In re Isaiah S.

Filed 10/29/07 In re Isaiah S. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from orders of the Superior Court of Los Angeles County, Margaret Henry, Judge. Affirmed.

Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.

______________________

Marcus S. appeals from the trial courts order denying his Welfare and Institutions Code section 388^[1]petition requesting unmonitored visitation and eventual custody of his son, and its subsequent order terminating his parental rights. We find no error and affirm.

FACTUAL AND PROCEDURAL SUMMARY

Mother has a long history of mental illness and psychiatric hospitalizations. Before Isaiahs birth, mother and father lived with the paternal grandmother, and they returned there after Isaiah was born in August 2005. Two days later, police were called to the home by family members, who were concerned about Isaiahs safety in mothers care because of the way she was holding him during an argument with father. Mother voluntarily gave Isaiah to the maternal grandmother while police were present, and he has remained in grandmothers care ever since.

The Los Angeles Department of Children and Family Services (Department) filed a section 300 petition on Isaiahs behalf, alleging that mother has a 15-year history of mental illness and emotional problems and a history of substance abuse, thus placing the child at risk of physical and emotion harm. There were no allegations against father. Mother is not a party to this appeal, and the balance of our factual statement is limited accordingly.

At the August 25, 2005 detention hearing, father agreed to submit to the jurisdiction of the court. The court found him to be Isaiahs presumed father,^[2]and noted that he was nonoffending under the petition. Reunification services were ordered for both parents, including monitored visits three times a week. Although there were no allegations against father in the original petition, the Department had indicated it was investigating filing an amended petition alleging domestic violence and drug use against father. For this reason, the court ordered the Department to provide father with referrals for domestic violence and drug counseling, so he would have the opportunity to start the programs.

An amended petition was not filed before the September 15 jurisdictional hearing. According to the report for the jurisdictional hearing, father had informed the social worker: I am not able to care for the child. I have no housing, I live with my mom. We had the baby three days and her mom got him, hes been with her every [sic] since. There are five people living in this house. If I had some help or knew of some program, I guess I could take care of him.

On September 15, 2005, the section 300 petition was sustained, and Isaiah was adjudicated a dependent child. The court granted fathers request for DNA testing. The testing showed a 99.98 percent probability that he is Isaiahs biological father. On December 8, 2005, the Department submitted a report on its investigation into fathers history of domestic violence. According to the maternal grandmother, the violence often was initiated by mother. Father admitted there had been an incident when he tried to leave mothers residence two years earlier. Mother pulled at him to prevent him from leaving. I tried to talk to her, I restrained her by holding her with my arms around her. There were no marks or bruises on her. She did call the sheriff and I was arrested. This was about two years ago, long before she got pregnant. He entered a no contest plea to one count of battery on a cohabitant, and completed a 52-week domestic violence program. The Department concluded that Domestic violence by the father does not appear to be [a] problem in this case.

Neither parent was present for the disposition hearing on January 26, 2006. The court ordered Isaiah remain with his maternal grandmother. Mother was ordered to participate in drug rehabilitation with random testing, parent education and anger management. She was to be evaluated by her own doctor or referred to mental health for a psychotropic medication evaluation, and she was ordered to comply with any prescribed medication regimen. Father was ordered to participate in domestic violence counseling and parent education. His request for unmonitored visitation was denied; visitation was to be monitored for both parents.

In June 2006, mother gave birth to a baby girl, who became the subject of a section 300 petition. The girl was removed from parental custody and placed with Isaiah in the home of the maternal grandmother. She is not involved in this appeal.

The six-month review hearing was continued several times, until July 14, 2006. In his report for that hearing, the social worker indicated that neither parent had showed an interest in performing court-ordered services. He also reported that mother and father had a monitored visit with Isaiah at the Department office on June 14, 2006. The visit went fairly well . . . . The social worker recommended that reunification services be terminated and that Isaiah be referred for adoptive planning with his grandmother.

At the contested hearing, mother admitted she had not taken medication for bipolar disorder for five years. She testified that she does not believe she has any type of mental illness, or that she needs medication. She also complained about the availability of visitation, and the lack of referrals for her ordered services. Father acknowledged that his visitation had been sparse, but requested additional reunification services. The court concluded that neither parent had consistently and regularly visited the child, or made significant progress in resolving the problems that led to the removal of the child, and neither had demonstrated the capacity to complete the objectives of the treatment plan or to provide for the childs safety, protection, physical and emotional health. The court terminated reunification services and set a section 366.26 permanency planning hearing for November 9, 2006.

The social workers report for that hearing indicated that he had made five telephone calls to the parents and sent them a letter in late September to inform them that weekly visits had been arranged for Fridays, from 11:00 a.m. to 12:00 p.m. The parents did not respond, and did not appear for the scheduled visits between September 29 and October 13. The permanency planning hearing was continued to January 12, 2007.

Three days before the continued hearing, father filed a section 388 petition for modification. He sought unmonitored visits with Isaiah, with eventual placement in fathers home. Father alleged there were changed circumstances: he had obtained a residence and he was participating in parenting and anger management classes. He asserted he was a nonoffending parent, he was making progress in his classes, and he did not present a risk to the child. Thus he claimed it would be in Isaiahs best interest to be placed with his father.

After hearing argument on the section 388 petition, the court denied it. The court terminated parental rights, and selected adoption as the permanent plan for Isaiah. Father filed this timely appeal.

DISCUSSION

Father claims the court abused its discretion in denying his section 388 petition. We disagree.

Under section 388, the parent of a dependent child may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child . . . to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The parent must establish that there is a change of circumstance or new evidence, and that the proposed modification is in the childs best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)

In this case, father showed some change of circumstance. He had obtained housing, and was participating in anger management and parenting classes. But he made no showing that it was in Isaiahs best interests to order unmonitored visitation or to place Isaiah in his custody. Father had barely visited with Isaiah during the 16 months since Isaiah was adjudicated a dependent child. His last visit had been one and a half months before the hearing. Asked about that, he told the court his social worker had told him he could not see his son, and did not give him a reason. Father did not call his attorney or make any other effort to find out about the problem and clear it up. The court noted: You have done absolutely minimal in terms of trying to be a father to your child, even to visit. If your child knows you, its a shock, because you have not visited enough. Theres nothing to make me think that youre going to start suddenly being a regular parent.

The court explained to father: Sir, I cannot legally grant your 388. I have no basis to say that it is in the best interest of your child or theres been a change of circumstances. You have not been a reliable force in your sons life. Father argues this statement indicates that the court misunderstood its authority to grant the petition. We understand the statement as highlighting the complete absence of evidence that Isaiahs best interests would be served by the requested order, given fathers failure to visit regularly with him.

The record fully supports this conclusion. Father had the opportunity to visit with Isaiah during the course of the dependency, yet did so only occasionally. There was no evidence he had been prevented from visiting during the first year of the dependency. Although he claimed he had been told he could not visit in the last few weeks before the hearing, he made no effort to resolve that problem. Father presented no evidence he had established a relationship with Isaiah during his occasional visits, that Isaiah would benefit from liberalizing the visits from monitored to unmonitored, or that Isaiah would benefit from continuing the visits at all. The absence of evidence of any bond between father and Isaiah distinguishes this case from In re Kimberly F. (1997) 56 Cal.App.4th 519, upon which father relies.

On this record, the court correctly noted it could not legally grant the section 388 petition because the requisite showing with regard to the childs best interests had not been made. We find no abuse of discretion in the courts denial of fathers section 388 petition.

Father raises no claim of error with regard to the order terminating parental rights, and we affirm that order as well.

DISPOSITION

The orders are affirmed

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

MANELLA, J.

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^[1] All statutory references are to this code.

^[2] There is some dispute about whether the court later concluded he was an alleged rather than presumed father. We need not address this question, since the result on appeal would be unchanged.