D.I. v. Super. Ct.

Filed 12/24/08 D.I. v. Super. Ct. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Gary L. Vincent, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Petition denied.

Anastasia Georggin for Petitioner.

No appearance for Respondent.

Joe S. Rank, County Counsel, and Prabhath D. Shettigar, Deputy County Counsel, for Real Party in Interest.

D.I. is the father of J.I., one of four children who were removed from their mothers custody in December 2004, due to neglect and mothers mental health problems. Because of regular visits and a beneficial parent-child relationship, the original permanent plan was one of guardianship. In 2008, father filed a petition to modify the prior court order (Welf. & Inst. Code,^[1] 388, hereafter the 388 petition) to resume reunification efforts with J.I. In response, the acting guardians filed a competing 388 petition, seeking to change the permanent plan from one of guardianship to one of adoption. The Department of Public Social Services (DPSS) agreed with the fathers 388 petition, but the juvenile court denied his petition and granted the guardians petition, setting a hearing to select and implement a permanent plan of adoption. ( 366.26.)

Father seeks review of the juvenile courts orders denying his petition and setting the permanent plan hearing by this petition for extraordinary relief. We deny the petition.

BACKGROUND

In 2004, four children, all half-siblings ranging in ages from 12 years of age to two years, were removed from the custody of their mother, A.E., due to the deplorable condition of the home, neglect by mother, mothers history of mental health issues and seizure disorder, a history of domestic violence between mother and D.I. who was not a member of the household, and the failure of the different fathers of the children to protect them. ( 300, subd. (b).) Mother has a seizure disorder which impaired her parenting ability (although she still drove a car with the children in it), as well as bipolar disorder; she had a prescription for medical marijuana, but also used methamphetamine.

The two older boys were placed with their respective nonoffending, noncustodial fathers, and the dependency cases relating to them were dismissed. The jurisdiction and disposition hearing took place in April 2005, after obtaining psychological evaluations of mothers amenability to reunification services. The two girls, A.J. and J.I, were found to be a sibling set and were initially placed in a foster home; reunification services were ordered for mother and father, not to exceed six months. In November 2005, the court terminated services for both parents, found that termination of parental rights would be detrimental due to regular visitation by the parents, and placed the two girls in the custody of the maternal grandmother under a legal guardianship.

Unfortunately, the children had to be removed from their maternal grandmother/guardian in 2006, after the guardian physically abused A.J. while intoxicated. At the time of A.J.s abuse, J.I. had been staying for a few weeks with her paternal grandmother, where her father was also living; he was quite attached to J.I., who was doing well in the home. Both children were detained in the same foster home in which they had been detained on the original dependency.

The paternal grandmother requested placement of J.I., and DPSS was ordered to do an assessment for guardianship. In an addendum report, the social worker recommended that the foster parents be appointed as guardians. The report indicated father had failed to submit a hair follicle test, although we have found no order in the record. The report also noted that father continued his relationship with mother. A.J. wanted to stay with the foster parents if she could not return to her mother, and was concerned about losing contact with J.I. if J.I. went to live with her paternal grandparents. J.I. was not interested in living with her grandparents.

On October, 25, 2006, at the disposition hearing on the new petition the guardianship of the maternal grandmother was terminated, and the foster parents were appointed as legal guardians of the two girls upon the courts finding that termination of parental rights would be detrimental.

On February 26, 2008, father filed a petition to modify a prior court order ( 388), seeking to have J.I. placed with the paternal grandmother under a guardianship, and reinstatement of reunification services. The petition alleged there were changed circumstances, in that he had completed a 52-week anger management program, had been drug free, and his mothers home had been previously evaluated. On April 2, 2008, the foster parents/guardians petitioned for a modification, also. Their petition sought to modify the permanent plan from one of guardianship to one of adoption. The guardians petition alleged that the children wanted to be adopted, and that adoption would provide added security. On April 11, 2008, the paternal grandmother filed her own petition for modification, seeking placement of J.I. under a plan of guardianship.^[2]

DPSS investigated and reported that the legal guardians had been sabotaging visitation between the children and both parents as well as the paternal grandparents. The report and its addenda also indicated that in addition to completing the anger management program, father had completed parenting classes, was engaged in counseling, and was employed full time.

DPSS also reported that J.I. wanted to spend more time with her parents and grandparents, and that the parents were united in their desire to have the paternal grandparents appointed as legal guardians. Further, father and the paternal grandparents had maintained regular visits, and the father demonstrated love for his child. DPSS recommended that fathers petition be granted, and that as to J.I. only, the guardians petition should be denied.^[3] The court ordered a bonding study to assess the sibling relationship.

The bonding study was completed on July 21, 2008. The report concluded that the children had a close relationship, but that children are resilient and counseling or therapy would help. After a lengthy contested hearing on the cross-petitions, the trial court denied fathers petition, granted the legal guardians petition, and set a selection and implementation hearing at which parental rights may be terminated and a new permanent plan of adoption may be ordered. ( 366.26.) Father filed notice of intent to file a petition for extraordinary relief following those orders.

DISCUSSION

Father seeks reversal of the trial courts ruling denying his 388 petition. He argues the juvenile court abused its discretion by erroneously finding his circumstances were changing, rather than changed, and that granting fathers petition would not be in J.I.s best interests.

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 modifying (or undoing) the prior order would be in the best interest of the child. (In re S.J. (2008) 167 Cal.App.4th 953, 959.) 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. (Id.at pp. 959-960.)

Denial of a petition to modify is generally an appealable order (see In re Daniel C. (2006) 141 Cal.App.4th 1438, 1444), but when the denial of such an application is accompanied by an order setting a hearing pursuant to section 366.26, review by way of extraordinary writ is proper. (In re Charmice G. (1998) 66 Cal.App.4th 659, 670.)

We proceed to examine the courts findings on the two elements of a 388 petition.

1 Changed Circumstances

In evaluating whether the petitioner has met his or her burden to show changed circumstances, the trial court should consider (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 dependency child 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. [Emphasis in original.] (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.)

As to the first prong, J.I. and her older half-sibling were removed primarily because of neglect by the mother, since D.I., the father of J.I., was alleged to be a nonmember of the household. As to the petitioner here, jurisdiction was based on certain allegations naming D.I., specifically: (b-3) The mother and father, D.I., had engaged in domestic violence; (b-8) D.I. had a criminal conviction including convictions of possession of a controlled substance in 2002 and possession of a firearm in 2002; and (b-10) D.I. was not a member of the childs household and failed to provide the child with food, clothing, shelter, medical treatment, and protection from the mother.

The petition did not allege that father abused controlled substances, although he admitted to past use of methamphetamine. There is a reference to a positive drug test, but the record is unclear whether this test was conducted after DPSS intervened, since the only test results for father in the record relate to a random drug test conducted on March 21, 2005, and were negative. Nevertheless, the case plan included a standard substance abuse component, requiring father to participate in a drug treatment program, refrain from the use of controlled substances, and submit to random drug testing. Father had complied with this requirement and has been sober for a year and a half.

There is no information in the record indicating fathers past drug use ever posed a danger to his child, or that he ever attended visits under the influence of drugs. Nevertheless, he testified that he completed a drug program and has submitted to random drug tests while on probation, testing clean for a year and a half. The main issue for father to address was his volatile relationship with the mother, an issue that appears to be resolved. Because the primary problem that led to the dependency was the mothers neglect and substance abuse, we conclude that as to D.I., the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem, was not significant.

The second prong of the changed circumstances analysis relates to the strength of relative bonds between the dependent children to both parent and the caretakers. Prior to the first selection and implementation hearing, the social worker recommended guardianship because the parents had visited regularly and termination of parental rights would be detrimental. Between the establishment of the first guardianship with the maternal grandmother, and the filing of fathers 388 petition, the reports indicated consistent appropriate visitation, parental involvement in the childrens daily activities, and stated the parents functioned in a parental role. This evidence undermines the juvenile courts finding that father was merely a friendly visitor.

Further, the social worker observed a bond between J.I. and her father and reported that J.I. wanted to spend more time with her father and grandparents. However, she had never expressed interest in living with her paternal grandparents even before the foster parents were appointed as legal guardians, and at the hearing, she was adamant that she did not want to live with her father; instead, she preferred to remain in the guardians home with her sister. Both A.J. and J.I. were concerned about being separated.

Significantly, around the time father filed his petition for modification, the guardians began to interfere with visitation between J.I. and her parents and grandparents. To the extent their attempts to frustrate visitation may have had the purpose of undermining the parent-child relationship, analysis of the second prong weighs in favor of father.

The third prong relates to the degree to which the problem that caused the dependency may be easily removed or ameliorated, and the degree to which it actually has been. In this respect, the only dependency allegations relating to father involved domestic violence with mother, his past criminal record, and his inability to protect J.I. from mothers neglect. The petition and the reports of the social worker submitted prior to the hearing indicate that since the prior order the parents have been cooperating, father had completed anger management, was actively involved in counseling, had fulltime employment, available housing, and strong family support to provide for J.I.

The court expressed concern that father had not participated in drug treatment or drug testing, despite the social workers testimony that he had tested and that he was in compliance with his probation or parole conditions which included conditions relating to drug programs and testing. Because fathers drug use was not causally related to the dependency, and because there is no evidence to support the trial courts concern that father had not addressed drug abuse, the trial court erroneously determined that the fathers circumstances were changing, rather than changed. There was no evidence to refute the information in the DPSS reports or the testimony of the father and the social worker regarding fathers compliance with drug treatment and testing.

By all accounts, father had resolved the issues that caused removal of J.I. from his custody, he had completed parenting classes and anger management, and he was employed, was stable, and visited regularly. In our opinion, the father demonstrated changed circumstances.

2. Best Interests

It is not enough for a parent to show just a genuine change of circumstances; the parent must show that the undoing of the prior order would be in the childs best interests. (In re Kimberly F., supra, 56 Cal.App.4th at p. 529.) However, in this context, best interests is not determined by a simplistic comparison between the natural parents and the caretakers household. (Id. at p. 530.) Nor does the fact that the guardians home is a good home environment or that the child is happy and satisfied being away from his or her parents necessarily mean it is in the childrens best interests to remain there. (See In re Kristin W. (1990) 222 Cal.App.3d 234, 252.)

However, we cannot ignore the strong sibling bond between A.J. and J.I., and the grief that would be caused if they were separated. There is overwhelming evidence in the record of the strong emotional bond between these children, who have lived together their entire lives and who have been the only constants in each others universe. The Legislature recognizes the importance of sibling relationships as the only family, the last link to normalcy, that dependent children have left after a family has been broken up in a dependency proceeding. (See In re Erik P. (2002) 104 Cal.App.4th 395, 404 [discussing the sibling exception to adoptability]; see also, Fresno County Dept. of Children & Fam. Svcs. v. Superior Court (2004) 122 Cal.App.4th 626, 646-647 [holding that the strong sibling bond constituted good cause and justified rejecting the Indian Child Welfare Act placement preference].)

J.I. and her half-sister were declared to be a sibling set at the original jurisdiction/disposition hearing. Given this strong, close, emotional relationship, along with the fact J.I.s father was seeking return of J.I. only, and the paternal grandparents were only interested in placement of J.I. in their home, the granting of fathers petition would have been emotionally disastrous for J.I.

The court did not abuse its discretion in denying the 388 petition.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Ramirez

P. J.

s/Hollenhorst

J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

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

^[2] Although not included in the record, apparently mother also filed a petition to modify the prior court order, requesting visitation between the two girls and their older brothers. In this appeal, we deal solely with the denial of fathers 388 petition.

^[3] However, DPSS did recommend that the guardians petition be granted as to A.J., J.I.s older sister.