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In re S.C.

California Court of Appeals, Second District, Fourth Division
Sep 24, 2008
No. B205583 (Cal. Ct. App. Sep. 24, 2008)

Opinion


In re S.C., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.C., Defendant and Appellant. B205583 California Court of Appeal, Second District, Fourth Division September 24, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. CK16394, D. Zeke Zeidler, Judge. Affirmed.

Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Timothy M. O’Crowley, Senior Deputy County Counsel, for Plaintiff and Respondent.

SUZUKAWA, J.

S.C. is the child of J.C. (Father) and M.R. (Mother). She was born in January 2006 with drugs in her system and immediately taken into custody by the Department of Children and Family Services (the Department). S.C. was placed with foster parents Maria E. and her husband shortly thereafter. Mother did not identify a father on the birth certificate. In April 2006, Father was deemed to be S.C.’s biological father after a blood test confirmed his paternity.

On June 19, 2006, a petition alleging violations of Welfare and Institutions Code, section 300, subdivisions (b) and (j) was sustained. The relevant finding as to Father was that he “is unwilling to provide ongoing care and supervision for the child. Further, the child’s father is unwilling to provide for the child’s basic necessities of life including, but not limited to, food, clothing, shelter, and medical care.”

All further statutory references are to the Welfare and Institutions Code.

As Mother is not a party to this appeal, we do not discuss the juvenile court’s finding concerning her conduct.

Initially, Father expressed no interest in reuniting with S.C. Later, he filed a section 388 petition seeking custody of S.C. and reunification services. Father was provided reunification services, which the court terminated on August 9, 2007. On January 22, 2008, Father filed a second section 388 petition. That day, the court conducted an evidentiary hearing, denied the petition, terminated Father’s parental rights, and selected adoption as the permanent plan. He appeals from those orders. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Father and Mother were never married. In addition to S.C., Father and Mother have a son together, J.C., Jr., who was born March 2004. For approximately 30 years, Father has been married to M.C. (Stepmother). He lived with her and their daughter for much of the time during these proceedings. Father and Stepmother have two daughters, C.B. and J.C.1 Father has at least two other adult children, F.C. and R.C.

The record contains a reference to an adult son, also named J.C., Jr., but it appears this may be an error.

Initially, Father did not claim S.C. as his child. Since he was not married to Mother, he did not want to acknowledge paternity or take responsibility for S.C. DNA testing was completed in March 2006 and confirmed Father is S.C.’s biological father.

In April 2006, Father was granted unmonitored day visits. The social worker reported that Father missed two visits and was not cooperating with the social worker’s attempts to set up team decision meetings. Father failed to show up for an alcohol test in May 2006 and tested positive for alcohol in June 2006. In May 2006, Stepmother told the social worker that she would not agree to have S.C. live with them until Father obtained new housing, as they were living with eight people in a one-bedroom apartment. In June 2006, when the juvenile court sustained the petition, it denied Father reunification services. The visitation order continued in effect.

In November 2006, Father filed a section 388 petition seeking custody of S.C. and reunification services. In an affidavit signed on November 1, 2006, Stepmother declared that she loved J.C., Jr. and S.C. and considered them to be her children. She wanted S.C. in her and Father’s custody, stating, “she’s a part of our family, and should be with us.” In December, the court granted the petition and ordered the Department to provide Father with reunification services. It required Father to continue random drug and alcohol testing and attend Alcoholics Anonymous meetings. The court authorized unmonitored visitation, including overnight visits, but only if Father had an appropriate crib for S.C.

In November 2006, S.C. was moved to the foster home of Teresa B. S.C. was adapting well to her new home.

In February 2007, the Department reported that it had attempted to inspect Father’s home on a number of occasions, but he kept saying he needed more time to make living arrangements. On February 1, 2007, at a progress report hearing, Father reported that he was planning to move out of his daughter’s apartment and move in with his son in Azusa. The court again stated it would allow Father overnight visits if his new home was inspected and approved by the Department and Father continued to test clean.

In June 2007, Father was reportedly living with his son R.C. R.C. had a criminal record which revealed arrests, one as recent as 2004, for drug-related offenses and providing false identification to a peace officer. R.C.’s five children had been removed from the home and his sister C.B. was taking care of them. Based on R.C.’s history, the social worker reported that she could not approve Father’s and R.C.’s home as appropriate for S.C. The social worker was unable to schedule a visit with Stepmother to discuss her commitment to S.C., as she was going to be S.C.’s primary caregiver when Father was at work.

In June 2007, Father failed an alcohol test. Father claimed he had not had any alcohol but had taken Nyquil for the flu. When the social worker asked further questions, he became angry and claimed the lab results were inaccurate. The social worker spoke with the toxicologist, who said a person would have to take four to five capfuls (the recommended dose is one capful) in order to test positive for alcohol. Father missed his next scheduled drug test in July 2007. The social worker reported that Father claimed he did not understand the daily recordings on the testing facility’s phone line and that he had complained to the testing staff about the recordings. The social worker called the phone line and had no problem understanding the instructions. She was told by the testing site that no one had complained about the instructions on the recordings.

As of July 2007, Father had not secured approved housing. He told the social worker that his difficulty in obtaining housing was not caused by his lack of money, but was due to his bad credit history. On July 2, 2007, Father said he was going to rent an apartment in the Montclair area through his son. He also claimed he had placed a $5,000 downpayment on a mobilehome and was awaiting word from the real estate agent.

In a memorandum filed in advance of the August 9, 2007 hearing, the social worker advised the court that Stepmother had called her on July 30, 2007. Stepmother asked the social worker if she knew how to contact Father. When the social worker gave her the last address Father had given the Department, she said he no longer lived there. Stepmother said that she and her daughter had not lived with Father for the past few months, he had not contacted them, and he had stopped supporting them. Stepmother suspected Father was living with Mother and drinking and abusing drugs. Stepmother said she did not disclose this information sooner because Father had threatened to kill her if he lost his younger children. She was reporting this now due to her concern for J.C., Jr.

At the August 9 hearing, the court terminated Father’s reunification services and set a section 366.26 hearing for December 10, 2007. The court stated that it “finds by clear and convincing evidence that reasonable services have been provided to the Father to reunify with [S.C.] . . . . The Father is partially — in partial compliance with the case plan. I have a big concern about the dirty test in June, considering there had been a previous dirty test once before for a different substance and now there’s a missed test after the dirty test. That’s all of concern to the court; [coupled] with the fact that he really has not been able to be stable in obtaining and confirming a residence. First, he was with one relative with the child, now the other. Now he’s in the adult brother’s house, but the adult brother has a lengthy criminal history and he is intending for the [Stepmother] to be helping to raise the child, but she does not seem to — it is not clear that she is in the picture and they have stability issues that are still a concern to the court. I have worked with the Father. I have continued the matter to try and make sure he had appropriate housing. I have given him overnights if he was testing clean and [had] appropriate housing and he just has not been able to demonstrate it at this time.”

On October 26, 2007, Father indicated that he had found suitable housing in a one-bedroom apartment in Azusa which had been rented by his two adult sons. Ten days later, the social worker went to that address and no one was home. When she asked a neighbor if a three-year-old boy named J.C. lived there, the neighbor said no. A few days later, an investigator went to the apartment and found Father there, but there was no bed for J.C., Jr., children’s clothing, or toys. Father showed the investigator an unassembled crib and claimed it was for S.C. The social worker noted that the Department’s certified notices which had been sent to this address had been returned unclaimed/unsigned.

In a report dated November 2007, the social worker noted that Father had unsupervised two-hour visits with S.C. each week. She visited Father almost every week in September, October, and November.

The November report also noted that S.C. was doing well in Teresa B.’s care. S.C. was happy, thriving, and very attached to her foster mother.

In November 2007, Father’s daughter, C.B., stated that her adult brothers were living in the Azusa apartment where Father claimed to reside. She said she did not know where Father and J.C., Jr. were living.

In the last report prepared before the section 366.26 hearing, Father’s alleged apartment in Azusa had not been approved because the Department had been unable to interview his sons, F.C. and R.C. The Department recommended termination of Father’s parental rights and adoption as the permanent plan.

On January 22, 2008, Father filed a section 388 petition, alleging a change in circumstances and asking for extended visits with S.C. and reinstatement of reunification services.

On that date, the court denied Father’s petition and held the section 366.26 hearing. In his testimony, Father acknowledged that S.C. had never lived with J.C., Jr. He claimed that during visits S.C. spoke with her brother and they ate and played together. He testified that S.C. called him “Papa,” and he did not want her to be adopted.

The juvenile court terminated Father’s parental rights, found that S.C. was likely to be adopted, and selected adoption as the permanent plan. The court stated that it “finds by clear and convincing evidence that return to . . . the parents would be detrimental. The child is adoptable. The sibling exception does not apply. They have not lived together. They have not experienced common experiences and upbringing. And to the extent they may have during these two to four hours visits, it does not outweigh the benefit of adoption for [S.C.]. Although the Father has had two to four hours visits, [he] does not appear to have a parental role and even to the extent that he may have a parental relationship, it does not outweigh the benefit of adoption, for this child under the circumstance[s].”

This appeal followed.

DISCUSSION

I. The Section 388 Petition

Father’s petition sought extended visits and reinstatement of reunification services. The alleged changed circumstances were his weekly attendance at AA meetings and his “generally” clean drug and alcohol tests since 2006. He claimed that if the court changed its previous order, S.C. would have more stability in her life because she would be with her biological father and brother with whom she had bonded.

Section 388 permits a parent to petition the court on the basis of a change in circumstances or new evidence for a hearing to change, modify or set aside a previous order in the dependency. The parent bears the burden of showing both a change of circumstance exists and that the proposed change is in the child’s best interests.” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) We review the denial of a section 388 petition for abuse of discretion. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.)

We note Father’s petition failed to address the juvenile court’s main concern—his inability to provide a stable home for S.C. In August 2007, when the court terminated reunification services, the court was not certain where Father was living. He had led the court to believe that Stepmother was going to provide daycare for S.C. while Father worked. However, Stepmother told the social worker that Father had not been living in the family home for several months and had failed to support their daughter. We examine whether Father presented new evidence showing that his living arrangements were appropriate for S.C.

In October 2007, Father told the social worker he had found suitable housing in Azusa. It was a one-bedroom apartment where his two adult sons had lived. They agreed to move out in order to provide Father, J.C., Jr., and S.C. a place to live. Ten days later, the social worker went to the address Father had provided; however, no one was home. She asked a downstairs neighbor if a three-year-old boy named J.C. lived upstairs, and the neighbor responded, “No.” A few days later, a Department investigator found Father at the apartment, but Father was unable to provide proof that he lived there. The investigator saw a living room with two sofas and one bedroom. She did not observe any evidence that a child lived at the location, such as clothing or toys. Father showed the social worker an unassembled crib and claimed it belonged to S.C. The social worker noted that the certified notices the Department sent to that apartment had been returned as unclaimed/unsigned.

In November the social worker spoke with Father’s older daughter, C.B. C.B. told her that Father’s adult sons lived in the Azusa apartment, and she did not know where Father and J.C., Jr. were living.

At the time the court considered the section 388 petition, Father’s alleged apartment in Azusa had not been approved, as the Department had been unable to interview his two adult sons, R.C. and F.C. Moreover, according to the Department’s records, another one of Father’s adult sons and his wife lived at the address where Father claimed to live.

During his presentation at the hearing on his petition (and his testimony at the section 366.26 hearing) on January 22, 2008, Father was unable to shed any light on the question of where he lived. Nor did he explain who was going to provide care for S.C. when he was at work. He apparently no longer lived with Stepmother. During the 13 months since the court granted his first section 388 petition, Father had had no overnight visits due to his inability to obtain suitable housing. Put simply, Father was still incapable of providing S.C. with a stable home.

Once reunification services are terminated, the focus shifts from the parent’s interest in reunification to the needs of the child for permanency and stability. (In re Marilyn H., supra, 5 Cal.4th at pp. 308-310.) Unfortunately, “[while the period between the termination of reunification services and the section 366.26 hearing] may not seem a long period of time to an adult, it can be a lifetime to a young child. Childhood does not wait for the parent to become adequate. [Citation.]” (Id. at p. 310.)

Father did not meet his burden of proving that there had been any appreciable change of circumstances or that a change of the prior order terminating reunification services was in S.C.’s best interest. The court did not abuse its discretion by denying Father’s petition.

II. Termination of Parental Rights

A. The Failure to Secure a Stable Home

Father argues that the termination of his parental rights (and the denial of his section 388 petition) was based solely upon his failure to obtain adequate housing, and contends that his poverty cannot be used as a reason to terminate his parental rights.

Father relies principally on In re G.S.R. (2008) 159 Cal.App.4th 1202, where two boys were taken into the Department’s custody after their mother was arrested for having sex with a minor. A few months later, the boys’ father appeared in the proceedings. (Id. at p. 1205.) The father had a history of alcohol abuse and occasional drug use and had committed two acts of domestic violence. However, he had completed a drug program and a domestic violence program. At the disposition hearing, he was declared a nonoffending parent and granted reunification services, but was unable to gain custody of the boys because he rented a room in a house that could not accommodate children. The father saw the boys nearly every day and was employed. (Id. at pp. 1206-1207.)

Two years later, at the permanency planning hearing, the father was still employed. He saw his sons regularly but still had not secured appropriate housing. The record did not contain any reason for the father’s inability to obtain suitable housing other than lack of available funds. The court terminated father’s parental rights. (In re G.S.R., supra, 159 Cal.App.4th at pp. 1208-1210.)

The Court of Appeal reversed the order, noting that the father had never been found to be an unfit parent. The court determined that poverty alone did not render a parent unfit. The matter was remanded for the juvenile court to determine whether “legally sufficient grounds independent of poverty currently exist to assert” jurisdiction over the boys. (In re G.S.R., supra, 159 Cal.App.4that p. 1216.)

Recently, the Fourth District in In re P.C. (2008) 165 Cal.App.4th 98 cited In re G.S.R. with approval. In that case, the mother was found to have physically abused her children. At the time the petition was filed by the Department, the mother had been homeless for approximately three weeks. (Id. at p. 100.) The children were placed with a prospective adoptive family and the mother had two hours per week of monitored visitation.

At the time of the 18-month review hearing, the social services agency acknowledged that the only thing preventing the children from being returned to the mother’s care was her failure to obtain suitable housing. Mother had not secured approved housing because she was living in a group home where a resident did not want to be live-scanned for the purpose of determining whether she had a criminal record. After a contested section 366.26 hearing, the juvenile court terminated mother’s parental rights. (In re P.C., supra, 165 Cal.App.4th at p. 103.)

The appellate court reversed the order, finding that mother had corrected all of the problems which had led to the juvenile court’s assertion of jurisdiction over her children. It noted that the mother’s failure to find suitable housing was not due to any fault on her part. Citing In re G.S.R., the court concluded that the mother’s inability to find appropriate housing was inextricably tied to her poverty and the social services agency’s failure to find alternative solutions and could not serve as a basis for terminating her parental rights. (In re P.C., supra, 165 Cal.App.4th at pp. 103-107.)

In contrast to these cases, there is clear evidence that Father’s inability to provide stable housing for S.C. is not tied solely to his lack of income. Initially, we note that, unlike the parent in In re G.S.R., Father was deemed an offending parent for his unwillingness to provide ongoing care or the necessities of life for his daughter. The court found that placing S.C. in Father’s custody would be detrimental to her. And, unlike the parent in In re P.C., Father’s failure to obtain appropriate housing was due to more than a simple lack of funds.

First, Father has the financial wherewithal to find suitable housing. He had no problem maintaining a home for his wife and their daughter. He chose to move out of the home, cease all contact with his family, and stop providing for them. Moreover, he told the social worker that he had the money to obtain housing. In fact, he said he had placed a $5,000 downpayment on a mobilehome. Second, Father recognized that he could not provide a stable home for S.C. by himself. He told the Department that his wife would provide care when Father was away from home at work. Now that he is estranged from his wife, he has not explained who will care for his daughter when he cannot. Third, the Department has been unable to approve suitable housing because of Father’s proclivity to move and his lack of cooperation and candor. Fourth, we find it telling that at no time during his testimony at the section 366.26 hearing did Father claim his inability to obtain a stable home was based on his economic status. Indeed, he told the court that he is capable of buying clothes for S.C. and providing for her as he had for all of his children.

In the final analysis, Father’s inability to provide a stable home for S.C. is a matter of choice. We are mindful of the fact that the court took jurisdiction over S.C. because, in part, Father wanted nothing to do with her. At the time, he believed that taking her into his home, which at the time included his wife and their daughter, would alienate his wife. Later, he convinced the court to grant his initial section 388 petition and provide reunification services by claiming that his wife was willing to accept S.C. In another about face, he abandoned the family that would care for S.C. and has yet to find an acceptable substitute. Father’s instability, not poverty, is the reason.

B. The Exception to Termination of Parental Rights Under Section 366.26

Father also contends the contact and benefit exception in section 366.26, subdivision (c)(1)(B)(i) and the sibling exception in section 366.26, subdivision (c)(1)(B)(v) apply and thus the court erroneously terminated his parental rights.

1. The Contact and Benefit Exception

If the court finds that the child should remain out of the custody of the parent and has terminated reunification services, the court shall terminate parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to certain circumstances. One such circumstance is where “The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)

It is the parent’s burden to show that termination would be detrimental. (In re Erik P. (2002) 104 Cal.App.4th 395, 401.) “To meet the burden of proof for the section 366.26, subdivision (c)(1)[(B)(i)] exception, the parent must show more than frequent and loving contact or pleasant visits. [Citation.] . . . The parent must show he or she occupies a parental role in the child’s life, resulting in a significant, positive, emotional attachment from child to parent. [Citations.]” (In re L. Y. L. (2002) 101 Cal.App.4th 942, 953-954.)

To justify application of section 366.26, subdivision (c)(1)(B)(i), any relationship between the parent and child must be sufficiently significant that the child would suffer detriment from its termination. (In re Angel B. (2002) 97 Cal.App.4th 454, 468.) The juvenile court must consider many variables, including the child’s age, the length of time the child was in parental custody and in foster care, and the effect of interaction between parent and child and the child’s particular needs. (Id. at p. 467; In re Zachary G. (1999) 77 Cal.App.4th 799, 810-811.) The court must then balance the strength and quality of the parent-child relationship against the security and sense of belonging that a stable family would confer on a child. (In re Zachary G., supra, 77 Cal.App.4th at p. 811.) “If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings.” (In re Megan S. (2002) 104 Cal.App.4th 247, 250.) The appellant has the burden of showing the order is not supported by substantial evidence. (Id. at p. 251.)

There is no question that Father consistently visited his child and professed to love her. However, their relationship did not progress beyond weekly daytime visits due to Father’s inability to obtain suitable housing. By the time of the section 366.26 hearing, Father was visiting S.C. once a week for three hours. At no time during the year and a half that he was in S.C.’s life did he occupy a parental role. He was a mere visitor.

Father also did not show that S.C. would benefit from a continuation of their parent-child relationship. S.C.’s foster mother (and prospective adoptive mother), Teresa B., has given S.C. a safe and stable home for 13 months, something Father has been incapable of providing. At the time of the section 366.26 hearing, S.C. had spent over half of her life with Teresa B, had thrived in her home, and had become extremely bonded with her.

Due to the limited visitation afforded to Father and S.C.’s young age, the parental bond was minimal. We recognize that Father attempted to visit as often as possible and maintain a bond with his daughter. However, it is not for us to reweigh the evidence and substitute our judgment for that of the juvenile court. (In re Zachary G., supra, 77 Cal.App.4th at p. 812; In re Casey D., supra, 70 Cal.App.4th at pp. 51-53.) While Father was appropriate and loving during their visits and S.C. reacted positively to him, substantial evidence supports the juvenile court’s finding that S.C.’s relationship with him was not so significant that she would suffer from its termination. The record also supports the court’s conclusion that a continuation of Father’s relationship with S.C. was outweighed by the benefit she would derive from securing a permanent stable adoptive family.

We find the court’s refusal to apply the contact and benefit exception was appropriate.

2. The Sibling Exception

Section 366.26, subdivision (c)(1)(B)(v) provides an exception to termination of parental rights when severing the sibling relationship would be detrimental to the dependent child. “Unlike the beneficial parent-child relationship exception . . ., a parent is not required to show as an element of proof that the siblings have maintained regular contact and visitation. Instead, the parent must prove, by a preponderance of the evidence, that termination of parental rights would cause ‘substantial interference with a child’s sibling relationship, taking into consideration the nature and extent of the relationship.’ [Citation.] [¶] To determine the nature and extent of the sibling relationship, the Legislature directs the juvenile court to consider the factors set forth in section 366.26, subdivision (c)(1)(E). [Citations.] These factors include, but are not limited to, the following: [W]hether the child was raised with a sibling in the same home [and] whether the child shared significant common experiences or has existing close and strong bonds with a sibling [and] whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.’” (In re Valerie A. (2007) 152 Cal.App.4th 987, 1007-1008.)

“The parent bears the burden of showing that a sibling relationship exists and that its severance would be detrimental to the child. [Citation.] The existence of a relationship alone is not enough, but it must be ‘sufficiently significant’ to cause detriment on termination. [Citation.] If the court finds that there is a substantial detriment, it must ‘weigh the child’s best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption.’ [Citation.] We review the record for substantial evidence to support the court’s findings.” (In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017, quoting In re L.Y.L. (2002) 101 Cal.App.4th 942, 952-953.)

Father reported to the social worker that during their once weekly visits, S.C. would smile and become calm at the sight of her brother, J.C., Jr. They ate and played together. Sometimes, they went together to buy toys. On occasion, S.C.’s half-sister C.B., age 22, was present during the visits. Father testified that sometimes his other grandchildren (he has “five or six”) would come to the visits and the children would go to the park and eat and look at books together. Father argues adoption would interfere with the relationship S.C. has with her relatives.

S.C. was only two years old at the time of the section 366.26 hearing and had never lived with her brother. Aside from the social worker’s one letter which reported that S.C. smiled at her brother, there is little evidence they had developed any kind of bond, perhaps owing to S.C.’s young age. Although she clearly appeared to enjoy the time she spent with J.C., Jr. and her half siblings, there was no evidence that the relationships were sufficiently significant to cause detriment on termination.

The trial court considered the importance of the sibling relationship and reasonably placed more value on the benefit S.C. would receive from the stability and permanence of adoption. We find substantial evidence supports its decision. (In re Celine R. (2003) 31 Cal.4th 45, 61; In re Daisy D. (2006) 144 Cal.App.4th 287, 293.)

DISPOSITION

The judgment (orders denying Father’s section 388 petition and terminating his parental rights) is affirmed.

We concur: WILLHITE, Acting P. J., MANELLA, J.


Summaries of

In re S.C.

California Court of Appeals, Second District, Fourth Division
Sep 24, 2008
No. B205583 (Cal. Ct. App. Sep. 24, 2008)
Case details for

In re S.C.

Case Details

Full title:LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff…

Court:California Court of Appeals, Second District, Fourth Division

Date published: Sep 24, 2008

Citations

No. B205583 (Cal. Ct. App. Sep. 24, 2008)