Opinion
B296173
03-05-2020
In re D.W., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. MICHAEL W., Defendant and Appellant.
Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Jeanette Cauble, Principal Deputy County Counsel, for Plaintiff and Respondent, Los Angeles County Department of Children and Family Services.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. DK18333A) APPEAL from orders of the Superior Court of Los Angeles County, D. Brett Bianco, Judge. Affirmed. Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Jeanette Cauble, Principal Deputy County Counsel, for Plaintiff and Respondent, Los Angeles County Department of Children and Family Services.
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Michael W. (father) appeals the juvenile court's denial of his petition to modify its prior order terminating reunification services and setting the matter for a permanency planning hearing regarding his three-year-old daughter D.W. The juvenile court did not abuse its discretion in denying father's petition, so we affirm.
FACTS AND PROCEDURAL BACKGROUND
These facts are drawn from our unpublished opinion in a prior appeal from this case. (In re D.W. (Mar. 8, 2018, B280371) [nonpub. opn.])
In 2014 and 2015, father, then 43 years old, impregnated Jazzman W. (mother) and her sister. Father was 43; the sisters, 19 and 21, respectively. At that time, both sisters were working as prostitutes and father was their pimp. D.W. was born in October 2015. After D.W. and her half sister were born, father would wait with the babies in his car as their mothers continued to turn tricks for him.
In January 2017, the juvenile court—in response to a petition filed by the Los Angeles Department of Children and Family Services (the Department)—exerted dependency jurisdiction over D.W. based on (1) father's July 2016 physical altercation with his uncle, where he punched him or pushed him with both hands on the chest and then vandalized his car, all with D.W. present; (2) father's history and current abuse of marijuana; and (3) mother's history and current abuse of marijuana. The court found that this conduct placed D.W. at substantial risk of serious physical injury (justifying dependency jurisdiction under Welfare and Institutions Code section 300, subdivision (b)) and necessitated removal of D.W. from father's custody (under section 361). The court placed D.W. with paternal aunt, and ordered the Department to provide mother and father with reunification services.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
In June 2018, after nearly 18 months of reunification services, the juvenile court returned D.W. to father's custody on the condition that he not reside with mother or allow mother to have contact with D.W. outside third-party-monitored visitation. In so ruling, the juvenile court overruled the Department's concerns that father still posed a "high risk" to D.W.'s safety based on (1) father's conduct in June 2018, just a month after receiving therapy that included anger management, in verbally threatening a visitation monitor that "there's going to be trouble" if the monitor insisted upon keeping M.W. in his line of sight, in blocking the monitor's car in the parking lot, and in following the monitor's car for several blocks, and (2) father's continued use of marijuana and his job as a door-to-door marijuana delivery service.
Father's reunification with D.W. was short-lived. Less than a month after he regained custody, father and mother's sister got into a physical altercation with father's landlord where father struck the landlord in the head and face with a shovel out in front of his residence, with D.W. presumably inside. The Department filed a supplemental petition alleging that D.W. should again be removed from father's custody due to father's "violent and assaultive behavior [against the landlord] in the presence of [D.W.]." The juvenile court sustained the petition, removed D.W. from father and again placed her with paternal aunt, and set the matter for a permanency planning hearing.
In January 2019, father filed a petition pursuant to section 388 asking the juvenile court to return D.W. to his custody, to resume reunification services, or at a minimum, to allow him more visits with D.W. Father argued that he was entitled to this relief because (1) conditions had changed in light of his completion of (a) a combined anger management/domestic violence course, (b) 10 two-hour parenting workshops, (c) 16 one-hour healthy relationship workshops, and (d) two of three phases of the Dad's Back! Academy program entailing 30 days of six-hour classes, and (2) returning D.W. to his care was in her best interest because she had a "strong attachment" to father.
The juvenile court set the 388 petition for hearing along with the permanency planning hearing. Father testified. He admitted that it was a "mistake" to "g[e]t into" it with his landlord, but stated that after his recently attended classes, he now has a "peaceful aura around [him]" that makes it "literally impossible for someone to get under [his] skin" and anger him. Curiously, however, father said he was "far from angry" when he beat his landlord with the shovel.
The juvenile court denied father's 388 petition. The court found that father's recent efforts indicated "changing [circumstances]," not a changed circumstance. "This is a very long case with a very long history of violence and a relatively recent incident," the court explained, which "suggests . . . things . . . [have] not changed." The court further found that it was not in D.W.'s best interest "to delay permanency by dragging out the case any longer with additional" reunification services. The court then granted legal guardianship to the paternal aunt, finding that D.W. was adoptable but that she had a relative who was willing to be her legal guardian but not her adoptive parent.
Father filed this timely appeal.
DISCUSSION
Father argues that the juvenile court erred in denying his 388 petition. We review such a denial for an abuse of discretion. (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.)
I. Applicable Law
To establish entitlement to modification of a prior juvenile court order under section 388, the petitioning parent must show (1) "a change of circumstances," and (2) that the "modification of the prior order would be in the best interests of the minor child." (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223; In re Mickel O. (2011) 197 Cal.App.4th 586, 615 (Mickel O.).) In evaluating the petition, the juvenile court "may consider the entire factual and procedural history of the case." (Mickel O., at p. 616.)
The burden of making each showing rests with the parent (In re Angel B. (2002) 97 Cal.App.4th 454, 461 (Angel B.)), and that burden is particularly heavy where, as here, reunification services have been terminated. That is because, by that time, the focus of dependency proceedings has shifted to addressing the child's need for a "'stable [and] permanent'" home rather than the parent's desire for reunification. (In re Jasmon O. (1994) 8 Cal.4th 398, 419-420; cf. In re William B. (2008) 163 Cal.App.4th 1220, 1227-1228 [focus is on reunification at the outset of a juvenile dependency case].) Thus, courts insist that the circumstances be changed, not merely changing because the "stability [of] the child" is not "promote[d]" by "delaying" "the selection of a permanent home for a child" "[just] to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point." (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) And "stability and continuity" also "assume[] an increasingly important role" in evaluating "the child's best interest." (Angel B., at p. 464; In re Marilyn H. (1993) 5 Cal.4th 295, 310 ["after termination of reunification services," "continued care [by her current caregiver] is [presumptively] in the best interest of the child"].)
II. Analysis
A. Changed Circumstances
The juvenile court did not abuse its discretion in finding that the circumstances in D.W.'s case were merely changing, and had not yet changed. To be sure, father had recently taken some classes directed at how to control his violent and assaultive nature. But these classes—and father's testimony that they helped him achieve a "calm aura" that made him impervious to any and all future violence—have to be weighed against father's longstanding resort to violence and intimidation to get what he wants: He strangled his then-girlfriend in 2010, punched or pushed his uncle and then vandalized his car in 2016, he threatened and intimidated a monitor in June 2018, and then beat his landlord with a shovel in July 2018. Viewed in the context of the "entire factual and procedural history of the case" (Mickel O., supra, 197 Cal.App.4th at p. 616), the juvenile court acted well within its discretion in deeming father's recent efforts as evidence of changing circumstances rather than changed circumstances.
Father responds with several arguments. He argues that his testimony was enough to show he had changed. The court obviously found this testimony not to be credible, and we cannot—and, on these facts, would not—gainsay that credibility finding. (In re Lana S. (2012) 207 Cal.App.4th 94, 103.) He argues that his recent classes were the first to address his anger management issues and that this is a changed circumstance. But it is not. Some of father's therapy sessions in May 2018 addressed anger management skills, as father himself admitted when he testified, yet in the next two months, father proceeded to threaten and intimidate a monitor and beat his landlord with a shovel. Father relatedly blames the Department for not giving him more anger management treatment, but what matters is whether he has addressed his dangerous behavior—not why he has not addressed it in the past. Father argues that D.W. was not sitting nearby when he whacked his landlord with a shovel. But D.W.'s precise whereabouts do not matter given that the court could reasonably infer she was nearby because the incident occurred outside father's home, and given that D.W. was indisputably present when father beat up his uncle in 2016 and when he threatened and intimidated the monitor in June 2018. He finally argues that his marijuana use and dirty home should not be held against him, but father's violent behavior is sufficient reason by itself to conclude that circumstances had not changed.
B. Best interest of the child
The juvenile court did not abuse its discretion in finding that D.W.'s best interests would not be served by placing D.W. back with father for additional reunification services. In evaluating what is in a child's best interest, courts are to examine "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of th[e] problem; (2) the strength of the relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.) With regard to the first and third elements, the court exerted dependency jurisdiction over D.W. due to father's penchant for violence and his use of marijuana, and neither has been removed or ameliorated. Father's recent efforts to further educate himself on anger management coping skills is helpful, but his prior educational efforts did not stop him from resorting to such behavior in the past. Indeed, father's testimony that he was "far from angry" when he beat his landlord with a shovel only confirms the reasonableness of the court's finding that father had not removed or ameliorated his anger issues because that testimony is either a lie (which undercuts father's testimony that he is now a paragon of tranquility) or is proof that father is capable of resorting to extreme violence while perfectly calm (which undercuts his argument that learning how to control his anger makes him safe). Father's continued use of marijuana, even for medicinal purposes, also continues to pose a risk to D.W. because, at age four, she is still a child of tender years. (In re Drake M. (2012) 211 Cal.App.4th 754, 766-767 [noting presumption of risk from substance abuse as to children of "tender years"]; In re Christopher R. (2014) 225 Cal.App.4th 1210, 1219 [children six years of age or younger are of "'tender years'"].) And while D.W. has a good attachment to father, she had also lived with the paternal aunt for over half of her life by the time of the hearing, had "bond[ed]" with her, and "continue[d] to thrive" in the aunt's custody. Given these considerations, the juvenile court did not abuse its discretion in concluding that allowing D.W. to continue to be placed with paternal aunt rather than placed back with father was in her best interest, particularly given the elevated importance of stability and continuity at this late stage in the proceedings.
Father again raises several arguments. He argues that the juvenile court erred in not focusing on father's interest in reunification. However, as noted above, the law requires courts to focus on the child's need for stability and continuity—not the parent's desire for reunification—once, as is the case here, reunification services have been terminated. Father argues that the "problem which led to dependency" in this case was relatively minor—just anger issues and drug abuse—rather than physical or sexual abuse of a child. This attempt to minimize his transgressions not only tends to undercut father's portrayal of himself as a person taking responsibility for his actions, but also seems to urge the creation of a "But, hey, at least I didn't molest or beat my child" exception that appears nowhere in the law or policy underlying juvenile dependency law in general or section 388 in particular. Not surprisingly, we decline to fashion such an exception. Father lastly argues that there was no evidence that D.W. had bonded with the paternal aunt. But this ignores the evidence to the contrary in the record, which is cited above.
DISPOSITION
The orders of the juvenile court are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, P.J.
LUI /s/_________, J.
CHAVEZ