In re T.P.
Filed 2/10/12 In re T.P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re T.P., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO
COUNTY CHILDREN
AND FAMILY SERVICES,
Plaintiff
and Respondent,
v.
T.P.,
Defendant
and Appellant.
E054281
(Super.Ct.No.
J229027)
O P I N I
O N
APPEAL from the Superior
Court of
Bernardino County.
Wilfred J. Schneider, Jr., Judge.
Affirmed.
Roni Keller, under appointment by
the Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle, County
Counsel, and Danielle E. Wuchenich,
Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
The juvenile court terminated the
parental rights of defendant and appellant T.P. (Father) regarding his
daughter, T.P., pursuant to section 366.26 of the Welfare and Institutions
Code.
change court order under section 388 (388 petition); and (2) he was denied due
process because the court terminated his parental
rights when he was not an unfit parent.
We reject these arguments and affirm.
II. SUMMARY OF
FACTS AND PROCEDURAL HISTORY
A. Background
T.P. was detained within days of her
birth in September 2009 when her mother advised a hospital social worker that
her rights to two children were about to be terminated. It was learned that the mother had a long
history of involvement with the children’s services agencies of several
counties and that her other children had been removed from her care as a result
of homelessness, her paranoid schizophrenia, and chronic use of
methamphetamine. San Bernardino County
Children and Family Services (the department) was also concerned that Father
did not have the ability or interest to care for the infant. When questioned by a social worker at the
time of T.P.’s removal, Father said he could not care for T.P. on his own or
without the mother’s assistance.
The department filed a
section 300. Among other allegations,
the department alleged that the parents failed to protect T.P. for purposes of
section 300, subdivision (b), because Father’s ability to provide adequate care
and supervision for the child is “currently unknown, based on a history of not
caring for two of his own children,†as well as the mother’s substance abuse,
chronic mental health problems, and mental illness.
The department initially
recommended, in its jurisdictional/dispositional report, that neither parent
receive reunification services. The
report recounted that the mother had failed reunification attempts on three
separate occasions because she did not remain on medications to control her
she chronically abused methamphetamine.
Most recently, she had her rights terminated as to two of her
children: a child born in 2008 and an
eight year old. In fact, she had five
other children, none of whom were in her care.
In October 2008, the mother was taken into custody pursuant to section
5150, because she was having auditory and visual hallucinations and exhibiting
other bizarre behaviors.
Father had previously advised the
social worker that he had two children from another relationship, but had not
seen or contacted them in years. The
social worker noted that Father was reluctant to explain the reason for this
lack of communication. Instead, he
suggested that his history with them should not matter. When the social worker later pressed him for
information about these children, he did provide their last name, but again
dismissed the importance of the subject and suggested that they were probably
not even his children. The social worker
also opined that Father appeared more concerned about the mother’s welfare than
T.P.’s, stating that if the mother were not allowed to return home, she might
become homeless. When Father was asked
if he would be able to care for T.P. if he had to do so on his own, he said he
could not, and that he would only be able to do so with the mother’s
assistance.
At the contested
jurisdictional/dispositional hearing on December 2, 2009, the department
changed its recommendation to offer reunification services to both
parents. Despite the mother’s history
and Father’s questionable commitment, the department noted that the mother had
recently completed a residential program and both parents had enrolled in a
family support program.
The court sustained the allegations
made under section 300, subdivision (b), including the allegation concerning
Father set forth above. It found by
“[c]lear and convincing evidence . . . that the child should be
removed from the physical custody of [the m]other and Father in that there is a
substantial danger to the physical health, safety, protection, or physical or
emotional well-being of the child, or would be if the child were returned home
. . . .†The court
ordered reunification services for both parents. The mother was to participate in counseling, parenting
education, and substance abuse services.
Father’s case plan included counseling, participation with the mother in
the National Alliance of Mentally Ill (NAMI), a parenting education program,
and involvement in parent/child interactive therapy.
By the time of the six-month status
review, Father completed a 12-week course sponsored by NAMI designed for family
members of mentally ill persons. While
he attended all the classes, his participation was described as minimal. The therapist reported that Father was very
guarded and evasive about his own parenting issues. Father did not believe that he should be the
focus of treatment. Instead, he
continually directed attention to the mother’s mental illness and her
medication issues. Based on his evasiveness
in therapy and lack of progress on his own issue, the
therapist could not recommend reunification at that time. However, she recommended that Father continue
with therapy and have a full psychological
evaluation should the court continue services.
Visitation with T.P. had gone well,
and both parents handled her correctly and acted appropriately for her
safety. However, they did not interact
very much with the baby. One of the
supervisors reported that they sat and watched television with her but there
was no “goo goo or ga gaing.†“They may
get a toy and wave it in front of her but that’s it.â€
Both parents had completed several
parenting classes. However, the social
worker described Father as a “marginal participant in the process,†and
reported that although Father “has participated in quite a few components of
his case plan, he is lacking insight as to what the health and welfare needs of
his daughter currently are.â€
At the six-month review hearing, the
court found “that custody by the parents continues to be detrimental to the
child . . . and that return of the child at this time to the parents
would create a substantial risk of detriment to her physical and emotional well-being.†The court ordered the continuation of
services for both parents.
In its 12-month status review report
of November 2010, the department recommended termination of services for both
parents. Father had made only minimal
progress. During the course of six months
of individual therapy, he continued to focus his attention on the mother rather
than T.P., and many times he had to be redirected to focus on his own
parenting. Father would often recount
the errors he thought the department was making with respect to the mother’s
case plan. The therapist opined that
Father was unsure of his ability to take care of his daughter and would include
the mother in his plans for T.P.’s future care.
The therapist concluded that Father had little to no insight into the
purpose of the programs the department had recommended. Father was “unable to gain insight into the
motivations of his own behaviors that would have a direct impact on the care of
his daughter. He simply was ‘jumping
through the hoops.’â€
Following the conclusion of Father’s
individual therapy sessions, Father continued participation in parent-child
interactive therapy (PCIT) and NAMI. A
NAMI worker reported that the mother and Father attended
meetings together and did well.
The social worker testified that Father lacked insight in that he did
not realize such sessions would be ongoing because mental disease does not go
away. A counselor in an interactive
infant parenting program reported that Father was a regular participant and had
shown some progress with his ability to interact with his daughter. However, she described the process as being
very slow and difficult, and that Father appeared very uncomfortable in the
process.
The psychologist who conducted
Father’s evaluation believed Father was a candidate for long-term
psychotherapy, and that he could benefit from services. Although the psychologist did not believe
Father’s psychological issues would necessarily interfere with his ability to
care for children, he was concerned that under high levels of distress “his
executive functioning and personality disorder might sufficiently impair him
[so] that he could become frustrated, error prone, or sufficiently withdrawn
that he becomes somewhat neglectful or dysfunctional in his childcare.â€
The social worker expressed concern
that Father had indicated he did not have the capacity to
parent the child without the mother’s assistance. It was noted that Father gave the mother an
eviction notice in February 2011, but did not ask her to leave. At this same time, he said he could manage
childrearing on his own, and said he would find a babysitter to watch T.P. as
he worked most nights. At the 12-month
hearing, Father testified he would have no contact with the mother if the court
ordered that as a condition of returning T.P.
Father also submitted a letter
addressed to him in which a family counseling service clinician stated that
T.P. “has demonstrated a secure bond an[d] attachment with you. Your consistent and regular attendance aids this
process by demonstrating a pattern and consistency with [T.P.]. Your continued compliance with [the]
therapist’s directives and suggestions has also aided in the increase in bond
and attachment.â€
At the conclusion of the hearing,
the court noted that each parent had made only minimal progress in alleviating
the causes for the dependency. The court
found “by preponderance of the evidence[,] that custody by [the m]other and
Father continues to be detrimental to the child . . . and that return
of the child to [the m]other and Father at this time would create a substantial
risk of detriment to the safety, protection, physical or emotional well-being
of the child.†The court terminated
services and set a section 366.26 hearing.
Both parents filed writ petitions
for review of the orders denying reunification services to the parents and
setting the section 366.26 hearing. In
denying the petitions, we explained that “[F]ather’s problem was his failure to
gain any insight from the reunification services offered to him. He had individual therapy but, in those
sessions, he refused to focus on his own parenting skills and constantly
referred to [the] mother’s issues. He
minimized [the] mother’s inability to parent and ascribed her difficulties to
ineffective medication. He was provided
interactive parenting classes but he never made much progress in that regard.â€
B. Section
366.26 Hearing and Father’s 388 Petition
In the section 366.26 report, the
department recommended that parental rights be terminated and the permanent
plan of adoption be implemented. T.P.
was living with prospective adoptive parents who had previously adopted two of
T.P.’s six half siblings.
name="_ftnref3" title="">[3] According to the social worker, T.P. appears
to have “a sibling bond†with her half siblings. T.P. “has made great gains and appears to be
thriving†in the placement. She refers
to the prospective adoptive parents as “‘mama’†and “‘dada.’â€
The parents visited T.P. twice since
the termination of reunification services.
During the first visit, in March 2011, at a Chuck E. Cheese, the parents
“appeared a little pensive and clumsy interacting with [T.P.] in such an
environment.†T.P. also “was a little
shy at first.†Eventually, T.P. began to
have fun, “venturing out by herself with [her parents] in tow.†The social worker reported that T.P. seemed
more at ease when she knew her prospective adoptive parents were nearby.
The second visit took place at the
department’s office in April 2011.
Although T.P. “seemed to be more drawn to [Father],†“it seemed as if a
lot of the gains that [Father] had made with the PCIT [program] had been lost,
as it was obvious that he struggled in his attempts to interact with her.†Father sat on the couch, trying to interact
with T.P. as she moved around on the floor.
He did not try to get T.P. to smile or respond verbally, except to say
her name in a very quiet voice.
On the date set for the section
366.26 hearing, Father filed the 388 petition.
Father requested that the court place T.P. with him under family
maintenance or offer further reunification services. He asserted that this would be better for
T.P. because “constitutional and statutory law presumes it is in the child’s
best interest to, whenever possible, be raised by his or her natural
parents.†Father supported the petition
with evidence that he had completed “The Nurturing Father’s Program†and
completed counseling with Lutheran Social Services of Southern California. The court set a nonevidentiary hearing on the
petition.
In response to the petition, the
social worker spoke with Father and the teacher of The Nurturing Father’s
Program. According to the social worker,
Father said he learned about “positive parenting†and that it is “important to
encourage children.†The social worker
was unimpressed. Although the social
worker gave Father “ample opportunity to describe more, even saying to him
‘this is a time to sell yourself on what you learned.’ He responded with ‘just positive
parenting.’†The program’s teacher
described Father “as quiet, non-participative, who struggled and had difficulty
in engaging. . . . [Father] showed absolutely no feelings as it
pertained to his situation. Somewhat
sarcastically [the teacher] said ‘He did show up to all the classes though.’â€
Regarding his counseling sessions,
Father told the social worker that “‘[w]e just talked about the case. That’s pretty much it.’†The social worker further reported that
Father was asked if he had had any insight about his situation and what he
might have learned about himself. Father
stated, “‘just that I need more social contact.’â€
The social worker concluded that,
despite the parenting program and counseling, Father “continues down the same
path. [He] has not gained the insight
[as to why T.P. was and continues to be removed from his care and custody], let
alone participated to any degree.â€
In an addendum report dated August
9, 2011, the department reported that the mother called the social worker about
a recent domestic violence incident between her and Father. The mother said she and Father got into an
argument when they were in Father’s van.
Father told the mother to get out of the van, and she refused. He tried pushing her out of the van with his
feet, and eventually pulled her out of the van.
Father wanted to keep the mother’s purse and fake documents so that she
could not work and would end up homeless.
He struck her on the arm and she hit him. Father drove away in the van, leaving the
mother stranded on the side of the road.
The mother said that she was afraid of what Father might do to T.P. and
said T.P. would be better off adopted by her current caregivers.
The social worker stated that the
mother’s report “affirms the recommendation by [the department] that
termination of [T.P.’s] parental rights would not be detrimental to her, but
that it is in her best interest.â€
At the hearing on the 388 petition,
the court admitted into evidence the section 366.26 report, Father’s 388
petition, the department’s response to the petition, and (over Father’s
objection) the addendum describing the mother’s report of domestic
violence. Father’s counsel submitted on
the petition.
title="">[4] The court found that there was no change in
circumstances and that granting the petition would not be in T.P.’s best
interest. Accordingly, the court denied
the 388 petition.
The court then held the section
366.26 hearing. Father did not submit
any additional evidence and made no argument.
The court terminated the mother’s and Father’s parental rights and
ordered adoption as the permanent plan for T.P.
III. ANALYSIS
A. Father’s
388 Petition
Under section 388, a parent may
petition the juvenile court to change, modify, or set aside a prior court order
if the petitioner establishes by a preponderance of the evidence that (1) there
are new or changed circumstances since the prior order, and (2) the proposed
change would serve the best interests of the child. (§ 388; In re S.J. (2008) 167 Cal.App.4th 953, 959 [Fourth Dist., Div.
Two].) “After the termination of
reunification services, the parents’ interest in the care, custody and
companionship of the child are no longer paramount. Rather, at this point ‘the focus shifts to
the needs of the child for permanency and stability’ [citation], and in fact,
there is a rebuttable presumption that continued foster care is in the best
interests of the child. [Citation.] A court hearing 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. (1994) 7 Cal.4th 295, 317.) The petition is addressed to the sound
discretion of the court, and the court’s ruling will not be disturbed on appeal
in the absence of a clear abuse of discretion.
(Id. at pp. 318-319;
Father asserts that changed
circumstances are evidenced by “his high degree of persistence in attempting to
meet the directives of the Department and circumstances of the case.†In particular, he “took parenting classes and
engaged in counseling designed for a single father and to meet the criticisms
of the Department.†Such evidence,
however, is insufficient to indicate that circumstances had changed for
purposes of section 388.
The department’s primary concerns
regarding Father were his apparent inability to care for T.P. without the
mother’s help and his lack of insight as to T.P.’s needs. Moreover, he did not appear to benefit from
his participation in reunification services.
According to a therapist, he was unable to gain insight into his
behaviors that directly impact the care of T.P.; “He simply was ‘jumping
through the hoops.’†The additional
parenting class
title="">[5] and counseling sessions offered in support of
Father’s 388 petition do not seem to have resolved this problem. Although Father showed up for the class
sessions, he could inform the social worker only that he learned about
“positive parenting†and the importance of encouraging children. The course teacher described him as nonparticipative,
despite the teacher’s efforts to get Father “to open up and to share his
experiences . . . .†When
Father was asked about his sessions with the Lutheran Social Services
therapist, he stated that the therapist told him he “‘needed to extend
[himself] by going to church, and by doing other social things.’†When asked about insights he had gained about
him and his situation, Father responded, “‘just that I need more social
contact.’†From such evidence, the
juvenile court could easily conclude that Father had not gained the knowledge
and insight necessary to care for T.P. and, therefore, circumstances had not
changed for purposes of section 388.
Nor did Father satisfy the second
prong under section 388—that the requested change would be in T.P.’s best
interest. The only reason Father gave
the trial court as to this prong is that the law presumes it is in the child’s
best interest to be raised by his natural parents whenever possible. However, this presumption “by itself does not
satisfy the best interests prong of section 388.†(In re
Justice P. (2004) 123 Cal.App.4th 181, 192.) The natural parent must still show “a
sustained commitment to the child and parenting responsibilities.†(Ibid.) Although Father’s participation in the
parenting class and therapy indicates some desire on his part to acquire
parenting skills, he offered no evidence that he had any parent-child bond with
T.P. other than a genetic connection.
Following the termination of his
services, Father had only two visits with T.P.
During the first visit, at Chuck E. Cheese, Father was initially
“pensive and clumsy†with T.P. T.P.
seemed to be more at ease once she noticed her prospective adoptive parents
nearby. During the second visit, Father
struggled in his attempts to interact with T.P.
He sat on the couch while T.P. moved around on the floor. Although he called her name repeatedly, he
did not appear to try to engage her in play or get her to respond to him.
In contrast with the near-total
absence of a meaningful parent-child bond between Father and T.P., T.P. has
developed a strong bond with her prospective adoptive parents and her two half
siblings. The social worker reported
that a “very strong mutual attachment between the child and her prospective
adoptive parents and siblings has been established.†The prospective adoptive mother told the
social worker: “‘I care about [T.P.]
just like I would had I given birth to her.
I love her. She is well
adjusted. She has her biological
siblings here. I feel like she has been
a part of the family even before she came here—even before birth. I feel like this is the best place for
her. She belongs here.’†T.P. enjoys playing with her half sister. According to the social worker, T.P.’s half
brother has “shown great interest in and is very protective of [T.P.]
. . . They enjoy a close
sibling bond and relationship, which should be maintained.â€
Father suggests that he is a
“non-offending†parent and that this fact should weigh in favor of granting his
petition. Father does not explain his
assertion that he is nonoffending. In
fact, after finding true a jurisdictional allegation against Father under
section 300, subdivision (b), the court made a dispositional finding, based on
clear and convincing evidence, that T.P. should be removed from the custody of
substantial danger to T.P.’s physical health, safety, protection, or physical
or emotional well-being if she were returned home, and there were no reasonable
means by which T.P.’s physical health can be protected without removing her
from the parents’ physical custody. We
therefore reject Father’s assertion that he is a nonoffending parent. (See, e.g., In re Frank R. (2011) 192 Cal.App.4th 532, 538-539 [father was
nonoffending because court never made a finding of detriment by clear and
convincing evidence].)
For all the forgoing reasons, the
court did not abuse its discretion in denying Father’s 388 petition.
B. Due
Process
Father contends he was denied due
process because his parental rights were terminated without a finding of
parental unfitness. The argument is
meritless.
“Parents have a fundamental interest
in the care, companionship, and custody of their children.†(In re
Gladys L. (2006) 141 Cal.App.4th 845, 848, citing Santosky v. Kramer (1982) 455 U.S. 745, 758.) In Santosky,
the court established minimal due process requirements in the context of state
dependency proceedings. “Before a State
may sever completely and irrevocably the rights of parents in their natural
child, due process requires that the State support its allegations by at least
clear and convincing evidence.†(
747-748.) “After the State has
established parental unfitness at that initial proceeding, the court may assume
at the dispositional stage that the
interests of the child and the natural parents do diverge.†(Id.
at p. 760.) “But until the State proves
parental unfitness, the child and his parents share a vital interest in
preventing erroneous termination of their natural relationship.†(Ibid.,
fn. omitted.)
Our state Supreme Court has held
that California’s dependency system comports with Santosky’s requirements because, by the time parental rights are
terminated at a section 366.26 hearing, the juvenile court must have made prior
findings that the parent was unfit. (
Cal.4th 242, 254; In re Gladys L., supra,
141 Cal.App.4th at p. 848.) A finding of
parental unfitness in California’s dependency scheme is indicated by the
juvenile court’s finding that awarding custody of a dependent child to a parent
would be “detrimental to the child.†(
at p. 537; In re Dakota H. (2005) 132
Cal.App.4th 212, 224, fn. 3.)
“By the time
stage of a section 366.26 hearing, there have been multiple specific findings
of parental unfitness. Except for a
temporary period, the grounds for initial removal of the child from
parental custody have been established under a clear and convincing standard
[citation]; in addition, there have been a series of hearings involving ongoing
reunification efforts and, at each hearing, there was a statutory presumption
that the child should be returned to the custody of the parent. [Citations.]
Only if, over this entire period of time, the state continually has
established that a return of custody to the parent would be detrimental to the
child is the section 366.26
stage even reached.†(
Cal.4th at p. 253, italics added.) Not
only is a finding of parental unfitness not required at the section 366.26
hearing, “the critical findings of parental unfitness, detriment, and the
failure of attempts at reunification may not be reopened or reconsidered at the
termination hearing . . . .â€
(In re Zeth S. (2003) 31
Cal.4th 396, 411.)
Father’s premise—that he is not an
unfit parent—is unfounded. As stated in
the previous part, the court made the requisite finding of detriment (i.e.,
parental unfitness) at the dispositional stage as to both parents. At the six-month review hearing, the court
found “that custody by the parents continues to be detrimental to the child
. . . and that return of the child at this time to the parents would
create a substantial risk of detriment to her physical and emotional
well-being.†A similar finding of
detriment was made at the 12-month hearing.
Father was not deprived of due process.
IV. DISPOSITION
The orders appealed from are
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
/s/ King
J.
We concur:
/s/ Ramirez
P.J.
/s/ McKinster
J.
Welfare and Institutions Code unless otherwise indicated.
name="_ftn2" title="">
[2] Our summary of the facts is based in part on
the record in case No. E052969, which involved writ petitions filed by Father
and T.P.’s mother pursuant to rule 8.452(a) of the California Rules of
Court. We take judicial notice of the
records in that case. (See Evid. Code,
§§ 452, subd. (d), 459, subd. (a).)
