In re James J.

Filed 8/14/07 In re James J. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. William A. Anderson, Jr., Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.

Konrad S. Lee, under appointment by the Court of Appeal, for Minor.

James J., Sr., (father) appeals from the juvenile courts decisions to deny his form JV-180 Request to Change Court Order filed under Welfare and Institutions Code section 388^[1](section 388 petition) and to terminate his parental rights to his son James J., Jr., (James) at a hearing held under section 366.26. As discussed below, we affirm the juvenile courts rulings.

Facts and Procedure

The Riverside County Department of Public Social Services (DPSS) filed a section 300 petition on May 26, 2005, alleging that father and Jamess mother (mother)^[2]had failed to protect him in that mother had tested positive for marijuana at Jamess birth and had a history of using controlled substances, the parents engaged in acts of domestic violence in Jamess presence, father had failed to prevent James from becoming exposed to his blood, which contained the HIV virus, and both parents had criminal histories, all of which placed James at risk of serious physical harm.

On May 6, 2005, the social worker visited James and mother in the hospital, the day following his birth, after it was reported that mother tested positive for marijuana. James tested negative for drugs, but was placed on the drug AZT because of mothers positive HIV status. The social worker gave mother her business card and stated she would come to see the home the following week and to discuss drug testing and care for James. Mother agreed to drug test and provided the social worker with her cell phone number. Mother stated that she had provisions for James at home, but would be moving in a few days.

On May 17, 2005, DPSS received a second referral stating that father displayed a poor understanding of how to provide basic care for James, in that he had allegedly given James the wrong amount of medication. The social worker visited on May 18, 2005, and found the family living in a motel room in Riverside. The social worker provided mother with a list of referrals and asked both parents to drug test. The parents agreed to drug test and the social worker said she would try to get bus passes for the parents. Father told the social worker that he had brain damage from being hit in the head by some white supremacists, and then asked the social worker if she had run him over in a parking lot. James appeared to be doing well.

The social worker returned the next day with bus passes, formula, diapers, and clothes for James. Father was not home at that time. Mother admitted that she and others had concerns about fathers ability to appropriately care for James and it was agreed that she would not leave James alone with father. Mother then disclosed that father loses his temper easily and had been arrested for domestic violence toward her when she was pregnant. The social worker advised that James was in jeopardy because of the domestic violence and mother agreed that she was also concerned for James. Mother then called her sister and her mother, who agreed to help mother and James.

Later that day, the social worker was informed that father had returned to the motel room while mother was packing her things and refused to let her leave with James. Law enforcement was called to the scene. Mother then decided to stay at the motel with father.

On May 24, 2005, the maternal aunt told the social worker that the parents were asked to leave the Riverside motel because they frequently argued and yelled, and had moved to a motel in Hemet. The aunt estimated that the parents engaged in domestic violence five days out of seven. The aunt also related an incident on or about May 13, 2005, in which mother had called the aunt to the motel room after an altercation. The aunt arrived to find that father was bleeding and that his blood was throughout the room and on Jamess diaper. Father, who is HIV positive, refused to clean the blood from himself before changing Jamess diaper. The social worker then contacted fathers parole officer, who stated that father had not told him of his new address and so was in violation of his probation. The social worker also determined that neither parent had drug tested as they had agreed.

On that date, the social worker responded to the Hemet motel room with law enforcement backup. Father emerged from the room screaming obscenities at the social worker and had to be handcuffed, but continued to yell threats at the social worker. James was removed from the parents and placed with the maternal aunt.

At the detention hearing held on May 27, 2005, father was found to be Jamess presumed father. The juvenile court ordered James detained and allowed the parents to have supervised visits. The Riverside Department of Mental Health wrote a letter indicating that father was under the care of a psychiatrist and was having a difficult time with the removal of his son, but that father was in a program to assist him with his mental health needs relating to the dependency case.

At the jurisdiction and disposition hearing held on June 16, 2005, the parents waived their rights to a hearing and the juvenile court found the allegations in the section 300 petition to be true. James was placed in foster care with the maternal aunt and the parents were to be provided with reunification services.

James was placed with his maternal grandparents on August 12, 2005. At the six-month review hearing held on December 19, 2005, the juvenile court ordered six more months of reunification services for father and mother, after finding that they had made adequate but incomplete progress toward alleviating the causes necessitating placement. At that time, father had completed a substance abuse program and had spent a month in jail on outstanding warrants. After jail, father was on summary probation and was to begin a work release program. Father also completed a parenting program and anger management. Father and mother had weekly supervised visits in the DPSS office.

The 12-month review hearing was held on August 10, 2006. The juvenile court terminated reunification services for both parents and set a permanency planning hearing pursuant to section 366.26 for December 11, 2006. Father was at that time in custody for having violated his probation for the fifth time, this time by battering mother and threatening to kill her father in June. This incident took place not long after father was released from a 60-day jail sentence for battering mother during an April 2006 incident of domestic violence.

Father was not able to visit with James while he was incarcerated. Father requested visitation in a letter dated October 2006. The social worker was for some reason unable to determine his location, despite regular contact with fathers probation officer. Father lived in a halfway house for men from August 31 to November 28, 2006.

The section 366.26 hearing set for December 11, 2006, was continued to January 8, 2007. On January 5, 2007, father filed a section 388 petition, seeking to modify the juvenile courts decisions terminating reunification services and setting the section 366.26 hearing. At the hearing held on January 8, 2007, the juvenile court indicated it had read the petition and attachments, and stated that its tentative ruling was to deny the petition. Fathers counsel then argued on his behalf. County counsel argued on behalf of DPSS, which opposed the petition. Jamess counsel asked the court to deny the petition, as did counsel for mother. Fathers counsel then submitted. The juvenile court denied the petition. The court heard additional argument from counsel regarding the permanent plan for James, and then terminated parental rights and chose adoption as the permanent plan, with preference to the maternal grandparents. This appeal followed.

Discussion

Father argues the juvenile court abused its discretion in summarily denying fathers section 388 petition without a full evidentiary hearing. However, as DPSS points out, the court denied the petition after holding a hearing. After stating that its tentative decision would be to deny that, the court told fathers counsel we will let you go forward on this if youd like. Counsel then said, If I may be heard, Your Honor. As to the JV-180 request for a change of circumstances pursuant to section 388, I do believe that there was a prima facie showing, at least I think the Court did grant a hearing on that basis. As described above, fathers counsel then proceeded to argue before the court as to why DPSS should reinstate services to father.

Although fathers brief addresses the issue of whether the juvenile court abused its discretion in finding there was no prima facie showing of new evidence or changed circumstances, as is proper when challenging the summary denial of a section 388 petition, we address the very similar issues posed when a parent challenges the juvenile courts decision to deny a section 388 petition after a hearing, as is proper under the facts as described above.

Section 388 provides: Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . to change, modify, or set aside any order of court previously made . . . . The petitioner must show by a preponderance of the evidence that: (1) there is new evidence or a change of circumstances; and (2) the proposed modification based on the new evidence or change of circumstances would be in the childs best interests. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526-527, fn. 5.) We review the juvenile courts decision on a section 388 petition for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.)

Here, the new evidence or change of circumstances since services were terminated on August 10, 2006, was: (1) a letter from fathers physician stating that his current medical condition^[[3]] bears no restriction on his ability for parenthood, along with supporting blood test results; (2) a certificate of completion from a residential drug treatment program, a letter stating that he was participating in aftercare as well as anger management and parenting classes, and progress reports showing negative drug tests and attendance at 12-step meetings; and (3) certificates of completion dated August 2005 showing parenting and anger management classes taken at a rehabilitation center. Counsel also stated that father had been visiting with James, despite the social workers report to the contrary.

At best, fathers petition can be construed only to reflect that his circumstances might have been in the process of changing. A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the childs best interests. [Citation.] [C]hildhood does not wait for the parent to become adequate. [Citation.] (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) Fathers counsel asked the court to allow father to show that he can be stable, get a residence, be an appropriate father for this child. (Italics added.) However, pursuant to section 388, it is fathers burden to show, by a preponderance of the evidence, that at the time of the hearing he is stable, has a residence, and is an appropriate father for James. Father did not make this showing, either in the petition or at the hearing. The dependency began in May 2005, and father had relapsed into drug use and domestic violence, resulting in his being jailed for violating his probation, as late as June of 2006. Any improvements in fathers circumstances were quite recent, and are best described as changing rather than changed.

Further, the juvenile court did not abuse its discretion when it concluded that father did not show by a preponderance of the evidence that it was in Jamess best interest to postpone a permanent plan to allow father time to complete additional reunification services. Father merely asserted in the petition that, Father has maintained ongoing and appropriate visitation with his son, and has shown an ongoing commitment to parent as he has continued with services on his own. He has also continued with treatment for his medical condition. This does not even begin to address whether a postponement of the permanent plan so father could receive additional services was in Jamess best interest. Similarly, at the hearing, fathers counsel stressed that father was working very hard and was appropriate during visits, but merely mentioned that Jamess placement with relatives wouldnt be prejudiced by a delay in permanent planning. There is no evidence on the record that would support a finding that a modification of the courts August 10, 2006, orders would be in Jamess best interest. Thus, the juvenile court did not abuse its discretion when it denied the petition based on Jamess best interest.

Disposition

The orders of the juvenile court are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Ramirez

P.J.

/s/ Miller

J.

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Analysis and review provided by El Cajon Property line attorney.

^[1]All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2]Mother is not a party to this appeal.

^[3]The medical condition appears from the record to be fathers positive HIV status.