Filed 3/8/13 In re I.B. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 I.B., a Person Coming Under the
Juvenile Court Law.

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,                                            E057087

         Plaintiff and Respondent,                                       (Super.Ct.No. J234629)

v.                                                                       OPINION

S.B.,

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey,

Judge. Reversed with directions.

         Siobhan M. Bishop, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County

Counsel, for Plaintiff and Respondent.
                                                             1
       I.B., a minor under the age of three, was declared a dependent after she suffered a

broken elbow and ankle while in the custody of legal guardians appointed after I.B.’s

mother was shot to death. Father was in custody on a parole violation, so it was alleged

he failed to protect the minor and failed to provide for her. (Welf. & Inst. Code,1 § 300,

subds. (b), (g).) Father received and completed reunification services, but he tested

positive for methamphetamine once and missed two drug tests early in the dependency,

and drank two beers on Christmas Eve during the reunification period. Services were

terminated and a section 366.26 hearing was set. Prior to the hearing, father filed a

petition to modify the order setting the section 366.26 hearing (§ 388), demonstrating he

had completed a new substance abuse program on his own and maintained a close

relationship with the minor. The county agreed that the petition should be granted, but

the court denied it based on the concerns of the minor’s counsel that the minor needed

stability and should remain with her half-brother. Father’s parental rights were

terminated and he appealed.

       On appeal, father argues that (1) the denial of his section 388 petition was error

and (2) his parental rights should not have been terminated based on a beneficial parent-

child relationship. (§ 366.26, subd. (c)(1)(B)(i).) The San Bernardino County Children

and Family Services (CFS) agrees that the juvenile court erred in denying the request to



       1 All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.

                                             2
modify the court order, which renders moot any remaining issue regarding the

termination of parental rights. We reverse.

                                     BACKGROUND

       On May 12, 2010, the mother of I.B., who was born in October 2008, was shot and

killed. I.B.’s father, who was on parole at the time, was arrested the next day for being in

the company of his brother-in-law, also a parolee, in violation of a parole condition that

he not associate with other known parolees. The mother’s sister, Rosa P. was appointed

as the legal guardian of I.B. and her half-brother, Antonio H., on August 27 and August

23, 2010.

       On August 28, 2010, the legal guardian and her fiancé Sergio C., took I.B. to the

emergency room for injuries to her elbow and ankle. Examination revealed a

supracondylar fracture of the elbow and a hairline fracture of the tibia. Rosa and Sergio’s

children disclosed that Sergio had picked I.B. up and dropped her on the ground, and

eventually Sergio admitted he had thrown the minor onto her bed. Because the

guardian’s initial explanations were inconsistent with the injuries, it was determined that

the injuries were inflicted nonaccidentally. I.B. and her half-brother, as well as Rosa and

Sergio’s children, were taken into protective custody.

       At the initial detention hearing, mother’s sister, the legal guardian, indicated there

was no American Indian heritage. However, she had previously told one of I.B.’s




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treating physicians that she and her family had native American heritage. 2 At a

subsequent pretrial settlement conference hearing, father was directed to complete the

ICWA-020 form regarding possible Indian heritage after he orally denied any. However,

the form was not included in the record. There is no information in the record regarding

the biological mother’s possible Indian heritage.

       An amended dependency petition was filed alleging physical abuse (§ 300, subd.

(a)), neglect (§ 300, subd. (b)), severe physical abuse of a child under five (§ 300, subd.

(e)) and substantial risk to a sibling (§ 300, subd. (j)), based on the conduct of the

guardians. As against father, the petition alleged he failed to protect I.B. (§ 300, subd.

(b)), and failed to provide care and support for the minor. (§ 300, subd. (g).)

       An addendum to the social worker’s report, prepared for the jurisdictional hearing,

indicated father had an extensive criminal history, between 2003 and 2009. Documents

submitted at a later hearing showed father had three misdemeanor convictions for

disorderly conduct (Pen. Code, § 647, subd. (f)), a misdemeanor conviction for spousal

abuse (Pen. Code, §243, subd. (e)(1)), one misdemeanor conviction for possession of

marijuana (Health & Saf. Code, § 11375, subd. (b)), one misdemeanor conviction for

possession of controlled substances (Health & Saf. Code, § 11377, subd. (a)), and one


       2 One report prepared by Dr. Esteban Poni noted that a half-sister of I.B. had
congenital hip problems raising the possibility of congenital musculoskeletal disease that
needed to be ruled out. The doctor asked Rosa (the guardian) about her heritage and was
informed by Rosa that her family was descended from Native American Indians. The
doctor concluded there was a possibility that I.B.’s fractures could be accidental.

                                              4
felony conviction for spousal abuse. (Pen. Code, § 273.5, subd. (a).) Father was released

from his most recent incarceration (for violating his parole) on November 8, 2010.

       On March 25, 2011, at the jurisdictional hearing, father submitted on the basis of

the social worker’s reports. As to father, the court made true findings as to the allegation

that he failed to protect I.B. (§ 300, subd. (b)), dismissing the allegation that he failed to

provide for her. (§ 300, subd. (g).) The minor was declared a dependent, and was

removed from the custody of the legal guardian and father. The court determined that

father was merely an alleged father, but granted him reunification services nonetheless.3

       The minor was in two different placements prior to the jurisdictional hearing,

where her temper tantrums, biting, screaming, and head-banging were noted. On June 2,

2011, the minor and her half-brother were placed with their maternal aunt, C.F.

Information contained in the six-month review report indicated that father had lived with

mother for five years, including the time of the minor’s conception, although his name

was not on her birth certificate. Following father’s release from custody, he lived with

his mother and two sisters and maintained employment. On June 21, 2011, he tested

positive for methamphetamine in a random drug test, and missed a test on July 8, 2011.

All other random drug tests during the six-month period were negative for any

substances.


       3 As to I.B.’s half-brother, Antonio, no services were ordered for his alleged
father because CFS could not locate him. A section 366.26 hearing was ordered as to
Antonio.

                                               5
       In all other respects, father progressed well in his reunification program. His

home was well kept, he visited regularly with I.B. and her half-brother, interacting with

them appropriately. He regularly attended the batterer’s program and an 18-month

Driving Under the Influence program. Father was expected to be discharged early from

parole.4 As a result, father’s visitation was increased to unsupervised visits for two hours

weekly between April and August of 2011, when father was given unsupervised

overnight visits on weekends. Father always interacted well with the minor and her half-

brother. On September 26, 2011, the court conducted the six-month review hearing and

extended services for father, authorizing CFS to return I.B. to her father’s custody on

family maintenance by packet when deemed appropriate.

       By November 30, 2011, father had completed the outpatient drug program and the

batterer’s program, and was participating in the remaining court-ordered services.

Father’s counselors and treatment supervisors indicated father had progressed well.

       However, C.F., the maternal aunt with whom I.B. was currently placed, reported

that on Christmas Eve 2011, father called and he sounded intoxicated.5 Although father

missed two additional drug tests since the date of the review hearing because he forgot to

call, he tested regularly otherwise, and all tests were negative for drugs and alcohol.


       4   He was discharged from parole on February 17, 2012.
       5   Father and other relatives present at father’s residence on Christmas Eve
testified that father did have two beers, but that he was not intoxicated, and that no one
called the caregiver. No telephone records were introduced to show whether or not a call
was actually made.

                                              6
Father’s therapist reported father had made gains and benefited from therapy, while the

parent-child interactive therapy therapist reported she was satisfied with father’s progress

in managing I.B.’s tantrums. On January 5, 2012, the social worker also noticed father

appeared to be slimmer, which father attributed to the fact that his recent employment

involved unloading heavy containers for nine or 10 hours per day. Because of the

allegation that father was inebriated on Christmas Eve, and because he appeared to be

slimmer and had missed two additional drug tests, the social worker suspected he was

abusing substances.

       On April 13, 2012, the court conducted a hearing combining the 12-month status

review with father’s request to change a prior court order, seeking presumed father status.

(§ 388.) The court granted father’s request to change father’s status from “alleged” father

to “presumed” father. It then found that father failed to regularly participate and to

progress in the court-ordered reunification services, terminated father’s services, and set a

hearing pursuant to section 366.26.

       On August 1, 2012, CFS submitted a report for the section 366.26 hearing. The

report noted that I.B. is always happy to see her father, who does a good job engaging

and interacting with her. On August 8, 2012, father filed a second section 388 petition to

return custody or reinstate services. The petition alleged that despite drinking alcohol on

Christmas Eve 2011, he re-enrolled in a substance abuse program and parenting classes

on his own immediately thereafter, and drug tested regularly with negative results.



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       In response to father’s section 388 petition, CFS agreed that the court should

return the minor to father’s custody. The report noted that father took it upon himself to

enroll in another outpatient program and successfully completed it with positive marks,

consistently tested negative, maintained a stable home and steady employment. The

report further noted that although there were three missed visits, they were attributable to

the caretaker’s health or transportation trouble. The visits were appropriate, the minor

referred to father as “Daddy,” and she always hugged him at the end of the visit. In fact,

I.B. stated she wanted to live with her daddy. CFS therefore recommended that

maintenance services be granted to father, and that the court find there were changed

circumstances.

       On September 4, 2012, at the hearing on father’s section 388 petition, minor’s

counsel opposed the recommendation to return the minor to her father because the current

caregivers were the parental figures for I.B., she was placed with her half-sibling, and she

needed permanency and stability. The court denied the petition finding it would not be in

the child’s interest to return her to her father because the court did not want the minor to

lose her brother after losing both parents.

       On September 6, 2012, the court conducted a contested selection and

implementation hearing pursuant to section 366.26. The social worker testified about the

positive quality of the visits between father and I.B., and how she appeared to have a

close bond with him, calling him “Daddy” and stating she wanted to stay with him. The

decision to recommend adoption was a difficult one for the social worker because father

                                              8
visited constantly and finished everything. However, in light of minor’s strong statement

at the section 388 hearing about the minor’s need for stability, and father’s missed drug

tests, the social worker recommended adoption.

       After hearing all of the evidence, the court ruled that it was not “appropriate at this

time to take a child, who is four, who has lost her mother and father to then take them

[sic] away . . . from her brother too. That should be the most important thing.” The court

found by clear and convincing evidence that the minor was adoptable, and terminated the

parental rights of father Father timely appealed.

                                       DISCUSSION

1.     The Juvenile Court Abused Its Discretion in Denying Father’s Section 388

Petition.

       Father argues that the court erred in denying his section 388 petition and CFS

agrees that father met his two-pronged burden of showing changed circumstances and

that modification of the prior order was in the best interests of the minor. We agree.

       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 Stephanie M. (1994) 7 Cal.4th 295, 316-317.) 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. (In re Kimberly F. (1997) 56

Cal.App.4th 519, 529 (Kimberly F.).) Generally, the petitioner must show by a

                                              9
preponderance of the evidence that the child’s welfare requires the modification sought.

(In re B.D. (2008) 159 Cal.App.4th 1218, 1228.) The petition is addressed to the sound

discretion of the juvenile court, and its decision will not be overturned on appeal in the

absence of a clear abuse of discretion. (Stephanie M., supra, 7 Cal.4th at p. 318; In re

S.J. (2008) 167 Cal.App.4th 953, 959.)

         The best interests standard is not a simplistic comparison between the natural

parent’s and the caretaker’s households. (Kimberly F., supra, 56 Cal.App.4th at p. 530.)

Thus, the second factor outlined in Kimberly F. evaluates the strength of the existing

bond between the parent and child, which is considered so potentially important that it

can even derail adoption as a permanent plan. (Id. at p. 531.) In evaluating this factor,

the court considers the correlative bond between the child and the caretakers, although

the bond to the caretaker cannot be dispositive. (In re D.R. (2011) 193 Cal.App.4th 1494,

1512.)

         The first Kimberly F. factor, the seriousness of the problem that led to the

dependency was linked to physical abuse inflicted by the minor’s guardians. Father was

incarcerated, so the only allegations pertaining to father related to his failure to protect

the minor against harm inflicted by the legal guardians and his failure to provide for her.

In essence, father was a nonoffending, noncustodial parent who was ordered to

participate in reunification services due to his past record. Father’s participation in parent

education, counseling, and parent-child interactive therapy, addressed his ability to

protect and provide for the child, as well as to deal with her serious behavioral issues.

                                               10
Father had no arrests or other criminal law contacts during the entirety of the

reunification period, and was discharged from parole. No issue was raised at the hearing

that he did not address the seriousness of the problem that led to the dependency and no

argument was made in the trial court or on appeal that denial of the section 388 was

required based on this factor. This factor favors the father.

       The second Kimberly F. factor requires 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. (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.)

       The bond between the father and I.B. was strong and positive, as conceded by CFS

in its response to the 388 petition, as well as in its brief on appeal. I.B. referred to her

father as “Daddy,” always gave him a hug when the visits ended, and told the social

worker that she wanted to live with him. He was able to maintain steady employment

and a stable home for a significant amount of time, and had significant family support

from his mother and sisters. During the reunification period, I.B.’s half-brother also

participated in visits, and father was able to give attention to both children, equally.

       On the other hand, there was no evidence presented at the hearing to show that the

correlative bond between I.B. and her caretaker was so strong that the disruption of that

relationship would cause I.B. emotional harm. (In re Jasmon O. (1994) 8 Cal.4th 398,

417-419.) This factor also favors the father.

                                               11
       The third Kimberly F. factor relates to the degree to which the problem may be

easily removed or ameliorate and the degree to which it actually has been. (Kimberly F.,

supra, 56 Cal.App.4th at pp. 531-532.) Although the problem referred to in Kimberly F.

relates to the problem that led to the dependency, the problem in this case was father’s

past record for using drugs. In reviewing this factor, we observe that although his

criminal record included two misdemeanor drug-related convictions between 2003 and

2009, neither this record nor any alleged substance abuse was the cause of the

dependency, nor would it, without more, have supported a finding of jurisdiction. (In re

Destiny S. (2012) 210 Cal.App.4th 999, 1003.)

       Nevertheless, father completed not one, but two drug treatment programs, in

addition to other programs, as part of the court-ordered treatment program in order to

reunify with his daughter. Although father admitted using methamphetamine once in the

early stages of the reunification plan, and drank two beers on Christmas Eve in 2011, he

immediately reengaged in outpatient treatment on his own, and successfully completed a

second program. All drug tests (save those he missed prior to the termination of services)

were negative for any intoxicants. CFS agrees that the completion of the programs and

subsequent negative drug tests were sufficient to show changed circumstances. Given the

fact that substance abuse was not alleged as a basis for the dependency, father’s

completion of the second program removed or ameliorated that concern.

       In any event, the father’s substance abuse was not the basis for the court’s denial

of relief. Instead, the court based its decision that modification of the prior order was not

                                             12
in I.B.’s interest because she had already lost her mom, she had lost her father because he

had been unable to parent her, and granting the petition would make her lose her brother

and the stability of her current placement. None of these factors are supported by the

record. Although I.B. had lost her mother, return of custody to the father, or resumption

of reunification efforts, would prevent the “loss” of her father.6 There is no indication

that father would prevent I.B. from maintaining a relationship with her half-brother, who

was in the process of being adopted by a maternal relative, if the section 388 petition

were granted.

       The denial of the petition constituted an abuse of discretion.

2.     Reversal of the Order Denying the Section 388 Petition Renders Moot the

Orders Made at the Section 366.26 Hearing.

       By reversing the order on the section 388 petition, which sought the modification

of the order setting the section 366.26, that order has been effectively vacated by our

decision. (See In re Sean E. (1992) 3 Cal.App.4th 1594, 1599 [finding of changed

circumstances render referral for § 366.26 hearing a nullity].) It is necessary to restore all

parties to their prior positions, so the reversal of the order on the section 388 petition

requires the reversal of the orders terminating parental rights. (In re Esperanza C. (2008)

165 Cal.App.4th 1042, 1061-1062; In re Lauren R. (2007) 148 Cal.App.4th 841, 861.)




       6   In this respect, the court predetermined it would terminate parental rights.

                                              13
3.     Additional Matters to Consider on Remand.

       In the reports attached to the detention report, there is an indication that the mother

and her relatives have Native American ancestry. However, at the jurisdictional hearing,

mother’s sister, the legal guardian of the minor, who was the individual who provided the

information about the possible Indian ancestry, denied it. The court found that the Indian

Child Welfare Act did not apply at the jurisdiction hearing.

       Because of this discrepancy, and in light of our reversal, we direct the court to

order further investigation into the possibility that the minor may be an Indian child.

                                         DISPOSITION

       The judgment is reversed. On remand, the juvenile court shall direct CFS to

conduct further investigation as to whether or not the minor is an Indian child.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                 RAMIREZ
                                                                                           P. J.

We concur:


RICHLI
                           J.


MILLER
                           J.




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