Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kings County No. 08JD0080. George Orndoff, Judge.
Gino de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant.
Colleen Carlson, County Counsel, and Bryan Walters, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J., and Gomes, J.
Daniel B. (father) appeals from an order terminating his parental rights (Welf. & Inst. Code, § 366.26) to his three sons (children). Father contends the court abused its discretion by not granting his request under section 388 to reinstate reunification services. On review, we disagree and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In November 2008, respondent Kings County Human Services Agency (agency) took these children, who ranged in age from nine months to three years old, into protective custody because of their mother’s drug abuse. At the time, father was serving a prison sentence for drug-related offenses. A pediatrician who evaluated the children reported the two older boys acted oddly and were very delayed in language development. The pediatrician suspected they were exposed to severe emotional neglect and abuse.
The juvenile court ordered the children detained and set a combined jurisdictional/dispositional hearing. According to an agency report for the hearing, father had a history of substance abuse and had refused to participate in court-ordered treatment on three separate occasions between 2005 and 2007. Then, in April 2008, father was arrested for second degree burglary and being under the influence of a controlled substance. The following month a court terminated father’s probation for other drug-related offenses and sentenced him to two years in state prison.
Although his history supported a denial of reunification services (§ 361.5, subd. (b)(13)), father expressed a desire to reunify with the children. He was reportedly scheduled to be released in August 2009. Also, the mother believed the older children had a good relationship with father and appeared bonded to him. Under those circumstances, the agency proposed a plan of reunification for father, both while incarcerated and upon his release. The plan also required the caseworker to arrange monthly supervised visitation for father while he was incarcerated.
The juvenile court later exercised its dependency jurisdiction over the children (§ 300, subd. (b)), adopted the agency’s proposed reunification plans for father and the mother, and set the six-month review hearing for June 2009.
Over the ensuing six months, the mother did not comply with her case plan requirements but father did what he could. Meanwhile, the caseworker was unable to schedule a visit between father and the children at the prison despite repeated efforts to do so. In July 2009, the juvenile court terminated reunification services for the mother and continued services for father.
During the next six months, father completed a 12-week NA/AA program through Balanced Reentry Activity Group (BRAG). He also remained in custody with a new release date in March 2010. The agency continued to have difficulty arranging a visit between father and the children.
Meanwhile, the children’s foster parents filed a “Caregiver Information Form” asking the juvenile court to terminate father’s reunification services. They stated the children did not know him and the two older children had strong physical reactions when told they would visit him in prison. One experienced enuresis even after being told the visit was cancelled. The foster parents also stated the children were afraid of being removed from their home.
Soon thereafter, the agency reported and recommended to the juvenile court that it should terminate father’s reunification services. Although he participated in services to the best of his ability, father had not participated in any services that would demonstrate his ability to safely parent the children. In addition, he was involved in a prison riot, which extended his release date from August 2009 to March 2010. Furthermore, once released, father would have only two months before an 18-month review hearing to demonstrate his ability to safely parent the children. Under the circumstances, the agency did not believe he could accomplish that in such a short period of time.
In another report, the agency advised that the children had recently visited father for the first time. Adam, the middle child, was resistant and did not want to go. The other two visited with father for approximately 15 minutes each. Daniel, the eldest, recited the alphabet on the telephone. Tyler held the telephone but was too young to converse. None of the boys appeared bonded to father. Afterward, Daniel stated, “[t]hat man scared me.” The foster mother reported that all three boys experienced enuresis and acted out after the visit. Daniel was uncharacteristically quiet and clingy. Meanwhile, Adam tried to choke Daniel and had nightmares that he could only describe by saying “jail.”
In January 2010, the juvenile court conducted a contested 12-month review hearing. At issue was whether there was a substantial probability the children could be returned to father’s custody by the 18-month review. The caseworker testified father completed all services available to him in prison. However, she did not believe he demonstrated the capacity and ability to complete the objectives of his case plan and to provide for the children.
Father testified he completed two BRAG programs, which he described as weekly one-to-two-hour NA/AA meetings. He said parenting was discussed at the meetings and he believed he learned from those discussions. Father also testified he was on step 9 of the 12-step program and, prior to a recent prison transfer, he had a sponsor. He also claimed he participated in mental health counseling every nine days.
In addition, father denied participating in a prison riot as reported by the agency. However, he did admit to fighting with another inmate, which fight resulted in the extension of his release date to March 2010.
Following argument, the juvenile court found there was not a substantial probability the children could be returned to father’s custody following another six months of services. The court also found the agency provided him reasonable services. It then terminated reunification services and set a section 366.26 hearing for May 6, 2010 to select and implement a permanent plan for the children.
Father subsequently challenged both of the juvenile court’s findings through an extraordinary writ proceeding in this court. (F059353, D.B. v. Superior Court.) In our opinion denying father writ relief, we rejected an argument that the caseworker’s efforts to arrange visitation were unreasonable. We also concluded the juvenile court had ample reason to question father’s ability to assume custody by the time of its 18-month review. We specifically mentioned that assuming he was released in March 2010, father would have had two months to complete the bulk of his court-ordered services, the principle components of which dealt with substance abuse treatment. That, coupled with father’s history of noncompliance with previous court-ordered drug treatment, gave the juvenile court no reason to believe father would comply outside the confines of prison.
In April 2010, the California Department of Social Services (CDSS) filed a report with the juvenile court recommending it find the children likely to be adopted and order termination of parental rights. Because the children’s adoptability is undisputed on appeal, we do not recite the CDSS assessment of each child and the prospective adoptive parents.
On May 6, father’s counsel requested a contested section 366.26 hearing. She added “[a]nd we were also going to file a JV180 as well.” In addition, she wanted the agency’s social worker ordered to attend the hearing. The court granted counsel’s requests and continued the section 366.26 hearing.
“JV-180” is the number assigned to the Judicial Council form entitled “Request to Change Court Order” pursuant to section 388.
Approximately two months later, on July 2, father’s trial counsel filed JV-180 forms, one for each child, asking the court to vacate the section 366.26 hearing and reinstate reunification services based on alleged changed circumstances and the children’s best interests. Because the forms contained only allegations and no supporting evidence, we need not recite those allegations.
The juvenile court set a hearing on father’s request for July 8. Because the agency’s social worker was unavailable, the hearing on both the request and the recommendation to terminate parental rights again had to be continued. The court continued its hearing to August 18.
In response to father’s July request to reinstate reunification services, the social worker, Freddie Reynoso, filed a written response. According to Reynoso, he met with father on August 2 and discussed his recent JV-180 filing. Father stated he was aware the previous service plan required him to attend general mental health counseling and have a substance abuse assessment. However, he had not yet engaged in any type of counseling services. According to father, when he got out of prison, he was overwhelmed, depressed, and busy trying to find a job. Father also indicated engaging in services was difficult. His first priority was to “get on his feet” and find employment. He was currently working part-time in an orchard.
Asked on August 2 if he had been attending NA/AA meetings, father provided proof of attendance at five NA meetings between July 19 and August 2. He did not attend any meetings during the months of March, April, and May 2010. Asked why he did not attend meetings when he was released from prison, father stated “I was overwhelmed and I just began to take my sobriety seriously.” He was on step one of the program and had a sponsor to assist him.
Father also spoke with a parenting instructor on August 2. He received a referral that day to begin parenting classes.
Two days later, on August 4, father enrolled in an alcohol and other drug treatment program. He would begin twice-a-week group counseling sessions on August 10. Father also received an appointment for the end of August to be assessed for general counseling services.
On August 5, father attended a parenting orientation and was placed on a waiting list. His estimated the starting date for parenting classes was in late September.
On August 18, the court conducted its hearing on father’s request to reinstate reunification services. It heard testimony from father and social worker Reynoso.
Father’s Testimony
Father was released from state prison on March 20, 2010. He claimed he had been sober and had not used any substances since April 2008, when he entered prison.
He testified he attended “NA classes a couple times a week, ” and had attended 10 times. He started attending in July 2010. He later claimed that was when he began documenting his attendance. He testified he started attending NA meetings in April. He was on “the first step still, ” which was “admitting that [he] had an addiction, ” and had a sponsor. Father found going to NA beneficial.
Since signing up for drug treatment on August 2, father had attended two group meetings. He confirmed he would have a mental health assessment later in August.
Father testified he was also attending bible study and church services on Sundays. The church also recently hired him as a part-time groundskeeper. This was in addition to his part-time job working in an orchard. Father also had a sponsor through the church to talk to when he had a problem or felt down. Having a sponsor helped him live a clean and sober lifestyle.
Father also confirmed he enrolled in a parenting class on August 2. However, there was a five-week waiting period before the class would begin.
Further, father was drug testing once a month through parole and was testing “clean.” He also had one random drug test and the results of that test were “clean.” He claimed his parole officer had not made any comments and did not have any concerns.
Father also testified he was visiting the children once a month for an hour. During the visits, “we play and talk, ” and father asked them questions about how things are going. The children were starting to recognize him. “[M]y [eldest] son calls me dad now.” As for his middle son, “when I first got out he was real shutoff towards me, now he’s talking to me and interacting with me.” The youngest child was “still warming up too.” He did not call father “dad” during visits.
If the court gave him an additional six months of services, father believed he could complete them because he was already “doing it.”
On cross-examination, father acknowledged that despite his March 2010 prison release, he did not start engaging in services “until this month.” “I was under the idea that I didn’t even have to do it because my reunification was cancelled.” “[W]hen I asked about the stuff [the social worker] said I don’t qualify for it because I’m not in my reunification, it was cancelled.” Father also claimed he found out he might be able to file a modification petition from his attorney when he was last in court on July 8.
Father later admitted telling the social worker that once he (father) got out of prison he was depressed and busy trying to find a job, and that it was overwhelming. That was the reason he did not engage in any services at first. He claimed he was depressed about getting out, having to start over, and having his services terminated. It was also overwhelming getting back into society. Yet, when asked if feeling overwhelmed was one of the reasons he did not start engaging in any services until recently, father replied, “I was under the idea that I didn’t have to do it until they started up my reunification, that’s what I thought.”
Father admitted he knew in May that the recommendation was to terminate his parental rights, but he did not call or meet with his attorney after the May hearing. At some point, he did contact his attorney but he was “not too sure” when. He did not know why he waited to start the process to enter drug treatment or enroll in parenting classes.
Father also claimed the programs he completed while in prison were “two 24 week pretty much NA classes.”
Social Worker Reynoso
Reynoso testified he was assigned to the family’s case in the end of February 2010, after the court terminated reunification services. Father contacted Reynoso on March 22, 2010, about visitation with the children. He also specifically asked, “What can I do to get my kids back?” Reynoso explained to father that his reunification services had been terminated, but he might have other options that he could do on his own initiative. While Reynoso did not advise father of what those options were or where to go, the social worker did suggest that father contact his attorney. Father acknowledged at the time that he knew who his attorney was.
Reynoso observed the subsequent visits father had with the children. Father missed a scheduled visit later in March, so that his first visit following his prison release was in April 2010.
Reynoso described the initial April visit as “fine.” The eldest child, who was four years old at the time, seemed to recognize father and did not seem scared by him. Father gave the children a hug and kiss when they arrived. The kids then played with toys and ran around the room. Father got on his knees and attempted to get their attention.
At the May visit, the two older children greeted father. The youngest child, who was two years old, did not and instead focused on the toys in the room. There was nothing unusual about the May visit. Father played with the children.
Father appeared much more comfortable at the June visit. The eldest child called him daddy while the youngest child had very little interaction with father.
There was no visit in July, as father waited until July 28th to schedule one. The next visit occurred two days before the hearing. Reynoso described the visit as appropriate. The eldest child, who wanted to play superhero, was bouncing around quite a bit while there continued to be little interaction between the youngest child and father. Father did attempt to engage all the children, but he had a challenging time trying to get their attention.
At the beginning of visits, the children did not greet father. Instead, they ran into the room to play with toys. Father came to them to greet them. The children did not react in any unusual way. At the end of visits, the children said goodbye and appeared happy. They did not cry.
The foster parents told Reynoso, when he received the case, that the children referred to father as “that scary man.” Since then, the foster parents had reported their concerns to Reynoso. They reported “[f]ighting, kicking, being aggressive, not listening” by the children usually after the visits with father. Several times, the children had nightmares. Reynoso had no reason to believe that the foster parent was not telling the truth when reporting such behavior.
Following argument, the court denied father’s request based on the evidence presented. The court observed it found father’s NA testimony “somewhat troubling.” Although father testified he completed two 24-week programs in prison and had been going to NA meetings since April 2010, father was still working on his first step, presumably out of a 12-step program. Plus, father’s description of the first step in NA was incomplete. The court added the children were entitled to have some permanency in their lives.
Later, having found the children likely to be adopted, the court terminated parental rights.
DISCUSSION
Father contends the juvenile court abused its discretion by failing to grant his section 388 request and reinstate reunification services. A parent may petition the court for such a modification on grounds of change of circumstance or new evidence. (§ 388, subd. (a).) The parent, however, must also show that the proposed change would promote the best interests of the child. (§ 388, subd. (d); Cal. Rules of Court, rule 5.570.) According to father, he showed he remained clean and sober for approximately two and a half years and had continued services on his own. Also, he had reestablished a relationship with the children despite the lack of visitation while he was incarcerated.
Whether the juvenile court should modify a previously made order rests within its discretion and its determination may not be disturbed unless there has been a clear abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318 (Stephanie M.).) As discussed below, we conclude the juvenile court did not abuse its discretion by denying father’s request. There were neither changed circumstances nor any showing that reunification services for father at that late juncture would promote the children’s best interests.
We acknowledge and commend father’s efforts at self-improvement starting in August 2010. However, he was no closer to reunifying with the children in August 2010 than he was when the court terminated reunification services. At best, he had been released from prison, had four one-hour visits with the children, and claimed to have stayed clean and sober since his release. However, regarding his clean and sober claim, he offered no supporting evidence from his parole officer or whoever administered his drug tests. Father also ignores the evidence, including his own testimony regarding his lack of effort toward reunification following his March 2010 prison release, until after his attorney filed the July 2010 requests to change the order terminating services.
To the extent father blames the social worker for this delay, the juvenile court may well not have believed father or accepted his excuse. First, father’s repeated testimony that it was his impression that he did not have to do services defied logic. It also called into question his commitment to correct the problems which led to the children’s removal. Second, there was the social worker’s testimony that he told father in March 2010 that although services had been terminated, he might have other options that he could do on his own initiative, and he should consult with his attorney. The record further supported a reasonable inference that father did consult with his attorney, considering her statement at the May 2010 hearing that she was “going to file a JV180.” Still, he did not make much, if any, effort towards changing his circumstances. Third, father’s testimony that he found out he might be able to file a modification petition from his attorney when he was in court on July 8 was simply not credible, given that his attorney had already filed the requests for modification one week earlier.
In addition, father’s testimony that he was still working on the first step in NA raised serious questions about his commitment to sobriety, as well as whether circumstances had changed. As the court pointed out, father testified he had completed two 24-week programs of NA meetings while in custody and had, in fact, been attending NA meetings starting in April following his prison release. Also, father testified in January 2010 that he was on step 9 of the 12-step program he was attending in prison. Yet, as of his August 2010 testimony, he was still working on the first step.
Thus, on the record before the juvenile court, it could find there were no changed circumstances.
In addition, father made no showing that reopening reunification services was in the children’s best interests. While he argues he reestablished a bond with the children, the record, including father’s testimony, does not support his appellate claim. At most, he had four one-hour visits with the children since his prison release, the children were starting to recognize him, and his eldest son called him dad or daddy. However, the children did not greet him when they arrived, but rather sought out toys with which to play. There was some interaction between father and the two older children, but little, if any, with the youngest child. Father did attempt to engage with all of the children but he had a challenging time trying to get the children’s attention. At most, father and the children were getting reacquainted.
Further, as the juvenile court observed, the children were entitled to some permanency. By the time a child’s dependency has reached the permanency planning stage, a parent’s interest in the care, custody, and companionship of the child is no longer paramount. Rather, the focus shifts to the child’s needs for permanency and stability. (Stephanie M., supra, 7 Cal.4th at p. 317.) In fact, there is a rebuttable presumption that continued out-of-home care is in the best interests of the child. A court hearing a modification petition at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child. (Ibid.) In this case, however, father made no showing that reunification services for him would promote the children’s needs for permanency and stability.
DISPOSITION
The order terminating parental rights is affirmed.