In re C.O.
Filed 9/6/13 In re C.O. CA4/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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In Re C.O., A Person Coming
Under the Juvenile Court Law.
_________________________________
RIVERSIDE COUNTY DEPARTMENT OF
PUBLIC SOCIAL SERVICES,
Plaintiff and Respondent,
v.
J.O.,
Defendant and Appellant.
E058173
(Super.Ct.No. SWJ009385)
OPINION
APPEAL from
the Superior Court
of
County. John M.
Monterosso, Judge. Affirmed.
Rich
Pfeiffer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Pamela J. Walls, County
Counsel, Carole A. Nunes Fong,
Deputy County Counsel, for Plaintiff and Respondent.
J.O. (Father) appeals after the termination of
his parental rights to C.O. at a
Welfare and Institutions Code section 366.26
Father makes one claim on appeal that the juvenile court erred by
denying his section 388 petition. We
affirm the juvenile court’s order denying Father’s section 388 petition.
I
FACTUAL AND
PROCEDURAL BACKGROUND
A. Detention
On June 22, 2012, at 35 weeks gestation,
K.O. (Mother) prematurely gave birth to C.O.
Intensive Care Unit (NICU) due to mild respiratory distress, hypoglycemia,
hypothermia and difficulties feeding.
His feeding difficulties required him to stay in the NICU for four to
five days. C.O. tested positive for
methamphetamines and/or amphetamines.
Father had visited C.O. at the
hospital. Mother’s drug test, completed
48 hours after she was admitted to the hospital, was negative and she adamantly
denied any drug use.
Father
refused to speak with the social worker from the Department of Public Social
Services (Department). Father had an
extensive criminal history of convictions for being under the influence of a controlled
substance. He also had several active
cases involving possession of drug paraphernalia and controlled substances
occurring in March, April and May of 2012.
It was recommended by the
Department that C.O. be detained from Father and Mother. Upon discharge of C.O. from the NICU, he was
to be placed with the maternal grandmother (Grandmother).
Due to
severe neglect and their drug use, Mother and Father had lost their parental
rights to C.O.’s two older siblings on July
14, 2010. They failed to
complete substance abuse treatment and all other services in this prior
case. Their parental rights to C.O.’s
two older siblings were terminated and they were adopted by Grandmother.
On July 2, 2012, a section 300 petition
was filed by the Department on behalf of C.O. and against Father and
Mother. It alleged against Mother, under
section 300, subdivision (b), that she abused controlled substances while
pregnant and her abuse limited her ability to care for C.O. Regarding Father, the petition alleged he had
an extensive history of abusing controlled substances and a criminal history of
drug-related arrests. It was also
alleged that Father and Mother had a history with the Department resulting in
termination of their parental rights regarding two other children.
At a
detention hearing held on July 3, 2012,
the juvenile court found a prima facie case and ordered C.O. detained.
B. Jurisdictional/Dispositional
Report and Hearing
In a
jurisdictional/dispositional report filed on July 20, 2012, the Department
recommended that Father be denied reunification services pursuant to section
361.5, subdivisions (b)(10) and (b)(11).
It was also recommended that C.O. remain detained with Grandmother. Father had given money and baby items to
Grandmother for C.O. Attorneys
representing both Mother and Father would not allow them to make statements to
the Department regarding the allegations in the section 300 petition.
Grandmother
stated that Mother started using methamphetamine when she was 17 years old, but
Grandmother believed she had not used methamphetamine since March of 2012. Regarding Father, Grandmother believed he
started using methamphetamine at the age of 13 years, and was still
consistently using drugs. He had a
pending criminal court hearing on July
27, 2012, regarding the four pending charges of possession of a
controlled substance. Grandmother had
consistently cared for C.O.’s older siblings since she adopted them in
2009. Mother tested positive for
methamphetamine on July 11, 2012. Grandmother
advised the Department that Mother and Father had been together for six
years. Father wanted to reunify with
C.O. Grandmother was willing to adopt
C.O. C.O. had been eating well and was
developing normally. Father had failed
to appear for a drug test on July 11, 2012, and refused a saliva test. Father had not contacted the Department
regarding the missed test.
Father had
visits with C.O. on three occasions.
Grandmother stated the visits were “favorable.†Father claimed to be considering entering a
six-month, inpatient substance abuse treatment program in order to avoid a
prison term for his pending criminal charges.
Father had failed to complete any of the offered reunification services
during his attempt to reunify with C.O.’s older siblings.
An addendum
report was filed on August 31, 2012.
C.O. was continuing to thrive in Grandmother’s care. Father had been consistently visiting C.O.,
approximately four times a week, and the visits were favorable. Father’s criminal cases had been continued to
September 5, 2012. Mother had falsified
drug test results and submitted them to the Department. Grandmother reported that C.O.’s older
siblings were very attached to C.O.
The
jurisdictional/dispositional hearing was conducted on September 7, 2012. The petition was amended as to the
allegations against Mother. Father
submitted on the allegations of the petition for jurisdictional purposes. Father requested that reunification services
be granted. Father was entering the
“ROC†program pursuant to the criminal court disposition.
the amended petition true. Father was
denied reunification services. The
juvenile court commended Father for entering the ROC program, but stated, “. .
. . I cannot find recent entry into that program constitutes reasonable efforts
to address the issues that led to the prior termination of services and
parental rights.†A section 366.26
hearing was set. Visitation was
continued.
C. Section
366.26 Report
On December
19, 2012, the Department filed a report for a section 366.26 hearing. It was recommended that Father’s parental
rights be terminated. The permanent plan
for C.O. was adoption by Grandmother.
C.O.
continued to develop normally and was a happy baby. Father had not been visiting because he was
in the ROC program. Grandmother was
willing to continue visitation between Mother, Father, and C.O., both before
and after completion of the adoption, and as long as Mother and Father remained
sober. C.O. had a strong attachment to
Grandmother.
On January 18, 2013, the Department
filed an addendum report. The
recommendation remained the same. Father
was living in a halfway house. Father
had been given a choice by the criminal court to either spend four years in
prison or go into a drug rehabilitation program; he chose drug
rehabilitation. The Department commented
that it appeared Father only went to drug treatment to avoid prison and his
recovery was “questionable.†As far as
the Department was aware, Father was not employed and had no income. During visitation, Father played with C.O.’s
older siblings and had little interaction with C.O. There was no evidence of a bond between C.O.
and Father. C.O. was bonded to his
siblings and Grandmother.
D. Section
388 Petition
On January
22, 2013, Father filed his section 388 petition. He claimed his changed circumstances were
that he completed an inpatient drug treatment program, anger management
classes, and a parenting class. He was
in an outpatient drug treatment program.
He was employed and had stable housing.
Father submitted a certificate of completion of the inpatient ROC
program. He also submitted certificates
of completion of an eight-week anger management course, and a parenting
course. Father also submitted
verification that he was enrolled in the outpatient ROC program. The program would last between 18 and 24
months. Father would be subject to drug
testing. Father submitted a letter from
a realty company that he was employed as a janitor and performed clerical
duties. He further submitted a letter
affirming he was living in a sober-living facility.
Father
requested that he be granted reunification services. Father had maintained consistent
visitation. He loved C.O. and was in a
good position to be a good father to C.O.
E.
The
section 366.26 hearing and the hearing on the section 388 petition were heard
together on January 24, 2013. The trial
court denied Father’s section 388 petition, as will be explained in more
detail, post. The parental rights of Mother and Father were
terminated and C.O. was freed for adoption.
II
SECTION 388 PETITION
Father
complains the juvenile court erred by denying his section 388 petition.
A. Additional
Factual Background
At the
hearing on the section 388 petition, Father’s counsel argued that Father changed his circumstances, and the court
should consider that he had participated in several programs. Father’s counsel outlined the programs Father
had completed. Further, Father had
maintained consistent visitation.
Father’s counsel admitted that in the prior dependency, Father had not
made any effort to reunify, but he was working hard to reunify with C.O.
The Department objected, arguing
that Father’s progress was due to his choice to stay out of prison on the
criminal charges. Further, due to his
long-time drug use, several weeks of sobriety showed only “changingâ€
circumstances, not “changed†circumstances.
It was not in the best interests of C.O. to delay adoption by
Grandmother. Father did not have a bond
with C.O. and he would suffer a detriment if separated from his siblings.
The trial
court first noted that the dependency regarding C.O. did not occur in a
vacuum. Father had a prior history with
the Department and had lost two other children.
Further, C.O. had been in Grandmother’s custody his entire life. She was the only parent that he knew and he
was placed with his siblings. The trial
court noted that Father was very candid that he had an extensive drug history
and that on the surface he seemed as though he was committed to his
sobriety. However, it was only a baby
step in the process. Completing the
inpatient program and starting the outpatient program was the beginning of a
process to change his circumstances. The
juvenile court ruled, “. . . I cannot find there is a change of circumstances
that would lead me to change the current court order that had denied [Father]
services.â€
Father had
not taken an active parental role and failed to show that a change of the court
order would be in C.O.’s best interests.
C.O. considered Grandmother as his parental figure. It would be detrimental to C.O. to stop the
adoption process and grant Father reunification services. The section 388 petition was denied.
B. Analysis
“Section 388 allows a person having
an interest in a dependent child of the court to petition the court for a
hearing to change, modify, or set aside any previous order on the grounds of
change of circumstance or new evidence.â€
(In re Anthony W. (2001) 87
Cal.App.4th 246, 250). “‘[S]pecific
allegations describing the evidence constituting the proffered changed
circumstances or new evidence’ is required. [Citation.]†(Ibid.) It “shall set forth in concise language any
change of circumstance or new evidence which are alleged to require the change
of order or termination of jurisdiction.â€
(§ 388, subd. (a).) “‘There are
two parts to the prima facie showing:
The parent must demonstrate (1) a genuine change of circumstances or new
evidence, and that (2) revoking the previous order would be in the best
interests of the children. [Citation.]’â€
(In re C.J.W. (2007) 157
Cal.App.4th 1075, 1079, 1081 [Fourth Dist., Div. Two] [summary denial of § 388
petition was proper where there was no showing of how the children’s best
interests would be served by depriving them of a permanent, stable home in
exchange for an uncertain future].)
“We review the juvenile court's
summary denial of a section 388 petition for abuse of discretion.†(In re
Anthony W., supra, 87 Cal.App.4th at p. 250.) A 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
Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Father was denied reunification
services due his extensive criminal history and drug use. Father insisted that his completion of the
inpatient drug treatment program was evidence that he had changed his
circumstances and was entitled to reunification services. While Father was commended by the juvenile
court for completing the program, it was only a baby step in the process of
recovery. Even a showing of great effort
to make improvements will not necessarily be persuasive when a parent has an
extensive history of drug use. (
p.1081 [affirming the denial of a section 388 petition when the parents’
efforts at drug rehabilitation were only three months old at the time of the
section 366.26 hearing]; In re Casey D.
(1999) 70 Cal.App.4th 38, 47-48 [affirming the denial of a section 388 petition
when the mother with an extensive history of drug use had been drug free for
only a few months and had not completed her treatment program];
184, 205-206 [mother’s very recent treatment for drug abuse and bipolar
disorder was not even a prima facie case of changing circumstances].)
Father had been using
methamphetamine since he was 13 years old.
He continued to use drugs as evidenced by his numerous arrests for
possession of controlled substances in March, April, and May 2012, which was
just prior to C.O.’s birth. Father was
forced into treatment in order to avoid being sent to prison. He did not enter the program immediately but
rather waited several months after the dependency process was initiated. Although he apparently had done well in the
program, he was only in the beginning stage of the process. Father was able to show only that his
circumstances were changing, not that they had changed within the meaning of
section 388. Thus, the juvenile court
did not abuse its discretion in determining he had failed to establish his
circumstances had changed for purposes of section 388.
Moreover,
it was not in C.O.’s best interest to grant the section 388 petition. C.O. had been with Grandmother since his
birth and had a strong bond with her.
C.O. was living with his older siblings, they were all bonded, and Grandmother
was committed to keeping the three together.
Father had not shown any type of parental bond with C.O. despite several
visitations with him. Grandmother agreed
to allow Father visitation as long as he remained sober. The juvenile court did not abuse its vast
discretion in determining that C.O.’s best interest was to be adopted by
Grandmother.
Accordingly, we reject Father’s
argument that the court erred in denying his section 388 petition.
III
DISPOSITION
The
juvenile court’s orders are affirmed.
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We
concur:
MCKINSTER
Acting P. J.
MILLER
J.
further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
has not filed an appeal. We only briefly
mention the dependency action as it pertains to her.
