From Casetext: Smarter Legal Research

San Diego Cnty. Health & Human Servs. Agency v. Oscar G. (In re Angel G.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 20, 2012
D060150 (Cal. Ct. App. Jan. 20, 2012)

Opinion

D060150 Super. Ct. No. J517514A-B

01-20-2012

In re ANGEL G. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. OSCAR G. et al., Defendants and Appellants.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

APPEALS from a judgment of the Superior Court of San Diego County, Carol Isackson, Judge. Affirmed.

Father Oscar C. and mother Y.G. (the parents) appeal the judgment terminating their parental rights to their sons, Angel G. and J.G. (the children). Oscar contends the juvenile court abused its discretion by denying his modification petition (Welf. & Inst. Code, § 388), which requested the children's return to his custody, and erred by declining to apply the beneficial relationship exception (§ 366.26, subd. (c)(1)(B)(i)) to termination of parental rights. Y.G. joins in those contentions. We affirm.

All further statutory references are to the Welfare and Institutions Code.

Because we conclude Oscar's contentions lack merit, we need not decide whether Y.G. has standing.

BACKGROUND

In June 2009 the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition for Angel, who was not quite one year old. The petition was based on his exposure to domestic violence between the parents. On April 12, Y.G. was arrested for injuring Oscar and damaging his vehicle. She also threatened to harm Angel. On May 28, Oscar was arrested after he pushed Y.G., threatened to strike her and injured her by kicking a child's tricycle which struck her leg. Y.G. was pregnant.

Angel was detained in a foster home. In August 2009 the court entered a true finding on the dependency petition and ordered him placed in foster care. J.G. was born in October, and the Agency filed a petition for him based on the allegations in Angel's petition. J.G. was detained in the same foster home with Angel. In January 2010 the court entered a true finding on J.G.'s petition and ordered him placed in foster care. In August the court terminated reunification services and set a section 366.26 hearing.

In April 2011 Oscar filed his section 388 petition and the court set an evidentiary hearing on the petition. The evidentiary hearing and the section 366.26 hearing took place in June. The children remained in the same foster home. The foster parent wished to adopt them and her home study had been approved.

THE SECTION 388 PETITION

Section 388 allows the juvenile court to modify an order if a parent establishes, by a preponderance of the evidence, that changed circumstances exist and the proposed modification would promote the child's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) We review the denial of a section 388 petition for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)

Oscar's section 388 petition asked the court to vacate the August 2010 orders terminating reunification services and setting the section 366.26 hearing and to return the children to his custody. As changed circumstances, the petition alleged Oscar had completed his reunification plan, including a domestic violence program, therapy, parenting courses and ongoing visitation with the children. The section 388 petition alleged the proposed modification was in the children's best interests because they were "very young and they should have the opportunity to grow up with their birth father who has diligently worked through his plan and has never given up on his goal to reunite with them despite many obstacles." The juvenile court concluded that even if it gave Oscar "the benefit of the doubt and [found] that circumstances ha[d] changed," there was no evidence the proposed modification was in the children's best interests. The court did not abuse its discretion.

Oscar suggests that granting his section 388 petition would have allowed "more and unsupervised visitation." The petition did not ask for more visitation or for unsupervised visitation; it requested only that the children be returned to him.

Oscar presented certificates of completion for a one-year domestic violence program and a parenting program. He presented a letter from his therapist, but did not show he had completed therapy. The letter stated that after 14 therapy sessions, Oscar "has continued to show a dedication and devotion to his own personal exploration and to finding better ways to relate to his family and relationships[;] . . . has shown growth in his own personal awareness[;] . . . has progressed in his willingness and openness to share, and in applying positive changes to his life[;] . . . and continues to embrace responsibility and is committed to building strong, loving relationships." Oscar testified he had not been to therapy for three weeks for financial reasons.
Oscar asserts his domestic violence program was "likely . . . not really geared for his needs as the male victim . . . ." The true findings, however, established that Oscar was a perpetrator as well as a victim. Furthermore, there is no information in the record whether his program was geared toward victims, perpetrators or both.

In August 2010 the parents' unsupervised visitation reverted to supervised visitation after they violated an order that they have no contact with each other in the children's presence. Although Oscar had completed a domestic violence class, the social worker testified it was unclear what Oscar had learned, whether he would implement it,or whether he would resume his relationship with Y.G. when she was released from prison.

Oscar testified he had learned to take time outs and talk things over in a relationship.

Y.G. was incarcerated sometime in the latter part of 2010. The record does not disclose her offense.

Oscar believed the incidents giving rise to this case were caused by Y.G.'s failure to take her medication and her resulting bipolar episode. He testified he had a better understanding of her bipolar disorder and how to deal with it. If she came to see him and had a manic or depressive episode, he would call a special team dedicated to assisting with bipolar issues. Oscar's last contact with Y.G. was through a letter she sent him in December 2010. He replied with words of encouragement. Y.G. had also tried to telephone Oscar. He did not plan to resume their relationship, but knew her release date was August 2011. Oscar testified that before Y.G.'s incarceration, they were friends. He did not believe he needed a restraining order, but if she continued to behave inappropriately he would obtain one.

The record does not reveal whether Oscar replied by letter or by some other means of communication. His own testimony contradicts the premise of his argument that "[t]here was no evidence that [he] had visited [Y.G.] while she was incarcerated, was writing to her, calling her on the telephone or doing anything that suggested a possible reunion."

During visits, Oscar was kind, loving and generally appropriate, but sometimes refused to change diapers and often ignored J.G. J.G. did not know Oscar and sometimes cried when Oscar came close to him or held him. Angel was aggressive and his behavioral problems required close attention.

At one visit, Oscar asked Angel if he wanted to go home with Oscar.

At one visit Oscar greeted Angel but not J.G., and at one visit Oscar bought food for Angel but not for J.G.

Oscar had not shown he could deal with Angel's aggressive behavior. Angel did not exhibit the degree of aggression in the foster home that he exhibited with Oscar, and seemed calmer and more comfortable in the foster home. When the foster parent told Angel not to do something, Angel generally obeyed. Oscar testified that Angel had not seen the domestic violence between Oscar and Y.G., and if Angel had heard anything, it had not affected him.

When Angel slapped Oscar's face, Oscar did nothing, even when the social worker prompted Oscar to tell Angel to stop. Angel also kicked Oscar with no intervention from Oscar, and kicked the social worker. At one visit, Angel spit juice on Oscar twice, and Oscar did nothing until Angel spilled soda on a relative.
Oscar describes Angel's aggression during visits as typical toddler behavior in an inappropriate setting, a fast food restaurant. Oscar agreed to visits at the restaurant, and some visits took place at a park. Moreover, Angel's behavior went beyond normal acting out, continued after the visits and required therapy.
Oscar argues his failure to discipline Angel during visits can be attributed to the scrutiny of the supervising social worker and Oscar's belief "that he was in a 'dammed if you do/damned if you don't ' situation." There is no evidence in the record to support this theory. Oscar also posits that ignoring a child can be an effective way of dealing with misbehavior. While this may be true in some situations, there is no evidence it is a proper reaction to slapping and kicking.

The social worker believed the children would suffer emotionally if removed from their placement. The children were attached to their foster parent, called her "mom" or "mommy" and viewed her as their mother. Oscar and the children, on the other hand, did not have a parent-child relationship, and Angel viewed Oscar as a playmate or friend rather than a parent. Angel seemed to enjoy visits, became excited when he saw Oscar, knew Oscar was his father and called him "dad" or daddy." Neither Angel nor J.G., however, showed sadness or distress when visits ended.

Before a June 2011 visit, Angel said he would rather see a movie than visit Oscar.

Oscar suggests the children were secure in the knowledge there would be another visit soon. An equally reasonable inference is that the children were not attached to Oscar. (See In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)

Because this case was past the reunification phase, the focus was on the children's need for permanency and stability, and there was a rebuttable presumption that it was in their best interests to remain in their foster home. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The court did not abuse its discretion by denying the section 388 petition.

THE BENEFICIAL RELATIONSHIP EXCEPTION

If a dependent child is adoptable, the juvenile court must terminate parental rights at the section 366.26 hearing unless the parent proves the existence of a statutory exception. (§ 366.26, subd. (c)(1); In re Helen W. (2007) 150 Cal.App.4th 71, 80.) One such exception exists if "[t]he 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).) A beneficial relationship is one 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 re Autumn H., supra, 27 Cal.App.4th at p. 575.) If terminating parental rights "would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome . . . ." (Ibid.) The existence of a beneficial relationship is determined by "[t]he 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 . . . ." (Id. at p. 576.) Examining the evidence in the light most favorable to the judgment, we conclude substantial evidence supports the juvenile court's findings that Oscar did not meet his burden of proving the exception applied.

The parents do not contest the adoptability finding.

Oscar sometimes visited the children regularly. The visits, described above, showed that Oscar did not fulfill a parental role for the children. Nearly three-year-old Angel had been out of Oscar's care for two years and one-and-one-half-year-old J.G. had never been in Oscar's care. The children were attached to their foster parent and viewed her as their mother. The social worker believed it would not be detrimental to terminate parental rights.

The juvenile court did not expressly state whether Oscar had maintained regular visitation and contact. The Agency concedes he did.
--------

Substantial evidence supports the conclusion the children's relationship with Oscar did not promote their "well-being . . . to such a degree as to outweigh the well-being [they] would gain" by being adopted. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

DISPOSITION

The judgment is affirmed.

_________________________

BENKE, Acting P. J.

WE CONCUR:

_________________________

O'ROURKE, J.

_________________________

IRION, J.


Summaries of

San Diego Cnty. Health & Human Servs. Agency v. Oscar G. (In re Angel G.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 20, 2012
D060150 (Cal. Ct. App. Jan. 20, 2012)
Case details for

San Diego Cnty. Health & Human Servs. Agency v. Oscar G. (In re Angel G.)

Case Details

Full title:In re ANGEL G. et al., Persons Coming Under the Juvenile Court Law. SAN…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jan 20, 2012

Citations

D060150 (Cal. Ct. App. Jan. 20, 2012)