In re A.F.

Filed 8/12/08 In re A.F. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant Father.

Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant Mother.

Joe S. Rank, County Counsel, and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.

Janette Freeman Cochran, under appointment by the Court of Appeal, for Minor, A.F.

Leslie A. Barry, under appointment by the Court of Appeal, Nicole Williams and Rich Pfeiffer for Minors, Alexis F. and R.F.

Mother and Father, the parents of A.F. (almost age 10), Alexis F. (age seven) and R.F. (age two) appeal the denial of their separate petitions to modify the prior order (Welf. & Inst. Code, 388) setting a permanency planning hearing (Welf. & Inst. Code, 366.26) for all three children, and father appeals from a judgment terminating parental rights with respect to A.F. and R.F.

1. Background

The two older children, A.F., born in June 1998, and Alexis F., born in September 2001, came to the attention of the Department of Public Social Services (DPSS) on August 1, 2005, due to an incident of domestic violence involving both parents, the discovery of illegal substances in their home, and fathers substance abuse issues. The children were detained,^[1]and on October 25, 2005, they were found to be dependent children based on a petition alleging neglect. (Welf. & Inst. Code, 300, subd. (b).) Specifically, the petition alleged the children were exposed to a substantial risk of harm due to the parents acts of domestic violence, committed in the childrens presence, as well as the fathers substance abuse, the parents failure to provide appropriate treatment for Alexiss autism, and the unsanitary conditions of the home.

R.F. was born two months after jurisdiction had been established with respect to the two girls, and he remained in his mothers care until February 8, 2006, when the social worker took him into custody due to the continued abuse of controlled substances by both parents and further acts of domestic violence. R.F. was eventually placed in the same home as A.F., a relative placement. R.F. was declared a dependent child on March 6, 2006.

Prior to the 12-month review, neither parent had regularly participated in the court ordered reunification plan, and neither parent demonstrated they could abstain from using methamphetamines. The social worker recommended terminating services and setting a permanency planning hearing. (Welf. & Inst. Code,  366.26.) At this point, the parents finally engaged in their reunification plan. By October 17, 2006, the parents had completed parenting classes, completed domestic violence therapy sessions, and had enrolled in substance abuse programs. The social worker therefore changed her previous recommendation, and now recommended an additional three months of services. The court followed the recommendation.

Unfortunately, the parents did not maintain their momentum. By the January 16, 2007, status review report, both parents had been discharged from their respective substance abuse programs as unsuccessful, and each missed drug tests. Although the parents visited their children, the social worker recommended termination of services and a Welfare and Institutions Code section 366.26 hearing because they had not addressed substance abuse issues despite receiving three additional months of services. Additionally, in February 2007, father was arrested on charges relating to burglary, check forgery, and possession of stolen property and criminal proceedings on those charges were pending.

Based on the parents regression, the social worker recommended terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing. Because the hearing was continued, an addendum report reflected the parents ongoing efforts. The report dated April 13, 2007, reflected that father had completed 16 weeks of a domestic violence program, but had been twice discharged unsuccessfully from the drug treatment program. Another addendum report, filed May 21, 2007, reflected mothers admitted drug relapse, although she had also submitted several negative drug tests and had enrolled in a substance abuse program in April 2007.

On May 24, 2007, father filed a request to change court order (Judicial Council Forms, form JV-180; Welf. & Inst. Code, 388), because he had nearly completed his reunification plan, which was set to be heard with the continued status review hearing. The court denied the fathers Welfare and Institutions Code section 388 petition and terminated reunification services. The court observed the case had gone on for two years and the parents had come late to the realization that they needed to get their lives in order. Further, it noted there were still some loose ends out there, specifically a criminal matter, which caused the court some concern. The court set a permanent planning hearing.^[2] Father did not seek review of the orders.

In October 2007, both parents submitted requests for change of court orders which the court agreed to hear. (Form JV-180; Welf. & Inst. Code, 388.) The court considered the petitions at the permanent plan hearing on November 14, 2007, and denied them. The court found that there might be changed circumstances (although it was not clear on that), but that it would not be in the childrens best interests to change the prior orders. The court terminated parental rights as to A.F. and R.F., freeing them for adoption, and ordered a guardianship as to Alexis F.

Both parents appealed the termination of parental rights.

2. Discussion

A. The Trial Court Did Not Err in Denying the Welfare and Institutions Code Section 388 Petitions.

Both parents appeal from the order denying their respective petitions for change of court order. Both parents frame the issue as an improper summary denial of an evidentiary hearing as to the respective petitions. In her reply brief, mother argues the court erred in denying a continuance of the hearing on the Welfare and Institutions Code section 388 petitions.

(a) Neither petition was summarily denied.

On the petitions, the court checked the box indicating it would hear the petitions. At the time of the hearing, the parents appeared with counsel, but no witnesses had been subpoenaed to appear. Neither party offered evidence at the hearing and neither party objected to what is now labeled a summary denial of the Welfare and Institutions Code section 388 petition. A party on appeal cannot successfully complain because the trial court failed to do something it was not asked to do. (In re Cheryl E. (1984) 161 Cal.App.3d 587, 603.)

(b) The Denials of the Petitions Were Not Improper.

We review the denial of a petition to modify a prior order (Welf. & Inst. Code,  388) for an abuse of discretion. (In re Aaron R. (2005) 130 Cal.App.4th 697, 703.) Welfare and Institutions Code section 388 provides a juvenile court order may be changed, modified or set aside if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist, and (2) the proposed change would promote the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-317.) Because the juvenile court found there were changed circumstances based on the parents belated participation in court ordered programs,^[3]we focus on the second prong: the courts determination modification would not be in the childrens best interests.

To determine whether a modification would serve the childrens best interests, three factors are considered: (1) the seriousness of the reason for the dependency in the first case; (2) the strength of the existing bond between the parent and child; and (3) the degree to which the problem may be easily removed or ameliorated and the degree to which it actually has been. (In re B.D. (2008) 159 Cal.App.4th 1218, 1229.) The burden is on the parents to show that a change in the childrens placement would be in their best interests in order to prevail on their Welfare and Institutions Code section 388 petition. (In re Casey D. (1999) 70 Cal.App.4th 38, 48.)

The parents did not meet any of the three factors. Fathers petition asserted that modification of the prior orders was in the childrens best interest because it was the only means by which the three siblings will be kept together as a family and a sibling group, that father had addressed all his issues and was now in a position to have all the children returned to his custody. This did not establish he could address the needs of his autistic daughter Alexis F., or that he had any existing bond with any of the children, or that the problems which led to the dependency had actually been ameliorated.

Mothers petition asserted only that [a] healthy healing relationship with the entire family is always in the best interest of the child. While the reports indicated visits between the children and parents went well, there was no evidence presented to show that the strength of the existing bond between the parent and child (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531) was sufficient to establish that modifying the prior order would be in their best interests.

The children have been in their current placements for more than two years and were attached to their respective caretakers. The prospective adoptive parents are committed to maintaining the sibling relationships, so the permanent plan of adoption did not threaten the childrens best interests. (See In re Justice P. (2004) 123 Cal.App.4th 181, 192.)

(c) There Was No Good Cause to Continue If a Continuance Was Requested.

In her reply brief, mother contends for the first time that the parents requested a continuance of the Welfare and Institutions Code section 388 hearing, to secure the attendance of the therapist. The record does not support this interpretation as fathers attorney requested a continuance of the Welfare and Institutions Code section 366.26 hearing, not the 388 petition, and specifically requested that the Welfare and Institutions Code section 388 matter proceed that day. Mothers counsel joined the request. The only reference to continuing the 180 came after minors counsel argued against the Welfare and Institutions Code section 388 and requested that the matter proceed to the hearing to terminate parental rights. At that point, fathers counsel requested leave to address the Welfare and Institutions Code section 366.26 portion of the hearing, and, after being told by the court to proceed, counsel stated he was requesting a continuance as to the 180 (form JV-180). However, instead of making a motion to continue, he immediately proceeded to argue the possible exceptions to termination of parental rights. Mothers counsel joined those arguments.

To the extent the parents assert there was error in denying a continuance of the Welfare and Institutions Code section 388 petition, an issue not briefed in their opening briefs, neither has established that the juvenile court abused its discretion because neither parent has shown, from the record, good cause to continue. (In re Karla C. (2003) 113 Cal.App.4th 166, 179-180.) Neither parent indicated he or she had made an attempt to secure the attendance of the therapist, although there had been ample opportunity to do so. No good cause was shown to continue the matter, if such a motion had been made.

The juvenile court did not abuse its discretion in denying the modification petition.

B. Fathers Challenge to the Juvenile Courts Order of Non-Return at the 12-Month Review Hearing Is Barred.

Father argues that the order terminating his parental rights must be reversed because the juvenile court erred in refusing to return his children to him at the June 14, 2007, status review hearing. He claims the order is reviewable in this appeal because the admonishment relating to the requirement of filing a notice of intent to file a petition for extraordinary relief was defective. Specifically, father points to the fact that the court advised the parents to file a notice of intent to file a petition in the Court of Appeal, rather than in the juvenile court. We disagree.

An order setting a hearing for selection and implementation of a permanent planvariously called a setting hearing or order, or a referral hearing or orderis not appealable; direct review is only available by way of a petition for extraordinary relief. (Welf. & Inst. Code, 366.26, subd. (l).) An aggrieved parent may seek review of the setting order by appeal from the order subsequently made at the Welfare and Institutions Code section 366.26 hearing only if: (1) the party filed a timely petition for extraordinary writ review of the setting order; (2) the petition substantively addressed the specific issues to be challenged and supported the challenge by an adequate record; and (3) the appellate court summarily denied or otherwise did not decide the petition on the merits. (In re Cathina W. (1998) 68 Cal.App.4th 716, 722.) Failure to take a writ from a nonappealable order waives any challenge to it. (In re Athena P. (2002) 103 Cal.App.4th 617, 625.)

The juvenile court must provide oral notice to all parties present at the setting hearing and notice by mail to all other parties that such a writ may be filed. (Cal. Rules of Court, rule 1456(f)(18).) When notice is not given, the parents claims of error occurring at the setting hearing may be addressed on review following the Welfare and Institutions Code section 366.26 hearing. (In re Harmony B. (2005) 125 Cal.App.4th 831, 838.)

A parent in default by filing a late notice of intent may obtain relief from the default for good cause shown. (In re Cathina W., supra, 68 Cal.App.4th at pp. 721, 722.) Good cause may be established by the juvenile courts failure to give oral notice of the writ requirement to parents who are present at the hearing, or to provide written notice of the writ requirement to a parent who was not present at the setting hearing. (In re Harmony B., supra, 125 Cal.App.4th at pp. 838-839.)

Here, both parents were present at the setting hearing and the court gave them notice of the requirement to file a notice of their intention to petition for extraordinary relief within seven days of the hearing. The fact the court erroneously informed the father to file his notice of intent with the Court of Appeal, rather than with the juvenile court does not excuse fathers default because he failed to file a notice of intent at either court. More importantly, the erroneous information did not prevent mother from filing her notice of intent at the correct court, and father did not even attempt to file an appeal from the order setting the permanency planning hearing within 60 days of the order, so he was not prejudiced by the inaccuracy in the writ advice.

Father has not demonstrated good cause for relief from default from failing to file a timely notice of intent to file a petition for extraordinary relief, so we will not address the juvenile courts finding of detriment made at the setting hearing.

3. Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Ramirez

P. J.

s/McKinster

J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

^[1] The juvenile court minutes routinely indicate a minor is removed from parents and placed in the temporary custody of DCS at a detention hearing. However, prior to the jurisdictional phase, a juvenile court lacks authority to remove a child from a parents custody. It may determine whether a minor shall be further detained (Welf. & Inst. Code, 315) after a child has been taken into temporary custody by a peace officer or social worker. (Welf. & Inst. Code, 305, 306.) However, it is only after jurisdiction has been established that a court may consider whether it should limit the control to be exercised over the dependent child at the disposition phase. (Welf. & Inst. Code, 361, subd. (a).) Because removal is a milestone in juvenile court proceedings, it is important to accurately characterize the courts actions.

^[2] Mother filed a notice of intent to file a petition for extraordinary relief from that order, but no petition followed, so the matter was dismissed.

^[3] We have some reservations about whether the parents situation had actually changed, or whether it was changing (see In re Casey D. (1999) 70 Cal.App.4th 38, 47, 49), given the late stage the proceedings had reached before the parents actually became engaged in the reunification plan.