Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 517878)
THE COURT APPEAL from an order of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Franson, J. and DeSantos, J.
Reunification services for appellant Brandon F. (father) were terminated. After termination of reunification services to father, the juvenile court granted a Welfare and Institutions Code section 388 petition and allowed father's minor son, B.F. (minor), to be placed with maternal relatives living out of state. Father contends the juvenile court abused its discretion. We disagree and affirm.
Subsequent references to code sections are to the Welfare and Institutions Code, unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
Because father is the appealing party, we focus on those facts relevant to him. Father previously was before this court challenging the termination of his reunification services with the minor. In an unpublished decision filed on July 3, 2018, in case No. F076784, we affirmed the order terminating reunification services to father. Much of our facts and procedural history are taken from the opinion in case No. F076784.
On February 22, 2017, the Stanislaus County Community Services Agency (agency) filed a section 300 petition on then eight-month-old minor's behalf. The petition alleged:
1. On October 10, 2016, the agency received a referral stating mother had squirted father with milk from a baby bottle and father responded by hitting mother numerous times on the head and pushing her to the ground. Mother picked up a knife; father picked up a hammer. The minor was present during this incident. Father was charged with violating Penal Code section 273.5. According to mother, the incident happened during a custody exchange.
2. On November 29, 2016, the agency received a referral stating mother and father argued during a custody exchange. Father attempted to force mother to have sex with him, punched her in the face, and hit mother several times while she was holding the minor. Mother had a black eye. Mother stabbed father, locked herself in a room, and called police.
3. On February 9, 2017, the agency received a police report of a domestic violence incident on October 31, 2016. While the minor was present, mother and father fought, with mother biting father and placing her hands on his neck, causing redness; father also had a bloody nose. Mother was determined to be the dominant aggressor and was arrested after the incident.
4. Mother continued to place the minor at risk, as she made no effort to obtain a restraining order or obtain a formal custody agreement, despite previously agreeing to do so.
5. Mother and father were continuing in a relationship, despite ongoing domestic violence occurring in the minor's presence.
6. Mother had a criminal record. Father had a significant criminal record, including assault with intent to commit rape, child cruelty, and inflicting corporal injury on a cohabitant.
On February 23, 2017, the juvenile court ordered the minor detained by the agency and scheduled the jurisdiction and disposition hearing for March 16. The jurisdiction report noted mother and father "engage in domestic violence, often in the presence of the child." Father admitted using marijuana "regularly" and methamphetamine "on and off."
Subsequent references to dates are to dates in 2017, unless otherwise stated.
The agency was concerned about domestic violence and possible substance abuse. The jurisdiction report noted father had visited with the minor, but staff observed "he had very strange behavior and continuously attempted to leave the minor alone in the room." Father's odd behaviors caused the agency to be concerned about his ability to "parent appropriately." When a drug test was administered to father, he tested positive for marijuana, and provided a medical marijuana card.
The agency concluded that none of the issues "that initially led to the child being placed into protective custody have been resolved." At the March 16 jurisdiction hearing, the agency recommended the minor be adjudged a dependent of the juvenile court and the disposition hearing be continued. The juvenile court continued the matter to April 10 for a combined jurisdiction and disposition hearing.
On April 5, the agency filed a disposition report. The report noted that although mother had been arrested after the October 31, 2016, incident between her and father, no prosecution ensued because of insufficient evidence. According to the same report, father had convictions for two offenses: assault with a deadly weapon in 2010, and infliction of corporal injury on a spouse or cohabitant in 2016.
The agency opined that mother and father failed to provide a safe home for the minor, in that they engaged in acts of domestic violence in his presence and had substance abuse issues. The case plan called for father to complete domestic violence, anger management, substance abuse, clinical assessments, and follow through on all recommendations from those assessments. In addition, father was to complete a parenting program. Father was to have weekly visitation with minor.
At the combined jurisdiction and disposition hearing on April 10, the juvenile court found the petition's allegations to be true and found the minor to be a person described in section 300, subdivision (b)(1), primarily based upon the "significant domestic violence between the parents in the presence of the child." The juvenile court also expressed concern over father's admitted use of marijuana and methamphetamine.
The juvenile court adjudged the minor a dependent of the juvenile court and found, based upon clear and convincing evidence, there would be a substantial risk of detriment to the minor if he was returned to his parents. Father and mother were granted reunification services and admonished "that it is important that you make excellent progress in resolving the issues that caused your son to be removed from your care within the next six months." The juvenile court warned mother and father that if they did not make "sufficient progress" over the next six months, reunification services could be terminated and a permanent plan hearing set. The review hearing was set for June 28.
At the June 28 progress review hearing, the juvenile court found father's progress toward mitigating the circumstances that gave rise to the dependency action was "fair." The agency was concerned about father's "substance use and short temper."
Father had recently started visiting the minor, after "being taken off the schedule for not showing to appointments." The social worker had concerns about the appropriateness of father's interaction with the minor at visits. Father also argued with visitation staff. In addition, father had tested positive for methamphetamine and cocaine.
Another review hearing was scheduled for October 3. The status review report filed on September 22, in anticipation of that hearing, recommended reunification services be terminated. The status review report stated father was on active probation for domestic violence and currently homeless. Father's probation officer told the social worker father "has not learned anything from anger management because he gets angry incredibly quick and has a lack of impulse control." The probation officer also felt father was not "gaining anything from his domestic violence classes." When the social worker expressed her concern to father that it did not appear he was learning anything from his classes, father replied, "I don't really care."
The social worker had submitted referrals for father to participate in anger management classes and undergo a psychological evaluation. Because father "present[ed] with a flat affect" and his decisions placed others at risk, a psychological evaluation was sought to determine if father had a "pervasive mental health diagnosis" that could interfere with his ability to parent the minor. Father refused to submit to a psychological evaluation or attend anger management classes until he spoke with his lawyer.
Father demonstrated only "moderate" understanding of the information and skills presented in his parenting program; he did not seem able to implement what he was learning. Father indicated his method of discipline would be "spanking" and refused to discuss the matter further. Random drug tests of father returned positive results for marijuana, cocaine, and benzoylecgonine. As of the date of the status review report, father had not completed an anger management program or submitted to a psychological evaluation.
In addition, the status review report noted father had not been consistent in his visitation with the minor, frequently failing to show for visitation. Father told the agency "his freedom is more important than visiting" with the minor.
At the October 3 review hearing, the matter was continued to November 2 for a contested hearing. Mother was the only witness to testify on November 2. At the November 2 hearing, father made an offer of proof that he wanted to reunify with the minor; had obtained living quarters; had completed about 30 of his 52 domestic violence classes; had made an appointment for a psychological evaluation; had submitted to an anger management assessment; regretted using cocaine; and would no longer be using cocaine.
The agency argued "children cannot wait until their parents grow up" and the minor needed "parents that are grown up to raise him in a fashion that's safe and secure for him." The agency noted father had participated in domestic violence services as a result of a criminal conviction, yet "still has huge issues with anger in his interactions with just about anybody, including his son at visits."
Because of the minor's young age and the amount of time without significant progress, the agency recommended father's reunification services be terminated. Father had made essentially "zero" progress, so it was unlikely he would be able to reunify with the minor. Minor's counsel concurred with this recommendation. The agency noted mother's sister, an officer in the United States Army living out of state, was willing to offer the minor a permanent home.
Father objected to termination of reunification services. Father's counsel argued father's "mental health issues" likely were "impeding his ability to make progress on his case plan." Counsel argued father was now "receptive" to participating in anger management services and undergoing a psychological evaluation.
The juvenile court found reasonable services had been offered and father "failed to take advantage of those services." The juvenile court noted "I hear what amounts to a lot of excuses and no—no action" from father. The juvenile court further observed the statute provides that for a child under three years of age, the "parents only have six months to reunify" and services could be extended only if there was a finding of "substantial probability that with extended services reunification can occur."
The juvenile court stated that in assessing whether there was a substantial probability of reunification with extended services, it looked at progress to date and found "absolutely none." As indicators that father is not likely to reunify with extended services, the juvenile court listed father's inconsistent visitation and inappropriate interaction with the minor, his comment that his "freedom is more important than visiting" with the minor, his poor attitude toward staff, and his positive tests for cocaine.
The juvenile court also noted it had been at least eight months since the minor was removed from the parents. Referrals had been made for a psychological assessment, which father had not completed. In addition, father's probation officer indicated father had not benefitted from classes ordered in the criminal case and "still has anger issues." Father could not just attend classes; he had to "incorporate the material in those classes into" his life and "implement" the material. The juvenile court found father had not done this.
The juvenile court terminated father's services. Services for mother were extended to the twelve-month review hearing. Father was allowed once per month visits with the minor. On December 29, father filed a notice of appeal, appealing from the order terminating reunification services. We affirmed the order terminating father's reunification services on July 3, 2018, in the unpublished opinion filed in case No. F076784.
Also at the November 2 hearing, placement with the minor's maternal aunt, a captain in the United States Army, was discussed. The Interstate Compact on the Placement of Children (ICPC) process had been started and the agency expected the aunt's home to be an "approved placement." The minor was currently in a placement with a family that "is expanding their own family" and would need to move to another placement "before then."
On March 6, 2018, the agency filed a section 388 petition seeking an order allowing the minor to be placed with his aunt in North Carolina. The petition stated "the ICPC request for North Carolina has been approved." The petition represented that mother agreed with the request and the placement would allow the minor to begin adapting to a permanent home. The letter from North Carolina, dated February 6, 2018, reported that the minor's aunt and uncle were both commissioned officers in the United States Army, with security clearances. The social services department in North Carolina recommended placement of the minor with his aunt and uncle.
Also on March 6, 2018, the agency filed a notice for a twelve-month review hearing, recommending termination of reunification services for mother and the scheduling of a section 366.26 hearing to set a permanent plan of adoption for minor. The status review report filed on March 16, 2018, noted a review hearing date of April 3, 2018. The report recommended termination of reunification services to mother and scheduling a section 366.26 hearing to terminate parental rights and place the minor for adoption. The report also represented that mother wanted the minor to be adopted by his maternal aunt in North Carolina.
At the March 21, 2018, hearing on the section 388 petition, mother did not oppose the granting of the petition. Father objected to an out-of-state relative placement because he wanted to "reopen reunification services very soon." Father also asserted that he was seeking placement of the minor with paternal relatives.
The agency responded that father first raised the issue of placement with a paternal relative the week before. Mother had executed a waiver of services; services to father had been terminated. The agency opined that it was time to "start focussing [sic] on the permanency of this child" and the agency sought a relative placement, as it was required to assess relatives first. If the petition were granted, the agency intended to move the minor to his new placement on April 7, 2018.
Counsel for the minor supported the section 388 petition and placement with the aunt.
The juvenile court noted the aunt was currently in North Carolina and the ICPC had been approved for placement. If the aunt moved to another post, which was expected to occur in May, the ICPC process would have to begin again.
The juvenile court found there was a "significant change of circumstances" since mother would not be reunifying and father's reunification services had been terminated on November 2, 2017. The juvenile court found "the granting of the 388 would be in [minor's] best interests" based upon the failure to reunify, the relative placement, and the approved ICPC.
The order granting the petition was filed on March 22, 2018. On April 26, 2018, father appealed from the order granting the section 388 petition.
Father contends the juvenile court abused its discretion when it granted the section 388 petition and allowed the minor to be placed with his maternal aunt in North Carolina.
Standard of Review
We review the granting of a section 388 petition for abuse of discretion. Determination of a section 388 petition is committed to the sound discretion of the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71.)
A parent or other person may bring a petition for modification of any order of the juvenile court pursuant to section 388 based on new evidence or a showing of changed circumstances. The party requesting the change of order has the burden of establishing that the change is justified based upon a preponderance of the evidence. (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.)
Section 388 provides, in part: "Any parent or other person ... 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 ...." (§ 388, subd. (a)(1).) --------
Here, the agency filed the section 388 petition in March 2018, seeking to change the minor's placement because mother was terminating reunification services and the ICPC process had been completed, with the aunt in North Carolina approved for placement. Father's reunification services previously had been terminated in November 2017.
Father first contends that the agency failed to specify a prior order that it sought to have changed. On the petition, when asked what order should be changed, it states: "The Court authorized for the ICPC process to be initiated with the state of North Carolina." Father contends the agency did not seek to modify this order; instead, it sought a new order.
Father's argument elevates form over substance. "We are mindful that the juvenile dependency laws must be liberally construed to carry out their purposes, including the need to act in the minor's best interests. (§ 202.)" (In re Katelynn Y. (2012) 209 Cal.App.4th 871, 880.) Father failed to raise any defect in the petition by objecting on this basis in the juvenile court, therefore, he has waived any challenge to the defect. (In re Shelly J. (1998) 68 Cal.App.4th 322, 328.)
Furthermore, it is apparent that father was fully aware of the change sought by the agency. Father's counsel commenced her argument in opposition by stating, "father is opposed to this motion regarding placement of [the minor] out of state in the relative home."
Father's second contention is that the agency failed to demonstrate changed circumstances, only "changing circumstances." This argument is specious. The juvenile court's finding of changed circumstances is supported by the record.
The section 300 petition on behalf of the minor was filed in February 2017, when the minor was eight months old. The order to initiate the ICPC process was made on October 3, 2017. After the order initiating the ICPC process, father's reunification services had been terminated and mother was waiving further reunification services; she would not be reunifying with her child. The termination and cessation of reunification services and the failure to reunify with the minor are certainly changed circumstances from the inception of the dependency proceeding, the minor's placement in foster care, and the start of the ICPC process.
Moreover, the foster family with which the minor had been residing would shortly no longer be able to care for him. This, too, is a changed circumstance upon which the agency needed to act. The agency could not be expected to wait, nor should it wait, until the minor's foster family relinquished him before looking for a new placement for the minor.
Father next asserts that the granting of the section 388 petition was not in the minor's best interests, because father wanted to seek more visitation with the minor and the move was to a "temporary home." The best interests of the child are of paramount consideration when the petition is brought after termination of reunification services. Once reunification efforts have failed, the juvenile court's focus shifts to the need of the child for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
In assessing the best interests of the child, the juvenile court looks to the child's need for permanence and stability, not to the parent's interest in reunification. (In re Stephanie M. (1994) 7 Cal.4th 295, 317-319.) Father's argument that the granting of the petition is not in the minor's best interests focuses largely on father's desire for more visitation or a desire to reunify; and misrepresents that the minor would be moving to a "temporary home." Father's argument does not focus on the best interests of the minor.
The minor entered the dependency system and foster care when he was eight months old. Over a year later, the minor remained in foster care in a placement that would not become his permanent home; father's reunification services had been terminated; and mother was waiving further reunification services; she would not be reunifying with her child. The foster family with which the minor had been residing would shortly no longer be able to care for him. There is a statutory preference set forth in section 361.3 for placement in a relative's home. (§ 361.3, subd. (a)(1).) The aunt and uncle in North Carolina were expected to be providing the minor's "permanent home." These facts demonstrated by a preponderance of the evidence the requested change was in the best interests of the minor. (In re Michael B., supra, 8 Cal.App.4th at p. 1703.)
Father's claim in this appeal that any placement of the minor with the aunt should wait until after she is in her new posting is forfeited because he did not assert this objection in the juvenile court. (In re Joseph E. (1981) 124 Cal.App.3d 653, 657.)
The juvenile court here did not exceed the bounds of reason by making an arbitrary, capricious, or patently absurd determination. (In re E.S. (2011) 196 Cal.App.4th 1329, 1335.) It was not an abuse of discretion to place the minor in a stable, permanent home with an out-of-state relative after reunification with both parents had failed. (In re Shirley K., supra, 140 Cal.App.4th at p. 71.)
The order granting the section 388 petition is affirmed.