Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County .No. J219818, A. Rex Victor, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.)
Linda Rehm, under appointment by the Court of Appeal, for Plaintiff and Appellant.
Ruth E. Stringer, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Defendant and Respondent.
OPINION
McKinster, J.
R. (father), the biological father of J., appeals from an order of the court denying his changed circumstances petition. (Welf. & Inst. Code, § 388.) On appeal he makes no direct challenge to the findings and orders terminating his parental rights. J.’s biological mother is not a party to this appeal.
All further statutory references are to this code unless otherwise stated.
Finding no error in denying his section 388 petition, we affirm the judgment.
PROCEDURAL HISTORY AND FACTS
J. was born in February 2008. His mother did not want him, and she voluntarily surrendered him at the hospital pursuant to the Safe Arms Act. Mother did not name father on the birth certificate nor did she sign it. Within a month of his birth J. was placed in a concurrent planning home with the E.’s, i.e., they wanted to be his foster parents and expressed an interest in becoming his adoptive parents.
He tested positive for methamphetamine. He exhibited physical ailments and developmental delays due to his exposure in utero to methamphetamine. He has had seizures, and his head is misshapen with protruding parietal bones. His foster caregivers are paramedics.
Health and Safety Code section 1255.7.
Father was sentenced to state prison before J. was born. J.’s mother had a relationship with father until he was arrested. She had told him that she was pregnant, but later she told him she miscarried. Six months later she told him that she was still pregnant.
On April 3, 2008, father contacted the social worker assigned to the case. He advised the social worker that his expected release date was in February 2009 and that he wanted to take a paternity test. The Department of Corrections and Rehabilitation placed his release date in January 2010, however. Later, he requested placement of J. with his sister in Hesperia or his parents who lived in New Mexico.
Another man also came forward as a potential biological father of J. However, father was determined by DNA testing to be the biological father.
An amended section 300 petition was filed alleging that J. came within subdivisions (b) and (g) in that father has a history of drug abuse that interferes with his ability to parent, and that father has an extensive criminal history and was then serving a three-year prison sentence leaving him unavailable to care for J.
Father has had numerous convictions and incarcerations commencing in 1995, including robbery, burglary, possession of controlled substances while in prison, assault with a deadly weapon, receiving stolen property, and being under the influence of a controlled substance. He has spent most of the past 10 years in prison. Two parole violations were based on use of drugs. He has abused drugs, principally marijuana and methamphetamine, since he was 15 years old. He has never been able to complete a drug program because new crimes would result in his return to prison prior to completion. He claims to have stopped using drugs for six months prior to his last commitment, but conceded before the jurisdictional/dispositional hearing that his drug problems might affect his ability to parent J., and he would need help with his substance abuse upon his release.
A contested jurisdictional/dispositional hearing was held on August 14, 2008. Father was present in custody and testified. The court found father to be only a biological father, not a presumed father. The court sustained the petition and declared J. to be a dependent of the court, denied reunification services and referred the case for a selection and implementation hearing pursuant to section 366.26.
Father sought writ review. (Cal. Rules of Court, rule 8.452(a).) We denied the petition. In doing so we determined that as a biological father, and not a presumed father, he was not entitled to custody or reunification. (In re Zacharia D. (1993) 6 Cal.4th 435, 451.) We determined that it was not error to deny father reunification services pursuant to section 361.5 because services are limited to six months when the child is under the age of three years, and father’s incarceration would last beyond the allotted reunification period of six months. (§ 361.5, subd. (e)(1).)
The court may provide services to a mere biological father if the court determines it is in the child’s best interests. (§ 361.5, subd. (a).) Reunification services for an incarcerated parent may be denied if they are not in the best interests of the child. (§ 361.5, subd. (e)(1).)
The court set a date for the section 366.26 hearing, but it was delayed for many months, primarily due to requests to continue the hearing so that an ICPC study could be completed regarding the grandparents living in New Mexico and a failure to get a transportation order delivered to prison to transport father to the hearing. It was ultimately set and heard as a contested matter on June 2, 2009, nearly 10 months after the dispositional order was made.
The Interstate Compact on Placement of Children; Family Code section 7900 et seq.
By then father had been released from prison. He filed his section 388 petition on May 20, 2009, alleging changed circumstances. In the petition he alleged as a changed circumstance his release from prison. His petition requested (1) visitation, (2) reunification services, and (3) J.’s placement with his sister or in the alternative with his parents in New Mexico. The section 388 hearing and the section 366.26 hearing were conducted one after the other on the same date.
During the long delay of the section 366.26 hearing, father’s sister was approved as a placement, and the ICPC study was favorable for placement with the grandparents except that it was not yet complete as to child abuse or neglect in their histories.
The court determined that the only changed circumstance was father’s release from custody. It further found that it would not be in the child’s best interest to remove the child from the only family he has ever known in order to provide reunification services to a biological father who was a stranger to the child and place him with family members, who were likewise strangers, while father attempted to reunify. The court stated that the case was then in a permanency planning stage, not in a reunification stage, and that the time for reunification was well past. The court terminated parental rights and found adoption the most appropriate plan for J.
Father now appeals only alleging as error the summary denial of his section 388 petition.
DISCUSSION
A parent seeking to change an order of the dependency court bears the burden of proving by a preponderance of the evidence that (1) there is a change in circumstances warranting a change in the order, and (2) the change would be in the best interests of the child. The summary denial of a section 388 petition without an evidentiary hearing is reviewed for abuse of discretion. (In re Angel B. (2002) 97 Cal.App.4th 454, 460-461.) The trial court’s ruling will not be disturbed on appeal unless it has exceeded the limits of discretion by making an arbitrary, capricious or patently absurd determination, i.e., the decision exceeds the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Father’s petition essentially asked for an opportunity to reunify with J. sometime in the future. The petition asked the court to change placement of J. to one of his relatives and grant him reunification services and visitation since he now was released from custody. We find that the court did not abuse its discretion in denying the petition.
First, regarding changed circumstances, the court found that the only changed circumstance was father’s release from prison. While release from prison is a changed fact, we agree with the trial court that that change in circumstances is not one warranting a change in the court’s previous orders.
Father was denied reunification services at the dispositional hearing. We affirmed that order because it was supported by substantial evidence when father sought writ review of the orders and findings made at that hearing.
Reunification is an objective of the dependency system; however, after reunification services are terminated, a parent’s interest in the care, custody and companionship of the child is no longer paramount. Instead, the court’s focus shifts to the needs of the child for permanency and stability. There is, in fact, a rebuttable presumption that continued foster care is in the best interests of the child. A court ruling on a section 388 petition therefore must recognize this shift of focus in determining the ultimate question before it which is the best interests of the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) Father therefore was not entitled to reunification services at such a late stage of the proceedings even if he was currently out of custody. The fact that he was then out of custody was not a “changed circumstance” because the focus was no longer on reunification with him but rather on the stability and permanency of J.
Second, it was not in the best interests of J. to change placement to one of father’s relatives while father was participating in reunification services in the hope of reunifying with his son. The record shows that J. suffered from many residual effects of his exposure to methamphetamine. His stability and permanency were of paramount concern at this stage of the proceedings. He had lived his whole life with the E.’s, and their biological son, who were meeting his needs. They loved him, and he was bonded to them. It would not be in his best interests to remove him from the only family he has known and place him with strangers whose depth of commitment to him is unknown and, apparently, only temporary until he could reunify with father who is also a stranger to him.
The court found at the section 366.26 hearing that there was no relative preference for placement at that stage of the proceedings. Prior to termination of reunification services there is a preference for relative placement, on the theory that a relative will help further the objective of parental reunification and not compete for custody. However, that preference applies during the reunification period. (In re Joseph T. (2008) 163 Cal.App.4th 787, 795, 797-798.) Father was never provided reunification services due to J.’s age and the length of father’s imprisonment so there was no relative preference at the time of the hearing on father’s section 388 petition. Even if there were, father would have no standing to raise the issue since his interest is in reunification, and he would not be aggrieved of any error in denying relative placement. (Caesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034-1035.)
While father had offered his sister and his parents as possible placements, the record does not indicate that these relatives had ever contacted the social worker to ask for placement with them.
Father claims that the reason for the dependency was simply due to mother’s abandonment of the child without father’s knowledge and consent and father’s unavailability to care for him due to his imprisonment. That is just not true. The court found at the jurisdictional hearing that abuse of controlled substances impaired father’s ability to parent under section 300, subdivision (b). Father did not address in his petition what measures, if any, he had taken to address his drug use.
Father has a long history of drug abuse. He has spent most of the last 10 years in prison. His most recent commitment was for a property offense. He admitted to the social worker before the jurisdictional/dispositional hearing that his drug abuse might affect his ability to parent. Two of his past parole revocations were due to his use of drugs. While father claims to not have used drugs for six months before his last arrest, the court did not have to credit this uncorroborated claim. The record does not show that father has ever completed a drug program or the results of current drug tests, if he has even taken any. Based on father’s prior history, it is pure speculation that father would remain crime free, drug free, out of custody, participate in reunification services and complete a reunification plan.
As previously noted, the focus at this stage of the proceedings is on J.’s permanency and stability, not reunification. The court determined that it was not in J.’s best interest to remove him from his prospective adoptive family, with whom he is bonded, and place him with father’s relatives while father participated in reunification services in order to reunify at some unknown time in the perhaps distant future.
Given father’s extensive history of criminality, unaddressed drug problem, frequent returns to prison, lack of bonding with J., and the extensive time, effort and services necessary to ameliorate the behaviors that led to the dependency, the court clearly did not err in denying father’s petition. (In re B.D. (2008) 159 Cal.App.4th 1218, 1229.) There was no abuse of discretion.
DISPOSITION
The order denying father’s section 388 petition is affirmed.
We concur: Hollenhorst, Acting P.J., Miller, J.