In re B.B. CA4/2

Filed 2/28/13 In re B.B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 B.B. et al., Persons Coming Under the
Juvenile Court Law.

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E056793

Plaintiff and Respondent, (Super.Ct.Nos. J232716 & J232717)

v. OPINION

N.B.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Christopher B.

Marshall, Judge. Affirmed.

Seth F. Gorman, under appointment by the Court of Appeal, for Defendant and

Appellant.

Jean-Rene Basle, County Counsel, and Adam E. Ebright, Deputy County Counsel,

for Plaintiff and Respondent.

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 I

INTRODUCTION1

N.B. is the mother of three children born between 2004 and 2010. The two older

children are D.A. and B.B., born in 2004 and 2006, and their fathers are M.A. and J.S.

respectively. Mother was the subject of child welfare referrals in May and June 2004 and

November 2009. The third child, L.V., an infant, died in May 2010 of injuries inflicted

by L.V.’s father, B.V.

Mother appeals from orders denying her section 388 petition and terminating her

parental rights to B.B. under section 366.26. D.A. has been placed with M.A., her father.

Mother asks this court to review the record independently for any cognizable issues

involving D.A.

Based on our independent review, we conclude the juvenile court did not abuse its

discretion in denying mother’s request for a bonding study involving B.B. and we discern

no issues affecting D.A.’s placement with her father. Therefore, we affirm the orders of

the juvenile court.

II

FACTUAL AND PROCEDURAL BACKGROUND2

In May 2010, after L.V. died, Children and Family Services (CFS) for the County

of San Bernardino initiated juvenile dependency proceedings as to D.A. and B.B, then

1 All statutory references are to the Welfare and Institutions Code.
2 The full previous history of this case is presented in E053319, pages 3 through
11.

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about six and four years old. In April 2011, the children were declared dependents under

section 300, subdivisions (a), (b), (c), (f), (i), and (j). The juvenile court denied family

reunification services for mother under section 361.5, subdivisions (4), (6), and (7), and

this court affirmed.

D.A.’s father, M.A., was admonished for engaging in an inappropriate relationship

with mother. Nevertheless, a case plan was approved for M.A. Both children were

placed with Mr. and Mrs. A., D.A.’s paternal grandparents.

A. The October 2011 Status Review Report

The October 2011 status review report included the information that mother was

never married to D.A. or B.B.’s fathers. Both men were on their respective children’s

birth certificates but J.S. had not supported B.B. or been in contact with him since

infancy.

CFS concluded that M.A. had failed to protect D.A. after learning that B.V. had

treated her roughly before L.V. died. M.A. had been receiving therapy to learn how to

set boundaries with mother and to parent his daughter. M.A. was cooperative and

actively involved with both children. He was employed with suitable housing. He had

completed a parenting course. M.A. understood why the children had been removed and

could not be in mother’s company. If M.A. was granted custody of the children, he

intended to live with his parents to provide parenting support. The prognosis for

reunification with D.A. was good.

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 J.S. had been attending parenting and substance abuse classes and had three

negative drug tests. J.S. was also taking an active role in B.B.’s life. He was working

and living with a friend. The prognosis for reunification with B.B. was fair.

When mother participated in monthly visits of two hours, both children had

reacted adversely. D.A.’s negative behaviors included “defiance, talking back in

disrespect, crying uncontrollably, yelling and screaming.” B.B. also became defiant and

argumentative. D.A. was in first grade and B.B. was in kindergarten. They were both

receiving therapy and enjoyed living with D.A.’s paternal grandparents.

In the November 2011 addendum report, CFS recommended that D.A. be placed

with M.A., B.B. remain with M.A.’s parents, and services for J.S. be terminated. CFS

noted that, while previously M.A. had not been honest in therapy about his relationship

with mother, he was making progress. He was also having successful unsupervised,

overnight visitation with the children. CFS recommended D.A. be returned to M.A.’s

care and family maintenance services be provided.

J.S. had been erratic in participating in services and visitation. He had a positive

drug test in February 2011. CFS recommended that his services be terminated and

M.A.’s parents be considered for potential adoption.

In January 2012, the court ordered D.A. returned to the custody of M.A. with

family maintenance services. Mother continued to have monthly supervised visitation for

two hours. The court terminated J.S.’s services.

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B. Section 366.26 Reports

In May 2012, CFS recommended that parental rights for B.B. be terminated. B.B.,

then age five, was a healthy child who required dental care to have numerous teeth

capped due to “bottle rot.” He was conversational and had stopped stuttering. He still

mentioned the circumstances of his sister’s murder but he demonstrated emotional

resilience. He performed well in kindergarten and was demonstrative and affectionate.

Mr. A., a firefighter, and his wife, a homemaker, have been married since 1971

and raised four children. Mr. and Mrs. A. are the paternal grandparents of B.B.’s half-

sister, D.A. M.A. was living with his parents and the children. Mr. and Mrs. A.

expressed great enthusiasm for adopting B.B. Meanwhile J.S. had engaged in a poor

pattern of visitation and participation in reunification services. CFS recommended the

parental rights for B.B. be terminated and B.B. be placed for adoption with Mr. and Mrs.

A.

In July 2012, M.A. was still gainfully employed and living with his parents and

the two children. D.A. was happy and continuing to improve.

C. Mother’s Section 388 Petition

On May 15, 2012, mother filed a section 388 petition, asking for the return of the

children to her custody. In the alternative, she requested that parental rights for B.B. not

be terminated and the court order a bonding study. In addition, she requested a legal

guardianship, rather than adoption, for B.B., and reinstatement of reunification services

for D.A., plus an increase in visitation to a two-hour weekly visit with both children.

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 In support of her petition, mother acknowledged that she had failed to protect her

children from harm, resulting in L.V.’s death. Mother had been receiving private

counseling at her own expense beginning in October 2011. Mother stated that she had

learned how to be more active in caring for her children and diligent in recognizing abuse

and seeking medical care. Mother had disassociated from B.V. and had cooperated in the

prosecution of him. B.V. had pleaded guilty and been sentenced to 20 years in prison.

Mother had secured a clean, safe home where she lives alone. She had been employed

since 2004 and had been promoted to assistant general manager. During regular

visitation, she had behaved appropriately. She asserted she was able to provide for her

children’s emotional, medical, and financial needs and it would be in the best interest of

the children because they wanted to live with her and they loved one another.

In an interim review report, CFS recommended the court deny mother’s petition

based on changed circumstances because mother had previously denied knowing about

the abuse of the children by B.V. and did not seek timely medical care for L.V. before

she died. CFS focused on how B.B. and D.A. were thriving in their placement with Mr.

and Mrs. A. Both children had suffered trauma under their mother’s care but were

overcoming its effects. CFS summarized mother’s history of referrals in May and June

2004 and November 2009 for abuse and neglect, culminating in L.V.’s death in May

2010. CFS disagreed with the therapist’s assessment that mother had come to recognize

her culpability. CFS acknowledged mother loves the children and was appropriate in

visitation but observed the children did not exhibit emotional distress when the visits

ended. Therefore, CFS still recommended that B.B. should be adopted and D.A. should

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be placed with her father, M.A., aided by his parents. CFS identified no change in

circumstances.

In addition to CFS’s opposition, minor’s counsel for B.B. opposed the request for

a bonding study on the grounds he had not been in mother’s care since May 2010 and

mother saw him only once a month for two hours.

The trial court granted an evidentiary hearing on the section 388 petition but

denied the request for a bonding study.

D. Hearing on Sections 388 and 366.26

On July 26 and 27, 2012, the court conducted a combined hearing on the section

388 petition and the section 366.26 proceeding.

Gail York, mother’s therapist, testified that she had begun treating mother in

October 2011 for 15 sessions. Mother was not in contact with B.V. who had killed their

daughter. The therapy focused on “protection issues” and mother’s need to recognize and

be vigilant about danger to her children. Mother admitted her past faults in the care of

her children, especially in not recognizing B.V.’s abusive treatment of them even after

they had disclosed it to her. Although York never met the children, in her opinion, the

children had probably bonded with mother based on their history with her until their

removal. York also asserted that mother did not pose a risk and could parent the children

safely.

Mother testified that, at one point, the family law court had ordered M.A. to have

custody of D.A. for about a year. Mother also testified that she learned in therapy how to

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be an alert and active parent. She acknowledged having a part in the death of L.V. and

knowing about B.V.’s mistreatment of the children before L.V. died.

Annette Femi-Grande, the children’s therapist, testified that she treated them

weekly and then every other week. Initially, the children experienced nightmares,

flashbacks, crying, depression, and anger related to L.V.’s death. They suffered from

post-traumatic stress disorder and difficulty sleeping. The children have improved but,

after mother’s visits, their symptoms seemed to be aggravated. Femi-Grande’s opinion

was that mother’s visits should be terminated and they should not be returned to her.

Both children preferred placement with M.A. and Mr. and Mrs. A.

The social worker testified the children enjoyed their visits with mother but were

not upset when they ended. She recommended that B.B. be adopted by Mr. and Mrs. A.

and have no more contact with mother and that M.A. have sole custody of D.A. and

mother have monthly, supervised visitation.

At the conclusion of testimony, mother’s lawyer argued that if the section 388

petition was denied, she should have increased unsupervised visitation with D.A. and

joint legal custody and that an alternative to adoption be ordered for B.B.

The court denied the section 388 petition as not establishing changed

circumstances or the best interests of the children. As to B.B., the court granted

termination of parental rights, finding by clear and convincing evidence that it was likely

he would be adopted and that termination of parental rights would not be detrimental and

the beneficial relationship exception was not established. As to D.A., the court ordered

M.A. to have legal custody and mother to have monthly supervised visitation. The court

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terminated dependency jurisdiction and ordered that any further proceedings regarding

custody of D.A. should be conducted in the family law court.

III

THE BONDING STUDY

Mother argues the juvenile court abused its discretion by denying her request in

May 2012 for a bonding study involving her and B.B. The court denied the bonding

study, because it was not “appropriate or reasonable under the circumstances.”

The parties initially argue about whether the issue involving the bonding study

was forfeited or waived on appeal. In this instance, we conclude the right of appeal

should be liberally construed to protect the appellant. (In re Joshua S. (2007) 41 Cal.4th

261, 272; In re Madison W. (2006) 141 Cal.App.4th 1447, 1149-1451.)

Even so, we still decide the issue on the merits against mother. In In re Lorenzo

C. (1997) 54 Cal.App.4th 1330, 1341, the appellate court discussed the standard of

review for the denial of a bonding study and commented: “[I]t is difficult to envision

how the court abused its discretion by not ordering a bonding study in this case. The

applicable standard of review is whether, under all the evidence viewed in a light most

favorable to the juvenile court’s action, the juvenile court could have reasonably

refrained from ordering a bonding study. [Citation.] Here, the undisputed evidence was

that there was some bonding between the father and Lorenzo but that the child had a

stronger bond with the foster parents. [Fn. omitted.] Also, the child was only two years

old at the time of the section 366.26 hearing and had had no contact with his father during

the preceding five months. Under these circumstances, it is unlikely that a bonding study

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would have been useful to the juvenile court. The juvenile court did not err in not

ordering a bonding study.”

A later case repeated the holding that there is no requirement in statutory or case

law that a court must secure a bonding study as a condition precedent to a termination

order. Family preservation ceases to be of overriding concern if a dependent child cannot

be safely returned to parental custody and the juvenile court terminates reunification

services. Then, the focus shifts from the parent’s interest in reunification to the child’s

interest in permanency and stability. (In re Richard C. (1998) 68 Cal.App.4th 1191,

1198, citing In re Lorenzo C., supra, 54 Cal.App.4th at pp. 1339-1340.

The same reasoning applies here, as in Lorenzo C. and Richard C., for the reasons

discussed above in detail in the statement of facts, section II, D and E. In summary, B.B.

had developed an intense emotional bond with Mr. and Mrs. A. who wanted to adopt him

and keep him in their home with his sister and her father. B.B. was only three years old

when he was removed from his mother. He had been out of her care for two years in

May 2012 and he saw her only once a month. As the juvenile court expressly found, the

mother’s therapist had no sound basis for her opinion that B.B. may still have maintained

an attachment to mother because the mother’s therapist never observed their interaction.

Instead, the children’s therapist described how any contact with mother seemed to

aggravate and renew the trauma the children had already suffered and continued to be

harmful to them. Under these circumstances, as recognized by the juvenile court, it

simply was not an abuse of discretion to deny mother’s request for a bonding study and

the denial presented no prejudice to her rights concerning B.B.

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 IV

DISPOSITION

We affirm the orders of the juvenile court.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.

We concur:

HOLLENHORST
Acting P. J.

McKINSTER
J.

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