Ricky F. v. Superior Court

Filed 7/26/07 Ricky F. v. Superior Court CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Carolyn Kirkwood, Judge. Petition denied.

Law Office of Charles E. Bergstrom and Lawrence A. Aufill for Petitioner.

No appearance for Respondent.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsels, for Real Party in Interest.

* * *

Ricky F., biological father of one-year-old Kennedy R., seeks writ review (Cal. Rules of Court, rule 8.452) of the courts summary denial of his Welfare and Institutions Code section 388[1] petition requesting reunification services, and setting a section 366.26 permanency hearing (.26 hearing). Father contends he made a sufficient showing of changed circumstances and the promotion of Kennedys best interests to warrant a full hearing on his section 388 petition. Because father failed to make a prima facie showing that granting his section 388 petition would serve Kennedys best interests, we deny fathers petition for a writ of mandate.

FACTS

In June 2006, the Los Angeles County Department of Children and Family Services (DCFS) filed a petition in the Los Angeles County Juvenile Court, alleging that Kennedy came within the description of subdivisions (a) (serious physical harm) and (b) (failure to protect) of section 300.[2] The petition alleged that father had a two year history of substance abuse and a criminal history of convictions for possessing, using, and being under the influence of a controlled substance, exhibiting a deadly weapon (not a firearm), and possessing controlled substance paraphernalia and a hypodermic needle/syringe. Kennedy was placed with her maternal aunt.

In July 2006, DCFS reported that father disclosed the following: he started using methamphetamine at age 12; he had been sober for 90 days since his release from prison and had not used methamphetamine for three years; he was released from prison in April 2006 after serving 13 months; since then he had attended NA meetings, done random drug testing, worked 38 hours a week as a telemarketing sales representative, voluntarily resided in a sober living home, and was making an effort to do the right thing. On June 26, father had visited and met [Kennedy] for the first time . . . during a monitored visit. On July 15, when mother visited all five children, father attended the visit. Thus, father visited Kennedy twice during the five months he was out of jail between April and September of 2006.

In September 2006, father began serving six months of a nine month sentence after pleading guilty to impersonating a police officer. Fathers expected release date was around March 2007. DCFS therefore recommended no reunification services for father, as such services would be detrimental to Kennedy since fathers length of incarceration [would] exceed the family reunification period allowed to him.[3] In making its recommendation, DCFS considered Kennedys age (nine-months-old at the time), the degree of parent-child bonding (father had visited Kennedy only twice, and during one meeting, had held her for approximately 10 minutes and was not interested in holding/playing/bonding with [her], length of incarceration (father has been incarcerated and institutionalized most of his life), nature of treatment and crime (father . . . continues to have significant problems involving criminal activity that places him back [in] incarcerat[ion]), and degree of detriment to Kennedy if services [were] not offered (Kennedy would not be affected as father has not been an active parent in Kennedys life).

At the jurisdiction hearing on September 19, 2006, the Los Angeles County Juvenile Court declared Kennedy a dependent. The court found father to be Kennedys mere biological father and denied him family reunification services.[4] The court did order reunification services for the mother and granted father monitored visitation after his release from custody with discretion to liberalize.

Because the parents and Kennedy lived in Orange County, the case was transferred to the Orange County Juvenile Court. In its report for the six-month review, Orange County Social Services Agency (SSA) recommended the termination of reunification services and the scheduling of a .26 hearing. After continuances, the six month review hearing was scheduled for May 9, 2007. On that day, father filed a section 388 petition asking the court to order that reunification services be provided to him to allow him to reunify with Kennedy. Attached to the petition was fathers declaration that: he had been released from jail about three weeks earlier; he had two part-time jobs; he had completed a parenting class and a substance abuse program while in jail; he had been tested for drugs twice since his release from jail and had tested negative; he had attended weekly AA/NA meetings since September 2006; while in jail he had sent 30 types of correspondence to Kennedy (including letters, drawings and cards); he had been clean and sober for over 10 months; and his relatives desired to have a relationship with Kennedy.

Before the court ruled on fathers section 388 petition, all counsel presented argument on whether a full hearing was required. Fathers counsel relied predominantly on fathers declaration attached to the petition, but offered the new information that father had visited Kennedy again, the visit had gone well, and father was scheduled to visit her again in two days. SSA argued that granting father reunification services would not serve Kennedys best interests because father had been incarcerated for most of [Kennedys] life, his two visits with Kennedy did not establish any kind of relationship with a child who is a year-and-a-half old, father was not a presumed father entitled to services, Kennedys 12-month review date was coming soon, and her maternal aunt was planning to adopt her. Kennedys counsel argued she did not see anything in the moving papers that would indicate that it would be in Kennedys best interests to delay her permanency and stability [to] offer father more services. The court then ruled that given the childs young age, the stability of her placement with the maternal aunt, [and] the relatively few visits that the father has had with the child, it is not in the childs best interests to offer [father] services.

The six-month hearing ensued at which the court ordered reunification services to the parents terminated and scheduled a .26 hearing for September 6, 2007.

DISCUSSION

Father contends a section 388 petition triggers a full evidentiary hearing if the petition presents a mere possibility the childs best interests may be promoted. He asserts [a]bsolute certainty is not required, relying on the word may in section 388, subdivision (c) (section 388(c)): If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . . ( 388(c), italics added; see also Cal. Rules of Court, rule 5.570, subd. (e) [[i]f the petition states a change of circumstance or new evidence and it appears that the best interest of the child may be promoted by the proposed change of order or termination of jurisdiction, the court may grant the petition] Italics added.)

Thus, father attempts to stretch the word may in section 388(c) to require a full hearing upon the mere possibility, no matter how miniscule or remote, that granting a petition may benefit the child. This construction does not accord with the case law interpreting section 388 (see In re Justice P. (2004) 123 Cal.App.4th 181, 191) nor is it a reasonable and common sense interpretation consistent with the [statutes] apparent purpose (7 Witkin, Summary of Cal. Law (10th ed. 2005) Constitutional Law,  115, p. 220). Rather, the case law is clear that to be accorded a full hearing on a section 388 petition, the petitioner must make a primafacie showing that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806, italics added.) [T]he petition should be liberally construed in favor of granting a hearing to consider the parents request. [Citation.] [] However, if the 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.] The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition. (Ibid., italics added.)

An appellate court reviews a juvenile courts summary denial of a section 388 petition for abuse of discretion. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. [Citation.] The denial of a section 388 motion rarely merits reversal as an abuse of discretion. (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)

Father argues he wrote over 30 correspondences to the caretaker regarding Kennedy, never missed a birthday or an important holiday, and made every effort to develop a parent-child relationship. He also asserts he has started to visit regularly with Kennedy and the record indicates that the visits are going well; the record, however, reveals father visited Kennedy only three times before the court denied his section 388 petition, with visits on June 24 and July 15, 2006, and (according to his attorney) in the spring of 2007. Fathers other justifications set forth in his section 388 petition for reunification services were that he had two part-time jobs, had completed a parenting class and a substance abuse program while in jail, had attended weekly AA/NA meetings since September 2006, had been tested for drugs twice since his release from jail and had tested negative, had been clean and sober for over 10 months, and his relatives desired to have a relationship with Kennedy.

The court ruled that given the childs young age, the stability of her placement with the maternal aunt, [and] the relatively few visits that the father has had with the child, it is not in the childs best interests to offer [father] services. At the time of that ruling, Kennedy was one-year-old; almost a year had passed since the filing of the section 300 dependency petition. Infants and toddlers have unique developmental needs and moving to permanency more quickly is critical for them. (Daria D. v. Superior Court (1998) 61 Cal.App.4th 606, 612.) Rather than focusing on Kennedys best interests, fathers declaration in support of his petition merely points out his recent efforts to be a parent. Although father claims he made every effort to develop a parent-child relationship, he does not assert that such a relationship exists or was ever established. He visited Kennedy only twice during the five months he was out of jail between April and September of 2006; his letters and cards to a one-year-old child could not have established a bonding between them. The court did not abuse its discretion by finding father failed to make a prima facie showing that reunification services would serve Kennedys best interests.

DISPOSITION

Fathers petition for a writ of mandate is denied.

IKOLA, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

OLEARY, J.

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[1] All statutory references are to the Welfare and Institutions Code.

[2] The original petition also contained allegations under subdivisions (d), (g) and (j) of section 300, but those allegations were eventually crossed out; father claims DCFS dismissed them. Besides Kennedy, the petition also included mothers four other children who had different fathers than Kennedy. The petition alleged mother engaged in violent altercations with the father of another child, abused illicit drugs and alcohol, and had mental and emotional problems . . . .

[3] Prior to fathers September 2006 incarceration, DCFS had recommended father be granted reunification services.

[4] A court may order services to a biological father if the court determines that the services will benefit the child. ( 361.5, subd. (a).)