In re G.A.
Filed 4/19/13 In re
G.A. 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 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opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH
APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re G.A. et al., Persons Coming
Under
the Juvenile Court Law.
_____________________________________
SAN DIEGO HEALTH AND HUMAN SERVICES
AGENCY,
Plaintiff
and Respondent,
v.
GARY A. and JOSE N.,
Defendants
and Appellants.
D062943
(Super. Ct. No. J518-049 C/D)
APPEAL from
orders of the Superior Court of
County, David B. Oberholtzer, Judge. Orders affirmed as to Gary A., and
reversed and remanded as to Jose N.
Gary A.
(Gary) and Jose N. (Jose) appeal from
orders denying their respective petitions to modify a previous order and
terminating their respective parental
rights under Welfare and Institutions Code section 366.26. (All undesignated statutory references are to
this code.) Gary contends the juvenile court erred
when it declined to find that the beneficial relationship exception of section
366.26, subdivision (c)(1)(A) applied to the relationship with his son, G.A. Jose contends the juvenile court abused its
discretion when it denied his section 388 petition requesting that the section
366.26 order be vacated and he be given six months of additional services. Alternatively, Jose asserts the juvenile
court erred when it declined to find that the beneficial relationship exception
of section 366.26, subdivision (c)(1)(B)(i) applied to the relationship with
his son, J.N. As we explain below, we
reject Gary's contentions, but reverse as to Jose.
GENERAL
FACTUAL AND PROCEDURAL BACKGROUND
Mother has four children, J.N. (born
2009), G.A. (born 2007), F.U. (born 2006) and M.H. (born 2004), each with a
different father. In January 2011, the
Agency (the Agency) received a referral that Mother had left the children
with the maternal grandparents for days at a time and was not attending to
their needs. There were also concerns
regarding Mother's lack of involvement and unwillingness to receive in-home
services for F.U., who has autism.
In February 2011, Mother was arrested
and incarcerated for possession of drug paraphernalia. She did not attend a Team Decision Meeting
and refused the Agency's offer of services.
The Agency filed separate petitions on behalf of the children. The Agency detained the children and
ultimately placed then in the home of the maternal grandmother.
DISCUSSION
I.
A. Facts
In May 2011,
Gary was arrested for testing positive
for drugs, a parole violation, and was incarcerated until June
23, 2011,
when he entered a residential substance abuse program. While at the program, Gary was allowed visits with G.A. By June 2011, Gary had completed a parenting
program. In July 2011, the juvenile
court held the jurisdiction and disposition hearing, found the petition true,
removed custody from the parents, and ordered reunification services. In September 2011, Gary completed his substance abuse
program and his drug test results were negative. His contact with G.A. was positive, and by
November 2011, the social worker permitted unsupervised visits.
At the April
2011 six-month review hearing, the social worker recommended that Gary's reunification services be
terminated because Gary had relapsed.
The juvenile court terminated services and set a permanent plan
hearing. In December 2011 and January
2012, Gary failed to submit to drug testing and stopped visiting G.A.
In the
August 2012 permanent plan report, the social worker opined that G.A. was
likely to be adopted because he was in good health, active and engaging. The maternal grandmother wanted to adopt G.A.
and his three siblings. In September
2012, Gary filed a section 388 petition requesting visits and an
additional period of reunification services.
Gary stated that he had been residing in a program since being
released from custody in August 2012, that he was drug testing negative and
attending counseling. The juvenile court
denied a hearing on the petition. In
October 2012, Gary filed another section 388 petition, seeking an order
vacating the permanent plan hearing and additional reunification services. Gary asserted that G.A. had a strong bond
with him, and it was in the child's best interests to grant more services.
In November
2012, the court held a combined hearing on the permanent plan and the section
388 petition. The court granted a
hearing on the section 388 motion and ruled the same evidence would be
considered on the section 388 petition and the termination of parental
rights. After argument, the court denied
Gary's section 388 petition, and finding
no statutory exception, terminated parental rights. Gary timely appealed.
B. Analysis
Gary contends his parental rights should
not have been terminated because of the beneficial nature of his ongoing
relationship with G.A. (§ 366.26, subd.
(c)(1)(B)(i).) We are not persuaded.
Parental
rights may be terminated if there is clear and convincing evidence of
adoptability (§ 366.26, subd. (c)(1)); however, an exception exists where
a parent has "maintained regular visitation and contact with the child and
the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) A beneficial relationship is one 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 adoptive parents. (In re
Autumn H. (1994) 27
Cal.App.4th 567, 575.) The parent must
show that the parent-child relationship is such that the child will be greatly
harmed by the termination of the parent's parental rights, so that the
presumption in favor of adoption is overcome.
(In re Brittany C.
(1999) 76 Cal.App.4th 847, 853-854.)
Implicit in
this standard is that "a parental
relationship is necessary for the exception to apply, not merely a friendly or
familiar one. [Citations.]" (In re
Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) The existence of this relationship is
determined by taking into consideration "[t]he age of the child, the
portion of the child's life spent in the parent's custody, the 'positive' or
'negative' effect of interaction between parent and child, and the child's
particular needs . . . ." (In re
Autumn H., supra, 27
Cal.App.4th at p. 576.) We review
the juvenile court's ruling under the substantial evidence test (
light most favorable to the prevailing party.
(In re J.I. (2003) 108
Cal.App.4th 903, 911.)
Gary lived
with G.A. until G.A. was six months old.
Thereafter, Gary had weekly visits with his son. However, Gary was frequently in and out of
jail with arrests in September 2009, July 2010 and November 2010, and the
record is unclear whether he visited his son during this time period. Gary was released from jail near the end of
January 2011, but the Agency detained G.A. the following month. In May 2011, Gary was again arrested and
incarcerated until the end of June 2011, when he entered a residential
substance abuse program. While in the program,
Gary had consistent visits with G.A., with unsupervised visits scheduled to
start November 2011.
Gary,
however, stopped visiting G.A. in December 2011 and a report dated February
2012 indicated that his whereabouts were unknown. During this time period, the social worker
reported that G.A. had not asked about his father and displayed no behavioral
issues when visitation stopped.
Ultimately, Gary contacted the social worker at the end of August 2012
to request that visitation be reinstated.
Visitation resumed in mid-September 2012 when G.A. was five years
old.
This chronology
shows that Gary had not cared for G.A. since G.A. was six months old and was
primarily absent from his son's life until G.A. turned five years old. Gary enjoyed almost two months of visits with
G.A. before the section 366.26 hearing took place at the beginning of November
2012. During these visits Gary played
with his son and never acted inappropriately.
G.A., however, parted easily from Gary at the end of the visits and
there was no evidence that G.A. asked about Gary between visits. The social worker testified that while G.A.
enjoyed his interaction with Gary, he had not seen G.A. spontaneously initiate
any affection toward Gary. Rather, the
social worker observed that G.A. viewed his maternal grandmother as an
authority and parental figure and went to her for affection.
This record
amply supports the juvenile court's conclusion that the benefits adoption would
confer on G.A. outweighed the parent-child bond. (In re Autumn H., supra,
27 Cal.App.4th at p. 575.)
II. Jose's
Appeal
A. Facts
At the end
of April 2011, the Agency learned that Jose was an inmate at Acton Conservation
Camp (ACC), a fire camp, but that he was not allowed to make telephone
calls. In July 2011, the juvenile court
held the jurisdiction and disposition hearing, found the petition true, removed
custody from the parents, and ordered reunification services. In a letter to the Agency received in
November 2011, Jose requested visits with J.N., stating ACC had a nice visiting
area where he could play with J.N. The
social worker, however, did not believe visits were appropriate, due to the
distance, facility conditions, and inability of the maternal grandmother to
drive the distance with all the children.
In January 2012, the court ordered that Jose be provided with funds to
make collect calls to the caretaker and his son, of which he took advantage.
At the April
2012 six-month review hearing, the juvenile court stated it was aware that ACC
provided no services of any kind to inmates.
Nevertheless, it found that the Agency had provided reasonable services,
it terminated reunification services and set a permanency planning
hearing. The June 2012 section 366.26
report indicated that J.N. was considered to be adoptable, that he had a strong
attachment to his caregivers and siblings, and that the maternal grandmother
had begun the adoption home study process.
Jose telephoned every week or two, speaking with J.N. and the
half-siblings. In August 2012, the court
granted Jose's request to continue the contested permanency planning hearing to
allow Jose to file a section 388 petition.
In his
section 388 petition, Jose requested that the court vacate the permanency
planning hearing and order six months of reunification services. While at ACC, Jose had been an excellent
worker, disciplinary free, entrusted with additional responsibilities and drug
tested monthly with negative results.
Within days of his release from ACC in early August 2012, Jose enrolled
in a program of drug and parenting counseling.
He also obtained employment in an auto body shop. After his release, he visited J.N.
consistently. The court found that Jose
had established a prima facie showing and set a hearing on the merits.
At a
combined modification and permanency planning hearing in November 2012, the social
worker testified that granting the section 388 was not in J.N.'s best interest
as Jose did not have a long enough period of sobriety or freedom from criminal
activities and the minor needed permanency.
The juvenile court denied the section 388 request, finding that Jose's
circumstances had changed, but it would not be in J.N.'s best interest to grant
the request. The court found J.N. to be
adoptable and terminated parental rights, finding that Jose had not proved that
J.N. fell within the section 366.26, subdivision (c)(1)(B)(i) exception to the
termination of parental rights.
B. Analysis
Jose asserts
the juvenile court abused its discretion in denying his section 388 petition to
vacate the permanent plan hearing and grant him additional reunification
services. We agree.
Section 388
serves as "an 'escape mechanism' when parents complete a reformation in
the short, final period after the termination of reunification services but
before the actual termination of parental rights." (In re
Kimberly F. (1997) 56 Cal.App.4th 519, 528, citing
Cal.4th 295, 309.) Under this statute, a
parent may petition the court to change, modify, or set aside a previous court
order on the grounds of changed circumstances.
(§ 388, subd. (a).) The
parent must show both a change of circumstances and that the modification would
promote the child's best interests. (
Cal.App.4th 38, 47.) In considering a
request for a change of placement at the permanency planning stage, the juvenile
court must recognize that the focus has shifted to the child's need for
Stephanie M. (1994) 7 Cal.4th 295, 317.) On appeal, the juvenile court's ruling will
not be disturbed absent a clear abuse of discretion. (In re
Jasmon O. (1994) 8 Cal.4th 398, 415-416.) The "scope of discretion always resides
in the particular law being applied, i.e., in the 'legal principles governing
the subject of [the] action . . . . [Citations.]" (City of Sacramento v. Drew (1989) 207
Cal.App.3d 1287, 1297 (City of Sacramento).) A judicial determination that falls outside
the applicable principles of law constitutes an abuse of discretion. (Nickolas F.
v. Superior Court (2006) 144 Cal.App.4th 92, 119.)
As the
juvenile court correctly found, Jose's circumstances had changed. Jose testified that he had a long criminal
history and that he had been arrested about ten times. His drug of choice had been
methamphetamine. During his 17 months at
ACC, Jose was disciplinary free and had become a reliable worker, "who has
been entrusted with additional responsibilities above normal
expectations." Jose tested negative
on mandatory, monthly drug and alcohol tests.
Jose regularly attended weekly ministry services. He was described as "punctual, honest,
trustworthy, and responsible for his actions."
Immediately upon his release from
ACC, Jose obtained employment and housing.
His employer described Jose as a "very hard worker." He also independently signed up for parenting
and outpatient drug treatment, and had completed most of the parenting classes
at the time of the section 388 hearing.
Jose actively participated in a drug treatment group and 12-step meetings. All drug tests taken by the program were
negative.
At the time of the hearing, Jose had
been clean and sober from all drugs and alcohol for 23 months. Additionally, since his release in August
2012, he has been a law abiding citizen.
Jose stated that being in the fire camp and working hard helped him
become a law-abiding citizen. Jose
explained that the religious services and Bible studies helped him in his
sobriety because they "helped me form a foundation of better moral
standards for myself and for bringing up my son." He felt the church services gave him "a
whole new outlook," in terms of what he thought was right or wrong.
Turning to
the best interests prong, the factors to consider in ruling on a section 388
petition include: "(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." (In re
Kimberly F., supra, 56
Cal.App.4th at p. 532.)
On the first
Kimberly F. factor, it was the
Mother's neglect of the children that led to the dependency. J.N. was 21 months old when he was
detained. Jose's criminal records
suggest he was incarcerated most of this time prior to J.N.'s detention. Starting one month after the detention
hearing, Jose was an inmate at ACC for 17 months. In essence, Jose was a non-offending,
noncustodial parent who was ordered to participate in reunification services
due to his past record. Notably, Jose
entered ACC shortly after the juvenile court ordered reunification services for
Jose and was still an inmate when the court terminated his services. This factor favors Jose because the record is
undisputed that Jose was drug free and a model citizen while at ACC and that
Jose remained so at the time of the hearing.
The third
degree to which the problem may be easily removed or ameliorated and the degree
to which it actually has been. (
p. 532.) While the Mother's conduct
led to the dependency, it is undisputed that Jose had a history of crime and
drug abuse. As detailed above, Jose through
his own initiative and without any
assistance from the Agency, has made extraordinary progress in ameliorating his
problems, if not eliminating them entirely.
We rarely see a parent that has independently undertaken such efforts to
reunite with a child. This factor strongly
favors Jose.
The second
court to evaluate the strength of the relative bonds between the dependent
child and his or her parent, compared with the strength of the child's bond to
his or her present caretakers. (
p. 531.) In considering this
factor, the bond to the caretaker cannot be dispositive, lest it create its own
self-fulfilling prophecy. (
Here, although Jose and J.N. enjoyed only about two months of visitation
after Jose's release from ACC, the visitation logs show that Jose consistently
demonstrated a parental role and knowledge of the child's development,
responded appropriately to his child's verbal and non-verbal signals, put his
child's needs ahead of his own, and showed empathy towards his son. The visitation monitor noted that Jose was
very patient with his son. J.N. referred
to Jose as his "daddy" and had difficulty ending some of the
visits. During one difficult parting,
the visitation monitor noted that Jose's interaction with his son was
"great" and that Jose talked J.N. through everything and was very
attentive. The social worker did not
assess whether a significant parent-child relationship existed between Jose and
J.N. because there were too few visits to make that assessment. Nonetheless, the social worker admitted that
the relationship was "growing."
On the other
hand, it was undisputed that J.N. had a strong relationship with his current
caregiver, the maternal grandmother, and his half-siblings. The juvenile court concluded that
reunification or offering Jose additional services was not in J.N.'s best
interest because "developing a closer [parent-child] bond would not
outweigh the detriment of severing the bond" between J.N. his caregiver and
half-siblings. The record, however, does
not support the juvenile court's assumption that giving Jose an additional
period of reunification services to foster the developing parent-child
relationship would ultimately lead to the severance of J.N.'s relationship with
his caregiver and half-siblings. Rather,
should his section 388 petition be granted, Jose intended to continue contact
between J.N. and those relatives. Jose
testified that he has known the maternal grandmother for several years and was
on a friendly basis with her. He also
"very much" loved J.N.'s half-siblings and spoke to them on the
telephone.
Put simply,
granting the section 388 petition, vacating the permanent plan hearing and
providing Jose additional reunification services would not automatically lead
to the severance of J.N.'s close bonds with his caregiver and
half-siblings. Even in the best case
scenario where the court orders reunification and terminates its jurisdiction
over J.N., it may enter visitation orders that will be transferred to an
existing family court file, or visitation orders that may be used as the basis
for opening a superior court file. (
Cal.App.4th 504, 518-519; see generally, § 362.4.) This record suggests the juvenile court erred
in applying the standards for relief under section 388 to Jose's unique
situation. (See City of Sacramento, supra,
207 Cal.App.3d at pp. 1297–1298 [an abuse of discretion occurs not only
where the court's action "was utterly irrational," but also where the
court "is mistaken about the scope of its
discretion . . . [I]f the trial court acts in accord with
its mistaken view the action is nonetheless error; it is wrong on the
law"].)
Accordingly,
we conclude the juvenile court abused its discretion in denying Jose's section
388 petition, and in failing to order additional services. Our conclusion that the juvenile court abused
its discretion in denying Jose's section 388 petition renders moot his
alternative argument regarding the beneficial relationship exception. Additionally, the reversal of the order on
the section 388 petition requires the reversal of the judgment terminating
parental rights. (In re Lauren R. (2007) 148 Cal.App.4th 841, 861.)
DISPOSITION
We
affirm the orders of the juvenile court as to Gary. We reverse the order denying Jose's section
388 petition, and consequently, the order terminating Jose's parental rights is
also necessarily reversed. As to Jose, the
matter is remanded to the juvenile court for further proceedings consistent
with this opinion.
McINTYRE,
J.
WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.
