Opinion
A152638
04-02-2018
In re SOPHIA G., a Person Coming Under the Juvenile Court Law. SOLANO COUNTY DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Plaintiff and Respondent, v. MICHAEL G., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. J43037)
Michael G. (Father), father of two-year-old Sophia G., appeals from the juvenile court's order denying his petition for modification, filed pursuant to Welfare and Institutions Code section 388, and its orders terminating his parental rights and ordering adoption as the permanent plan, pursuant to section 366.26. Father contends the court (1) abused its discretion when it denied his section 388 petition for modification, and (2) erred when it found inapplicable the beneficial parent-child relationship exception to adoption. We shall affirm the juvenile court's orders.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL BACKGROUND
The factual history underlying this matter is known to the parties and we will not extensively restate it here or in the Discussion, post, except to the extent it is relevant to the issues raised on appeal. We shall, however, briefly summarize the procedural background, as follows.
At the request of the Solano County Department of Health and Social Services (Department), we have taken judicial notice of the records of the Solano County Superior Court in Father's prior juvenile dependency case involving his two older sons, K.G. and C.G. A factual summary of that matter is set forth in our unpublished opinion, In re K.G. et al. (Aug. 18, 2016, A147362 & A146769), in which we affirmed the juvenile court's termination of the parental rights of Father and the boys' mother.
On June 2, 2015, the Department filed an original petition alleging that newborn Sophia came within the provisions of section 300, subdivisions (b) and (j). Subsequently, following the August 4 jurisdiction and disposition hearing, the juvenile court sustained the allegations in the petition, as amended, which included the following allegations as to Father: "The Father, Michael G[.] has prior Child Welfare history and has not reunified with Sophia's half sibling . . . , as issues relating to anger management, domestic violence, and substance abuse were not fully addressed. . . . [¶] . . . [Father] has a history of using illegal substances including but not limited to methamphetamine and marijuana, for which he has sought limited treatment and failed to remain clean and sober." The court ordered reunification services for both parents.
On October 20, Sophia was placed with her mother, with family maintenance services. However, a year later, after the Department filed a supplemental petition under section 387, the court again detained Sophia on December 14, 2016. At the February 14, 2017 contested jurisdiction and disposition hearing on the section 387 petition, the court sustained the supplemental allegations as to both parents. The court then terminated both parents' reunification services and set the matter for a hearing under section 366.26. The court also authorized continued supervised visitation of one hour per week.
The sustained allegations that related to father included the following:
"The child's parents . . . have a history of methamphetamine substance use that impairs their ability to meet the child's basic needs for supervision and caretaking, which places the child at substantial risk for serious physical harm.
"The parents . . . continue to engage in substance abuse. On December 9, 2016, they both reported using illegal substances on or about December 7, 2016. The parents' substance use impairs their ability to meet the children's [sic] basic needs for supervision and caretaking and places the child at substantial risk of serious physical harm. [¶] . . . [¶]
"Despite nearly 16 months of combined court services during this dependency and the previous dependency, the father, Michael G[.], has not demonstrated the ability to consistently parent his child . . . in a substance free, safe environment. The father has not fully engaged in his current case plan objectives and responsibilities to mitigate the danger concerns and demonstrate a behavioral change. In addition, the same concerns initiating the original [section] 300 petition filed on 06/2/2015 are actively present. The father's failure to comply with such services places the child . . . at substantial risk of abuse and neglect."
On August 7, 2017, Father filed a section 388 petition for modification, based on changed circumstances and Sophia's best interests, in which he requested additional reunification services. On September 19, following a contested hearing, the court denied Father's section 388 petition.
At the conclusion of the September 26, 2017 section 366.26 hearing, the court found that the beneficial parent-child relationship exception to adoption did not apply and terminated both parents' parental rights.
On October 4, 2017, appellant filed a notice of appeal.
DISCUSSION
I. Denial of Father's Section 388 Petition
Father contends the juvenile court abused its discretion when it denied his section 388 petition for modification.
A. Trial Court Background
In his section 388 petition, filed on August 7, 2017, Father requested that the court reinstate reunification services based on the following new evidence or changed circumstances: "Mr. G[.] has completed a three-month critical thinking program through probation. This program dealt with issues regarding mood management, critical thinking and management and relapse prevention. Mr. G. continues to be on felony probation and has been compliant." Father stated that the requested order would be in Sophia's best interest because he "has a close relationship with" her and she "recognizes him as her father and expresses joy upon seeing him and spending time with him. Mr. G. has completed all requested services. He has completed a program through probation that has allowed him additional tools to better his communication skills. Mr. G. continues to work hard to remedy the issues that brought Sophia to the attention of the court."
At the August 29, 2017 hearing on appellant's section 388 petition, social worker Ernesto Rodriguez testified that he had been assigned to this case since February, when Father's reunification services were terminated, and had met with Father at least five times. As part of his probation, Father had completed a "Reasoning and Rehabilitation Program" earlier in the year. Father's petition did not refer to any changes related to his mental health and Rodriguez had concerns about appellant's ability to manage his emotions and angry outbursts, which he thought put Sophia at risk. Both he and visit supervisors had been present on three recent occasions—in March, April, and August—when Father had "outbursts" during or after visits with Sophia, which included threats and swearing at Department staff. On one occasion, Rodriguez had to involve security.
Rodriguez also did not believe it would be in Sophia's best interest for Father's reunification services to be reinstated because Father "has not gained insight towards making a positive change for himself. And also, most importantly, Sophia is in a home that can provide her permanency, given her age."
Father testified at the hearing about his completion of the Reasoning and Rehabilitation Program through his probation; the program ran from late January to March 2017. The program involved working on rehabilitation and triggers, to avoid relapse. He believed he had learned patience in the program, as well as relapse prevention. He also participated in random drug testing for probation. Appellant did not believe he had a current substance abuse problem. He was staying busy, focusing on his grandparents' needs in various ways, which helped him to maintain his sobriety. He also attended Narcotics Anonymous meetings "every once in a while." He had last used methamphetamine in December 2016. He currently used marijuana once or twice a day to treat his anxiety and depression. When Father visited Sophia, she called him "Dada" and was "ecstatic" to see him.
At the conclusion of the hearing, the court denied appellant's section 388 petition, explaining that he had not met his burden of showing either changed circumstances or that the requested modification would be in Sophia's best interest "for a number of reasons. Yes, indeed, really, the only thing that's happened since I terminated his reunification services is that he's completed this course, which was supposed to help him control his anger and to manage it. And although he may have received some benefit from that, it's not sufficient, in my view, to constitute a significant or substantial change of circumstance. He has a great amount of difficulty in controlling his anger. And whether his use of marijuana helps him in that regard, as well as with his anxiety, really there's no evidence of that in this case, either in his actual conduct or in the form of any medical testimony to that effect.
"It appears to me that he doesn't have a medical marijuana card. I haven't seen one. He doesn't even know the name of the doctor who supposedly prescribed this for him. And, yes, indeed, even if it was, even if he had a medical marijuana card, the question is: Well, would use of this substance impair his ability to parent this little girl? And, again, I don't really have any real evidence of that, but the—his own testimony here about the quantity of his usage would lead me to believe that there's a significant question about his ability to do so.
"This little girl is, what, two years and three months old. And she's been in dependency almost that entire time. And, yes, indeed, the law is that, well, the reunification services need to be successful within six months. And, well, it is for good reason that that's the policy of the law. And, well, in this particular case, it's gone well beyond that. Well beyond that. Eighteen months.
"So the question about whether or not it's in her best interests to have reunification services with Mr. G. reinstated, again, the burden of proof has not been met. The bottom line is that even if I were to accept the argument that he has done everything that he's been asked to do, which, by the way, I disagree with, well, even so, it would not be in her best interests to reinstate these family reunification services. Too much time has passed. This little girl is—she needs some permanency. It's only fair to her. And that's what, at this stage of the proceeding, that's what I'm looking at. I'm looking at what we can do to provide her with permanency. And I just don't see that reinstating family reunification services for Mr. G. is going to accomplish that goal."
B. Legal Analysis
Section 388, subdivision (a)(1) provides in relevant part: "Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made . . . ." In addition, "[i]f it appears that the best interests of the child . . . may be promoted by the proposed change of order," "the court shall order that a hearing be held . . . ." (§ 388, subd. (d).)
"At a hearing on a motion for change of placement, the burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interests of the child. [Citations.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) "A primary consideration in determining the child's best interests is the goal of assuring stability and continuity. [Citations.]" (Id. at p. 317.)
We review the juvenile court's denial of appellant's section 388 petition for an abuse of discretion. (Stephanie M., supra, 7 Cal.4th at p. 318.) As our Supreme Court has "warned: ' "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." ' [Citations.]" (Stephanie M., at pp. 318-319.)
In the present case, we conclude the juvenile court reasonably found that Father's completion of the two-month long Reasoning and Rehabilitation Program through his probation did not constitute a change of circumstances that would warrant reinstatement of his reunification services and the resulting delay in permanency for Sophia. As the court noted, appellant had received many months of reunification services in both the present and prior dependencies and, even after completing the recent program that was the basis of his section 388 petition and which was intended to help him with his anger management issues, he continued to exhibit anger with Department staff. The court also reasonably found that there was no evidence that Father's use of marijuana was helpful in controlling his anxiety and anger and that it could in fact hinder his ability to safely care for Sophia. (§ 388, subd. (a)(1).)
In addition, the court reasonably found that a delay in permanency would not be in the best interests of Sophia, who had been out of Father's care for virtually her entire life. She was now just over two years old and had an opportunity for stability and permanency with an adoptive family. (See § 388, subd. (d); see also pt. II., post.)
The court did not abuse its discretion when it denied Father's section 388 petition for modification. (See Stephanie M., supra, 7 Cal.4th at pp. 317-318.)
II. Applicability of the Beneficial Parent-Child Relationship Exception to Adoption
Father contends the court erred when it found he failed to establish the applicability of the beneficial parent-child relationship exception to adoption.
A. Trial Court Background
Social worker Rodriguez again testified at the September 26, 2017 section 366.26 hearing as an expert on child welfare and social work. Father's supervised visits with Sophia took place once a week for one hour. Rodriguez had observed visits and testified that Father was appropriate with Sophia, who enjoyed the visits. He was attentive to her and took care of her needs, including changing her diapers. Sophia transitioned easily to and from visits with the parents. Sophia's care providers had reported, however, that after visits, Sophia was sometimes defiant and smeared feces on the wall. These behaviors would subside within a few days.
Rodriguez further testified that the current care providers were committed to adopting Sophia if parental rights were terminated. He believed that adoption outweighed any benefit from maintaining the parent-child relationship because it would provide her with permanency.
In the May 23, 2017 section 366.26 report, the social worker had described the prospective adoptive parents in more detail. Sophia was placed with them on August 10, 2015, when she was three months old. She returned to her mothers' care on October 20, 2015, and was returned again from her mother to the prospective adoptive parents on December 15, 2016. They are relatives of Sophia's mother, and had known Sophia since the day she was born. "The social worker stated that the prospective adoptive parents, who also have an adopted son with special needs, have always been there for Sophia in times of need and understood the importance of keeping her safe and providing her with love. . . . Sophia has attached quickly to the prospective adoptive parents and seeks them for safety and emotional support." --------
At the conclusion of the hearing, the court first found that Sophia was adoptable. It then addressed the beneficial parent-child relationship exception to adoption, first finding that Father had regularly visited Sophia. The court then turned to the second prong of the exception, explaining that the burden was on Father "to show, by a preponderance of the evidence, that the benefit to Sophia of maintaining the parent-child relationship outweighs the benefits of adoption. And clearly, without a doubt, interaction between a parent—birth parent and a child is always going to confer some benefit to a child. But under the law, that alone is not enough. The parent has to occupy more than just being a friendly visitor. The parent must occupy a parental role. And I don't hear any evidence to that effect. As a matter of fact, what I do hear is that the substitute care-providers have been providing that parental role. I acknowledge that Sophia calls Mr. G. 'dad' . . . but that's not enough to be fulfilling a parental role.
"And in this case, particularly compelling is her age. I mean, she's two years old, and she's been a dependent of the court since she was five days old. And the law is very clear: Permanency at this point is foremost in importance. And clearly the law also favors adoption over legal guardianship. And for good reason, because it's the more permanent of the results. Now, this little girl, she deserves permanency. It's been two years. And with a child of this age, that's an exceptionally long period of time. At this time, the time has come for Sophia to have that permanency. I don't find that the burden of proof has been met by the parents for the beneficial relationship exception."
The court then found that adoption was the permanent plan for Sophia and terminated the parental rights of both parents.
B. Legal Analysis
When the court finds that a child is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds by clear and convincing evidence, pursuant to one of the statutorily-specified exceptions, "compelling reason[s] for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).) The parent has the burden of proving detriment under any of these exceptions. (In re C.F. (2011) 193 Cal.App.4th 549, 553 (C.F.).)
At issue here is the beneficial-parent child relationship exception, which applies if the juvenile court finds by clear and convincing evidence that 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).)
With respect to the second prong of the exception—whether the child would benefit from continuing the relationship with the parent—the appellate court in C.F. "interpreted the phrase 'benefit from continuing the relationship' in section 366.26, subdivision (c)(1)(B)(i) to refer 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.' [Citation.]
"A parent must show more than frequent and loving contact or pleasant visits. [Citations.] 'Interaction between natural parent and child will always confer some incidental benefit to the child. . . .' [Citation.] The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment between child and parent. [Citations.] Further, to establish the section 366.26, subdivision (c)(1)(B)(i) exception the parent must show the child would suffer detriment if his or her relationship with the parent were terminated. [Citation.]" (C.F., supra, 193 Cal.App.4th at p. 555, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.), fn. omitted.)
"Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it 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 (Jasmine D.).) "Application of this exception is decided on [a] case-by-case basis and a court takes into account such factors as the minor's age, the portion of the minor's life spent in the parent's custody, whether interaction between parent and child is positive or negative, and the child's particular needs." (In re Scott B. (2010) 188 Cal.App.4th 452, 471, citing Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)
Appellate courts have differed on the correct standard of review for determining the applicability of a statutory exception to termination of parental rights. (Compare, e.g. Autumn H. supra, 27 Cal.App.4th at p. 576 [applying substantial evidence standard]; Jasmine D., supra, 78 Cal.App.4th at p. 1351 [applying abuse of discretion standard]; In re K.P. (2012) 203 Cal.App.4th 614, 621-622 (K.P.) [applying substantial evidence standard to whether beneficial parent-child relationship exists and applying abuse of discretion standard to whether that relationship provides a compelling reason to apply exception].) Although the "practical differences" among these various standards of review "are not significant" (Jasmine D., at p. 1351), we believe that use of the hybrid standard of review, which incorporates both the substantial evidence and the abuse of discretion standards, is appropriate when reviewing juvenile court determinations regarding the statutory exceptions to adoption. (See In re J.C. (2014) 226 Cal.App.4th 503, 530-531; K.P., at pp. 621-622; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.)
In the present case, Father argues that "it was not reasonable for the juvenile court to terminate his parental rights, given the information in the record regarding his bond with Sophia." According to Father, the court should have ordered guardianship, which "would have permitted Sophia to remain in her stable placement with maternal relatives, while allowing her to keep the relationship she has with the father she knows, loves, and with whom she is bonded."
The evidence does show that Father was loving, attentive, and appropriate with Sophia during visits, and that she enjoyed the visits. The evidence also shows, however, that Father never progressed beyond supervised visits with Sophia, who was out of his care for virtually all of her short life. (See In re Scott B., supra, 188 Cal.App.4th at p. 471.) The evidence further shows that it was the prospective adoptive parents, with whom she had lived for most of her life, who had, as the social worker stated, "always been there for Sophia in times of need and understood the importance of keeping her safe and providing her with love." In addition, Sophia had "attached quickly to the prospective adoptive parents" and it was to them she turned "for safety and emotional support." (See ibid.)
We therefore conclude substantial evidence supports the court's finding that Father did not show that he occupied a parental role with Sophia. (See C.F., supra, 193 Cal.App.4th at p. 555; § 366.26, subd. (c)(1)(B)(i); K.P., supra, 203 Cal.App.4th at pp. 621-622.) We also conclude the court did not abuse its discretion when it found that a continued relationship with Sophia would not promote her wellbeing " 'to such a degree as to outweigh the well-being [she] would gain in a permanent home with new, adoptive parents.' " (C.F., at p. 555; see § 366.26, subd. (c)(1)(B)(i); K.P, at p. 622.)
DISPOSITION
The juvenile court's orders terminating Father's parental rights and ordering adoption as the permanent plan are affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.