In re Ricky L.

Filed 6/10/08 In re Ricky L. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, William E. Lehnhardt, Judge. (Retired Judge of the Imperial Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

Ricky L. appeals orders denying his petition under Welfare and Institutions Code sections 385/388^[1]and terminating his parental rights to his son, Ricky L. (R.L.). He

contends the court abused its discretion by denying his petition and erred by finding the beneficial parent-child relationship exception to termination of parental rights and adoption did not apply. We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

On August 25, 2004, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of nine-month-old R.L. under section 300, subdivision (b), alleging he had been periodically exposed to domestic violence between his mother, Karen S., and Ricky, including Ricky pushing and punching Karen in the face. Karen and Ricky began dating when Karen was 13, and Karen gave birth to R.L. just before her 14th birthday.

On November 4, 2004, the court found the allegations of the petition true and found Ricky to be the presumed father. On February 2, 2005, the court ordered R.L. placed in foster care and ordered the parents to comply with their case plans. Ricky's plan included a 52-week domestic violence program, parenting classes, a psychological evaluation, therapy and supervised visitation.

In April 2005 the social worker reported Ricky lived with the paternal grandmother (the grandmother) and he was on probation for the statutory rape of Karen. At the six-month review hearing, the court continued services. The court noted that Ricky's attendance at the domestic violence program and therapy was inconsistent, but he had completed parenting classes and visited R.L. regularly. On November 11, 2005, R.L. was placed with the grandmother with the condition that Ricky not live in the home. In October 2005 Ricky was arrested on a probation violation for not attending court-ordered domestic violence classes. The court continued services.

By February 2006 Ricky was having unsupervised and overnight visits with R.L. However, just as Ricky and R.L. were beginning a 60-day trial visit, Ricky was out drinking with friends late at night and was shot, allegedly by members of a gang associated with Karen. He had lifesaving surgery and lost a kidney. Thereafter, the court granted him short, unsupervised visits. On June 15 the court placed R.L. with Ricky and terminated Karen's reunification services.

In December 2006 the social worker reported Ricky and R.L. continued to live with the grandmother, Ricky was complying with the terms of his probation and had completed about half of his domestic violence classes. That month, however, according to the grandmother, Ricky went to Los Angeles in violation of his probation. He was there for more than a week, leaving her to care for R.L. Shortly after his return to San Diego, he was arrested for being a felon in possession of a firearm, carrying a concealed weapon and participating in criminal street gang activity. He pleaded guilty to being a felon in possession of a firearm and was incarcerated for six and one-half months, until July 14, 2007.

In January 2007 the Agency petitioned under section 387, alleging Ricky had been arrested and incarcerated and was no longer able to provide care. At the jurisdictional/dispositional hearing on April 30, the court found the allegations true, terminated Ricky's reunification services, ordered R.L. placed with the grandmother and set a section 366.26 hearing.

The social worker recommended the court terminate parental rights. She stated R.L. is highly adoptable and the grandmother was interested in adopting him. She opined Ricky and R.L. had something of a parent-child relationship and Ricky acted appropriately during visits, but R.L. looked to the grandmother as his primary caregiver. The social worker noted that during visits Ricky and R.L. were affectionate, and R.L. looked up to Ricky and wanted to be big and strong like he is.

On October 9, 2007, Ricky petitioned under sections 385 and 388, requesting the court return R.L. to his custody. He said he was no longer incarcerated, was able to provide care, had participated in the programs available to him in custody and he and R.L. have a strong bond.

In a report dated October 16, 2007, the social worker stated Ricky and R.L. were having regular visits. She reported R.L. had told her that during a visit to Disneyland, "[Ricky's girlfriend] doesn't listen/obey and my dad has to yell at her." He also said Ricky used swear words and Ricky said he was going to drink and fight with his friends.

On November 6, 2007, at the hearing on Ricky's sections 385/388 petition and the section 366.26 hearing, the social worker testified Ricky had not completed his 52-week domestic violence class or therapy, and his criminal lifestyle and recent arrest were of concern. She also said R.L. had been in Ricky's physical custody for only six months of the more than two years R.L. had been a dependent of the court. She further testified Ricky had been in therapy on and off since 2005 and had been terminated by two therapists for nonattendance.

Ricky testified that when he was arrested for being a felon in possession of a firearm he was taking the gun to a friend because he did not want it, and R.L. was home with the paternal grandmother. He said he was incarcerated for seven months, during which he had weekly visits with R.L. He noted he re-enrolled in domestic violence classes when he was released, but did not enroll in therapy because there was nothing wrong with him. He testified that he cared for R.L. by himself while the grandmother was at work, he loved R.L. and wanted to be with him, and it was in R.L.'s best interests to be returned to him.

The grandmother testified R.L. lived with her and Ricky from January to December 2006. She said when she was not at home Ricky cared for R.L. She noted Ricky was currently visiting about five times each week and, when visits ended, R.L. cried because he did not want Ricky to leave. She said she was present when the family went to Disneyland, and Ricky did not yell at anyone.

The court denied the sections 385/388 petition and, after hearing stipulated testimony by Karen and testimony by Ricky, found R.L. was adoptable and none of the statutory exceptions to termination of parental rights and adoption were present. The court terminated parental rights and ordered adoption as the permanent plan.

DISCUSSION

I

Ricky contends the court abused its discretion by denying his section 388 petition. He argues he showed his circumstances had changed because he had been released from custody, and it was in R.L.'s best interests to reunify with him. He contends that although there is no "go to jail, lose your child" rule in California, that is essentially what happened in this case. We are unpersuaded.

Over the course of R.L.'s dependency, efforts were made to help Ricky become a safe parent for R.L. Ricky progressed to the point where he and R.L. had a trial visit, and, at one time, the court ordered R.L. placed with him. However, Ricky unfortunately continued to make poor choices causing him to be unable to care for R.L. Although Ricky's circumstances had changed in that he had been released from custody, he did not show he was able to be a safe, stable and effective parent for R.L. The court did not abuse its discretion by denying Ricky's petition.

Section 388 provides in part:

"(a) Any parent or other person having an interest in a child who is 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 or to terminate the jurisdiction of the court. . . . [] . . . []

"(c) 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 . . . ."

In order to gain the relief sought in a section 388 petition, the petitioner must show both a change of circumstances or new evidence and that the change sought is in the child's best interests. ( 388; Cal. Rules of Court, rule 1432(c); In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) "It is not enough for a parent to show just a genuine change of circumstances under the statute[,] [t]he parent must [also] show that the undoing of the prior order would be in the best interests of the child." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) The petitioner bears the burden of proof to make both showings. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)

Dependency proceedings began in August 2004 as a result of a domestic violence incident at which time Ricky was arrested and incarcerated. At that time he was on probation for statutory rape. R.L. was detained and removed from parental custody in November 2004. In October 2005 Ricky was arrested and incarcerated again for violating the terms of his probation. He participated in services and in February 2006, the Agency recommended R.L. be placed with him. However, just one month later, Ricky was walking home from a friend's house at 2:00 a.m. and was attacked by gang members reported to be associated with Karen. The grandmother provided R.L.'s care while Ricky recovered from his injuries and, in mid-June 2006, the court placed R.L. with Ricky. Six months later, Ricky was arrested again and pleaded guilty to being a felon in possession of a firearm. As a result of his choice to be out late at night carrying a firearm, he was incarcerated once again and not available to be a parent to R.L.

In In re Kimberly F., supra, 56 Cal.App.4th at pages 530-532, the appellate court listed three factors a court might consider when determining if a child's best interests would be served by granting a section 388 petition: (1) the seriousness of the problem that led to the dependency and the reasons for any continuation of the problem; (2) the strength of the bond between the child and parent and the child and the caretaker; and (3) the degree to which the problem may be removed and the degree to which it has been removed.

The problem that led to the dependency was Ricky's serious domestic violence against Karen. Although the dependency continued for more than two years, Ricky did not complete the 52-week domestic violence class he was ordered to attend. Some of the time he was incarcerated; at another time he was recovering from injuries. After his release from custody in mid-June, he attended just six more classes before the November 6 hearing even though, as he testified, he was working only part time.

As to the second factor, although Ricky was a part of R.L.'s life and they had an affectionate relationship, it was the grandmother who had provided stable, reliable parental care. The Agency worker observed that during a visit, R.L. asked for assistance from the grandmother, not Ricky, even though they were sitting together. R.L. acknowledged to Ricky that the grandmother was the one in charge.

As to the third factor, by the time of the hearing, services had been available to Ricky for more than two years, yet he had completed only about half of the 52-week domestic violence program. R.L.'s report of Ricky yelling at the woman R.L. described as Ricky's girlfriend indicates Ricky's problem with domestic violence may have persisted.

On this record, we hold substantial evidence supports the finding that R.L.'s interests would not be served by granting the motion and modifying the previous orders. Ricky has not shown the court abused its discretion by denying his petition.

II

Ricky contends the court erred by finding the beneficial parent-child relationship exception to termination of parental rights and adoption did not apply in this case. He argues he maintained regular contact and visitation, and R.L. would benefit from continuing their parent-child relationship.

Adoption is the permanent plan favored by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds by clear and convincing evidence that a child is adoptable, it becomes the parent's burden to show termination of parental rights would be detrimental to the child because of a specified statutory exception to termination of parental rights and adoption. (Id. at p. 574.) Under the exception found in section 366.26, subdivision (c)(1)(B)(i),^[2]the parent is required to show termination would be detrimental in that "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." In In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, the court noted "[c]ourts have required more than just 'frequent and loving contact' to establish the requisite benefit for [the] exception."

In reviewing whether sufficient evidence supports the trial court's finding, the appellate court reviews the evidence in the light most favorable to the court's order, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)

Assuming the record shows regular visitation and contact, Ricky has not shown he and R.L. had a beneficial parent-child relationship such that termination of parental rights would be detrimental to R.L. R.L. looked to his grandmother as his primary caregiver. Even when R.L. was living with him, Ricky did not care for R.L. by himself. Ricky continued to make poor choices, resulting in him being incarcerated, and he failed to give parenting a priority. Also, just before his arrest in December 2006, he had been in Los Angeles for more than a week, violating his probation and again leaving R.L. in the grandmother's care.

Although they had an affectionate relationship, Ricky did not show he could be a stable and dependable parent for R.L. or that R.L would benefit more from maintaining their relationship than from the stability and permanence of adoption. Substantial evidence supports the court's finding the beneficial parent-child relationship exception to termination of parental rights and adoption did not apply.

DISPOSITION

The orders are affirmed.

HALLER, Acting P. J.

WE CONCUR:

O'ROURKE, J.

IRION, J.

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^[1] Statutory references are to the Welfare and Institutions Code.

^[2] Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). Section 366.26, subdivision (c)(1)(A) became section 366.26, subdivision (c)(1)(B)(i). (Stats. 2006, ch. 838, 52.)