In re Lowell F.

Filed 10/4/07 In re Lowell F. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from the orders of the Superior Court of Los Angeles County, Steven Berman, Juvenile Court Referee. Affirmed.

Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Senior Assistant County Counsel, for Plaintiff and Respondent.

Lowell F. (father) appeals from an order denying his petition under Welfare and Institutions Code section 388^[1]requesting placement of his son Lowell F. (Lowell) with him and an order denying his request for a continuance of the permanency planning hearing. Father contends the rulings were an abuse of discretion. As the section 388 petition failed to make a prima facie showing warranting a hearing, and good cause was not shown for a continuance, denial of the requests was not an abuse of discretion. Accordingly, we affirm the orders.

FACTS AND PROCEDURAL BACKGROUND

Lowell was born to Tiffany F. (mother) and father in July 1997, who lived together. Father had been a dependent of the court from 1991 to 1995. He had a juvenile history of assault and robbery and an adult record of receiving stolen property and carrying a concealed weapon.

Father physically abused mother. She took Lowell and moved out, and left Lowell in the custody of the paternal grandmother. In 2003, Lowell was moved to fathers home, where he was physically abused. Making Lowell strip down to his underpants and socks for the beatings, father frequently whipped Lowell all over his body with a belt. This abuse occurred at least once a week, caused injuries, and left scars. Fathers girlfriend, Coquise J.,^[2]also frequently hit Lowell with a belt.

Lowell had special educational needs in reading, written language, math, and vocational skills.^[3] He was slow in school. On June 22, 2005, he was having difficulty finishing his homework on how to tell time and needed help with it. He was not allowed to go to bed until he finished, so he stayed up late working in the kitchen and fell asleep. Shortly after midnight, father woke him up, and when he saw Lowell had not finished, father made Lowell strip, beat him, and then made him resume working on the homework. The beating lasted 30 minutes and left bruises, redness, swelling, and welts all over Lowells body. Father was arrested and charged with corporal injury to a child (Pen. Code,  273d). Father admitted that he punished Lowell for not finishing his homework. Lowell was treated in a hospital, but the pain caused Lowell to walk with a pronounced limp after he was released.

Lowell was placed in paternal grandmothers home. Paternal grandmother was the legal guardian of Lowells older half-brother (not fathers child). Lowell suffered from frequent night terrors, depressed mood, tearfulness, and anxiety. Lowell had nightmares that people were going to hit him in the face or he was going to fall off the balcony. He believed he needed his older half-brother to protect him. Lowell was very fearful of father and wanted father to stay away.

Father admitted he used a belt to discipline his children because he thought it was appropriate and not abusive. He denied that he hit the children severely enough to cause swelling or bleeding, or made the children take off their clothes to get beaten, and he denied hitting them anywhere except on their buttocks. He asserted that the marks and bruises on the other parts of their bodies were old scratches from playing football.

On June 27, 2005, the dependency court ordered the Department of Children and Family Services to provide family reunification services to father.

On August 16, 2005, Lowell was declared a dependent of the court based on sustained allegations under section 300, subdivisions (a) and (b). The dependency court made findings that Lowell suffered or was at risk of suffering serious, physical harm inflicted nonaccidentally by father on June 23, 2005, father physically abused Lowell by repeatedly striking Lowell with a belt resulting in numerous bruises on his chest, back, arms, legs, and buttocks, and, on prior occasions, father physically abused Lowell and inflicted numerous injuries by striking Lowell with his hand, a belt, or other objects. The dependency court further found that Lowell was at risk of suffering serious physical harm as a result of fathers failure to protect him from Coquise, who inappropriately physically disciplined Lowell, and father knew of such abuse but failed to protect Lowell. Custody was taken from father and given to the Department for suitable placement. Father was ordered to attend parenting, individual counseling, and conjoint counseling with Lowell when Lowells therapist deemed it appropriate. Father, who was incarcerated, was granted monitored visits and telephone contact.

Lowell participated in weekly individual counseling. By January 2006, he was having fewer nightmares. Mothers visits were inconsistent, which caused him a great deal of stress. Father attended group programs while in custody dealing with parenting, anger management, and domestic violence.

Father, now out of custody, appeared on March 20, 2006, at the six-month review hearing. The dependency court ordered Lowell and father to immediately begin conjoint counseling, and father to participate in individual counseling. The Department was given discretion to liberalize fathers visitation after father had made progress in individual counseling.

Father participated in one conjoint counseling session but was dissatisfied with it because, in his view, all that happened was the therapist watched him and Lowell play dominoes. In May 2006, father enrolled in individual counseling. He had nine sessions from May 1, 2006, to August 7, 2006. Father told the social worker that, although he was wrong for spanking Lowell as he did, the punishment did result in an improvement in Lowells grades and behavior at school. There was little interaction between father and Lowell during their monitored visits and father did not engage in conversation with Lowell.

Paternal grandmother was approved to adopt Lowell. Father was content with paternal grandmother caring for Lowell and did not object to her adopting him.

On November 13, 2006, a 12-month review hearing was held. The Department recommended termination of reunification services. Father did not attend the hearing. Reunification services were terminated, and a section 366.26 hearing was set for March 12, 2007. The order for monitored visits was continued.

Lowell thrived in paternal grandmothers home because of the support she gave him and his closeness to his half-brother. Paternal grandmother accessed services for Lowell and was involved in his schooling. Lowell wanted to remain in paternal grandmothers care. He was very excited about being adopted by her and wanted the dependency proceedings to be over.

On January 22, 2007, father filed a petition under section 388. Seeking to change the orders terminating family reunification services and setting a section 366.26 hearing, he requested a home-of-parent-father order or any other less restrictive permanent plan. Father alleged he completed parenting, participated in individual counseling for the previous six months, visited Lowell daily on an unmonitored basis from June 2006 until December 25, 2006, and had stable employment and housing. Father alleged the modification of the order would be in Lowells interest because father believed Lowell wanted to live with father and Lowell had daily contact with father. Attached to the section 388 petition was the following evidence: (1) a page of the social workers September 18, 2006 report which indicated that father was making good progress in therapy and could benefit from additional counseling; (2) a letter dated January 8, 2007, from fathers employer stating father had been employed since August 2006 and was a valuable employee; and (3) a letter dated January 9, 2007, from fathers counselor stating father attended individual counseling five times from November 9, 2006, to the present, was working on developing his parenting skills, improving communication with family members who are involved in the lives of his children and controlling his anger, and was cooperative, participated, and consistent in attendance.

The petition was denied without a hearing on January 26, 2007, on the grounds that father failed to state facts that supported the allegations, failed to state new evidence or a change of circumstances, and failed to show how Lowells best interest would be promoted by the proposed change of order. The dependency court noted, father claimed six months [of] counseling [but] only showed five sessions and two months; no results are shown; changing circumstances at best; [and] no proof of housing.

Overall, Lowell was doing very well in paternal grandmothers home. He enthusiastically wanted to remain there and be raised with his older half-sibling under a plan of adoption. Father stopped visiting once reunification was terminated in November 2006, even though he continued to have monitored visitation rights, and he refused to allow Lowells two younger half-siblings to visit with Lowell. Lowell sadly missed his half-siblings.

The permanency planning hearing was held on March 12, 2007, under section 366.26. Father was not present. Counsel requested a continuance: the father is not here, so, based upon that, I would ask for a continuance. When asked the grounds for a continuance, counsel stated, all I know is that hes not here. Parental rights were terminated and adoption was ordered as the permanent plan.

DISCUSSION

The Order Denying a Hearing on The Section 388 Petition Was Not An Abuse Of Discretion

Father contends the order denying his section 388 petition without a hearing was an abuse of discretion, because he made a prima facie showing that circumstances had changed such that a hearing on the petition was required. The allegations of the petition were legally insufficient to warrant a hearing and, thus, denial of a hearing was not an abuse of discretion.

Section 388^[4]provides that the dependency court may modify an order if circumstances have changed such that modification would be in the childs best interest. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) The petition for modification must contain a concise statement of any change of circumstance or new evidence that requires changing the [previous] order. (Cal. Rules of Court, rule [5.570(a)(7)].) The petition must be liberally construed in favor of its sufficiency. (Id., rule [5.570(a)].) As one court has explained, if the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing. [Citation.] (In re Jasmon O., supra, 8 Cal.4th at p. 415.) If it does not appear from the liberally construed allegations of the petition that changed circumstances or new evidence exists such that the childs best interest would be promoted by the proposed change of order, the dependency court will not hold a hearing and the request for modification will be denied ex parte. (Cal. Rules of Court, rule 5.570(d); In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) 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. (In re Zachery G., supra, 77 Cal.App.4th at p. 806.)

Whether a prima facie showing is made out entitling the petitioner to a hearing depends on the facts alleged in the petition, as set out in the petitioners declaration and exhibits and the facts concerning the child that are established by the dependency court file, such as the nature of the childs placement and when the child came into the system. (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) We review the dependency courts determination denying a hearing for abuse of discretion. (Id. at p. 460.) The determination will not be disturbed unless it is arbitrary, capricious, or patently absurd. (In re Mary G. (2007) 151 Cal.App.4th 184, 205.)

We have no trouble affirming the dependency courts ex parte denial of the petition, because fathers showing fell woefully short of what the law requires. The exhibits to the petition indicated father had made progress in individual counseling prior to September 2006 but needed additional counseling, and father subsequently had another five sessions working on his issues.^[5] His diligence and trustworthiness as an employee notwithstanding, father presented no assessment of his current psychological functioning and no evidence he was rehabilitated. He alleged he had unmonitored visits every day from June 2006 through January 2006, but brought forward no supporting evidence. His claim conflicted with the dependency courts order that the visits must be monitored. Alleging merely that Lowell had contact with father, father did not indicate the nature and quality of the parent-child relationship and showed no benefit to Lowell from derailing the adoption by paternal grandmother. Lowell had been in the system for 17 months. Lowells best interest requires a timely resolution of his status. [T]he priority in dependency proceedings is to identify and carry out the services and placement that best serve the childs interests as swiftly as possible. (In re Josiah Z. (2005) 36 Cal.4th 664, 674.) Fathers extremely limited showing of changing circumstances certainly did not warrant a hearing on whether Lowells best interest would be promoted by placing him with father. The dependency court did not abuse its discretion.

The Order Denying a Continuance Was Not An Abuse Of Discretion

Fathers contention that it was an abuse of discretion to deny him a continuance of the permanency planning hearing when he simply failed to show up for the hearing is without merit. Requests for continuances in dependency proceedings may not be granted unless there is a showing of good cause. ( 352, subd. (a).)^[6] Fathers brief does not address the issue of whether good cause for a continuance was shown at the hearing, and we are satisfied good cause did not exist. The ground for the requested continuance was hes not here. As mere absence of the party, without a further showing, is not good cause (Young v. Redman (1976) 55 Cal.App.3d 827, 831), the dependency court properly denied the request.

DISPOSITION

The orders are affirmed.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J.

MOSK, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

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

^[2] Father and Coquise were the parents of two younger children, who were five and two years old when Lowell was detained in June 2005. Father had beaten the five-year-old with a belt for years, leaving scars all over his body. Father did not hit the two-year-old with a belt but would punch her hard on her shoulder and chest with a closed fist.

^[3] Lowell was also later diagnosed with ADHD and became enrolled in special education.

^[4] Section 388 provides in pertinent part that a parent 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 . . . . [] . . . [] 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 . . . .

^[5] We disagree with fathers assertion that proof he attended counseling for six months, not two months, was inadvertently omitted from the exhibits attached to the petition. We believe there was no omission. Fathers burden was to prove circumstances had changed in the two months since the dependency court terminated reunification services. The letter father claims was omitted referred to an earlier period. During the relevant period, father had only had five counseling sessions, as the dependency court correctly noted.

^[6] Upon request of counsel for the parent, . . . the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minors interests, the court shall give substantial weight to a minors need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements. [] Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance. Neither a stipulation between counsel nor the convenience of the parties is in and of itself a good cause. . . . Whenever any continuance is granted, the facts proven which require the continuance shall be entered upon the minutes of the court. [] In order to obtain a motion for a continuance of the hearing, written notice shall be filed at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains an oral motion for continuance. ( 352, subd. (a).)