In re Tiana D.

Filed 5/28/08 In re Tiana D. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from orders of the Superior Court of Los Angeles County.

Debra L. Losnick, Commissioner. Affirmed.

Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant T.G.

Deborah Dentler, under appointment by the Court of Appeal, for Defendant and Appellant Frankie D.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Leonard L. Linares, Deputy County Counsel, for Plaintiff and Respondent.

_________________________

T.G. (mother) and Frankie D. (father) appeal[1]the denial of their petitions under Welfare and Institutions Code section 388[2]seeking to change an order placing Tiana D. (minor) with a legal guardian. Mother argues that the minor should have been returned to her custody. Father argues that the juvenile court erred when it denied his petition without a hearing.

We affirm.

FACTS

Detention and jurisdiction

In October 2002, when the minor was born, both she and mother tested positive for cocaine. The minor was detained and placed with Cynthia T., who was already caring for two of the minors siblings, R.M. and D.M. Mother refused to give fathers name; she told the Department of Child and Family Services (Department) that father was incarcerated. Soon thereafter, the Department filed a section 300 petition on behalf of the minor. Following the detention hearing, mother was granted monitored visitation. She visited the minor once, for 10 minutes, and did not schedule a second visit.

At the jurisdictional hearing, the juvenile court sustained the section 300 petition. Mothers attorney stated that the minor could not stay with Cynthia T., but that Cynthia T.s sister, Vicki W. (Vicki),[3]was willing to take the minor in. The disposition hearing was set, and the juvenile court ordered the Department to evaluate Vicki. Mother finally identified father. Subsequently, a paternity test verified fathers parenthood.

Reunification services; visitation; placement

The juvenile court ordered reunification services for father but not for mother. Both parents were granted monitored visitation, and both were ordered to complete parent education classes, attend random drug testing and participate in drug counseling. Despite objection from the Department, the juvenile court placed the minor with Vicki.

Six month review

Father tested positive for cocaine. Afterwards, he failed to appear for drug testing in October, November and December 2003. As a result, the juvenile court terminated fathers reunification services.

The Department reported that the minor was thriving in Vickis care, and that Vicki was interested in adoption.

Termination of jurisdiction; reinstatement of jurisdiction

At the section 366.22 hearing, the Department reported that Vicki was no longer interested in adoption, but that she was interested in legal guardianship. Legal guardianship was selected as the minors permanent plan. On January 10, 2005, jurisdiction was terminated.

Vicki decided she wanted to adopt the minor, so she petitioned the juvenile court to reinstate jurisdiction. The petition was granted and the juvenile court set a section 366.26 hearing.

Fathers release from prison

Father was released from prison in July 2006 after serving two years on a four-year sentence for transporting or selling a controlled substance.

Mothers section 388 petition; related reports

In her petition for a change, mother asked the juvenile court to terminate Vickis legal guardianship and return the minor to mothers custody. Regarding changed circumstances, mother averred: I enrolled in residential drug [and] alcohol treatment. Im currently employed and have been clean [and] sober for [two] years. She claimed that the requested change would be in the minors best interests because [Vicki] is unfit to be the legal guardian due to her violent lifestyle. And Im ready to accept responsibility for [the minor].[4]

The Department reported that neither mother nor father had submitted to a live scan. Fathers criminal background included convictions for possessing or purchasing cocaine base for sale, selling cocaine base, carrying a concealed weapon in a vehicle and a public place, forgery and receiving stolen property. He was registered with the police as a narcotics offender.

A social worker asked mother to explain her allegation that Vicki was violent. Mother said she overheard Vicki threaten to whip the minor if she did not behave. Also, mother reported that Vicki threatened mother with physical harm on April 27, 2007, and this demonstrated a violent lifestyle.

The minor was interviewed and said she was not being abused. If she misbehaved, she said Vicki put her in a time-out chair. Vicki denied ever threatening the minor with corporal punishment. On April 27, 2007, Vicki brought the minor to a Department office for a visitation. When the minor saw father in the lobby, she began whimpering and crying and said she did not want to go with him. The social worker attempted to start the visit. The minor repeated that she did not want to go with father. Instead, she said she wanted to go with mommy and clung to Vicki. Father told the minor, Thats not your mommy. Thats your caregiver. The monitor and social worker encouraged the minor to participate in the visit, but she became more distraught and clingy. Mother and father said they did not want to put their daughter through this and the visit was ended. As mother was leaving, she said something in a low voice to Vicki. Vicki replied: You dont have to be like that. Dont get it twisted [mother]. Vicki went outside to talk to mother. Father followed and got very close to Vicki. Mother claimed that she had been threatened by Vicki. Vicki claimed she had been threatened by father. Staff members at the Departments office were interviewed, but none of them heard any threats. All they heard was Vicki screaming to father, Come on hit me. Hit me. Hit me.

The Department recommended against terminating Vickis legal guardianship, stating: The [minor] has been residing with her legal guardian, [Vicki,] since she was an infant. [The minor] is very attached to [Vicki] and [the minor] identifies [Vicki] as her mother and calls [her] Mama. Given the extent of time this child has been with [Vicki] and the significant bond that they have established[, the Department] continues to believe that it would be in [the minors] best interest for the guardianship to remain in place. Since [Vicki] has initiated a plan of adoption and this plan will afford [the minor] a more permanent plan[,] [the Department] recommends continued adoptive planning for [the minor].

In the Departments view, mother still posed a risk to the minor. Mother failed to comply with the juvenile courts orders. She did not complete the ordered counseling program or comply with random drug testing. Also, according to the minor, mother had physically disciplined her. The minor told a social worker that mother whips her with a blue comb. Though the minor was amenable to further visits with mother, the minor indicated that she wanted the visits to occur at the social workers office because [mother] could not whup her at the visit. The Department acknowledged that mother provided a certificate of completion for a parenting program and a letter indicating she completed a one-year treatment program at the Salvation Army, and that mother said she was employed by the Salvation Army.

Vicki reported that the minor cries with mother but is not terrified during visitation. When mother visits, she stops in to say hi but only stops for a few minutes. Mother has not been consistent with visits. After father was released from prison, mother stopped visiting the minor until Thanksgiving 2006. According to Vicki, mother wants Vicki to adopt the minor.

In summary, the Department concluded that the minor has a mother/daughter bond with Vicki and that it would be emotionally devastating for [the minor] to be returned to her mothers custody.

Vicki wrote a letter denying the allegations that she ever hit or was violent toward the minor. Mothers sister wrote a letter opining that mother was not capable of raising the minor, and that mother was renting a room and had no place to house the minor.

After the hearing was continued, the Department submitted another report. According to the Department, mother and the minor had a visit on May 11, 2007. The minor inquired if father was present. In response, Mother asked the minor if she wanted to see father. She said no. The social worker asked if father could join them and say hi. The minor said, [Y]ou can tell him hi. When father appeared, the minor asked if she could leave. Eventually she warmed up to father. He pointed to mothers stomach and said that the minor was going to have a baby brother. At the end of the visit, the minor asked the social worker if she was going home with Vicki Momma and was told by father that she was. As reported, the visit went well. When asked if the minor wanted to visit with mother again, the minor said, [M]aybe later. The social worker said, [I]n two weeks? To this, the minor replied, Sure. Mother canceled visits on May 25, 2007, and June 6, 2007.

There was a successful visit between mother, father and the minor on June 8, 2007. Nonetheless, the Department did not recommend a change in the current case plan. It stated that mother continued to pose a safety risk to the minor. [The minors] fear of unmonitored contact with her mother demonstrates a need for continued monitored visits to ensure her safety from further physical abuse. Also, the Department noted that the minor was very attached to Vicki and identifies Vicki as her mother. When asked if the minor wanted to live with mother and father, the minor stated that she just wants to visit with them and play with them in the Departments office. The Department wrote: [The minors] own statements make it very clear she wants to remain the in care of [Vicki].

Fathers June 20, 2007, section 388 petition

In his petition, father requested that the juvenile court terminate Vickis legal guardianship, reinstate family reunification services, and take the section 366.26 hearing off calendar. For changed circumstances, father averred: The father has completed an 18 month program in the California Department of Corrections . . . which deals with substance abuse, criminality and the total reformation of all offenders. The father has been clean and law abiding [ever since] his release from the California Rehabilitation Center, and has stable employment. The father is ready to have full responsibility of [the minor].

According to father, a change would be in the minors best interests because [f]ather has a strong parental bond with [the minor] and has been in her life almost from day one to date, with food, clothing, shelter, money and medication. I have had unsupervised visits with [the minor] for more than 5 days at a time on many occasions. And all the visits went well. I am very concerned about [the minors] current placement with [Vicki], because of her criminality.

To support his petition, father submitted the following: (1) A July 11, 2002, certificate stating that he received a high school diploma in 1971. (2) A December 31, 1999, certificate of competence with respect to automobile service related to engine repair and engine performance. (3) A March 31, 2000, certificate from an automotive clutches course. (4) A March 31, 2000, certificate from a manual transmission and transaxles course.

Fathers section 388 petition was denied without a hearing on the grounds that the facts did not support what it requested, it did not state new evidence or a change of circumstances, it did not state why it would be in the best interests of the minor to change the order, the supporting documentation was not current, and the issue of Vickis suitability was already set for a hearing on June 29, 2007, in connection with mothers section 388 petition.

The hearing on mothers section 388 petition

At the contested hearing on mothers petition, mother was the first person to take the stand. Mother testified that she is employed as a desk clerk at the Salvation Army. When asked about her duties, she replied: I am a mandated child reporter. I watch and monitor 22 single females and 18 males and 33 children. . . .  I just monitor medication. I supervise parents in order for them to supervise their children. I assist with clients daily needs from the shelter.

Mother attended a parenting program and learned that children need a lot of love and attention, and you need to be very patient with children, and you need to communicate. She denied ever whipping the minor with a blue comb, or with anything else. In her relapse prevention program, she learned that she needs support to prevent a relapse. She no longer associates with people who use drugs. Her drug treatment program lasted a year, and she submitted to random drug tests. She completed the program on January 18, 2006. Since then she has been involved with a help group. She talks to someone three or four times a week. The group has helped her maintain her sobriety.

When asked about her visits with the minor, mother stated: Right now I am on monitored visits and [l]ately, I havent had no visits with [the minor], but they are supposed to be every other Friday for an hour. During the visits they play, the minor talks and mother listens.

Prior to April 22, 2007, mother would visit the minor during leave from her treatment program or days off from work. They had unsupervised, overnight visits from July 2006 to March 2007.

In mothers view, she and the minor have a parent-child bond. When asked why a change would be in the minors best interests, mother stated: I am ready to take full responsibility for [the minor]. I am sober, in my right state of mind. I am there for her financially, mentally, physically.

On cross-examination, mother stated that she has not submitted to any random drug tests since December 28, 2005. She was in a 12-step program until July 2006. She completed steps one through three. Her support group is comprised of Salvation Army employees. They do not meet as a group. It is more of a phone support system. Mother testified that she lives with father and his sister. When asked if she was pregnant, mother said yes.

Father was next to testify.[5] He said that he is a registered narcotics offender and, at the time of the hearing, he had been on parole for a year. Asked about his relationship with the minor, he said that they laugh, joke, smile and play games. He provides her with food, clothes, money and emotional support, and he helps her with her education. In his view, it was in the minors best interest for mother to receive reunification services because every child should know and have a relationship with their biologicals.

If the minor was returned to his care, father would want Vicki to have visitation in order to make the minors adjustment smoother. However, he would want those visits to be monitored because he had heard Vicki threaten the minor with violence. He said that the minor knew she would get whoopings if she dont do certain things. On cross-examination, father was asked how he would describe the bond between Vicki and the minor. He replied that it was controlling, and that when Vicki tells [the minor], If you dont do what I tell you to do, you know, You get whoopings. Thats controlling. He saw Vicki threaten the minor with physical discipline on three occasions. According to father, the minor said that Vicki carried out her threats. Father discounted the minors denial of this to the social worker because Vicki was present when the minor was asked.

Father testified that the minor wants to live with him. When asked how often he visited the minor, he replied: I would just drop by whenever I felt like it and whenever I wanted to, and [Vicki] had no objections to it. But that changed. [At a later point in time] I had a problem with [Vicki], he testified, because I could no longer support her and her family because I was not selling drugs. Then I had a problem with visiting [the minor]. After he got out of prison and got a legitimate job, he could only support the minor.

For the couple of months leading up to the hearing, father had monitored visits at the Departments office.

The juvenile court noted that the minor was five months old when she began living with Vicki. With that, it stated: The [juvenile court] does feel that mother has changed her circumstances but not in the sense that it would be for the court to be able to make a decision. The [juvenile court] sees that the mother, in fact, is gainfully employed, appears to be doing very well at the Salvation Army. [] There is no reason to believe at this point that either parent is using any drugs. I dont have any current drug tests to tell me that for certain. [] The [juvenile court] is charged with seeing if there is a change of circumstances such that the [minor] needs to have a new plan or a change in the plan that we are currently operating under. [] At this point in time I just dont see that that has been shown. Even if the [juvenile court] were to say that the mother has changed her circumstances to such a degree that we should return the child or at least open reunification services again, there is really no information thats been presented that . . . the relief sought would be in the best interest of the [minor]. [] I am quite concerned . . . about the threats of being whooped. I am concerned about the [minor] saying she was hit by a blue comb in the home of [mother]. These are all things that concern me. I am not certain what to do with the concerns because I feel that the Department has gone out and evaluated all of this information and has not . . . substantiated the concerns, frankly, of either side, the father or mothers side or [Vickis] side. [] Having said all that, I dont feel that the evidence leads me to granting the [section] 388 [petition], and I am, therefore, denying the [section] 388 [petition], and we will have to go then to a section 366.26 hearing.

These appeals followed.

STANDARD OF REVIEW

Under section 388, a parent may petition to change or modify a previous order based on a change of circumstance or new evidence, and based on the best interests of the dependent child. ( 388.)

To obtain a hearing, a parent must make a prima facie showing. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) By this we mean a showing of facts that, if accepted by the juvenile court, would support a favorable decision. (In re Aaron R. (2005) 130 Cal.App.4th 697, 705.) But if the allegations of the petition do not make a prima facie showing, a juvenile court can deny the petition without a hearing. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806807 (Zachary G.).)

When petitioning for a change, a parent must provide the juvenile court with concrete supporting facts. As one court has stated, [t]he petition may not be conclusory. [S]pecific allegations describing the evidence constituting the proffered changed circumstances or new evidence is required. [Citation.] Successful petitions have included declarations or other attachments which demonstrate the showing the petitioner will make at a hearing of the change in circumstances or new evidence. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)

Regarding the juvenile courts denial of fathers petition without a hearing, we will follow the lead of In re Jasmon O. (1994) 8 Cal.4th 398, 415 and review the record for an abuse of discretion.

If a hearing is held, then the parent has the burden of proving these elements by a preponderance of the evidence. (In re Andrew L. (2004) 122 Cal.App.4th 178, 190.)

The change of circumstances or new evidence must be of a significant nature. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451 (Jamika W.).)

When ruling on a section 388 petition, the juvenile court should consider (1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532 (Kimberly F.).) Whether a previous made order should be modified rests within the [juvenile] courts discretion, and its determination will not be disturbed on appeal unless an abuse of discretion is clearly established. (In re Amber M. (2002) 103 Cal.App.4th 681, 685.)

Findings and implied findings are upheld if supported by substantial evidence. (In re Eric E. (2006) 137 Cal.App.4th 252, 261.)

Under the substantial evidence test, we resolve all conflicts in the evidence in favor of the prevailing party, and we draw all reasonable inferences in a manner that upholds the challenged disposition. (Holmes v. Lerner (1999) 74 Cal.App.4th 442, 445.) Substantial evidence is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651 (Roddenberry).) Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence. (Ibid.)

DISCUSSION

I. Mothers appeal.

Mother contends that the evidence required a determination in her favor regarding the three prong analysis set forth in Kimberly F., and that it would be in the minors best interests to either be returned to her or for the juvenile court to order further reunification services. We turn to the issue of the minors best interest. In our view, that issue decides the appeal and requires us to affirm.

As a preliminary matter, it is our duty to explain that mothers appellate briefs are defective. Mother attempts to reargue the merits of whether her section 388 petition should have been granted. In so doing, she sidesteps her appellate task, which imposed a heavy burden. That burden was to demonstrate that the juvenile courts findings were not supported by substantial evidence. To accomplish this, she had to impress upon us that the evidence and inferences marshaled against her below were not credible, solid, or logical, and that they lacked ponderable legal significance. (Roddenberry, supra, 44 Cal.App.4th at p. 651.) Because she did not engage this task, her appeal has been waived. (Tan v. California Fed. Sav. & Loan Assn. (1983) 140 Cal.App.3d 800, 811.) Our analysis could stop here.

The juvenile court found that granting mothers section 388 petition would not be in the minors best interest. This was supported by the following substantial evidence. The minor was born in October 2002, and immediately detained. She was placed in Vickis care on March 27, 2003. When the section 388 hearing was held in June and July 2007, the minor was five years old, and Vicki was the minors caretaker for virtually her entire life. The Department reported that the minor had a significant bond with Vicki, who the minor identified as her mother. In fact, the Department believed the minor would be emotionally devastated if she was removed from Vickis care. The minor made it clear that she wanted to remain in Vickis care. As for her parents, she only wanted to see them if the visits took place at the Departments facility and were monitored. She said she had been hit by mother with a blue comb. Though mother alleged that Vicki abused the minor, Vicki denied those allegations. The facts and inferences support a conclusion that Vicki is the minors mother figure, and that it would be detrimental to remove the minor from Vickis care. And because the case had already progressed to a permanent plan, mothers interest in the care, custody and companionship of the [minor] [was] no longer paramount. Rather at [that] point the focus shift[ed] to the needs of the [minor] for permanency and stability [citation] and[,] in fact, there [was] a rebuttable presumption that [continuing the current custody arrangement] [was] in the best interests of the [minor] [citation]. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Also, it would not have been in the minors best interests for the juvenile court to order reunification services. The case had already progressed well past the point of potential reunification.

Given the evidence, inferences and presumptions, the juvenile court ruled within the proper boundaries of its discretion.

II. Fathers appeal.

Father challenges the denial of mothers section 388 petition, and also the denial of his own petition. For the reasons discussed in part I, ante, we conclude that the denial of mothers petition was not error. And, after review, we conclude that father was not entitled to a hearing.

Citing In re Daijah T. (2000) 83 Cal.App.4th 666 (Daijah T.), father contends that he was entitled to a hearing as long as he was able to demonstrate that his life situation had changed and that he was able to care for the minor. Based on this argument, he does not argue that his petition made a prima facie showing that a change would be in the minors best interest.

Fathers reliance on Daijah T. is misplaced.

Daijah T. held that nothing in section 388 suggests that the requisite change of circumstances must be a change applicable to the minors who are subject to the dependency. . . .  The change of circumstances may be a change in the circumstances of the parent which may make the modification of a prior order appropriate. (Deijah T., supra, 83 Cal.App.4th at p. 674.) Contrary to what father suggests, Deijah T. did not hold that a section 388 petition should be granted if the parent simply demonstrates a change in the parents life.

We turn to fathers contentions, and then to the evidence.

In his opening brief, father states that in his petition he said he had evidence he wished to present to show he was able to support and care for [the minor], and he attached certificates from automotive training programs and evidence of his attainment of his G.E.D. The [juvenile court] said [fathers] documents were not current, and indeed they were over five years old. However, the age of the documents alone (they bore dates between 1999 and 2002) did not make them irrelevant or not currently related to the new questions before the [juvenile court]. The attachments were powerful evidence that [father], newly released from prison, had the skills, the training, and the education to be able to provide for [the minor], which was the assertion made in his petition. Had they been submitted much earlier in the dependency they would have been irrelevant because [father] spent much of the dependency incarcerated and his ability to support [the minor] was not in question earlier.

According to father, his preimprisonment completion of job training constituted new and changed facts concerning his life situation. It demonstrated his current ability and readiness to care for his daughter. But for a hearing to be granted, the change of circumstances or new evidence must be so significant that it requires setting aside the prior order. (Jamika W., supra, 54 Cal.App.4th at p. 1451.) Moreover, if liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] (Zachary G., supra, 77 Cal.App.4th at p. 806.)

In our view, fathers argument is incomplete because it does not wrestle with the issue of the minors best interest. Nonetheless, for the sake of completeness, we have assessed his section 388 petition.

If the statements and evidence in fathers petition were credited at a hearing, the following would be established: Father received a high school diploma in 1971, he completed some automotive training courses before the minor was born, he completed an 18-month substance abuse program while he was incarcerated, he has been clean, sober and law abiding since his release from prison, he is willing to have full responsibility for the minor, he has a strong bond with the minor, she stayed with him on numerous occasions for five-day periods, and he harbors unspecified concerns about Vickis criminality. Also, he has been in the minors life from day one to date, with food, clothing, shelter, money and medication.

What changed since legal guardianship was accepted as the permanent plan and jurisdiction was terminated on January 10, 2005? What evidence was new? Fathers petition did not say. Also, we would be remiss if we failed to point out that there was no claim that father completed a parenting course. Indeed, reunification services were terminated because he did not comply with the case plan. Moreover, the petition did not list the dates of the alleged five-day visits. As a result, the petition did not establish how much time he had spent with the minor. Nor did father suggest that the minor viewed him as a parent figure. In addition, the only supporting documentation related to fathers education. There were no reports regarding drug testing, so his claim of being clean and sober could not be verified. The one change that appears on the record is that father was released from prison. Even if fathers petition is liberally construed, it does not establish that he was ready to care for the minor. While it is commendable that he obtained a G.E.D. and automotive training, that education did not prepare him to be the parent of a five year old girl.

Based on the foregoing, the petition failed to make a prima facie showing that a change would be in the minors best interest. She had lived most of her life with Vicki, she was bonded with Vicki, who wanted to adopt her, father had failed to reunify, and he had been in prison for much of the dependency. This suggests that it was in the minors best interest to stay with Vicki. Also, the absence of evidence that father was clean and sober, and that he had completed a parenting course, suggests that giving him custody of the minor would be risky.

On this record, we conclude that the juvenile court properly exercised its discretion to deny father a hearing.

DISPOSITION

The order denying fathers section 388 petition without a hearing and the order denying mothers section 388 petition on the merits are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________________, J.

ASHMANN-GERST

We concur:

_______________________________, P. J.

BOREN

_______________________________, J.

DOI TODD

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] Mothers appeal and fathers appeal have been consolidated.

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

[3] Vickis name has multiple spellings in the record. We have chosen to use Vicki throughout this opinion.

[4] In her opening brief, mother argues that if the juvenile court declined to change custody of the minor, it should have at least ordered reunification services. But this was not requested in her section 388 petition.

[5] The juvenile court allowed father to testify because the Department was contending that mother and father live together.