Opinion
E074817
06-25-2020
In re A.V. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.V., Defendant and Appellant.
Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. J277931 & J277932) OPINION APPEAL from the Superior Court of San Bernardino County. Annmarie G. Pace, Judge. Affirmed. Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.
A juvenile court terminated the parental rights of defendant and appellant J.V. (father) as to his children, A.V. and V.V. (the children). On appeal, father contends the court erred by: (1) denying him an evidentiary hearing on his Welfare and Institutions Code section 388 petition; and (2) finding the beneficial parental relationship exception to termination of parental rights inapplicable. (§ 366.26, subd. (c)(1)(B)(i).) We affirm.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On September 25, 2018, the San Bernardino County Children and Family Services (CFS) filed a section 300 petition on behalf of the children. A.V. was two years old at the time, and V.V. was six years old. The petition alleged that the children came within section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). It included allegations that father and the children's mother, A.L. (mother), had domestic violence histories and problems with substance abuse that placed the children at significant risk of abuse and/or neglect. It also alleged that father was incarcerated on September 24, 2018, leaving the children with no provision for support.
CFS filed a separate petition for each child, but they contained the same allegations. Thus, we will refer to them collectively as "the petition" (singular) in this opinion.
Mother is not a party to this appeal. Thus, this opinion will focus on father. --------
The social worker filed a detention report and stated that CFS received a referral alleging general neglect. According to the referral, "father attempted to kill mother," so she moved out of the home. The reporting party stated that mother and the children "live[d] in the car and . . . may be homeless." Mother told the social worker that father was abusive, he was in jail, and she obtained a restraining order against him. She described two incidents when father "put [his] hands around [her] neck."
The court held a detention hearing on September 26, 2018, and detained the children in foster care.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on October 11, 2018, recommending that the court sustain the petition, declare the children dependents, and provide father and mother (the parents) with reunification services. The social worker reported that mother stated the domestic violence between her and father started when they first began dating in 2006. When asked how many times they had engaged in domestic violence, she said, "Too many to count." The social worker reported that there were numerous police call logs and deputy reports relating to domestic violence.
The social worker further reported that father was incarcerated at West Valley Detention Center, and she interviewed him there. He said he was 13 years old when he started smoking marijuana, and he started using Oxycontin when he was 36 years old. He had experimented with several different drugs, and he last used drugs about three to four months ago. Father said he had enrolled in drug rehabilitation services three times, but never completed the programs. In 2012, he reportedly completed a 30-day inpatient rehabilitation program in Mexico, but he was arrested at the border and was brought to West Valley Detention Center.
The court held a jurisdiction/disposition hearing on October 17, 2018. County counsel informed the court that the recommendation for father was reunification services. However, father was in custody on a probation violation in two felony cases, and he was scheduled to return to criminal court on October 26, 2018. Thus, if father was sentenced to state prison beyond the statutory timeframe, CFS might change the recommendation. The court found the allegations in the petition true, found father to be the presumed father, declared the children dependents of the court, removed them from the parents, and placed them in the care and custody of CFS. The court ordered reunification services for father (and mother). His case plan included the requirements that he participate in a domestic violence program, a parenting education program, counseling, substance abuse testing, and a 12-step program. The court ordered supervised visitation for father upon release from custody.
Six-month Status Review
The social worker filed a six-month status review report on April 16, 2019, recommending that father's reunification services be terminated. The social worker reported that she was unable to assess father's progress because he had not been in contact with CFS. She received information on November 20, 2018, from West Valley Detention Center that father had been released and was out of custody. The paternal aunt told the social worker father was sent somewhere "up north." The social worker attempted to locate him through public state and county inmate information but could not find him. Beginning in October 2019, the social worker sent father six letters at various addresses, explaining his reunification plan and asking him to call collect.
Father finally called the social worker and left a message on April 2, 2019, stating that he was participating in the Jericho Project, which was a year-long residential treatment program for chemically dependent criminal offenders. He provided his telephone number. The social worker called and left a message for him to call her back but did not hear from him again. A Drug Alcohol Counselor (DAC) contacted father, and father said he wanted to leave the treatment program after four months. He gave consent for his probation officer to speak with the DAC. According to his probation officer, a court ordered father to complete the Jericho Project program, and he entered it on November 5, 2018. However, he was discharged on March 31, 2019, due to disruptive behavior, his negative influence on peers, his "glorified drug use" with peers, and his nonacceptance of counseling sessions. The probation officer said he would be arresting father on April 3, 2019. The officer also reported that the court ordered father to complete a 52-week domestic violence program by March 3, 2020.
As to visitation, the social worker reported that father had not reached out to CFS to arrange visits, and he had not had any visits with the children. The social worker reported that V.V. was sad from not visiting father and dealing with past trauma. However, she was working with a therapist, and she reportedly had insight and was showing progress with identifying her emotions.
The social worker further reported that the maternal aunt had applied for resource family approval (RFA) on September 22, 2018, and her home was approved on an emergency basis. The children were placed together in her home since they were removed, and they had adjusted well. The maternal aunt and uncle were working with RFA to be fully approved.
The court held a six-month review hearing on April 17, 2019. Father's counsel asked the court to consider continuing father's services. She explained that father was originally in custody and was released at the end of October to the Jericho Project, in Northern California. However, because he was discharged from the program, he was in violation of his probation. Therefore, father was currently back in custody. She reported that he was accepted to a program with the Salvation Army and had to wait for court approval on May 6, 2019, to be released to that program. The court replied that, even if what counsel said was true, father still had "a long way to go." It also noted that the youngest child was under the age of three. The court stated that father had made no significant progress in his case plan, and in fact, his own behavior got him more time in custody. Thus, the court terminated his services. However, it continued to permit him supervised visits upon release from custody. The court continued mother's services.
Twelve-month Status Review
The social worker filed a 12-month status review report on October 3, 2019, recommending that the court terminate mother's services and set a section 366.26 hearing, with adoption as the permanent plan. The social worker reported that the maternal aunt and uncle wanted to adopt the children. They had demonstrated their ability to care for and protect the children, as they had provided clothing and food for them and had participated in parent conferences and school events.
The court held a 12-month review hearing on October 10, 2019, at which it terminated mother's reunification services and set a section 366.26 hearing.
Section 366.26 and Section 388 Petition
The social worker filed a section 366.26 report on January 29, 2020, recommending that the court terminate parental rights and implement adoption as the permanent plan. The social worker reported that the home of the maternal aunt and uncle (the prospective adoptive parents) was approved by the RFA on May 16, 2019. The children had adjusted well in their home. The prospective adoptive parents had demonstrated a significant bond with the children and continued to meet their medical, emotional, social, and educational needs. They desired to adopt the children and provide a loving and stable home for them. They were committed to raising them in a happy, loving, and functional home. The social worker stated the children appeared to be bonded with the prospective adoptive parents and were happy and thriving in their home. V.V. reported that she felt safe with them, although she was sad about not going home with the parents. The prospective adoptive parents expressed that they were open to maintaining visits and relations with father, if he was sober and not emotionally abusive toward the children.
As to visitation, the social worker reported that father was currently in an inpatient program in San Diego, and the children had supervised telephone calls with him.
On February 6, 2020, father filed a section 388 petition requesting the court to give him the opportunity to complete "[all his] programs and to meet all court requirements." He asked for 18 months to comply and asked to have the court review his case again. He also asked for "visitation rights until further notice." As to changed circumstances, father alleged that he was attending a court-ordered program and was released on September 26, 2019, to complete a residential drug program at Teen Challenge International (Teen Challenge). He attached a letter from Teen Challenge, dated January 18, 2020, stating that he entered the program on September 27, 2019, was doing very well, and had completed the first phase. As to best interests, father alleged that "every child deserves to have it's [sic] father in thier [sic] lives," and that he was preparing himself to be the best role model he could be.
On February 7, 2020, the court summarily denied father's section 388 petition because it did not state new evidence or a change of circumstances, and it did not promote the best interests of the children. The court also held a section 366.26 hearing that day. Father testified on his own behalf and said that the last time he had contact with the children was a year and a half ago. He said he was in custody when they were removed, and he was in custody for about six months before being sent to participate in the Jericho Project. He said he was still in an inpatient program, so his visits with the children consisted of two 20-minute phone calls a week. Father said he had been having phone visits since he was incarcerated, and they talked about "her school" and "how she's doing and with her friends." He added, "She misses me." Father's counsel asked the court to institute a lesser plan, such as guardianship, to preserve father's parental rights, and noted that V.V. was upset she was not going home to the parents. Counsel also argued that father had done his best to remain in contact with the children, and they had a bond.
The court found the children adoptable and stated that father had maintained consistent visitation, to the extent that he could by phone. However, the children had been out of parental care for a year and a half, visits had always been supervised, and the parents had not acted in a parental role in a very long time. The court found that the beneficial parental relationship exception did not apply, since the love and bond with the parents was outweighed by the permanency that adoption with the prospective adoptive parents would provide. It then terminated parental rights.
DISCUSSION
I. The Court Properly Denied Father's Section 388 Petition
Father argues that the juvenile court erred in denying him an opportunity to be heard on his section 388 petition. He claims that he established a prima facie case of both changed circumstances and best interests of the children. We disagree.
A. Relevant Law
"A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. [Citation.] A parent need only make a prima facie showing of these elements to trigger the right to a hearing on a section 388 petition and the petition should be liberally construed in favor of granting a hearing to consider the parent's request. [Citation.] [¶] However, if 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.]" (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G).) "In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. [Citation.]" (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)
"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], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [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 (Stephanie M.).)
B. Father's Notice of Appeal Should Be Liberally Construed
We first note respondent's argument that this court lacks jurisdiction to review father's challenge to the summary denial of his section 388 petition, since he did not mention that he was appealing from such denial in the notice of appeal. Father concedes that he filed the notice of appeal from the order terminating parental rights and did not mention the denial of his section 388 petition. However, he asks us to liberally construe his notice of appeal to include the summary denial of his section 388 petition, since it was issued the same day the court terminated parental rights, and since he prepared the notice of appeal in propria persona.
We will liberally construe father's notice of appeal for the reasons enumerated in In re Madison W. (2006) 141 Cal.App.4th 1447, 1450, as follows: "First, the denial of such a section 388 petition is an appealable order. [Citation.] Second, the parent's notice of appeal is entitled to our liberal construction. [Citation.] Third, appellate jurisdiction to review an appealable order depends upon a timely notice of appeal. [Citation.] Fourth, the notice of appeal would be timely as to the denial of the parent's section 388 petition, provided the trial court denied the parent's section 388 petition within 60 days of when the parent filed the notice of appeal. [Citation.] And, finally, respondent is not prejudiced. [Citation.]" The court here issued its denial during the 60-day period prior to father filing the notice of appeal. As such, we will liberally construe his notice of appeal from the order terminating parental rights to encompass the denial of his section 388 petition. (See In re Madison W., at p. 1451.)
C. The Court Did Not Abuse its Discretion
The court declined to order a hearing on father's section 388 petition because the petition did not state a change of circumstances, and the proposed change of order did not promote the best interests of the children. We find no abuse of discretion in the court's decision. In his petition, he asked the court to give him 18 months to complete his reunification services and then review his case again. He also asked for visitation. As respondent points out, A.V. was two years old at the time of removal. Accordingly, father was entitled to services, for a sibling group, for a period of six months from the dispositional hearing, but no longer than 12 months from the date the children entered foster care. (§ 361.5, subd. (a)(1)(B) & (C).) Father was offered six months of services, but failed to participate in them or even maintain contact with CFS during that time period. The juvenile court had no authority to grant him an additional 18 months of services.
Furthermore, there was no evidence of changed circumstances. Father contends that his petition demonstrated he was successfully addressing his history of drug abuse by attending the Teen Challenge program. He attached a letter from Teen Challenge in support of his petition; however, it alleged that he entered the program on September 27, 2019, was doing well, and had merely finished the first phase of the program, which consisted of a few months. Considering father's long-standing problem with substance abuse and his numerous failed attempts at completing previous treatment programs, the evidence showed, at most, that his circumstances were changing, but had not changed. We also note that the children were removed, in part, because of father's history of domestic violence. Yet, his petition was silent on that issue and failed to demonstrate father had taken any steps to ameliorate this significant issue, which was one of the reasons the case had been filed in the first place.
As to best interests of the children, the petition alleged that father felt every child deserved to have her father in her life, and he was preparing himself to be the best role model he could be. However, he failed to show why it would be in the children's best interests to provide him with 18 more months to complete his services, when he previously failed to participate in his case plan or even maintain contact with CFS.
Moreover, in denying the petition, the juvenile court properly recognized the shift of focus from father's interest in the care and custody of the children to their need for permanency and stability. (Stephanie M., supra, 7 Cal.4th at p. 317.) The children had lived in a stable home environment with their current caregivers since September 22, 2018. Their needs were being met, they were thriving, and the prospective adoptive parents were committed to adopting them.
We conclude the court did not abuse its discretion in denying father a hearing on his section 388 petition. The statutory time limit for his services had run, and the petition did not allege a change of circumstances or support the conclusion that the children's best interests would be served by the requested order.
II. The Beneficial Parental Relationship Exception Did Not Apply
Father contends the court erred in not applying the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i). We disagree.
A. Relevant Law
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Celine R. (2003) 31 Cal.4th 45, 53.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds a compelling reason for determining that termination of parental rights would be detrimental to the child under one of the exceptions set forth in section 366.26, subdivision (c)(1)(B). One such exception is the beneficial parental relationship exception set forth in section 366.26, subdivision (c)(1)(B)(1). (See In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) This exception applies when 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).) The phrase " 'benefit from continuing the . . . relationship' " refers to a parent/child relationship that "promotes 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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575. (Autumn H).)
The parent has the burden to show that the beneficial parental relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.) "[I]t is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
The review of an adoption exception incorporates both the substantial evidence and the abuse of discretion standards of review. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.); In re J.S. (2017) 10 Cal.App.5th 1071, 1080 (J.S.).) We will apply the substantial evidence standard of review to evaluate the evidentiary showing with respect to factual issues, such as whether the beneficial parental relationship exists. However, the determination of whether the existence of that relationship constitutes "a compelling reason for determining that termination would be detrimental to the child" is reviewed for an abuse of discretion. (§ 366.26, subd. (c)(1)(B); see Bailey J., at pp. 1314-1315; J.S., at p. 1080.)
B. The Court Properly Terminated Parental Rights
In support of his position, father admits that he last saw the children about a year and a half ago, before he was incarcerated. However, he asserts that he had 20-minute phone calls, twice a week, with the children, throughout the case. He asserts that he and V.V. talked about school and her friends, and she missed him. He further states that he was a loving father, and the children missed him and continued to request visits with him. He also points out that V.V. wanted him to come home so they could be together.
We first note that the focus of the beneficial parental relationship exception is the parent/child relationship, which "must be sufficiently strong that the child would suffer detriment from its termination." (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418 (Beatrice M.)) Father's interactions with the children do not even begin to demonstrate that his relationship with them promoted their well-being "to such a degree as to outweigh the well-being the child[ren] would gain in a permanent home with new, adoptive parents." (Autumn H., supra, 27 Cal.App.4th at p. 575.) Frequent and loving contact with the children is insufficient to establish the " 'benefit from a continuing relationship' " contemplated by the statute. (Beatrice M., at p. 1418.) Moreover, father has not proffered any evidence to support a finding that he had a "substantial, positive emotional attachment [with them] such that the child[ren] would be greatly harmed" if the relationship was severed. (Autumn H., at p. 575.) Although V.V. was sad about not seeing father, she was working with a therapist and making progress.
Furthermore, the evidence showed that the children were bonded with the prospective adoptive parents. By the time of the section 366.26 hearing, they had lived with them for over one year. The prospective adoptive parents had demonstrated a significant bond with the children and were meeting their medical, emotional, social, and educational needs. The children were happy in their home, and V.V. said she felt safe with them. The prospective adoptive parents desired to adopt the children and provide a loving and stable home for them. They were committed to raising the children to adulthood.
In his reply brief, father concedes that the children were unquestionably safe in their placement and asserts that he was not asking for their return. He requests that we follow the portions of In re E.T. (2018) 31 Cal.App.5th 68, where the court stated: "The standard is whether the children benefit from Mother's presence in their lives, not whether they could eventually be happy without her" and "[e]ven if Mother may not ultimately regain custody, she should not be excluded from the children's lives." (Id. at p. 77.) He then states that the facts demonstrated he should not be excluded from his children's lives. Father's assertion that he was not asking for the children's return appears to be at odds with his section 388 petition, in which he asked for more time to complete his reunification services. In any event, father has not overcome the legislative preference for adoption.
We conclude that father failed to meet his burden of showing a beneficial parental relationship. Therefore, the court did not abuse its discretion by declining to apply the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i).
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. RAPHAEL
J.