Opinion
B323535
06-21-2023
In re BABY BOY P., a Person Coming Under the Juvenile Court Law. v. ALFREDO C., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jane E. Kwon, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. 18CCJP04077Gabriela H. Shapiro, Juvenile Court Referee. Affirmed.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jane E. Kwon, Deputy County Counsel, for Plaintiff and Respondent.
FEUER, J.
Alfredo C. (Father) appeals from the juvenile court's orders denying his Welfare and Institutions Code section 388 petition to reinstate reunification services and terminating his parental rights to 21-month-old Baby Boy P. under section 366.26. Father's sole contention on appeal is that the juvenile court erred in denying his section 388 petition, requiring reversal of its order terminating his parental rights, because he showed changed circumstances by his completion of a drug treatment program and two years of sobriety, and it was in Baby Boy's best interests to be reunified with Father.
All further undesignated statutory references are to the Welfare and Institutions Code.
In a prior appeal by Baby Boy's mother, Stephanie P. (Mother), from the same order terminating Mother's and Father's parental rights, we conditionally affirmed the order and directed the Los Angeles County Department of Children and Family Services (the Department) and the juvenile court to comply with the inquiry and notice provisions of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) and related California law. We ordered further that if the juvenile court were to conclude that Baby Boy is not an Indian child, the prior order terminating parental rights would remain in effect. (In re Baby Boy P. (May 16, 2022, B315112) [nonpub. opn.] (Baby Boy I).) At a hearing on August 5, 2022, the juvenile court considered a report from the Department on its further ICWA inquiry, and the court found it did not have reason to know Baby Boy was an Indian Child under ICWA.
On our own motion we take judicial notice of the juvenile court's August 5, 2022 minute order. (Evid. Code, §§ 452, subd. (d), 459.)
We now affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Referral, Petition, Detention, and Father's Status
In late November 2019 the Department received a referral alleging Mother gave birth to Baby Boy while she was in custody following her arrest for grand theft. According to the sheriff's deputy, Mother was on suicide watch based on her "'really bizarre'" behavior. Mother acknowledged she had been diagnosed with bipolar disorder and had used methamphetamine while she was pregnant with Baby Boy. Mother was in a relationship with Father, and they had another child together, Johnathan P. The Department was unable to locate Father. According to a social worker, Father was unhoused and had been using methamphetamine with Mother.
On December 2, 2019 the Department filed a petition on behalf of Baby Boy pursuant to section 300, subdivisions (b)(1) and (j), alleging Mother had a history of substance abuse and had tested positive for methamphetamine and amphetamine in July 2019; Father failed to protect Baby Boy from Mother's substance abuse; and Johnathan was a dependent of the juvenile court and his three half-siblings were former dependents of the juvenile court. The petition also alleged Mother had mental and emotional problems, including suicidal ideation, and she had been diagnosed with bipolar disorder, major depression, and schizophrenia, rendering her incapable of caring for Baby Boy. The following day Baby Boy was detained from the parents and shortly thereafter placed with Mr. and Mrs. S., who had adopted Johnathan. Father did not appear at the detention hearing, and his whereabouts were unknown.
Father failed to reunify with Johnathan, and adoptions have been finalized as to Johnathan and his half-siblings.
On January 8, 2020 Father met with a dependency investigator at the Department's office. He acknowledged that he and Mother had been in a relationship for two years and smoked crystal methamphetamine twice a day on a daily basis. However, Father had stopped using methamphetamine a month earlier. Father had his first one-hour monitored visit with Baby Boy that month.
Father first appeared in court on February 13, 2020, at which time he was arraigned on the petition. Mother was in custody when Baby Boy came home from the hospital, and Mother and Father had never lived with him. Mother and Father signed a declaration of Father's paternity, and the juvenile court found Father was the biological father. At Father's request, the court referred him to drug counseling, 12-step meetings, and participation in weekly random or on-demand drug testing. The court ordered monitored visitation twice a week for two hours each visit.
Father tested negative for drugs on March 11, 2020, but the Department was unable to arrange regular on-demand drug testing because the contact information for Father repeatedly changed, and Father did not respond to the Department's requests. A last minute information for the court dated March 19, 2020 reported as to Father's monitored visits that Father "does not willingly engage the child and is encouraged by the mother to do so and the father has been observed sleeping during a visit." Father continued to have weekly one-hour visits with Baby Boy, but the visits became virtual because of the onset of the COVID-19 pandemic. The social worker reported that Father was present but "not involved" in the visits.
B. The Jurisdiction and Disposition Hearing and Reunification Period
At the jurisdiction and disposition hearing held on August 28 and September 1, 2020, the juvenile court sustained the allegations in the petition under section 300, subdivisions (b)(1) and (j), declared Baby Boy a dependent of the juvenile court, and removed him from Mother's and Father's custody. The court ordered reunification services be provided to Father but not to Mother. The court ordered Father to participate in a substance abuse program with aftercare and to attend two 12-step meetings per week, individual counseling, couples counseling (if Mother and Father remained in a relationship), and a parenting program. In addition, the court ordered Father to submit to weekly random and on-demand drug tests. The court granted Mother and Father two 30-minute monitored visits each week (instead of a one-hour visit), taking into consideration Baby Boy's age and attention span and the virtual nature of the visits.
The hearing was continued multiple times due to the COVID-19 pandemic.
In May 2020 Father enrolled in an outpatient substance abuse program, and he attended 12-step meetings. Father initially was "going through the motions" in attending the drug program and often needed to be prompted to engage. By December 2020, however, he attended more frequently, made "great improvement" in his participation, and met program expectations. He submitted to drug testing "on and off" from September 2020 until March 2021. Father tested negative for drugs 11 times and failed to show up 13 times. Father participated in parenting classes but did not enroll in individual counseling. Father had been having virtual visits with Baby Boy, but the visits were not "productive" because Father had his camera turned off or was in a dark room. Further, Father did not speak to Baby Boy other than saying "Hi Baby," explaining to the social worker that he spoke only Spanish and Baby Boy only spoke English.
At the March 16, 202112-month review hearing (§ 366.21, subd. (f)), the juvenile court terminated Father's reunification services, finding Father's progress had not been substantial. The court noted Father had failed to attend individual counseling and did not have quality visits with Baby Boy "where he is speaking to the child and trying to develop a rapport." The court found there was no likelihood Baby Boy would be returned to Father within the following six months. The court set the selection and implementation hearing (§ 366.26) for September 14, 2021.
Judge Debra L. Losnick.
Father filed a notice of intent to file writ petition under California Rules of Court, rules 8.450 and 8.452. Father's appointed trial counsel then filed a notice pursuant to Glen C. v. Superior Court (2000) 78 Cal.App.4th 570 advising the court she was unable to file a petition for extraordinary writ on the merits. We granted an extension of time for Father to file a petition. When no petition was filed, the proceeding was deemed nonoperative.
C. Father's Section 388 Petitions
On July 13, 2021 Father filed a section 388 petition requesting six additional months of reunification services and for the selection and implementation hearing to be taken off calendar. Father submitted proof he had attended 12-step meetings and completed a substance abuse treatment program and parenting classes. According to the Department's report, Father was continuing to have two monitored virtual visits with Baby Boy for 30 minutes each visit. Father had not requested inperson visits. Father had the camera turned on during visits, but he still had only limited verbal interactions with Baby Boy. He mostly observed Baby Boy playing, then at the end of the visit inquired whether Baby Boy was doing well.
On July 14 the juvenile court summarily denied the petition, finding that reinstating reunification services was not in Baby Boy's best interests. The court observed that although Father had completed most of his court-ordered programs, he still had not had any in-person visits with Baby Boy since his birth in November 2019.
Juvenile Court Referee Robin R. Kesler.
On July 23, 2021 Father requested in-person monitored visits with Baby Boy for one hour each week. Father had one-hour in-person visits with Baby Boy on August 5 and 12, 2021. The monitor reported that Father's interaction with Baby Boy during the visits was "very limited." The monitor reported, "'[The birth parents] bring toys to play with during in-person visits and also attempt to engage with him. However, it should be noted that there appears to be a lack of connection, bond, and attachment between [the birth parents] and the child evidence[d] by the child playing independently, uninterested and unreceptive to [birth parents'] efforts to engage him, and requires [the] resource parent to be present and in close proximity to feel comfortable in engaging with his birth parents.'" At this point Baby Boy was doing well and had a strong bond with Mr. and Mrs. S., who wanted to adopt him.
On September 10, 2021 Father filed a second section 388 petition again requesting additional reunification services and that the selection and implementation hearing be taken off calendar. In support of his petition, Father submitted documentation he had completed a six-month substance abuse program, attended numerous 12-step meetings, four individual counseling sessions (with the first on August 4, 2021), 20 parenting classes, and a 52-week domestic violence batterers' program. Father also submitted receipts showing he had submitted to nine drug tests between June and September 2021, but the documentation does not indicate the results of the tests. Father acknowledged in his declaration that he had been using methamphetamine for at least four years prior to enrolling in a substance abuse program. He declared he had been sober for two years. With respect to visitation, Father noted he was first given permission to have in-person visits in August 2021, and since then he had "several" in-person visits. He explained that during his visits he took diapers and clothing to Baby Boy, and held and played with him. Father added, "I have formed a much closer bond with my son than what existed even only months ago." He explained he did not participate in services for Johnathan's case because he did not believe he was the father. Now that he knows Baby Boy is his son, his "desire to have this child in [his] life motivated [him] to make changes."
D. The Section 388 and Selection and Implementation Hearings
On September 14, 2021 the juvenile court held a hearing on Father's second section 388 petition. Father's attorney argued Father had maintained his sobriety for two years, which constituted a significant change in circumstances. Father completed his substance abuse program and was currently attending 12-step meetings and individual counseling. Further, in the last month Father had started visiting Baby Boy in person. Father's attorney argued "it would be in the child's best interest to be raised by the child's natural parent and, of course, the child can continue to have a relationship with his sibling who the current caregiver currently has or is the legal parent for." Over the Department's objection, the court admitted the exhibits attached to Father's section 388 petition, including proof of completion of the substance abuse and other programs. The Department and minor's counsel recommended the court deny Father's petition.
Juvenile Court Referee Gabriela H. Shapiro.
The juvenile court admitted Father's exhibits but noted the Department had no opportunity to determine whether the services described in the documents were actually provided.
The court commended Father on working toward his sobriety but observed the case had been open since 2019, and Father delayed requesting in-person visits with Baby Boy until July 23, 2021. Further, Baby Boy had been in the care of his current caretakers and resided with his biological sibling for almost his entire life. Moreover, prior to termination of reunification services on March 16, 2021, Father had not made any attempts to visit in person with Baby Boy (at least after March 2020), nor did he show any commitment to sobriety at that time. As to Baby Boy's best interests, the court found Father "only talks about creating a more substantial bond with the child and not what the benefit would be to the actual child himself." The court denied Father's petition.
The court then turned to the selection and implementation hearing. The Department requested, joined by minor's counsel, that the court terminate Mother's and Father's parental rights, arguing no exception applied. The Department noted Baby Boy was adoptable and the family who had adopted his biological sibling wanted to adopt him. Further, Father did not have inperson visits until July 2021, and Father's visits were of poor quality. Father's attorney argued without elaboration that an exception to adoption applied under section 366.26, subdivision (c)(1)(B)(i).
The juvenile court found by clear and convincing evidence Baby Boy was adoptable and no exception to termination of parental rights applied. Specifically, given the lack of visitation by the parents, there was no bond between Father and Baby Boy to support application of the beneficial parental relationship exception (§ 366.26, subd. (c)(1)(B)(i)). The court terminated Mother's and Father's parental rights.
Father's notice of appeal states he is appealing from the July 14 and September 14, 2021 orders denying his section 388 petitions. However, Father does not argue in his appellate briefs as to the July 14 order that the juvenile court abused its discretion in denying Father's first section 388 petition. Father has therefore abandoned or forfeited any challenge to denial of his first petition. (See Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4 [issue not raised on appeal "deemed waived"]; Doe v. McLaughlin (2022) 83 Cal.App.5th 640, 653 ["An appellant abandons an issue by failing to raise it in the opening brief."]; Swain v. Laser Away Medical Group, Inc. (2020) 57 Cal.App.5th 59, 72 [""'Issues not raised in an appellant's brief are [forfeited] or abandoned .'""].) Father also does not make any arguments as to the September 14 order terminating his parental rights other than that court should not have denied his second section 388 petition.
DISCUSSION
A. Section 388 Petitions and Standard of Review
Section 388 provides for modification of a juvenile court order based on a change in circumstances or new evidence, where the moving party demonstrates modification of the prior order is in the child's best interests. (In re Jasmon O. (1994) 8 Cal.4th 398, 414-415 ; In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Malick T. (2022) 73 Cal.App.5th 1109, 1122.) When a section 388 petition is filed after family reunification services have been terminated, as here, "the juvenile court's overriding concern is the child's best interests." (In re Malick T., at p. 1122; accord, In re Stephanie M., at p. 317.) "After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability' [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child." (In re Stephanie M., at p. 317; accord, In re Malick T., at p. 1122; see In re Marilyn H. (1993) 5 Cal.4th 295, 310 ["The presumption that arises after termination of reunification services is a rebuttable one. It is presumed, at that point, that continued care is in the best interest of the child."].)
A parent requesting modification of an order under section 388 has the burden of proving by a preponderance of the evidence there is a change in circumstances or new evidence, and the proposed modification would be in the best interests of the child. (In re Jasmon O., supra, 8 Cal.4th at p. 415; In re Stephanie M., supra, 7 Cal.4th at p. 317; In re Malick T., supra, 73 Cal.App.5th at p. 1122.) We review the juvenile court's decision to grant or deny a section 388 petition for abuse of discretion. (In re Stephanie M., at p. 318; In re Malick T., at p. 1123; In re I.B. (2020) 53 Cal.App.5th 133, 152.)
B. The Juvenile Court Did Not Abuse Its Discretion in Finding Father Failed To Show Reinstatement of Reunification Services Was in Baby Boy's Best Interests
Father contends his completion of a drug treatment program and other components of his case plan (except for individual counseling), combined with his sobriety for two years, showed sufficient changed circumstances. He also points out that his virtual visits had improved, with his turning on his camera during visits and watching Baby Boy play, and he had started inperson visits. We agree Father demonstrated changed circumstances, but the juvenile court did not abuse its discretion in finding it was not in Baby Boy's best interests for Father to have additional reunification services and to delay adoption of Baby Boy.
As the juvenile court found, Father had not developed a bond with Baby Boy. Baby Boy had been living with Mr. and Mrs. S for almost his entire life, and he had never lived with Father. At the time Father's reunification services were terminated in March 2021, when Baby Boy was 15 months old, Father was still having only two weekly 30-minute virtual visits with the child, during which Father had his camera turned off or was in a dark room, and his only communication with Baby Boy was to say "'Hi Baby.'" As of June 2021 the virtual visits continued, with Father having his camera turned on. However, Father still mostly watched Baby Boy play, with "limited verbal interaction."
Father did not request in-person visits with Baby Boy until after the court denied Father's first section 388 petition in July 2021. Although Father argues the visits had to be virtual because of the COVID-19 pandemic, nothing prevented Father from requesting in-person visits prior to that time. Even if the pandemic limited the availability of in-person visits at the Department's offices during the height of the pandemic in March 2020, Father has not shown he explored other options, including visits outdoors in a park, or that indoor visits were still not available as of June 2021. And the record reflects only two inperson visits (on August 5 and 12) prior to the September 14, 2021 hearing. The monitor explained, not surprisingly, that during the August visits, Father attempted unsuccessfully to engage Baby Boy, who was "playing independently, uninterested and unreceptive" to the parents' efforts to engage him. Further, the monitor observed "there appears to be a lack of a connection, bond, and attachment" between the parents and Baby Boy.
By contrast, 21-month-old Baby Boy had "adjusted well" to his caregivers, and Mr. and Mrs. S. wanted to adopt him and had "developed a strong attachment towards him and he towards them." Baby Boy had also developed "a very special bond" with Johnathan, whom Mr. and Mrs. S. had adopted. Baby Boy sought comfort from his foster parents and needed one of them to be nearby during Father's visits for Baby Boy to feel comfortable engaging with him. Although Father appears to have made significant progress in maintaining his sobriety, this factor alone does not show Baby Boy would benefit from being reunited with Father instead of continuing to live in the only home he had known with Mr. and Mrs. S. and Johnathan.
As the Department notes, Father had 12 negative drug tests but also had 18 no-shows during the period from April 2020 through February 2021. Further, although Father submitted documentation showing he provided nine urine samples for drug testing during the period from August 2020 through September 2021, he did not present the results of those tests to show he continued to test negative. Although Father's evidence does not confirm he remained sober, we agree with Father that he made significant progress in his sobriety.
Father relies on In re Justice P. (2004) 123 Cal.App.4th 181, 192 to support his contention the juvenile court should have considered the presumption in favor of biological parents absent a showing of parental unfitness. However, as the court in In re Justice P. explained, "The presumption favoring natural parents by itself does not satisfy the best interests prong of section 388. The cases that state a child may be better off with his or her biological parent rather than with strangers do so when the biological parent has shown a sustained commitment to the child and parenting responsibilities." (Id. at p. 192.) Although Father's relationship to Baby Boy as his biological father is a factor that could support a best-interests finding, it does not here, in the absence of a showing there was a bond between Father and Baby Boy or other benefit to Baby Boy from developing a relationship with Father. Father did not, therefore, rebut the presumption that continued foster care with Mr. and Mrs. S, and ultimately adoption, were in Baby Boy's best interests.
Because Father does not assert any basis for reversing the juvenile court's September 14, 2021 order terminating his parental rights other than that the court abused its discretion in denying his second section 388 petition, we affirm the July 14 and September 14 orders.
DISPOSITION
The July 14 and September 14, 2021 orders denying Father's section 388 petitions and the September 14, 2021 order terminating Mother's and Father's parental rights are affirmed.
We concur: PERLUSS, P. J., SEGAL, J.