Filed 1/25/18 In re S.O. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re S.O., a Person Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,

Plaintiff and Respondent,

v.

S.O.,

Defendant and Appellant.


E068806

(Super.Ct.No. RIJ1501352)

O P I N I O N


APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson, Judge. Affirmed.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
In this dependency case, the juvenile court took jurisdiction over the minor, S.O., based on substance abuse and domestic violence by defendant and appellant, Sh.O. (father). Father appeals from the court’s orders terminating his parental rights and denying his petition to reinstate his reunification services. He based his petition on evidence that he had completed a 90-day drug treatment program and had been clean for several months. He contends the court erred in finding no “change of circumstance” (Welf. & Inst. Code, § 388, subd. (a)) and concluding that renewed reunification services were not in S.O.’s best interests. We affirm.
II. FACTS AND PROCEDURE
Plaintiff and respondent, Riverside County Department of Public Social Services (DPSS), received a referral in October 2015 alleging S.O. had tested positive for methamphetamine at birth. C.V. (mother) admitted to using methamphetamine the day before S.O.’s birth. Mother, father, and S.O.’s four half siblings lived with maternal grandmother. (Mother and S.O.’s half siblings are not parties to or subjects of this appeal.) Father and mother had been together for less than one year. He had told mother about past domestic violence incidents with his ex-wife. Mother said he had also physically abused her by pinching her stomach when she was pregnant. Father admitted to smoking methamphetamine the day before he spoke to the social worker. He had recently been arrested for possession of methamphetamine. DPSS referred both parents to the family preservation court drug treatment program. Father also received referrals to two inpatient drug treatment programs and a domestic violence program.
In December 2015, the juvenile court found a prima facie case for detaining S.O. from the parents. It also granted father supervised visits twice per week for two hours.
When next interviewed by DPSS, father admitted to abusing methamphetamine. He used it three times a day on a daily basis. At 29 years old, he had been using methamphetamine since he was 17. His longest period of sobriety was five years. He had completed a three-month inpatient treatment program in 2012 and relapsed shortly after that, when he was in a sober living program. Father denied any domestic violence with mother, but admitted to pleading guilty to inflicting corporal injury on a spouse or cohabitant (Pen. Code, § 273.5) in 2009, an offense for which he served prison time. He did not believe he needed to take domestic violence classes because he had completed a 52-week program in the past.
Father wanted S.O. to return home but agreed to her placement with maternal great-aunt during the reunification period. DPSS placed S.O. and her half siblings with maternal great-aunt in January 2016.
Father missed a total of 13 scheduled visits with S.O. He tested positive for methamphetamine at three other visits. He attended and drug tested negative for another visit but admitted to using methamphetamine three days before. He declined to test at yet another visit and admitted to using methamphetamine earlier that day.
Father had enrolled in the family preservation court program but had not been participating. He had missed several group sessions and drug testing dates. When he did appear, his drug test results were positive. In January 2016, after he failed to appear for his family preservation court date, the court terminated him from the program for “excessive non-compliance.” He was admitted to an outpatient treatment program in early February 2016. By the end of the month, the program had discharged him for lack of participation. Still, father said he wanted to stop using and believed he needed another inpatient treatment program.
At the jurisdictional/dispositional hearing in March 2016, the court found true the allegations of the second amended petition that father (1) abused methamphetamine, (2) had a history of domestic violence against mother and a previous partner, and (3) had a criminal history. (§ 300, subd. (b).) The court ordered reunification services, including an immediate referral to an inpatient treatment program and counseling for domestic violence.
In the six-month review report, mother disclosed that father had choked her, hit her on the head with a brick, and thrown a bicycle at her. He had also torn a door off the hinges. Maternal grandmother reported that she found a knife in the driveway of their home after a neighbor observed mother and father fighting. Also, a receptionist at the DPSS office observed the parents arguing, and father threw an unopened canned drink and his cellular phone at mother. Father claimed that mother was the violent one in their interactions.
During the six-month review period, father had not enrolled in domestic violence counseling or followed up with his referral to the inpatient treatment program. He either tested positive for methamphetamine or did not appear for his drug tests during the period. Father had only one visit with S.O. during the review period, which went well. Maternal grandmother no longer allowed father to live with her and he was thus homeless, but he continued to have contact with mother.
At the six-month review hearing in November 2016, the court terminated the parents’ reunification services and set the matter for a selection and implementation hearing under section 366.26. Maternal great-aunt loved S.O. and her half siblings and wanted to adopt them. S.O. was thriving in maternal great-aunt’s home and appeared to be well bonded with her and other family members in the home.
Between the six-month review hearing and the section 366.26 hearing, father did not maintain contact with DPSS, and he did not appear at the section 366.26 hearing in March 2017. The court found the children adoptable and terminated parental rights.
In April 2017, father filed a section 388 petition asking the court to vacate the March 2017 orders finding S.O. adoptable and terminating his parental rights. He also asked the court to set a new section 366.26 hearing. He argued that he was in custody when the first section 366.26 hearing occurred, he had a right to be present for the hearing, and he did not waive his presence. DPSS opposed father’s petition on the ground that father received notice of the hearing prior to his incarceration, father’s counsel was present at the hearing and did not request a continuance, and the period to appeal from the orders at the hearing had expired. The court ordered a hearing on father’s section 388 petition. At the May 2017 hearing, father indicated that he had tried to contact the social worker to ask for transportation while he was incarcerated. The court felt there was a “fundamental due process issue” and granted father’s petition. It reversed the March 2017 order terminating his parental rights and scheduled a new section 366.26 hearing.
In June 2017, father reported that he had entered a 90-day inpatient treatment program in May 2017, and he had been clean since his incarceration four months ago. He continued to want to be part of S.O.’s life. The prospective adoptive parent (maternal great-aunt) was inclined to allow father to visit S.O., so long as he was clean and sober. Father had one visit with S.O. that went “great overall.” S.O. was initially hesitant to approach father but eventually warmed to him. S.O., who was one year old by this time, continued to thrive in maternal great-aunt’s home.
Father filed another section 388 petition in July 2017, based on his recent period of sobriety. Father would complete his inpatient treatment program in August 2017 and planned to reside in a sober living home after that. He was also attending weekly parenting classes off-grounds. He asked the court to vacate the section 366.26 hearing and grant him another six months of reunification services. The court scheduled a hearing on father’s petition for the same date as the section 366.26 hearing.
At the hearing in July 2017, the court denied the section 388 petition. It explained: “And so I do see that father has made great effort. I do agree, though, with minor’s counsel that father’s circumstances are changing and not yet changed. And that it would not be in [S.O.]’s best interest to grant the additional time. [¶] . . . She’s been with the Court since the end of 2015. And has not—reunification hasn’t been possible up to this point in time.”
After the court’s ruling on the petition, the parties moved to the section 366.26 hearing, and father testified. He had completed his inpatient treatment program the day before and was in a sober living home. He had recently visited S.O. again. He held S.O. and played with her and gave her clothes and toys. She did not cry or appear to be scared of him, and she gave him a kiss. He wanted the court to order a legal guardianship as opposed to terminating his parental rights, and he wanted to stay in S.O.’s life. The court terminated father’s parental rights after hearing the evidence and argument. It ruled: “And so I do recognize that father’s been working hard since his release from custody. That’s evident to the Court. You look clean. You look very good. So I’m glad that Gibson House was a good program for you and it seems to have been taken up very well by you. That you did exercise all of the advantages of the program and work hard on sobriety. So I want to commend you for that. [¶] The Court’s job at a [section 366].26 hearing is to determine, though, the best plan for [S.O.] So unlike earlier hearings where I look towards the parent and what services can be provided for them, at the [section 366].26 [hearing] I have to look towards—towards the child and what the best permanent plan is for each child that comes before the Court on a hearing of this nature. [¶] So I do see how hard father’s worked. The statutory preference for someone [S.O.]’s age is adoption. And I am finding that that is her best permanent plan at this time.” The court authorized maternal great-aunt to permit continued visitation between father and S.O., saying: “They seem to have a bond, or at least are forming one. So that’s always a good thing for a child, I think, to have as much support as they can.”
III. DISCUSSION
Father argues the court erred in denying his section 388 petition to reinstate reunification services. We disagree, but before addressing the merits of his argument, we begin with DPSS’s assertion that the juvenile court had no jurisdiction to hear his petition in the first place.
DPSS contends the court erred in granting father’s first section 388 petition, when the court reversed its own order terminating father’s parental rights because he had not waived his presence at the section 366.26 hearing. DPSS asserts the court had no power to change the order terminating parental rights and set a new section 366.26 hearing. It argues, therefore, that all subsequent actions of the juvenile court were void, including the orders now under appeal, and that we should reinstate the court’s first order terminating father’s parental rights. It is true that an order terminating parental rights under section 366.26 is “conclusive and binding” on the parents and child, and, “[a]fter making the order, the juvenile court shall have no power to set aside, change, or modify it.” (§ 366.26, subd. (i).) The parties must file an appeal to challenge the order, not a section 388 petition to change it. (In re Ronald V. (1993) 13 Cal.App.4th 1803, 1806.) When a parent files a section 388 petition to change the order terminating parental rights, the juvenile court has no jurisdiction to hear it. (In re Ronald V., supra, at p. 1806.)
But we part ways with DPSS for one fundamental reason—its argument is untimely. DPSS challenges the court’s order granting father’s first section 388 petition and reversing the first termination of parental rights. DPSS did not, however, appeal that order or file a writ petition disputing the order, and the order has long since become final. We will not refuse to consider the merits of father’s appeal based on what is, in effect, an untimely appeal by DPSS.
Turning to father’s argument, section 388 permits the court to modify an order if the parent shows, by a preponderance of the evidence, (1) a “change of circumstance or new evidence,” and (2) the modification would promote the child’s best interests. (§ 388, subd. (a)(1), (d); In re Amber M. (2002) 103 Cal.App.4th 681, 685.) When a parent files a petition on the eve of the section 366.26 hearing, in determining the best interests of the child, the court must recognize that the focus of the case has shifted from the parents’ interest in the care, custody, and companionship of the child to the needs of the child for permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The child’s best interests “are not to further delay permanency and stability in favor of rewarding” the parent for his or her “hard work and efforts to reunify.” (In re J.C. (2014) 226 Cal.App.4th 503, 527.) “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.)
We review the court’s order denying the section 388 petition for abuse of discretion. (In re Amber M., supra, 103 Cal.App.4th at p. 685.) “‘“The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”’” (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
In this case, the court did not abuse its discretion. The court properly characterized father’s circumstances as changing but not yet changed for purposes of section 388. At least one court has expressed doubt that a parent “could ever show a sufficient change of circumstances” when the parent “loses custody of a child because of the consumption of illegal drugs” and the parent does not comply with the case plan during the reunification period. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9.) This is especially true here. Father, now in his 30’s, has been using methamphetamine since he was 17. Although he had once been clean for five years, he had also relapsed before, including after completion of an inpatient program, when he was in a sober living home—just like his circumstances now. He also failed to take advantage of numerous referrals to treatment programs for the first year and a half of this case. In light of these facts, his five-month period of sobriety at the time of the section 388 hearing was laudable, but it did not require the court to conclude there were changed circumstances justifying his requested modification. (See In re Kimberly F., supra, at p. 531, fn. 9 [“It is the nature of addiction that one must be ‘clean’ for a much longer period than 120 days to show real reform.”].) Moreover, he did not show any change with respect to the other significant component of his case plan—counseling for domestic violence. There was no evidence he had tried to seek treatment for this.
Even assuming father had shown changed circumstances, the court correctly concluded a renewal of his reunification services was not in S.O.’s best interests. At approximately one and a half years old, S.O. had spent the vast majority of her life in maternal great-aunt’s home with her half siblings. Her prospective adoptive parent was the only true parent she had ever known. By contrast, she hardly knew father. He missed almost all of his visits with S.O. during the reunification period because he either failed to appear or had been using methamphetamine. He had only two visits with S.O. after the court terminated his reunification services. While father may have been starting to form a bond with S.O., there can be no doubt the bond with maternal great-aunt was much stronger. S.O.’s best interests were not promoted by further delaying permanency and stability to reward father for his belated efforts at reunification. His interests were no longer paramount at this stage of the proceedings. (In re Stephanie M., supra, 7 Cal.4th at p. 317.)
Father relies on the court’s various comments congratulating him for his progress in treatment and its comment that he and S.O. seemed to be forming a bond, which the court called a “good thing.” He suggests these comments show, contrary to the court’s ruling, that he had changed and that renewed reunification services promoted S.O.’s best interests. But the court’s positive comments did not require it to grant father’s petition. It was entirely appropriate to commend father for his progress yet still find his changing circumstances were insufficient to disrupt S.O.’s permanency and stability. We decline to adopt a holding that would discourage courts from praising parents who have had some success in their efforts to reform themselves, particularly in a case like this, where it is important that father remain clean if he wishes to have contact after adoption.
IV. DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.


We concur:

MILLER
Acting P. J.

SLOUGH
J.