Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara No. J1285788 James E. Herman, Judge
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, County Counsel, Sarah A. McElhinney, Deputy County Counsel for Plaintiff and Respondent.
COFFEE, J.
R.B., (father) appeals appeal the orders of the juvenile court denying his modification petition and terminating parental rights to his daughter, H.B. (Welf. & Inst. Code, §§ 388, 366.26, subd. (c)(1).) Mother is not a party to this appeal. We affirm.
All further references are to the Welfare and Institutions Code.
FACTS
H.B., born December 2008, was detained at birth after she and her mother tested positive for methamphetamine at the hospital. Father was allegedly unaware of mother's drug use, but admitted to "using a 'little weed' himself." At the detention hearing, the court permitted supervised contact between the minor and father, who was then an alleged father. Visitation was once a week for two hours.
At the jurisdictional hearing, held on January 29, 2009, the juvenile court ordered paternity testing. It found the petition true, based upon mother's substance abuse, father's failure to protect from mother's substance abuse, and mother's failure to participate in family reunification for her previous children. (§ 300, subds. (a), (b) & (j).) The court offered reunification services for father only. In April 2009, the results of a paternity test showed that father was the presumed father of the minor.
Pursuant to the juvenile court's order, the Department of Child Welfare Services (Department) prepared a new case plan for father. It required that he enter a substance abuse treatment program, live free from alcohol and other illegal substances, attend parenting classes, obtain a legal source of income and secure stable housing. Father was allowed supervised visits of either two hours per week or one hour twice weekly.
Six Month Review
At the six month review hearing on October 22, 2009, the Department recommended that father be granted additional family reunification services. In its status review report, the Department indicated that father engaged in "inappropriate and unsafe parenting behaviors, " and could benefit from further services. The court adopted the Department's recommendation, and continued reunification.
Twelve Month Review
The twelve month review hearing was held on June 17, 2010. The Department recommended that the court terminate reunification services and set the matter for a section 366.26 hearing. It indicated in its status review report that the minor had excelled in the care of her foster family and had overcome any effects of her in-utero drug exposure. The Department had hoped to return the minor to father's care at the review hearing. That changed when father had a positive drug screen for marijuana on March 2.
Father explained his dirty test by saying that marijuana was "in the air, " that he was around people who were smoking marijuana, and that he had eaten marijuana seeds. Visitation was suspended from March 2, through April 1, 2010. Father's use of marijuana, coupled with his lack of housing and parenting skills, caused the Department to recommend the termination of reunification.
The Department reported that father rents a room within a family home which he acknowledges is not adequate to house the minor. He is employed as a gardener, but the work is not steady. Father told the Department that his current landlord might rent him a studio apartment, but father did not want to move until the Department guaranteed that the minor would be returned to his care. The social worker explained that the court could not return the child to his care if he had not procured housing.
The Department reported that father's parenting skills had improved. During visitation he displayed appropriate parenting behaviors, brought healthy snacks and interacted well with the minor. He could change diapers and bathed the minor during every visit. He indicated readiness to parent the minor and denied having a drug or alcohol problem.
The review hearing was originally set as a contested matter. Father withdrew his contest after reaching an agreement with the Department that he would receive an additional hour of visitation per month, for two hours of supervised visits per month. Father submitted on the reports. The juvenile court ordered the additional visit and that father drug test before each visit. It terminated reunification services and set the matter for a section 366.26 hearing.
Section 388 Petition
The Department issued a section 366.26 report on September 16, 2010, recommending the termination of parental rights and that the minor be freed for adoption. The report indicated that, since reunification terminated on June 17, the visitation schedule had changed to twice monthly for one hour. Father visited consistently and drug tested prior to each visit. The results have been negative. The minor is comfortable in father's presence and calls him "'daddy.'"
On October 6, 2010, father filed a section 388 petition (JV-180), alleging changed circumstances. He requested that the court reinstate reunification services. The circumstances that had allegedly changed were that father had resumed visitation following termination of reunification in June 2010. Since that time he has consistently tested clean. He attends Alcoholics Anonymous/Narcotics Anonymous (AA/NA) groups up to four times per week and is attending parenting classes. He is employed in construction and rents a house in Lompoc. Father stated that the minor is bonded with him and wants a relationship. He attached evidence of his participation in alcohol treatment programs and parenting classes and two letters attesting to his good character.
Combined Section 388 and 366.26 Hearing
At a contested hearing on October 21, 2010, father orally amended his petition to request family maintenance services, rather than reunification. He moved into evidence testing logs showing his attendance at NA for September and October, drug testing results for July through September, and proof of his participation in parenting classes. Father testified that, if the minor were returned to him, he intended to move into a house that he would share with a roommate, Joshua Morales.
Joshua and father would share the rent of $1,000 per month. The house has two bedrooms. The roommate and the minor would each have a bedroom and father would sleep in the living room. Also submitted into evidence was a typewritten and signed statement from Joshua indicating that he intended to move into a house with father on November 1, 2010.
Father testified that he has been working 40 hours per week for the past two months, doing construction and landscaping. He earns $2,000 per month, but had no written proof of his income. He sends his mother $300 to $400 per month. Father indicated he had paid a $500 deposit, but did not have a receipt or rental agreement because the house was owned by Joshua's grandfather, who also owns a plant nursery. Father has known Joshua's family for 10 years.
Childcare will be provided by a woman father has known for seven or eight years. Father described her as a godparent, but could not remember her name. He believed that he would pay the woman $200 per week for childcare. The woman would care for the minor daily at her house, where she lives with her three children. A woman named Tanya Kooka owns the house where father currently lives. He believes that she could also care for his daughter, although "she's a little old." Father named two other women who would be willing to care for the minor. He testified that he had been testing clean since the hearing in June 2010, and attending NA/AA meetings regularly, and visiting the minor every two weeks. The longest visit father had with his daughter was two-and-half hours. All his visits are supervised.
The juvenile court expressed concern over father's vague testimony and the lack of documentation concerning his residence, income and childcare arrangements. The court found that father had not met his burden of showing changed circumstances. Father's counsel indicated he would offer no further argument or testimony for the section 366.26 hearing. The court found by clear and convincing evidence that the minor was likely to be adopted and terminated parental rights.
DISCUSSION
Father contends he met his burden of proving changed circumstances and the best interests of the child. He asserts that the court's ruling on his section 388 petition must be reversed, which would require reversal of the order terminating his parental rights.
Father initially appealed only from the termination of parental rights, but did not appeal the denial of the trial court's ruling on his section 388 petition. We granted father's request to construe his appeal to include the denial of this petition.
Under section 388, a juvenile court is authorized to modify a prior order if a petitioning parent shows a change of circumstances or new evidence and establishes that modification is in the best interests of the child. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Eric E. (2006) 137 Cal.App.4th 252, 260.) Following termination of reunification, the parents' interests are no longer paramount. (In re Stephanie M., at p. 317.) "[T]he focus shifts to the needs of the child for permanency and stability." (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) The juvenile court must recognize this shift in focus when considering a change of placement. (In re Stephanie M., at p. 317.) The petitioning parent bears the burden of showing changed circumstances. (Ibid.)
The court has broad discretion in resolving a petition to modify a prior order. Its determination will not be disturbed on appeal unless an abuse of discretion is clearly shown. (In re Stephanie M., supra, 7 Cal.4th at p. 318.) "It 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. [Citation.]" (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)
Father claims he has met the "Kimberly F. factors" in determining the best interests of the minor. (See In re Kimberly F., supra, 56 Cal.App.4th 532.) He contends that (1) the issues that led to the dependency were not too serious to correct; (2) he has a strong bond with the minor; and (3) the problems that led to the dependency have been removed.
Father points out that a section 388 petition allows the juvenile court to address "a legitimate change of circumstances...." (In re Marilyn H., supra, 5 at p. 309.) He argues that he made a "legitimate change" between the termination of reunification services in June 2010 and the section 388 hearing in October 2010. Father asserts that, after termination of reunification, he has consistently tested clean. He provided proof of his regular attendance at NA/AA meetings, from June through October 2010; and proof of negative drug tests from July through September. He alleges that his circumstances do not "fall into the extreme category of sexual abuse and physical abuse cases."
According to father, the problems that led to the dependency have been ameliorated. The minor was detained due to father's failure to protect the minor from mother's substance abuse. Mother has not had contact with the minor since birth, so there is no longer exposure to her drug use. Secondly, the problem of father's use of marijuana has been removed, because he tested clean before each visit. Moreover, the minor is both physically and mentally healthy and has no behavioral problems. He argues that she has no emotional or physical fragility requiring the stability of continuity in foster care.
Father also asserts that he has a strong bond with the minor. After reunification ended, he began visiting consistently. The minor was comfortable in his presence and called him "daddy." He argues that this is evidence of a strong parent/child relationship, which weighs in favor of granting the section 388 petition.
Father's analysis falls short of the necessary considerations to determine a child's best interests. In ruling upon a section 388 petition, the juvenile court must consider the seriousness of the reason for the dependency, the reason the problem was not overcome, the strength of the parent-child and child-caretaker bonds, the length of time the child has been a dependent, the nature of the change of circumstance, the ease by which the change could be achieved, and the reason it was not made sooner. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446-447.)
Here, the dependency was necessary because the minor had pre-natal exposure to methamphetamine. Father had not protected the minor from mother's drug use and he had tested positive for marijuana. It is acknowledged that the minor is comfortable in father's presence and his parenting skills have improved. Nevertheless, father has never occupied a parental role. The minor has been in one foster care placement for her entire life and knows no other parents.
The juvenile court offered father reunification, but he was unable to meet his case plan goals. It was only after reunification services were terminated that father's situation began to improve. Even so, at his section 388 hearing, father was unable to establish that he had procured housing, obtained steady employment, had a regular income, or had developed a concrete plan for childcare. Father has never achieved and maintained unsupervised or extended contact with the minor.
Father has not met his burden of showing changed circumstances that would justify modification of the prior order. Termination of reunification was in the best interests of the minor. The juvenile court did not abuse its discretion in denying father's petition.
DISPOSITION
The judgment (orders denying section 388 petition and terminating parental rights) is affirmed.
We concur: GILBERT, P.J., PERREN, J.