In re J.G. CA4/3 ( 2021 )

Filed 10/27/21 In re J.G. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re J.G., a Person Coming Under the
Juvenile Court Law.
ORANGE COUNTY SOCIAL
SERVICES AGENCY,
G060062
Plaintiff and Respondent,
(Super. Ct. No. 19DP1290)
v.
OPINION
L.G.,
Defendant and Appellant.
Appeal from postjudgment orders of the Superior Court of Orange County,
Robert Gerard, Judge. Affirmed.
Lauren K. Johnson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre,
Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
* * *
This is an appeal in a juvenile dependency proceeding. Following a pattern
that we, sadly, see all too frequently, L.G. (Father) had his reunification services
terminated but then, at the last possible moment, began making positive, genuine changes
in his life to address the drug addiction that led to the removal of his child. On the day of
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the Welfare and Institutions Code section 366.26 hearing (.26 hearing), Father filed a
petition under section 388 seeking additional reunification services. The court held an
evidentiary hearing and gave careful consideration to the matter, but ultimately
determined that Father’s circumstances, though moving in the right direction, had not
sufficiently changed to warrant a change in the court’s previous order. It proceeded to
terminate Father’s parental rights and select adoption as the child’s permanent plan.
On appeal, Father contends the court abused its discretion in denying his
section 388 petition. While we join the trial court in expressing our admiration of
Father’s genuine effort at reforming his life, as a legal matter, there is simply nothing in
the record to suggest the trial court abused its discretion. Father also contends the court
erred in terminating his parental rights because the parent/child bond exception applied.
However, he failed to raise that issue in the trial court and thus waived it. Accordingly,
we affirm.
FACTS
Detention
In October 2019, one-day-old J.G. was taken into protective custody after
both the child and the mother tested positive for methamphetamine after J.G.’s birth.
M.R. (Mother) also had a preliminary toxicology screen for methamphetamine and
admitted both to illicit drug use and alcohol abuse during the pregnancy. In addition,
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All statutory references are to the Welfare and Institutions Code.
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Mother admitted to abusing drugs with Father during her pregnancy, noting that she used
methamphetamine with Father just three days prior to the child’s birth. Father
alternatively denied having used illicit drugs for about a year but admitted to the recent
use with Mother. Father also denied the need for drug treatment. Father claimed to have
used drugs with Mother to not be a “‘party pooper.’”
Mother and Father had a history of domestic violence with a criminal
restraining order issuing against Father in 2018. The parents had continuing contact in
violation of that order.
Mother self-reported being diagnosed with bipolar disorder and was
prescribed psychotropic medications. Additionally, neither parent had stable housing.
On October 18, 2019, SSA filed a section 300, subdivision (b)(1)
jurisdictional petition detailing both parents’ unresolved drug abuse issues, their history
of domestic violence, and Mother’s mental health issues. Three days later, the juvenile
court ordered J.G. detained from parental custody pending jurisdictional proceedings.
The parents were granted six hours of supervised visitation a week, with the parents to
visit separately. That same day, SSA placed the child with the paternal grandparents.
Jurisdiction and Disposition
As of late November 2019, Father was visiting consistently with J.G., with
the paternal grandmother noting that Father was appropriate during these contacts.
Meanwhile, Father had not yet discussed services with SSA, having missed his two
appointments. He was a no-show for his first three random drug tests.
On December 3, 2019, the court sustained SSA’s jurisdictional petition, and
set the matter out for disposition.
On December 9, 2019, the paternal grandmother informed SSA she was no
longer comfortable supervising visits, as the previous day (December 8) Father had been
aggressive towards family members and police were called to her home. The
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grandmother was instructed to tell the parents to arrange visits through SSA. On
December 19, 2019, the paternal grandmother again noted her unease with supervising
visits, stating that the parents were inconsistent with visitation. She reported that Father
came over a day or two after the December 8 incident, banging on their door and
becoming upset they had changed the locks. Meanwhile, Father was still not responding
to SSA efforts to contact him, nor was he drug testing.
On January 14, 2020, minor was declared a dependent of the juvenile court
and removed from parental custody. The parents were granted reunification services.
Reunification Period
As of SSA’s principal report for the six-month reunification review
hearing, J.G. was thriving in the paternal grandparents’ home, and had adjusted well in
their care, with J.G. described as a generally happy child. The paternal grandparents
hoped for Father to commit to sobriety, but were prepared to adopt J.G. in the event
reunification efforts proved unsuccessful.
Father’s compliance with his case plan was described as “none.” He had
not even signed the case plan as he had not made himself available to the social worker.
His case plan required him to participate in general counseling, domestic violence
education, parenting education, substance abuse testing, a 12-step program, and a
substance abuse outpatient or inpatient program. When the social worker finally reached
Father by telephone, he hung up on her as she was explaining the importance of
participating in services. He had been referred to random drug testing but had not
participated at all. Father admitted that he was not sober and continued to use
methamphetamine. He was transient during this period and sleeping in his car.
From mid-February through the end of March 2020, Father was
incarcerated for domestic violence against Mother. He was on informal probation, which
required him to complete a batterer’s intervention program, drug test, and report to his
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probation officer every evening. In June 2020, his probation officer reported Father was
not participating in any of the probation ordered services and was in violation of his
probation.
Father had been granted visitation three times per week for a total of six
hours. Father never contacted SSA to arrange for visitation. The paternal grandmother
reported Father would sometimes call her asking for food, but never inquired about the
child.
On August 10, 2020, the juvenile court terminated the parents’ reunification
services and scheduled a .26 hearing for December 2020.
Post-reunification Period
Initial .26 Hearing Reports
SSA recommended terminating parental rights and freeing J.G. for
adoption. The paternal grandparents remained committed to adopting minor.
Although Father’s reunification services had been terminated, he was still
entitled to visitation with the child. Father had two video visits with J.G. in early October
2020. However, he had his referral terminated due to multiple no shows, then reinstated,
and then once again had the referral terminated for nonparticipation. He was incarcerated
again in late October and called regularly to check on J.G. J.G. did not recognize
Father’s voice, but smiled and giggled during the calls. Father was released from jail on
January 26, 2021.
Meanwhile, in late September 2020, Mother gave birth to another child,
who was subsequently detained and made the subject of child protective proceedings in
Merced County. Child protective services in Merced were recommending that
reunification services be bypassed as to that child.
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388 Petition
On February 3, 2021, Father filed a 388 petition requesting either resumed
reunification services or J.G.’s placement in legal guardianship rather than adoption. The
petition cited Father’s approximately one year of sobriety and enrollment in drug
treatment upon his release from jail, and, as to the child’s best interest, declared “[a] son
should be able to know his father, be raised by his father, and benefit from his father’s
company and commitment to sobriety. Future trauma stemming from identity as an
adoptive child when his father wants to be his father will not benefit [J.G].”
Final .26 Hearing Reports
In early February 2021, Father’s probation officer relayed that Father
absented himself for the past year. Father did not enroll in required programs. He was
constantly using drugs the prior year and high during some calls, and failed to drug test
after a February 2020 positive result for methamphetamine. Shortly afterward, Father
called the social worker and said that he was living in an inpatient treatment facility,
poised to begin batterer’s treatment, and had been sober for about a year. Father stated he
had not requested visits because he was living on the streets, was trying to get sober, and
had left in July 2020 to Northern California. He claimed to have proof of his sobriety
from his probation officer and child services in a different county. In addition, Father
had called the paternal grandparents three times to talk with J.G.
In early March 2021, a social worker from Merced County reported that her
agency was recommending reunification bypass for Father since Father had not made
himself available from the inception of the case and that Father did not initiate any
services or drug testing with Merced County. That same day, Father’s probation officer
noted that Father had yet to provide proof of enrollment in any services. The social
worker was able to obtain proof that Father was living in a transitional living program.
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However, Father’s case manager at the transitional living program had to obtain Father’s
consent to disseminate any case information.
As for visitation, Father had two in-person visits with J.G. at the paternal
grandparents’ home in mid-February, engaging in appropriate and affectionate
interactions both times. Father continued to telephone the child, who now recognized
him over the phone and called him “Papa.”
Section 388/.26 Hearing
On March 15, 2021, the juvenile court granted Father a hearing on his 388
petition and promptly began the hearing. In addition to the testimony from Father and the
paternal grandfather, the court accepted into evidence multiple enrollment confirmations
for programs, and clean drug test results from late January 2021 through mid-March 2021
submitted by Father.
Testimony of Father
Father testified that he was incarcerated twice in 2020 in Orange County:
first, from February 14, 2020, through March 29 of 2020; second, from October 30, 2020,
through January 26, 2021. There were no services available during his incarceration due
to the pandemic. He did not engage in services after his first release in early 2020
because he was homeless and was focused on getting off the streets and getting sober.
The former incarceration was due to drug paraphernalia and possession of counterfeit
bills, while the latter was due to violating a protective order as to Mother as well as
violating probation. Father testified he had not used methamphetamine since mid-
February 2020. He testified he stopped using drugs because he was incarcerated, which
gave him a moment of clarity and he wanted to better himself. However, Father admitted
to pleading guilty in November 2020 to possessing drug paraphernalia in April 2020.
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Father had gone to Merced County without his probation officer’s permission in the
summer of 2020.
Father was now employed as a window washer. He entered his current in-
house substance abuse program a couple days after his January 2021 release from
custody. Father provided a release of information for the social worker the day before his
testimony. He was participating in drug treatment. However, he had not attended any
group meetings or therapy sessions due to his work schedule. Father enrolled in a
batterer’s treatment program in late February 2021 at the prompting of his probation
officer and had attended two classes. Father was dealing with his drug abuse triggers.
He also had four random drug tests at his residential program, all negative.
Father testified that his two recent supervised visits with J.G. went well,
and he felt a connection with the minor.
Father testified he was being offered reunification services in Merced
County. Father vowed to participate in services if offered additional reunification time.
Testimony of Paternal Grandfather
The paternal grandfather testified Father was working and “staying out of
trouble,” and had not used drugs for almost a year. The paternal grandfather agreed not
to let Father into the home if he was under the influence of drugs, and to alert SSA of any
concerns he had about Father in the event Father was granted renewed reunification
services. Father had the characteristics to be a good father and was “very attentive” to
J.G. during visits.
Ruling
On March 16, 2021, after argument from all counsel, the juvenile court
noted Father had made some progress but “the reality is . . . that the rehabilitation process
takes longer than a few weeks,” and Father’s circumstances could not be considered
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changed. In addition, “the legal focus of the case shifted from parents to child when
reunification services were terminated.” The court denied Father’s 388 petition.
The court turned to the .26 hearing the following day. Father’s counsel
noted that Father had hoped the court would grant him further reunification services and
merely lodged a generic objection to the prospective .26 hearing findings and orders. He
did not submit any additional evidence or offer any specific objection to terminating his
parental rights. The court adopted SSA’s proposed findings and orders, terminating
parental rights and freeing J.G. for adoption. On March 26, 2021, Father’s counsel filed a
timely notice of appeal stating Father was appealing from the March 17, 2021 order
terminating parental rights.
DISCUSSION
Denial of the Section 388 Petition
Father’s notice of appeal is from the court’s order on the .26 hearing,
though his argument is primarily directed at the court’s order denying his section 388
petition. Nevertheless, because we liberally construe the notice of appeal, we will
consider Father’s arguments. (In re Madison W. (2006) 141 Cal.App.4th 1447, 1450-
1451 [construing notice of appeal that only referenced termination order to also include
order denying 388 petition].) SSA agrees with this conclusion.
“A juvenile court order may be changed, modified or set aside
under section 388 if the petitioner establishes 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.) “After the termination of reunification services, the parents’ interest in the care,
custody and companionship of the child are no longer paramount. Rather, at this point
‘the focus shifts to the needs of the child for permanency and stability [citation].’” (In re
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Stephanie M. (1994) 7 Cal.4th 295, 317.) Accordingly, “after reunification services have
terminated, a parent’s petition for . . . reopening reunification efforts must establish how
such a change will advance the child’s need for permanency and stability.” (In re J.C.
(2014) 226 Cal.App.4th 503, 527.) “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.” (In re Shirley K. (2006) 140
Cal.App.4th 65, 71.)
Father’s brief on appeal spends a great deal of time dwelling on whether he
established a changed circumstance, but it hardly touches upon the issue of whether a
change in the court’s order would advance J.G.’s need for permanency and stability.
Here is the extent of what Father has to say: “In the present case, when father was
allowed personal visits, the visits went very well. The child seemed to really enjoy
spending time with father. Father did all of the things a doting parent might do under
such circumstances—play, soothe, and share love. The record in this case show[s] a very
high level of interaction between Father and [J.G.] after services were denied.”
The notion of a child’s best interests was analyzed in detail in In re
Kimberly F. (1997) 56 Cal.App.4th 519. That opinion encourages courts to examine
three factors: “the seriousness of the reason for the dependency in the first place,” “the
existing bond between the parent and child,” and “the strength of the child’s bond to his
or her present caretakers, and the length of time a child has been in the dependency
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system in relationship to the parental bond.” (In re Kimberly F., at pp. 530-531.) That
court was dismissive of “the notion that just because a parent makes relatively last-
minute (albeit genuine) changes he or she is entitled to return of the child . . . .” (Id. at
p. 530.) And it was particularly skeptical of such changes when the parent loses custody
of a child due to drug addiction and does not comply with services during the
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This approach has been criticized on the ground that it gives too much
weight to the parent’s interests. (See In re J.C., supra, 226 Cal.App.4th at p. 527.)
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reunification period: “It is the nature of addiction that one must be ‘clean’ for a much
longer than 120 days to show real reform.” (Id. at p. 531, fn. 9.)
None of these factors support changing the court’s order, much less finding
the trial court abused its discretion in refusing to change its order. A couple of enjoyable
play dates simply are not enough, when compared with J.G.’s entire lifetime of successful
bonding with the caretakers. There is an urgency to dependency proceedings involving
very young children. (Compare § 361.5, subd. (a)(1)(A) [for children three years of age
or older, parents shall be provided 12 months of reunification services] with subd.
(a)(1)(B) [for children under three years of age, parents shall be provided six months of
reunification services].) Here, J.G. was removed at birth and Father squandered his
reunification period. While Father made a promising start in reforming his life, the time
had come for J.G. to benefit from a permanent plan. Unfortunately for Father, his
changes were made much too late in the process.
The Beneficial Parent/Child Relationship Exception to Adoption
Father also contends the court erred in terminating his parental rights
because the parent/child-bond exception applied. (See § 366.26, subd. (c)(1)(B)(i)
[exception to terminating parental rights where “termination would be detrimental to the
child” because “[t]he parents have maintained regular visitation and contact with the
child and the child would benefit from continuing the relationship”].) “From the statute,
we readily discern three elements the parent must prove to establish the exception: (1)
regular visitation and contact, and (2) a relationship, the continuation of which
would benefit the child such that (3) the termination of parental rights would
be detrimental to the child.” (In re Caden C. (2021) 11 Cal.5th 614, 631.)
However, Father did not argue this exception to the trial court and thus
waived the issue on appeal. At the .26 hearing, Father’s counsel (not Father) merely
appeared and lodged a generic objection to the court’s ruling—he did not contend that the
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parent/child-bond exception applied or request the trial court make findings on that
exception. Father has “thereby waived the right to raise the issue on appeal. The juvenile
court does not have a sua sponte duty to determine whether an exception to adoption
applies. [Citations.] The party claiming an exception to adoption has the burden of proof
to establish by a preponderance of evidence that the exception applies.” (In re Rachel M.
(2003) 113 Cal.App.4th 1289, 1295.) In his reply brief, Father acknowledges he did not
raise the issue in the trial court but requests we exercise our discretion to consider the
issue anyway. Assuming we have such discretion, we decline to exercise it. A trial
court’s ruling on this exception is entitled to deference (In re Caden C., supra, 11 Cal.5th
at pp. 639-640), which we cannot properly give if there is no ruling to begin with.
Accordingly, the issue is waived.
DISPOSITION
The postjudgment orders denying Father’s section 388 petition, terminating
his parental rights, and selecting adoption as the permanent plan are affirmed.
MARKS, J.*
WE CONCUR:
FYBEL, ACTING P. J.
GOETHALS, J.
*Judge of the Orange Super. Ct., assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
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