Bryan F. v. Superior Court

Filed 3/27/07 Bryan F. v. Superior Court 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Deborah Daniel, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Petition denied.

Law Offices of Burcham & Stern and Robin D. Edmond for Petitioner.

No appearance for Respondent.

Ruth E. Stringer, Acting County Counsel, and Julie J. Surber, Deputy County Counsel, for Real Party in Interest.

Petitioner Bryan F. (father) is the father of dependent minors J.F. (born 1999), A.F. (born 2000) and M.F. (born 2001) (collectively the children). Father challenges the juvenile courts decision to deny without a hearing his petition filed under Welfare and Institutions Code section 388,^[1]and its decision to suspend fathers visitation with the children pending the section 366.26 hearing. For the reasons set forth below, we deny the writ petition.

Statement of Facts and Procedure

On December 31, 2003, police serving a warrant at fathers home found the children in the care of fathers roommate, who was arrested for possessing and being under the influence of methamphetamine. The children were dirty but healthy and well fed. The home was dirty and in poor repair, with trash and piles of clothing throughout. Police found illegal firearms,^[2]drug paraphernalia, and methamphetamine residue in the home. Father was not at home, and a family friend reported that the childrens mother (mother)^[3]was detained on a section 5150 hold.^[4]The two older children had previously been removed from their parents in 1999-2000, but were returned after the parents received reunification services.

On January 5, 2004, the Department of Childrens Services (DCS) filed a section 300 petition alleging that father had a substance abuse problem, the home was dirty and contained illegal firearms and drug paraphernalia, and father had left the children in the care of someone under the influence. The petition also alleged that mother suffers from a mental disorder and that her whereabouts were unknown.

At the time of the January 6, 2004, detention hearing, father was in the hospital with a stroke and mother had just been released from a section 5150 hold. The juvenile court ordered the children detained in foster care.

The jurisdiction/disposition hearing was held on January 28, 2004, but was continued because DCS filed an amended section 300 petition, making the same allegations as the original petition as to father, but adding a substance abuse allegation as to mother. At the further jurisdiction/disposition hearing held on April 28, 2004, father was present and admitted to having a history of substance abuse. The juvenile court found this allegation true and made a no finding as to the other allegations. The children were to remain in foster care and father and mother were offered reunification services and continued visitation once per week, with possible liberalized visitation as appropriate.

The contested six-month review hearing ( 366.21, subd. (e)) was held on November 30, 2004. Father testified that he had been unable to participate in his case plan because of a stroke that required hospitalization and left him physically weak, two deaths in the family and transportation problems. The social workers report indicated that father was not following through with his service plan and had tested positive for drug use. Father had visited the children fairly consistent[ly] every week. The visits went very well, and the children looked forward to visiting with father. None of the children reacted negatively to the visits with father, though the two older children experienced stress and negative behaviors before and after separate visits with mother, during which mother sometimes acted inappropriately. Mother had contacted the social worker several times asking that the children eventually be placed with father rather than with her. The juvenile court terminated fathers reunification services but allowed visitation to continue. The court ordered six more months of services for mother because she had initially made some progress on her service plan.

The 12-month review hearing ( 366.21, subd. (f)) was held on June 28, 2005. Father was not present because he was in prison for violating his parole on the illegal firearms charge. The juvenile court terminated mothers reunification services and set a permanent plan selection and implementation hearing ( 366.26) for October 26, 2005. Father was to continue weekly supervised visitation once he was released.

The first section 366.26 hearing was held on October 26, 2005. Father was present in custody. The juvenile court continued the hearing because DCS had not yet prepared an adoption assessment. The recommendation in the section 366.26 report was to terminate parental rights. The children had been moved to a concurrent planning home with prospective adoptive parents on September 27, 2005, and the recommendation in the section 366.26 report was to provide services under the Permanent Planning Program so the adoption could be finalized. However, the placement had failed after a few weeks. The social worker reported that the prospective adoptive parents were unable to cope with A.F.s behaviors, and that they feared the behavior was caused by mental illness, not by the disruption to the children from changing placements. One of the parents was still dealing with a mentally ill mother and reported feeling trapped by the proposed adoption in the same way she felt trapped by dealing with her mother. The social worker opined that there are still unresolved issues for this adoptive mother related to her mother[]s own mental illness which lead to the disruption of the placement. The children were returned to their previous foster parents, who were not interested in adoption. DCS began looking for an adoptive family.

A further section 366.26 hearing was held on December 30, 2005. An adoptive home had not yet been located. The juvenile court ordered long-term foster care as the permanent plan, but did not terminate parental rights.

The first permanency planning review hearing was held on June 28, 2006. Father was present and out of custody, on parole. DCS had not yet found an adoptive home for the children. Father attended weekly supervised visits since being released from custody in April 2006. Father attended a substance abuse program, parenting, and other programs while incarcerated, but was not at the time of the hearing involved in any services, despite being ordered to attend a domestic violence program as a condition of his parole. Father and mother lived briefly in a sober living home, but at the time of the hearing were without a residence. The two older children sometimes engaged in overeating behaviors to, in the social workers opinion, manage emotional reactions or anxiety and all three children were in counseling to address grief and loss issues and the uncertainty of their present circumstances. The next permanency planning review hearing was set for December 28, 2006, but the parties were ordered to return on September 26, 2006, to consider how plans for placement were proceeding and to determine whether to set a section 366.26 hearing.

At the September 26, 2006, appearance review, DCS reported that a prospective adoptive home had been found and that pre-placement visits would begin in early October, with possible placement in mid-October.

On October 2, 2006, DCS asked that the weekly visits with father and mother be scaled back to monthly visits because the prospective adoptive parents lived out of the area and could only transport the children once per month. Father objected to the change, and to the out-of-county placement, but the juvenile court granted the change in visitation.

The children were placed in the prospective adoptive home on October 26, 2006. The prospective adoptive parents transported the children for the first of their scheduled monthly visits with father and mother on November 16. The children reacted negatively when told the night before that they would visit their parents. The two younger children cried, and the oldest child became withdrawn. The two older children complained of stomach aches on the car ride to the visit, and the oldest threw up. The visit itself was not especially problematic. For several days after the visit, the two older children exhibited aggressive behaviors. J.F. choked A.F. and, when punished, reacted by screaming and hitting his head on the floor. When the social worker visited four days after the visit, the children appeared anxious and kept coming into the room where the social worker and prospective adoptive mother were talking. The social worker opined that the children may have been concerned that the social worker had arrived to remove them from this placement, as had happened in their previous prospective adoptive placement after they began to act out. On November 22, 2006, DCS asked the juvenile court to suspend visitation with the parents because of its detrimental effect on the children and their chances for a successful adoptive placement. The court ordered visitation suspended, pending the further permanency planning review hearing scheduled for December 28, 2006.

On November 28, 2006, father filed a section 388 petition asking the court to modify its orders and either return the children to his custody or, in the alternative, to grant him further reunification services, liberalize visitation, and order a bonding study to evaluate the parent/child relationship. On December 27, 2006, DCS filed an addendum report opposing the petition. On December 28, 2006, mother also filed a section 388 petition. The December 28, 2006, permanency planning review hearing was continued to January 11, 2007, to allow the parties to respond, and to review the section 388 petitions and responses.

On January 11, 2007, the juvenile court denied fathers request for an evidentiary hearing on his section 388 petition, and so the matter proceeded by argument. The court denied the petition, set the matter for a section 366.26 hearing on April 11, 2007, and suspended visitation. This petition followed.

Discussion

1. Summary Denial of Fathers Section 388 Petition

Father first contends the juvenile court erred when it summarily denied his section 388 petition for modification without a hearing. We review the courts decision for abuse of discretion. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)

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 reAnthony W., supra, 87 Cal.App.4th at p. 250.) The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would support a favorable decision on the petition. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)

Here, the petition and supporting documents alleged no facts showing that a change would be in the childrens best interests. [S]ection 388 makes clear that the hearing is only to be held if it appears that the best interests of the child may be promoted by the proposed change of order, which necessarily contemplates that a court need not order a hearing if this element is absent from the showing made by the petition. (In re Zachary G. (1999) 77 Cal.App.4th 799, 807.) The petitions statement on the best interest of the children was: Minors have behavioral issues which have prevented placement in an adoptive home until just recently. Minors are strongly bonded to father and the bond is such that it should not be terminated. The children are currently in [a planned permanent living arrangement] and no section 366.26 hearing is pending.

Thus, the main points in fathers petition were that that the children might not be adoptable and they have a strong bond with him. The facts contained in fathers declaration attached to the petition that support these conclusions are: 1) [m]y children are always happy to see me and we enjoy our time together; 2) the children have had serious behavior problems that may have interfered with the previous adoptive placement; and 3) father believes placement with him is in their best interest because they have not yet bonded with the prospective adoptive parents. The rest of the petition and attachments address the first prong of the inquiry whether there were changed circumstances.

We conclude that the juvenile court did not abuse its discretion when it found that the petition and attachments did not establish a prima facie case that a change in court orders would be in the childrens best interest. First, whether the children are happy to see father during visits does not determine whether it would be in their best interest to live with him. The childrens therapist told the social worker that what the children enjoyed most about visiting with father was getting the treats and gifts that father and mother brought, and that they did not seem particularly attached to either parent. DCSs response to fathers petition included a letter from this therapist summarizing her observations of the children from December 2005 until October 2006. The therapist noted that the two older children were confused about visitation because they were unclear what purpose their parents had in their lives. Both minors demonstrated indifference in having a relationship with them. The youngest child identified father and mother as the people and was unable to identify them as her parents. The therapist also noted that, All three children continued to demonstrate complete indifference toward their biological parents. Thus, although the social workers reports do support fathers assertion that the children seemed to enjoy visiting with him, the petition does not make a prima facie showing that the children are so bonded with father that they should be returned to him, or denied an adoptive home while waiting for him to complete his service plan.

Second, father did not make a prima facie case that the childrens behavioral problems made them unadoptable and that is was in their best interest to be returned to him. The record clearly shows that the first adoption failed in large part because the potential adoptive parents were not emotionally ready to adopt these three children. In addition, the children had been in this prospective adoptive placement for two and one-half months at the time the juvenile court denied the hearing on the section 388 petition, and the adoptive parents were committed to adopting the children, even after dealing with the childrens negative behaviors stemming from the November 16, 2006, visit with the parents.

Third, any lack of bonding with the prospective adoptive parents (which we assume for the purpose of this argument only) would only mean that separation from them to return to fathers care would not be as traumatic as if the bonding had already taken place it does not establish that it would be in the childrens best interest to be returned to their father in the first place.

To conclude, fathers petition does not establish a prima facie case that it would be in the childrens best interest to return to their father or be denied the opportunity to be adopted while father received additional services. Thus, the juvenile court did not abuse its discretion when it summarily denied the section 388 petition without a hearing.

2. Denial of Fathers Section 388 Petition

For the same reasons that the juvenile court did not abuse its discretion when it denied father a hearing on his section 388 petition, the court did not abuse its discretion when it denied the petition.

3. Visitation

Fathers third contention is that the juvenile court erred when it suspended his visitation with the children pending the section 366.26 hearing.

In any case in which the court orders that a hearing pursuant to Section 366.26 shall be held . . . [t]he court shall continue to permit the parent or legal guardian to visit the child pending the hearing unless it finds that visitation would be detrimental to the child. ( 366.21, subd. (h).) Thus, visitation may be suspended if the court finds that the visits are detrimental to the children. (In re Luke L. (1996) 44 Cal.App.4th 670, 679; In re David D. (1994) 28 Cal.App.4th 941, 954.) Courts have also applied a best interest analysis in determining whether to suspend or terminate visitation. (See, e.g., In re Daniel C. H. (1990) 220 Cal.App.3d 814, 838-939; In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1132, disapproved on other grounds in People v. Raley (1992) 2 Cal.4th 870, 893; In re Elizabeth M. (1991) 232 Cal.App.3d 553, 569 [sibling visitation].) The definition of such a right necessarily involves a balancing of the interests of the parent in visitation with the best interests of the child. In balancing these interests, the court in the exercise of its judicial discretion should determine whether there should be any right to visitation . . . . [Citation.] (In re Elizabeth M., supra, at p. 569, quoting In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.)

In reviewing a juvenile courts visitation order, we apply the deferential abuse of discretion standard. (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465.) Even when the evidence leads to two or more reasonable inferences, the reviewing court cannot substitute its decision for that of the juvenile court. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) Instead, the juvenile courts decision must be upheld unless it exceeds the bounds of reason. (Ibid.)

Here, the juvenile court did not abuse its discretion when it determined that continued visitation between the children and father was detrimental and terminated the visits. First, as described above, the childrens reactions to the single visit with their parents after they began to live with their prospective adoptive parents, both before and after the visit, were extremely negative and indicated that the visit caused them a great deal of stress. Second, the childrens therapist had reported that the children were confused about continuing to visit with their parents at the same time that they were preparing to move in with the prospective adoptive parents. Third, even receiving Christmas presents from their parents, brought by the social worker, caused the children considerable stress and insecurity. The childrens reactions when asked if they wanted the presents were mixed. When the children received the presents, they were initially pleased with the gifts, although the social worker described them as somewhat restrained about their excitement. The prospective adoptive mother told the social worker that, when she later asked the children how they felt about receiving the presents, J.F. said I dont know, and M.F. said I like them but I dont like [father] cause [sic] he hits me. For the next several days, A.F. became defiant, angry, and clingy, so much so that the prospective adoptive mother contacted the agency social worker to come to the home and work with A.F. A.F. and J.F. reverted to their food binging behaviors. A.F. told the prospective adoptive mother that the presents made her mad, but that she felt better once they were put away. Fourth, the social worker expressed the opinion that the children do appear to be reacting to parental visitation in a manner that may disrupt the childrens ability to continue building a strong and solid attachment to their [concurrent placement] family.

Based on these factors, we conclude that the juvenile court did not abuse its discretion when it suspended visitation pending the section 366.26 hearing.

Disposition

The petition is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Ramirez

P.J.

/s/ Richli

J.

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Analysis and review provided by San Diego County Property line attorney.

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

^[2]The firearms included a sawed-off shotgun. Father pled guilty to a felony possession and received three years of probation.

^[3]Mother is not a party to this appeal.

^[4]Welfare and Institutions Code section 5150 provides for a person who appears to be a threat to others or to himself/herself, because of a mental disorder, to be taken into custody and held for up to 72 hours for treatment and evaluation.