In re Daisy S.

Filed 6/20/07 In re Daisy S. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from an order of the Superior Court of Los Angeles County, Stanley Genser, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, and Liana Serobian, Senior Associate County Counsel, for Plaintiff and Respondent.

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Luis, the father of minors Daisy, Gizelle and Precious, appeals from the order terminating his parental rights. Father contends the court erred when it denied his Welfare and Institutions Code section[1]388 petition requesting six months of reunification services and when it found the section 366.26, subdivision (c)(1)(A) exception to termination did not apply. We affirm.

FACTUAL AND PROCEDURAL SYNOPSIS

I. Detention

The three girls came to the attention of the Department of Children and Family Services (DCFS) in March 2006 after a police officer referred the case, alleging the children were being neglected by their parents.

The family had a prior history with DCFS including substantiated allegations of absence/incapacity, general neglect, and physical and emotional abuse. DCFS had previously provided family preservation services from March 2000 to April 2001. In March 2004, Daisy and Gizelle were detained and declared dependents by the juvenile court until October 2005, when the court terminated jurisdiction and returned the girls to their parents. During the latter DCFS case, the parents completed a drug-treatment program.

An investigation of the current referral revealed that neither father nor mother had worked for several months, and the family was going to be evicted for failure to pay rent. Father admitted he had relapsed with mother on crystal methamphetamine as soon as the prior DCFS case closed and the girls were returned to their care. Father said he had used the drug a few days ago and noted mother was likely using it while she was out hooking. Father stated because he and mother knew that they were going to test they did not use during the prior dependency case.

Father indicated mother always screamed and yelled at him and the children, calling him faggot, stupid, dumb, good for nothing and calling the girls bitches and other similar names. The social worker noticed pieces of glass from where mother threw and broke a glass during a recent argument. After the argument, mother told father he could keep the children. Father stated he was willing to give the children to someone to care for.

Fathers criminal history spanned from 1988 to 1996, and involved misdemeanor and felony convictions for petty theft, known receipt of stolen property and burglary.

Daisy reported she knew what drugs were, stating it looks like salt, white and crystal, and she had observed her parents and their friends use drugs in her and her sisters presence. Daisy and Gizelle indicated mother yelled and screamed at father, called them bad names they did not want to repeat, hit father and them, and pulled their hair. Father tried to defend them. The girls stated they did not have food and were unclean when with their parents. The social worker observed there was hardly any food in the refrigerator. The two older girls wanted to live with their maternal aunt Hilda, with whom they had lived before.

Daisy and Gizelle were placed with the maternal aunt and uncle, and Precious (an infant just over a year old) was placed with the maternal grandparents, who lived across the street from the parents.

On March 15, 2006, DCFS filed a section 300 petition, alleging mother physically abused Daisy and Gizelle and father failed to protect them, the parents exposed the children to violent confrontations, father had a 17-year drug history, mother had a 10-year drug history, and the parents relapsed after the children were returned to their care and used drugs in the childrens presence. The court ordered the children detained with the maternal relatives.

II. Jurisdiction/Disposition

The April 5 jurisdiction and disposition report contained Daisys statement mother hit her all over her body, told her she was not welcome in the home, violently yelled and screamed at her, and called her bad names. Father came to Daisys defense, but mothers physical abuse hurt her and left red marks. Gizelle reiterated Daisys statements and said mother treated Daisy worse than her.

Daisy and Gizelle stated that many people came to the house and used drugs with their parents in their presence. The girls described how the drugs looked, what they smelled like, and what they were called. Daisy heard two of mothers friends threaten to beat [mother] up. Daisy often witnessed drug use because she was not sent to school on a daily basis. Daisy was afraid to sleep at night while the people were there because she was afraid of what they might do to her. Gizelle had seen father use drugs and noted he acted differently after using drugs.

Daisy reported mother usually initiated fights with father. Daisy had witnessed mother threaten father that she would leave him and go with a man named Negro. Mother told the girls Negro would be their new dad; Negro was the one who offered mother drugs and sold drugs. Mother threw things at father. Daisy and Gizelle were scared of mother. The girls did not want to return to their parents; they wanted to continue living with their aunt. Gizelle stated, loudly and emphatically, NO!!! Last time I said yes, but I changed my mind. No. . . . I want to stay with my aunt Hilda.

On March 29, the social worker telephonically interviewed father, who was at the maternal grandparents home with mother. Father indicated mother hit and yelled at him and the girls. When asked what he did to protect the girls, father said, I would argue with her or try to take them away from her. Father did nothing else. Father confirmed mother would yell and scream, throw and break glass and hard items. When mother tried to hit father, he generally tried to walk away. Father reported the last time he used drugs was a week ago and admitted to at least 13 years of drug use, including marijuana, cocaine and methamphetamine. Father also admitted unrelated adults visited the house and used drugs while the children were at home.

The parents had been evicted and had no new address or phone number to give to the social worker.

The maternal aunt confirmed mothers behavior toward father and the children. The aunt stated both parents were using drugs and had failed to fill out the appropriate paperwork for renewal of their food stamps and welfare, resulting in the termination of those benefits. The aunt reported the parents used the welfare money for drugs and did not buy shoes, clothes and other necessities for the children. Mother sold the food stamps to buy drugs, and father got food for the children from the maternal grandparents home. Once the food stamps were terminated, the parents stopped buying food. The maternal family had been providing the necessities for the girls and feeding them. Daisy often stayed at the maternal aunts home. The aunt observed the people and drugs at the parents home. The family thought mother was prostituting herself for drugs. As to father, the aunt said he used crystal methamphetamine every day with mother, used drugs in front of the children and never put a stop to all the people coming and sleeping over. The aunt confirmed the domestic violence and said father does not hit mother, says nothing to her, does as she wishes and did not want to divorce her because of the children.

At the pre-trial conference, the parties stipulated to mediation, but the parents failed to appear at the mediation hearing. The court sustained the petition as amended, declared the three girls dependents, and ordered DCFS to provide permanent planning services. At the disposition hearing, the court ordered monitored visits and no family reunification services for the parents. The court ordered Daisy and Gizelle to participate in weekly individual counseling and set the matter for a section 366.26 hearing.

III. Section 388 Petitions

On August 25, 2006, father filed a section 388 petition for modification of the order denying reunification services. Father alleged his circumstances had changed as he had completed a parenting program, been participating in a drug treatment program since April 27, tested negative for drugs at his own expense, and regularly visited the girls. Father alleged the requested changes would be in the girls best interests because they would have an opportunity to return home, enabling them to be together and re-establish the family unit. The court summarily denied the petition finding there was no factual showing the request would be in the childrens best interests as father had only recently enrolled in a drug rehabilitation program and had a long history of substance abuse.

On September 6, father filed a second petition to modify the no reunification services order. Father alleged the exact same claims of changed circumstances and best interests of the children. Father attached a certificate of completion of a parenting class, a certificate of participation in a Journey to Success workshop, a letter from the King Drew outpatient drug-counseling program verifying his enrollment in the program since April 27, his attendance sheets at recovery group discussions and AA/NA/CA meetings, and six negative drug tests.

The DCFS report for the section 388 hearing stated the girls were all doing great and developing age-appropriately. Daisy and Gizelle both called the maternal aunt mommy and wanted to remain with the aunt. The maternal grandmother described Precious as a happy child, who loved to talk, dance and smile.

The adoption assessment for all three girls was completed on March 28. The caregivers remained committed to adopting the girls and stated they loved the children as their own and would do everything possible to provide for the girls needs.

DCFS reported that despite DCFSs involvement, Daisy and Gizelle had lived with their aunt on and off since birth as the parents would drop them off and fail to pick them up for months. The aunt and uncle had always provided the girls with clothing and other necessities due to the parents failure to provide. Daisy and Gizelle openly expressed their desire to be adopted by their aunt and uncle and were very attached to their caregivers, and the caregivers appeared to be very loving and affectionate with the girls. Precious had known her caretakers since birth; the maternal grandparents had cared for her daily due to the parents substance abuse. The grandparents had provided Precious with clothing and other necessities throughout her life due to the parents failure to provide.

At the September 6 hearing, the minors attorney reported Daisy and Gizelle indicated that mother was very mean to Daisy during visits and that they did not want to return to the parents. Daisy specifically stated she did not want to return to father. When the court asked if the parents resided together, fathers attorney stated father indicated he would move out if need be and separate from mother in order to get the kids back. The court continued the matter for a contested combined section 388 and section 366.26 hearing.

The September section 366.26 report included statements from Dr. Rigoverto Briceno, the therapist for Daisy and Gizelle, that the girls showed significant progress in their behavior and psychological functioning and were adjusting well to their placement. When the social worker asked Daisy if she would like to be returned to father, Daisy replied, I dont think it would be good to go back with him because when the case closes, [hell] want to go back with my mom. Daisy wanted to continue living with her aunt because, it was a safer place for us. Because theyre going to get back in the drugs once they close the case again. When Gizelle was asked if she wanted to return to father only, she said, I dont know.

In an October addendum report, DCFS stated that although it had not provided reunification services, it had provided father with free random drug testing through Pacific Toxicology since May 27 and with monthly bus passes since March 28.

In October, the social worker spoke to Arthur Booker, fathers substance abuse counselor, who stated father was enrolled in group sessions three times a week and individual counseling twice a month. Bookers most recent progress report indicated fathers progress had diminished and was only fair compared to the previous rating of good in August. Father had missed four meetings since August and had given many excuses for his absence.

Booker noted that although father had tested negative for drugs, testing had only occurred twice at the program, the last time in August. Fathers test results through Pacific Toxicology had been negative on September 18, but he failed to test on September 6 and October 12; missed tests were considered positive tests.

The social worker again interviewed Daisy and Gizelle about returning to father only. Daisy stated, I dont think that he is really ready to get us. I think that they will come back because they will never separate. . . . They (parents) come to the visits together, last time [the prior dependency case] they said they were going to get separated and then they got back [together] and got us back that is why I dont think they will get separated. When asked if she still wanted to be adopted by her aunt, Daisy said, Yes, I think thats going to work better. Gizelle again answered she did not know if she wanted to live with father.

Father visited the children twice a week, and the visits went well. The maternal aunt reported the children did not cry at the end of the visits. When asked what she thought about returning the children to father, the aunt said, If he would really leave [mother] it would be nice, because they do love their father, but he is not going to leave her. Because they are still together, we still see them together. He cant live without her, whatever she says goes. The social worker noted that although father had completed an eight-week parenting program, it was the exact same program he had completed in July 2004 during the previous dependency case.

IV. The Combined Hearing

At the hearing, the court first considered the section 388 petition. Father did not testify or present any witnesses or other evidence in addition to the DCFS reports admitted into evidence. Fathers attorney argued that father was willing to live without the mother in order to reunify with his children and that it would not be detrimental to the children to provide father with six months of reunification services to show he could do that and maintain his sobriety.

The court denied the section 388 petition finding father had failed to show by a preponderance of the evidence any significant change in circumstances or that the proposed modification was in the best interests of the girls.

For the section 366.26 hearing, father did not present any evidence and argued the subdivision (c)(1)(A) exception applied to him. The court found the children were adoptable and no exception could be applied to thwart the termination of fathers parental rights as he only had monitored visits with the children and was not a part of their upbringing and the fact the children were attached to father was not a basis for application of that exception. The court terminated fathers parental rights and referred the matter to the consortium to determine whether a visitation plan could be worked out.

Father filed a timely notice of appeal from the order terminating his parental rights.

DISCUSSION

I. Section 388 Petition

Section 388 permits a parent to petition the court on the basis of a change of circumstances or new evidence for a hearing to change, modify or set aside a previous order in the dependency. The parent bears the burden of showing both a change of circumstance exists and that the proposed change is in the childs best interests. 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 childs best interests. [C]hildhood does not wait for the parent to become adequate. (Citations omitted.) (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The change of circumstances or new evidence must be of a significant nature. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.)

Whether a previously made order should be modified rests within the dependency courts discretion, and its determination will not be disturbed on appeal unless an abuse of discretion is clearly established. (In re Amber M. (2002) 103 Cal.App.4th 681, 685.)

In In re Kimberly F. (1997) 56 Cal.App.4th 519, 532, the court summarized the factors a court should consider in ruling on a section 388 petition: (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 parents 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. (Original italics.) The court noted the list was not meant to be exhaustive. (Ibid.) Additionally, the petition must be considered in the context of the entire dependency proceeding. (See In re Marilyn H. (1993) 5 Cal.4th 295, 307.)

In appellants section 388 petition, he requested six months of reunification services and unmonitored visits. Appellant contends he demonstrated changed circumstances as he had completed a second parenting class at his own expense, attended a recovery discussion group and participated in about 19 sessions of the group, participated in almost daily AA/NA/CA meetings from June through the beginning of August 2006, attended the King Drew outpatient counseling program from April 27 through August 9, and undergone random drug testing at his own expense six times from May 26 to August 19 with negative results.

However, even though appellants attorney stated at the hearing that appellant was willing to live without mother, appellant did not state in his declaration attached to the section 388 petition that he was willing to leave mother to reunite with his children. Appellant did not testify at the contested hearing. Given appellants 17-year history of drug abuse, his past relapsing as soon as dependency jurisdiction was terminated, his very recent and very short-term efforts to overcome his drug abuse and the fact he had not left mother, he did not demonstrate a significant change in circumstances justifying giving him reunification services so he could attempt to do so. Appellants willingness to leave mother, rather than actually having left her, only demonstrated a changing, not a changed circumstance. Moreover, even for the program appellant was attending, his participation had recently fallen off and his missed tests were considered positive.

The children had strong bonds with their caretakers, and Daisy and Gizelle wanted to be adopted by their aunt (Precious was too young to express an opinion). Despite the prior dependency proceedings, after the children were returned to the parents, both parents still abused drugs and permitted their house to be a drug haven. For Precious, the youngest, her maternal grandparents home was really the only home she had known. For Daisy and Gizelle, though they had lived with appellant for most of their lives, the two girls were left with the maternal aunt for months at a time, and it was the maternal relatives who had provided the girls with the necessities the parents had failed to provide due to the parents drug use. Although mother was the source of the abuse and appellant came to the girls defense, he had not been able to protect the girls or stop the abuse. All felt appellant could not leave mother. Appellant did not demonstrate he could leave and remain apart from mother. Accordingly, it was not in the childrens best interests to provide appellant with reunification services, and the court did not abuse its discretion when it denied the petition.

II. Section 366.26, Subdivision (c)(1)(A) Exception

Appellant essentially contends there was no substantial evidence supporting the courts finding the section 366.26, subdivision (c)(1)(A) exception did not apply. On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)

A parent must show the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated. [] Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adults attention to the childs needs for physical care, nourishment, comfort, affection and stimulation. The relationship arises from day-to-day interaction, companionship and shared experiences. The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent. (Citations omitted.) (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

Although day-to-day contact is not mandated (In re Casey D., supra, 70 Cal.App.4th at p. 51), more than frequent and loving contact is required. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.)

The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the childs life spent in the parents custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the childs particular needs. (Fn. omitted.) (In re Angel B. (2002) 97 Cal.App.4th 454, 467.)

Appellant argues the factors favor him because all three children had spent the majority of their lives in his care and their interactions with him were positive and the girls (Daisy and Gizelle) were only ambivalent about returning to his care because they were concerned he would remain with mother and the problems caused by mother would continue. The record shows that although appellant loved his daughters, he was not able to protect them from mother, who abused both them (Daisy and Gizelle) and him, and his visits remained monitored. DCFS supervised the family for extended periods of time. Appellant and mother chose to buy drugs rather than provide the necessities of life when the children lived with him; the maternal family provided the necessities. The only evidence adduced at the hearing was DCFS reports, which indicated visits went well. However, the reports contained no evidence that appellant was more than a friendly visitor. Thus, substantial evidence supports the courts finding the exception did not apply.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

JOHNSON, Acting P.J. ZELON, J

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[1] All statutory references are to the Welfare and Institutions Code.