In re T.P.

Filed 12/4/08 In re T.P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Christopher J. Sheldon, Judge. Affirmed with directions.

Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.

John L. Dodd, under appointment by the Court of Appeal, for Minors.

INTRODUCTION

J.P. (father) appeals as error (1) the juvenile courts denial of his request for a continuance of the permanency planning hearing regarding his two children, (2) the denial of his Welfare and Institutions Code section 388 petitions,^[1]and (3) the courts failure to make a specific visitation order. We will affirm.

FACTS AND PROCEDURAL HISTORY^[2]

On August 23, 2006, in response to a referral received after the family had visited the Oasis Rehabilitation Center in Indio two days earlier, a social worker from the Riverside County Department of Public Social Services (the department) went to the Palm Desert home of S.R. (mother) and J.P. (father). There she found three-year-old T.P. and one-year-old V.P. bruised and dirty in a filthy house with mother and a Penal Code section 290 registrant. Assisted by local sheriff deputies, the social worker removed the children from the home. Father was not home at the time.

The detention report filed two days later documented conditions at the time of the removal and the history of both parents. The house contained, among other things, a half-empty bottle of liquor and the remnants of a sheet of foil with what appeared to be residue from burned methamphetamine on it, a razor, an open nail clipper, beer cans, cigarettes, and syringes on the floor. The children did not appear to have been bathed for several days. T.P was naked, his hair was matted, and he was soaked with urine. Throughout the day of his removal he told social workers, I was in the big hotel room. There were lots of people. They throw me down and I got a lot of owes. V.P. was wearing only a dirty, urine-soaked diaper. She had a serious diaper rash, green mucous running from her nose, and multiple bruises on her body. An urgent care physician who examined the children immediately after the removal noted that V.P.s vaginal area looked and smelled suspicious and recommended the children receive a thorough physical examination to rule out sexual abuse. A nurse noted that T.P. had a burn mark on his arm. Attached to the detention report were photographs showing the condition of the children and of the house, and the many dangerous items found there.

Mother had a criminal history extending back to 1994 and had lost custody of three other children who were apparently fathered by men other than J.P. T.P. had been removed once before, on February 2, 2004, when mother and father were arrested for possession of methamphetamine, marijuana, and drug paraphernalia. The social worker who responded to the 2004 referral had been unable to interview either parent because they both appeared to be under the influence. At the detention hearing in the present case, held on September 5, 2006, the social worker testified that despite numerous requests, father had failed to drug test at any time between the time the children were removed and the hearing.

A jurisdictional/dispositional (J/D) report filed September 14, 2006, documented both parents criminal histories. Father had an extensive arrest history in Riverside County for various theft-related offenses, unlawful dumping, battery, vehicle-related offenses, drug possession, and fighting. After a contested hearing on November 2, 2006, the juvenile court found true allegations in a petition filed on August 25: that mother had neglected the health and safety of the children in that there was drug paraphernalia in the residence (b-2); that mother and father had a history of unresolved drug abuse and neglect of the children and had failed to benefit from past services (b-3); and that mother had neglected the needs of V.P. in that the child had an untreated diaper rash and vaginal odor, and signs of a respiratory infection as well as multiple bruises on her body (b-4). The court ordered reunification services and psychological testing for both parents, and that they each submit to a hair follicle test. Visitation was to be at the discretion of and supervised by the department. Father agreed to comply with the case plan and to participate in a psychological evaluation as ordered by the court. A six-month review hearing pursuant to section 366.21, subdivision (e) (.21(e)) was set for April 4, 2007.^[3]

The .21(e) report, filed March 6, 2007, recommended that services be terminated and that a selection and implementation hearing pursuant to section 366.26 (.26) be set with a permanent plan of adoption. The children had been placed with their paternal grandmother and were doing well there; the parents were visiting regularly and the visits were described as adequate. However, father had not completed his case plan, had not cooperated with requests to drug test, had not contacted the department since the childrens removal, and had not kept his appointments with the psychologist to whom he had been referred.

Neither parent appeared at the .21(e) review hearing on May 9, 2007, despite the fact that both were in court on April 4, when the matter was continued at the request of fathers attorney and an attorney for the paternal grandmother. The court terminated reunification services and confirmed September 12 as the date for a .26 termination hearing. On July 3, the court granted the paternal grandmother de facto parent status.

In a .26 report filed August 16, 2007, the department recommended that parental rights be terminated and that adoption by the paternal grandmother be selected as the permanent plan. Supervised by the paternal grandmother, both parents were continuing to visit the children and the visits continued to be adequate. However, neither parent had completed their case plans and neither appeared in court on September 12. The matter was continued to November 7 at the request of county counsel.

Between September 12 and November 7, 2007, father filed three JV-180 Requests to Change Court Order ( 388):^[4] one on September 13 regarding T.P., and two on October 9 regarding both children. Fathers September 13 petition characterized him as a natural, non-offending, father. The petition alleged as changed circumstances that mother had been granted an annulment of their marriage on August 14 and that he and mother had lived separately for over a year. The best interests of T.P., the petition stated, would be served by his maintaining his natural bond with father. The two October 9 petitions repeated (1) the characterization of father as non-offending, (2) the assertions that the parents marriage had been annulled, and (3) that the children would be better off living with father. Besides a mutual love, and natural family bond, there is no factual, lawful, basis to argue against, or challenge the request for custody. Hearings on all of the 388 petitions were also set for November 7.

On October 16, 2007, the department filed a status review report recommending that the court deny fathers 388 petitions. The report reiterated that the parents have remained consistent in not communicating with the [d]epartment regarding their status or any progress towards reunifying with their children. On November 7, the department changed its permanent plan recommendation from adoption to legal guardianship as the paternal grandmother now wished to become the childrens legal guardian rather than their mother. The court accepted the new permanent plan recommendation and, with the concurrence of all the parties except father himself, continued the .26 hearing and the hearings on the 388 petitions to January 9, 2008.^[5]

Neither parent attended the hearing on January 9, 2008. Fathers attorney had not heard from him and did not know why he was not there, but requested continuances on the 388 petitions and the .26 hearing. The court denied counsels requests for continuances and denied the substantive 388 petitions as well. In the .26 hearing that followed, the court placed the children in legal guardianship with the paternal grandmother and de facto parent, who was present, and terminated the dependency. This appeal followed.

DISCUSSION

Father argues here that the orders denying his requests for continuances of the permanency planning hearing and his 388 petitions were an abuse of the juvenile courts discretion and that its failure to make a specific visitation order was in error.

Denial of the Continuance

Provided a continuance is not contrary to the interests of the minor, a juvenile court may continue a dependency hearing at a parents request, even when the request is oral, upon a showing of good cause. ( 352, subd. (a).) Courts have interpreted this policy to be an express discouragement of continuances. [Citation.] The courts denial of a request for a continuance will not be overturned on appeal absent an abuse of discretion. (In re Elijah V. (2005) 127 Cal.App.4th 576, 585, citing In re Karla C. (2003) 113 Cal.App.4th 166, 179-180.) Abuse of discretion occurs when a courts decision is arbitrary, capricious or patently absurd. (Karla C.,at p. 180.)

Here, there was no good cause shown for a continuance other than that father did not show up. He was present at the November 7, 2007, hearing when the court set the time and place for the hearings on his 388 petitions and said he understood the reason they were being scheduled for January 9, 2008, the same day as the .26 hearing. Still, he failed to appear.

Failure to show up or to cooperate were not unusual for father. From the inception of the dependency, he did nothing to work on his case plan or reunify with his children. He failed to keep in touch with the department and he failed to drug test or to keep his appointments with the psychologist. He was present on April 4, 2007, when the court ordered him to return for the May 9 hearing, but did not do so. He was not in court for the September 12 hearing. He also apparently failed to keep in touch with his attorney who had no idea why, two hours after the hearing on his 388 petitions was scheduled to begin on January 9, 2008, there was no sign of his client. Under these circumstances, the courts decision not to continue the hearing was not arbitrary, capricious or absurd and, therefore, not an abuse of discretion.

Denial of the 388 Petitions

As with requests for continuances, we review a juvenile courts decision to deny the 388 petitions for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.)

Under section 388, any parent or person having an interest in the child may petition the court for a change of a previous order if a change of circumstances is shown such that the changed order will be in the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) At a hearing on a motion for change of placement, the burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interest of the child. (Ibid.)

Fathers 388 petitions asserted as changed circumstances that he was no longer married to the mother, who was the reason the children were dependents, and he faults the department for not properly investigating this claim. Father misunderstands the burden of proof. It was his duty, not the departments, to submit evidence of his permanent separation from mother. (In re Stephanie M., supra, 7 Cal.4th at p. 317.)

In any case, however, the fact of the parents annulment or divorce was irrelevant to the resolution of his requests for a change of custody. Even if it was true that the parents marriage had been dissolved and that they had been living apart for over a year, as father claimed, this fact did not mean that changing the custody order was in the best interests of the children. Fathers assumption that he was a non-offending parent and that the sole cause of the childrens removal lay with mother was simply not supported by the record. Although he was not at home at the time of the childrens most recent removal, there was no evidence ever presented that he was a non-offending, non-custodial parent within the meaning of the relevant statute and that he was not residing with the family on August 23, 2006. ( 361.2, subd. (a).)

Further, while father implies in his appellate brief that he made just one significant mistake in his life: he married, and had children with, a woman with a drug problem and a [department] history, the record again belies his claim. Father had his own problems and his own separate arrest history. He as well as mother appeared to have unresolved drug abuse and child neglect issues: in 2004, they were both arrested for drug possession. It is true that father was more careful than mother in what he told authorities, apparently admitting only to the use of an unspecified controlled substance a few days before the arrest. But the social worker was not able to interview either parentnot just motherbecause both were under the influence. And in the present case, father successfully avoided the issue by never testing. He did not follow through with the hair follicle test or with other drug test requests, or even with the psychological testing to which he had agreed in court.

Father relies on In re David M. (2005) 134 Cal.App.4th 822, 830, for the point that marijuana use alone is not a valid basis for dependency jurisdiction unless there is some showing of associated risk to the child. He suggests that the juvenile court should have shown at least a modicum of interest in his claim that he had been dismissed from the 2004 petition despite his admitted use of marijuana.

In In re David M., however, the parents cared well for their child and kept him healthy in a clean, tidy home, despite their marijuana use and mental illness. (David M., supra, 134 Cal.App.4th at p. 830.) Under these circumstances, the appellate court held that there was no evidence of present harm or risk of future harm such that jurisdiction was appropriate. (Id. at pp. 831-832.) That is not the case here. The harm of fathers neglect of his children is demonstrated by the state in which they were found, even though he was not at home at the time. They were not well cared for; they were filthy, bruised, and in the presence of a convicted sex offender. They were not healthy; T.P had a burn on his arm and V.P. was sick and needed antibiotics. The home was not clean and tidy; it was filthy and littered with items dangerous to children. Had father shown a modicum of interest in the well-being of his children, either in 2004 or more recently, they would doubtless not have been left in the conditions in which the social worker and sheriff deputy found them on August 23, 2006.

Father also asserts that the original b-3 allegation in the petition, which indicated that he and mother had unresolved drug abuse and child neglect issues and had failed to benefit from past services, referred only to mother and the father of her older children, but did not refer to him. Had his attorneys request for a continuance been granted, he insists, he could have presented evidence to this effect and also shown that in the 2004 case involving T.P. he had admitted to only using marijuana. But this case had been going on for well over a year by the time of the January 2008 hearing, and father had had ample opportunity to appeal jurisdiction and present such evidence. Moreover, had he bothered to show up at the hearing or to contact his attorney, it is possible he might have been able to present the evidence. But he did not. And whether or not he had had past services, there was no doubt that father had unresolved child neglect issues and had failed to make any effort at all to reunify with his children in the present case.

The courts decision to deny fathers 388 petitions for a change of custody order was not an abuse of discretion.

Visitation

Father lastly argues, and the department concedes, that the juvenile court erred by not specifying the frequency and duration of parental visits.^[6]

Both parties reference this courts opinion in In re M.R. (2005) 132 Cal.App.4th 269. In that case, we held that while a court may leave it to a legal guardian to decide the time, place, and manner in which visitation will occur, it may not delegate its discretion to decide the frequency and duration of the visits. (Id. at p. 274.)

Father argues that the court here completely failed to discharge its duty . . . as it failed to make any order for visitation. Father is not quite correct. The .26 orders suggested by the department and signed by the court provide for visitation between the parents and the children. However, the section of the forms where the visitation schedule is to be specified have been left blank. Therefore, we will remand the matter to the juvenile court for the sole purpose of specifying the frequency and duration of visitation.

DISPOSITION

The juvenile court is directed to specify the frequency and duration of parental visits with T.P. and V.P.

In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

HOLLENHORST

J.

MILLER

J.

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

^[2] On our own motion, we have incorporated the records in case No. E042119 with those of the present case.

^[3] The parents had been advised at the initial J/D hearing on September 5, 2006, that because one of the children was under the age of three, they had only six months to reunify.

^[4] Hereinafter, we will refer to the JV-180 requests as the 388 petitions.

^[5] Father and his newly-appointed attorney disagreed about the continuance on the matter of the 388 hearings. Father wanted those to be held immediately but his attorney wanted the continuance on those as well as on the .26 hearing so that he would have time to receive and review the records in the case.

^[6] Minors counsel questions whether this issue is properly before us in that visitation was not specifically mentioned in the notice of appeal. Although counsel may be technically correct, we address the issue anyway in the interest of judicial economy.