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In Re A.K. et al., Persons Coming Under the Juvenile Court v. L.K

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT


December 17, 2010

IN RE A.K. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW.
SISKIYOU COUNTY HUMAN SERVICES DEPARTMENT, PLAINTIFF AND RESPONDENT,
v.
L.K., DEFENDANT AND APPELLANT.

Super. Ct. Nos. SCSCJVSQ085071501 & SCSCJVSQ085071701

The opinion of the court was delivered by: Mauro,j.

In re A.K. CA3

NOT TO BE PUBLISHED

Siskiyou

Appellant is the biological father of the minors. He appeals from the juvenile court's order denying his petition for modification of a prior order which bypassed father for services. (Welf. & Inst. Code, §§ 366.26, 388, 395.)*fn1 Father contends the juvenile court abused its discretion because there was a change of circumstances warranting reunification services and custody of the minors, and that granting modification would have been in the best interests of the minors. We conclude the trial court did not abuse its discretion and we will affirm the orders of the juvenile court.

BACKGROUND

A section 300 petition was filed on behalf of two-day-old twins, minors A.K. and J.K., on September 18, 2008. The minors' mother had a history of psychiatric problems and substance abuse, and she tested positive or admitted to illegal drug use during pregnancy. Father also had a history of substance abuse, and at the time of the minors' detention he was incarcerated for violation of felony probation on an underlying conviction for possession of cocaine.

Father and mother had been involved in an ongoing dependency case since September 2007 for the minors' older sibling. Reunification services were terminated in that case and a section 366.26 hearing was set for October 31, 2008, with a recommendation that parental rights be terminated as to the older sibling. Father was released from custody on October 4, 2008, and he was present for the section 366.26 hearing for the minors' older sibling. Parental rights were terminated and the sibling was freed for adoption with relatives.

The disposition hearing for the minor twins took place in December 2008. The juvenile court bypassed father for services due to his failure to reunify with the minors' sibling (§ 361.5, subd. (b)(10) & (11)) and because he was declared an alleged father (not presumed) and was not, therefore, entitled to custody and reunification (see In re Zacharia D. (1993) 6 Cal.4th 435, 450-452).*fn2 Reunification services were, however, ordered for mother.

Father was originally provided visitation three days a week, but was visiting twice a week by the time of the six-month review hearing. He was generally consistent in appearing for visitation. He was often focused and engaged during visits, but sometimes appeared distant. He required a high level of supervision during visits, as he struggled with basic parenting skills such as changing diapers, picking up on the minors' cues, and general safety. Generally, he acted in a loving way to the minors, and the minors were sometimes willing to play but sometimes wiggled away from him.

Although father had tested clean since October 2008, mother continued to struggle with substance abuse. Additionally, her visits with the minors were irregular and did not go well. Accordingly, mother's reunification services were terminated on November 2, 2009. Visitation for both parents was reduced to once a week.

On February 26, 2010, father filed a section 388 petition seeking reunification services and custody of the minors. He alleged his circumstances changed because he remained free from drug or alcohol use since just after his release from jail on October 4, 2008, he engaged in visitation and bonding with the minors, and he participated in services on his own. He further alleged reunification services and custody were in the best interests of the minors because "[i]t is always more beneficial for children to be in the home of their natural parents," he is in the position to care for the minors, and he and the minors have a bond.

The hearing on the petition for modification occurred concurrently with the section 366.26 hearing which, due to repeated continuances, did not take place until May 28, 2010. The juvenile court took the matter under submission and subsequently issued an order denying the petition for modification, finding the proposed modification would not promote the best interests of the minors. The court then terminated parental rights, freeing the minors for adoption.

DISCUSSION

Father contends the juvenile court abused its discretion when it denied his request to modify its prior orders. We disagree.

Section 388, subdivision (a), provides in part: "Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court."

Section 388 permits a modification of a dependency order if a change of circumstance or new evidence is shown and if the proposed modification is in the best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526 (Kimberly F.).) The petitioning party has the burden of proof by a preponderance of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 48 (Casey D.).)

One of the functions of section 388 is to provide "an 'escape mechanism' when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights." (Kimberly F., supra, 56 Cal.App.4th at p. 528, quoting In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).) "Even after the focus has shifted from reunification, the scheme provides a means for the court to address a legitimate change of circumstances while protecting the child's need for prompt resolution of his custody status." (Marilyn H., supra, at p. 309.)

The best interests of the child are of paramount consideration when a modification petition is brought after termination of reunification services. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In assessing the best interests of the child at this juncture, the juvenile court looks not to the parent's interests in reunification but to the needs of the child for permanence and stability. (Marilyn H., supra, 5 Cal.4th at p. 309.) "A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests." (Casey D., supra, 70 Cal.App.4th at p. 47.)

"[W]hen a child has been placed in foster care because of parental neglect or incapacity, after an extended period of foster care, it is within the court's discretion to decide that a child's interest in stability has come to outweigh the natural parent's interest in the care, custody and companionship of the child." (In re Jasmon O. (1994) 8 Cal.4th 398, 419 (Jasmon O.).)

A modification 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." (Jasmon O., supra, 8 Cal.4th at p. 415.) "It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion . . . ." (Kimberly F., supra, 56 Cal.App.4th at p. 522.)

Applying these principles to the circumstances before us, we conclude the juvenile court did not abuse its discretion when it denied father's request to modify its previous order.

The only alternative open to the court was to order reunification services, which would have resulted in a further period of uncertainty for the minors, who had been living in a stable environment for the entirety of their young lives. In most cases, if a parent's circumstances do not permit placement with that parent of an otherwise adoptable child, reopening reunification "does not promote stability for the child or the child's best interests." (Casey D., supra, 70 Cal.App.4th at p. 47.) Under the minors' circumstances, a modification that would entail anything short of placement with father would have run counter to "the [minors'] need for prompt resolution of [their] custody status." (Marilyn H., supra, 5 Cal.4th at p. 309.)

Here, although father had progressed in addressing his substance abuse problems since his failure to reunify with the minors' sibling, his visitation record demonstrated he still struggled with basic care and he never had unsupervised or overnight visits. The appropriateness of placement with father would be questionable at best on this record. Moreover, father maintained a relationship with mother, who continued to demonstrate instability and drug abuse.*fn3 It remained uncertain whether father would be able to effectively parent the young minors, protect them from mother, or even remain clean and sober under such circumstances. Thus, successful and permanent placement with father was far from certain. On the other hand, the minors had been thriving in their stable environment since December 2008. Accordingly, the trial court could reasonably conclude the minors' interest in stability would not be furthered by the requested modification order.

In arguing the best interests of the minors, father emphasizes the relative bond between himself and the minors compared to the bond between the minors and their current caretakers. He argues "the relative bonds issue is neutral and, in any event, certainly not weighted to any relevant degree in favor of the foster parents." In support of this argument, he points to evidence that during visits, the minors wanted his attention, recognized and smiled at him, and played positively with him. A review of the numerous visitation logs shows father's visits with the minors to be generally unremarkable and that the evidence he cites is, indeed, the only evidence of any bond the minors have with him.

Conversely, the minors were reported to have resided with their foster parents for almost a year and a half -- nearly all of their young lives. The foster parents have provided the minors with a loving and stable home, and each minor "responds well to his nurturing foster parents." The minors continued "to thrive in their foster care placement" and "look to the foster parents to meet their physical, emotional and special needs."*fn4 And although father asserts there was no such report, A.K. was reported to "light up with a huge smile on his face as soon as he saw his foster mom" walk into the area after a visit with father. Nonetheless, father essentially argues that it would be detrimental to sever the minors' bond with their father, who they enjoyed playing with a couple of times a week, but that he "doubt[s]" that severing the relationship with the foster parents, with whom they have lived their entire lives, "would be harmful to either minor and certainly would not cause them any long-term emotional damage."

Father has not met his burden of proof, and we disagree with his analysis, particularly in light of the minors' need for stability and permanence. The juvenile court did not abuse its discretion in denying the petition for modification.

DISPOSITION

The juvenile court's orders are affirmed.

We concur: RAYE, P.J. NICHOLSON,J.


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