Opinion
E069986
07-24-2018
In re I.C., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. G.C. et al., Defendants and Appellants.
Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and Appellant G.C. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant I.S. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Prabhath Shettigar, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIJ400848) OPINION APPEAL from the Superior Court of Riverside County. Walter H. Kubelun, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and Appellant G.C. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant I.S. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Prabhath Shettigar, Deputy County Counsel for Plaintiff and Respondent.
Defendants and appellants G.C. (Mother) and I.F. (Father; collectively, Parents) appeal after the termination of their parental rights for I.C. (Minor) at a Welfare and Institutions Code section 366.26 hearing. Father claims on appeal the juvenile court erred when it denied his section 388 petition without a full and fair hearing. Mother joins in Father's arguments. She additionally argues that if this court reverses the termination of Father's parental rights, we must also reverse the termination of her parental rights.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A. DETENTION
Minor was born in June 2016. Mother tested positive for methamphetamine, amphetamine and marijuana at the time of Minor's birth. The drug test on Minor showed amphetamine and methamphetamine in his system. Mother had received no prenatal care and the hospital estimated Minor was between 34 and 35 weeks gestation when born. He was just over five pounds. Minor was placed in the NICU. Mother was in the process of having her parental rights to two of Minor's half siblings terminated. Mother reported that she was homeless and had no provisions to support Minor. She admitted her drug use to the social worker for the Riverside County Department of Public Social Services (Department) who first visited the hospital on June 24, 2016, and became angry because she knew the Department was going to take Minor. Mother had a criminal history including a conviction for drug possession. She could not be located by the Department after she was released from the hospital.
Father is not the father of the half siblings. Since the issues on appeal involve Father's section 388 petition, we will not detail the facts surrounding the termination of Mother's parental rights for Minor's half siblings.
Father came to the hospital at the time of Minor's birth. He was intoxicated and had to be removed by security for being verbally abusive toward Mother. Father also reported being homeless and having no provisions to care for Minor. Father stated the pregnancy was a result of a "one night stand." He was stuck with Mother because she got pregnant. The social worker asked Father to come to the hospital so they could meet in person but he never showed up. Father had a criminal history.
On June 27, 2016, the social worker returned to the hospital. Mother had been released and never visited Minor in the NICU. Father visited one time. Minor was losing weight but seemed to be improving. Minor was taken into protective custody. Father was upset that Minor was being detained but admitted that he used methamphetamine on the day of Minor's birth. Father had no contact information for Mother.
On June 29, 2016, the Department filed a section 300 petition against Parents (Petition). It was alleged under section 300, subdivision (b), that: Parents failed to protect Minor; Mother had a history of unresolved substance abuse and used methamphetamine and marijuana while pregnant with Minor; Minor tested positive for these substances when born and remained in the hospital at the time of the filing of the Petition; Mother had tested positive when giving birth to Minor's half siblings; Mother was in the process of having her parental rights terminated for both of Minor's half siblings; and Father also had a history of abusing substances and/or alcohol. They were both homeless and had no provisions to care for Minor within the meaning of section 300, subdivisions (b) and (g). Parents had criminal histories. There was a further allegation under section 300, subdivision (j) for one of Minor's half siblings. Minor remained in the hospital but was being screened for a medically fragile placement.
Although this was a first amended petition, we will refer to it as the Petition.
The detention hearing was held on June 30, 2016. The juvenile court found a prima facie case to detain Minor outside the home.
B. JURISDICTION/DISPOSITION REPORTS AND HEARING
On July 20, 2016, the Department filed a jurisdiction report asking the juvenile court to find all of the allegations in the Petition true. On July 14, 2016, Minor was placed in a medically fragile foster home.
The Department sought to have reunification services denied to Mother pursuant to section 361.5, subdivisions (b)(1) and (b)(10), and to Father pursuant to section 361.5, subdivisions (a) and (b)(1). Mother had services terminated for her two other children. She continued to engage in substance abuse. Father was only an alleged father and had stated he did not want to be involved in the proceedings.
Mother had been located one time and was living on the streets. She had failed to attend any meetings with Department social workers. Her whereabouts were unknown. The social worker attempted to contact Father on five different occasions. The social worker briefly spoke with Father on July 13, 2016, and he stated he did not want to be involved in the matter because he was unsure whether Minor was his child.
The Department provided further information regarding Minor's condition at birth including that he had breathing and feeding complications and appeared to have withdrawal symptoms. He had gained weight since his birth. Parents had not visited with Minor since his birth.
An addendum report was filed prior to the jurisdictional hearing. On August 4, 2016, Minor was moved to a new foster home as he was no longer considered medically fragile. On July 22, 2016, Father had been arrested for possession of a firearm, possession of burglary tools and possession of a zip gun. He was incarcerated awaiting trial. The social worker met with Father at the jail. He changed his mind and wanted to be involved in Minor's case. Father admitted he and Mother had a volatile relationship. He had an extensive substance abuse history. He began using methamphetamine at the age of 11. He was in a relationship with Mother at the time of Minor's conception. He had been clean for seven years at one point in his life but had relapsed. He had never attended a substance abuse program. Father admitted he was arrested because he had a gun in his possession. He expected to spend at least eight months in custody. He was willing to engage in services while incarcerated. The hearing was continued to allow for DNA test results. Mother could not be located.
An addendum report was filed on September 2, 2016. The Department recommended no reunification services be granted to Father under section 361.5, subdivision (e)(1) because the length of his incarceration exceeded the statutory timeline for reunification. Father's criminal case had been resolved and he was to be incarcerated in state prison for one year and four months. Parents had no visits with Minor. Mother never attended any of the substance abuse programs offered to her. Minor was gaining weight. He cried a lot but this was common for a drug-exposed baby. The matter was again continued.
An addendum report was filed on October 7, 2016. Minor remained in his foster home. During the reporting period, the Department had no contact with Parents. Father made no effort to contact the Department. Minor was doing well and his signs of drug exposure had decreased significantly. An amended petition was filed to reflect that Father was incarcerated and could not provide for Minor (Second Amended Petition).
An addendum report was filed on November 16, 2016. It requested that the juvenile court find all of the allegations in the Second Amended Petition true. The Department changed its recommendation to provide that Father should be offered reunification services. Minor remained in the same foster home where he was placed on August 4, 2016.
The Department still had no contact with Mother during the reporting period. Mother's parental rights to one of Minor's half siblings had been terminated. Minor had gain significant weight and was a happy baby. Father was to be released from prison on March 22, 2017. The prison did not have services but the social worker was trying to get him approved for online services. Additional referrals would be made upon his release from prison. Mother failed to start any programs and never visited Minor. DNA tests revealed Father was the father of Minor.
The jurisdiction/disposition hearing was conducted on November 22, 2016. Mother was not present; Father was present but waived his right to a trial and submitted on the Department's recommendation. The juvenile court found the allegations in the Second Amended Petition true and detained Minor. Mother was denied reunification services pursuant to section 361.5, subdivisions (b)(1), (b)(10) and (b)(11). Father was named the presumed father. Father was granted reunification services.
C. STATUS REVIEW REPORTS AND HEARING
A six-month status review report was filed on May 10, 2017. It was recommended that reunification services be terminated for Father. Mother had not been in contact with the Department during the six-month period. The Department recommended that a section 366.26 hearing be set.
Father was released from prison in February 2017. He went to the Department offices. He was staying with relatives. He was encouraged to stay in touch with the Department. In April 2017, after the social worker was unable to contact Father, a relative called the social worker advising the Department that Father had moved out. It was suspected he was living on the streets with Mother. Father was arrested on April 14, 2017, for possession of ammunition and violation of probation. He was convicted on April 27, 2017, and was sentenced to two years in state prison. Minor was on-target developmentally.
Father had made no progress on his case plan, including failing to complete the parenting course. He was not eligible for counseling because he continued to engage in substance abuse. The Department had no confirmation that Father had enrolled in a substance abuse program. He was a no show for drug tests. Father had attended one visit with Minor on March 8, 2017. He missed 12 of the scheduled visits. The Department recommended a permanent plan of adoption.
An addendum report was filed on June 22, 2017. Mother had been in contact with the Department during the reporting period. Mother admitted there were no changes in her circumstances; she was still homeless and using drugs. Mother cussed and hung up on the social worker when she was advised she was granted no reunification services by the juvenile court. Minor continued to progress and was a happy 10-month-old baby. The Department would need to find an adoptive home if reunification efforts failed since the current foster home could not provide a permanent home. Mother had not visited with Minor since his birth.
A further addendum report was filed on July 27, 2017. Mother had no further contact with the Department. Father was approved to take a parenting course in prison. He was advised he was required to additionally participate in counseling, a substance abuse program, and random drug testing.
The contested status review hearing was held on August 9, 2017. Mother was not present; Father was present in custody. Father's reunification services were terminated for failure to make substantive progress on his case plan. The matter was set for a section 366.26 hearing.
D. SECTION 366.26 REPORTS AND HEARING
On November 21, 2017, the Department filed their section 366.26 report. It recommended that the parental rights of Parents be terminated and the juvenile court order a permanent plan of adoption. Minor was placed in a prospective adoptive home on October 6, 2017. Mother had no contact with the Department during the reporting period. There was no contact with Father during the reporting period and he remained incarcerated. He did not provide any updates to the Department regarding his progress or completion of services.
The prospective adoptive mother reported that Minor was adjusting well to the new placement and she was committed to providing him a permanent home. The Department noted that Minor seemed happy in his new placement and was bonding to the prospective adoptive mother. Minor would cry when left with a babysitter but adjusted after a few minutes.
An addendum report providing the preliminary adoption assessment was filed on November 29, 2017. The prospective adoptive mother was a special education teacher and owned a home. She had already been approved as an adoptive home. Minor had been with the prospective adoptive mother for two months. She was very loving toward Minor. Minor appeared to be bonded to her. She was willing to stay in contact with Minor's family.
The section 366.26 hearing was continued to January 31, 2018, which would be after Father was scheduled to be released from custody.
An addendum report was filed on January 25, 2018. Mother visited with Minor for the first time on December 19, 2017. Mother was looking to enroll in a substance abuse program and was thinking of moving to Arizona. Father had not contacted the Department during the reporting period. Minor was having some problems gaining weight but was otherwise developing normally.
On February 1, 2018, Father filed a section 388 petition, which will be discussed in detail post. It was denied. The section 366.26 hearing was held on February 6, 2018. No evidence was presented. The juvenile court terminated the parental rights of Parents and freed Minor for adoption.
DISCUSSION
A. SECTION 388 PETITION
Father, joined by Mother, contends that the juvenile court erred by refusing to grant an evidentiary hearing on Father's section 388 petition.
1. ADDITIONAL FACTUAL BACKGROUND
Father provided in the section 388 petition that he had completed a parenting course, and attended substance abuse courses and a transitional program while incarcerated. He had been released from custody and was attending a residential substance abuse program at the Salvation Army. The program provided drug testing, a parenting program, NA/AA meetings and individual counseling. Father requested reunification services and liberalized visitation with Minor. Granting additional family reunification services to Father would help to strengthen the child/parent bond.
Father attached certificates of completion of Malachi Dads, a parenting course. He attached completion of a transitional program that helped with job search techniques. He included sign-in sheets for NA/AA meetings and proof of attending substance abuse programs while incarcerated. Father also submitted a letter from the Salvation Army rehabilitation program. Father had been admitted to the program on January 26, 2018, and would complete the program on July 26, 2018.
Minor's counsel argued that the section 388 petition did not meet the threshold requiring a hearing. Father's circumstances were in the initial stage of changing. He had a long history of substance abuse and had just started the Salvation Army program. Minor's counsel argued Father had never visited Minor and that at one point Father stated he did not want to be involved in the case. It was not in Minor's best interest to see if he could develop a relationship with Father. The Department agreed with the argument by minor's counsel. The Department added Father missed 12 visits during the time period he was not incarcerated.
Father's counsel argued that the section 388 petition met the threshold and Father should be allowed to present testimony. Father had changed his circumstances. He was released from custody and had immediately enrolled in a substance abuse program. He completed programs while incarcerated. Father could testify as to how he benefitted from the programs. It was in Minor's best interest to liberalize visits between Father and Minor so they could build a bond.
The juvenile court addressed the two prongs of section 388. It first looked at the best interest of Minor noting that Minor was born on June 23, 2016, and Father was incarcerated from July 2016 until February 2017. He was out of custody between February 2017 and April 2017 but failed to visit Minor and completed no services. He did not cooperate with the Department by staying in contact.
The juvenile court commended Father for completing services in prison and entering the Salvation Army program. Despite this, the juvenile court did not believe it would be in Minor's best interest to grant the section 388 petition. Father was changing and making a great effort, but he failed to show changed circumstances. Even if Father could complete the Salvation Army program, he had not shown he could be stable while living in the community.
The juvenile court found that Father's circumstances were changing but had not changed. Further, it was not in the best interests of Minor to grant the section 388 petition.
2. ANALYSIS
"Under section 388, a parent may petition to change or set aside a prior order 'upon grounds of change of circumstance or new evidence.' [Citations.] The juvenile court shall order a hearing where 'it appears that the best interests of the child . . . may be promoted' by the new order. [Citation.] Thus, the parent must sufficiently allege both a change in circumstances or new evidence and the promotion of the child's best interests." (In re G.B. (2014) 227 Cal.App.4th 1147, 1157, fn. omitted.) "A prima facie case is made if the allegations demonstrate that these two elements are supported by probable cause. [Citations.] It is not made, however, if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing. [Citations.] While the petition must be liberally construed in favor of its sufficiency [citations], the allegations must nonetheless describe specifically how the petition will advance the child's best interests." (Ibid.)
The summary denial of a petition under section 388 is only appropriate if the petition "fails to state a change of circumstance or new evidence that even might require a change of order." (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) In determining whether the petition makes the necessary showing, the juvenile court may consider the entire factual and procedural history of the case. (In re Jackson W. (2010) 184 Cal.App.4th 247, 258.) "[A]fter reunification services have terminated, a parent's petition for either 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.)
"We review such rulings for abuse of discretion and may not disturb the decision of the trial court unless that court has exceeded the limits of judicial discretion by making an arbitrary, capricious, or patently absurd determination." (In re E.S. (2011) 196 Cal.App.4th 1329, 1335; see also In re B.D. (2008) 159 Cal.App.4th 1218, 1228.)
The juvenile court did not abuse its discretion when it denied Father's petition without a hearing. Father failed to show changed circumstances or that it was in Minor's best interest to have the petition granted. Moreover, he did not establish how such a change would advance Minor's need for permanency and stability.
Here, Father was at the hospital when Minor was born on June 23, 2016, but was intoxicated and had to be forcibly removed. He admitted he used methamphetamine that day. He initially told the social worker that Minor was the result of a one-night stand and he did not want to be involved in the proceeding. He had no visits with Minor and never contacted the Department. On July 22, 2016, Father was arrested for the first time and sentenced to prison for one year four months. He advised the Department he changed his mind and wanted to be involved in the case but had no contact with the Department while incarcerated.
Father was released in February 2017 and immediately contacted the Department. He had a visit with Minor on March 8, 2017. However, during the time of his release until the time he was rearrested in April 2017, he had no other contact with the Department and missed 12 scheduled visits. He missed drug tests and completed no services. Father was incarcerated and sentenced to two years. He never reported any of his progress to the Department during his second incarceration.
Throughout the proceedings, Father had ample opportunity to visit Minor and to engage in services. Most telling that Father did not make any effort to change his circumstances was his failure to visit Minor while he was free from custody. He made no effort to complete any programs while he was out of custody. Father made no effort to regain custody of Minor during the entire proceeding until the last minute when he completed some courses and enrolled in a substance abuse program.
Father filed his section 388 petition on February 1, 2018, almost two years after Minor was born, and six months after reunification services were terminated. The evidence established that he had recently completed some courses while incarcerated. Further, he had entered a substance abuse program but had six more months in the program. These completed programs were initiated too late in the dependency process to show changed circumstances. Further, Father admitted to taking methamphetamine since he was 11 years old. A few weeks in a substance abuse program did not show changed circumstances after a lifetime of drug use.
Father in no way showed that it would be in Minor's best interest to reopen reunification services. He only stated that granting additional family reunification services to Father would help to strengthen the child/parent bond. Minor was entitled to permanency and stability, which he had in the prospective adoptive home, and Father had not shown how he could provide such stability. Father had no relationship with Minor because he missed visits and failed to contact the Department. The juvenile court did not have to reopen reunification services so that Father may be able to bond with Minor. The juvenile court properly summarily denied Father's section 388 petition.
Since we affirm the juvenile court's order, we need not address Mother's second claim. --------
DISPOSITION
The juvenile court orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. FIELDS
J.