Filed 8/16/17 In re M.F. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Laura J. Birkmeyer, Judge. Affirmed.

Neale B. Gold, under appointment by the Court of Appeal, for Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Kristen M. Ojeil, Deputy County Counsel, for Plaintiff and Respondent.

Marisa L. D. Conroy, under appointment by the Court of Appeal, for Defendant and Respondent.

Patti L. Dikes, under appointment by the Court of Appeal, for Respondent.

M.F., a minor, appeals from a juvenile court order striking an amendment according to proof that added allegations regarding his father, Stephen F. (Father), to a dependency petition filed on his behalf. M.F. contends the court abused its discretion by removing the allegations without reopening proceedings for further evidence. Respondents Father, M.F.'s mother, Nicole W. (Mother), and the San Diego County Health and Human Services Agency (the Agency) maintain the court did not abuse its discretion. We agree and affirm the order.[1]

FACTUAL AND PROCEDURAL BACKGROUND

I. Detention

M.F. was born in December 2016. Both he and Mother tested positive for amphetamine and methamphetamine. Mother identified Father as M.F.'s father.

Later that month, the Agency filed a petition under Welfare and Institutions Code section 300, subdivision (b)(1), noting the drug test results, Mother's history of using controlled substances, and two prior dependency cases due to substance abuse in which she lost parental rights.[2] The petition further alleged Mother admitted using methamphetamine two to three days before M.F.'s birth and remained untreated for substance abuse. The petition did not address Father. M.F. was detained in a placement with one of Mother's older children.

Social worker Melinda Jackson prepared the Agency reports. Relevant here, the detention report addressed Father's prior dependency cases, Mother's drug use during pregnancy with M.F., the parents' relationship and recent contact, and Father's awareness of Mother's drug use.

Father had two prior voluntary cases and a reunification case for his daughter Alice C., as well as a number of referrals. The report indicates the court terminated jurisdiction in the reunification case because Alice died of SIDS.

Mother acknowledged she used amphetamine, methamphetamine, and marijuana while pregnant with M.F. She said she used methamphetamine and marijuana two to three days prior to M.F.'s delivery, due to being "stressed out and upset" with Father. In November 2016, she went to the hospital for an infection, and hospital records showed she tested positive for drugs. The records indicated Father told the hospital staff she was using opiates and drinking.

Mother stated she used Father's home as a mailing address, and had lived with him for about a week, but was staying with her sister or other friends. Father acknowledged he allowed Mother to use his mailing address, but denied she lived with him (while indicating she sometimes stayed the night). He also said Mother stays with other people in the complex, had been staying with a man named Bill down the street, and that she "gets the drugs" from Bill. Both parents denied being in a relationship with each other. Jackson reported recent contact between the parents. When Mother was released from the hospital, she used a taxi voucher to travel to Father's complex, and he reported she confronted him the next morning. On December 19, M.F.'s caretaker reported she received a call from Father's number, and it was Mother. The same day, at a joint visit with M.F., Mother indicated multiple times they were a couple and wanted to do visits and services together, and Father remained silent (but shook his head no and turned his head).

Father said Mother did not tell him she used drugs, but he knew something was wrong when he held M.F. and he appeared to be shaking. Father stated Alice died because her mother was on drugs, so he was upset M.F. was born with drugs in his system. Father later indicated Mother does use drugs. Jackson asked if Father had seen Mother do drugs, and he said no. She then asked why he was unable to keep Mother away from drugs if he knew she was pregnant. Father explained she rarely came around him and he had not seen her too often (while acknowledging he took her to the emergency room a few times). Jackson inquired how Father would be able to protect M.F., with Mother living and visiting nearby. He stated he will protect his son, that when he sees Mother he ignores her, and that he does not want anything to do with her.

The report identified multiple risk factors if M.F. were returned to Mother or Father, including Mother's drug use during pregnancy and the parents' relationship. The Agency had reason to believe Mother lived with Father and was concerned that if M.F. were detained with Father, Father would be unable to set boundaries, keep Mother out of his home, and be a protective parent.

At the detention hearing, Father's counsel stated he and Mother were not in a relationship and that Father would like individual, unsupervised visits. County counsel and M.F.'s counsel requested visits be supervised. The court detained M.F. and ordered supervised visitation.

II. Jurisdiction and Disposition

The Agency's jurisdiction and disposition report provided information about, among other things, the parents' recent interactions and Father's understanding of the protective issues.

On December 21, while at the court for the detention hearing, Mother again stated they were together, and Father again did not respond. On December 27, Jackson received a text message from Mother stating Father had her papers and refused to return them, and that she stayed with him on Christmas Eve. Father said he gave Mother her papers and denied she was with him on Christmas Eve. On December 28, Mother was arrested and called Father, and Father refused to bail her out. On January 3, 2017, Jackson made an unannounced visit to Mother's home, and there was no answer. When she went to Father's unit, he said he was sick, stated "I told you she is not here," and did not invite Jackson in to check.

Father requested and was given a paternity test. He stated that if he is M.F.'s father, he wants custody and does not want Mother around until she has been in treatment and stopped using drugs. He knew he needed to protect his son, and would be willing to get a restraining order to keep Mother away. But he also indicated M.F. needs both parents, and he would want M.F. to know Mother. The Agency was concerned he was living with Mother and not being honest. The Agency also found it appeared Father was unwilling or unable to set boundaries, which led it to believe he would not be able to protect M.F.

At the initial jurisdiction and disposition hearing in January 2017, Father's counsel indicated Father was seeking new housing. His counsel also responded to the report about the social worker's visit to his home on January 3, indicating he did not know she wanted to make sure Mother was not there and the social worker was welcome in his home at any time. The court set a settlement conference and trial date.

The Agency provided an addendum report, which indicated Father was M.F's biological father and addressed further interactions between the parents. On January 12, Mother broke Father's window and was arrested for vandalism. On February 6, they both attended a service provider meeting, after Jackson had advised Father they had to do services separately. Mother did indicate at the meeting that she was living with an aunt, not near Father. Jackson had also received a text message from Mother stating Father "stabbed [her] in [her] right leg." When Jackson asked Mother about this at the February 6 meeting, she did not answer, and Father denied stabbing her. The Agency remained concerned Father was living with Mother and about his ability to set boundaries, and believed he would not be able to protect M.F. But the Agency indicated that if his status was elevated to presumed, it would like to offer him reunification services, and provided a case plan.

At the settlement conference, the court amended the petition to identify Father as M.F.'s presumed father. M.F.'s counsel indicated that her trial issue, in addition to Father's case plan, was "about learning to be a protective parent." She also added Father, Mother, Jackson, and possibly the caregiver as trial witnesses.

The contested jurisdiction and disposition hearing took place in February. Father's counsel stated he was not named in the petition, but was submitting to jurisdiction as his home was not ready for M.F. The court entered the Agency reports into evidence and Jackson testified. Based on Father's counsel's questioning of Jackson, M.F.'s counsel called Father as a witness. Father testified he knew Mother had a substance abuse problem. M.F.'s counsel asked if he knew she used drugs while pregnant with M.F., and he stated there were times he did not see her, so he could not answer the question. Father later acknowledged he had been present when Mother drank beer and wine, smoked marijuana, and used methamphetamine. Father also testified he was in a romantic relationship with Mother, saw her daily, and thought he played a "big part" in helping Mother.

During closing arguments, Father's counsel indicated he was submitting to jurisdiction, as he was "nonoffending in the petition" and was not requesting placement at this time. County counsel stated: "I believe the Court would also be within its purview to conform to proof . . . [F]ather's failure or inability to protect the child from . . . [M]other's drug use based on, in part, [F]ather's testimony given today, in addition to the information in the report." M.F.'s counsel joined the request to conform to proof. County counsel also argued that while Father was not seeking custody, he was asking for reunification services, and a detriment finding was appropriate based on Father's testimony and the reports.

The court found the petition's allegations true. In response to the request to conform to proof, it added an allegation that " '[t]o the extent that [F]ather was aware of [M]other's substance abuse issues while pregnant with the child and subsequent to the child's birth," he was "unable to protect the child from drug use or dissuade . . . [M]other from continuing drugs . . . ." Father's counsel objected, arguing there was no prior indication they would seek to add him to the petition and, had she known, the trial strategy may have been different. County counsel and M.F.'s counsel argued in favor of keeping the language.

The juvenile court ruled the amended language would remain. The court found the risk to M.F. included Father's "ability to be protective due to his need for [M]other." The court stated: "And some of this, quite frankly, had it been on the papers maybe I wouldn't have made the conclusion that I did. After having listened to his testimony and observed his demeanor with respect to his awareness of [M]other's drug use, that is of significant concern for the future." The court explained its "goal . . . is to identify what are the issues that can hamper reunification and . . . place[] the child at risk, and then . . . design a case plan to insure that the parents are offered services to the extent that the law permits," and stated that was "the Court's only intention by identifying that in . . . the petition."

The court also found that "at this time it would be detrimental to place [M.F.] with [F]ather." The court made this finding "based on . . . [F]ather's inability to . . . be protective," and explained "there needs to be more prolonged protective action by . . . [F]ather in order to be able to safely receive the child into his home." The court stated that although Father was not seeking custody, "the goal . . . is that he is working toward having the child placed in his care," and ordered services consistent with his case plan. The court denied services to Mother.

III. Special Hearings

Later that month, the juvenile court held a special hearing on its own motion. The court advised counsel it intended to "strike the modified language regarding Father from the petition" and would continue the hearing so they could be heard. The court provided its tentative ruling, stating it could only amend pleadings to conform to proof "as long as those amendments did not mislead the parties or create prejudice," and it had concern that Father was prejudiced by a lack of notice. It noted fairness may be achieved by reopening the evidence, but explained: "Based on the facts before [it] . . . and . . . keeping in mind, the goal of the dependency process, I think they can be achieved otherwise just by striking the added language . . . and not reopening the trial."

At the continued hearing, county counsel argued there was no due process issue and Father was not prejudiced, and M.F.'s counsel joined these arguments. County counsel also indicated she would not object to a reopening of the evidence. Father's counsel maintained he was denied his due process rights.

The juvenile court determined it would follow its tentative ruling. The court explained that while Father was on notice he could be called as a witness, there was "nobody claiming . . . that during settlement . . . anybody was going to be moving to add him to the . . . petition." When trial started, "there was no notice to anyone, including the court, that . . . language would be added to the petition regarding [F]ather." There was also "was no specific recommendation as to the precise language . . . ." The court found "the way this all unfolded is prejudicial to [F]ather," and that "[h]e didn't prepare for a defense on jurisdictional issues . . . ." The court acknowledged Father's testimony revealed "more information . . . about his knowledge of Mother's drug use subsequent to the birth of [M.F.] which is very, very concerning." The court indicated this goes to "the need for a case plan" and whether it would be detrimental to place him with Father. The court stated "of course . . . the detriment finding remains as to placement."

The court then addressed its decision not to reopen the trial: "One, I don't think that's the best course in this case[,] nor is it necessary. And, in addition, while I certainly understand the facts of this case are very unique, and that the issue appeared to arise in rebuttal, I find that the best course is just to strike the language." The court explained that "part of the basis for a petition is to . . . put everybody on notice" as to the risks in the case, and it thought this had "adequately been done through the court's comments to [F]ather, through the goals, as listed in his case plan, and the very specific case plan language, as well as the court's direct comments to [F]ather . . . ." The court again noted its detriment finding.

The court struck the allegations as to Father, and M.F. appealed.

DISCUSSION

M.F. contends the court erred by striking the allegations conforming to proof as to Father without reopening proceedings.

I. Justiciability

We begin by addressing the Agency's argument that this appeal is not justiciable, on the grounds it could not result in a reversal of jurisdiction or other meaningful relief.

There is no dispute jurisdiction will exist here, because Mother did not appeal the jurisdictional finding. (See In re Alexis E. (2009) 171 Cal.App.4th 438, 451 ["When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence."].)

However, we may "exercise our discretion and reach the merits of a challenge to any jurisdictional finding when the finding (1) serves as the basis for dispositional orders that are also challenged on appeal [citation]; (2) could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings [citations]; or (3) 'could have other consequences for [the appellant], beyond jurisdiction' [citation]." (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763 (Drake M.); id. at p. 763 [addressing jurisdiction as to father, although there was no challenge to findings under separate counts as to mother].)[3] M.F. maintains the court's ruling was prejudicial to him and could have effects beyond jurisdiction, such as making it easier for Father to obtain custody and delaying termination of Father's parental rights. We address the merits of these arguments post, but for purposes of justiciability, we conclude M.F. has sufficiently articulated reasons to address his appeal. (Drake M., supra, at pp. 762-763; cf. In re I.A. (2011) 201 Cal.App.4th 1484, 1493 [parent "ha[d] not suggested a single specific legal or practical consequence" from the finding at issue].)

Therefore, we will exercise our discretion to reach M.F.'s challenge to the court's modification of its jurisdiction findings.[4]

II. Modification of Petition Allegations

A. Applicable Law

"Section 348 provides that provisions in the Code of Civil Procedure relating to variance and amendment of pleadings in civil actions apply to juvenile dependency petitions and proceedings. Amendments to conform to proof are permitted, but material amendments that mislead a party to its prejudice are not allowed. (Code Civ. Proc., §§ 469-470.)." (In re Andrew L. (2011) 192 Cal.App.4th 683, 688-689 (Andrew L.).) Amendments that violate due process likewise are not permitted. (Id. at p. 689 [" ' If a variance between pleading and proof . . . is so wide that it would, in effect, violate due process to allow the amendment, the court should, of course, refuse any such amendment.' "].) Under section 385, "[a]ny order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article." (See also Code Civ. Proc., § 473, subd. (a)(1) [court may, after notice to the parties, allow an amendment to a pleading "upon any terms as may be just"].)

The juvenile court also has discretion to decide whether to reopen the evidence. (In re Mary N.B. (2013) 218 Cal.App.4th 1474, 1481 (Mary N.B.).)

We review these determinations for abuse of discretion. (Stockton v. Ortiz (1975) 47 Cal.App.3d 183, 194 ["The trial court has wide discretion where the amendment raises new issues after the pleadings have been settled and the trial has begun. [Citation.] [¶] It is also well settled that unless there is a clear abuse of discretion the denial of allowing a party to amend to conform to proof will not be disturbed on appeal."]; Mary N.B., supra, 218 Cal.App.4th at p. 1481 [" 'A request to reopen for further evidence is addressed to the discretion of the trial court whose determination is binding on appeal in the absence of palpable abuse.' "].)

B. Analysis

The juvenile court did not abuse its discretion by striking the allegations conforming to proof as to Father without reopening the hearing.

We begin with the court's decision to strike the allegations. The court based this ruling on its finding that Father was prejudiced by the course of events, including a lack of notice of the specific language for the allegations, and was unable to prepare a defense. Prejudice is grounds for rejecting an amendment according to proof, and M.F. does not dispute on appeal that Father was prejudiced. (Andrew L., supra, 192 Cal.App.4th at pp. 688-689.) The due process issues alone supported striking the amendment. (Id. at p. 689; In re Fred J. (1979) 89 Cal.App.3d 168, 175 [" 'a parent must be given notice of the specific factual allegations against him or her with sufficient particularity to permit him or her to properly meet the charge' "]; cf. Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 117-118 [court safeguarded parent's due process rights by providing "notice and an opportunity to be heard, including the right to present evidence and to confront witnesses"].) The juvenile court's decision to strike the allegations was well within its discretion.

M.F.'s arguments are unpersuasive. First, he contends there was ample evidence to support the amendment to conform to proof. The initial amendment is not at issue here. Second, M.F. argues "amendments to conform to proof are favored," citing In re Jessica C. (2001) 93 Cal.App.4th 1027, 1042. That general principle is not in dispute, but the juvenile court had reason to depart from it here. (Ibid. ["The basic rule from civil law . . . is that amendments to conform to proof are favored, and should not be denied unless the pleading as drafted prior to the proposed amendment would have misled the adversarial party to its prejudice."], italics added.) The facts of Jessica C. are also distinguishable. There, the Court of Appeal held the juvenile court abused its discretion by denying an amendment to conform to proof regarding the type of conduct at issue, where there was "only minimal prejudice to [father] . . . , because the nature of the allegation (penetration) and of the proof (touching) were quite similar." (Id. at p. 1043; id. at p. 1042 ["it cannot be seriously maintained that [father] would possibly have prepared his defense differently"].) Here, Father was not named in the petition at all, and had no opportunity to present a defense or tailor the testimony he did provide.[5]

We now turn to the juvenile court's decision not to reopen the evidence. The court determined, in light of the facts of the case and the dependency goals, that reopening proceedings was neither the best course, nor necessary, citing Father's case plan, the court's comments to Father, and the detriment findings. We may not disturb this exercise of discretion "in the absence of palpable abuse." (Mary N.B., supra, 218 Cal.App.4th at p. 1481.) In assessing the court's exercise of discretion, it is necessary to consider the goals of dependency proceedings. "The dependency system is child-centered and is designed to protect the child, reunify the family where safe for the child and find a permanent home for the child when reunification is not possible. Its guiding light is the child's best interests." (In re Y.M. (2012) 207 Cal.App.4th 892, 913.) Here, Father's case plan and the court's comments apprised him of the risks to M.F.'s safety and the steps necessary to become a protective parent. The detriment finding ensured M.F. would not be placed with Father until he established he could be protective. The court could reasonably conclude these measures were sufficient to ensure M.F.'s well-being and support reunification, while also avoiding prejudice to Father. We find no abuse of discretion.

M.F. disagrees, arguing first that there was significant evidence Father posed a risk to M.F., the court was aware it could reopen the evidence, and doing so would have ensured due process and protected M.F., whereas the court's approach focused unduly on prejudice to Father "to [M.F.'s] detriment." In essence, M.F. contends reopening the evidence was the preferable approach because it would have led to a true finding on allegations against Father. But "[t]he 'abuse of discretion' standard is not met simply by arguing that a different ruling would have been 'better' " (Hernandez v. Superior Court (1992) 9 Cal.App.4th 1183, 1190), and the court was able to protect M.F. without those allegations. M.F. also fails to establish the decision was to his detriment. This argument parallels his claim that he was prejudiced by the decision and fails for the same reasons. (See discussion, post.)

Second, M.F. contends a court "abuses its discretion to fail to reopen a case where important new facts occurred," citing In re Marriage of Olson (1980) 27 Cal.3d 414, 422. Marriage of Olson involved statutory obligations in the marital dissolution context that are not at issue here. (Id. at p. 422 [where there was "substantial change in the nature of the community property" and court had statutory obligations regarding distribution, it was an "abuse of discretion to decline to reopen the trial for purposes of making a more current and accurate determination of the community assets and debts"].) The juvenile court concluded, consistent with its statutory obligations, that the dependency goals could be met without reopening the evidence.

Finally, even assuming there were error here, M.F. has not established he was prejudiced by the court's decision. At the outset, we observe M.F.'s claim of prejudice turns on the assumption that Father losing his parental rights is in M.F.'s best interests. To the contrary, reunification remains the goal unless and until the court determines it is not possible. (See Y.M., supra, 207 Cal.App.4th at p. 913; In re Adrianna P. (2008) 166 Cal.App.4th 44, 59 ["It is axiomatic that reunification services play a 'crucial role' in dependency proceedings . . . . [Citations.] . . . [T]he focus of the proceedings is to reunify the child with a parent, when safe to do so for the child."].) Nevertheless, we elect to address M.F.'s specific contentions.

First, M.F. argues Father is "considered a nonoffending parent because he is not named in the petition and there are no true findings against him," making it easier for him to regain custody. His concerns lack merit. The court was required to determine whether there was a noncustodial parent who desired custody and place the child with that parent unless it would be detrimental. (§ 361.2, subd. (a).) This inquiry does not turn on nonoffending status, and the court did find—and maintain—that placement with Father would be detrimental. (See In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1505 ["[T]he term 'nonoffending parent' in section 361 refers to a custodial parent who is not the perpetrator of any child abuse or neglect. It does not refer to a noncustodial parent under section 361.2, subdivision (a)."].)[6]

M.F.'s reliance on section 361, subdivision (c), section 306, and In re Silvia R. (2008) 159 Cal.App.4th 337 is misplaced. Under section 361, a child "shall not be taken from the physical custody of his or her parents," unless there are no reasonable means by which the minor can be protected. (§ 361, subd. (c).) In making this assessment, the court must consider "[a]llowing a nonoffending parent . . . to retain physical custody as long as that parent . . . presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm." (§ 361, subd. (c)(1)(B), italics added.) Section 306 addresses similar considerations with respect to initial custody. (§ 306, subd. (b)(3) [social worker shall consider "[w]hether a nonoffending caretaker can . . . protect the child from abuse"].) Father was not a custodial parent, these considerations did not come into play, and the same reasons supporting detriment would have precluded placement under these provisions too. Silvia R. primarily involved services, and otherwise provides no guidance beyond general principles. (Silvia R., at pp. 342-344 [minor was removed from mother after molestation by stepfather and brother, and stepfather and brother were ordered into counseling; Court of Appeal reversed order, but noted court could condition custody on mother living separately from them].)[7]

M.F. similarly contends it may be more difficult to terminate Father's parental rights, because the court has "deemed him a nonoffending parent," and permanency may be delayed. He again misconstrues the applicable standards. "[B]y the time parental rights are terminated at a section 366.26 hearing, the juvenile court must have made prior findings that the parent was unfit." (In re Gladys L. (2006) 141 Cal.App.4th 845, 848.) A "jurisdictional finding is not an adequate finding of parental unfitness," so the lack of a jurisdictional finding as to Father "does not prevent termination of parental rights." (In re P.A. (2007) 155 Cal.App.4th 1197, 1212.) Moreover, the court did make, and confirm, a detriment finding. We reject M.F.'s contention that "[t]here is no detriment finding when a noncustodial parent does not request custody," citing In re Frank R. (2011) 192 Cal.App.4th 532, 538. Frank R. involved a situation where no detriment finding was made because there was no custody request; it does not hold a detriment finding prior to a formal custody request is ineffectual. (Id. at pp. 538-539 [juvenile court erred by terminating parental rights without making any detriment finding as to father; reviewing court noted "it made no such finding . . . because [father] was noncustodial and did not request custody"].)

Next, M.F. argues that Father does not have to comply with reunification services because the court cannot order a nonoffending parent into services, citing In re Jasmin C. (2003) 106 Cal.App.4th 177. Jasmin C. does not support this proposition. There, the Court of Appeal held the juvenile court erred in ordering services to the nonoffending mother, not that doing so was prohibited generally. (Id. at pp. 178-181 [court erred in ordering mother to attend parenting class; jurisdiction was based on isolated incident of domestic violence by father during which mother was protective and court failed to explain order as to mother].) And M.F. acknowledges the case In re A.E. (2008) 168 Cal.App.4th 1, in which the Court of Appeal affirmed an order requiring the other parent to participate in services. (Id. at p. 5 [jurisdiction was based on physical discipline by mother; affirming order requiring father to participate in parenting classes, where he displayed worrisome attitude toward corporal punishment].) Regardless, Father did not appeal from the services order (as did the affected parents in Jasmin C. and A.E.), so he is required to comply.

Finally, M.F. contends the "chances of [F]ather finding himself in similar circumstances in the future are high" and that when M.F. is "again removed, Father will have no problems obtaining reunification services and will not be bypassed for services," to M.F.'s detriment. We are compelled to reiterate that reunification is a goal of dependency proceedings, not an obstacle to be overcome. In any event, this argument is based on speculation and does not establish prejudice. (See In re Esmeralda S. (2008) 165 Cal.App.4th 84, 96 ["a finding that the juvenile court's error was prejudicial must be based on a claim of prejudice rather than speculation of possible prejudice"].)[8]

We conclude the juvenile court did not abuse its discretion in striking the amendment according to proof as to Father and declining to reopen the proceedings.

DISPOSITION

The order is affirmed.

O'ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.