In re D.R.
Filed 12/17/12 In re D.R. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re D.R., a Person Coming
Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
DANIEL R.,
Defendant and Appellant.
D061888
(Super. Ct.
No. J515681E)
APPEAL from
orders of the Superior Court
of
County, David B. Oberholtzer, Judge. Reversed and remanded with directions.
Daniel R.
appeals an order denying his request for custody of his son, D.R., under
Welfare and Institutions Code section 388.
366.26. We reverse.
FACTUAL AND
PROCEDURAL BACKGROUND
Daniel R.
and Holly A.
title="">[2]
are the unmarried parents of D.R., who is now three years old. D.R. is Daniel's only child. Holly has four older children. Holly's three oldest children were removed
from her custody in 2005 due to her history of substance abuse and domestic
violence. Her fourth child, Adrian A.,
was removed from her care in January 2009 after Daniel and Holly had several
violent confrontations. The juvenile court placed Adrian
with his maternal grandmother, Marie N., and her partner, Annette K.
After
D.R.'s birth in August 2009, the San
Diego County Health and Human Services Agency (Agency) offered voluntary
services to Daniel and Holly. In April
2010, the Agency initiated dependency
proceedings on D.R.'s behalf after the parents engaged in several more
incidents of domestic violence. The
juvenile court issued restraining orders preventing the parents from contacting
each other. After sustaining the section
300 petition, the court removed D.R. from parental custody, denied
reunification services to Holly and ordered a plan of reunification services
for Daniel.
D.R.'s
paternal grandparents requested custody.
The Agency placed D.R. with his maternal grandmother to promote D.R.'s
relationship with his half brother Adrian.
Daniel had
three hours of weekly supervised visits with D.R. The monitors at the visitation center,
maternal grandmother Marie, and the social worker said Daniel displayed and
initiated physical affection with D.R.
He was attentive to D.R.'s needs, set appropriate limits for him,
redirected his behavior and was appropriately concerned for his safety. On one occasion, Daniel cursed when D.R.
spilled his juice.
Daniel made
good progress with substance abuse
treatment and maintained his sobriety.
He had continued contact with Holly in violation of restraining
orders. The social worker concluded that
in view of Daniel's dishonesty about his relationship with Holly, he did not
make progress in domestic violence treatment and therapy. In early August, Daniel tested positive for
marijuana.
On August
2, Holly came to Daniel's residence and broke the side mirrors off his
vehicle. On August 7, Marie brought D.R.
to the park to visit Daniel. Holly
arrived and argued with Daniel about his new girlfriend. Holly kicked Daniel in the groin and left. Daniel reported all three violations of the
restraining order to law enforcement.
At the
12-month review hearing on August 18,
2011, the court found that Daniel did not make substantive progress
with his case plan, terminated reunification services and set a section 366.26
hearing.
In January
2012, Daniel filed a section 388 petition asking the court to place D.R. with
him under a plan of family maintenance services. Daniel alleged he had not had any contact
with Holly since August 2011, had maintained his sobriety, and had established
a strong bond with D.R. and could now provide a safe, stable and loving home
for him.
A hearing
on Daniel's section 388 petition, followed by the section 366.26 hearing, was
held on April 23 and 26, 2012. The
parties agreed that if Daniel did not prevail on his section 388 petition, the
evidence presented at the section 388 hearing would be considered at the
section 366.26 hearing and the parties would not present any new evidence or
call any new witnesses. The court
admitted the social worker's reports in evidence and heard testimony from
Cynthia Hernandez, an investigator with Dependency Law Group, Holly, Daniel,
Daniel's girlfriend G.R., paternal great-aunt Priscilla R., paternal
grandfather Jose R. and maternal grandmother Marie.
The social
worker reported that D.R. was placed with Marie and Annette on April 5, 2010. He was emotionally attached to them. D.R. recognized Daniel and was happy to see
him. Daniel was appropriate with him. D.R. enjoyed being tickled and kissed by his
father but resisted being held. He
engaged with Daniel during visits and sought his attention. Daniel played with D.R. and was able to set
limits with him. The social worker noted
that at one visit, she had to encourage D.R. to go to his father. D.R. stood motionless staring at his father,
who then walked over and picked him up. The
social worker believed that D.R. had a stronger bond and attachment to his
brother and caregivers than he did to his father.
Cynthia
Hernandez, an investigator with Dependency Legal Group and a former protective
services worker with the Agency, conducted a home evaluation of Daniel's home
and found it to be safe and appropriate.
Daniel lived with G.R. and her two children. G.R. testified that she and Daniel had lived
together since October 2011. She did not
have a substance abuse, criminal or child protective history.
Holly
wanted Marie to adopt D.R. Holly
testified she had sexual relations with Daniel on November 25, 2011, the day she was released from
jail.
Daniel said
he had shared equal parenting responsibilities during the first six months of
D.R.'s life. He consistently visited
D.R. after dependency proceedings were initiated. When D.R. saw him, D.R. would get a big
smile. His face would light up and he
would say, "Daddy." D.R. tried
to make the visits last longer and said he did not want to leave. Daniel denied meeting Holly in November. He continued to attend 12-step meetings, had
a sponsor and was on step 9. Daniel
wanted to raise his son.
Daniel's
aunt, Priscilla, had supervised twice-weekly visits between Daniel and D.R. since
August 2011. Daniel never missed a
visit. During visits, D.R. called Daniel
"Daddy." Daniel was always
appropriate with D.R. D.R. was sad at
the end of the visits and tried to prolong them. He would keep asking Daniel for more hugs and
kisses. After one visit ended, D.R.
said, "I'm sad." Daniel was a
good dad. He was attentive, loving and
affectionate with D.R. and firm when D.R. needed to obey him. They had a strong bond.
Jose,
D.R.'s paternal grandfather, testified that when Daniel and Holly were living
together, Daniel cared for D.R. He held
and fed him, changed his diapers, played with him and made him smile and
laugh. During Jose's visits with D.R.,
D.R. said "Where's my Daddy?" or "I miss my Daddy." Jose said the social worker's account of a
visit in which D.R. was reluctant to go to his father was inaccurate. Jose was present at the visit. When the social worker released D.R.'s hand,
D.R. immediately ran to Daniel.
Marie
testified she and Annette had cared for D.R. for more than two years. They read to D.R. at least one hour a day,
and often went to the park, beach or library.
D.R. would be devastated if he were separated from Adrian. Marie acknowledged it was important for D.R.
to continue to visit Daniel and his paternal grandparents.
The
juvenile court characterized Jose's testimony as "highly believable"
and Daniel's testimony as "mostly believable." The court discounted Marie's testimony as
"too self-favorable." The
court gave less weight to the social worker's reports, characterizing them as
"advocacy" and stating, "I would like to see a report from an
honest broker on good points and bad points, and these reports do not meet that
criteria."
In
evaluating the section 388 petition, the court found that Daniel's circumstances
had changed. Daniel was sober and in a
new relationship. The court viewed the
domestic violence between Daniel and Holly as a symptom of that relationship,
not as a symptom of Daniel's disposition.
Daniel's visits with D.R. showed there was a close, parental bond
between father and son. However, the
court said D.R.'s relationship with his brother was determinative of his best
interests. The evidence showed the brothers
were more bonded to each other than they were to any other person. The court found that separating D.R. from his
brother would be detrimental to D.R and denied Daniel's request for custody.
Proceeding
to the section 366.26 hearing, the court found that the benefits of adoption to
D.R. outweighed the benefits of maintaining a relationship with his
father. The court reasoned a plan of
guardianship might substantially interfere with D.R.'s relationship with his
brother, and the brothers needed the peace and confidence that comes from being
permanent members of a family. The court
terminated parental rights and designated Marie as D.R.'s prospective adoptive
parent.
DISCUSSION
Daniel
contends the juvenile court abused its discretion when it found that it was not
in D.R.'s best interests to be returned to his care. Daniel argues D.R.'s relationship with his
half brother should not have been dispositive on the issue of whether
reunification was in D.R.'s best interests.
He further argues the record supports his request for custody under
519 (Kimberly F.).
A
Legal Principles and Standard of Review
Under
section 388, a parent,
interested person or the dependent child (generically, petitioner) may petition
the court to change, modify or set aside a previous order on the grounds of
changed circumstances or new evidence.
(§ 388, subd. (a).) The
petitioner requesting the modification has the burden to show a change of
circumstances or new evidence, and that the proposed modification is in the
child's best interests. (
Cal.4th 398, 415.)
After reunification services have
been terminated, section 388 provides an " 'escape mechanism' "
to termination of parental rights by allowing the court to consider a
legitimate change in the parent's circumstances. (In
re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).) This
procedural mechanism, viewed in the context of the dependency scheme as a
whole, provides the parent due process while accommodating the child's right to
stability and permanency. (
is presumed that continued out-of-home care is in the child's best
interests. (Id. at p. 310.) The parent
may rebut that presumption by showing changed circumstances that would warrant
further consideration of reunification.
(Ibid.)
In determining
whether reunification is in the child's best interests, the juvenile court
should consider a number of factors, including:
"(1) the seriousness of the problem which led to the dependency,
and the reason for any continuation of that problem; (2) the strength of
relative bonds between the dependent children to both parent and
caretakers; and (3) the degree to which the problem may be easily removed or
ameliorated, and the degree to which it actually has been." (Kimberly
F., supra, 56 Cal.App.4th at p.
532.) This list is not meant to be
exhaustive. (Ibid.)
We review the grant or
denial of a section 388 petition for an abuse of discretion. (In re
Shirley K. (2006) 140 Cal.App.4th 65, 71.) While the abuse of discretion standard gives
the 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 action an 'abuse' of discretion."
(City of Sacramento v. Drew
(1989) 207 Cal.App.3d 1287, 1297.)
B
Focused on the Sibling Relationship to Determine the Parent's Request for
Custody Under Section 388
In evaluating the evidence at
the section 388 hearing, the juvenile court found there had been a legitimate
change in Daniel's circumstances and that he had a close, parental bond with
D.R. The court noted the lack of
evidence about D.R.'s bonds with Marie and Annette, and stated: "But we do have testimony on the
relationship between [D.R.] and his brother, and I think that relationship is
the linchpin to this motion. The
children have been through a fair amount.
And from the description from the maternal grandmother,
two boys are more bonded with one another than they are with anybody. Caregiver, father, mother. ¶ And based upon that bond, as has been
testified to, I cannot say that it would be in [D.R.]'s best interest to remove
him from that relationship."
(Italics added.)
The sibling
relationship is not the determinative factor in assessing a parent's request for
reunification at a section 388 hearing.
A young child's needs for competent, caring and stable parenting is paramount,
and in most cases will take precedence over the child's sibling relationships. (Cf. In
re L.Y.L. (2002) 101 Cal.App.4th 942, 950 [discussing the sibling
relationship exception to termination of parental rights].) Although a dependent child may have a close
bond with a sibling, in most circumstances, the sibling will not be able to
provide for the child's fundamental needs for food, shelter, clothing,
supervision, education, guidance, and safety, stability and permanency. When a parent demonstrates a legitimate
change of circumstances prior to a section 366.26 hearing, the court then
determines which caregiver will best meet the child's needs for a permanent
placement in a loving and safe home. (
Here, the juvenile court did not
evaluate the strength of relative bonds between D.R. and both his
father and caregivers, and assess their respective abilities to best meet
D.R.'s current and future needs.
Instead, the court abused its discretion when it improperly focused on
the sibling relationship instead of applying the Kimberly F. factors to determine whether reunification was in
D.R.'s best interests. (See
court inappropriately relied on its own experiences in determining the sibling
bond was more important to D.R. than his respective bonds to his father and
caregivers. We do not know if these
personal experiences were related to judicial experience or personal life
experiences.
Although the
exhaustive, the introduction of any nonlisted factors at a section 388 hearing
must be weighed in view of the section 388 petition's function as an "
parent to revive the reunification issue prior to a section 366.26
hearing. (Marilyn H., supra, 5
Cal.4th at pp. 309, 306 [the dependency scheme comports with due
process requirements in part because section 388 allows a parent to protect his
or her diminished but extant interests in the companionship, care, custody and
management of his or her child].) At
this stage of the dependency proceedings, elevating the importance of the
sibling relationship over the parent-child or parent-caregiver relationship
ignores the dependent child's needs for consistent parenting, permanency and
stability, and may implicate the parent's due process rights. (Ibid.;
see In re Luke M. (2003) 107 Cal.App.4th 1412, 1422-1424 (
This
court's decision in Luke M. supports
this interpretation. In that case, at the dispositional hearing,
the juvenile court denied the request of a noncustodial, out-of-state father
for placement of two of his four children on the grounds it would be
detrimental to separate the siblings. (
properly consider any factor that would cause the children to suffer detriment,
including disruption of their sibling relationships, in determining the
children's temporary placement. (Id.
at p. 1423.) In rejecting the father's
argument that using the children's sibling relationships to establish detriment
violated his right to the care and custody of his children, this court stated
its decision was limited to temporary placement decisions made at a
dispositional hearing. (
M. court stated the temporary placement decision did not alter the father's
status as a noncustodial parent, the juvenile court had concluded that
reunification with the mother was in the children's best interests, and an
out-of-state placement would hamper reunification efforts. (Id.
at pp. 1422-1423.) In approving
the juvenile court's assessment of the sibling relationship in a temporary
placement order, the
issue of the relative importance of the sibling relationship and the right to
parent in the context of the noncustodial parent's request for custody after
termination of reunification services. (
We conclude that in the
context of a request for reunification by a parent who has shown a legitimate
change in circumstances, the juvenile court should place greater weight on the
right to parent and the child's needs for competent, loving and stable
relationship. (
Cal.App.4th at pp. 530-532.)
Accordingly, we conclude that the juvenile court abused its discretion
when it relied on the sibling relationship as the "linchpin" to deny
Daniel's section 388 petition.
In their briefing,
Daniel and the Agency spend considerable time discussing the application of the
Kimberly F. factors in support of
their positions. In view of the juvenile
court's misapplication of the appropriate legal standard, we decline their
requests to reexamine the record. It is
not the function of the reviewing court to reweigh the evidence and make
factual findings. (In re Zeth S. (2003) 31 Cal.4th 396, 405 [the trial court
decides questions of fact, the appellate court decides questions of law].)
DISPOSITION
The order denying
Daniel's section 388 petition is reversed.
Because we reverse the order denying Daniel's section 388
petition, we necessarily reverse the order terminating Daniel's and Holly's parental rights. (In re
Jeremy W., supra, 3 Cal.App.4th
at p. 1416; In re Lauren R.,
rule 5.725(a)(2) & (g); In re DeJohn
B. (2000) 84 Cal.App.4th 100, 110.)
The matter is remanded to the juvenile court to conduct a new hearing on
Daniel's section 388 petition for reunification. Because we are unsure of the court's
statement respecting its own experiences, we order the new hearing to be
conducted before a different judge.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
the Welfare and Institutions Code unless otherwise indicated.
name="_ftn2" title="">[2]
Holly does not appeal.
