1

Filed 4/28/14 In re K.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 K. M

. et al., Persons Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,

v. S .M. et al. Defendants and Appellants. E058604 (Super.Ct.No. RIJ1100622)
OPINION

APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson, Judge. Affirmed. Lori A. Fields, under appointment by the Court of Appeal , for Defendant and Appellant S.M. Linda Rehm, under appointment by the Court of Appeal , for Defendant and Appellant K.M.2

Pamela J. Walls, County Counsel, Raymond M. M istica, Deputy County Counsel, for Plaintiff and Respondent. INTRODUCTION This is an appeal by S.M. (mother) and K.M. (father) from the trial court’s orders
under Welfare and Institutions Code 1 section 366.26 regarding their three children, K i ., K e ., and K a. Father and mother both challenge the trial court’s July 10, 2013 , order terminating their parental rights and selecting adoption as the permanent plan for Ka. Mother also challenges the trial court’s March 12 , 2013 , order authorizing reasonable visita tion with Ke. as directed by the child’s legal guardian. Finally, the parents challenge the trial court’s summary denial of the ir section 388 petition in which they asked the court to rem ove Ki.’s social worker and psychotherapist. For reasons we now exp lain, we conclude the claims of mother and father are meritless, and we will affirm the challenged orders.

FACTUAL AND PROCEDURAL BACKGROUND The pertinent facts are undisputed. Therefore, we take our statement of the pertinent details from the parties’ r espective briefs.

1 All further statutory references are to the Welfare and Institutions Code unless indicated otherwise.3

Los Angeles County Department of Children and Family Services (DCFS) initiat ed this dependency in October 2009 after receiving a referral that then six

- year - old
K i

. and four

- year - old K e . were at risk for physical abuse by father. DCFS f iled section 300 petitions with respect to both boys alleging father abused the children by striking them , and by grabbing Ki

. around the neck and threatening the child by saying he would never see his family again if he told anyone about the abuse. As to mother, the petition alleged she failed to protect her children from abuse by father

. The trial court placed the children with m other . In September 2010, a fter father completed reunification services that included alcohol treatment, anger management , an d parenting classes, the trial court allowed him to move back into the home with mother and the children. In March 2011, DCFS received another referral of physical abuse after Ke

. reported father had spanked him with a stick and , as a result , t he child was in so much pain he could not sit down. The reporter stated the child’s buttocks were severely bruised
and marked. Based on the referral, DCFS file d a section 387 petition, later superseded by an amended petition filed in April, alleging father and mothe r both had physically abused the children by hitting them with belts, causing marks and bruises. The petition further alleged father hit the children with a board, tied their hands and feet , and pinched them. This time the court removed the children from the parents’ custody , ordered reunification services and monitored visits. Because mother and father were living in Riverside
Co unty , the case was transferred to that county in May 2011.4

Riverside County Department of Public Social Services (DPSS) place d Ke

. with a foster family in Moreno Valley. Although Ki

. initially had been placed with a foster family in Los Angeles, in June 2011, DPSS placed him in the same foster home with Ke. DPSS referred Ke

. to the county department of mental health after he w as suspended from school for five days apparently because he had pushed a student, and then banged on the classroom window. When he was s ent to the principal’s office, K e . refused to go inside, and then flipped over a chair in the school office.
A psych ologist diagnosed Ke

. with ADHD combined with oppositional disorder, and prescribed psychotropic drugs

. By October 2011, DPSS recommended the boys be returned to the care of mother and father with family maintenance services. At the pertinent review hea ring, the trial court followed that recommendation. On March 6, 2012, DPSS received an immediate response referral through the child abuse hotline after Ke

. ran away from the family’s apartment to the leasing office of the apartment complex and reported he was afraid to go home because he gets “woopings” from mother and father, but mostly father. The child had a number of small bruises on the inside of his left leg that he said were caused by mother hitting him with a belt. Ke

. also had a large bruise on his buttocks and said father hit him with a wooden stick or pa ddle. Ki . reported he had also been abused by father

— f ather would grab Ki. by the neck and tell him to pay attention. Ki

. had a bruise on his neck and reported having other bruises on his uppe r thigh.5

DPSS filed a supplemental petition on March 8, 2012, later superseded by an amended petition, with respect to both Ke

. and Ki. Among other things, DPSS alleged mother and father physically abused both children causing injury to each of them . The petition further alleged Ke

. refused to go home to his parent s . According to the social worker’s detention hearing report , Ke

. said his mother “whooped” him because he misbehaved at school. Mother admitted she “whooped” the child with a belt. T he socia l worker noted the parents had both been advised many times not to use physical discipline on the children. The social worker also reported the parents did not agree that Ke

. had ADHD and did not believe in psychotropic medication. They apparently had ta ken Ke. off his medication and, as a result, Ke

. engaged in very disruptive behavior at school. Dr. Vivanco examined both children on March 8, 2012, at Riverside County Regional Medical Center. The doctor reported Ki

. and Ke

. had suffered severe physical abuse . Both Ki. and Ke

. had scars on their necks the doctor believed had been caused by
f ingernails and which were consistent with strangulation. They b oth had other patterned

scars on the neck, chest, back, arms, thighs, and legs . Those scars were cons istent with having been inflicted by a belt. According to Dr. Vivanco, both Ki

. and Ke . described severe and repetitive ly inflicted trauma. At the detention hearing on March 9, 2012, the trial court ordered the children detained and removed them from the physical custody of both parents

.6

After Ki

. ’s caretaker reported the child broke out in hives when he was told he was going to visit with his parents, DPSS referred the child to Dr. Klebel. Another time , Ki

. urinated on himself just as he was about to l eave for a visit with his parents. Ki

. told the social worker he was “scared” of father; he was afraid father would “whoop” him with a belt or choke him out by putting his hands around Ki

. ’s neck. Dr. Klebel diagnosed Ki

. with Posttraumatic Stress Disorde r (PTSD), as evidenced by the child’s report that he has daily memories of abuse, and nightmares several times each week. Dr. Klebel also attributed Ki

. ’s bedw etting to PTSD. In the doctor’s opinion,
the fact Ki

. breaks out in hives before a visit with h is father is “a sure sign” the child is “very much emotionally and physically afraid of his father. ” Dr. Klebel recommended
Ki

. be allowed to decide whether he wanted to visit with father, but if the child breaks out
in hives, he should not see father eve n if Ki. says otherwise.
Ki

. also reported he did not want to see his younger brother , Ke

. , because Ke

. h ad been touching Ki

. ’s “private area s ” wh ile Ki

. was sleeping

. Dr. Klebel reported in a May 2012 progress report for Ke

. that the child had drawn a pic ture of himself tied to a chair, and then lying face down on a bed, being beaten with a belt. Ke

. d rew many scars on his body. Dr. Klebel reported both Ki

. and Ke

. had said father told them “what happens in the family stays in the family.” Dr. Klebel wa s particularly bothered by the fact that Ke

. apparently had been sexually abusing his older brother , Ki ., for many years , including during the times the children lived with their parents

. Dr. Kozman evaluated Ke

. and diagnosed PTSD, ADHD, cond uct disorder , and7

depression. The doctor prescribed Clonidine and Vy vanse for the child, which his caregiver reported resulted in a big improvement in Ke

. ’s behavior. On July 18, 2012, the trial court found the allegations of the amended section 387 petition to be tr ue as to both Ki

. and Ke. Among other things, the court denied reunification services to mother and father because they had made minimal progress on their respective case plans and the time for services had expired. The trial court set the section 366.26 selection and implementation hearing for November 15, 2012.
In A ugust 2012, mother gave birth to Ka. DPSS filed a petition on the infant’s behalf alleging jurisdiction under section 300, subdivisions (b) and (j), because mother and father had engaged in multiple acts of physical abuse of Ki. and Ke. , they had

re ceived services since 2009 but had not benefited from those services, they h ad failed to reunify with Ke

. and Ki . and, as a result , Ka

. was at risk of similar physical abuse

. At the detention hear ing, the trial court detained Ka

. , and placed the infant in the same foster home with Ki. By the time of the jurisdiction hearing on November 13, 2012, DPSS had placed
Ka

. with the child’s paternal great aunt and uncle , and the infant had been living in th eir home for nearly two months. T he trial court removed Ka

. from her parent s ’ custody, and denied them reunification services. At a review hearing on November 28, 2012, the court ordered Ki

. and Ke

. maintained in their respective placements , with the goal of legal guardianship as the permanent plan. The social worker reported Ki

. had been severely traumatized by his parents and , even though he did not have contact with father, his visits with mother or8

other relatives would cause him to remember the terro r he experienced in his parents’
home. Ki

. wou ld regress to the age of a four

- year - old child , break out in hives, and wet the bed. After several continuances, and changes in the recommended permanent plan s, t he trial court conducted the selection and impl ement ation hearing for K e . on March 12,
2013 , and order ed legal guardianship with his current c aretaker as the permanent plan. On July 10, 2013, the court conducted the selection and implementation hearings for both
Ki

. and Ka. With respect to K i

. , the c ourt ordered legal guardianship as the permanent plan. After finding Ka

. was likely to be adopted , the court terminated the parental rights of mother and father, and ordered adoption as the permanent plan. DISCUSSION 1. BENEFICIAL RELATIONSHIP EXCEPTION T O PARENTAL RIGHTS TERMINATION Mother and father both contend the beneficial relationship exc e ption to termination of parental rights set out in section 3 66.26, subdivision (c)(1)(B)(i), is applicable with regard to Ka. Therefore, they contend the court er red in terminating their parental rights. We disagree. Section 366.26, subdivision (c)(1) , provides if clear and convincing evidence establishes it is likely the child will be adopted, the court shall terminate parental rights and order the chi ld placed f or adoption. S ection 36 6.26, subdivision (c)(1)(B) (i) , creates

an exception to t ermination of parental rights if “[ t ] he court finds a compelling reason for9

determin ing that termination would be detrimen tal to the child” because “[t] he parents have maintai ned regular visitation and contact with the child and the child would benefit from continuing the relationship.” The court in this case found t he exception did not apply. Mother and father contend the court erred. It is well

- settled, t o prevail in establ ishing the beneficial relationship exception, the parent must demonstrate both that he or she has maintained regular visitation and contact with the child and that a continued parent

- child relationship would “promote[] 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.

. . . 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 In re S.B. (2008) 164 Cal.App.4th 289, 297.) “The factors to be considered when loo king for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the child’s life spe nt in the parent’s custody, (3) the positive or negative effect of interaction between the parent and child, and (4) the chil d’s particular needs

. ” ( In re Angel B. (2002) 97 Cal.App.4th 454, 467.) “[T]he parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits

. . . . [T] he parent must prove he or she occupies a parental role in the child’s life .

. . . [Citations.]” ( In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) The parent must also show more than a relationship which may be beneficial to the child10

to some degree but does not meet the child’s need for a parent. ( In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) The burden of proof is on the party seeking to establish one of the exceptions to the adoption preference. ( In re I.W. (2009) 180 Cal.App.4th 1517, 1527.) Accordingly, unless the evidence compels a finding i n favor of the parent, the challenge to the court’s finding that the exception does not apply must fail. ( In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.) In this case, neither mother nor father testified at the selection and implementation hearing. M oreover, neither of them asserted the beneficial relationship exception at that hearing. The refore, the facts set out in the social worker’s reports are the only evidence pertinent to their claim. Those facts show, as the court observed, both parents had “consistent visitations with [K a.] ” In addition, f

ather cites this court to the social worker’s observation that both he and mother were “appropriate, bonded, attentive, and caring during thei r interaction with Ka.” He argues this evidence establishes a beneficial relationship with Ka. M other also points out the court permitted her to breast

- fe e d Ka. or provide breast milk to the infant’s
caretaker s . Mother and father have not cited any other facts relevant to establishing the previously noted Angel B. factors.11

The social worker’s observation, combined with the court’s finding, establish mother and father maintained consistent visits with Ka. during which they were loving, caring, and behav ed appropriately

. 2
Ka. was 11 months old at the time of the selec tion and implementation hearing in July 2013 . Ka. was only two weeks old when the court removed her from the custody of her parents and placed her in the home of her caretakers. Although it is undisputed the parents maintained consistent visits with the baby during which they behaved appropriately, they simply have failed to meet their burden to demonstrate th e y occupied a parental role in Ka.’s life such that termination of that relationship would be detrimental
to Ka

. 2. VISITATION ORDER Mother contend s the court abused its discretion at the March 12, 2013, selection and implementation hearing for K e . by ordering “ reasonable ” visitation “ as directed by the legal guardian. ” According to mother, the order improperly delegates discretion over

2 Father claims the court might have based the decision to terminate his parental rights on the fact that Ka

. ’s adoptive caretakers, who are family members, could continue to allo w the parents to visit. Father bases this claim on the court’s observation that Ka. “is with family and the parents make consistent visitations with her,” and subsequent statement, “ [t] he Court will indicate that the caregivers continue to have the authority t o allow parental visitation.” Neither comment supports the inference father would have us draw. The first is merely a statement of fact; the second is directed at visitation during the interim between the section 366.26 hearing and such time as a petitio n for adoption is grante d.12

every aspect of visitation to the legal guardian. Mother did not raise this object ion in the
trial court and , therefore , ha s not preserved the issue for review on appeal. 3 The general rule is that a parent’s failure to raise an issue in the trial court forfeits
the issue for appellate review. ( In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on other grounds as stated in In re M.R. (2005) 132 Cal.App.4th 269 [Fourth Dist., Div. Two].) A lthough we have the authority to overlook a party’s failure to ra ise an objection in the trial court, the California Supreme Court has explained, “[T]he appellate court’s discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue. [Citations.] Although an appellate court’s discretion to consider forfeited claims extends to dependency cases [citations], the discretion must be exercised with special care in such matters. ‘Dependency proceedings in the juvenile court are special proceedings with their own set of rules , governed, in general, by the Welfare and Institutions Code.’ [Citation.] Because these proceedings involve the well

being of children, considerations such as permanency and stability are of paramount importance. [Citation.]” ( In re S.B ., at p. 1293.)

3 DPSS contends mother’s appeal is untimely because she did not file her appea l until August 2013. Mother filed a timely appeal from the March 12, 2013, order selecting legal guardianship as the permanent plan for Ke. In Augu st 2013, she filed an appeal from the court’s orders issued at the July 10, 2013, selection and implementation hearing for Ki. and Ka.13

There is no important legal issue to be resolved in this case. Mother did not object at the selection and implementation hearing when the court issued the visitation order. Therefore, she has forfeited her right to cha llenge that order on appeal. The purpose of the rule requiring an objection in the trial court “is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected.” ( In re S.B. , supra , 32 Cal.4th at p. 1293.) 3. DENIAL OF SECTION 388 PETITION At th e section 366.26 hearing on July 10, 2013, the court ordered monthly visits between Ki. and mother , and visits with father in a therapy setting to begin the end of July 2013. On August 7, 2013, DPSS filed a petition to modify that order. DPSS alleged aft er a visit with father on July 10, 2013, Ki. had “episodes of encopresis,

. . . nightmares, night terrors, flashbacks to abuse and witness to same. In order to gain the most benefit from therapy, [ Ki. ] requires no visitation with the patents [ sic ] as he w alks towards [ sic ] a favorable recovery.” To support the allegations in the petition, DPSS appended a letter dated July 30, 2013, from Ki.’s psychotherapist, Edmund Kasner, in which he recommended Ki. not have any contact with his biological parents in or der to facilitate and promote the child’s recovery from his serious emotional, mental, and behavioral
deficits. The court set a hearing on the petition for September 12, 2013.14

On August 12, 2013, mother and father jointly filed a petition to change Ki.’s psychotherapist , social worker , and “legal guardianship.” Both parents alleged the social worker and psychotherapist were biased against them. On that basis , they asked the trial court to issue an order directing Ki. be treated by a therapist not affili ated with DPSS , and for DPSS to assign Ki. a different social worker. The trial court summarily denied the petition , finding the requested change did not promote the best interest s of the child

. Mot her contends the trial court abused its discretion. 4
We begin our discussion with the general principle, “A party may petition the court under section 388 to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponde rance of the evidence, that (1) there i s a change of circumstances or new evidence, and (2) the proposed change is in the child’s best interests. [Citations.] The petition must be liberally construed in favor of its sufficiency. [Citations.] ‘The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing.’ [Citation.] ‘“[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hear ing.” [Citation.]’ [Citation.] ‘ However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] The p rima facie requirement is not met unless the

4 Although father joined in the section 388 petition and also joins in mother’s brief to the extent “it i nures to [ his ] benefit,” we nevertheless refer only to mother in addressing this issue.15

facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition. ’ [Citation.] In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. [Citation.]” ( In re Jackson W. (2010) 184 Cal.App.4th 247, 257

- 2 58 .) Assuming without actually deciding (1) that a section 388 petition is the appropriate procedural device for accomplis hing the goals mother sought in her petition and (2) that mother’s showing was sufficient to establish changed circumstances, her showing failed to establish the second prong, that the re quested change was in the best interests of Ki. Her insistence other wise notwithstanding, mother has failed to demonstrate that either requested change would be in the best interests of Ki. Mother alleged in the section 388 petition that changing Ki.’s therapist would be in the child’s best interest s because Ki.’s “mental health status is a top prior ity for us and we feel that the therapist he is currently seeing is not concern[ed] with that, their only concern is to separate [Ki.] from his family, which he testif[ied] in court he wants to be with.” 5 In the lengthy letter submitted by mother and father to support their section 388 petition, they purported to cite facts to support the view that Ki. wanted to be with his family, and fulfilling that desire was in Ki.’s best interest s .

5 According to the social worker, Ki. told his caretaker he asked to visit with his father in court at the hearing on July 10, 2013, “because he felt ‘safe’ since there were other adults in the Court room including a police officer .”16

Stated bluntly, mother’s “belief” that Ki . wanted to continue to visit with her cannot trump the informed expert opinion of the child’s psychotherapist regarding whether such visits are currently in Ki.’s best interest s . The record is replete with evidence to show Ki. feared his father and that his visits with mother, even though pleasant, triggered negative emotions in the child. Likewise, mother’s view that the
soci al worker is biased against her, even if true , does not demonstrate removal of the social worker is in the best interest s of Ki. Simply put, and d espite mother’s lengthy argument to the contrary, mother failed to demonstrate that replacing Ki.’s social worker and/or psychotherapist would be in the best interests of Ki. W e must conclude mother failed to make a prima facie showing an d, therefore, the t rial court did not abuse its discretion by denying mother’s section 388 petition. DISPOSITION The order terminating the parental rights of mother and father to Ka. is affirmed. The order directing reasonable visitation between the pare nts and Ke. as directed by his legal guardian , is affirmed

. The order denying the parents ’ se ction 388 petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS McKINSTER J. We concur:
RAMIREZ P. J. KING J.