In re L.K.

Filed 12/17/08 In re L.K. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. H.A. Staley, Judge.

Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance by Plaintiff and Respondent.

-ooOoo-

L.K. appeals from orders terminating parental rights (Welf. & Inst. Code,  366.26) to his two children.^[1] Appellants appointed appellate counsel submitted a letter dated September 16, 2008, advising that no brief would be forthcoming (In re Sade C. (1996) 13 Cal.4th 952). We extended time for appellant to personally file a letter brief, which he eventually did in November 2008. In his letter, appellant asks us to reconsider the trial courts denial of his section 388 petition for reunification services. Having reviewed the appellate record as summarized below, we conclude appellants remarks do not amount to claims that the juvenile court committed an error affecting the outcome of this case (In re Sade C., supra, 13 Cal.4th at p. 994) and will affirm.

PROCEDURAL AND FACTUAL HISTORY

In July 2007, the Kern County Superior Court adjudged appellants one- and three-year-old children juvenile dependents and removed them from parental custody. The court previously exercised its dependency jurisdiction over the children and their half siblings based on their mothers habit of leaving them without any adult supervision and failing to provide them with adequate food and shelter. The children were originally detained in April 2007. Appellant was incarcerated in state prison at the time and not expected to be released until April 2008.

The court denied appellant reunification services at the July 2007 dispositional hearing, finding he was incarcerated and there was clear and convincing evidence that ordering reunification services for him would be detrimental to the children ( 361.5, subd. (e)(1)). In addition, the court did not grant appellant visitation rights.

The childrens mother failed to participate in court-ordered services. Consequently, at a January 2008 status review hearing, the court continued the childrens out-of-home placement, terminated services, and set a May 6, 2008, section 366.26 hearing to select and implement a permanent plan for each of the children.

Appellant was apparently released from Pelican Bay State Prison as of the latter half of April 2008. At an April 21, 2008, ex parte hearing, the court granted appellant monthly, one-hour, supervised visits with his children. A few days later, appellant through his trial counsel petitioned the court to modify its earlier order ( 388) and grant appellant reunification services. He claimed circumstances had changed given his prison release and he wanted the opportunity to reunify with his children. He alleged services would be in the childrens best interests because they would have the advantages and benefits of being raised by a natural parent as well as have contact with other family members.

In the departments first of several social worker reports opposing appellants section 388 petition, the social worker described her unsuccessful efforts to contact appellant and ascertain whether he had any proof he had taken classes while incarcerated or had since attempted to enroll in classes since his prison release. The social worker also cited the departments recommended finding that the children were likely to be adopted and should be freed for adoption.

The department further opposed appellants request for services given his criminal history dating back to 1999. In particular, in 2000 he was sentenced to state prison for violation of Penal Code section 12031, subdivision (a)(2)(C) (criminal street gang member carrying a loaded firearm). He also admitted a strike prior (Pen. Code,  667, subd. (e)) at the time. He was again sentenced to state prison in June 2006, prior to his childrens detention, for felon in possession of a firearm (Pen. Code,  12021, subd. (a)(1)).

On the original date set for the section 366.26 hearing, appellant was absent purportedly because he was signing up for a parenting class. However, according to later reports regarding the section 388 petition, as of mid-June 2008, appellant had not enrolled in any classes since his prison release. He claimed it was too expensive. Appellant eventually enrolled in a 13-week parenting course in late June 2008 but was not scheduled to start the class until July 2008.

Since the court order for monthly visits, appellant was able to visit the children more frequently than the courts order. He visited the children six times between May and July. He played with the children and brought them snacks. He was characterized as a friendly visitor to the children.

The court eventually conducted a combined section 366.26 and section 388 hearing in mid-July 2008. It was undisputed that the children and their 10-year-old half sibling were adoptable. The three children had lived together in the same placement for the preceding year and their foster parents were committed to adopting them.

Appellant testified in support of his modification petition. He was incarcerated in April 2007 when the children were placed in protective custody, having been locked up since March 2006. His son was two years old and his daughter was three months old at the time. Prior to his incarceration, the children lived with him and their mother. Before he was transported to Pelican Bay State Prison in the latter half of 2006, he did have visits with the children.

While in prison, there was no counseling available to appellant. Since his release on parole in April 2008, appellant complied with his parole terms and visited with the children. He believed they recognized him and were affectionate towards him. Appellants son called him [D]ad.

The childrens older half sibling, who also testified, confirmed the friendly visits between appellant and his children. She thought appellant and the children had a good relationship.

Following closing arguments, the court denied appellants section 388 petition. It noted in part it would be speculative to find reunification services at that point would be in the childrens best interest. The fact that appellant was currently on parole and appeared to be doing positively was not enough. The court thereafter found the children likely to be adopted and terminated parental rights.

DISCUSSION

An appealed-from judgment or order is presumed correct. (E.g., Denham v. Superior Court (1970) 2 Cal.3d 557, 564 ....) Hence, the appellant must make a challenge. In so doing, he must raise claims of reversible error or other defect (see ibid.), and present argument and authority on each point made (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591 ...; accord, In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 278 ...). If he does not, he may, in the courts discretion, be deemed to have abandoned his appeal. (Berger v. Godden [(1985)] 163 Cal.App.3d [1113] at p. 1119.) In that event, it may order dismissal. (Ibid.) Such a result is appropriate here. With no error or other defect claimed against the orders appealed from, the Court of Appeal was presented with no reason to proceed to the merits of any unraised points-and, a fortiori, no reason to reverse or even modify the orders in question. (See People v. Brigham (1979) 25 Cal.3d 283, 289 ....) (In re Sade C., supra, 13 Cal.4th at p. 994.)

Having reviewed his letter brief and the record herein, we conclude appellant raises no arguable issue regarding the courts decision. Appellant claims the court denied his petition for reasons that are technical. We strongly disagree.

First, it was appellants burden to establish not only changed circumstances, but also that the modification, here reunification services, would promote the childrens best interests. ( 388; In re AudreyD. (1979) 100 Cal.App.3d 34, 43.) Here, although appellant had been released from prison, he overlooks the fact that the children were very young when he was jailed and he had no contact or relationship whatsoever with them once he went to prison. Meanwhile, because these children were so young, the opportunity for family reunification had long since elapsed. ( 361.5, subd. (a).)

In addition, appellant failed to establish how an order reopening reunification would be in the childrens best interests. To understand the element of best interests in the context of a section 388 motion brought, as in this case, at the termination phase, we look to the Supreme Courts decision in In re Stephanie M. (1994) 7 Cal.4th 295.

[A] primary consideration in determining the childs best interests is the goal of assuring stability and continuity. (Burchard v. Garay (1986) 42 Cal.3d 531, 538, and fn. 6 ....) When custody continues over a significant period, the childs need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child. (Ibid., fn. omitted; see also In re Marriage of McGinniss (1992) 7 Cal.App.4th 473, 478 ....)

[] []

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 (In re Marilyn H. [1993] 5 Cal.4th 295, 309), and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. (Id., at p. 302.) 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 interests of the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317.)

Simply put, appellants evidence did not establish that the childrens need for permanency and stability would be advanced by a new order for services.^[2]

Whether the juvenile court should modify a previously made order rests within its discretion and its determination may not be disturbed unless there has been a clear abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 318.) Here, there is no basis for even an arguable claim that the court abused its discretion.

DISPOSITION

The order terminating parental rights is affirmed.

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^* Before Wiseman, Acting P.J., Levy, J., Dawson, J.

^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2]We note according to appellants letter brief that he is currently in an inpatient drug treatment facility, essentially confirming the courts concern at the hearing about how speculative appellants future was.