In re S.P.
Filed 8/20/07 In re S.P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
In re S.P. et al., Persons Coming Under the Juvenile Court Law. | |
ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. HARVEY V. et al., Defendants and Appellants. | G038214 (Super. Ct. Nos. DP013558, DP013559) O P I N I O N |
Appeal from an order of the Superior Court of Orange County, Gary Vincent, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.
Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant Harvey V.
Linda Rehn, under appointment by the Court of Appeal for Defendant and Appellant Amy P.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minors.
* * *
Harvey V. (the father) appeals the termination of parental rights as to twins S.P. and R.P. (collectively the twins or the children). The father argues his petition under Welfare and Institutions Code section 388[1]asking for reunification services and placement of the children with Harveys mother, Eva P., was incorrectly denied by the trial court. Amy P. (the mother) does not appeal separately, but argues that if we reverse the order terminating the fathers parental rights, the order terminating her rights should be reversed also. We find no error and affirm.
I
FACTS
The twins were born prematurely in June 2006, weighing less than four pounds each. At birth, the mother had a positive toxicology screen for methamphetamine and an unresolved history of methamphetamine abuse. The mother identified her boyfriend, Harvey V., as the alleged father.[2] She had no contact information for him to provide to the Orange County Social Services Agency (SSA). A criminal background check revealed that the father had prior arrests and convictions for drug charges, theft and forgery.
The children were placed in protective custody, and SSA filed a petition under section 300, subdivisions (b) and (j), alleging failure to protect and abuse of sibling.[3] The petition alleged the children were at risk due to the mothers lack of housing, employment, and prenatal care and her long history of substance abuse. The petition also alleged the father had failed to protect the children. Neither parent was present at the detention hearing. The juvenile court placed the children in SSAs custody.
The father had not contacted SSA prior to the July 5 jurisdiction hearing, but he did appear in court. The court appointed counsel for the father and confirmed his address. The court ordered drug testing and monitored visitation for the father. Further proceedings were scheduled for later in July.
Prior to the next hearing, SSAs report stated that the mother had reported that Harvey V. had signed a declaration of paternity, and they had submitted it. A check by SSA, however, revealed that no declaration had been filed with the Department of Child Support Services. The father did not visit with the children, inquire about their welfare from SSA, or begin services. SSA was concerned that the father was not very motivated to have the children placed in his care. SSA, however, had recommended reunification services for the father once paternity was established.
The paternal grandmother was contacted as a potential placement resource. She informed SSA she had not spoken to the father since before the birth of the twins. She was concerned that paternity had not been conclusively established and did not want to commit to placement until paternity was verified. She did, however, begin the background clearance process, and visited the children.
On August 14, the father was arrested for burglary, forgery, and possession of forged paperwork. He appeared at the continued jurisdiction/disposition hearing in custody. The court found the allegations of the amended petition true and set the matter for a disposition hearing. The amended petition alleged that the children were at risk due to the fathers criminal behavior and substance abuse history. The case was continued for disposition, with a further paternity review set for the same time.
By the next hearing date, September 7, both parents were incarcerated. The court ordered paternity testing. The court noted that the fathers incarceration made a voluntary declaration of paternity more difficult, and indicated it would revisit the issue after testing was completed. For the first time, the parents stated that they lived together for a time during the pregnancy, and that Harvey V. believed he was the twins father.
Prior to the next hearing, SSA reported that the father had been sentenced to three years in prison. This complicated the paternity testing, as the father was now in Wasco State Prison. Based on the fathers prison sentence, SSA changed its recommendation to no services.
The father was not present at the continued hearing on October 2. His counsel declared a conflict, and new counsel was not appointed since Harvey remained an alleged father. The court declined further services to either parent and set a hearing pursuant to section 366.26 (permanency planning hearing or 366.26 hearing) in January 2007. Two weeks later, the court issued the required minute order authorizing paternity testing at the state prison. In late January, after a number of delays that appeared to be connected to the fathers incarceration, paternity tests confirmed that Harvey V. was the biological father. The court appointed new counsel for him at that time.
Between September and December, the father wrote a number of letters to SSA. Among other things, he indicated that the paternal grandmother was interested in adopting the children if paternity was established, and he requested that testing take place as soon as possible. He said he was attending substance abuse meetings in custody and had read parenting education materials he had been given. The fathers counselor told SSA that the earliest he could be released was in February 2008, and that he had not yet enrolled in services.
SSA pursued placement with the paternal grandmother, Eva P. In October, Eva P. told SSA that she would be willing to provide long-term foster care until the parents could resume custody, but only if paternity was established. Eva P. visited the children four times between July and October. In November, she began to express reluctance about caring for the children, concerned that at age 58 she would not have the energy. She told the father that the children might be better off where they were. The children had been placed in the same foster home since August 3. Their caretakers expressed a commitment to adopting them.
SSA was concerned about Eva P. as a placement for the children due to her expressed reluctance. The father seemed to believe that he would remain the father even if Eva P. adopted the children, and it seemed as if Eva P. might be seeking placement to preserve the parents ties to the children, hoping they could reunify in the future. In December, the mother told SSA that Eva P. only wanted temporary custody.
In February 2007, the father filed a petition pursuant to section 388, requesting the court declare him the presumed father, offer him reunification services, and place the child with Eva P. After argument, the court found the father had not made the required showing of changed circumstances or best interests and denied a hearing on the petition. The court ordered the termination of parental rights and freed the children for adoption by their caretakers. The father now appeals.
II
DISCUSSION
The father claims the juvenile court erred and denied him due process by denying him a hearing on the section 388 petition.
Standard of Review
The father claims the proper standard of review is de novo. He is incorrect.
The juvenile courts determination to deny a section 388 petition without a hearing is reviewed for abuse of discretion. [Citations.] We must uphold the juvenile courts denial of appellants section 388 petition unless we can determine from the record that its decisions 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. [Citations.] [Citations.] (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505; italics added.) Moreover, the courts discretion to determine whether a section 388 petition is sufficient to order a hearing comports with due process standards. (In re Heather P. (1989) 209 Cal.App.3d 886, 891-892.)
Section 388s Requirements
In pertinent part, section 388, subdivision (a) provides: Any parent or other person having an interest in a child who is a dependent child of the juvenile court
. . . may, upon grounds of change of circumstances or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order [the] court previously made . . . . If the petitioning party presents a prima facie case that the statute applies, a hearing should be granted.
The parent seeking modification must make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.] [Citations.] There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.] If the liberally construed allegations of the petition do not show changed circumstances such that the childs best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. [Citation.] (In re Anthony W. (2001) 87 Cal.App.4th 248, 250.) 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. [Citation.]
(In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
With respect to changed circumstances, the only fact that the father points to is that paternity testing established he was the biological father. The father makes much of the importance of establishing paternity, but utterly fails to persuasively argue that it made a difference in this case.
Even as an alleged father, Harvey V. was appointed counsel when he first appeared in the case. He was granted visitation and ordered to complete drug testing. Indeed, there is no indication from the record that he was treated any differently than a biological father. Before he was arrested and subsequently convicted, SSA recommended reunification services for the father once paternity was established. SSA also took seriously the request to treat the paternal grandmother as a potential placement resource.
Given that he was treated no differently than a biological father indeed, he offers no argument suggesting that he was we do not find this to be a genuine change of circumstances sufficient to meet the prima facie requirement under section 388. The only change was in the fathers legal status, which by that late date was of little import.
The record shows that the father did little to establish his paternity at any time prior to the setting of the permanency planning hearing in October 2006, either before or after the birth of the twins. Although the mother claimed a declaration of paternity was filed, there was no record of it. He demanded the rights of paternity, such as visitation and relative placement, but took no steps to assume the responsibilities of parenthood outside his appearance at some dependency proceedings.
Even when those rights were granted, he failed to take advantage of them. The father had no contact with the twins from the time they were initially taken into custody as infants in June and his incarceration. He either failed to participate in drug testing or did not transmit the results to SSA.
In sum, there is no evidence that the father would have been treated any differently if paternity had been conclusively established earlier. Thus, there was no genuine change of circumstances as contemplated by section 388. The court, therefore, did not abuse its discretion in denying the fathers motion without a hearing.
III
DISPOSITION
The order is affirmed.
MOORE, J.
WE CONCUR:
SILLS, P. J.
ARONSON, J.
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[1] Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
[2] Respondent requests we take judicial notice of the twins birth certificates, which did not list Harvey V. as the father. Pursuant to Evidence Code sections 452 and 459, the request is granted.
[3] The mother previously had parental rights terminated as to another infant child. In addition to the twins and this infant, the mother had three other children, none of whom were in her custody.
