In re Angie M.

Filed 8/21/07 In re Angie M. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from orders of the Superior Court of Los Angeles County, Marilyn K. Martinez, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed.

Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Deborah Singer-Frankes, Senior Deputy County Counsel, for Plaintiff and Respondent.

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A father appeals from the dependency courts order denying a petition for modification in which he sought unmonitored visits with his daughter, Angie M., and from the subsequent order terminating his parental rights. (Welf. & Inst. Code, 388, 366.26.)[1] We affirm.

FACTS

A.

Angie and her mother, Y. R., came to the attention of the Department of Children and Family Services in March 2005, at which time Y. executed a voluntary family maintenance contract. In May, the Department received a referral alleging that Y. had physically abused Angie (then four years old). Angie and her half-sister, Hazel R. (then one year old), were placed in foster care, and a petition was filed alleging that Y. suffered from depression and suicidal ideation, that she had physically abused Angie and exposed both girls to confrontations between Y. and the girls fathers, and that she had failed to comply with the terms of her contract. Angies father, Angelo M., had not been reached and did not attend the June detention hearing. Y. was never married to Angelo, had not seen him since Angie was born, and did not know how to reach him; he had never provided for Angie.

In July, the Department filed an amended petition, adding that Angelo had a history of substance abuse and was a current abuser of methamphetamines, cocaine, and marijuana. By that time, Angie and Hazel had been placed with their maternal grandparents. Although Angelos whereabouts were still unknown at the time of a July 25 hearing, he was deemed to be Angies alleged father.

In August, the Department reported that Angelo had a criminal record that included a conviction for selling marijuana, and 2000 convictions for presenting false identification to an officer, evading and resisting a peace officer, vehicle theft, and driving with a suspended license. On August 11, the petition was sustained as amended, reunification services were ordered for Y., and monitored visits for Y. were authorized. The court expressly refused to order reunification services for Angelo (who did not appear at the hearing). The court ordered a health assessment for Angie.

In February 2006, the Department reported that Angie, who was diagnosed with post-traumatic stress disorder and depression, was doing well with her grandparents (who were willing to adopt her). Angie attended individual counseling and her therapist reported that she was improving (although her pre-school teacher reported that she had difficulty getting along with others). The grandparents began the home study process in August, at which time the Department reported that Angies behavior had improved.

On August 10, Angelo (who was living in New Mexico) made his first and only court appearance and counsel was appointed to represent him. Angelo requested a contested hearing on the issue of reunification services ( 366.21, subd. (f)), and the court ordered an Interstate Compact on the Placement of Children study in New Mexico. The court authorized monitored visits for Angelo and continued the hearing to October 23.

Angelo did not appear on October 23. The court denied his lawyers request for a further hearing to determine whether Angie could be placed with him but ordered an expedited interstate report (no response having been received to the earlier order). Y.s reunification services were terminated and a section 366.26 hearing was set.

B.

In December, Angelo filed a section 388 petition for modification, asking for [i]mmediate unmonitored visitation . . . with Angie culminating in prompt placement in [his] home . . . without completion of the New Mexico study based on changed circumstances: that he is gainfully employed, has a stable, drug-free life style, a home, a loving supportive family environment, frequent telephone contact with Angie and visits her [as] often as possible.

In a supporting declaration, Angelo said he had moved to New Mexico in 2001 for a fresh start, and that he had not known about the petition when it was filed. He said he had been employed as a corrections officer for several years, had no history of domestic violence or drug use, had married in 2001, and had a son and daughter with his wife (a child-care provider). He said he lost contact with Angie when Y. moved without giving him a forwarding address, and Y.s family refused to help him find Angie. He saw Angie at the August 10 hearing and they visited that weekend, but he had not seen her since then because of the distance and expense of travel. He said he talked to Angie by phone three times each week, that she had talked to his wife and children, and that they all wanted Angie to come live with them. The trial court granted Angelos request for a hearing on the petition and ordered a new report.

In January 2007, the Department reported that Angie was in kindergarten, performing below grade level, enrolled in tutoring programs, and demonstrating behavioral problems (but her interaction with her peers had improved). Her therapist reported progress but continuing problems. After the August 10 hearing, Angies grandmother had asked Angelo if he wanted to visit with Angie but he had to leave right away, as he did not want to stay in California. Angie expected to see Angelo at the October 23 hearing and was upset when he failed to appear, and since that time she had either refused to talk to him when he called or talked to him for only a short time.

The grandparents want to provide a permanent home for Angie and have always been involved with Angie and her half-sister (both want to remain with their grandparents). The Department reported that the grandparents demonstrated a lot of love and affection toward the children and were willing to permit supervised contact with Angelo (as well as Y.).

The Department asked the court to deny Angelos section 388 petition on the basis of his criminal history (which in addition to 1996 and 2000 convictions included juvenile arrests for possession of marijuana for sale and receiving stolen property, and a still-outstanding 2001 bench warrant), his failure to disclose his criminal history for the interstate report, and his failure to visit Angie when a visit was offered.

Angelo did not appear for the January 30, 2007 hearing. The dependency court denied the section 388 petition, noting Angelos de minimus contact with Angie and finding that the best interest of the child . . . would not be promoted by [the] proposed change . . . . Angelos and Y.s parental rights were terminated (but only Angelo appeals).

DISCUSSION

I.

Angelo contends the dependency court should not have denied his section 388 petition. We disagree.

To prevail on a section 388 petition, the parent must show changed circumstances or new evidence and that the proposed modification is in the childs best interests, the determination of which must be based on the seriousness of the problem that led to dependency, the reason for any continuation of that problem, the degree to which the problem may have been ameliorated, the strength of the childs bond to the parent and to her present caretakers, and the duration of the childs involvement in the dependency system. We will reverse only upon a showing of abused discretion. ( 388; Cal. Rules of Court, rule 5.570(e), (f); In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Stephanie M. (1994) 7 Cal.4th 295, 317-318; In re Casey D. (1999) 70 Cal.App.4th 38, 47; In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-532.)

Angelo did not show any bond with Angie, let alone a strong bond. He left California the year she was born, leaving the child with a woman he claimed was violent toward him, and did not provide his new address to Y. or Y.s parents. He saw Angie once, at the August 2006 hearing, and declined an invitation to visit with her after the hearing. His claim that he visited Angie the following weekend is disputed by Angies grandparents, and Angelo did not offer any evidence to show that he stayed in California after the hearing. This is not the stuff of which a bond is made.

In contrast, substantial evidence supports the courts finding that it is in Angies best interests to remain with her grandparents, with whom she has a close and loving relationship. Balanced against Angelos criminal record and his failure to maintain contact with his daughter, it is clear that it is in Angies best interests to remain where she is (and it is thus unnecessary for us to consider whether Angelos petition showed any changed circumstances).

II.

For the reasons stated above, we reject Angelos contention that his parental rights should not have been terminated because he has maintained regular visitation and contact with Angie and she would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(A).) As we have explained, he has not maintained regular visitation or contact. (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324 [the type of parent-child relationship sufficient to derail the statutory preference for adoption is one in which there is day-to-day interaction, companionship and shared experience].)

DISPOSITION

The orders are affirmed.

NOT TO BE PUBLISHED.

VOGEL, Acting P.J.

We concur:

ROTHSCHILD, J.

JACKSON, J.*

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*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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