Opinion
C084073
07-27-2017
In re P. P. et al., Persons Coming Under the Juvenile Court Law. EL DORADO COUNTY HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. MICHAEL P. , Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. SDP20160014, SDP20160015)
Michael P. (father) appeals from the juvenile court's order terminating his parental rights. (Welf. & Inst. Code, § 366.26.) He contends: (1) the court abused its discretion by denying his petition to modify an existing order (§ 388) without an evidentiary hearing; and (2) the court's finding that the children are adoptable is not supported by sufficient evidence. We affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2016, El Dorado County Department of Health and Human Services (the department) filed section 300 petitions as to six-year-old P. P. and 12-month-old G. P. The petitions alleged that the parents had a history of extensive and chronic alcohol abuse and domestic violence, and that a prior dependency proceeding involving P. P. had lasted from August 2011 through May 2015.
The parents were separated, with a restraining order against father that allowed contact only for the exchange of the minors. Mother admitted that both parents had violated the order.
Mother's parental rights were terminated at the same time as father's. Mother filed an opening brief raising no issues. (In re Phoenix H. (2009) 47 Cal.4th 835.) We subsequently dismissed mother's appeal.
The detention report alleged that father was arrested for violating probation by walking down the street with mother and the minors while drunk, and that mother was arrested for child endangerment after showing up drunk to P. P.'s play therapy. P. P. said mother regularly broke her promise to father to drink no more than one bottle of wine per day; when she was drunk, she could not care for herself or the minors, and P. P. felt unsafe with her. Father denied being drunk, having an alcohol problem, or violating any court order; he claimed P. P. exaggerated and made things up.
The juvenile court ordered the minors detained on May 23, 2016.
The jurisdiction/disposition report, filed in June 2016, recommended bypassing services to the parents under section 361.5, subdivision (b)(13), and setting a section 366.26 hearing. Both parents had relapsed after four years in the juvenile dependency system, neither had completed substance abuse treatment, and both continued to violate the restraining order. The minors were doing well in foster care, although P. P. had some behavior problems (bullying, yelling, and screaming). The maternal grandparents were being considered for placement, but their home assessment was not yet complete. Adoption, if possible with family members, was recommended.
Section 361.5, subdivision (b)(13), allows for bypassing of services where a parent "has a history of extensive, abusive, and chronic use of drugs" and "has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court's attention."
An addendum report filed in July 2016, stated that P. P. displayed behavior consistent with early childhood trauma, including tantrums, unwillingness to take direction or to be told "no," and hitting his baby brother; however, he was responding to the consistency provided in the foster home and would be enrolled in counseling as soon as placement had been determined. G. P. appeared to be developmentally on track.
At the contested jurisdiction/disposition hearing on July 27, 2016, the juvenile court exercised jurisdiction over the minors, bypassed services to the parents, and set a section 366.26 hearing for November 30, 2016. The court found that the parents had made no progress toward alleviating or mitigating the causes necessitating placement.
On November 18, 2016, father filed a section 388 petition seeking the reopening of reunification services and a bonding study. He alleged as changed circumstances that he had participated in substance abuse and batterers' services on his own, maintained sobriety, complied with the terms and conditions of his probation, and committed himself to continuing with services. An attached letter from father's counselor at Tahoe Turning Point stated that father enrolled in drug and alcohol treatment and "batterer's intervention" in January 2016; since then he had "completed" 31 batterer's groups, 15 drug and alcohol groups, five individual sessions for drugs and alcohol, and 12 drug tests; his attendance and participation were good; and he appeared motivated to change his lifestyle.
An addendum report filed November 29, 2016, requested a 30-day continuance of the section 366.26 hearing. The current foster parents, who had taken the minors into their home two months before and had said they wanted to adopt them, no longer wished to do so "due to ongoing behavioral problems and new diagnosed medical conditions." The department was assessing other placement options, including relatives.
The section 366.26 report, filed December 9, 2016, recommended terminating parental rights and creating a permanent plan of adoption.
G. P., now 19 months old, was assessed on October 27, 2016, by Alta California Regional Center, and found to be developmentally delayed in "speech/communication, self-help and social skills." He showed difficulty in controlling his emotions. He struggled with "aggressive behavior problems and not listen[ing] or following directions." Alta was now providing him services, and also recommended "infant development stimulation sessions" and the exploration of a possible attachment disorder.
P. P., now in kindergarten, was being assessed for a possible independent education plan. He was receiving individual counseling to learn "how to make better choices at his home and school while at the same time understanding how his impulsivity can impact those around him." His foster father recently stated that P. P. exhibited "destruction" and " 'gleeful defiance.' "
The minors, now in their third placement, posed difficult "behavioral and developmental challenges," due to the "instability that foster care can sometimes provide" and to the "extensive neglect and trauma" their parents' conduct had caused; but they had also been called "energetic, affectionate, and fun." The current foster parents had never before had children placed with them and were not prepared to commit to permanency in light of the challenges the minors exhibited. However, the department still considered them adoptable and was engaged in "intensive family finding efforts," as well as exploring relative placements. The record does not reflect why the children's first two placements were unsuccessful or that those placements were made with an eye toward permanency.
The juvenile court considered the section 388 petition at the section 366.26 hearing on December 21, 2016. After argument, the court denied the section 388 petition without hearing witnesses, finding father had not made a prima facie case of changed circumstances.
As to the section 366.26 hearing, the juvenile court heard testimony from father, the maternal grandfather, and the adoptions social worker. Father's counsel argued that the department had not shown the minors were adoptable. Finding that the department had done so by clear and convincing evidence and no exception to adoption applied, the court terminated parental rights.
Counsel also raised the beneficial parental relationship exception to adoption. Father does not renew that argument on appeal.
DISCUSSION
I
The Petition To Modify
Father contends the juvenile court abused its discretion by denying his section 388 petition without an evidentiary hearing. We disagree.
A petition to modify a juvenile court order under section 388 must factually allege changed circumstances or new evidence, and benefit to the minor's best interests from changing the order. (In re Daijah T. (2000) 83 Cal.App.4th 666, 672.) The petitioner has the burden of proof by a preponderance of the evidence. (Cal. Rules of Court, rule 5.570(h)(1)(D).) In assessing the petition, the court may consider the entire history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)
Undesignated references to rules are to the California Rules of Court.
To decide whether a parent has met his burden, the juvenile court must consider such factors as the seriousness of the problem that led to the dependency, and the reasons for the problem's continuation; the degree to which the problem may be and has been removed or ameliorated; and the strength of the relative bonds between the dependent child and the child's parents or caretakers. However, this list is not exhaustive. (In re B.D. (2008) 159 Cal.App.4th 1218, 1229; In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.)
When a parent brings a section 388 petition after a section 366.26 hearing has been set, the best interests of the child are of paramount importance. (See In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Therefore, the juvenile court looks not to the parent's interest in reunification but to the child's need for permanence and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
The petition must be liberally construed in favor of its sufficiency. (Rule 5.570(a).) However, if the juvenile court finds that even if so construed the petition fails to make a prima facie case as to either or both tests under section 388, the court may deny the petition without an evidentiary hearing. (§ 388, subd. (d); rule 5.570(d)(1), (d)(2); In re Justice P., supra, 123 Cal.App.4th at p. 189.)
We review a ruling denying a section 388 petition for abuse of discretion. (In re S.R. (2009) 173 Cal.App.4th 864, 870.)
At the section 388 hearing, father's counsel recited the petition's allegations of changed circumstances and offered to present witnesses to corroborate the letter from father's counselor. Counsel also cited father's lack of new domestic violence charges "or any other violent charges" in the last year as proof of changed circumstances.
The minors' counsel asserted that the petition was insufficient on its face, and the allegedly supporting evidence did not show otherwise. In almost a full year since beginning services at Tahoe Turning Point, father had attended 50 batterers' intervention sessions, which were probably court-ordered because father had committed domestic violence after the prior dependency terminated. But in that same period, he had attended only 15 drug and alcohol sessions. Testifying at the disposition hearing on July 27, 2016, he said, "I can get sober when things get bad," a statement which showed that "five months' worth of sobriety means nothing." Father also testified to periods of sobriety in early adulthood lasting anywhere from two to nine years, but he resumed drinking in his mid-30s, and after the prior dependency terminated he relapsed again. Viewed against the whole course of his life, his current alleged period of sobriety was "like a drop in the bucket."
Mother's counsel added that, by his own account, over the last 11 months father had done "like one-and-a-half [drug and alcohol classes and individual sessions] a month," and only one drug test a month.
County counsel asserted that the petition at most showed changing circumstances.
The juvenile court ruled: "I'm going to make it easy for the appellate court to figure out. I'm going to find that based on the four corners of the document, the requested change in court order . . . does not present a prima faci[e] change of circumstances required for an evidentiary hearing. I'm going to deny it, and that will be for appellate review." We find no abuse of discretion in declining to hold an evidentiary hearing.
Given father's long history of alcohol abuse and domestic violence, the services he claimed to have done were insufficient to show changed circumstances. Even if he had maintained sobriety since January 2016, this was nowhere near long enough to prove a permanent change in light of that history (as well as the offhand attitude toward sobriety father betrayed in his July 2016 testimony). (In re Cliffton B. (2000) 81 Cal.App.4th 415, 423-424.) As the department argued, father's allegations at best showed changing circumstances. Mere changing circumstances are not grounds to delay the selection of a permanent home for the minors in order to reopen services for a parent who has already failed to reunify. (In re Casey D. (1999) 70 Cal.App.4th 38, 47; see In re Justice P., supra, 123 Cal.App.4th at p. 189 [juvenile court may consider entire history of case in reviewing a § 388 petition].)
Father asserts that the allegations of his petition constituted prima facie evidence of changed circumstances, and that the court's denial of an evidentiary hearing therefore denied him due process. But he cites no case where a showing similar to his was deemed sufficient to establish a prima facie case for changed circumstances.
In re Hashem H. (1996) 45 Cal.App.4th 1791, on which father relies, is distinguishable for two reasons. First, the juvenile court did not hold any hearing on the mother's section 388 petitions, but denied them summarily (id. at pp. 1797-1798); in our case, the court did hold a hearing, but declined to hear evidence proffered in support of father's assertions in his petition. Second, the mother's showing on its face was far stronger than father's showing here: having lost custody of the minor because of emotional and mental problems (id. at pp. 1793-1794), the mother alleged that she had undergone 18 months of successful therapy, consistently visited the minor, participated in conjoint counseling with him, had a stable job and religious ties, and could provide a full-time home for the minor; she also proffered a letter from her therapist recommending the minor's immediate return to her custody (id. at pp. 1797-1799). Here, father alleged that he continued to engage in services, but little else.
In In re Jeremy W. (1992) 3 Cal.App.4th 1407, as in In re Hashem H., the juvenile court denied the mother's section 388 petition summarily without holding any type of hearing. (Jeremy W., at p. 1413.) Furthermore, the petition attached a declaration by the mother's doctor opining that she could presently provide suitable care for the minor. (Id. at pp. 1415-1416.) The letter from father's counselor, which merely attested to the number of sessions father had completed and his generally positive attitude, came nowhere near that standard.
Father has shown no abuse of discretion in the juvenile court's ruling that his petition did not state a prima facie case of changed circumstances. Therefore, we need not consider his argument as to the second prong of the section 388 test (the children's best interest).
II
Termination Of Parental Rights
Father contends the order terminating parental rights must be reversed because there was insufficient evidence the minors were likely to be adopted within a reasonable time. Again, we disagree.
"If the court determines, based on the assessment . . . and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption." (§ 366.26, subd. (c)(1).) "Although a finding of adoptability must be supported by clear and convincing evidence, it [i.e., the determination that it is likely the child will be adopted within a reasonable time] is nevertheless a low threshold." (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.)
Determination of whether a child is likely to be adopted focuses first upon the characteristics of the child; therefore, a finding of adoptability does not require that the child already be in a prospective adoptive home or that there is "a proposed adoptive parent 'waiting in the wings.' " (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) A finding that a child is not adoptable depends on whether the child suffers from any problems, such as "age, physical condition, [or] emotional state," that would make it difficult to find a willing adoptive parent. (Ibid.; see also In re I.I. (2008) 168 Cal.App.4th 857, 870.) The fact that a prospective adoptive parent has shown interest in adopting a minor is substantial evidence the minor is likely to be adopted within a reasonable time, either by that parent or some other. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)
We review the juvenile court's finding on this issue under the substantial evidence standard, giving it the benefit of every reasonable inference and resolving any evidentiary conflicts in favor of affirming. (In re I.I., supra, 168 Cal.App.4th at p. 869.) That is, we must determine whether the record contains substantial evidence from which the court could find clear and convincing evidence that the child was likely to be adopted within a reasonable time. (In re B.D., supra, 159 Cal.App.4th at p. 1232.) If so, "[i]t is irrelevant that there may be evidence which would support a contrary conclusion." (In re K.B., supra, 173 Cal.App.4th at p. 1292.)
At the section 366.26 hearing, Thomas Brown, the maternal grandfather, testified that he and the maternal grandmother were aware of the minors' behavior problems, but were willing to adopt the minors if necessary (with other family members helping to care for them, as had previously occurred with P. P.). The home assessment had suggested that their present home was too small, so they were looking for a bigger one. Nothing in the minors' medical history, developmental history, or behavioral or mental health development would make the grandparents unwilling to adopt them.
Manny Ayon, the adoptions social worker, testified that to a social worker, "adoptable" means "[a] minor who has the probability of being adopted by a family and that has the ability to sustain a long-lasting relationship." Ayon had assessed both minors as adoptable, despite their behavioral and developmental problems. Those problems stemmed partly from the minors' history of multiple placements and lack of stability; given long-term stability in a family setting, the problems would be resolvable.
A finding that a minor was not adoptable would depend on the minor's age and response to placement. Working with minors in long-term foster care who did not get adopted, Ayon observed that they often suffered from a fear of commitment and from internal trauma not healed by counseling; in other cases, they might be too old to suit the preferences of adoptive parents. Ayon did not see these factors with the minors in this case. They had not been given a fair chance in their placement setting, with foster parents who had never adopted; with an experienced concurrent family home, the minors could thrive.
In this context, Ayon responded to the question whether every six-year-old (P. P.'s current age) is adoptable: "I think so. I think so." Ayon acknowledged he had worked in adoptions for just two months and had done no other adoption assessment as yet. --------
Father's counsel argued the department had not shown adoptability by clear and convincing evidence. Although the maternal grandparents said they would adopt, their home had not yet been approved. The department had requested a continuance of the 366.26 hearing because of the minors' problems and the current placement's unwillingness to adopt, but none of those issues had been resolved yet. The minors had been in three placements that were all generally concurrent, but none of the foster parents had been willing to adopt. Ayon's belief that every six-year-old child is adoptable was idealistic, but not necessarily true to reality. The department had failed to show the minors were likely to be adopted within a reasonable time.
The juvenile court found clear and convincing evidence that it was likely the minors would be adopted. Substantial evidence supports that finding.
The fact that the maternal grandparents, knowing the minors' problems, were willing to adopt is substantial evidence that the minors were likely to be adopted, either by the grandparents or by some other family, within a reasonable time. (In re Lukas B., supra, 79 Cal.App.4th at p. 1154.) It is immaterial to this issue that they did not yet have a residence the department deemed large enough for adoption.
As to the minors' problems, the juvenile court could reasonably have credited Ayon's opinion that they were resolvable with a stable permanent adoptive family, regardless of his inexperience as an adoptions worker or his "idealistic" statement that all six-year-olds are adoptable. The minors had only recently begun the counseling and other interventions recommended for them and had not yet had the opportunity to benefit from those programs with the support of a foster home committed to providing permanency. Father cites no authority holding that minors with similar problems are not generally adoptable, and we know of none.
Father cites In re Brian P. (2002) 99 Cal.App.4th 616 for the proposition that an adoption worker's conclusion that minors are generally adoptable is insufficient to support a finding of adoptability. (Id. at p. 624.) But there, no adoption assessment had been done, and the adoption worker's opinion was a bare assertion unsupported by evidence. (Ibid.) In re Brian P. does not assist father.
Father cites In re Jerome D. (2000) 84 Cal.App.4th 1200 and In re A.A. (2008) 167 Cal.App.4th 1292 for the proposition that agencies often support findings of general adoptability by providing "statistical information regarding the number of identified families interested in adopting the child or a child with the same age, physical condition and emotional state." Even if this were true, it would not establish that such information is required in every case of alleged general adoptability. And neither decision actually makes any such point. In Jerome D., although the agency purported to find the minor adoptable based on his " 'good mental health, physical health, and sociability,' " the appellate court found that the finding was really based only on the stated willingness of one insufficiently screened adult to adopt a minor with a significant physical disability; thus, the minor had not been found generally adoptable, as the agency claimed. (Jerome D., at p. 1205.) And in A.A., the appellate court found that the appellants' reliance on Jerome D. was misplaced: "Although the Jerome D. court observed there was no evidence of any approved families willing to adopt the child, appellants ignore the lack of any holding requiring this proof." (In re A.A., at pp. 1313-1314.) Thus, like In re Brian P., these decisions do not assist father.
Father has shown no error in the juvenile court's finding of adoptability.
DISPOSITION
The order terminating father's parental rights is affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Duarte, J.