Filed 10/29/18 In re V.C. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

J.C. (Father) and B.K. (Mother) appeal from an order denying their petitions under Welfare and Institutions Code section 388 and terminating their parental rights as to their daughter V.C. (Minor). J.C. contends he was deprived of due process because (1) the court denied one of his petitions without a hearing; (2) the proceedings were continued multiple times; and (3) one judge heard testimony and then another judge made a ruling based on the transcripts. B.K. joins in J.C.’s arguments. We will affirm.

I. FACTS AND PROCEDURAL HISTORY

We limit our discussion to the facts germane to the issues in this appeal.[1]

A. Initial Proceedings Under Welfare and Institutions Code Section 300

The Minor was born in May 2016. On May 12, 2016, the Humboldt County Department of Health and Human Services (Department) filed a petition under Welfare and Institutions Code section 300, subdivisions (a) and (b), alleging among other things that the Minor and Mother tested positive for amphetamine and methamphetamine at the time of the Minor’s birth, and that Father “knew of, or reasonably should have known of the mother's substance abuse and failed to protect that child from that use.” [2]

The Minor was detained, and counsel was appointed. At a jurisdictional hearing in June 2016, the court sustained allegations as to Mother and Father. At a July 2016 uncontested disposition hearing, reunification services were ordered for both parents. In October 2016, the Minor was returned to the parents’ custody with family maintenance services.

B. Proceedings Under the Department’s Section 387 Petition

About six months later in April 2017, the Department filed a supplemental petition under section 387, alleging that the parents failed to participate in services, they failed to stay in contact with the Department, and Father had seven “dirty” tests for amphetamine. The Minor was detained and jurisdiction was established. The Department’s disposition report recommended that the parents be bypassed for further reunification services (§ 361.5, subd. (b)).

At a contested disposition hearing on June 7, 2017, visiting Judge W. Bruce Watson found that the parents were no longer eligible for services (In re Carolyn R. (1995) 41 Cal.App.4th 159) and set a permanency hearing under section 366.26. No timely writ petition or appeal was filed.

C. Sibling B.C.’s Birth

In June 2017, Mother gave birth to the Minor’s sibling, B.C. (Sibling). The Department filed a petition under section 300 alleging that the parents abused drugs, the drug abuse posed a risk to the Sibling, and the parents failed to reunify with the Minor. As discussed post, the court and parties agreed that jurisdiction in the Sibling’s case would be addressed in conjunction with the proceedings regarding the Minor.

D. Parents’ Section 388 Petitions and Section 366.26 Hearing

1. Parents’ Initial Section 388 Petitions

On August 3, 2017, Mother filed a section 388 petition to vacate Judge Watson’s order of June 7, 2017, which had set the section 366.26 hearing as to the Minor. Mother alleged that a hair-follicle test she provided on April 21, 2017, had come back negative, and the Department had not disclosed the test result to the court at the June 7 hearing. Mother sought return of the Minor to her care.

On August 4, 2017, Father also filed a section 388 petition to vacate Judge Watson’s order of June 7, 2017, seeking either the return of the Minor to his care or resumption of reunification services. Father relied on Mother’s April 2017 hair-follicle test and his claim that he was sober and had participated in a residential treatment program for two months. Attached to Father’s petition were two letters from Father’s treatment program, which described Father’s clean tests and progress and noted he would be starting a parenting class.

On September 8, 2017, the parties appeared before Judge Christopher Wilson. Because the Minor’s case and the Sibling’s case had common evidence and issues, the court proposed that the jurisdictional hearing in the Sibling’s case be set at the same time as the hearing on the section 388 petitions in the Minor’s case, with the section 366.26 hearing trailing. By agreement of Mother’s counsel and the Department, and without objection by Father’s counsel, a combined hearing was set for October 2, 2017.

2. The Department’s Section 366.26 Report

On August 23, 2017, the Department submitted a section 366.26 report, recommending that the court terminate parental rights and set adoption as the Minor’s permanent plan. The report advised that the Minor was on track developmentally, she was thriving in her loving, long-term, stable foster home, and her foster family was interested in adopting her. On the other hand, Mother and Father were frequently late to their visits with the Minor, left the visits to make phone calls, argued with each other, and spoke about the dependency case during visits. At one visit, Father fell asleep. Mother was in violation of her probation and did not begin parenting classes until July 31, 2017.

The Department’s report also addressed the drug test that was the subject of the parents’ section 388 petitions. Although Mother’s clean test on April 21, 2017, had inadvertently not been communicated to the court at the June 7 hearing, the Department questioned the test results because Mother had bleached her hair, which – according to drug testing personnel – may affect the results.

The Department’s Adoption Assessment Addendum advised that the termination of parental rights would not be detrimental to the Minor, and that the permanence and stability of adoption was in the Minor’s best interests.

3. Department’s Opposition to Parents’ Section 388 Petitions

The Department filed a written opposition to the parents’ section 388 petitions, restating the concerns set forth in its section 366.26 report. Father still had not engaged in parenting classes.

4. October 2017 Hearings Before Judge Buckley

Pursuant to the parties’ agreement, Judge Buckley held a five-day hearing on issues pertaining to (1) the parents’ section 388 petitions in the Minor’s case (with the contested section 366.26 hearing trailing) and (2) jurisdiction in the Sibling’s case.

The evidence at the hearing included testimony regarding the April 21, 2017, test result and Mother’s drug use. The technician who tested Mother’s hair follicle samples on April 21 testified that the result was negative, but that hair bleaching can affect test results, a small dose of methamphetamine may not register, and the test detects use only within the prior 10 days. Social worker Powell testified that on April 20, 2017 – the day before the test – Mother admitted using drugs multiple times in the prior three months, and on April 27, 2017, both parents agreed they needed inpatient substance abuse treatment. Social worker Shuflin confirmed that Father and Mother admitted to methamphetamine use and needing inpatient substance abuse treatment on April 27, and both parents that day appeared to be “under the influence.” Shuflin further testified that on May 12, 2017, the parents appeared at her office and Mother admitted using substances while pregnant with the Sibling. Social worker Ellis confirmed that case logs supported the Department’s report of Mother telling Shuflin on May 12 that she was using methamphetamines. Powell also testified that the clean test on April 21 did not change the Department’s recommendation that the Minor be removed from the parents’ care, because they were not engaged in their plans.

Mother presented witnesses who said Mother was doing well. Mother denied using methamphetamines since May 2016 or telling a social worker she used methamphetamines in April 2017. She also denied that methamphetamine and a glass pipe found in her car by law enforcement was hers.

On the fourth day of the hearing (October 5, 2017), after discussion between the court and counsel, Judge Buckley announced his intention to send the parents’ section 388 petitions to Judge Watson for a ruling on the issue of Mother’s April 2017 clean drug test, since Judge Watson had made the June 2017 ruling that the parents were attempting to modify.

On the last day of the hearing before Judge Buckley, Father introduced documentary evidence in support of his section 388 petition. After witness testimony was completed, the court asked whether Father wanted to submit on his documents and the petition. Father’s counsel said he intended to call Father as a witness, but believed that would be for Judge Watson to hear, which he was “fine with.”

Judge Buckley issued the following orders: (1) the parents’ section 388 petitions would be decided by Judge Watson, with the section 366.26 hearing trailing; (2) the parties would reconvene before Judge Watson on October 10, 2017, for setting; and (3) the juvenile court had jurisdiction in the Sibling’s case (which thereafter continued on a separate track).

5. October 2017 Hearings Before Judge Watson

On October 10, 2017, Judge Watson continued the matter to determine the status of the transcripts of the five-day hearing before Judge Buckley.

On October 26, 2017, Judge Watson advised the parties that the hearing transcripts would be ready in two weeks, and requested briefing on whether the absence of the April 21 drug test warranted reconsideration of the June 7 dispositional orders. Mother’s attorney (Mr. Schrock) and Father’s attorney (Mr. Barraza) questioned whether the court had all the facts it needed to make a ruling, distinguishing between Mother’s section 388 petition (which the court termed a motion for reconsideration of the June 7 order based on the absence of the April 21 test result) and Father’s section 388 petition based on Father’s conduct since then. The court stated it would review the transcripts and determine whether the omitted test result would have affected the June 7 decision. To the extent Father’s petition was based on Father’s conduct “since then,” “[t]hat will have to be heard.” The court continued the matter to December 2017.

6. Judge Watson’s Denial of Parents’ Initial Section 388 Petitions

On December 19, 2017, Judge Doris Shockley read to counsel Judge Watson’s written order, which had been filed on December 18.

In his written order, Judge Watson denied Mother’s and Father’s petitions. Having reviewed the transcripts of the October hearing and the parties’ briefs, and taking judicial notice of the files in the Minor’s and Sibling’s cases, the court found that neither the omitted April 2017 drug test, nor Father’s recent participation in treatment, warranted modification of the June 2017 order.

7. Parents’ Second Section 388 Petitions

Meanwhile, during the pendency of Father’s and Mother’s initial section 388 petitions, Father and Mother filed “amended” section 388 petitions.[3]

Mother’s “1st amended” section 388 petition, filed on October 19, 2017, again asked the court to return the Minor to the parents’ care. An attachment purported to “update[] and supplement[]” the previous section 388 petition, stating that Mother and Father were doing well, Mother loved the Minor, and the Department caused the Minor “attachment disorder.”

Father’s “1st amended” section 388 petition, filed on December 1, 2017, again asked the court to vacate the order setting the section 366.26 hearing and return the Minor or resume reunification services. A declaration averred that Father completed residential treatment and a parenting program, was attending out-patient aftercare services, and had maintained sobriety since June 2017. The petition attached a completion certificate for the parenting course and a November 2017 letter from Father’s substance abuse treatment program, stating he was testing clean and making progress.

8. Order for Hearing on Parents’ Second Petition

The parties appeared before Judge Watson on December 21, 2017. Mother sought a contested hearing on her second section 388 petition. An attorney appearing on behalf of Father’s counsel requested a continuance until counsel’s return, noting that counsel would request a hearing on both his initial section 388 petition and his “amended” section 388 petition. Judge Watson continued the matter to January 4, 2018.

On January 4, 2018, the parties appeared before Judge Wilson. Father’s counsel asked that Father’s section 388 petitions be set for hearing. Judge Wilson ordered the parties to file briefs on the procedural issues related to the parents’ petitions and continued the matter to January 19, 2018.

On January 19, 2018, Judge Wilson determined that a single judge should review the parties’positions regarding the section 388 petitions and continued the matter for a week to determine judicial availability.

The parties appeared before Judge Wilson on January 26, 2018. Judge Wilson recognized that he could not reverse Judge Watson’s denial of Father’s initial section 388 petition, but agreed to take evidence on Father’s second section 388 petition, limited to any change in circumstances after October 6, 2017. The court set a contested hearing on the second petitions and a section 366.26 hearing.

9. Judge Wilson’s Rulings as to Second Petitions and Section 366.26

At the combined hearing on March 2, 2018, a friend of Father’s testified that Mother and Father were now even-keeled and had babysat his children. The Minor’s paternal grandfather testified that Father’s behavior had improved. Father testified that he had completed a 90-day residential treatment program and six months of aftercare treatment, was attending a church recovery group and “NA” meetings, and was sober. He acknowledged, however, that he had used methamphetamines and marijuana for decades, was just beginning the 12 steps of NA, and did not yet have an NA sponsor. He claimed the Minor called him “Da da.” Mother testified that she had graduated from a “Healthy Moms” program.

On March 9, 2018, the court denied the parents’ second section 388 petitions, finding that neither parent had demonstrated it would be in the Minor’s best interests to return her to the parents or provide reunification services. Judge Wilson noted: “Whether we like it or not as far as the law is concerned with a child under the age of three, the law is tilted toward that child attaining permanency as quickly as possible, and these proceedings having been delayed as long as they have are not in the best interest of the child.”

The court further found that the Minor was adoptable and the parents had not established any statutory exception. The court terminated their parental rights and confirmed adoption as the Minor’s permanent plan.

Mother and Father each filed a notice of appeal.

II. DISCUSSION

Father complains that he was denied a hearing on his initial section 388 petition, and the hearings on his initial and second petitions were continued and transferred from judge to judge so that, by the time he had a full evidentiary hearing on his second petition, the evidence he could present was limited and the legislative preference for the Minor’s stability precluded him from obtaining custody. Thus, he urges, he was deprived of due process, and the order denying his first section 388 petition and the order denying his second section 388 petition and terminating his parental rights should be reversed. Mother joins in Father’s briefs to request a reversal of the order terminating her parental rights. Their appeals have no merit.

A. Denial of Father’s Initial Section 388 Petition Without a Hearing

As mentioned, in October 2017 Judge Watson stated that issues in Father’s initial section 388 petition “will have to be heard,” but in December 2017 he denied Father’s petition without an evidentiary hearing. Father contends this violated due process, but he fails to show a due process violation or entitlement to relief.

1. No Relief as to Denial of Initial Section 388 Petitions

Although Father urges us to reverse the December 2017 ruling on his initial section 388 petition, neither Father nor Mother has appealed from the December 2017 order. Accordingly, Father and Mother are not entitled to relief from the order denying their initial section 388 petitions. (See In re Z.S. (2015) 235 Cal.App.4th 754, 769–770.)

Father contends the denial of his initial section 388 petition without a hearing led to an infringement of his due process rights as to his second section 388 petition, because the judge who decided the second petition (Judge Wilson) felt bound by Judge Watson’s ruling on the first petition and limited the evidence Father could present on his second petition. Father’s argument is unavailing. By the time of the hearing on the second petition, the ruling on the first petition had become final, so Judge Wilson’s deference to Judge Watson’s ruling was correct. Moreover, as discussed next, Father did not suffer any violation of his due process rights.

2. Father Was Not Entitled to a Hearing on His First Petition

Whether Father had a due process right to an evidentiary hearing on his initial section 388 petition turns on whether he made a prima facie showing of entitlement to relief. Although Father relies heavily on Judge Watson’s remark that Father’s petition “will have to be heard,” this remark was not a determination that Father had made the required prima facie showing. Nor did it preclude Judge Watson from later finding, based on the record and the petition’s allegations, that a hearing was unnecessary.

Under section 388, a parent may petition “for a hearing to change, modify, or set aside any order of court previously made” on the grounds of a “change of circumstance or new evidence.” To prevail on the petition, the parent must establish that the changed circumstances or new evidence are such that the proposed change in the court’s order would promote the child’s best interests. (§ 388, subds. (a)(1), (b); In re Marilyn H. (1993) 5 Cal.4th 295, 309–310.) Thus, unless the parent makes a prima facie showing of both elements – changed circumstances and best interests of the child – the petition may be denied without an evidentiary hearing. (In re Marcelo B. (2012) 209 Cal.App.4th 635, 642.) The court’s decision is reviewed for an abuse of discretion. (Ibid.)

Here, it was reasonable to conclude that neither Mother nor Father made a prima facie showing of changed circumstances and the best interests of the Minor. Even assuming as true the petitions’ allegations – that Mother tested clean on April 21, 2017, and Father had begun to participate in residential drug treatment – there was ample evidence that those circumstances were not enough to allow the court to return the Minor to either parent’s care or to delay the section 366.26 hearing pending reunification services. While Father had allegedly remained sober and begun residential treatment in June 2017 – the month of the order setting the section 366.26 hearing – he had decades of substance abuse and criminal history tied to his drug possession and use. Neither he nor Mother alleged facts indicating a significant change of circumstances. (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485 [change of circumstances under § 388 must be significant]; see In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.)

Moreover, by the time the parents filed their section 388 petitions, reunification services had been terminated and the focus had shifted to the Minor’s needs for permanency and stability. (In re Angel B. (2002) 97 Cal.App.4th 454, 464; In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Father was therefore obligated to allege facts showing how the proposed change of placement or reunification services would advance the Minor’s interests. (In re J.C. (2014) 226 Cal.App.4th 503, 527.) Instead of doing so, Father merely alleged in a conclusory manner that his requested order would be better for the Minor because it “[p]rovides permanency to the child, reunifies the child with one or both parents.” This was plainly insufficient. (In re Alayah J. (2017) 9 Cal.App.5th 469, 478 [to obtain an evidentiary hearing, the petition’s allegations must be specific and not mere conclusions].)

Furthermore, by the time the parents filed their initial petitions in August 2017, the Minor was 15 months old, had spent over half of her life with her foster family, was healthy and thriving, and was bonded with the family that wanted to adopt her. Given the parents’ failure to comply with their case plans after the Minor was returned to their care the first time, there was ample reason to conclude that the alleged change of circumstances did not warrant modification of the June 2017 order.

Because Father failed to make the requisite prima facie showing in his first section 388 petition, he was not entitled to an evidentiary hearing. (Cal. Rules of Court, rule 5.570(d).) And because he was not entitled to such a hearing, the absence of one did not deprive him of due process.[4]

3. Father Received Due Process on His First Petition

Even if Mother or Father had made the requisite prima facie showing, due process only provides a right to be heard in a meaningful manner. (In re Lesly G. (2008) 162 Cal.App.4th 904, 915.) This usually means the parent may present evidence and cross-examine adversarial witnesses. (Ibid.)

Here, Mother presented testimonial evidence of her April 2017 drug test and the Department’s failure to disclose it, Father presented documentary evidence in support of his petition, and Father cross-examined the social workers at the October hearings before Judge Buckley. Judge Watson considered this evidence in ruling on the parents’ initial petitions. Moreover, in denying Father’s initial section 388 petition, Judge Watson accepted Father’s treatment allegations as true, so there was no need for Father to prove them with witnesses at a hearing. Indeed, Father does not identify what specific evidence he would have produced if Judge Watson had held a further evidentiary hearing before denying the initial section 388 petition, or why it would have led to any different outcome. He therefore fails to establish that he did not receive any process that was due. (See In re C.J.W. (2007) 157 Cal.App.4th 1075, 1080–1081 [proceedings comported with due process where court conducted a hearing, received written evidence and heard argument, but did not allow testimony from parents or cross-examine social workers].)[5]

B. Continuances of the Section 388 Hearings

Father next contends he was denied due process because the court repeatedly continued the hearings on his first and second section 388 petitions. He urges that, by the time the court heard evidence on his second section 388 petition in March 2018, the Minor had been in placement for nearly a year, so the Minor’s best interests did not support her return. The argument is meritless.

In the first place, Father forfeited his challenge by not objecting to the continuances. Indeed, Father admits in his reply brief: “That father's counsel contributed to the problem is undeniable. He could have, but did not, challenge the continuances under section 352(a).” (See also Cal. Rules of Court, rule 5.550.) Father cannot now argue that continuances to which he imposed no objection entitle him to a reversal. (In re Brandon M. (1997) 54 Cal.App.4th 1387, 1400–1401.) (We address his ineffective assistance argument post.)

At any rate, Father’s suggestion that the denial of his petitions was due to the continuances finds no support in the record. The focus of the proceeding had switched to the concerns for the Minor’s stability and permanence by the time Father filed his initial section 388 petition in August 2017, since by that time reunification services had been denied. (See In re Stephanie M., supra, 7 Cal.4th at p. 317.) Father does not make any persuasive argument or cite to any evidence that he would have obtained a better result if his petitions had been adjudicated earlier than they were.

C. One Judge Hearing Evidence and Another Judge Ruling

Father notes that Judge Buckley presided over the evidentiary hearings in October 2017, Judge Watson denied the parents’ initial section 388 petitions in December 2017 based on their allegations and the hearing transcripts, and Judge Wilson denied the parents’ second section 388 petitions in March 2018. He contends: “The procedure implemented by the Humboldt Superior Court violated Appellant's due process rights. It prevented the subsequent judges from evaluating witness credibility and weight and it prevented Appellant from a full and fair hearing of the evidence.” His argument is unavailing.

Father forfeited his challenge to the court’s procedure by not objecting to it. He agreed to Judge Buckley transferring the matter to Judge Watson, and he does not point to any objection to Judge Watson’s use of the transcripts of the hearing before Judge Buckley. Father admits in his reply brief that his attorney “could have, but did not, object to judges making rulings based on transcripts.”

Furthermore, Father fails to establish prejudice. Although he complains that Judge Watson decided his first petition while Judge Buckley observed the witnesses (and could therefore assess their credibility), Father does not identify any witness that Judge Watson may have relied upon in reaching his decision. Nor does he explain how Judge Watson’s inability to observe the witnesses affected the weight of the evidence or the outcome.[6]

III. DISPOSITION

The order is affirmed.

NEEDHAM, J.

We concur.

JONES, P.J.

SIMONS, J.

(A153899)