Opinion
C100158
09-13-2024
In re R.K. et al., Persons Coming Under the Juvenile Court Law. v. S.K., Defendant and Appellant. SIERRA COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Super. Ct. Nos. 22JV0004, 22JV0005
EARL, P. J.
Appellant S.K., father of the minors (father), appeals from the juvenile court's orders issued at the Welfare and Institutions Code section 366.26 hearing establishing legal guardianship as the permanent plan for the minors. (§§ 366.26, 388, 395.) Father claims the court abused its discretion when it denied his request for additional reunification services. (§ 388.) As we explain, father forfeited his right to raise the claim on appeal and, in any event, the claim lacks merit. We will affirm the juvenile court's orders.
Undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
Father and A.W. (mother) have a history of chronic and unresolved substance abuse problems. In August 2022, mother was given a chance to participate in an inpatient drug rehabilitation program where she was allowed to have her children visit. However, shortly after arriving at the facility, mother left the two minors (who were supposed to be in the custody of father) with other clients at the facility and took the minors' one-year-old half sibling with her to obtain and use drugs. The following day, mother tested positive for methamphetamine, fentanyl, and methadone. She was expelled from the treatment program, and warrants were issued for her arrest.
Father is not the biological father of the minors' one-year-old half sibling.
Law enforcement subsequently attempted to arrest mother at the family home. Mother ignored officers' commands and barricaded herself inside the home using the one-year-old half sibling as a shield. After an hour of negotiations, mother finally surrendered and was arrested and taken into custody. Father was also arrested for being under the influence of methamphetamine. The minors and their half sibling were removed and placed with Sierra County Department of Social Services, Children and Family Services (the Department).
At the detention hearing, the juvenile court ordered the minors detained. They were placed with the paternal grandmother and the one-year-old half sibling was placed in a foster home. The court adopted the Department's recommended findings and orders, including that father be provided with reunification services to include alcohol and drug testing, substance abuse treatment, parenting education, and behavioral health services. On December 12, 2022, the court assumed jurisdiction over the minors.
On January 20, 2023, the juvenile court ordered reunification services for father and bypassed mother pursuant to section 361.5, subdivision (b)(10). The court's orders noted this was a case involving a "[c]hild under three years of age on the date of initial removal from the physical custody of the child's parent or guardian, or for a child in a sibling group whose members were removed from parental custody at the same time, and in which one member of the sibling group was under three years of age on the date of initial removal from the physical custody of the child's parent or guardian."
On April 25, 2023, the Department reported that father had been unable to remain sober. After transitioning from an inpatient rehabilitation facility to a recovery house, father tested positive for fentanyl. His behavior during a visit with the minors on April 5, 2023, suggested he was under the influence and the visit was terminated. Father was drug tested and placed back into the inpatient rehabilitation facility. Father had also reportedly disclosed to other residents of the facility that he was "great at faking tests." The Department noted that father was "quickly running out of time" to reunify with the minors and that he had not taken responsibility or shown remorse for his actions leading up to the dependency proceedings. Nonetheless, the Department recommended continued services to father and encouraged him to "seriously engage in what is left of his reunification services."
On June 7, 2023, the Department reported that father completed another 30 days of inpatient treatment before transitioning to a sober living house. Upon completing the inpatient program, he had been able to maintain his sobriety and was searching for employment and stable housing. The minors were still placed with their paternal grandmother, aunt and uncle, and cousins, and were doing well. The minors' half sibling was still in her foster home. Weekly visits between father and the minors were going well. The concurrent plan for the minors, if unable to reunify with father, was to stay with their paternal aunt and uncle in a guardianship or to live together with their half sibling in the foster home in which she was residing.
The Department noted that while father appeared to be abstaining from drug use, there was still a substantial risk if the minors were returned to his care due to his history of chronic substance abuse and his "very short period of sobriety." The Department also noted that father still needed to find gainful employment and stable housing in order to successfully support the minors. Despite that there were very few opportunities for employment or housing in the town, father did not want to move the minors away from their home there. It was noted that, because the minors' half sibling was under three years of age at the time of removal, father had only six months to reunify (§ 361.5, subd. (a)(1)(B) &(C)), a point father "was very aware of," yet he had only had about two months of sobriety. Despite father's recent efforts, the Department reported he was unlikely to reunify if given another six months of services and recommended the juvenile court terminate his reunification services and set a section 366.26 hearing.
Father was present for the six-month review hearing on June 20, 2023. At the conclusion of the hearing, the juvenile court found that while father made progress toward alleviating or mitigating the causes necessitating removal of the minors, he failed to participate regularly and make substantive progress and there was not a substantial probability of return of the minors within six months. Based thereon, the court terminated father's reunification services and set the matter for a selection and implementation hearing (§ 366.26). The clerk of the court sent to father (and mother, who remained incarcerated) the forms necessary to file a notice of intent to file a writ petition and a petition for extraordinary writ.
In early-October 2023, the Department filed a section 366.26 report recommending a permanent plan for the minors of legal guardianship with the current caregivers (the paternal aunt and uncle) based in large part on the strong bond between the minors and father, which rendered it detrimental to terminate parental rights.
At the October 24, 2023, selection and implementation hearing (§ 366.26), the juvenile court informed the parties of its intent to establish legal guardianship as the permanent plan. Father's counsel informed the court that father had been attending and actively participating in an outpatient treatment program since July 2023, attending selfhelp meetings twice a week, and completed a 12-step program while working with a sponsor. Counsel presented letters stating father demonstrated motivation to change, developed a sober network of friends, appeared to be making positive life choices, had been consistently testing negative, showed continued growth, and had gained employment. Counsel also informed the court that father now had an operational vehicle and was looking for affordable housing for himself and the minors.
The juvenile court commended father on taking positive steps towards his sobriety but noted his reunification services had been terminated just four months prior, he was still testing positive for fentanyl as late as May 2023, he was bragging at his sober living house about how good he was at faking his drug tests, and his visits had to be terminated because he was falling asleep during his scheduled time with the minors.
Father asked the juvenile court for "more time," stating he could move into his mother's apartment. The court construed father's request as an "oral motion for a [section] 388 hearing" and summarily denied it finding father "may be changing" but there was no change of circumstances. The court found termination of parental rights would be detrimental to the minors in light of their ongoing relationship with father and found legal guardianship to be the appropriate permanent plan.
Father filed timely notices of appeal from the juvenile court's orders establishing legal guardianship.
DISCUSSION
Father contends the juvenile court abused its discretion when it denied his oral section 388 petition requesting additional reunification services pursuant to section 361.5, subdivision (a)(1)(A). He claims he provided evidence of changed circumstances and that the requested additional services would be in the minors' best interests.
The Department argues father forfeited his right to appeal the termination of his services and, in any event, his claim should be denied because he failed to meet the minimum threshold required for a prima facie case under section 388, and he was not entitled to an additional six months of reunification services under section 361.5, subdivision (a)(1)(A). We agree with the Department on all three counts.
A. Forfeiture of Claim by Father
An order setting a section 366.26 hearing "is not appealable at any time unless all of the following apply: [¶] (A) A petition for extraordinary writ review was filed in a timely manner. [¶] (B) The petition substantively addressed the specific issues to be challenged and supported that challenge by an adequate record. [¶] (C) The petition for extraordinary writ review was summarily denied or otherwise not decided on the merits." (§ 366.26, subd. (l)(1)(A)-(C).) "Failure to file a petition for extraordinary writ review within the period specified by rule, to substantively address the specific issues challenged, or to support that challenge by an adequate record shall preclude subsequent review by appeal of the findings and orders made pursuant to this section." (§ 366.26, subd. (l)(2).) "[A]n appeal from an order denying reunification services, made in conjunction with an order setting a permanency planning hearing, is a nonappealable order." (In re Jennilee T. (1992) 3 Cal.App.4th 212, 217.) "Rather, . . . appellate review to determine if reunification services were improperly refused should be sought by means of an extraordinary writ petition. And this should be accomplished prior to the date the section 366.26 hearing is held, so as to permit the granting of seasonable extraordinary relief." (Id. at p. 218.)
Here, father's reunification services were terminated at the six-month review hearing on June 20, 2023, at which time the juvenile court set the matter for a section 366.26 hearing. The court's findings and orders contained an advisement that, in order to preserve his right to review the order on appeal, father was required to seek an extraordinary writ by filing notice of intent to file a writ petition and a request for the record and a petition for extraordinary writ. The advisement also informed father that notice of intent to file a writ petition "must be filed with the juvenile court clerk within seven days of the date of this hearing." Those requirements were reiterated in the forms mailed to father by the clerk of the court.
The record is devoid of any evidence that father filed the required documents, nor does father claim that he did so. Thus, father's failure to file a petition for extraordinary writ review within the specified period to substantively address the specific issues challenged, or to support that challenge by an adequate record, precludes the instant appeal of the findings and orders included in the June 20, 2023, order setting the section 366.26 hearing. (§ 366.26, subd. (l)(2).) Father's claim is therefore forfeited.
Even assuming father had preserved his right to challenge the termination of his reunification services, his claim nonetheless fails because he failed to meet his burden of proof as to both elements required under section 388.
B. Failure of Prima Facie Case Under Section 388
In order to petition to change or modify a juvenile court order under section 388, a party must factually allege that there are changed circumstances or new evidence to justify the requested order, and that the requested order would serve the minor's best interests. (In re Daijah T. (2000) 83 Cal.App.4th 666, 672.) The petitioner has the burden of proof on both points by a preponderance of the evidence. (Cal. Rules of Court, rule 5.570(h)(1)(D).)
Further rule references are to the California Rules of Court.
To decide whether a parent has met his or her burden under section 388, the juvenile court must consider such factors as the seriousness of the problem that led to the dependency, and the reasons for the continuation of the problem; the degree to which the problem may be and has been removed or ameliorated; and the strength of the relative bonds between the dependent child and the child's parents or caretakers. However, this list is not exhaustive. (In re B.D. (2008) 159 Cal.App.4th 1218, 1229.)
The child's best interests "are not to further delay permanency and stability in favor of rewarding" the parent for his or her "hard work and efforts to reunify." (In re J.C. (2014) 226 Cal.App.4th 503, 527.) "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." (In re Casey D. (1999) 70 Cal.App.4th 38, 47, disapproved on other grounds in In re Caden C. (2021) 11 Cal.5th 614, 63, fn. 5.) The petition must be liberally construed in favor of its sufficiency. (Rule 5.570(a).) Nonetheless, if the juvenile court finds that even so construed the petition fails to make a prima facie case as to either or both tests under section 388, the court may deny the petition without an evidentiary hearing. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413; In re Zachary G. (1999) 77 Cal.App.4th 799, 806; see rule 5.570(d).) We review the denial of a section 388 petition for abuse of discretion. (In re S.R. (2009) 173 Cal.App.4th 864, 870; In re J.T. (2014) 228 Cal.App.4th 953, 965.)
The juvenile court announced its tentative ruling regarding a permanent plan of legal guardianship. Father's counsel informed the court of father's participation in outpatient treatment, self-help meetings, and a 12-step program, presented letters attesting to changes and growth made by father, and noted father had a vehicle and was searching for housing for himself and the minors. Father requested "more time" and stated he could move into his mother's apartment.
The juvenile court denied father's oral section 388 petition on the grounds that father's circumstances were changing but had not yet changed. Father claims he had completed a substance abuse program, maintained sobriety, elevated to a supervisor position at his job, and had appropriate housing. However, the court noted that father's reunification services had been terminated just four months prior because: father was still testing positive for fentanyl as recently as May 2023, he was bragging at his sober living house about how good he was at faking his drug tests, he was falling asleep during visits with the minors, and he had no job and no place to live. The court opined that father was still in the early stages of his sobriety. And, while father did provide evidence of employment beginning in mid-July 2023, his claim that he had appropriate housing is contradicted by his attorney's statement at the hearing that he was still "in the process of obtaining" appropriate housing "for himself and potentially his kids." In that regard, the court found father was not yet in a place where he was supporting himself and able to provide a home for the minors or ready to accept the responsibility of parenting the minors.
With respect to the second prong of section 388 - whether the requested change is in the minors' best interests - neither father nor his counsel made any mention of how providing father with six additional months of services would be in the minors' best interests. As the juvenile court remarked, father's services had been terminated and the focus was no longer on reunification but rather on permanency for the minors. In that regard, the evidence showed the minors were doing well with their caretakers and were doing well in school and therapy. Father's request for "more time," accompanied by nothing more than the statement that he could possibly move into the paternal grandmother's apartment, met neither the changed circumstances prong nor the best interests of the minors prong of section 388. The comments made by father's counsel did not rectify that problem. Summary denial of father's oral section 388 petition was not an abuse of discretion.
Father's claim also fails because he was not entitled to an additional six months of reunification services under section 361.5, subdivision (a)(1)(A).
C. Entitlement to Only Six Months of Services
Father claims that by granting his section 388 petition, the juvenile court "would have cured [its] legal error in depriving [him] of his statutorily entitled 12 months of reunification services with his children over three years old under section 361.5, subdivision (a)(1)(A)," rather than the six months he received before his services were terminated at the six-month review hearing. Father's claim lacks merit.
Section 361.5, subdivision (a)(1) provides that, when a child is under the age of three at the time of initial removal from that child's parent, reunification services for that child "shall be provided for a period of 6 months . . . but no longer than 12 months from the date the child entered foster care ...." (§ 361.5, subd. (a)(1)(B).) That section further provides that, "[e]xcept as otherwise provided in subparagraph (C)," when a child is three years of age or older at the time of initial removal from that child's parent, reunification services for that child "shall be provided . . . 12 months after the date the child entered foster care ...." (§ 361.5, subd. (a)(1)(A).) Subdivision (a)(1)(C) provides as follows: "For the purpose of placing and maintaining a sibling group together in a permanent home should reunification efforts fail, for a child in a sibling group whose members were removed from parental custody at the same time, and in which one member of the sibling group was under three years of age on the date of initial removal from the physical custody of the child's parent or guardian, court-ordered services for some or all of the sibling group may be limited as set forth in subparagraph (B). For the purposes of this paragraph, 'a sibling group' shall mean two or more children who are related to each other as full or half siblings." (§ 361.5, subd. (a)(1)(C).)
Father claims the minors were never placed with, and were on a different permanency track from, their half sibling and were therefore not a sibling group for purposes of section 361.5, subdivision (a)(1)(C), such that services for all three children would be limited to six months. Father misinterprets the statute.
Section 361.5, subdivision (a)(1)(C) expressly applies where, as here, the minors and their one-year-old half sibling were removed from the custody of their parent (mother) "at the same time." The statute does not require that the minors and their half sibling be placed together during the reunification period. Had the Legislature intended to require that all three children be placed together throughout the reunification period pursuant to section 361.5, subdivision (a)(1), it could have easily said so. It did not, and we decline to so limit the statute. (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 545 [reviewing court "may not broaden or narrow the scope of the [statutory] provision by reading into it language that does not appear in it or reading out of it language that does"]; In re Hoddinott (1996) 12 Cal.4th 992, 1002 [court may not rewrite a statute to conform to an assumed intention that does not appear from its language].) The plain language of the statute states that it applies "[f]or the purpose of placing and maintaining a sibling group together in a permanent home should reunification efforts fail ...." (§ 361.5, subd. (a)(1)(C), italics added.)
Here, the minors and their half sibling were initially placed with the Department. Following detention, the minors were placed with their paternal grandmother and paternal aunt and uncle, and the half sibling was placed in a foster home. As of the six-month review hearing on June 20, 2023, the minors were still in their respective placements. At that time, according to the record, the concurrent plan for the minors if reunification failed was to stay with their paternal aunt and uncle in a guardianship or to live with their half sibling in her foster home. That is, the permanent plan was not yet determined and there was at least a possibility that the minors and their half sibling would be placed together in a permanent home. Therefore, the juvenile court properly applied section 361.5, subdivision (a)(1)(C) when it terminated father's reunification services after six months.
DISPOSITION
The juvenile court's orders are affirmed.
We concur: ROBIE, J., RENNER, J.