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In Re P.S. et al., Persons Coming Under the Juvenile Court v. P.S.

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


April 7, 2011

IN RE P.S. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
P.S., SR., DEFENDANT AND APPELLANT.

Super. Ct. Nos. JD228487, JD230376

The opinion of the court was delivered by: Raye P.J.

In re P.S. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

P.S., Sr., the father of two-year-old P.S., Jr., (P.S.) and one-year-old Ph.S., appeals from orders of the Sacramento County Juvenile Court terminating his parental rights.

On appeal, father contends (1) his modification petitions were erroneously denied, (2) there was insufficient evidence that the children are adoptable, and (3) there was insufficient evidence that the beneficial relationship exception to adoption does not apply. We shall affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

Detention of P.S.

In October 2008, one day after P.S.'s premature birth, the Sacramento County Department of Health and Human Services (Department) placed him in protective custody due to his 20-year-old mother's failure to participate in, and consequent termination of, family reunification services for a half sibling, N.T., which in turn placed P.S. at risk for abuse, neglect, or harm.

Father, age 47, was present at the birth of P.S. and his name is listed on the birth certificate. He told a social worker that mother had given him custody of P.S. Father denied that he had any Child Protective Service (CPS) history and admitted that he has 11 other children, all of whom live with their mothers. Father lived alone, was unemployed, and received social security for a disability related to a back injury. He denied any domestic violence with mother but admitted to mutual domestic violence with the mother of some of his other children for which he had been incarcerated and had attended anger management counseling.

Four days later, the Department filed a petition alleging that P.S. came within juvenile court jurisdiction pursuant to Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling).*fn1 The petition alleged various facts with respect to mother but no facts with respect to father.

On October 9, 2008, the juvenile court found father to be the "presumed father" of P.S. and ordered the baby detained.

Jurisdiction and Disposition of P.S.

The October 2008 jurisdiction/disposition report recommended that P.S. be declared a dependent, removed from his parents, and placed with a maternal great-aunt. During the three weeks that mother had lived with father, he had not noticed her having any mental health issues or having any emotional or developmental delays. Rather, father thought mother simply was "young and immature." The social worker deduced that father's failure to notice raised "concerns regarding [his] ability to set boundaries with the mother," and opined that he should not receive custody until he learned to set "boundaries and limits" with mother and learned to "parent a young infant child." Reunification services were recommended for father but not for mother.

The investigation revealed that father had an extensive criminal history, starting with a conviction for battery in August 1982 and including convictions for corporal injury of a spouse or cohabitant, obstructing or resisting a peace officer, and another battery for which he was then on probation.

A December 2008 addendum to the report noted that the Department had received information from a worker at mother's independent living program (ILP) regarding domestic violence between mother and father. The ILP worker advised that mother, who is developmentally delayed and a client of the Alta Regional Center, had said that father, her live-in boyfriend who is considerably older than her, had been beating her for several weeks. Father would lock the apartment door and refuse to let mother leave. He frequently would beat her with a belt and belt buckle. The ILP worker observed that mother had a "raised skin area near her left ear and left temple area."

Mother told the ILP worker that she and father had arranged for him to seek custody of P.S. and then allow mother to see P.S. as often as she wanted; he told her they "wouldn't let CPS know about it, and [mother] could live with [father]." The ILP worker, who has known mother since 2005, knows "when [mother] is not telling the truth, and she's telling the truth about this."

Father left the Department a voice mail message adamantly denying the allegations.

When a Department social worker interviewed mother, she inquired whether the juvenile court would find out about the domestic violence. Mother then claimed that a year before she was pregnant with P.S. father had hit her, but not recently. She denied making the statements that the ILP worker had attributed to her.

The Department continued to recommend out-of-home placement and asserted that father needed counseling on "how to establish boundaries with the mother and to identify behaviors of mental health, developmental and emotional delays in order to ensure the safety and protection of the child, as well as domestic violence and anger management/poor impulse control issues."

In January 2009 the Department filed another addendum recounting mother's insistence that she had lied about father physically abusing her "because she was jealous of the father's new relationship with another woman." She said it "was 'all lies,'" and she had not intended to jeopardize P.S.'s possible placement with father. The addendum stated that the Department had ongoing communication with father who denied the allegations, was compliant with services, and now acknowledged mother's mental health issues.

Without addressing the ILP worker's observation of mother's physical injuries or the worker's opinion that mother's report had been truthful, the Department remarkably concluded that "there is no evidence" that father "ever" had been abusive to mother. The Department recommended that P.S. be placed with father under a program of dependent supervision.

In January 2009 the juvenile court sustained the petition, adjudged P.S. a dependent, placed him with father, ordered services for father, and set a review hearing.

Subsequent Juvenile Petition--Detention of P.S.

Only two months later, P.S. was returned to protective custody. In March 2009 mother and father had a verbal argument that escalated into a physical confrontation. Father punched mother in the face two times. He was arrested and taken to jail.

The Department filed a petition under sections 342 and 387, alleging the parents "have a history of engaging in domestic violence," with the most recent incident occurring on March 20, 2009. The petition alleged the "ongoing domestic violence" placed P.S. at risk of physical harm, abuse, and/or neglect.

The juvenile court detained P.S. and a jurisdiction hearing was set for April 2009.

Subsequent Juvenile Petition--Jurisdiction of P.S.

When interviewed by the Department, father claimed that mother, who had been "stalk[ing]" him, tried to force her way into the apartment to see P.S. When she did so, he "slightly grab[bed] her shoulder back" and mother fell. He denied punching her at all.

According to mother, she and father got into an argument earlier outside a store, and father took off with mother's purse and shoes. When mother later arrived at father's apartment, he punched her twice in the face and dragged her down to the ground and inside the apartment amid her screams.

An eyewitness heard a loud disturbance and later observed father punching mother, who was then on the ground. A responding police officer observed that the left side of mother's face and lip were swollen.

The Department concluded that father "was not forthright or honest during the interview."

In May 2009 the juvenile court placed P.S. in the care of his paternal aunt.

In July 2009 the juvenile court sustained the petition in its entirety, continued P.S.'s placement with the paternal aunt, ordered reunification services for father, and set a permanency hearing. Father was required to participate in a program of professional counseling addressing, among other things, "Domestic Violence" and "Anger Management/Poor Impulse Control."

August 2009 Domestic Violence Incident

In August 2009 both parents were arrested for domestic violence. They gave conflicting accounts and ultimately neither faced criminal charges.

Permanency Hearing for P.S. and Detention of Ph.S.

In a December 2009 permanency review report, the Department recommended that father's reunification services be terminated because he had "failed to successfully complete and make substantive progress" in his services.

Relying on a March 14, 2009, letter from father's counselor to CPS, the review report asserted that father had attended just seven of 13 individual counseling sessions prior to and including March 11, 2009, and he had not returned after that date.

In addition, father had been referred for anger management group counseling, but he did not participate in any sessions.

Between March 2009 and September 2009, father made "minimal efforts" to visit P.S. He made many excuses: he was fixing up his house, he was too busy, the paternal aunt lived too far away, or he did not have the time. From September 2009 through December 2009, father visited on a regular basis.

The report stated that P.S. was "happy, healthy, and thriving" in the care of the paternal aunt. A heart murmur had been diagnosed in April 2009, but the next month no murmur was heard and the child's echocardiogram was normal. No restrictions or precautions were imposed, and no follow up was needed. An examination determined that P.S.'s cognitive, language, and motor development was in the average range for a child of his age.

Father requested a contested permanency hearing. Before it could be held, the parents' second child, Ph.S., was born. The Department took the baby into protective custody the next day. A petition was filed alleging that Ph.S. came within juvenile court jurisdiction pursuant to section 300, subdivisions (b) and (j).

In December 2009 the juvenile court conducted a detention hearing for Ph.S. and a review hearing for P.S. Over father's objection, Ph.S. was ordered detained. The court then proceeded to P.S.'s review hearing.

Father testified that he completed parenting classes and individual counseling. He also completed renovating a home that now was appropriate for P.S. He had just started anger management and had completed one session.

Father testified that he has never hit mother and has never had a physical altercation with her. The allegations to the contrary in prior sustained petitions were inaccurate. Father did not believe that mother posed a threat to the children or that she was dangerous. However, if the court ruled that mother could not see P.S., father believed he could "provide that protection."

Following the presentation of evidence, the juvenile court began its ruling by stating, "Father's testimony is not credible." The court found that father had not maintained regular and consistent visitation and had not participated regularly, or made substantive progress, in his court-ordered treatment. Rather, father had made all sorts of excuses. The court terminated father's reunification services, continued P.S.'s placement with the aunt, and set a selection and implementation hearing.

Jurisdiction and Disposition of Ph.S.

In January 2010 the Department filed an amended juvenile petition for Ph.S.

In a January 2010 jurisdiction/disposition report, the Department reported that Ph.S. suffers from "tremors," sleeps in one-hour intervals, wakes up crying, and "binds" up her body. She was detained in a foster home for "medically fragile" children. Father had not visited, nor even asked to visit, with Ph.S.

In February 2010 the juvenile court sustained the first amended petition for Ph.S. The court found she was described by section 300, subdivisions (b) and (j), based upon mother's untreated substance abuse problem; mother's developmental delays and untreated mental health problems; the parents' history of domestic violence, including the most recent incidents in March 2009 and August 2009; and both parents' failure at reunification for mostly the same issues.

At disposition, Ph.S. was declared a dependent child of the court and placed with her sibling, P.S., in the home of the paternal aunt. Reunification services for the parents were bypassed pursuant to section 361.5, subdivision (b)(10), and a selection and implementation hearing was set.

Selection and Implementation Report

In April 2010 the paternal aunt, who previously had adopted three of father's children and who previously had expressed commitment to adopting both P.S. and Ph.S., expressed some ambivalence about adopting both children and requested more information regarding the alternative of guardianship. The aunt was hoping that father would "get it together" prior to the selection and implementation hearing. The Department advised the aunt that the children, who were young and in good health, were considered generally adoptable and they deserved the permanency that adoption would provide. If the aunt decided not to adopt the children, the Department would seek placement with another adoptive family.

In June 2010 the Department prepared a selection and implementation report for both children. The report recommended termination of parental rights and adoption by the paternal aunt. After having time to consider the situation, the aunt was "fully committed" to adopting both children and she was "no longer advocating for [father] to reunify with his children."

The report notes that six-month-old Ph.S., who had been exposed to cocaine during gestation, was at or near normal developmental milestones. She "now sleeps for approximately four hours at a time" and "is now sleeping through the night." After being treated for lactose intolerance, her rash subsided and she began to gain weight. She was described as an easygoing child who loves attention and easily interacts with others.

The report questioned whether P.S. would be considered generally adoptable, as opposed to specifically adoptable, based upon his heart murmur and "a family history of developmental delays." However, the report failed to note that, a month after the murmur was detected, P.S. underwent another examination at which no murmur was heard, a normal echocardiogram was obtained, no restrictions or precautions were imposed, and no further follow up was ordered. The report also failed to note that P.S. underwent a developmental examination that showed his cognitive, language, and motor development to be in the average range for a child of his age.

Petitions for Modification

At the selection and implementation hearing, father requested a contested hearing and indicated that he would be filing modification petitions. Father filed his modification petitions five days before the contested hearing. The petitions requested that the orders "terminating" (in the case of Ph.S., denying) his reunification services and retaining the children out of his custody be changed and the children placed with him or reunification services be reopened. Father claimed he had completed his case plan services, had stable housing, was not in a relationship with mother, and was bonded to his children.

The petitions were supported by a May 5, 2009, letter from father's counselor to CPS showing that, contrary to the permanency review report, father had attended six more counseling sessions and had missed four more sessions between March and May 2009.

Contested Hearing

On June 29, 2010, the juvenile court held a contested selection and implementation hearing and considered father's modification petitions. Father and the Department's social worker testified.

Father testified that he completed his parenting class in December 2008, completed family counseling after P.S. was removed from his care, and two weeks previously had completed anger management. Father claimed the delay in completing anger management was the fault of the Department, which told him he needed to move to a new address and keep that address confidential from mother. He obtained a house that needed major renovations, which he personally performed.

Father testified that mother nevertheless discovered his address. The last time he saw her was in August 2009 when she appeared at the house and he went to jail.

Father testified that mother has never been to his home while the children were visiting, has never been present during 2010, and has never been inside the home.

Father described some topics he had studied in the anger management course. He said the children visit him frequently at his house and he occasionally visits them at their aunt's house. Father believed he could parent the children safely and, if they were returned to him, he would not allow mother to visit them unless the court ordered.

The social worker testified that, on at least two occasions since February 2, 2010, mother "pop[ped] up" during visitations at father's house and participated in the visitations.

DISCUSSION

I

Father contends the juvenile court abused its discretion when it denied his modification petitions, because he had shown a significant change of circumstances and had proved that the modification would be in the children's best interests. We are not persuaded.

A parent may bring a petition for modification of any order of the juvenile court pursuant to section 388 based on new evidence or a showing of changed circumstances.*fn2 "The parent requesting the change of order has the burden of establishing that the change is justified. [Citation omitted.] The standard of proof is preponderance of the evidence. [Citation omitted.]" (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Determination of a petition to modify is committed to the sound discretion of the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) The best interests of the child are of paramount consideration when the petition is brought after termination of reunification services. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the best interests of the child, the juvenile court looks not to the parent's interests in reunification but to the needs of the child for permanence and stability. (Ibid.; In re Marilyn H. (1993) 5 Cal.4th 295, 309.)

The juvenile court acknowledged that father had provided new evidence in the form of the May 2009 letter showing that, contrary to the permanency review report, father had attended additional counseling sessions between March and May 2009. However, the court declined to find that this new evidence justified the modification of any order. Relying on the counselor's "ending conclusion" that "father fails to recognize the long term developmental limitations posed by the child's mother and believes her condition will improve through the maturation process and in the future could adequately care for the child in a responsible and competent manner," the court declined to find that father had "made sufficient progress to say that he had benefited from services in the area." Father has not attempted to show any abuse of discretion with respect to this determination, and none appears. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)

The juvenile court next acknowledged the changed circumstance of father having completed anger management counseling. The court was "glad to see the father has completed that and it does go at least in part to domestic violence." However, the court declined to find that this changed circumstance justified the modification of any order.

The court explained that "domestic violence is the main issue here," and that, while "going to anger control counseling is certainly well and good," "domestic violence counseling is the appropriate remedy to fix the problems that led to the removal of" the children. In the court's view, "[d]omestic violence is the real issue here and it hasn't been rectified."

Father argues the juvenile court abused its discretion because his reunification plan, which required anger management counseling, did not also require the separate domestic violence counseling that the court believed was necessary. Father claims he "did everything the Department asked him to do," and the court should not have blamed him for "failing to complete a program that was not part of his case plan." We are not convinced.

Father did not seek writ review of the order setting a selection and implementation hearing, and the adequacy of father's case plan was no longer before the court at the time of the modification petitions. (§ 366.26, subd. (l)(3)(A); In re Marilyn H., supra, 5 Cal.4th at p. 309.) Even if father should have been offered a different form of domestic violence counseling, the issue tendered by his petitions was whether the change that did occur--the completion of anger management counseling--justified a modification of the prior order. Because that counseling, and father's renovation of his residence, did not squarely address what the court perceived to be the fundamental issue in the case, its refusal to modify its order was neither arbitrary, capricious, nor patently absurd.

Father counters that the juvenile court erred in believing that "the primary issue in this case was father's domestic violence issues." He relies on the Department's conclusion in its January 2009 report addendum that there had been no evidence father had been physically abusive toward mother. However, as we have explained, the Department's conclusion had little value because the addendum failed to address the ILP worker's observation of mother's physical injuries or the worker's opinion that mother's report had been truthful. Father also conveniently ignores undisputed evidence that only two months later he punched mother in the face.

Because father has not identified new evidence or changed circumstances that could justify modifying a prior order, we need not consider his argument that the modification would be in the children's best interest.

II

Father contends the juvenile court's determination that the children were adoptable was not supported by substantial evidence. Thus, he claims the order terminating his parental rights and placing the children for adoption must be reversed. We disagree.

When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the juvenile court is clear and convincing, the reviewing court must determine if there is any substantial evidence--that is, evidence that is reasonable, credible, and of solid value--to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, we recognize that all conflicts are to be resolved in favor of the judgment and that issues of fact and credibility are questions for the trier of fact. (In re Jason L., supra, at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)

At the selection and implementation hearing, the juvenile court is required to choose a permanent plan for the child. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) Adoption must be ordered if the court finds by clear and convincing evidence that the child is likely to be adopted, absent statutory exceptions. (§ 366.26,subd. (c)(1).)

Determination of whether a child is likely to be adopted focuses first upon the characteristics of the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) The existence or suitability of the prospective adoptive family, if any, is not relevant to this issue. (Ibid.; In re Scott M. (1993) 13 Cal.App.4th 839, 844.) "[T]here must be convincing evidence of the likelihood that adoption will take place within a reasonable time." (In re Brian P. (2002) 99 Cal.App.4th 616, 624.) The fact that a prospective adoptive family is willing to adopt the minor is evidence that the minor is likely to be adopted by that family or some other family in a reasonable time. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)

Only where the characteristics of a child make it unlikely that the child will be adopted by anyone other than the prospective adoptive parents does an inquiry into legal impediments to that adoption become relevant at the section 366.26 hearing. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650; In re Scott M., supra, 13 Cal.App.4th at p. 844; Fam. Code, § 8600 et seq.)

Father relies on the selection and implementation report, which questioned whether P.S. would be considered generally adoptable based upon his heart murmur and "a family history of developmental delays." However, as we have explained, the report failed to note that after the murmur was detected, P.S. underwent another examination at which no murmur was heard, a normal echocardiogram was obtained, no restrictions or precautions were imposed, and no further follow up was ordered. The report also failed to note that P.S. had undergone a developmental examination that showed his cognitive, language, and motor development to be in the average range for a child of his age.

Father also relies on evidence that, in January 2010, Ph.S. had been reported to be suffering from "tremors" and sleeping in one-hour intervals. However, the June 2010 selection and implementation report explained that Ph.S. "now sleeps for approximately four hours at a time" and "is now sleeping through the night."

Thus, the evidence did not compel the juvenile court to conclude that either child's characteristics were so severe that he or she was likely to be adopted only if the prospective adoptive parent were willing to do so. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) Under these circumstances, the fact that a prospective adoptive family was willing to adopt the children is evidence that the children are likely to be adopted by that family or some other family in a reasonable time. (In re Lukas B., supra, 79 Cal.App.4th at p. 1154.) The fact "the Department did not present evidence of any suitable, prospective adoptive parents apart from" the paternal aunt is immaterial. The adoptability finding is supported by substantial evidence.

III

Father contends the juvenile court's orders terminating his parental rights and referring the children for adoptive placement were not supported by substantial evidence and must be reversed "because the children would benefit from continuing their relationship with father." We disagree.

"'At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]' [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child." (In re Ronell A., supra, 44 Cal.App.4th at p. 1368.) There are only limited circumstances which permit the court to find a "compelling reason for determining that termination [of parental rights] would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).) The party claiming the exception has the burden of establishing the existence of any circumstances which constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Evid. Code, § 500.)

One of the circumstances under which termination of parental rights would be detrimental to the minor is: "The 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).) The benefit to the child must promote "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 other words, 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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Even frequent and loving contact is not sufficient to establish this benefit absent a significant, positive emotional attachment between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Brian R. (1991) 2 Cal.App.4th 904, 924.)

Father claims the juvenile court's "determination that the benefit exception to adoption did not apply" is "not supported by substantial evidence," because "the benefit both children would realize by maintaining their connection with father outweighed the benefit they may receive via adoption."

However, father's task is not simply to show, as he does, that the "record in this case" could support a "conclusion" that his relationships with the children were sufficiently substantial and positive that severance of their bond would "greatly harm the children." Rather, father must show that there is no substantial evidence supporting the contrary finding made by the juvenile court. (In re Angelia P., supra, 28 Cal.3d at p. 924.) Thus, father must show there is no substantial evidence that the "benefit [] these children would gain in maintaining a relationship with their father does not outweigh the well-being they would gain in a permanent home with new adoptive parents or parent." This he has not done.

The evidence showed that P.S. lived with father for only two months, and that Ph.S. had been in protective custody from birth. There was no evidence either child was upset after visits ended. Rather, as father testified, Ph.S. had "[r]eally no reaction," while P.S. was not upset and was happy to depart with his aunt/caretaker; he "doesn't cry or anything." These facts amply support the juvenile court's finding that the well-being offered by a permanent home would not be outweighed. (In re Angelia P., supra, 28 Cal.3d at p. 924.)

DISPOSITION

The orders are affirmed.

We concur: HULL J. HOCH J.


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