Opinion
B163191
7-23-2003
In re RAINA A., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. SHANNON P., Defendant and Appellant.
Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant. Lloyd W. Pellman, County Counsel, and William Sias, Deputy County Counsel, for Plaintiff and Respondent.
Shannon P. (Father) and Josette A. (Mother) are the parents of Raina A. (born July 2000). Mother also has two other children, Asia A. and Jasmine J., who are not the subjects of this appeal. The Department of Children and Family Services (the Department) filed a petition when Raina was 11 days old, alleging that Mother had a history of emotional and mental problems, had failed to provide the children with the basic necessities of life, and that her current whereabouts were unknown. On August 30, 2000, the Department filed an amended petition alleging that Father was a convicted sex offender who had failed to register, had a transient lifestyle, and his current whereabouts were unknown.
Raina was temporarily placed in shelter care, then with her maternal step grandfather. Mother and Father were allowed monitored visitation.
On September 26, 2001, the juvenile court conducted a contested hearing and ruled that neither Father nor Mother had complied with the case plan and terminated reunification services, setting a Welfare and Institutions Code section 366.26 hearing for December 27, 2001. The 366.26 hearing was continued several times, once because Father was incarcerated. During this time, Raina was moved to the home of a step-aunt, Tina C. Prior to the 366.26 hearing, Mother filed a section 388 petition on August 22, 2002, seeking to have the children placed with her. The juvenile court set the hearings on both petitions for November 18, 2002. On November 18, 2002, Father filed a section 388 petition, requesting placement of Raina in his home, or in the alternative for unmonitored overnight visits. The court held hearings on both Mothers and Fathers petitions on November 20, 2002. It denied both petitions. The contested section 366.26 hearing was held on November 25, 2002, and the court terminated both Mothers and Fathers parental rights. Father appeals from this order and the order denying the section 388 petition.
CONTENTIONS ON APPEAL
Father contends on appeal that the court erred in denying the section 388 petition because it never analyzed his petition independently of Mothers and that it never conducted the appropriate analysis. Next he contends that it erred in failing to find that termination of his rights would be detrimental to Raina.
DISCUSSION
1. The Termination of Parental Rights
Pursuant to section 366.26, subdivision (c)(1), a court shall terminate parental rights and order a child placed for adoption unless it finds that termination would be detrimental due to certain circumstances, one of which is that the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. It is the burden of the parent to show that termination would be detrimental. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
Fathers version of his relationship with Raina is markedly different from the Departments. Father contends he had multiple, rewarding, intimate visits with her and that he served as a parental figure to her with a close bond between them. In contrast, the Department claims that Fathers visits were inconsistent, short and showed no evidence of a bond with Raina. Father contends that this difference in opinion is due to the fact that the social workers were inflexible, and not up-to-date on the relationship.
The Departments claims are corroborated by the social workers reports of December 2001, April 25, 2002, and August 22, 2002. Tina Smith, the former social worker on Rainas case, testified that during visits, Fathers interaction with Raina was inappropriate, although he did ask Smith how to become a good father. Father did not show up on two visits. When Father did call to set up more visits, the conversations were angry. After March 2002, Smith was never able to reach Father.
Father testified that he had visited Raina about 40 times during the period of January 2002 to May 2002. He claimed he had been unable to contact the social worker and had reported visitation problems to his former attorney, but the change of lawyers and social workers made it "difficult to follow up." He said he had the same working telephone number for more than a year. He acknowledged that he had not visited Raina at her guardians (Tina Cs.) home in November 2001, but had seen her at family gatherings and when she was at her paternal grandparents home, in 2002. Since he saw her at the grandparents home, he did not feel he needed to contact the social worker. He said he had only missed one monitored visit.
Father describes the criminal conduct that led to his status as a sex offender as a one-time youthful indiscretion, claiming that he was 19 years old and "the girl involved was 17 years old." The 1991 abstract of judgment reflects two counts of forcible rape and the underlying felony complaint alleges that there were two victims, not one. Following his conviction, Father failed to register as a sex offender and was arrested on November 30, 2001. He was subsequently released upon proof that he was living with his mother. He was then was arrested on August 29, 2001, for spousal abuse. Father was arrested again on March 26, 2002, for possession of a controlled substance and on October 12, 2002, for driving with a suspended or revoked license.
Tina C. confirmed that Father had shown up several times when she brought Raina to her grandparents house, but said that Father never called her to ask for visits during 2002.
The court was entitled to find that the social worker was credible and that Father was not. Father is essentially asking us to reweigh the evidence and to substitute his judgment for that of the juvenile court. We decline to do so. (In re Zachary D., supra, 77 Cal.App.4th at p. 812; In re Casey D. (1999) 70 Cal.App.4th 38, 53.) We find no error in the courts order terminating parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
2. The 388 Petition
A section 388 petition will be granted if the petitioner establishes by a preponderance of the evidence that (1) there is a change of circumstances or new evidence and (2) the proposed change is in the childs best interests. (§ 388; In re Casey D., supra, 70 Cal.App.4th at p. 47.) We review the denial of a section 388 petition for abuse of discretion. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
Father contends that he showed a change of circumstances because he had been rehabilitated as a sex offender and that allowing him to continue his relationship with Raina was in her best interests. He argues that the juvenile court did not properly evaluate his petition pursuant to the three factors enumerated in In re Kimberly F. (1997) 56 Cal.App.4th 519, 532, that is: "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of the relative bonds between the [child and his or her parents] and caretakers; and (3) the degree to which the problem [leading to the dependency] may be easily removed or ameliorated, and the degree to which it actually has been."
The only change of circumstances Father can demonstrate is that he completed a sexual awareness program, had signed up for an anger management program, was taking parenting classes, and he had an appropriate stable residence where Raina would have her own bedroom.
Father testified that he had not completed the anger management program, and that he had never taken care of a child Rainas age before. He admitted that there was not much of a bond between him and Raina. He acknowledged that he had been arrested twice within the past year, but attempted to minimize his prior conviction for rape.
The record reflects that Rainas counsel urged the court to deny Fathers petition, stating that Father had not visited her, she did not look to him as a caretaker, and had never spent any time alone with her. She also indicated that Raina was thriving in her current home. Counsel for the Department also stated, "I further do not believe that father has met his burden to show the change of circumstances in this case that would warrant return of either child to either parent. I would submit to the Court that the parents own testimony is weak in evidence that would support such a change." The court stated, "Based on what Ive heard in this petition, in this hearing, the parents have not met their burden. . . . [P] The children are actually differently situated, too. Raina — [Mothers] only visited this child once a month, and there doesnt seem to be any — the closeness there that might warrant some relief. [P] As far as the second prong of the 388, that being the best interests of the children, that, I dont believe, has been met by either parent either. [P] I dont think it would be in the best interests of the children to return both kids to mom at this point. Its — it would be, I think, detrimental to them to do that. . . . [P] The — the comments about the social workers — I didnt find much trouble with the social workers. I thought Ms. Smith was very frank and very candid and very forthcoming. I felt that she put this all in a — in perspective, based on, at least, the context shes had with mom and the children. [P] . . . [P] And based on the totality of the evidence, the petitions are denied."
Father did not establish that any change would be in the best interests of Raina. Testimony at the hearing established that he acted inappropriately at monitored visits. He did not keep the Department informed on his whereabouts. Finally, the social worker described Raina as uncomfortable with Father. It was evident from his testimony that Father did not appreciate the gravity of his past convictions, and had not progressed to the point where he would be able to take care of Raina. Father did not meet his burden of proof to show that an undoing of the prior order was in the best interests of Raina or that there had been any appreciable change of circumstances. (In re Kimberly F., supra, 56 Cal.App.4th at p. 531.) Although the court may have spent more time detailing the reasons for its denial of Mothers petition, the record clearly reflects that it knew Father had filed a separate petition and there were adequate grounds for denial of that petition. (In re Zachary G., supra, 77 Cal.App.4th at p. 806.)
DISPOSITION
The orders denying the section 388 petition and terminating the parental rights of Father are affirmed.
We concur: VOGEL (C.S.), P.J. EPSTEIN, J.