Opinion
F062087 Super. Ct. No. JD122462-00
09-01-2011
In re RYAN C., a Person Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. JOSHUA C., Defendant and Appellant.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant. Theresa A. Goldner, County Counsel, and Judith M. Denny, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Gomes, Acting P.J., Dawson, J. and Detjen, J.
APPEAL from an order of the Superior Court of Kern County. Jon Edward Stuebbe, Judge.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.
Theresa A. Goldner, County Counsel, and Judith M. Denny, Deputy County Counsel for Plaintiff and Respondent.
Appellant Joshua C., presumed father of minor Ryan C., appeals from the juvenile court's denial of his petition under Welfare and Institutions Code section 388, subdivision (a). Appellant contends the juvenile court abused its discretion by denying his request to have Ryan placed with him under a family maintenance plan or, in the alternative, to have reunification services extended. We find no abuse of discretion and affirm the juvenile court order.
All future statutory references will be to the Welfare and Institutions Code.
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FACTS AND PROCEEDINGS
On the day of his birth in October 2009, Ryan was placed into protective custody by Kern County Department of Human Services (Department) after he and his mother, Mary, tested positive for amphetamines. During interviews conducted by the Department, both appellant and Mary admitted to an extensive history of drug abuse and incidents of domestic violence. Thereafter, the Department filed a dependency petition and subsequent amended petition alleging appellant and Mary's drug use put Ryan at risk of harm.
On October 28, 2009, the juvenile court conducted an initial hearing on the matter and entered a judgment of paternity finding appellant was Ryan's presumed father and that continuance in appellant's and Mary's custody was contrary to Ryan's well-being. The Department met with Mary and appellant to review the request that they enroll in counseling programs offered by the Department and submit to regular drug testing. The juvenile court ordered Ryan detained and set mediation and a hearing for early December 2009.
Neither appellant nor Mary was personally present at the December 2009 dependency hearing. In its study prepared for the proceeding, the Department stated that neither appellant nor Mary had made progress toward alleviating the causes for Ryan's out-of home placement and recommended that Ryan remain in custody. The court sustained the allegations in the Department's petitions, found the couple's history of substance abuse and domestic violence to be a risk to Ryan, and ordered that Ryan remain in custody.
On January 11, 2010, the juvenile court conducted a dispositional hearing at which it adopted a family reunification plan ordering both appellant and Mary to participate in counseling to be provided by the Department for parenting, child neglect, domestic violence as perpetrator, and substance abuse. Appellant and Mary were again not personally present. The Department submitted urinalyses showing positive and presumptive positive results for both Mary and appellant. Appellant and Mary also failed to attend scheduled visits with Ryan at least nine times between late November and early January.
The juvenile court found that neither appellant nor Mary had made progress toward mitigating the cause for Ryan's removal from their custody. It further found Ryan's well-being would be substantially in danger were custody to be returned to appellant and Mary and that Ryan's out-of-home placement was appropriate and necessary. The Department was ordered to provide reunification services to appellant and Mary for a period not to exceed six months and expiring on July 11, 2010. The court ordered appellant and Mary to submit to random drug tests on an at least monthly basis, and permitted them biweekly supervised visits with Ryan.
The juvenile court advised both appellant and Mary that a section 366.26 hearing terminating parental rights might occur if Ryan could not be returned to their custody within the six-month time frame allowed by law. The section 366.21, subdivision (e) six-month hearing was set for July 2010.
In late January 2010, the caseworker assigned to Ryan's case met with appellant to review the components of his case plan. Thereafter, a Department representative met with appellant on a monthly basis in order to check on his progress, to review the plan, and to provide bus passes to facilitate appellant's participation in the services provided to him. During this time, and until at least May 2010, appellant made no progress toward compliance with the requirements of the court-ordered reunification plan.
In March 2010 (after three previous placements including relative placement with his maternal aunt), Ryan was placed with his current caretakers in Bakersfield, California. At that time, Ryan was approximately five months old.
On July 23, 2010, the juvenile court held a contested section 366.21, subdivision (e) review hearing. Mary did not personally appear. In its study prepared in anticipation of the hearing, the Department reported that Mary had not complied with her case plan. She failed to submit to drug screenings on several occasions and tested positive for amphetamines on others. Mary also failed to participate regularly in visitation with Ryan and had not enrolled in court-ordered counseling.
By the time of the July 23 hearing, appellant had entered into a sober living facility in mid-May, had been submitting to drug screenings, and had enrolled in and been attending the required parenting and neglect classes. With respect to the domestic violence counseling, appellant testified he had enrolled in the required program and had attended three of the 52 required sessions. The social worker noted in the study that appellant had been given six months to comply with his case plan and waited until the last month to enroll in his counseling classes.
The juvenile court reviewed the social worker's study and found that despite appellant having belatedly availed himself of services the Department provided, he had made only minimal progress at alleviating or mitigating the causes for Ryan's out-of-home placement. Pursuant to section 366.21, subdivision (e), the court found that returning Ryan to appellant's or Mary's custody would create a substantial risk to Ryan and also that there was not a substantial probability that Ryan would be returned to the custody of either parent within six months. Therefore, the juvenile court ordered reunification services terminated.
The juvenile court then set the section 366.26 hearing to select and implement a permanent plan for Ryan and explained to appellant his rights to file a petition for extraordinary writ, as well as the availability of a section 388 petition.
In November 2010, appellant filed a petition for extraordinary writ with this court seeking review of the juvenile court's termination of reunification services. The petition was denied. In early January 2011, appellant filed a petition pursuant to section 388 to modify the court's order terminating reunification services.
On January 27, 2011, the juvenile court conducted a contested hearing addressing both the review under section 366.26 and appellant's section 388 petition. Appellant sought to have Ryan placed with him under a family maintenance plan. Appellant reiterated that he had been sober since May 1, 2010, and had entered a sober living facility on May 14, 2010. Since that time, appellant stated, he had paid for his drug tests on his own and had not tested positive for narcotics. In addition, appellant completed an additional 23 domestic violence classes and attended all visitations with Ryan since early July 2010.
The social worker, in studies prepared in anticipation of the combined hearing under sections 388 and 366.26, stated appellant had made moderate progress toward alleviating the causes of Ryan's removal from his care but opined that appellant's progress was insufficient to return Ryan to his custody. The social worker expressed concern as to appellant's continued involvement with Mary, particularly in light of her failure to address her substance abuse issues and reports of domestic violence incidents between appellant and Mary as recently as December 2010. Moreover, Ryan had been successfully placed since March 8, 2010, with caretakers committed to adopting him. The Department recommended the section 388 petition be denied and that a permanent plan providing for Ryan's adoption by his foster parents be ordered.
The juvenile court adopted the Department's recommendations and denied appellant's section 388 petition. The court stated appellant appeared to have "started pulling it together for himself," but that particularly given appellant's "late, late, late start," could not trump the child's interests. Therefore, the court stated it was not obligated to give him more time to show that he actually had pulled it together. Based on the court's analysis, the strengthening of Ryan's bond with his prospective adoptive parents over a 10-month period, and given Ryan's young age (15 months), it was ultimately in Ryan's best interests that the order not be modified.
DISCUSSION
Section 388, subdivision (a) provides that any parent whose child is a dependent of the juvenile court may petition the court to modify or set aside an order based on a change of circumstance. The test for determining whether a section 388 petition will be granted requires a two-pronged analysis. The court looks first to whether circumstances have significantly changed and, second, to whether such change requires modification of a previous order so as to protect the best interests of the child. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
Parents have a fundamental right to maintain the care and custody of their children. (In re Jasmon O., supra, 8 Cal.4th at p. 419, citing In re Marilyn H. (1993) 5 Cal.4th 295, 306.) This right, however, is not absolute and "may be abridged when it is necessary to do so to protect the welfare of the child." (In re Jasmon O., supra, at p. 419.)
When a child has been removed from the custody of his or her parents due to parental neglect or abuse, the initial presumption is in favor of reunification of the family. Up to the point at which reunification services are terminated (as has occurred in this case), parent and child share a fundamental interest in reunification. (In re Nolan W. (2009) 45 Cal.4th 1217, 1228.) To this end, reunification services are provided to parents as a means to allow parents to demonstrate their fitness so as to regain custody of their children. (Ibid.)
This benefit provided to parents is, however, not without limitation. To justify extension of reunification services, a parent must show progress toward complying with the plan and a substantial probability that the dependent child would be returned to the parent's custody due to amelioration of the cause(s) of the dependency. (In re Marilyn H., supra, 5 Cal.4th at p. 308.) Once reunification efforts are terminated, however, there is a divergence of interests, and the best interests of the child become paramount. (Cynthia D. v Superior Court (1993) 5 Cal.4th 242, 254.) At such point in the dependency proceedings, the court's focus shifts from promotion of family reunification to promotion of the child's right to, and need for, permanence and stability. (In re Marilyn H., supra, at p. 309.)
A section 388 petition is addressed to the sound discretion of the juvenile court, which will not be disturbed unless a clear abuse of discretion is established. (In re Jasmon O., supra, 8 Cal.4th at pp. 415-416; In re Stephanie M. (1994) 7 Cal.4th 295, 318.) "'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason'" by making a determination that is arbitrary, capricious, or patently absurd. (In re Stephanie M., supra, at pp. 318-319, quoting Walker v. Superior Court (1991) 53 Cal.3d 257, 272.) Therefore, when two or more inferences can be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the juvenile court. (In re Stephanie M., supra, at p. 319.) The moving party carries the burden of showing by a preponderance of the evidence that the best interests of the child will be served by a change in the juvenile court's order. (Id. at p. 318.)
Regarding change in circumstances, appellant alleges he has (1) been sober since May 2010 and recognizes that drugs "will ruin your life"; and (2) learned from the classes he has completed, including domestic violence and parenting classes. He acknowledged that his late start in services was a mistake and that he tried to make up for it.
Appellant argues that In re Casey D. (1999) 70 Cal.App.4th 38, supports a finding that appellant's eight months of sobriety constitutes a change in circumstances. While it is true that in In re Casey D. the Fourth Appellate District upheld a juvenile court's finding that a father's nine months of sobriety established changed circumstances, that court nonetheless found that it was not in the best interests of the child to return her to the parents' custody. (Id. at p. 49.)
Further, in In re Casey D., the mother's four to five months of sobriety was insufficient to establish changed circumstances, particularly given the mother's extensive drug history and her lack of consistency with respect to the reunification plan. (In re Casey D., supra, 70 Cal.App.4th at p. 48.) Moreover, the correct measure of changed circumstances looks to the causes of a child's dependency and whether circumstances have changed significantly enough to no longer warrant the child's out-of-home placement. (Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1343.)
In this case, Ryan was removed from the custody of appellant and Mary not merely for their drug addiction, but also due to the domestic violence incidents. Appellant has yet to complete his required classes for domestic violence and there appears to be significant potential for negative contact with Mary. Appellant is living with Mary's sister and there are reports of recent incidents of domestic violence between Mary and appellant.
Appellant argues he has learned from the programs so as to have "eliminated the problems that led to Ryan's dependency." As illustration, appellant states he recognizes that drugs ruin lives, acknowledges he cannot be involved in domestic violence, has learned about child abuse and neglect, and recognizes that his late start in services was a mistake and has tried to make up for it. Given the extensive history of drug abuse and the dysfunctional nature of the relationship between Mary and appellant, a mere conclusory statement of having "completely ameliorated his problems with substance abuse and domestic violence" is insufficient to warrant a conclusion that the juvenile court abused its discretion.
Furthermore, a juvenile court evaluating a change in circumstances considers the progress a parent has made with a court-ordered reunification plan. (Jennifer A. v. Superior Court, supra, 117 Cal.App.4th at p. 1341.) While lack of compliance is not determinative, it is pertinent to the court's consideration. (Ibid.) Appellant failed to avail himself of the services provided by the Department for at least the first six months of Ryan's life. Department representatives visited him at home on various occasions to explain to him what services were offered and required. Additionally, the Department provided appellant with a means of transportation and yet appellant failed to comply with the reunification plan. Furthermore, appellant failed to regularly attend visitation with Ryan for the first eight months of his life.
Appellant's eight-month sobriety, his belated completion of some aspects of his reunification plan, and his remorse—though not to be diminished—represent, at best, "changing" circumstances. (In re Marilyn H., supra, 5 Cal.4th at p. 309; In re Casey D., supra, 70 Cal.App.4th at pp. 47-49.) As the juvenile court noted, that appellant had "started pulling it together for himself" does not equate to an obligation for the court to extend the time appellant has to demonstrate that he "actually has pulled it together." "Changing" circumstances are simply insufficient to show a change in circumstances as required under section 388, subdivision (a).
As to the second inquiry a court makes when deciding a section 388 petition—the best interests of the child—appellant argues the order should be modified because it is in Ryan's best interest to reunify him with his biological family. He contends that because Ryan had only been with his current caretakers for 10 months at the time of the section 388 hearing, and because appellant had visitation for much of that time, appellant and Ryan's relationship "could continued [sic] to strengthen with frequent visits."
The social worker's study supports appellant's testimony that his interactions with Ryan were positive and had become more regular. This, however, is not the dispositive question. At this point in the dependency proceedings, the court's primary focus was rightly on Ryan's right to, and interest in, "'permanence and stability.'" (In re Stephanie M., supra, 7 Cal.4th at p. 317, quoting In re Marilyn H., supra, 5 Cal.4th 295, at p. 309.) As the juvenile court stated, the relative bonds between the biological parent and the child, and the caretaker and the child are to be examined from the child's perspective, not that of the adults.
In making its determination to deny appellant's section 388 petition, the juvenile court considered the Department social worker's study, which expressed concerns with respect to appellant's lack of economic self-sufficiency and resultant reliance on Mary's sister for assistance, his apparent failure to complete a substance abuse program required of him by a previous drug charge, and his continued involvement with Mary, who had made no progress toward compliance with the reunification plan. The social worker's study noted appellant's "moderate progress toward alleviating or mitigating the causes" for Ryan's out-of-home placement but recommended that a permanent plan of adoption remained the most appropriate for Ryan.
The juvenile court adopted the Department's recommendations, finding that "although [appellant had] shown evidence of some changes, they [were] not satisfactory" and ultimately, in light of Ryan's placement in a "loving, stable, and nurturing home" with caretakers "committed to adopting [him,]" Ryan's best interests would be best served by denying appellant's petition.
As early as the initial dependency proceeding, appellant was put on notice that, particularly with a child of Ryan's age, "the time [a parent] get[s] to reunify with [the] child ... is really small." As has often been noted, "[c]hildhood does not wait for the parent to become adequate." (In re Marilyn H., supra, 5 Cal.4th at p. 310.) Appellant failed to establish changed circumstances within the window provided by the law.
Appellant has been unable to establish that the juvenile court abused its discretion by ordering that it would not be in Ryan's best interests to modify the order.
Having found no abuse of discretion in the juvenile court's denial of appellant's section 388 petition, we also reject his argument regarding the subsequent order terminating parental rights.
DISPOSITION
The juvenile court order is affirmed.