In re M.C.
Filed 8/14/13 In re M.C. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re M.C., a Person Coming
Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
ANTOINE C.,
Defendant and Appellant.
D063507
(Super. Ct.
No. J514413D)
APPEAL from
an order of the Superior Court
of
County, Carol Isackson, Judge.
Affirmed.
Neil R.
Trop, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E.
Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and
Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
Antoine C.
appeals following the summary denial of his modification
petition (Welf. & Inst. Code, § 388)
in the juvenile dependency case of
his daughter, M.C. Antoine contends that
the court erred in denying him an evidentiary hearing on his petition, in which
he requested reunification services. Antoine also contends that the delay in
establishing his paternity deprived him of the opportunity to participate
meaningfully in the case. We affirm.
BACKGROUND
Antoine and
Lynn H. (the parents) began dating in 2005.
In 2008, Lynn gave birth to
their first child together (the sibling).
Beginning in March 2010, Antoine physically abused Lynn's
two older children (the half siblings).
In June, the parents exposed the half siblings to domestic
violence. Also in June, Antoine and Lynn
left the sibling inadequately supervised and she fell from a second story
window, sustaining serious injuries. The
court ordered one of the half siblings placed with his father and in January
2012, terminated parental rights as to the other half sibling and the
sibling.
In July
2012, Lynn gave birth to M.C. A few days later, the
Agency (the Agency) filed a dependency petition on behalf of M.C. The petition named Antoine as M.C.'s alleged
father and was based on the following events.
In April, while Lynn was
seven months pregnant, Antoine threw her into a brick wall and punched her in
the stomach. Antoine was arrested, but was subsequently
released from custody. Lynn
tested presumptively positive for methamphetamine at M.C.'s birth and admitted
having used drugs during the pregnancy.
M.C. was
detained with a nonrelative extended family member who was caring for the
sibling and one of the half siblings. At
the time of the detention hearing in late July 2012, Antoine was on informal
probation in
County. He lived a transient
lifestyle and his whereabouts were unknown.
Lynn said that Antoine was
staying with his mother in Ohio. The court found that the Agency had conducted
a reasonable search for Antoine, and ordered the Agency to continue the search,
to provide notice to Antoine and to offer him
dispositional hearing for August 15.
On August 13, 2012, the Agency located
Antoine in jail in Orange County. On August 15, the court again found that the
Agency had conducted a reasonable search for Antoine. The court appointed counsel for Antoine and
noted that it might take five weeks to have Antoine produced from jail. Antoine's counsel asked that the next hearing
be delayed for five weeks. The court set
a settlement conference for September 20, found that there were exceptional
circumstances for setting the dispositional hearing beyond the 60-day limit
(§ 352, subd. (b)) and set a jurisdictional and dispositional hearing for
September 25.
title="">[2]
On September 4, 2012, M.C. was moved to
the home of a relative in the San Diego
area. At the September 20 settlement
conference, Antoine's counsel stated that Antoine was "seeking to elevate
his status through a paternity test to that of a biological father." Counsel also provided the names of two of
Antoine's relatives as possible caregivers.
The court ordered the Agency to facilitate a paternity test for Antoine
and authorized Laboratory Corporation of America
(LabCorp) personnel to obtain a DNA sample from Antoine at the jail in Orange
County. Counsel also asked that the jurisdictional
and dispositional hearing be delayed until after the court received the results
of the paternity test. The court denied
that request as to the jurisdictional hearing, but granted the request as to
the dispositional hearing. The court
entered true findings on the petition, set a dispositional hearing for October
31 and vacated the September 25 hearing date.
On October
8, 2012, the Agency faxed to LabCorp a request for paternity testing and a copy
of the court's September 20 order.
LabCorp did not respond. On
October 10, social worker Tammy Burmeister called LabCorp. A LabCorp employee told the social worker
that LabCorp had received the fax on October 8 and that "a hold had been
put on the request." The employee
further stated that she had "lifted the hold . . . and
that a fax confirming the tests would be sent to . . . Burmeister
within 24 to 48 hours." By October
29, the Agency had not received the confirmation, and Burmeister called LabCorp
again. A different LabCorp employee
stated "that no test had been done as [LabCorp] needed an original copy of
the court order . . . ." The employee instructed Burmeister to mail
the order "to the facility that would do the test in Orange
County." On October 29, the Agency
mailed the order to Specimen Specialists of America, Inc. (SSA), LabCorp's
subcontractor.
At the
October 31, 2012, dispositional hearing, Antoine's attorney asked for a continuance
to allow the Agency to complete paternity testing. The court found that there were exceptional
circumstances for holding the dispositional hearing beyond the 60-day limit
(§ 352, subd. (b)) and set a settlement conference for December 6 and a contested
dispositional hearing for December 13.
The court ordered the Agency to "move heaven and earth to get the
paternity testing done."
On November
21, 2012, LabCorp informed Burmeister "that a worker attempted to test
[Antoine] on [November 15] but was turned
away . . . because the [jail] was requiring a court order
from Orange County, that the San Diego County order would not gain the lab
worker entry." On November 21 and
November 29, "Burmeister attempted to contact Deputy Larson and the
Sergeant of the Day at [the jail] to confirm their policy, [but] neither
returned the calls." On December 4,
Burmeister reached Deputy Pridnow at the jail.
Pridnow stated that the order from the San Diego court was acceptable;
the lab worker had been denied access to the jail because he was employed by
SSA and did not have LabCorp identification.
On December 4, Burmeister contacted LabCorp. A LabCorp employee said "that they had previously
issued a [LabCorp] badge to the SSA employee who went to [the jail] but they
were unsure if it was still the same employee assigned to the
facility." The LabCorp employee
promised to "issue a new badge and send a worker out to [the jail] by the
end of the week if they got prompt response from SSA about who their [jail]
worker was." In a report filed on
December 6, the Agency requested an amended order for paternity testing at the
jail by LabCorp or SSA.
On December
6, 2012, Antoine's attorney requested a continuance "to sometime in
mid[-]January" to allow the paternity test to take place. The court denied the continuance request and
confirmed the December 13 trial date.
The court granted the Agency's request for an amended order for
paternity testing and ordered the Agency to send the amended order to the jail
by overnight mail.
On December
7, 2012, social worker Rachel Swaykos sent the court's order to the jail by
overnight mail. That day, SSA stated
that the SSA employee who would conduct the paternity test had been issued a
LabCorp identification and that a new test date would be scheduled. On December 10, Swaykos called SSA to request
a new test date. Swaykos did not receive
a return call. On December 12, Swaykos
again called SSA. Christina Cernucan of
SSA stated that "the tester had again attempted entry into [the jail] on
[November 30 ] and was turned away because the court order for the test was
from San Diego County and not from Orange County." Cernucan stated that SSA had again asked for
permission to enter the jail, and a deputy sheriff had "granted [SSA] a
onetime exception." On December 13, Cernucan stated that a sample had been
collected from Antoine.
On December
13, 2012, Antoine's attorney asked the court to continue the dispositional
hearing pending the court's receipt of the paternity test results, so that
Antoine could establish standing to request services and the evaluation of
relative placements. The court denied
the request, noting that the six-month date was on or around January 25, 2013. The court found that Antoine would suffer no
prejudice, reasoning that if he were found to be the biological father, he
could file a section 388 petition requesting services. The court declared M.C. a dependent and
ordered her removed from Lynn's custody.
The court found that it would be detrimental to place M.C. with Antoine
and ordered her placed with a relative.
The court stated that Antoine was not entitled to services because he
was an alleged father, and set a section 366.26 hearing for April 10.
On January
8, 2013, the court received the paternity test results, which showed a 99.99
percent probability that Antoine was the biological father. By January 23, the Agency had sent Antoine a
letter informing him of the results and asking which of his relatives he would
like the court to consider for placement.
Antoine
filed his section 388 petition on February 6, 2013. At the hearing that day, he was not present
either in person or by telephone. The
court attempted to arrange for Antoine to appear by telephone, but the attempt
was unsuccessful because there was an emergency at the jail (not involving
Antoine). Antoine's attorney objected to
proceeding with the hearing in Antoine's absence. The court found that Antoine was the
biological father, entered a judgment of paternity and summarily denied the
section 388 petition. While the court
was stating its reasons for the denial, a jail counselor, who was still on the
telephone with the court clerk, informed the clerk that Antoine could come to
the telephone immediately. The court
responded, "It's not necessary.
Tell them we appreciate their effort.
Thank you. I will let our clerk
get off the phone."
THE SECTION 388
PETITION
Section 388 allows the juvenile
court to modify an order if a parent establishes, by a preponderance of the
evidence, that changed circumstances exist and that the proposed change would
promote the child's best interests. (
799, 806.) The petition should be
liberally construed in favor of granting a hearing, but "[t]he 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." (Ibid.) "In determining
whether the petition makes the necessary showing, the court may consider the
entire factual and procedural history of the case." (In re
Justice P. (2004) 123 Cal.App.4th 181, 189.) We review the summary denial of a section 388
petition for abuse of discretion. (
1407, 1413; In re Aljamie D. (2000)
84 Cal.App.4th 424, 433.)
As
circumstances that had changed since the time the court denied reunification
services and set the section 366.26 hearing, Antoine's petition alleged that
the paternity finding gave him standing to request services; he had been
sentenced; and his prison release date was April 10, 2014, "within the
time frame parents are permitted statutorily to participate in
services." The petition alleged
that granting services would be in M.C.'s best interests because she "has
not had the opportunity to participate in reunification services with either
parent" and M.C. should "have the opportunity to be raised by a
parent."
To obtain a
hearing on a section 388 petition, the parent must make a prima facie showing
both that circumstances have changed and that the proposed modification would
be in the minor's best interests. (
123 Cal.App.4th at p. 188.) Antoine made
no showing that granting the petition would be in M.C.'s best interests. Indeed, his proffered reasons are
meaningless. The reasons that Antoine
proffered, i.e., that it would be in M.C.'s best interests to participate in
services with a parent and to be raised by a parent, could be proffered by
virtually any parent in any dependency case.
"The presumption favoring natural parents by itself does not
satisfy the best interests prong of section 388." (In re
Justice P., at p. 192.)
Further, Antoine had histories of violence, crime and child abuse and
had failed to reunify with the sibling.
M.C. had been in the dependency system for her entire life and Antoine
had never even met her. When reunification
services have been denied, the focus is on the child's need for permanency and
stability. (See In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
As to
Antoine's alleged changed circumstances, the fact that he had been sentenced
was irrelevant. His status as biological
father did not give him standing to request services. "[O]nly a presumed, not a mere
biological, father is a 'parent' entitled to receive reunification
services . . . ."
(In re Zacharia D. (1993) 6
Cal.4th 435, 451.) There is no
indication in the record of any factor that would enable Antoine to achieve the
status of a presumed father. The record
does not reveal whether necessary services would be available to Antoine in
prison, and his alleged release date would be within the reunification period
only if that period (§§ 361.5, subds. (a)(1)(B), (a)(3) & 361.49) were
extended beyond the 18-month date, a virtual impossibility in this case
(§ 366.22, subd. (b)).
The court did not abuse its
discretion by summarily denying the section 388 petition.
PATERNITY
Approximately
12 weeks elapsed between Antoine's request for paternity testing and the
test. The court did not receive the test
results until nearly four weeks after the test.
LabCorp, the Orange County jail and the Agency were each responsible for
some of the delay. While the lengthy
delay is unquestionably unfortunate, we conclude that it does not require
reversal of the judgment.
Antoine
contends that the delay in paternity testing and the court's refusal to
continue the dispositional hearing prevented him from preserving his
relationship with M.C. and denied him due process. He argues that he was deprived of the
opportunities to receive services before the dispositional hearing, to
participate in that hearing and to have his relatives receive preferential placement
consideration. We conclude that any
error was harmless.
At the
Agency to provide voluntary services to Antoine if he were located. He was located approximately two weeks later
in jail in Orange County. The jail, not
the court, controlled Antoine's access to services. There is no evidence what services, if any,
were available at the jail. By February
2013, Antoine had been moved temporarily to a prison where Alcoholics Anonymous
and Narcotics Anonymous meetings were available. There is no evidence that any other services
were available there, or at any other institution.
The court
may order reunification services for a biological father "if the court
determines that the services will benefit the child." (§ 361.5, subd. (a).) If the court had found Antoine to be the
biological father by the time of the dispositional hearing, there is no
possibility that the court would have found that services for Antoine would
have benefited M.C. Antoine had
physically abused the half siblings and exposed them to domestic violence. As a result of his inadequate supervision,
the sibling had sustained serious injuries, and Antoine had failed to reunify
with her. While Lynn was pregnant with
M.C., Antoine had thrown Lynn into a brick wall and punched her in the
stomach.
Nor was
Antoine deprived of any benefits of the relative placement preference. Section 361.3 gives "preferential
consideration" to placement requests by certain relatives upon the child's
removal from the parent's physical custody at the dispositional hearing. (§ 361.3, subds. (a) & (c));
841, 854.) " 'Preferential
consideration' means that the relative seeking placement shall be the first
placement to be considered and investigated." (§ 361.3, subd. (c)(1).) "Preferential consideration 'does not
create an evidentiary presumption in favor of a relative, but merely places the
relative at the head of the line when the court is determining which placement
is in the child's best interests.'
[Citation.]" (
369, 376.) Antoine could have offered
relative placement possibilities earlier in the case. However, by the time he provided the names of
his out-of-state relatives, M.C. had been living for two weeks in the home of a
relative in the San Diego area and by the time of the dispositional hearing,
M.C. had been living in the home for more than three months, and the relative
wished to care for M.C. permanently.
At Antoine's
request, the court twice delayed the dispositional hearing beyond the statutory
deadline (§ 352, subd. (b)). The
court properly denied Antoine's two subsequent requests. There were no further "exceptional
circumstances" to justify another continuance of the dispositional hearing
to a date more than 60 days beyond the detention hearing. (§ 352, subd. (b).) Further, "no continuance shall be
granted that is contrary to the interest of the minor. In considering the minor's interests, the
court shall give substantial weight to a minor's 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 . . . ." (§ 352, subd. (a).)
CUMULATIVE ERROR
In addition
to the alleged errors discussed above, Antoine argues that his trial counsel
had difficulties contacting him. Counsel
mentioned these difficulties at hearings on September 20 and October 31,
2012. In addition to continuing both
hearings, the court issued orders to the Orange County jail to facilitate
telephone communication between Antoine and counsel. By the time of the February 6, 2013, hearing,
the communication problems had been resolved.
Antoine
also argues that he had no opportunity to present evidence concerning the
domestic violence allegations. He
asserts that if he had been present at the February 6, 2013, hearing, even
telephonically, he would have told the court why he qualified for presumed
father status and why it would benefit M.C. for him to receive reunification
services as a biological father. Antoine
could have presented this information in a declaration. He did not do so.
There was
no cumulative error.
DISPOSITION
The order
summarily denying the section 388 petition is affirmed.
AARON, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.
name="_ftn1" title="">[1]
All further statutory references
are to the Welfare and Institutions Code.
name="_ftn2" title="">[2]
The court issued orders for
Antoine's appearance at the September 20 hearing and at three later
hearings. Antoine participated by
telephone on September 20 and at all subsequent hearings except at the last
hearing on February 6, 2013.
