Opinion
E074393
03-12-2020
S.O, Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Law Offices of Valerie Ross and Valerie Ross for Petitioner. No appearance for Respondent. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J261985) OPINION ORIGINAL PROCEEDINGS; petition for extraordinary writ. Erin K. Alexander, Judge. Petition denied. Law Offices of Valerie Ross and Valerie Ross for Petitioner. No appearance for Respondent. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County Counsel, for Real Party in Interest.
Petitioner S.O. (father) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, challenging a juvenile court's order setting a Welfare and Institutions Code section 366.26 hearing regarding his son, S.O., Jr. (the child). Father requests a stay of the section 366.26 hearing, pending the granting or denial of this writ petition. We deny the request for a stay and the writ petition.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
On September 9, 2015, the San Bernardino County Children and Family Services (CFS) filed a section 300 petition on behalf of the child, who was six years old at the time. The petition alleged the child came within subdivisions (b) (failure to protect) and (g) (no provision for support). It alleged that father left the child in the care and custody of the child's mother (mother), he had an extensive criminal history, he had a substance abuse problem, and he had been absent for most of the child's life.
Mother is not a party to this writ. Thus, this opinion will focus on the allegations concerning father. --------
The social worker filed a detention report stating that a referral was received alleging general neglect and physical abuse of the child and his five half siblings (collectively, the children). The reporting party stated that mother had engaged in domestic violence in the children's presence, was using methamphetamine, and pinched the children as a form of discipline. Father did not live with mother and the children, but lived in Los Angeles.
The court held a detention hearing on September 10, 2015. Father was present, represented by counsel. He submitted as to the detention, but asked to be assessed for placement of the child. The court detained the child in the care of his maternal great aunt (MGA) and ordered supervised visitation once a week.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on October 8, 2015, recommending that the court sustain the petition, find father to be the presumed father, declare the child a dependent, remove him from parental custody, and order reunification services. The social worker reported that father's criminal history included convictions for vehicle theft, possession of a controlled substance while armed, driving under the influence, and battery. He had many aliases, social security numbers, and birthdates. Mother reported that father had been in prison a lot. Whenever he was released from custody, he would buy the child needed items when he could. Father took the child for a couple of holidays and one or two summers.
Father admitted to the social worker that he knew mother was "a druggie," yet he did not file for a custody order to protect the child because he believed doing so would be more harmful to his son.
The court held a jurisdiction/disposition hearing on November 24, 2015. It sustained the petition, declared the child a dependent, found father to be the presumed father, and ordered him to participate in reunification services. His case plan required him to participate in counseling, complete an anger management program, a parenting program, and undergo substance abuse testing. The court ordered the child maintained in the home of the MGA.
Six-month Status Review
On April 28, 2016, the social worker filed a six-month status review report recommending that father's services be terminated. Father had not contacted the social worker in the past six months to cooperate with participating in reunification services or having visitation. The social worker further reported that the child had adjusted quickly to his placement with the MGA. He was living in her home with his five half siblings, and they all appeared very happy in their placement.
The court held a six-month review hearing on July 5, 2016. It found that father had been provided with reasonable services, but failed to participate regularly and make substantive progress on his case plan. The court terminated father's services.
Twelve-month Status Review
The social worker filed a 12-month status review report on November 10, 2016, recommending that the court terminate mother's reunification services and set a section 366.26 hearing. The social worker reported that she tried to contact father as his last known number, to no avail. According to the Los Angeles County Sheriff's Department Inmate Locator, father had been incarcerated since October 19, 2015, with a projected release date of April 9, 2017. He had not had any visitation or made any contact with the child. The social worker further reported that the child was thriving in his placement with the MGA. She was meeting his needs and agreed to go forward with legal guardianship.
The court held a hearing on November 14, 2016, terminated all reunification services, and set a section 366.26 hearing.
Section 366.26
The social worker filed a section 366.26 hearing report on February 23, 2017, recommending that the court appoint the MGA as the child's legal guardian. She preferred legal guardianship rather than adoption due to personal, familial, and cultural considerations. Her home was inspected and approved by the relative approval unit. The social worker opined that legal guardianship was the most appropriate plan, and the MGA was the most suited to be the child's legal guardian since she had demonstrated a commitment to providing a stable home for him and his half siblings. The social worker recommended that decisions regarding visitation with father be made by the legal guardian, with the child's best interests in mind.
The court held a section 366.26 hearing on March 7, 2017 and appointed the MGA legal guardian of the child. It then dismissed the dependency.
Section 388 Petitions
Approximately two years later, father filed a section 388 petition, requesting the court to reverse the order appointing the MGA legal guardian and reopen the dependency to determine if he could have full custody. As to changed circumstances, he alleged that he had completed drug/alcohol classes, anger management classes, and parenting classes. He further alleged that he had a stable residence, he could accept financial responsibility, and that the MGA had been denying him visitation. As to best interests, father alleged that he was the child's father, he owned a home that would be permanent for the child, and the child had siblings and a stepmother in the home. On March 28, 2019, the court summarily denied the petition because the proposed order did not promote the best interests of the child.
On April 24, 2019, the MGA filed a section 388 petition, asking the court to terminate parental rights and allow her to adopt the child. As to changed circumstances, she alleged that father had shown violent behavior in front of the child, which caused the child to not want to have any communication with him. As to best interests, she alleged that the child had lived with her since 2015, she had provided him a stable home, and he asked her to adopt him. The court ordered CFS to file a reply and set a hearing.
On April 29, 2019, father filed a second section 388 petition asking the court to reverse the legal guardianship order, to place the child with him, and to amend its visitation order to him having unsupervised visits. As to changed circumstances, father alleged he had completed all classes asked of him, and he had been denied visits. As to best interests, he alleged that he could be a positive role model, he wanted the opportunity to mend his relationship with the child, and he and his wife could provide the child with financial, mental, and moral support. On March 28, 2019, the court summarily denied the petition because the proposed order did not state a change of circumstances and did not promote the best interests of the child. The court ordered all prior visitation orders to remain in effect.
On May 15, 2019, father filed a third section 388 petition, requesting the court to terminate the guardianship and grant him physical custody of the child and joint legal custody to him and mother. As to changed circumstances, he alleged that he had completed what would have been his case plan, and that after his release from prison two years ago, the MGA allowed him frequent contact with child, including visits nearly every weekend, and visits for the majority of the time of school vacations. Furthermore, father owned a home and had a steady job. He alleged that he and the MGA had a recent breakdown in their relationship, which caused her to stop allowing visits, when he voiced concerns about her new boyfriend, who was incarcerated on a conviction "involving violence." Allegedly, her friend was to be released soon, and she intended to move in with him. As to best interests, father alleged that he and the child had developed a close relationship during the past two years, and the child had spent the majority of the time with him.
On May 22, 2019, the social worker filed a response to the section 388 petition, recommending adoption by the MGA. The social worker interviewed the child, who said he was happy living with the MGA and did not want to live with father. The child said that when he visited father, father would just watch television. The child described an incident in December when father threw things and tried to punch his stepdaughter. The child said he did not feel safe and did not want to visit father. He said father tended to drink alcohol and have physical fights with his wife. He told the MGA and his teacher that he was afraid of father's hostile behavior; however, he felt safe with the MGA and said she was his "everything." He told the social worker he wanted to be adopted by the MGA.
The social worker interviewed the MGA and asked about her male friend who was incarcerated. The MGA said he was a friend from junior high school, and he was not her boyfriend. She said she allowed him to talk to the child and send him birthday cards. When the social worker told her not to let her friend communicate with the child, she agreed. Father reported that the MGA was going to marry her friend and showed the social worker the MGA's post on Facebook saying as much. The social worker found information from the California Department of Corrections and Rehabilitation stating that the MGA's friend had a tentative date for a parole suitability hearing in November 2028.
The social worker recommended adoption by the MGA, with the stipulation that she not have her male friend have contact with the child. She also recommended no visitation with father. The court set a hearing.
On June 24, 2019, the social worker interviewed the MGA again. The MGA said she was not married or engaged to her friend, and she last spoke with him one month ago and was no longer in contact with him. The social worker further reported that father was having supervised visits every Friday. The social worker interviewed the child on June 24, 2019, and said he agreed to have visits with father, just so he could see his brothers. However, he no longer wanted to visit father. The social worker recommended that the MGA's section 388 petition for adoption be granted.
The court held the hearing on June 26, 2019. At the outset, the court said its tentative decision was to keep the guardianship open and deny the MGA's request for adoption at that time. The child testified that his last visit with father was the previous Friday and that he did not want to continue the visits because he did not feel safe with him. The child testified that when he used to go to father's house, father had parties, drank a lot, got in fights, and started yelling and breaking things. He said he had seen his father drunk many times. After his testimony, the court stated its belief that the child had been coached by the MGA on what to say. It further stated that it did not agree with adoption by the MGA because it felt she had misled the court on things "related to the relationship." The court said it would not return the child to father's custody, but thought the child would benefit from continued supervised visits. Thus, the court denied both the MGA's and father's section 388 petitions. It then reinstated the dependency and continued the matter to December 20, 2019, with the permanent plan of legal guardianship. The court also ordered father to have supervised visitation, once a week, for two hours.
Section 366.3
The social worker filed a section 366.3 postpermanent plan review report on December 16, 2019. The social worker reported that father cancelled three of his visits in June and July 2019, because he was either on vacation or was working in the Sacramento area. The MGA informed the social worker that father had not visited the child for the three weeks prior to the writing of the report.
The social worker interviewed the child on November 25, 2019. The child again said he wanted to remain in the MGA's home and did not want to live with father. The social worker reported that the MGA was meeting the child's needs in a safe and supportive manner, and she appeared to have the child's best interests at heart. The MGA said she wanted to adopt the child because she loved him and recognized he needed a greater sense of permanency. The social worker recommended that the court set a section 366.26 hearing, terminate parental rights, and order adoption with the MGA as the permanent plan.
On December 16, 2019, the social worker filed a memorandum providing additional information to the court. The child had expressed his disappointment when visits with father did not occur and said he felt let down by father. The social worker informed the court that father had made it clear that he was not willing to engage in services to see if he could obtain custody of the child.
The court held a hearing on December 20, 2019. Father's counsel objected to the setting of a section 366.26 hearing. Counsel for the child asked that the court follow the recommendation to set the section 366.26 hearing and also requested a reduction in father's visits, since he had been inconsistent. County counsel added that there was a point when father was visiting regularly, but during the last review period, there had been no regular visitation. The court found it in the child's best interests to consider termination of parental rights and set a section 366.26 hearing for April 20, 2020, with adoption as the permanent plan.
ANALYSIS
The Court Properly Set a Section 366.26 Hearing
Father initially claims the court set a section 366.26 hearing "on the disputed claim that [he] simply didn't show up for some visits." Then he argues the court set the hearing "for no real reason," pointing out that it made "no findings as to detriment or anything else." Father requests this court to direct the juvenile court to vacate the section 366.26 hearing and either order reunification services to be provided, return the child to him, or grant him "extended visitation in anticipation of an eventual return" of the child to his custody. We conclude that father's claims are meritless.
"If, following the establishment of a legal guardianship, the county welfare department becomes aware of changed circumstances that indicate adoption . . . may be an appropriate plan for the child, the department shall so notify the court. The court may vacate its previous order dismissing dependency jurisdiction over the child and order that a hearing be held pursuant to Section 366.26 to determine whether adoption or continued legal guardianship is the most appropriate plan for the child." (§ 366.3, subd. (c).)
To the extent father argues the court set the section 366.26 hearing on the "disputed claim" he did not show up for some visits, such contention is without merit. The court ordered father to have supervised visitation once a week. Prior to the June 26, 2019 hearing, the social worker reported that father was having weekly visits. However, the undisputed evidence showed that father cancelled visits in June and July 2019, and did not visit the child for three weeks in November and December 2019. The social worker noted that CFS and the MGA had been diligent in attempting to work with him on visits; nonetheless, he became "very inconsistent" in visiting the child. Moreover, the child expressed that he felt let down and was disappointed when father did not visit. The social worker observed that father had "a long-standing pattern" of not taking into consideration how his son might feel about him not visiting.
To the extent father claims the court set the section 366.26 hearing "for no real reason" and that it did not make any findings on detriment, we note that the court previously found he was provided with reasonable services but failed to participate, and return of the child to his custody would create a substantial risk of detriment. We also note the social worker's report on December 16, 2019, stated that father made it clear he was not willing to engage in services to try and obtain custody of the child.
We recognize that the court previously denied the MGA's request to adopt the child because it believed she had coached him on what to say and misled it regarding the relationship with her male friend. However, in view of the evidence before it at the review hearing on December 20, 2019, it appears the court changed its mind. The record shows that the child again told the social worker he wanted to remain in the MGA's home and did not want to live with father. He was 10 years old and had been living with the MGA for four years, by that time. The social worker reported that the MGA wanted to adopt the child because she loved him and recognized his need for permanency. The social worker opined that she was meeting his needs and appeared to have his best interests at heart. In light of father's inconsistent visitation and his statement that he was unwilling to engage in services to gain custody, the social worker recommended that the court set a section 366.26 hearing and terminate parental rights, with the permanent plan of adoption by the MGA. We note that, at the review hearing on December 20, 2019, counsel for both the MGA and the child agreed with the request to set a section 366.26 hearing.
We conclude that father's claims are meritless, and the court properly set a section 366.26 hearing.
DISPOSITION
The writ petition is denied. The request for a stay of the section 366.26 hearing is also denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. CODRINGTON
J.