
“failure of the parent to respond to previous services, the fact that the child was abused
while the parent was under the influence of drugs or alcohol, a past history of violent
behavior, or testimony by a competent professional that the parent’s behavior is unlikely
to be changed by services.” (§ 361.5, subd. (c).)
18
While there may not have been evidence of the factors listed in section 361.5,
subdivision (c), there was also no competent testimony presented that services were
likely to prevent reabuse, as required. (§ 361.5, subd. (c).) When asked how the court
could be sure she would protect the child, mother simply said she now understood what
she should have done to have a safer environment, and she felt like, now that she knew,
she could provide the child a safe environment to live in. As the court pointed out, it had
only been six months since the jurisdiction/disposition hearing, and there was nothing in
the letter from mother’s therapist with regard to services preventing reabuse. The
therapist noted that mother was planning on attending more psychotherapy sessions, and
she “appear[ed] to have the motivation [and] will to get back to caring for her son.” This
evidence did not show that more services were likely to prevent reabuse. To the contrary,
the fact that mother continued to deny her attempts to protect J.P., even after having
completed a domestic violence class and some counseling, indicated that additional
services would not prevent reabuse.
Mother asserts that there was “no testimony by a ‘competent professional’ that
[her] behavior was unlikely to be changed by services.” (Italics added.) However, it was
not CFS’s burden to show that services were unlikely to change her behavior. Rather,
there was a legislative presumption that services were not to be provided to mother, and
she had the heightened burden of overcoming the presumption. (G.B., supra, 227
Cal.App.4th at pp. 1157-1158.) We agree with the court that mother failed to overcome
that presumption.
19
3. The Child Was Not So Closely and Positively Attached to Mother That the
Failure to Try Reunification Would Be Detrimental to Him
The court here was required not to order reunification services, unless it found that
services were likely to prevent reabuse or “failure to try reunification will be detrimental
to the child because the child is closely and positively attached to that parent.” (§ 361.5,
subd. (c).)
Mother claims that the child was closely and positively attached to her. In support
of her position, she merely points to testimony that the child recognized her at visits and
was excited to see her; he was affectionate with her; she was appropriate with him; he
looked to her for comfort; and the visits essentially went well. She also points to her own
testimony that she always felt she had a close bond with the child. However, while the
visits may have gone well, the evidence also showed that during some of the visits, the
child would hit and bite mother and pull her hair. Moreover, at some visits, the child did
not even want to go to mother, and he would not leave the prospective adoptive mother’s
side. The prospective adoptive mother reported that the child showed no distress when
mother departed from the visits. Mother herself admitted that, during visits, there were
times when the child sought comfort from the prospective adoptive mother, and there
were a couple times he was reluctant to leave her and go to mother. In addition, we note
that the child was thriving in the prospective adoptive mother’s home. The social worker
said he appeared to identify the prospective adoptive mother as the primary parent, and it
20
was highly unlikely that he would suffer any detriment if mother’s parental rights were
terminated.
In view of the evidence, the court did not abuse its discretion in finding a lack of
clear and convincing evidence that it would be detrimental to the child not to try
reunification due to a close and positive attachment to mother.
4. The Court Properly Found That Reunification Was Not in the Child’s Best
Interest
In any event, as mother concedes, when a party petitions a court to modify an
order denying services pursuant to section 361.5, subdivision (b)(5) or (6), the court can
modify the order denying services “only if the court finds by clear and convincing
evidence that the proposed change is in the best interests of the child.” (§ 388,
subd. (a)(2); see also G.B., supra, 227 Cal.App.4th at p. 1158.) In support of her
argument that it was in the child’s best interest for the court to grant services, mother
again points to her own testimony that she now knew the warning signs of abuse, and that
she should have ended her relationship with J.P. sooner. She also admitted that she
“allowed another person to control her,” and that she failed to protect her son. Mother
further points out that she was not the perpetrator of abuse, she was no longer
communicating with J.P., and the reason leading to the dependency “was, in a matter of
speaking, gone.” She concludes that granting her petition would have served the child’s
best interest “by allowing him the opportunity to reunify with [her] and to preserve their
parent-child relationship.”
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Although mother claims that she learned from her parenting and domestic violence
classes, her testimony demonstrated that she was still reluctant to admit that she lied to
protect J.P. She only admitted so after further questioning on the matter. Thus, even
though she was no longer in contact with J.P., the problem was mother’s failure to
recognize the danger she was exposing the child to and her failure to protect him. The
fact that she still had a difficult time admitting she was covering for J.P. shows that she
had not completely changed. As her therapist opined, mother was “involved in taking the
appropriate steps toward becoming a better person [and] a good mother,” and she was
still “on the road to recovery.”
Furthermore, mother’s claim that it was in the child’s best interest to grant her
services simply because it would allow him the chance to reunify with her has no merit.
When a juvenile court bypasses reunification services due to a finding that a child
suffered severe physical abuse, pursuant to section 300, subdivision (e), “the focus of the
dependency proceedings turns to the child’s need for permanence and stability instead of
family reunification.” (G.B., supra, 227 Cal.App.4th at p. 1157.) The court here
properly considered the child’s need for permanence and stability, rather than
reunification. Again, the child was thriving in the prospective adoptive mother’s home,
and the evidence indicated that he was bonded with her, as he identified her as the
primary parent. While acknowledging the shift from reunification to the child’s need for
permanency and stability, mother still asserts that “section 388 provides the scheme to
shift the focus back to family reunification when the circumstances justify reviving the
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reunification issue, as was the case here.” Mother cites no authority for this proposal.
On the contrary, because the court here found that the child suffered severe physical
abuse (§ 300, subd. (e)), the focus became the child’s need for permanence, not
reunification. (G.B., supra, 227 Cal.App.4th at p. 1157.) We further note that “[t]he best
interests of the child are not served by merely postponing his chance for stability and
continuity and subjecting him to another failed placement with the parent.” (In re
William B. (2008) 163 Cal. App. 4th 1220, 1229.)
We conclude that the court carefully evaluated the evidence, determined that
mother had not carried her heightened burden of proof, and properly denied the section
388 petition.
DISPOSITION
The court’s order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.
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