Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIJ111704. Christian F. Thierbach, Judge.
Dabney Finch, 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.
Leslie A. Barry, under appointment by the Court of Appeal, for Minor.
OPINION
RAMIREZ P. J.
INTRODUCTION
Appellant Fred B., alleged father of minor K.M., appeals the order of the juvenile court denying him a hearing on his Welfare and Institutions Code section 388 petition. Finding no abuse of discretion, we will affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
As we received it, the clerk’s transcript in this case was incomplete and poorly organized. Pages 216-230, which, according to the chronological index included the minute order of April 19, 2007, were missing from the clerk’s transcript filed August 10, 2007, and from the supplemental transcript filed November 8, 2007.
On March 9, 2006, the Riverside County Department of Public Social Services (the department) removed then two-year-old K.M. from the care of his homeless, depressed, suicidal, alcohol-and-drug-abusing maternal grandmother. The social worker investigating the case contacted K.M.’s mother Rickie M. (mother) by telephone in Dallas, Texas, where she was living in a motel room. Mother thought Fred B. was K.M.’s father, although his name was not listed on the birth certificate and he had not been at the hospital when the child was born. She did not know his present whereabouts or how he could be reached and said he “had not been seen since 2002 in San Bernardino.” The social worker pointed out to mother that since K.M. had been born in November 2003, if Fred B. was the child’s father, she must have seen him sometime in the early part of that year. Mother then said there was another man, “Red,” who could possibly be K.M.’s father, but she did not know his whereabouts either.
On March 13, 2006, the department filed a section 300 petition alleging, among other things, that Fred B. was not a member of the household and had failed to make himself available to provide food, clothing, shelter, medical treatment, support, or protection for K.M. On March 14, the juvenile court detained K.M. and set the jurisdiction/disposition (J/D) hearing for April 5. On April 5, the matter was set for contest on May 10.
On March 28, 2006, the social worker spoke to mother again; mother said that she had spoken to Fred B.’s cousin, who had told her that Fred B. was in jail in San Bernardino County and was due to be released in June or July. On March 31, the social worker attempted to contact West Valley Detention Center (WVDC), but got no answer on the telephone after several rings. On May 8, 2006, two days before the contested J/D hearing, the social worker tried again. This time, she was able to reach WVDC and learned that Fred B. had last been incarcerated in November 2005. Also on May 8, the social worker sent a notice of the hearing to the last address WVDC had for Fred B. The social worker’s efforts to contact Fred B. via “Prison Locator” on May 8, 2006, were unsuccessful, but she referred the matter to that entity for further search efforts.
We note that the department’s tardy search efforts, validated by Commissioner Padia as “reasonable,” bear a large part of the responsibility for the delay of this case, as the court at the six-month review hearing would eventually infer.
At the contested J/D hearing on May 10, 2006, counsel for the department, Cynthia Morton, recommended that services be provided for mother, but not for Fred B. since the department could not find him. Commissioner Robert Padia indicated that he had reviewed the department’s declaration of search and found it reasonable. As requested, the court relieved Fred B.’s attorney, Dawn Shipley, of her conditional appointment and followed Morton’s recommendation that Fred B. be denied reunification services pursuant to the provisions of section 361.5, subdivisions (a) and (b)(1). A six-month review hearing was set for November 1, 2006.
Like the department’s, Shipley’s efforts to locate her client were less than diligent. She apparently made just one attempt to call him, at WVDC, the day after her conditional appointment.
In a status review report filed October 13, 2006, the department recommended that reunification services to both parents be terminated. Fred B. had been released from prison on August 30, 2006, and had contacted the social worker on September 15 to request visitation with K.M. He said he had not seen his son since November 13, 2005. A visit was scheduled for October 10, 2006, but Fred B. did not appear. When the social worker called to ask him what had happened, he said that his boss had refused to release him from work.
On November 1, 2006, Fred B. appeared in court for the first time, at the section 366.21 subdivision (e), six-month review hearing. Judge Becky Dugan inquired directly and determined that he had not been contacted by anyone from the department during the entire time of his incarceration from November 2005 to September 2006. After his release, Fred B. had been told he could visit K.M. once a month, and he had had one visit. Fred B. affirmed that he had no question about his paternity of K.M.: “I know.” The court ordered the department to contact mother; if she too had no doubts that Fred B. was K.M.’s father, then the court would change his status to that of a presumed father. The court also ordered the department to file an addendum report to include a background check and a case plan for Fred B., and to increase the frequency of his visits to twice a month. At the end of the hearing, the court admonished Fred B. to “Do your visits and stay in contact with the social worker.” A contested six-month review hearing was set for December 20, 2006.
As with the clerk’s transcript (see fn. 2, ante), there are a number of problems with the reporter’s transcript in this case. It is evident from other references and from the corresponding minute order that although this hearing is labeled “November 1, 2007,” it actually took place on November 1, 2006. In addition, county counsel’s references at the next hearing, on December 20, 2006, all refer to reports supposedly filed in October and December 2007, a clearly impossible sequence.
The record shows Fred B. was actually released on August 30, 2006.
The addendum report filed December 18, 2006, continued to recommend that no services be offered to Fred B. In addition, the report recommended that services to mother be terminated and a section 366.26 hearing be set with adoption as the permanent plan. Fred B.’s criminal record showed that he had been convicted and incarcerated in 2004 for selling drugs and in 2005 for receiving stolen property and for felony possession of a firearm and ammunition. Fred B. had failed to appear for his scheduled “LiveScan” appointment on November 22, 2006, and had not visited K.M. after the November 1 court date. He had explained to the social worker, “I’ve just been so busy with a lot going on right now.”
Fred B. did not appear at the December 20, 2006, hearing. His attorney said she had not had contact with him since the November 1 hearing and she submitted on the department’s recommendation. The court terminated services to mother, offered none to Fred B., and set the section 366.26 hearing for April 19, 2007. Within two months, on February 10, 2007, Fred B. had been arrested for possession of marijuana for sale and violation of parole, and was again incarcerated.
The court’s minute order incorrectly shows “4/19/06.”
On April 4, 2007, Fred B. called the social worker from jail to inquire about K.M.’s well-being. He told the worker that “he did not belong in jail” and had been arrested “for no reason.” On April 23, Fred B., who had been released from jail on April 12, again called the social worker this time to request visitation. Meanwhile, K.M. and his cousin had been placed together in the home of a relative caretaker who wanted to adopt them both. The prospective adoptive parents were committed to providing for K.M.’s safety and development in a loving, clean, safe, and nurturing family environment. On April 19, 2007, the section 366.26 hearing was continued by stipulation of the parties, probably at the request of the department, which was waiting for an adoption application from the caretakers.
There is no evidence that Fred B. was ever given notice of the April 19, 2007, hearing and he did not appear on that date. The court dispensed with further notice to Fred B.
See footnote 2, ante.
On July 18, 2007, the day of the section 366.26 hearing, Fred B.’s attorney filed a section 388 petition (JV-180 form). The petition requested that the order denying Fred B.’s reunification services be changed and that he be given six months of services. As changed circumstances, the petition asserted that Fred B. was diligently working on his case plan, was enrolled in drug court and in college, was consistently testing negative for controlled substances, and wanted services so that he might have a chance to reunify with his child. Fred B. believed the changed order would benefit K.M. because he was committed to a clean and sober lifestyle and desired to be a father to the child. A letter from Fred B.’s parole officer was attached to the petition. The letter confirmed that Fred B. had been enrolled in the San Bernardino County Drug Court Program since April 13, 2007, and that he had had no positive drug tests since he entered the program; that he was diligently working on his recovery through a county mental health program; and that he was enrolled in college. The court indicated that it had read the JV-180 form, but was denying Fred B. a hearing because it could not find that the petition showed how the requested change of order would be in K.M.’s best interest. The court also denied Fred B.’s request that legal guardianship, rather than adoption, be the identified permanent plan, and it terminated his and mother’s parental rights to K.M.
DISCUSSION
Fred B. argues on appeal that the court abused its discretion by denying him a full hearing on his petition.
Standard of Review
We review a juvenile court’s decision to summarily deny a section 388 petition for abuse of discretion. (In re Aaron R. (2005) 130 Cal.App.4th 697, 705.) “[W]hen a court has made a custody determination in a dependency proceeding, ‘“a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].”’” (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Section 388“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.” (§ 388, subd. (a).) There are two parts to the prima facie showing a parent bringing such a petition must make in order to proceed by way of a full hearing: (1) that there is a genuine change of circumstances or new evidence, and (2) that revoking the previous order would be in the best interests of the children. (In re Marilyn H. (1993) 5 Cal.4th 295, 310; In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) While the petition should be “liberally construed” in favor of granting a hearing, if the allegations in a petition so construed do not show changed circumstances such that the child’s best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. (In re Marilyn H., supra,atp. 309; In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) A mere showing of “changing” circumstances is not enough. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) “In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. [Citation.]” (In re Jamika W. (1997)54 Cal.App.4th 1446, 1451.)
Here, the petition and its supporting letter from Fred B.’s parole officer appeared to show that the circumstances of his life may have begun to change during the two months prior to the continued section 366.26 hearing. Fred B. had enrolled in drug treatment and mental health programs, and in college, and he had had several negative drug tests. Even liberally construed, however, in light of the entire factual and procedural history of the case, the petition did not demonstrate that Fred B.’s circumstances had changed so significantly as to make services to him in K.M.’s best interest. Fred B.’s circumstances were only just “changing,” while K.M.’s young life was moving by rapidly. K.M. was two years four months old at the time of his initial removal; he was three years eight months old by the time of the termination hearing; according to Fred B.’s own admissions, he had not seen much of K.M. his whole life. And, except for two visits—one in October and one in November 2006—he had made no effort to see his son thereafter. Fred B. had “a lot going on” in his life and was too “busy.” Meanwhile, the child was thriving and progressing developmentally in the home of relatives who wanted to adopt him and his cousin.
In addition, because Fred B. failed to visit his son at all after the first section 366.21, subdivision (e), hearing, as the court had admonished him to do as a condition of upgrading his paternal status from alleged to presumed, his paternal status never changed. As a presumed father, Fred B. might have been entitled to reunification services; as merely an alleged father, he was not. (§ 361.5, subd. (a); In re Jerry P. (2002) 95 Cal.App.4th 793, 801.) And, as merely an alleged father, the decision about whether Fred B. should receive services lay within the discretion of the juvenile court, which could order services if it determined they would benefit the child. (§ 361.5, subd. (a).)
Unfortunately, there was almost nothing in the record to show that services to Fred B. would benefit K.M. From the time he finally received notice of the dependency in September 2006 to the time of the contested section 366.26 hearing in July 2007, Fred B. demonstrated little real interest in his son or in the proceedings. He did not bother to visit K.M. even one time after the juvenile court authorized twice-a-month visits; he failed to keep in touch with the social worker; he failed to show up for his “LiveScan” appointment; he failed to attend the contested six-month review hearing; two months before the scheduled termination hearing in April 2007, he was rearrested on drug possession and parole violation charges; he did not bother to call the social worker until he had been in jail for two months; and he did not begin any of his remedial programs until April 13, 2007—just a few days before the section 366.26 hearing originally set for April 19.
Fred B.’s assertion that “it is in [K.M.’s] best interests to be with his biological parent” is simply wrong. It may sometimes be in a child’s best interest to be with a biological or “natural” father “who has sufficiently and timely demonstrated a full commitment to his parental responsibilities” (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849), but this does not describe Fred B. or his actions.
DISPOSITION
The judgment is affirmed.
We concur: KING J., MILLER J.