Opinion
E070101
07-30-2018
In re D.J., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. D.J., Defendant and Appellant.
William Hook, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIJ1500232) OPINION APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson, Judge. Affirmed. William Hook, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
The juvenile court terminated the parental rights of D.D.J. (Father) and K.L.M. (Mother) to their son, D.D.J.J. (D.J.). (Welf. & Inst. Code, § 366.26, subd. (b)(1).) The juvenile court also denied Father's request to change a court order. (§ 388.) Father contends the juvenile court erred by (1) terminating his parental rights, and (2) denying his request to change a court order. We affirm the judgment.
All subsequent statutory references will be to the Welfare and Institutions Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A. BACKGROUND
Father had three children: (1) A., who was 14 years old in 2015, and who resided with her mother, N.C.; (2) Z., who was six years old in 2015, and who also resided with N.C., although Mother was Z's mother; and (3) D.J., who was male and was born in January 2010.
Father did not spend time with Mother while Mother was pregnant with D.J. When D.J. was born, he was removed from Mother's care, in Los Angeles County, due to (1) Mother's marijuana abuse; (2) Mother's lack of adequate housing; and (3) Mother's four older children being in the care of other people. Father was informed that D.J. was in foster care. Father participated in family preservation court. Father attended an anger management program. In July 2010, the Los Angeles County case was closed with D.J. being placed in Father's care.
In 2012, Father was arrested for violating a domestic violence restraining order involving a former girlfriend. Father was placed on summary probation through 2017. Father was required to attend a 52 week domestic violence program. In 2015, Father had not yet completed the course.
B. DETENTION
On March 5, 2015, Riverside Police Officer Macias executed an arrest warrant for Father for a domestic violence incident that was alleged to have occurred on January 15, 2015. On January 15, Father's girlfriend was D.G. Father and D.G. had been arguing. Father pulled D.G. into a barbershop, slapped her face, and dragged her along the floor. Employees asked Father to leave.
On March 5, when the arrest warrant was executed, D.J. was with Father. Father said that Mother was not involved in D.J.'s life. Father's girlfriend on March 5 was N.G., who said she had not suffered domestic violence by Father during their two-month relationship. Father was taken to jail, and D.J. was placed in foster care.
C. JURISDICTION
D.J. said that D.G. lived with D.J. and Father until Father " 'kicked her out.' " D.J. said that Father and D.G. frequently argued. D.J. recalled seeing Father hit D.G.'s face. D.J. said Father spanks D.J.'s buttocks with a belt when D.J. misbehaves. Father remained incarcerated. D.J. visited Father at the jail for 50 minutes. D.J. appeared happy and comfortable while visiting Father.
The juvenile court found true the allegations that (1) Father was arrested for domestic violence on March 5, 2015 (§ 300, subd. (b)); (2) Father had an arrest/conviction history for domestic violence and was currently on summary probation (§ 300, subd. (b)); (3) Father had a criminal history including felony convictions for robbery, stalking, and burglary (§ 300, subd. (b)); and (4) Father was incarcerated and unable to provide support for D.J. (§ 300, subd. (g)). The juvenile court ordered the County of Riverside Department of Public Social Services (the Department) to provide Father with reunification services, including counseling and parenting classes.
D. SIX-MONTH REVIEW
Father completed the parenting class in May. Father was released from jail on September 9, 2015. Father moved in with his girlfriend, N.G. In December, Father had to leave N.G.'s residence after she reunified with her husband. Father was unemployed and homeless. Father had not yet started his individual counseling.
D.J. began attending kindergarten and was doing well in school. D.J. was doing well in his foster home; he was affectionate and at ease with his foster parents. D.J. appeared to have a strong attachment to Father; D.J. looked forward to spending time with Father. Father's supervised visits with D.J. occurred once a week for two hours. Father was nurturing and attentive to D.J. during the visits, while they talked and played games.
E. TWELVE-MONTH REVIEW
In February 2016, Father moved into a house with his male friend and the friend's girlfriend. Father was searching for employment. Father completed his individual counseling intake assessment on April 5. D.J. continued to do well in school and in his foster home. Father's unsupervised visits with D.J. were once a week for eight hours at Father's house. Father and D.J. talked and played games. The visits went well and D.J. appeared to be bonded to Father.
F. EIGHTEEN-MONTH STATUS REVIEW
Father was rereferred to individual counseling on July 12, July 31, and August 3. Father completed his first individual counseling session on August 11. The counselor concluded that Father would need a minimum of 12 sessions. Father attended three counseling sessions. Father was "very dismissive and negating on working on setting goals for treatment." Father appeared "resistant to identifying problem areas," such as accepting domestic violence as a problem in his life. Father missed counseling appointments on August 25, September 1, and September 29. Due to poor attendance, Father was terminated from the counseling program.
Father had reached the statutory maximum of 18 months of reunification services, and therefore, services could no longer be provided to him. The Department explained the timeline to Father, but he failed to appreciate the urgency of the situation. The Department concluded Father failed to address his unresolved issues related to domestic violence. The Department explained that, due to Father's refusal to participate in individual counseling, the Department had "concerns as to his social control and ability to accept responsibility, commitment [to] refraining from acts of domestic violence, and resolution of other issues that may impair the safety of the child."
As part of Father's criminal case, he participated in an anger management/domestic violence program. A November 2016 report of Father's progress in the program was provided. The therapist or group facilitator in that program estimated that Father posed a low risk of reoffending. In the "evaluation" section of the program report, for topics such as acceptance of responsibility, participation, and attitude, all the categories were marked as "unknown." For example, whether Father had accepted responsibility was marked as unknown. The report reflected that Father's continued participation in the anger management/domestic violence program was recommended. Father was ultimately dismissed from the program due to excessive absences. Father's girlfriend in September 2016, J., had a 2014 conviction for domestic violence against a spouse.
Father was on formal probation for a September 2015 domestic violence conviction, presumably in connection with the March 15, 2015, arrest. --------
D.J. was doing well in first grade and in his foster home. D.J. had a strong attachment to his foster parents and to Father. In July, Father missed two visits with D.J. due to a job Father had at that time. D.J.'s weekend and overnight visits with Father went well. D.J. appeared happy after the visits. The juvenile court terminated Father's reunification services.
G. TERMINATION REPORT
Father and D.J. continued visiting and the visits went well. Father stopped communicating with the Department. The Department concluded that because Father did not resolve his domestic violence issues, Father posed "[a] very high risk of detriment" to D.J. The Department recommended the juvenile court terminate Father's parental rights.
In February 2017, Father obtained a domestic violence restraining order protecting himself and D.J. from J., through March 17, 2022. Father's therapist provided a letter dated June 17, 2017, reflecting Father attended eight therapy sessions when reunification services were being offered to him, and four therapy sessions after reunification services were terminated. The therapist explained that Father "has been open minded regarding his issues of domestic violence." The therapist opined that Father had positive insights into his history of domestic violence.
In May 2017, D.J. was moved to a prospective adoptive home. The prospective adoptive parents were relatives of D.J.'s foster parents. D.J. adjusted well to the prospective adoptive parents' home. D.J. said he wanted to continue living with the prospective adoptive parents.
H. REQUEST TO CHANGE A COURT ORDER
Father filed a request to change a court order. (§ 388.) Father requested the juvenile court change its order terminating his reunification services. Father explained that circumstances had changed because Father participated in individual counseling, took part in a domestic violence program, maintained stable housing, and had consistent quality visits with D.J. Father requested six months of reunification services for the purpose of transitioning D.J. back into Father's care. Father asserted the change order would be in D.J.'s best interests because D.J. was bonded to Father and Father had gained the ability to be a healthy parent. The juvenile court ordered a hearing on Father's request.
I. STATUS REVIEW
An August 2017 domestic violence program report reflected Father had been reinstated to Olive Branch's domestic violence program. Father attended 38 sessions, but could not receive credit for 27 sessions he attended because he had not paid for the 27 sessions. A domestic violence program report reflected that, on September 5, 2017, Father enrolled in a 52-week domestic violence program at The Center for Life Skills Coaching. The report reflected Father's risk of reoffending was seven out of 10, with 10 being high. A September 19 report by Life Skills reflected Father's risk of reoffending was 10 out of 10 and he was being terminated from the program. It was discovered Father had fabricated his referral to Life Skills to avoid paying the outstanding balance he owed to Olive Branch.
D.J.'s therapist provided a letter. The therapist explained that D.J. was "very excited" about being adopted. D.J. referred to his prospective adoptive siblings as his brothers and sisters. When the therapist discussed visitation with Father, D.J. felt once a month visits would be sufficient. The therapist expressed concern that D.J.'s visits with Father were detrimental to D.J. During visits, Father "discuss[ed] placement and/or ma[d]e false promises to the child." For example, Father told D.J. that D.J. "will earn an Xbox and other items if he 'tells the Judge he wants to live with his father.' " On November 20, 2017, D.J. told the Department he wanted to stay with his prospective adoptive family.
On November 20, Father brought his daughter, D.J.'s half sister, to a supervised visit with D.J. A Department social worker informed Father that the half sister would need to wait in the lobby because she was not authorized to visit with D.J. Father shouted at the social worker, in D.J.'s presence, " 'You are a vindictive, dirty, and[] conniving bitch.' " During visits, Father showed "some growth in his parenting skills; however, he [experienced] challenges in balancing his attention between his cell phone conversations and the child when they [were] together at the visit." The Department concluded that Father failed to demonstrate an ability to resolve conflict without aggression or violence. The Department opined that Father posed a risk to D.J.'s safety.
J. HEARING
The juvenile court held a combined hearing on Father's request to change a court order and the termination of parental rights.
D.J. testified at the hearing. D.J. loved Father. D.J. liked living with Father. D.J. also liked living with his prospective adoptive family. D.J. did not know if he would prefer to live with Father or his prospective adoptive family. If D.J. were to live with his prospective adoptive family, then he would like to visit Father.
Linda Word, a Department social worker, testified at the hearing. Word said that Father had not completed his anger management class or his counseling sessions. Word said that, if the juvenile court were to grant Father further reunification services, then Father would "need[] to engage in anger management, as well as domestic violence" sessions. Word did not support Father's request to change a court order. Word explained, "I'm not in favor of it because he has not addressed the issues of some domestic violence. He's been in several individual counseling [sic], he's not completed it, as to my knowledge. And the ones that he did go to, they are not considered paid for, so they don't count until then. And he has not demonstrated that he can actually—he did not demonstrate that he can actually keep [away] from the women that actually have domestic violence disputes."
Word explained that Father did not apply lessons from the various classes and therapy sessions in his daily life. Word said Father was involved in a domestic violence incident with his live-in girlfriend in January 2017. In November 2017, Father called Word a conniving bitch for not permitting D.J.'s half sister to attend Father's visit with D.J.
Father testified at the hearing. Father found the parenting course he completed to be helpful. Father used techniques from the course when visiting with D.J. Father also thought the individual counseling sessions were helpful. During the sessions, Father learned to focus on being a father, rather than on being in a romantic relationship. Father has implemented that lesson by focusing on his children and not being in a romantic relationship.
Father said he was on probation, and was required to complete a 52-week domestic violence program. Father estimated that he completed 45 to 47 sessions. Father was going to pay part of the bill he owed for the sessions that day. Father found the domestic violence classes to be "very helpful." Father hoped to finish the domestic violence program within a month. Father explained that the domestic violence program included anger management, but if the court wanted him to take a separate anger management course, then he would comply with that order.
Father explained that he had "matured a lot" since February 2017, when his reunification services were terminated. Father said that he was now more serious about being a father and understood the importance of healthy relationships. Father denied calling Word a bitch. Father explained that he had a particularly close relationship with D.J. because Father had been a single parent for D.J. since D.J. was four months old.
On cross-examination, Father said he participated in a 52-week anger management/domestic violence course as part of a prior case, in 2010. As part of the 2015 criminal case, Father was again required to participate in an anger management/domestic violence course. In February 2018, Father had not yet completed the course.
Father denied that he was involved in a domestic violence incident with J. in January 2017. Father then admitted that "perhaps" J. committed acts of domestic violence while in a relationship with Father. Father obtained a five-year restraining order against J.
K. ARGUMENT AND RULING ON FATHER'S REQUEST TO CHANGE A COURT ORDER
During closing arguments, Father's attorney asserted the court should grant Father's request to change a court order because Father benefitted from counseling and parenting classes, which was evidenced by Father not being in a romantic relationship and focusing on his children. Father's attorney asserted that Father would likely complete his 52-week domestic violence course within the month, and that D.J. loved Father. Father's attorney asserted that if the court ordered an additional six months of services, such as joint therapy between Father and D.J., then D.J. could be transitioned to Father's care.
D.J.'s attorney argued, "This was the same case plan that was afforded to [Father] when we first came into this court back in March of 2015, and, unfortunately, [F]ather has not completed anything except for the parenting." D.J.'s attorney asserted there was no evidence reflecting Father was dismissed from counseling due to completing the sessions and benefitting from them. In regard to the anger management classes, D.J.'s attorney asserted Father had been taking the classes since 2010. D.J.'s attorney contended that Father's failure to complete the case plan demonstrated that circumstances had not changed.
In regard to D.J.'s best interests, D.J.'s attorney asserted that D.J. was unable to decide where he wanted to live—that he liked living with both Father and his prospective adoptive family. D.J.'s attorney contended that because Father did not demonstrate changed circumstances, it was not in D.J.'s best interests to be transitioned back to Father's care. D.J.'s attorney asserted the juvenile court should deny Father's request to change a court order.
The Department joined in the arguments made by D.J.'s attorney. The Department asserted Father had been working on services for years, without completing them, and therefore, changed circumstances were not shown. As to D.J.'s best interests, the Department contended that D.J. had been a dependent for almost three years, and it was not in his best interests to extend services by another six months when Father had not demonstrated an ability to complete services.
The juvenile court found that Father's "circumstances remain changing, not completely changed." The juvenile court found D.J. had been a dependent for over two and one-half years, and that it was not in D.J.'s best interests to extend services for another six months. The juvenile court denied Father's request to change a court order.
L. ARGUMENT AND RULING ON THE TERMINATION OF PARENTAL RIGHTS
In regard to terminating parental rights, the Department asserted the parental bond exception was not met in the case because the bond between Father and D.J. did not outweigh the benefits of adoption. The Department pointed to D.J.'s statement that he wanted to visit Father once a month as evidence that D.J. was settled in his prospective adoptive home and would gain the greater benefit from adoption.
D.J.'s attorney argued in favor of terminating parental rights. D.J.'s attorney asserted D.J. had been in foster care for three years, during which time Father could have completed services but failed to do so. Father's attorney argued that the parent-child bond exception was applicable. Father's attorney asserted that Father regularly visited D.J. and that Father and D.J. had a parent-child relationship, i.e., Father was more than a friendly visitor.
The court found that Father and D.J. shared a bond, but that after three years Father was not able to reunify with D.J. The juvenile court found D.J.'s need for permanence outweighed the parent-child bond. The juvenile court terminated Mother's and Father's parental rights to D.J.
DISCUSSION
A. REQUEST TO CHANGE COURT ORDER
Father contends the juvenile court erred by denying his request to change a court order.
A parent may, upon the ground of changed circumstances, petition the juvenile court to modify an order previously made. (§ 388, subd. (a)(1).) The parent "must show changed, not changing, circumstances. [Citation.] The change of circumstances . . . 'must be of such significant nature that it requires a setting aside or modification of the challenged prior order.' " (In re Mickel O. (2011) 197 Cal.App.4th 586, 615.) "Whether the juvenile court should modify a previously made order rests within its discretion, and its determination may not be disturbed unless there has been a clear abuse of discretion." (In re J.C. (2014) 226 Cal.App.4th 503, 525.)
Father took an anger management course in 2010, as part of D.J.'s first dependency case. In 2012, Father was arrested for violating a domestic violence restraining order involving a former girlfriend. Father was placed on summary probation through 2017. Father was required to attend a 52-week domestic violence program. As part of the 2015 criminal case, Father was again required to participate in an anger management/domestic violence course. In February 2018, Father had not yet completed the course.
Father completed his parenting class in May 2015. Father's reunification services were terminated on February 21, 2017. Father participated in eight counseling sessions prior to services being terminated and four sessions after services were terminated. Thus, from the time reunification services were ordered terminated to the time Father requested a change in that order, in regard to classes and counseling, the changed circumstance consisted of Father completing four additional individual counseling sessions.
The other changed circumstances cited by Father were (1) that he maintained stable housing, and (2) that he maintained consistent quality visits with D.J. Father's visits with D.J. were mostly good during the three-year case. Thus, good visits were not a changed circumstance. Father moved into a home with his male friend in February 2016. Father had eight-hour unsupervised visits with D.J. at Father's house. Also, Father had overnight visits with D.J., which presumably occurred at Father's house. Father said he did not want D.J. returned to his care until Father had his own house; however, given that multi-hour visits occurred at Father's residence, it is reasonable to infer that Father had stable housing. Accordingly, stable housing was not a new circumstance.
In sum, the evidence of changed circumstances consisted of Father participating in four additional counseling sessions. The juvenile court could reasonably conclude that four additional counseling sessions was too little progress to constitute a change in circumstances. Accordingly, the juvenile court reasonably denied Father's request to change a court order on the basis of Father's failure to prove a change in circumstances.
Father contends his circumstances changed from the start of the case in 2015 to the time of the hearing on his request in 2018. Father asserts that at the beginning of the case, D.J. was at risk due to Father's unaddressed issues involving domestic violence. For example, in 2015, Father was arrested on a warrant due to domestic violence. Father asserts that in 2018 he had participated in anger management and individual counseling, and "gained insight into his domestic violence issues."
The juvenile court could reasonably conclude that Father's issues involving domestic violence were unresolved in February 2018. First, at the hearing on Father's request, he denied that he was involved in a domestic violence incident with J. in January 2017. Father then admitted that "perhaps" J. committed acts of domestic violence while in a relationship with Father. Father obtained a five-year restraining order against J. Father's denial of the January 2017 domestic abuse reflects he has not accepted the problem that domestic violence posed in his life.
Second, Father was required to take domestic violence/anger management courses in 2010, 2012, and 2015. In 2018, Father had not yet completed a domestic violence/anger management course. Father's failure to complete the courses reflects he has not accepted the problem that domestic violence posed in his life. Third, in November 2017, Father reacted aggressively to Word not permitting D.J.'s half sibling to attend a visit with D.J. Father called Word a conniving bitch. Father's aggressive reaction reflects he suffers difficulty in controlling his emotional responses.
Fourth, on January 8, 2018, the Life Skills program rated Father's risk of reoffending an eight out of 10, with 10 being high. The high-risk rating reflects Father had not yet resolved his domestic violence issues. In sum, the record supports a finding that Father's circumstances had not changed because Father had not resolved his issues with domestic violence. Therefore, the juvenile court did not abuse its discretion by denying Father's request to change a court order.
B. TERMINATION OF PARENTAL RIGHTS
Father contends the juvenile court erred by terminating his parental rights, rather than applying the parent-child bond exception. (§ 366.26, subd. (c)(1)(B)(i).)
If a juvenile court finds a dependent child is adoptable, then it will terminate parental rights unless one of the statutorily enumerated exceptions is applicable. (§ 366.26, subd. (c)(1).) One of the enumerated exceptions provides that parental rights shall not be terminated if "[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).)
The juvenile court found Father maintained regular visitation and contact with D.J. Accordingly, we focus on the second prong, which concerns whether D.J. will benefit from continuing the relationship. We apply the abuse of discretion standard of review. (In re K.P. (2012) 203 Cal.App.4th 614, 622.)
"The benefit to the child from continuing such a relationship must . . . be such that the relationship ' "promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." ' " (Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) " 'The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the child's life spent in the parent's custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child's particular needs.' " (In re Jason J. (2009) 175 Cal.App.4th 922, 937-938.)
In February 2018, D.J. had just turned eight years old. D.J. was removed from Father's custody in March 2015, shortly after he turned five years old. Thus, D.J. spent five years in Father's care and three years in foster care. D.J. and Father love one another, and they mostly interact in a positive manner. During visits, Father and D.J. talked and played games. D.J. looked forward to visits with Father. The foregoing evidence reflects Father and D.J. had primarily positive interactions.
D.J. earned average grades in first grade. In October 2017, in second grade, D.J. was having trouble listening and following directions in class. D.J. was evaluated for attention deficit hyperactivity disorder. D.J.'s school requested D.J. be evaluated for an individualized education program (IEP). The school wanted to evaluate D.J.'s behavior, speech issues, and handwriting issues. Father held educational rights for D.J. and would not permit an assessment of D.J. Father "refused to sign the document, and he said he didn't want those people to label his child as something because he knew what they do." D.J. was not evaluated for an IEP.
In December 2017, D.J.'s therapist wrote a letter about D.J. The therapist diagnosed D.J. with adjustment disorder with anxiety. The therapist explained, "[D.J.]'s behavior at home and at school is disruptive, he at times will not listen and talks back to authority figures. This behavior is expected to be due to the confusion of the visits, [D.J.'s] perception of lack of stability and the promises from his father." Despite warnings from the Department, Father repeatedly discussed placement with D.J. Father promised D.J. toys, such as an Xbox or Playstation in exchange for D.J. telling the juvenile court he wanted to live with Father.
The record reflects D.J. suffered anxiety due to the lack of stability in his life. The anxiety caused D.J. to act out at home and at school. D.J.'s poor behavior led to the school wanting to intervene and assess him for an IEP. Father made the problem worse by repeatedly discussing placement issues with D.J. Thus, rather than help D.J. with the difficulties he was experiencing around his lack of stability, Father continued to make the issue worse—despite being warned. It can be concluded from this evidence that D.J. needed stability and emotional support.
In sum, D.J. spent five years in Father's care and three years in foster care. Father and D.J. primarily had positive interactions during their visits. However, D.J.'s need for permanence increased as time passed. D.J.'s poor behavior and anxiety indicate that three years in foster care was becoming too much for the eight-year-old child. Without permanence, D.J. could continue to struggle both at home and in school due to his anxiety. Thus, the juvenile court could reasonably conclude from this evidence that D.J.'s need for permanence was of paramount importance after three years in foster care. The juvenile court did not abuse its discretion by concluding D.J. would not benefit from continuing his relationship with Father given D.J.'s strong need for permanence. (§ 366.26, subd. (c)(1)(B)(i).) Accordingly, the juvenile court did not err by not applying the parent-child bond exception.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. McKINSTER
J.