In re I.B.
Filed 3/8/13 In re I.B. CA4/2
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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In re I.B., a Person Coming
Under the Juvenile Court Law.
SAN
BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
S.B.,
Defendant and Appellant.
E057087
(Super.Ct.No. J234629)
OPINION
APPEAL from
the Superior Court
of
Bernardino County. Cheryl C. Kersey, Judge. Reversed with directions.
Siobhan M.
Bishop, under appointment by the Court of Appeal, for Defendant and
Appellant.
Jean-Rene
Basle, County Counsel,
and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
I.B., a
minor under the age of three, was declared a dependent after she suffered a
broken elbow and ankle while in the custody of legal guardians appointed after
I.B.’s mother was shot to death. Father
was in custody on a parole violation, so it was alleged he failed to protect
the minor and failed to provide for her.
(Welf. & Inst. Code,
name="_ftnref1" title="">[1] § 300, subds. (b), (g).) Father received and completed
positive for methamphetamine once and missed two drug tests early in the
dependency, and drank two beers on Christmas Eve during the reunification
period. Services were terminated and a
section 366.26 hearing was set. Prior to
the hearing, father filed a petition to modify the order setting the section
366.26 hearing (§ 388), demonstrating he had completed a new substance abuse
program on his own and maintained a close relationship with the minor. The county agreed that the petition should be
granted, but the court denied it based on the concerns of the minor’s counsel
that the minor needed stability and should remain with her half-brother. Father’s parental rights were terminated and
he appealed.
On appeal,
father argues that (1) the denial of his section 388 petition was error and (2)
his parental rights should not have been terminated based on a beneficial
parent-child relationship. (§ 366.26,
subd. (c)(1)(B)(i).) The
Services (CFS) agrees that the juvenile court erred in denying the request
to modify the court order, which renders moot any remaining issue regarding the
termination of parental rights. We
reverse.
BACKGROUND
On May 12, 2010, the mother of I.B., who
was born in October 2008, was shot and killed.
I.B.’s father, who was on parole at the time, was arrested the next day
for being in the company of his brother-in-law, also a parolee, in violation of
a parole condition that he not associate with other known parolees. The mother’s sister, Rosa P. was appointed as
the legal guardian of I.B. and her half-brother, Antonio H., on August 27 and August 23, 2010.
On August 28, 2010, the legal guardian
and her fiancé Sergio C., took I.B. to the emergency room for
ankle. Examination revealed a
supracondylar fracture of the elbow and a hairline fracture of the tibia. Rosa and Sergio’s children disclosed that
Sergio had picked I.B. up and dropped her on the ground, and eventually Sergio
admitted he had thrown the minor onto her bed.
Because the guardian’s initial explanations were inconsistent with the
injuries, it was determined that the injuries were inflicted
nonaccidentally. I.B. and her
half-brother, as well as Rosa and Sergio’s children, were taken into
At the
initial detention hearing, mother’s sister, the legal guardian, indicated there
was no American Indian heritage.
However, she had previously told one of I.B.’s treating physicians that
she and her family had native American heritage.
conference hearing, father was directed to complete the ICWA-020 form regarding
possible Indian heritage after he orally denied any. However, the form was not included in the
record. There is no information in the
record regarding the biological mother’s possible Indian heritage.
An amended
physical abuse (§ 300, subd. (a)), neglect (§ 300, subd. (b)), severe physical
abuse of a child under five (§ 300, subd. (e)) and substantial risk to a sibling
(§ 300, subd. (j)), based on the conduct of the guardians. As against father, the petition alleged he
failed to protect I.B. (§ 300, subd. (b)), and failed to provide care and
support for the minor. (§ 300,
subd. (g).)
An addendum
to the social worker’s report, prepared for the jurisdictional hearing,
indicated father had an extensive criminal history, between 2003 and 2009. Documents submitted at a later hearing showed
father had three misdemeanor convictions for disorderly conduct (Pen. Code, §
647, subd. (f)), a misdemeanor conviction for spousal abuse (Pen. Code, §243,
subd. (e)(1)), one misdemeanor conviction for possession of marijuana (Health
& Saf. Code, § 11375, subd. (b)), one misdemeanor conviction for
possession of controlled substances (Health & Saf. Code, § 11377, subd.
(a)), and one felony conviction for spousal abuse. (Pen. Code, § 273.5, subd. (a).) Father was released from his most recent
incarceration (for violating his parole) on November 8, 2010.
On March
25, 2011, at the jurisdictional hearing, father submitted on the basis of the
social worker’s reports. As to father,
the court made true findings as to the allegation that he failed to protect
I.B. (§ 300, subd. (b)), dismissing the
allegation that he failed to provide for her.
(§ 300, subd. (g).) The minor was
declared a dependent, and was removed from the custody of the legal guardian
and father. The court determined that
father was merely an alleged father, but granted him reunification services
nonetheless.
title="">[3]
The minor
was in two different placements prior to the jurisdictional hearing, where her
temper tantrums, biting, screaming, and head-banging were noted. On June 2, 2011, the minor and her
half-brother were placed with their maternal aunt, C.F. Information contained in the six-month review
report indicated that father had lived with mother for five years, including
the time of the minor’s conception, although his name was not on her birth
certificate. Following father’s release
from custody, he lived with his mother and two sisters and maintained
employment. On June 21, 2011, he tested
positive for methamphetamine in a random drug test, and missed a test on July
8, 2011. All other random drug tests
during the six-month period were negative for any substances.
In all
other respects, father progressed well in his reunification program. His home was well kept, he visited regularly
with I.B. and her half-brother, interacting with them appropriately. He regularly attended the batterer’s program
and an 18-month Driving Under the Influence program. Father was expected to be discharged early
from parole.
title="">[4] As a result, father’s visitation was
increased to unsupervised visits for two hours weekly between April and August
of 2011, when father was given unsupervised overnight visits on weekends. Father always interacted well with the minor
and her half-brother. On September 26,
2011, the court conducted the six-month review hearing and extended services
for father, authorizing CFS to return I.B. to her father’s custody on family
maintenance by packet when deemed appropriate.
By November
30, 2011, father had completed the outpatient drug program and the batterer’s
program, and was participating in the remaining court-ordered services. Father’s counselors and treatment supervisors
indicated father had progressed well.
However,
C.F., the maternal aunt with whom I.B. was currently placed, reported that on
Christmas Eve 2011, father called and he sounded intoxicated.
tests since the date of the review hearing because he forgot to call, he tested
regularly otherwise, and all tests were negative for drugs and alcohol. Father’s therapist reported father had made
gains and benefited from therapy, while the parent-child interactive therapy
therapist reported she was satisfied with father’s progress in managing I.B.’s
tantrums. On January 5, 2012, the social
worker also noticed father appeared to be slimmer, which father attributed to
the fact that his recent employment involved unloading heavy containers for
nine or 10 hours per day. Because of the
allegation that father was inebriated on Christmas Eve, and because he appeared
to be slimmer and had missed two additional drug tests, the social worker
suspected he was abusing substances.
On April
13, 2012, the court conducted a hearing combining the 12-month status review
with father’s request to change a prior court order, seeking presumed father
status. (§ 388.) The court granted father’s request to change
father’s status from “alleged†father to “presumed†father. It then found that father failed to regularly
participate and to progress in the court-ordered reunification services,
terminated father’s services, and set a hearing pursuant to section 366.26.
On August
1, 2012, CFS submitted a report for the section 366.26 hearing. The report noted that I.B. is always happy to
see her father, who does a good job engaging and interacting with her. On August 8, 2012, father filed a second
section 388 petition to return custody or reinstate services. The petition alleged that despite drinking
alcohol on Christmas Eve 2011, he re-enrolled in a substance abuse program and
parenting classes on his own immediately thereafter, and drug tested regularly
with negative results.
In response
to father’s section 388 petition, CFS agreed that the court should return the
minor to father’s custody. The report
noted that father took it upon himself to enroll in another outpatient program
and successfully completed it with positive marks, consistently tested
negative, maintained a stable home and steady employment. The report further noted that although there
were three missed visits, they were attributable to the caretaker’s health or
transportation trouble. The visits were
appropriate, the minor referred to father as “Daddy,†and she always hugged him
at the end of the visit. In fact, I.B. stated she wanted to live with her
daddy. CFS therefore recommended that
maintenance services be granted to father, and that the court find there were
changed circumstances.
On
September 4, 2012, at the hearing on father’s section 388 petition, minor’s
counsel opposed the recommendation to return the minor to her father because
the current caregivers were the parental figures for I.B., she was placed with
her half-sibling, and she needed permanency and stability. The court denied the petition finding it
would not be in the child’s interest to return her to her father because the
court did not want the minor to lose her brother after losing both parents.
On September
6, 2012, the court conducted a contested selection and implementation hearing
pursuant to section 366.26. The social
worker testified about the positive quality of the visits between father and
I.B., and how she appeared to have a close bond with him, calling him “Daddyâ€
and stating she wanted to stay with him.
The decision to recommend adoption was a difficult one for the social
worker because father visited constantly and finished everything. However, in light of minor’s strong statement
at the section 388 hearing about the minor’s need for stability, and father’s
missed drug tests, the social worker recommended adoption.
After
hearing all of the evidence, the court ruled that it was not “appropriate at
this time to take a child, who is four, who has lost her mother and father to
then take them [sic] away . . . from
her brother too. That should be the most
important thing.†The court found by
clear and convincing evidence that the minor was adoptable, and terminated the
parental rights of father Father timely
appealed.
DISCUSSION
1.
Denying Father’s Section 388 Petition.
Father
argues that the court erred in denying his section 388 petition and CFS agrees
that father met his two-pronged burden of showing changed circumstances and
that modification of the prior order was in the best interests of the
minor. We agree.
A
juvenile court order may be changed, modified or set aside under section 388 if
the petitioner establishes by a preponderance of the evidence that (1) new
evidence or changed circumstances exist, and (2) the proposed change would
promote the best interests of the child.
(In re Stephanie M. (1994) 7
Cal.4th 295, 316-317.) The parent bears
the burden to show both a legitimate change of circumstances and that undoing
the prior order would be in the best interest of the child. (In re
Kimberly F. (1997) 56 Cal.App.4th 519, 529 (Kimberly F.).) Generally,
the petitioner must show by a preponderance of the evidence that the child’s
welfare requires the modification sought.
(In re B.D. (2008) 159
Cal.App.4th 1218, 1228.) The petition is
addressed to the sound discretion of the juvenile court, and its decision will
not be overturned on appeal in the absence of a clear abuse of discretion. (Stephanie
M., supra, 7 Cal.4th at p. 318; In re
S.J. (2008) 167 Cal.App.4th 953, 959.)
The
best interests standard is not a simplistic comparison between the natural
parent’s and the caretaker’s households.
(Kimberly F., supra, 56
Cal.App.4th at p. 530.) Thus, the second
factor outlined in Kimberly F.
evaluates the strength of the existing bond between the parent and child, which
is considered so potentially important that it can even derail adoption as a
permanent plan. (Id. at p. 531.) In evaluating
this factor, the court considers the correlative bond between the child and the
caretakers, although the bond to the caretaker cannot be dispositive. (In re
D.R. (2011) 193 Cal.App.4th 1494, 1512.)
The
first Kimberly F. factor, the
seriousness of the problem that led to the dependency was linked to physical
abuse inflicted by the minor’s guardians.
Father was incarcerated, so the only allegations pertaining to father
related to his failure to protect the minor against harm inflicted by the legal
guardians and his failure to provide for her.
In essence, father was a nonoffending, noncustodial parent who was
ordered to participate in reunification services due to his past record. Father’s participation in parent education,
counseling, and parent-child interactive therapy, addressed his ability to
protect and provide for the child, as well as to deal with her serious
behavioral issues. Father had no arrests
or other criminal law contacts during the entirety of the reunification period,
and was discharged from parole. No issue
was raised at the hearing that he did not address the seriousness of the
problem that led to the dependency and no argument was made in the trial court
or on appeal that denial of the section 388 was required based on this factor. This factor favors the father.
The second Kimberly F. factor requires the 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. (Kimberly
F., supra, 56 Cal.App.4th at p. 531.)
In considering this factor, the bond to the caretaker cannot be
dispositive, lest it create its own self-fulfilling prophecy. (Ibid.)
The bond between the father and
I.B. was strong and positive, as conceded by CFS in its response to the 388
petition, as well as in its brief on appeal.
I.B. referred to her father as “Daddy,†always gave him a hug when the
visits ended, and told the social worker that she wanted to live with him. He was able to maintain steady employment and
a stable home for a significant amount of time, and had significant family
support from his mother and sisters.
During the reunification period, I.B.’s half-brother also participated
in visits, and father was able to give attention to both children, equally.
On the other hand, there was no
evidence presented at the hearing to show that the correlative bond between
I.B. and her caretaker was so strong that the disruption of that relationship
would cause I.B. emotional harm. (
417-419.) This factor also favors the
father.
The
third Kimberly F. factor relates to
the degree to which the problem may be easily removed or ameliorate and the
degree to which it actually has been. (
led to the dependency, the problem in this case was father’s past record for
using drugs. In reviewing this factor,
we observe that although his criminal record included two misdemeanor
drug-related convictions between 2003 and 2009, neither this record nor any
alleged substance abuse was the cause of the dependency, nor would it, without
more, have supported a finding of jurisdiction.
(In re Destiny S. (2012) 210
Cal.App.4th 999, 1003.)
Nevertheless,
father completed not one, but two drug treatment programs, in addition to other
programs, as part of the court-ordered treatment program in order to reunify
with his daughter. Although father admitted
using methamphetamine once in the early stages of the reunification plan, and
drank two beers on Christmas Eve in 2011, he immediately reengaged in
outpatient treatment on his own, and successfully completed a second program. All drug tests (save those he missed prior to
the termination of services) were negative for any intoxicants. CFS agrees that the completion of the
programs and subsequent negative drug tests were sufficient to show changed
circumstances. Given the fact that
substance abuse was not alleged as a basis for the dependency, father’s
completion of the second program removed or ameliorated that concern.
In
any event, the father’s substance abuse was not the basis for the court’s
denial of relief. Instead, the court
based its decision that modification of the prior order was not in I.B.’s
interest because she had already lost her mom, she had lost her father because
he had been unable to parent her, and granting the petition would make her lose
her brother and the stability of her current placement. None of these factors are supported by the
record. Although I.B. had lost her
mother, return of custody to the father, or resumption of reunification
efforts, would prevent the “loss†of her father.
prevent I.B. from maintaining a relationship with her half-brother, who was in
the process of being adopted by a maternal relative, if the section 388
petition were granted.
The
denial of the petition constituted an abuse of discretion.
2. Reversal of the Order Denying the
Section 388 Petition Renders Moot the Orders Made at the Section 366.26
Hearing.
By
reversing the order on the section 388 petition, which sought the modification
of the order setting the section 366.26, that order has been effectively
vacated by our decision. (See
1599 [finding of changed circumstances render referral for § 366.26 hearing a
nullity].) It is necessary to restore
all parties to their prior positions, so the reversal of the order on the
section 388 petition requires the reversal of the orders terminating parental
rights. (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1061-1062;
841, 861.)
3. Additional Matters to Consider on
Remand.
In the
reports attached to the detention report, there is an indication that the
mother and her relatives have Native American ancestry. However, at the jurisdictional hearing,
mother’s sister, the legal guardian of the minor, who was the individual who
provided the information about the possible Indian ancestry, denied it. The court found that the Indian Child Welfare
Act did not apply at the jurisdiction
hearing.
Because of
this discrepancy, and in light of our reversal, we direct the court to order
further investigation into the possibility that the minor may be an Indian
child.
The
judgment is reversed. On remand, the
juvenile court shall direct CFS to conduct further investigation as to whether
or not the minor is an Indian child.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
RAMIREZ
P.
J.
We concur:
RICHLI
J.
MILLER
J.
further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
report prepared by Dr. Esteban Poni noted that a half-sister of I.B. had
congenital hip problems raising the possibility of congenital musculoskeletal
disease that needed to be ruled out. The
doctor asked Rosa (the guardian) about her heritage and was informed by Rosa
that her family was descended from Native American Indians. The doctor concluded there was a possibility
that I.B.’s fractures could be accidental.
