In re J.D. CA2/1 ( 2023 )

Filed 12/1/23 In re J.D. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re D.J., a Person Coming B319125
Under Juvenile Court Law.
(Los Angeles County
Super. Ct. No. 20CCJP04948)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
D.W.,
Defendant and
Appellant.
APPEAL from order of the Superior Court of Los Angeles
County, Craig S. Barnes, Judge. Affirmed.
James W. Haworth, under appointment by the Court of
Appeal, for Defendant and Appellant D.W.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Melania Vartanian, Deputy
County Counsel, for Plaintiff and Respondent.
__________________________________
In early 2021, after the juvenile court sustained a petition
filed by the Los Angeles County Department of Children and
Family Services (DCFS) on behalf of D.J. (born September 2020),
it bypassed reunification services for appellant-father D.W. under
Welfare and Institutions Code section 361.5, subdivision (b)(10)
(section 361.5(b)(10)).1 Father did not appeal the denial of
reunification services. Instead, in January 2022, he filed a
petition under section 388, asking the court to change the order
denying him reunification services. The court denied the
petition, finding Father had failed to demonstrate both that
circumstances had changed since the previous order issued and
that granting the petition was in D.J.’s best interests.
1 Undesignated statutory references are to the Welfare and
Institutions Code. Section 361.5(b)(10) permits the court to
bypass reunification services for a parent of a child on whose
behalf a petition was filed if “the court ordered termination of
reunification services for any siblings . . . of the child because the
parent or guardian failed to reunify with the sibling . . . after the
sibling . . . had been removed from that parent . . . and that
parent . . . has not subsequently made a reasonable effort to treat
the problems that led to removal of the sibling . . . .” The court
had previously terminated reunification services for Father in a
case involving D.J.’s siblings.
2
On appeal, Father contends the juvenile court abused its
discretion because it: (a) failed to consider the alleged
impropriety of its previous order denying him reunification
services when it found he failed to demonstrate changed
circumstances; and (b) found that granting the petition was not
in D.J.’s best interests. Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
A. The Parents Lose Custody of D.J.’s Siblings
In April 2016, the juvenile court found jurisdiction over two
of D.J.’s siblings under section 300, subdivision (b)(1).
Specifically, the court found that D.J.’s mother3 and Father had a
history of domestic violence, that Mother had a history of
substance abuse and was a current abuser of alcohol, and that
Father failed to protect the children from Mother’s alcohol and
substance abuse. The parents were provided with reunification
services but failed to reunify, and the court terminated
jurisdiction in October 2017, granting the paternal grandmother
legal guardianship over the siblings.
B. DCFS Files a Petition on D.J.’s Behalf
In September 2020, one day after Mother gave birth to D.J.,
DCFS was notified that Mother had tested positive for cocaine. A
children’s social worker (CSW) spoke with hospital staff and
learned that D.J. had also tested positive for cocaine.
2 We limit our summary to the facts and procedural history
relevant to the issues appellant raises on appeal.
3 Mother is not a party to this appeal.
3
The CSW spoke with Mother, who admitted to smoking
cocaine four days before she gave birth “because she was upset at
father for questioning [whether] he is the father of the baby.”
She stated she had begun smoking cocaine two or three years ago
and smoked every other day. She denied using other drugs or
drinking alcohol. Mother agreed to participate in an inpatient
drug treatment program and to drug test on demand. Mother
informed the CSW that Father also smoked cocaine, and that
they sometimes smoked together, but had not done so when she
was pregnant. Mother claimed Father had told her not to use
drugs, and did not know she was doing so when pregnant.
Father echoed Mother’s claim that he did not know she was
using cocaine during her pregnancy, but also stated “he sort of
knew that the mother was using drugs because of her actions.”
However, when he confronted her, she denied it. Father claimed
that he occasionally drank alcohol but denied any history of drug
use. After being informed that Mother had already told the CSW
he used drugs, Father admitted to using cocaine, and said that he
had last smoked a week ago. He stated he began smoking
cocaine in 2017 or 2018 and smoked once or twice a week. He
also stated he smoked marijuana “every blue moon.” Father
agreed to participate in an outpatient drug treatment program
but stated he could not do an inpatient program because he did
not want to lose his job or his apartment.
Both parents agreed to a safety plan in which Mother and
D.J. would temporarily stay with a maternal aunt, and Mother
would not be left alone with D.J. Mother also agreed to contact
drug treatment programs “first thing in the morning.” The
maternal aunt agreed that the parents were not to be left
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unsupervised with D.J. and that she would not let the parents
leave the home with D.J. without her.
A week later, DCFS learned that Mother had left the
maternal aunt’s house with D.J. and entered an inpatient drug
treatment program. Father had yet to enroll in a program; he did
not think he had a substance abuse problem but agreed to enroll
if it meant D.J. could be in his care. DCFS sought and was
granted an order removing D.J. from the parents, and the
removal was carried out that same day. D.J. appeared to be
showing withdrawal symptoms due to being prenatally exposed
to cocaine.
Four days later, DCFS filed a petition under section 300,
subdivisions (b)(1) and (j). Count b-1 alleged D.J. tested positive
for cocaine at birth. Counts b-2 and j-1 identically alleged that
Mother had a history of alcohol abuse and was a current abuser
of cocaine—the counts alleged she tested positive for cocaine both
one day before and two days after D.J.’s birth—rendering her
incapable of providing regular care and supervision to D.J. The
counts also alleged D.J.’s two siblings were former dependents of
the juvenile court due to Mother’s drug abuse and both received
permanent placement services. Count b-3 alleged Father was an
abuser of alcohol and cocaine—the count alleged Father tested
positive for cocaine one day after D.J. was born—rendering him
incapable of providing regular care and supervision to D.J.
Count b-4 alleged Mother suffered from mental and emotional
problems, rendering her incapable of providing regular care and
supervision for D.J.
5
Mother appeared at the detention hearing and entered a
general denial; Father did not appear.4 The court found a prima
facie case to detain D.J., and ordered monitored visits of at least
six hours per week for the parents. Two weeks later, Father was
arraigned and entered a general denial. The court confirmed the
parents were granted monitored visits.
C. DCFS Investigates
D.J. appeared to be doing well in the home of his caregiver,
although he still exhibited signs of drug withdrawal. The
caregiver reported that she facilitated video calls with the
parents upon their request, “but this was infrequent.”
In conversations with the Multidisciplinary Assessment
Team in October 2020, Father “expressed the need to separate
from [Mother] and old friends/acquaintances, to avoid being
tempted, falling back into unhealthy relationships . . . and
engaging in drug use.” In speaking with a dependency
investigator (DI) in December 2020, Father admitted that,
contrary to his previously professed ignorance about Mother’s
drug use during pregnancy, he had used drugs with Mother when
she was pregnant but explained he “didn’t think it was going to
cause this much harm.” He also claimed that, although he and
Mother had told the DI in a call four days earlier that they were
in a relationship, the reality was that they were not, and were
4 While the detention report noted that DCFS had informed
Mother of the detention hearing, it contained no such statement
regarding Father. Additionally, it was discovered at the hearing
that the attorney tasked with calling Father had transposed two
digits of his phone number, and thus had been unable to reach
him.
6
“just living together.” Father asserted that he was “doing what I
need to do, but she’s not.” Father said he was attending an
outpatient drug treatment program and had been sober for two
weeks. He professed to be motivated by regaining custody of both
D.J. and the two children previously removed from him. Out of
eight drug tests scheduled for Father, he tested negative five
times, and missed three tests.
In conversations with the DI in December 2020, Mother
also admitted that, contrary to what she had stated to the CSW,
she had used cocaine with Father during her pregnancy. She
claimed she had been sober for two weeks, but informed the DI
that she had left her inpatient drug treatment program because
“[t]hey were acting racist toward me.”5 She acknowledged the
need to find another inpatient program to regain custody of D.J.
Mother admitted she had left a previous drug treatment
program—attended when she was trying to reunify with D.J.’s
siblings—because she “said I don’t want to do it.” Mother
acknowledged that when the court took jurisdiction of D.J.’s
siblings, she was an alcoholic, but she insisted that the children
had been well cared for nevertheless. She denied any physical
altercations with Father despite the previously sustained petition
finding otherwise. Mother said she understood that she needed
to drug test, and knew how to do so, but “I just don’t go.” She
also explained that she had been diagnosed with “Paranoid
Schizophrenia and Bipolar” and had been prescribed Seroquel
and two other medications. Mother stated she had taken her
medications until she became pregnant, and then stopped at her
5 When asked to elaborate, she stated that “[e]verybody was
Mexican, nobody was Black. Everybody was talking Spanish,
nobody talked English.”
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doctor’s recommendation. She had not resumed taking her
medications and was not currently being treated for her mental
health issues.
The parents were scheduled to visit D.J. three times in
October 2020, for two-hour visits. On the first visit, Mother “was
reportedly not engaged with the child, and appeared inattentive
and frustrated with him at times.” “Halfway through the visit,
the parents put the child in his car seat and prepared to leave.”
After being reminded that their visit was not over, they “waited”
and “Mother continued to repeatedly ask how much time was
left.” On the second visit, the parents were 45 minutes late. On
the third visit, the parents did not appear and, when reached by
telephone, Father stated he would not be coming. In November
2020, D.J.’s caregiver reported that each time D.J. returned from
visiting his parents, “he has an outbreak of oral thrush.”
D. The Court Bypasses Reunification Services
In the February 2021 adjudication hearing, the court
sustained the petition as to both parents. In March 2021, when
attempting to get in touch with Mother, the DI spoke with
Father; Father stated Mother “comes and goes” from his
apartment, and that he saw her regularly. He also told the DI
that the best way for the DI to reach Mother was to leave a
message with him.
In the March 2021 disposition hearing, counsel for DCFS
asked the court to bypass reunification services for both parents
under section 361.5(b)(10). D.J.’s counsel agreed with the
request. Father’s counsel stated that he was “asking the court to
use its discretion to provide [Father] with reunification services”
and that if the court were not inclined to do so, “that will be over
Father’s objection.” Mother’s counsel also asked the court not to
8
deny reunification services, discussing Mother’s efforts at
addressing the issues bringing her before the court, and pointing
out that the current sustained petition contained a mental health
allegation absent from the previous sustained petition, which
differentiated the cases.
After confirming with counsel for DCFS and counsel for
D.J. that their recommendations remain unchanged, the court
removed D.J. from the parents and found that “the factual
predicates of Welfare and Institutions Code section 361.5(b)(10)
ha[ve] been established with respect to [Father] as well as
[Mother], and on that basis [the court] is denying reunification
services.” The court specifically found that Father “has not made
reasonable efforts to address [the issues that gave rise to the
previous children being removed from him], which are largely
identical to the issues in the sustained petition.” The court
ordered DCFS to provide permanent placement services for D.J.
E. Father Requests Reunification Services
In a July 2021 report, DCFS recommended that D.J. be
adopted by his current caregiver. In September 2021, the court
ordered adoption to be the permanent plan for D.J.
In a January 2022 report, DCFS noted Father had
contacted a CSW on July 7, August 3, September 7, and
November 5, 2021 to arrange a visit with D.J. “but does not follow
up for [the] visit.” The caregiver reported that Father “has had a
total of 6 virtual visits and if she arranges a time for father to
call[,] he does not call or he calls late at night.”
Also in January 2022, Father filed a section 388 petition for
the court to “[o]rder return [of D.J.] or in the alternative[,] family
reunification services for Father.” Father contended that: (a) it
was improper to deny him reunification services under section
9
361.5(b)(10) because the previous dependency case in which he
failed to reunify with D.J.’s siblings had to do with domestic
violence and the current case had to do with substance abuse;
and (b) despite the court’s denial of reunification services, Father
had completed a 12-week parenting program and a 6-month
substance disorder program and participated in individual
counseling, gaining insights from those activities.6
As to why the requested order would be in D.J.’s best
interests, Father claimed that while he had been unable to visit
D.J. in person since October 2020 both due to COVID-19 and
DCFS’s inability to provide a monitor, Father engaged in video
calls with D.J. twice or thrice weekly for 30 minutes. Father
claimed that D.J. was excited when he saw Father on the video
call and would smile and laugh. Father concluded that he and
his son shared a bond, and it would be detrimental to D.J. if it
were severed.
Father attached to his petition a March 2021 certificate of
completion for a substance use disorder program and an April
2021 certificate of completion for a parenting program. He also
attached a March 2021 “Progress Letter,” attesting to his
participation in weekly “Individual Counseling” sessions as well
as “28 groups,” “21 individual sessions with Primary Counselors
6 Specifically, Father stated he learned the importance of
paying attention to and providing for his child’s needs, how to
communicate with children, and that corporal punishment is
wrong. He also learned that he was not alone in his struggle to
be sober, learned coping strategies to aid in sobriety, gained
understanding on how substance abuse affected his parenting
both by preventing him from being an attentive father and by
setting a bad example, and learned the importance of being sober
to be a good father.
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as well as 9 case management sessions.”7 The letter stated
Father had “U[rine] A[nalysis] negative test result[s] for the
months of: November, December, January. And February 2021 (5
panel) [sic]” and that, during the six months of treatment, “we
have observed [Father] grow and mature into a responsible
citizen in multiple areas in his life.” The court set a hearing date
in March 2022 for Father’s petition.
DCFS attempted to contact the program that Father
attended to obtain more details but, beyond confirming Father’s
attendance and completion, as well as his participation in
individual counseling, the program refused to provide further
information. The program manager additionally noted that
Father had completed the program “a year ago,” so he would
“need new consents from both of you prior to providing any
additional information.”
DCFS spoke with D.J.’s caregiver, who “expressed concern
that [D.J.]’s parents have not made an effort to visit or engage
with the child in person, or via telephone. She estimated that[,]
at the very most, father has participated in 10 video/phone calls
with D.J. since he was placed in her home,” even though Father
knew that “at 7pm any day he can call except for Friday[]s when
I take the kids out.” The caregiver described Father’s tendency to
send her a text message asking to speak with D.J., her consent
for him to do so, and his failure to follow through. The caregiver
stated that Father “always goes months without calling” and
when asked about it, he would respond, “ ‘I be falling asleep[,]
that’s why I don’t call.’ ” The caregiver stated Father did not call
7 It is unclear from the letter whether the weekly
“Individual Counseling” was the same as the “21 individual
sessions with Primary Counselors.”
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on D.J.’s birthday or during “any holiday that people call their
kids.” Additionally, the caregiver claimed that when Father did
call, D.J. was not interested. The caregiver also noted that when
Father called, he was often with “mom and other people.” The
caregiver reported that Father “does not have age appropriate
expectations of the child” and “does not interact with him
appropriately.” She gave an example of a recent call in which
Father said to D.J., “ ‘Why are you grabbing on that woman’s
titties, son?’ ” and “ ‘Yeah, your mom, she’s back there on drugs. I
haven’t had none in a couple months. I don’t know what she’s
gonna do, son. She doesn’t even want to talk to you.’ ”
DCFS spoke with Father, who claimed he had video calls
with D.J. at 7:00 p.m. on Thursdays, Fridays, and one weekend
day. When asked about the discrepancy between his account of
the frequency of his contact with D.J. and the caregiver’s report,
“Father admitted that he does fall asleep at times before his
visitation.”
Regarding sobriety, Father explained that after he lost
custody of his children in the previous dependency case, he “went
down the wrong path with drugs,” but has since learned he has to
“leave the baby mama to the side” to stay sober. He claimed that
he had not been in contact with Mother for six months, that he
attended two 12-step meetings a month, and that he checked in
with his former therapist as needed. DCFS asked Father to
contact his therapist to provide consent for the therapist to
release a certificate or letter of completion regarding individual
counseling or any additional programs.8 When asked why Father
8 The record does not reflect whether Father did so, but no
certificate or letter of completion—other than what was in
Father’s initial application—appears in the record.
12
took so long to file his section 388 petition, Father said he did not
know, and that he had provided the paperwork to his attorney
immediately upon completion of the programs.
DCFS opposed Father’s petition, citing the lack of details
regarding Father’s participation in individual counseling,
Father’s continued association with Mother, and Father’s
apparent ignorance of “developmentally appropriate parenting”
and “an understanding of his child’s unique needs.” DCFS also
argued that granting the request would not be in D.J.’s best
interests, citing both Father’s infrequent attempts at contacting
D.J. and D.J.’s lack of interest in interacting with him.
At the hearing on Father’s request, Father’s counsel
reiterated the arguments made in Father’s petition, adding that
Father had been approved for a housing program that would
allow D.J. to reside with him if he were successful in reunifying,
and pointing out that Father had stable employment. Father’s
counsel added that Father was “committed” to learning how to
address D.J.’s needs through whatever means DCFS
recommended. D.J.’s counsel reminded the court that the period
to appeal the denial of reunification services had passed. D.J.’s
counsel also pointed out that, “the most important component of a
family reunification plan is visitation” and Father had failed to
physically visit D.J. or familiarize himself with D.J.’s needs.
Counsel concluded that granting the petition would merely be
“unnecessarily delaying the child’s permanence,” and asked the
court to deny it. DCFS’s counsel agreed that the time to appeal
the court’s denial of reunification services had passed. DCFS’s
counsel also pointed out the infrequency of Father’s
communication with D.J., as well as his continued association
with Mother despite his claims to the contrary. DCFS’s counsel
13
concluded that while Father’s circumstances might be
“changing,” they were not “changed” and that, in any case, it was
not in D.J.’s best interests to grant the petition because of D.J.’s
special needs and the caregiver’s ability to meet those needs.
The court denied Father’s petition. On the issue of whether
he should have been denied reunification services under section
361.5(b)(10), the court noted the time to seek review of that
decision had long passed, and this was important because the
delay that would result from permitting a challenge now would
negatively affect D.J. The court discussed the irregularity of
Father’s visits, and his lack of attention to learning about D.J.’s
special needs from the inception of the case to the present. The
court acknowledged “positive signs” from Father, but deemed
them to be “changing circumstances.” In terms of D.J.’s best
interests, the court noted that “in this particular case[,] the bond
with the caregiver, the needs [of the child] being met [by the
caregiver], [and] the lack of engagement with Father in terms of
visitation over an extended period of time in this young child’s
life suggests it would not be in the best interest of the child” to
grant the petition.
Father timely appealed the denial of his section 388
petition.
DISCUSSION
“Section 388 allows a parent to petition to change, modify,
or set aside any previous juvenile court order. (§ 388, subd. (a).)
‘The petitioner has the burden of showing by a preponderance of
the evidence (1) that there is new evidence or a change of
circumstances and (2) that the proposed modification would be in
the best interests of the child.’ ” (In re J.M. (2020) 50
14
Cal.App.5th 833, 845.) “In determining whether [a section 388]
petition makes the required showing, the court may consider the
entire factual and procedural history of the case.” (In re K.L.
(2016) 248 Cal.App.4th 52, 62.) “To support a section 388
petition, the change in circumstances must be substantial.” (In re
Ernesto R. (2014) 230 Cal.App.4th 219, 223.) “We normally
review the grant or denial of a section 388 petition for an abuse of
discretion.” (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.) “A
court exceeds the limits of legal discretion if its determination is
arbitrary, capricious or patently absurd. The appropriate test is
whether the court exceeded the bounds of reason.” (In re L.W.
(2019) 32 Cal.App.5th 840, 851, citing In re Stephanie M. (1994) 7
Cal.4th 295, 318–319.)
A. The Court Did Not Abuse Its Discretion in Not
Finding Changed Circumstances
The court found that Father’s evidence regarding his
participation in programs amounted to “changing circumstances,”
impliedly finding there were no “changed circumstances.” (See In
re Ernesto R., supra, 230 Cal.App.4th at p. 223 [“To support a
section 388 petition, the change in circumstances must be
substantial” and “ ‘changing,’ not changed, circumstances” do not
constitute “a substantial change of circumstances”].)
Father argues that: (1) “[t]he evidence overwhelmingly and
without contradiction demonstrated that appellant had
established changed circumstances in his self-created case plan
and recovery from drug dependency”; and (2) “Any minor
questions that might arguably remain were a result of the
DCFS’s lack of direct referrals, oversight and monitoring of the
case.” We address each contention in turn.
15
1. Father’s Sobriety
Father argues that “[a]ll indications were that [he] had
remained sober from November, 2020, through the date of the
388 hearing on March 15, 2022.” The record belies this claim. As
early as October 2020, Father recognized the need to separate
from Mother “to avoid being tempted, falling back into unhealthy
relationships . . . and engaging in drug use.” Yet in March 2021,
he admitted to DCFS that Mother “comes and goes” from his
apartment, and that he saw her regularly. In a February 2022
interview with D.J.’s caregiver—three weeks before the hearing
on Father’s section 388 petition—the caregiver stated that half
the time Father video called D.J., he would be “with mom and
other people.” Additionally, while Father claimed to have
completed a substance use disorder program in March 2021, in
the same February 2022 interview, D.J.’s caregiver recounted
Father’s telling D.J. that Mother was “back there on drugs” but
Father “ha[d]n’t had none in a couple months”—implying that
before “a couple months” ago, he had used drugs. Thus, there
was evidence that Father had been using drugs only a few
months before the hearing on his petition.
2. DCFS’s Purported Inaction Is Irrelevant
Recognizing gaps in the evidence he provided to the court,
Father blames DCFS for the missing information, lamenting that
DCFS’s “disengagement from overseeing services continued after
the improvident bypass order through the date of the 388
hearing” and that the missing information was “a result of the
DCFS’s lack of direct referrals, oversight and monitoring of the
case.” But DCFS had no duty to uncover the information that
may have supported Father’s section 388 petition. (See In re
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J.M., supra, 50 Cal.App.5th at p. 845 [petitioner has burden to
demonstrate changed circumstances].)
Furthermore, all parties agree that the time to challenge
the bypass order has passed. Even if the court had previously
erred in denying reunification services—a finding we do not
make—the sole issue before us is the denial of Father’s section
388 petition, for which Father had the burden of proof to
demonstrate changed circumstances. Father cites no authority
holding that his burden lessened if the bypass order was
erroneous.
On this record, the juvenile court did not abuse its
discretion in finding that Father had not demonstrated changed
circumstances.
B. The Court Did Not Abuse Its Discretion in
Finding It Would Not Be in D.J.’s Best Interests
to Grant the Petition
The court found that granting Father’s petition was not in
D.J.’s best interest, citing D.J.’s special needs, Father’s lack of
regular visitation and failure to learn how to address D.J.’s
needs, and D.J.’s bond with his caregiver.
Father concedes the court did not abuse its discretion in
refusing to return D.J. to his care, but argues that granting him
reunification services “would not interfere” with the caregiver’s
ongoing care for D.J. He contends that giving him services was a
“plus-plus outcome for father and son” and that “[e]ach one
deserves these services that should have been ordered from the
outset.” Father further argues that the conflicting evidence
regarding the frequency of his visitation did not justify a denial of
his petition.
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While Father contends that offering him reunification
services would be a “plus-plus outcome,” he fails to explain how
D.J. would benefit, other than to assert that both he and D.J.
“deserve[]” these services. Father admits that D.J. had bonded
with his caregiver—with whom he had lived since he was two
weeks old—and was “making significant progress” with her help.
He does not deny there was evidence that he rarely visited D.J.
and lacked knowledge of how to meet D.J.’s special needs. As
both D.J.’s counsel and the juvenile court noted, granting Father
reunification services would only serve to delay permanence for
D.J. On this record, the juvenile court did not abuse its
discretion in finding that granting Father’s petition was not in
D.J.’s best interests.
For Father to succeed in his section 388 petition, the court
was required to find both that he had demonstrated changed
circumstances, and that the granting of the petition would be in
D.J.’s best interests. Because the court acted within the bounds
of reason in finding that neither element was met, the court did
not abuse its discretion in denying Father’s petition.
DISPOSITION
The court’s order is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J. WEINGART, J.
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