Filed 8/4/14 In re J.T. CA4/2

                           NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 TWO


In re J.T., a Person Coming Under the
Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES,                                                       E060307

          Plaintiff and Respondent,                                              (Super.Ct.No. RIJ110975)

v.                                                                               OPINION

M.T.,

          Defendant and Appellant.


          APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson,

Judge. Affirmed.

          Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and

Appellant.

          Pamela J. Walls, County Counsel, and Julie Koons Jarvi, Deputy County Counsel,

for Plaintiff and Respondent.




                                                                    1
                                              I

                                        INTRODUCTION

       Father appeals juvenile court orders denying his petition to set aside an order

terminating reunification services under Welfare and Institutions Code section 3881

(section 388 petition) and terminating his parental rights to his son, J.T. (born in 2012).

This appeal follows another recent appeal brought by mother and father (parents) as to

J.T.’s older sister K.T. (In re K.T. (Apr. 10, 2014, E059426) [nonpub. opn.]), in which

this court affirmed the juvenile court’s order terminating parental rights to K.T. Mother

is not a party to the instant appeal.

       Father contends the juvenile court abused its discretion in denying his section 388

petition, since he established his circumstances had changed and that granting his section

388 petition was in J.T.’s best interests. We conclude there was no abuse of discretion.

Although father had made progress by completing various drug treatment programs,

remaining sober, and completing anger management and parenting courses, father has not

shown that his circumstances have permanently changed or that it is in J.T.’s best

interests to set aside the order terminating reunification services. The judgment is

affirmed.




       1  Unless otherwise noted, all statutory references are to the Welfare and
Institutions Code.

                                              2
                                              II

                     FACTS AND PROCEDURAL BACKGROUND

       Father has a history of involvement with the Department of Public Social Services,

Child Protective Services Division (CPS). During the summer of 2011, father’s daughter,

K.T., was detained under section 300, subdivisions (b) (failure to protect) and (g) (no

provision for support), because of allegations parents had engaged in domestic violence

in front of K.T., parents were abusing drugs, and mother suffered from mental instability.

CPS initiated juvenile dependency proceedings in July 2011, as to K.T. Reunification

services provided to father, as to K.T., were terminated in April 2012. On December 3,

2012, the court terminated reunification services to mother, as to K.T.

       Meanwhile, father was incarcerated in January 2012, for fraud. At the time of

father’s arrest, mother was pregnant with J.T. In mid 2012, mother gave birth to J.T. J.T.

was born premature and placed in intensive care due to rapid breathing and low blood

sugar. CPS received an immediate response referral and initiated an investigation

regarding J.T.’s birth. A CPS social worker visited mother at the hospital and contacted

father, who claimed he was J.T.’s father.

Detention Hearing

       Within two days of J.T.’s birth, CPS filed a juvenile dependency petition as to

J.T., under section 300, subdivisions (b) (failure to protect), (g) (no provision for

support), and (j) (abuse of sibling). The petition alleged parents had a history with CPS

regarding K.T., for substance abuse and domestic violence; father had failed to comply

with his case plan and reunification services were terminated as to K.T.; parents had

                                              3
criminal histories; father was currently incarcerated and unable to provide for J.T. and his

sibling, K.T. (the children); and K.T. was abused and/or neglected, and J.T. therefore was

at risk of similar harm. At the detention hearing in July 2012, the juvenile court ordered

J.T. detained but only as to father. Upon discharge from the hospital, J.T. was released to

mother.

Jurisdiction Hearing

       During a CPS interview in July 2012, father acknowledged he had been in and out

of jail since August 2010, and was not providing support for any of his children due to his

incarceration. Father had two older children from a previous relationship, who lived out

of state with their mother. Upon his release from jail, father intended to continue his

relationship with mother and reunify with his children. Father said he began using

methamphetamine when he was 19 years old and had not previously been in treatment.

He conceded he was only sober when he was incarcerated. Father met mother in 2009.

During their relationship, they engaged in criminal activity, substance abuse, and

domestic violence with each other. Father’s criminal history includes theft, shoplifting,

and burglary. Mother acknowledged during her interview that she and father abused

drugs and were physically violent with each other throughout their relationship.

       At the jurisdiction hearing on August 9, 2012, the juvenile court found the

allegations in the juvenile dependency petition true. J.T. remained in mother’s care and

was provided with family maintenance services. The court ordered J.T. removed from

father’s care and denied father reunification services under section 361.5, subdivision

(b)(10), on the ground the court had previously terminated father’s reunification services

                                             4
and parental rights to J.T.’s sibling, K.T. The court authorized father to receive visitation

with J.T. for a minimum of once a month, for one hour.

       Father was released from jail on August 22, 2012. As of September 2012, father

was unemployed and enrolled in an inpatient substance abuse program with MFI2

Recovery Center in Riverside. Father had a supervised visit with J.T. on September 7,

2012. Father arrived 25 minutes late. That same day, mother reportedly relapsed on

methamphetamine after seeing father and returning home from taking the children to the

supervised visit. On September 16, 2012, mother was hospitalized at Emergency

Treatment Services for depression and paranoia. The children stayed with their maternal

grandmother.

       On September 17, 2012, the children were placed in protective custody with a

nonrelative friend of mother’s. On September 19, 2012, the CPS filed a section 387

supplemental petition to remove the children from mother’s care because mother had

relapsed on methamphetamine and had not been compliant with her case plan. Mother

was also not properly caring for and supervising the children. When told mother had

relapsed, father told the social worker he did not feel strong enough to maintain his own

sobriety.

       On October 10, 2012, father completed a 60-day residential inpatient drug

recovery program, enrolled in an aftercare program, was attending weekly group

counseling, was living in a sober living home, and became employed. The court


       2    My Family, Inc.

                                              5
therefore increased father’s visits with the children from one to two supervised monthly

visits. J.T. was doing well in his placement. Father became employed in October 2012.

Father regularly participated in the MFI recovery program, with one negative drug test. It

was anticipated father would graduate from the program in December 2012.

       At the hearing on the section 387 supplemental petition, on November 7, 2012, the

juvenile court sustained the allegations in the petition, as amended, and set the matter for

a contested dispositional hearing.

       On November 16, 2012, the children were placed with their maternal aunt (aunt).

At the contested dispositional hearing on December 10, 2012, the court ordered J.T.

removed from parental custody and reunification services provided to mother. As of

February 2013, parents were living together but mother claimed she was not romantically

involved with father. Mother received financial assistance because of her bipolar

disorder. Father was on probation until December 2015. Because of parents’ work

schedules, visitation was changed from one hour, twice a week, to two hours, once a

week. The CPS social worker reported that parents did not appear to have a strong bond

with J.T. and were more focused on K.T. Parents’ visits were inconsistent. Between

January 4, 2013, and May 7, 2013, father visited J.T. only three times. Maternal

grandmother reported that, during one visit in April 2013, father showed up “higher than

a kite,” although generally his visits were “average in nature,” according to the social

worker.

       By May 2013, father had moved back to a sober living home and was no longer

living with mother. However, in June 2013, mother reported that parents were continuing

                                              6
their romantic relationship and living together again. J.T.’s aunt reported on June 11,

2013, that she overheard mother tell maternal grandmother that parents frequently

engaged in domestic violence and father was hospitalized for psychiatric care at least

three times within the past six months.

       On June 13, 2013, father was arrested for possession of a steak knife. J.T. was in

good health, well-adjusted to his placement with his aunt, developmentally on target,

happy, and closely bonded with K.T. and his aunt and uncle, who were in the process of

adopting K.T. Father remained incarcerated in July, with an expected release date of

August 12, 2013.

       At a review hearing on July 8, 2013, the juvenile court terminated mother’s

reunification services as to J.T., set the matter for a section 366.26 hearing, and reduced

parents’ supervised visitation to once a month. As to K.T., the juvenile court terminated

parental rights and ordered adoption by aunt and uncle.

Hearing on Section 388 Petition and Section 366.26 Hearing

       In CPS’s section 366.26 hearing report, filed in September 2013, the social worker

reported that J.T. was adoptable because of his good health, young age, and placement

with relatives. J.T.’s prospective adoptive parents, J.T.’s aunt and uncle, had cared for

J.T. and K.T. since November 2012. J.T.’s aunt and uncle were in the process of

adopting K.T. and also wanted to adopt J.T. J.T. viewed his aunt and uncle as parents.

J.T.’s aunt and uncle were amenable to a postadoption parental contact. Parents’

visitation with J.T. was sporadic. J.T. reportedly had become afraid of parents after

visitation was reduced.

                                              7
       Father’s whereabouts, after his release from incarceration in August 2013, were

unknown until early October 2013. On October 8, 2013, father filed a section 388

petition (JV-180 form), asserting changed circumstances required modification of the

jurisdictional hearing order on August 9, 2012, denying him reunification services.

Father requested he be provided with six months of reunification services. Father alleged

his circumstances had changed in that he had completed the MFI Recovery Center drug

treatment and aftercare programs, submitted to random drug tests, and attended 12-step

meetings. He had also completed parenting and anger management courses. Father

asserted that granting his section 388 petition to allow six months of reunification

services was in J.T.’s best interests because it provided father an opportunity to fulfill the

role of being a father to J.T. and participate in additional beneficial classes and services.

       In response to father’s section 388 petition, CPS filed an addendum report stating

that maternal relatives had reported that parents were using drugs and engaging in

domestic violence. In addition, father had been hospitalized three times for mental health

issues, was arrested for a parole violation, and had missed visitations. CPS concluded

father had not benefited from services and J.T. should remain in his current home, where

he had lived for nearly one year.

       On November 5, 2013, the trial court conducted a combined hearing on father’s

section 388 petition and the section 366.26 proceeding. Father testified he visited J.T. in

October 2013 and played with him. J.T. kissed father and appeared happy. In addition,

father testified he was in compliance with his probation terms and was working

sporadically in construction.

                                              8
       In response, the court noted father had recently been convicted. The court added

that, although father had participated in substance abuse treatment programs, the court

had no information substantiating that father was continuing to maintain sobriety. Father

also appeared to have ongoing mental health issues. In addition, the CPS reports

indicated father had visited J.T. only seven times during the past year. The juvenile court

denied father’s section 388 petition, concluding that, while there was evidence J.T.’s

circumstances had begun to change, they were not changed. The court further concluded

it was not in J.T.’s best interests to grant father’s section 388 petition seeking six months

of reunification services. After hearing additional oral argument on the section 366.26

matter, the juvenile court found J.T. adoptable and terminated parental rights as to J.T.

                                             III

                                 SECTION 388 PETITION

       Father contends the juvenile court abused its discretion in denying his section 388

petition seeking six months of reunification services.

A. Applicable law

       “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 or changed

circumstances exist, and (2) the proposed change would promote the best interest of the

child. [Citation.] The parent bears the burden to show both ‘“a legitimate change of

circumstances”’ and that undoing the prior order would be in the best interest of the child.

[Citation.] The petition is addressed to the sound discretion of the juvenile court, and its



                                              9
decision will not be overturned on appeal in the absence of a clear abuse of discretion.

[Citation.]” (In re S.J. (2008) 167 Cal.App.4th 953, 959-960 [Fourth Dist., Div. Two].)

       In evaluating whether parents have met their burden to show changed

circumstances, the trial court should consider: (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. (1997) 56 Cal.App.4th 519,

532.) These factors become less significant once reunification services have been

terminated, as in the instant case. This is because, “[a]fter the termination of

reunification services, . . . ‘the focus shifts to the needs of the child for permanency and

stability’ [citation] . . . .” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)

B. Discussion

       Father argues that he established that his circumstances materially changed from

those that existed in August 2012, when the juvenile court denied him reunification

services. We disagree. The juvenile court removed J.T. from father’s care and denied

father reunification services under section 361.5, subdivision (b)(10), because the

juvenile court had previously ordered termination of father’s reunification services as to

J.T.’s older sister, K.T., due to father failing to reunify with K.T. and not making a

reasonable effort to treat the problems that led to her removal from father. Father’s

problems included domestic violence, drug abuse, and not providing support and

supervision for K.T.

                                              10
       Although father had completed substance abuse treatment programs and parenting

and anger management programs, there was evidence that father had only recently done

so and the court reasonably found that father had not shown he had remained sober long

enough, while not incarcerated, to establish that he would remain sober and out of jail.

Most recently, father was incarcerated on two occasions, from January 2012 (before

J.T.’s birth in 2012) until August 2012, and again, from June 2013 to August 2013.

During the 10-month period between his incarcerations, father received substance abuse

treatment. The hearing on father’s section 388 petition was only three months after his

release in August 2013.

       CPS reported in its October 2013 response to father’s section 388 petition that

CPS suspected father had relapsed after his release. He reportedly was living with

mother and there had been reports that they were frequently engaging in domestic

violence involving the police. There were also reports from family members that father

continued to abuse drugs and had been hospitalized three times for mental health

problems. CPS concluded in its response to father’s section 388 petition that father had

not benefited from rehabilitation services. In addition, parents had not succeeded in

reunifying with K.T. On July 8, 2013, four months before the section 388 hearing as to

J.T., the juvenile court terminated father’s parental rights to K.T. and ordered a

permanent plan for K.T. of adoption by J.T.’s aunt and uncle. Under these

circumstances, the juvenile court reasonably found that father had not established

changed circumstances.



                                             11
       The evidence also showed that granting father’s section 388 petition was not in

J.T.’s best interests. Father’s only argument was that allowing father six months of

reunification services was in J.T.’s best interests because it would provide father with an

opportunity to fulfill the role of being a father to J.T. and allow him to participate in

additional beneficial classes and services. Father’s desire to fulfill the role of a father for

J.T. was too late. By the time the court heard father’s section 388 petition, J.T. was one

year and four months old and had never lived with father. J.T. had lived with his aunt,

uncle, and sister, K.T., throughout most of his life, since he was four months old. J.T.’s

aunt and uncle had provided J.T. with a stable, loving home. J.T. was closely bonded to

his aunt and uncle, as well as to K.T.

       On the other hand, father only visited J.T. seven times and was not closely bonded

to J.T. Father also had not demonstrated he was able to support J.T. and provide him

with a stable home. There was evidence father had relapsed on drugs, continued to live

with mother and engage in domestic violence, had missed numerous visitations with J.T.,

and had been hospitalized for mental health issues three times in 2013. Furthermore,

father had a criminal history, in which he had been in and out of jail, and only recently

had been released from jail four months before the section 388 hearing.

       We conclude there was substantial evidence establishing that father’s

circumstances had not sufficiently changed and that granting his section 388 petition was

not in J.T.’s best interests. Therefore the juvenile court did not abuse its discretion in

denying father’s section 388 petition and appropriately terminated parental rights.



                                              12
                                     IV

                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                               CODRINGTON
                                                            J.

We concur:


RAMIREZ
                    P. J.


MILLER
                       J.




                                     13
