In re H.N.
Filed 11/4/13 In re
H.N. CA4/1
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opinion has not been certified for publication or ordered published for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 H.N., a Person Coming
Under the Juvenile Court Law.
SAN
DIEGO COUNTY
HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
PATRICK D.,
Defendant and Appellant.
D063988
(Super. Ct. No. SJ10796C)
In re C.C. et al., Persons
Coming Under the Juvenile Court Law.
SAN
DIEGO COUNTY
HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
PATRICK D. et al.,
Defendants and Appellants.
D063990
(Super. Ct. No. SJ12250B)
CONSOLIDATED APPEALS from orders of the Superior Court of
County, Kenneth
J. Medel, Judge. Affirmed.
Kathleen Murphy
Mallinger, under appointment by the Court of Appeal, for Defendant and
Appellant Patrick D.
Monica Vogelman, under
appointment by the Court of Appeal, for Defendant and Appellant Gabriella C.
Thomas E. Montgomery,
County Counsel, John E. Philips, Chief Deputy County Counsel and Dana C.
Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
Dependency
Legal Group of San Diego, Tilisha Martin and Alexandra Abbey,
for minors.
Patrick D.
appeals after the juvenile court denied his Welfare and Institutions Code
section 388 petitions requesting an additional period of reunification and terminated
his parental rights to his daughters, H.N. (born 2006) and C.C. (born 2012). (Undesignated statutory references are to the Welfare
and Institutions Code.) C.C.'s mother, Gabriella
C., joins in Patrick's arguments pertaining to C.C. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. H.N.
H.N.'s
mother died in early 2011. In late 2011,
when H.N. was about five years old, the San
Diego County Health and Human Services Agency (the Agency) filed a petition
under subdivisions (b) and (g) of section 300 alleging Patrick's drug use and
domestic violence toward his girlfriend, Gabriella, endangered H.N. At the detention hearing, the juvenile court
dismissed the section 300, subdivision (g) allegation and found Patrick had
presumed father status. The court later
detained H.N. with a maternal cousin.
The caretaker reported that H.N.'s visits with Patrick were
unstructured, that H.N. ran around doing what she wanted and that Patrick gave
her candy, soda and ice cream.
In January
2012, the court issued a no contact order based on evidence Patrick threatened
to bring a shotgun to a visit, did not show up for drug testing, was angry with
the social worker, yelled insults in the lobby of the Agency's office and had a
knife in his pocket at a visit. Patrick
was also arrested for being under the influence of a controlled substance.
At the March
2012 jurisdiction and disposition hearing, the juvenile court made a true
finding on the petition, declared H.N. a dependent, removed her from Patrick's custody
and placed her in a relative's home. It
also found the case plan appropriate and ordered the Agency to provide Patrick
with services. Patrick completed a
residential detoxification program shortly after the court assumed
jurisdiction, but tested positive for amphetamine/methamphetamine a few days later.
The court continued the no contact order
based on Patrick's positive drug tests and his failure to appear at the hearing. In June 2012, the Agency received a referral
on Patrick's newborn child, C.C., after C.C. and Gabriella tested positive for
methamphetamine and marijuana.
At the
six-month review hearing in October 2012, the court terminated Patrick's reunification
services, set the permanent plan hearing, lifted the no contact order and
ordered supervised visits. Patrick was
arrested in November and December 2012. After H.N.'s relative caregiver expressed she
was no longer willing to provide care for H.N., the Agency filed a section 387
petition and moved H.N. to a foster home. The new foster family had an approved adoptive
home study and wanted to adopt H.N. In
February 2013, Patrick set the section 366.26 hearing for trial and the court suspended
his visits with H.N. pending the trial date.
In March 2013, the social worker moved C.C. into the foster home with H.N. The foster parents wished to adopt both
girls.
On
the day of the contested section 366.26 hearing in early April 2013, Patrick filed
a section 388 petition seeking six more months of reunification time. He claimed to be clean and sober since his
2012 incarceration and indicated that he had entered a six-month residential
drug treatment program about a week earlier. The court set a hearing on the petition, heard
Patrick's testimony and gave the social worker discretion to allow supervised
visits with H.N.
At the end
of April 2013, the court heard further testimony from Patrick, admitted reports
and heard argument on the section 388 petition.
The juvenile court concluded that Patrick had not shown a significant
change of circumstances and it was not in H.N.'s best interest to return to Patrick. Patrick timely appealed.
2. C.C.
The Agency
filed a dependency petition on C.C.'s behalf under section 300, subdivision
(b). Gabriella admitted that she used
methamphetamine three times a week throughout her pregnancy and used marijuana
on a daily basis. In June 2012, the
juvenile court made a prima facie finding on the petition and detained C.C. in
out-of-home care. At a contested
disposition hearing in September 2012, the juvenile court declared C.C. a
dependent, placed her in foster care, and ordered no reunification services for
Gabriella based on her failure to reunify with another child in 2009.
In February
2013, Gabriella met C.C. for the first time since her birth. Gabriella had a second visit with C.C. while
incarcerated, but she made no attempts to visit C.C. after her release from
jail in March 2013. Patrick had two
visits with C.C. while incarcerated in March 2012 and March 2013. On the day of the contested section 366.26 hearing
in early April 2013, Patrick filed a section 388 petition seeking reunification
services. At a combined hearing for both
daughters, Patrick admitted that he never contested C.C.'s removal and never
asked for reunification services until the date of the contested section 366.26
hearing. The juvenile court found no significant
change in circumstances, denied the section 388 motion and terminated parental
rights. After Patrick and Gabriella
timely appealed the orders as to C.C., we ordered that the appeals be
considered together and granted Patrick's request that the appeals be
consolidated.
DISCUSSION
Patrick contends the juvenile court abused
its discretion in denying his section 388 petition requesting an additional
reunification period with his daughters. Because the denial of his section 388 petitions
must be reversed, he claims the termination of his parental rights must also be
reversed, and the cases remanded to the juvenile court. We disagree.
Section 388 gives the juvenile court
discretion to modify a previously made order when the moving party presents
evidence of changed circumstances and demonstrates that the requested
modification is in the child's best interests. (In re
Stephanie M. (1994) 7 Cal.4th 295, 317.)
"In 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, 189.)
When a section 388 petition is filed
after family reunification services have been terminated, the dependency court's
overriding concern is the child's best interests. (In re
Stephanie M., supra, 7 Cal.4th at
p. 317.) The parent's interests in the
care, custody and companionship of the child are no longer paramount, and the
focus shifts to the needs of the child for permanency
and stability. (Ibid.) We may
disturb the dependency court's exercise of its discretion only in the rare case
when the court has made an arbitrary, capricious or "patently absurd"
determination. (Id. at p. 318.) We do not
inquire whether substantial evidence would have supported a different order,
reweigh the evidence or substitute our judgment for that of the dependency
court. (Id. at pp. 318-319.) There
is no abuse of discretion where substantial evidence supports the order. (In re
Daniel C. H. (1990) 220 Cal.App.3d 814, 839.)
Here, the
juvenile court credited Patrick for his decision to enter a residential drug
treatment program for the purpose of bettering himself. It noted that Patrick's sobriety probably resulted
from his incarceration and was not a choice he had made. The court commented that Patrick's long-standing
drug use "permeated his life" and that such individuals often come to
believe that their abnormal behavior is actually normal and acceptable. As an example of this, the court cited
Patrick's belief that he was a "great dad."
The court
noted that this was Patrick's fourth drug treatment program and that the
measure of change was how someone did when they were on their own, not when
they were compelled by the criminal justice system. It found that Patrick made an effort to
change, but the results of his efforts would not be known until Patrick was
left to his own devices for a significant amount of time. Substantial evidence supports the court's finding
that Patrick's circumstances had not changed such that reinstating
reunification services and delaying permanency were in H.N.'s or C.C.'s best
interests.
Patrick has
an extensive criminal history in California, New Jersey, Oregon, and
Virginia, with felony drug possession convictions in California, Oregon and
Virginia. After H.N.'s
removal, Patrick suffered three arrests, twice for being under the influence. Patrick had an almost 20-year history
of drug use and considered himself an addict.
At the time of the section 388 hearing, Patrick had been
sober for five months. His first date of
sobriety was November 28, 2012, when his latest arrest resulted in his
incarceration.
Patrick's
case plan required him to attend therapy, complete parenting classes and
participate in both drug treatment and anger management. While Patrick was currently in therapy, he
admitted that he had not completed anger management, parenting, or his current
drug treatment program. Patrick's drug
program case manager relayed that Patrick presented as "hostile" and
having "a short fuse." His
probation officer also opined that Patrick would most likely receive a prison
sentence at his upcoming sentencing hearing on federal charges.
We commend Patrick's participation
in his current drug treatment program. In
light of his 20-year history of drug addiction, however, his five months of
sobriety does not establish that his addiction is under control or that he will
be able to maintain his sobriety once he completes the residential
program. Moreover, Patrick's efforts came
months after reunification services had been terminated, when "the focus
of the dependency proceedings had shifted from reunification to the child's
need for a stable and permanent home." (In re
Casey D. (1999) 70 Cal.App.4th 38, 48.) Patrick was able to show only that his
circumstances were changing, not that they had changed within the meaning of
section 388.
The
evidence also supported the juvenile court's finding that it would not be in
H.N.'s and C.C.'s best interests to reinstate reunification services. H.N.'s psychological evaluator diagnosed her
with posttraumatic stress disorder, major depressive disorder, disruptive behavior
disorder and neglect of child. The
evaluator found that H.N.'s emotional and behavioral functioning appeared to be
"directly linked to her history of neglect and witnessing domestic
violence." While H.N.'s progress
was slow, the evaluator expected improvement with 6 to 12 more months of
treatment and a stable long-term placement. H.N. told the social worker that she loved her
foster parents and liked living with them.
She also stated "[m]y father is a crystal meth user, he is scary."
C.C.
has spent her entire life in foster home care.
Since she was about nine months old, C.C. has lived with H.N. in their
prospective adoptive home. Her
prospective adoptive parents considered C.C. as part of their family and wished
to adopt her and H.N. The social worker concluded
that no exceptions to adoption existed and that permanency was paramount for
H.N. and C.C. The social worker
recommended the girls' foster home as a permanent, stable home for the girls to
be adopted.
This
evidence supported the juvenile court's denial of Patrick's section 388
petitions. Patrick reargues the evidence
and asks us to reweigh it. That is not
our role. (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.) The record does not show it was in the girls'
best interests to reinstate Patrick's reunification services based on his attempt
to become adequate at this late stage of the proceedings. On this record, juvenile court did not abuse
its discretion by refusing to prolong the proceedings.
DISPOSITION
The orders
denying Patrick's section 388 petitions and terminating the parental rights of
Patrick and Gabriella are affirmed.
McINTYRE, J.
WE CONCUR:
NARES, Acting P. J.
McDONALD, J.
