Opinion
D072959
04-05-2018
In re ISAIAH J., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. TYLER V. et al., Defendants and Respondents; ISAIAH J., Appellant.
Valerie N. Lankford, under appointment by the Court of Appeal, for Appellant, a minor. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent. Michelle D. Pena, under appointment by the Court of Appeal, for Defendant and Respondent Tyler V. Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Respondent Kristy J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SJ13283) APPEAL from orders of the Superior Court of San Diego County, Michael J. Popkins, Judge. Reversed and remanded with directions. Valerie N. Lankford, under appointment by the Court of Appeal, for Appellant, a minor. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent. Michelle D. Pena, under appointment by the Court of Appeal, for Defendant and Respondent Tyler V. Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Respondent Kristy J.
Minor Isaiah J. appeals an order granting his father's petition for reunification services under Welfare and Institutions Code section 388. Isaiah contends there is not substantial evidence to support a finding of changed circumstances or new evidence to support granting the modification request. He also asserts the court abused its discretion by not considering whether granting the modification was in his best interests. We agree the court did not consider Isaiah's best interest in granting the modification, and reverse.
All further unspecified statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2016, the San Diego County Health and Human Services Agency (Agency) detained Isaiah J. in protective custody at birth when he and his mother, Kristy J., tested positive for methamphetamine. Isaiah was placed in a foster care home when he was a day old. Kristy alleged Tyler V. was Isaiah's father. The social worker left telephone messages for Tyler and sent certified letters to his last-known address. Tyler did not respond.
In September, the social worker located Tyler in jail on drugs, theft and fraud charges. When the social worker visited him on September 12, Tyler denied having a child with Kristy and said she did not know what she was talking about.
In January 2017, Kristy alleged Ivan C. was Isaiah's father. Ivan underwent DNA testing, which excluded him as the father.
Kristy did not participate in reunification services. Her visits with Isaiah were positive but not consistent. In March 2017, the court terminated her reunification services and set a section 366.26 hearing.
On April 28, the social worker personally served Tyler, who was still in jail, with notice of the section 366.26 hearing. He asked for paternity testing and said if he were Isaiah's father, he would like to see if he could obtain custody of him. In a written parentage form, Tyler stated Kristy had told him he was the father when she learned she was pregnant, but he had reason to question whether he was in fact Isaiah's father. He told the social worker he did not proceed with paternity testing earlier because he was worried about being in a relationship with Kristy. On June 5, the juvenile court received lab results showing the probability of Tyler's paternity of Isaiah as 99.99 percent. Tyler asked to visit Isaiah.
Tyler was released from jail to a residential drug treatment facility on May 31. His first visit with Isaiah was on June 22. The visit went well. After interacting quietly for 20 minutes, Isaiah allowed Tyler to pick him up. They cuddled, giggled and played together during the rest of the visit. Tyler and Isaiah had eight visits between June 22 and August 10. The social worker reported that, during the first few visits, Isaiah was hesitant with Tyler for 10 to 15 minutes but would then approach Tyler. He allowed Tyler to pick him up and play with him. During the last three visits, Isaiah immediately reached out to Tyler upon seeing him, and would whine and cry when the visits ended.
At the end of June, Tyler filed a section 388 petition seeking reunification services. The court denied a hearing on his petition. In August, Tyler filed a second 388 petition seeking reunification services. He provided documentation showing he was involved in, or had completed, a residential substance abuse treatment program and related programs, including life skills, parenting education, cognitive behavioral therapy, a culinary arts program and a building and construction trade class. He attached the social worker's report that at his last two visits with Isaiah, Isaiah reached for Tyler when he first saw him and sat on Tyler's lap throughout the visit, playing together.
On August 24, the court denied Tyler's request for presumed father status. On August 31, Tyler and Kristy signed a declaration of paternity. The court found that Tyler was Isaiah's presumed father, and set a hearing on the section 388 petition, to be heard at the same time as the section 366.26 hearing.
At the combined hearing on September 21, 2017, the court admitted the social worker's section 366.26 report and addenda in evidence. The social worker reported that Isaiah was a healthy baby and was developmentally on track. He presented as an adorable and well-adjusted toddler who was inquisitive but calm. Isaiah was highly adoptable. His foster mother, who had cared for him since birth, was willing to adopt him. Additionally, a paternal aunt was requesting placement, and the Agency was in the process of securing an out-of-state home evaluation. The social worker recommended termination of parental rights and a plan of adoption to allow Isaiah to continue to benefit from the structure and stability of his nurturing foster care family. The social worker pointed out that Kristy and Tyler had extensive substance abuse and criminal histories that impacted their ability to parent Isaiah.
The social worker reported that during recent visits, Isaiah reached out to Tyler when he saw him. They played with toys and played peek-a-boo. This made Isaiah laugh. Tyler tickled Isaiah on his belly, which caused Isaiah to laugh hysterically. Tyler encouraged Isaiah to stand on his own. They played the piano and guitar together. Isaiah would vocalize and laugh.
Tyler testified the social worker contacted him in September 2016 and informed him he was alleged to be Isaiah's father. Tyler knew Kristy had been seeing other men and was worried he was not the father. He was not in a relationship with her. Kristy had told Tyler he was Isaiah's father but she also had said he was not the father. Tyler acknowledged he was incarcerated from September 2016 to May 2017. He was intoxicated and gave a false name to police. Tyler was discharged to a short-term residential treatment program. He was discharged from that program on September 16, 2017, for using a work phone to call his wife, which was against the rules. He did not lose his job.
Tyler was raising three other children: a six year old, a three year old, and his wife's 18-month-old baby. Tyler said he and Isaiah liked to play during visits and that Isaiah was always excited to see him. He would immediately extend his arms to Tyler and want to be held for five or 10 minutes. Then he would start playing.
Tyler testified about the programs he had completed and what he had learned in them. He had a job and was living at home with his wife and children. Tyler intended to stay with his wife and children but had applied to a sober living facility to help with his transition and take advantage of additional programs. Tyler acknowledged he had made bad choices but believed he could make better choices. He asked for the opportunity to prove to his son that his future included having a father.
On cross-examination, Tyler admitted to an "on and off" 11-year history of methamphetamine use. Currently, he had been sober for more than a year, and had previously maintained his sobriety for two and a half years. When Tyler heard that Kristy was not going to regain custody of Isaiah, he asked for paternity testing. Tyler had been through foster care and wanted to be able to give Isaiah the chance to live with his biological parents. Tyler testified that as soon as he received the results of the paternity test, he asked for visitation and pursued every opportunity with his program and other classes. He said he attended Alcoholics Anonymous and Narcotics Anonymous meetings three times a week.
The court found that Tyler did not come forward in September 2016 because he was still affected by recent drug use, was concerned about his relationship with his wife and other children and did not want to have a relationship with Kristy. Initially, there was a lot of confusion about paternity in this case. However, Tyler asked for a paternity test in May and discovered he was Isaiah's biological father. The court said the true change of circumstances occurred in Tyler's response to this information. Tyler established visitation with Isaiah. He has been clean and sober for more than a year. The court said it was very impressed by Tyler's testimony and the fact he had come to court and signed a paternity declaration. The court said Tyler had done everything possible to show he was a changed man. If Tyler went back to his old lifestyle, they would be back in six months for a section 366.26 hearing. The court noted that Tyler was Isaiah's presumed father and did not have an opportunity to participate in reunification services, and found that his reasons for not having come forward earlier were valid.
The court granted Tyler's 388 petition and ordered the Agency to provide services to him for six months. The court said that Tyler, by his recent behavior and taking responsibility, had earned "a chance" to be in Isaiah's life. The court ordered the Agency to set up a minimum of two visits per week, with the discretion to move to unsupervised visits, overnight visits and a 60-day trial visit, with concurrence of minor's counsel.
DISCUSSION
I
The Parties' Contentions
Isaiah contends the juvenile court erred in granting Tyler's petition because the evidence showed that his circumstances were "changing" but were not yet "changed." Isaiah further argues even if Tyler established changed circumstances, he did not show that providing reunification services to him was in Isaiah's best interests. Isaiah asserts the court focused entirely on Tyler's circumstances and did not make the required finding that the modification was in the child's best interests. He maintains that the record does not support such a finding, and asks this court to vacate the court's order for reunification services and remand the matter with instructions to reinstate the section 366.26 hearing.
Respondent Agency states it is aligned with Isaiah's position, as it was at trial. The Agency asserts the court clearly abused its discretion by failing to consider whether "hijacking Isaiah's permanence and stability and instead ordering reunification services for the father best promoted Isaiah's interests." The Agency asks this court to reverse the order granting Tyler's section 388 petition and remand the matter to the juvenile court with directions to hold a new section 388 hearing in view of Isaiah's and Tyler's current circumstances.
Tyler states he obtained presumed father status and his visits with Isaiah were of such quality that Isaiah bonded with him. He argues he proved a change of circumstances or new evidence and that it was in Isaiah's best interests to grant reunification services to him. Tyler asserts his trial attorney presented the evidence in the context of factors used to determine whether the modification sought was in the child's best interests, and the juvenile court properly granted his petition. He points out that although the rule governing section 388 hearings requires the court to consider the child's best interests, it does not require the court to make explicit findings on the record. (Cal. Rules of Court, rule 5.570(h)(2)(B).) Kristy joins with Tyler's brief, stating the court's decision to provide reunification services to Tyler was not arbitrary and capricious.
Further unspecified rule references are to the California Rules of Court. --------
II
Relevant Legal Standards and Standard of Review
Under section 388, a parent, interested person or the dependent child may petition the court to change, modify or set aside a previous order on the grounds of changed circumstances or new evidence. (§ 388, subd. (a).) The petitioner has the burden to show a change of circumstances or new evidence, and that the proposed modification is in the child's best interest. (In re Jasmon O. (1994) 8 Cal.4th 398, 415; rule 5.570(e).)
"In considering whether the petitioner has made the requisite showing, the juvenile court may consider the entire factual and procedural history of the case. [Citation.] The court may consider factors such as the seriousness of the reason leading to the child's removal, the reason the problem was not resolved, the passage of time since the child's removal, the relative strength of the bonds with the child, the nature of the change of circumstance, and the reason the change was not made sooner. [Citation.] In assessing the best interests of the child, 'a primary consideration . . . is the goal of assuring stability and continuity.' " (In re Mickel O. (2011) 197 Cal.App.4th 586, 616; In re Kimberly F. (1997) 56 Cal.App.4th 519, 531-532.)
We review the grant or denial of a petition for modification under section 388 for an abuse of discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) While the abuse of discretion standard gives the trial court substantial latitude, "[t]he scope of discretion always resides in the particular law being applied, i.e., in the legal principles governing the subject of [the] action . . . .' Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such an action an 'abuse' of discretion." (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.)
III
The Juvenile Court Abused Its Discretion in Not Considering the Child's Best Interest
Tyler presented evidence showing his paternity status had changed from biological to presumed father, he was working and had been clean and sober for more than a year. He was living with his wife and three young children, and consistently visited Isaiah. The juvenile court found Tyler to be very credible and believed that Tyler had done everything within his power to show he was a changed man. The court said the reason for Tyler's delayed appearance in the case was due to the confusion about Isaiah's paternity and Tyler's concern about his wife and other children. This court has no power to consider the credibility of witnesses or resolve conflicts in the evidence. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200.) Our review requires substantial deference to the decision-maker below. (Ramos v. Countrywide Home Loans, Inc. (2000) 82 Cal.App.4th 615, 624.)
In reviewing the record in the light most favorable to the court's determination, the evidence shows that Isaiah had formed an affectionate relationship with Tyler. Tyler had engaged in and completed many programs that were available to him, and was seeking additional services. Tyler changed his legal status to Isaiah from biological to presumed father, and the court's remarks indicate it was concerned about denying services to a presumed father. Although there is substantial evidence to the contrary and another judge may have reached a different conclusion, we cannot conclude that the juvenile court abused its discretion when it determined Tyler met his burden to demonstrate changed circumstances. However, we conclude that the court abused its discretion in granting the section 388 petition without considering whether modifying the order setting the 366.26 hearing was in Isaiah's best interests.
A parent who petitions for reunification services must show by a preponderance of the evidence the proposed modification is in the child's best interest. (In re Jasmon O., supra, 8 Cal.4th at p. 415; rule 5.570(h)(1)(D).) In considering the child's best interest, the court must consider the passage of time since the child's removal, the nature of the changed circumstance, the relative strength of the child's bonds with his caregiver and the parent and the goal of assuring the child's stability and continuity. (In re Mickel O., supra, 197 Cal.App.4th at p. 616.)
Although the record shows the juvenile court was clearly impressed with Tyler's efforts and wanted to give him "a chance," the court did not make any remarks, or findings, indicating it considered whether the modification was in Isaiah's best interest as required under section 388 and rule 5.570(h)(1)(D). Where the court has failed to make express findings, the appellate court generally implies such findings only where the evidence is clear. (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1825.) On this record, evidence showing that the modification sought was in Isaiah's best interest is far from clear, and we cannot sustain the juvenile court's decision.
The record further shows that even if the juvenile court implicitly found that the proposed modification was in the child's best interest, as Tyler argues, the court erred as a matter of law when it misstated an important factor used in determining the child's best interest. The court was required to consider the relative strength of the child's bonds with his caregiver and parent, but explicitly disregarded this factor. The court noted the caregiver was providing "fantastic, loving and caring treatment" to Isaiah, but said the issue was not about comparing the father and the caregiver. While the child's bond to the caregiver is not dispositive, the disruption of an existing bond between a dependent child and his or her caregiver is "an extremely important factor bearing on any section 388 motion." (In re Kimberly F., supra, 56 Cal.App.4th at p. 531, citing In re Jasmon O. (1994) 8 Cal.4th 398, 418.) Here, the court should have considered whether Isaiah had a stronger bond with his caregiver, who voluntarily came forward to care for Isaiah from the second day of his life, than to Tyler, who chose not to come forward for seven months after he learned that he might be Isaiah's father.
In addition, the juvenile court did not consider the long-standing legal principle that "[a]fter 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' (In re Marilyn H. [(1993)] 5 Cal.4th 295, 309), and in fact, there is a rebuttable presumption that continued foster care is in the best interest of the child." (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) A court hearing a motion for modification at the section 366.26 hearing "must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (Ibid.) The court erred as a matter of law in failing to consider the child's best interest. A decision that rests on an error of law constitutes an abuse of discretion, and we therefore reverse. (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1061.)
DISPOSITION
The order granting Tyler's section 388 petition is reversed. The matter is remanded to the juvenile court with directions to consider the child's best interest in view of current circumstances, including the child's interest in stability and continuity, the relative strength of the caregiver's and father's bonds with the child and the nature of the parent's change of circumstance.
O'ROURKE, J. WE CONCUR: HALLER, Acting P. J. AARON, J.