Opinion
E066403
03-09-2017
In re M.J., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. A.J., Defendant and Appellant.
Hassan Gorguinpour, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, Danielle E. Wuchenich and Adam Ebright, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J260374) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. Hassan Gorguinpour, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, Danielle E. Wuchenich and Adam Ebright, Deputy County Counsel, for Plaintiff and Respondent.
The juvenile court terminated the parental rights of A.J. (Father) to his son, M.J. (Minor). (Welf. & Inst. Code, § 366.26, subd. (b)(1).) Father contends the juvenile court erred by summarily denying his petition to change a court order (§ 388), in which Father requested his adult son's home be designated as a concurrent planning home for Minor. Within this appellate contention, Father asserts (1) the San Bernardino County Children and Family Services (the Department) social worker failed to investigate placing Minor with relatives (§ 309, subd. (a)); and (2) the trial court erred by instructing Father to delay requesting relative placement for Minor. (§ 361.3.)
All subsequent statutory references will be to the Welfare and Institutions Code, unless otherwise indicated.
The Department asserts: (1) Father lacks standing to challenge the denial of the petition because Father is not aggrieved by the denial; (2) Father forfeited the Department's alleged failure to investigate placing Minor with relatives by not filing a timely appeal or writ petition; and (3) the trial court did not err by denying Father's petition. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. DETENTION
Minor was born in May 2015 with methamphetamines in his system. J.W. (Mother) said she had consumed methamphetamines three days prior to Minor's birth, and abused methamphetamines throughout her pregnancy. Father, who had been in a relationship with Mother for 18 months, said he was unaware Mother abused methamphetamines. On May 16, the Department detained Minor and placed him in foster care. Father informed the Department that Father's aunt (Aunt) could care for Minor. The Department did not place Minor with Aunt because Father was residing with Aunt and serving as Aunt's primary caregiver.
Mother is not a party to this appeal.
At the detention hearing on May 20, the juvenile court ordered Father to disclose to the Department the names, addresses, and any other identifying information "of all known maternal and paternal relatives" of Minor.
B. JURISDICTION AND DISPOSITION
Father informed the Department he had two adult children who were raised without the Department being involved. On May 29 and June 1, the Department requested to meet with Father, but Father declined both times stating he wanted to first meet with his lawyer. Father ultimately agreed to meet with the Department social worker on June 2, but missed the meeting. Father did not meet with the Department.
The Department investigated placing Minor with his maternal grandmother, but she suffered from diabetes and cancer and already had custody of two of Mother's older children, and therefore declined the placement. The Department was investigating placing Minor in the home of the people who had adopted Minor's half sister (one of Mother's children).
The jurisdiction and disposition hearing took place on July 29. The juvenile court found true the allegations that (1) Father had "an extensive criminal history, including multiple incarcerations in state prison," which placed Minor at risk of abuse or neglect (§ 300, subd. (b)); and (2) Father had a substance abuse problem and therefore was unable to provide proper care for Minor (§ 300, subd. (b)). The court found there were no relatives available for a concurrent planning home placement.
After the juvenile court made its findings, the court explained that if Father failed to make progress in his case plan within six months, then Minor could be adopted. The court asked if Father had any questions, and the following exchange occurred.
"The Father: No. Just about—I can put another person down though, right?
"The Court: What do you mean?
"The Father: I mean instead of taking him from me I can have, like, my brothers down to adopt him?
"The Court: Potentially. We don't necessarily talk about who would adopt him at this point because we're hoping that you'll do what you're supposed to do.
"The Father: I will do my part.
"The Court: But it's not out of the question if, for some reason, you couldn't get him back that somebody in your family couldn't adopt him. That's a possibility.
"The Father: That's what I'm asking about.
"The Court: That's a possibility.
"The Father: I will do my part." (All caps. omitted.)
C. SIX-MONTH REVIEW
Father was released from jail in August and placed on probation. At that time, he kept in contact with the Department, informing them of his whereabouts. In September, Father tested positive for amphetamines. Father suffered a concussion in October, and had an infection in November. Father was unable to participate in services due to his medical issues. Father stopped contacting the Department.
The Department's six-month status report reflects that, at the jurisdiction/disposition hearing, the juvenile court found there were no relatives available for a concurrent planning home placement. The report also reflected Minor's concurrent plan was adoption. Minor was moved to a new foster home, due to his prior foster home lacking sufficient heat. The new foster parents were not interested in adopting Minor.
At the six-month status review hearing on February 11, 2016, the juvenile court terminated Father's reunification services. The court ordered Minor's permanent plan be adoption. On April 9, Minor was moved into a concurrent planning home with foster parents who wanted to adopt him.
D. FIRST PETITION
On May 16, Father filed a petition to change a court order. (§ 388.) Father asserted he was attending parenting classes, anger management classes, substance abuse treatment, and counseling sessions. Father requested the court reinstate his reunification services and increase his visits with Minor. On May 17, the juvenile court summarily denied Father's petition because (1) the petition did not state a change of circumstances; (2) the requested change would not promote Minor's best interests; and (3) Minor was removed from Father's care at birth and never resided with Father.
E. SECOND PETITION
Father visited Minor, but Mother did not. No other relatives visited Minor while he was in the Department's custody.
At a hearing on June 10, Father's juvenile court counsel informed the juvenile court that Father had "advised the social worker about a relative he wanted assessed, [B.W.] And he's still asking for that. Apparently, the social worker did not look into that." The Department's attorney responded that (1) she did not have information about the relative, and (2) Minor was in a concurrent planning home and there was no longer a relative preference. The juvenile court stated a relative investigation could still take place. The court asked for the Department to follow up on information concerning B.W. Father and the Department's attorney then explained B.W. was the social worker, and the relative was M.L. M.L., who was Father's adult son, was present at the hearing. The court asked for the Department to "look into" M.L. The social worker "indicat[ed] he was never provided" information concerning M.L. The Department's attorney explained that a secondary social worker was also working on the case, and she would follow up with that social worker.
Also on June 10, Father filed a second petition to change a court order. (§ 388.) Father asserted he was attending parenting classes, anger management classes, substance abuse treatment, and counseling sessions. Father requested the juvenile court reinstate his reunification services, increase his visitation, and designate his adult son, M.L., who was Minor's half sibling, as a concurrent planning home for Minor. Father asserted the requested changes were in Minor's best interests because Father consistently visited Minor, the visits went well, and Father could teach Minor about his biological family.
On June 15, the juvenile court summarily denied Father's petition. The court's reasons were: (1) Father failed to state a change of circumstances; (2) the requested change did not promote Minor's best interests; and (3) Minor had never lived with Father.
F. TERMINATION AND M.L.'S PETITION
M.L. filed a petition to change a court order. (§ 388.) M.L. asserted he had been unaware of Minor's "situation," and that the juvenile court had been unaware that Minor had an adult half sibling. M.L. requested Minor be placed in M.L.'s care. M.L. asserted it was in Minor's best interests to be placed with biological relatives.
The juvenile court ordered a hearing on M.L.'s petition. The Department filed a response to the petition. The Department asserted no information about relatives had been provided to the Department from the time of Minor's detention in May 2015 until April 2016. A Department social worker met with Father on April 6, 2016. The social worker informed Father that Minor was being placed in a concurrent planning home. "[F]ather did not understand [because] he thought he had more time to reunify." In April, Father telephoned the Department and requested M.L.'s home be assessed for a concurrent planning placement, but at that point, the relative preference had ended.
After the June 10 hearing, the social worker contacted M.L. M.L. said he learned about Minor in 2015 when Father called and told M.L. he was expecting a baby. M.L. did not hear from Father again until April 2016 when Father called to say Minor would be adopted and asked if M.L. would be willing to adopt Minor.
The Department asserted it had asked Father about relatives that could adopt Minor throughout the case, but Father said there were none. The Department contended that only on the eve of parental rights being terminated did Father "realize[] the importance of providing relative information." The Department asserted Minor was "very bonded" with his concurrent planning family, and had never visited with M.L. The Department contended Minor's best interests would be served by terminating parental rights and freeing him for adoption by the concurrent planning family.
On July 1, the juvenile court held a combined hearing on M.L.'s petition and the termination of Father's parental rights. Minor's attorney said it was "late in the game" and would not be in Minor's best interests to move him to a fourth foster home. The juvenile court agreed M.L. came forward too late in the process, and as such, it was not in Minor's best interests to change the court's order. The court explained to M.L., "Had you known about [the case] and come forward earlier you likely would have been—had you gone through the assessment and been assessed and found to be fine, which I'm sure you are, you know, you may well have had the child placed with you. But at this time, you know, he's been out of any parental care for basically his whole life; it's been over a year already, and he's just been moved too much. He's in a stable place and he's been there for a while now. [¶] So I'm going to find that it's in his best interest not to grant the 388. So the 388 is denied." The juvenile court terminated Father's parental rights.
DISCUSSION
A. PETITION
Father contends the juvenile court erred by summarily denying his petition to change a court order. (§ 388.)
"'[I]f the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition.' [Citation.] [¶] 'The petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.'" (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)
In regard to changed circumstances, the change must be substantial. (In re Heraclio A. (1996) 42 Cal.App.4th 569, 577.) Father asserted circumstances had changed because he entered a detoxification program on April 7; he was participating in an inpatient substance abuse treatment program, which he was scheduled to complete on July 12; he was taking anger management and parenting classes; and he was attending therapy sessions. Father's petition does not show changed circumstances. Rather, the petition reflects Father was making progress toward changing his behaviors. Father was in the process of changing, but had not yet changed. (See In re Ernesto R. (2014) 230 Cal.App.4th 219, 223 ["recent sobriety reflects 'changing,' not changed, circumstances"].)
For example, Father had not yet completed his inpatient substance abuse treatment program. As a result, it is speculation that Father would remain sober when no longer residing in the inpatient program. Father needed to demonstrate changed circumstances, such as sobriety outside of a residential treatment program. Because Father failed to allege substantial changed circumstances, the trial court did not err by denying his petition.
B. INVESTIGATION
Father contends the Department erred by not proactively investigating relatives. Father relies on section 309 to support his argument.
Section 309, subdivision (e)(1) provides, in relevant part, "If the child is removed, the social worker shall conduct, within 30 days, an investigation in order to identify and locate all grandparents, parents of a sibling of the child, if the parent has legal custody of the sibling, adult siblings, and other adult relatives of the child . . . . The social worker shall provide to all adult relatives who are located, except when that relative's history of family or domestic violence makes notification inappropriate, within 30 days of removal of the child, written notification and shall also, whenever appropriate, provide oral notification, in person or by telephone, of all the following information."
The Department did conduct an investigation. The social worker asked Father about suitable relatives for Minor's placement. Father said there were no relatives suitable for placement. Thus, the Department was not passively waiting for Father to spontaneously suggest a relative placement. Rather, the Department proactively questioned Father, i.e., investigated, whether there were adult siblings or other relatives willing to accept placement of Minor.
Nevertheless, to the extent the Department should have done more to locate relatives, we conclude Father forfeited the issue. If a juvenile court finds a social worker has not exercised due diligence in locating relatives, then "the court may order the social worker to exercise due diligence in conducting an investigation to identify, locate, and notify the child's relatives . . . and may require a written or oral report to the court." (Cal Rules of Court, rule 5.695(f)(2).)
On June 10, Father informed the juvenile court that he had mentioned M.L. to the Department, and the Department had not yet assessed M.L. The juvenile court instructed the Department to investigate M.L. and the Department complied by starting the process for a relative assessment on June 13. At the time of the hearing on M.L.'s petition to change a court order, on July 1, the relative assessment had not been completed, and a continuance was not requested in order for the assessment to be finished.
In sum, Father brought the Department's alleged error to the juvenile court's attention. The juvenile court complied with the Rules of Court by ordering the Department to investigate M.L. (Cal Rules of Court, rule 5.695(f)(2).) The Department complied with the juvenile court's order by starting the assessment of M.L. Father did not request a continuance in order for that process to be completed. To the extent Father felt the assessment would make a difference in his case, he had an obligation to raise the issue. Because Father did not raise the issue in the juvenile court, we conclude it has been forfeited. (In re S.B. (2004) 32 Cal.4th 1287, 1293 [the purpose of the forfeiture rule is to encourage a party to bring alleged errors to the trial court's attention so they may be corrected].)
While testifying, Father requested "an additional six months to prove [him]self to the courts." Father did not request a continuance due to the Department's assessment of M.L. being incomplete. (See generally In re E.A. (2012) 209 Cal.App.4th 787, 790 [objections must be specific].) --------
Father also faults the Department for not investigating Aunt as a possible relative caretaker for Minor. At the time of the detention, Father requested Minor be placed with Aunt. The Department decided not to place Minor with Aunt because Father was residing with Aunt and serving as Aunt's primary caregiver. Father asserts the Department should have contacted Aunt. Father did not raise the issue concerning Aunt in the juvenile court. As a result, the issue has been forfeited. (In re John M. (2013) 217 Cal.App.4th 410, 420.)
C. JUVENILE COURT'S COMMENTS
Father contends the juvenile court erred by instructing him to delay supplying a relative's name for Minor's possible adoption.
Section 361.3, subdivision (a), provides, "The court shall order the parent to disclose to the county social worker the names, residences, and any other known identifying information of any maternal or paternal relatives of the child."
Father's argument is forfeited for the same reason discussed ante. At the hearing on June 10, Father brought the issue of placement with M.L. to the juvenile court's attention. The juvenile court then remedied the issue by ordering the Department to investigate M.L. (Cal Rules of Court, rule 5.695(f)(2).) The Department began that process on June 13. The process was incomplete on July 1, but Father did not request a continuance for the purpose of the assessment being completed.
If Father believed it was error to proceed with the case prior to the assessment being completed, then he needed to request a continuance or otherwise bring the alleged error to the juvenile court's attention. (In re S.B., supra, 32 Cal.4th at p. 1293 [the purpose of the forfeiture rule is to encourage a party to bring alleged errors to the trial court's attention so they may be corrected].) Father's failure to request a continuance or otherwise raise the issue in the juvenile court has forfeited the issue on appeal.
D. STANDING
The Department contends Father lacks standing to challenge the denial of his petition to change a court order because he was not aggrieved by the court's denial of his request to make M.L.'s home a concurrent planning home for Minor. For the sake of addressing the merits of Father's contentions, we have treated Father as having standing. The substantive issues raised by Father have not been resolved in his favor. Therefore, the judgment must be affirmed. As a result, we decline to address the substance of the standing issue.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting. P. J. CODRINGTON
J.