Filed 4/19/13 In re G.A. CA4/1
                         NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                       COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                     DIVISION ONE

                                             STATE OF CALIFORNIA



In re G.A. et al., Persons Coming                                   D062943
Under the Juvenile Court Law.
_____________________________________

SAN DIEGO HEALTH AND HUMAN                                          (Super. Ct. No. J518-049 C/D)
SERVICES AGENCY,

         Plaintiff and Respondent,

         v.

GARY A. and JOSE N.,

         Defendants and Appellants.



         APPEAL from orders of the Superior Court of San Diego County, David B.

Oberholtzer, Judge. Orders affirmed as to Gary A., and reversed and remanded as to

Jose N.


         Gary A. (Gary) and Jose N. (Jose) appeal from orders denying their respective

petitions to modify a previous order and terminating their respective parental rights under

Welfare and Institutions Code section 366.26. (All undesignated statutory references are
to this code.) Gary contends the juvenile court erred when it declined to find that the

beneficial relationship exception of section 366.26, subdivision (c)(1)(A) applied to the

relationship with his son, G.A. Jose contends the juvenile court abused its discretion

when it denied his section 388 petition requesting that the section 366.26 order be

vacated and he be given six months of additional services. Alternatively, Jose asserts the

juvenile court erred when it declined to find that the beneficial relationship exception of

section 366.26, subdivision (c)(1)(B)(i) applied to the relationship with his son, J.N. As

we explain below, we reject Gary's contentions, but reverse as to Jose.

            GENERAL FACTUAL AND PROCEDURAL BACKGROUND

       Mother has four children, J.N. (born 2009), G.A. (born 2007), F.U. (born 2006)

and M.H. (born 2004), each with a different father. In January 2011, the San Diego

County Health and Human Services Agency (the Agency) received a referral that Mother

had left the children with the maternal grandparents for days at a time and was not

attending to their needs. There were also concerns regarding Mother's lack of

involvement and unwillingness to receive in-home services for F.U., who has autism.

       In February 2011, Mother was arrested and incarcerated for possession of drug

paraphernalia. She did not attend a Team Decision Meeting and refused the Agency's

offer of services. The Agency filed separate petitions on behalf of the children. The

Agency detained the children and ultimately placed then in the home of the maternal

grandmother.




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                                       DISCUSSION

                                     I. Gary's Appeal

A.     Facts

       In May 2011, Gary was arrested for testing positive for drugs, a parole violation,

and was incarcerated until June 23, 2011, when he entered a residential substance abuse

program. While at the program, Gary was allowed visits with G.A. By June 2011, Gary

had completed a parenting program. In July 2011, the juvenile court held the jurisdiction

and disposition hearing, found the petition true, removed custody from the parents, and

ordered reunification services. In September 2011, Gary completed his substance abuse

program and his drug test results were negative. His contact with G.A. was positive, and

by November 2011, the social worker permitted unsupervised visits.

       At the April 2011 six-month review hearing, the social worker recommended that

Gary's reunification services be terminated because Gary had relapsed. The juvenile

court terminated services and set a permanent plan hearing. In December 2011 and

January 2012, Gary failed to submit to drug testing and stopped visiting G.A.

       In the August 2012 permanent plan report, the social worker opined that G.A. was

likely to be adopted because he was in good health, active and engaging. The maternal

grandmother wanted to adopt G.A. and his three siblings. In September 2012, Gary filed

a section 388 petition requesting visits and an additional period of reunification services.

Gary stated that he had been residing in a program since being released from custody in

August 2012, that he was drug testing negative and attending counseling. The juvenile

court denied a hearing on the petition. In October 2012, Gary filed another section 388


                                              3
petition, seeking an order vacating the permanent plan hearing and additional

reunification services. Gary asserted that G.A. had a strong bond with him, and it was in

the child's best interests to grant more services.

       In November 2012, the court held a combined hearing on the permanent plan and

the section 388 petition. The court granted a hearing on the section 388 motion and ruled

the same evidence would be considered on the section 388 petition and the termination of

parental rights. After argument, the court denied Gary's section 388 petition, and finding

no statutory exception, terminated parental rights. Gary timely appealed.

B.     Analysis

       Gary contends his parental rights should not have been terminated because of the

beneficial nature of his ongoing relationship with G.A. (§ 366.26, subd. (c)(1)(B)(i).)

We are not persuaded.

       Parental rights may be terminated if there is clear and convincing evidence of

adoptability (§ 366.26, subd. (c)(1)); however, an exception exists where a parent has

"maintained regular visitation and contact with the child and the child would benefit from

continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) A beneficial relationship is

one that 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 adoptive parents. (In re Autumn H.

(1994) 27 Cal.App.4th 567, 575.) The parent must show that the parent-child

relationship is such that the child will be greatly harmed by the termination of the parent's

parental rights, so that the presumption in favor of adoption is overcome. (In re

Brittany C. (1999) 76 Cal.App.4th 847, 853-854.)


                                               4
       Implicit in this standard is that "a parental relationship is necessary for the

exception to apply, not merely a friendly or familiar one. [Citations.]" (In re Jasmine D.

(2000) 78 Cal.App.4th 1339, 1350.) The existence of this relationship is determined by

taking into consideration "[t]he age of the child, the portion of the child's life spent in the

parent's custody, the 'positive' or 'negative' effect of interaction between parent and child,

and the child's particular needs . . . ." (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)

We review the juvenile court's ruling under the substantial evidence test (ibid.), viewing

the evidence in the light most favorable to the prevailing party. (In re J.I. (2003) 108

Cal.App.4th 903, 911.)

       Gary lived with G.A. until G.A. was six months old. Thereafter, Gary had weekly

visits with his son. However, Gary was frequently in and out of jail with arrests in

September 2009, July 2010 and November 2010, and the record is unclear whether he

visited his son during this time period. Gary was released from jail near the end of

January 2011, but the Agency detained G.A. the following month. In May 2011, Gary

was again arrested and incarcerated until the end of June 2011, when he entered a

residential substance abuse program. While in the program, Gary had consistent visits

with G.A., with unsupervised visits scheduled to start November 2011.

       Gary, however, stopped visiting G.A. in December 2011 and a report dated

February 2012 indicated that his whereabouts were unknown. During this time period,

the social worker reported that G.A. had not asked about his father and displayed no

behavioral issues when visitation stopped. Ultimately, Gary contacted the social worker




                                               5
at the end of August 2012 to request that visitation be reinstated. Visitation resumed in

mid-September 2012 when G.A. was five years old.

       This chronology shows that Gary had not cared for G.A. since G.A. was six

months old and was primarily absent from his son's life until G.A. turned five years old.

Gary enjoyed almost two months of visits with G.A. before the section 366.26 hearing

took place at the beginning of November 2012. During these visits Gary played with his

son and never acted inappropriately. G.A., however, parted easily from Gary at the end

of the visits and there was no evidence that G.A. asked about Gary between visits. The

social worker testified that while G.A. enjoyed his interaction with Gary, he had not seen

G.A. spontaneously initiate any affection toward Gary. Rather, the social worker

observed that G.A. viewed his maternal grandmother as an authority and parental figure

and went to her for affection.

       This record amply supports the juvenile court's conclusion that the benefits

adoption would confer on G.A. outweighed the parent-child bond. (In re Autumn H.,

supra, 27 Cal.App.4th at p. 575.)

                                     II. Jose's Appeal

A.     Facts

       At the end of April 2011, the Agency learned that Jose was an inmate at Acton

Conservation Camp (ACC), a fire camp, but that he was not allowed to make telephone

calls. In July 2011, the juvenile court held the jurisdiction and disposition hearing, found

the petition true, removed custody from the parents, and ordered reunification services.

In a letter to the Agency received in November 2011, Jose requested visits with J.N.,


                                             6
stating ACC had a nice visiting area where he could play with J.N. The social worker,

however, did not believe visits were appropriate, due to the distance, facility conditions,

and inability of the maternal grandmother to drive the distance with all the children. In

January 2012, the court ordered that Jose be provided with funds to make collect calls to

the caretaker and his son, of which he took advantage.

       At the April 2012 six-month review hearing, the juvenile court stated it was aware

that ACC provided no services of any kind to inmates. Nevertheless, it found that the

Agency had provided reasonable services, it terminated reunification services and set a

permanency planning hearing. The June 2012 section 366.26 report indicated that J.N.

was considered to be adoptable, that he had a strong attachment to his caregivers and

siblings, and that the maternal grandmother had begun the adoption home study process.

Jose telephoned every week or two, speaking with J.N. and the half-siblings. In August

2012, the court granted Jose's request to continue the contested permanency planning

hearing to allow Jose to file a section 388 petition.

       In his section 388 petition, Jose requested that the court vacate the permanency

planning hearing and order six months of reunification services. While at ACC, Jose had

been an excellent worker, disciplinary free, entrusted with additional responsibilities and

drug tested monthly with negative results. Within days of his release from ACC in early

August 2012, Jose enrolled in a program of drug and parenting counseling. He also

obtained employment in an auto body shop. After his release, he visited J.N.

consistently. The court found that Jose had established a prima facie showing and set a

hearing on the merits.


                                              7
       At a combined modification and permanency planning hearing in November 2012,

the social worker testified that granting the section 388 was not in J.N.'s best interest as

Jose did not have a long enough period of sobriety or freedom from criminal activities

and the minor needed permanency. The juvenile court denied the section 388 request,

finding that Jose's circumstances had changed, but it would not be in J.N.'s best interest to

grant the request. The court found J.N. to be adoptable and terminated parental rights,

finding that Jose had not proved that J.N. fell within the section 366.26, subdivision

(c)(1)(B)(i) exception to the termination of parental rights.

B.     Analysis

       Jose asserts the juvenile court abused its discretion in denying his section 388

petition to vacate the permanent plan hearing and grant him additional reunification

services. We agree.

       Section 388 serves as "an 'escape mechanism' when parents complete a

reformation in the short, final period after the termination of reunification services but

before the actual termination of parental rights." (In re Kimberly F. (1997) 56

Cal.App.4th 519, 528, citing In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Under this

statute, a parent may petition the court to change, modify, or set aside a previous court

order on the grounds of changed circumstances. (§ 388, subd. (a).) The parent must

show both a change of circumstances and that the modification would promote the child's

best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) In considering a request

for a change of placement at the permanency planning stage, the juvenile court must

recognize that the focus has shifted to the child's need for permanency and stability.


                                              8
(In re Stephanie M. (1994) 7 Cal.4th 295, 317.) On appeal, the juvenile court's ruling

will not be disturbed absent a clear abuse of discretion. (In re Jasmon O. (1994)

8 Cal.4th 398, 415-416.) The "scope of discretion always resides in the particular law

being applied, i.e., in the 'legal principles governing the subject of [the] action . . . .

[Citations.]" (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297 (City of

Sacramento).) A judicial determination that falls outside the applicable principles of law

constitutes an abuse of discretion. (Nickolas F. v. Superior Court (2006) 144

Cal.App.4th 92, 119.)

       As the juvenile court correctly found, Jose's circumstances had changed. Jose

testified that he had a long criminal history and that he had been arrested about ten times.

His drug of choice had been methamphetamine. During his 17 months at ACC, Jose was

disciplinary free and had become a reliable worker, "who has been entrusted with

additional responsibilities above normal expectations." Jose tested negative on

mandatory, monthly drug and alcohol tests. Jose regularly attended weekly ministry

services. He was described as "punctual, honest, trustworthy, and responsible for his

actions."

       Immediately upon his release from ACC, Jose obtained employment and housing.

His employer described Jose as a "very hard worker." He also independently signed up

for parenting and outpatient drug treatment, and had completed most of the parenting

classes at the time of the section 388 hearing. Jose actively participated in a drug

treatment group and 12-step meetings. All drug tests taken by the program were

negative.


                                                9
       At the time of the hearing, Jose had been clean and sober from all drugs and

alcohol for 23 months. Additionally, since his release in August 2012, he has been a law

abiding citizen. Jose stated that being in the fire camp and working hard helped him

become a law-abiding citizen. Jose explained that the religious services and Bible studies

helped him in his sobriety because they "helped me form a foundation of better moral

standards for myself and for bringing up my son." He felt the church services gave him

"a whole new outlook," in terms of what he thought was right or wrong.

       Turning to the best interests prong, the factors to consider in ruling on a section

388 petition include: "(1) the seriousness of the problem which led to the dependency,

and the reason for any continuation of that problem; (2) the strength of 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., supra, 56 Cal.App.4th at p. 532.)

       On the first Kimberly F. factor, it was the Mother's neglect of the children that led

to the dependency. J.N. was 21 months old when he was detained. Jose's criminal

records suggest he was incarcerated most of this time prior to J.N.'s detention. Starting

one month after the detention hearing, Jose was an inmate at ACC for 17 months. In

essence, Jose was a non-offending, noncustodial parent who was ordered to participate in

reunification services due to his past record. Notably, Jose entered ACC shortly after the

juvenile court ordered reunification services for Jose and was still an inmate when the

court terminated his services. This factor favors Jose because the record is undisputed




                                             10
that Jose was drug free and a model citizen while at ACC and that Jose remained so at the

time of the hearing.

       The third Kimberly F. factor relates to 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., supra, 56 Cal.App.4th at p. 532.) While the Mother's conduct led to the

dependency, it is undisputed that Jose had a history of crime and drug abuse. As detailed

above, Jose through his own initiative and without any assistance from the Agency, has

made extraordinary progress in ameliorating his problems, if not eliminating them

entirely. We rarely see a parent that has independently undertaken such efforts to reunite

with a child. This factor strongly favors Jose.

       The second Kimberly F. factor required the court to evaluate the strength of the

relative bonds between the dependent child and his or her parent, compared with the

strength of the child's bond to his or her present caretakers. (In re Kimberly F., supra, 56

Cal.App.4th at p. 531.) In considering this factor, the bond to the caretaker cannot be

dispositive, lest it create its own self-fulfilling prophecy. (Ibid.) Here, although Jose and

J.N. enjoyed only about two months of visitation after Jose's release from ACC, the

visitation logs show that Jose consistently demonstrated a parental role and knowledge of

the child's development, responded appropriately to his child's verbal and non-verbal

signals, put his child's needs ahead of his own, and showed empathy towards his son.

The visitation monitor noted that Jose was very patient with his son. J.N. referred to Jose

as his "daddy" and had difficulty ending some of the visits. During one difficult parting,

the visitation monitor noted that Jose's interaction with his son was "great" and that Jose


                                             11
talked J.N. through everything and was very attentive. The social worker did not assess

whether a significant parent-child relationship existed between Jose and J.N. because

there were too few visits to make that assessment. Nonetheless, the social worker

admitted that the relationship was "growing."

       On the other hand, it was undisputed that J.N. had a strong relationship with his

current caregiver, the maternal grandmother, and his half-siblings. The juvenile court

concluded that reunification or offering Jose additional services was not in J.N.'s best

interest because "developing a closer [parent-child] bond would not outweigh the

detriment of severing the bond" between J.N. his caregiver and half-siblings. The record,

however, does not support the juvenile court's assumption that giving Jose an additional

period of reunification services to foster the developing parent-child relationship would

ultimately lead to the severance of J.N.'s relationship with his caregiver and half-siblings.

Rather, should his section 388 petition be granted, Jose intended to continue contact

between J.N. and those relatives. Jose testified that he has known the maternal

grandmother for several years and was on a friendly basis with her. He also "very much"

loved J.N.'s half-siblings and spoke to them on the telephone.

       Put simply, granting the section 388 petition, vacating the permanent plan hearing

and providing Jose additional reunification services would not automatically lead to the

severance of J.N.'s close bonds with his caregiver and half-siblings. Even in the best case

scenario where the court orders reunification and terminates its jurisdiction over J.N., it

may enter visitation orders that will be transferred to an existing family court file, or

visitation orders that may be used as the basis for opening a superior court file. (In re


                                              12
Hirenia C. (1993) 18 Cal.App.4th 504, 518-519; see generally, § 362.4.) This record

suggests the juvenile court erred in applying the standards for relief under section 388 to

Jose's unique situation. (See City of Sacramento, supra, 207 Cal.App.3d at pp. 1297–

1298 [an abuse of discretion occurs not only where the court's action "was utterly

irrational," but also where the court "is mistaken about the scope of its discretion . . . [I]f

the trial court acts in accord with its mistaken view the action is nonetheless error; it is

wrong on the law"].)

       Accordingly, we conclude the juvenile court abused its discretion in denying Jose's

section 388 petition, and in failing to order additional services. Our conclusion that the

juvenile court abused its discretion in denying Jose's section 388 petition renders moot

his alternative argument regarding the beneficial relationship exception. Additionally,

the reversal of the order on the section 388 petition requires the reversal of the judgment

terminating parental rights. (In re Lauren R. (2007) 148 Cal.App.4th 841, 861.)




                                              13
                                        DISPOSITION

       We affirm the orders of the juvenile court as to Gary. We reverse the order

denying Jose's section 388 petition, and consequently, the order terminating Jose's

parental rights is also necessarily reversed. As to Jose, the matter is remanded to the

juvenile court for further proceedings consistent with this opinion.




                                                             McINTYRE, J.

WE CONCUR:


BENKE, Acting P. J.


HUFFMAN, J.




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