In re J.L. CA4/2 ( 2014 )

Filed 4/8/14 In re J.L. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 J.L., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY E060107
CHILDREN AND FAMILY SERVICES,
(Super.Ct.No. J242252)
Plaintiff and Respondent,
OPINION
v.
E.L.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Lily L. Sinfield,
Judge. Affirmed.
Jasmine J. Turner-Bond, under appointment by the Court of Appeal, for Defendant
and Appellant.
Jean-Rene Basle, County Counsel, and Dawn M. Messer, Deputy County Counsel,
for Plaintiff and Respondent.
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E.L. appeals from an order terminating parental rights to his toddler-aged son J.L.
The father argues that the juvenile court erred by denying his “changed circumstances”
petition pursuant to Welfare and Institutions Code section 388 (section 388). We find no
error. Hence, we will affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
E.L. (father) and J.G. (mother) are the parents of J.L. (sometimes baby or child).
As of December 2011, the father was 16; the mother was 14; and the child was
four months old.
One day that month, when both parents were at the father’s mother’s home in
Rialto, they got into an argument. As they were leaving, the father drove off with the
baby, leaving the mother behind. Later, he phoned her and told her that he and the baby
were going to spend the night at her mother’s home in San Bernardino. Thus, she spent
the night at his mother’s home in Rialto.
Meanwhile, the mother’s mother and stepfather had gone out to a party. When the
father arrived at their home in San Bernardino and found no one there, he broke in.
Around 6:00 a.m., the mother’s mother and stepfather returned home and found
the father and the baby there. At this point, the baby had two black eyes, scratches on
both cheeks, and several bruises on his back. The mother’s stepfather asked the father
about the baby’s injuries. The father got angry and tried to leave. The stepfather tried to
detain him, and a fight broke out. The father punched the stepfather, cutting his ear. The
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stepfather also punched the father, cutting his lip. The father broke free and left the
home. He proceeded to smash three of the windows of the stepfather’s car.
The father later admitted to his own stepfather that he “slapped” the baby because
“the baby would not stop crying.” He likewise admitted to the mother that he hit the
baby.
When the police interviewed the mother, she had several scratches and a bruise on
her face. She explained that the father had hit her a few days earlier.
The Department of Children and Family Services detained J.L. and filed a
dependency petition concerning him. He was placed in foster care.
When a social worker interviewed the mother, she admitted that both she and the
father used marijuana. She also admitted that the father had used physical force on her
during arguments.
The father had an “extensive” juvenile history; he was on probation at the time and
had “active warrants.” In February 2012, he was located and arrested.
Later in February, at the jurisdictional/dispositional hearing, the juvenile court
found jurisdiction based on serious physical harm (Welf. & Inst. Code, § 300, subd. (a))
failure to protect (id., § 300, subd. (b)), and serious physical abuse to a child under five
(id., § 300, subd. (e)). It formally removed the child from the parents’ custody and
ordered reunification services for both parents.
The father was placed in a group home. On March 13, 2012, the social worker
gave him referrals for services. He began participating in some services. On March 29,
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2012, however, he ran away from his group home. He remained at large until he was
rearrested about four months later. During this time, he did not visit the child, did not
participate in services, and did not contact the social worker. However, he was in contact
with the mother, and he “continued to engage in domestic violence” with her.
In September 2012, at the six-month review hearing, the juvenile court terminated
the father’s reunification services but continued the mother’s reunification services.
Sometime before January 2013, the father was committed to a juvenile correctional
facility.
In June 2013, at the 12-month review hearing, the juvenile court terminated the
mother’s reunification services and set a hearing pursuant to Welfare and Institutions
Code section 366.26 (section 366.26 hearing). That same day, the child was placed with
the mother’s mother and stepfather, who wanted to adopt him.1
In September 2013, the father filed a section 388 petition. The juvenile court set a
non-evidentiary hearing on the section 388 petition for the same date as the section
366.26 hearing.
In November 2013, the juvenile court held a hearing on the section 388 petition.
After hearing argument, it denied the petition, finding that it failed to allege a change of
1 Although the placement technically occurred in June, there had been efforts
starting around March to get the child accustomed to the prospective adoptive parents by
spending increasing amounts of time with them.
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circumstances and failed to allege that granting the petition would be in the child’s best
interests.
The juvenile court then proceeded to hold a section 366.26 hearing. After once
again hearing argument, it found that J.L. was likely to be adopted and that there was no
applicable exception to termination. It therefore terminated parental rights.
II
THE DENIAL OF THE SECTION 388 PETITION
A. Additional Procedural Background.
Back in September 2012, at the six-month review hearing, the father’s counsel had
asked the juvenile court not to terminate the father’s reunification services. She argued:
“He is being sent next month to the youth authority where he can take part in counseling,
parenting, . . . anger management and some other courses that would help him be an
efficient and good parent to his son if he were given the chance to do so.
“While I understand that my client can eventually[,] if he puts himself in a position
to do so[,] put in for a 388, given his youth I doubt that the 388 would be as effective as
having reunification at this time be extended. And we would ask the Court as a result of
that to consider giving my client six more months.” She added, “Since he will be pretty
much a captive audience at youth authority, I think he would do much better . . . if he
were afforded services there.”
The father’s guardian ad litem also stated, “[Y]outh authority does have a rather
intense fathering program . . . for minor fathers . . . which they highly incentivize . . . to
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get them to work through them. How that will work out, I really don’t know. But he
would definitely like to try that.
“ . . . [I]f we don’t give him that chance, . . . what I see occurring is that in essence
we are terminating his parental rights today. Because if he went and did all of the youth
authority programs on his own after services have been terminated, regardless he could
never show that it would be in the best interest of the child . . . for a 388 petition.”
The juvenile court asked the father how long he was going to be incarcerated; he
admitted that he was going to be incarcerated for about two years. The juvenile court
then declined to extend the father’s services.
B. Additional Factual Background.
The father visited the child only once. The child cried during most of the visit; he
appeared anxious and did not want to be held by the father. The father “spent a lot of
time looking at the child from a distance.”
Meanwhile, J.L. “appear[ed] well attached” to the prospective adoptive parents.
They had a “parent and child” relationship with him. “He seeks them out for comfort and
guidance. [They] anticipate his needs and meet them appropriately and with affection.”
He called them “mama” and “papa.” “[H]e appear[ed] comfortable in his environment.”
They were “willing, able and committed to meeting the child’s social, medical, financial
and psychological needs . . . .”
According to the father’s section 388 petition, since being committed to a juvenile
correctional facility, he had “completed and benefited from” various reunification-type
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services, consisting of vocational training, “Aggression Interruption Training,” “Step 5”
and “Step 6” of Narcotics Anonymous, and “Module V” and “Module VII” of “Project
IMPACT – Incarcerated Men Putting Away Childish Things.”
The father had written a letter to the mother’s mother (i.e., the prospective
adoptive mother). In it, he apologized for his “irresponsible behavior” and for the “harm”
he had caused to J.L., and he thanked her for caring for J.L.
The father’s scheduled release date was April 2014. However, he had two months’
credit, so he might actually be released in late February or early March 2014.
C. Analysis.
“To prevail on a section 388 petition, the moving party must establish that new
evidence or changed circumstances exist so that the proposed change in the court’s order
would promote the best interests of the child. [Citations.] Unless the moving party
makes a prima facie showing of both elements, the petition may [be] denied without an
evidentiary hearing. [Citation.]” (In re Marcelo B. (2012) 209 Cal.App.4th 635, 641-
642.)
“‘Whether [the petitioner] made a prima facie showing entitling [the petitioner] to
a hearing depends on the facts alleged in [the] petition, as well as the facts established as
without dispute by the [dependency] court’s own file . . . .’ [Citation.]” (In re B.C.
(2011) 192 Cal.App.4th 129, 141 [brackets in original].) “In considering whether the
petitioner has made the requisite showing, the juvenile court may consider the entire
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factual and procedural history of the case. [Citation.]” (In re Mickel O. (2011) 197
Cal.App.4th 586, 616.)
“We review the grant or denial of a petition for modification under section 388 for
an abuse of discretion. [Citations.]” (In re Y.M. (2012) 207 Cal.App.4th 892, 918.) “. . .
‘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.’ [Citation.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319, original quotation
marks corrected.) “‘The denial of a section 388 motion rarely merits reversal as an abuse
of discretion.’ [Citation.]” (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)
Here, the juvenile court could reasonably find that the father’s use of services
while in a juvenile correctional facility was not a changed circumstance. The father’s
petition asked the juvenile court to reinstate reunification services, and thus to modify its
September 2012 order terminating reunification services. In September 2012, however,
his counsel and his guardian ad litem had both argued that the court should continue
reunification services because he was about to enter a juvenile correctional facility and he
was going to make use of the services available there. The court terminated reunification
services regardless. Thus, it had already considered and rejected the assertedly changed
circumstance as a reason to continue reunification services.
Separately and alternatively, the juvenile court could reasonably find that granting
the petition would not promote the best interests of the child. “[B]est interests is a
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complex idea,” and “a number of factors should be examined.” (In re Kimberly F. (1997)
56 Cal.App.4th 519, 530.) These include “the strength of relative bonds between the
dependent child[] to both parent and caretakers . . . .” (Id. at p. 532.) They also include
“[t]he seriousness of the problem which led to the dependency, . . . the degree to which
the problem may be easily removed or ameliorated, and the degree to which it actually has
been.” (Ibid.) None of these factors favor the father.
Starting with the relative strength of the competing bonds, the prospective adoptive
parents were in undisputed possession of the field. The father had zero relationship with
the child. He had visited the child only once, and that visit had not gone well. Moreover,
he would not be out of custody — and thus not able to even start establishing a
relationship — until February 2014, at the very earliest. This would be three years and
three months after the initial removal. Ordinarily, services are not supposed to continue
for more than two years after removal, at most. (Welf. & Inst. Code, §§ 361.5, subd.
(a)(4), 366.22, subd. (b).) Arguably, a section 388 petition can be used to lengthen this
period, in an appropriate case (see In re Marilyn H. (1993) 5 Cal.4th 295, 309-310), but
only up to a point. “Childhood does not wait for the parent to become adequate.” (Id. at
p. 310.)
On the other hand, the prospective adoptive parents had established a fully parental
relationship with the child. He had been placed with them for about five months; he had
been visiting them for about three months before that. He expected them to meet all his
needs, and they fulfilled his expectation.
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Turning to the reason for the dependency, here, it was extremely serious — the
father struck a four-month-old baby multiple times, simply because the baby cried. More
generally, he dealt with opposition and frustration by acting out violently. Thus, at a
young age, he had already become a recidivist criminal. This was a course not easily
reversed. While he had since completed “Aggression Interruption Training,” he had not
had to test his new-found skills in the world outside a juvenile correctional facility.
Moreover, it does not appear that he had taken any parenting classes. The juvenile court
could reasonably conclude that he had not adequately addressed the conditions leading to
the dependency.
We therefore conclude that the juvenile court properly denied the section 388
petition without a hearing.
III
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting P. J.
We concur:
MILLER
J.
CODRINGTON
J.
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