In re Johnathon E.

Filed 3/27/07 In re Johnathon E. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from orders of the Superior Court of Los Angeles County. Marilyn Mackel, Commissioner. Reversed and remanded.

ORIGINAL PROCEEDINGS, Petition for Extraordinary Writ, Granted.

Diana W. Prince, by appointment of the Court of Appeal, for Appellant Daniel E.

Janette Freeman Cochran, by appointment of the Court of Appeal, for Appellant Kathleen V.

Merrill Lee Toole and Jennifer Kimball for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Lisa Proft, Deputy County Counsel, for Respondent and Real Parties in Interest.

Childrens Law Center of Los Angeles, Jasminder Deol for minor, Johnathon E.

______________________________

SUMMARY

A dependency petition was filed after a child was injured in the home of his mother. During the course of dependency proceedings, the noncustodial father sought custody of the child by filing Welfare and Institutions Code section 388 petitions.[1] The father also sought a bonding study to evaluate his relationship with his child. The juvenile court summarily denied the fathers petitions seeking custody and denied his inclusion in the bonding study. From those denials, the father appeals and petitions for a writ of mandate.

We conclude that, in the absence of a finding of detriment, the nonoffending fathers petitions requesting his childs custody were erroneously denied. In addition, the failure to include the father in the court-ordered bonding study constituted an abuse of discretion.

FACTUAL AND PROCEDURAL BACKGROUND

Before the events giving rise to this case occurred, Johnathon and his younger half-brother Carlos lived in the home of their mother Marleen and Carlos father Omar. Johnathon also had an older brother, Daniel, Jr., who resided with Johnathons and Daniel, Jr.s father, also named Daniel, in the home of their paternal grandmother Kathleen.

Johnathon and Carlos came to the attention of the Department of Children and Family Services (DCFS) on June 7, 2003, after Carlos was reported injured during an incident of domestic violence between Marleen and Omar. Following the incident report, Omar was arrested and taken into custody, and DCFS conducted an investigation of the incident.

Following its investigation, DCFS indicated it would agree that Johnathon and Carlos could remain with Marleen on the condition that she separate from Omar, reside with the children in a relatives home, and participate in individual counseling and parenting classes. After Marleen agreed to those conditions, the children were permitted to remain with her.

When Omar was released from custody, he returned to the home he had previously shared with Marleen, Johnathon and Carlos. Marleen and the children also returned to the home. DCFS viewed Marleens return to the home as a breach of her earlier agreement, removed the children from the home, placed Johnathon and Carlos into protective custody pending a hearing, and filed a section 300 petition on the childrens behalf.

The petition filed on June 11, 2003 alleged in pertinent part:

           Carlos was injured during an incident of domestic violence between Marleen and Omar, which placed him and Johnathon at risk of future harm.

           Marleen had a history of methamphetamine abuse which impaired her ability to care for her children.

           Marleens two older children, Serena and Samantha, had previously been made dependents of the court and were not returned to Marleens care after she failed to take the steps necessary to reunify with the children.

Johnathons father Daniel was not named as an offending parent in the petition and no allegations were asserted against him. At the time the petition was filed, DCFS did not know Daniels current whereabouts. However, because DCFS records indicated that Daniel last resided in Covina, the detention hearing notice was sent to him at the Covina address.

A detention hearing was conducted on June 11, 2003, which Daniel did not attend. At the conclusion of the hearing, the court detained Johnathon and Carlos in a foster home.

Daniel and Kathleen appeared at the DCFS office in Norwalk the day after the detention hearing. Daniel voiced frustration that DCFS had failed to notify him of the hearing, he provided DCFS his current address in El Monte, and he and Kathleen requested Johnathons immediate placement in their home. DCFS preliminarily interviewed, photographed and fingerprinted Daniel and Kathleen.

A DCFS social worker interviewed Daniel a week later. Daniel explained he was employed, he had cared for Daniel, Jr., since birth without incident, and he and Daniel, Jr., lived in Kathleens home in El Monte. Based upon a background check of Daniel and an investigation of Kathleens home, DCFS expressed two concerns. First, while large enough to accommodate Johnathon, Kathleens home lacked a separate bed for him. Second, Daniel had a prior criminal history consisting of possession of drug paraphernalia and taking a vehicle without consent, but had been arrest-free for a number of years. Based on those concerns, DCFS indicated a willingness to release Johnathon to Daniel upon the procurement of an additional bed and Daniels completion of five random drug tests. Daniel agreed to obtain a bed and submit to drug testing.

An adjudication and disposition hearing was calendared for July 8, 2003. DCFS sent a notice of the hearing and a copy of the petition to Daniels current El Monte address. Notwithstanding his receipt of notice, Daniel did not appear at the hearing. The section 300 petition was sustained at the hearing. Although not named in the sustained petition and not present at the hearing, Daniel was ordered to submit to five random drug tests and was permitted monitored visitations with Johnathon.

Review hearings were thereafter conducted at six, twelve and eighteen-month intervals during 2004 and 2005.

PERIODIC REVIEW HEARINGS

Daniel was noticed for the January 6, 2004 six-month review hearing at both his former Covina address and his current El Monte address. He did not appear at the hearing. DCFS reported at the hearing that Daniel had been referred for drug testing, but had not complied with the testing requirement due to his work schedule.

Daniel was noticed for the July 6, 2004 twelve-month review hearing at his former Covina address only. He did not appear at the hearing. DCFS reported that Daniel had failed to maintain contact with DCFS and still had not completed court-ordered drug testing, and recommended terminating reunification services as to Daniel. Based on the recommendation, the court terminated reunification services, but authorized DCFS to permit Daniel monitored visitation once he contacted DCFS.

At the eighteen-month hearing, DCFS recommended a permanent plan of legal guardianship for Johnathon and Carlos in the home of their foster parents. The hearing, originally calendared for December 9, 2004, was continued numerous times. For each hearing, Daniel was noticed at his former Covina address, and did not appear on any of the hearing dates. When the eighteen-month review was eventually conducted on July 27, 2007, reunification services were terminated as to Marleen and Omar due to their failure to comply with the DCFS case plan for reunification. The court ordered monitored visitation, preparation of an adoption assessment, and calendared a section 366.26 hearing for November 21, 2005 to consider terminating parental rights.

Although notice of the termination of parental rights hearing was mailed to Daniels former Covina address, he nonetheless learned about the hearing from Marleen. He contacted DCFS on November 15, 2005 stating his intention to attend the hearing.

When Daniel appeared at the section 366.26 hearing, counsel was appointed to represent him. A DCFS report prepared for the hearing revealed that health problems prevented the foster parents from becoming Johnathons and Carloss legal guardian. The report also indicated that prospective adoptive parents, committed to adopting the children, had been located. DCFS therefore recommended termination of parental rights. Because the childrens parents disagreed with the recommendation, the matter was continued to January 25, 2006 for a contested hearing.

PETITIONS AND REQUESTS

During the three months after the November 21, 2005 hearing, Daniel filed a series of section 388 petitions and requested a bonding study.

First Petition

Daniel filed a section 388 petition on December 20, 2005, requesting Johnathons immediate release to him. His supporting declaration asserted three claims. First, he had not received formal notification of the hearings because DCFS sent hearing notices to his former Covina address rather than to his current El Monte address. Although he did not receive formal notice, Marleen had informed him of certain court hearings. Second, he and Daniel, Jr., had regular contact with Johnathon during Marleens unmonitored visitation with Johnathon and Carlos. Third, through these visits, Johnathon had developed and maintained a relationship with brother Daniel, Jr. In denying Daniels petition without a hearing, the court stated he failed to comply with the case plan by not completing required drug testing, had failed to participate in court proceedings despite his awareness of them, and had not demonstrated a commitment to Johnathon.

Second Petition

After learning about Johnathons and Carloss January 6, 2006 placement in a prospective adoptive home, Daniel and Kathleen filed a second 388 petition on January 24, 2006 seeking to modify the placement order and to have Johnathon released to them on the ground that placement with the natural family was preferable to a home he did not know. The petitions were again denied without hearing because they failed to allege changed circumstances or new evidence or demonstrate that the requested modification would promote Johnathons best interest.

Third Petition

Daniel filed a third section 388 petition on February 23, 2006, requesting Johnathons immediate placement with him or, alternatively, with Kathleen, with whom he and Daniel, Jr., continued to live. On March 9, Daniel filed an addendum to the petition, stating he had regularly visited with Johnathon during Marleens unmonitored visitation with him, he had raised Daniel, Jr., since birth with the help of Kathleen, Daniel, Jr., and Johnathon wanted to live together, and telephone records revealed numerous contacts between him, Kathleen, DCFS and the former foster parents.

In response, while DCFS conceded that Daniel and Kathleen had made telephone calls to the foster home and has spoken to Johnathon, it claimed that neither Daniel nor Kathleen had formally requested visitation with Johnathon. DCFS also maintained that Daniel had not completed court-ordered drug testing despite referrals, and had not shown any interest in Johnathon until after a referral for adoptive placement was made. DCFS further claimed that Johnathon and Carlos shared a strong bond and that Johnathons best interest would be undermined by separating him from Carlos, and that interest would be best served by placing him with Daniel and Daniel, Jr.

The court deferred ruling on Daniels third amended section 388 petition until September 7, 2006.

Bonding Study Request

On March 17, 2006, Daniel requested that the court order a bonding study under Evidence Code section 730 to evaluate the relationship between Johnathon and Daniel, Jr.; Johnathon, Daniel and Kathleen; and Johnathon and his prospective adoptive parents. In order to receive responses to the request from interested parties, the court continued the hearing dates for DCFSs termination of parental rights petition, Daniels third section 388 petition, and his bonding study request, and calendared a June 30, 2006 progress hearing.

After receiving DCFSs and childrens counsels response to the bonding study request, the court denied Daniels request to include him in the study. The court did, however, order psychologist Ronald Fairbanks to conduct a study to evaluate the relationship between Johnathon, Carlos and Daniel, Jr.

At the June 30, 2006 progress hearing, reports from both Fairbanks and DCFS were considered. In his report, Fairbanks indicated Johnathon had exhibited serious behavior problems in his prospective adoptive home and had not bonded to anyone in the home. In contrast, he found that Johnathon, Carlos and Daniel, Jr., were well-adjusted children, attached to one another, and desired to live with each other in Kathleens home. In his opinion, placing Johnathon apart from Carlos and Daniel, Jr., would prove detrimental to him.

DCFS reported the prospective adoptive placement for Johnathon had failed due to the adoptive parentss inability to manage the behavioral problems he exhibited following visits with Daniel, Jr., and Kathleen. Following the placements failure, DCFS replaced Johnathon and Carlos in their former foster home without a reoccurrence of behavioral problems. The foster parents, however, were not interested in becoming the childrens permanent caretakers.

Based on Fairbankss evaluation, the court granted DCFS discretion to place Johnathon and Carlos in Kathleens home, and the section 366.26 hearing was taken off calendar. On September 6, 2006, Johnathon and Carlos were placed in Kathleens home.[2] At that point, Kathleen expressed a desire to become their legal guardian.

On September 7, 2006, the court addressed Daniels February 23, 2006 section 388 petition and received into evidence DCFSs proposed permanent plan for Johnathon and Carlos. It concluded Daniels third petition was moot because Johnathon had already been placed in Kathleens home, which was the alternative relief sought in Daniels petition. The section 366.26 hearing was continued to January 4, 2007, and a permanent planning hearing was continued to March 8, 2007.

DISCUSSION

1. Absent a finding of detriment, the nonoffending fathers petitions

requesting his childs immediate placement with him was erroneously denied.

Daniel argues that, as a nonoffending parent, he was entitled to custody of Johnathon and that the court erred in summarily denying his three section 388 petitions seeking Johnathons immediate placement with him. In response, DCFS argues that the requisite detriment findings were made and that the courts denial of Daniels petitions without a hearing was proper because he failed to comply with the case plan by not completing required drug testing, not participating in court proceedings despite his awareness of them, and not demonstrating a commitment to Johnathon.

Section 361.2 establishes the placement procedures to be followed after a child is removed from the custodial parents under section 361. (In re Phoenix B. (1990) 218 Cal.App.3d 787, 792.) Section 361.2, subdivision (a) provides that when a child is removed under section 361, the court must first determine whether there is a parent who deserves custody and who was not residing with the child when the events occurred that brought the child within the provisions of section 300. ( 361.2, subd. (a).) If that parent requests custody, the court is required to place the child with the parent unless it finds that the placement would be detrimental to the child. (Ibid.) Moreover, the court is specifically required to make written or oral findings setting forth the basis for its determinations. ( 361.2, subd. (c).)

Based on the sustained petition, Daniel is a nonoffending parent. He did not reside in the home with Johnathon when the incidents of domestic violence occurred that initially brought Johnathon and Carlos to the attention of the DCFS. Moreover, the section 300 petition did not assert any allegations against Daniel. Under the procedures specified in section 361.2, subdivision (a), when Daniel appeared at the DCFS office one day after the detention hearing, Johnathon should have been released to him in the absence of a sustained supplemental petition.

In addition, the court erred in summarily denying Daniels three section 388 petitions requesting immediate custody of Johnathon. Section 388 authorizes the filing of a petition to modify an order upon grounds of change of circumstance or new evidence. ( 388, subd. (a); see also In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) A petition brought under this section must be liberally construed in favor of its sufficiency. (Cal. Rules of Court, rule 5.570, former rule 1432(a).) If the petition presents any evidence that an evidentiary hearing would promote the best interest of the child, the court is required to conduct a hearing. ( 388, subd. (c); In re Aljamie D. (2000) 84 Cal.App.4th 424, 431-432 (Aljamie J.).) To be entitled to a hearing, a parent need not establish a probability of prevailing on his petition. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414.) It is sufficient that the petition presents evidence indicating that a hearing would promote the childs best interest. (In re Heather P. (1989) 209 Cal.App.3d 886, 891.) The denial of a section 388 petition without a hearing is reviewed for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-318.)

The issue presented is whether Daniel made the necessary prima facie showing to require an evidentiary hearing. The sufficiency of the showing depends on the facts alleged in the petition, as well as undisputed facts appearing in the court file. (In re Angel B. (2002) 97 Cal.App.4th 454.)

The facts alleged in Daniels petitions, and set out in greater specificity in his supporting declarations, reveal:

        He had not been formally notified of court hearings because DCFS sent hearing notices to his former address rather than to his current address.

        He was employed and lived with Johnathons brother Daniel, Jr., in Kathleens home.

        He had raised Daniel, Jr., since birth without incident.

        He and Daniel, Jr., had regularly visited with Johnathon during Marleens unmonitored visitations with Johnathon and Carlos.

        He had maintained contact with DCFS, Johnathon and his former foster parents, as evidenced by telephone records.

        Daniel, Jr., and Johnathon had developed a close relationship and wanted to live together.

In our view, Daniel made a sufficient prima facie showing to warrant an evidentiary hearing. Several additional factors lend support to this view.

First, although DCFS expressed concerns about Daniels past drug history and his failure to complete drug testing as a condition of Johnathons placement in his home, DCFS never filed a supplemental petition seeking a declaration of Daniels unfitness, and the court never adjudicated Daniel unfit to parent Johnathon.

In addition, the court made no finding that Johnathons placement with Daniel would be detrimental, as required by section 361.2, subdivision (a). ( 361.2, subd. (a).) Where a court fails to make express findings of detriment, an appellate court may imply findings only if the supporting evidence is clear and convincing. (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1825.) Based on the evidence in the record, we would be reluctant to imply a finding of detriment.

DCFSs assertion of Daniels drug history is both remote in time and limited in nature. The assertions do not indicate that the purported drug history impairs his current parenting ability. Indeed, nothing suggests that it affected his ability to care for Daniel, Jr., at any time. Moreover, the assertions do not indicate any current drug involvement.

Second, Daniel has not made a belated appearance in the case. As In re Gladys L. (2006) 141 Cal.App.4th 845, 847 held, a nonoffending fathers failure to assert his interest sooner rather than later does not necessarily result in a forfeiture of his parental rights. In that case, the father absented himself from the case for three years and only asserted his interests at the termination of parental rights stage of the dependency process. During the three-year absence, the father did not request custody of his daughter, nor did he visit her. (Ibid.) Although reversal of the courts order terminating parental rights may undermine the goal of rapidly concluding dependency proceedings, this division held it was the only way to safeguard the fathers rights and to ensure that he was afforded due process. (Id. at p. 848.) Here, Daniel was much more engaged in the dependency process. Immediately after the detention hearing, he requested Johnathons placement in his home. He filed three section 388 petitions seeking custody of Johnathon. His failure to attend court proceedings may be attributable to DCFSs failure to properly notify him of hearings.

Notwithstanding DCFSs assertion, Daniel demonstrated a commitment to Johnathon. He visited Johnathon on a regular basis. He involved Daniel, Jr., in those visits. He maintained telephone contact with Johnathons foster parents. And he made numerous efforts to contact DCFS caseworkers about the case.

All told, consistent with the standard articulated in Aljamie J., Daniels petitions present sufficient evidence, in themselves and in conjunction with the record, that an evidentiary hearing would promote Johnathons best interest. As such, the court abused its discretion in not conducting an evidentiary hearing in response to those petitions to determine, at a minimum, whether Daniel was entitled to custody of Johnathon.

2. Failure to include the father in the bonding study was an abuse of discretion.

In seeking a bonding study, Daniel requested an order directing a court-appointed psychologist to evaluate his relationship with Johnathon as part of a broader evaluation. Daniel argues the court abused its discretion in denying his request. Maintaining that no abuse of discretion occurred, DCFS argues that Daniels request was belated. According to DCFS, once reunification services have been terminated, as here, the dependency scheme fashioned by the Legislature requires the court to shift focus from family reunification to alternative permanency planning.

The Legislature declared Californias interest in providing a stable, permanent home for a child where the child has been removed from parental custody and timely reunification efforts have proved unsuccessful. (In re Richard C. (1998) 68 Cal.App.4th 1191, 1996.) Once reunification efforts have been terminated, the States interest requires the court to address the childs need for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 307.)

A bonding study typically is requested to avoid termination of parental rights by establishing that a parent-child bond exception exists under section 366.26, subdivision (c)(1)(A). The exception applies where the court finds that regular visitation or contact has continued or has established a significant, positive and emotional attachment between parent and child. (In re Richard C., supra, 68 Cal.App.4th at p. 1196.) However, a study ordered after the termination of reunification services inevitably produces a delay in permanency planning. As In re Richard C. points out, requests to acquire additional evidence to support a parents claim under section 366.26, subdivision (c)(1)(A) could be asserted in nearly every dependency proceeding where a parent maintained some contact with a child. (In re Richard C., supra, 68 Cal.App.4th at p. 1197.)

The Legislature did not contemplate last-minute efforts to forestall permanent placement of children. (In re Marilyn H., supra, 5 Cal.4th at p. 310.) Ordinarily, denying a belated request for a bonding study is consistent with the dependency statutory scheme and due process principles. However, it is not beyond the proper exercise of a courts discretion to order a bonding study late in the dependency process under compelling circumstances. Those circumstances are present in this case.

Daniel requested a bonding study after reunification services were terminated, but before a section 366.26 hearing was conducted. After the request was made, Johnathon was replaced from his prospective adoptive home to his grandmothers home. Moreover, after the replacement, the scheduled permanency planning hearing was further continued. As a result, a broader study that included Daniel would not significantly delay permanency planning for Johnathon.

More importantly, Daniel submitted evidence, in the form of declarations supporting his three section 388 petitions, that he maintained regular contact with Johnathon during Marleens unmonitored visitation with Johnathon and Carlos. That evidence raises the possibility that, if the strength of Daniels relationship with Johnathon had been evaluated, Fairbanks may have found that a sufficient parent-child bond existed to satisfy the requirements of section 366.26, subdivision (c)(1)(A). In our view, the court abused its discretion in denying Fairbanks an opportunity to evaluate that relationship.

DISPOSITION

The juvenile court orders summarily denying the fathers three section 388 petitions are reversed. The fathers petition for writ of mandate is granted. Additionally, the order denying the fathers request to be evaluated as part of the court-ordered bonding study is reversed.

Upon remand, the court is directed to immediately order that the Evidence Code section 730 study evaluate the fathers relationship with his child. Upon receipt of that evaluation, the court is directed to conduct an evidentiary hearing within 21 days to consider the merits of the fathers section 388 petitions. Pending the outcome of the hearing on the section 388 petitions, the court is directed to vacate any existing dates for a section 366.26 hearing. The court is further directed to instruct DCFS to ascertain the fathers current address and to send him notices of any and all hearings to his current address.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND, J.

We concur:

COOPER, P. J.

FLIER, J.

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[1] Undesignated statutory references are to this code.

[2] DCFS requests judicial notice of the courts September 7, 2006 minute order in Superior Court case No. CK16168 reflecting Johnathons placement in the home of his paternal grandmother Kathleen. The order is relevant because it indicates DCFSs pursuit of a permanent plan for Johnathon apart from adoption.