In re Z.R.

Filed 12/23/09 In re Z.R. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 an order of the Superior Court of Los Angeles County, Stephen Marpet, Commissioner. Affirmed.

Donna Balderston Kaiser, under appointment by the Court of Appeal, for Appellant.

Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, Frank J. DaVanzo, Principal Deputy County Counsel, for Respondent.

D.P. (father) appeals an order of the juvenile court summarily denying his petition pursuant to Welfare and Institutions Code section 388[1]requesting modification of a prior juvenile court order denying father reunification services with his son, Z.R. (child). We conclude that fathers petition failed to make a prima facie showing that the requested change would be in the best interests of child, such that a hearing was required. We therefore affirm.

BACKGROUND

A. Detention

Childs mother (mother) had long-term problems with drug use, diabetes and an eating disorder. In 1999, mothers two older childrenchilds half-siblings (siblings)were detained by the Los Angeles County Department of Children and Family Services (DCFS). Mother failed to reunify with siblings, and in 2003, maternal grandparents were appointed as siblings guardians.

Father and mother were married in September 2003. Child was born in December 2004. Father was incarcerated on grand theft charges in May 2006, with a release date in January 2010. Parents were divorced in December 2006. In the judgment of dissolution, the family court granted sole legal and physical custody of child to mother. The judgment further provided that father could petition the family court for supervised visitation with child when father was able to demonstrate the ability to refrain from using drugs, or engaging in criminal activities in order to support his drug habit[.]

In October 2007, maternal grandmother informed DCFS that mother had relapsed into drug use. Mother admitted to using crystal methamphetamine. DCFS took child into protective custody and placed him with siblings in maternal grandparents home. DCFS filed a petition pursuant to section 300 alleging that mother had neglected child, that fathers whereabouts were unknown, and that father had failed to provide for child.

At the detention hearing, mother informed the juvenile court that father was incarcerated. The juvenile court appointed counsel for father, found him to be childs presumed father, and ordered child detained.

B. Jurisdiction/Disposition

Prior to the jurisdiction hearing, mother told DCFS that father had a long and ongoing criminal history. He had been incarcerated shortly after childs birth and had never really supported child. Mother believed father had seen child only once, at the time of childs birth. Mother had no serious contact with father while he was incarcerated. She had no plans to reunite with him.

In a telephone conversation from prison, father told DCFS that he had not had contact with mother in two years. Father told DCFS that he had been on and off heroin since 1982. Prior to his incarceration, he had been clean for over four years but had relapsed while working as a supervisor at a drug treatment program. Father was attending a 12-step program and Alcoholics Anonymous meetings while in prison. Father expected to be released from prison in January 2010.

Father told DCFS that he would be interested in having visitation with child when he got out of prison, but he was not going to attend the court hearing because he was concerned he might lose his prison housing. Father indicated that, if it became extremely important, he would come to court. Father waived his right to be present at the jurisdiction hearing.

In February 2008, DCFS filed a first amended petition. With respect to father, DCFS alleged that he was incarcerated until 2010 and had a history of both criminal convictions and substance abuse, which endangered childs physical and emotional health.

At the jurisdiction hearing, mother waived her right to a trial and submitted to jurisdiction. The juvenile court sustained the allegations in the first amended petition. The juvenile court ordered that mother was to receive reunification services. The juvenile court denied reunification services to father, stating that father would be in custody beyond the reunification period. ( 361.5, subd. (e)(1).) The juvenile court also ordered that father was not to receive visitation while incarcerated.

C. Six Month Review

In May 2008, DCFS reported that child remained with maternal grandparents, where he was well adjusted and getting along with siblings. Mother generally was in compliance with her case plan. Her failure to address her eating disorder and diabetes, however, had hampered her progress in a drug treatment program. The juvenile court told mother that she needed to address her eating disorders at an in-patient treatment program, and ordered DCFS to assist mother in finding the funds to do so.

D. Twelve Month Review

In November 2008, DCFS reported that child continued to do well in his placement with maternal grandparents. Mother was in compliance with her case plan with respect to her individual counseling, parenting education and drug testing, but she had not enrolled in an eating disorder program because she lacked the funds to do so.

In December 2008, DCFS reported that mother had relapsed on drugs. Mother died two days later. On its own motion, the juvenile court set the matter for a permanency planning hearing pursuant to section 366.26, and ordered that father be transported to the hearing from prison.

E. Permanency Planning and Section 388 Petition

DCFS reported in April 2009 that child was likely to be adopted by maternal grandparents and that an adoption home study was nearly complete. Father submitted a handwritten note to the juvenile court requesting that the matter be postponed so he could take steps to reunify with child. He stated he did not want his parental rights terminated. The juvenile court continued the permanency planning hearing. In June 2009, DCFS reported that the adoption home study had been completed and approved.

Father was present in custody at the continued permanency planning hearing. That same day, father filed a petition pursuant to section 388 requesting that the juvenile court modify its order denying him reunification services. Father cited as changed circumstances that he had actively participated in programs during his incarceration. Father asserted the change would be in childs best interests because father had lived with mother and child as a family until child was eighteen months old; he had wanted visitation with child, but childs caretakers were unwilling to transport child to visit with father; and father loved child very much. Father submitted a declaration stating that he had completed a 12-step program as interpreted by Criminals and Gangmembers Anonymous, and he volunteered as a speaker in a prerelease program for prisoners. Father had participated in a parenting class, a conflict resolution workshop, and an Ethics and Values workshop. He had taken college-level Sociology and Psychology classes, and he previously had completed a vocational program in automobile maintenance. Father declared that he wrote and called child while child was living with mother, and that he loved child more than anything.

The juvenile court summarily denied fathers section 388 petition on the grounds that father had failed to state a material change of circumstances or that the proposed order would be in childs best interests. The juvenile court terminated fathers parental rights. Father timely appealed.

DISCUSSION

A. Section 388

Section 388 permits [a]ny parent or other person having an interest in a child who is a dependent child of the juvenile court to petition for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court on grounds of change of circumstance or new evidence. ( 388, subd. (a).) 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 and shall give prior notice . . . . (Id., subd. (c).) Section 388 thus gives the [juvenile] court two choices: (1) summarily deny the petition or (2) hold a hearing. [Citations.] (In re Lesly G. (2008) 162 Cal.App.4th 904, 912; see also In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.)

[T]he court may summarily deny the motion if the petition fails to make a prima facie showing (1) of a change of circumstances or new evidence requiring a changed order, and (2) the requested change would promote the best interests of the child. [Citation.] (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189; see also Cal. Rules of Court, rule 5.570(d); In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) In determining whether the petition makes an adequate showing, the juvenile court must liberally construe the petition in favor of granting a hearing. (In re Marylin H., supra, 5 Cal.4th at p. 309; see also Cal. Rules of Court, rule 5.570(a).) The juvenile court is not limited, however, to considering only the facts asserted in the petitionrather, the court may consider the entire factual and procedural history of the case. [Citation.] (In re Justice P., supra, 123 Cal.App.4th at p. 189; see also In re S.B. (2009) 46 Cal.4th 529, 536 [[i]n a modification proceeding, all the relevant circumstances will be before the court]; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.) The burden is on the parent to establish both a relevant change in circumstance and that the requested modification would be in the childs best interests. (In re S.R. (2009) 173 Cal.App.4th 864, 870.)

B. Standard of Review

The parties disagree as to the appropriate standard of review. DCFS contends that that the summary denial of a section 388 petition is reviewed for an abuse of discretion, even though the petition need only state a prima facie case. That view is supported by the weight of authority. (See, e.g., In re S.R., supra, 173 Cal.App.4th at p. 870; In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079; In re Angel B. (2002) 97 Cal.App.4th 454, 460; In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) Father argues that, in this respect, those cases were wrongly decided. Father contends that the juvenile courts task in deciding whether to grant a hearing is to determine whether the petition is sufficient to state a prima facie case, not to weigh the evidence or to make any factual determinations. Father contends that the standard of review is de novo. We need not determine the standard employed by the juvenile court to determine whether there should be a hearing or our standard of review, because even if father is correct, in his petition, in the context of the record (In re Justice P., supra, 123 Cal.App.4th at pp. 188-189), he failed to make a prima facie showing that providing him reunification services would be in childs best interests.

C. Childs Best Interests

Father asserted in his petition that an order providing father with reunification services would be in childs best interests because father had lived with mother and child as a family until child was eighteen months old; father had wanted visitation with child during the dependency proceedings, but childs caretakers were unwilling to transport child to visit with father; and father loved child very much. None of these facts, even if established by a preponderance of the evidence after a hearing, would demonstrate that providing reunification services to father would be in childs best interests.

Accepting fathers assertions and declaration as true, the state of the evidence was as follows: Child was four and a half years old at the time of the petition in July 2009. Child had not seen father for three years. Child was, at most, only 18 months old the last time he had seen father. Although father declared that he wrote and called child while child lived with mother, the last such contact necessarily would have been before child was detained in late 2007in other words, there had been no contact at all between father and child for at least eighteen months, or one-third of childs life. Moreover, father provided no allegations as to the frequency of his calls or letters to child, or that childwho was then less than two years oldwas aware of those calls or letters, or related the calls and letters to father.

At the time of the petition, father was incarcerated, and he would remain incarcerated for another seven months. After fathers release, he intended to move into a sober living program. There was no suggestion how long father would remain there, or whether the sober living program would permit child to live at the facility, or to have extended or overnight visitation with father. Although father had vocational training in automobile maintenance and had taken two college-level courses, there was no indication of fathers prior work history, or that father had arranged for or was likely to obtain employment within a reasonable time after his release.

Father admitted that he had been a drug abuser since he was 14 years old and that he had been on and off heroin since 1982. He admitted he had been jailed numerous times for drug-related issues. It appears that father had been clean during his three years of incarceration, but father told DCFS that he had been clean for four years prior to his most recent relapse. Moreover, at the time father relapsed, he was working as a supervisor at adrug treatment program.

The record before the juvenile court thus indicated that father had no current relationship with child; father was incarcerated and would remain so throughout an initial six-month reunification period; after fathers incarceration, he would move to a sober living facility for an undetermined period; there was no indication that, after his release, father would be able to support or parent a child; notwithstanding fathers accomplishments during his incarceration, father had a long history of substance abuse; and father previously had relapsed after an extended period of sobriety, even though he was working at a drug treatment facility at the time.

In contrast, at the time of the petition, the record reflects that child had lived with maternal grandparents for approximately 18 months, or one third of his life. An adoption home study had been completed and approved. Child was affectionate and happy with maternal grandparents and was thriving in their home. Child was placed with siblings, and maternal grandparents characterized their relationship as close[,] loving and loyal brothers. Child was attending preschool and was doing extremely well. Maternal grandparents had been married for nearly 40 years; maternal grandfather was employed and supported the family in an upper middle-class lifestyle; and the family was both emotionally and financially able to care for childs needs.

After the termination of reunification services, a parents interest in the care, custody and companionship of the child is no longer paramount. [Citation.] Rather, at this point, the focus shifts to the needs of the child for permanency and stability. [Citation.] In fact, there is a rebuttable presumption that continued foster care is in the best interest of the child [citation]; such presumption obviously applies with even greater strength when the permanent plan is adoption rather than foster care. (In re Angel B., supra, 97 Cal.App.4th at p. 464 [affirming summary denial of hearing]; see also In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Marilyn H., supra, 5 Cal.4th at p. 309.)

The childs interest in permanency and stability is particularly acute when a section 388 petition is brought, as in this case, on the eve of the section 366.26 permanency planning hearingthe childrens interest in stability [is] the courts foremost concern and outweigh[s] any interest in reunification. [Citation.] (In re Edward H. (1996) 43 Cal.App.4th 584, 594.) When a father in a dependency case has been absent throughout most of the proceedings and later decides to participate, it does not automatically follow that the best interests of the child will be promoted by going back to square one and relitigating the case. Children need stability and permanence in their lives, not protracted legal proceedings that prolong uncertainty for them. (In re Justice P., supra, 123 Cal.App.4th at p. 191.)

Accordingly, a juvenile court may properly conclude that it would not be in a childs best interests to grant the father reunification services where the father has had no relationship with the child, has done almost nothing to develop a relationship with the child, and was incarcerated throughout the dependency proceedings. (See In re Zacharia D. (1993) 6 Cal.4th 435, 455-456; see also In re Jeremy S. (2001) 89 Cal.App.4th 514, 521-522 [no showing that reunification services would have been in the childs best interests where there was little evidence of a father/son bond], disapproved on another ground in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)

In this case, the record shows that father chose to absent himself from the dependency proceedings until child had bonded with maternal grandparents, an adoption home study had been completed and approved, and the juvenile court was prepared to terminate fathers parental rights. Notwithstanding his declarations of love for child, father made no attempt to build or maintain a relationship with child. Father failed to allege sufficient facts in his petition that he could provide a stable, nurturing home for child even if granted the reunification services he sought; indeed, the record established that father would be unable to do so for an extended period of time, due to his continued incarceration and his plan to move into a sober living facility after his release.

Father declared that he had wanted visitation with child, but that the childs caretakers were unwilling to facilitate such visits. Fathers unspoken and unfulfilled desire for visitation, however, was not sufficient to establish the existence of a meaningful relationship between father and child. As noted, the juvenile court was entitled to consider fathers declaration in the context of the entire proceedings. (In re Justice P., supra, 123 Cal.App.4th at pp. 188-189.) In December 2006, the family court had denied father visitation with child as part of the judgment dissolving fathers marriage to mother; there is no indication that father contested that order or petitioned the family court to modify it. Father told DCFS in January 2008 that he would be interested in having visitation with his child once he leaves prison. (Italics added.) Father then waived his right to appear at the jurisdiction hearing, even though his appearance in court likely would have facilitated visitation with child. Although represented by counsel, father did not request reunification services or visitation at the disposition hearing; father did not object to the juvenile courts order denying him reunification services or visitation while he remained incarcerated; and father did not seek appellate review of that order. There is no indication in the record that father raised the issue of visitation at any time prior to the permanency planning stage, with either the juvenile court or DCFS.

Father asserts on appeal that his disinterest during the dependency proceedings was because [f]ather had thought that mother would be able to reunite with the child, and that after mothers death, everything changed. Father cites no support for that assertion in the record, however, and we have seen none. Further, father does not explain how his unspoken assumption regarding mothers potential reunification with child established that it would be in childs best interests to reunify with father.

Based on the allegations and the record, the juvenile court did not err in determining that father had not set forth a prima facie case that the granting of a section 388 petition would be in the childs best interests. Because we affirm on this ground, we need not address the parties arguments relating to changed circumstances. In addition, because fathers petition failed to make a prima facie showing, the courts summary denial of the petition did not violate due process. (In re Angel B., supra, 97 Cal.App.4th at p. 461; see In re Marilyn H., supra, 5 Cal.4th at pp. 309-310.)

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

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