In re Christopher M.
Filed 1/11/13 In
re Christopher M. CA4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re
CHRISTOPHER M., a Person Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY
HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
JOSEPH F.,
Defendant and Appellant.
D062399
(Super. Ct. No. J518082)
APPEAL
from an order of the Superior Court of
County, Carol Isackson, Judge.
Affirmed.
Joseph
F., an alleged father of Christopher M., appeals the juvenile court's order
denying him presumed father status and a hearing on his petition for
modification pursuant to Welfare and Institutions Code section 388.
FACTS
On
March 25, 2011, Christopher, then 18 months old, was taken by his maternal
great-grandmother to the office of the San
Diego County Health and Human Services Agency (Agency). The great-grandmother said Christopher's
mother, Patricia M., who was living in Tijuana, had left
him in her care 10 days earlier, and the great-grandmother could no longer care
for him. The great-grandmother had been
trying to contact Patricia for days, but was not successful until the prior
evening when they arranged to meet the following morning at the United States/Mexican
border. However, Patricia did not show
up at the meeting time. The
great-grandmother wanted Christopher placed in protective custody because she
did not believe Patricia was properly caring for Christopher.
This
was not the first time Patricia left Christopher in the care of others for an
extended period. Patricia left
Christopher with her ex-boyfriend, who in turn transferred him to other
acquaintances and eventually the great-grandmother was contacted. From October 7, 2010,
to November
24, 2010, the great-grandmother took care
of Christopher and was seeking legal guardianship when Patricia contacted her
and asked that Christopher be returned to her.
(See fn. 2, post.) Patricia also had left Christopher's two half
siblings with their great-grandmother without any provision for their
care. The mother lost custody of
Christopher's half siblings; the older child lives with the great-grandmother,
who is her legal guardian, and the younger child lives with her father.
In
her initial interview with an Agency social worker on March 25, Patricia said
she lived with her current boyfriend, Arturo G., but identified Cesar H. as
Christopher's father. Patricia said she
was not in contact with Cesar and thought he lived in Mexico City. Patricia also denied information previously
supplied to the Agency that Christopher's father's first name is Joe or Joseph.
former boyfriend, was not Christopher's father.
Later that day, a social worker called Arturo, who said he was
Christopher's father.
name="_ftnref3" title="">[3]
On
March 28, the social worker asked Patricia to confirm Arturo was Christopher's
father, and she replied he was "without a doubt."
On
March 30, the Agency filed a dependency
petition on behalf of Christopher under section 300, subdivision (b). The petition listed Arturo as an alleged
father. The court detained Christopher
in foster care, ordered supervised visitation for Patricia and deferred the
paternity issue.
Patricia
named Arturo as Christopher's biological father in her paternity questionnaire
and said there was no question in her mind that he was the father. According to Patricia and Arturo, a home
genetic testing kit showed Arturo was the father. Patricia reported Arturo supported
Christopher.
title="">[4] Patricia said Arturo could not cross the
border because he had been deported.
After
the detention hearing, the Agency was unable to contact Patricia for about two
weeks and then established contact with her through e-mail. The Agency sought the assistance of Desarrollo
Integral de la Familia (DIF), a Mexican social services agency, to contact
Arturo, but those efforts were largely unsuccessful. Throughout these proceedings, the Agency did
not have any direct contact with Arturo after its initial phone call with him.
On
May 19, Patricia's counsel told the juvenile court that Christopher had been
living with Patricia and Arturo since his birth except for the time that
Patricia spent in San Diego, and Arturo held Christopher out to be his own
child. The court elevated Arturo's
status to presumed father under Family Code section 7611, subdivisions (a) and
(d).
On
July 21, the juvenile court sustained the petition and declared Christopher a
dependent. The court removed custody
from Patricia and Arturo (§ 361, subd. (c)(1)), placed Christopher in foster
care,
ordered the Agency to submit a case plan for Patricia and ordered Arturo to
contact the social worker within 20 days to get a case plan. Neither Patricia nor Arturo attended the
hearing.
For
the upcoming six-month review hearing, the Agency recommended services be
terminated and a section 366.26 hearing be set.
Patricia had visited Christopher only sporadically, and the Agency had
no verification that she had started services.
When DIF contacted Arturo, he said he was not interested in
participating in any services.
On
December 29, Patricia arrived for a visit with Christopher accompanied by two
adults who claimed they were Patricia's cousins from Georgia. Patricia told the social worker she wanted
Christopher placed with her in the home of her cousins.
On
February 8, 2012, the juvenile court terminated services and set a section
366.26 hearing. It found returning
Christopher to his parents would be detrimental to his physical and emotional
well-being, reasonable reunification services had been offered and the parents
had not made progress with their case plans.
In
May 2012, Joseph contacted the Agency and said he was "stepping forward as
Christopher's father." He also said
Patricia told him that he was Christopher's father and gave him "the okay,
otherwise I wouldn't be calling you. She
wants to have a family with me. I do
love him [Christopher]. I love her
too . . . ." In
a subsequent phone conversation, Joseph said he recently moved from Virginia
and was staying in a townhouse in Mexico.
At
a special hearing on June 6, the juvenile court ordered a paternity test for
Joseph. In a paternity questionnaire,
Joseph said Patricia had told him he was Christopher's father and he had told
his extended family he was Christopher's father. Joseph also said he had visits with
Christopher of up to one month in length from the child's birth until February
2011, had supported Christopher on visits and had helped Patricia with
expenses. Joseph also testified that he
had been a Virginia resident for 15 years and had traveled to Mexico about one
and one-half weeks before the hearing to find Patricia, who he had not seen or
been able to contact since February 2011.
Before then, Joseph said he had regularly traveled from Virginia to take
Christopher every other month to visit his allegedly paternal relatives in
Hesperia, California. Joseph learned
that Christopher was in the dependency system about 10 days earlier when Patricia
told him.
On
June 11, 2012, Patricia told the social worker that she had lied "about
everything." Patricia also said she
knew "for a fact" that Joseph was Christopher's father. After a June 18 visit with Christopher,
Patricia told the social worker she doubted her son would be returned to her
care, but if Christopher were returned to Joseph, "I'll get him back. I'm going to do what I need to do." Patricia said Joseph had cared for
Christopher "every other week"; the social worker noted Joseph
previously had said he saw Christopher every other month or every couple of
months.
On
June 26, the paternity test results showed Joseph was not the biological father
of Christopher.
On
July 26, Joseph filed a section 388 petition to vacate the court's May 19,
2011, order finding Arturo was the presumed father of Christopher and to grant
him (Joseph) presumed father status. As
new information, the petition cited Joseph's recent court appearance with new
information about paternity and his interest in services, visits and custody
while Arturo had never contacted the Agency, participated in services or
requested visits. Regarding how the
requested change would benefit Christopher, the petition stated that it
"would give Christopher the opportunity to maintain ties with
family."
At
a special hearing on July 31, the juvenile court found a prima facie showing
had not been made as to either changed circumstances or best interests and
denied an evidentiary hearing on the petition.
The court stated:
"The
Court does not find there is a prima facie established here, either as to
changed circumstances or best interest.
As to changed circumstances, [Joseph] appeared. That is something that changed, but I don't
think it is sufficient to support the Court finding by a preponderance of the
evidence that there is a changed circumstance.
We have to look at the context in which [Joseph] did appear. He appeared on the eve of a [section 366].26
hearing.
[¶] . . . [¶]
"He
indicated that he had been living in Virginia for 15 years. He indicated that he, during the early part
of Christopher's life, cared for him every other
month. . . . [H]e did not
provide as part of the [section] 388 [petition] any proof whatsoever that he
commuted from Virginia, that he took the child for a month at a time. It was simply his word, which the Court did
not find credible particularly in the context to the mother stating to . . .
the social worker that she's lied about everything and that if Christopher is
back with [Joseph], though, I will get him . . . .
"The
Court cannot disregard the Court's knowledge of the context in which this
[section] 388 [petition] is filed.
"And
in addition, the [section] 388 [petition] makes reference to the new
information provided by [Joseph]. So
it's incumbent upon the Court to take a look at the new information. I don't find either source of the
information, mother or [Joseph], credible.
It would have been much more credible and perhaps met the threshold
requirement of a [section] 388 [petition] had [Joseph] provided some proof of
his prior involvement with the child.
"In
addition, he had no address. He just
moved to Mexico [10] days ago, commuted from Mexico to get the child. It was a bit jumbled, but in any case, not
credible.
"So
I do not find [he has] met the threshold as to [section] 388 for coming forward
with enough information to consider that he may be or is presumed [father]
under [Family Code section] 7611[, subd.] (d).
Therefore his status remains alleged father . . . ."
DISCUSSION
Joseph
contends the juvenile court erred by denying him an evidentiary hearing on his
section 388 petition because he made the requisite prima facie showing of
changed circumstances and best interests.
The contention is without merit.
"Section
388 provides the 'escape mechanism' . . . built into the [dependency] process
to allow the court to consider new information." (In re
Marilyn H. (1993) 5 Cal.4th 295, 309.)
Pursuant to section 388, a parent or a person having an interest in a
dependent child may, "upon grounds of change of circumstance or new
evidence," petition the juvenile court to change, modify, or set aside any
court order. (§ 388,
subd. (a)(1).) The petition must
allege why the requested change is "in the best interest[s] of the
dependent child." (§ 388, subd.
(b).) "If it appears that the best
interests of the child . . . may be promoted by the
proposed change of order, . . . the court shall order that a hearing be
held . . . ."
(§ 388, subd. (d).)
The
court, however, may deny a section 388 petition without a hearing when the petition
fails to make a "prima facie showing of a change of circumstances and that
the proposed change of order is in the best interest[s] of the
child." (In re D.R. (2007) 155 Cal.App.4th 480, 487; In re Anthony W. (2001) 87 Cal.App.4th 246, 250; Cal. Rules of
Court, rule 5.570(d).) When determining
whether the petition makes the necessary showing, the juvenile court must
liberally construe it in favor of its sufficiency. (In re
Daijah T. (2000) 83 Cal.App.4th 666, 672.)
" 'The prima facie requirement is not met unless the facts alleged,
if supported by evidence given credit at the hearing, would sustain a favorable
decision on the petition.'
[Citations.]" (
1497, 1505.)
Not
just any change of circumstances will entitle a petitioner to a hearing under
section 388. Rather, "the change of
circumstances or new evidence must be of such significant nature that it
requires a setting aside or modification of the challenged prior
order." (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485.) To warrant a hearing, "[t]he petition
may not be conclusory. 'Specific
allegations describing the evidence constituting the proffered changed circumstances
or new evidence' is required.
[Citation.] Successful petitions
have included declarations or other attachments which demonstrate the showing
the petitioner will make at a hearing of the change in circumstances or new
evidence." (In re Anthony W., supra,
87 Cal.App.4th at p. 250; see also In re
Edward H. (1996) 43 Cal.App.4th 584, 593 ["If a petitioner could get
by with general, conclusory allegations, there would be no need for an initial
determination by the juvenile court about whether an evidentiary hearing was
warranted."].)
We
apply the abuse of discretion standard in our review of the juvenile court's
decision to deny the section 388 petition without a hearing. (In re
Brittany K., supra, 127
Cal.App.4th at p. 1505.) We affirm the
order unless it " ' "exceeded the bounds of reason. When two or more
inferences can reasonably be deduced from the facts, the reviewing court has no
authority to substitute its decision for that of the trial court." '
" (Ibid.) The juvenile court's
decision will not be disturbed " ' "unless the trial court has
exceeded the limits of legal discretion by making an arbitrary, capricious, or
patently absurd determination." ' "
(In re Stephanie M. (1994) 7
Cal.4th 295, 318.) "The denial of a
section 388 motion rarely merits reversal as an abuse of discretion." (In re
Amber M. (2002) 103 Cal.App.4th 681, 685-686.)
The
juvenile court was well within its discretion in denying Joseph's section 388
petition without a full evidentiary hearing.
The petition did not establish a change in circumstances or other new
evidence that would suggest a modification of the court's prior order would
promote Christopher's best interests.
Joseph was an alleged father, whose biological claim was shown to be not
true. Even by his own claim, he was
coming forward after having not seen Christopher for nearly one and one-half
years. Further, Joseph did not supply
any documentary evidence to support
his claim that he had traveled from Virginia to San Diego or Mexico every other
month to visit Christopher and take the boy to his allegedly paternal relatives
in Hesperia. The petitioner bears
"the responsibility in the first instance, as [the] moving party, to make
a prima facie showing, which [Joseph] failed to do." (In re
Anthony W., supra, 87 Cal.App.4th
at p. 251.) Also, Joseph's claim of
visits every other month was belied by the great-grandmother's undisputed
account that Christopher was in her care through most of October and November
2010—the first time Patricia had abandoned her son.
Moreover,
the juvenile court is not obligated to accept a petitioner's allegation in a
vacuum sealed off from facts revealed earlier in the proceedings. Rather, the court may consider the
"historical patterns" of the case in evaluating the petition and its
prima facie sufficiency. (
799, 808.) As to Joseph's appellate
argument that because of the credibility issue, an evidentiary hearing was
called for, we disagree. As cited in our
factual recitation, the juvenile court, in denying an evidentiary hearing,
expressed doubt about the credibility of Joseph and Patricia, who supported his
paternity assertion. There was ample
cause for such doubt because after Joseph appeared in the case, Patricia told a
social worker that although she did not expect Christopher to be returned to
her, "if Christopher is with [Joseph], I'll get him back. I'm going to do what I need to do." Joseph also told a social worker he called the
Agency only because Patricia approved of him doing so.
Joseph's
reliance on In re Clifton V. (2001)
93 Cal.App.4th 1400 is misplaced. There,
the mother filed a section 388 petition requesting that her son be returned to
her care due to the changed circumstance that she was visiting and calling him
more frequently. (Id. at p. 1403.) The
paternal grandmother submitted a declaration stating the mother was not telling
the truth about the frequency of the calls and visits. (Id.
at pp. 1403-1404.) The Court of
Appeal held the juvenile court violated the mother's right to due process by
denying her request for a full evidentiary hearing and that the error was not
harmless beyond a reasonable doubt because the matter involved "a clear
credibility contest between [the] mother and the paternal grandmother" (
court was at a great disadvantage in evaluating the parties' credibility".
. . "[w]ithout the benefit of live
testimony and cross-examination . . . ." (Id.
at p. 1406.)
Here,
in contrast, the issues relating to Joseph's paternity claims did not involve a
"clear credibility contest."
The juvenile court had already had the opportunity to make the
credibility determinations it needed to decide whether to grant Joseph presumed
father status at an earlier hearing, when he responded under oath to the
court's questions. Because Joseph did not present any new essential facts in
connection with the section 388 petition that would have required further
credibility determinations, there was no need for further live testimony.
We
also conclude that the evidence fails to establish that Christopher's best
interests would be served by the requested relief. The following factors should be considered in
determining whether a section 388 petition addresses the best interests of the
child: "(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.) The strength of
the relative bonds between the child and parent and caretakers becomes an even
more important factor when a section 388 petition is filed after reunification
services have been terminated.
"After 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.]" (In re
Stephanie M., supra, 7 Cal.4th at
p. 317.)
Joseph
alleged in his section 388 petition that the proposed change "would give
Christopher the opportunity to maintain ties with family." Aside from the fact that any reunification
between Joseph and Christopher was highly speculative, the allegation
completely ignored Christopher's interest in stability. The evidence before the juvenile court was
that Christopher, a special needs child, was thriving in the care of the foster
parents who were willing to provide a permanent plan of adoption for him. "At this point in the proceedings, on
the eve of the selection and implementation hearing, the [child's] interest in
stability was the court's foremost concern, outweighing any interest [father]
may have in reunification." (
As
Joseph did not carry his burden under section 388 to make a prima facie showing
of new evidence or a change of circumstance or that the change would be in the
best interests of Christopher, the juvenile court did not abuse its discretion
in summarily denying the petition for modification.
DISPOSITION
The
order is affirmed.
BENKE, J.
WE CONCUR:
McCONNELL,
P. J.
NARES, J.
name="_ftn1" title="">[1] All further statutory
references are to the Welfare and Institutions Code unless otherwise indicated.
name="_ftn2" title="">[2] In 2010, the
great-grandmother, who had petitioned the court to be named as Christopher's
legal guardian, had listed the child's father as "Joe" (no last name)
and said he was deceased on the child information attachment to the petition. The great-grandmother did not follow up with
the petition because Patricia reclaimed Christopher before the hearing on the
petition.
