Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County, Super. Ct. No. RIJ110630, Christian F. Thierbach, Judge.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Nicole Williams, under appointment by the Court of Appeal, for Minors.
OPINION
Gaut, J.
Mother appeals the juvenile court’s orders denying her Welfare and Institutions Code section 388 petition and terminating her parental rights to her three sons, JP (born in 2002), EP (born in 2003), and IP (born in 2004), under section 366.26.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
Mother contends the juvenile court erred in denying her section 388 petition for modification of the order terminating reunification services. She also argues the beneficial parental relationship exception (§ 366.26, subd. (c)(1)(A)) applies. We reject mother’s contentions and affirm the judgment.
1. Facts and Procedure
Father, who had been taking care of the boys on the weekends, attempted to return the boys to mother at the end of a weekend in August, 2005. Mother told him he needed to keep the boys while she was leaving her boyfriend, because she would become homeless. Mother was leaving her boyfriend because he had been physically abusive to her and had beaten her up. Father told mother he could not take the boys because he did not have housing but mother would not take the boys back. Father asked the boys’ paternal grandmother (p-grandmother) to take care of them temporarily.
After three weeks, mother did not retrieve the boys as agreed. She also did not visit the boys during her absence. On September 6, 2005, after p-grandmother was unable to care for the boys any longer, father took the boys to a child protective services office and stated that he could no longer care for the boys because he had entered an inpatient substance abuse treatment center and mother was unable or unwilling to care for them.
Father had been previously arrested for domestic violence against mother. He admitted to the Department of Public Social Services (DPSS) social worker that, after his incarceration for domestic violence, he reunited with mother and continued to slap, hit, and push mother on more than one occasion. He said he ended up going back to jail for a car robbery, and had been using drugs since he was 12 years old.
Mother stated during her interview with the DPSS social worker that she could not take the boys until she found a job and a place to live. On August 23, 2005, she left the boys in the care of p-grandmother for a week because she was looking for work and did not want the boys to have to commute to their grandmother’s house by bus every day. On the day mother was supposed to pick up the boys, September 2, she was supposed to be hired at a drugstore and had arranged for child care. She left the boys with father because she thought they would be safe since he had never hurt them before.
On September 8, 2005, the DPSS filed a juvenile dependency petition under section 300, subdivisions (b) and (g). The petition contained allegations of domestic violence, neglect, substance abuse, criminal behavior, and an inability to provide care and support. As to mother, the petition alleged that she had neglected the children by failing to pick up the boys as agreed, resulting in p-grandmother having to care for the boys longer than expected. While the boys were left in p-grandmother’s care, mother failed to visit them. Those circumstances resulted in placing the children at risk of suffering serious physical harm. In addition, mother left the boys in the care of father, knowing he had a propensity for violence. He committed violence against mother and had threatened to harm mother’s boyfriend. Father failed to get treatment for his propensity to commit domestic violence. Both mother and father were unable to provide appropriate housing, support and care for the boys.
At the detention hearing, the court ordered the boys detained and they were placed in a foster home. At the jurisdiction and disposition hearing on November 7, 2005, the court declared the boys dependents of the court. Mother was offered reunification services and her case plan was approved. Her plan required that she participate in general counseling, complete a domestic violence program and parenting education program, and test for substance abuse.
According to the six-month review report, filed in March 2006, the children were placed with their paternal cousin and her husband. Mother was no longer living with her abusive boyfriend. She was renting a room from an acquaintance and attending Meric College in Riverside to become a medical assistant. Mother was also working part time at the college. She visited the boys regularly one to two times a week for four or five hours a visit. She brought them breakfast and they seemed happy to see her. Mother completed a parenting class.
At the six-month review hearing on May 1, 2006, the court terminated father’s reunification services. Mother still had not participated in individual counseling, a domestic violence program, or substance abuse testing. Mother had visited the boys regularly and was employed. She said she needed more time to complete her schooling and case plan, and find housing for the boys. The court ordered that mother receive reunification services for another six months. The court ordered the DPSS to provide mother with $1,000 for a rent deposit and first month rent, conditional upon mother maintaining the monthly rent. Also, once mother submitted a hair follicle for drug testing, mother could have unsupervised visitation with the boys if her drug test results were negative.
The 12-month status review report, filed on September 26, 2006, stated that mother no longer was employed and was living with an unidentified woman. Mother had failed to provide the DPSS with the woman’s identification so that the person could be Live Scanned to determine if she had a criminal history. Mother had been told she could not have anyone live in her home without a cleared criminal history background check. Mother said that on October 1, she was moving into the home of a family friend who could be Live Scanned.
The report further stated mother had completed her medical assistant program and was completing her internship. She was unable to work during her internship, which she anticipated completing the beginning of October. She could then work and pay for rent. Mother had not attended domestic violence individual or group counseling, and had only attended the intake session for the domestic violence program. Because her drug test results were negative, she was permitted to have unsupervised visits with the boys.
On December 12, 2006, the DPSS filed an addendum report recommending the court terminate mother’s reunification services and set a section 366.26 hearing (.26 hearing) due to mother’s unstable living arrangements and because mother had used poor judgment in riding with her three boys in the back seat of a car without using any child car seats.
Father was in prison and mother had lost her housing. The DPSS therefore gave mother permission to take the boys to maternal grandmother’s (m-grandmother) home for overnight visits. JP later said they did not go there. He did not know where they stayed. Mother moved and did not provide the DPSS with her new address or a contact number where the boys were staying with her. Mother also failed to show up or cancelled visits several times. According to the social worker, mother was unreliable picking up the boys for visits. Five times in 2006, she failed to pick up the boys for scheduled visits.
The DPSS concluded that despite having ample time to complete her schooling and find adequate housing, mother failed to obtain adequate housing. She also showed poor judgment and was unreliable. In addition, mother lost her housing and the $1,000 DPSS gave her for her first month rent and deposit.
The DPSS reported that the boys’ current caretakers, with whom they had been placed in March 2006, wished to adopt the boys, and the boys were flourishing there.
At the 12-month review hearing on January 9, 2007, mother testified she was living with her grandmother and had completed her case plan, except for the domestic violence classes. She had set up a room for the boys at her grandmother’s home. Mother was still going to school to become a medical assistant. She had been in school for nine months and was doing an externship. Mother testified the program would provide her with a job.
Based on factors stated in the 12-month status report and addendum report, the court terminated mother’s reunification services and set a section .26 hearing. The court noted mother had failed to complete her case plan after receiving 16 months of reunification services.
On May 9, 2007, mother filed a section 388 petition (three JV-180 form petitions) to change the January 9, 2007 order terminating reunification services and setting a .26 hearing. Mother requested the court to order the boys placed with her or, alternatively, for six additional months of reunification services.
Mother based her petition on changed circumstances. She was attending a domestic violence program, Alternatives to Domestic Violence (ADV), which included participating in individual and group sessions. Attached to mother’s petition was a letter from ADV confirming mother had attended seven ADV sessions from April 2006 through April 2007. Mother also had completed her medical assistant course in February 2007, and was working at Loma Linda Skin Center (Skin Center). She had found daycare for the boys in the event they were returned to her, and she believed placing the boys with her was in their best interests because they were strongly bonded to her and wanted to reunite with her.
The DPSS reported in its June 2007 addendum report to its .26 hearing report that the DPSS was unable to confirm whether mother had made any progress in the ADV program or had continued to attend the program after April, because ADV failed to return any of the DPSS social worker’s calls. According to the DPSS, it normally required a parent to attend 16 domestic violence classes, whereas mother had only attended 7 classes over one year. Mother reported she had been attending weekly ADV group sessions but the DPSS was unable to confirm this. Mother also had not attended any individual counseling, as required by her case plan, despite being provided referrals to Family Services of Western Riverside County.
The DPSS further reported that mother was working at the Skin Center as a receptionist approximately 35 hours a week, at $8 an hour and thus would not be able to afford the childcare mother stated she had found for the boys if they were returned to her.
Furthermore, mother had not secured stable housing for the boys. For the past two and a half months, mother had been living in an apartment with her new boyfriend. The new boyfriend had never met the boys and did not want to attend visits with the boys.
The boys had been living with their prospective adoptive parents for over 16 months and were extremely bonded to them. JP said he liked living with his prospective adoptive parents and did not want to leave their home. The boys referred to their prospective adoptive parents as Mommy and Daddy.
The social worker concluded in the addendum report that mother did not have a meaningful relationship with the boys. The boys were not bonded to her. JP said he did not want to leave his prospective adoptive parents’ home and live with mother. EP and IP were too young to voice their views but their behavior demonstrated that the prospective adoptive parents had a comfortable, supportive parental relationship with the boys.
When mother was asked during the .26 hearing whether she had a strong bond with JP, she candidly said, “I believe there’s still something left. I believe there is. . . .” Mother had not consistently visited the boys during the six-month period before the section 388 hearing. She did not visit the boys in March or May 2007.
The social worker reported that during the January 2007 visit, when mother attempted to discipline EP, he told her, “You are not my mommy, you stop, I want my mommy.” He also told her this during the June visit. The social worker supervising the visit said the boys appeared to have no connection with mother. They played by themselves and did not interact with her. Because JP and EP did not want to interact with mother at the February 2007 visit, mother read books to IP and played with him.
At the June 2007 visit, JP cried when his prospective adoptive parent said she was not going to stay during the visit. JP told her not to leave. EP also became upset. The two calmed down when the social worker told them she would stay with them. Mother told JP he should call her mommy and JP did so, but after she left, he referred to her by her first name again. When mother was leaving, IP asked her to pick him up and started crying. After mother held him, and then put him down and left, IP went back to playing. The boys’ caretaker said IP cried whenever family or friends left after visiting the boys.
On July 16, 2007, the court heard and denied mother’s section 388 petition, finding that granting the petition was not in the boys’ best interests. Right after ruling on the petition, the court held the .26 hearing. Mother testified that she believed there was “something left” of her bond with the boys but it was hard to maintain the bond when she was permitted to visit the boys only one hour a month. She also stated she would rather the court order a plan of guardianship, than adoption, so that she could retain her parental rights. Mother claimed she had consistently visited the boys and attended all of the permitted visits, including the March and May 2007 visits. On cross-examination, she acknowledged she had “a problem” with a couple visits.
The court terminated mother’s, as well as father’s, parental rights. The court further ordered adoption to be the boys’ permanent plan.
2. Denial of Mother’s Section 388 Petition
Mother contends the juvenile court erred in denying her section 388 petition. She asserts that she established changed circumstances by eliminating the problems leading to the boys dependency. She went to school, completed a medical assistant program, and was working. Although she postponed completing her case plan until she had completed the medical assistant program, she claims that by the time she filed her section 388 petition, she had fully complied with her plan. She had participated in a domestic violence program, obtained adequate housing for the boys, found day care for the boys, and was employed.
Mother argues that, based on these changed circumstances and her strong bond with the boys, this court should vacate the order terminating her parental rights and the January 9, 2007 order terminating reunification services, and either place the boys with her or, alternatively, grant her six additional months of reunification services.
A. Standard of Review
Section 388 permits a change in a previous court order upon a showing of (1) changed circumstances and (2) a showing that the change in the order might be in the best interest of the child. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) Under section 388, the petitioning party has the burden of showing, by a preponderance of the evidence, both of these elements. (In re S.M. (2004) 118 Cal.App.4th 1108, 1119.) Orders denying section 388 petitions are reviewed for abuse of discretion. (In re Aaron R. (2005) 130 Cal.App.4th 697, 703; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.)
B. Analysis
The record supports the trial court’s finding that mother failed to establish sufficient changed circumstances or that modifying the order terminating reunification services was in the boys’ best interests. The record shows that mother had made progress in reforming but had not sufficiently established that she had eliminated the problems that led to removal of the boys from her custody. Those problems included mother’s proclivity to live with men who physically abused her; the lack of suitable housing for the boys; and her inability to provide care and support for the boys. While mother admirably went to school and completed her medical assistant program, in furtherance of getting a job to support her and her boys, she failed to complete her case plan and establish that she was no longer likely to live with abusive men, that she could provide housing for the boys regardless of whether she continued living with her current boyfriend, and she could provide adequate daycare for the boys.
At the time of the section 388 petition, mother had only attended seven domestic violence sessions spread out over a year. The DPSS social worker stated that the DPSS typically requires a minimum of 16 sessions. Because ADV had not returned the social worker’s call inquiring regarding mother’s participation, the social worker was unable to confirm whether mother had made any progress in the ADV program or whether she was attending weekly group sessions, as reported by mother.
The concern thus remained that mother would continue to form relationships and live with men who had a propensity for domestic violence. Father had physically abused mother, and even after he was released from jail for doing so, mother permitted him to move back in with her. He continued to abuse her until he was incarcerated for another crime. Then she lived with another man who physically abused her and this led to the removal of the boys. After separating with him, she was unable to find suitable housing for the boys.
The court could reasonably conclude that mother had not met her burden of establishing that she had successfully overcome her proclivity to choose relationships with abusive men and would provide the boys with a stable, permanent home.
Mother also had not established she would provide the boys with suitable housing. Throughout the dependency proceedings, she had not lived in stable housing suitable for the boys. Two months before the section 388 petition hearing she moved into an apartment with a new boyfriend who showed no interest in the boys. The suitability and permanency of such housing for the boys was questionable at best.
In addition, although mother provided evidence that she had a job at the Skin Center, the evidence showed that her salary was insufficient to pay for the childcare she had selected for the boys, much less pay for rent and food.
While mother had made significant progress after almost two years of dependency proceedings, she failed to show that her circumstances had changed sufficiently to justify granting her section 388 petition, particularly when taking into consideration the second element mother was required to prove in order to prevail on her petition: the best interests of the boys. Mother was required to prove that modifying the order terminating reunification services was in the boys’ best interests. “It is not enough for a parent to show just a genuine change of circumstances under the statute.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529 (Kimberly).)
To understand the element of best interests in the context of a section 388 motion brought on the eve of a section 366.26 hearing, as in this case, we consider the Supreme Court’s language in In re Stephanie M. (1994) 7 Cal.4th 295 (Stephanie), in which the court stated that, after termination of reunification services and the setting of a selection and implementation hearing, “. . . 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. [Citation.] A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child.” (Id. at p. 317.)
In Kimberly, the court considered the following three factors in considering the best interests of the child: “(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been. While this list is not meant to be exhaustive, it does provide a reasoned and principled basis on which to evaluate a section 388 motion.” (Kimberly, supra, 56 Cal.App.4th at p. 532.)
In relying on these factors, however, the Kimberly court seems to focus primarily on the parent and has overlooked that by the time of the section 388 petition, the focus has shifted to the needs of the child, particularly the child’s need for permanency and stability. (Compare Stephanie, supra, 7 Cal.4th at p. 317.)
In any event, even considering the Kimberly factors, the record supports the juvenile court’s finding that granting mother’s section 388 petition was not in the boys’ best interests. As to the first Kimberly factor, the dependency proceedings in the instant case arose from domestic violence committed against mother by her live-in boyfriend. Mother essentially abandoned the boys while attempting to move out of her abusive boyfriend’s home and find somewhere else to live. Although mother ended her relationships with her boyfriend. She has a history of getting involved with abusive men, including father, who also physically abused her. Mother failed to establish that she fully addressed her problem of becoming involved with abusive men.
While there is no evidence mother’s new boyfriend had a proclivity for domestic violence, at the time of the section 388 petition hearing mother had only been living with him for two months. Furthermore, mother’s new boyfriend indicated he had no interest in the boys and had not met them.
The other problem that led to removal of the boys from mother was that she failed to provide them with a suitable home. Mother has a history of living with abusive boyfriends, breaking up, and moving out. She then has had nowhere to live and, in the past, has not been able to afford to rent a place of her own. Shortly before the section 388 petition hearing, mother moved in with a new boyfriend and had a job, but she failed to establish that her current home would serve as a suitable permanent home for the boys.
As to the strength of the boys’ bonds with mother, the record indicates that although mother visited the boys relatively consistently, she did miss several scheduled visits, including two visits within the six-month period preceding the section 388 petition hearing. Also, the social worker observed that the boys did not appear to be strongly bonded to mother and did not view her as their mother. This no doubt was attributable in part to the boys being young when they were removed from mother and due to mother’s visits being reduced to one hour, once a month. By the time of the section 388 hearing, the boys had not lived with their mother for almost two years. On the other hand, they had been living with their prospective adoptive parents for 16 months and had formed a strong bond with them.
While the bond between the boys and their prospective adoptive family “cannot be dispositive . . ., lest it create its own self-fulfilling prophecy, our Supreme Court made it very clear in Jasmon O. [(1994) 8 Cal.4th 398, 408, 414-422] that the disruption of an existing psychological bond between dependent children and their caretakers is an extremely important factor bearing on any section 388 motion. [Citation.]” (Kimberly, supra, 56 Cal.App.4th at p. 531.) This is because, after termination of reunification services and the setting of a selection and implementation hearing, the parents’ interests in the child are no longer paramount. The focus has shifted to the best interests of the child. (Stephanie, supra, 7 Cal.4th at p. 317.)
As to the third factor, the degree to which the problems leading to the dependency proceedings had been resolved was uncertain at the time of the section 388 hearing. Although mother admirably completed her schooling to become a medical assistant and was working, there was little evidence that mother had fully addressed her problem of becoming involved and living with men who had a proclivity for domestic violence. Mother had attended only seven ADV sessions and had not attended any individual counseling, which was required by her case plan. There was also some question as to whether mother would be able to provide child care and suitable permanent housing for the boys.
In addition, on several occasions mother had shown poor judgment in caring for the boys and had ignored or disregarded restrictions and limitations, such as where the boys could stay with mother and who could be present. Mother had allowed the boys to ride in a car without car seats on one occasion; had taken the boys to an unapproved home instead of taking them to their maternal grandmother’s home, approved by the DPSS; had failed to provide the DPSS of the identity of an individual mother was living with, thus preventing the DPSS from checking the individual’s criminal history; had not always been forthright with the DPSS; and had essentially lost $1,000 provided to her by the DPSS for her first month rent and the deposit.
Even if mother had made progress and her circumstances were changing, mother failed to establish that her circumstances were sufficiently changed and that it was in the boys’ best interests to justify granting the section 388 petition. This juvenile court thus did not abuse its discretion in denying mother’s section 388 petition.
3. Beneficial Parental Relationship Exception
Mother argues the juvenile court erred in not finding the beneficial parental relationship exception (§ 366.26, subd. (c)(1)(A)) applied and therefore terminating her parental rights. Mother did not raise the exception at the .26 hearing.
Generally, an appellant waives or, rather, forfeits claims of error through inaction that prevents the trial court from avoiding or curing the error. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185; In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 102; Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1117.) This general waiver rule or forfeiture rule is “grounded on principles of waiver and estoppel, and is a matter of judicial economy and fairness to opposing parties. [Citations.]” (Smith v. Commonwealth Land Title Ins. Co. (1986) 177 Cal.App.3d 625, 629.)
Although the loss of the right to raise a challenge on appeal due to failing to object in the trial court is often referred to as a “waiver,” the correct legal term for the loss of a right to raise an issue on appeal is “forfeiture,” because a person who fails to preserve a claim forfeits that claim. In contrast, a waiver is the “intentional relinquishment or abandonment of a known right.” (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)
This court will not reverse erroneous rulings that could have been, but were not, challenged below. (Doers v. Golden Gate Bridge etc. Dist., supra, 23 Cal.3d at pp. 184-185; Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 546.) “‘Any other rule would “‘“permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.”’”’” (In re Aaron B. (1996) 46 Cal.App.4th 843, 846.)
By not raising the beneficial parental relationship exception at the .26 hearing, mother forfeited the issue on appeal.
Even if there was no forfeiture, mother failed to meet her burden of proving that the beneficial parental relationship exception applied. (In re Derek W. (1999) 73 Cal.App.4th 823, 826 (Derek); In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.) Generally, at a .26 hearing the court must terminate parental rights if the court finds a child adoptable unless one of six statutory exceptions applies. (§ 366.26, subd. (c)(1)(A)-(F).) The beneficial parental relationship exception (§ 366.26, subd. (c)(1)(A)) is one of the six exceptions.
To meet the burden of proving this exception, mother must show that her relationship with the boys promotes their well-being to such a degree as to outweigh the well-being the boys would gain in a permanent home with new, adoptive parents. “In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575; see also Derek, supra, 73 Cal.App.4th at p. 826.)
As noted in Derek, “[t]he 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.]” (Derek, supra, 73 Cal.App.4th at p. 827.) “[I]t is the extremely rare case where parents who are offered reunification services and then have them validly terminated at a referral hearing can successfully assert the (c)(1)(A) benefit exception.” (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255.) The instant case does not appear to be one of those rare cases. Here, as discussed in the preceding section of this opinion, when the court terminated mother’s parental rights, mother did not hold a strong bond with the boys. Her bond with the boys thus did not outweigh “the security and the sense of belonging a new family would confer.” (Derek, supra, 73 Cal.App.4that p. 827.)
Mother has not established that “severing the natural parent/child relationship would deprive [the boys] of a substantial, positive emotional attachment such that [they] would be greatly harmed.” (Derek, supra, 73 Cal.App.4that p. 827.) The juvenile court thus did not err in not applying the beneficial parental relationship exception.
4. Disposition
The judgment is affirmed.
We concur: McKinster, Acting P. J., King, J.