In re Christian P.

Filed 6/13/06 In re Christian P. CA4/1

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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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of San Diego County, Michael Imhoff, Referee, Judge. Affirmed.

Keith P. appeals from an order of the juvenile court denying without a hearing his petition for modification under Welfare and Institutions Code section 388. (Unless otherwise indicated, statutory references are to the Welfare and Institutions Code.) We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Keith is the father of Christian P., born September 1998, and William P., born July 2000. In February 2003 the children and their mother, Tiffanie P., moved to California from Georgia. Four months later, the children came to the attention of the San Diego County Health and Human Services Agency (the Agency) after an automobile accident in which Tiffanie was driving while intoxicated and at fault. An older half-brother was injured.

The Agency detained the children and filed a petition under section 300, subdivision (b). The petition alleged the children were at substantial risk of serious harm or injury due to their mother's use of alcohol and marijuana, as exemplified by the recent automobile accident, and domestic violence between mother and the children's stepfather. The Agency further alleged Keith, who lived in Georgia, was unable to protect and supervise the children.

In August 2003, Keith and Tiffanie submitted to the allegations of the petition. The court placed the children in foster care. Keith's case plan included a psychological evaluation and participation in therapy and parenting classes. Keith requested custody of the children. However, an evaluation of his home conducted under the Interstate Compact on the Placement of Children (ICPC) (Fam. Code, § 7901 et seq.) by the Georgia Department of Family and Children Services (Georgia Department) was not favorable.

Keith had a history of drug abuse. His criminal history included theft crimes in the 1970's and drug-related crimes in the 1980's and 1990's. The Georgia Department had been unable to confirm or deny allegations Keith sexually molested his 12-year-old twin daughters. In August 2001, Keith was shot six times during a home robbery the Georgia Department suspected was drug-related. He sustained disabling injuries and had limited means of support. The Georgia Department did not recommend placement of the children in Keith's home.

In reports prepared for the six-month and 12-month review hearings, the Agency reported Keith consistently participated in services and regularly telephoned the children. In April 2004 Keith gained custody of his teenage daughters. The court continued reunification services to the 18-month review date. A few months later Keith regained custody of a son who had been in foster care in Georgia for three years.

In January 2005, at the 18-month review hearing, the Agency recommended the court terminate reunification services and set a permanency plan hearing under section 366.26. Despite the recommendation, the social worker planned to request another ICPC evaluation of Keith's home. The Georgia Department had turned down the Agency's earlier request but said it would conduct a second home study if Keith demonstrated he was free from alcohol and drugs, had a relationship with his children and was able to support them. In April 2005, the court continued the 18‑month review hearing.

Keith maintained regular contact with the children's foster mother and sent the children Christmas gifts. After Keith's sixth negative drug test, the Agency made a formal request for an ICPC home study. However, in March 2005, Keith tested positive for marijuana and the Georgia Department refused to reevaluate his home. At the conclusion of the 18-month review hearing, the court denied Keith's request to place the children with him, finding the Georgia Department's refusal to monitor the placement would present a substantial risk of detriment to the children. The court terminated reunification services and set a hearing under section 366.26.

Keith sought writ review of the court's order, asserting that a favorable ICPC evaluation was not required for placement with a parent. We denied Keith's petition, holding that "compliance with the ICPC was necessary because the court retained dependency jurisdiction over the children and both Keith and the children were in need of continuing services." (Keith P. v. Superior Court (Aug. 10, 2005, D046298) [nonpub. opn.].)

In January 2006 Keith filed a petition under section 388 for modification of the court's order terminating reunification services (modification petition). He requested the court order an ICPC home study and either return the children to his custody or grant him an additional six months of reunification services. He asserted he made positive changes in his life, refrained from drug use and could offer his children a loving, nurturing, caring and stable home with his wife and their other children. The court summarily denied Keith an evidentiary hearing.

DISCUSSION

Keith contends the court erred by arbitrarily denying him a hearing on the merits of his modification petition. Under section 388, a parent may petition the court to change, modify, or set aside a previous court order on the grounds of changed circumstances or new evidence. (§ 388, subd. (a).) The petition must allege why the requested change is "in the best interest of the dependent child." (§ 388, subd. (b).) If it appears the best interests of the child "may be promoted by the proposed change or order," the court is required to hold a hearing on the petition. (§ 388, subd. (c).) The court must liberally construe the petition in favor of granting the hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310; Cal. Rules of Court, rule 1432(a).) (Further rule references are to the California Rules of Court.) However, "[i]f the petition fails to state a change of circumstance or new evidence that might require a change of order or termination of jurisdiction, the court may deny the petition ex parte." (Rule 1432(b); In re Anthony W. (2001) 87 Cal.App.4th 246, 250; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414.)

We review a summary denial of a hearing on a modification petition for abuse of discretion. (In re Zachary G. (1999) 77 Cal.App.4th 799, 808.) Under this standard of review, we will not disturb the decision of the trial court unless the trial court exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.)

In his modification petition, Keith requested the court order another ICPC home study and either place the children in his custody or provide him six more months of reunification services. Keith asserted he "continued to better [himself] and make positive changes in [his] life." He submitted affidavits from friends, relatives and neighbors willing to testify he was "skillfully parenting five children and had never physically or verbally abused any of them, that he kept a clean and stable home, and that he was of good moral character." We presume the court complied with the liberal analysis mandated by In re Marilyn H., supra, 5 Cal.4th 295 and rule 1432(a). (See In re Jeremy W., supra, 3 Cal.App.4th at p. 1414.) "Accordingly, we search the record to see if even a liberal interpretation of the proffered evidence of changed circumstances might not justify modifying the order terminating reunification." (Ibid.)

In its prior order, the court found that Keith and the children were still in need of services and, without an approved ICPC home study, the court had no means of providing the family services and maintaining supervision. (Keith P. v. Superior Court, supra, D046298.) As both the Agency and minors' appellate counsel point out, the court could not place the children in Keith's home and continue to supervise the case without the cooperation of the State of Georgia. (Fam. Code, § 7901, art. 3, subd. (d); rule 1428(b)(1).) Keith asked the court to place the children in his custody but did not allege juvenile court supervision was no longer necessary. Therefore, in order to establish a prima facie case that, if proved, would allow the court to grant the relief requested, Keith had to allege the Georgia Department was willing to approve his home for placement. He did not do so. Even if the factual allegations of the modification petition were proved, the court had no discretion to grant Keith the relief requested.

Alternatively, Keith asked the court to extend the reunification period for six months. However, a trial court has the authority to extend reunification services past the 18-month review date only under very limited circumstances. (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1466; Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 167; see In re Dino E. (1992) 6 Cal.App.4th 1768, 1777 [extension permitted when no reunification plan was ever developed for the parent]; In re Daniel G. (1994) 25 Cal.App.4th 1205, 1211 [reasonable services were not offered]; In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1798-1799 [the parent's circumstances were unusual and the best interests of the child would be served by a continuance].)

Keith did not allege his reunification services were inadequate, or the best interests of the children and other exceptional circumstances justified a delay in the selection of the children's permanent plan. (See Renee J. v. Superior Court, supra, Cal.App.4th at p. 1466.) Even were we to assume a need for an ICPC home study was sufficient justification to delay permanency, the court did not abuse its discretion when it determined a hearing on the merits of Keith's request was not required. The Georgia Department had conducted one home study and twice declined to reevaluate Keith's home for placement. Keith did not allege facts showing the Georgia Department might reconsider its position. Therefore Keith did not present a prima facie case that would allow the court to sustain a favorable decision on the merits of his request for a home study by the State of Georgia. (See In re Zachary G., supra, 77 Cal.App.4th at p. 806.)

In determining whether the children's best interests would be promoted by an extension of the reunification period, the court specifically noted Keith did not allege he continued to visit or contact the children. The record shows Keith came to California to visit the children once in three years. His telephone communications waned after the 18-month review hearing. The social worker concluded Keith made little attempt to nurture or cultivate his relationship with the children. She believed the children had no identifiable relationship with their father.

The court may consider the entire factual and procedural history of the case when it determines whether the petition makes the necessary showing. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189; see In re Jamike W. (1997) 54 Cal.App.4th 1446, 1450-1451.) Other than the conclusory statement "[c]hildren are happier when in the care of their own biological parents if the parents are capable parents," Keith did not proffer any evidence concerning the children's best interests. The record shows Christian and William remained psychologically and emotionally vulnerable and in need of continued support services. They barely knew Keith. Keith had a significant history of risk factors (see Keith P. v. Superior Court, supra, D046298) and was not able to remain drug-free during the 18-month reunification period. Christian and William were living with prospective adoptive parents who were committed to adopting them. They also enjoyed continued visitation with their mother's other two children, an older brother and a baby brother.

Keith did not proffer evidence which would have allowed the court to conclude after a hearing that the Georgia Department was likely to reevaluate his home and approve it for placement, that exceptional circumstances existed which required an extension of reunification services past the 18-month review date, or that the children's best interests would be promoted by modifying the prior order. (In re Anthony W., supra, 87 Cal.App.4th at p. 250; In re Zachary G., supra, 77 Cal.App.4th at p. 806.) Because the factual allegations in the modification petition did not support a prima facie case of changed circumstances or new evidence, the court did not abuse its discretion when it denied Keith a hearing on the merits under section 388. (Rule 1432(b).)

DISPOSITION

The judgment is affirmed.

McINTYRE, J.

WE CONCUR:

McCONNELL, P. J.

NARES, J.

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