Opinion
E069513 E069722
06-27-2018
In re B.S., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. H.T. et al., Defendants and Appellants. In re U.S., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. N.S., Defendant and Appellant.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant H.T. Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant N.S. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIJ1600030) OPINION (Super.Ct.No. RIJ1101367) APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Judge. Affirmed. Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant H.T. Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant N.S. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
In these consolidated appeals, N.S. (father) challenges orders terminating his parental rights to U.S. and B.S. H.T. (mother) appeals from the order terminating her parental rights to B.S. Father argues the juvenile court erred by denying his petitions for additional reunification services. Mother filed a brief stating no grounds for reversal, but contending a reversal of the order terminating father's parental rights to B.S. will necessitate reversal of the order terminating her parental rights.
We conclude the juvenile court properly denied father's petitions because he did not demonstrate changed circumstances or that additional reunification services for father would be in the children's best interests. Therefore, we affirm the orders terminating father and mother's parental rights.
I.
FACTS
Appeal No. E069722
The Riverside County Department of Public Social Services (DPSS) received a report of general neglect regarding G.M., mother's son with another man. Mother took G.M. to the emergency room. The child's entire face was swollen and his lip was badly cut, infected, and swollen. A CT scan revealed no fractures, but it showed the child had a sinus infection. The child also had bruises on his extremities and his ears, and he was dehydrated and malnourished. A physician told the social worker that G.M.'s lip had been torn from the gums, which indicated blunt force trauma to the face.
The dependency proceeding regarding G.M. is not a subject of the appeals before this court.
Mother told hospital staff and the social worker that G.M. fell and hit his face on a coffee table, and that the swelling was an allergic reaction to Tylenol. Father told hospital staff that G.M. had fallen and cut his lip almost two weeks earlier. Father's mother (U.S.'s paternal grandmother) told the social worker that G.M. did not have his injuries when she saw him the night before. The social worker saw noticeable bruises on G.M.'s upper arm. Mother told the social worker that she and father had been living in a motel room. Mother denied using drugs, but told the social worker that father had used drugs in the past. She also told the social worker that father's friends would come to the motel room and smoke methamphetamine. During an inspection of the motel room, the social worker and a detective found drug paraphernalia.
U.S., father's daughter with H.R., was the subject of a prior dependency case that resulted in U.S. being placed in father's sole custody under a family maintenance plan. The social worker was concerned that, in light of G.M.'s injuries under suspicious circumstances, U.S. was now at risk of abuse or neglect. DPSS took protective custody of U.S. and placed her in the temporary care of her maternal grandmother.
In an amended petition filed with the juvenile court, DPSS alleged that U.S. is a dependent child under Welfare and Institutions Code section 300, subdivision (b) (all undesignated statutory references are to the Welf. & Inst. Code). DPSS alleged father failed to protect U.S. because he continued to use methamphetamine despite completing substance abuse treatment during the prior dependency proceeding regarding U.S.; father lived a transient lifestyle and lacked adequate resources to care for U.S.; father failed to benefit from services provided in an earlier dependency proceeding; and U.S. was at a high risk of suffering harm like G.M. did.
The amended petition also alleged that H.R.'s whereabouts were unknown and that she failed to provide U.S. with support. (§ 300, subd. (g).) H.R. is not a party to father's appeal in case No. E069722.
At the detention hearing, the juvenile court designated father as the presumed father of U.S. The court made a prima facie finding that U.S. was a dependent child under section 300, subdivision (b), and ordered the child detained and placed in the temporary care and custody of DPSS. The court ordered that father be provided reunification services and submit to alcohol and drug testing. Father was granted visitation with U.S. a minimum of twice a week.
In a report filed for the jurisdiction hearing, DPSS recommended father be provided reunification services and visitation with U.S. DPSS contended the evidence supported the allegations in the petition because, although father received services previously and had completed substance abuse treatment, he admitted to smoking methamphetamine with his friends in the motel room; and G.M. suffered unexplained injuries while in father's primary care, so U.S. was at risk of suffering similar injuries. Father told the social worker he wanted reunification services, and he agreed to participate in substance abuse treatment, submit to random drug testing, and complete parenting classes and counseling. Father also agreed to U.S. continuing in her placement with the child's maternal grandmother. Father missed one scheduled visit with the child, but visited with U.S. two other times during the reporting period and bonded well with the child.
At the jurisdiction hearing, the juvenile court indicated its tentative ruling was to sustain the allegations against father in the amended petition, but not follow DPSS's recommendations and deny father reunification services pursuant to section 361.5, subdivision (b)(13). Father's counsel asked that the matter be set for a continued disposition hearing, that father's visits not be reduced, and that U.S.'s paternal grandmother be assessed for possible permanent placement and be granted visitation. The court found the allegations in the amended petition were true by a preponderance of the evidence, and that U.S. was a dependent child within the meaning of section 300, subdivision (b). The court continued the matter for a contested disposition hearing and directed DPSS to provide the paternal grandmother with visitation once a week and assess her for possible placement. DPSS was also ordered to provide father with supervised visitation.
In an addendum report for the contested disposition hearing, DPSS again recommended father be provided reunification services. The social worker reported that visits were scheduled once a week in the early morning so as not to conflict with father's schedule for his substance abuse program and to allow for the paternal grandmother to participate in visits before she went to work. Father completed his intake at family preservation court, attended his first group meeting, started participating in a substance abuse group three times a week and a 12-step program, and was submitting to random drug testing. All of father's drug tests during the reporting period were negative.
The contested disposition hearing was continued, and DPSS filed an additional addendum report. Once again, DPSS recommended father receive reunification services and supervised visits with U.S. The social worker reported U.S. seemed to be "happy and attached to her father," and she maintained a close bond with father despite being placed outside of his home. During visits, father and U.S. played, laughed, and ate together. The social worker opined U.S. and father should be given the opportunity to reunify. The social worker reported that father recognized he had made bad choices in the past but was committed to staying sober to have U.S. with him.
At the continued disposition hearing, counsel for DPSS and for U.S. recommended the court find that provision of family reunification services to father would be in the best interest of the child. Father's attorney read into the record a stipulation with counsel for DPSS, which stated, inter alia, that "[p]resently father is immediately engaged in services," "[h]e's been testing negative and has shown a strong bond with his daughter," and father was remorseful over his relapse into drug use and was "dedicated to sobriety in order to reunify" with U.S. Counsel argued it was in the child's best interests to provide father with reunification services. Counsel for H.R. (U.S.'s mother) objected to reunification services for father. Notwithstanding its finding that 361.5, subdivision (b)(13), "does clearly apply," the juvenile court accepted the stipulation that father had "an established bond" with the child and had made "significant progress." The court found by clear and convincing evidence that it was in the best interest of the child that father be provided with reunification services. The court also liberalized visitation, but ruled that continued placement outside of father's home was necessary.
In a six-month status review report, DPSS recommended that father be given an additional six months of reunification and that the juvenile court authorize unsupervised, overnight and weekend visits after successful completion of a suitable home evaluation and live scan of all adult occupants. The social worker reported that during the reporting period mother became pregnant. Father told the social worker he and mother were not in a romantic relationship, he had no intention of reconciling with mother, and he was only interested in having a relationship with his unborn child. During the reporting period, father's work and living circumstances were precarious, although he received referrals for sober living homes and was in the process of contacting them. Father's progress in his substance abuse program was good. Father submitted to 29 random drug tests during the reporting period. He tested positive for cannabis once and positive for alcohol once. U.S. appeared to be well bonded with her caregiver. Father's supervised visits with U.S. were "positive and appropriate." Although father was in compliance with his case plan, he lacked stable housing. In addition, the social worker expressed concern over father's continued contact with mother.
At the six-month status review hearing, the juvenile court found that father had made adequate but incomplete progress in alleviating the reasons for the dependency, and found there was a substantial probability that U.S. would be returned to father's care if he were given an additional six months of reunification services.
In its report for the 12-month status review hearing, DPSS recommended that father be granted an additional six months of reunification services, and that father be granted unsupervised, overnight and weekend visits upon completion of a suitable home evaluation. Father informed the social worker that mother had given birth to B.S. (see, post). Father once more told the social worker that he and mother were not in a romantic relationship and had no intention of reconciling, but they were "each other's support system." Father's living situation had not improved much during the reporting period. At first, father reported he was "couch surfing." He then reported he had been working consistently and said he would provide the social worker with proof of employment. Later in the reporting period, father informed the social worker that he had purchased a van and was sleeping in it. The social worker provided father with referrals for low income and sober living housing. Father told the social worker that he had contacted the referrals but was told he earned too much money to qualify. Father also informed the social worker that he had inherited some property in Kansas and that he intended to relocate there. He did not want to spend money securing housing in California when it would be easier to secure housing in Kansas. The social worker discussed with father the process for the Interstate Compact on the Placement of Children (ICPC; Fam. Code, § 7901), and father said he did not intend to relocate until U.S. was returned to his care.
Still later in the reporting period, father told the social worker that he still lacked stable housing and was again "couch hopping." Father now said he planned on securing housing with U.S.'s paternal grandmother. Father failed to provide the social worker with proof of employment. Despite being provided with referrals for counseling, father failed to enroll. Father completed a nurturing parenting class and was scheduled to graduate. As for substance abuse treatment, father's case manager at family preservation court expressed concern that father "was not doing well" because he "didn't 'care about anything'" and said he would choose his job and income over participation in his program. Later in the reporting period, father was reported to be doing well in his program and was scheduled to graduate. Father tested negative for drugs 48 times. The social worker reported that U.S. was healthy and adjusting well to her placement. Despite being a "no show" for some visits during the reporting period, DPSS authorized unsupervised visits for two hours each Friday, and the visits were positive and appropriate.
The social worker reported that father was in compliance with his case plan, but continued to express concern over father's lack of stable housing. In addition, the social worker expressed concern that father was still maintaining contact with mother. The social worker reported that, if U.S. could not be reunified with father, the concurrent plan was for adoption with the child's current caregiver.
At the 12-month status review hearing, the juvenile court again found that father had made adequate but incomplete progress on his case plan. The court found there was a substantial probability that father would reunify with U.S. if given an additional six months of services. The court ordered that U.S. continue as a dependent child, and that she remain under the care and custody of DPSS in her current placement.
However, in a report for the 18-month status review hearing, DPSS now recommended that the juvenile court terminate reunification services to father, set a hearing under section 366.26 for the selection of a permanent plan for U.S., and reduce visitation to once a month. The social worker reported that U.S. was healthy and bonding with her caregiver.
Father reported that he still lacked stable housing but told the social worker that he planned on using his tax refund to secure housing. Father finally provided the social worker with proof of his employment. The social worker also reported that father had applied for low income housing and had scheduled an appointment. Later in the reporting period, father told the social worker that he was "running out of options," and that he intended to move to Kansas and give notice to his employer. Father stated he was hopeful that U.S. would be returned to his care once he was settled in Kansas. Once in Kansas, father failed to provide the social worker with an address. Later, father informed the social worker that he was living in a three-bedroom trailer on a three-acre lot that he had inherited. Father was not employed and was being supported by his step-grandfather. He told the social worker that he was attempting to obtain unemployment benefits.
Before moving to Kansas, father was terminated from counseling for poor attendance. Father was scheduled to graduate from his parenting course and substance abuse program, but the social worker was unable to confirm if that had occurred before father moved to Kansas. Father was a "no show" for one drug test but tested negative when he did show up. Father was not participating in any services in Kansas. Mother told the social worker that she suspected father was using methamphetamine again, and that he was living with a cousin who was a drug user. Father denied that he had relapsed into drug use while in Kansas. Father's last visits with U.S. before he moved were positive and appropriate. After he moved, he had phone visits with the child twice a week.
The social worker opined that, although father had received 18 months of reunification services, his current circumstances had not changed because he had not secured stable housing, and there was not a substantial probability he would reunify with U.S. if he was provided with additional services. The social worker recommended that adoption should be the concurrent plan for the child.
Father did not appear for the 18-month status review hearing, and he could not be located to appear telephonically. Father's attorney requested an additional six months of reunification services for father and argued that father had made "a lot of effort" on his case plan. Counsel informed the juvenile court that father was attending welding school in Kansas and had his own residence, "which has been a problem for a long time." Counsel for DPSS informed the court that father had not completed counseling and, although father "at some point . . . engaged in services, he chose to remove himself from the process" by moving to Kansas. The juvenile court found that returning U.S. to father would create a substantial risk of detriment to her safety and well-being, and that she should continue as a dependent of the court in the care and custody of DPSS. The court found that father's progress toward alleviating the reasons for the dependency had been unsatisfactory, and it terminated reunification services to father. The court set a hearing pursuant to section 366.26 for the selection of a permanent plan for U.S. and directed DPSS to assess U.S.'s caregivers as prospective adoptive parents.
In an addendum report, DPSS recommended the juvenile court terminate father's parental rights and select adoption as the permanent plan for U.S. DPSS favorably assessed U.S.'s caregivers as prospective adoptive parents. In a report filed for the section 366.26 hearing, DPSS reported that the caregivers were actively participating in the preliminary adoption assessment process. U.S. was bonded to her caregivers and her half-siblings, who were also in the home, the caregivers were committed to providing the child with a stable loving home, and they were willing to adopt her. Father had no face-to-face contact with U.S. during the reporting period because he was in Kansas, though he spoke to her on the telephone every other week.
Before the section 366.26 hearing, father filed a petition under section 388 requesting the court set aside its order terminating reunification services, enter a new order granting father an additional six months of services, and authorize a transition of U.S. back into his care. Father asserted there were changed circumstances that justified additional services, to wit, he had relocated to Kansas "in order to have suitable housing for his daughter," he had completed the family preservation court program before moving to Kansas, and the juvenile court had authorized an ICRC with the State of Kansas in his other child's (B.S.) dependency proceeding. Father argued that additional services would benefit U.S. because, before moving, father had positive unsupervised visits with his daughter and, in Kansas, he had found suitable housing, employment, educational opportunities, and had a strong family support system. Father supported his petition with a letter from a career advisor at Southeast Kansas Works, in which the advisor stated father had completed career planning workshops and was enrolled in and successfully participating in a GED program. In addition, father submitted a letter from the Kansas Department for Children and Families. The State of California had requested that Kansas conduct a home study to determine if B.S. could be placed with father (see, post), and a first walk-through of father's residence had been completed. The letter indicated father's grandparents lived in the home and "did not throw items away," and the residence needed to be "cleaned up and [made] safe for a small child prior to approval." Father had also submitted fingerprints. Approval was left open pending completion of background checks and a follow-up home visit.
At the hearing on father's petition, father testified he had moved to Kansas to establish a residence because he did not have a place to live in California. Father testified he had completed the family preservation court before moving, and that the program "showed me what I did wrong and helped me along the way; helped me to stay sober." Father testified he had been sober for a little over two years, and that he attended a weekly meeting in Kansas. Father testified he had completed a 12-step program, and that he felt good about it. Father was working in a maintenance job through a Kansas community college, and he was enrolled in a GED program. Father testified he intended to get a job as a welder. Father testified that when he lived in California, he had unmonitored visits with U.S., usually at a fast food restaurant, for four hours. He was not permitted to have overnight visits because he did not have a residence, and he was staying "place to place."
Father was now living with his father in Kansas and paying rent. The home had three bedrooms, and U.S. would have her own room if she was returned to father's care. Father testified he had provisions for U.S. He also testified that he would submit to random drug tests if U.S. was returned to him. Father testified he had submitted to fingerprinting, and that a second home inspection had been performed. Father said the Kansas social worker was "basically blown away at all the progress." Father believed his home was ready for U.S., and that he had the strong support of his family in Kansas. Father testified that he had maintained contact with U.S. since moving to Kansas, and that he called her twice a week. Father tried to Skype with U.S., but the connection was not good. Father testified that he and U.S. had a "[r]eally strong" bond, and that U.S. called him "daddy." Father stated that he was committed to raising U.S., and he would participate in additional counseling if so ordered.
On cross-examination, father testified he had completed five counseling sessions in California, but his counseling had been terminated because he was late to one session. Father said he tried to do counseling in Kansas, but he could not afford it. Father testified he had not returned to California or had any face-to-face contact with U.S. since moving to Kansas. On redirect, father testified he was working full time, often more than 40 hours a week, which was why he was sometimes late for his counseling sessions and why he had missed some visits. Father testified he had benefited from individual counseling, was willing to participate in additional counseling, and was trying to obtain insurance in Kansas, which would pay for counseling.
Counsel for DPSS argued that father had not demonstrated changed circumstances. Father moved to Kansas before reunification services had been terminated, and he had not yet been approved for ICPC. Counsel also argued that father had not demonstrated how additional reunification services would be in U.S.'s best interest because the child had been living with her grandmother for a significant period of time. Counsel for U.S. also argued the petition should be denied, and father's parental rights should be terminated. Counsel argued that father had not done anything since the termination of services and, four months later, he had not maintained a bond with the child. Counsel argued that U.S. had spent almost her entire life in foster care, and she deserved permanency. Counsel for father argued there were changed circumstances because the main problem that had plagued father and prevented him from having overnight visits was a lack of housing, and he now had stable housing in Kansas. Counsel argued father had maintained contact with U.S., and "[s]he knows who her father is." Father had remained sober for a significant period of time, and he had requested services in Kansas through ICPC. Finally, counsel argued additional reunification services would be in U.S.'s best interest.
The juvenile court noted that father's ICPC request was filed in his companion case, and it had not yet been approved. The ICPC order was made before termination of reunification services, so it was not a changed circumstance. The court also pointed out that U.S. had been living in a good, loving home with her caregivers for almost two years, and that additional reunification services to father would not be in the child's best interests. The court indicated father had been making good progress until he moved to Kansas, but it found no changed circumstances warranting additional reunification services. Therefore, the court denied father's petition.
With respect to DPSS's recommendation that parental rights be terminated and adoption be selected as the permanent plan for U.S., counsel for father argued the beneficial relationship exception to termination applied. Counsel requested that the court select legal guardianship as the permanent plan. Inter alia, the juvenile court found by clear and convincing evidence that U.S. was likely to be adopted, termination of parental rights would not be detrimental to the child, and adoption was in the best interest of the child. The court terminated father's parental rights and directed DPSS to refer U.S. for adoptive placement.
Father timely appealed.
Appeal No. E069513 .
As noted in her brief, mother presents no argument as to why the order terminating her parental rights to B.S. should be reversed. She merely joins in father's brief and argues that a reversal of the order terminating father's parental rights will require reversal of the order terminating her rights. (See Cal. Rules of Court, rule 5.725(a)(1), (g); In re A.L. (2010) 190 Cal.App.4th 75, 79-80.) Therefore, we will not provide a full description of the facts underlying the termination of mother's parental rights.
DPSS responded to a referral when mother gave birth to B.S. Mother was homeless and had entered a sober living home two days before giving birth. Mother tested negative for drugs, so the child was not tested. At that time, the investigation into the injuries sustained by her other child (G.M.) was still ongoing. G.M. had been classified as medically fragile, and mother was subject to a temporary restraining order to have no contact with G.M. Mother reported that she had received prenatal care "off and on" while pregnant with B.S. Mother had not been compliant in her case plan in the juvenile dependency regarding G.M., she had angry outbursts, and she failed to participate in a scheduled psychological evaluation. Mother told the social worker that her trailer had been set on fire by her family members. She also told the social worker that she and father were not in a romantic relationship, but that father "is always around her." A nurse informed the social worker that mother was not taking iron supplements for her anemia and failed to submit to a mammogram, as ordered by her doctors.
When interviewed about the injuries to G.M., mother said the nurse in the emergency room had lied. Mother minimized the extent of G.M.'s injuries, saying the swelling to his face was an allergic reaction to Tylenol. Father told the social worker that he and mother were separated, and that he had no permanent residence. Like mother, father minimized the extent of G.M.'s injuries and said the child had fallen. Father admitted that he and mother used drugs when they were living together in a motel room, but said he had stopped using drugs once G.M. was taken from him. Father said he and mother were in a drug program, and that he was doing well and about to enter "phase three" of the program. Father told the social worker that he wanted to move to Kansas to complete his services because he had inherited property there. Father submitted to a field saliva test and tested negative for drugs.
In an amended petition filed with the juvenile court, DPSS alleged B.S. was a dependent child within the meaning of section 300, subdivisions (b)(1), (b)(2), and (j). DPSS alleged father had failed to protect B.S. In light of the parents' ongoing dependency proceedings and the investigation into the cause of G.M.'s injuries, DPSS determined B.S. was in substantial risk of abuse or neglect, and they detained and placed the child in a foster home. The social worker reported father had been actively participating in reunification services in the dependency proceeding regarding U.S., but he continued to experience transiency and had no stable residence. The social worker recommended the court order B.S. detained and provide father with reunification services and supervised visitation.
At the detention hearing, counsel for father informed the court that father had been making "substantial compliance" in his reunification plan regarding U.S., and asked that B.S. be placed in father's care and custody once he finds suitable housing. The juvenile court designated father as the presumed father of B.S., ordered the child detained and placed in the care and custody of DPSS, and adopted the social worker's recommendations regarding visitation and reunification services.
In a report for the jurisdiction hearing, the social worker recommended that father be given reunification services. B.S. was healthy and doing well in her foster home. The social worker reported that father had been participating in reunification services in U.S.'s dependency, but father had not been keeping the social worker in U.S.'s case informed of his circumstances, including not telling her that he wished to move to Kansas or that mother was pregnant with B.S. Father and mother jointly visited B.S. during the reporting period. Father continued to minimize the extent of the injuries suffered by G.M. and expressed ignorance about the true cause of the injuries. The social worker recommended that the juvenile court find the allegations in the amended petition true and declare B.S. a dependent child. In an addendum report, the social worker reported that father continued to feign ignorance about the cause of G.M.'s injuries and lacked insight into his behavior. Nonetheless, the social worker still recommended that father be given reunification services.
On the original date set for the jurisdiction hearing, father's attorney informed the juvenile court that father was in phase three of family preservation court and was going to graduate soon. Father was employed and "working on getting his own place." Counsel objected to the suggestion in the social worker's report that father was responsible for G.M.'s injuries. Counsel requested that father be given visitation with B.S. for four hours a week. The court continued the hearing and ordered that father continue to have visitation with B.S. for a minimum of four hours a week.
At the continued jurisdiction hearing, father's attorney informed the juvenile court that father had "phased up to Phase 4 in family preservation court." Counsel asked that the court find not true the allegation against father under section 300, subdivision (b)(2), and instead find true that B.S. was at risk of abuse or neglect because of father's open case regarding U.S., pursuant to section 300, subdivision (j). The court noted that father had "made a lot of progress" since the dependency was initiated. The court found all the allegations in the amended petition to be true and declared B.S. to be a dependent child. The court continued the matter for a contested disposition hearing.
In an addendum report, the social worker continued to recommend that B.S. remain out of the parents' care, that father be offered reunification services, and that the prior visitation orders remain in force. The social worker reported that father continued to participate in his services and test negative for drugs, but he was "late on promoting" in his program because he was taking longer than usual to complete detailed step work. B.S. continued to be healthy and to do well in her foster home. Both parents missed a number of visits with B.S. or were late for visits during the reporting period. The social worker once more reported that father continued to feign ignorance about the cause of G.M.'s injuries and still lacked insight into the effect of his behavior.
At the disposition hearing, counsel for father informed the court that father had been doing well in his services and was scheduled to graduate. Counsel told the court that father had been late for visits because he worked the graveyard shift. Father was still trying to find housing. Counsel asked that the court authorize liberalized visitation with B.S., including overnight and weekend visits, as father continued to make progress. The court adjudged B.S. a dependent child, ordered the child to remain out of the parents' care and in the care and custody of DPSS, and granted mother and father reunification services.
In a six-month status report, the social worker recommended the juvenile court terminate reunification services for both parents, reduce visitation to once a month, and set a hearing under section 366.26 to select a permanent plan for B.S. B.S. was happy and healthy. During the reporting period, father was a "no show" for scheduled meetings with the social worker to discuss his case plan. Father reported that he was "couch hopping" and lacked stable housing. Father informed the social worker that he had run out of options in California and had relocated to Kansas. Father had also missed a number of visits with B.S., though completed visits were generally positive. Prior to moving to Kansas, father had been terminated from counseling for poor attendance. Father was scheduled to graduate from a nurturing parenting program. Father had missed one drug test during the reporting period, but had tested negative for drugs when he did report for testing.
B.S.'s caregivers filed an unopposed request for de facto parent status, which the juvenile court granted.
In an addendum report, the social worker reported that father was living in a three-bedroom trailer in Kansas, but was not participating in services. The social worker provided father with referrals for services in Kansas and had referred father's case for ICPC
At the six-month status review hearing, the juvenile court found that mother and father's progress in alleviating the reasons for the dependency had been unsatisfactory, and that they had failed to make substantive progress in their case plans. The court found there was not a substantial probability that B.S. would be returned to her parents with the provision of an additional six months of reunification services. Therefore, the court terminated reunification services and set a hearing under section 366.26. The court ordered visits once a month.
In an addendum report, the social worker recommended that B.S. continue as a dependent of the juvenile court, that the court terminate mother and father's parental rights, and that the court select adoption as B.S.'s permanent plan. B.S. was doing well in her foster home, and her caregivers were committed to providing the child with a permanent home through adoption. The child's caregivers were favorably assessed as prospective adoptive parents.
In a report filed for the section 366.26 hearing, the social worker reported that B.S. was healthy, and that her caregivers were providing for her needs and were committed to adopting the child. B.S.'s caregivers were actively participating in the process of assessing them as prospective adoptive parents, and they had demonstrated their commitment to providing the child with a loving and stable home. Father had not participated in any face-to-face visits with the child during the reporting period because he had relocated to Kansas. The social worker recommended the juvenile court terminate the parents' parental rights and that B.S. be freed for adoption.
Before the section 366.26 hearing, father filed an almost identical petition under section 388 to the one he had filed in U.S.'s dependency case. (See, ante.) As in U.S.'s case, father argued that his relocation to Kansas and stable residence, his completion of the family preservation court program, and the initiation of an ICPC were all changed circumstances warranting an additional six months of reunification services. Father argued additional reunification services would be in B.S.'s best interest if she were raised by father with her half-sister U.S. As in U.S.'s case, father submitted a letter from the Kansas Department for Children and Families, which indicated father's residence had been inspected once and found wanting, and approval of the ICPC was pending.
At the hearing on father's petition, father's step-grandfather testified that he lived three miles away from father in Columbus, Kansas. Father rented his home from his step-grandfather and paid rent. The step-grandfather supported father's request for additional reunification services because father "made a 180-degree turn over the past two years," father had passed two sections of his GED program, and he had plans to start welding school. When not working or going to school, father worked on cleaning his house and getting it ready for the children. Father's step-grandfather testified he believed the home was definitely suitable for children. In addition, father's step-grandfather testified that father had other family members in the area who would support him, including multiple aunts, uncles, and cousins. The step-grandfather testified he had no concerns that father was abusing drugs at that time and stated he would not tolerate such behavior. Father's step-grandfather also testified that he would definitely assist father in raising B.S. or in arranging for childcare if the child were returned to father. Finally, father's step-grandfather confirmed that father had in fact been working and planned on attending welding school.
Father testified that he was attending 12-step meetings and had completed a 12-step program. He had completed family preservation court while he was still residing in California. Father was committed to reunifying with B.S. Father testified his life had changed for the better in Kansas, and stated he had been sober for a little over two years. Father testified he would submit to random drug testing if he were granted additional reunification services. Father testified he had visited B.S. regularly before moving to Kansas, but admitted he had missed some visits because of his work schedule. Father testified that after moving to Kansas, he had not spoken to B.S. because she was too young. He stated that he had a bond with B.S. and enjoyed visiting her. Although the child was too young to call him by his name, father testified the child seemed to know who he was. Father testified his home in Kansas was ready for B.S. to live there, and that she had her own room and toys. Father testified that he knew he had "screwed up," but that he was doing his best now. Father was no longer in a relationship with mother and had no communication with her. Father had requested unsupervised visitation with B.S. while he still resided in California, but the social worker gave no reasons for denying the request. Father believed the social worker impeded his ability to reunify with the child.
On cross-examination, father admitted he had not completed the counseling component of his case plan. Father testified on redirect that he now had a good Internet connection and was able to talk to U.S. regularly.
Counsel for DPSS asked the juvenile court to deny father's petition. Father had completed family preservation court and moved to Kansas before the termination of his reunification services, so those were not changed circumstances. B.S. had been placed in her de facto parent's home since she was three days old and had never lived with father or mother, so it would not be in the child's best interest to grant father additional reunification services. Father's attorney argued there were changed circumstances because father now had suitable housing, he had made progress in his case plan, and he was committed to having B.S. returned to his care. Counsel also argued that B.S. had positive contact with father, and that an additional six months of reunification services would be in B.S.'s best interest.
Counsel for B.S. commended father for having changing circumstances, but argued father had not demonstrated changed circumstances warranting an additional six months of reunification services. Father had not completed his counseling before moving to Kansas. Although father had tested negative for drugs all but two times before relocating, he had not tested since then. Contrary to father's claim that his visits with B.S. were consistent, counsel for the child argued father had missed 18 visits, and when the parents had visited the child, they often fell asleep so the quality of those visits was low. Moreover, father had not had any visits whatsoever during the last reporting period. With respect to the best interest of the child, counsel for B.S. argued the child only knew her caregivers as her parents, she had never had unsupervised visits with father, and there was no parental relationship between father and B.S. whatsoever.
The juvenile court indicated that the letter from the Kansas Department for Children and Families was not particularly relevant because the ICPC had been ordered before father's reunification services had been terminated. The court found that father had not made a showing of sufficient change of circumstances to justify an additional six months of reunification services, and that it would not be in the child's best interests. B.S. had been in a good home for 15 months, which was the only home the child had ever known. Therefore, the court denied father's petition.
As for the recommendation by DPSS that the juvenile court terminate parental rights and free B.S. for adoption, father's attorney asked the court to consider legal guardianship as a permanent plan for the child. Counsel also argued that the beneficial interest exception to termination of parental rights applied because father regularly visited with the child before relocating to Kansas.
Counsel for B.S. argued the juvenile court should follow the social worker's recommendation. The child had lived with her de facto parents since she was three days old. In addition, counsel argued the beneficial exception should be viewed from the perspective of the child, and that the strong bond between B.S. and her prospective adoptive parents militated against finding the exception applies.
The juvenile court found by clear and convincing evidence that termination of parental rights would not be detrimental to B.S., that the child was likely to be adopted, and that the permanent plan of adoption would be in her best interest. The court therefore terminated mother and father's parental rights and directed DPSS to refer the child to a licensed adoption agency.
Mother and father timely appealed.
II.
DISCUSSION
"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. [Citation.] The parent bears the burden to show both a legitimate change of circumstances and that undoing the prior order would be in the best interest of the child. [Citation.] Generally, the petitioner must show by a preponderance of the evidence that the child's welfare requires the modification sought. [Citation.]" (In re A.A. (2012) 203 Cal.App.4th 597, 611-612.)
"A petition for modification is 'committed to the sound discretion of the juvenile court, and the trial court's ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. [Citations.]' [Citations.] ' . . . "[']The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.'" [Citation.]'" (In re A.R. (2015) 235 Cal.App.4th 1102, 1116-1117.) "The denial of a section 388 motion rarely merits reversal as an abuse of discretion. [Citation.]" (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686.)
Father contends the appropriate standard of review is de novo because the juvenile court supposedly interpreted section 388 and concluded father obtaining stable housing in Kansas was irrelevant and not a changed circumstance as a matter of law. We need not address this argument further because, under any standard of review, the juvenile court properly denied father's petitions.
"It is true a parent and a child share a fundamental interest in reuniting up to the point at which reunification efforts cease. [Citation.] However, the interests of the parent and the child have diverged by the point of a [section 366.26] hearing to select and implement a child's permanent plan. [Citation.] '[C]hildren have a fundamental independent interest in belonging to a family unit [citation], and they have compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.' [Citation.] Adoption gives a child the best chance at a full emotional commitment from a responsible caretaker. [Citation.]" (In re J.C. (2014) 226 Cal.App.4th 503, 527.) "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] . . . . 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." (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
"'A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent . . . might be able to reunify at some future point, does not promote stability for the child or the child's best interests. [Citation.] "'[C]hildhood does not wait for the parent to become adequate.'"' [Citation.]" (In re Mary G. (2007) 151 Cal.App.4th 184, 206.)
Father argues his petitions demonstrated changed circumstances because, by moving to Kansas and obtaining stable housing there, he completely addressed "the one last issue that had prevented reunification." Father faults the juvenile court for concluding the ICPC home evaluation was not relevant in determining whether there were changed circumstances. Although the juvenile court in B.S.'s case said the ICPC evaluation was not "particularly relevant," it is clear from the context that what the court meant was that the evaluation was not a changed circumstance because father relocated to Kansas, and he was referred to ICPC before his reunification services were terminated.
Father's assertion that the only issue he had not addressed was lack of housing is not supported by the record. Father did not complete the counseling component of his case plan because his counseling was terminated. Although father tested negative for drugs while in California and completed his substance abuse programs here, he submitted no proof that he was still testing in Kansas. Father testified he was still attending 12-step meetings, but the question of father's long-term sobriety was still in doubt. Perhaps more importantly, father (and mother) never provided a consistent or satisfying explanation for the nonaccidental, intentional injuries suffered by G.M. The social worker consistently reported that both parents feigned ignorance about the true cause of the child's injuries and minimized the extent of the harm the child had suffered.
In any event, the ICPC letter submitted with father's petitions specifically stated father's house still needed to be given a second evaluation, and approval was still pending. Father testified that he had cleaned up the house and that a second inspection went well, but he provided no evidence that the Kansas authorities had actually approved the ICPC. In other words, even if we were to agree with father that lack of housing was the last remaining issue he needed to address, father merely showed changing circumstances and not changed ones.
During oral argument, father argued the fact that Kansas authorities had not yet transmitted to California an updated evaluation of the home was beyond his control. In addition, father now suggests the juvenile court should have continued the hearing for at least a week to confirm father's testimony that Kansas authorities had performed a second evaluation and concluded the home was satisfactory. Father did not address these points in his briefs. Moreover, if father believed a continuance was appropriate under the circumstances, he should have timely requested one. (§ 352; Cal. Rules of Court, rule 5.550.)
Father seems to suggest that the juvenile court erred by considering the strong bond between U.S. and her caregivers when concluding father had not demonstrated changed circumstances. Not so. The court discussed U.S.'s strong bond with her caregivers in the context of concluding additional reunification services for father would not be in the child's best interests.
With respect to whether providing father with additional reunification services was in the children's best interests, father directs us to the nonexhaustive list of factors set forth in In re Kimberly F. (1997) 56 Cal.App.4th 519: "(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." (Id. at p. 532.)
The very same court that decided In re Kimberly F. has since rejected application of those factors when the juvenile court has terminated services and set a section 366.26 hearing for selection of a permanent plan. "[W]e decline to apply the Kimberly F. factors if for no other reason than they do not take into account the Supreme Court's analysis in Stephanie M., applicable after reunification efforts have been terminated. As stated by one treatise, 'In such circumstances, the approach of the court in the case of . . . Kimberly F. . . . may not be appropriate since it fails to give full consideration to this shift in focus.' [Citation.] We instead follow the direction of our Supreme Court, holding that after reunification services have terminated, a parent's petition for either an order returning custody or reopening reunification efforts must establish how such a change will advance the child's need for permanency and stability." (In re J.C., supra, 226 Cal.App.4th at p. 527.) We too decline to apply the Kimberly F. factors in this case.
Father failed to address in the juvenile court or on appeal specifically how granting him an additional six months of reunification services would advance the children's need for permanency and stability. Father received reunification services for 18 months in U.S.'s case, yet he failed to reunify with the child. U.S. was in the care of her prospective adoptive parents during the entirety of the dependency. B.S. was placed in her prospective adoptive home three days after she was born, and the child never lived with mother or father. Both children were healthy and thriving in their safe and stable foster homes. Although father maintained regular visits with both children before relocating to Kansas, and he maintained phone contact with U.S. after he moved, the record does not demonstrate as strong a bond between father and the children as the bond between the children and their caregivers. Father's burden was high—to explain how delaying a permanent plan for the children by giving him an additional six months of services, and delaying further a permanent plan of adoption, would actually benefit the children. On this record, we simply cannot conclude father met that burden. Therefore, we conclude the juvenile court did not err by denying father's petitions.
III.
DISPOSITION
The orders terminating H.T. and N.S.'s parental rights to B.S. and U.S. are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.