Opinion
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County Nos. DP-011924, DP-011925, Carolyn Kirkwood, Judge.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant Martin O.
Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant Mariam B.
Benjamin P. de Mayo, County Counsel, and Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.
IKOLA, J.
OPINION
Martin O. (father) petitioned under Welfare and Institutions Code section 388 to have his children, Benjamin (now age four) and Sandra (now age three), returned to his care. The court denied his petition. On appeal father contends “it was in the children’s best interests to be returned to [his] care as the issue of drug and alcohol abuse had been resolved and it was apparent the children and father shared a parent/child bond.” We disagree and affirm the judgment.
All statutory references are to the Welfare and Institutions Code.
Mother Miriam B. joins in father’s argument “to the extent that it inures to Mother’s benefit in that her parental rights would not be terminated had the juvenile court granted Father’s petition.” Because mother raises no independent arguments, our recitation of facts focuses on father.
Orange County Social Services Agency’s (SSA’s) June 2005 petition alleged Benjamin (then 18 months old) and Sandra (then seven months old) came within the court’s jurisdiction under section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). SSA’s specific allegations included: the children had diaper rash; mother had threatened to physically harm the children if father left the home; father saw Benjamin try to drink from a beer bottle (“one of several left strewn around the home”); father failed to protect Benjamin from mother; the parents failed to provide the children with adequate food; father had a history of extensive alcohol abuse; mother had an extensive history of using illicit substances and alcohol; mother suffered from “suicidal ideation”; mother and father had a history of domestic violence in the children’s presence; and mother had had other children (Benjamin’s and Sandra’s half-siblings) removed from her care. SSA’s reports stated father and mother were not married, and by mid-July 2005, no longer lived together.
In September 2005, the court found the petition’s allegations to be true. That same month father started attending a drug and alcohol treatment program; he tested clean through early November 2005 except for an October 2005 positive alcohol test. In November the court declared the children dependents of the court. In January 2006, father tested positive for methamphetamine.
In its March 2006 six-month review reports, SSA stated father’s drug test results had all been negative. He regularly attended AA meetings and group and individual therapy, but needed to be more consistent about attending AA meetings weekly and committing to individual therapy appointments. He had recently started working at Volt Services Group. The parents’ visits with the children had been increased to two hours per week. Father “had not missed a visit with his children and seem[ed] to be making an effort to have his children return[ed] to his care.” He seemed “to receive a great deal of support from his family members.”
At the March 2006 six-month review hearing, the court found, as to father, a substantial probability the children would be returned to his physical custody within six months and ordered the case continued for another review hearing. The court found mother had failed to participate regularly in her case plan, and terminated her reunification services.
In its 12-month review reports filed in July and September of 2006, SSA stated father tested positive for cocaine in April and June of 2006. In August father had moved into a one-bedroom apartment that had “a small crib and one small bed in the bedroom.” He was employed by Volt Services Group where he worked 10 to 12 hours a day. “[H]is goal is to regain custody of his children.” The social worker monitored one of father’s visits with the children and described it as “very positive.” SSA recommended father’s reunification services be terminated and the court “move to permanency proceedings” because “there remain grave concerns about the father’s ability to remain drug free” and because of “the children’s age.”
At the September 2006 12-month review hearing, the court, pursuant to the parties’ stipulation, continued the matter to December 2006 for an 18-month review hearing.
In its December 2006 18-month review report, SSA stated father had been given unsupervised visitation starting in September 2006, but around October 5, 2006 “the children returned ill” from a visit with him and around October 16, 2007 “returned home hungry.” Father tested positive for cocaine on October 12, 2006, and his visitation was changed back to monitored. Father tested diluted in October and November of 2006, and missed three tests.
At the January 8, 2007 18-month review hearing, the court ordered father’s reunification services terminated and set a section 366.26 hearing (.26 hearing) for May 7, 2007.
In its May 2007 report for the .26 hearing, SSA stated father was again granted unsupervised visitation in December 2006. In January 2007 he missed three visits. In February 2007, the social worker learned father had again tested positive for cocaine. Father’s visitation was changed back to monitored.
In May 2007, the court continued the .26 hearing to October 24, 2007.
In its October 2007 report for the .26 hearing, SSA stated the children were placed in a prospective adoptive home in May 2007. The prospective adoptive parents had “dedicated all their resources and time [to] supporting the children’s needs,” even taking “several months off from work to build their relationship with the children and foster trust.” The children appeared “to feel very safe and secure while under [the prospective adoptive parents’] supervision.”
On the scheduled date for the .26 hearing, the court trailed the matter one day to October 25, 2007, to enable father to complete a section 388 motion.
On October 25, 2007, father filed a section 388 petition challenging the court’s May 7, 2007 order and seeking the children’s return to his care under a family maintenance plan or alternatively, their placement with him on a 60-day release or their transition into his care. He declared he had successfully completed an alcohol and drug abuse services recovery program in September 2007, in which he learned, inter alia, “valuable tools for preventing any relapse in the future,” such as by discontinuing association with old friends who drank and used drugs. Father had a job and had arranged for childcare with his sisters. He had visited the children regularly and consistently. He declared “the children have many extended family members and relatives that love them and miss them very much.”
At the October 25, 2007 hearing, the court found father had made a prima facie showing entitling him to a full hearing on his section 388 petition. The court scheduled a hearing on the petition and the .26 hearing for November 15, 2007.
In its November 2007 report for the .26 hearing, SSA stated the children’s therapist opined that “any additional changes or things that represent insecurity, lack of permanency, or big changes may be difficult” for the children who were “very attached to the prospective adoptive parents.” The social worker recommended the parents’ parental rights be terminated and the children referred for adoptive placement.
At the November 2007 section 388 hearing, the social worker testified father never progressed “to a point where the children were on over-nights” or where father could otherwise be assessed “in a parental role”; the social worker did not recommend the children to be returned to father’s care. The social worker had asked father where he resided, but father gave a post office box address instead of a physical address and mentioned “he also lives with his sister.” Father had not provided the social worker with any proof of testing for drug or alcohol abuse since the termination of his reunification services. The prospective adoptive parents, as well as the previous caretaker before them, reported the children had “negative emotional reactions, such as nightmares and outbursts” after visits with father. The social worker believed it was in the children’s best interest “to stay in their current placement” because they had “been placed there for now more than six months, and most importantly due to their age, . . . they are in need of a stable and permanent home.”
Father’s substance abuse treatment counselor opined father appeared motivated to remain “in the after-care program” and father’s current commitment to sobriety was “good.”
The visitation monitor for the last six months testified that on “the first visit [with father] the children were crying [and] just didn’t want to be there.” Since then, the children had “been happy to see their father upon arrival at the visit.” Father visited the children every Friday morning for two hours.
Father testified he used cocaine in February 2007 because he “got together with some friends [who] were drinking and using drugs, and [he] had a relapse.” After that, he “began to change [his] attitude and to look for new friends.” He learned to prevent relapse by spending time “doing other things, like going to a park, going to church, and to try to create [his] life with positive things.” He still participated in a substance abuse treatment program, going to group and individual therapy, weekly AA meetings, and a parenting class. He had now been sober for about nine months. He continued to work at Volt Services after a year and six months of employment there. He earned enough to support the children should they be returned to his care. His sister or his sister-in-law could care for the children while he was at work. He currently rented a room from his sister. At visits the children were “very happy,” and smiled and laughed with father, and hugged him upon arrival.
Father’s sister testified father lived in her home and she had agreed to the children living there in father’s care and to babysit them while he was at work.
The court then heard argument by counsel. Father’s counsel argued father had changed his circumstances by completing the drug and alcohol abuse treatment program and continuing to participate in its after care program. The “key issue” was that father had “changed his associates” and gained “the tooling to prevent relapse.” He had “worked at the same employment for over a year and a half.” “[B]est interest [was] shown by the information regarding the nature of the visits between the father and the children and the nature of the relationship between [them].” Father had not missed a visit and the children enjoyed the visits.
Counsel for the minors argued father’s circumstances were changing, not changed. Despite receiving the maximum time for family reunification, father had tested positive for drug or alcohol use in October and December of 2005; January, April, June, October and November of 2006; and February 2007 (after termination of reunification services). After that, father tested only one to two times a month. Father “finally completed a six month drug-treatment program, but it took two years.” Counsel also argued the children’s best interests would not be served by returning them to father’s care. Sandra had lived with father “at best . . . for one month of her life,” Benjamin “since he was about two-and-a-half years old,” and both children had “been out of the home for two-and-a-half years.” Counsel noted the therapist’s opinion the children were stable in their current placement, and any additional changes would represent insecurity.
The court also heard argument by mother’s counsel and SSA’s counsel.
The court denied father’s petition. The court found insufficient evidence showing father’s circumstances had changed, although this issue was “a close call.” The court noted father had made positive changes by remaining employed for some time, obtaining a “suitable residence,” making arrangements for child care, and visiting appropriately with the children. But evidence also suggested father’s circumstances had not changed, such as “the length of time it took [him] to complete the substance abuse program” and the monitored status of his visitation. Also, father had “only recently graduated from the substance abuse program” and obtained a “suitable residence.” The court found the timing of father’s relapses over the last 18 months “truly telling as to whether” his circumstances were changed or changing. Although he had known “what was at stake[, he] still could not control his own drug use.” Twice he had been granted unsupervised visitation, only to quickly relapse into drug use and have “his visits . . . restricted back to monitored.” The court concluded father failed “to show the length of time [of sobriety] needed to show a true changed circumstance, as it relates to his history in this case, given his relapse pattern.” In addition, the court found father had not met his burden to show “that it would be in the best interests of these young children to remove them from their current caretaker[s], who they are clearly bonded with and placed back in father’s care when he is at the unmonitored visitation stage . . . to take a chance that the children would need to be removed again if father continues with his history of relapse pattern to relapse again. These children are too young to undergo that.”
DISCUSSION
Father contends the court abused its discretion by denying his section 388 petition. Under section 388, subdivision (a), a parent “may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change” a previous court order. “If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . .” (§ 388, subd. (c).) Accordingly, to succeed on a section 388 petition a petitioner must establish “by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) The petitioner bears the burden of proving by a preponderance of the evidence that “the child’s welfare requires such a modification.” (Cal. Rules of Court, rule 5.570(h)(1).)
Section 388 serves “as an ‘escape mechanism’ to ensure that new evidence may be considered before the actual, final termination of parental rights.” (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1506.) In this way, “[s]ection 388 is central to the constitutionality of the dependency scheme” (Ibid.) and to the satisfaction of a parent’s due process rights. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
“The grant or denial of a section 388 petition is committed to the sound discretion of the trial court and will not be disturbed on appeal unless an abuse of discretion is clearly established. [Citation.] A trial court exceeds the limits of legal discretion by making an arbitrary, capricious or patently absurd determination.” (In re Shirley K. (2006) 140 Cal.App.4th 65, 71.) “‘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.)
Father acknowledges that “[o]nce reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability” (In re Marilyn H., supra, 5 Cal.4th at p. 309) and that he suffered a relapse more than once. But he contends he showed changed circumstances because he completed a drug and alcohol program and had maintained a period of sobriety. He asserts that “[s]ubsequent to the February 2007 relapse, [he] changed his attitude, his friends, and the places in a plan of relapse prevention.” He also complains that his “requests for increased visitation when he maintained his sobriety were denied.”
The court did not abuse its discretion by finding father’s circumstances were changing, not changed. Father had been granted unsupervised visitation twice, only to quickly relapse each time, despite knowing what lay at stake. At best he had maintained his sobriety this time for eight months, after over a year and a half of intermittent drug and alcohol use marked by eight positive tests. The court acted well within its discretion to find father failed “to show the length of time [of sobriety] needed to show a true changed circumstance, as it relates to his history in this case, given his relapse pattern.”
As to the second prong of the required showing, father failed to show returning the children to his care would serve their best interests. The children were very attached to the prospective adoptive parents and needed a stable and permanent home. Their therapist cautioned any further changes would bring insecurity to the children. Moreover, because father’s reunification services had been terminated, a presumption existed that continued care in the prospective adoptive home was in the children’s best interests. (In re Stephanie M., supra, 7 Cal.4th at p. 317 [after reunification services are terminated, “‘the focus shifts’” to the child’s need for permanency].) Father, whose visitation was still at the monitored stage, failed to rebut this presumption. The court did not abuse its discretion by denying his section 388 petition.
DISPOSITION
The postjudgment order is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., FYBEL, J.