Opinion
E066414
02-15-2017
In re A.A., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. J.A., Defendant and Appellant.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Julie Koons Jarvi, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIJ105688) OPINION APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Judge. Affirmed. Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
J.A. (father) appeals from orders denying his petition to reinstate reunification services and terminating his parental rights as to A.A. (the child). We affirm.
I.
FACTS AND PROCEDURAL BACKGROUND
We previously denied father's petition for writ of mandate challenging the juvenile court's orders terminating reunification services and setting a hearing for selection and implementation of a permanent plan, pursuant to Welfare and Institutions Code section 366.26. Our summary of the facts pertaining to the earlier stages of this case are drawn from our prior unpublished decision. (See J.A. v. Superior Court (D.P.S.S.) (Apr. 22, 2016, E065363) [nonpub. opn.].) Father had sole physical and legal custody over the child. The child was taken into protective custody when father was arrested for physically abusing his live-in girlfriend. The child witnessed this and other incidents of domestic violence by father, including father displaying a knife. In an amended petition under section 300, subdivisions (a), (b) and (g), the Riverside County Department of Public Social Services (DPSS) alleged the child was physically abused by father. The juvenile court sustained the allegations in the petition, the child was removed from the home, and father was provided with reunification services. (J.A. v. Superior Court (D.P.S.S.), supra, E065363.)
All further statutory references are to the Welfare and Institutions Code.
Mother is not a party to this appeal. --------
Father was incarcerated until five months after the jurisdictional hearing and, therefore, did not participate in reunification services until after his release. (J.A. v. Superior Court (D.P.S.S.), supra, E065363.) Father promptly met with the social worker once he was released from custody, and the juvenile court continued reunification services at a six-month status review hearing. After being removed from father's home, the child was diagnosed with and received therapy for "Intermittent Explosive Disorder." In a report prepared for the 12-month status review hearing, the social worker reported father had completed a parenting class, a substance abuse program, and had tested negative for alcohol and controlled substances while in the program. However, father failed to enroll in a 52-week child abuse class as ordered by the criminal court and failed to enroll in a domestic violence class as ordered by the juvenile court. Although father engaged in counseling, he failed to take responsibility for his domestic violence by placing the blame on alcohol and his girlfriend, he was reluctant to "open up," and he did "not see the benefit of therapy." (Ibid.)
Father regularly visited with the child and actively engaged with her during the visits. She appeared to enjoy the visits and exhibited no stress when the visits ended and they had to separate. (J.A. v. Superior Court (D.P.S.S.), supra, E065363.) However, the social worker reported a concern that the child's tendency to throw tantrums when she did not get what she wanted might provoke father because he had not yet learned how to control his anger. (Ibid.)
During the 12-month status review hearing, father's attorney argued father had completed most of his case plan, father's visits with the child had been positive, and father would definitely be enrolling in a domestic violence program. (J.A. v. Superior Court (D.P.S.S.), supra, E065363.) The juvenile court found no substantial probability that the child would be returned to father's care within six months and terminated reunification services. The court noted the main reasons for the dependency were domestic violence and physical abuse, which had not been sufficiently addressed through the provision of reunification services. The court also set a hearing for selection and implementation of a permanent plan, pursuant to section 366.26. (J.A. v. Superior Court (D.P.S.S.), supra, E065363.)
In a report filed for the selection and implementation hearing, DPSS recommended the juvenile court terminate father's parental rights and select adoption as the permanent plan for the child. The social worker reported father had not had any contact with DPSS since the 12-month status review hearing, and in his last communication father reported he had lost his job. The social worker did not know if father had completed any additional components of his case plan in the time since reunification services had been terminated. The social worker reported the child was "happy and healthy" in her prospective adoptive home, and her caregivers were able to handle her tantrums (which were nonviolent and less frequent than before). Father continued to have bi-monthly visits with the child. The social worker reported the visits were appropriate; father often brought gifts or food; and the child enjoyed spending time with and playing with father. The social worker also reported the child was likely to be adopted, and a prospective adoptive family was being assessed. Based on father's failure to complete the objectives of his case plan, and his failure to accept responsibility for the acts that had led to the dependency, DPSS opined that returning the child to father would place her at risk of further abuse and would be detrimental to her health and well-being.
In an addendum report, DPSS reported the assessment of the prospective adoptive family had been completed. The child had adjusted well to her placement in the prospective adoptive home and referred to her caregivers as "her parents." The prospective adoptive parents had grown to love the child and wished to adopt her. DPSS concluded the prospective adoptive parents were capable of meeting the child's needs and recommended that the adoption proceed with the prospective adoptive parents.
Father filed a petition in the juvenile court pursuant to section 388 seeking family maintenance services or, in the alternative, reinstatement of reunification services with liberalized visits with the child, including unsupervised visits and overnight and weekend visits. Father argued circumstances had changed since the juvenile court had terminated reunification services because father had enrolled in and was in the process of completing a 52-week domestic violence program and a child batterer's program; had been participating in group meetings and was making "good progress"; and had completed his parenting program. An attendance update from father's domestic violence program attached to the petition reported, inter alia, that father "[s]ometimes" "[a]dmits to violence with no minimizing, no blaming, no excuses, no denial and takes responsibility for his behavior," and "[s]ometimes" "[d]emonstrates an understanding of positive conflict resolution skills and recognizes that the use of coercion and/or violent behavior to maintain dominance is unacceptable." Father also argued family maintenance or additional reunification services would be in the child's best interest because father was benefiting from his programs; he had obtained suitable employment and housing; his visits with the child were appropriate; and the child enjoyed spending time with and playing with father during visits. Father supported his petition with photographs of him with the child, in which the child was smiling and apparently happy.
At the contested selection and implementation hearing, the parties agreed the juvenile court could consider father's stipulated testimony when deciding the section 388 petition and, if the court denied the petition, it could consider the stipulated testimony when deciding a permanent plan. If called to the stand, father would have testified that he had been enrolled in a 52-week domestic violence program; he actively participated in group therapy and had made good progress; he had enrolled, participated, and had made good progress in a child batterer's program and related group meetings; he had completed a parenting course; he had obtained suitable employment and housing; and he had been benefiting from his programs. Father would also testify that he maintained regular and appropriate visits with the child; he loved and cared for the child, and showed her love and affection during visits; the child "recognized him"; and that he and the child had a bond.
Father's counsel argued father was progressing and benefiting from his domestic violence and batterer's programs. In addition, counsel argued father's regular visits with the child were appropriate; the child enjoyed seeing father and playing with him; father actively engaged with the child during visits; and the child was happy during visits, would not cry when it was time for her to go home, and she would say goodbye to father.
Counsel for DPSS asked the juvenile court to deny the petition because father had not demonstrated changed circumstances. Father had not enrolled in an anger management program until after the juvenile court had already terminated reunification services, and father had not yet completed the program. With respect to visits, counsel informed the juvenile court that father had not visited with the child for the last seven weeks. In addition, counsel argued it would be in the child's best interests for her to remain in her prospective adoptive home and that reunification services not be provided to father. Counsel for the child joined in these arguments.
Father's counsel responded that father had been incarcerated for the first seven months of the dependency, but that he immediately began participating in reunification services upon his release. Since the termination of reunification services, father had enrolled in and began participating in the two component programs that were the reason for the termination in the first place. Therefore, counsel argued there were changed circumstances.
Although the juvenile court commended father for his efforts to turn his life around, the court noted father had "really only shown that he's in the process of changing his circumstances at this point." Therefore, the court found there were no changed circumstances. In addition, the juvenile court found the child had been in a stable placement with her sibling for almost a year and a half, and removing the child from her prospective adoptive home would not be in the child's best interests. Therefore, the juvenile court denied father's section 388 petition.
With respect to selection and implementation of a permanent plan, father's counsel argued termination of father's parental rights would be detrimental to the child, and that the juvenile court should find applicable the exception to termination under section 366.26, subdivision (c)(1)(B)(i), and select legal guardianship as the appropriate plan. Counsel argued father's visits with the child were regular and appropriate, and that the seven-week lapse in visits was the result of DPSS not facilitating visits. Finally, counsel argued the photographs submitted with father's section 388 petition demonstrated father and the child love each other and share "a strong bond."
Counsel for the child argued the exception to termination of parental rights did not apply because father's visits with the child had not been consistent, especially in the prior two months. Counsel then asked the juvenile court to terminate father's parental rights. Counsel for DPSS joined in the arguments.
The juvenile court found by clear and convincing evidence that the child was likely to be adopted, and that termination of father's parental rights was supported by the same findings on which the court based its order terminating reunification services, to wit, that despite the provision of reasonable reunification services, the child could not be returned to father and there was no reasonable probability of her being returned within a period of six months. The court also found that termination of father's parental rights would not be detrimental to the child, exceptions to termination of parental rights did not apply, and that adoption was in the child's best interests. Therefore, the juvenile court terminated father's parental rights and directed DPSS to refer the child to a licensed adoption agency for placement.
Father timely appealed.
II.
DISCUSSION
A. The Juvenile Court Did Not Abuse Its Discretion by Denying Father's Section 388 Petition
"Under section 388, a parent may petition to change or set aside a prior order 'upon grounds of change of circumstances or new evidence.' (§ 388, subd. (a)(1); see Cal. Rules of Court, rule 5.570(a).) The juvenile court shall order a hearing where 'it appears that the best interests of the child . . . may be promoted . . .' by the new order. (§ 388, subd. (d).) Thus, the parent must sufficiently allege both a change in circumstances or new evidence and the promotion of the child's best interests. [Citation.] [¶] 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. [Citations.]" (In re G.B. (2014) 227 Cal.App.4th 1147, 1157, fn. omitted.)
Section 388 is "an 'escape mechanism' when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights. [Citation.]" (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528, italics added.) It is not enough for a parent to show an incomplete reformation or that he or she is in the process of changing the circumstances that lead to the dependency. "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.] A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) "'A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent . . . might be able to reunify at some future point, does not promote stability for the child or the child's best interests. [Citation.] "'[C]hildhood does not wait for the parent to become adequate.'"' [Citation.]" (In re Mary G. (2007) 151 Cal.App.4th 184, 206.)
"This court reviews a juvenile court's decision to deny a section 388 petition without a hearing for abuse of discretion. [Citation.]" (In re G.B., supra, 227 Cal.App.4th at p. 1158.) "'"The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court."' [Citations.]" (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
Father contends he introduced new evidence and changed circumstances that warranted the juvenile court to grant his section 388 petition. We cannot agree. True, at the time of the selection and implementation hearing, father had enrolled in and was in the process of completing a 52-week domestic violence program and a child batterer's program. As did the juvenile court, we commend father for his efforts to alleviate the reasons for the dependency. But, father had not enrolled in the domestic violence and batterer's programs until after he had been provided months of reunification services and after the juvenile court had already terminated those services. At the time of the hearing, father had not completed those programs. In addition, father's progress in those programs was not as satisfactory as father would have this court believe. For example, the person who completed the domestic violence program attendance form attached to father's section 388 petition rated father as a "4," or "Sometimes," for acceptance of responsibility, attitude, and skills development. In other words, the evidence showed father was merely in the process of changing his circumstances, but he still had not proved he had actually benefited from the programs.
In addition, father did not establish that providing family maintenance services or reinstating reunification services would be in the child's best interests. Father argued he and the child had "a strong bond." He further argued that except for during periods of incarceration and during the seven weeks immediately prior to the selection and implementation hearing, he had maintained regular and appropriate visits with the child, and the child appeared to be happy and loving with father during visits. However, other than establishing father and the child played together and enjoyed each other's company, father presented no evidence to support his claim of a strong bond. In other words, father presented no evidence that delaying a permanent plan for the child by providing father with additional reunification services would outweigh the benefits to the child of a stable home.
Therefore, we conclude the juvenile court did not abuse its discretion by denying father's section 388 petition.
B. The Juvenile Court Properly Concluded the Benefit Exception to Termination of Parental Rights Did Not Apply in This Case
"Section 366.26 provides that if parents have failed to reunify with an adoptable child, the juvenile court must terminate their parental rights and select adoption as the permanent plan for the child. The juvenile court may choose a different permanent plan only if it 'finds a compelling reason for determining that termination [of parental rights] would be detrimental to the child [because]: [¶] (i) The parents have maintained regular visitation and contact with the child, and the child would benefit from continuing the relationship.' (§ 366.26, subd. (c)(1)(B)(i).)" (In re Marcelo B. (2012) 209 Cal.App.4th 635, 642.)
As the parties note in their briefs, the appellate courts are divided on the appropriate standard of review of a juvenile court's conclusion that the benefit exception does not apply. Some courts have applied the abuse of discretion standard while others have applied the substantial evidence test. (See In re Scott B. (2010) 188 Cal.App.4th 452, 469.) Recently, some courts have taken a middle approach, applying the substantial evidence test to the juvenile court's factual finding of whether there exists a beneficial parent-child relationship, and applying the abuse of discretion standard to the juvenile court's "'"quintessentially" discretionary decision'" that termination of parental rights will not be detrimental to the child. (In re K.P. (2012) 203 Cal.App.4th 614, 621-622, quoting In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.) We need not decide which approach is correct because under either standard the juvenile court did not err.
The parties dispute whether father regularly visited with the child. DPSS contends father did not begin visiting with the child until after his release from custody, and that father did not visit with the child for seven weeks before the selection and implementation hearing. There was some dispute at the hearing about the reasons for father missing seven weeks of visits, and the juvenile court made no finding as to the consistency of father's visits. Except for that seven-week period, we conclude the record amply demonstrates that upon his release father maintained regular and appropriate visitation with the child. Therefore, the pertinent issue becomes whether the second prong of the exception applies, i.e., whether the child would derive a greater benefit from continuing the parent-child relationship than she would from being adopted. (In re B.D. (2008) 159 Cal.App.4th 1218, 1234-1235.)
In re Autumn H. (1994) 27 Cal.App.4th 567, is the seminal case regarding exceptions to the preference for adoption. There, the court held that parent-child relationships that can prevent termination of parental rights are ones that promote "the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (Id. at p. 575.)
"The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs are some of the variables which logically affect a parent/child bond." (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)
Adoption cannot be thwarted simply because a child would derive some benefit from continuing the parent-child relationship, and adoption should be ordered when the court finds that the relationship maintained through visitation does not benefit the child significantly enough to outweigh the strong preference for adoption. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) The juvenile court may reject the parent's claim simply by finding that the relationship maintained during the visitation does not benefit the child significantly enough to outweigh the strong preference for adoption. To apply the exception, the court must find compelling reasons to apply the exception. Only in an extraordinary case will the preservation of parental rights prevail over the Legislature's preference for adoption. (Ibid.)
Although there is no dispute that father genuinely loves the child and that there is some bond between them, the evidence did not demonstrate how deeply attached father was to the child and no bonding study was ever conducted. There was no evidence that the child had a sufficiently strong bond with father such that termination of the parental relationship would be detrimental. As noted, the evidence tended to demonstrate that father and the child enjoyed each other's company and played together during visits. But "for the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt." (In re Angel B. (2002) 97 Cal.App.4th 454, 468, citing In re Jason E. (1997) 53 Cal.App.4th 1540, 1548.) In contrast, the evidence demonstrated the child was thriving in her prospective adoptive foster home and had a strong bond with her prospective adoptive parents, referring to them as her parents.
Considering the child's age, the fact she had lived with the prospective adoptive parents for almost a year and a half, and the demonstrated strength of the bond between the child and her prospective adoptive parents, the juvenile court did not err by concluding the bond between father and the child was not so substantial that severing it would be detrimental. The benefits the child might derive from a continued parental relationship with father, whose long-term ability to provide a safe and stable home for her had not yet been proven, did not outweigh the benefits she would derive from a stable and secure adoptive family. The record supports the trial court's findings, and we find no abuse of discretion.
III.
DISPOSITION
The orders denying father's section 388 petition and terminating his parental rights are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. CODRINGTON
J.