Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County No. DP007141, Caryl Lee, Judge.
Donna P. Chirco for Petitioner.
No appearance for Respondent.
Benjamin P. de Mayo, County Counsel, and Karen L. Christensen Deputy County Counsel for Real Party in Interest Orange County Social Services.
Law Office of Harold LaFlamme and Linda M. O’Neil for the Minor.
OPINION
MOORE, J.
David B. (the father) seeks relief from an order of the court granting a petition pursuant to Welfare and Institutions Code section 388 to set a permanency planning (§ 366.26) hearing (the .26 hearing) with respect to his daughter, Susan. We find no abuse of discretion in the juvenile court’s decision to grant the section 388 petition and therefore deny the writ petition.
Subsequent statutory references are to the Welfare and Institutions Code.
I
FACTS
This is the third time this case has been before this court. The facts were presented in detail in the first writ proceeding, David B. v. Superior Court (2004) 123 Cal.App.4th 768 (David B. I). In a second writ petition, David B. v. Superior Court (2006) 140 Cal.App.4th 772 (David B. II), additional facts were summarized as follows: “David B., petitioner, is the father of the minor child Susan M. In August 2002, Susan’s mother, who had custody of Susan at the time, was arrested for being under the influence of a controlled substance. The mother was on parole due to a history of substance abuse and behavior associated with substance abuse. Orange County Social Services (SSA) detained Susan, who was 14 months old at the time, placed her in a foster home, and identified David as her presumed father. Susan was declared a dependent child of the Orange County Juvenile Court in December 2002.” (Id. at p. 775.)
“The facts of the case from the filing of the petition through the contested 12-month review hearing were presented in detail in [David B. I]. In January 2005, SSA filed a subsequent petition, alleging David’s substance abuse was an unresolved problem of longstanding (since David was 14 years old), listing two drug-related arrests in 2004 (possession of methamphetamines in August and possession of drug paraphernalia), and alleging David tested positive for methamphetamine.
“In March 2005, the juvenile court found true the allegations of the subsequent petition, continued Susan as a dependent child, and approved a case plan with additional requirements addressing David’s drug abuse. The updated case plan required David to abide by the conditions of his probation, adequately parent Susan, stay sober, obtain and maintain a stable residence, refrain from using illegal drugs and comply with drug testing requirements, comply with court orders, keep the social worker informed of pertinent changes and difficulties in completing case plan, monitor Susan’s health, avoid arrests and convictions, obtain legal income, demonstrate an ability to have custody of Susan, meet Susan’s needs and provide a safe home, cooperate with any psychological evaluation, if incarcerated, inquire into the availability of all services which will assist in reunification, participate in individual therapy, complete a parenting class, submit to twice weekly random drug/alcohol testing, attend twice weekly 12-step program meetings, and complete an alcohol treatment program. David was to participate in monitored visitation, once a week if he was not incarcerated and once a month if he was incarcerated.
“On April 4, 2005, David was sentenced to serve a four-month jail term for a violation of probation. He was released from custody on August 4 and entered Hope House, a residential drug treatment facility. In October, David’s probation officer stated David would not be able to leave Hope House for at least three or four more months, which meant he could not comply with his service plan or parent Susan for that time period. SSA recommended the court terminate reunification services and schedule a section 366.26 permanency planning hearing.
“The 18-month review hearing, which had been originally scheduled for August 31, 2005, was continued to October 21. According to the reporter’s transcript of proceedings on October 21, the court made a tentative ruling denying David’s counsel’s request to cross-examine the social worker, present David’s testimony, or present any other evidence on the issues of whether David received reasonable services or the suitability of Susan’s current placement.
“The court stated it relied on the following three cases, In re Earl L. (2004) 121 Cal.App.4th 1050, In re Jeanette V. (1998) 68 Cal.App.4th 811, and Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, to deny David a contested hearing and to request his counsel make an ‘an offer of proof to see if the entire line of cross-examination [was] relevant to the issue before the court. . . .’ The court continued the case to November 4 to give David’s counsel an opportunity to brief the issue.
“On November 4, 2005, David’s counsel argued, ‘at an 18-month review it’s my position that a parent’s attorney has the right to explore the reasonable services that the parent was offered, to cross-examine the social worker who prepared the reports that are going to be admitted into evidence about statements that are contained in those reports.’ Counsel cited the following three cases to support her argument, In re James Q. (2000) 81 Cal.App.4th 255, In re Matthew P. (1999) 71 Cal.App.4th 841, and In re Heather P. (1989) 209 Cal.App.3d 886. The court took the matter under submission.
“On November 14, 2005, the court refused ‘to hear evidence offered by the father based on the offer of proof.’ The court also stated it had ‘read and re-read’ In re James Q., supra, 81 Cal.App.4th 255, but it ‘just didn’t want to follow that particular case.’ However, the juvenile court stayed proceedings for three weeks to permit David’s counsel to file a petition for writ of mandate.
“On December 16, 2005, David filed a petition for writ of mandate and request for stay of the 18-month review hearing. On December 16, this court issued a stay and invited the parties to submit informal letter briefs. On March 30, 2006, following the receipt of the parties’ letter briefs, this court issued an order to show cause and set the matter for oral argument.” (David B. II, supra, 140 Cal.App.4th at pp. 775-777, fn. omitted.) Ultimately, we remanded the case for a contested 18-month review. (Id. at p. 781.)
While the case was pending, SSA reported that David continued weekly visits with Susan. Although Susan was somewhat reluctant, the visits seemed to proceed well. In January 2006, David told SSA that he had moved to a sober living home and was required to wear a drug patch and test three times a week. He said that he was too busy to start parenting classes at the time. By February, David was no longer wearing the drug patch, but he was undergoing regular testing and was attending a 12-step program. He found the requirements of the criminal court drug program difficult and told the social worker he might ask to be transferred out. In March, the social worker asked David about his ability to provide for Susan if she were released to him. He admitted that Susan could not live with him at the present time because he did not have the ability to provide everyday care for her. He stated that Susan did not listen to him, and was concerned that she might be mentally ill like her mother. He signed a referral for a parenting program and began classes in April. Susan, in the meantime, had been diagnosed with some hearing loss and was referred for further treatment.
Susan and David continued their visits, with some mixed results. Susan did not respond well to David’s attempts at discipline, but she did seem to enjoy seeing him. By late July, the tenor of the visits had changed. Susan was sometimes mad during the visits, resulting in anger from David. At times she seemed to want David to stay and was angry that he had left after the visit. She had, however, adjusted well to her placement with her foster mother, Carole, a maternal aunt.
David continued to comply with his probation requirements. He resided in a sober living home, and despite being provided with housing lists, he did not follow through with seeking independent housing.
We issued our opinion in June 2006, remanding the case for an 18-month hearing. The remittitur issued, and the 18-month review was held in late 2006. Per the stipulation of all parties, the court terminated reunification services, and after the parents waived any defects in not conducing a .26 hearing ordered that the foster mother, Carole, be appointed Susan’s legal guardian. David was granted visitation.
As of the June 2007 periodic review hearing, David was still residing in a sober living home. He continued to do well in his drug court program. Susan continued to progress with the help of an individualized plan to address her needs. She had bonded to Carole and looked to her to meet her needs. Susan complained about her visits with David, stating that she did not like his attempts to be affectionate. The social worker also reported some difficulties with the Friday and alternate Saturday visitation schedule, due to Susan’s fatigue at the end of the school week.
Susan’s visits with her mother were generally positive, in contrast to the visits with David. The social worker reported a number of incidents, including David’s failure to meet basic needs such as taking Susan to the restroom, and insisting on hugging Susan despite her indication that such affection was unwanted. She resisted his attempts at discipline, leaving David stymied. In May, Susan told her daycare teacher that her father had died. During a June visit, Susan bit her father and told him she was going to cut his head off. David was understandably upset, and Carole was concerned about where Susan was learning the words she was using. Susan repeatedly said that she did not want to visit with David anymore.
In June, Carole submitted a letter to the court addressing her concerns about Susan, particularly the difficulties with visits and Susan’s apparent lack of benefit from them. Susan told her that David said that she was crazy or weird and that her clothes and hair were ugly. Carole was also concerned that once Susan began first grade, the Friday afternoon visits would be difficult. David later stipulated to a visitation schedule that did not interfere with Susan’s activities.
In January 2008, SSA filed an ex parte application to inform the court that SSA had reinstated a monitor on David’s visits. Social workers expressed concern about David’s behavior, stating that he was often on his cell phone during visits, and loud and bossy. They also reported that David engaged in rough play and would yell at her when she cried. Susan appeared afraid, distressed and sad during visits.
David continued to do well on probation, tested clean for drugs and maintained employment. He saw a therapist as part of his treatment program, and the therapist expressed concern to the social worker about Susan’s safety in David’s care. He had observed them at a Christmas party where David walked off and left Susan unsupervised, and noted little interaction between them. The therapist said that while David appeared to want a relationship with Susan, he lacked the ability to adequately parent.
Troublesome incidents continued. In November, Susan’s therapist reported that Susan had issues about where she belongs. Carole reported that during a December visit, Susan used a doll to hit a stuff bear, saying “the bear is Daddy.” During another visit, David accused Susan of cheating at a board game. During the same visit, he told the social worker he was “over drug court” and was not sure if he would complete the program. He also did not see the problem in talking on the phone during visits, as “life does not stop.” Social workers reported that David tended to continually irritate Susan during visits and did not pick up on her cues to stop. Based on these problems, SSA recommended that David only have monthly visits, with a monitor paid for by David.
In January 2008, SSA recommended the court set a .26 hearing because the current plan was no longer appropriate. Carole wished to adopt Susan, and thus a permanency planning assessment found Susan likely to be adopted.
In February, Susan’s attorney filed a section 388 petition, requesting that the court find that guardianship was no longer the preferred plan, and instead set a .26 hearing. The petition alleged changed facts based on David’s visits, the reports of Susan’s therapist, and Carole’s renewed interest in adoption. Susan’s attorney alleged that the proposed changed would be in her best interest.
On March 10, the juvenile court heard argument. It found that the permanent plan was no longer appropriate, and set a .26 hearing. SSA and Gina joined in the request made by Susan in her petition. The court found, that pursuant to California Rules of Court, rule 5.570, subdivisions (e) and (f), the court did not need further evidence. The court found that there had been a passage of time since the stipulated agreement on the permanent plan, and that it could not be assumed that a permanent plan would always be the most appropriate plan. The court found that David’s conduct at the visits constituted active interference with the visitation process, and the problems were of a greater degree than had been discussed in prior reports and hearings. Thus, the court found that the permanent plan was no longer appropriate. The change of circumstances — specifically, the deteriorating visitation — led to the conclusion that a change might be needed. The court therefore set the case for a .26 hearing to determine whether a change to Susan’s permanent plan was appropriate.
II
DISCUSSION
David argues the juvenile court erred by setting the .26 hearing because substantial evidence did not support a finding of changed circumstances under either section 388 or section 366.3.
Section 388“Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstances or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order [the] court previously made . . . .” (§ 388, subd. (a).) Thus, a “juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
“The grant or denial of a section 388 petition is committed to the sound discretion of the trial court and will not be disturbed on appeal unless an abuse of discretion is clearly established. [Citation.] A trial court exceeds the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. [Citation.]” (In re Shirley K. (2006) 140 Cal.App.4th 65, 71.)
Section 366.3Section 366.3, subdivision (c) states, in pertinent part: “If, following the establishment of a legal guardianship, the county welfare department becomes aware of changed circumstances that indicate adoption may be an appropriate plan for the child, the department shall so notify the court. The court may vacate its previous order dismissing dependency jurisdiction over the child and order that a hearing be held pursuant to Section 366.26 to determine whether adoption or continued legal guardianship is the most appropriate plan for the child.” Such orders following review hearings are generally reviewed for abuse of discretion. (See In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Thus, whether one views the court’s order as made under its authority under section 366.3 or in response to Susan’s petition, the relevant question is whether there was sufficient evidence of changed circumstances.
Changed Circumstances
In sum, David’s argument is that Susan’s counsel did not offer sufficient evidence of changed circumstances to support the court’s decision to set a .26 hearing. We disagree. At the time of the court’s order, over a year had passed since the permanent plan of legal guardianship was entered in December 2006. During that time, there were significant changes, as demonstrated by the deteriorating nature of the relationship between Susan and David and in Susan’s behavior and reactions to the visits.
David complains the petition was not sufficiently specific, although he admits it acknowledges the January 24 and 31 reports by SSA. The January 24 report includes four pages detailing the visitation problems in even greater detail than we discuss above. In short, it reveals a pattern of poor parenting skills by David and poor reactions by Susan. David argues that visits were bad before the legal guardianship was ordered, and while this hardly provides persuasive grounds for arguing this situation should continue, the incidents reported during this time are demonstrably worse, including Susan’s hitting her father with toys and her threat to cut off David’s head.
Indeed, as Susan points out, taken to its logical conclusion, David’s argument means that as long as visits do not improve, Susan is forever foreclosed from the court’s further consideration of adoption.
The court also had new information from David’s own therapist expressing concerns for Susan’s safety in his care. Indeed, the facts that led to SSA’s unconstested decision to institute monitored visits demonstrate just how poor the situation had become. The court also had new information from Susan’s caregiver and medical professionals about the strains of the visits, including the opinion of her therapist. Susan was voicing confusion about where she belonged. Further, there was also new information about her caretaker’s willingness to adopt and Susan’s bond with her caretaker.
As to whether the proposed change would be in Susan’s best interests, the answer is obvious. There was substantial, if not overwhelming, evidence that reevaluating whether Susan should be freed for adoption would be in her best interests. Not only might a change remove the psychological strain and physical stress of the visits, but it might also help to resolve Susan’s identity issues by allowing Carole to adopt Susan. We therefore find no abuse of discretion in the trial court’s decision.
III
DISPOSITION
The petition is denied.
WE CONCUR: SILLS, P. J., RYLAARSDAM, J.