Jonathan R. v. Super. Ct.

Filed 9/26/07 Jonathan R. v. Super. Ct. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Deborah A. Daniel, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Petition denied.

Michael C.P. Clark for Petitioner.

No appearance for Respondent.

Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Real Party in Interest.

Jonathan R. is the presumed father of eight-year-old Anthony and two-year-old J. In 2005, the maternal grandparents, who previously were appointed to serve as legal guardians of Anthony, were appointed as legal guardians of J. as well, subject to juvenile court supervision under a permanent plan of guardianship. However, in 2007, the legal guardians filed a petition pursuant to Welfare and Institutions Code,[1] section 388 to modify the prior permanent plan, and to have the matter referred for a new permanency plan hearing pursuant to section 366.26, at which parental rights could be terminated. The hearing on the section 388 petition was set in conjunction with a pending semi-annual review of Anthonys matter ( 364), and a post-permanent plan review hearing ( 366.3) as to J.

Father requested a contested hearing on all three matters; his request was denied. He challenges the order denying the request for a contested hearing by way of the instant writ petition. We deny the petition.

1. Background

Prior to Js birth, Child Protective Services became involved with the family on Anthonys behalf. Although the details are unclear, that referral was resolved when the maternal grandparents were appointed to be the guardians of Anthony by the Probate Court. J. was born in 2004, testing positive for drugs, and was only released to mother so long as she agreed to live with her mother, along with Anthony. After five months, mother moved out with both children to live with father.

In September, 2005, a dependency petition was filed as to both children. The petition alleged in count 1 the children came within section 300, subdivision (a), based on physical abuse of J. by his father which caused bruising; count 2 alleged the children came within section 300, subdivision (b), based on mothers drug abuse that prevented her from protecting the children, and domestic violence which occurred in the childrens presence; count 4 alleged the children came within section 300, subdivision (b) because the mother failed to protect the children from physical abuse; count 5 alleged the guardians failed to protect Anthony by allowing the child to return to live with his parents; count 6 alleged the sibling was at risk.

On November 21, 2005, following a jurisdiction/disposition hearing (as to the parents only, the guardians waived their rights and admitted the allegation relating to their failure to protect Anthony), the court made a true finding as to counts 2 through 6, and declared both children dependents under section 300, subdivisions (b) and (j). The children were removed from parents and guardians custody. Reunification services were ordered and the social worker was authorized to place them in the home of the maternal grandparents by information packet.

The children remained in a nonrelative extended family member (NREFM) placement until June of 2006, when the foster parent notified the Department of Childrens Services (DCS) she could no longer keep the children. Mother and maternal grandmother reported that J. was losing weight and dehydrated and had a scratch on his neck, raising concern he was being abused in the foster home. The NREFM caretaker reported that the maternal grandmother was instigating the allegation and requested that the children be removed as she did not want problems. On June 13, 2006, a section 387 petition was filed.

On June 23, 2006, the court conducted a combined jurisdiction/disposition (respecting the 387 petition) and section 366.21, subdivision (e) review hearing. For the contested review hearing, both parents testified, as did the social worker. The court found fathers progress was absent. The court found mother had only minimally participated in her service plan. The court found the guardians/grandparents had completed their reunification plan; it returned Anthony to their custody, and ordered J. placed there also. It terminated reunification services for both parents.

On September 21, 2006, the social worker submitted a section 366.26 report as to J., recommending guardianship as the permanent plan. The report noted J. has delays in language and fine motor skills, and that there were compelling reasons for not terminating parental rights: his relationship with his grandparents; removal from his proposed guardian would cause detriment; a guardianship would be consistent with the permanent plan of his sibling; and his maternal grandparents may not be approved for adoption because of the removal of Anthony from their custody.

On October 2, 2006, the court conducted the permanent plan hearing as to J. and adopted the social workers recommendation, finding termination of parental rights would be detrimental, and appointing the maternal grandparents as legal guardians. Both parents agreed with the proposed permanent plan of guardianship. The court did not terminate the dependency.

In preparation for the post-permanent plan hearing ( 366.3), the department reported its case plan goal for Anthony, whose case was still in family maintenance mode, was to transfer it to permanency planning, and to place Anthony in the same plan as J. The DCS noted that the guardians wished to adopt both children. However, the social worker felt that guardianship was the preferred plan because the maternal grandparents might not be appropriate adoptive parents, given their own involvement in the dependency system resulting in the prior removal of Anthony from their care. The report also noted that father had made no efforts to visit the children and mother had only visited once during the previous six months.

On May 31, 2007, the guardians/grandparents filed a section 388 petition seeking to modify the previous permanent plan of guardianship and to set a section 366.26 hearing for termination of parental rights. The petition noted that the father has had no contact with the children and the mother has had only two contacts in the past six months. The court determined there was new evidence or changed circumstances warranting a hearing on the petition, but indicated it would consider only documents and papers filed; it would not hold an evidentiary hearing. The DCS opposed the proposed modification; its position was that adoption was not an appropriate plan because of the guardians history of failure to protect. The DCS recommended maintenance of the guardianship, which would make it easier to remove the children should the placement fail.

On July 16, 2007, the court conducted a combined hearing on the section 388 petition and the semiannual status/post-permanent plan review. Fathers counsel objected to the setting of a section 366.26 hearing and granting of the section 388 petition; he requested that the matter be set as a contested hearing. The court noted father had not filed any objection or opposition to the section 388 petition, despite the fact the court had indicated on the section 388 petition that it would be heard on the basis of written documents only. Father also requested a contested hearing respecting the post-permanency planning review and semiannual review hearings. The court denied the request.

The trial court granted the guardians section 388 petition and set a section 366.26 hearing for purposes of considering termination of parental rights. The section 366.26 hearing is set for November 13, 2007. Father timely filed a notice of intent to file a writ petition pursuant to California Rules of Court, rule 8.450.

2. Discussion

Father contends the juvenile court denied his due process rights when it denied his request to set the matters for a contested hearing. Father cites, among other authorities, In re Josiah S. (2002) 102 Cal.App.4th 403, and In re Kelly D. (2000) 82 Cal.App.4th 433, standing for the proposition that a parent has a right to a contested hearing at the post-permanency planning review. As we will explain, no due process violation occurred here. We therefore deny the petition.

A. Appealability

Real party in interest does not cite any authorities on the merits of the point raised in the petition, to support its position that relief should be denied. Instead, real party argues that because status review and post-permanency review orders are appealable, the petition should be dismissed. Real party is in error. Because the matter was referred for a hearing pursuant to section 366.26, a writ petition is the appropriate vehicle to raise the fathers challenge; all issues arising out of the contemporaneous findings and orders made by a juvenile court in setting a section 366.26 hearing must be raised by way of a writ petition. (In re Anthony B. (1999) 72 Cal.App.4th 1017, 1021-1022.)[2]

B. Denial of Request for Contested Hearing Did Not Violate Fathers

Due Process Rights.

We agree with the general principle that due process protections apply in dependency proceedings. However, due process is a flexible concept. (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1116.) The due process guarantee of a meaningful opportunity to cross-examine and controvert the contents of the report is not synonymous with full-fledged cross-examination rights. (In re Jeanette V. (1998) 68 Cal.App.4th 811, 816-817.) The due process right to present evidence is limited to relevant evidence of significant probative value to the issue before the court. (Id. at p. 817.)

Different levels of due process protection apply at different stages of dependency proceedings. (In re Thomas R. (2006) 145 Cal.App.4th 726, 733.) Prior to terminating services, that is, while family reunification is still the focus of proceedings, the burden of proof is on the DCS to prove jurisdictional facts, detriment, reasonable services, and the need for further supervision. ( 355, subd. (a); 366.21, subds. (e), (f); 366.22, subd. (a).) In such cases, a parent has an unfettered due process right to confront and cross-examine adverse witnesses at contested hearings held before the permanency planning stage. (Ibid; see also, David B. v. Superior Court (2006) 140 Cal.App.4th 772, 778-779.) During these stages of the dependency up until the setting of the section 366.26 hearing, the parents interest in reunification is given precedence over the childs need for stability and permanence. (In re James Q. (2000) 81 Cal.App.4th 255, 266.)

However, after reunification services have been terminated, the focus of the proceedings shifts. At the selection and implementation hearing, the department has the burden of proving adoptability. ( 366.26, subd. (c)(1).) However, thereafter, there is a presumption that continued care is in the best interests of the minor, so the parents have the burden of proving that further efforts at reunification are in the childs best interests. (Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1146-1147.) After all, the court had already held a selection and implementation hearing at which a permanent plan of guardianship had been ordered. There was no due process violation here.

The cases relied upon by father for the proposition that denial of a contested hearing is reversible error are cases in which the DCS had the burden of proof and there was no presumption that continued care was in the minors best interests, or where the parent filed timely opposition or objection setting forth the relevance of the proposed evidence and the need for a contested hearing. The present case is distinguishable on many counts.

First, the present case is in the post-permanent plan stage, where there is a presumption that continued care is in the childs best interests, placing the burden of proof on the parent to show the contrary. The social workers report, to which there was no proffered objection, demonstrates father could not overcome the presumption. Second, the permanent plan of guardianship, which the DSC did not recommend changing, is one to which the father expressly agreed. Third, in addition to not objecting to the social workers report, the father did not oppose the section 388 petition filed by the guardians. (See In re Josiah S., supra, 102 Cal.App.4th at pp. 414, 417.) Fourth, father had not completedor even initiatedeven a single component of his reunification plan, nor had he visited his children. The odds are not good that he would be able overcome the statutory presumption of continued care with his track record. Fifth, notwithstanding the failure to visit, continued visitation was ordered.

Under these circumstances, the juvenile court did not violate due process in denying fathers request to set the post-permanent plan hearing for a contested hearing. We therefore deny the petition.

3. Disposition

The petition is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Ramirez

P. J.

s/McKinster

J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

[1] Unless otherwise specified, all further statutory references are to the Welfare and Institutions Code.

[2] In footnote 11 on page 13 of real partys response brief, the DCS states, It is clear from the courts discussion at RT 181-183 that the minute orders for July 16 have a clerical error: The Department does limit the recommendation [at the section 366.26 hearing] to legal guardianship or long term foster care. This should have read The department does not [emphasis by real party] limit. Real party is in error. The DCSs report indicated the social worker was opposed to the notion of terminating parental rights in favor of adoption by the grandparents, due to their own involvement in juvenile court proceedings. The trial court disagreed with the DCS in granting the section 388 petition and setting the section 366.26 hearing. Its statement is accurate as reported.