Jason K. v. Superior Court






Filed 10/24/11 Jason K. v. Superior Court 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JASON K., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;	D060136 (San Diego County Super. Ct. No. NJ14292C)
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.

PROCEEDINGS for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Blaine K. Bowman, Judge. Petition denied. Stay of Welfare and Institutions Code section 366.26 hearing vacated.

Jason K. seeks writ review of juvenile court orders in which the court denied him reunification services regarding his biological daughter, C.J. He contends the court erred by not offering him reunification services because it was in C.J.'s best interests to do so. He also asserts proper inquiry was not conducted according to the requirements of the Indian Child Welfare Act (ICWA).[1] (25 U.S.C. § 1901 et seq.) We deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2010, six-week-old C.J. was removed from the care of her mother, Katrina J., and father, Kyle J., and the Agency petitioned on her behalf under Welfare and Institutions Code section 300, subdivisions (a), (b) and (j),[2] alleging she was at risk of serious physical harm in that Kyle had subjected her siblings, three-year-old Ian C. and two-year-old Amy J., to excessive discipline/physical abuse and Katrina had left the children in Kyle's care. At the detention hearing, the court found Kyle was C.J.'s presumed father and ICWA did not apply in the case, and it ordered the three children detained in foster care.
At a settlement conference in May 2010, the court ordered the children placed in foster care and ordered reunification services for Katrina and Kyle. The court found Kyle was C.J.'s sole presumed father and deleted Katrina's former husband from the petition. At the six-month hearing in November the court continued services to the 12-month date, which was set for May 5, 2011.
In December 2010, the Agency requested discretion to place Ian, Amy and C.J. with the maternal grandparents in Pennsylvania upon approval under the Interstate Compact for the Placement of Children (ICPC). The Agency then withdrew the request because Katrina opposed the move. Subsequently, the grandparents and a maternal aunt and uncle were approved for placement through the ICPC. In February 2011, Katrina agreed to the move and the court gave the Agency discretion to place the children with the maternal relatives in Pennsylvania. Unfortunately, the placements were unsuccessful, and the children were returned to California in April and placed together in a concurrent foster home.
In preparing the report for the 12-month review hearing, the social worker learned that Katrina had told a social worker who was working with the family before this petition was filed that Jason was the biological father of C.J. This assertion was completely contrary to statements Katrina had made to this social worker in which she denied that anyone other than Kyle could have been C.J.'s biological father. When the social worker contacted Jason, he said Katrina had gone "back and forth" on whether he was the father and he wanted a paternity test.[3]
The Agency petitioned under section 387, requesting a higher level of care because the relatives were no longer willing to care for the children. The court ordered paternity testing for Jason. On May 31, 2011, the court received paternity test results confirming that Jason is C.J.'s biological father. It granted him supervised visitation.
Jason petitioned under section 388, requesting the court void all orders, conduct a new jurisdictional/dispositional hearing and provide him with reunification services. He argued it was in C.J.'s best interests to be able to form a relationship with him.
In its written report, the Agency recommended providing six months of services for Jason. Jason said Katrina had moved in with him in April 2009, they found out she was pregnant in May and she left in June, saying she wanted the military benefits Kyle could provide for her pregnancy. He said Katrina called him after C.J. was born, he had seen C.J. one time and when he held her he knew "she was mine." He also knew there had been child welfare investigations concerning child abuse in the home. Jason said he had let C.J. go once, but he now wanted to work toward having her in his care.
At the June 15, 2011 review hearing and hearing on the section 387 and 388 petitions, the social worker said the Agency was uncertain whether services should be offered to Jason. She testified the children had always lived together and it would be difficult for them if they were separated. She opined if C.J. were placed with Jason, the children would be separated, and she was unsure whether a potential relationship with Jason would outweigh the bond C.J. had with her siblings. She noted the children had behaviors that were difficult to handle. The Agency was recommending offering services to Jason because it would give C.J. and the Agency more options.
After considering the evidence and argument by counsel, the court granted the section 387 petition and ordered the level of care changed from relative care to foster care. Based on the strength of C.J.'s relationship with her siblings, it denied services for Jason. It terminated services for Katrina and Kyle and referred the case for a section 366.26 hearing.
Jason petitions for review of the court's orders. (§ 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) This court issued an order to show cause, the Agency responded and the parties waived oral argument.
DISCUSSION
Jason contends the court abused its discretion by not ordering that he be provided reunification services. He argues ordering services for him would be in C.J.'s best interests because the concurrent foster home where she was placed with her siblings could fail, and granting him services would give C.J. the option of placement with him.
A biological father is not entitled to receive reunification services as a "parent." However, a court has discretion to grant reunification services to a biological father if it finds that providing services to him would benefit the child. (§ 361.5, subd. (a).)
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 . . . . [¶] . . . [¶]

"(d) 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 . . . ."

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 5.570(e); In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) The petitioner bears the burden of proof to make both showings. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
"The [section 388] petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion." (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) A reviewing court will not disturb a court's discretionary ruling in a dependency proceeding " ' "unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]." ' " (In re Stephanie M., supra, 7 Cal.4th at p. 318.)
The court did not abuse its discretion by determining it was not in C.J.'s best interests to provide services to Jason. Jason knew when Katrina became pregnant that he might be the father. He said Katrina called him when C.J. was born, and he visited one time and held C.J. He said, "I knew as soon as I held her that she was mine." However, even when he became aware that there were allegations of child abuse and Child Protective Services was investigating Katrina and Kyle, he did not intervene or try to establish a relationship with C.J. Indeed, he did nothing to express an interest in her until 13 months after the children were taken into protective custody. Meanwhile, C.J. had been living in foster care with her siblings. She had established strong relationships with her siblings and was very bonded to her foster mother.
The trial court correctly observed that C.J.'s bond with her siblings was of principal importance to her. A child's bond with his or her siblings is an important factor to consider in determining a child's best interests. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1425-1426.) C.J. had never been separated from her siblings except for a few days when the children went to live with maternal relatives in Pennsylvania. She was currently living with her siblings in a concurrent planning home. The juvenile court noted C.J. had a strong relationship with her siblings and no relationship with Jason. If she were placed with him, she and her siblings would no longer live together. In view of this evidence, the trial court did not abuse its discretion in concluding it would not be in C.J.'s best interests to separate her from her siblings even if the three children are not able to find a permanent home with their current foster parents.
C.J. also was very attached to her foster mother and afraid of strangers. Although a child's relationship with a foster parent cannot be the sole basis for removing a child from a parent's custody or terminating parental rights, "after an extended period of foster care, it is within the court's discretion to decide that a child's interest in stability has come to outweigh the natural parent's interest in the care, custody and companionship of the child." (In re Jasmon O., supra, 8 Cal.4th at pp. 418-419.) C.J.'s relationship with her foster parents was a factor the court could properly consider when making its decision.
Jason has not shown that the court erred when it decided not to offer reunification services to him.
DISPOSITION
The petition is denied. The stay of the section 366.26 hearing issued on October 5, 2011, is vacated.



HALLER, J.

WE CONCUR:



BENKE, Acting P. J.



AARON, J.



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