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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re COURTNEY H. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY DEPARTMENT OF CHILDREN'S SERVICES,
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, ActingCountyCounsel, and Julie J. Surber, Deputy County Counsel, for Plaintiff and Respondent.
Ellen L. Bacon, under appointment by the Court of Appeal, for Minors.
Defendant and appellant V.H. (father) appeals from the juvenile court's decisions denying his petition for modification under Welfare and Institutions Code section 388,[1] and terminating his parental rights to his two children at a hearing held pursuant to section 366.26. As described below, we conclude that the juvenile court did not err when it denied the petition for modification based on the best interest of the children and found that the beneficial parental relationship exception to the termination of parental rights did not apply.
Summary of Facts and Procedure
On August 3, 2003, father was taken into custody and incarcerated on two warrants – one for embezzlement and the other for having a hypodermic needle in his car. Eleven-year-old Britney and eight-year-old Courtney (the children) were detained on that date and placed in foster care. The children's mother was a transient and her whereabouts were unknown at that time. The mother is not a party to this appeal.
Britney is a diabetic and requires insulin shots three times daily and close monitoring of her diet. The family was known to the San Bernardino County Department of Children's Services (DCS) because of referrals related to Britney's diabetes. The children had been removed from the custody of both parents in 1996, but were later returned to their father's custody.
At the October 24, 2003, jurisdiction/disposition hearing, father submitted on the section 300 dependency petition. The juvenile court found true the allegations that father has a substance abuse history, which affects his ability to adequately parent the children (§ 300, subd. (b)), that he was unable to provide for the care and support of the children because he was incarcerated (§ 300, subd. (g)), and that he failed to provide regular and necessary medical care for Britney and failed to keep her medical appointments (§ 300, subd. (j)). The juvenile court ordered father to participate in reunification services, and authorized twice weekly visits while father was incarcerated and supervised weekly visits upon his release.
Father was released from custody in January 2004. At the six-month review hearing held on April 26, 2004, DCS reported that, while father regularly spoke with the children by telephone, he had visited the children only once and missed six scheduled visits. Father was employed, but lacked transportation. Britney reacted to the cancelled visits by acting out, including refusing to follow her insulin and diet regime, running away, and stealing at school. Courtney spent an entire day in her room after father cancelled plans to take the girls to Chuck E. Cheese's for her birthday. The juvenile court continued the children in foster care, continued reunification services to father, and provided father with weekly, supervised visitation. The court also authorized DCS to liberalize father's visitation once he completed a diabetes training class.
On July 13, 2004, father was arrested and jailed for 10 days for being under the influence of a controlled substance.
In the report prepared for the 12-month status review hearing, DCS recommended that the court terminate reunification services and consider implementing a permanent plan of long-term foster care. The basis for this recommendation was father's continued inability to consistently follow through on his promises to visit the children; his lack of a job, transportation, and housing; and the failure to complete reunification services. Specifically, father attended the three required diabetic training classes to help care for Britney's medical needs, but slept through one class and read a magazine during a second class. Father also refused to drug test on two occasions and was dropped from a drug treatment program for failure to attend.
At the 12-month review hearing held on December 16, 2004, DCS agreed to provide father with additional reunification services, after having initially recommended that services be terminated. The court ordered father to enter counseling and to repeat the diabetic training class. The court also allowed father to have unsupervised visitation.
The 18-month status review hearing was held, contested, on March 1, 2005. The juvenile court terminated reunification services and ordered a permanent plan of long-term foster care for the children. Father was allowed supervised visitation two hours per week, provided he called 24 hours in advance to confirm the visit. On July 13, 2005, Courtney and Britney were moved to a new foster home. The new foster parents had babysat the children and asked to be considered for placement when the previous foster home was unable to keep both children. The juvenile court held a permanent plan review hearing on September 1, 2005, at which it continued the children's placement.
DCS filed a permanent plan review report, dated March 2, 2006, recommending the juvenile court set a section 366.26 hearing, at which it would consider terminating father's parental rights and establishing a permanent plan of adoption. At the hearing on that date, the court set a section 366.26 permanent plan hearing.
On March 6, 2006, father filed a long-promised form JV-180 (Request to Change Court Order), pursuant to section 388. In the petition, father asked the juvenile court to return the children to his care. Father stated that he had completed his case plan (including substance abuse treatment, diabetes training, and individual counseling), was employed, and had obtained suitable housing.
In the section 366.26 report dated June 30, 2006, DCS recommended the court terminate father's parental rights and adopt a permanent plan of adoption. The court continued the section 366.26 hearing to August 8, 2006, because father requested a contested hearing. The court also ordered father's visits to be supervised.
On August 8, 2006, the juvenile court first held a hearing on father's section 388 petition for modification. After testimony from father, the court denied the petition on the basis that, regardless of father's changed circumstances, returning the children to father's custody would not be in their best interest. The social worker then testified regarding the permanent plan. Father argued that the court should not terminate his parental rights and allow the children to be adopted because the children had a beneficial relationship with their father that outweighed the benefits of adoption. The juvenile court ordered father's parental rights terminated and selected adoption as the children's permanent plan. This appeal followed.
Discussion
1. Petition for Modification
Father first argues that the juvenile court erred when it denied his section 388 petition for modification because father had demonstrated changed circumstances and that it is in the children's best interest to be returned to his care.
Section 388, subdivision (a), provides, â€
Description
Defendant, father, appeals from the juvenile court's decisions denying his petition for modification under Welfare and Institutions Code section 388, and terminating his parental rights to his two children at a hearing held pursuant to section 366.26. As described below, court conclude that the juvenile court did not err when it denied the petition for modification based on the best interest of the children and found that the beneficial parental relationship exception to the termination of parental rights did not apply.
