In re Alyssa D.
Filed 5/19/06 In re Alyssa D. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re ALYSSA D., a Person Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. DAVID P., Defendant and Appellant. | D047668 (Super. Ct. No. J515290B) |
APPEAL from an order of the Superior Court of San Diego County, Cynthia Bashant, Judge. Affirmed.
In this appeal, David P. challenges a juvenile court order denying his petition under Welfare and Institutions Code[1] section 388 for modification of the court's order denying him reunification services with respect to his biological child, Alyssa D. He contends the juvenile court abused its discretion in denying his petition and determining that the provision of reunification services was not in the best interests of the child.
FACTS
On August 5, 2005, the Health and Human Services Agency (the Agency) filed a petition on behalf of newborn Alyssa, alleging that the child was at substantial risk of suffering serious harm as a result of the failure of her custodial parent, Samantha D., to supervise and protect her. The petition specifically alleged that Alyssa's half-sibling was removed from Samantha's custody as a result of domestic violence involving David; Samantha had failed to make progress on her " case plan" to reunify with that child; and that despite entering a domestic violence shelter, Samantha failed to seek a restraining order against David and appeared to have reunited with him.
A jurisdiction hearing was held on October 11, 2005. David appeared at the hearing as an " alleged father" with appointed counsel.[2] To establish the allegations of the petition, the Agency moved into evidence four reports written by Lorena Ortiz, the social worker handling Alyssa's case. These reports documented a history of domestic violence involving David and Samantha, and Samantha's failed efforts to sever the relationship and seek counseling. At the Agency's request, the court also took judicial notice of its findings in an earlier case with respect to Manny D., Samantha's biological child, who had been removed from her custody due, in part, to domestic violence involving David.[3]
Samantha testified at the hearing. She admitted having " problems with domestic violence relationships in the past," but claimed she was willing to take classes to address the problems. She had entered the San Diego Rescue Mission in July and taken a handful of domestic violence classes, but had left the Mission a week prior to the hearing to move back in with David without completing the Mission's domestic violence program.
At the conclusion of the hearing, the juvenile court sustained the Agency's petition, declared Alyssa a dependent and placed her in foster care. The court denied reunification services to the mother under section 361.5, subdivision (b)(10), finding by clear and convincing evidence that she had been offered services with respect to Manny and had failed to reunify, and the " same problem[]" was before the court again with respect to Alyssa. Just as in the earlier case, Samantha " made . . . token efforts" to get counseling or other assistance and then abandoned those efforts.[4] The court declined to order that services be provided to David, as he was solely an " alleged father" for whom paternity had not yet been established and had no standing to request them. The court also indicated that given David's past history, it would not have ordered services be provided to him even were he determined to be the biological father. The court set a subsequent hearing in anticipation of receiving David's paternity test results, as well as a hearing in contemplation of the termination of David and Samantha's parental rights under section 366.26.
Upon receiving a positive result from the paternity test, David subsequently filed a section 388 petition seeking modification of the court's denial of reunification services to him. David alleged that new evidence and changed circumstances -- primarily the paternity test results and his strong feelings for Alyssa -- necessitated the modification.
The court held a hearing on the section 388 petition on December 9, 2005. David and Chrissie Burness, a social worker who had been recently assigned to Alyssa's case, testified at the hearing.
Burness testified that David had visited Alyssa four times in the two months since Burness had been assigned to the case, and had behaved " appropriate[ly]" in those visits. She stated, however, that David had failed to reunify with another of his biological children. He had been offered services in that case, but those services were terminated after three months due to David's failure to make substantive progress with his case plan. Burness further stated that David had four children and did not have custody of any of them. Burness testified that David had a history of domestic violence, and Samantha had told Burness she recently stopped living with him because " things had become unsafe for her living with [him]" ; David " was out of control and drinking a lot" and " a week ago [had] pushed her into a wall."
Burness believed that Alyssa would not benefit from David receiving services because Alyssa needed " permanency and stability," which would be delayed by the provision of services. Burness explained that domestic violence and anger management services are " lengthy," and David had been offered them before without success. Burness did not see any reason to believe that David would " actually follow through" if services were provided again.
David testified on his own behalf. He acknowledged having a " problem with domestic violence because of . . . alcohol," but stated the problem was in the past. He stated he completed a 52-class domestic violence class, but had been unable to locate the certificate documenting his completion of this class. He admitted he had not completed the classes required for reunification with his other biological child. He denied the domestic violence incident testified to by Burness, claiming instead to have simply had a " loud [yelling] match" with his landlord over whether Samantha could live at his residence. David claimed he would follow through with any services that were provided to him.
After hearing the testimony and argument, the court denied the section 388 petition, ruling that David failed to show new evidence or a change of circumstances that would cause the provision of services to him to be in Alyssa's best interest.
DISCUSSION
David contends the juvenile court abused its discretion by denying his section 388 petition. He contends his petition demonstrated adequate new evidence and changed circumstances to require modification of the court's prior order denying him reunification services.[5] We disagree.
Section 388 allows a parent to petition the juvenile court to modify a previous order " upon grounds of change of circumstance or new evidence." (§ 388, subd. (a).)[6] The moving party bears the burden of proof to show, " by a preponderance of the evidence, changed circumstance or new evidence and that the modification would promote the best interests of the child." (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446 (Aaliyah R.).) Whether an order regarding reunification services should be modified " rests within the sound discretion of the juvenile court, and its decision will not be disturbed on appeal absent a clear abuse of discretion." (Id. at p. 447; In re Kimberly F. (1997) 56 Cal.App.4th 519, 522 [" It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion" ].)
Applying this standard of review to the facts of the instant case, we conclude the juvenile court did not abuse its discretion in determining that the new evidence shown by David in his section 388 petition -- primarily the establishment of his paternity -- did not warrant his receipt of reunification services. Under section 361.5, subdivision (a), services are to be provided to a biological father only " if the court determines that the services will benefit the child." (§ 361.5, subd. (a) [" Upon a finding and declaration of paternity by the juvenile court . . . , the juvenile court may order services for the child and the biological father, if the court determines that the services will benefit the child" ].) Here, the trial court relied on legally proper considerations, adequately supported by evidence in the record, in determining that the provision of services to David would not " benefit the child." (Ibid.)[7]
The juvenile court specifically highlighted the evidence of David's ongoing domestic violence with the child's mother Samantha -- an incident of which had occurred, according to the testimony, as recently as the week prior to the section 388 hearing; David's consistent failure to address his domestic violence issues;[8] the limited nature of his relationship and commitment to Alyssa; and the absence of evidence that David would be able to provide a safe home for Alyssa at any time in the near future. In addition, the court recognized Alyssa's need for stability, i.e., her interest in remaining in the home where she had been residing and bonding with her foster mother and sister.[9]
The evidence David presented to counteract these factors paled in comparison. In essence, the sole evidence David presented in support of his petition was that he was Alyssa's biological father, he desired to perform services, and had participated in four supervised visits with Alyssa. There was no evidence presented to the juvenile court to rebut the powerful evidence that David's continued domestic violence created a danger to Alyssa, or to suggest that David could provide a safe home for her. Further, David failed to establish any basis for believing that he would follow through with any services provided, given his earlier failure to do so during similar proceedings for another biological child. In sum, David failed to bring forth any evidence that provision of services to him was in Alyssa's best interests -- a failure that was particularly significant given the abundant evidence that it was not.
Given this record, we cannot conclude that the juvenile court abused its discretion in concluding that, despite the evidence presented in support of David's section 388 petition, the provision of services to him was not in Alyssa's best interests. (Aaliyah R., supra, 136 Cal.App.4th at p. 447.) Rather, the court acted within its discretion in concluding that the provision of such services would be an unproductive exercise, serving only to delay Alyssa's permanency and stability.
David's additional contentions that: (i) " the juvenile court may not apply the best interest of the child standard to deny a father reunification services" ; and (ii) because there was " inordinate delay" in his receipt of the paternity test results that " impinged on [his] constitutional rights," the court should have exercised its equitable powers to grant him services to make up for lost time are equally unpersuasive.
Under section 361.5, subdivision (a), services " may" be provided to a biological father, only if " the services will benefit the child." (See In re O. S. (2002) 102 Cal.App.4th 1402, 1409.)[10] David does not explain why given this statutory command the juvenile court was not only permitted but required to consider the best interests of the child in determining whether to provide him with services.[11]
The sole case David cites (without explanation) for this proposition, In re Julia U. (1998) 64 Cal.App.4th 532, 544 (Julia U.), is distinguishable. In Julia U., the Second District held that the juvenile court violated the statutory dependency scheme and fundamental due process rights when it denied reunification services and terminated a father's parental rights without giving the father an " opportunity to prove his presumed father status and his fitness as a parent" and " an opportunity to be heard on the custody and care of his child." (Ibid.) In essence, the Second District reversed the judgment in Julia U. because the juvenile court failed to allow the biological father to participate in the process whereby his parental rights were terminated and never considered his viability as an alternate placement option.
Unlike the father in Julia U., David fully participated with appointed counsel in the proceedings regarding the " custody and care" of Alyssa, and was allowed to do so even before his paternity was established.[12] David's viability as a caretaker of Alyssa was fully explored by the juvenile court, and was in fact part and parcel of its conclusion that the provision of services to David was not in Alyssa's best interests.[13]
We also reject the suggestion that David's constitutional rights were somehow violated by the delay in his receipt of paternity test results. First, no such argument was made to the trial court, and consequently the contention is forfeited. (In re S.B. (2004) 32 Cal.4th 1287, 1293; People v. Partida (2005) 37 Cal.4th 428, 431.) Second, the two cases David cites (without explanation) for the proposition that the delay in the paternity testing violated his constitutional rights are Julia U., supra, 64 Cal.App.4th 532, 544, which we have already distinguished, and In re Andrew L. (2004) 122 Cal.App.4th 178, 195, which bears no factual or legal similarity to the case at hand. Given the absence of legal support for David's asserted constitutional right to prompt paternity test results, we decline to recognize such a right here. As it is well established that a biological father " does not have a right to reunification services merely based on his status as the biological father," we do not see how -- on the facts of this case -- the delay in paternity testing that purportedly " impinge[d]" on David's ability as a biological father to request such services could constitute the violation of a constitutional right. (In re Sarah C. (1992) 8 Cal.App.4th 964, 976 (Sarah C.).)[14] Consequently, we reject David's contention that the juvenile court was required to exercise its " equitable powers" to remedy the purported violation of David's constitutional rights.
In sum, we conclude that David has failed to carry his burden of establishing that the juvenile court abused its discretion in denying his section 388 petition. The record adequately supports the juvenile court's conclusion that, even in light of the new evidence or changed circumstances established in the petition, the provision of services to David would result in little benefit to the child and substantial detriment in that it would interrupt the stability and delay the permanency of Alyssa's ultimate placement. (In re S.B., supra, 32 Cal.4th at p. 1293 [" Because [dependency] proceedings involve the well-being of children, considerations such as permanency and stability are of paramount importance" ]; cf. Sarah C., supra, 8 Cal.App.4th at pp. 977-978 [denial of section 388 petition seeking reunification services not abuse of discretion in light of father's " status as a mere biological father," his limited relationship with his daughter, " only vague plans of how he would care for [her]" and minor's interest in stability in existing placement].)
DISPOSITION
Affirmed.
IRION, J.
WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.
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[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
[2] At an earlier hearing on August 29, 2005, the juvenile court ordered blood testing to establish David's paternity and continued the case for the jurisdiction hearing.
[3] Ortiz was available for cross-examination at the jurisdiction hearing. All of the parties declined to question her. All counsel also affirmatively stated they had no objection to the requests to admit the reports and take judicial notice of the true findings.
[4] Section 361.5, subdivision (a) allows a court to deny reunification services to " the child's mother and statutorily presumed father" only in certain enumerated circumstances, including under subdivision (b)(10), if the court finds by clear and convincing evidence: " That the court ordered termination of reunification services for any siblings or half-siblings of the child because the parent . . . failed to reunify with the sibling or half-sibling after the sibling or half-sibling had been removed from that parent . . . and that . . . this parent . . . . has not subsequently made a reasonable effort to treat the problems that led to removal . . . ."
[5] David's section 388 petition requested modification of the juvenile court's ruling declining to offer him services and scheduling the section 366.26 hearing, but there is no suggestion in the petition or on appeal that the court's scheduling of the section 366.26 hearing was erroneous for any reason other than the asserted error in denying David reunification services.
[6] Section 388, subdivision (a) states: " Any parent [of] a child who is a dependent child of the juvenile court . . . 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 of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. . . ." Upon the filing of such a petition, the juvenile court is required to grant a hearing, " [i]f it appears that the best interests of the child may be promoted by the proposed change of order . . . ." (§ 388, subd. (c).)
[7] At the time the juvenile court initially declined to offer services to David, he was an alleged father with no entitlement to such services. (In re Christopher M. (2003) 113 Cal.App.4th 155, 159-160 [" 'an alleged father is not entitled to appointed counsel or reunification services' " ].) Once David's paternity was established he became a " biological father," and the juvenile court had discretion to grant services " if the court determines that the services will benefit the child." (§ 361.5, subd. (a).)
[8] The court specifically found David's uncorroborated claim to have completed a domestic violence course while in and out of jail not credible.
[9] Counsel for Alyssa advocated for the denial of services to David in the proceedings below, and joins with the Agency's counsel on appeal in contending that the juvenile court correctly determined that the provision of services to David was not in Alyssa's best interests.
[10] David contended below that he was entitled to services because he had " been found to be the biological father," not because he was a statutorily presumed father, a position that has not changed on appeal. A biological father is specifically distinguished from a " statutorily presumed father" under the statute; while the latter is entitled to services under the statute unless a specific statutory exception applies, the former " may" receive services only if " the court determines that the services will benefit the child." (§ 361.5, subd. (a).) (In re Zacharia D. (1993) 6 Cal.4th 435, 451 [" only a presumed, not a mere biological, father is a 'parent' entitled to receive reunification services under section 361.5" ].) David presented no argument before the juvenile court or on appeal that he is a statutorily presumed father.
[11] David's position on appeal is directly contrary to his argument below, where his counsel acknowledged in closing argument that in order to meet his burden on the petition, he had " to prove it is in the best interest of the minor." (See People v. Pijal (1973) 33 Cal.App.3d 682, 697 [party " cannot mislead the court . . . by seeming to take a position on issues and then disputing or repudiating the same on appeal" ].) His argument is also contradicted by other contentions in his appellate brief that accept that the juvenile court's determinations with respect to whether to grant a section 388 petition or to order services under section 361.5 to a biological father are governed by the best interests of the child.
[12] David's counsel was treated identically to the other counsel present at the jurisdiction hearing and, as far as the record shows, at all of the proceedings below. The court solicited David's position on all relevant issues and permitted him, through counsel, to cross-examine witnesses and offer evidence at both the jurisdiction hearing and the hearing on his section 388 petition.
[13] David cites In re O. S., supra, 102 Cal.App.4th 1402, 1410, for the proposition that " it was in [Alyssa's] best interests to be with her biological father rather than in foster care." The case cited actually states only that depending on the circumstances, it " may be in the child's best interests to be with his biological father instead of in foster care." (Ibid., italics added.) Here, the juvenile court evaluated the circumstances and determined that an effort to place Alyssa with her biological father was not in her best interests. As we have discussed above, that determination does not constitute an abuse of discretion.
[14] In fact, there is no suggestion in the record in this case that the delay in receiving the results of the paternity test prejudiced David's ability to assert his interest in parenting Alyssa. Even before the paternity test results came back, there was little dispute that David was the biological father. At the jurisdiction hearing, Samantha testified it was not possible that someone other than David was Alyssa's father, and there were no other alleged fathers involved in the proceeding. Consistent with this fact, the juvenile court allowed David to participate through counsel in that proceeding and at the close of the proceeding ordered that he be allowed visitation. The court also stated that David did not appear to be an " appropriate placement option" for Alyssa even if it were established that he was the biological father. In later ruling on the section 388 petition, the court explicitly stated that it did not believe it would have ruled any differently had paternity been established at the outset of the case. Thus, the record strongly suggests that the delay in the paternity test results had no impact on David's ability to visit Alyssa or to take steps to demonstrate to the court that he could adequately care for her. David's conclusory statement on appeal, without any explanation or support, that " [w]ithout the delay in obtaining the results, the father likely would have been able to solidify his status as a presumed father entitled not only to services but to custody as well," is unpersuasive. (See People v. Williams (1997) 16 Cal.4th 153, 215 [contentions " 'perfunctorily asserted without argument in support' " are properly disregarded by the appellate court].)
