Filed 10/18/17 In re Anna C. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Anna C. was born with drugs in her system and removed from her parents’ care at six weeks old. Reunification services were terminated about nine months later. Prior to the Welfare and Institutions Code section 366.26[1] hearing on termination of parental rights, Anna’s father, Manuel C. (Father), filed a section 388 petition seeking additional reunification services. The court denied his petition without a hearing and terminated parental rights. We affirm.

I. Background

On January 26, 2016, Alameda County Social Services (Agency) filed a juvenile dependency petition on behalf of six-week-old Anna pursuant to section 300, subdivision (b) (failure to protect). The petition alleged, inter alia, that Anna and her mother (Mother)[2] tested positive for methamphetamines and marijuana when Anna was born, and both Mother and Father (Parents) had used methamphetamines for at least five years and had dropped out of treatment programs. Anna had not been detained. The Agency reported that Anna and Parents were living with paternal relatives, and Parents had completed a substance abuse treatment intake process but not reported for treatment. Father, who claimed in December 2015 to be three-months sober, tested negative on December 20, 2015, submitted an unusable sample on January 6, 2016, and did not report for testing on three other dates in January 2016.[3] Parents both later admitted using methamphetamine since Anna’s birth and promised to thereafter abstain from drugs, report to outpatient treatment, and seek residential treatment. Father was concerned about Mother’s parenting ability based on her estrangement from her seven-year-old son, and Mother claimed Father was unable to care for Anna on his own. At the January 27, 2016 initial hearing, the court declared Father to be Anna’s presumed father and appointed counsel for the parties pending further hearing and Agency investigation.

On January 28, 2016, Mother called the social worker crying and said she was going to leave with Anna because Father and the paternal relatives were hostile or abusive toward her. She barricaded herself in her room and refused to let the paternal relatives help with the baby. According to Father, she had also threatened to harm the baby while arguing with him. After talking with the social worker, Mother agreed to stay with the paternal relatives and seek mental health treatment. On January 29, however, Mother failed to attend a previously scheduled substance abuse treatment appointment, and Anna was taken into protective custody. On February 1, both Parents tested positive for methamphetamines and marijuana, and the Agency filed a supplemental petition seeking Anna’s removal and alleging Father had allowed Mother to care for Anna despite Mother’s failure to obtain substance abuse or mental health treatment.

Anna was detained by the court on February 2, 2016, and the Agency filed an amended petition the following day that combined the allegations of the original and supplemental petitions. In a jurisdiction and disposition report, the Agency recommended removal and reunification services. The Agency reported that Father had enrolled in residential substance abuse treatment, but was discharged February 10. At the March 23 contested jurisdiction and disposition hearing, the court sustained the amended petition, declared Anna a dependent of the court, continued her foster care placement, and ordered the Agency to provide reunification services.

In an August 2016 status review report, the Agency recommended termination of services. Parents were living separately. Father had not taken a required parenting class. From the time of the February 1 positive drug test through April 2016, Father tested negative three times, and did not appear for testing nine times. On April 26, he was terminated from an outpatient treatment program for excessive absences. He reported briefly enrolling in residential treatment in late April, but he had then left. He entered another residential program in July and left on August 5. Father did not respond to agency contacts about supervised visitation with Anna until at least May. On July 23, he had his first visit with Anna since February. They had a second visit on July 30. Anna sought reassurance from her foster parents during each visit. She also showed agitation after visits with Mother and paternal relatives: she “cries vigorously and has large intense body movements for an extended period of time, . . . [then] shuts down and does not wish to connect emotionally for long period of time.” However, Anna was adjusting well to her foster placement, and her foster parents were interested in adopting her.

The September 7, 2016 status review hearing was continued to November. In a November addendum report, the Agency again recommended termination of services for both Parents. Father had not attended scheduled visits with Anna in August, and he had not maintained contact with the Agency to arrange further visitation. He entered an inpatient treatment program on September 12 but left on September 28.

On November 4, 2016, the court terminated services and set a section 366.26 hearing for March 2, 2017.

In February 2017, Father filed a section 388 petition requesting six more months of reunification services. As changed circumstances, he reported that he was participating in outpatient treatment and claimed: “I will be clean and sober for one year on February 3, 2017.” He wrote: “I understand that I have previously participated unsuccessfully in programs, but I have finally found one that works for me.” He reported “gradually” separating from fellow drug users and strengthening his family relationships. He was living with his mother and sister, and had been working part time for a contractor for about five months. He had two visits with Anna in January 2017, and she seemed at ease with him. Father submitted documentation of meeting attendance and negative drug tests in December 2016 and January 2017, including a positive progress report. He also submitted letters of support from his family, which described substantial changes in his behavior.

In a section 366.26 report filed February 21, 2017, the Agency recommended termination of parental rights. Father had contacted the Agency on January 3, 2017, to request visits with Anna and confirmed two visits took place in January. Father was appropriate during the visits. However, Anna continued to have difficulty regulating her emotions after visits with “the biological family”: “immediately after the visits [Anna] cries, is aggressive, throws food or won’t eat, bangs her head and refuses to sleep.” Anna had lived with the prospective adoptive parents since she was six weeks old, and they were willing to allow contact with biological relatives after adoption if it was in Anna’s best interest.

At a March 2, 2017 hearing, the court found Father had not made a prima facie case for relief under section 388 and denied a hearing on his petition. “[A]lthough it appears that [Father] is currently in treatment . . . [he] started in that program in December. . . . [¶] . . . t took [him] a bit of time after the Court terminated reunification services to get into treatment. [¶] . . . [¶] In this case, we have a child that is currently one year old. . . . [I]t is somewhat late in the game to now ask the Court to either place the child with [Father] or to extend reunification services.” The court noted that Father had received at least eight months of services, which it characterized as “extended.” The court terminated parental rights. Father appeals.

“Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability. A hearing pursuant to section 366.26 to select and implement a permanent plan for the children is to be heard within 120 days from the time it was set. (§§ 361.5, subd. (f), 366.21, subds. (e) & (g), 366.22, subd. (a).) The court need not continue to consider the issue of reunification at the section 366.26 hearing. The burden thereafter is on the parent to prove changed circumstances pursuant to section 388 to revive the reunification issue. Section 388 provides the ‘escape mechanism’ . . . built into the process to allow the court to consider new information.” ([i]In re Marilyn H. (1993) 5 Cal.4th 295, 309.)

Under section 388, a parent “may, upon grounds of change of circumstance or new evidence, petition the court . . . to change, modify, or set aside any order of court previously made . . . .” (§ 388, subd. (a)(1).) “If it appears that the best interests of the child . . . may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . .” (§ 388, subd. (d).) “The court may deny the petition ex parte [without a hearing] if: [¶] . . . the petition . . . fails to state a change of circumstance or new evidence that may require a change of order . . . or fails to show that the requested modification would promote the best interest of the child . . . .” (Cal. Rules of Court, rule 5.570(d)(1) [“Denial of hearing”].)[5] “A petition for modification must be liberally construed in favor of its sufficiency.” (Rule 5.570(a).)

The section 388 moving party bears the burden of proving a change of circumstances and that the requested change in the court’s order would be in the child’s best interests. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526 & fn. 5, 529 (Kimberly F.); rule 5.570(a).) A number of factors should be examined: “(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” (Kimberly F., at p. 532.) “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.” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The juvenile court’s ruling on the petition is reviewed for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

Here, the Kimberly F. factors clearly demonstrate that the trial court did not abuse its discretion in denying a hearing on the section 388 petition. Anna came to the Agency’s attention at birth, having tested positive for methamphetamines and marijuana. Despite informal services and family support in the paternal relatives’ home, Parents were not able to safely care for Anna or ameliorate the substance abuse problems during her first six weeks of life and Anna was removed. During the nine months following Anna’s removal from his care, Father entered and left five substance abuse treatment programs and failed to submit to regular drug testing. It was a month after reunification services had been terminated before Father found an outpatient substance abuse treatment program that would “work for him” and began regular drug testing. The trial court thus had ample reason to be skeptical of the petition’s claims that Father had been clean and sober for 12 months as of February 1, 2017, and particularly given Father’s failure to report for testing on nine occasions between February and April 2016. Meanwhile, Anna had been in the care of her prospective adoptive parents since she was about six weeks old and had bonded with them. From March through the remainder of 2016, Father visited Anna only twice in July and consequently failed to form a parental bond of his own. Anna demonstrated an urgent need for permanency, having displayed considerable distress following visits with her biological relatives. The presumptive six-month limit on services had already been exceeded, and at the time of the section 366.26 hearing, Anna had been out of Father’s care for over a year.

In sum, taking the section 388 petition at face value, the trial court did not abuse its discretion in ruling that Father failed to make a prima facie case of materially changed circumstances, as distinct from changing circumstances; that Father failed to demonstrate it would be in the best interest of Anna—a one-year-old child well-established in a prospective adoptive home—to delay her permanency in the hope that his most recent attempts at gaining sobriety would be successful despite repeated failure while receiving reunification services; and that the prospect of Father’s forming a new parental bond with Anna did not justify postponing stability for her. This is not to say that Father’s efforts at overcoming his substance abuse problems were or are futile or irrelevant to Anna’s healthy upbringing: the prospective adoptive parents stated an openness to contact with Anna’s biological family if such contact was in Anna’s best interests, so a real possibility exists that if Father successfully recovers he can play an important role in Anna’s healthy development. Based on the circumstances presented to the court in Father’s February 2017 petition, however, the court did not abuse its discretion in denying hearing on that petition and terminating parental rights.

III. Disposition

The orders denying a hearing on Father’s section 388 petition and terminating parental rights are affirmed.

_________________________

BRUINIERS, J.

WE CONCUR:

_________________________

SIMONS, Acting P. J.

_________________________

NEEDHAM, J.

A150734