In
re Jordan H.
Filed 6/25/13 In re Jordan
H. 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NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
In re JORDAN H., a Person Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES AGENCY,
Plaintiff and
Respondent,
v.
JAMES H. et al.,
Defendants and
Appellants.
D062836
(Super. Ct.
No. NJ014235)
ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the
opinion filed herein on May 30, 2013
be modified as follows:
On page 7, in the first
sentence of the second paragraph, the section number is changed from
"300" to "388" so the sentence reads:
In addition, section 388
petitions filed on the same day as the permanency plan selection and
implementation hearing are disfavored, and the court could have denied the
petition on timeliness grounds alone.
There is no
change in the judgment.
McCONNELL, P. J.
Filed 5/30/13 (unmodified version)
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
In re JORDAN H., a Person Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES AGENCY,
Plaintiff and
Respondent,
v.
JAMES H. et al.,
Defendants and
Appellants.
D062836
(Super. Ct.
No. NJ014235)
APPEALS
from orders of the Superior Court
of San Diego County,
Michael J. Imhoff, Commissioner.
Affirmed.
Liana
Serobian, under appointment by the Court of Appeal, for Defendant and Appellant
James H.
Monica
Vogelmann, under appointment by the Court of Appeal, for Defendant and
Appellant Jennifer H.
Thomas
E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel,
and Erica R. Cortez, Deputy County Counsel, for Plaintiff and Respondent.
James H. and Jennifer H.
appeal orders summarily denying James's petition for modification under Welfare
and Institutions Code section 388 (further statutory references are to the
Welfare and Institutions Code) and terminating their parental rights to their
son, Jordan H., under section 366.26. We
affirm.
FACTUAL AND
PROCEDURAL BACKGROUND
Jordan H. was born in January 2010. He spent almost two months in hospital care,
withdrawing from severe opiate addiction.
His mother, Jennifer, admitted to using drugs while she was pregnant
with him. Jordan's
father, James, also had a history of drug use and drug-related criminal
convictions. Jordan
was adjudicated a dependent of the juvenile court. (§ 300, subd. (b).) When Jordan was released from the hospital,
he was placed in the care of his paternal grandmother (Grandmother).
Jennifer and James received 24 months of reunification
services focused on substance abuse treatment and recovery. At the time of the 24-month review hearing,
Jennifer had been arrested on federal charges of human trafficking and state
charges of prostitution. She had not had
any contact with Jordan for three months.
James had not been able to complete his case plan or find stable
employment. He had not visited Jordan in
more than a month.
On October 11, 2012, the day of the section 366.26 hearing,
James filed a section 388 petition asking the court to return Jordan to his
care under a plan of family maintenance services or alternatively, to reinstate
reunification services, place Jordan in the care of his paternal grandfather
and allow James to reside in the home.
The court denied the petition, finding that James "has not carried
his burden with respect to a change of circumstances even by a preponderance of
the evidence." The court further
found that even if James had shown a legitimate change of circumstances, he did
not carry his burden with respect to Jordan's best interests.
At the section 366.26 hearing, the court admitted the
report, including the addendum report, of the San Diego County of Health and
Human Services Agency (Agency) in evidence.
Jennifer testified by telephone.
She expected to be released from custody in four months and asked the
court to select a plan of guardianship.
Jennifer said she had tried to maintain contact with Jordan while she
was incarcerated.
The Agency reported that Jordan was a sweet little boy
who was very attached to Grandmother and her two younger children. Grandmother's home was loving and
stable. The social worker had discussed
different permanency plans with her.
Grandmother decided adoption was in Jordan's best interests. In August 2012, Grandmother met with an
adoptions worker to start the adoptive home study process. The social worker said if for some reason
Grandmother was unable to adopt Jordan, there were 50 families in San Diego
County with approved adoptive home studies that were interested in adopting a
child like Jordan.
The social worker did not believe that Jordan had a
significant relationship with either parent.
Jennifer was incarcerated in federal prison and had not seen Jordan in
more than nine months. James was able to
visit Jordan in Grandmother's home as much as he wanted. On average, James saw Jordan approximately
once or twice a month. During the
dependency proceedings, there were periods of one to two months in which neither
parent visited Jordan.
The court found that Jordan was likely to be adopted
within a reasonable time if parental rights were terminated (adoptability
finding) and that Jordan did not have a beneficial parent/child relationship
with either parent. The court terminated
parental rights and designated Grandmother as Jordan's prospective adoptive
parent.
On appeal, each parent joins in and adopts the other
parent's arguments. (Cal. Rules of
Court, rule 8.200(a)(5).)
DISCUSSION
A
James
and Jennifer contend the court erroneously employed an incorrect standard of
proof when it found that "father has not carried his burden with respect
to a change of circumstances even by a preponderance of the evidence" and
denied an evidentiary hearing on James's section 388 petition (the
petition). They
orders terminating parental rights and remand the matter for an evidentiary
hearing on the petition.
Under
section 388, a party may petition the court to change, modify or set aside a
previous court order. The petitioning
party has the burden of showing, by a preponderance of the evidence, there is a
change of circumstances or new evidence, and the proposed modification is in
the child's best interests. (§ 388;
In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re
Amber M. (2002) 103 Cal.App.4th 681, 685.)
The
court must liberally construe the petition in favor of its sufficiency. (In re Marilyn H. (1993) 5
Cal.4th 295, 309 (Marilyn H.); Cal. Rules of Court, rule
5.570(a).) "The parent need only
make a prima facie showing to trigger the right to proceed by way of a full
hearing." (Marilyn H.,
at p. 310; In re Hashem H. (1996) 45 Cal.App.4th 1791,
1798-1799.) When determining whether the
petition makes the necessary showing, the court may consider the entire factual
and procedural history of the case. (In re
Justice P. (2004) 123 Cal.App.4th 181, 188-189; see In re
Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)
We
review a summary denial of a hearing on a modification petition for abuse of
discretion. (In re Zachary G (1999) 77 Cal.App.4th 799, 808 (
We
are not persuaded by the parents' argument the court applied an erroneous
burden of proof when it summarily denied the petition. "The prima facie requirement is not met unless
the facts alleged, if supported by evidence given credit at the hearing, would
sustain a favorable decision on the petition." (In re Zachary G., supra, 77 Cal.App.4th at
p. 806.) The court stated it was
liberally construing the petition in favor of its sufficiency. In finding that the facts alleged would not
sustain a finding of changed circumstances "even by a preponderance of the
evidence," the court indicated that the facts were not sufficient to
sustain a favorable decision on the petition by the requisite burden of
proof. Thus the petition did not state a
prima facie case of changed circumstances or the child's best interest. (Ibid.)
The
court did not abuse its discretion in summarily denying the petition. James alleged his circumstances were changed
because he had maintained his sobriety, attended weekly NA meetings, had stable
housing and successfully pursued employment opportunities. In addition, James said he had increased his
visitation to two times per month, including daytime and overnight visits. James said a modification of the prior order
was in Jordan's best interests because Jordan was strongly bonded to him,
referred to him as "daddy" and enjoyed their visits.
The
court could reasonably determine the alleged facts did not show that James's
circumstances were changed and that a modification of the prior order
terminating reunification services was in Jordan's best interests. After reunification services have been
terminated, the focus shifts to the needs of the child for permanency and
stability. (In re Hashem H., supra, 45 Cal.App.4th at
p. 1800.) James was offered
reunification services for 24 months. He
did not complete his case plan. The
court did not abuse its discretion when it determined a further period of
reunification services was not likely to lead to reunification and an extension
of time would not be in Jordan's best interests.
The
court reasonably determined the petition did not state a prima facie case that
James's circumstances were sufficiently changed to assume custody of Jordan and
that such a change of placement was in Jordan's best interests. (§ 388, subd. (d).) Jordan had been placed with Grandmother when
he was less than two months old. He was
closely bonded to her. Grandmother had
an open door policy with respect to James visiting Jordan. James visited Jordan for a few days
every other month, and there were
periods in which James did not visit his son for one or two months. James alleged he had increased his visitation
to "two times per month." This
does not constitute a meaningful change in circumstances as required under
section 388. Further, the court could
reasonably conclude that there was not sufficient evidence to show that a
change of placement was in Jordan's best interests.
In
addition, section 300 petitions filed on the same day as the permanency plan
selection and implementation hearing are disfavored, and the court could have
denied the petition on timeliness grounds alone. (See In re
Edward H. (1996) 43 Cal.App.4th 584, 594.)
B
James and Jennifer
contend the court erred when it found that Jordan was likely to be adopted
because Grandmother had not initiated an adoptive home study and she had been
referred to child protective services on allegations of physical abuse in 2006,
which was closed as inconclusive, and on allegations of physical and emotional
abuse in 2008, which was closed as unfounded.
The parents argue that Jordan was very attached to Grandmother and she
had provided exemplary care to him during his treatment for opiate
withdrawal. If she were unable to adopt
Jordan, placement with another adoptive family would be seriously detrimental
to him. The parents contend the court
should have deferred an adoptability finding until Grandmother's adoptive home
study had been completed and the court could reach a reasonable conclusion that
the Agency would approve the home study.
At
a section 366.26 hearing, the court may select one of three alternative
permanency plans for the dependent child—adoption, guardianship or long-term
foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) If the child is adoptable, there is a strong
preference for adoption over alternative permanency plans. (San Diego County Dept. of Social
Services v. Superior Court (1996) 13 Cal.4th 882, 888; Zachary G.,
supra, 77 Cal.App.4th at pp. 808-809.)
A finding of adoptability requires "clear and
convincing evidence of the likelihood that adoption will be realized within a
reasonable time." (
on whether the child's age, physical condition and emotional health make it
difficult to find a person willing to adopt that child. (In re
Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) If the child is considered generally
adoptable, there is no need to examine the suitability of a prospective
adoptive home. (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) When the child is deemed adoptable based
solely on a particular family's willingness to adopt the child, the trial court
must determine whether there is a legal impediment to adoption. (In re
Carl R. (2005) 128 Cal.App.4th 1051, 1061.)
On review, we determine whether the record contains
substantial evidence from which a reasonable trier of fact could find clear and
convincing evidence that the child was likely to be adopted within a reasonable
time. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562.)
The parents' contention the court should have waited to
select a permanency plan for Jordan until it could reasonably determine whether
Grandmother's adoptive home study would be approved is not supported legally or
factually. Under section 366.26,
subdivision (n)(1), the court may designate a current caregiver of the child as
a prospective adoptive parent if the child has lived with the caregiver for at
least six months, the caregiver currently expresses a commitment to adopt the
child, and the caregiver has taken at least one step to facilitate the adoption
process. Grandmother clearly met those
requirements. Although the Agency's
initial section 366.26 report, which was prepared on August 3, 2012, stated
that Grandmother had not initiated an adoptive home study, Grandmother met with
the adoptions social worker four days later to start the process. In the addendum report, the social worker
stated Grandmother and her adult daughter (who lived in the home) were
fingerprinted and received criminal clearances.
The Agency received three reference letters that were written on her
behalf. Further, the court may postpone
the selection of a plan of adoption only if the child is difficult to place for
adoption and there is no identified or available prospective adoptive
parent. (§ 366.26, subd. (c)(3).)
The record shows that Jordan was both generally and
specifically adoptable. Although Jordan
had a long withdrawal from in utero drug exposure, he was meeting his
developmental milestones. He was not
difficult to place. Grandmother wanted
to adopt him. The child abuse
allegations against Grandmother in 2006 and 2008 were not substantiated. There was nothing in her background that had
precluded the Agency from safely placing Jordan in her home. He continued to thrive in her care without
incident. The social worker also
identified 50 approved adoptive families in San Diego that were willing to
adopt a child like Jordan. The record
contains ample evidence to support the finding that Jordan was likely to be
adopted within a reasonable time.
(§ 366.26, subd. (c)(1); Zeth S.,
supra, 31 Cal.4th at p. 406;
§ 366.26, subd. (a).)
C
James and Jennifer
contend the court erred when it terminated parental rights because James
maintained regular and consistent contact with Jordan and Jordan would benefit
from maintaining the parent/child relationship.
They argue that while Jordan looks to Grandmother to meet his
fundamental needs, he had a unique relationship with his father from whom he
gained love and a sense of self-worth.
An
exception to termination of parental rights exists when "[t]he parents have
maintained regular visitation and contact with the child and the child would
benefit from continuing the relationship."
(§ 366.26, subd. (c)(1)(B)(i).)
" '[B]enefit from continuing
the . . . relationship' " means " 'the
[parent/child] relationship' . . . promotes the well-being
of the child to such a degree as to outweigh the well-being the child would
gain in a permanent home with new, adoptive parents." (In re Autumn H. (1994) 27
Cal.App.4th 567, 575 (Autumn H.).)
The exception does not require proof the child has a "primary
attachment" to the parent or the parent has maintained day-to-day contact
with the child. (In re S.B. (2008) 164 Cal.App.4th 289, 299 (
38, 51.)
Where
the parent has continued to regularly visit and contact the child, and the
child has maintained or developed a significant, positive, emotional attachment
to the parent, "the court balances the strength and quality of the natural
parent/child relationship in a tenuous placement against the security and the
sense of belonging a new family would confer.
If severing the natural parent/child relationship would deprive the
child of a substantial, positive emotional attachment such that the child would
be greatly harmed, the preference for adoption is overcome and the natural
parent's rights are not terminated."
(Autumn H., supra, 27
Cal.App.4th at p. 575.)
We
determine whether there is substantial evidence to support the court's ruling by
reviewing the evidence most favorably to the prevailing party and indulging in
all legitimate and reasonable inferences to uphold the court's ruling. (In re
Misako R. (1991) 2 Cal.App.4th 538, 545.) If there is substantial evidence supporting
the court's ruling, the reviewing court must affirm the court's rejection of
the exceptions to termination of parental rights under section 366.26,
subdivision (c). (Autumn H.,
supra, 27 Cal.App.4th at p. 576.)
The record shows that during the reunification period,
James did not visit Jordan from August to mid-October 2010. After he resumed visiting his son, he saw him
every other Thursday and on Sunday afternoons.
By February 2012, James was able to visit Jordan as often as he could
and was allowed to stay overnight in Grandmother's home. At the time of the 24-month review hearing in
April 2012, James had not visited Jordan in more than a month. During the next six months, James telephoned
Grandmother once or twice a month and stayed at her home with Jordan for a few
days every other month. The court could
reasonably find that James did not maintain regular contact and visitation with
his son throughout the dependency proceedings.
(§ 366.26, subd. (c)(1)(B)(i).)
The social worker reported that Jordan loved to see his
father and James was attentive and playful with him during visits. Despite his love and affection for his son,
James did not show much initiative to stabilize his lifestyle or maintain a
safe residence during Jordan's lengthy dependency proceedings. James's visitation with Jordan became more
sporadic and less frequent as the case progressed. The paternal grandfather said that although
James loved his son, he was not responsible enough to be a parent. James continued to have a relationship with Jennifer,
who had a history of drug recidivism and prostitution. The social worker said Jordan did not have a
significant parent/child relationship with James or Jennifer, and termination
of their parental rights would not cause Jordan to suffer serious detriment.
To overcome the strong policy in favor of adoption, the
parent must show more than "frequent and loving contact" (In re
Beatrice M. (1994) 29 Cal.App.4th 1411, 1418) and have a stronger
relationship to the child than a friendly relative (In re Angel B. (2002) 97 Cal.App.4th 454, 468). The court could reasonably infer the bond
between James and Jordan, although affectionate, playful and loving, was not
sufficiently strong to outweigh the benefits Jordan would gain from adoption in a permanent, safe and stable
home. (Autumn H.,
p. 575.) The record supports the
finding that James did not demonstrate the type of dedication to his child that
characterizes a beneficial parent/child relationship. (See S.B.,
supra, 164 Cal.App.4th at p. 300 [parent's devotion to his child was
constant, as demonstrated by his full compliance with his case plan and
consistent visitation].) There is
substantial evidence to support the court's finding that the beneficial
parent/child relationship exception did not apply. (§ 366.26,
subd. (c)(1)(B)(i).)
DISPOSITION
The
findings and orders are affirmed.
McINTYRE, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
