In re B.C. CA2/2

Filed 1/23/23 In re B.C. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
In re B.C., a Person Coming B320707, B319134
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No.
19LJJP00100B)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
J.C.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Stephanie Davis, Judge. Affirmed.
Jack A. Love, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn Harrison, Interim County Counsel, Kim Nemoy,
Assistant County Counsel, and Melania Vartanian, Deputy
County Counsel, for Plaintiff and Appellant.
______________________________________
B.C. was removed from parental custody shortly after birth.
His father, appellant J.C. (Father), engaged in domestic violence;
his mother, A.T. (Mother), abuses drugs. Reunification services
ended after the parents ignored court orders. The court denied
Father’s petitions for modification and terminated parental
rights. (Welf. & Inst. Code, §§ 388, 366.26.)1
The court did not abuse its discretion by denying requests
for modification without a hearing. Father did not bond with
B.C. during the first year of the child’s life. By the time Father
started to visit B.C. regularly and participate in programs, it was
too late: B.C. was fully bonded with his prospective adoptive
parents and cried inconsolably when he was separated from them
to visit Father. Father failed to make a prima facie showing that
modification would serve B.C.’s best interests. We affirm.
FACTS AND PROCEDURAL HISTORY
Soon after his birth in August 2020, B.C. was detained by
respondent Los Angeles County Department of Children and
1 Unlabeled statutory references are to the Welfare and
Institutions Code. We consolidated Father’s appeals from orders
denying modification and terminating parental rights. Father
did not brief the merits of the order terminating parental rights.
Mother is not a party to the appeal.
2
Family Services (DCFS). He was at high risk for abuse or
neglect. Mother is a chronic drug user who failed to reunify with
her son A.O., born in 2012. Mother told DCFS that Father
provided her with drugs.
Mother sustained visible neck injuries when Father choked
her in December 2019. He was arrested for domestic violence,
but Mother refused to participate in a criminal case against him.
Father is on probation for a 2019 accessory to a drive-by shooting
conviction. Mother and the maternal grandmother (MGM) said
that Father has “anger issues.”
DCFS’s petition alleged that B.C.’s parents have a history
of violent altercations in which Mother scratched and hit Father,
and Father was arrested for choking Mother; Mother is unable to
care for a newborn because she has a history of using cocaine and
hydrocodone and currently abuses opiates. The parents denied
Indian ancestry. At the detention hearing, the court found no
reason to know that B.C. is an Indian child. It found that Father
is B.C.’s presumed father. It removed B.C. from both parents,
placed him with his maternal grandparents (MGP’s), and
authorized monitored visits.
In the jurisdiction report, Mother said she scratched Father
but denied that he choked her; they argue about her drug use.
Father claimed he has never seen Mother under the influence
and learned of her drug abuse when DCFS opened a case for A.O.
He denied using drugs but failed to show up for testing.
Mother admittedly uses unprescribed Norco three to four
times weekly. She began using drugs in middle school, trying
“cocaine, ecstasy, Meth.” She underwent a 14-day “detox” but
never participated in a full treatment program. In 2019, during
A.O.’s dependency case, Mother tested positive for cocaine and
3
hydrocodone, and failed to test 30 times. In 2020, she failed to
test 18 times (while pregnant with B.C.) and tested positive for
hydrocodone the only time she appeared.
MGM knows Mother’s history “and believes [she] continues
to take ‘pills.’ ” MGM suspects that B.C. was “prenatally exposed
to substances as she noticed possible signs of withdrawal” such as
shaking, crying, and sleeplessness.
Father denied domestic violence, saying, “We do have
history, not violent, but to others it might seem violent but I
think it’s like any other relationship.” MGM said Father “ ‘is
aggressive and violent.’ ” She fears for Mother’s safety after
seeing her with marks and bruises. Mother and Father live with
the paternal grandparents.
On January 13, 2021, the court sustained allegations that
Mother has a history of substance abuse and currently abuses
opiates, limiting her ability to care for a young child; her son A.O.
is a dependent of the court; Mother and Father have a history of
violent altercations, resulting in Father’s arrest; Mother failed to
protect B.C. by allowing Father to reside with the child.
At disposition, B.C. was declared a dependent of the court
and removed from parental custody. The parents were given
monitored visits with B.C. for a minimum of nine hours weekly.
Mother was ordered to participate in a drug program; drug
testing; parenting education; and counseling. Father was ordered
to participate in on-demand drug testing, on suspicion of drug
use; a drug program if any test is missed; an anger management
program; parenting education; and counseling to address
domestic violence, anger, and substance abuse.
In July 2021, DCFS reported that B.C. is well-integrated
into MGP’s household. He has no bond with Father. The parents
4
did not inquire about B.C.’s progress or provide evidence of
enrollment in any court-ordered program. Mother missed 20
consecutive drug tests. MGM reported that “the parents attend
visits rarely”; Father “can’t handle the baby”; and B.C. “does not
know [Father].” MGM witnessed a parental altercation outside
her home; a doorbell camera filmed Father striking Mother.
When MGM told them to leave, Father pleaded with her not to
call police because he is on probation. Parental visits last 30 to
45 minutes, not the allotted time of three hours. They have not
visited B.C. recently.
The risks to 11-month-old B.C. remained high. The parents
did not communicate with DCFS; participate in services; or visit
B.C. consistently. MGM wishes to provide B.C. with permanency
and stability through adoption. In August 2021, MGM told the
social worker (CSW) she has not seen Mother “ ‘in a while.’ ”
Mother called MGM, crying because she is in a violent
relationship with Father. MGM heard Father’s family yelling at
Mother in the background.
A review hearing was held on September 13, 2021. Father
complained that DCFS kept assigning new CSW’s who did not
call or e-mail him; he was given “false information”; “barely got to
see” B.C.; was willing to drug test; was trying to sign up for
classes; and felt he was being treated unfairly. B.C.’s attorney
said that Father is “in total noncompliance.” DCFS noted that
the parents still cohabit, though this is a domestic violence case.
Despite CSW’s “continuous efforts” to text, e-mail and visit the
parents, they did not respond. They were given referrals for
programs, then evaded every effort to reach them to set up drug
testing. Mother has a history of not engaging in services since
A.O. was first detained.
5
The court concluded that DCFS “made reasonable efforts to
engage both [ ] Mother and Father in services, and they have, for
whatever reason, chosen not to engage in the services.” Father’s
effort to blame DCFS fails: He was not abandoned. The parents
recently engaged in domestic violence at MGP’s home. The court
found that returning B.C. to the parents would pose a substantial
risk of harm; the parents have made no progress to alleviate the
causes leading to B.C.’s removal; and they have not regularly or
consistently visited B.C. There is no substantial probability that
B.C. can return to either parent within the statutory period. The
court terminated reunification services and set a permanent plan
hearing. The court identified the likely plan as adoption.
CSW personally served Father with notice of the
permanent plan hearing; Mother was inside the home but refused
to be served. By November 2021, Mother was incarcerated.
In a January 2022 permanent plan report, DCFS wrote
that Father began an anger management program in July 2021;
the service provider recommended his continued attendance. He
enrolled in a parenting class and planned to start counseling but
missed many drug and alcohol tests. At visits, Father does not
feed B.C., change his diaper, or ask about his progress. B.C.
recently began to recognize Father, who he sees as a playmate.
Father does not speak to anyone at MGM’s home during visits,
but texted MGM that he hates her. MGM was uncomfortable and
asked CSW to find another monitor for Father. Since
November 29, 2021, Father has visited B.C. two or three times
per week, for one to three hours.
B.C. is meeting his developmental milestones in a stable
environment with MGP’s and two cousins. He eats well, is
integrated into the household, and is strongly bonded with MGM
6
and others in the home. He calls MGM “mama.” B.C. has lived
with MGP’s since he was a month old, and they are committed to
raising him to adulthood.
Father filed a petition for modification (388 petition) in
January 2022. He asked to reinstate services or return B.C. to
his care because he “is nearly done with the court ordered case
plan.” He is in counseling and takes anger management and
parenting classes. Father claimed to have no problem testing for
drugs and alcohol but said his work schedule interfered. Father
said he “is bonded to the child” and has visited consistently since
November 2021.
In March 2022, DCFS reported that CSW monitored one of
Father’s visits. He took no initiative to change B.C.’s diaper but
watched MGM do so. He attended 22 of 26 anger management
classes; further participation was recommended. He completed
three of 12 parenting classes and six counseling sessions. He has
yet to appear for drug and alcohol tests. Father visits B.C. two to
three times weekly, staying for one and a half hours, not for the
full three hours. He is engaged during visits, but still does not
feed or change B.C. or undertake any parental tasks relating to
the child’s needs. He sent MGM an angry text after she refused a
visit when he arrived late; MGM said she no longer wished to
monitor visits because of Father’s aggression.
Father told CSW that he needs to spend more time with
B.C. CSW opined that Father has not demonstrated what he is
being taught in parenting classes. Until recently, he did not visit
B.C. consistently. He stays for half of the allotted time. He is
attentive and playful, which B.C. enjoys. B.C. does not fully
engage with Father if MGM is not present.
7
After receiving reunification services in 2020, Father
refused to meet with CSW to discuss the case plan, did not
answer phone calls, text messages or e-mails, and canceled
scheduled meetings with CSW. He was instructed to drug test
but never did. His visits were sporadic; for months at a time, he
had no contact with B.C. As an infrequent and unreliable visitor,
Father has no bond with B.C., who cries when left with Father
without MGM. He does not plan and prepare nutritious meals or
snacks. He has never changed B.C.’s diaper. He cannot reunify
with B.C. because he is in a volatile relationship with Mother,
who never addressed her drug addiction. The court ended
reunification services in September 2021.
Before the hearing, DCFS updated the court. A sign-in
sheet showed that Father attended parenting classes since
November 2021. He completed his anger management program.
He attended eight counseling sessions since December 2021.
Though he is making progress, his relationship with Mother
creates a risk to B.C. Mother told MGM that Father and his
family will provide for her when she is released from jail; Father
puts money into her jail account; visits her; and he misses
programs to attend Mother’s criminal hearings. He does not
attend all visits with B.C. and leaves early.
Father sought to establish a prima facie case at the hearing
on March 14, 2022. There are changed circumstances because he
has essentially completed the case plan and is no longer in a
relationship with Mother. He sees B.C. as much as he can and
there are no issues during visits. B.C.’s attorney joined with
Father, saying he has “done a lot” while admitting that Father “is
not helping” care for B.C. during visits, thereby avoiding
“unpleasant tasks.”
8
DCFS asserted that Father has not shown a prima facie
case. He began services a year after the dependency case began.
It is questionable if the parents have ended their relationship, as
Father continues to support Mother. Father did not drug test on
demand; after missing multiple tests, he is required to complete a
substance abuse program, per the case plan, but has not enrolled
in one. Despite parenting classes, he still cannot change a
diaper. There is no showing that his counselor is addressing
domestic violence, anger management, and substance abuse with
him. There is no showing that modification is in B.C.’s best
interests, after spending his life with MGM. Father arrives
briefly for play dates with B.C. Permanency should not be
delayed while waiting for Father to become fit.
The court found it “more likely than not that the Father
remains in a relationship with the Mother.” It deemed
“incredible” their claim to have suddenly ended the relationship,
when Father continues to support Mother financially and
emotionally. Father began court-ordered programs in 2021, “but
his actions indicate that he has not gained any insight into his
dysfunctional relationship with the Mother,” preventing him from
reunifying or showing a change in circumstances. As for B.C.’s
best interest, Father cuts his visits short “and engages only in
playing at the visitation. Clearly, he has not gained any insight
[from] his participating in a parenting program and the minor is
not benefitting from the Father’s visits if the Father refuses to
participate in [his] care . . . . No bond is able to develop between
the minor and Father, and he’s acting as a mere playmate for the
minor.” The court concluded that Father has not shown a prima
facie case and denied the 388 petition. Father appealed the order
on March 15, 2022.
9
DCFS reported in May 2022 that “[t]his case is adoption
ready.” B.C. follows MGM around and calls her “mama.” The
family has a strong bond. Mother has not seen B.C. since her
incarceration in November 2021. Father spends more time with
B.C. In visits monitored by DCFS, B.C. cried and screamed for
MGM; tried to flee the visitation site; and cried and refused to
leave MGM’s car when he saw Father at a public location. Visits
had to be cut short, due to B.C.’s distress. Father completed a
parenting program. He fed B.C. and changed his diaper.
Father filed a second 388 petition on May 9, 2022, citing his
completion of the case plan; continued counseling; a negative
drug test; and active role during visits. He visits consistently, for
longer, since the court denied his first petition in March. He
brings snacks, changes diapers, and provided MGM with wipes,
diapers, formula, clothing, and toys. He “maintained consistent,
loving contact with his child and Father believes he and his child
have a bond.” He has ended communication with Mother.
At the hearing on May 11, 2022, Father argued that he
made a prima facie case of changed circumstances. DCFS
responded that its position is unchanged in the two months since
the first 388 petition. Father cannot derail permanency for a
child who was detained weeks after birth and is almost two years
old. Father is only now starting to stay for three-hour visits,
which were granted in 2020. B.C. cries inconsolably during the
visits, showing his best interests are not served. Father missed
numerous drug tests and must complete a full drug program.
The court stated that though Father now changes diapers
and feeds B.C., the problem is that he never tried to establish a
bond during B.C.’s first year. It said, “This is not about him
asserting himself as the child’s parent. It is about . . . whether or
10
not there is a bond and whether or not it would be in the child’s
best interest to try and further that relationship.”
The court referenced its findings from the first 388 petition
in deciding if new evidence supports a hearing. It found “there is
no connection between the minor and the father.” As to B.C.’s
best interest, the court emphasized “the length of time the child
has been in the placement, the bond that is established with the
caregiver, the lack of bond that is established with the father, the
fact that he has not [in two years] parented the child . . . for a
significant period of time to establish any kind of relationship or
bond.” It denied the petition without a hearing.
The court moved to the permanent plan hearing. The
parents objected to the termination of their rights and requested
a less drastic plan. B.C.’s counsel supported termination of
parental rights. The court found that B.C. is adoptable and no
exception to adoption applies. It terminated parental rights.
Father appealed.
DISCUSSION
Father challenges summary denials of his section 388
petitions. The orders are appealable and reviewed for abuse of
discretion. (§ 395; In re Jasmon O. (1994) 8 Cal.4th 398, 415
(Jasmon); In re Anthony W. (2001) 87 Cal.App.4th 246, 250
[summary denial of 388 petition].) “ ‘ “The appropriate test for
abuse of discretion is whether the trial court exceeded the bounds
of reason.” ’ ” (In re Stephanie M. (1994) 7 Cal.4th 295, 318–319.)
“[T]he welfare of a child is a compelling state interest that
a state has not only a right, but a duty, to protect.” (In re
Marilyn H. (1993) 5 Cal.4th 295, 307 (Marilyn).) Reunification
services are limited to reduce “the length of time a child has to
wait for a parent to become adequate.” (Id. at p. 308.) When, as
11
here, a newborn is removed from custody, a parent presumptively
receives six months of services “but no longer than 12 months
from the date the child entered foster care.” (§ 361.5, subd.
(a)(1)(B).) Services may be extended only if there are reasons to
believe that the child can be safely returned to parental custody
within the extended period. Services are “first presumed, then
possible, then disfavored.” (Tonya M. v. Superior Court (2007) 42
Cal.4th 836, 845.)
B.C. entered foster care December 29, 2020.2 The court
instituted reunification services in January 2021 and ended them
in September 2021. In that time, Father made no progress to
resolve the problems that led to this proceeding. He did not
regularly visit B.C. or enroll in court-ordered programs. There
was no substantial probability that B.C. could safely return to
Father’s custody.
Once reunification services end, the primary focus is on the
child’s need for permanency; a parent’s interest in the custody,
care, and companionship of the child is not paramount. (Marilyn,
supra, 5 Cal.4th at pp. 309–310; In re Angel B. (2002) 97
Cal.App.4th 454, 464.) Children have a fundamental right to a
placement that is stable and permanent. (Jasmon, supra, 8
Cal.4th at p. 419.) Termination of services “ordinarily constitutes
a sufficient basis for terminating parental rights.” (In re K.C.
(2011) 52 Cal.4th 231, 236–237.)
A 388 petition must demonstrate “a substantial change in
circumstances” such that modification will promote the child’s
2 A child enters foster care on the date of the jurisdictional
hearing or 60 days after his or her initial removal, whichever is
earlier. (§ 361.49.) Sixty days from B.C.’s detention hearing is
December 29, 2020.
12
best interests. (In re Heraclio A. (1996) 42 Cal.App.4th 569, 577.)
“ ‘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 . . . might be able to reunify at some future
point, does not promote stability for the child or the child’s best
interests.’ ” (In re Mary G. (2007) 151 Cal. App.4th 184, 206.) To
decide a 388 petition, the court may consider the entire history of
the case. (In re Jackson W. (2010) 184 Cal.App.4th 247, 258; In
re Justice P. (2004) 123 Cal.App.4th 181, 189.) No hearing is
required if a petition fails to show (1) changed circumstances and
that (2) a modification will promote the child’s best interests. (In
re Christopher L. (2022) 12 Cal.5th 1063, 1080; Cal. Rules of
Court, rule 5.570(d).)
From September 2020 to September 2021, Father did little
except avoid contact with DCFS. He seldom visited B.C. The
classes he took, once services ended, had no measurable effect.
Despite a parenting program, Father did not parent B.C. Their
relationship was shallow and discomfiting to B.C.
Apart from Father’s lack of progress throughout the
proceeding, he “did not state he was currently able to provide
[B.C.] a stable, safe, permanent placement. He sought only to
continue the dependency proceedings, which had been initiated
[over a year] earlier. ‘Childhood does not wait for the parent to
become adequate.’ [Citation.] This showing of changing
circumstances is not sufficient.” (In re A.S. (2009) 180
Cal.App.4th 351, 358.) Absent a showing that Father could
presently provide B.C. with a safe, permanent home, an
extension of the proceeding was unwarranted.
Father’s petitions state that he is bonded with B.C., or
believes they have a bond, and has consistently visited since
13
November 2021. Notably, he did not disclose why additional
services would be in B.C.’s best interests. In determining a
child’s best interest, the court considers (1) the seriousness of the
reason for dependency jurisdiction; (2) the strength of the bonds
between the child, the parent, and the caretakers; and
(3) whether the problems leading to dependency may be easily
removed or ameliorated. (In re Kimberly F. (1997) 56
Cal.App.4th 519, 530–532.)
B.C. was removed from Father for serious reasons. He
engaged in domestic violence and was arrested for choking
Mother, who had visible injuries. Mother and MGM said he has
“anger issues.” MGM said Father is “aggressive and violent.”
Father acknowledged that his relationship with Mother “might
seem violent” to others, though he thought it is normal.
The record shows that Father’s behavior is not easily
ameliorated. In 2021, during this proceeding, MGM witnessed a
parental altercation at her home, in which Father struck Mother;
he begged MGM not to report him and endanger his probationary
status for his drive-by shooting conviction. After that incident,
Mother called MGM crying because of Father’s violence. MGM
twice asked to be relieved of monitoring Father’s visits because
he sent her hostile, angry messages that unnerved her, despite
his participation in an anger management program.
B.C. does not have a bond with Father. He is bonded with
MGP’s, where he has lived since he was a month old; they are the
only parents he knows. Father’s visits, for the first year of B.C.’s
life, were inconsistent. Months passed without a visit. As late as
July 2021, B.C. did not even know who Father is. Even when
Father began to visit regularly, he cut visits short, squandering
time he could have used to deepen the relationship. During
14
visits, the two are playmates. Father never attended B.C.’s
medical appointments or asked MGM about B.C.’s needs. He has
not progressed to unmonitored visitation, let alone demonstrated
ability to take custody. B.C. feels unsafe with Father and cries
when they visit without MGM’s comforting presence.
B.C.’s interest in permanency and stability outweighs the
remote possibility of future reunification with Father. Though
reunification is favored at the beginning of the dependency
process, the opposite is true at the end of the process, when the
child deserves a stable, permanent home. (Jasmon O., supra, 8
Cal.4th at p. 420.) The court did not err by denying, without a
hearing, Father’s petitions to have custody of B.C. or receive
additional services. The court’s subsequent order terminating
parental rights was not premature. Father does not deny that
the legislative preference for adoption applies here.
15
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur;
ASHMANN-GERST, J.
CHAVEZ, J.
16