Opinion
G063175
03-29-2024
In re L.V., a Person Coming Under the Juvenile Court Law. v. J.M. et al., Defendants and Appellants. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant J.M. Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant J.V. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Orange County, No. 21DP0406, Robert Goodkin, Judge. Affirmed.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant J.M.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant J.V.
Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
MOORE, ACTING P.J.
L.V. (the child) and his mother (Mother) both tested positive for drugs after L.V.'s birth in April 2021, causing the child to be removed from her custody. Mother also refused to identify L.V.'s father (Father) or provide his contact information. It took over a year for Orange County Social Services Agency (SSA) to locate Father and establish his paternity. Father was eventually offered services and had his first visit with the child in September 2022, when the child was 17 months old. After minimal progress, the juvenile court terminated Father's services and scheduled a hearing to terminate parental rights under Welfare and Institutions Code section 366.26. Father filed a petition under section 388 prior to the section 366.26 hearing, seeking custody of the child based on changed circumstances. The court denied the petition, finding circumstances had not changed and changing custody was not in the child's best interest.
All further undesignated references are to the Welfare and Institutions Code.
On appeal, Father argues the court erred by denying the section 388 petition. We disagree. The court acted within its discretion. It could reasonably infer the child would suffer serious emotional damage if removed from his foster home and placed with Father. The child had been with his foster parents since he was six days old. In contrast, he had not met Father until he was already 17 months old. Further, after their initial meeting, visitation between Father and the child was inconsistent, and there is testimony from a social worker that the child did not appear to be strongly bonded to Father. Because the court did not abuse its discretion, we affirm the orders.
I
FACTS AND PROCEDURAL HISTORY
Given the issues in this appeal, we focus on the facts pertinent to Father.
A. Father's First Section 388 Petition
The child was born in April 2021. At his birth, both he and Mother tested positive for amphetamines. Mother had a history of drug related charges, and her OBGYN's office stated she had tested positive for amphetamines during her pregnancy with the child.
Mother declined to identify the child's Father. She stated Father knew she was pregnant and had given birth. But she did not want Father to be involved, did not intend to put his name on the child's birth certificate, and did not give any information about him. The child was discharged a few days after his birth and placed with his maternal aunt (the maternal aunt) and uncle (collectively, the caregivers).
SSA filed a juvenile dependency petition for the child a week after his birth. The petition alleged Mother was unable to care for the child due to substance abuse issues and Father's identity and whereabouts were unknown. The juvenile court found the juvenile dependency petition was supported by prima facie evidence and ordered the child detained.
In May 2021, Mother identified Father as Juan M. She stated he lived in Perris, California but claimed she did not have his contact information. SSA initiated a due diligence search for Father but could not locate him.
A jurisdictional and dispositional hearing occurred in June 2021. The court found the juvenile dependency petition to be true by a preponderance of the evidence. Custody of the child was vested with SSA. The court ordered family reunification services for Mother, including drug testing, and scheduled a review hearing. Services for Father were bypassed under section 361.5, subdivision (a).
In fall 2021, Mother reported Father was living out of state, but she did not have his contact information. SSA was unable to locate Father.
In January 2022, Mother informed SSA Father's real name was Sebastian M. She had his telephone number but declined to provide it until she could explain the dependency case to him.
The next month, Mother informed SSA Father lived in Moreno Valley, was willing to take a paternity test, and provided his telephone number. She also clarified Sebastian M. and Juan M. were the same person. Mother claimed Father knew about the child's birth but had been living out of state when it occurred. She also stated Father had been living in Moreno Valley for about two months.
After several attempts, SSA contacted Father by telephone on February 16, 2022. Father clarified his correct name was Juan M. and Sebastian was a nickname. He had previously been residing in Oregon and was now living in Perris. He believed he was the child's father, was interested in taking a paternity test, and wanted custody of the child.
Father missed a paternity test scheduled for April 11, 2022. SSA later discovered he had been arrested on March 27, 2022, for numerous charges including elder abuse, possession of narcotics, and transportation for sale of marijuana. Father was released from custody on June 9, 2022.
A 12-month review hearing was held on June 29, 2022. At the hearing, Mother's reunification services were terminated due to the court's concerns about her ability to stay sober. The court did not make any findings as to Father since he remained an alleged parent. The court then scheduled a section 366.26 hearing to terminate parental rights for October 27, 2022.
Father took a paternity test in July 2022, which confirmed he was the child's father. He had his first visit with the child on September 21, 2022. Father was scheduled for 10 visits from late September to late November 2022. He cancelled six of these visits, including five consecutive visits in a row. In December 2022 and January 2023, Father attended three out of eight scheduled visits and cancelled the remaining five visits.
On the eve of the section 366.26 hearing, Father filed a section 388 petition, requesting the court (1) find him to be the presumed father of the child, (2) provide him with family maintenance services, and (3) have the child placed in his custody. SSA opposed the petition and expressed concerns that Father had unresolved substance abuse issues due to his prior arrest. It was also concerned the child would be at risk for abuse due to Father's elder abuse charge.
An evidentiary hearing was held on this section 388 petition in February 2023. Father testified Mother had informed him she was pregnant with the child, but he had moved to Oregon shortly after hearing this news. Mother contacted him shortly after he returned to California. She asked him to take a paternity test to confirm he was the child's father. Father denied any current drug use and also denied he was still in a relationship with Mother.
The court found Father to be the presumed father of the child. It granted his section 388 petition and vacated the section 366.26 hearing. Father was granted reunification services and six hours a week of supervised visitation. Father's services included general counseling, parent education, substance abuse treatment, substance abuse testing, and a 12-step program.
B. Father's Services Terminated
Father started drug testing in March 2023. He took nine tests from March 2023 to the beginning of April. He had one positive test on March 7, and did not show up on March 23, which was considered a positive test. From early April 2023 to the end of May 2023, Father had eight drug tests that were all negative.
Father's attendance at his 12-step program was inconsistent. While he claimed to attend meetings every day, his attendance card showed several missed days. While Father claimed he had other attendance cards showing his attendance on these missed dates, he did not provide them to SSA. Further, during a meeting with SSA on May 15, 2023, a social worker noted Father appeared to have been using drugs because his hands were shaking and he had bloodshot eyes.
From March to May 2023, Father visited the child weekly, though a few visits were cancelled due to Father or the child being ill. Father was attentive at the visits. During a visit in May 2023, the assigned social worker (the social worker) observed the child was comfortable around Father, but the child did not appear to have much of an attachment to him. The social worker observed the child did not pay much attention to Father but spent most of his time watching a movie in the room, observing other children, or looking at the social worker.
During this period, one of the caregivers (the record does not specify which one) informed SSA Mother had stated she was in a relationship with Father and was living with him. The caregiver also reported seeing Mother and Father "together on many occasions," and provided pictures and a video of Mother and Father together. The caregiver also stated Father showed up to visits with the child in Mother's car. Father denied being in a relationship with Mother and denied living with her. He claimed to be in a relationship with another woman.
Prior to the review hearing, SSA reported Father had made minimal progress on services and did "not seem to have established an attachment with the child." It also noted Father had not been forthcoming about his relationship with Mother, which caused SSA to question the veracity of the other information he provided. Further, Mother's reunification services had been terminated and she had unresolved substance abuse issues. Given Father's untruthfulness about their relationship, SSA was concerned Father would not protect the child from Mother.
A review hearing was held on June 5, 2023. The court terminated Father's services and set a section 366.26 hearing for October 3, 2023. However, per an agreement between Father, SSA, and the child's counsel for a "'soft .26 hearing'" (the agreement), the court kept Father's service referrals open until the section 366.26 hearing. The service referrals would be canceled if Father was terminated, dropped out, or stopped participating. The drug testing referral would be cancelled if Father had a positive test or an unexcused missed test. The court also ordered Father to have no contact with Mother. It kept Father's visitation at six hours per week but allowed for two hours of unsupervised visitation if SSA found there were no safety concerns after assessing his home and meeting his reported romantic partner.
The purpose of the agreement was to allow Father the opportunity to continue services and develop a bond with the child so he could potentially file another section 388 petition prior to the section 366.26 hearing.
C. Father's Second Section 388 Petition
Father filed a second section 388 petition on October 3, 2023, requesting custody of the child under family maintenance services (the section 388 petition). He claimed since the court's order on June 5, 2023, he had consistently participated in counseling, completed an outpatient substance abuse program, had engaged in drug testing, had regularly attended Alcoholics Anonymous twice a week, and was now sober. Father also claimed the child had bonded with him and it was in the child's best interest to live with him.
SSA opposed the section 388 petition. It recommended Father's parental rights be terminated because, among other things, (1) Father had not complied with the agreement; (2) SSA remained concerned about his sobriety and that he continued to be in contact with Mother despite the no contact order; (3) SSA had been unable to verify Father could provide a healthy and safe home for the child; (4) the child had been out of Mother and Father's custody for over 24 months and permanently placing the child with the caregivers was in his best interest; and (5) Father had not established an attachment with the child. An evidentiary hearing on the section 388 petition was held from October 3 to 5, 2023 (the section 388 hearing).
As to Father's services, he had completed a substance abuse treatment program prior to the section 388 hearing. He had tested negative on over a dozen drug tests from May through early August 2023, but had a positive test for cannabinoids on July 27, 2023. Father denied using drugs and did not know why he tested positive. Still, per the terms of the agreement, SSA terminated drug testing on August 10, 2023. In addition to this positive test, Father did not complete a 12-step program with his sponsor.
Father had participated in counseling services but had not completed counseling. Nor had he completed parenting classes. He was terminated from parenting services after missing two classes in June 2023.
SSA was also unable to verify Father had a stable and safe home for the child to live in. Father stated he was in a romantic relationship with Karina Z., and they lived together in Perris. Karina Z. passed a background check. The social worker assessed their home in June 2023, and found no safety threats. During the assessment, Karina Z. stated she had lived in the home for eight months and she and Father had been in a relationship for over a year.
Father consistently referred to Karina Z. as his wife. But he clarified they were not married.
During the home assessment, though, the social worker observed Father did not have many belongings in the home. He only had a few items of clothing in the closet. Father claimed he was in the process of moving into the home. The social worker then spoke with Father's landlord. The landlord explained he initially took pity on Father because he had no place to stay. The landlord allowed him to stay at the home for a few days. However, Father had been staying at the property for about two months and had not left. He did not have a lease or rental agreement. The landlord also stated Karina Z. had older daughters living at the property (SSA did not determine their ages). The social worker also observed children's beds in the home.
Father and Karina Z. both admitted Karina Z.'s daughters occasionally stayed at the house but claimed they lived with their father out of state and were not there often. Father denied the home was only a temporary residence. But he failed to submit any proof of residency, such as a lease or addressed mail. At the hearing, Father testified the social worker was lying and he had been living in the home for two years.
There was also evidence Father continued to see Mother despite the no contact order. They were witnessed together on multiple occasions by the caregivers (who were Mother's relatives) and by the caregivers' relatives. Mother was also seen picking up Father after his visits with the child. SSA obtained videos and pictures of them together.
Father denied being in a relationship with Mother or getting rides from her. He claimed he sometimes got rides with Karina Z. who looked similar to Mother. He also stated he would not let Mother see the child if he thought she was using drugs.
Visitation between Father and the child was inconsistent prior to the section 388 hearing. SSA was not able to liberalize visitation due to concerns Father was not being forthcoming about his housing or contact with Mother. So, visitation occurred at a third party facility.
Father was granted six hours of weekly visitation, but he generally only scheduled two two-hour visits per week (i.e., four hours total) and cancelled multiple visits. Many visits were also cancelled because the child refused to visit with Father. Specifically, the child would throw tantrums before each visit. Father was given 20 minutes to calm the child down. If he could not, the visit was cancelled. Due to the cancellations, in July 2023, Father only had two visits with the child for a total of 7 hours and 15 minutes. Two visits were cancelled by Father, and five visits were cancelled due to the child's refusal to visit Father.
The record shows the visitation facility's staff and the caregivers encouraged the child to visit Father.
The child continued to refuse visitation in August 2023. Father was able to soothe the child for at least one visit in August, but it appears no other visits occurred that month. On August 21, 2023, Father reported the child did not want to go into the visitation center and stay for visits. SSA's report prior to the section 388 hearing does not state whether any visitation occurred following August 21. But the social worker testified at the section 388 hearing that visits had not been occurring regularly since July 2023 due to cancellations. Likewise, maternal aunt testified that Father had not been able to calm the child down for visits "[f]or the past two months."
An addendum report prepared by SSA after the section 388 hearing stated Father had one visit for a total of five hours in August 2023. Three visits were cancelled because the child refused to visit, two were canceled by Father, two were cancelled by the caregivers, and Father had one no show. Father had one visit with the child in September 2023 for a total of three and a half hours. Four visits were cancelled because the child refused to visit, one visit was cancelled by the social worker, and one was cancelled due to a holiday. We do not rely on information from this addendum report since it was not available to the court at the section 388 hearing.
Maternal aunt testified at the section 388 hearing that the child was afraid of visiting with Father. When he saw Father at visits, he would try to hide and would kick and scream things like, "'Don't go. Don't go, Mom [referring to the maternal aunt]. Don't go.'" Maternal aunt explained the child threw tantrums at home, but his tantrums at visitation were more intense. The child only kicked or tried to hide prior to or during visits with Mother and Father. He did not engage in this behavior outside of visitation.
At the hearing, Father testified the child gave him hugs and kisses during visits. He stated the child enjoyed visitation and looked happy during visits. He gave the child food, and they would play with toys. He admitted that he only saw the child a few times in July and August of 2023. But he could always calm the child easily. Father believed the child would be sad if visitation stopped.
As for the caregivers, SSA reported they were appropriately caring for the child. They were meeting the child's medical, developmental, and basic needs. The child appeared to be at ease in their home and was observed to be happy and alert with them. The caregivers also wanted to adopt the child.
Following the hearing, the court denied the section 388 petition. It found Father had not shown changed circumstances. It also concluded there was insufficient evidence showing a change of placement was in the child's best interest.
The next month, the court held a section 366.26 hearing. It found the child to be adoptable and was not persuaded by Father's argument for application of the parental bond exception. It terminated Mother and Father's parental rights and freed the child for adoption.
Father appeals the court's denial of the section 388 petition. First, he claims he met his burden of showing changed circumstances. Second, he contends it was in the child's best interest to grant the section 388 petition. He also argues that if we reverse the ruling on the section 388 petition, we should reverse the court's order terminating his parental rights under section 366.26.
Mother also appeals and adopts the arguments made by Father under California Rules of Court, rule 8.200(a)(5). If we reverse the order terminating Father's parental rights, she contends we should also reverse the order as to her. She makes no other arguments.
II
DISCUSSION
A. Applicable Law
"A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) A court's denial of a section 388 petition is reviewed for an abuse of discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71.) A lower court "does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.)
We need not address whether Father met his burden of showing changed circumstances. Even if he met this burden, he would not prevail on the second element. The juvenile court did not abuse its discretion in finding a change in placement did not serve the child's best interest.
B. The Child's Best Interest
"After the termination of reunification services, 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 interest 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 interest of the child." (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) "[T]he burden of proof is on the moving party to show by a preponderance of the evidence that . . . there are changed circumstances that make a change of placement in the best interest of the child." (Ibid.)
Determining a child's best interest involves looking at a number of factors, which can include, "(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." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.)
Here, the juvenile court's analysis focused on the second factor since the child was primarily placed in the dependency system due to Mother's substance abuse. The court did not explain its findings on the second factor in much depth. But it appeared to find that disrupting the bond between the child and the caregivers would be emotionally disruptive to the child, and the bond between the child and Father was not strong enough to justify this disruption. Father has not shown any error in this conclusion.
"[T]he disruption of an existing psychological bond between dependent children and their caretakers is an extremely important factor bearing on any section 388 motion." (In re Kimberly F., supra, 56 Cal.App.4th at p. 531.) "[A] primary consideration in determining the child's best interest is the goal of assuring stability and continuity. [Citation.] 'When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.'" (In re Stephanie M., supra, 7 Cal.4th at p. 317.)
Nothing in the record compels a finding that uprooting the child and placing him in Father's custody would promote the child's need for stability and continuity. The child has been with the caregivers since he was six days old. He had lived with them for two and a half years by the time of the section 388 hearing. The caregivers have provided the only home he has ever known, and they want to adopt him. The record indicates he was "well nurtured and cared for by the caregivers." He was comfortable around them and was observed to be happy and smiling in their home. The child also sought out the maternal aunt for comfort and care.
In contrast, the evidence fails to show a strong bond between the child and Father. The child was born in April 2021, and did not meet Father until September 2022. Put differently, the child had no contact or awareness of Father for the first 17 months of his life.
Further, after his initial visit, Father cancelled 11 of 18 scheduled visits from September 2022 through January 2023. Likewise, little visitation occurred from July 2023 through the section 388 hearing. It can be reasonably inferred this lack of visitation prevented Father from forming a durable bond with the child. While Father appears to have shared some enjoyable visits with the child, the court could reasonably conclude their bond, if any, was insufficient to warrant removal of the child from the only caregivers he has ever known. (See In re Jasmon O. (1994) 8 Cal.4th 398, 419 ["[C]ourts may place great weight on evidence that after a substantial period in foster care, the severing of a bond with the foster parents will cause long-term, serious emotional damage to the child"].)
The child also appeared to show great anxiety toward visitation with Father. He threw particularly severe tantrums prior to visits with Father and could not be consoled. He kicked, tried to hide, and screamed "'don't go'" to the maternal aunt. The social worker testified she did not believe Father had made a sufficient attachment to the child because the child did not want to attend visits. This evidence likewise supports a conclusion that severing the child's bond with the caregivers and placing him with Father could cause serious, long-term emotional damage to the child. (See In re Jasmon O., supra, 8 Cal.4th at p. 419.)
Since the second factor strongly favors keeping the child in his current placement, the court did not abuse its discretion by denying the section 388 petition. We recognize it may not have been Father's fault he was absent from the first 17 months of the child's life. But, at this point in the proceedings, we must entirely focus on the child's best interest and not Father's interests. (In re J.C. (2014) 226 Cal.App.4th 503, 527-528.)
Because the court did not err by denying the section 388 petition, we need not address whether it erred by terminating the parental rights of Father and Mother.
III
DISPOSITION
The juvenile court's orders denying the section 388 petition and terminating both Mother and Father's parental rights are affirmed.
WE CONCUR: GOETHALS, J., DELANEY, J.