In re V.A. CA4/1

Filed 2/28/14 In re V.A. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re V.A. et al., Persons Coming D064361
Under the Juvenile Court Law.
_____________________________________

SAN DIEGO HEALTH AND HUMAN (Super. Ct. No. SJ12583A-B)
SERVICES AGENCY,

Plaintiff and Respondent

v.

V.A. et al.,

Defendants and Appellants,

APPEAL from orders of the Superior Court of San Diego County, Cynthia

Bashant, Judge. Orders affirmed.

Elizabeth C. Alexander, under appointment by the Court of Appeal for Defendant

and Appellant V.A.

Jamie A. Moran, under appointment by the Court of Appeal for Defendant and

Appellant M.C.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy, Paula J.

Roach, Senior Deputy, for Plaintiff and Respondent.

Suzanne F. Evans, under appointment by the Court of Appeal for Minors.
 V.A. (Father) and M.C. (Mother) appeal from orders denying their respective

petitions to modify a previous order and terminating their parental rights under Welfare

and Institutions Code section 366.26 to their daughter V.A. (All undesignated statutory

references are to this code.) They contend the juvenile court abused its discretion when it

denied their section 388 petitions requesting that V.A. be returned to the care of one of

them. Alternatively, they assert the juvenile court erred when it declined to find that the

beneficial relationship exception of section 366.26, subdivision (c)(1)(B)(i) applied to

their relationship with V.A.

Mother also appeals from an order denying her petition to modify a previous order

and terminating her parental rights to her older daughter V.C. She contends the court

erred when it denied her petition requesting that V.C. be returned to her care. She

alternatively asserts the juvenile court erred when it declined to find that the beneficial

relationship exception applied to her relationship with V.C. We affirm the orders.

GENERAL FACTUAL AND PROCEDURAL BACKGROUND

Father and Mother had an "on and off" relationship for about five years. They are

the parents of V.A. (born 2010). Mother has six additional children from separate

fathers, including V.C. (born 2001) and N.M. (born 2003 or 2004). V.A. and V.C.

(together, the minors) lived with Father and Mother. N.M. lives with his father, Ray, and

Mother's remaining children live with relatives in Mexico.

In early June 2011, the San Diego County Health and Human Services Agency

(the Agency) filed dependency petitions under section 300 on behalf of then 11-month-

old V.A. and nine-year-old V.C. based on Mother's depression and suicidal ideation,

2
Father's physical abuse of V.A., and his emotional abuse of V.C. V.A. and V.C. were

detained together in the same foster home where they remain today. The following

month, the juvenile court made true findings on the Agency's petition. It ordered the

minors removed from their parents' custody and placed in foster care, and reunification

services for Father and Mother.

In December 2011, Father suffered a stroke and his physical health began to

deteriorate. At the six-month review hearing in February 2012, the juvenile court found

return of the minors to their parents would create a substantial risk of detriment. It also

ordered an additional six months of services for Father and Mother, who were living

apart. Although Mother had progressed to unsupervised visits with the minors, this

privilege was revoked after she allowed N.M. and Ray to have contact with the minors.

In July 2012, N.M. became a dependent of the juvenile court and was placed in foster

care after Ray was arrested for charges of lewd and lascivious acts with a child under 14

years of age.

At the 12-month permanency hearing in July 2012, the Agency recommended

termination of reunification services. The juvenile court continued the minors as

dependents in foster care and continued reunification services to the 18-month date. At

the contested 18-month review hearing in February 2013, the juvenile court followed the

recommendations of the social worker, terminated reunification services for both parents

and set a section 366.26 hearing.

3
 Father filed a section 388 petition requesting that the juvenile court return V.A. to

his care. Mother also filed a section 388 petition as to both minors. The juvenile court

found both petitions met the prima facie test and the evidentiary portion was consolidated

with the contested section 366.26 hearing. At the July 2013, contested section 388 and

section 366.26 hearings, the juvenile court denied the section 388 petitions, found both

minors adoptable and determined that none of the exceptions to adoption under section

366.26 (c)(1)(B) applied. It terminated parental rights and ordered a permanent plan of

adoption for the minors. Both parents appealed.

DISCUSSION

I. Section 388 Petitions

A. General Legal Principles

Section 388 serves as "an 'escape mechanism' when parents complete a

reformation in the short, final period after the termination of reunification services but

before the actual termination of parental rights." (In re Kimberly F. (1997) 56

Cal.App.4th 519, 528, citing In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Under this

statute, a parent may petition the court to change, modify, or set aside a previous court

order on the grounds of changed circumstances. (§ 388, subd. (a).) The parent must

show both a change of circumstances and that the modification would promote the child's

best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)

In considering a request for a change of placement at the permanency planning

stage, the juvenile court must recognize that the focus has shifted to the child's need for

permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) On appeal,

4
the juvenile court's ruling will not be disturbed absent a clear abuse of discretion. (In re

Jasmon O. (1994) 8 Cal.4th 398, 415-416.) The "scope of discretion always resides in

the particular law being applied, i.e., in the 'legal principles governing the subject of [the]

action . . . ." (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.) A

judicial determination that falls outside the applicable principles of law constitutes an

abuse of discretion. (Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 119.)

B. Mother's Appeal

In denying Mother's section 388 petition, the juvenile court found that the

circumstances were similar to those that existed at the 18-month review date. It noted

that while Mother had participated in domestic violence counseling and therapy, she was

unable to put her children first and do what was best for them. It found that Mother was

still not in a position to take care of the minors and protect them. Mother contends the

juvenile court abused its discretion because she had made great progress in eliminating

protective issues and her poverty should not be a factor in keeping her from her children.

In support of her petition, Mother noted that she had employment, stable housing,

had completed 12 weeks of domestic violence support group work and participated in

individual therapy to, among other things, identify red flags associated with physical or

emotional abuse and increase her empathy and sensitivity to her children's situation. As

we shall explain, Mother has shown that her circumstances were changing, not that they

had changed within the meaning of section 388. Even assuming Mother had shown

changed circumstances, she did not meet her burden of showing it would be in the

minors' best interests to be returned to her custody.

5
 Mother has a long history of abusive relationships. While a teenager, she married

a man who physically abused her. When separated from her husband, she had a

relationship with another man who mistreated her children and humiliated her. After

leaving that relationship, she became involved with V.C.'s father, a man who also

physically abused her. When V.C. was a year old, Mother became involved with Ray, a

man who physically abused her and V.C. She then became involved with Father. Mother

stated that Father was very controlling and humiliated her. Father would tie N.M. to a

chair if he cried and spanked V.A. when she cried.

Review of Mother's child welfare history reveals a number of referrals to Child

Protective Services dating back to 2003. V.C. suffered physical abuse from Ray and

Mother's sister in two substantiated referrals. During about an eight year time period,

Mother stayed in domestic violence shelters four times. Mother's current therapist

described her situation as typical of those victimized by domestic violence, including low

self esteem and becoming overly dependent on partners for economic and emotional

support.

By the time of the six-month review hearing in January 2012, Mother had

completed parenting classes, attended a domestic violence support group, and was in

individual counseling. A few months later, however, Mother allowed N.M. and Ray to

have unauthorized contact with the minors. V.C. reported feeling fearful and anxious

during the visits because Ray scolded N.M. and once hit him hard with a ball. Mother

continued to allow Ray to attend visits even after being told not to do so. When a social

6
worker explained to Mother that she had not put the needs of her children ahead of her

own, she did not take responsibility for her poor judgment.

Although Mother completed her parenting classes before the six-month hearing,

she still had inappropriate interactions with her children before the 12-month review

hearing. During one visit, Mother scolded V.C. causing her to cry. She later told the

minors that Father was right when he punished the minors and in the way he disciplined

V.C. and N.M. because otherwise they would do whatever they wanted. In February or

March 2013, Mother's therapist closed her case in part based on Mother's " 'lack of

motivation.' " At the request of a social worker, Mother resumed therapy with a new

therapist as this was part of her reunification services for her open case with N.M.

At trial, Mother's new therapist explained that Mother initially had difficulty

expressing empathy toward the minors, but in the last four or five sessions she had shown

improvement. He considered Mother's level of empathy to be appropriate. As of May

2013, the minors' Court Appointed Special Advocate (CASA) had continuing concerns

regarding whether Mother could "satisfy the [minors'] emotional needs, protect them or

be honest. The social worker similarly expressed concern that Mother "has continued to

demonstrate inability to be protective of V.C.'s emotional well being." She relayed an

incident that occurred in June 2013 wherein Mother discussed adoption with V.C. that

resulted in V.C. crying for two hours after the visit. When told of this incident at trial,

Mother's current therapist agreed that Mother would not be displaying empathy toward

the child if the incident occurred as described.

7
 Although Mother initially had unsupervised visitation, the visits reverted to

supervised when she allowed Ray to attend some of her visits with the minors, even after

the social worker had warned her about this. As late as January 2013, a social worker

saw Mother in a car with Father, a fact Mother initially denied, but later admitted. The

social worker concluded that "despite all the services provided, [Mother] has not been

able to develop the necessary insight into the protective issues and her children's

emotional needs so that she can demonstrate that she can keep her children safe."

During trial, Mother stated that she allowed the contact with Ray, knowing it was

not okay, but claiming it was the only way she could see N.M. This testimony is

concerning as it shows Mother's inability to utilize what she has learned. She allowed

Ray to control the situation and placed the minors in harm's way, rather than seeking

alternative solutions. Indeed, in addressing Mother's section 388 petition, the social

worker opined that the individual therapy and domestic violence support group classes

that Mother participated in "have not assisted her to completely overcome her 20-year

history of chronic involvement in abusive relationships. . . ." The social worker

concluded that Mother's domestic violence and mental health issues remained unresolved

and that she was not prepared to have the minors placed with her.

Even more concerning is Mother's lack of honesty. At trial, Mother claimed she

was unaware that Ray could not have contact with the minors and denied knowing that

Ray had been arrested for molesting his granddaughter when he had accompanied her for

visits with the minors. This testimony contradicts earlier reports from the CASA that

Mother admitted to the foster mother that she knew Ray had moved to San Diego to

8
evade police capture on child molestation charges in another county. The social worker

and CASA similarly reported that Mother had been warned about allowing Ray to have

contact with the minors.

On this record, we cannot conclude that the juvenile court abused its discretion in

finding that Mother had not shown changed circumstances. Even if Mother had

sufficiently demonstrated changed circumstances, she did not meet her burden of

showing it would be in the minors' best interests to be returned to her custody.

The California Supreme Court has described "the goal of assuring stability and

continuity" as a "primary consideration in determining the child's best interest[s]." (In re

Stephanie M., supra, 7 Cal.4th at p. 317.) In support of her best interests claim, Mother

argued it was undisputed that V.C. loved and missed her, wanted to be returned to her

and wanted V.A. to be with them. The minors' love and affection toward Mother,

however, do not outweigh all other factors in determining their best interests.

Mother has a long history of involvement in abusive relationships, these

proceedings have been pending for over 18 months and V.A. was only 11 months old

when she was initially detained. The social worker opined that while the minors enjoyed

visiting with Mother, they were not upset when the visits ended. She noted that for the

last two years, the minors "have been getting their daily physical and emotional needs

met by their current caregivers who have expressed their commitment to adopt them."

The juvenile court reasonably concluded that Mother could not provide the minors with

the stability and permanency that they needed and deserved. Accordingly, we find that

9
the juvenile court acted well within its discretion by denying Mother's section 388

petition for modification.

C. Father's Appeal

Father contends the juvenile court abused its discretion when it denied his section

388 petition because he established a parent-child bond with V.A. and showed that he had

turned his life around, with full involvement and successful completion of services. We

are not persuaded.

V.A. was removed from Mother and Father's care, in part, based on Father's

excessive discipline. Father tied N.M. to a chair if he cried, slapped V.A.'s face and sent

V.C. to bed without dinner. Although Father expressed remorse for his actions, he also

rationalized his harsh discipline practices. Father reported that he had been treated for

depression and had experienced suicidal thoughts in the past. Father had weekly,

supervised visitation with V.A. He also attended weekly therapy. Father's therapist

reported that Father had a history of unresolved childhood trauma and neglect, with

limited insight as to how these issues affected his functioning. Father showed a lack of

understanding of children's needs and an inability to show empathy due to his own

difficult childhood.

In December 2011, Father suffered a stroke. Although Father attended therapy

and completed parenting classes, the Agency maintained supervised visitation because it

could not assess Father's readiness for unsupervised visitation due to his failure to stay in

touch with the Agency. In January 2012, Father started attending a 52-week domestic

violence treatment group. In July 2012, the therapist reported Father's progress as

10
"marginal," he rarely participated and showed little insight into his child's needs. By July

2012, Father had made "some progress" in his domestic violence treatment, but still

lacked in the areas of skill development, empathy, insight, and parenting.

Before the 18-month review hearing in February 2013, the Agency reported that it

was unable to contact Father. The foster parents noted that Father has not called to

request additional visit or updates on V.A.'s well being. At the 18-month review hearing,

Father testified that he learned in his parenting class about caring for a young child and

that he needed to stress good things, not bad things. Father had completed 42 weeks of

his 52 week domestic violence treatment group. He expressed sorrow for exposing V.A.

to domestic violence and claimed it would never happen again.

The social worker testified that she believed it would be detrimental to return V.A.

to Father's care because Father had not accepted full responsibility for what occurred and

could not articulate a safety plan to guard against domestic violence. She explained that

when she spoke to Father a month earlier about what had happened at the start of the

case, that Father "continued to minimize the situation," claiming nothing had happened

and that he had not done anything.

The social worker testified that a two-year old child such as V.A. was very

dependent on adults, could be frustrating and that Father was not ready to parent her full

time. Although Father planned to live with an adult child that could help care for V.A.,

the social worker expressed concern that the Agency had not been able to evaluate the

home and that V.A. did not have a relationship with this person. The social worker also

believed that V.A. was not emotionally ready to be placed with Father because with the

11
brief, controlled visits, she had not been able to form a good attachment with him. V.C.

had also recently told the social worker that she was scared of Father. At the end of the

hearing, the juvenile court concluded it would be detrimental to return V.A. to Father's

care, stating that Father could only articulate vague notions about what he had learned,

did not work to form an emotional attachment with V.A. during visits, had no plan to care

for V.A. and simply assumed that V.C. would join V.A. so that the minors could stay

together with no consideration as to how this change might impact V.C.

At the section 388 hearing, Father's domestic violence provider testified that

Father completed a 52-week domestic violence class and did four additional weeks

because he wanted to continue in the class. The therapist believed that Father had

accepted responsibility for his inappropriate discipline of his children and for the past

domestic violence in his relationships and that Father "understood the difference between

his past behavior and his new tools and skills on how to be a nonviolent assertive

person."

In ruling on Father's section 388 petition, the juvenile court found that other than

completing the domestic violence group, Father's circumstances were not any different

than they were at the 18-month review. Father challenges this finding, arguing that while

his change was slow, he completed every aspect of his case plan. We will assume,

without deciding, that Father adequately demonstrated changed circumstances.

Nonetheless, he failed to establish that returning V.A. to his custody would be in her best

interest.

12
 Where as here, reunification services have ended, "the parents' interest in the care,

custody and companionship of the child are no longer paramount. Rather, at this point

'the focus shifts to the needs of the child for permanency and stability' [citation], and in

fact, there is a rebuttable presumption that continued foster care is in the best interests of

the child." (In re Stephanie M., supra, 7 Cal.4th at p. 317.) Significantly, the completion

of classes is not, in and of itself, prima facie evidence that the requested modification

would be in a minor's best interests. (In re Angel B. (2002) 97 Cal.App.4th 454, 462-

463.)

While we commend Father for his efforts to become an effective parent, the

evidence was undisputed that he could not parent V.A. on his own and needed to rely on

an adult daughter to help him financially and also to care for V.A. At the 18-month

hearing, the social worker expressed concern that the Agency had not been able to

evaluate the home of the adult daughter and that V.A. had no relationship with this

person. The social worker also opined that placing V.A. with Father would be

detrimental to her as it would interfere with the sibling relationship with V.C.

After observing six visits between Father and V.A., the social worked noted that

Father came prepared with books, toys and snacks. She observed, however, that V.A.

never showed affection toward Father and never cried after visits. The social worker

opined that the relationship between Father and V.A. resembled that "of a tutor and a

student who meet once a week." The CASA observed that Victoria was generally quiet

and withdrawn when she was with Father and that she "perk[ed] up and [was] happiest

13
when heading to the car after the visits." On this record, the juvenile court did not abuse

its discretion when it denied Father's section 388 petition.

II. Beneficial Relationship Exception

A. General Legal Principles

The juvenile court may terminate parental rights if there is clear and convincing

evidence of adoptability. (§ 366.26, subd. (c)(1).) After the court determines a child is

likely to be adopted, the burden shifts to the parent to show termination of parental rights

would be detrimental to the child under one of the exceptions listed in section 366.26,

subdivision (c)(1)(B). (In re C.F. (2011) 193 Cal.App.4th 549, 553.) An exception to the

termination of parental rights exists when "[t]he 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 parent must do more than demonstrate 'frequent and loving contact[,]'

[citation] an emotional bond with the child, or that parent and child find their visits

pleasant. [Citation.] Instead, the parent must show that he or she occupies a 'parental

role' in the child's life." (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) The parent

must also show that 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.' " (Ibid., quoting In re Autumn H. (1994) 27

Cal.App.4th 567, 575 (Autumn H.).)

14
 We review the juvenile court's ruling under the substantial evidence test (Autumn

H., supra, 27 Cal.App.4th at p. 576), viewing the evidence in the light most favorable to

the prevailing party (In re J.I. (2003) 108 Cal.App.4th 903, 911). We do not attempt to

resolve conflicts in the evidence or evaluate the weight of the evidence; rather, we must

draw all reasonable inferences in support of the court's findings and affirm the order even

if there is substantial evidence supporting a contrary finding. (In re Baby Boy L. (1994)

24 Cal.App.4th 596, 610.)

B. Mother's Appeal

Mother does not challenge the juvenile court's finding that minors are adoptable.

She asserts her parental rights should not have been terminated given the beneficial

nature of her ongoing relationship with the minors. The Agency acknowledges that

Mother had regular and frequent visitation and contact with the minors throughout most

of the dependency proceedings. Nonetheless, the Agency asserts that Mother failed to

show her relationship with the minors outweighed the benefits of adoption. Examining

the evidence in the light most favorable to the judgment, we agree with the Agency.

Before the 18-month review hearing in February 2013, the foster mother reported

that Mother rarely called to speak to the minors and was not forthcoming about wanting

to see the minors more than once a week. She also expressed no interest in attending

medical or educational appointments for the minors and did not inquire about V.C.'s

school progress. A social worker that observed seven visits between Mother and the

minors reported that Mother gave the minors physical affection, played with them, and

brought them food, clothes and toys. She opined, however, that the relationship Mother

15
shared with the minors did not rise to the level of a parental role and that the relationship

did not outweigh the benefits of adoption. The CASA observed that Mother "is more like

a nice nanny than a parental figure. [She] is not particularly affectionate or nurturing.

She does not tell the girls that she misses them or ask them about their thoughts or lives."

V.C. loved and missed Mother, and wished that she and V.A. could be returned to

Mother's care. If she and V.A. could not be returned to Mother, V.C. wanted them to be

adopted by their current foster mother. The CASA reported that she saw the minors once

every two to three weeks, and that the minors were "transformed" in the two years that

they have been in their current placement. She noted that the foster parents were hoping

to adopt the minors and opined they "would make a great permanent home."

In summary, the evidence amply supported the juvenile court's conclusion that the

beneficial relationship exception did not apply.

C. Father's Appeal

Father contends, and the Agency concedes, that Father regularly visited V.A.

during the dependency proceeding. Father claims the juvenile court erred with it found

that he failed to establish a parental bond that outweighed the right of V.A. to have

permanency in a plan of adoption, arguing that substantial evidence suggested otherwise.

In reviewing the juvenile court's order, however, we do not evaluate the weight of the

evidence and must affirm the order even if there is substantial evidence supporting a

contrary finding. (In re Baby Boy L., supra, 24 Cal.App.4th at p. 610.)

16
 In general, we agree with Father's assertions that he and V.A. had a positive and

affectionate relationship. Positive interactions, however, will not overcome the adoption

preference when they do not evidence that a "sufficiently significant relationship existed

between [parent and child] such that termination of parental rights would be detrimental

to the child." (In re Angel B., supra, 97 Cal.App.4th at p. 468.) Here, V.A. was less than

a year old when she was removed from Father and Mother's care and too young to

understand that Father was her biological father. Since her removal, Father never

progressed beyond weekly supervised visits. Accordingly, V.A.'s daily physical and

emotional needs were met by her foster parents who are committed to adopting both

minors. While it is undisputed that V.A. was happy to see Father, it is also undisputed

that she separated from him easily and never cried after his visits.

Father contends that the juvenile court's finding that the beneficial relationship

exception did not apply is contrary to the ruling in In re S.B. (2008) 164 Cal.App.4th 289

(S.B.), which holds that the beneficial relationship exception does not require that a

parent establish that a child's primary attachment was to him or her. (Id. at p. 299.)

While this general principle may be correct, it is important to note that the facts in S.B.

are distinguishable. (See In re C.F., supra, 193 Cal.App.4th at pp. 558-559 ["S.B. is

confined to its extraordinary facts. It does not support the proposition a parent may

establish the parent-child beneficial relationship exception by merely showing the child

derives some measure of benefit from maintaining parental contact."].) Among other

things, in S.B. the record included a bonding study by a doctor who described the bond

17
between father and the child as fairly strong and opined that there was potential for harm

if the child lost her parental bond with the father. (S.B., supra, 164 Cal.App.4th at

pp. 295-296.) Here, the record is devoid of any evidence from a mental health provider,

social worker or bonding expert that terminating parental rights so that V.A. could be

adopted would cause her serious emotional or psychological detriment.

Father's reliance on In re Brandon C. (1999) 71 Cal.App.4th 1530 (Brandon C.) is

similarly misplaced. In Brandon C., a social services agency appealed from an order for

guardianship rather than adoption based on the beneficial parental relationship exception.

(Id. at p. 1533.) In that case, the appellate court concluded that substantial evidence

supported the juvenile court's decision to find the exception applicable based on the

children's emotional attachment to their mother. (Id. at pp. 1534-1538.) Here, substantial

evidence supported the juvenile court's determination that the beneficial relationship

exception did not apply and it is not our role to reweigh the evidence. (In re Baby Boy L.,

supra, 24 Cal.App.4th at p. 610.)

DISPOSITION

The orders are affirmed.

McINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

AARON, J.

18