In re B.G.
Filed 1/4/13 In re B.G.
CA2/4
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re B.G. et al., Persons Coming Under
the Juvenile Court Law.
__________________________________
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
C.C. and DARIO G.,
Defendants and Appellants,
B239056
(Los Angeles County
Super. Ct. No. CK24658)
APPEALS from orders of the Superior Court of
County, Albert Garcia, Referee. Affirmed.
Christina Gabrielidis Lechman, under appointment by the Court of
Appeal, for Defendant and Appellant C.C.
Joseph D. MacKenzie, under appointment by the Court of Appeal, for
Defendant and Appellant Dario G.
John F. Krattli, County Counsel, James M. Owens, Assistant County
Counsel, Stephen D. Watson, Associate County Counsel for Plaintiff and
Respondent.
______________________________
B.G. is the
subject of these dependency appeals. In one, Dario G., her father (Father), seeks
reversal of the trial court order denying his Welfare and Institutions Code
section 388
title="">[1] motion for reconsideration
of the order terminating reunification services. If that order is overturned, he argues, the
section 322.26 order terminating his parental rights also must be
reversed. C.C. (Mother) appeals the
order terminating her parental rights, arguing that if Father’s appeal is
successful, the order terminating her parental rights also must be
reversed. We find no abuse of discretion
with respect to the trial court’s denial of Father’s section 388 motion. Consequently, we shall affirm the orders from
which these appeals have been taken.
B.G. came to the
attention of the Los Angeles County
Department of Children and Family Services (DCFS or the Department) as the
result of a toxicology scan taken shortly after her birth, in July 2010. The scan showed the presence of amphetamine,
methamphetamine, and benzodiazepine.
Mother acknowledged ingesting methamphetamine and other drugs throughout
her pregnancy with B.G., including on the day of her birth. B.G. was born prematurely at 29 weeks and
weighed only 3 pounds, 3 ounces.
She was placed in the hospital’s neonatal intensive care unit, and she
remained hospitalized until September 2010.
As a result of the scan, B.G. was detained at the hospital and the
Department filed a petition under section 300.
The juvenile
court sustained the petition, declaring B.G. to be a dependent child. The order was based on the showing of drug
use by Mother and alcohol and substance abuse by Father. B.G. was removed from her parents’ physical
custody, and reunification services were ordered for the parents.
By then, the
family was familiar to DCFS due to other dependency proceedings. Mother’s parental rights over another child,
Natalie C., were terminated in 1998 after the child’s sibling was murdered by a
man (not Father in this case) who was Mother’s boyfriend at the time. Mother’s four other minor children, Cesar C.,
Dario G., Jr., Diana G., and Brandon C., were dependents due to
physical altercations between Father and Mother in their presence, and Mother’s
drug use. The cases of these four
children were still proceeding when B.G., too, became a dependent of the
court.
Neither parent
performed well during the reunification process, although Mother’s record is
far worse than Father’s. Mother was
terminated from programs at least twice and frequently tested positive for
substance abuse or simply failed to show up for testing. She was homeless and for much of the time was
living with Father in an abandoned building.
As we have discussed, Mother raises no issue on appeal with respect to
her own suitability, but argues only that the order terminating her parental
rights must be reversed if we reverse the similar order as to Father.
Father’s
performance during the reunification period also was problematic. He tested positive on two occasions and, on
several others, failed to test at all.
He also was homeless and living in an abandoned building. His participation in case plan programs was
described in a DCFS report as “poorâ€, “inconsistentâ€, “slow†and “needed
improvement.†An alcohol reviewing
specialist described his performance as just going through the motions, and he
had shown little improvement. With
respect to his marijuana use, Father stated that he had a medical marijuana
card but would not renew it once it expired on January 27, 2011. But he tested positive for marijuana after
that date.
Father exercised
his court-ordered obligation and right to visit with B.G. He often would stay only for a short time,
briefly hold the child then hand her off to someone else, and not play with
her. No bonding with him was
evident. He completed a 90-day substance
abuse program, then repeated it. But, as
his attorney acknowledged, he did not complete programs in alcohol abuse or
domestic violence.
On one occasion
during the dependency period Father
struck Mother with his fist in the presence of two of their children.
Father was still
homeless when he filed his section 388 petition. He finally found and rented an apartment on a
month-to-month lease, due to begin on February
1, 2012.
During almost all
of the reunification period B.G. was thriving in the home of her foster
parents. DCFS found no relatives who
were willing to take and care for the child.
At the permanent plan hearing on November
16, 2011 the court found that adoption was the appropriate plan for
B.G. (as well as for the four other minors).
As the children’s attorney summarized at the section 388 hearing, B.G.
was “in a safe, stable adoptive placement with an approved home study. The caretakers show up to almost every single
hearing, and they are ready, willing, and eager to adopt B.G.â€
At a hearing on May 18, 2011 the court terminated
reunification services. Father’s
attorney advised the court that he would file a section 388 petition for
reconsideration of that order based on changed circumstances and announced that
he would contest the section 366.26 hearing on termination of parental
rights. He filed the petition on November 15, 2011, the day before the date
then set for the section 366.26 hearings.
The court ordered that the hearings be held on January 11, 2012, to coincide with the
hearing on adoption as the appropriate plan for B.G.
At that hearing,
Father testified to completion of the 90-day outpatient program for substance
abuse, and presented evidence of negative tests taken in that program. He also testified that he could not recall
the last time he had used illegal substances.
Nor could he recall the name of his substance abuse counselor, or the
name of the employer for whom he said he had worked for the previous two
years.
Father’s attorney
told the court that Father had completed the 90-day substance abuse program,
but acknowledged that he had not sufficiently addressed the problem of alcohol
abuse. Nevertheless, he argued that
there had been a change of circumstances sufficient to justify granting of
reconsideration under section 388.
B.G.’s counsel argued against granting the motion for reconsideration,
as did counsel for DCFS. Mother’s
counsel did not take a position.
The trial court
found that Father had made some progress, but had not met his burden in showing
changed circumstances such as to warrant granting reconsideration, and that it
was not in B.G.’s best interests to grant the motion. The motion for reconsideration was
denied. The court proceeded to the
section 366.26 contested hearing. It
issued its order terminating parental rights.
The court also found that B.G. was likely to be adopted and that no
statutory exception applied. It entered
its order terminating parental rights.
Father filed his
Notice of Appeal on January 20, 2012; Mother filed
her appeal on January 11, 2012.
In pertinent
part, section 388 provides: “(a) Any
parent or other person having an interest in 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 . . . . The petition shall be verified and . . .
shall set forth in concise language any change of circumstance or new evidence
that is alleged to require the change of order . . . ¶ (d) If 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 . . . .†(See also Cal. Rules of Court, rule 5.570.)
This motion,
often referred to as a petition for reconsideration, is addressed to the sound
discretion of the trial court, whose decision will be upheld absent abuse of
discretion. (In re Josiah S. (2002) 102 Cal.App.4th 403, 419;
351, 358.) And, as with other dependency
decisions, the principal consideration is the best interests of the child. (In re
Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie
M.); In re Jackson W. (2010) 184 Cal.App.4th 247, 260; In re Angel B. (2002) 97 Cal.App.4th 454, 464;
681, 685.)
In
the test for abuse of discretion in familiar terms with respect to that
standard: “‘The appropriate test . . .
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
discretion for that of the trial court.’â€
(7 Cal.4th at pp. 318–319, quoting
272.)
The facts and
circumstances of this case show no abuse of discretion under this test. First, Father has not had actual custody of
B.G. for a single day of her life.
Dependency proceedings were commenced days after her birth. From that time through the trial court
decisions from which these appeals are taken, she was either at the hospital or
in foster care. Second, she is thriving
in the care of her foster parents, who wish to adopt her and have been approved
for that purpose. Next, she is bonded
with them and not with Father. Finally,
while Father has made some progress—in the trial court’s words, he has “done
somethingâ€â€”his performance in reunification has been deficient. Besides failing to promptly complete, or in
some cases, to complete at all, the programs assigned as part of his case plan,
he continued to engage in substance abuse and angry outbursts, and remained
unable to provide a home or otherwise care for the child. From this record, it is plain that it would
be a tragedy if B.G., who is now two and a half years old, were uprooted from
the only family she has known and who wish to adopt her, and relegated to the
delay and uncertainty of further reunification
services.
The orders from
which the appeals in this case are taken are affirmed.
EPSTEIN,
P. J.
We
concur:
WILLHITE,
J. MANELLA,
J.
references are to the Welfare and Institutions Code.
appealable. (§ 395.)
