Opinion
G055247
02-15-2018
In re CYRUS R., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. H.R. et al., Defendants and Appellants.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant H.R. Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant Angelina M. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15DP0021) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary L. Moorhead, Judge. Affirmed. Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant H.R. Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant Angelina M. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
* * *
H.R. (father) appeals from the judgment terminating parental rights (Welf. & Inst. Code, § 366.26; all statutory citations are to this code) to his son Cyrus. He contends the juvenile court abused its discretion in denying his section 388 modification petition without an evidentiary hearing because he demonstrated a prima facie case of changed circumstances, and returning Cyrus to his physical custody or reinstating reunification services would be in Cyrus's best interests. Mother, who did not receive reunification services, joins in father's brief. (See Cal. Rules of Court, rule 8.200 (a)(5); In re Mary G. (2007) 151 Cal.App.4th 184, 208.) We discern no abuse of discretion. Accordingly, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
In December 2015, police officers took two-year-old Cyrus (born November 2013) into protective custody after a probation search of the family's home revealed five methamphetamine pipes within reach of the child. The home was dirty, with trash and food strewn about. Neighbors complained people came and went from the house at all hours.
Orangewood staff reported Cyrus was dirty. He was active, but nonverbal, and care workers suspected he might suffer from an autism disorder. Mother informed the social worker she had been struggling with the recent death of her father, and admitted she had been using methamphetamine on and off for years. Father also acknowledged he had abused substances for the past eight years and he had received a diagnosis of schizoaffective disorder, bipolar disorder, and schizophrenia. Both parents had criminal histories. Mother had convictions for fraud and being under the influence. Father had convictions for grand theft auto, corporal injury, criminal threats, and violation of a protective order.
The Orange County Social Services Agency (SSA) filed a petition (§ 300, subd. (b)) alleging Cyrus had suffered, or was at substantial risk of suffering, serious physical harm, illness or neglect due to the parents' maintaining an unsafe home with drug paraphernalia, the parents' unresolved substance abuse and mental health issues, and drug-related criminal histories affecting their ability to adequately parent their child. The petition noted mother had failed to reunify with two other children because of her substance abuse.
The court detained Cyrus, and he was placed with a maternal great-aunt. The parents were granted eight hours of supervised visits weekly.
Before the jurisdiction hearing, father was arrested for a probation violation. SSA recommended reunification services for father, but none for mother. In March 2016, mother did not appear for the jurisdiction hearing, and father submitted to the allegations of the petition. The court found the allegations true. The court declared Cyrus a dependent of the court, removed custody from the parents, denied services to mother (§ 361.5, subd. (b)(10), (11)) and granted reunification services to father.
In the six-month review report dated September 15, 2016, the social worker recommended terminating father's reunification services and scheduling a section 366.26 selection and implementation hearing based on father's unsatisfactory progress with the case plan. Upon father's release from jail in early May 2016, the social worker provided him with referrals to transitional housing. Father maintained only sporadic contact with the social worker, and he had not complied with any component of his case plan, including a psychiatric evaluation, counseling, parenting education, substance abuse services, and random drug testing. He attended only one visit with Cyrus, who had been placed in a concurrent foster-adopt home in late May 2016.
In an addendum report dated October 6, 2016, the social worker reported father stated he enrolled in parenting classes along with mother in late September. They also enrolled in substance abuse treatment. Father began random drug screening and had tested negative. The parents were currently homeless, and the social worker provided housing referrals.
According to an addendum report dated November 3, 2016, the social worker had received a letter from a parenting educator verifying father began a parenting class. Father expressed enthusiasm about his substance abuse program, which had multiple components, including anger management, abstinence, and coping skills. The service provider verified father attended the group sessions and tested negative. Father also attended 12-step meetings, and saw a psychiatrist, who diagnosed him with schizoaffecive disorder and recommended a higher level of care. Father started visiting Cyrus regularly.
An addendum report dated November 16, 2016, reflected father had been ill with pneumonia and unable to attend scheduled visits. Although he claimed he had not used drugs for six months, he had four positive drug tests during that period. He asserted this was caused by prescribed medication and the social worker was attempting to verify the claim. Father had missed two sessions of his substance abuse program. The group counselor reported he was engaging, focused on recovery, had no negative behaviors and was supportive towards his peers. He had attended his 12-step meetings, and had obtained a sponsor.
According to an addendum report dated December 1, 2016, father missed a week of drug testing, and two appointments with his therapist. The social worker received confirmation father's prescribed medication would result in the positive drug tests.
In his addendum report dated January 11, 2017, the social worker reiterated his recommendation to terminate father's services. Father had not called into his random drug testing since the end of November and missed seven tests in December. His therapy referral had been terminated because he did not contact the therapist in a timely manner. Father had complied with other aspects of the case plan. The parenting educator reported father had a good grasp of the concepts, was engaged, on time, very respectful, and able to accept input. Father's substance abuse counselor had left the program and was replaced by a new counselor who reported father was attending his individual appointments and testing with negative results. The group counselor reported father had missed two sessions, but he generally participated well and attended additional self-help meetings.
At a combined six- and 12-month review on January 11, 2017, the juvenile court terminated father's reunification services and scheduled a section 366.26 hearing.
In March 2017, the parents had a baby girl together named Jasmine R. In April, SSA made a hotline child abuse report to the Los Angeles County Department of Children and Family Services (DCFS).
In May 2017, the social worker recommended terminating parental rights and selecting adoption as the permanent plan for Cyrus. The foster parents expressed a willingness to adopt Cyrus, who had many favorable qualities.
Father and mother frequently visited Cyrus together. Visitation monitors noted the parents brought snacks, food, diapers, and toys for the majority of the visits. Cyrus played and engaged with the parents. The parents, however, missed several visits in April and May.
On May 18, 2017, father filed a section 388 modification petition seeking physical custody of Cyrus with family maintenance services, or alternatively additional reunification services. He filed a declaration stating he and mother had been clean and sober since May 14, 2016. They were attending three to four Narcotics Anonymous (NA) meetings a week, and father had a sponsor for the past eight months. According to the declaration, he and mother successfully completed a substance abuse program through the Gary Center. Father had been compliant with his psychiatric medication. The parents supplied proof they had completed a 10-week parenting class. Father also had completed a second interview for position as a delivery driver and had received assurances he would be hired. The couple's newborn daughter remained in their care and was thriving. The parents resided in a clean and appropriate home, which had been evaluated by DCFS. The parents had connected with a church and recently been baptized. Father believed his faith would assist them in being successful. Father provided a letter from the Gary Center, verifying his completion of the program, and the dates he submitted to drug testing. He provided a letter from the Rio Hondo Mental Health Center verifying his completion of a medication evaluation and showing his enrollment in bimonthly psychotherapy.
SSA filed an addendum report noting father had missed additional visits due to his work schedule. Visits that did occur were appropriate. Mother did not participate in some of the visits because she was caring for the new baby. The DCFS social worker noted that aside from the parents' history, "there's not really a concern." The parents were open and receptive to family maintenance or voluntary family services.
The court denied the section 388 petition without an evidentiary hearing. The court commended father for his efforts, including obtaining employment and housing, and noted it appeared father was testing negative for drugs. But the court found Cyrus's best interests would not be promoted by the proposed change of order. The court subsequently conducted the section 366.26 hearing, found Cyrus was likely to be adopted, and terminated parental rights. (§ 366.26, subd. (c) [court shall terminate parental rights and order the child placed for adoption if it is likely the child will be adopted unless a compelling reason for determining termination would be detrimental to the child due to one or more circumstances].)
II
DISCUSSION
Summary Denial of Section 388 Petition
Father contends the juvenile court abused its discretion in finding he had not made a prima facie showing of changed circumstances and that Cyrus's best interests required the court to grant father's petition. Father argues he provided prima facie evidence he had resolved his substance abuse issues, maintained a clean and appropriate home, addressed his mental health needs, obtained stable employment, and retained custody of his infant daughter. He also asserted he provided prima facie evidence mother had addressed her issues.
Section 388 provides in relevant part that "(a)(1) Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . to change, modify, or set aside any order of court previously made . . . . The petition shall be verified and, if made by a person other than the child . . . shall set forth in concise language any change of circumstance or new evidence that is alleged to require the change of order or termination of jurisdiction. [¶] . . . [¶] (d) If it appears that the best interests of the child . . . may be promoted by the proposed change of order . . . , the court shall order that a hearing be held . . . ." (Italics added.)
"Section 388 plays a critical role in the dependency scheme. Even after family reunification services are terminated and the focus has shifted from returning the child to his parent's custody, section 388 serves as an 'escape mechanism' to ensure that new evidence may be considered before the actual, final termination of parental rights. [Citation.] It 'provides a means for the court to address a legitimate change of circumstances' and affords a parent her final opportunity to reinstate reunification services before the issue of custody is finally resolved. [Citation.]" (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1506.)
A parent is required to make a prima facie showing of changed circumstances and best interests to trigger a right to proceed by way of a full hearing. (Marilyn H. (1993) 5 Cal.4th 295, 310; see In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414 [parent not required to establish a probability of prevailing on petition].) The party requesting the change has the burden of establishing the change is justified. (In re S.R. (2009) 173 Cal.App.4th 864, 870.) "Not every change in circumstance can justify modification of a prior order." (In re A.A. (2012) 203 Cal.App.4th 597, 612; In re Zachary G. (1999) 77 Cal.App.4th 799, 806 [prima facie requirement not met unless the facts would sustain a favorable decision on the petition].) "In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. [Citation.]" (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189 (Justice P.).) A summary denial of a modification petition is reviewed for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Angel B. (2002) 97 Cal.App.4th 454, 460 [under abuse of discretion standard juvenile court's factual findings are reviewed for substantial evidence, legal conclusions are reviewed de novo, and its application of facts to the law is reversible only if arbitrary and capricious].)
We see no basis to find the juvenile court abused its discretion. Father had a lengthy history of substance abuse, previously using methamphetamine on a daily basis while Cyrus was in his care. He suffered from multiple psychiatric disorders. After the disposition hearing, he engaged in few if any reunification efforts until late 2016. The court noted it was only "over the last two months [that father] has [] been able to really make a change in his circumstances. This shows the court that he is changing, not that he's changed." The court reasonably found father's recent efforts, including completion of drug treatment, and acquiring employment and housing, insufficient given his lengthy history of substance abuse. (In re Angel B. (2002) 97 Cal.App.4th 454, 463-465.) Father's inconsistent visits with Cyrus as the section 366.26 hearing approached undermined his claim he could maintain a consistent relationship with his son. SSA points out that while father received extended funding for services after the termination of the reunification period, father missed appointments with service providers, which triggered the cessation of this support. Additionally, father continued to reside with mother, who had not been offered reunification services, she did not seek modification of the order bypassing services, and her suitability as a potential custodian for Cyrus remained questionable. (See In re Edward H. (1996) 43 Cal.App.4th 584, 593.)
Counsel for SSA and Cyrus noted at the hearing on the section 388 petition father had unexcused missed drug tests and had not drug tested after he finished at the Gary Center in March or April 2017. Father failed to provide proof of 12-step attendance, he only supplied proof of one appointment at the Rio Hondo mental health center, missed or cancelled half of his visits with Cyrus since April 2017, and DCFS was still investigating the case involving Cyrus's baby sister. --------
The juvenile court acted within its discretion in determining father's progress was insufficient to disrupt Cyrus's stable placement with the foster parents. On the eve of a section 366.26 hearing, a parent's petition for an order returning custody or reopening reunification efforts must establish how such a change will advance the child's need for permanency and stability. (In re J.C. (2014) 226 Cal.App.4th 503, 527 (J.C.).) Father apparently enjoyed generally positive, albeit inconsistent, visits with Cyrus. But Cyrus, going on four years of age, had successfully transitioned into a new home and bonded with the caretakers over the previous 14 months, and they proposed to adopt him. (See Justice P., supra, 123 Cal.App.4th at p. 192 ["presumption favoring natural parents by itself does not satisfy the best interests prong of section 388"].) The juvenile court noted Cyrus had "been with loving caretakers who have basically acted as his parents for the last year or so, and they are providing a parental role." The court did not abuse its discretion in determining father did not make a prima facie showing the proposed change would serve Cyrus' best interests. An uncertain outcome with father did not outweigh the safety and stability he had achieved with his caretakers. (See J.C., supra, 226 Cal.App.4th at pp. 527-528 [parent's belated efforts to reunify do not alone justify delays in permanency at an advanced procedural stage].)
III
DISPOSITION
The order denying father's section 388 petition and the judgment terminating parental rights are affirmed.
ARONSON, J. WE CONCUR: MOORE, ACTING P. J. IKOLA, J.