In re N.V.

Filed 6/18/08 In re N.V. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. Thomas L. Bender, Judge.

Elaine Forrester, under appointment by the Court of Appeal, for Defendant and Appellant.

David A. Prentice, County Counsel, and Miranda P. Neal, Deputy County Counsel, for Plaintiff and Respondent.

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Roberto P. appeals from an order terminating his parental rights (Welf. & Inst. Code,  366.26) to his 18-month-old daughter N.V.^[1] He contends the court erred by rejecting his bid to regain custody or reopen reunification services at the permanency planning phase. He also joins in any arguments which may accrue to his benefit and are made by N.V.s mother and her siblings biological father in their respective appeals, In re N.V. et al. (F054261) and In re R.V. (F054279). The mother challenged the denial of a similar petition she brought to regain custody of her children. The other father claimed he was denied timely notice of the proceedings regarding his son R.V. We affirmed in each case. In In re N.V. (F054277), we concluded the court did not abuse its discretion because the mother did not establish that a change of placement would be in the childrens best interests. We concluded in In re R.V. (F054279) the court failed to conduct a paternity inquiry of the mother but under the circumstances the error neither violated the due process rights of R.V.s biological father nor was it prejudicial. On review, we will affirm.

PROCEDURAL AND FACTUAL HISTORY

In June 2006, the Madera County Superior Court adjudged infant N.V. a dependent child and removed her from parental custody. The court previously determined she came within its jurisdiction under section 300, subdivision (b) because she was born in April 2006 drug-exposed and without the benefit of any prenatal care, placing her at a substantial risk of suffering serious physical harm. Although appellant claimed he was unaware of the mothers methamphetamine abuse, the court also found he failed to protect N.V. because he either knew or reasonably should have known the mother was abusing drugs while pregnant. The court at the June 2006 dispositional hearing also ordered reunification services for both parents.

During the first six months of services, appellant completed parenting classes but only sporadically visited with N.V. despite the opportunity for weekly visits. There appeared to be no bond between him and the infant. When asked his plan for N.V.s care while he was at work, appellant replied he would allow the mother to watch the infant. The mother, however, denied any drug addiction and did not participate in her case plan.

Although the court concluded appellant as well as the mother had not made significant progress toward alleviating or mitigating the causes necessitating N.V.s foster care placement, it nonetheless continued services for each parent. It also ordered appellant to participate in an Al-Anon support group to learn the impact of illegal drugs on a family and not deny partner addiction.

Due to the unavailability of Spanish-language Al-Anon services, the department authorized appellant in February 2007 to instead attend 12-step meetings. Although appellant claimed to a social worker that he was consistently attending 12-step meetings, he did not provide any documentation for the period up through late May 2007. Thereafter, he produced attendance records for meetings between late May and mid-June 2007. He claimed he only was asked to accompany and support the mother at meetings. He acknowledged he was referred to Spanish-language Al-Anon classes in Fresno but could not go to Fresno. According to the department, he also did not make progress towards learning to understand the affects of drugs and how they could harm the entire family. In addition, appellant apparently still was not visiting his daughter on a regular basis. He attributed it to his work schedule.

Meanwhile, the mother was pregnant and delivered a boy, R.V., in late April 2007. As recently as the day before she gave birth, she tested positive for methamphetamine. As a result, the department detained the newborn and initiated dependency proceedings on his behalf. As paternity testing would later reveal, appellant was not R.Vs biological father.

Following a contested hearing in June 2007, the court found neither appellant nor the mother made significant progress toward alleviating the causes of N.V.s foster care placement. From the courts perspective, appellant was just very stubborn by claiming he did not understand what he was supposed to do. The court noted appellant had a Spanish-speaking social worker with whom he apparently chose not to converse. The court terminated reunification services for both parents in N.V.s case. The court in turn set an October 2007 hearing to select and implement a permanent plan ( 366.26) for N.V.

Three months later, appellant formally requested the court change its orders by either placing N.V. with him subject to family maintenance services or reinstating reunification services. He alleged he did not do drugs, was attending Narcotics Anonymous (NA) classes and was attending classes with the mother on a regular basis. Attached to his petition were copies of his attendance reports. He also referred to his completion of parenting classes a year earlier. He alleged a different court order would be in N.V.s best interests because she would be better off with him than with strangers.

The court held an evidentiary hearing on appellants request in October 2007. Appellant testified he attended 12-step classes with the mother almost every day. He provided additional documentation of his attendance up through the time of the hearing.

He also recently started attending counseling classes with her at a local church. He replied in the affirmative when asked Did you learn anything from those classes? However, he offered no details. He also offered no details about his current living and work situations or his current relationship with either the mother or N.V.

At the hearings conclusion, the court asked about appellants position in that the mother also had petitioned for placement with family maintenance services. Appellants trial counsel responded:

he would rather the child go to the mother and be placed with her so he can support her. But he would want the visitation, and so I believe that the Court can offer Family Maintenance Services to the father and the mother, even if they are in different homes.

The court took the matter under submission for a later hearing. At that time, the court denied both appellants and the mothers requests. Turning to the issue of permanency planning, it was undisputed N.V. was adoptable. Accordingly, the court terminated parental rights. It reached the same conclusion in the case of N.V.s half-sibling. The two children had been placed together with the same foster family who was committed to adopting them.

DISCUSSION

Appellant contends the court abused its discretion by denying his request for placement of N.V. with him or further reunification services. In his view, he deserved an opportunity to reunify with her because he completed and exceeded his case plan requirements, worked hard to understand the impact of the mothers drug use on N.V., and demonstrated an ability to provide N.V. a safe and secure environment. He further claims there was no evidence that granting his request would cause N.V. any serious, long-term emotional damage. On review of the record as summarized above, we disagree.

Any party to a dependency proceeding may petition the court to modify or set aside a prior order on grounds of changed circumstance or new evidence. ( 388, subd. (a).) The petitioning party, however, must also show the proposed change is in the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Whether the juvenile court should modify a previously made order rests within its discretion and its determination may not be disturbed unless there has been a clear abuse of discretion. (Id. at p. 318.)

The trial court properly could find appellants circumstances had not sufficiently changed since the June 2007 hearing when the court terminated services. At best, appellant continued to attend the NA meetings that he began attending only weeks before the June 2007 hearing and very recently began attending church counseling with the mother. Remarkably though, he could not articulate what insight, if any, he gained regarding the impact the mothers drug abuse had on him or their daughter. At most, he testified yes in answer to Did you learn anything from those classes?

In any event, appellant failed to make any showing the proposed change was in N.V.s best interests. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) What showing he did make in support of his request did not even address N.V. Furthermore, given the timing of his modification request, it was incumbent upon appellant to show N.V.s need for permanency and stability would be advanced by an order either placing her with him or reopening reunification services. (Ibid.)

At the permanency planning stage, the focus shifts away from family reunification to the childrens needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) In fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. (Id. at p. 302.) A court hearing on a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317.)

On this point appellant offered no evidence. While he now argues there was no showing that the proposed change would be harmful to N.V., he ignores the fact that it was his burden to show it was in the childs best interests. The standard the juvenile court must apply at a hearing for change of placement under section 388 does not require that it grant the change unless such a placement would be detrimental to the child. Rather, the court must decide whether the petitioning party carried the burden of showing that the proposed change of placement was the childs best interests. (In re Stephanie M., supra, 7 Cal.4th at p. 325.)

In the end, we conclude the trial court did not abuse its discretion by denying appellants change of placement request.

DISPOSITION

The order terminating parental rights is affirmed.

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^* Before Cornell, Acting P.J., Gomes, J. and Kane, J.

^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.