In re D.G.

Filed 8/30/06 In re D.G. CA2/8

Opinion following rehearing

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEALS from an order of the Superior Court of Los Angeles County.

Stephen Marpet, Juvenile Court Referee. Reversed.

Anna L. Ollinger, under appointment by the Court of Appeal, for Defendant and Appellant Leonora M.

Kimberly A. Knill, under appointment by the Court of Appeal, for Appellant Damian G.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Arezoo Pichvai and Kim Nemoy, Deputy County Counsels, for Plaintiff and Respondent.

INTRODUCTION

This is an appeal by Damian G. and Leonora M. from a juvenile court order terminating their parental rights over their child, D.G. (hereinafter Father or Mother respectively, or parent's collectively.) Father argues that he did not receive notice of the jurisdiction and disposition hearings. Respondent concedes that adequate notice of the jurisdiction and disposition hearings was not provided Father and that the order should be reversed as to Father only. Mother challenges the court's order denying her Welfare and Institutions Code[1] section 388 petition for modification without a hearing and finding that the parent-child exception of section 366.26, subdivision (c)(1)(A) does not apply. Respondent argues that the juvenile court's orders regarding Mother are correct.

PROCEDURAL AND FACTUAL HISTORY

D.G. is the son of Leonora M. and Damian G.[2] D. was eight months old when he came to the attention of the Los Angeles County Department of Children and Family Services (DCFS). In April 2004, after Mother was incarcerated for forgery and violation of probation, DCFS filed a petition alleging neglect pursuant to section 300. In June 2004, the juvenile court dismissed the dependency petition and ordered D. returned to Mother under a voluntary family maintenance contract pursuant to section 301. Mother signed the contract on June 15, 2004, which required her to complete parenting and individual counseling.

Beginning around August 20, 2004, DCFS was unable to locate Mother or son.[3] On September 2, 2004, DCFS found D. in the home of Father's girlfriend, Tieassa L., who reported that Mother had dropped D. off at her home a few days before and had not returned to pick him up. Tieassa was unwilling to continue to care for the boy. On September 10, 2004, DCFS filed a section 300 petition alleging, in part, that Mother left D. with an unrelated caretaker without making provisions for his on-going care and supervision. The petition also alleged that Mother did not leave appropriate medication to treat the child's asthma. The petition also alleges D. has two siblings that were previously declared dependent children of the juvenile court and that Mother has failed to reunify with those children. The allegations were sustained at a detention hearing on December 21, 2004. At the hearing, the court ordered temporary placement and custody of D. with DCFS pending disposition or further order of the court. Mother was permitted to have a minimum of twice a week visitation for up to two hours in duration. The court advised Mother that DCFS was not recommending reunification services, but if she involved herself in drug programs and started taking classes, and returned to court showing that she really wanted her child back, "they may give you that opportunity."

Mother reported that Damian G. was D.'s biological father, but had not seen D. because he was incarcerated in state prison since Mother was eight months pregnant. Mother reported that Father was incarcerated at Lancaster State Prison.[4] At the September 10, 2004 detention hearing, the court found Damian G. to be the alleged father and ordered that he be given notice of further proceedings.

At a hearing on January 24, 2005, the court ordered that Mother was not entitled to receive family reunification services, but that "she may continue to show progress in complying with all court orders and if she shows substantial improvement in her counseling and in her visits her counsel is directed to file the appropriate 388 petition to reflect the change in circumstances."

The next hearing occurred on May 23, 2005. In the progress report prepared for that hearing, DCFS described Mother's performance as follows: Mother was not in compliance with the Shields for Families program. Mother was in partial compliance with bi-weekly 2-hours monitored visits and she visited sporadically. Mother had 20 negative drug tests and three no show's.

D. was residing with his prospective adoptive mother since October 22, 2004. Reports to the court were very positive regarding his developmental progress. They indicated that D. continued to thrive with his prospective adoptive parents and they had formed a strong attachment for each other.

A section 366.26 termination hearing was set for June 30, 2005. On June 2, 2005, Mother filed a section 388 petition requesting D. be placed with her or with his father or other family members; in the alternative, she requested unmonitored visits and six months of reunification services. Her petition was based on a positive progress report from Shields. On June 30, 2005, the court denied hearing on Mother's section 388 petition and held that "after reviewing mother's counsel's 388 petition . . . that it's not in the best interest to grant a hearing and also finds that there is not a change in circumstances to grant a hearing on the 388 petition. The court's ruling is made over mother's counsel's objection." Mother's counsel objected noting Mother's reliance on the court's advisements at prior hearings to file a section 388 petition if she continued in her program, showed improvement in counseling, and was consistent in visitation.

The court then commenced the section 366.26 hearing. Mother was the sole live witness at that hearing. Mother felt that the section 366.26 (c) (1)(a) exception should apply because she established a parent-child relationship with her son during his first year of life while he lived with her and that it continued during her visits with him in foster placement. The court disagreed that the exception applied and terminated parental rights for both Mother and Father.

Mother filed a notice of appeal on July 4, 2005, from the "denial of mother's hearing on 388 petition" and filed a second notice of appeal from the "termination of Mother's parental rights.'

DISCUSSION

1. Section 388 Modification

Section 388 provides that, if circumstances have changed such that it would be in the child's best interest for an order to be modified, the court should modify the order. (In re Kimberly F. (1997) 56 Cal. App.4th 519, 526.) As such, section 388 serves as an " "escape mechanism' when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights." (Id. p. 528.) "[I]t provides a means for the court to address a legitimate change in circumstances" to afford the parent one last opportunity to reinstate reunification services prior to final resolution of custody status. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)

In this case, Mother contends the court erred when it denied Mother's section 388 petition without affording her a full hearing. Cases provide that section 388 petitions must be liberally construed in favor of granting a full hearing to consider a parent's requested change or modification. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) A parent need only make a prima facie showing to trigger the right to a full hearing. (Id. at p. 310.) The petition may be denied on an ex parte basis only if it fails to reveal a change of circumstance or new evidence which might compel a modification of existing orders (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414), or if it does not appear that the proposed change will promote the child's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806-807.) Where a parent fails to satisfy both parts of the required prima facie showing, the court does not abuse its discretion in denying the petition without a full hearing. "It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child." (In re Kimberly F., supra, 56 Cal.App.4th at p. 529, italics omitted; In re Daijah T. (2000) 83 Cal.App.4th 666, 672.)

To warrant a hearing, "[t]he petition may not be conclusory. '[S]pecific 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. (2001) 87 Cal.App.4th 246, 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"].) Here, in her section 388 petition, Mother stated that the requested modification was that "Minor be placed with Mother, or in the alternative, Mother to be given unmonitored visits and provided with 6 months of family reunification services." The modifications were in the child's best interests because "Mother and child visit every week, and all indications are that the visits go well. Mother is now able to provide a home for the child and care for the child in a safe and loving manner." The allegations offered in support of the proposed change were:

"1. Mother has been in full compliance with Shields for Families. She is receiving individual counseling, parenting, drug and alcohol counseling with testing. 2. She is visiting on a weekly basis. 3. Mother has her own apartment and has been residing there for the last 2 months." Attached to the petition as additional evidence were two progress reports from Shields for Families, Inc. The first report covered the time period from "1-5-05 to 1-31-05." She was described as having "a positive attitude toward the program, staff and peers"; "displays good behavior"; "appears very motivated towards the program"; and "has been compliant in the program and has good attendance." The second report covered the time period from "2-1-05 to 2-28-05." This report indicated that appellant "remains compliant" in the program, has participated in program events and "appears motivated towards the program." Also, at this time, her attendance was good.

Here, the court properly denied the section 388 petition without a full hearing because Mother failed to make the requisite prima facie showing. As to the first prong of the required showing, she failed to show genuine changed circumstances. The evidence provided showed that Mother was participating, but did not offer any evidence that she was anywhere near completion of her goal. "A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)

In addition, the petition did not show how any change of order would be in D.'s best interest. As stated, the petition alleged: "Mother and child visit every week, and all indications are that the visits go well. Mother is now able to provide a home for the child and care for the child in a safe and loving manner." In In re Zachary G. the court found that similar, unsupported allegations were inadequate to establish a prima facie case that a change of order would be in the child's best interest: "[T]he petition did not show, and there was no independent evidence from Mother's therapist or expert showing, that Mother was immediately ready to take custody of Zachary on a permanent basis. More importantly, Mother's allegations did not show, and there was no independent evidence showing, that it was in Zachary's best interests to be removed from the only home and caretakers he had ever known, and thereby be deprived of the stability of a permanent home, in order to be returned to a parent who remained a risk (based on her psychological profile as well as her historical patterns) to again regress by returning to an abusive partner." (In re Zachary G., supra, 77 Cal.App.4th at p. 808.)

Mother's petition required a demonstration that mother had made significant changes in her circumstances and would be able at some point in the near future to resume custody of the minors. Alternatively, Mother was required to show that the proposed modification might serve the best interests of the minors. On this record, the juvenile court was entitled to find that neither circumstance was shown by Mother and denying the petition without a hearing was not error.

2. Termination of Parental Rights

On March 30, 2006, this court issued an opinion upholding the juvenile court's refusal to consider mother's section 388 petition and found there was sufficient evidence to support the decision to terminate her parental rights.[5] We reversed the order and reinstated the parental rights of father because of the failure to provide proper notice.

On April 14, 2006, mother filed a petition for rehearing noting that our decision was counter to California Rules of Court, rule 1463(a) which provides:

"The court may not terminate the rights of only one parent under section 366.26 unless that parent is the only surviving parent, or the rights of the other parent have been terminated under former Civil Code section 224, 224m, 232, or 7017, or Division 12, Part 3, Chapter 5 (commencing with section 7660) or Part 4 (commencing with section 7800) of Division 12 of the Family Code, or Family Code section 8604, 8605, or 8606 or the other parent has relinquished custody of the child to the welfare department."

This rule reflects a change from the prior statutory scheme where parents' rights could be terminated in separate proceedings.

Respondent urges this court to allow the termination of mother's parental rights to stand. Respondent argues that "[u]nder the California Constitution, this Court cannot set aside a judgment unless the lower court committed prejudicial error. Consistent therewith, nothing in the California Rules of Court prohibits this Court of Appeal from reinstating the parental rights of only one parent." Respondent acknowledges there are recent reported decisions where appellate courts have restored parental rights to one parent when the parental rights were terminated in separate proceedings.[6] Nevertheless, respondent "requests this Court to reject [the other cases] holdings and follow constitutional mandates."

Respondent's constitutional analysis is based on the provision in the California Constitution which provides: "No judgment shall be set aside . . . unless . . . the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) Respondent continues, "[rules] 1463(a) and (h), which mandate[ ] the simultaneous termination of both parents' rights, [do] not apply to appellate courts," but only to the actions of the juvenile court.

We are aware that there is a division of opinion and a variety of approaches on this issue. In Los Angeles County Dept. of Children & Fam. Services v. Superior Court (2000) 83 Cal.App.4th 947, Division Seven of the Second Appellate District granted a petition filed by DCFS for a writ of mandate challenging an order of the juvenile dependency court reinstating parental rights of a mother. On facts quite similar to ours, the juvenile court terminated parental rights of both parents. Only the father appealed and the order terminating his parental rights was reversed because of lack of proper notice. (Id. at p. 949.) On remand, the juvenile court reinstated mother's parental rights under California Rules of Court, rule 1463(a). DCFS filed a petition for a writ of mandate and the appellate court found that the juvenile court erred in reinstating mother's rights in the absence of her filing her own appeal.

In DeJohn B., supra, 84 Cal.App.4th 100, Division Three of the Fourth Appellate District reached the opposite result. After the rights of both parents were terminated, the appellate court reversed the judgment terminating the parental rights of mother as she was not given proper notice. The father did not separately appeal, but joined mother arguing his parental rights must be reinstated if mother prevailed. The appellate court held: "The judgment terminating his parental rights must be reversed as well, despite the absence of independent error pertaining to him. We agree, although we observe this result is not automatic, but dependent upon whether there are impediments to reversal. [Citations.]" (Id. at p. 110, original italics.) The DeJohn B. court declared the stated purpose of California Rules of Court, rule 1463(g)[7] is to free the dependent child for adoption and reinstating the rights of only one parent means the desired result "is not now attainable." (Ibid.)

Division Three of the Second Appellate District in In re Vincent S. (2000) 92 Cal.App.4th 1090 (Vincent S.), endorsed the rationale of the DeJohn B. case although they did not ultimately reinstate any parental rights. In Vincent S., the juvenile court terminated mother's parental rights and rescheduled father's hearing to give DCFS an opportunity to locate and notice him. Mother filed an appeal and the Vincent S. court held that the juvenile court violated rule 1463(a) of the California Rules of Court and committed procedural error. However, no remedy was given or reinstatement ordered in Vincent S., because by the time of the appellate court's ruling, the father's rights had also been terminated and he did not appeal that decision. Based on the facts of Vincent S., this was a clearly an appropriate result for a variety of reasons and we do not disagree with the outcome. However, the facts of Vincente S. differ from this case.

The next relevant decision was Eileen A., supra, 84 Cal.App.4th 1248; also decided by Division Three of the Fourth Appellate District. In Eileen A., the appellate court held that reversal as to one parent mandates reversal as to the other. The juvenile court had terminated the parental rights of both parents (as in our case), both parents appealed (as in our case), the appellate court reversed the judgment as to the mother (as with father in our case). The father filed a letter with the court, but declined to file an opening brief on the merits. (Id. at p. 1263.) Nevertheless, the appellate court felt they were "required by rule 1463(g) of the California Rules of Court . . . to reverse the termination of [the father's] rights as well." (Ibid.)

Appellant mother makes additional arguments that the reinstatement of her parental rights is in the best interest of the child. She puts forth various considerations supportive of her position, including: obligation to pay support; loss of legal status to present claims, intestate inheritance, and social security. As a practical matter, we have no reason to disagree with these observations. We even feel there are other anomalous and difficult consequences that could result. For example, consider the possibilities in a situation where the remaining parent continued or resumed a marital or live-in relationship with the parent whose rights were terminated.

However, it is the statement of purpose in rule 1463(h) of the California Rules of Court that presents the operative consideration. When reunification of the family cannot be accomplished, the objective of the process is to "free the dependent child for adoption." The objective is not to punish the parents for their inability to regain custody of their children. Requiring that parental status be maintained for both parents until they can be terminated in a single proceeding presents only a small burden on the process.[8] Accordingly, the dependent child is not free for adoption until the status of both parents is resolved. During that time period, the maintenance of the parental status does not dictate any of the conditions of the child's placement, visitation, reunification services or any other matters.

DISPOSITION

The order of the juvenile court terminating parental rights is reversed as to Mother (Leonora M.) and Father (Damian G.).

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P. J.

We concur:

RUBIN, J.

BOLAND, J.

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[1] All further statutory references are to the Welfare and Institutions Code.

[2] D. has two siblings, Brianna C. and Robert C. Both siblings were adopted by their paternal great aunt and uncle on December 23, 2004.

[3] Mother's whereabouts were unknown from August 20, 2004 to October 29, 2004.

[4] Father was incarcerated throughout these proceedings and was to be released in August 2005.

[5] In re D. G. (Mar. 30, 2006, B184226) [nonpub. opn.].

[6] In re De John B. (2000) 84 Cal.App.4th 100 (De John B.); In re Eileen A. (2000) 84 Cal.App.4th 1283 (Eileen A.) [overruled on separate grounds].

[7] Renumbered as rule 1463(h), effective January 1, 2005.

[8] We acknowledge that there will be cases where the dependency process has advanced to the point where, by the time the case is considered by the Court of Appeal, reinstatement of parental rights is meaningless. We are not suggesting in this opinion that, regardless of the situation, even in similar circumstances, parental rights must always be reinstated.