In re Baby Girl A.
Filed 7/10/13
In re Baby Girl A. CA4/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
CALIFORNIA
In re BABY GIRL A., a Person
Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF
PUBLIC SOCIAL SERVICES,
Plaintiff and Respondent,
v.
E.G. et al.,
Defendants and Appellants.
E057596
(Super.Ct.No. JUVIJ8057)
OPINION
APPEAL from the Superior Court of
County. Lawrence P. Best, Temporary
Judge. (Pursuant to Cal. Const., art.
VI, § 21.) Affirmed.
Roni Keller, under appointment by
the Court of Appeal, for Defendant and Appellant E.G.
Diana W. Prince, under appointment
by the Court of Appeal, for Defendant and Appellant M.A.
Pamela J. Walls, County Counsel, and
Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
E.G. (Father) and M.A. (Mother)
appeal after the termination of their parental
rights to Baby Girl A. (the baby) at a Welfare and Institutions Code
section 366.26 hearing.
name="_ftnref1" title="">[1] Father, joined by Mother, claims that the
juvenile court erred by denying his section 388 petition.
I
PROCEDURAL AND FACTUAL BACKGROUND
A.
Mother gave birth to the baby in
January 2012. Both Mother and the baby
tested positive for methamphetamine and opiates. The baby had to be placed in the neonatal
intensive care unit. Mother told a nurse
that she used heroin during her pregnancy.
She also did not seek prenatal care.
A social worker attempted to interview Mother, but she refused to talk
to anyone. Mother told the social
worker, “[D]o what you got to do and just take her.†Mother named Father as the biological father
and said he was incarcerated. Mother had
no home and no provisions for the baby.
The Department took the baby into protective
custody.
The following day, Mother still
refused to speak with the social worker.
She told the social worker she did not plan on being at the detention
hearing or to participate in services.
The baby was exhibiting withdrawal symptoms. A maternal aunt who had visited the baby
indicated that she might have friends who would be interested in adopting
her.
In 1999, Mother lost her parental
rights to a daughter. In 2003, her
parental rights to two other children were terminated. She was currently involved in a dependency
proceeding for another child, A.A., who had tested positive for opiates and
methamphetamine at birth. That case was
set for a review hearing. Mother had
failed in these prior cases to participate and/or complete her services.
Mother had felony convictions of
receiving stolen property, fraud, vehicle theft, and petty theft with a prior
conviction.
The Department filed a section 300
petition against Mother and Father on behalf of the baby. It alleged under section 300, subdivision (b)
that Mother used controlled substances during her pregnancy, had a history of
substance abuse, had an extensive history with the Department, and had an extensive
criminal history. It alleged under
section 300, subdivision (b) that Father had criminal history and was
incarcerated. Under section 300,
subdivision (g), the Department alleged that Mother was unable to provide care
and support for the baby, and since Father was incarcerated, he was unable to
provide care and support.
A hearing was held on January 10,
2012. Father was present in custody, and
paternity testing was ordered. The
juvenile court found a prima facie case and ordered the baby detained. An amended petition was filed on January 30,
2012, deleting a portion of the allegation regarding criminal history as to
Mother only.
B.
Hearing
In a jurisdictional/dispositional
report filed on February 2, 2012, the Department recommended that the juvenile
court deny reunification services to Mother due to her previously having
reunification services and her parental rights terminated. It was also recommended that no reunification
services be granted to Father because he was incarcerated and would be for at
least 24 months, which was beyond the statutory reunification period. It was also recommended that a section 366.26
hearing be set within 120 days. It was
recommended that the baby remain outside the home and that she be found
adoptable.
Attempts to contact Mother during
the reporting period were unsuccessful.
Mother had told the maternal aunt she did not want anything to do with
the baby. The maternal aunt reported
Mother was living on the street.
Father reported he and Mother had a
four-month relationship prior to his incarceration. Father’s criminal history (from 1997 through
2011) included two convictions of burglary, 10 convictions of possession of a
controlled substance, and one conviction of receiving stolen property. Father was currently incarcerated for the
stolen property conviction and was due to be released in December 2013.
Father was interviewed by the
Department on January 24, 2012. He
believed that Mother’s drug use was her fault and that he could do nothing to
remedy the problem due his incarceration.
Father could not do anything at that time to help house the baby because
of his incarceration. Father admitted
using methamphetamine with Mother even after he became aware she was
pregnant.
Father had four other children from
previous relationships. He married his
current wife, M.G., in 2002. Father
recognized that once he was released from custody, he would need
while he was incarcerated.
On January 17, 2012, Mother was arrested for possession of a
controlled substance and hypodermic needles.
The baby, meanwhile, was developing normally.
An addendum report was filed on
March 8, 2012. It was recommended that
the matter be continued until the results of the paternity testing were
obtained. The baby was in a foster home. The matter was continued.
Another addendum report was filed on
March 28, 2012. On March 14, 2012, was
placed in a new home. On January 25,
2012, M.G. advised a social worker that she would be interested taking custody
of the baby while Father was incarcerated.
Her daughter and son-in-law lived with her, along with their three
children. On January 31, 2012, M.G.’s
daughter informed a social worker that she and her husband had been involved in
a domestic violence incident in 2009.
The Department did not receive all of the information to begin an
assessment of M.G.’s home until March 28, 2012.
At a hearing on the petition
conducted on April 3, 2012, Father was declared the biological father of the
baby. He objected to the recommendation
that he be denied reunification services because he was set to be released from
custody in two months. He sought a
continuance. The Department objected to
the continuance because the date set for his release was listed after the
six-month period for reunification services would expire. Father was granted weekly visitation with the
baby. The matter was continued. Mother was represented by counsel but was not
present and had had no contact with her counsel.
An addendum report was filed on June
13, 2012. The recommendation remained
the same. The baby had remained in the
same home since March.
Mother was incarcerated and set to
be released in June 2013. She wanted to
participate in reunification services once she was released. Mother had reported she started using methamphetamine
and heroin in 1994. She had been
expelled from a prior treatment program.
She had previously been diagnosed with depression and had tried to
commit suicide. She was taking
medication for depression.
Mother used heroin during her
pregnancy with the baby, but when she attempted to stop, the baby would move
“excessively,†so she kept taking drugs.
She used heroin because she was afraid she would have a miscarriage if
she did not use it. When Mother was not
in custody, she was living on the streets.
In lieu of regaining custody, Mother wanted the baby placed with
extended family. She insisted that all
of the claims in the petition were due to her drug abuse, and she did not know
how to fight to get her children back.
The Department stated that Father
also used drugs. Further, he would be
incarcerated until June 2013. It
recommended services be denied to him because of his incarceration past the
reunification period.
The contested
jurisdictional/dispositional hearing was conducted on June 18, 2012. Mother and Father were present in
custody. As will be discussed in further
detail, post, Father argued that he
and his wife should be granted custody, and the dependency should be
dismissed. Mother requested
reunification services as she claimed she would be released from custody in
October or December 2012.
By a preponderance of the evidence, the juvenile court found all of
the section 300, subdivision (b) allegations in the amended petition true. The allegations under subdivision (g) were
dismissed. The juvenile court denied
reunification services to Mother under section 361.5, subdivisions (b)(10) and
(b)(11). Father was denied reunification
services pursuant to section 361.5, subdivision (e)(1).
reunification services would not be in the baby’s best interest. A section 366.26 hearing was scheduled for
October 12, 2012. Mother and Father were
advised of their right to file a writ petition pursuant to California Rules of
Court, rule 8.452.
title="">[3]
C. Section
366.26 Report
The recommended permanent plan was adoption by the baby’s current
caregivers, who had had custody of the baby since March 14, 2012. It was recommended that parental rights be
terminated and that visitation be discontinued.
The baby was developing normally at the time of the report, although she
had been having trouble gaining weight initially due to drug withdrawal.
There was no contact between Father and the baby during the reporting
period. Father had no contact with the
Department. The current caregivers were
willing to adopt the baby. She was
thriving in their care. The caregivers
were friends with the maternal aunt, and the baby had some contact with
extended family members. Mother had no
contact with the Department. The
Department did not think it was in the best interests of the baby to be placed
with Father and his wife.
D.
On September 24, 2012, Father filed
a section 388 petition. He contended
that “[t]he only basis for denial of services was due to the fact that it was
believed [F]ather would be incarcerated until December 2013 which would be
beyond the time allotted for reunification services. Father has informed counsel that his release
date has changed and he has informed counsel that he will be released from
custody on September 30, 2012.†Father
requested reunification services.
The Department filed a response to
the section 388 petition. They requested
that the section 388 petition be denied because it was not in the baby’s best
interest to grant reunification services to Father. A social worker stated that the Southwest
Detention Center, where Father was incarcerated, had informed the social worker
that Father was not expected to be released until June 7, 2013. The baby was thriving with the prospective
adoptive family, the only parents she had known.
E.
The hearing on the section 388
petition and the contested section 366.26 hearing were conducted together on
November 14, 2012. The section 388
petition was denied because it was not in the baby’s best interest to return to
Father’s care, and there was no change in circumstances. The juvenile court terminated the parental
rights of both parents, and the baby was freed for adoption. The details of the hearings will be addressed
in more detail, post.
II
SECTION 388 PETITION
Father, joined by Mother, complains
the juvenile court erred by denying his section 388 petition.
A.
M.G. testified at the jurisdictional/dispositional hearing that she
wanted to take custody of the baby. She
had been married to Father for 11 years.
She worked as a housekeeper and lived in an apartment with her
mother. She no longer lived with her
daughter and son-in-law. M.G. stated
that she could provide financially for the baby and had purchased provisions for
her care.
In arguing that Father should be granted custody, Father’s counsel
argued that his criminal history had no bearing on Father’s current status and
had no impact on the well‑being of the baby. Further, Father’s incarceration did not
automatically mean that he lost his child.
His wife could care for the baby while he was finishing his jail
sentence. Father’s counsel asked that
the allegations against Father be dismissed because he was a nonoffending,
noncustodial parent.
Mother agreed that Father and his wife could take custody of the
baby. Mother also stated there were
additional relatives who might be available to take custody of the baby. She argued the Department did not exercise
due diligence in finding suitable relatives.
The Department countered that Father was a career criminal who had
been in custody some portion of every year for the prior 10 years. There were numerous incidents involving him
being under the influence, or in possession, of controlled substances. Father was a danger to the baby. His wife could be evaluated as a nonrelative,
but it was not appropriate to place the baby with Father. Mother had failed on prior reunification
services.
The juvenile court found that Father was not a nonoffending parent,
referring to the allegation under section 300, subdivision (b). Father’s counsel then asked for reunification
services with placement with M.G. There
was a chance that Father could get out of custody prior to end of the
reunification period. The Department
argued that Father was not scheduled to be released from custody until 2013,
and services should be denied. The
juvenile court struck the allegations pursuant to section 300, subdivision (g)
but found all of the subdivision (b) allegations true, including that Father
had a criminal history and was incarcerated.
On November 14, 2012, the section 388 petition was heard, and the
section 366.26 hearing was called.
Father and Mother were both present, in custody. The Department requested that the section 388
petition be denied because Father was still in custody and would remain in
custody beyond even a six-month extension of reunification services. Father’s counsel acknowledged that Father was
still in custody even though Father believed he was being released early. Father’s counsel represented that Father
expected that he would be getting out of custody in December 2012 or January
2013. This was a change of circumstance
that warranted reunification services.
Father was trying to change his circumstances; he was in the process
of “obtaining his GED†while in custody.
His wife was willing to take care of the baby. Mother agreed that the section 388 petition
should be granted.
The juvenile court ruled, “I’m not convinced there has been a change
of circumstances shown. In any event I
don’t believe it’s in the child’s best interest. The child is doing very well in the
prospective adoptive parents’ home; in fact, that’s the home the child has
known. So father’s motion is denied.â€
As for the section 366.26 hearing, Mother stated she would be released
in March 2013 and hoped to reunify with the baby. Father objected to the termination of
parental rights, as he claimed there was a deficient adoption assessment. He also argued that he had maintained contact
with the baby and that the baby had siblings.
The juvenile court found that it was in the baby’s best interest to be
adopted and that she was likely to be adopted.
The parental rights of the parents were terminated.
B. Analysis
“Section 388 allows a person having
an interest in a dependent child of the court to petition the court for a
hearing to change, modify, or set aside any previous order on the grounds of
change of circumstance or new evidence.â€
(In re Anthony W. (2001) 87
Cal.App.4th 246, 250. “‘[S]pecific
allegations describing the evidence constituting the proffered changed
circumstances or new evidence’ is required.
[Citation.]†(
It “shall set forth in concise language any change of circumstance or
new evidence that are alleged to require the change of order or termination of
jurisdiction.†(§ 388, subd.
(a).) “‘There are two parts to the prima
facie showing: The parent must
demonstrate (1) a genuine change of circumstances or new evidence, and that (2)
revoking the previous order would be in the best interests of the
children. [Citation.]’†(In re
C.J.W. (2007) 157 Cal.App.4th 1075, 1079, 1081 [Fourth Dist., Div. Two]
[summary denial of § 388 petition was proper where there was no showing of
how the children’s best interests would be served by depriving them of a
permanent stable home in exchange for an uncertain future].)
“We review the juvenile court’s
summary denial of a section 388 petition for abuse of discretion.†(In re
Anthony W., supra, 87 Cal.App.4th at p. 250.) A section 388 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
Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Here, in the written section 388 petition, Father averred he was going
to be released from custody in September 2012.
At the section 388 hearing, held on November 14, 2012, he was still in
custody. At the hearing, counsel for
Father stated that the change in circumstances was that Father would be
released from custody in December 2012 or January 2013. However, the Department presented evidence
that he would not be released until June 7, 2013. There simply was no reliable evidence that
Father’s release from custody was imminent or changed circumstances as to his
custody status.
Moreover, the juvenile court found, in addition to the fact there was
no showing of changed circumstances, that it was not in the baby’s best
interest to be returned to Father’s custody.
As stated, the juvenile court sustained the section 300, subdivision (b)
allegation against Father due to his criminal history. It was clear that Father had a substance
abuse problem and that it presented a danger to the baby. As Father admitted, even though he knew that
Mother was pregnant, they used heroin together.
Father never addressed his substance abuse which had been the reason for
a majority of his criminal history. Even
if Father was going to be released from custody, he failed to show that he
should be granted custody of the baby due to the danger he presented to her if
he abused drugs. Finally, the baby was
bonded to the adoptive family, who were the only parents that she really had
ever known.
Father appears to argue in his opening
brief that the baby should have been placed with his wife while he was
incarcerated. As set forth extensively,
jurisdictional/dispositional hearing. At
that time, the trial court rejected the claim, finding that under section 300,
subdivision (b) that Father’s criminal history presented a danger to the safety
and well-being of the baby. As such,
M.G. could not take custody of the baby
Father did not file a petition for extraordinary writ under California
Rules of Court, rule 8.452 complaining about the denial of his reunification
services or the refusal to grant custody to M.G. As such, he cannot complain in this appeal
that M.G. should have been given custody or that he was erroneously denied
reunification services. The juvenile
court’s findings and orders issued at the setting hearing must be challenged by
writ petition (Cal. Rules of Court, rules 8.450 and 8.452) or they are
forfeited. Since Father did not
challenge the juvenile court’s order denying reunification services or the
refusal to give custody to M.G., he failed to preserve the issue. Moreover, there were no changed circumstances
since the jurisdictional/dispositional hearing.
There was no indication or evidence that Father would not live with M.G.
or that he had addressed his substance abuse.
Based on the foregoing, Father could not show changed circumstances
because there was no evidence he would be released from prison earlier than
June 2013, which greatly exceeded the reunification period. The jail where he was detained had confirmed
that he was set to be released in June 2013.
In addition, it was still not in the baby’s best interest to be placed
with Father due to his extensive criminal history, which included numerous
convictions of possession of controlled substances. Father presented no evidence that he was
addressing his substance abuse. Based on
the foregoing, the juvenile court did not abuse its discretion by denying his
section 388 petition.
III
DISPOSITION
The orders of the juvenile court are
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
RICHLI
J.
We concur:
HOLLENHORST
Acting
P. J.
McKINSTER
J.
further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
361.5 provides that a juvenile court can deny reunification services under
certain circumstances. Under subdivision
(b)(10), a juvenile court can deny services if the parent previously failed to
reunify with a sibling. Subdivision
(b)(11) allows denial of reunification services if a parent has had a previous
termination of parental rights to a sibling.
Subdivision (e)(1) provides for denial of services if the parent is
incarcerated and services would be detrimental to the minor.
