Filed 5/22/18 In re Evan V. CA5


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re EVAN V., a Person Coming Under the Juvenile Court Law.

MERCED COUNTY HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

JOSE V.,

Defendant and Appellant.

F076494

(Super. Ct. No. JP001150B)


OPINION
THE COURT*
APPEAL from a judgment of the Superior Court of Merced County. Donald J. Proietti, Judge.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
-ooOoo-
Jose V. (father) appealed from the juvenile court’s orders issued at a combined hearing pursuant to Welfare and Institutions Code sections 388 and 366.36 conducted on October 24, 2017. At that hearing, the court denied father’s section 388 petition, in which he requested that his son, then three-year-old Evan, be returned to his custody under family maintenance services. The court also entered findings and orders pursuant to section 366.26, terminating father’s parental rights and freeing Evan for adoption.
After reviewing the juvenile court record, father’s court-appointed counsel informed this court he could find no arguable issues to raise on father’s behalf. This court granted father leave to personally file a letter setting forth a good cause showing that an arguable issue of reversible error exists. (In re Phoenix H. (2009) 47 Cal.4th 835, 844 (Phoenix H.).)
Father submitted a letter in which he asserts that he completed everything required by his reunification services plan and was never given the opportunity to parent his son. He questions what transpired between the 12-month review hearing in September 2016, when the juvenile court found a substantial probability Evan would be returned to his custody, and the 18-month review hearing in April 2017, when the court terminated his reunification services.
We conclude father failed to set forth a good cause showing that any arguable issue of reversible error arose from the combined hearing (Phoenix H., supra, 47 Cal.4th at p. 844) and dismiss the appeal.
PROCEDURAL AND FACTUAL SUMMARY
In October 2014, newborn Evan and his mother, Denise, tested positive for amphetamines. Denise used methamphetamine throughout her pregnancy with Evan. Father disclosed a history of methamphetamine, marijuana and alcohol use as well as a restraining order prohibiting him from having contact with Denise. The Merced County Human Services Agency (agency) took Evan into protective custody and placed him in foster care.
The juvenile court exercised its dependency jurisdiction over Evan in December 2014 and ordered reunification services for both parents. Father’s services plan required him to participate in domestic violence, parenting and substance abuse services. On December 10, 2014, the agency placed Evan with his maternal aunt in Merced County where he remained throughout these proceedings.
By the six-month review of services in June 2015, father and Denise were residing together with his mother and neither was participating in their services plan. The agency recommended in its report for the review hearing that the juvenile court terminate their reunification services. At the six-month review hearing in September 2015, however, the court continued services for father and ordered him to participate in the “Dependency Drug Treatment Court” program (DDTC program). The court terminated Denise’s reunification services and set the 12-month review hearing as to father for March 2016.
In its report for the 12-month review hearing, the agency recommended the juvenile court terminate father’s reunification services. Though he completed a parenting class and regularly visited Evan, he was not participating in domestic violence services and was only partially compliant with the DDTC program. According to a progress report prepared in April 2016, father had improved “immensely” with time management skills and was making positive progress toward goals and opening up more in his individual sessions. However, he tested positive for methamphetamine in January and March 2016.
The juvenile court continued the 12-month review hearing until September 2016 and set it as a contested matter at the request of father’s counsel. Meanwhile, in an addendum report, the agency changed its recommendation and advised the court that it would be in Evan’s best interest to continue reunification efforts because father maintained a close relationship with Evan, was more fully engaged in the DDTC program and refrained from associating with drug users, including Denise. He also completed an anger management/domestic violence assessment and was advised to attend at least 16 anger management sessions.
In September 2016, at the 12-month review hearing, the juvenile court found there was a substantial probability Evan would be returned to father’s custody by the 18-month review hearing and ordered continued reunification services for father. The court set the 18-month review hearing for October 2016.
In its report for the October 2016 hearing, which the agency characterized as the 24-month review hearing, the agency recommended the juvenile court terminate father’s reunification services. Father was meeting all his DDTC treatment goals and program requirements and was participating well in groups but after a year in the program, he continued to test positive for methamphetamine. He also continued to associate with Denise. The agency believed he had a codependent relationship with her because he also lied about where he was living.
In an addendum report filed in February 2017, the agency reported that father submitted to a hair follicle analysis in January 2017, conducted by a different lab, and tested positive for methamphetamine. In addition, his progress in the anger management program was reportedly unsatisfactory and his likelihood to commit further abuse or violence was moderate to high.
On April 4, 2017, the juvenile court conducted a contested review hearing, noting they were “well beyond” 24 months from the date Evan was initially removed from parental custody. Social worker Bert Navarro testified that father completed the anger management program and was in compliance with the DDTC program. However, the agency remained concerned about his drug use. Father testified he last used drugs, methamphetamine and marijuana, two and a half years before but had not since Evan was born. He could not explain why his hair follicle analysis yielded a positive result for methamphetamine. He had not seen or heard from Denise since October 2016. The court found it would be detrimental to return Evan to father’s custody, terminated reunification services and set a section 366.26 hearing for July 27, 2017.
Father filed an extraordinary writ petition, challenging the juvenile court’s order terminating his reunification services, which we denied.
In September 2017, father filed a modification petition under section 388, asking the juvenile court to place Evan with him and dismiss its dependency jurisdiction or order family maintenance or family reunification services for him. Father alleged that he completed the anger management program and graduated from the DDTC program on April 7, 2017. He continued to participate in “All Dads Matter,” which contained anger management and parenting components. He alleged he had two and a half years of sobriety and attended two to three Alcoholics/Narcotics Anonymous meetings each week. He lived in a two-bedroom home where Evan would share a room with him and he intended to apply for a job as a welder by the end of the month.
On October 24, 2017, the juvenile court conducted a contested hearing pursuant to sections 388 and 366.26. The agency’s recommendations were that the court deny father’s section 388 petition and terminate his parental rights. Social worker Bert Navarro testified he inspected the paternal grandmother’s home and found no safety concerns. Social worker Leydy Cervantes testified the grandmother’s home could accommodate Evan. She did not observe an attachment between father and Evan and said Evan did not cry or express any distress when separating from father. Evan told Cervantes he wanted to stay with his caretaker, who he called “mom.” Cervantes believed father was still in a relationship with Denise and was living with her because his car was seen at her residence as recently as the morning of the hearing.
Father testified he had been residing at his mother’s home since October 2016 and that his car was at Denise’s house because it needed mechanical work and mother’s brother was going to fix it. He denied having contact with Denise. He testified he had been clean and sober for three years and said Evan knew he was his father and responded “Yes” when he asked him if he loved him.
The juvenile court acknowledged the positive changes father made in his life but did not find that placing Evan in father’s custody or providing him family maintenance services served Evan’s best interests. Consequently, the court denied father’s section 388 petition. The court also found that Evan was likely to be adopted and terminated father and Denise’s parental rights.
DISCUSSION
An appealed-from judgment or order is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is an appellant’s burden to raise claims of reversible error or other defect and present argument and authority on each point made. If the appellant fails to do so, the appeal may be dismissed.
The substance of father’s letter is that he completed all required court-ordered services, resolved any problems requiring Evan’s removal from his custody and deserved to be a father to his son. The challenge for father at this stage of the proceedings is that he had to show that the modification he requested, i.e., custody or family maintenance services, served Evan’s best interest.
Once the juvenile court terminates reunification services, the focus shifts from the parent’s desire to reunify with the child to the child’s need for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Section 388, subdivision (a)(1) allows a parent of a child who is a dependent of the juvenile court to petition the court “upon grounds of change of circumstance or new evidence, … for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.” The parent bears the burden of showing by a preponderance of the evidence both (1) a legitimate change of circumstances or new evidence exists and (2) that undoing the prior order would serve the child’s best interest. (In re A.A. (2012) 203 Cal.App.4th 597, 611-612.)
Here, the juvenile court heard and acknowledged the changes father made. However, the court did not believe that removing Evan from the foster parents who cared for him virtually all his life to place him with father would serve Evan’s best interest. The juvenile court’s decision whether to change an order by granting a section 388 petition is “committed to the sound discretion of the juvenile court, and the trial court’s ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Though not required to, we have reviewed the transcript on appeal for the contested hearing conducted on October 24, 2017, and find no arguable issues related to the juvenile court’s ruling on the section 388 petition that merit briefing. Father does not challenge the court’s order terminating his parental rights.
We conclude father failed to make a good cause showing that an arguable issue of reversible error exists and dismiss the appeal.
DISPOSITION
This appeal is dismissed.