In re Andre L.

Filed 10/11/07 In re Andre L. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. A. Rex Victor, Judge. Affirmed.

Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, and Phebe W. Chu, Deputy County Counsel, for Plaintiff and Respondent.

Janette Cochran, under appointment by the Court of Appeal, for Minor.

Appellant Andre L. (father) contends that the juvenile court abused its discretion in denying his section Welfare and Institution Code^[1]section 388 petition and terminating his parental rights as to his son Andre (the child). We affirm.^[2]

FACTUAL AND PROCEDURAL BACKGROUND

On June 20, 2005, the Victorville police removed the child, who was 17 months old, from the home of his paternal aunt (the aunt), where the parents had left him. The aunts 13-year-old daughter (the daughter) ran away from home two days before, and took the child with her. The aunt did not report the daughter or child missing for 24 hours. The daughter returned with the child, but refused to divulge where they had been. The police assessed the aunts home as substandard for a small child.

On June 22, 2005, the San Bernardino County Department of Childrens Services (the department) filed a section 300 petition on behalf of the child. The petition alleged that the child came within the provisions of section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). Specifically, the petition alleged that: 1) father and the childs mother (mother)^[3]left the child with a caretaker who was unable to adequately care for or supervise him, and they should have known that the caretaker was inept; 2) the capacity of father and mother (the parents) to supervise and protect the child was unknown; and 3) the whereabouts of the parents were unknown.

Detention

A detention hearing was held on June 23, 2005. The court placed the child in the temporary custody of the department and detained him in foster care.

Jurisdiction/Disposition

The social worker prepared a jurisdiction/disposition report recommending that the child be declared a dependent of the court, and that father (and mother) be provided with reunification services. The social worker reported that the child and mother had been living with the aunt up until mother was arrested in May 2005. The aunt informed the social worker that father did not have a permanent address, but visited the child at her home frequently. On July 11, 2005, another family member informed the social worker that father was hospitalized with several gunshot wounds. According to a police report, he was shot by what appeared to be a .45-caliber round.

On July 19, 2005, the department filed an amended section 300 petition, adding an allegation under subdivision (j) (abuse of sibling). The amended petition alleged that the childs half-siblings were abused. The department filed a second amended petition on September 12, 2005, changing the allegations to allege that mother left the child with the inappropriate caretaker. The second amended petition also added the allegation that father had been the victim of a violent crime, which put the child at risk since: 1) the nature and motive for the crime were unknown; 2) the perpetrator was unknown; and 3) father was in protective custody for fear of further harm. In addition, the petition alleged that father had a substance abuse problem, and that the parents had a history of domestic violence, which resulted in the removal of the childs half-siblings.

The social worker further reported that father admitted that he was seeking drugs on the night of the shooting. The social worker also noted that father had an extensive criminal history, which included convictions for inflicting corporal injury on a spouse (Pen. Code, 273.5, subd. (a)), possession of a controlled substance for sale (Health & Saf. Code, 11351), and driving under the influence of alcohol or drugs. (Veh. Code, 23152, subd. (a).)

At a contested jurisdiction/disposition hearing on September 13, 2005, the court ordered the department to provide father (and mother) with reunification services, pending the development of a case plan. Father was scheduled for an intake appointment for a substance abuse program on September 21, 2005, but failed to show up. He told the social worker he did not show up at the appointment because he had been readmitted to the hospital. He did not reschedule the appointment.

The social worker later developed a case plan, which required father to: 1) complete an anger management course; 2) participate in general counseling; 3) complete a parenting education program; 4) submit to substance abuse testing; 5) participate in both inpatient and outpatient substance abuse programs; and 6) participate in a 12-step program.

A further contested jurisdiction/disposition hearing was held on November 18, 2005, at which time the court found true the allegations that mother left the child with an inept caretaker, that father had a substance abuse problem, that the parents had a history of domestic violence, and that the childs siblings were abused. ( 300, subds. (b) & (j).) The court declared the child a dependent of the court and detained him with a maternal cousin. The court found father to be the childs presumed father, and ordered him (and mother) to participate in reunification services. The court also ordered weekly, supervised visitation.

Six-Month Status Review

The social worker filed a six-month status review report and reported that father was convicted of possession of cocaine base for sale. (Health & Saf. Code, 11351.5) He was sentenced to a term of three years, which included an enhancement for having a prior drug-related conviction. (Health & Saf. Code, 11370.2.) Father was incarcerated on November 11, 2005. The social worker further reported that mother completed her reunification plan. The social worker recommended that the court return the child to mothers custody under a family maintenance plan. At the six-month review hearing on February 22, 2006, the court returned the child to mothers custody, as recommended.

Family Maintenance Status Review

The social worker filed a family maintenance review report on August 8, 2006, and recommended that reunification services for father be terminated. The social worker opined that father was a life-long criminal without a serious desire to rehabilitate. The social worker commented that his criminal activities nearly cost him his life, and also put mother and the child at risk. The social worker concluded that reunification services would not help him rehabilitate or become an effective parent. As to mother, she had still not been able to establish employment or maintain a stable home for the child. Thus, the social worker recommended that she continue participating in services.

At the hearing on August 16, 2006, counsel for father made no comment on the social workers recommendation. The court proceeded to terminate fathers reunification services and to maintain the child with mother.

Subsequent Petition and Jurisdiction/disposition Hearing

On September 1, 2006, the department filed a petition pursuant to sections 387 and 342, alleging that the child came under section 300, subdivisions (b) and (g). Mother had been arrested on August 8, 2006, and incarcerated, and she left the child with a caretaker whom she knew was inept. At a detention hearing, the court detained the child in foster care.

On September 26, 2006, the court held a jurisdiction/disposition hearing and found that the child came under section 300, subdivisions (b) and (g), declared the child a dependent of the court, and ordered mother to participate in reunification services again.

18-month Status Review

In a status review report filed on December 5, 2006, the social worker recommended that mothers reunification services be terminated and a section 366.26 hearing be set. Both father and mother were still incarcerated, and there had not been any visitation with the child since their respective incarcerations.

On December 20, 2006, the court held a review hearing and terminated mothers reunification services. The court set a section 366.26 hearing for April 18, 2007.

Section 366.26 Report, Section 388 Petition,and Adoption Assessment

The social worker filed a section 366.26 report recommending that parental rights be terminated and that adoption be implemented as the permanent plan. The social worker reported that the child was placed in a foster home at the time of his removal, but the foster parents opted not to adopt him. The social worker still opined that the child was adoptable. Furthermore, the social worker reported that father had not seen or spoken to the child since he was incarcerated on November 11, 2005.

On March 19, 2007, father filed a section 388 petition, asking the court to reinstate his reunification services. As to changed circumstances, father alleged that, within the last six months while he was in prison, he participated in parenting and drug abuse programs and received vocational training in optical eyewear. He alleged that he had also made post-release living arrangements. His estimated release date was June 7, 2007.^[4] As to why reinstating his services would be in the childs best interest, father alleged that if he was successful he would reunify with the child and the child would have all the benefits that would result from that union.

The social worker subsequently filed an adoption assessment report, stating that the child was placed in a new foster home on March 30, 2007. The child appeared happy and healthy. He continued to be socially responsive and appeared to have already developed an attachment to his new foster parents. The social worker opined that the foster parents were capable of providing him with a safe and nurturing home. They lived in a five-bedroom, two-story house, and ran a home daycare. The foster parents were committed to providing the child with a safe, stable, and permanent home, and they were eager to proceed with the adoption.

The court held a combined section 388 and section 366.26 hearing on April 24, 2007 (the hearing). Father testified at the hearing that he received optical eyewear training in prison, and that he attended courses in parenting, critical thinking, life skills, resume writing, and job preparation, as well as a Narcotics Anonymous program. Father planned to live in a halfway house upon release, attend a substance abuse program there, get a job and other housing, and then get the child back. He did not want his son to live at the halfway house.

The social worker also testified at the hearing. She said that she received letters from father to the child, but did not give them to him since he was too young to understand them. The social worker also said that the child was adoptable, and that he was adjusting well in his new foster home.

After hearing the testimonies, the court commented that it was impressed that father had participated in many programs in prison, with the hope they would satisfy his reunification services requirements. The court noted that, upon release from prison, father still had to serve out his parole term, live in a halfway house, get a job, establish a home to support the child, complete any further required services, and show that he benefited from the services. The court agreed that father had shown some change of circumstances, noting that father had taken advantage of the opportunities provided in the closed setting of the prison. However, the court did not find that it was in the best interest of the child to wait and see what father may or may not do at some uncertain time in the future. The court concluded that father had not met his burden of proof on the second prong of the section 388 requirements and thus denied his petition. The court then proceeded to terminate parental rights and select adoption as the permanent plan.

ANALYSIS

The Court Properly Denied Fathers Section 388 Petition

and Terminated His Parental Rights

Father contends that the juvenile court abused its discretion in denying his section 388 petition. He argues that we must accordingly reverse the order terminating his parental rights. We disagree.

A. Standard of Review

A section 388 petition is addressed to the sound discretion of the juvenile court, and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)

B. The Court Did Not Abuse Its Discretion

Under section 388, [t]he petitioning party has the burden of showing, by a preponderance of the evidence, that there is a change of circumstances or new evidence, and the proposed modification is in the childs best interest. [Citations.] (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)

Here, the court recognized that father had made some changes, but ultimately denied the section 388 petition because he did not meet his burden of showing that reinstating his reunification services was in the childs best interest. Assuming arguendo that he met his burden of showing that his circumstances had actually changed, we agree with the court that he failed to show that granting his petition would be in the childs best interest. Regarding the childs best interest, father merely alleged that, if he was successful, he would reunify with the child, and the child would have all the benefits that would result from that union. The key word is if. As noted by the court, upon release from prison, father still had to complete any further required services, and, more importantly, show that he had benefited from the services. Moreover, he still had to serve out his parole term without going back to prison, get a job to support the child, and establish a home. Fathers plan upon release was to live in a halfway house, and even he expressed that he did not want his son to live there. In sum, father had yet to demonstrate that he could stay free from illegal drugs, or that he could appropriately parent the child and provide a safe and nurturing home environment. As the court so deftly stated, the child should not be asked to wait for father to reach a point at some uncertain time in the future where [he] could be placed with him.

Father asserts that the child had recently been placed with a new prospective adoptive family, and that it was doubtful he was truly bonding with these strangers in such a short time. By the time of the hearing, the child had only been living with the prospective adoptive family for approximately three weeks. However, contrary to fathers speculative claim, the record showed that the child was already developing an attachment to his new foster parents, and that they were eager and committed to adopting him and providing him with a safe, stable, and permanent home. Moreover, we note that father was incarcerated when the child was under two years old, and he had not seen or spoken with the child since then. By the time of the hearing, father had had no contact with the child for over 17 months. Thus, father was more of a stranger to the child than the prospective adoptive parents.

Ultimately, we cannot say that the courts decision to deny the section 388 petitions was arbitrary or capricious. We accordingly find no abuse of discretion, and further conclude that the court properly terminated fathers parental rights.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ HOLLENHORST

Acting P.J.

We concur:

/s/ RICHLI

J.

/s/ MILLER

J.

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^[1] All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.

^[2] Counsel for the child filed a letter brief on August 3, 2007, asking this court to affirm the juvenile courts orders.

^[3] Mother is not a party to this appeal.

^[4]The department has filed a motion for this court to consider the additional evidence of a letter dated July 26, 2007, from the case records manager at the state prison where father was incarcerated. The letter states that father remains in custody due to a rules violation for possession of an inmate manufactured weapon. The matter was referred to the district attorneys office for review. The letter further states that father could be incarcerated as long as 360 days as a result of the violation, and his new projected release date is June 1, 2008. By order of August 3, 2007, this court reserved ruling on the motion for additional evidence for consideration with the appeal. The motion is denied since [w]e review the correctness of the trial courts ruling at the time it was made, . . . and not by reference to evidence produced at a later date. (People v. Welch (1999) 20 Cal.4th 701, 739-740.)