Opinion
E068771
01-03-2018
In re M.L., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. A.L., Defendant and Appellant.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Adam E. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J262920) OPINION APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed. Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Adam E. Ebright, Deputy County Counsel, for Plaintiff and Respondent.
The juvenile court denied defendant and appellant, A.L.'s (Father), Welfare and Institutions Code section 388 petition without holding an evidentiary hearing. Thereafter, the court terminated Father's parental rights. On appeal, Father contends the court erred in summarily denying his petition. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. FACTUAL AND PROCEDURAL HISTORY
On October 29, 2015, personnel of plaintiff and respondent, San Bernardino County Children and Family Services (CFS), received an immediate response referral reporting physical abuse by Father toward V.L. (born in May 2002) and emotional abuse and general neglect by K.R. (Mother) and Father (collectively Parents) toward V.L., Z.L. (born in June 2000), and M.L. (Minor; born in October 2008). The reporting party disclosed that the children had no food and Mother was selling food stamps to buy alcohol. Mother had a long history of substance abuse and stole medications from her work. Father was verbally abusive, pushed V.L., and threatened her harm.
V.L. and Z.L. (the stepchildren) were Father's stepchildren; Minor is Parents' daughter. We will refer to all the minors collectively as the children. Mother and the stepchildren are not parties to this appeal.
On November 9, 2015, CFS personnel received two, secondary, immediate referrals alleging caretaker absence/incapacity and general neglect by Mother. The reporting party disclosed law enforcement had been called to the residence by V.L., who was concerned about Mother's drunken and violent outbursts. The stepchildren were placed with their paternal aunt and uncle (PAU) while Mother sobered up.
The social worker was initially unable to locate Mother or Minor. During a November 9, 2015, inspection of the residence, the social worker noted the home was filthy, an open oven was being used to heat the home, broken chairs were placed around a dirty table, and no provisions for the children's support could be found. The living room had a large sliding glass door which was broken and covered with a blanket to try to reduce cold air from coming into the room. The bathroom was filthy; pliers were needed to turn on the bath and shower.
There was a broken window with a large glass shard hanging from the top in the children's room; the opening allowed cold air to enter the room. The children's beds were covered in dirty clothes and blankets, and there were open wires hanging from light switch covers. The hallway walls and doors had multiple holes and were grimy and covered in dirt. Mother's room was cluttered and filthy. Multiple cats and dogs lived in the home; the social worker observed there was not even one clean surface in the entire home. The temperature inside the home was 45 degrees.
V.L. reported that she was the one who tried to clean and get food for the children due to Mother's substance abuse issues. Father had been arrested on November 6, 2015, for doing "sexual things" to Mother and taking photographs of her while she was passed out. He was still in jail. Z.L. informed the social worker that Mother really did not care what he did; he never got into trouble because Mother was always drunk. Z.L. reported that Mother would get drunk and talk about her sex life in detail with him. Z.L. disclosed that Father had orally copulated Mother while she was passed out. V.L. reported that Mother had shown her a video of what Father did to Mother sexually while she was passed out.
Mother admitted drinking every day, but denied any other type of substance abuse. Z.L. reported that he had not seen Mother sober in at least a year; she typically drank a fifth of Southern Comfort a day and switched to Potters vodka when she ran out because it was cheaper. He reported Mother popped pills and chewed morphine patches until she passed out. Z.L. also disclosed smoking marijuana with Father.
V.L. called law enforcement to the home on November 7, 2015, reporting she was afraid of the way Mother was acting; Mother had been drinking and screaming; she hit Minor in the back of the head and laughed when he started to cry. Mother threw one of the smaller dogs against the wall and started laughing when it yelped in pain. V.L. stated she never wanted to return home. Minor was returned to Mother on November 8, 2015, but the stepchildren refused to go back. Mother confirmed that she and Father engaged in domestic violence in front of the children. She said the holes in the doors and walls were made by Father, but the broken windows were caused by the children.
Z.L. reported Mother and Father were always fighting; Mother took swings at Father, but they were both aggressive when they drank. Mother would obtain restraining orders against Father, but then allow him back into the house. Z.L. informed the social worker the holes in the walls and door and the broken windows were caused by fighting between Parents. V.L. also reported that Parents caused the holes in the walls and doors when fighting; she additionally reported that Mother kicked in the sliding glass door. On November 9, 2015, the social worker took the children into custody; she placed Minor with the PAU.
On November 12, 2015, CFS personnel filed a juvenile dependency petition as to Minor, alleging Mother suffered from substance abuse (b-1), Mother engaged in a relationship marked by domestic violence (b-2), Father suffered from substance abuse (b-3), Father engaged in a relationship marked by domestic violence (b-4), Mother allowed Father into the home despite an awareness that he engaged in sexual practices leaving the children at risk (b-5), Mother failed to supervise and protect the children by exposing them to deplorable living conditions (b-6), Mother knew or should have known that Father was placing the children at risk of sexual abuse (b-7), and that Father was incarcerated and unable to care for the children (g-8).
CFS personnel also apparently filed juvenile dependency petitions as to the stepchildren; however, because they are not parties to the appeal, those petitions are not included in the record.
At the November 13, 2015, detention hearing, Father appeared while in custody. The court detained the children. Father informed the court he had lived with Mother for eight years.
In the jurisdictional and dispositional report filed on December 2, 2015, the social worker reported that Father had taken videos of Mother while he put his penis in her mouth while she was sleeping. Mother said such incidents had been ongoing for years, but she had finally decided to file charges against him. Mother recalled obtaining two restraining orders against Father; the last one in August 2015, when she reported Father videotaped himself orally copulating her. Mother now reported that she was the one who broke the sliding glass door when pushing on it while the dogs were barking; she denied it occurred as a result of a fight between she and Father.
V.L. said she was afraid of a fire occurring in the home because Mother would pass out drunk while smoking and burn holes in blankets. V.L. reported Mother drank every day and would walk barefoot in the street yelling at cars; one day Mother had lain down on the curb and said she wanted to die. The stepchildren both reported Mother talked to them too often about her sex life; V.L. said Mother had thrown a dildo at her. Mother had five prior referrals to CFS; four were deemed unfounded, but one was substantiated for emotional abuse and general neglect.
Father stated Mother was drinking a lot; the drugs and alcohol played a big part in the problems in their relationship; Mother would spend money on drugs instead of on the bills.
Father admitted smoking "a little marijuana" for back pain, but reportedly had a medical license to do so. He admitted that he and Mother allowed Z.L. to smoke marijuana because it helped with Z.L.'s attention deficit hyperactivity disorder and they could not afford his prescription medication.
Father admitted his sexual behavior against Mother, but said he did not know it was a crime. He said he accidentally video-recorded that behavior, intending instead to simply turn on the light on his phone. Father pled guilty to the offense and was serving 270 days in jail.
Father said he was "very bonded" to Minor. Father said he was the primary caregiver while Mother was working. He said he wanted reunification services to include classes for domestic violence, therapy for sexual abuse, drug testing, and outpatient classes. Father had an extensive criminal history, including six arrests for possession of narcotic substances and one conviction for possession of drug paraphernalia. Father's proposed case plan included counseling and mental health services for sexual abuse, parenting education, and substance abuse services, including substance abuse testing and participation in a 12-step program.
CFS personnel recommended the b-4 allegation of substance abuse against Father be found not true; a first amended dependency petition filed on December 3, 2015, removed the b-4 allegation. On January 5, 2016, the court found the b-1, b-2, b-3, b-5, d-6, d-7, and g-8 allegations true, but found the b-4 allegation untrue. The court terminated jurisdiction over the stepchildren, awarding custody of them to their father and dismissing the petitions as to them. The court removed Minor from Parents' custody and granted Parents' reunification services.
On March 1, 2016, the juvenile court granted the PAU de facto parent status. In the status and review report filed on June 24, 2016, the social worker noted Mother continued to test positive for opiates and did not attend outpatient substance abuse treatment; she continued to use alcohol and struggle with addiction. Mother enrolled in a parenting class, but had yet to complete it. She had attended six out of eight counseling sessions scheduled between February 8 and June 8, 2016.
Minor had been placed with the PAU on November 9, 2015. CFS personnel removed Minor from the PAU on February 18, 2016, but placed him back with the PAU on March 19, 2016.
Father's conviction involved a plea of no contest to a charge of oral copulation of an unconscious victim, Mother. (Pen. Code, § 288a, subd. (f).) Defendant was incarcerated for several months, but released on March 19, 2016. The police report reflected that the video showed Father ejaculating on Mother's face. Father was now a registered sex offender.
Father had participated in five out of eight counseling sessions between April 13 and June 30, 2016. Father completed one parenting program, but had not been deemed to have benefitted from it as he refused to accept responsibility for the family coming to the attention of CFS personnel. Father tested negative for drugs four times, but missed one test, which counted as a positive result. Father had been attending a 12-step program regularly. Father had supervised visitation once a week for two hours; he was deemed affectionate and appeared to love Minor. The visits were deemed appropriate.
Parents were cohabiting even though Mother had an active restraining order against Father and Father's probationary terms required that he abide by the protective order. Mother now wished to lift the order. The social worker recommended continuing reunification services. On July 5, 2016, the court set a contested six-month review hearing because Father now wanted unsupervised visits. On August 11, 2016, the social worker filed a section 388 petition requesting that Father's reunification services be denied because he had been returned to custody; the court granted an evidentiary hearing on the petition to be held with the contested six-month hearing.
The terms "restraining order" and "criminal protective order" are used interchangeably in the record.
The section 388 petition is not included in the record on appeal.
In an information for the court filed on September 13, 2016, the social worker reported Father had been arrested on July 5, 2016, on a probation violation for lewd and lascivious acts upon a child under the age of 14. Father had been living in a sober living facility, but was having trouble finding a job due to his status as a sexual registrant. Father was enrolled in parenting and domestic violence classes. The social worker spoke with Father's probation officer, who informed her that Father was allowed to be around children.
Later reports appear to reflect the arrest was for violating the protective order and not for lewd acts upon a child.
Father later testified he was released from custody on August 20, 2016. --------
At the six-month review hearing on September 15, 2016, it was noted that Parents were no longer living together; Mother was no longer seeking to lift the restraining order and had no intention of getting back together with Father. The court denied the section 388 petition and granted Parents continued reunification services.
In a status review report filed on December 12, 2016, the social worker recommended that the court terminate Parents' reunification services and set the section 366.26 hearing. Mother had not drug tested since the last hearing, missing 10 drug tests. Father had missed 10 drug tests as well. Father had completed a parenting education class; he continued participation in counseling and a 12-step program. However, Father's therapist reported "concerns regarding [F]ather's insight and ability to make changes necessary to safely return [Minor] to his care."
Minor looked forward to Parents' regular visitation. The social worker observed that Parents obviously loved Minor. Father had good interaction with Minor, but the social worker observed Father would allow behaviors, such as jumping off a chair, which posed a danger to Minor. On December 20, 2016, counsel for Father reported that Father claimed he had not drug tested due to miscommunication with the social worker; Father did not know to what random drug test color he had been assigned.
On January 13, 2017, the social worker informed the court that defendant needed only one more parenting class, but had been terminated due to frequent absences. Father had missed two more drug tests. Father had been referred to domestic violence programs. Father had signed a case plan dated March 24, 2016, which reflected that the color of the random test group to which Father had been assigned was purple.
At the six-month review hearing on January 13, 2017, Father testified he did not complete the parenting program because he had been arrested prior to completing it. Father said he was assigned the color blue for testing and had missed tests while he was incarcerated. After his release, he went to test, but was told he was not in the system; he called the social worker, but never heard back from her. Father accepted responsibility for the reasons leading to dependency jurisdiction, stating: "I put my penis on [Minor's] mother's lips when she was sleeping. I didn't insert nothing, but I put it on her lips when she was sleeping." Father admitted seeing a drug test plan reflecting he was assigned the purple testing group. The juvenile court terminated Parents' reunification services and set the section 366.26 hearing.
Parents filed notices of intent to file writ petitions. We dismissed both cases on March 7, 2017, when Mother failed to file a timely motion for relief from default for failing to timely file the writ petition and after Father's counsel filed a letter reflecting there were no issues on which to base a petition.
On April 25, 2017, Father filed a section 388 petition requesting reinstatement of reunification services. Father's stated changes of circumstances were that he owned a home, had a job, was in an outpatient treatment program, and was seeing a mental health therapist. He alleged the proposed change was in Minor's best interest because it was better for Minor's mental well-being, Father was a better parent, and he could now support Minor. Father attached to the petition a letter dated April 13, 2017, from Affiliated Psychological Services, reflecting he attended an assessment on March 28, 2017, and two individual sessions on April 4 and 11, 2017, which focused "on identifying responsibility in issues with [Minor] . . . as well as identifying alternative choices [Father] could have made which can inform [Father's] future choices." Father additionally attached a letter dated April 19, 2017, from Mental Health Systems, reflecting Father had started an outpatient program and participated in three classes.
On April 27, 2017, the court denied Father's section 388 petition, noting it did not state new evidence or a change of circumstances, was not in the best interest of Minor, and "father is in the very early stages of services. The therapist reports [three] session[s] with focus on 'identifying' responsibility." On May 8, 2017, the social worker filed the section 366.26 report. She recommended termination of Parents' parental rights. She noted that Father visited regularly and Minor looked forward to the visits. The social worker reported that "there can be good interaction and father is encouraging and playful."
Nevertheless, the social worker noted Minor had adjusted well to placement with the de facto parents, now referred to as the prospective adoptive parents (PAPs), and was considered part of their family. Minor consistently sought the PAPs' affection. He was "very content, happy, satisfied[,] and well cared for in his current placement." Minor stated he wanted to be adopted by the PAPs.
On June 12, 2017, Father filed a second section 388 petition requesting six more months of reunification services. Father alleged a change in circumstances in that he continued "to participate in . . . services designed to treat case issues. He continues to participate in individual counseling and outpatient substance abuse treatment." Father alleged the requested change was in Minor's best interest because it would benefit Minor's well-being and the two were bonded. Father attached to the petition a letter dated May 9, 2017, from Affiliated Psychological Services, reflecting he had undergone an initial assessment on March 28, 2017, and had attended five individual sessions since. The letter reflected that: "Although you continue to have frustration with aspects of your interactions with [CFS] staff, you demonstrate greater understanding about what caused the removal of your son and alternative choices you could have made that would have avoided that outcome. You have attempted to be open to seeing the events of the past in the eyes of the [CFS] staff and accept your responsibility for making bad choices that caused the trajectory of events."
Father additionally attached a letter from New Horizons Counseling dated May 25, 2016, reflecting he had attended five out of eight counseling sessions; Father had admitted fault for the behaviors which led to the dependency proceedings. He also attached the same letter attached to his previous section 388 petition from Mental Health Systems, reflecting that he had started an outpatient program and participated in three sessions.
On June 15, 2017, the court summarily denied Father's section 388 petition. The court noted the petition did not state new evidence or a change of circumstances, was not in the best interest of Minor, and that "Father appears to be participating in services. However, much like the prior [section] 388 [petition], the providers report that father is in the initial phases of treatment. Father has attended [three] sessions of out-patient [and] the therapist reports reflect the need for ongoing counseling. Circumstances may be 'changing' but there is no evidence of a change of circumstances."
At the section 366.26 hearing on July 17, 2017, Father's counsel requested the court to reconsider its ruling on the section 388 petition in light of additional information. The court noted: "The denial was signed June 15th. The concern was all of the services were only in the beginning processes. There is an update from [Mental Health Services] that I don't even believe all parties have seen, and it does not indicate how far along the father is, [and] when he might . . . complete[] . . . the program. It shows that out of 18 sessions there has been five absences. His participation is marked as good. And that does not change the Court's analysis on the denial of the [section] 388 [petition] that's dated June 15th." After Mother's testimony the court found Minor adoptable and terminated Parents' parental rights.
II. DISCUSSION
Father contends the court erred in summarily denying his second section 388 petition because he made a prima facie case for a hearing. We disagree.
"To prevail on a section 388 petition, the moving party must establish that (1) new evidence or changed circumstances exist, and (2) the proposed change would promote the best interests of the child. [Citation.]" (In re J.T. (2014) 228 Cal.App.4th 953, 965.) "Under section 388, a party 'need only make a prima facie showing to trigger the right to proceed by way of a full hearing.' [Citation.] The prima facie showing 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.] In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. [Citation.] The petition must be liberally construed in favor of its sufficiency. [Citations.]" (In re J.P. (2014) 229 Cal.App.4th 108, 127.)
"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, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests. [Citation.]" (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) "We review a summary denial of a hearing on a modification petition for abuse of discretion. [Citation.] Under this standard of review, we will not disturb the decision of the trial court unless the trial court exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. [Citation.]" (In re A.S. (2009) 180 Cal.App.4th 351, 358.)
Here, Father failed to make a prima facie case that his circumstances had changed and that continued reunification services were in Minor's best interest. First, it is unclear why the social worker removed the b-4 allegation considering Father admitted marijuana use, admitted allowing Z.L. to use marijuana, and reportedly engaged in domestic violence when he was drunk. Nevertheless, Father's case plan required that he drug test and attend a 12-step program. However, even prior to termination of Father's reunification services, he missed 12 drug tests, which counted as positive tests. Father testified that he missed drug tests due to his incarceration; however, only three of the drug tests were scheduled during Father's period of incarceration.
Father never adequately explained why he missed the other 10 drug tests. Father's testimony that he was assigned to the blue testing group, went to test but was told he was not in the system, and called the social worker regarding the issue but never received a return call was obviously not given credence by the juvenile court because it immediately thereafter terminated Father's reunification services. (In re C.V. (2017) 15 Cal.App.5th 566, 571 ["[F]actual and credibility issues are the trial court's province."].)
Indeed, Father previously tested negative four times. The social worker produced a case plan signed by Father which reflected Father was assigned to the purple testing group. Moreover, Father later testified that he saw the test plan reflecting he was assigned the purple testing group. Finally, Father never even alleged in either of his section 388 petitions that he had continued to drug test at all. Thus, the record reflects Father's last negative drug test occurred on June 7, 2016, more than a year prior to the filing of his most recent section 388 petition. Likewise, Father failed to allege that he continued to attend a 12-step program.
Second, the court's determination that Father was only in the beginning phases of treatment was well within its discretion. Father's attached letter dated May 9, 2017, from Affiliated Psychological Services, reflected he had only attended two additional sessions since his last section 388 petition. It further reflected that defendant had "attempted to be open to seeing the events of the past in the eyes of the [CFS] staff and accept your responsibility for making bad choices that caused the trajectory of events." (Italics added.) An attempt is not a change.
Indeed, defendant testified: "I put my penis on [Minor's] mother's lips when she was sleeping. I didn't insert nothing, but I put it on her lips when she was sleeping." However, Father was convicted of oral copulation of an unconscious victim (Pen. Code. § 288a, subd. (f)) and the police report reflected that the video showed Father ejaculating on Mother's face. Mother reported Father had put his penis in her mouth. Thus, Father still failed to take full responsibility for the reasons for CFS intervention in the case by minimizing his behavior. Moreover, Father's behavior was not limited to one sexual act upon Mother, but purportedly included numerous such incidents which Father video-recorded. At least one of these video recordings was eventually shown to the stepchildren. Thus, Father's behavior had not yet been sufficiently addressed such that it could be determined he would not continue behavior which put Minor at risk of viewing such recordings.
Finally, Father's statement in his petition that reinstatement of reunification services would be in the best interest of Minor's well-being was conclusory. By the time Father filed his second section 388 petition, Minor had resided with the PAPs for nearly two and a half years. Minor had adjusted well to placement with the PAPs and was considered part of their family. Minor consistently sought the PAPs' affection. He was "very content, happy, satisfied[,] and well cared for in his current placement." Minor stated he wanted to be adopted by the PAPs. Although Minor apparently enjoyed visitation with Father and Father loved Minor, the court acted within its discretion in determining that Minor's best interest involved adoption by the PAPs.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. FIELDS
J.