Opinion
D074118
10-04-2018
In re R.C. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. Michael C., Defendant and Appellant.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent. Neale B. Gold, under appointment by the Court of Appeal, for minor R.C. Valerie Lankford, under appointment by the Court of Appeal, for minor J.C.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. EJ4196 A&B) APPEAL from order of the Superior Court of San Diego County, Gary M. Bubis, Judge. Reversed and remanded with directions. Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent. Neale B. Gold, under appointment by the Court of Appeal, for minor R.C. Valerie Lankford, under appointment by the Court of Appeal, for minor J.C.
Michael C. (Father) appeals from a juvenile court order denying his Welfare and Institutions Code section 388 petition to grant reunification services for his minor son, J.C., after he previously waived services. J.C. supports reunification. Father is not pursuing reunification services for his daughter, R.C., and the minors' Mother, M.O., has not appealed; we address R.C. and Mother as needed to provide context for Father's appeal. We conclude the court abused its discretion by failing to consider J.C.'s changed circumstances, and we reverse.
Undesignated statutory references are to the Welfare and Institutions Code.
Counsel for R.C. contends it is appropriate to dismiss the appeal as to her or deem it moot. We agree the issue is moot. (See Building a Better Redondo, Inc. v. City of Redondo Beach (2012) 203 Cal.App.4th 852, 866.)
FACTUAL AND PROCEDURAL BACKGROUND
A. Detention, Jurisdiction, and Disposition
The family lived in Texas, before Father moved to San Diego and Mother left the minors with him in July 2017. R.C. was 15 and J.C. was 12. When they enrolled in school in September 2017, the school discovered a Texas protective order precluding contact with Father. R.C. and J.C. were brought into protective custody.
The Agency reports use the term "RO" (restraining order), but the order was titled "protective order." For purposes of clarity, we use the latter.
The Agency filed petitions on the minors' behalf. The petitions indicated Father broke R.C.'s arm or shoulder, was incarcerated for child abuse, and an order was put into place protecting the minors from Father. They further indicated Mother left the minors in his care, in violation of the protective order. J.C.'s petition alleged Father had not fully addressed through services the protective issues relating to his abuse of R.C., and there was substantial risk J.C. would suffer serious, nonaccidental physical harm from his parent.
According to the detention report, the family had child welfare history over a number of years, which included allegations of domestic violence and that the minors expressed fear of Father. Mother obtained prior protective orders for her and the minors in 2006 and 2013. Father's criminal history included arrests for battery and corporal injury on a spouse or cohabitant.
With respect to R.C.'s injury, R.C. reported Father was intoxicated, and "body slammed [her] to the ground and [her] shoulder broke." R.C. stated this was the first time Father injured her, noting that when younger, they would receive "whoppins" or spankings, but " 'nothing like that.' " Father maintained it was an accident that occurred while he was trying to physically discipline her. He spent approximately 15 months in jail for felony child abuse.
Father indicated the current protective order was due to on-going domestic violence and the incident with R.C. A copy of the protective order was attached to the detention report, and reflected it was set to expire on February 2, 2018. Father explained Mother offered to allow the minors to reside with him, he agreed, and "mistakenly did not take into consideration" the protective order. The paternal grandmother reported Father and the children had been living with her, and she assumed the protective order had been dropped.
The juvenile court detained the minors, and they were placed with a paternal aunt, Jessica D.
The Agency provided its jurisdiction and disposition report in October 2017. Father reported he took classes while in custody, and "completed the POWER [p]rogram which taught him some healthy methods of handling anger and substance abuse treatment." He also reported he had domestic violence treatment through his prior arrests. He indicated the minors were not safe with Mother and he did what he felt was necessary. Father expressed willingness to take part in reunification services, and would accept referrals to domestic violence and child abuse offender classes. The Agency submitted a referral for Father to attend a 52-week Child Abuse Offender's Group, pending funding.
According to a social worker, J.C. wanted the court to know he was " 'very upset' " about the situation and wanted to return to living with Father. He felt safe with Father, and described changes he saw in him (and R.C. expressed similar feelings). J.C. was willing to comply with the protective order as he "wish[ed] to avoid negative consequences" for himself and Father, but hoped the order could be modified to allow contact or placement with Father. He expressed being happy in his placement with the paternal aunt.
The Agency recommended the minors be recognized as dependents, while the parents participate in reunification services.
A November addendum report attached the case plans. Father's case plan included a 52-week child abuse group (as well as individual therapy, if recommended by a service provider); participating in a domestic violence program; and substance abuse testing. J.C. remained happy in the placement with the paternal aunt.
The report indicated the social worker received notice that Father's referral for child abuse treatment was accepted, the staff tried to contact him, and they were unable to reach him. Father denied anyone contacted him, and expressed he needed a bus pass (which the worker later obtained).
At the jurisdiction and disposition hearing later that month, the court found the petition allegations true, took jurisdiction, and removed custody. Father's counsel indicated he "potentially may be doing a waiver" of services and she needed to discuss that with him. There was a recess, and when proceedings resumed, the court stated it had received Father's waiver form. The following exchange occurred:
"THE COURT: [S]ir, have you had the opportunity to read the form?
"THE FATHER: Yes, I have.
"[¶] . . . [¶]
"THE COURT: By initialing and signing this document, are you telling the court that you're fully aware that you have the right to receive reunification services to reunify with your children, and you're giving up that right?
"THE FATHER: That's what the paperwork says, yes.
"THE COURT: And do you fully understand that if I accept this waiver that you will not be able to come back in and say, 'Hey, I changed
my mind. I want reunification services'? This is pretty much an irrevocable waiver; do you understand that?The court then explained that if both parents waived services, a hearing would be set to choose a permanent plan, which could include termination of parental rights and adoption. Father stated he understood. The court "found by clear and convincing evidence that [Father] knowingly and intelligently waive[d] his reunification services . . . ." The court later ordered reunification services for Mother.
"THE FATHER: Yes."
B. Review Hearing and Section 388 Petition
In late April 2018, the Agency provided its report for the six-month review hearing. After the protective order expired, Father began supervised visitation with J.C. at the paternal grandmother's house.
In February 2018, the minors were moved to their paternal great-aunt and great-uncle, who were willing to be a permanent placement if J.C. chose to comply with their rules. J.C. was having difficulty in the placement; "ha[d] been vocal . . . that he [did] not wish to live . . . with these relatives"; and "often [left] to the paternal grandmother's home." Both J.C. and the paternal relatives had been informed about the importance of J.C. being in an approved home, but he "continue[d] to stay out of the . . . home, refusing to return no matter the circumstance." J.C. "expressed that he would be most successful in the home of his paternal grandmother or [Father]." The paternal grandmother was willing to be a concurrent placement, and started the process to be a placement option.
On April 10, Father contacted the Agency and indicated he was interested in reunification services. He was provided with his attorney's information and advised to attend the hearing to make his request.
The Agency found that "[d]uring this review period, the parents have not participated in any services set forth by the Agency," and there was "little to no contact" with them. It recommended a 366.26 hearing be ordered, and later filed a section 388 petition to terminate Mother's services.
The Court Appointed Special Advocate (CASA) provided a report in May 2018. The great-aunt was not willing to assume guardianship or pursue adoption. J.C. expressed that he enjoyed living with his grandmother much more than his great-aunt and great-uncle, he wanted to be placed there, and he had been staying overnight. The CASA noted Father indicated a desire to reunify with J.C., and she was hopeful he petitioned the court for reunification services.
In early May, J.C. was moved to Polinsky Children's Center (PCC), because he was refusing to return to his placement and was going to the paternal grandmother's home, where Father was staying.
On May 24, Father filed a section 388 petition to change the order denying reunification services based on section 361.5, subdivision (b)(14) (i.e., waiver). He stated that at the time he waived reunification services, the protective order did not permit visitation with the minors. He explained he came forward once the protective order expired, "demonstrating his commitment to acting as a father," and that J.C. continued to visit with him. The record contained documents reflecting Father attended domestic violence counseling from early April to early July 2017, and began counseling again in May 2018. It also contained a completion certificate for the POWER program. Additionally, the record showed that J.C. had been placed with a paternal uncle, Andre D.
A minute order reflects "DV and parenting documents" were filed. Father's counseling and POWER program may have encompassed parenting skills, but the documents do not appear to reflect this.
On May 24, the court continued Father's section 388 petition. The court asked everyone to read In re Cynthia C. (1999) 72 Cal.App.4th 1196 (Cynthia C.), stating "on that bas[is] alone [Father] doesn't have a right to reinstate reunification services." The court explained, in part: "The evidence demonstrated his appreciation of what he was doing. He simply changed his mind. When visitation did start after the [protective order] was lifted, that was back in February and it is now almost June, he didn't bring this before this time." The court also stated: "Minor's counsel may want services but maybe there is another way to get them."
In June 2018, the juvenile court heard Father's section 388 petition. J.C. joined Father's request for reunification services. J.C.'s counsel explained J.C. believed Father had made a change, and agreed it was in his best interests for Father to receive services. She further explained J.C. had been staying with the paternal grandmother with Father; "[t]hey . . . essentially reestablished a relationship to some extent; and he "would like to develop a relationship with [Father]." County counsel argued Father appeared to simply change his mind when the protective order expired and "during that time [they] did not have any indication that he was participating in any programs."
The juvenile court indicated it "read and considered the entire file." Its order stated: "[T]he Court does not find that there has been a change of circumstances. Although the request may be in the best interest of the minor, the Court is unable to make the two-prong finding of change of circumstances and best interest." At the hearing, the court explained, "[b]ased on the Cynthia C. case I couldn't make that finding . . . . [T]here [are] no facts to support a change of circumstances outside of the fact that [Father] simply changed his mind." The court noted "[t]here are other avenues to respond to [J.C.]'s requests that can be explored by the Agency." The court gave the social worker discretion to lift supervision of visits, allow overnight visits with 48 hours' notice to minor's counsel, and begin a 60-day trial visit upon concurrence of minor's counsel. Father timely appealed.
DISCUSSION
A. Applicable 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." (In re A.A. (2012) 203 Cal.App.4th 597, 611 (A.A.); In re Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G.) ["prima facie showing of both elements" needed for evidentiary hearing on petition]; see In re Marilyn H. (1993) 5 Cal.4th 295, 309 ["Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability."]; ibid. ["Section 388 provides the 'escape mechanism' . . . to allow the court to consider new information."].)
"Whether the juvenile court should modify a previously made order rests within its discretion, and its determination may not be disturbed unless there has been a clear abuse of discretion." (In re J.C. (2014) 226 Cal.App.4th 503, 525.) "While the abuse of discretion standard gives the trial court substantial latitude, '[t]he scope of discretion always resides in the particular law being applied, i.e., in the "legal principles governing the subject of [the] action . . . ." Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such an action "abuse" of discretion.' " (In re Alayah J. (2017) 9 Cal.App.5th 469, 478-479.)
B. Analysis
The juvenile court found Father did not establish changed circumstances, because he knowingly waived reunification services and simply changed his mind, citing Cynthia C. Although we agree Father's waiver was valid, the court abused its discretion by failing to consider whether the changed circumstances with respect to J.C. could support relief from that waiver.
As an initial matter, the juvenile court properly found Father's waiver was knowing and intelligent, as the statutory requirements for a waiver were satisfied. There is also evidence in the record to support the court's finding that Father changed his mind. He was willing to participate in reunification services, the Agency developed a case plan, and the protective order was set to expire in under three months (at which point visitation would be possible). Father nevertheless waived services. After the protective order was lifted, he began visitation, but still did not pursue services for months. The court could reasonably conclude he had changed his mind.
"Reunification services need not be provided to a parent . . . described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] . . . [¶] (14) (A) That the parent . . . of the child has advised the court that he or she is not interested in receiving family maintenance or family reunification services or having the child returned to or placed in his or her custody and does not wish to receive family maintenance or reunification services. [¶] (B) The parent . . . shall be represented by counsel and shall execute a waiver of services form to be adopted by the Judicial Council. The court shall advise the parent . . . of any right to services and of the possible consequences of a waiver of services, including the termination of parental rights and placement of the child for adoption. The court shall not accept the waiver of services unless it states on the record its finding the parent . . . has knowingly and intelligently waived the right to services." (§ 361.5, subd. (b)(14).)
However, the juvenile court's inquiry into changed circumstances should not have ended there. J.C.'s circumstances had changed significantly since Father gave his waiver in November 2017. (See In re Mickel O. (2011) 197 Cal.App.4th 586, 616 ["In considering whether the [section 388] petitioner has made the requisite showing, the juvenile court may consider the entire factual and procedural history of the case."]; cf. In re Patrick S. (2013) 218 Cal.App.4th 1254, 1265 [teenager "was entitled to have his wishes considered," while not a deciding factor for placement].) At the time Father waived services, the protective order was in place; J.C. was willing to comply with the order (and aware that not doing so could negatively impact Father); and he was content in his placement with the paternal aunt. By May 2017, when Father sought reunification services, the protective order had expired and visitation had commenced; J.C. wanted to live with his grandmother or Father; and he was doing poorly in his placement with his great-aunt and great-uncle. Further, he kept leaving that placement to stay with the paternal grandmother, where Father resided. Thus, J.C. was not only establishing a relationship with Father, but effectively trying to live with him.
The juvenile court was aware of J.C.'s changed circumstances and desire for reunification, as evidenced by its comments at the May 24 and June 7 hearings that there may be another way to get services and to respond to J.C.'s requests. The court also gave the Agency discretion to expand visitation. But there is no indication the court took these changes into consideration in evaluating whether reunification services were warranted, notwithstanding Father's waiver. Rather, the court's comments regarding Cynthia C. suggest it assumed Father's valid waiver was dispositive. Cynthia C. does not support that conclusion.
There, the minor was a dependent child in parental custody. (Cynthia C., supra, 72 Cal.App.4th at p. 1198.) The mother asked for the minor to be removed, and offered to relinquish her for adoption. (Id. at pp. 1198-1199.) She waived services in September 1998, and the juvenile court concluded the waiver was knowing and intelligent. In January 1999, the mother wanted to withdraw her waiver. She presented no evidence it was mistaken or coerced (stating she changed her mind), and the minor was doing well in her prospective adoptive home. (Ibid.) The court denied the mother's request, and the Court of Appeal denied writ relief. (Id. at pp. 1200-1201.) It explained:
"There is no provision in the code or the Rules of Court for withdrawal of a waiver. [Citations.] Nor have we found any authority discussing whether a court may or should address a request to withdraw a waiver of reunification services.
Surely that would be permissible in appropriate cases where the requirements of the statute were not satisfied or a parent was coerced or misled into waiving her rights. Further, when a parent has an immediate change of heart . . . , relief might be appropriate. [¶] In this case, however, . . . . [n]o evidence emerged demonstrating she was misled, coerced, or confused . . . . To the contrary, all the evidence demonstrated her appreciation of what she was doing and that . . . she simply changed her mind." (Id. at pp. 1200-1201.)
Although Cynthia C. found relief from a waiver unwarranted under the circumstances (which are vastly different than those before us), it recognized certain situations may support such relief. We agree. Here, J.C.'s situation changed significantly between when Father waived services and when he later sought them. The juvenile court should have considered those changes, in determining whether relief from the waiver was warranted.
Father contends Cynthia C. does not render a waiver irrevocable, and suggests parents can change their minds. He cites no authority for this position, and it is contrary to the principle that a parent may not unduly delay seeking reunification. (Cf. Los Angeles County Dept. of Children etc. Services v. Superior Court (1997) 60 Cal.App.4th 1088, 1092-1093.) It was J.C.'s circumstances that warranted further consideration of services here, not simply Father's change of mind following expiration of the protective order. We note the Agency contends J.C. had mental health concerns that Father was not aware of, and which supported a move to permanency planning. On remand, the juvenile court can evaluate all pertinent considerations regarding J.C. --------
Finally, Father makes several arguments regarding J.C.'s best interests, contending they "override any other consideration"; the juvenile court "conceded" the issue; and J.C. was not going to be adopted and deserved a chance to reunify. To the extent Father wants us to decide the best interests issue (and treat it as dispositive), we decline. He had to establish both that there were changed circumstances and that the relief was in J.C.'s best interests. (A.A., supra, 203 Cal.App.4th at pp. 611; In re Zachary G., supra, 77 Cal.App.4th at p. 806.) The juvenile court stated Father's request "may be" in J.C.'s best interests, and we understand the court to mean it did not need to decide the issue. On remand, the juvenile court can address both changed circumstances and best interests, with due consideration for J.C.'s circumstances. In turn, we reject Father's request for instructions to issue an order granting his petition.
We conclude the juvenile court abused its discretion in denying Father's section 388 petition, and remand for further proceedings.
DISPOSITION
The order denying Father's section 388 petition is reversed. The matter is remanded to the juvenile court with directions to consider J.C.'s circumstances, as well as other pertinent considerations, in assessing the existence of changed circumstances and J.C.'s best interests.
McCONNELL, P. J. WE CONCUR: HUFFMAN, J. GUERRERO, J.