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In re J.P.

California Court of Appeals, Fourth District, First Division

August 26, 2014

In re J.P., a Person Coming Under the Juvenile Court Law SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, (###Party1###)
v.
ALEJANDRO G., et al., Defendants and Respondents, J.P., Appellant.

APPEAL from an order of the Superior Court of San Diego County No. NJ14788B, Michael J. Imhoff, Commissioner.

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COUNSEL

Patricia K. Saucier, under appointment by the Court of Appeal, for Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Patricia Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.

Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Respondent, Alejandro G.

Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Respondent Marina P.

OPINION

HUFFMAN, Acting P. J.

J.P., a minor child, appeals an order denying her request for a hearing to suspend visitation with her father and/or terminate his reunification services under Welfare and Institutions Code section 388, subdivisions (a) and (c).[1] Specifically, she contends the juvenile court erred when it ruled that (1) the statutory framework of the dependency system as well as principles of due process required the juvenile court to hold a six-month status review hearing to determine whether reasonable services

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were offered or provided to the parent before it could consider a request to terminate reunification services under section 388, subdivision (c), and (2) the allegations in the child's section 388 petition did not state a prima facie case to show that the action or inaction of the parent created a substantial likelihood family reunification would not occur, or that a modification of the prior visitation order was in the child's best interests.

We conclude that the juvenile court misinterpreted section 388, subdivision (c) when it denied J.P.'s request for a hearing to terminate her father's reunification services. While section 388, subdivision (c) requires a reasonable services finding, the juvenile court is not required to hold a six-month review hearing to determine whether reasonable services have been offered or provided to a parent before it holds a hearing on a petition to terminate reunification services under section 388, subdivision (c). The reasonable services finding required under section 388, subdivision (c) may be made at a hearing on the petition. In addition, terminating reunification services before the statutory reunification period has ended does not violate a parent's due process rights where the parent's action or inaction has created a substantial likelihood that family reunification will not occur. Where there is a substantial likelihood the child will not be reunited with his or her parent as a result of a parent's action or inaction, the child's interests in a safe, permanent home takes precedence over the parent's diminished interests in the child. In addition, the juvenile court erred when it found that J.P.'s petition to terminate her father's reunification services and/or suspend visitation did not state a prima facie case.

We nevertheless conclude reversal is not necessary to avoid a miscarriage of justice. In view of the lack of any challenge on appeal to the juvenile court's findings at the six-month review hearing that visitation was not detrimental to the child, and the father was making progress with his case plan and it was likely that reunification would occur by the next review hearing, any error in not granting a hearing on the section 388 petition is harmless. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

J.P., born March 2009, is the daughter of Marina P. and Alejandro G. Alejandro and Marina had a brief romance while Alejandro was separated from his wife, with whom he has three children. Before J.P.'s dependency proceedings began, Alejandro visited J.P. four times. He last saw her in approximately March 2012. Alejandro made regular child support payments and maintained health care insurance for J.P.

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On March 8, 2013, the San Diego County Health and Human Services Agency (Agency) detained J.P. and her two half-brothers[2] in protective custody after Marina's boyfriend severely physically abused J.P. J.P. remained in the hospital for a month while she recovered from a pancreatic injury, malnourishment, and at least 38 fractures, including a fractured hip, which were deliberately inflicted by her mother's boyfriend. He subjected J.P. to acts of cruelty, including requiring her to stand in a cold shower for extended periods of time, up to and including all day, while fully clothed, and spanked J.P. with clothes hangers, causing her to bleed.[3] (In re J.M. (May 9, 2014, D065121) [nonpub. opn.]; In re J.M. (June 10, 2014, D065252) [nonpub. opn.].) Additional acts of physical and emotional abuse and maltreatment are detailed in this court's nonpublished opinions, In re J.M., supra, D065121 and In re J.M., supra, D065252, and we need not repeat all the details here. Suffice to say J.P. suffered unimaginable acts of cruelty that left her physically battered and emotionally traumatized.

Alejandro appeared at the jurisdiction and disposition hearings. The juvenile court found that Alejandro was J.P.'s adjudicated biological father. The court assumed jurisdiction over J.P. and her half brothers, and removed them from parental custody. Due to her extended hospitalization, J.P. was placed in a separate foster home from her half brothers. The juvenile court denied family reunification services to Marina, who knew that her boyfriend was physically abusing J.P. and failed to intervene, and ordered a reunification services plan for Alejandro consisting of supervised visitation and conjoint therapy with J.P. The juvenile court authorized the social worker to expand Alejandro's supervised visits with J.P. and permit unsupervised and overnight visits, and a 60-day visit, with the concurrence of minor's counsel.

J.P. was diagnosed with posttraumatic stress disorder (PTSD). She had intense tantrums and nightmares. Her foster mother, who was a mother and grandmother and had been a foster parent for 17 years, said J.P. was the most challenging child she ever had in her care. J.P. sought safety and security, and often fell asleep on the floor next to her foster mother's bed. The foster mother and her husband loved J.P. but were not in a position to adopt a young child.

The social worker talked to Alejandro about the importance of maintaining regular contact with J.P. to establish and strengthen their relationship. The social worker was aware that Alejandro's travel time to visit J.P. was approximately two and a half hours each way, and that his financial circumstances were stressed and he was at risk of losing his home.

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The foster mother set up weekly visits on Sunday evenings and offered Alejandro the opportunity to have another visit the following day if he wished to stay overnight in San Diego.

J.P.'s first visit with her father occurred on June 14, 2013. Alejandro said the visit was "awesome." According to J.P.'s foster mother, J.P. appeared to recognize her father when she first saw him. However, J.P. pulled away from her father when he hugged and kissed her goodbye.

After the June 24 visit, J.P. referred to "daddy Alex, " adding, "but he's a stranger." She told her foster mother she did not like it when he hugged her, saying, "I'm a little bit scared of him." When Alex abruptly cancelled his visit on June 25, J.P. cried and said, "He hurt my feelings."

Alejandro cancelled his visit on July 1. He visited J.P. on July 7, 14 and 21. On July 26, J.P. told her foster mother, "I'm scared of my daddy Alex and I don't like my visit." Later, while playing "visit" with another child, J.P. said, "The girl is scared because her daddy is a stranger. So, she ...


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