In re D.W.
Filed 9/18/13 In re D.W. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 D.W., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
D.W.,
Defendant and Appellant.
E058524
(Super.Ct.No. J-246177)
O P I N I O N
APPEAL
from the Superior Court of
Bernardino County.
Cheryl C. Kersey, Judge.
Affirmed.
Megan
Turkat Schirn, under appointment by the Court of Appeal, for Defendant and
Appellant.
Jean-Rene
Basle, County Counsel, and Jamila
Bayati, Deputy County Counsel, for Plaintiff
and Respondent.
I. INTRODUCTION
Defendant
and appellant, D.W. (Father), is the father of D., a boy born in September
2012. D was taken into
mother admitted she physically abused him by yanking his arm, causing it to
fracture. It was then discovered that D.
had four more fractures—two in each leg.
The court found D. was a child described in Welfare and Institutions
Code section 300, subdivision (e)
reunification or family maintenance services to either parent. (§ 361.5, subd. (b).) The court ultimately terminated parental
rights and placed D. for adoption.
Father appeals, claiming the
court erroneously refused to conduct a hearing on his section 388 petition
seeking reunification or family
maintenance services for D. (§ 388.) Father seeks reversal of the orders denying
his petition and terminating parental rights.
We conclude no evidentiary hearing was required on the section 388 petition
because it did not state a prima facie case of changed circumstances or best interests. We therefore affirm the challenged
orders.
II. BACKGROUND
A. D.’s Multiple Bone Fractures
Plaintiff
and respondent, San Bernardino County
Children and Family Services (CFS), took D. into protective custody in
September 2012, when he was only 19 days old.
On September 27, Father and D.’s mother (Mother), took D. to Desert Valley Hospital after they
awoke in the morning and noticed D.’s left arm was limp and swollen and he was
crying. At the hospital it was
discovered D. had a spiral fracture in his left arm which a doctor opined was
“almost certainly†the result of nonaccidental abuse. D. is the parents’ first and only child.
The parents initially denied
knowing what had happened to D.’s arm.
They claimed Mother may have rolled over on D.’s arm while she, Father,
and D. were sleeping in the same bed the night before. They claimed that on the morning of September
26 they took D. to his pediatrician, who checked his bones and found no
fractures. D. also showed no signs of
injury or distress when the parents took him to visit friends during the
afternoon of September 26.
Later on September 27, Mother
admitted to a police detective that she grabbed D. by his wrist and jerked him
across her body, possibly breaking his arm.
She was tired and annoyed because D. woke her. She was arrested and charged with child abuse
but later recanted, claiming her admission was coerced because the detective
told her D. would be taken away if she did not confess.
D. was transported to Loma Linda
University Medical Center, where Dr. Amy Young, a child abuse expert, conducted
a forensic child abuse examination on September 28. Dr. Young discovered D. had four more
fractures—two in each leg—which were between one and seven days old and which,
like the arm fracture, were consistent with child abuse.
Dr. Young explained the left arm
fracture was transverse, meaning the bone was “[s]napped in two pieces.†The leg fractures occurred as a result of
pulling or yanking on the legs. Unlike
the arm fracture, there was no swelling or pain associated with the leg
fractures so the pediatrician could have missed them on September 26. The pediatrician would, however, have noticed
the arm fracture had it been there on September 26.
In a written statement addressed
“To whom this may concern†dated October 1, 2012, Father claimed the detective
and interviewing social worker coerced Mother into admitting she abused D.
under threat of having him taken away and never seeing him again. Father claimed D.’s arm was likely broken
when Father put D. in a car seat during the evening of September 26. Father asserted Mother was “not guilty of
anything that has been brought upon her.â€
Neither parent ever offered to explain how D.’s legs were fractured.
In Dr. Young’s opinion, D.’s left
arm fracture could not have occurred by rolling over onto D. in bed, but could
have occurred when Mother pulled on D.’s arm or when Father placed him in a car
seat. Dr. Young believed it was unlikely
the arm was broken and the “legs yanked at twice all in one episode.†The social worker believed Mother caused all
of D.’s injuries and Father was either unaware of what Mother had done or was
protecting her.
B. Jurisdiction and Disposition
At
a November 2012 jurisdictional/dispositional hearing, the court determined D.
was a child described in section 300, subdivisions (e), (g), and (i) based on
findings Mother intentionally inflicted severe physical harm to D.’s left arm;
Father failed to protect D. from Mother’s abuse when he knew or should have
known of the abuse; and D. sustained four unexplained leg fractures while in
the care and custody of both
parents. Father testified, but refused
to answer questions concerning how D. was injured, on self-incrimination
grounds. (U.S. Const., 5th Amend.) The court refused to offer either parent
reunification services (§ 361.5, subd. (b)(5) [court may refuse to offer
services to parent when child is declared dependent pursuant to § 300, subd. (e), based on conduct of that
parent]), placed D. with a maternal aunt and uncle, and set a section 366.26
hearing.
C. The Section 388 Petition and Section 366.26 Hearing
A
contested section 366.26 hearing was scheduled for April 9, 2013, when D. was
seven months old. CFS recommended
terminating parental rights and adoption by the aunt and uncle who were
continuing to care for him. Father had
consistently visited D. once each month, supervised, as permitted by the court. Mother continued to be incarcerated.
Father filed a section 388
petition on the date of the section 366.26 hearing,
reunification services. Certificates
attached to the petition showed Father had completed 12 anger management
sessions and 12 parental education classes in February 2013. In the petition, Father stated he had
“learned to be protective†of D. and could provide “a safe and loving
home.†The petition did not indicate
Father had attended general counseling though he had been referred to
counseling earlier in the case.
Both county counsel and D.’s
counsel opposed the petition on the ground it failed to show changed
circumstances. D.’s counsel pointed out
that Father was initially not protective of D. and there was no evidence that
had changed. She argued: “[N]othing in the [section] 388 [petition]
show[s] that his state of mind has changed.
There is no therapy report showing that he would now be protective of
[D.] . . . .†For her
part, county counsel noted Father was denied services under section 361.5,
subdivision (b)(5), and for that reason had the burden of showing by clear and
convincing evidence there were changed circumstances and the best interests of
D. would be served by granting the petition.
(§ 388, subd. (a)(2).)
The court agreed the petition
failed to show changed circumstances, denied the petition without hearing
testimony or argument, and proceeded to the section 366.26 hearing. At the section 366.26 hearing, Father
testified he had a close relationship with D. and his visits with D. had been
positive. The court found none of the
exceptions to the preference for adoption applied, terminated parental rights,
and selected adoption as D.’s permanent plan.
III. DISCUSSION
Father claims the court
erroneously denied his section 388 petition without a “full hearingâ€â€”that is,
without allowing him to present testimony concerning his changed
circumstances. He argues his testimony
concerning how he had benefited from the domestic violence and parenting
classes “was essential to show [his] state of mind as to how he would be able
to protect [D.],†and the court’s denial of the petition without allowing him
to present that testimony or allowing his counsel to present argument deprived
him of due process. We reject this
claim.
Section 388 provides, in
relevant part: “(a)(1) Any parent or other person having an interest
in a child who is a dependent child of the juvenile court . . . may,
upon grounds of change of circumstance or new evidence, petition the court
. . . for a hearing to change, modify, or set aside any order of
court previously made . . . .
The petition shall be verified and . . . shall set forth in
concise language any change of circumstance or new evidence that is alleged to
require the change of order . . . . [¶]
. . . [¶] (d) 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 . . . .â€
(Italics added.)
The petition must state a
right to proceed by way of a full hearing.
(In re Edward H. (1996) 43
Cal.App.4th 584, 592.) That is, the
petition must make a prima facie showing of facts which will sustain a
favorable decision if the evidence submitted in support of the petition is
credited. (Id. at p. 593; see In re
Marilyn H. (1993) 5 Cal.4th 295, 310.)
The petition must be liberally construed in favor of its sufficiency
(see Cal. Rules of Court, rule 5.570(a); In re Angel B. (2002) 97 Cal.App.4th
454, 461), which is to say it must be “liberally construed in favor of granting
a hearing to consider the parent’s request.
[Citations.]†(In re Marilyn
H., supra, at p. 309; In re
Jeremy W. (1992) 3 Cal.App.4th 1407, 1413-1414.)
“‘There are two parts to
the prima facie showing: The parent must
demonstrate (1) a genuine change of circumstances or new evidence, and that (2)
revoking the previous order would be in the best interests of the children. [Citation.]’â€
(In re C.J.W. (2007) 157
Cal.App.4th 1075, 1079 [Fourth Dist., Div. Two].) As Father concedes: “[I]f 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.†(In re
Zachary G. (1999) 77 Cal.App.4th 799, 806; In re C.J.W., supra, at p. 1079.)
We review the summary
denial of a section 388 petition for an abuse of discretion. (In re
Marcos G. (2010) 182 Cal.App.4th 369, 382.)
If the liberally construed allegations of the petition do not make the
required prima facie showings of both changed circumstances and best interests,
the denial of the petition without a hearing does not violate the petitioner’s
due process rights. (
pp. 460-461.)
Father’s petition did not
make a sufficient prima facie showing to obtain a hearing on its merits. Liberally construed, the petition showed only
that Father had completed 12 anger management classes and 12 parenting classes
since D. was taken into protective custody as an infant seven months
earlier. This was insufficient to show
that the circumstances leading to D.’s dependency—including Father’s failure to
protect D. from severe physical abuse (§ 300, subd. (e))—had changed or
that D.’s best interests would be served by granting Father services.
Father’s assertion in his
petition that he had learned to protect D. and could provide him with a “safe
and loving home†was conclusory and unsupported by any specific evidence or
explanation. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250-252 [prima facie
showing of changed circumstances may not be conclusory and must be based on
specific evidence].) Because he failed
to offer any explanation in his petition concerning how he had benefited from
his classes or had learned to protect D., Father was not entitled to testify at
a hearing on these questions. (
Lastly, we observe that
given the court’s finding that D. suffered severe physical abuse in Father’s
custody (§ 300, subd. (e)) and its refusal to offer Father services on
this ground (§ 361.5, subd. (b)), the court was prohibited from granting Father’s petition for services unless it
found, based on “competent testimony,†that “those services were likely to
prevent reabuse or continued neglect†of D., or that the failure to try
reunification would have been detrimental to D. because he was “closely and
positively attached†to Father.
(§§ 361.5, subd. (c), 388, subd. (a)(2); In re A.M. (2013) 217 Cal.App.4th 1067, 1074-1076.) Father’s petition made no showing in support
of either of these findings.
>
IV. DISPOSITION
The
orders denying Father’s section 388 petition, terminating parental rights, and
selecting adoption as D.’s permanent plan are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
KING
J.
We concur:
HOLLENHORST
Acting
P. J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Welfare and Institutions Code unless otherwise indicated.
name="_ftn2" title=""> [2] In court on March 21, 2013, when the section
366.26 hearing was continued to April 9, Father’s counsel announced that he
would be filing a section 388 petition, but the petition was not filed until
April 9.
