Opinion
G045360
01-26-2012
In re C.S. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. DAVID S., Defendant and Appellant.
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant. Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel for Plaintiff and Respondent. No appearance for the Minors.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. Nos. DP018915, DP018916)
OPINION
Appeal from an order of the Superior Court of Orange County, Richard Lee, Judge. Affirmed.
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel for Plaintiff and Respondent.
No appearance for the Minors.
This is the second appeal in this case by David S., who is incarcerated in Nevada, awaiting trial for the sexual abuse of one of the children involved in this case. In the first appeal, he argued the court failed to give notice and conduct a proper paternity inquiry, and also asserted the court improperly rejected his declaration of paternity. We found no error, concluding that once he received notice, it was David's responsibility to establish that he should have presumed rather than alleged father status. (In re C.S. (May 13, 2011, G044190) [nonpub. opn.].) We concluded the lack of a full adversarial hearing on jurisdiction and disposition did not prejudice David, because given the severity and substantiation of the allegations, it was unimaginable that a different outcome would have resulted. (Ibid.) We also noted that David was free to file a petition under Welfare and Institutions Code section 388 to set aside the prior jurisdiction and disposition orders if he established presumed father status. (Id., fn. 4.)
Subsequent statutory references are to the Welfare and Institutions Code.
While the appeal was pending, David established presumed father status. After remand, he filed a section 388 petition, seeking to unwind a nearly two-year long process and redo the jurisdiction/disposition hearing. The court denied David's petition, and he once again appeals. We find the court did not abuse its discretion when it denied David a hearing on his petition, because David did not establish a prima facie case under the statute. We therefore affirm.
I
FACTS
As stated in our prior opinion: "On September 24, 2009, the Orange County Social Services Agency (SSA) filed a petition under Welfare and Institutions Code section 300 regarding C.S., age 10, and J.S., age 5. The petition alleged failure to protect under subdivision (b), sexual abuse under subdivision (d), and no provision for support under subdivision (g) of section 300.
"The petition alleged that David, the alleged father, had repeatedly sexually abused C.S. (a girl) from the approximate age of three to nine. It was also alleged that the children's mother participated or aided in the abuse, and that both parents had drug and alcohol abuse issues and had engaged in acts of domestic violence. Additionally, David had allegedly physically disciplined C.S., leaving bruises, and had hit J.S. causing emotional pain and distress, while the mother failed to protect them. The petition also claimed that both parents had abandoned the children from January 2008 to September 2009, when the petition was filed, leaving the children in the care of relatives without any provision for support or contact information. At the time the petition was filed, David was incarcerated in Las Vegas, Nevada for charges stemming from the sexual abuse allegations and the mother's whereabouts were unknown. A warrant had been issued for her arrest.
"The detention report discussed the investigation of the sex abuse allegations that had occurred in 2008. C.S. disclosed extensive sexual abuse by David with the complicity of her mother. Allegations of general neglect by both parents were also substantiated, and J.S. told SSA that his father 'hit him hard.' At the time, the mother stated that the father was a 'major' methamphetamine user who was verbally and physically abusive to her and the children, but denied knowledge of sexual abuse.
"The report also stated that in January 2008, the parents, Las Vegas residents, had dropped the children off at a relative's home and were eventually taken in by the maternal uncle and aunt. They continued as the children's caretakers pending detention. The children stated they were happy living with the aunt and uncle. C.S.'s detention interview repeated the extensive allegations of sexual abuse by David.
"The maternal aunt and uncle were interviewed at the time the original sex abuse allegations came to light and after the petition was filed. They told SSA they had been and were willing to continue providing for the children's needs. They also had in their possession various legal documents pertaining to the children, including notarized powers of attorney and birth certificates.
"The detention hearing was held on September 25 with neither parent present. The notice of hearing showed personal service on the attorneys, although the parents' addresses were listed on the form. By then, the mother had been arrested and both were incarcerated in Las Vegas. The court appointed attorneys for them. The aunt and uncle requested de facto parent status and over the objections of the parents' counsel, the request was granted and counsel appointed.
"Due to the nature of the criminal charges against him, David's attorney requested that SSA not ask him about the petition's allegations, and requested that all court correspondence except notices of hearings be handled through counsel. The court detained the children and authorized release to any appropriate relative. No Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901, et seq.) or paternity inquiries took place during the detention hearing.
"David was not interviewed prior to the jurisdiction/disposition hearing. SSA stated that David could not be reached in custody in Nevada regarding disposition. The social worker sent instructions regarding contact by mail and tried to reach David by phone on two occasions without success. On October 1, the social worker sent David an incarcerated parent's packet, which included a guide to dependency proceedings, along with the first chapter of a parenting packet. According to information provided by the Las Vegas District Attorney, if the parents were found guilty on the pending charges, sentences of at least 20 years were anticipated." (In re C.S., supra, G044190, fn. omitted.)
At the jurisdiction/disposition hearing on July 15, 2010, the court found David's attempts to establish presumed father status lacked sufficient admissible evidence, and concluded he therefore lacked the right to contest jurisdiction or dispositional issues. The court found it had jurisdiction, determined that returning the children to their parents would be detrimental, and ordered services for the mother. The court ruled that if David should become a presumed father during the mother's reunification period, SSA was to calendar a hearing to determine a case plan and decide if the father was to receive services. (In re C.S., supra, G044190.) David appealed, and we affirmed the trial court's orders.
We reversed and remanded as to the issue of ICWA notice only.
While the appeal was pending, the social worker made efforts to determine paternity and received the documentation the aunt and uncle had in their possession. J.S.'s certificate of live birth named David as the father. C.S.'s birth registration card did not list a father. The social worker took steps to obtain official birth certificates.
The social worker reported the children remained placed with the aunt and uncle, had no physical problems and were doing well at school. C.S. exhibited emotional and behavioral issues which her doctor stated were a result of "severe sexual abuse." She was diagnosed with posttraumatic stress disorder, reactive attachment disorder, and oppositional defiant disorder. Among her ongoing issues was her willingness to tell the truth. She received both medication and other treatment on a regular basis.
Both children told the social worker they wished to remain with their aunt and uncle, and became "fidgety" when the subject of visits or contact with the parents was discussed. C.S. told the social worker she must be "crazy" to offer contact with the parents after what they did to her. She wanted her aunt and uncle to adopt her.
David remained incarcerated in Nevada and made no attempts to contact the social worker. The social worker attempted to contact him by mail regarding services, and sent him educational material on several occasions, but he did not respond. The social worker recommended terminating services and scheduling a permanency planning hearing pursuant to section 366.26.
In April 2011, David filed a petition under section 388, asking the court to find him the presumed father and hold a new jurisdictional and dispositional hearing. He attached J.S.'s birth certificate to the petition. He stated it would be in the children's best interest to reunify with him, and that he should have the opportunity to defend himself against the allegations made against him.
At the hearing on David's petition, counsel essentially reiterated these arguments, claiming he had been deprived of his due process rights to participate in the jurisdiction/disposition hearing. County counsel argued that even if David established presumed father status, he had not satisfied the requirement that a change in the court's order would be in the best interests of the children. Counsel noted that David was awaiting trial on "horrific sex abuse" charges, he had stopped providing care for the children before detention, and that he had shown little interest in the case and had almost no contact with the social worker. After argument was heard from all counsel involved, the court denied the petition, finding David had failed to establish that unwinding the court's prior findings would be in the children's best interests.
The court then heard David's motion to be granted presumed father status, and after a telephonic hearing with the parents present from jail, the court granted David's request. He then requested services. Both parents said they had no access to classes and difficulty contacting their dependency attorneys. The court ordered the issue of services for David, as well as his request to redo the previous hearings, continued. At the next hearing on April 20, the court ruled that David's request to unwind the jurisdiction and disposition hearing was inappropriate because the appeal was still pending.
This court issued its opinion in the prior appeal on May 13. (In re C.S., supra, G044190.) On June 7, David filed a new section 388 petition, again requesting a new jurisdiction/disposition hearing. He stated it would be in the children's best interests to reunify with him, because J.S. had reported shortly after detention in 2009 that he loved his parents, and he has been unable to see his father due to the sustained petition. Setting aside the prior orders would allow David to present evidence to prove the allegations against him were untrue.
At the hearing on David's petition on June 7, the parents were present telephonically from jail. The court heard argument from all parties on whether he had made a prima facie case for an evidentiary hearing on his renewed petition under section 388. At the conclusion of argument, the court found that David's status as presumed father was not a sufficient change in circumstance to warrant the requested relief. The court noted that no offer of proof was presented, either in the petition itself or at the hearing. Counsel's argument that an evidentiary hearing might show the allegations were untrue was purely speculative. While that was sufficient to deny the petition, the court also found David had presented insufficient evidence regarding the children's best interests. A bare statement that J.S. made in 2009 was not enough, and no evidence at all had been presented as to C.S. The court therefore denied the petition, and David appeals.
One such argument counsel offered was that because C.S. had ongoing issues with truth and veracity, any testimony she might offer as to the abuse was therefore suspect. He failed to note, however, that C.S.'s doctor had opined that her emotional and behavioral issues were the result of "severe sexual abuse." The irony of claiming that C.S. could not be trusted to tell the truth about her abuse because that abuse had led to problems telling the truth speaks for itself.
II
DISCUSSION
David first claims the court erred by denying him a jurisdictional hearing after he was granted presumed father status. Rather than attempting to "modify" an order, he "is asking to adjudicate the petition in the first instance." He then argues separately that the court abused its discretion in denying his second section 388 petition. As David concedes, however, the procedural mechanism to modify any order in dependency court is a petition pursuant to section 388. It is therefore unclear to us what else he might be attempting to argue, and his notice of appeal states that he is appealing the court's denial of his second section 388 petition. That petition, therefore, is what we shall address.
We also reject David's attempt to relitigate issues about his status as alleged father. As we stated in our prior opinion, once David had notice of the proceedings, it was ultimately his responsibility to change his status. (In re C.S., supra, G044190.) David received prompt notice and the proper due process, given his status, at every stage of this case to date.
"The juvenile court's determination to deny a section 388 petition without a hearing is reviewed for abuse of discretion. [Citations.] We must uphold the juvenile court's denial of appellant's section 388 petition unless we can determine from the record that its decisions '"exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." [Citations.]' [Citations.]" (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
In pertinent part, section 388, subdivision (a) provides: "Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order [the] court previously made . . . ." If the petitioning party presents a prima facie case that the statute applies, a hearing should be granted.
"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 child's best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. [Citation.]" (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) "The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition. [Citation.]" (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
David's petition fails on both prongs. The only change of circumstance was David's status from alleged to presumed father. That status has no bearing on the gravely serious allegations against their parents or the evidence in support of those allegations. David's assertion that a contested jurisdiction hearing would change the court's prior orders is mere speculation, supported by not one iota of evidence, not even a declaration by David himself. David argues that he might eventually be found not guilty, like Casey Anthony. While it is difficult to believe that anyone might consider that a persuasive argument, such a mere hope does not meet the standard required for a change of circumstance sufficient to grant a hearing under section 388.
David also ignores the fact that the dependency petition could be sustained even if he is found not guilty in a criminal proceeding.
While David believes he might use C.S.'s trauma to undermine her testimony about the sexual abuse she suffered, he fails to acknowledge that her statements regarding that abuse have remained consistent over a long period of time and to a number of different people. He does not present any other facts that could conceivably support an argument that granting his petition would even suggest a different result.
"[A section 388] petition may not be conclusory. '[S]pecific allegations describing the evidence constituting the proffered changed circumstances or new evidence' is required. [Citation.] Successful petitions have included declarations or other attachments which demonstrate the showing the petitioner will make at a hearing of the change in circumstances or new evidence." (In re Anthony W., supra, 87 Cal.App.4th at p. 250.) David's petition comes nowhere near the evidentiary threshold required to show a change in circumstance sufficient to require a hearing.
Even if David's changed status was sufficient to satisfy the first prong of section 388, we agree with the trial court that an insufficient evidentiary showing was made with regard to the second prong. David claims that SSA "has yet to present how it serves the best interest of these children to have allegations sustained against their parent which may be erroneous and untruthful." Yet it is not SSA's burden to show that unwinding nearly two years of proceedings would not hurt the children, but his burden to show that doing so would affirmatively serve their best interests. It is not enough to present a circular argument that a child's interest is ultimately served by protecting the parent's rights — an evidentiary showing is required.
David offers only one statement, made by J.S. around the time of detention, that he loved his father. That is not enough to demonstrate that his best interests would be served by a further one to two year delay in dependency proceedings, and it speaks not at all to the best interests of C.S. David entirely failed to present actual evidence that granting his petition would be in the children's best interests. Thus, the court did not err by denying the petition.
III
DISPOSITION
The order is affirmed.
MOORE, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.