In re F.C. CA1/1 ( 2013 )

Filed 7/31/13 In re F.C. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION ONE
In re F.C., a Person Coming Under the Juvenile
Court Law.
CONTRA COSTA COUNTY BUREAU OF
CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent, A137378
v.
(Contra Costa County
P.C., Super. Ct. No. J11-01597)
Defendant and Appellant.
In December 2012, the juvenile court entered an order in which it denied a petition
filed by P.C. (Father) pursuant to Welfare and Institutions Code section 388,1 terminated
the parental rights of Father and T.B. (Mother), and selected a permanent plan of
adoption for the minor F.C. (born November 2011). Father challenges the order, arguing
the court erred in denying his section 388 petition and in terminating his parental rights.
We perceive no error and affirm the order.
BACKGROUND
The minor was born testing positive for opiates and marijuana, requiring treatment
for opiate withdrawal. Shortly afterward, on November 29, 2011, the Contra Costa
1 Further statutory references are to the Welfare and Institutions Code.
1
County Bureau of Children and Family Services (Bureau) initiated this proceeding under
section 300, subdivision (b). The juvenile court ordered formal detention the next day.
At the jurisdictional hearing a week later, the court sustained the following amended
allegations under section 300, subdivision (b): Mother had a serious substance abuse
problem and unaddressed mental health issues, each impairing her ability to care properly
for the minor.
At the dispositional hearing, held January 6, 2012, the juvenile court adjudged the
minor a dependent, ordered his removal pursuant to section 361, subdivision (c)(1), and
ordered reunification services for both parents. Father’s case plan called for him to
complete parenting education, submit to testing for alcohol and drugs, engage in
substance abuse treatment, complete a psychological assessment, undergo individual
counseling, complete a psychotropic medication evaluation, and engage in medication
monitoring. While the sustained jurisdictional allegations pertained only to Mother,
Father agreed to comply with this case plan.2
In the report submitted at the six-month status review hearing, completed June 6,
2012, the assigned social worker expressed “disappoint[ment]” regarding both parents’
lack of progress with their case plans. As to Father, the social worker reported he had not
yet followed through with referrals for individual counseling and substance abuse
treatment, had not yet begun a parenting class, had missed a number of alcohol/drug tests,
and had not begun to test negative for marijuana until April. Father had only recently
arranged for a psychological assessment, scheduled to occur near the end of June.
At the conclusion of the six-month hearing on June 18, the juvenile court
concluded, in effect, that both parents had failed to make substantial progress in their
court-ordered plans, and there was not a substantial probability that the minor could be
2 Father was living with Mother from the initiation of the proceeding until April
2012, when he was asked to leave Mother’s residence and began living with his
grandparents. Thus, at the time of disposition and the adoption of his case plan, he was
not eligible to assume custody of F.C. as a nonoffending parent, since he was not also a
noncustodial parent. (§ 361.2, subd. (a).)
returned to their care if it ordered additional services. The court, therefore, ordered the
termination of reunification services for both parents and set the matter for a hearing
under section 366.26. (See § 366.21, subd. (e), 3d par.)
On October 16, 2012, Father filed a petition under section 388 to modify this order.
He alleged he had since made significant progress with his case plan, and sought
additional reunification services. In opposition to this petition, the Bureau urged that
Father’s recent efforts did not constitute “significant changes” so as to justify an order
granting him additional services. In a memorandum prepared for the section 366.26
hearing, dated December 10, 2012, the Bureau recommended the termination of Father’s
and Mother’s parental rights as to F.C., and a finding that it is likely F.C. will be adopted.
On December 14, 2012, at the conclusion of a combined hearing on Father’s
petition under section 388 and the selection of a permanent plan under section 366.26, the
juvenile court denied the petition and terminated both parents’ parental rights. Father’s
appeal followed. (See § 395.)
DISCUSSION
I. Father’s Section 388 Petition
Father contends the juvenile court abused its discretion in denying his petition
under section 388. When seeking the modification of a prior order by petition under
section 388, a parent must show not only a genuine change of circumstances, but also that
the undoing of the prior order would be in the best interests of the minor. (In re Aaron R.
(2005) 130 Cal.App.4th 697, 705–706.) Whether a prior order should be modified rests
within the juvenile court’s discretion, and its determination will not be disturbed on
appeal absent a clear established abuse of discretion. (In re Stephanie M. (1994) 7
Cal.4th 295, 318.) The appropriate test is whether the juvenile court exceeded the bounds
of reason. When two or more facts may reasonably be deduced from the evidence, the
reviewing court has no authority to substitute its decision for that of the juvenile court.
(Id. at pp. 318–319.)
Father, pointing to the evidence he presented at the hearing, claims he did make a
sufficient showing he had made significant changes after the termination of his services
by meeting his case plan requirements. Our review of that evidence indicates Father
completed his psychological assessment soon after the six-month hearing, started weekly
individual therapy in August 2012, had been seeing a psychiatrist about his psychotropic
medications, and was living with his grandparents in a suitable residence. He started
attending a parenting class in August, which he was due to complete December 18.
Father had also visited F.C. regularly, and was seeking employment.
On this issue, the juvenile court concluded Father had not shown a sufficient
change of circumstances—he had done “some things,” but had not “substantially
completed” his case plan. We observe there was no evidence Father addressed the case
plan requirement of substance abuse treatment. In addition, because Father delayed many
months before he addressed the other case plan components, his resulting efforts were
incomplete or of relatively short duration by the time of the hearing. Father explained his
delay by stating he did not understand his services might be limited to six months. (See
§ 366.21, subd. (e), 3d par.) Yet, the record shows the court adopted a finding that
provided notice of this six-month limitation at the dispositional hearing. Also, the record
does not show Father ever challenged the order terminating his services on grounds of
improper notice. It is apparent to us that Father’s showing of “significant changes” were
more in the nature of “circumstances [that] were changing, rather than changed.” (In re
Casey D. (1999) 70 Cal.App.4th 38, 49.) We conclude the juvenile court’s assessment of
Father’s evidence did not exceed the bounds of reason.
With regard to the second prong of the showing required under section 388—that
the modification of the prior order is in the minor’s best interest—our review of the
evidence indicates only Father’s testimony that he and F.C. “have a bond[; F.C.] knows
who I am.” The assigned social worker, however, concluded otherwise in one of his
reports submitted at the hearing, stating that, based on direct observation of several visits
between Father and F.C., “[t]here does not appear to be [a] child-parent bond.” The
juvenile court noted it knew the social worker to be experienced and objective, and
clearly indicated it found the social worker’s opinion more credible. As mentioned
above, when two or more facts may reasonably be deduced from the evidence, we have
no authority to substitute our decision for that of the juvenile court. (In re Stephanie M.,
supra, 7 Cal.4th at pp. 318–319.)
On appeal, Father reasons that, because F.C. was detained at birth, his ability to
form a meaningful bond with the infant was essentially frustrated by the “minimal” or
“limited visitation schedule” offered to him. He further suggests the juvenile court
should have given greater consideration to the fact he did not share Mother’s problems,
which were the basis for jurisdiction, and the fact he had not caused problems in the
home he shared with Mother and D.B. (an older half-sibling)3 before F.C.’s birth. Father
asserts simply: given his showing of “significant changes[,] it was in [F.C.’s] best
interest that [Father] raise him.”
We see no merit in these arguments. Once services have been terminated, a
parent’s interest in reunification is no longer paramount, and the focus shifts to the
minor’s need for permanency and stability. At this stage, the juvenile court, when
considering a motion seeking a change in placement—such as Father’s section 388
petition seeking F.C.’s eventual return to his custody—must recognize this shift of focus
in determining the ultimate question of the minor’s best interest. (In re Stephanie M.,
supra, 7 Cal.4th at p. 317.)
The Bureau’s reports submitted at the hearing stated F.C. and his older sibling D.B.
were adoptable, in that maternal relatives, who had been caring for both boys since mid-
June, wanted to adopt them both. These prospective adoptive parents had been approved
by an adoptive home study. Meanwhile, the two boys had developed a sibling
relationship, which would be maintained and furthered by the prospective adoptive
parents’ adoption of both.
On the basis of this evidence, the juvenile court determined it was not in F.C.’s best
interest to reinstate Father’s services. We agree, and for the same reasons: reinstating
services, based solely on Father’s belated effort to comply with his case plan, would have
disregarded the shift of focus to F.C.’s need for permanency and stability through
3 D.B. is not Father’s child and hence is not involved in this appeal.
adoption and would have interfered with F.C.’s prospective adoptive placement with a
sibling with whom he had developed a relationship. We conclude without hesitation the
court did not abuse its discretion in denying Father’s section 388 petition because
granting it would not be in F.C.’s best interest.
II. Termination of Father’s Parental Rights
Father claims the juvenile court erred in terminating his parental rights under the
peculiar circumstances of his case—that jurisdiction was not based on Father’s conduct,
Father had demonstrated he was “ready and able” to care for F.C. appropriately in his
grandparents’ home, and that he had demonstrated his commitment to do so by his efforts
to address his case plan. More specifically, Father suggests the juvenile court erred by
failing to apply what is commonly called the “Beneficial Relationship” exception.4
Here, the juvenile court found by clear and convincing evidence it was likely F.C.
would be adopted. As a general rule, when the court makes this finding at a section
366.26 hearing, it is required to terminate parental rights and order the minor to be placed
for adoption. (§ 366.26, subd. (c)(1).) There are several statutory exceptions, including
that of an existing beneficial relationship between the parent and the minor. That is, the
court will not terminate parental rights if it “finds a compelling reason for determining
that termination would be detrimental to the child [because] [t]he parents have
maintained regular visitation and contact with the child and the child would benefit from
continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)
4 Father raises an additional ground in his reply brief, based on a recent decision by
Division Five of this court. (In re T.G. (2013) 215 Cal.App.4th 1 (In re T.G.).) We
conclude the due process violation found in that decision did not occur in this case. Here,
Father may have been a nonoffending parent, but he was not a noncustodial parent either
initially or at disposition. (See fn. 2, ante.) The juvenile court raised Father to presumed
father status at the jurisdictional hearing. Subsequently, at the dispositional hearing, the
court found, by clear and convincing evidence, that placement of F.C. with Father would
be detrimental to the minor’s safety, protection, or physical or emotional well being.
This finding, under the foregoing facts, satisfies the due process requirement that
Division Five found lacking under the facts in In re T.G. (See In re T. G., supra, 215
Cal.App.4th at pp. 20–22.)
The beneficial relationship exception is essentially an exception to be raised
affirmatively and proved by a parent seeking to avoid the termination of his or her
parental rights at a section 366.26 hearing. (See Seiser & Kumli, Cal. Juvenile Courts
Practice and Procedure (2013) Permanency Planning Procedures, § 2.171[5][b][i][A],
pp. 2-513 to 2-514; see also In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) The
record does not show that Father ever expressly raised or argued the application of the
beneficial relationship exception at the section 366.26 hearing. On appeal, Father has not
cited, nor have we discovered, any authority for the proposition that a juvenile court is
required, on its own initiative, to consider whether any of the statutory exceptions apply
to preclude termination of parental rights.
We note, additionally, Father’s section 388 petition alleged—as the basis for
determining that modification of the prior order would be in F.C.’s best interest—that he
“has a bond with [F.C. and] it is in [F.C.’s] best interest to continue the bond he has with
[Father] and for him to be raised by his father.” In closing argument, Father’s counsel
argued the existence of this bond as a ground for deeming it “appropriate to grant
Father’s 388 [petition],” and thus vacate the section 366.26 hearing as to F.C.
Accordingly, it is most reasonable to infer from the record that Father’s evidence of his
bond and visitation with F.C. was presented in support of his section 388 petition and not
in support of an unvoiced claim that the beneficial relationship exception applied. Under
these circumstances, Father has waived his claim and cannot raise for the first time on
appeal the application of the beneficial relationship exception. (In re Christopher B.
(1996) 43 Cal.App.4th 551, 558.)
In any event, as discussed above, the juvenile court concluded it would not be in
F.C.’s best interest to reinstate Father’s services and thus forego F.C.’s adoption. In
doing so, the court gave express credit to the social worker’s opinion there was no
significant parent-child bond between Father and F.C. Even if we assume Father’s
evidence somehow invoked a claim that the beneficial relationship exception was
applicable, it was clearly insufficient to provide a “compelling reason” for the court to
determine that the termination of Father’s parental rights would be detrimental to F.C.
(§ 366.26, subd. (c)(1)(B).) The court was entitled to reject application of the beneficial
relationship exception simply by finding the relationship maintained by Father during
visitation did not benefit the child significantly enough to outweigh the strong preference
for adoption. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) Such a finding is
clearly implicit in the court’s comments regarding F.C.’s best interest.
DISPOSITION
The order of December 14, 2012, is affirmed.
_________________________
Sepulveda, J.
We concur:
_________________________
Margulies, Acting P. J.
_________________________
Banke, J.
 Retired Associate Justice of the Court of Appeal, First Appellate District,
Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.