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In Re Daniel G., A Person Coming Under the Juvenile Court v. Alexander T

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


April 13, 2011

IN RE DANIEL G., A PERSON COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
ALEXANDER T., DEFENDANT AND APPELLANT.

Super. Ct. No. JD229303

The opinion of the court was delivered by: Robie, Acting P.J.

In re Daniel G. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Presumed father, Alexander T. (father), appeals from the denial of his petition for modification under Welfare and Institutions Code*fn1 section 388 and from a judgment terminating parental rights. (§ 366.26.) Father's sole contention on appeal is that the trial court abused its discretion in denying the modification petition. We affirm.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

While she was pregnant with Daniel, mother tested positive for methamphetamine and marijuana. At his birth, mother and Daniel both tested positive for marijuana. Mother agreed to participate in voluntary services, but did not do so. In fact, between July 2008 and March 2009, mother had over 19 positive drug tests for both marijuana and methamphetamine. Because of mother's failed drug tests, failure to attend treatment or participate in court-ordered services and her failure to make Daniel available to the social workers, in March 2009, Daniel was taken into protective custody. Daniel was declared a dependent of the court in April 2009 and reunification services were ordered for mother.

Mother named two possible alleged fathers, J. Q. and L. E. Paternity testing revealed neither was Daniel's biological father. L. E.'s parents requested placement of Daniel, irrespective of his paternity. They had known Daniel since he was two weeks old, visited with him every other weekend, and considered mother like a daughter to them. Following an assessment, Daniel was placed with the E.s on July 23, 2009.

Daniel adjusted well to his placement with the E.s. They interacted well together and Daniel had a positive relationship with the E.s, their adult children, and their three-year-old grandchild. Mrs. E. described Daniel as "bright, loves to smile, affectionate, and [a] happy child who is a delight to love and have in her life." Daniel was walking, talking, and developing normally. The E.s remained committed to adopting Daniel if mother could not reunify, as they had been since the commencement of the dependency proceedings.

Mother did not visit Daniel between July 2009 and November 2009. She was incarcerated on November 25, 2009. The social worker recommended reunification services be terminated, as mother had not actively engaged in services. The court followed this recommendation and mother's reunification services were terminated on December 10, 2009.

In an effort to determine any unknown prospective fathers, the Sacramento County Department of Health and Human Services (department) searched various databases and attempted contact with various relatives, to no avail. As of February 2010, the department no longer knew where mother was.

On March 11, 2010, father called the department and said he might be Daniel's father. He stated he had recently visited Daniel, and believed they looked alike. Mother had told him he could be Daniel's father. Mother and father had dated for four years. He knew she was pregnant, but was not certain Daniel was his child. He said mother had always said Daniel could be his child and had sent him pictures, which looked "just like him." Father later stated he had seen Daniel "'once in a while when he was born,'" but did not think Daniel was his son. Father requested paternity testing and placement with his parents if Daniel was his child.

L. E., one of the earlier alleged fathers, informed the social worker that mother was living with father and believed she could regain custody of Daniel if Daniel were placed with father. The social worker confirmed that mother was apparently living with father and suspected his reports regarding Daniel might not be credible.

Daniel had developed a significant relationship with the E.s. He was happy, active, and curious. He called the E.s Nana and Papa. The E.s remained committed to adopting Daniel.

Father appeared in court on April 8, 2010, and requested paternity testing. He testified that the first time he had seen Daniel in person was about one month earlier, although he had seen pictures before then. He stated mother had tried to keep Daniel away from him. Father's request for paternity testing was granted, and the testing established him as having a 99.99 percent probability of being Daniel's father. In June 2010, father was adjudged Daniel's biological father. The parents signed a declaration of paternity. Based on this declaration, the department conceded the point and the court granted father presumed father status.

Father filed a section 388 petition, requesting the court grant him sole legal and physical custody of Daniel or place Daniel with him with dependent supervision. He alleged he was a nonoffending, non-custodial parent and it would be in Daniel's best interest to be in his custody to "ensure[] that Daniel is raised by a biological parent and maintains a connection to his ancestry and unique cultural background."

Based on conversations with father, the social worker concluded father had known he might be Daniel's father since Daniel's birth, but did not come forward until Daniel was 20 months old. The social worker noted father originally had not asked for placement with him, but with one of his family members. Father had numerous prior convictions, including multiple drug-related offenses. In July 2010, father turned himself into jail on a custody warrant, and remained in custody. There was no existing parent/child relationship between Daniel and father. Accordingly, the social worker believed placement with father would be detrimental to Daniel.

At the combined section 388/366.26 hearing, father testified he had been incarcerated after turning himself in to complete a sentence imposed on a conviction two years earlier. He turned himself in when he was informed that a background check was going to be performed related to the dependency proceedings. He was scheduled to be released from custody in two weeks. He claimed he no longer associated with the people he had previously gotten in trouble with and would be able to care for Daniel, with the support of his family. Father expressed reservations about the care Daniel would receive from the E.s, because he claimed that two years previously their son lived in their garage and used drugs. He felt this concern made Daniel's placement tenuous. He also believed that if the section 388 petition was not granted, Daniel would be deprived of knowing his extended biological family and cultural heritage.

The court denied the modification petition, finding that father had not met his burden of establishing it was in Daniel's best interest to be placed with father or his family members. The court found Daniel likely to be adopted and terminated parental rights.

DISCUSSION

Father contends the trial court abused its discretion in denying his request for modification. Section 388 allows the juvenile court to modify or set aside a previous order if new evidence or changed circumstances exist, and the proposed modification is in the best interests of the minor. Father argues he established changed circumstances, in that before he was granted presumed father status, Daniel "was fatherless with a mother who really had shown no real interest in being a proper parent." He argues he also established granting the petition was in Daniel's best interest, as there were concerns regarding the placement with the E.s, and that in the absence of any perceived detriment to Daniel, it was in his best interest to be placed with father "where he could grow up with his natural family and be exposed to his ancestry and unique cultural background." We find no abuse of discretion.

A biological father who does not attain presumed father status prior to the termination of any reunification period is not entitled to custody as the nonoffending, non-custodial parent or reunification services. Instead, he must "move under section 388 for a hearing to reconsider the juvenile court's earlier rulings based on new evidence or changed circumstances." (In re Zacharia D. (1993) 6 Cal.4th 435, 454, fn. omitted.)*fn2 "The rule is the same whether his paternity was concealed from him or not." (In re Vincent M. (2008) 161 Cal.App.4th 943, 947.) "The section 388 petition will not be granted unless there are changed circumstances or new evidence demonstrating it is in the child's best interest to grant reunification services or custody. [Citations.]" (Id. at p.955.)

Here, father dated mother for four years, knew she was pregnant, and was told Daniel could be his son. Mother sent him pictures of Daniel throughout his life. He knew that people were undergoing paternity tests, but he did not. He never attempted to assume parental responsibilities, did not demonstrate a willingness or interest in assuming custody of Daniel, did not financially contribute to Daniel's upbringing, and did not come forward as a possible father until Daniel was almost two years old. Moreover, it was uncertain whether he was capable of immediately taking custody of Daniel, as he was in custody at the time. He is not financially stable and had no plans for how to care for Daniel. On this record, we agree with the trial court that it is questionable whether father demonstrated changed circumstances. (See Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849; In re Vincent M., supra, 161 Cal.App.4th at pp. 957-961.) However, even assuming this record demonstrated changed circumstances, the court did not abuse its discretion finding father had not established that a change in order was in Daniel's best interests.

When a modification petition is brought after termination of reunification services, the best interests of the child are of paramount consideration. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In assessing the best interests of the child, the juvenile court looks not to the parent's interests but to the needs of the child for permanence and stability. (Ibid.) In fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) "A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (Stephanie M., at p. 317.)

Father's argument on the issue of Daniel's best interests explicitly relies on the claim that the relative weight given to various factors considered by the trial court was inappropriate. In essence, his argument requests we reweigh the evidence and ignore the abuse of discretion standard of review. This we cannot and will not do. As trier of fact, it is the juvenile court's role to assess the credibility of the witnesses and to weigh the evidence to resolve conflicts in the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) It is not within our purview as an appellate court "to judge the effect or value of the evidence, to [re]weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence." (Id. at p. 52.)

Rather, under section 388, "[t]he parent requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is a preponderance of the evidence. [Citation.]" (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., supra, 7 Cal.4th at pp. 318-319.) The test is whether the trial court exceeded the bounds of reason. (Ibid.) When two or more inferences can reasonably be deduced from the evidence, the reviewing court has no authority to substitute its decision for that of the trial court. (Id. at p.319.)

In assessing the best interests of the child, "a primary consideration . . . is the goal of stability and continuity." (In re Stephanie M., supra, 7 Cal.4th at p. 317.) The court may also appropriately consider the relative strength of the minor's bond with the parent and with the minor's caretaker. "[T]he strength of a child's bond to his or her present caretakers, and the length of time a child has been in the dependency system in relationship to the parental bond are . . . vital." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531.)

Here, Daniel was about nine months old when he was removed from mother. Two months later, he was placed with the E.s, where he has remained. Daniel is developmentally on target, happy, and healthy. He has a significant, established relationship with the E.s, who he calls Nana and Papa. They have known Daniel his entire life and have had custody of him for most of it. In contrast, father has had no relationship with Daniel throughout his life, meeting him for the first time when Daniel was 20 months old.

In addition, father is not financially stable. He had no plans on how to provide for Daniel or meet Daniel's needs. Father has a significant criminal history. At 22 years old, he has seven criminal convictions in 2007, 2008, and 2009. In each of those years, he had at least one drug-related conviction. A fact which is particularly relevant here, as these proceedings were commenced because of mother's inability to rehabilitate herself from her substance abuse. Moreover, father was living with mother, "a woman whose care of [Daniel] had already been adjudicated detrimental to his well-being." (In re Zacharia D., supra, 6 Cal.4th at p. 455.) Father most recently turned himself in to custody, not based on a newfound level of maturity, but rather in the interest of self-preservation because the department was going to run a background check and he had missed a number of turn-in dates. At the time he came forward regarding paternity, he was on three grants of probation, which put his future availability for Daniel in question. He claimed placement with him was in Daniel's best interest so Daniel could maintain a connection to his ancestry and unique cultural background. However, he gives no indication of what that "unique cultural background" is and how its preservation would serve Daniel's best interests so significantly as to outweigh the permanence and stability of him remaining in his current placement.

Finally, the concerns raised by the social worker were related to the E.s allowing their adult son, L. E., to watch Daniel, because L. E. had allowed an unauthorized visit with mother and father. This concern was resolved by the E.s agreement not to allow L. E. to watch Daniel. In addition, placing Daniel with father, who is living with mother, certainly would not advance Daniel's best interests in this regard.

The trial court did not abuse its discretion in finding it was not in Daniel's best interests to be placed with father. Accordingly, there was no error in denying the petition for modification.

DISPOSITION

The judgment of the juvenile court is affirmed.

We concur: BUTZ ,J. MURRAY ,J.


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