In re Nathan P.
Filed 4/15/13 In re Nathan P. CA4/3
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opinion has not been certified for publication or ordered published for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 THREE
In re NATHAN P., a Person Coming Under the Juvenile
Court Law.
ORANGE COUNTY SOCIAL SERVICES AGENCY,
Plaintiff and Respondent,
v.
SARAH S. et al.,
Defendants and Appellants.
G047318
(Super. Ct. No.
DP022272)
O P I N I O N
Appeals from an order of
the Superior Court
of
County, Gary G. Bischoff, Temporary Judge. (Pursuant to Cal.
Const., art. VI, § 21.) Affirmed.
Donna P. Chirco, under
appointment by the Court of Appeal for Defendant and Appellant Sarah S.
Rich Pfeiffer, under
appointment by the Court of Appeal, for Defendant and Appellant Jeff P.
Nicholas S. Chrisos,
County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel,
for Plaintiff and Respondent.
No appearance for the
Minor.
* * *
In
this juvenile dependency matter, the
mother contends, and the father joins her contentions, the juvenile court erred
in refusing to provide her a full hearing after she petitioned for the court to
change its order to set a hearing to terminate parental rights. We find the juvenile court did not abuse its
discretion when it denied the mother a hearing on her petition and we affirm
the order terminating parental rights.
I
FACTS
Nathan
P. was born in February 2012. He was
admitted to Orangewood Children and Family Center First Step directly following
his release from the hospital after his birth.
His mother, Sarah S., used both crack cocaine and marijuana during the
first trimester of her pregnancy with Nathan.
After
his mother and Jeff P., the father, were arrested for child cruelty, Nathan’s
three half siblings were brought into protective custody in August 2010 and
declared dependants of the Orange County Juvenile Court a few months
later. In May 2012, Nathan was also
declared a dependant of the juvenile court.
Nathan’s
mother registered as a controlled substance offender in 2011. She was arrested in 2006 and five times in
2011 for various drug offenses. Also in
2011, and prior to the child cruelty arrest, she was arrested for
Nathan’s
father has a history of drug abuse since at least 1984. A list of his criminal history consumes more
than 11 pages of the clerk’s transcript.
In
its May 2, 2012 report,
(SSA) stated: “Due to the mother’s
participation in treatment and the mother giving birth to a child free of
substances, the undersigned had recommended the mother receive reunification
services but cautioned the mother that Welfare and Institutions Code 361.5 applied
to her. She was advised that she was
high risk due to her history of substance abuse and used during this
pregnancy. She was advised to not use
drugs and not miss any part of her treatment.
[¶] The mother missed a drug test on March 17, 2012 and subsequently provided Perinatal with a
diluted sample for testing. This is
considered a positive test. Due to the
mother’s failure to maintain her sobriety, show her ability to consistently
participate in her case plan, and the application of Welfare and Institutions
Code 361.5, the undersigned is respectfully changing the recommendation to No
Reunification Services for the child’s mother and requests that the matter be
calendared for a Permanent Plan Hearing on August 31, 2012.â€
(All statutory references are to the Welfare and Institutions
Code.)
At
a May 2, 2012 hearing, the
court found pursuant to section 361.5, subdivisions (b)(10), (13) that
provided to the parents. A hearing under
section 366.26 was set.
The
mother filed a request for a hearing pursuant to section 388. Her petition requested a change of the May 2, 2012 order of the juvenile
court that the child was not to be placed with the mother, that no reunification
services would be offered and that the matter would be set for a hearing under
section 366.26. The mother’s declaration
in support of her petition stated where she lived, that she was employed 22
hours a week at the rate of $9 an hour, attends a prenatal program which
involves drug testing, sees a psychiatrist every three months, that she had
completed several programs and that her
depression
is in remission. She declared she had
consistently visited Nathan and provides him a sense of belonging by giving him
attention.
SSA’s
report to the court stated: “Nathan was
placed with the prospective adoptive parents when he was just two days
old. The adoptive family has had a
relationship with Nathan’s birth family since 2009 when they met his mother at
church prior to her giving birth to her third of four children. The adoptive family began babysitting
Nathan’s siblings and getting to know both Nathan’s mother and
great-grandmother. Nathan’s mother would
often leave her children with the prospective adoptive family overnight. For nearly two months in 2010 the mother left
all three of Nathan’s older siblings with the prospective adoptive family and
they cared for them full time. The
prospective adoptive parents know Nathan’s siblings well and it is clear they
care deeply for them. The prospective
adoptive mother was present for Nathan’s birth and he was placed in their home
when he was released from the hospital.
[¶] The prospective adoptive parents appear to have a strong support
network with friends and family members.
The prospective adoptive parents are reportedly in good health. The prospective adoptive parents report they
have adequate financial resources to provide for Nathan’s needs and they have
been doing so since his birth. The
prospective adoptive father retired early and works part time while the
prospective adoptive mother stays home so daycare is not required.â€
On
August 22, 2012, the
juvenile court denied the mother’s request for a hearing of her motion made
pursuant to section 388, stating: “There
has not been a change in circumstances, and in addition, the mother has failed
to carry her burden to show that the requested relief would be in the best
interest of the child.â€
At
the conclusion of the section 366.26 hearing, the juvenile court found by
Nathan is adoptable. Prior to
terminating parental rights, the court found the mother carried her burden of
showing she had regular and consistent visitation with Nathan. With regard to whether or not the
mother/child relationship benefits Nathan to the extent that such benefit
outweighs the benefit he would have through permanency, the court stated: “And unfortunately, in this circumstance,
there’s been virtually no evidence to support that proposition. [¶] It’s clear that the mother visits with
the child. It’s clear that most of the
time she enjoys those visits and interacts with the child.†The court terminated the parental rights of
both parents.
II
DISCUSSION
Both
parents contend the juvenile court erred in denying the mother a hearing on her
request for a changed order under section 388.
A juvenile court’s determination to deny a section 388 petition without
a hearing is reviewed for abuse of discretion, and a summary denial of a
hearing will be upheld unless it can be determined from the record the denial
exceeded the bounds of reason. (
1497, 1505.)
No
doubt, the mother did make some changes in her life, but the import of her
changes is moderated when one considers she missed a mid-March drug test and
submitted a diluted sample a few months later.
She did manage to secure part-time employment, indicating she was going
in the right direction. In addition to
evidence Nathan had spent his entire life in a stable and loving home with his
prospective adoptive parents, the juvenile court also had before it evidence
the mother had a history of cruelty to her other three children, that she spent
years using illegal drugs, including while she was pregnant with Nathan, and
that she accumulated a significant arrest record. While she faithfully visited Nathan, her
contacts with him consisted of weekly monitored visits, and she never provided
him full-time care, not even for a single night.
A
pleading that alleges only changing rather than fully changed circumstances
promotes neither stability for the child nor the child’s best interests. (In re
Carl R. (2005) 128 Cal.App.4th 1051, 1072.)
A petition under section 388 requires either new evidence or changed
circumstances, but it also requires a showing the requested change promotes a
child’s best interests. (
Cal.App.4th 1023, 1036.) In light of the
showing made in the mother’s petition, even assuming everything she submitted
is factually true, we cannot conclude the juvenile court abused its discretion
when it deemed the mother’s early attempts at change insufficient to warrant a
full hearing on her section 388 petition.
(In re Baby Boy L. (1994) 24
Cal.App.4th 596, 610.)
County
counsel contends the father lacks standing to make claims regarding the
mother’s section 388 petition. Assuming
he has standing, we note the arguments of both parents are essentially the
same. One difference, however, is that
the father contends the juvenile court disregarded the best interest factors
discussed in In re Kimberley F. (1997)
56 Cal.App.4th 519.
“[T]he
essence of a section 388 motion is that there has been a change of circumstances. Accordingly, the nature of the change, the
ease by which the change could be brought about, and the reason the change was
not made before bear on any such motion.
to the dependency, and the reason for any continuation of that problem; (2) the
strength of relative bonds between the dependent children 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. While this list is not meant to be
exhaustive, it does provide a reasoned and principled basis on which to
evaluate a section 388 motion.†(
pp. 531-532.)
We see no
indication in the record before us to support the father’s argument the
juvenile court disregarded the law enunciated in Kimberley F. Nor has the
father cited us to any evidence to support his claim the court did not consider
these factors or even that the factors set forth in Kimberly F. control in cases where a parent is not receiving
reunification services, where the focus shifts to the needs of the child for
permanency and stability. (
317.) Thus, even when assuming the father
has standing to join in the mother’s claims, the result would be no different.
III
DISPOSITION
The order of the
juvenile court is affirmed.
MOORE,
ACTING P. J.
WE
CONCUR:
FYBEL,
J.
THOMPSON,
J.
