In re O.B.

Filed 12/9/09 In re O.B. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Maguerite Downing, Judge. Affirmed.

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

James M. Owens, Assistant County Counsel, William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.

R.M., the presumed father of minor R.M. and the alleged or step-father of O.B. and Z.B., appeals the juvenile dependency courts order denying his Welfare and Institutions Code^[1]section 388 petition seeking return of his son R.M. to his custody, or the reinstatement of reunification services with R.M. and an order for the reinstatement of visitation with O.B. and Z.B. For the reasons stated herein, we conclude the juvenile dependency court did not abuse its discretion in ruling on the petition. Because appellant is only the alleged father of O.B. and Z.B. he has no right to visitation with the girls and thus he lacks standing to complain that the juvenile court denied his request to reinstate visitation with them. Furthermore, with respect to his claim concerning R.M., appellant failed to show a change of circumstances or the proposed changes would benefit R.M. Accordingly we affirm.

FACTUAL AND PROCEDURAL HISTORY

The Dependency Petition, Detention, Jurisdictional and Dispositional Proceedings. Appellant is the presumed father of R.M. (born in 2000) and the alleged or self-identified step-father^[2]of O.B. (born in 1998) and Z.B. (born in 1999).^[3]

In July 2005, O.B., Z.B. and R.M. came to the attention of the Department of Children and Family Services (the Department) based on a report that appellant and his

mother had physically abused Z.B.^[4]Z.B. had bruises on her face, arm, back and had a swollen lip. She told the school nurse, the police and the Department social worker that appellant hit her because she did not do her homework correctly and that her grandmother had punished her by bending her fingers back. Appellant denied that he abused the child, he stated that Z.B. was pigeoned-toed and fell down frequently and that she sucked on her lip, which caused the swelling. Appellants live-in girlfriend told the Department that the childs bruises were the result of a reaction to cough medicine.

The Department detained the children and filed a dependency petition alleging that the children were persons described under section 300, subdivisions (a), (b), (i) and (j). The petition alleged that appellants physical abuse of Z.B., including repeatedly striking her face, arm and back with his hands and twisting the childs arm behind her back, and his failure to protect Z.B. from abuse by her paternal grandmother, placed all three children at substantial risk of physical and emotional harm.^[5]

On November 15, 2005, the court ordered the children removed from appellants care and adjudged them dependent children of the juvenile court based on appellants physical abuse of Z.B. and his failure to protect Z.B. from abuse by her paternal grandmother. The court ordered appellant to complete a case plan consisting of a Department-approved anger management and domestic violence program, parenting education and individual counseling to address case issues and relationship issues.^[6] The court ordered monitored visitation for appellant with R.M. and over the Departments objection, the court also allowed appellant to have monitored visits with O.B. and Z.B.

Six Month Review and First and Second Section 388 Petitions.

A month later, on December 19, 2005, appellant filed his first 388 petition, in which he sought unmonitored overnight visits with the children and an order granting the Department discretion to place the children with him. The petition alleged that appellant was complying with the case plan and that visitation was going well. The court ordered a hearing on the petition to occur on May 16, 2006, the date set for the six-month review hearing. Appellant filed a second 388 petition on January 24, 2006, containing the same allegations and requests as the first petition. The court set the hearing for this petition for May 16, 2006.

As of the six month review hearing, the Department reported that appellant had only partially complied with the case plan: he had completed 10 of 16 parenting classes and had completed 10 hours of anger management. The record contained a letter from a therapist indicating that appellant had attended three sessions of individual counseling in late April and early May 2006 and that during the counseling appellant had expressed his concern for the children. The Department indicated that it had contemplated that given the abuse in the case appellant needed to complete 52 weeks of anger management. The Department further indicated that during the prior six months appellant had been inconsistent in visiting the children and had scheduling issues and complaints about the location of the visits. The Department further reported that the children were doing well in their foster care placement at that time. The Department recommended that appellant receive six additional months of reunification services.

At the six month review hearing, the court found appellant in partial compliance with the case plan and ordered six additional months of services. The court also ordered the pending section 388 petitions continued to June 29, 2006, and asked the Department to prepare an additional report on the matter.

The Department reported that appellant had not visited the children since March 2006 because of transportation problems and that appellant had declined the Departments offer to provide him with bus tokens; that appellant had failed to enroll in a Department approved 52-week anger management program; and that appellant had failed to provide proof of his participation in individual counseling. The court denied the section 388 petitions, and further clarified that appellant was ordered to complete a 52-week course in a domestic violence program with parenting education.

Twelve-Month Review Proceedings. The Departments report prepared for the twelve-month review hearing indicated that appellant visited the children inconsistently; he had visited less than a dozen times between July and October 2006. It was also reported that appellant had acted inappropriately during some visits, using profanity in front of the children, calling the girls names and inciting R.M. to call his sisters names, inappropriately referring to body parts, and praising R.M. for hitting his sisters. Appellant denied the conduct, although he admitted that he called Z.B. fat, but claimed he was just playing with her. The Department had also verified that appellant had attended 10 of 16 sessions of parenting education and approximately 12 weeks of the 52-week anger management program; he participated in domestic violence classes and enrolled in an additional parenting education program. The Department also reported that in October 2006, the children had been moved to new foster homes and that R.M. was in a separate foster home from O.B and Z.B. because of various behavior problems. The Department recommended that appellants reunification services be terminated and that the court schedule a section 366.26 hearing.

At the contested twelve-month review hearing on December 19 and 20, 2006, the social worker testified that appellant had not completed the case plan and that he acted inappropriately during the visits. She stated that appellant interacted with the children as if they were friends rather than his children. The social worker also reported that the social worker monitoring one of the visits had reported that appellant had acted hostile and threatening towards her during a visit and told her that the children were coming home one way or another and that he did not care what anyone thought. The social worker testified that in her view appellant had not gained sufficient insight into his actions and had not shown he had learned anything from his classes. The social worker also testified that Z.B. had recently disclosed to the foster mother that when Z.B. was in appellants home at some point she drank from the toilet and that when appellant discovered what she was doing, he pushed her head into the toilet and flushed it.^[7]

At the hearing appellant requested that the court extend reunification services to the 18-month date, but made no challenge to the adequacy of the reunification services offered to him by the Department and did not request extension of reunification services beyond the 18-month statutory time limit. Appellant testified during the hearing. He initially denied that he had abused Z.B. as alleged in the case. He stated that he only spanked the children. In response to additional questioning he conceded that he may have popped Z.B. in the face and may have grabbed her arm. He also admitted that he had stopped visiting the children in November 2006.

In terminating appellants reunification services the court found that appellants visitation with the children had been inconsistent ‑‑ he had missed more than half of his scheduled visits during the previous five months and had stopped visiting entirely a month before the review hearing. The court found appellant had acted inappropriately during those visits he made ‑‑ by using profanity, inappropriately referring to the childrens body parts, and praising R.M. for hitting O.B. and Z.B. The court did not believe that the visits benefited the children. The court noted that by the time of the hearing, appellant had completed just 12 weeks of a court-ordered 52-week domestic violence program. The court further observed that it found appellant lacked credibility -- that he was untruthful and evasive in his testimony. The court acknowledged that while appellant was in compliance with the case plan, appellant had not shown that he had made significant progress in resolving the issues that led to the removal of the children and there was not a substantial probability the children could be safely returned to him within the short time remaining before the 18-month statutory limit for reunification. The court ordered reunification services terminated and scheduled the section 366.26 hearing for April 2007.^[8] The court allowed visits to continue, but wanted a report from the childrens therapists to address visitation.

In late January 2007, the children received psychological evaluations. Both O.B. and Z.B. indicated that at that time they wanted to return to appellant and missed him.

Appellants Third, Fourth and Fifth Section 388 Petitions and Section 366.26 Proceedings. In February 2007, appellant filed his third section 388 petition, seeking an order placing the children in his home or reinstatement of reunification services and overnight visits. Appellant claimed that he had complied with all of the court orders and programs and had maintained regular visitation. Appellant supported his petition with a letter from a City of Long Beach program which indicated that appellant had completed a 52-week parenting course; a letter that appellant had attached to prior 388 petitions indicating that he had participated in three individual counseling sessions in late April and May 2006, and a document indicating that he had attended 18 of 20 group sessions in a 52-week domestic violence program. In March 2007, the court summarily denied the petition on the grounds that appellant failed to show that the modification would promote the best interests of the children.

In an April 2007 report, the Department social worker indicated that appellant acted inappropriately during his visits with the children and became defensive and argumentative when the issue of his behavior was raised.

Appellant filed a fourth section 388 petition on April 24, 2007. He sought return of the children to his custody. Appellant claimed that he complied with the case plan. Appellant attached the same evidence to his petition that he had attached to his third petition. The court set the matter for a hearing on May 22, 2007.

The Department prepared a report in response to the petition. The Departments report indicated that appellant had continued to act inappropriately during the visits. The Department pointed out that appellant continued to deny the allegations of abuse to Z.B. and had not completed the case plan. The report also disclosed that R.M. did not want to live with appellant and wanted to remain in his foster home. The court denied the petition.

The section 366.26 hearing was conducted in August 2007. The Department indicated that the caretaker of O.B. and Z.B. wanted to adopt them and R.M.s caretaker was interested in becoming his legal guardian. At the Departments request, the court ordered the section 366.26 hearing to be continued for 120 days so the Department could locate an adoptive home for the children.

In late December 2007, appellant filed his fifth section 388 petition. The petition sought weekly and weekend unmonitored visits leading to overnight visits and eventual custody. In the petition, appellant alleged that he had been denied visitation and completed the court-ordered case plan. Appellant supported his petition with the same documents that he had attached to his fourth section 388 petition. Appellant also supplemented the petition with additional evidence which included a letter from his domestic violence program, dated August 18, 2007, and a certificate of completion for the program. The letter, written by the director of the program, stated that appellant had completed a 52-week domestic violence program.

In the Departments report responding to the petition, the social worker denied appellant had been refused visits, but indicated that appellant had transportation problems and difficulty scheduling the visits because of appellants work schedule. The social worker indicated that appellant yelled and used profanity during conversations concerning the visits. The Department continued to observe that given appellants behavior during visits and conduct towards the social workers, and caretakers and the fact that appellant had continued to deny responsibility for his abuse of Z.B., appellant had not gained any insight from his classes or programs. When asked, R.M. continued to state that he did not want to be returned to his father, but wanted to remain with his current caretaker. Z.B. told the social worker that she wanted to remain with her caretaker, while O.B. stated that she wanted to return to appellant.

The hearing on the petition was held on February 14, 2008, the date also set for the section 366.26 hearing. Among other documents attached to the Departments report for the section 366.26 hearing was a follow-up letter from appellants counselor dated August 31, 2006, which stated that appellant had attended six individual counseling sessions between May 2006 and August 2006.

At the hearing on February 14, the social worker reported that appellant had not visited with the children consistently since late 2007that appellant only had one visit with R.M. since late November 2007 and had not visited with O.B. and Z.B. since December 2007.

Appellant testified at the hearing that he had completed his programs and believed that he had learned a lot from them about appropriate forms of discipline and about his own threatening behaviors. The court denied the petition and continued the section 366.26 hearing until June 2008 for the Department to provide notice to Z.B.s alleged father and to obtain the birth certificate for O.B.

On June 9, 2008, the court again continued the section 366.26 proceedings in the hopes that the Department could find adoptive homes for the children as their current caretakers had not yet decided whether they wanted to adopt the children. During this time period, appellant maintained visitation with R.M. in a monitored setting.

At a subsequent hearing in August 2008, the Department reported that appellant did not interact with R.M. during a visit because appellant did not like the shirt the boy was wearing. The Department recommended that appellants visits be stopped because appellant had acted inappropriately during visits, had been uncooperative in scheduling and confirming visits and because he had failed to visit consistently. It was also reported that during a separate visit with the girls in July 2008, appellant had been inappropriately affectionate with O.B. The childrens counsel also represented that O.B. and Z.B. had requested that visits with appellant cease. On August 13, 2008, the court terminated appellants visitation with O.B. and Z.B. based on appellants inappropriate conduct and conversations during the visits, counsels representation that O.B. and Z.B. wanted the visits to end and because appellant was not the presumed father of the girls.

Continued Section 366.26 Proceedings and Appellants Sixth Section 388 Petition. In a report prepared by the Department in October 2008 for the section 366.26 hearing, R.M.s advocate reported that R.M. was very attached to his current caretaker and wanted to live with her. Throughout the fall of 2008 and early 2009, the Department also reported that appellant continued to be aggressive and disrespectful towards the social workers and R.M.s caretakers. The Department noted that appellants visits were erratic and that he continued to have problems following the rules for visitationfailing to confirm visits, or notify the social worker to cancel or reschedule visits, and that appellant spoke inappropriately to R.M. about his foster mother and about the case.

On February 18, 2009, appellant filed his sixth section 388 petition. In the petition appellant sought to have R.M. placed with him or re-instatement of reunification services and unmonitored weekend and overnight visits with R.M., and the reinstatement of visitation with O.B. and Z.B. Appellant claimed that he had completed the court-ordered case plan and had completed an additional fatherhood program and had enrolled in an additional parenting course and had re-enrolled in individual counseling. Appellant claimed that the modification would benefit the children because fulfilled a parental role in their lives and he had raised them since they were small. Appellant supported his petition with: (1) a letter from the Director of the Fatherhood courseThe Role of Men which described the course as providing basic training in parent/child development, personal and legal education and job and vocational training; (2) a receipt indicating appellants enrollment in individual therapy; (3) a notice of enrollment in a parenting class; (4) two letters (one dated December 8, 2008, and the other undated) written by the appellant in which he described his complaints and frustrations with the Department and the court in handling the proceedings; and (5) the documents which had been attached to the fifth section 388 petition, including the August 18, 2007, letter and a certificate indicating appellants completion of the 52-week domestic violence program. The court scheduled the hearing on the petition for March 18, 2009.

The Department prepared a report in which it recommended that the court deny the petition. The Department responded that notwithstanding the appellants completion of certain programs, he still failed to take responsibility for the abuse of Z.B. and that statements in reference letters concerning appellants progress in programs and efforts to address his problems lacked credibility because none of the reporters had ever observed appellant interact with the children. The Department further asserted that appellant had never fully complied with the courts order for individual counseling and had only enrolled in counseling a few days before he filed the section 388 petition. In addition, the Department observed that based on the evidence presented it appeared that the Role of Men course, while likely beneficial for appellant, did not appear to address the issues in the case which led to the childrens removal. The Department noted that appellants visitation continued to be erratic for various reasons and that appellant had acted abusively towards the caretakers and social workers. The response further described an incident in court on February 18, 2009, observed by the social worker. The social worker stated she observed appellant rub O.B. on the shoulders in an inappropriate manner that appeared to make the child uncomfortable.

Appellant did not attend the section 388 petition hearing. The court received into evidence appellants petition and the attached exhibits, and the DCFS response. Appellants counsel urged the court to grant the petition, citing as the change of circumstances appellants completion of the Role of Men program. Counsel argued that re-instating reunification would give appellant additional time to continue in individual counseling and complete another parenting course. The Department pointed out that the vast majority of appellants evidence had been submitted in support of prior unsuccessful section 388 petitions and that appellant had not demonstrated that any of this new evidence was relevant to the concerns at issue in the proceedings.

The court denied the petition finding that appellant had failed to demonstrate a change of circumstances. The court further observed that because appellant had not demonstrated a sufficient change of circumstances, the court did not need to address whether the proposed modification would promote the best interests of the children.

Appellant filed this appeal.

DISCUSSION

Before this court appellant contends the juvenile court abused its discretion in denying his section 388 petition seeking the return of R.M. to his custody or the reinstatement of reunification services, including overnight unmonitored visits; and seeking the reinstatement of visitation with O.B. and Z.B. Appellant claims he demonstrated a change of circumstances which he describes as completing his court-ordered case plan and additional programs including the Role of Men program. In view of these circumstances appellant contends that the lower court erred in denying the petition. As we shall explain, we find no error.

Section 388 provides, in pertinent part, that any parent or other person having an interest in a dependent child of the juvenile court, may upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of the court previously made . . . . ( 388.) It provides a means for the court to address a legitimate change in circumstances -- one last opportunity to reinstate reunification services or to make a different order with respect to the children and their care prior to final resolution of custody status. (In re Marilyn H. (1993) 5 Cal.4th 295, 309; In re Kimberly F. (1997) 56 Cal.App.4th 519, 528 [Section 388 provides an escape mechanism when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights].)

After the court terminates reunification services, the focus shifts to the needs of the child for stability and permanent placement; there is a rebuttable presumption that continued foster care is in the best interests of the child. Indeed, the best interests of the child are of paramount consideration when a petition for modification is brought after termination of reunification services. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-317.) A section 388 motion requires a two-step determination. First, the moving party must show a genuine, significant and substantial change of circumstances or new evidence. (In re Kimberly F., supra, 56 Cal.App.4th at p. 529; In re Heraclio A. (1996) 42 Cal.App.4th 569, 577.) Second, the petitioner must prove the undoing of the prior order would be in the best interests of the child. (In re Kimberly F., supra, 56 Cal.App.4th at p. 529.)

In determining whether the petitioner has met his or her burden that the proposed modification would be in the best interests of the child, the trial court should consider: (1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; 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 Kimberly F., supra, 56 Cal.App.4th at p. 532 [While this list is not meant to be exhaustive, it does provide a reasoned and principled basis on which to evaluate a section 388 motion.]; In re B.D. (2008) 159 Cal.App.4th 1218, 1228, 1229.) Likewise, a petition which merely alleges changing circumstances and would mean delaying the selection of a permanent home for a child . . . does not promote stability for the child or the childs best interest. (In re Kimberly F., supra, 56 Cal.App.4th at p. 529.) [S]pecific allegations describing the evidence constituting the proffered changed circumstances or new evidence is required. [Citation.] (In re Anthony W. (2001) 87 Cal.App.4th 246, 250; In re Angel B. (2002) 97 Cal.App.4th 454, 460.) Furthermore, in assessing these matters the court may take into account the entire record, not just the allegations of the petition and supporting attachments. (Cf. In re Angel B., supra, at p. 463.)^[9]

This court reviews the denial of a section 388 petition for an abuse of discretion. (In re B.D., supra, 159 Cal.App.4th at p. 1228.) We will affirm unless the appellant demonstrates the lower court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. When two or more inferences can be reasonably deduced from the facts, the reviewing court has no authority to substitute its judgment for that of the juvenile court. (In re Stephanie M., supra, 7 Cal.4th at p. 318.)

Here, in our view, the court did not abuse its discretion in denying the section 388 petition.

Preliminarily we address appellants claims with respect to O.B. and Z.B. Appellant is only the alleged father of O.B. and Z.B. Appellant has never challenged that finding before this court, and has forfeited any right he had to do so at this point. (In re Jesse W. (2001) 93 Cal.App.4th 349, 355-356.) It is well established that a mans status as a presumed or biological father is critical to whether he retains his rights to his child. Alleged fathers have fewer rights than presumed fathers and are not entitled to custody, reunification services, or visitation. [Citations.] (In re O.S. (2002) 102 Cal.App.4th 1402, 1410; italics added.) Because appellant is not entitled to visitation with O.B. and Z.B. he cannot complain that the juvenile dependency court rejected his request for visitation in the section 388 petition. As this court held in the prior opinion denying appellants writ petition seeking the reinstatement of reunification services, in view of appellants status as an alleged father, he lacks standing to seek any relief in this court. ( 361.5, subd. (a); Fam. Code,  3010, subd. (a); In re Zacharia D. (1993) 6 Cal.4th 435, 448-451; In re Joseph G. (2000) 83 Cal.App.4th 712, 715.)

In any event, as is discussed more fully below, appellant failed to demonstrate a genuine, significant and substantial change of circumstances or that undoing of the prior order would be in the best interests of any of the children.

A. Change of Circumstances

It is true that appellant completed nearly^[10]all of the court-ordered programs. He completed a domestic violence program and anger management program, parenting classes and did so well prior to filing his sixth section 388 petition. In fact, appellant submitted evidence of completion of those programs in connection with his fifth section 388 petition, which the court denied in February 2008. By the date of the sixth section 388 petition appellant had completed the Role of Men program and was enrolled in another parenting course.

These circumstances notwithstanding, we cannot say the juvenile dependency court abused its discretion in finding that appellant had not shown the requisite change of circumstances. Appellants section 388 petition was properly denied not because of any lack of participation in programs and courses on his part, but because appellant consistently failed throughout the proceedings to demonstrate that the courses and programs he participated in provided genuine and relevant benefits.

First, appellant failed to demonstrate that he gained any genuine insight from the programs and could apply what he had learned. There is scant evidence that appellant ever accepted or fully acknowledged his abuse of Z.B., and his visits with the girls were terminated in August 2008 because he was not acting appropriately. Moreover, in the opinion of a Department social worker, appellant continued to have inappropriate physical contact with O.B. in February 2009, when in court appellant was observed rubbing O.B. on the shoulders in a manner that appeared to make the child uncomfortable. Furthermore appellant displayed anger and hostility towards the social worker and the childs foster mother and had made an inappropriate remark to R.M. about his caretaker during the visit.

Second, appellant did not show that the additional programs he participated in on his own accord (absent court order) were relevant to the issues which led to the removal of the children. For example, it is unclear based on the evidence appellant presented how or whether the Role of Men program addressed the matters of physical abuse which led to these proceedings.

Completion of court ordered programs and other courses does not, standing alone, demonstrate a substantial change of circumstances where the record otherwise shows that appellant has not gained from them. Thus, the court acted within its discretion in determining that appellants participation in and completion of court-ordered courses and programs did not demonstrate a sufficient change of circumstances under section 388.

B. Best Interests

Likewise even had appellant shown a change of circumstance, he did not show that the suggested modification would promote the best interests of the children. The proceedings were instituted because of serious physical abuse upon Z.B., which appellant has never fully acknowledged. Furthermore, the bonds between the children and appellant were tenuous at best. Although R.M. appears to have enjoyed the visits with appellant, R.M. has also stated on a number of occasions that he did not want to return to appellants care. O.B. and Z.B. expressed a desire to return to appellant in January 2007. In December 2007 Z.B. stated that she wanted to remain with her caretaker while O.B. wanted to return to appellant. Thereafter, in August 2008, the minors counsel represented to the court that the girls wanted to end visitation with appellant. In contrast, evidence in the record indicates that as of the section 388 petition hearing the children had connected with various caretakers.^[11]

At the time the court considered appellants sixth section 388 petition, the focus of the proceedings had shifted from family preservation to providing the minors with a safe, stable and permanent home. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) The children had been out of appellants custody for more than three years. During the dependency, appellant did visit with R.M. and, until August 2008, visited with O.B. and Z.B., but the visits were irregular at times and appellant never had unsupervised visits with them. On some occasions appellant acted inappropriately during visits and the social worker did not believe appellant occupied a parental role in the minors lives.

It took more than three years after the children were removed from his custody and almost a year after reunification services were terminated for appellant to demonstrate he had substantially completed the court-ordered program. This delay has not benefited these children and any additional delay in ensuring the minors the stability they deserved is not in their best interests. As the Supreme Court has observed [c]hildhood does not wait for the parent to become adequate. (In re Marilyn H.,supra, 5 Cal.4th at p. 310.)

In view of all of the foregoing we find the court did not err in denying the section 388 petition.

DISPOSITION

The judgment is affirmed.

WOODS, Acting P. J.

We concur:

ZELON, J.

JACKSON, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

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

^[2] Appellant is not the biological father of O.B. or Z.B. and has not been found by the court to be a presumed father of either child. O.B. and Z.B.s mother indicated that the girls had different fathers.

^[3] The minors mother has been incarcerated in Oregon throughout these proceedings and is not a party to this appeal.

^[4] The children had been subject to several investigations by the Department in 1998, 1999 and 2004 based on claims of neglect and unsanitary conditions in the home. Specifically, in prior dependency proceedings in 1999, it was reported that appellant had left the toddler O.B. and five-month-old Z.B. in the care of appellants nine-year-old sibling. Appellant was arrested for child endangerment. Ultimately the children were released to their paternal grandmother and the petition was dismissed.

A 2004 referral indicated that appellant had taken the girls in to live with him when their mother was incarcerated. The referral further alleged that appellant had forged the girls birth certificates so that he would collect welfare payments for the children and that appellant was a known gang member who kept guns in the home. The Department investigated these claims but could not substantiate the allegations.

^[5] The petition also alleged that the children were in a filthy and unhygienic condition. Although the count was subsequently dismissed, the foster mother had reported that when the children arrived at her home, R.M. had lice and that the children were filthy and were unfamiliar with how to use a wash cloth to clean their bodies, how to put on pajamas, and comb their hair.

^[6] The court denied reunification services for the childrens mother.

^[7] The Department subsequently filed a section 342 petition containing an allegation relating to this conduct. The petition was sustained.

^[8] In January 2007, appellant filed a petition for a writ of mandate with this court seeking the return of the children to his custody or the re-instatement of reunification services. In April 2007, this court denied the petition on the merits in an unpublished opinion (case No. B195919). We held that appellant lacked standing to seek relief with respect to O.B. and Z.B because he was at most an alleged father not entitled to services or custody. With respect to R.M., we concluded that because appellant had failed to challenge the adequacy of the services below he forfeited any complaint about them; and that substantial evidence supported the courts termination of services.

^[9]In re Angel B. is illustrative of such an assessment by the court. In In re Angel B., the Court of Appeal affirmed a summary denial of a mothers 388 petition where the mother had a 20-year history of substance abuse from which she had tried but failed to rehabilitate herself on a number of occasions, had failed to reunify with an older child, and the child subject of the petition, Angel, was likely to be adopted by the same family that had adopted the older sibling. Although the mother had enrolled in a residential drug treatment program, tested clean for four months, completed various classes, obtained employment and consistently visited Angel, her 388 petition seeking either supervised custody of Angel or renewed reunification services was summarily denied and her parental rights were terminated. (In re Angel B., supra, 97 Cal.App.4th at p. 459.) The appellate court affirmed, reasoning the mothers petition showed only that she was making progress, not that she was presently able to provide suitable care for Angel. [S]imple completion of the kinds of classes taken by . . .  Mother here does not, in and of itself, show prima facie that either the requested modification or a hearing would be in the minors best interests. [Citations.] (Id. at p. 463.)

^[10] It is also apparent from the record that appellant never finished the individualized counseling ordered in the case or that therapy addressed case issues. He attended about eight sessions in 2006 and then stopped and had, just days before filing his sixth section 388 petition, resumed therapy.

^[11] This court has granted the Departments request for judicial notice of the juvenile dependency courts minute order from proceedings on April 2, 2009, in which the court ordered O.B. and R.M. into a permanent plan of legal guardianship with their caretakers, and ordered placing Z.B. with R.M.s caretaker/guardian.