Opinion
A148097
03-16-2017
In re T.J., a Person Coming Under the Juvenile Court Law. MARIN COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. K.J., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. JV25974A)
K.J. (Father) appeals from the juvenile court's orders denying his Welfare and Institutions Code section 388 petition and terminating his parental rights. We affirm.
All undesignated section references are to the Welfare and Institutions Code.
BACKGROUND
In August 2014, the Marin County Department of Health and Human Services (the Department) filed a Welfare and Institutions Code section 300 petition with respect to T.J. (born January 2011; Minor). The petition alleged Minor's mother, S.M. (Mother), was unable to adequately supervise or protect Minor and had knowingly left him with an intoxicated caretaker. There were no allegations regarding Father, who was identified as the alleged father with an address in state prison. Minor was detained and placed in a foster home.
We omit background facts relating to Mother except as relevant to Father's appeal.
At the September 2014 jurisdiction hearing, Father was elevated to presumed father status. Mother and Father submitted to an amended petition, which added an allegation that Mother has a history of domestic violence and suffers from post-traumatic stress disorder. Father's counsel informed the court that Father was "not currently in a position to offer a home to his son."
In a disposition report, the Department stated Father had a 2010 conviction for grand theft from a person and a 2013 conviction for assault with a deadly weapon. Father was currently serving a four-year prison term for the assault conviction, with an expected release date of March 2016. The social worker had been unable to contact Father in prison but relayed Mother's statements that for about two months after Minor was born, Father lived with them and provided diapers and other supplies for Minor; Father loved Minor but because of his incarceration had "not been present" for much of Minor's life; and it had been about 18 months since Minor last saw Father. Mother also told the Department Father was physically abusive, including one incident when Father broke her nose and knocked her unconscious. In September 2014, Father spoke to Minor on the telephone during a visit between Minor and Mother. Minor asked Father if he remembered when Minor was a baby, but did not keep the conversation going and did not mention him after the conversation. When the social worker asked Minor about Father, Minor smiled, shrugged, and asked if the social worker knew who his father was and where he lived. Father's prison counselor informed the Department the only services potentially available in prison were anger management, but the counselor was unsure whether Father would be allowed to participate. The Department recommended denying reunification services to Father under section 361.5, subdivision (e)(1), noting Minor's young age, the minimal bond between Minor and Father, the violent nature of Father's crime, the lack of services available to Father in prison, and the fact that Father would not be released until after the statutory reunification period. The Department recommended providing services to Mother.
Section 361.5, subdivision (e)(1) provides, in relevant part: "If the parent or guardian is incarcerated . . . , the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, . . . the nature of the crime . . . , the degree of detriment to the child if services are not offered . . . , the likelihood of the parent's discharge from incarceration . . . within the reunification time limitations described in subdivision (a), and any other appropriate factors."
With respect to placement, the disposition report identified Minor's paternal grandmother (Grandmother) as the only relative interested in potential placement. Both the initial disposition report filed in October 2014 and an amended report filed in November 2014 stated the Department was "currently assessing" Grandmother as a potential placement. The Department provided no further updates to the juvenile court on the status of Grandmother's assessment prior to the disposition hearing, or at any time thereafter.
At the January 2015 disposition hearing, Father did not introduce evidence but contested the Department's recommendation to bypass services. As part of her argument that reunification services would not be detrimental to Minor, Father's counsel noted paternal relatives had "come forward and asked to be considered for placement," arguing the possibility of placement with paternal relatives "undercuts the [Department's] argument that it would be detrimental to the child to continue to have a relationship with [Father]." The juvenile court bypassed reunification services for Father pursuant to section 361.5, subdivision (e)(1). The court ordered reunification services for Mother.
The juvenile court's written order also relied in part on section 361.5, subdivision (b)(12), which authorizes bypass for parents convicted of certain violent felonies.
Reports filed prior to the July 2015 six-month review hearing stated Minor was placed in a fost-adopt home in December 2014 and was doing very well. The juvenile court ordered six more months of services for Mother. In a report filed prior to the twelve-month review hearing, the Department reported Minor continued to thrive with his fost-adopt family but the uncertainty of whether "he will always live with his current foster family or return to his mother's care is definitely creating significant strain for [Minor]." The Department opined, "[Minor]'s emotional difficulties will only continue to increase if there is no resolution with regard to whom he will be growing up with." During these two review periods, Father had no contact with Minor. At the October 2015 twelve-month review hearing, the court terminated services for Mother and set a section 366.26 hearing.
Father filed a writ petition in this court stating he was being released in March 2016, had taken parenting classes in prison, and wanted custody of Minor. This court denied the petition on the ground that it failed to comply with California Rule of Court, rule 8.452, noting additionally the petition presented no arguable issue.
In January 2016, Father filed a section 388 petition requesting the juvenile court order Grandmother assessed for relative placement. The petition attached a declaration from Father's counsel stating Grandmother contacted counsel in late November 2015. According to counsel's declaration, Grandmother said the Department had performed a home inspection and told her "she needed to move to a larger apartment." Grandmother also said she tried contacting the Department "regarding visits with [Minor] on numerous occasions," but the Department did not return her phone calls. Father's counsel reviewed the Department's "Delivered Services Log" and stated it contained notes indicating the Department sent Grandmother "Live Scan and assessment information" in September 2014 after she expressed interest in having Minor placed with her. The notes further indicated in October 2014, Grandmother requested visits with Minor; she had not yet completed her Live Scan. Shortly thereafter, Grandmother had a visit with Minor. According to counsel's summary of the Department's notes, Minor "did not seem to recognize" Grandmother, but the visit went well. The next case note is from October 2015, stating Grandmother told the Department she opposed the adoption and was referred to Father's counsel. In February 2016, the juvenile court denied Father's section 388 petition without holding an evidentiary hearing, noting Grandmother had not completed the Live Scan and placement with Grandmother was not in Minor's best interests.
The petition also sought reunification services for Father on the ground that he had completed a parenting education class while incarcerated and was scheduled to be released in March 2016. Father's appeal does not challenge the juvenile court's denial of this portion of the petition.
"Live Scan is an electronic fingerprinting system that quickly checks an individual's criminal history." (In re Joseph T., Jr. (2008) 163 Cal.App.4th 787, 792, fn. 2 (Joseph T.).)
In reports filed prior to the section 366.26 hearing, the Department recommended terminating parental rights. The reports noted Minor had been with his fost-adopt family for 14 months, was doing very well, and called the fost-adopt parents "mommy" and "daddy." The family was committed to adopting Minor and was also "very open to birth family contact," as long as it is "safe and appropriate" for Minor. At the March 2016 section 366.26 hearing, the Department's social worker testified that Grandmother contacted her about a month earlier to set up a visit with Minor. The visit was "fine," but Minor "didn't know his Grandmother, he asked her name and he wasn't familiar with her." Father's counsel "enter[ed] my client's opposition to the recommendations" but offered no evidence or specific legal argument. The juvenile court terminated parental rights.
DISCUSSION
I. Section 388 Petition
Father argues the juvenile court committed reversible error in failing to evaluate Grandmother under the relative placement preference and in denying his section 388 petition without an evidentiary hearing. We find any error harmless.
Because of this conclusion, we need not decide whether, as the Department argues, Father lacks standing to raise this challenge.
"[W]hen a child is adjudged a dependent of the court and removed from the parents' physical custody, 'preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative . . . .' (§ 361.3, subd. (a).) ' "Preferential consideration" means that the relative seeking placement shall be the first placement to be considered and investigated.' (§ 361.3, subd. (c)(1).) The statute does 'not supply an evidentiary presumption that placement with a relative is in the child's best interests' but it does require the social services agency and juvenile court to determine whether such a placement is appropriate, taking into account multiple factors including the best interest of the child, the parents' wishes, and the fitness of the relative. [Citation.] 'The correct application of the relative placement preference places the relative "at the head of the line when the court is determining which placement is in the child's best interests." ' " (In re R.T. (2015) 232 Cal.App.4th 1284, 1295-1296, fn. omitted (R.T.).)
Section 361.3, subdivision (a), provides the relevant factors in determining whether placement with a relative is appropriate include: "(1) The best interest of the child, including special physical, psychological, educational, medical, or emotional needs. [¶] (2) The wishes of the parent, the relative, and child, if appropriate. [¶] (3) The provisions of Part 6 (commencing with Section 7950) of Division 12 of the Family Code regarding relative placement. [¶] (4) Placement of siblings and half siblings in the same home, unless that placement is found to be contrary to the safety and well-being of any of the siblings, as provided in Section 16002. [¶] (5) The good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect. [¶] (6) The nature and duration of the relationship between the child and the relative, and the relative's desire to care for, and to provide legal permanency for, the child if reunification is unsuccessful. [¶] (7) The ability of the relative to do the following: [¶] (A) Provide a safe, secure, and stable environment for the child. [¶] (B) Exercise proper and effective care and control of the child. [¶] (C) Provide a home and the necessities of life for the child. [¶] (D) Protect the child from his or her parents. [¶] (E) Facilitate court-ordered reunification efforts with the parents. [¶] (F) Facilitate visitation with the child's other relatives. [¶] (G) Facilitate implementation of all elements of the case plan. [¶] (H) Provide legal permanence for the child if reunification fails. [¶] However, any finding made with respect to the factor considered pursuant to this subparagraph and pursuant to subparagraph (G) shall not be the sole basis for precluding preferential placement with a relative. [¶] (I) Arrange for appropriate and safe child care, as necessary. [¶] (8) The safety of the relative's home. For a relative to be considered appropriate to receive placement of a child under this section, the relative's home shall first be approved pursuant to the process and standards described in subdivision (d) of Section 309."
"To prevail on a section 388 petition, the moving party must establish that new evidence or changed circumstances exist so that the proposed change in the court's order would promote the best interests of the child. [Citations.] Unless the moving party makes a prima facie showing of both elements, the petition may [be] denied without an evidentiary hearing. [Citation.] The determination of whether to change an existing order is 'committed to the sound discretion of the juvenile court, and [its] ruling should not be disturbed on appeal unless an abuse of discretion is clearly established.' " (In re Marcelo B. (2012) 209 Cal.App.4th 635, 641-642.)
In arguing the juvenile court's ruling was reversible error, Father relies on R.T. and In re Isabella G. (2016) 246 Cal.App.4th 708 (Isabella G.). In R.T., the days-old minor was detained and placed with the father's ex-girlfriend. (R.T., supra, 232 Cal.App.4th at p. 1292-1293.) Less than two weeks later, two paternal aunts requested the minor be placed with one of them. (Id. at p. 1293.) The agency performed home safety inspections but, per the subsequent testimony of an agency social worker, "never considered the paternal aunts for placement." (Ibid.) At the combined jurisdictional and dispositional hearing, one of the paternal aunts reaffirmed her interest in custody and both parents urged placement with the paternal aunts, but the request was denied. (Ibid.) Following this hearing, when the minor was three months old, the paternal aunts' homes were approved for placement. (Ibid.) One month later, one of the aunts filed a section 388 petition to modify the minor's placement on the ground she had been denied preferential consideration for placement. (Id. at pp. 1293-1294.) The juvenile court denied the petition ten months later, concluding that section 361.3 did not apply after disposition, and that while the father's ex-girlfriend and the paternal relatives "would 'each provide a loving and safe environment for [the minor] to grow up in' . . . [,] preserving the child's bond with [the father's ex-girlfriend] was more important to the child's well-being than the family relationships that placement with the paternal relatives would preserve." (Id. at pp. 1299, 12945.)
The Court of Appeal reversed, finding section 361.3 applies "where the relatives invoked the preference before the dispositional hearing, the agency and court failed to apply it at disposition, and the error was timely raised by a section 388 motion. Under these circumstances, the court should have directed the agency to evaluate the relatives for placement under the relevant standards (§ 361.3, subd. (a)(1)-(8)) and, upon receipt of the evaluation and the agency's placement recommendation, exercised its independent judgment to consider if relative placement was appropriate." (R.T., supra, 232 Cal.App.4th at p. 1300.) The court found the error prejudicial "because the juvenile court may well have reached a decision more favorable to the relatives had it considered the relative placement preference." (Id. at p. 1301.)
In Isabella G., the 23-month-old minor was in her parents' custody when she was detained, but had lived with her paternal grandparents for most of her life and they immediately requested she be placed with them. (Isabella G., supra, 246 Cal.App.4th at pp. 712-713.) Instead, the agency placed the minor with a nonrelative extended family member, did not assess the grandparents' home for placement, and told the family they would have to wait a year until the minor could be moved again. (Id. at p. 713-714.) The grandparents saw the minor every other weekend and continued to request placement. (Id. at p. 714.) After reunification services were terminated, the grandparents filed a section 388 petition seeking the minor's placement. (Id. at p. 715.) Following the petition's filing, the agency approved their home for placement. (Ibid.) The juvenile court denied the petition, concluding the relative placement preference did not apply because reunification services had been terminated. (Id. at p. 717.) In a ruling "entirely predicated on [the minor's] best interest," the court concluded the grandparents "did not meet their burden under section 388 to show a change of placement was required." (Ibid.)
The Court of Appeal reversed, first "reject[ing] the argument the relative is required to file a section 388 petition to trigger a relative home evaluation, and may lose his or her right to preferential consideration for placement under section 361.3 if a section 388 petition is not timely filed." (Isabella G., supra, 246 Cal.App.4th at p. 722.) Further, although "a relative seeking placement of the child is entitled to file a petition under section 388 to trigger a relative placement assessment . . . , in determining whether the child should be placed with the relative, the juvenile court should not substitute the generalized best interest showing required under section 388 for its independent assessment of the relevant statutory criteria under section 361.3." (Id. at p. 722, fn. 11.) The court concluded the error was prejudicial: "The record shows [the grandmother] was [the minor's] primary caregiver from birth until she was almost two years old. [The minor] missed [the g]randmother and was happy to be with her. [The caregiver] facilitated additional contact with [the g]randmother at [the minor's] request, sometimes as often as three times a week. [The minor] had her own bedroom at her [g]randparents' home. At the second [team decision meeting], [the caregiver] recommended [the minor] be placed with [the g]randmother. When asked, [the minor] consistently said she wanted to stay with [the caregiver] or live with [the g]randmother. [The caregiver] believed [the minor] would be affected if returned to [the g]randmother's care, but would not suffer any harm. The Agency had approved [the g]randparents' home for placement. Focusing on the history and quality of [the minor's] relationship with [the g]randmother instead of on the quality of [the minor's] relationship with her caregiver may lead to a different outcome on remand." (Id. at p. 724.)
Assuming, without deciding, the juvenile court's ruling was in error, Father has failed to demonstrate prejudice. "The relative placement preference . . . is not a relative placement guarantee . . . ." (Joseph T., supra, 163 Cal.App.4th at p. 798 [finding erroneous failure to apply relative placement preference was harmless where "[t]he record shows compelling reasons not to place [the minor] with his [relative]"].) First, the record does not demonstrate a reasonable probability Grandmother's home would even be approved for placement. According to Father's petition, the Department told Grandmother she needed to move to a larger apartment, yet he submitted no evidence either contesting the Department's assessment or suggesting Grandmother was able or willing to move. (Cf. R.T., supra, 232 Cal.App.4th at p. 1293 [relatives' home approved for placement]; Isabella G., supra, 246 Cal.App.4th at p. 715 [same]; see also § 361.3, subd. (a)(8) ["For a relative to be considered appropriate to receive placement of a child under this section, the relative's home shall first be approved pursuant to the process and standards described in subdivision (d) of Section 309."].) Second, even if Grandmother's home were approved for placement, it is not reasonably probable the juvenile court would place Minor with Grandmother. Minor was extremely bonded to his fost-adopt family and thriving with them. In contrast, he had no bond with Grandmother, not even recognizing her at either of the only two visits during the duration of this case. (Cf. Isabella G., at p. 724 [relative was minor's "primary caregiver from birth until she was almost two years old," minor "had her own bedroom at [relative's] home," and minor "consistently said she wanted to stay with [her current caregiver] or live with [relative]"]; see also § 361.3, subd. (a)(6) [relevant factors for relative placement include "[t]he nature and duration of the relationship between the child and the relative"].) Any error was harmless.
II. Termination of Parental Rights
Father next contends the juvenile court violated his right to due process by terminating his parental rights without having made a finding that Father was an unfit parent.
" '[U]ntil the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship.' [Citation.] Thus, '[b]efore a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.' " (In re T.G. (2013) 215 Cal.App.4th 1, 14, italics omitted.) "The California dependency system comports with federal due process requirements because '[t]he number and quality of the judicial findings that are necessary preconditions to termination convey very powerfully to the fact finder the subjective certainty about parental unfitness and detriment required before the court may even consider ending the relationship between natural parent and child.' [Citation.] [¶] While California's dependency scheme no longer uses the term 'parental unfitness,' and instead requires a finding that awarding custody of a dependent child to a parent would be detrimental to the child, due process requires that the finding of detriment be made by clear and convincing evidence before parental rights may be terminated." (In re G.P. (2014) 227 Cal.App.4th 1180, 1193.)
We need not and do not decide whether, as the Department argues, a finding of detriment was not required here. We also do not decide whether Father forfeited this claim by failing to raise it below.
We reject Father's claim. The juvenile court made a finding of detriment with respect to Father when it denied him reunification services pursuant to section 361.5, subdivision (e), which provides that an incarcerated parent shall receive reunification services "unless the court determines, by clear and convincing evidence, those services would be detrimental to the child." (See § 366.26, subd. (c)(1) ["A finding under . . . paragraph (1) of subdivision (e) of Section 361.5 that reunification services shall not be offered, . . . shall constitute a sufficient basis for termination of parental rights."].)
Father argues the juvenile court's detriment finding under section 361.5, subdivision (e)(1) is not necessarily a finding he is unfit because it could be based on factors such as the child's age or his incarceration. Father cites no authority for this proposition. To the contrary, "[a] finding of detriment to the child is equivalent to a finding of parental unfitness." (In re Jason J. (2009) 175 Cal.App.4th 922, 931, fn. 2; see also Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 253 [equating finding of parental unfitness with finding that return to the parent's custody would be detrimental to the child]; In re Cody W. (1994) 31 Cal.App.4th 221, 224-226 [rejecting argument that findings of detriment, as opposed to parental unfitness, are insufficient to support termination of parental rights].)
Father further argues the juvenile court's bypass order is insufficient because it erroneously relied on section 361.5, subdivision (b)(12), which authorizes bypass for parents convicted of certain violent felonies. Father contends there was no evidence his conviction was a violent felony within the meaning of this subdivision. However, the court apparently relied on this ground only in the alternative, and it is not necessary for us to rely on it to reach the conclusion that the juvenile court made a sufficient finding of detriment. Moreover, the nature of Father's crime—regardless of whether it is a violent felony within the meaning of subdivision (b)(12)—is relevant to the detriment analysis in section 361.5, subdivision (e)(1).
Finally, Father points to a case holding jurisdiction cannot be based solely on a parent's incarceration when the parent can make alternative arrangements for the care of the minor, and argues he offered Grandmother as an alternative care provider. (In re S.D. (2002) 99 Cal.App.4th 1068, 1077 ["If [the parent] could arrange for care of [the minor] during the period of her incarceration, the juvenile court had no basis to take jurisdiction in this case"]; see also section 300, subd. (g) [juvenile court jurisdiction where "the child's parent has been incarcerated . . . and cannot arrange for the care of the child"].) This case is inapposite, as jurisdiction here was predicated on Mother's conduct. Father cites no authority that the existence of a possible relative placement precludes a finding of detriment. Contrary to Father's contention, the juvenile court's detriment finding was not based on the juvenile court's belief that he was unable to arrange care for Minor.
DISPOSITION
The juvenile court's orders are affirmed.
By separate order filed this date, we deny Father's related petition for writ of habeas corpus (A149844) raising an ineffective assistance of counsel claim.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
NEEDHAM, J.