In re Caitlyn I.
Filed 11/12/13 In re
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIRST APPELLATE
DISTRICT
DIVISION FIVE
In re CAITLYN L., a
Person Coming Under the Juvenile Court Law.
SONOMA
SERVICES DEPARTMENT,
Plaintiff and
Respondent,
v.
DAVID L.,
Defendant and Appellant.
A137087
(
Super. Ct. No. 3799-DEP)
David
L. (father) appeals a juvenile court
order denying his petition to modify the dispositional order denying him
L. (daughter) under the bypass provisions of Welfare and Institutions Code
section 361.5, subdivision (b).
name="_ftnref1" title="">[1] We conclude the trial court did not abuse its
discretion.
FACTS AND PROCEDURAL HISTORY
Daughter,
born in 2003, is the child of father and M.D. (mother), who are no longer together. The child welfare referrals on the family
date back to 2004, and include reports of domestic
violence, physical abuse of the minor by mother, drug use by both parents,
and dirty or unsafe living conditions.
Father has longstanding issues of drug abuse and a criminal history that
includes convictions for drug-related offenses, trespassing, and inflicting
injury on a spouse or cohabitant.
In
November 2011, respondent
County Human Services Department (Department) filed a petition alleging
daughter was a child described by section 300, subdivisions (b) and (g) in that
(1) mother had failed to provide daughter with adequate medical care and
daughter was suffering from severe tooth decay; (2) mother had a substance
abuse problem placing daughter at risk; (3) mother and her boyfriend had
exposed daughter to domestic violence; (4) father had a longstanding
substance abuse problem and criminal history placing the child at risk; and (5) father
was currently incarcerated and was unable to provide care and support for
daughter.
In
the report prepared for the jurisdictional/dispositional hearing, Department
recommended that daughter be removed from mother’s custody and placed with her
maternal aunt, that mother receive reunification services, and that father be
denied reunification services under section 361.5, subdivision (b)(13), which
provides that services need not be provided to a parent when the court finds,
by clear and convincing evidence, “the parent or guardian of the child has a
history of extensive, abusive, and chronic use of drugs or alcohol and has
resisted prior court-ordered treatment for this problem during a three-year
period immediately prior to the filing of the petition.†According to the report, “[Father] has
participated in no less than three different residential treatment programs,
attending Turning Point residential twice.
In the last three years, [father] has resisted treatment on no fewer
than two occasions as indicated by his second stay at Turning Point residential
treatment and his brief stay at Jericho residential treatment program in July
2011.â€
On
December 12, 2011, both
parents submitted on the allegations in the dependency petition, and father,
who was still incarcerated, submitted to Department’s bypass
recommendation. Father’s counsel noted,
“[Father] certainly wants to be more involved and engaged in his daughter’s
life. Unfortunately, he will be in
custody for probably another six months.
He has signed up for Starting Point.
He’s taking a parenting class right now.
He is attending AA meetings in custody, and expects at some point in the
future to submit a 388 petition to ask that reunification services be
reconsidered at that time.†The court
sustained the dependency petition and adopted the findings and dispositional
orders proposed by the Department.
In
its report prepared for the six-month review hearing held in June 2012
(§ 366.21, subd. (e)), Department reported mother had left a
been out of contact, having told her sister she needed a break to visit family
in Lake County and Utah. Daughter had
been visiting with father once a month at the facility where he was
incarcerated, during which father was “good with the child as he is loving and
considers her feelings by keeping the visits about the child. The father does write letters to the child
and she has written him.†The court
terminated mother’s reunification services and set the case for a hearing under
section 366.26 to select a permanent plan.
In
the report prepared for the section 366.26 hearing, Department noted mother was
no longer visiting daughter and had stopped calling her. Father had been released from custody on June 27, 2012 and was unable to
attend the monthly visit previously scheduled for the following day, however twice
monthly supervised visits began in August as both father and daughter wished to
see more of each other. Father had only
one visit in August due to a “miscommunication.â€
An
adoption assessment was prepared and submitted to the court on August 31, 2012, reporting that
daughter was thriving in her placement with the maternal aunt and uncle and
wanted to continue living in their home.
The adoptions social worker recommended adoption, noting daughter “has a
good relationship with her potential adoptive family and would benefit from the
establishment of a permanent parent/child relationship through adoption. She seeks her potential adoptive parents out
for comfort and gets her needs met. She
appears to have substantial emotional ties to the potential adoptive parents.â€
On
September 26, 2012, father’s counsel filed a petition to modify the previous
order bypassing reunification (§ 388), by way of a JV-180 form. (See Cal. Rules of Court, rule
5.570(b).) The petition alleged father
“has fully engaged himself in every conceivable class while in custody and is
now released from custody, seeking to reunite with his daughter.†As to why the requested change would be
better for the child, the petition stated, “Father and daughter have maintained
a well-documented close bond, the strengthening of which would serve the best
interests of the minor.†Attached were
certificates showing father had completed the Starting Point Program, an
in-custody treatment program provided by the Sonoma County Department of Health
Services that offers up to 20 classes per week on issues such as anger management,
chemical dependency, relapse prevention, and parenting.
The
parties appeared in court on October 3, 2012 (one day before the section 366.26
hearing was originally set to be heard), at which time Department and minor’s
counsel opposed father’s petition. The
court continued the matter to allow father to sign a declaration under penalty
of perjury in support of the petition, the JV-180 form having been signed only
by counsel. Though no declaration by
father appears in the record, the parties next appeared in court on October 17,
and the court considered arguments from counsel to determine “how far we’re
going to go†with the petition for modification of the bypass order. Minor’s counsel opposed father’s request for
reunification services, noting daughter’s need for permanency and father’s
historic failure to parent his child. Department
took the position reunification services would not be in daughter’s best
interest and argued the JV-180 form did not state facts showing the
circumstances that led to the bypass no longer existed.
The
court denied father’s motion: “The court
is going to note that the law does require that the change of circumstances be
such that the original order would not be necessary or not need to be entered
into. At this point, given that it is a
bypass — that there was a bypass, the subsequent rehabilitation, which the court
lauds. [¶] And the court wants to
say that I appreciate your counsel’s comments that we don’t want to encourage
you with the one hand and then pretend that we’re kind of slapping you back
with the other hand. But the court is
following the law. The law requires that
for the JV‑180 to be granted, the need of change is so significant that
the original court order that is asked to be changed should not have been
issued. [¶] In this instance, given
that there’s a bypass, the court cannot make that finding.â€
The
section 366.26 hearing was held on November 27, 2012, at which time the court
selected a permanent plan of adoption and terminated mother’s and father’s
parental rights. Father timely appealed
from the orders denying his section 388 petition and terminating parental
rights, but has not raised any arguments as to the propriety of the termination
order.
DISCUSSION
Father
contends the court should have held a full hearing on his petition for
modification, and argues the case must be remanded for this purpose. We do not agree.
Under
section 388, subdivision (a)(1), “Any parent . . . may, upon grounds
of change of circumstance or new evidence, petition the court in the same
action in which the child was found to be a dependent child of the juvenile
court . . . for a hearing to change, modify, or set aside any order
of court previously made . . . .†“To prevail on a section 388 petition, the
moving party must establish . . . new evidence or changed
circumstances exist so that the proposed change . . . would promote
the best interest of the child.
[Citations.]†(
635, 641-642.)
A
section 388 petition may be denied without a full evidentiary hearing when it
fails to make a prima facie showing for relief.
(In re Marcelo B.,
facts which will sustain a favorable decision if the evidence submitted in
support of the allegations by the petitioner is credited’ †and “ ‘depends
on the facts alleged in [the] petition, as well as the facts established
without dispute by the [dependency] court’s own file.’ †(In re
B.C. (2011) 192 Cal.App.4th 129, 141.)
We review the court’s ruling on a section 388 motion, including the
decision to forego a full evidentiary hearing, for abuse of discretion. (In re
B.C., at p. 141.; In re A.S.
(2009) 180 Cal.App.4th 351, 358.)
Ordinarily,
a parent petitioning for a modification under section 388 has the burden of
proving the changed circumstances and best interest prongs of the analysis by a
preponderance of the evidence. (
Here, however, father sought to modify a reunification bypass order
based on his history of drug abuse and resistance to court-ordered treatment
under section 361.5, subdivision (b)(13).
Under section 361.5, subdivision (c), “The court shall not order reunification
for a parent or guardian described in paragraph . . . (13) . . .
of subdivision (b) unless the court finds, by clear and convincing evidence,
that reunification is in the best interest of the child.†This higher standard of clear and convincing
evidence applies to a section 388 petition filed by a parent seeking to modify
a prior order bypassing services. (
1074, 1075-1076.)
The
question then is whether the facts alleged in father’s petition, if true,
amount to clear and convincing evidence that daughter’s best interest would be
served by providing him with reunification services. The court did not abuse its discretion in
concluding the answer was “no.†Daughter
was nine years old by the time of the hearing, and had spent most of her life
being cared for by a mother who was unstable and neglectful. Though father clearly loves his daughter and
she loves him, he has been unavailable to her for the most part due to his drug
use and related criminality, a fact he did not contest at the dispositional hearing
in this case.
After
daughter was removed from mother’s custody, she was placed in her aunt’s home,
where she has done very well and wishes to remain. Though father’s recent efforts to reform are
commendable, they are just that—recent.
The court could reasonably conclude daughter’s need for stability was
paramount, and her best interest would not be served by suspending her status
to see whether father can maintain his sobriety and someday reach a point where
he can safely assume her care. The only
allegation in the petition pertaining to daughter’s best interest was the
statement she and father had a “close bond,†the strengthening of which would
benefit daughter. A further evidentiary
hearing was not required.
name="_ftnref2" title="">[2]
Father
argues the juvenile court erroneously
believed an order bypassing reunification services could not be modified by a
petition under section 388. We
disagree. The court stated that for the
petition to be granted, “the need of change†must be “so significant that the
original court order that is asked to be changed should not have been issued. [¶] In this instance, given that there’s
a bypass, the court cannot make that finding.â€
These comments do not suggest the court believed the bypass order could
not be modified, but that the change in circumstances necessary to warrant a
modification had to be of a magnitude that had not been reached in this case.
Absent
any contrary evidence, we presume the court followed the law, which allows a bypass
order to be modified when a sufficient showing has been made. (See Evid. Code, § 664 [“It is presumed
that official duty has been regularly performed.â€]; Ross v. Superior Court (1977) 19 Cal.3d 899, 913.) Indeed, if the court had not understood this
to be the case, it could have simply denied father’s motion without any input
from counsel on the merits.
DISPOSITION
The
judgment (October 17, 2012 order denying father’s petition for modification and
November 27, 2012 order terminating parental rights) is affirmed.
NEEDHAM,
J.
We concur.
SIMONS, Acting P.J.
BRUINIERS, J.
Institutions Code unless otherwise indicated.
summarily deny father’s section 388
petition, because it heard argument from counsel and did not deny any specific
request to present additional evidence.
(Cf. In re C.J.W. (2007) 157
Cal.App.4th 1075, 1080-1081.) Whether we
view the court’s order as a summary denial or a denial following an abbreviated
evidentiary hearing, we reach the same result in light of the petition’s
allegations and the facts established by the dependency file.
