IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
May 24, 2011
IN RE C.S., A PERSON COMING UNDER THE JUVENILE COURT LAW. BUTTE COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES, PLAINTIFF AND RESPONDENT,
C.S., DEFENDANT AND APPELLANT.
(Super. Ct. No. J34248)
The opinion of the court was delivered by: Mauro , J.
In re C.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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The father of the minor appeals juvenile court orders denying his petition for modification and terminating his parental rights. (Welf. & Inst. Code,*fn1 §§ 366.26, 388.) Father contends the juvenile court abused its discretion because there was a change of circumstances and granting modification would have been in the minor's best interests.
We conclude the trial court did not abuse its discretion. We will affirm the orders of the juvenile court.
In April 2008, when the minor was five years old, law enforcement officers conducted a probation search of his parents' home. The home was unsanitary and unhealthy. Clutter blocked the entry to some rooms. Open beers and a bong were left within reach of the minor, and the home smelled of marijuana. A methamphetamine pipe and a marijuana pipe were also found in the room where the minor slept. Marijuana was grown in another bedroom.
Father admitted the drug paraphernalia was his and that he had a substance abuse problem. Both parents were arrested. The minor was detained and placed in a foster home. In May 2008, the minor was declared a dependent.
The parents were given reunification services for one year. During that time, father made minimal progress completing his case plan. He finished one parent support group class and a mental health screening, but he did not participate in counseling or attend the life skills course. He attended only one anger management session and only half of his alcohol and drug services classes.
Father continued to use alcohol and marijuana. He missed appointments, tested positive for drugs, showed up for visits apparently intoxicated, and did not participate in 12-step meetings. His visits and phone calls with the minor were inconsistent. The minor said he was afraid of his father and sometimes refused to speak with him on the phone.
At the 12-month review hearing, the juvenile court found the parents did not regularly contact or visit the minor, did not make significant progress in their reunification plans or in resolving the problems that led to the minor's removal, and did not show the ability to complete their reunification plans or to provide for the minor. Reunification services were terminated on May 27, 2009.
An adoption assessment was filed a few months later. The report noted the minor was now six years old, had been in his placement for approximately one year, and the caretakers were interested in adopting him. The minor was physically healthy, developmentally on target, and mentally and emotionally stable. He had an age appropriate understanding of adoption, identified himself as a member of his foster family and insisted on using their last name.
The adoption assessment said that after the father became angry with the minor during visits, the minor regressed with night terrors and bed wetting. It was reported that the minor had a conflicted relationship with his father. The minor said he smelled alcohol on his father's breath during visits and felt father was not being honest about his drinking. The assessment found the minor adoptable and recommended termination of parental rights.
Father had weekly visits with the minor between May 2009 and September 2009, except for three cancellations. The minor continued to have negative reactions to visits with father. He had nightmares after visits and he was increasingly angry when asked to call father. He was also acting out with his foster parents.
Father scheduled phone calls with the minor for two times a week in June 2009. Father was available for five of eight calls. During the calls, the minor told father he did not want to talk to him and ended the call. Calls were discontinued for a time in July and then reinstated to once a week. Father was available for one of seven scheduled phone calls between mid-July and mid-September. The minor made it increasingly clear to the social worker and his foster parents that he did not want to have weekly phone calls with father.
During this time, the minor became increasingly vocal about his feelings towards his parents, family abuse and visitation with his parents. It also appeared he was attempting to distance himself from his parents, despite weekly visits with father. By September 2009, the minor reported he did not want to live with his biological parents. He continued to experience nightmares after visits with father, and described seeing "black" or "darkness" when he saw his father. He also stated he no longer wanted to visit with father, complained father smelled like beer during visits and questioned why father was lying about his alcohol consumption.
In October 2009, the Butte County Department of Employment and Social Services (Department) reduced father's visits to once a month. On November 5, 2009, father filed a section 388 modification petition requesting additional reunification services or custody. Father indicated he attended 15 sessions of outpatient treatment and had not used methamphetamine in 10 years. He said he last used marijuana in January 2009 and last used alcohol in July 2009. Father said he regularly attended Alcoholics Anonymous (AA) meetings and procured housing for himself and the minor.
On November 23, 2009, the foster parents decided not to adopt the minor because some of his behavior frightened them. The minor was moved to a different placement, but he had the same social worker and attended the same school. The Department recommended that the minor be ordered into a permanent plan of adoption without termination of parental rights.
At a hearing on January 5, 2010, father testified his housing had been stable for six months. He was not employed but he worked for his landlord in exchange for rent and utilities. He was participating in a 12-step program at least once a week and he had a sponsor for at least seven months. He was in the second phase of a drug treatment program. He had been drug tested three times since May of 2009, with one dirty test for alcohol in July 2009. He said he last used methamphetamine approximately 10 years ago and marijuana over one year ago.
The juvenile court adopted the social worker's recommendation, ordering adoption as the permanent plan without terminating parental rights. The juvenile court denied father's request for modification, finding there was no change in circumstances and insufficient evidence that a modification would be in the minor's best interests.
The minor had monthly visits with his parents in January, February and March 2010. The therapist reported the minor had worked through his problems with father. The visits went well and the minor did not appear afraid of father at those visits.
Father's April visit was cancelled because father had a back injury. Visits were also suspended in May to facilitate the minor's adjustment in his prospective adoptive home.
Before moving in with the prospective adoptive family, the minor had a number of visits with them, including overnight visits and extended weekend visits. The minor also had almost daily phone contact. The minor expressed his desire to join the prospective adoptive family, and when he visited their home he "begged to stay."
The minor moved into the prospective adoptive home in May 2010. He was excited and happy in his new placement and he was adjusting well.
The social worker reported that the minor was doing very well in the prospective adoptive home. He was eating well and sleeping through the night with no nightmares. He was also bonding well with the 10-year-old son in the home. The minor had settled down and settled in. He developed an "affectionate, trusting[,] comfortable relationship" with the prospective adoptive family and he was establishing "significant emotional ties to the potential adoptive parents and their son."
Father filed a second modification petition on August 10, 2010. He sought additional reunification services or custody of the minor. Father claimed he had been clean and sober since July 2009 and last used marijuana in January 2009. He had housing and no outstanding warrants. He worked as a painter on an "on-call" basis. When he did not have money for rent, he did maintenance work for his landlord. Father no longer participated in Narcotics Anonymous (NA) or AA, as he felt there was no reason. He no longer had a sponsor or contact with anyone involved in AA or NA. He stated the change of the order would be in the minor's best interests because father and the minor were very close. He said the minor loved him, was excited to see him in visits and asked when he could come home. Father believed being at "home" would be best for the minor so that the minor would know his family's heritage and history.
The hearing on the second petition for modification was heard concurrently with the permanency hearing. Following a contested hearing, the juvenile court found there was insufficient evidence of changed circumstances and that it was not in the minor's best interests for father to have custody or further reunification services. The juvenile court also found that it was likely the minor would be adopted. The juvenile court issued an order terminating parental rights.
Father contends the juvenile court abused its discretion when it denied his petition for modification. We disagree.
Section 388 permits 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.) "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." (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) 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.)
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. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) "[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.)
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." (In re 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 . . . ." (In re Kimberly F., supra, 56 Cal.App.4th at p. 522.)
Father argues that he demonstrated changed circumstances because he "maintained full sobriety for over one year" and "abstained from all illicit drugs for nearly two years. He had stable housing. The only problem was that he was still unemployed." Father has not established that the juvenile court abused its discretion.
During the year reunification services were offered and prior to May 2009 when the services were terminated, father was using alcohol and drugs. He claimed he attended 12-step meetings, but could not provide logs, did not have a sponsor and was not working the steps of the program.
Later, at the time of the hearing on his first petition for modification in January 2010, father was unemployed. He had three substance abuse tests since May 2009 and one was dirty for alcohol. He provided evidence that he attended outpatient treatment and 12-step meetings regularly, that he had a sponsor and was on step five of the 12 steps, but he had not completed anger management classes. The juvenile court found these were not changed circumstances and father did not appeal that decision.
By the time of the hearing on the second modification petition in August 2010, the minor was already living in a prospective adoptive home for about three months. Father was still unemployed. Although he self-reported that he had been sober for over one year and had been clean for nearly two years, he did not submit to testing during that time. He stopped participating in the 12-step programs and no longer had a sponsor. There was no evidence he had progressed further in his outpatient treatment program or that he completed any parenting class or anger management class.
Moreover, even if father's circumstances changed, he did not establish that the juvenile court abused its discretion in finding that modification was not in the minor's best interests.
Father maintained varying levels of contact with the minor during these proceedings, but the relationship was not always positive. The minor expressed fear of his father and awareness of his father's intoxication during visits. The minor attempted to distance himself from father and refused to speak to him on the phone. After visits the minor experienced night terrors. Although father may have made some progress in addressing his substance abuse, he was still unemployed, had not taken any parenting classes and did not have unsupervised or overnight visits with the minor.
Meanwhile, the minor's relationship with his prospective adoptive family was very positive. He was no longer having nightmares and he developed "significant emotional ties" to the family. The minor was living in a stable environment with the prospect of permanency.
In most cases, if placement with a parent is not appropriate, reopening reunification "does not promote stability for the child or the child's best interests." (In re Casey D., supra, 70 Cal.App.4th at p. 47.) Modification in this case would have been inconsistent with the minor's "need for prompt resolution of his custody status." (In re Marilyn H., supra, 5 Cal.4th at p. 309.)
The juvenile court did not abuse its discretion in denying the petition for modification.
The juvenile court's orders are affirmed.
We concur: RAYE , P. J. BUTZ , J.