In re E.M. CA4/2

Filed 11/19/14 In re E.M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 E.M., a Person Coming Under the
Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E061044

Plaintiff and Respondent, (Super.Ct.No. RIJ098870)

v. OPINION

R.M. et al.,

Defendants and Appellants.

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

Judge. Affirmed.

Nicole Williams, under appointment by the Court of Appeal, for Defendant and

Appellant, R.M.

Diana W. Prince, under appointment by the Court of Appeal, for Defendant and

Appellant, J.H.

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 Gregory P. Priamos, County Counsel, and Julie Koons Jarvi, Deputy County

Counsel, for Plaintiff and Respondent.

Appellant R.M. (father) appeals from the juvenile court’s summary denial of his

Welfare and Institutions Code1 section 388 petition regarding his son, E.M. (the child).

Appellant J.H. (mother) filed a separate brief, but simply joins in father’s argument, and

further claims that should we reverse the termination of father’s parental rights, the order

terminating her parental rights should be reversed as well.2 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND3

On April 25, 2013, the Riverside County Department of Public Social Services

(DPSS) filed a section 300 petition on behalf of the child, who was two years old at the

time. The petition alleged that he came within section 300, subdivisions (b) (failure to

protect) and (g) (no provision for support). The petition included allegations that law

enforcement executed a search warrant on the family’s home and seized six grams of

methamphetamine, as well as drug scales and paraphernalia. Mother and father (the

parents) were subsequently arrested and charged with child endangerment,

1 All further statutory references will be to the Welfare and Institutions Code,
unless otherwise noted.

2Because mother simply joined in father’s arguments on appeal, this opinion will
focus mainly on facts regarding father.

3 On the court’s own motion, we incorporated the record in case No. E059022, in
the record of the instant case, case No. E061044.

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possession/sales/transportation of a controlled substance, and being under the influence

of a controlled substance. The petition further alleged that the home was unsafe and

unsanitary, with insufficient food for the child and inappropriate sleeping arrangements.

In addition, the parents sold drugs out of the home and allowed known drug users and

convicted felons to frequent and/or reside there. The petition also alleged that the parents

engaged in domestic violence, mother had a history of substance abuse, both parents had

criminal histories, and mother had previously been provided with family maintenance and

reunification services with regard to six of her other children, but failed to benefit. Her

parental rights were terminated as to all six of them. Additionally, the petition alleged

that father had a history with the Los Angeles County Children’s Services Division for

allegations of general neglect related to sexual abuse against the minor mother of another

one of his children, and that he failed to reunify with that child and had his parental rights

terminated.

The social worker filed a detention report and stated that on April 23, 2013, she

met law enforcement at the parents’ residence. She was advised when law enforcement

arrived father was under the influence of a controlled substance, and he had a

methamphetamine pipe and several grams of methamphetamine in his possession. Other

people at the residence were also under the influence and had methamphetamine in their

possession. Mother was downstairs with the child and tried to run upstairs to avoid law

enforcement. She was under the influence of a controlled substance and admitted that

she had smoked methamphetamine the day before. The police confiscated six grams of

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methamphetamine, as well as drug paraphernalia from the residence. According to law

enforcement, methamphetamine was being sold out of the home. The residence was in a

deplorable condition, with papers, boxes, and other items stacked everywhere, throughout

the house. The master bedroom was cluttered with clothing, shoes, nail polish, and an

adult sex toy. There were many empty liquor bottles on the closet floor. There were no

toys, books, or age appropriate items for the child anywhere in the house. There was

very little food in the residence.

The police interviewed mother, with the social worker present. Mother said she

and father were not married, but he was the child’s biological father. She said they

shared a bedroom upstairs, and the other rooms in the home were rented out. She and

father slept in a twin bed together, and the child slept in a bed that father made out of a

toy box.

The police also interviewed father, who said that he and mother had been in a

relationship for four years, and that he was the child’s biological father. Father disclosed

that he was previously arrested for having sex with a minor, who was the mother of his

other child, R.M. That child was adopted by the maternal grandparents. Father had two

older children, who lived with their mother. Father was not currently paying any child

support or having visitation with any of his children. He admitted that he began using

methamphetamine at age 21 and had used off and on since then. He was 33 years old at

the time of the current arrest. He also said he started smoking marijuana when he was

younger, and admitted that he smoked it one month prior. Father admitted he was aware

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that he was placing the child at risk by his methamphetamine use and by allowing felons

with drugs into the residence; nonetheless, he continued to engage in such conduct.

At a detention hearing on April 26, 2013, the court found father to be the

presumed father of the child, and it detained the child in foster care. The court ordered

visitation to be twice a week.

Jurisdiction/disposition

The social worker filed a jurisdiction/disposition report on May 15, 2013,

recommending that the court declare the child a dependent and deny both parents

reunification services, pursuant to section 361.5, subdivision (b)(10) and (11). The social

worker reported that father lost custody of his older child, R.M., after his family

reunification services were terminated on September 12, 2005. R.M. was adopted by his

maternal grandparents. Due to father’s inability to reunify with R.M., and his failure to

maintain contact with DPSS in the current case, the social worker recommended that the

court deny reunification services as to the child, pursuant to section 361.5, subdivision

(b)(10) and (11). The social worker reported that father appeared unmotivated to reunify

with the child. He had not contacted DPSS to visit the child, obtain approval for services,

or provide a working contact number. The social worker stated that father failed to

acknowledge his substance abuse and failed to understand how his issues impacted the

physical safety of the child.

The social worker filed an addendum report on June 11, 2013. She stated that

father was reportedly attending the MFI Recovery Program, and that he was starting to

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attend Narcotics Anonymous meetings. Father requested visits with the child. The social

worker contacted father’s counselor at the MFI Recovery Center, and she said that father

enrolled in the program on May 15, 2013. He was required to attend three times a week,

and was regularly attending, with the exception of one missed one session. The

counselor reported that father tested positive for methamphetamine on June 3, 2013. The

social worker further reported that father had two visits to date, and both went well.

However, the social worker still recommended that the child be declared a dependent,

and that the parents be denied reunification services.

A contested jurisdiction/disposition hearing was held on June 16, 2013. The court

sustained the petition and declared the child a dependent of the court. It then denied

reunification services to both mother and father, pursuant to section 361.5,

subdivision (b)(10) and (11), and set a section 366.26 hearing.

Section 366.26 and Section 388

The social worker filed a section 366.26 and section 366.3 permanency status

review report on October 2, 2013. The social worker recommended that the permanent

plan for the child be adoption, but that the section 366.26 hearing be continued for 120

days in order for a suitable adoptive home to be located for the child. The social worker

reported that the parents had not maintained contact with her regarding the welfare of the

child and had not been consistent in visiting him. The social worker noted that when the

parents did participate in visits, they did not seem to know how to interact with the child.

They would stand off to the side and watch him play on the playground equipment. They

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would also remove themselves to smoke cigarettes during the visits. Additionally, the

social worker observed that the child recognized his parents and used to cry when they

had to leave the visits; however, he no longer cried when they had to leave. The social

worker recommended that visitation be reduced to supervised monthly visits.

The social worker subsequently filed an addendum report on January 17, 2014,

and recommended that the section 366.26 hearing be rescheduled for April 14, 2014.

On February 19, 2014, mother filed a section 388 petition, requesting the court to

grant her six months of reunification services. As to changed circumstances, mother

alleged that she completed intensive outpatient treatment at MFI and was attending 12-

step meetings at least twice per week. She also alleged that she submitted to random

drug testing, and all results were negative. As to best interest of the child, mother alleged

that she and the child shared a strong bond, which would be permanently damaged if she

was not allowed the opportunity to reunify. The court summarily denied mother’s

petition since the proposed change of order did not promote the best interest of the child.

On February 27, 2014, father filed a section 388 petition requesting the court to

grant him six months of reunification services. As to changed circumstances, father

alleged that he completed inpatient and outpatient substance abuse programs and anger

management and parenting classes. He also alleged that he continued to visit the child to

sustain their bond, and that he had a stable residence. As to best interest of the child,

father alleged that the child was in his care for 35 months, during which time he and the

child created a strong bond. Father alleged that he continued to share this bond during

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visits, and that it would be in the child’s best interest to allow him to reunify. The court

denied father’s petition without a hearing because the proposed change of order did not

promote the best interest of the child.

On April 4, 2014, the social worker filed a section 366.3 postpermanency status

review report. The social worker reported that visitation between the parents and the

child occurred once a month between November 2013 and April 2014. The person who

monitored the visits said they went well. The social worker continued to opine that it

would be detrimental to return the child to father. She reported that he had been

attending drug treatment programs, but was new to his sobriety. He was also not

currently employed. The social worker further reported that the child had lived in a

stable home environment with his current caregivers since December 19, 2013. The

family was meeting all of his medical, dental, and emotional needs. The relationship

between the caregivers and the child was strong, and the caregivers were committed to

adopting him. The child referred to the prospective adoptive parents as his mother and

father.

On April 24, 2014, the court held a combined section 366.26 hearing and section

366.3 hearing. Father testified at the hearing and said that the child was in his care for

almost three years before he was detained. He said after the child was detained, he would

visit the child. The visits took place at the park, and they would play ball, fly kites, and

play on the swings and playground. Father said that the child called him “Papa.” When

asked how it would benefit the child for him to remain in his life, father stated that “you

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only have one father,” that “[n]obody is perfect,” and that he wanted to be there for the

child.

After hearing testimony, the court noted that it had read and considered all the

reports submitted. The court opined that father’s bond with the child was not sufficient to

overcome the benefit of permanency that adoption would offer. The court found it likely

that the child would be adopted and terminated the parental rights of mother and father.

ANALYSIS

The Court Properly Denied Father’s Section 388 Petition

Father argues that the court erred in summarily denying his section 388 petition.

He claims that he should have been granted an evidentiary hearing since he made the

requisite prima facie showing that the proposed change would promote the child’s best

interest. The People argue that father’s notice of appeal was untimely and that the trial

court properly denied his petition. Assuming arguendo that father’s notice of appeal was

timely filed, we conclude that the court properly denied his section 388 petition.

A. The Court Did Not Abuse its Discretion

“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. [Citation.] A parent need only make a prima facie showing of

these elements to trigger the right to a hearing on a section 388 petition and the petition

should be liberally construed in favor of granting a hearing to consider the parent’s

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request. [Citation.] [¶] However, if the liberally construed allegations of the petition do

not make a prima facie showing of changed circumstances and that the proposed change

would promote the best interests of the child, the court need not order a hearing on the

petition. [Citations.]” (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) “In

determining whether the petition makes the necessary showing, the court may consider

the entire factual and procedural history of the case. [Citation.]” (In re Justice P. (2004)

123 Cal.App.4th 181, 189.) We note that “[a]fter 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], and in fact, there is a rebuttable presumption that

continued foster care is in the best interest of the child. [Citation.] A court hearing a

motion for change of placement at this stage of the proceedings must recognize this shift

of focus in determining the ultimate question before it, that is, the best interest of the

child.” (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).)

Father’s section 388 petition sought the provision of reunification services for six

months. The juvenile court did not abuse its discretion in denying the petition, as father

was unable to demonstrate that a changed order was in the best interest of the child. “[A]

primary consideration in determining the child’s best interest is the goal of assuring

stability and continuity.” (Stephanie M., supra, 7 Cal.4th at p. 317.) For best interest of

the child, father’s petition merely stated that the child was in his care for 35 months, and

during that time he and the child developed a bond, which they continued to share during

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visits. He then simply asserted that it would be in the child’s best interest to allow him to

reunify with the child. Father reiterates his position on appeal by asserting that the child

has spent most of his life in father’s care and that their relationship is so strong that it

would be in the child’s best interest to reunify with him. Although the child did spend

most of his life in father’s care, father failed to provide adequate care during that time.

According to law enforcement, methamphetamine was being sold out of the family

residence. The social worker observed that the residence was in a deplorable condition,

with papers, boxes, and other items stacked everywhere. There was very little food in the

residence, and there were no toys, books, or age appropriate items for the child anywhere

in the house. Father admitted that he placed the child at risk by his methamphetamine

use and by allowing felons with drugs into the residence. Father’s circumstances did not

assure the court of any stability or continuity.

Moreover, although father did have visits with the child, there was little evidence

of any bond. Father was not consistent in visiting the child, and when he did visit, he did

not seem to know how to interact with him. The social worker reported that father would

stand off to the side and watch the child play on the playground equipment. Father would

also remove himself to smoke cigarettes during the visits. Additionally, the social worker

observed that the child recognized father and used to cry when he had to leave; however,

the child no longer cried at the end of visits. In sum, father clearly failed to show how it

would be in the child’s best interest to grant him reunification services.

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 Furthermore, the juvenile court properly recognized the shift of focus from the

parent’s interest in the care and custody of the child to the child’s need for permanency

and stability. (Stephanie M., supra, 7 Cal.4th at p. 317.) The child had lived in a stable

home environment with his current caregivers since December 19, 2013. The family was

meeting all of his medical, dental, and emotional needs. The relationship between the

caregivers and the child was strong, and the caregivers were committed to adopting him.

The child referred to the prospective adoptive parents as his mother and father.

We conclude that the court properly determined that father had not carried his

burden of proof and denied his section 388 petition. We note mother’s additional

contention that should the order terminating father’s parental rights be reversed, the

judgment terminating her parental rights should be reversed as well. In light of our

determination ante, we need not address this contention.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST
Acting P. J.
We concur:

RICHLI
J.

CODRINGTON
J.

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