Opinion
A150508
09-29-2017
In re NICOLE M., a Person Coming Under the Juvenile Court Law. SAN MATEO COUNTY HUMAN SERVICES ANGENCY, Plaintiff and Respondent, v. RONALD M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 83979)
This appeal presents a sad tale of parents who, through no fault of their own, had a child born with several serious congenital heart defects. Nicole M. was removed from the custody of Ronald M. (Father) and Evelyn M. (Mother) when they proved unable to meet her complex medical needs after surgery. (See Welf. & Inst. Code, § 300, subd. (b).) By the six-month review hearing, Father and Mother had failed to make progress with their case plans and the juvenile court terminated reunification services and scheduled a section 366.26 hearing. Father filed a section 388 petition, seeking reunification or renewed services based on Nicole's stabilized medical condition and his recent case plan progress. At a combined hearing, the juvenile court denied Father's section 388 petition and terminated the parental rights of both parents. Father appeals, arguing the court abused its discretion in denying his section 388 petition because he demonstrated a change in circumstances and that renewed reunification efforts were in Nicole's best interests. We affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
Mother is not a party to this appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
2015 Section 300 Petition
These proceedings primarily involve Father, Mother, and Nicole, who was born in the fall of 2013. Father and Mother never married and have an older son. Mother has another daughter from a previous relationship. Neither of the two older children have ever been juvenile court dependents.
Nicole was born prematurely with serious congenital heart defects—including holes in her heart and incorrectly positioned blood vessels. Because of her condition, Nicole was hospitalized for the first five months of her life. When Nicole was only a month or two old, she had heart surgery and a feeding tube placed. When it was time to discharge Nicole in April 2014, Mother was unable to care for her. Father was unavailable, having been deported before Nicole's birth. Mother agreed to voluntarily place Nicole in a foster home for medically fragile children. Family maintenance services were provided.
Father returned to the United States in August 2014. However, neither Father nor Mother could commit, due to their employment schedules, to taking Nicole to all upcoming medical appointments. Thus, at that time, neither parent could fully care for Nicole. In September 2014, the San Mateo County Human Services Agency (Agency) filed a juvenile dependency petition, which alleged Nicole suffered, or was at substantial risk of suffering, serious physical harm (§ 300, subd. (b)) as a result of her parents' inability to adequately supervise or protect Nicole—specifically, Father and Mother were unable to meet her extensive and complicated medical needs.
The detention report provided information about several prior child welfare referrals, dating back to March 2007, which described caretaker incapacity or absence—i.e., Mother leaving her older daughter unsupervised while she worked and underwent medical procedures. The initial social worker, Sarah Smith, also described the circumstances leading to the filing of the dependency petition: "Prior to being discharged [Mother] needed to spend 24 hours at the hospital to learn how to feed and give medication to [Nicole, using the feeding tube.] [Mother] had to reschedule the 24-hour stay because of her work schedule or because she had no one to care for [her older daughter]. The reporter was concerned about [Mother's] ability to care for the child once the child was discharged. [Mother] stated that she was going to quit her job to care for [Nicole], which was concerning to the reporter, because it was unknown how [Mother] was going to financially provide for the family. If [Mother] did not quit her job, the reporter was concerned about who was going to care for the child, who had a feeding tube and medication to take. . . . [O]ver a month ago [Mother] was given a phone number to call to start the process for the Social Security Income (SSI) for Nicole, which [Mother] had not yet done. On the date of the referral [Mother] stated that she could not stay the 24 hours [at the hospital] and that she had to leave by 6:00 am or she would lose her job. . . . [Mother eventually] agreed to a Voluntary Placement as do [sic] to her employment and financial situation she would be unable to support the baby's medical needs at the time. . . . [¶] Throughout the life of the Voluntary Family Maintenance case, [Mother] was unable to attend the majority of the child's medical appointments[, despite receiving bus passes.] . . . [Father] arrived back in San Mateo [in] August 2014. . . . However, because both parents are employed they are unable to get [Nicole] to all of her necessary medical appointments."
Medi-Cal would not pay for a home health care nurse.
The juvenile court ordered detention, continued services, and unsupervised visitation. By the time the October 2014 jurisdiction/disposition report was filed, a new social worker, David Marquez, had been assigned. Nicole's feeding tube had also been removed. Although both Father and Mother expressed confidence that they could now directly care for Nicole, neither could commit to getting Nicole to all necessary medical appointments—approximately three per week. Thus, the parents again stated they could not bring Nicole home at that time.
The petition was sustained, Nicole was declared a dependent of the court, and return to either parent's care was found to present a substantial danger to Nicole. Father was adjudged Nicole's presumed father. With respect to reunification services, Father and Mother were each ordered to attend parenting classes, therapy, and Nicole's medical appointments "at least twice a month."
According to the April 2015 six-month review report, filed by a new social worker (Alexandra May), Father had begun attending Nicole's medical appointments. When he was unable to attend, Nicole's paternal aunt or great aunt attended in his place. Father had also completed his parenting classes and obtained stable childcare for Nicole. Because of Father's substantial progress, May recommended Nicole be returned to his care. Accordingly, on April 27, 2015, Nicole was returned to Father's care with family maintenance services. Mother had unsupervised overnight visits every other weekend.
The Agency subsequently indicated the mental health component of Father's case plan had been removed because, after an assessment, it was determined he did not meet criteria for services. Father had also received a "Father of the Year" award from a parenting program.
At an October 2015 status review hearing, the Agency recommended dismissal of the dependency. Mother was attending therapy and the parents were effectively sharing custody. May reported Nicole's second heart surgery was scheduled for November 24, 2015, but that Father and Mother "were able to provide clear, realistic plans" for the surgery, for her "lengthy hospitalization," and for follow-up care. The juvenile court terminated the dependency, with the parents to share joint custody.
2016 Section 300 Petition and Detention Report
After her second heart surgery, Nicole was hospitalized for 43 days. This was longer than originally anticipated because Nicole suffered fluid accumulation in her lungs. To avoid respiratory or heart failure, Nicole had to follow a strict dietary and medication regimen. Nicole was fed and medicated via a nasogastric tube because, in part, she refused to eat when Father and Mother were not present at the hospital.
A new social worker (Ana Forman) spoke to members of Nicole's medical team, who reported preparing Father and Mother, at the time of Nicole's surgery, for the high level of medical care Nicole would need after discharge. Father and Mother initially planned to voluntarily place Nicole with the foster parent who had cared for her following her first heart surgery. However, the foster parent declined to care for Nicole without Agency involvement. The Agency could not voluntarily place Nicole without filing a new dependency petition "because [Father and Mother] received services including case management, counseling, and parenting classes for 13 months, and still had not developed the skills necessary to meet Nicole's medical needs." Father and Mother told Forman they "did not realize the level of care Nicole would need after surgery. . . . [I]f they had known there would be so much after care, they would have asked for additional [juvenile] court involvement."
Father and Mother attempted to receive training from hospital staff and demonstrate competency in the specialized medical care required by Nicole's condition. Father satisfactorily completed an overnight training simulation. During the simulation, he independently used the nasogastric pump and tube, administered Nicole's medication, and adhered to her strict diet. He was observed to be "very proactive" and "very appropriate." However, no one was trained to care for Nicole while Father worked. Despite multiple opportunities to receive and demonstrate this training, Mother failed to acquire or demonstrate adequate capabilities. In addition to cardiac and regular pediatric follow-up appointments, Nicole also needed ongoing physical, occupational, and speech therapy to address developmental delays. Forman observed that Father only visited the hospital after 5:00 p.m. and was not regularly responsive to phone calls and scheduling requests from Nicole's medical team. Fearing Father would miss the three or four weekly medical appointments Nicole would need for the following six months, Forman concluded Father and Mother "were not able to develop a viable plan to care for Nicole."
On the day before Nicole's discharge, Forman met with Father and Mother to explain the need for foster care placement. Father told Forman he "ha[d] been awarded two weeks of leave from work." After he was reminded that Nicole's recovery time was six to eight weeks, Father stated he "would be able to get six to eight weeks off of work." Father was advised there was no additional time to arrange the time off and he needed to provide documentation confirming his leave. Thus, in January 2016, Nicole was discharged directly to the Agency, who placed her in a medically fragile foster home.
The Agency filed a second juvenile dependency petition, which alleged Nicole was at substantial risk of suffering serious physical harm (§ 300, subd. (b)) as a result of her parents' inability to develop a viable plan to meet "Nicole's needs as she recovers from surgery." Two boxes on the petition form were checked, alleging Nicole had suffered or was at substantial risk of suffering serious physical harm or illness (1) as a result of the parents' failure or inability to supervise or protect her adequately; or (2) by the willful or negligent failure of the parents to provide the child with adequate food, clothing, shelter, or medical treatment. (§ 300, subd. (b)(1); hereafter section 300(b)(1).) The Agency also alleged Nicole "was the subject of a prior dependency case that was terminated only two months prior to the . . . current intervention, and involved the same presenting issues of [Mother]'s inability and [Father's] lack of sufficient availability to provide the care required for Nicole's complex cardiac condition." At the detention hearing, Nicole was ordered detained.
Jurisdiction/Disposition Report and Determination
The January 2016 combined jurisdiction and disposition report, filed by a fifth social worker (Riza Alvarez), indicated Nicole had recently been rehospitalized after more fluid was found in her lungs. She was improving rapidly and would likely be discharged within a few days. Before Nicole's rehospitalization, Alvarez observed her in the foster mother's home, where Nicole appeared comfortable. Father and Mother attended separate unsupervised visits with Nicole but not any of Nicole's several medical appointments. The foster mother did not know if the parents were aware of them.
Both Father and Mother denied they were incapable of meeting Nicole's needs, stating they wanted her returned home, had attended and completed all medical trainings, and had a plan to care for Nicole. Alvarez wrote: "Both parents are employed in manual work and appear to just make ends meet for their family." Father told Alvarez, "he could take [up to a month] off to care for Nicole." Nevertheless, Alvarez believed it would present a substantial danger to Nicole to return her to Father's care, stating Father's "work schedule would [not] allow him to monitor Nicole as often as needed." Alvarez also noted the parents may be able to meet Nicole's needs "once the care for her heart condition is more relaxed," but court intervention was currently needed to ensure her safety.
In a March 2016 addendum report, it was noted that Nicole had again been readmitted to the hospital, and subsequently discharged, for fluid accumulation. Visits to the foster home found Nicole "happy, healthy, and well-cared for." Mother had consistently visited Nicole, but Father had missed several visits. Despite being notified of all of Nicole's recent medical appointments, neither parent had attended any of the appointments, nor made any phone calls to the foster mother inquiring about the appointments. Mother explained she had been denied leave from work.
When the matter came on for jurisdictional and dispositional hearing, Father's counsel initially set the matter for contested hearing. However, both Father and Mother eventually waived trial and submitted on the Agency's reports. Father was present and represented by counsel, who did not raise any argument or objection with respect to the petition and submitted on the disposition recommendation. The court sustained the petition, declared Nicole a dependent of the juvenile court, removed her from parental custody, and ordered family reunification services. Specifically, the court ordered both parents to participate in parenting classes and therapy. In addition, both parents were ordered to attend all of Nicole's medical appointments.
Six-Month Review
In the September 2016 six-month review report, social worker Vanessa Corea reported Father and Mother had not engaged in parenting classes, despite receiving referrals. The parents also attended only three of Nicole's 17 medical appointments. Father and Mother reiterated this was due to "work schedule[s], transportation issues or because they have not been advised of these scheduled appointments with enough notice." Mother had appeared for a mental health assessment, but did not meet the criteria for continued services. Father had not pursued an assessment because he could not take time off work.
Mother explained she "needs her job to provide for her other children." Mother's and Father's son had recently returned to Mother's care after living with the paternal grandmother for three years. Mother reported working as a housekeeper, between 6:45 a.m. and 4:00 p.m., Monday through Friday. Father worked as a day laborer.
Father and Mother visited consistently with Nicole, who appeared "fine" at the end of such visits. However, the foster mother reported Nicole sometimes had difficulty separating from her and referred to Father only as "Ronald." The foster mother also reported issues with both parents arriving and returning late from visitations, as well as concern that they did not bring diapers, wipes, or a car seat to visits.
Meanwhile, Nicole rapidly improved in her foster mother's care. Nicole's nasogastric tube had been removed, and she had been successfully weaned off all but one medication. At a routine health examination (attended by Father and Mother), Nicole was deemed "stable" from a cardiovascular standpoint. She was making progress with language development (although still delayed) and gross motor skills, but remained hesitant to eat table foods. She continued to receive occupational therapy for feeding issues and had other medical appointments on a monthly basis.
Because Father and Mother had not made substantial progress with their case plans, the Agency recommended termination of services. Corea explained: "[T]he Agency is not confident [Mother or Father] will ensure that the child's complex medical needs are met on an ongoing basis. . . . [Mother] believes she can care for the child but has not demonstrated this through engaging in services. . . . [Father] reports that if [Nicole] is returned . . . they will have a family member take her to appointments when the parents are unable. Thus, the parents do not display responsibility or interest in meeting or understanding the child's complex medical needs."
In an addendum report, Corea indicated Mother had recently engaged in counseling and a parenting class. Nicole's primary cardiologist had also recently said that given her history, "and ongoing social risk factors," it was appropriate to still consider Nicole "medically fragile."
At the contested review hearing, Father's attorney stated Father understood the "severity of the situation" and wanted "to reunify with [Nicole]," but he also understood "his progress in services has not been as good as it should have been." Accordingly, Father submitted on the Agency's recommendation. The juvenile court agreed with the Agency's recommendation, found Nicole could not be safely returned home, terminated Mother's and Father's reunification services, and set the matter for a section 366.26 hearing. Visitation was ordered supervised because Corea had recently learned Father and Mother were transporting Nicole by car without driver's licenses.
Section 366.26 Report
The Agency's section 366.26 report recommended termination of parental rights and adoption as Nicole's permanent plan. Emilia Jones was now the supervising social worker on the case and an adoption social worker had been assigned. The adoption social worker noted Nicole was "generally healthy," active and engaging, and learning to count. She was no longer taking any medication and the foster mother reported, "[N]o other surgery is necessary and Nicole would have full life expectancy." Nicole's cardiologist "was reluctant to qualify [Nicole] as 'medically fragile' given her progress," but explained she would have follow-up appointments for life (albeit less frequently) and could need artery valve replacement surgery as an adult. Nicole had been diagnosed with mild delays in her cognitive and language skills and received physical, occupational, and speech therapy from the Regional Center. She had recently aged out of Regional Center services and was awaiting an assessment for services with her school district.
Father's and Mother's weekly supervised visits had been appropriate, but Father rescheduled several visits due to work conflicts. The Agency noted: "Of significant concern was the fact that the parents did not consistently attend all of the child's medical appointments, as Court ordered. Thus, the parents did not display responsibility, interest, or a solid understanding of the child's complex medical needs." Although her long-term foster mother was apparently unable to adopt Nicole, the Agency believed she is adoptable and expressed confidence that a suitable adoptive home would be identified soon.
Father's Section 388 Petition
In advance of the section 366.26 hearing, Father filed a section 388 petition seeking return of Nicole to his care or, in the alternative, reinstatement of reunification services. As changed circumstances, the petition cited Father's recent completion of a parenting class and the stabilization of Nicole's health. He further asserted a changed order would be in Nicole's best interests because of their strong bond and because "[c]hildren connected with their fathers have better outcomes in every area of life." The court scheduled a hearing on the petition at the same date and time as the section 366.26 hearing.
In an addendum report and response to the section 388 petition, Jones reported that a prospective adoptive family had been located, who were willing and able to care for Nicole. They recently had a successful preplacement visit with Nicole and the prospective adoptive mother had attended Nicole's most recent cardiology appointment. A medical social worker who worked with Nicole's cardiologist noted Nicole has only one functioning ventricle and, accordingly, " '[h]er heart has to work harder than a regular person making her at risk for things like acute congestive heart failure.' " The medical social worker had never met Nicole's parents and said: "That would be my number one concern if they were to reunify with her . . . just their ability to assess her medical needs. If something were to happen down the road would they be able to know what steps to take? Especially with cardiac issues things can go down-hill really quickly. So, you really need to have a caregiver that can differentiate things . . . like does she just have the flu or is this a cardiac issue?" Nicole's foster mother reported the cardiologist's recent statement that Nicole's heart had "a leak" that required monitoring. The foster mother also expressed surprise that neither parent ever asked about Nicole's medical appointments.
The Agency opposed Father's section 388 petition, observing Father's recent completion of parenting classes "is simply not enough to render [him a] safe parent[]." More significant was Father's continuing failure to attend Nicole's medical appointments. "At this time, the Agency is still not confident that the parents can meet the child's medical needs. [¶] Nicole's condition has stabilized thanks to the quality care she has received while in foster care. However, she requires further assessments for developmental services and ongoing follow-up appointments with cardiology for the foreseeable future. Nicole requires a caregiver . . . ready, willing and able to understand her diagnosis and ensure that she attend all necessary appointments."
Contested Section 388/366.26 Hearing
At the January 2017 combined section 388/366.26 hearing, the juvenile court took judicial notice "of the entire case file" and the Agency submitted the matter on its reports. Mother's and Father's counsel called Jones for cross-examination. The court instructed counsel, "[W]e will address both the .26 and the 388 as an organic whole."
Jones testified that she had not corroborated the foster mother's statement that, at Nicole's recent cardiology appointment, the cardiologist said Nicole has a leak somewhere in her heart. Jones had not observed any visits. However, as far as she was aware, Father was loving and appropriate with Nicole. Jones acknowledged neither parent was at fault for Nicole's heart defects, her resulting need for two surgeries, or the complications that resulted. During Father's counsel's cross-examination, the following exchange occurred:
"[FATHER'S COUNSEL]: In fact, there hadn't been any allegation that any medical neglect on the part of the parents has led to any harm to Nicole; isn't that correct?
"[COUNTY COUNSEL]: Objection, Your Honor. We are here on
"THE COURT: I know what's in the petition. I know what has been sustained.
"[COUNTY COUNSEL]: And a 388. This is from 2015, Your Honor.
"THE COURT: Right. This is a .26 hearing, and a 388, which basically is in opposition to a .26.
"[COUNTY COUNSEL]: And we will stipulate that the parents didn't cause her heart condition.
"THE COURT: Obviously they didn't. I don't know why we are going over and over this.
"[FATHER'S COUNSEL]: To clarify, Your Honor, are we doing the 388 separately or together with the .26?
"THE COURT: The 388 I look at as just an objection to the recommendations in the 26 because it is the default position. [¶] In the absence of the granting of a .26, one of the options would [be] return. So I am considering it, as I said earlier, as an organic whole. [¶] But to relitigate the petition is not in the game plan here. All right?
"[FATHER'S COUNSEL]: Just to clarify my subject matter of questioning that the Court is permitting, on the 388, we are requesting that either services be reopened or she be returned. [¶] I was trying to demonstrate to the Court that my client is a good parent . . . and that the child is safe with him.
"THE COURT: But you have to look at it in the legal way, which is: Something new and abrupt that has happened and not something that didn't happen that the Court already decided in 2015 or 2016. [¶] So what-has-he-done-for-me-lately is relevant. Everything else is irrelevant. [¶] I have given you lots of latitude. . . . [Y]ou are not going to get to ask [your questions] unless they are relevant.
"[DEFENSE COUNSEL]: . . . [¶] . . . [¶] When the parents were asked to arrange a plan for Nicole's care after discharge from the hospital, [Father] indicated . . . he had arranged for leave from work for several weeks; correct?
"THE COURT: When was that?
"[DEFENSE COUNSEL]: In early January, 2016.
"THE COURT: That's irrelevant."
Later, Father's counsel asked Jones if she was aware that, when the parents were asked to do trainings and simulations of care, they "did in fact complete an all-night simulation training successfully[?]" The court sustained the Agency's relevance objection.
On cross examination by Nicole's counsel, Jones testified that the parents' completion of parenting classes was insufficient to ensure safe return to either parent's custody. Jones explained: "[T]he fundamental issue here in this case is Nicole's heart condition. And unless these parents go to her medical appointments, demonstrate an understanding of her medical needs, and have a willingness to work with her medical team, all the parenting classes in the world will not make them safe parents for a child that has heart disease." (Italics added.)
Father testified, with the assistance of a Spanish language interpreter, that he and Nicole visited regularly and had a strong relationship, as evidenced by Nicole hugging Father when she sees him; he was capable of providing adequate care to Nicole and ensuring she was taken to all medical appointments; and he had "a lot of flexibility" in his current job and could prioritize Nicole's medical needs. However, on cross examination by Nicole's counsel, Father conceded he had attended none of Nicole's medical appointments during the three months since services had been terminated. Father said he had not been informed of any appointments, but also conceded he did not ask anyone.
In opposing Father's section 388 petition, the Agency's counsel reiterated that the dependency was now at the 366.26 phase and emphasized that, since the termination of reunification services, Father made no efforts to familiarize himself with Nicole's medical needs. Nicole's counsel also opposed the section 388 petition. After taking judicial notice of all prior findings and orders, the juvenile court denied Father's section 388 petition. The court explained: "[T]he assertion by [parents'] counsel that now the parents can do it because her medical needs aren't so great. Adequate parenting requires adequacy when times are tough and not just when things get easy. [¶] These parents could not and did not cope with their child's needs when they were at their greatest. [¶] Now we have a child with unforeseeable future problems. It is specious to argue that, 'Hey, for better or worse, now it's better. Forget the worse.' [¶] That just doesn't hold water." The juvenile court was also unpersuaded that Father had only missed Nicole's recent medical appointments because no one had informed him of appointment times. The court observed: "It is magical thinking. Because, 'They haven't told me. It's their fault[.]' [A] parent with a child, any child, unless there are walls preventing that parent from finding out the medical information, I would expect a parent to crawl over broken glass to find out what is going on with their child. [¶] There is no detriment to [Nicole] in this case, none whatsoever."
The court then immediately turned to argument on the section 366.26 hearing. Father did not contest Nicole's adoptability, but argued the beneficial relationship exception applied (§ 366.26, subd. (c)(1)(B)(i)). The juvenile court found it likely Nicole would be adopted, found the beneficial relationship exception did not apply, and terminated Mother's and Father's parental rights. Father filed a timely notice of appeal.
II. DISCUSSION
Father challenges the juvenile court's denial of his section 388 petition. If we reverse that order, Father also asks us to reverse the order terminating his parental rights. We agree with the Agency. Father did not meet his burden of demonstrating genuine changed circumstances, together with Nicole's best interests, overcame the presumption that her need for permanency and stability takes precedence over further attempts at family reunification.
Parents have a fundamental interest in the care, custody and companionship of their children. (Santosky v. Kramer (1982) 455 U.S. 745, 753; In re Sade C. (1996) 13 Cal.4th 952, 987.) Likewise, a child has a liberty interest to live in a home with his or her parents, if possible, or at least in a home that is stable. Prolonged uncertainty about the child's home is detrimental to a child's development. (Sade C., at pp. 988-989.) "[U]ntil the state proves parental unfitness [by clear and convincing evidence], the child and his parents share a vital interest in preventing erroneous termination of their natural relationship." (Santosky, at p. 760.) "California's dependency system comports with Santosky's [due process] requirements because, by the time parental rights are terminated at a section 366.26 hearing, the juvenile court must have made prior findings that the parent was unfit." (In re Gladys L. (2006) 141 Cal.App.4th 845, 848.) Thus, after termination of services, the focus shifts from the parent's custodial interest to the child's need for permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
A juvenile court dependency order may be changed, modified, or set aside at any time. (§ 385.) To do so, a parent "may, upon grounds of change of circumstance or new evidence, petition the court . . . to change, modify, or set aside any order of court previously made . . . . [¶] . . . [¶] If it appears that the best interests of the child . . . may be promoted by the proposed change of order, . . . the court shall order that a hearing be held." (§ 388, subds. (a), (d).) If a hearing is held, the petitioner bears the burden of proof. (In re Vincent M. (2008) 161 Cal.App.4th 943, 955; Cal. Rules of Court, rule 5.570(h)(1).)
A section 388 petition seeking reunification services after a section 366.26 hearing has been set plays a special role in the dependency scheme. "Once reunification services are ordered terminated, the focus shifts [from family reunification] to the needs of the child for permanency and stability. . . . The burden thereafter is on the parent to prove changed circumstances pursuant to section 388 to revive the reunification issue." (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) The section 388 petition provides the parent a means of rebutting the presumption after termination of services that a permanent plan other than reunification is in the child's best interests. (Id. at p. 310.) Shifting the burden of persuasion to the parent at this stage of the process does not offend due process because the section 388 procedure "is not unduly burdensome. Such petitions are to be liberally construed in favor of granting a hearing to consider the parent's request. [Citations.] The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (Id. at pp. 309-310.)
To prevail on a section 388 petition, a parent must show changed circumstances and show that the requested change in the court's order would be in the child's best interests. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526 & fn. 5, 529 (Kimberly F.).) "Generally, the petitioner must show by a preponderance of the evidence that the child's welfare requires the modification sought. [Citation.] [¶] Not every change in circumstance can justify modification of a prior order. [Citation.] The change in circumstances must relate to the purpose of the order and be such that the modification of the prior order is appropriate. [Citations.] In other words, the problem that initially brought the child within the dependency system must be removed or ameliorated." (In re A.A. (2012) 203 Cal.App.4th 597, 612.)
The juvenile court's ruling on the petition is reviewed for abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 318.) " '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.' " (Id. at pp. 318-319.) It is rare that the denial of a petition under section 388 merits reversal. (Kimberly F., supra, 56 Cal.App.4th at p. 522.) Father also suggests the juvenile court applied an incorrect legal standard to the section 388 analysis and, thus, failed to appropriately exercise its discretion. "A discretionary order that is based on the application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion, and is subject to reversal even though there may be substantial evidence to support that order." (Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115, 1124-1125.) A. Legal Criteria Underlying the Juvenile Court's Decision
Father's argument that the juvenile court applied the wrong legal standard is somewhat hard to follow. At first, he concedes that, "[i]n evaluating whether the . . . problems necessitating . . . removal have been . . . sufficiently ameliorated, the court must evaluate, based largely on the record already in existing [sic] in the case," the reasons for the removal. But Father then takes issue with the relevance objections sustained by the juvenile court and contends these rulings show the juvenile court did not consider the relevant factors in making its section 388 ruling. Specifically, Father asserts the juvenile court erroneously "believed that evidence of what had led to Nicole's dependency and removal, and what had prevented return of her earlier, were irrelevant to determining" the section 388 petition. "[T]o determine if the change or new evidence could warrant return or reinstatement of services to reunify, the court must at a minimum . . . determine whether the change of circumstance . . . establishes that the child can now safely be returned to the parent's physical custody . . . or that safe return now appears likely within the time statutorily allowed for services to reunify. Obviously, to determine that question, the court must evaluate the change of circumstance or new evidence in relation to the circumstances and evidence that were the basis of the orders previously made." The juvenile court did not err.
Father relies on Kimberly F., supra, 56 Cal.App.4th 519, which sets forth a nonexhaustive list of factors to be considered in evaluating the "best interests" prong of a section 388 petition: "(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." (Kimberly F., at p. 532, italics added & omitted; but see In re J.C. (2014) 226 Cal.App.4th 503, 527 [criticizing Kimberly F. for insufficient emphasis on the paramount concern following termination of reunification services—the child's need for stability and permanency]; Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2016) § 2.140[5], p. 2-513 (Seiser & Kumli) [same].)
We agree with the Agency that the record does not show the juvenile court was unaware of the appropriate legal standard. As we read the record, the juvenile court in no way indicated it would not consider the problem which led to the dependency as one of the factors to be weighed in the section 388 analysis. Rather, the juvenile court merely stated the problem had already been determined—at the jurisdictional hearing (§ 300(b)(1))—and was not subject to relitigation.
In his appellate briefs, Father makes clear he was (and is) attempting to relitigate the nature of the problem at the section 388 hearing. He insists "that the answers to the questions [his trial counsel] was asking would tend to support . . . that Nicole could now be safely returned to [Father]'s care because the cause of the dependency had been her medically fragile infant status, and [Father] had not been at fault with regard to any of that." (Italics added.) Father also repeatedly asserts that this is a "no fault" case, relying on our Supreme Court's recent opinion in In re R.T. (2017) 3 Cal.5th 622, 629 (R.T.). In R.T., our high court concluded the first clause of section 300(b)(1) "authorizes dependency jurisdiction without a finding that a parent is at fault or blameworthy for [his or] her failure or inability to supervise or protect [his or] her child." (Id. at p. 624, italics added.) In reaching that conclusion, the R.T. court made clear that parental neglect is required to satisfy the third clause of section 300(b)(1), which requires " 'willful or negligent failure . . . to provide the child with adequate food, clothing, shelter, or medical treatment.' " (Id. at pp. 629-630.)
The first clause of section 300(b)(1), authorizes dependency jurisdiction if "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child." (Italics added.) The third clause of that subsection authorizes jurisdiction if "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of . . . the willful or negligent failure of the parent . . . to provide the child with adequate food, clothing, shelter, or medical treatment." (Italics added.)
Instead of relitigating jurisdiction, the juvenile court properly took judicial notice of its entire case file, including its jurisdictional findings and orders. (Cf. In re Mickel O. (2011) 197 Cal.App.4th 586, 616 ["[i]n considering whether the petitioner has made the requisite showing, the juvenile court may consider the entire factual and procedural history of the case"].) The 2016 dependency petition alleges Nicole came within the juvenile court's jurisdiction under both the first and third clauses of section 300(b)(1). At the jurisdictional hearing's conclusion, the juvenile court sustained the petition "in all particulars." Thus, contrary to Father's repeated assertions, even if the juvenile court anticipated the R.T. holding with respect to clause 1, the juvenile court nevertheless implicitly found Father negligently failed to provide Nicole with adequate medical treatment. (§ 300(b)(1), clause 3; R.T., supra, 3 Cal.5th at p. 629 [parent's negligent conduct is required to satisfy third clause of section 300(b)(1)].)
At the time of the juvenile court's jurisdictional finding, some courts held parental unfitness or neglect was required in order to exercise jurisdiction under section 300, subdivision (b). (See, e.g., In re Precious D. (2010) 189 Cal.App.4th 1251, 1254.) It was commonly understood that jurisdiction under section 300(b)(1), requires "three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) 'serious physical harm or illness' to the minor, or a 'substantial risk' of such harm or illness." (In re Rocco M. (1991) 1 Cal.App.4th 814, 820, italics added.) The R.T. court only recently disapproved Precious D. and held that the Rocco M. court's first element is inaccurate, with respect to cases brought under the first clause of section 300(b)(1). (R.T., supra, 3 Cal.5th at pp. 629, 637, fn. 6.)
The jurisdictional/dispositional findings and orders are now final and the sufficiency of the evidence to support such findings is not subject to review now. (§ 395, subd. (a); In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150 ["an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order"]; In re Z.S. (2015) 235 Cal.App.4th 754, 769-770 ["[t]his 'waiver rule' holds 'that an appellate court in a dependency proceeding may not inquire into the merits of a prior final appealable order,' even when the issues raised involve important constitutional and statutory rights"].) At the jurisdiction hearing, Father not only submitted on the Agency's report, but also did not raise any objection or argument whatsoever with respect to the petition's allegations or the Agency's recommendations. Thus, this was plainly not a "contested hearing on an issue of fact or law" that required the court to give Father notice of his appeal rights. (Cal. Rules of Court, rule 5.590(a).) Father is now barred from challenging the jurisdictional and dispositional orders.
Furthermore, even if this was a "no fault" case at the time of jurisdiction, we would not agree it was a "no fault" case by the time of the combined section 388 and 366.26 hearing. Our Supreme Court has repeatedly made clear: " '[B]y the time termination is possible under our dependency statutes the danger to the child from parental unfitness is so well established that there is no longer "reason to believe that positive, nurturing parent-child relationships exist." ' " (R.T., supra, 3 Cal.5th at p. 637, quoting Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256.) At the time of a permanency planning hearing, "[i]n light of the earlier judicial determinations that reunification cannot be effectuated," it has "become clear 'that the natural parent cannot or will not provide a normal home for the child.' " (Cynthia D., at p. 256.) Father, by virtue of failing to complete his case plan, clearly did not do everything possible to provide Nicole appropriate care and supervision. (Cf. In re P.C. (2008) 165 Cal.App.4th 98, 106 [a parent who has not completed case plan demonstrates parental unfitness].)
Nor can we agree with Father that his failure to complete his case plan (by attending Nicole's medical appointments) is attributable solely to poverty. Father is certainly correct that poverty alone is an insufficient basis for termination of parental rights. (In re G.S.R. (2008) 159 Cal.App.4th 1202, 1212 [" 'indigency, by itself, does not make one an unfit parent and 'judges and social workers . . . have an obligation to guard against the influence of class and life style biases' "]; In re P.C., supra, 165 Cal.App.4th at pp. 99-100 [termination of parental rights reversed when mother's lack of suitable housing, which was direct result of her poverty, was only reason preventing reunification]; David B. v. Superior Court (2004) 123 Cal.App.4th 768, 792 ["[w]e cannot separate parents and their children merely because they are poor"].) It certainly appears likely that Mother's and Father's poverty, immigration status, and the scarcity of subsidized child care, housing, and family contributed to the problems they face. Yet, poverty alone does not fully explain Father's conduct, as he fails to explain how poverty prevented him from arranging for a family member to attend Nicole's appointments when he was at work or, at a bare minimum, inquiring with the clinics, the foster mother, or a social worker about Nicole's condition and the results of such appointments.
Father's neglect of Nicole's medical needs is, and has been (throughout the course of this case), a cause of the substantial risk of harm. Father has shown no error in the juvenile court's attempt to focus the evidence on material changed circumstances or new evidence that Father could not have presented at the six-month review hearing that resulted in the order he sought to modify. (See In re H.S. (2010) 188 Cal.App.4th 103, 105-106.)
Father also vaguely suggests the trial court erred by hearing section 388 evidence and section 366.26 evidence together as an "organic whole." However, he presents no supporting authority. The authors of a respected juvenile law treatise explain the common practice, of combining the hearing on the modification petition with the section 366.26 hearing, as being "in the interest of judicial economy" because "the evidence that would be presented on the question of return or further services may be substantially the same evidence to be produced on the issue of the beneficial relationship exception under [section] 366.26(c)(1)(A)." (Seiser & Kumli, supra, § 2.140[3], p. 2-509.) Granting a modification petition would be inconsistent with holding a section 366.26 hearing. But as long as the petition for return or further reunification services is decided first, we see no reason to interfere with the juvenile court's decision to combine or hear such issues separately. (Ibid.) Here, the trial court denied the modification petition and then made its findings and orders under section 366.26. Father has not shown the juvenile court "misunderstood the criteria for determining [his] section 388 petition." B. Changed Circumstances
On this record, the juvenile court did not abuse its discretion in concluding Father had not met his burden to show a genuine change of circumstances. A parent seeking relief under section 388 "must show changed, not changing, circumstances. [Citation.] The change of circumstances or new evidence 'must be of such significant nature that it requires a setting aside or modification of the challenged prior order.' " (In re Mickel O., supra, 197 Cal.App.4th at p. 615.) "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, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote . . . the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47, italics added.)
Father is certainly correct that Nicole's health had greatly improved in recent months. She was no longer taking medication and no further surgeries were anticipated in the near future. Nonetheless, the evidence was conflicting about whether Nicole was still medically fragile. There was uncorroborated evidence that Nicole continues to have a leak in her heart. The record also shows Nicole remains at risk of congestive heart failure if not adequately monitored. She also has developmental delays which appear to require continued assessment and therapy. Thus, viewing the evidence in the light most favorable to the juvenile court's ruling, substantial evidence shows Nicole continues to have special medical needs.
The Agency contends Father failed to argue to the juvenile court that Nicole's improved medical condition was a change of circumstance supporting the section 388 petition. We disagree. "The general principle of forfeiture prohibits parties from addressing on appeal issues not raised at trial." (In re P.C. (2006) 137 Cal.App.4th 279, 287.) The record shows Father explicitly argued his modification petition should be granted, in part, because Nicole's medical "needs [have been] reduced at this time."
More important than the precise intensity of Nicole's current medical needs is the absence of a genuine change in Father's conduct. By the time of the combined section 388/366.26 hearing, Father had made only minimal progress toward ameliorating the problem that brought Nicole to the Agency's attention—his neglect of her medical needs. Father had completed parenting classes. However, despite increased flexibility at his current job and the decreased frequency of Nicole's medical appointments, he remained unable or unwilling to attend any of Nicole's medical appointments (or to send a relative in his place). We are not entirely unsympathetic to Father's position. He undoubtedly needs to work to provide for himself and his children. However, Father was well aware that failure to attend Nicole's medical appointments was an obstacle to reunification, yet he had not even asked the social worker, Nicole's foster mother, or the clinics themselves about her appointment schedule or appointment results. Given these facts, it comes as little surprise Father was unsure of the identity of Nicole's primary physician. We can reasonably infer that Father is similarly unknowledgeable of Nicole's current condition or risk factors. Nicole's heart condition may have stabilized, but it is undisputed she will require follow-up appointments with cardiologists for the remainder of her life. In light of Father's history, the juvenile court was certainly not compelled to believe the very recent (but still partial) compliance with his case plan would ensure Father's ability to meet Nicole's still significant medical needs.
The juvenile court reasonably concluded Father did not demonstrate changed circumstances. Because Father has shown no abuse of discretion in the juvenile court's ruling he had not shown changed circumstances, we need not consider his argument as to the second prong of the section 388 test. C. Nicole's Best Interests
Even assuming Father demonstrated changed circumstances, the juvenile court reasonably concluded Father did not demonstrate that immediate return or restoring reunification services was in Nicole's best interests. " '[I]t is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child.' " (In re S.J. (2008) 167 Cal.App.4th 953, 960.)
Father presented evidence of a bond with Nicole. However, the record does not compel a finding that bond was particularly strong. Nicole had been in Father's care for, at most, one and a half years out of her three years of life. Nicole had spent the rest of her short life with her foster mother, who she called "mom."
This case is somewhat unique in that Nicole's long-term foster mother was apparently unable to adopt Nicole. A potential adoptive placement had been identified, but no permanent adoptive placement had been made. We agree with Father that this factor (that there were no competing bonds Nicole had already made in a potentially adoptive placement) weighs in favor of maintaining the natural family bond between Father and Nicole. However, it is not dispositive because the juvenile court implicitly (and reasonably) concluded Nicole remained at risk of harm if returned to Father's custody.
This is a difficult case because the evidence before the juvenile court would support multiple inferences. The inference Father urges is that he was ready and able to take care of Nicole because her medical condition had improved, he had completed parenting classes, and was apparently competently caring for another child. But contrary to Father's suggestion, the record does not show the problem that led to Nicole's removal—Father's neglect of her significant medical needs—has been entirely ameliorated. The juvenile court could reasonably conclude that, despite some changing circumstances, Nicole's special medical needs require more care and commitment than Father can provide. The juvenile court also properly considered that Nicole's need for permanency and stability are heightened due to her young age and the legislative policy in favor of prompt resolution of dependency cases for children who were under the age of three. (M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 174-175 [" ' "unique developmental needs of infants and toddlers" ' [citation] justifies a greater emphasis on establishing permanency and stability earlier in the dependency process ' "in cases with a poor prognosis for family reunification" ' "]; § 361.5, subd. (a)(1)(B) [presumptive limit on reunification period for child under age of three is six months]; § 366.21, subd. (e)(3).) In such circumstances, we cannot substitute our judgment for that of the juvenile court.
The juvenile court could also reasonably conclude additional reunification services would similarly not be in Nicole's best interests. The trial court did not abuse its discretion in denying Father's section 388 petition. Because we affirm the order denying Father's section 388 petition, we need not address Father's derivative argument regarding termination of parental rights.
III. DISPOSITION
The juvenile court's orders denying Father's section 388 petition and terminating his parental rights are affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
NEEDHAM, J.