Opinion
B166911.
11-21-2003
In re ANGEL A., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. PEDRO A., Defendant and Appellant.
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant. Lloyd W. Pellman, County Counsel, and William D. Thetford, Senior Deputy County Counsel, for Plaintiff and Respondent.
Pedro A. (Father), the father of Angel A., born in February 1999, appeals from an April 18, 2003 order denying, without a hearing, his Welfare and Institutions Code section 388 petition for modification of a March 8, 2002 order terminating family reunification services and setting a permanent plan hearing. Father sought Angels return or additional reunification services. We affirm the order because Father failed to make a prima facie showing that modifying Angels placement by removing him from his legal guardians, where he had lived for almost three of his four years, might be in Angels best interests.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2000, Angel, then 16 months old, was placed in foster care with three older half siblings after they were detained as a result of a call to the Child Abuse Hotline reporting that Angels mother, Aida G. (Mother), and Father were abusing alcohol and were incapable of caring for the children. Mother had a total of ten children from eight different relationships; two of her children were adults. Mother and Father had been involved for the past five or six years and Angel was the only child they had together. Mother, who admitted having a long-standing alcohol problem, had checked herself into a six-month alcohol recovery center, but by July 2000 Mother wanted to leave the program. Father denied he had an alcohol problem and had not sought counseling or treatment by July 2000.
It was Mothers adult son who reported her to the authorities. According to Mother, two of her ten children died as infants. This dependency proceeding was commenced with respect to the six younger children, of which Angel was the youngest. The oldest of the six, Miguel N. (age 17½), remained at large, refused to be detained, and was living with a family friend. Fifteen-year-old Lizet R. was placed with her adult half sister. Placed together in the same foster home with Angel in July 2000 were his three half siblings Nancy R. (age 13), Lorena G. (age 8), and Deisy G. (age 6).
On July 17, 2000, the court sustained a petition declaring that Angel was a dependent child pursuant to the provisions of Welfare and Institutions Code section 300, subdivision (b), based on his parents alcohol abuse, which rendered them incapable of providing or unable to provide for his regular care. (Further statutory references are to the Welf. & Inst. Code.) A July 17, 2000 court-ordered disposition case plan required Father to attend parent education and an alcohol program with random testing.
Mother and Father each attended four sessions of an alcohol recovery program and then they dropped out. In October 2000 they were terminated from the program due to lack of attendance. In a January 2001 report, the Los Angeles County Department of Children and Family Services (DCFS) stated that Angel was doing well in his foster home. Although in July 2000 Angel had arrived at the foster home underweight, unhealthy, and unable to walk or eat food with a spoon, he was then able to walk more on his own and was eating more. Mothers visits had been "inconsistent." In January 2001, the court modified the case plan to require that Father participate in a Spanish-speaking alcohol program with random testing. The court also ordered that the parents were to have monitored visitation with the children for a minimum of four hours per week.
In July 2001, DCFS reported that the parents had been consistent in visiting with their children and that Mother was complying with the case plan as she had completed parenting classes and had enrolled in an alcohol program with random testing. On an unannounced visit by the social worker to the home of Mothers adult daughter Janet G., where the minor Lizet R. was residing, the social worker discovered that Mother and Father were residing temporarily with Janet G. Mother and Father were then both unemployed and had no other place to live. DCFS concluded that "[a]lthough the parents have been in compliance with the Court orders it appears to be [too] early to determine that the parents would be committed to a long term change of life free of alcohol. They have to demonstrate that they can obtain stable housing, stable source of income and the ability to obtain available resources to adequately supervise the children."
In August 2001, Father provided DCFS with certificates of completion indicating that in June 2001 he had completed a three-month live-in drug and alcohol program and he had completed a parenting class. Father also had been testing negative for alcohol from February through July 2001. In August 2001, DCFS recommended liberalizing Fathers visits to unmonitored visits on the condition that he participate in an outpatient alcohol treatment program with random testing. On August 8, 2001, the court found that the parents were in compliance with the case plan and ordered that they were to have unmonitored visits with the children and that DCFS had discretion to liberalize visits to include weekend overnight visits.
A December 2001 DCFS report stated that Angel continued to thrive in the home of his foster parents and was receiving regional center services for speech therapy. Mother and Father resided with Mothers adult daughter and had weekend overnight visits with the children until October 2001, when Mother and Father moved into a rehabilitation center after an argument with Mothers adult daughter. Although DCFS had provided referrals to the parents for housing, they had not yet obtained stable housing. DCFS also was informed that Mother was drinking again with her friends and was intoxicated during a visit with the children.
A January 2002 DCFS report stated that Mother and Father had stopped alcohol testing in August 2001; the parents claimed that at the time of the August 2001 court hearing, their attorneys advised them not to test anymore. On December 25, 2001, Mother and Father both were intoxicated when they arrived for a visit with their children, and they continued to drink beer during the visit. Mothers adult son got into a physical altercation with Father about their drinking. On January 8, 2002, the court set a contested section 366.22 review hearing for March 8, 2002.
The DCFS report for the March 2002 hearing stated that Mother admitted drinking about 10 beers to celebrate the holidays on December 25, 2001, and January 1, 2002, and that she had passed out after drinking. Father also admitted drinking a few beers during the holiday season. In accordance with a referral by DCFS to a no-cost alcohol testing program, Mother and Father tested on January 29, 2002, but did not appear for subsequent testing. In February 2002, Mother and Father moved out of the rehabilitation center and temporarily moved into the garage of one of Fathers relatives. After the hearing on March 8, the court terminated family reunification services, set a permanent plan hearing for July 8, 2002, and ordered that the parents visits with the children be monitored.
The July 2002 DCFS report stated that the foster parents were interested in becoming the childrens legal guardians but were not interested in adoption. The foster parents did not want to separate Angel, Nancy, Deisy, and Lorena because the children provided emotional support for each other. Angel continued to receive regional center services for developmental delays; according to his doctor, Angel was in good health but underdeveloped for his age. Angel had many limitations due to prenatal alcohol exposure and was also "micro cephalic," a condition in which the head is smaller than normal. DCFS recommended that the foster parents be appointed the legal guardians for Angel and his three sisters. After a hearing on July 8, 2002, the court continued the matter to July 29 for a supplemental DCFS report regarding issues of the quality of the nutrition and clothing provided to the children by the foster parents. Mother had complained about the food and clothing provided the children by the foster parents. DCFS subsequently filed a report stating that the children were receiving adequate food and clothing in the foster parents home.
On July 12, 2002, Father filed a section 388 petition for modification of the March 8, 2002 order terminating family reunification services, seeking to have Angel placed with him or in the alternative for further family reunification services. Father opposed the plan of legal guardianship and requested a plan of long-term foster care if Angel could not be placed with him. Father alleged that he visited Angel regularly and in March 2002 had begun an outpatient alcohol recovery program. On July 29, 2002, the court continued the permanent plan hearing under section 366.26 to September 24, 2002. On July 30, 2002, the court set Fathers section 388 petition for a hearing on September 24, 2002, to be followed immediately by a permanent plan hearing.
The DCFS report for the September 24, 2002 hearing stated that the parents did not have a stable source of income and had failed to secure suitable housing. In August 2002, Father contacted DCFS and informed the social worker that he and Mother had moved. The social worker visited the parents address to evaluate the suitability of the home in September 2002, but the parents were not home; Mothers niece stated that the parents were renting one of the bedrooms in her three-bedroom house, where she lives with her husband and two children. After the last court hearing in July, the parents had visited the children only once. During a home visit in August 2002, Angels three older sisters told the social worker that they wanted to remain in their foster parents home, where they felt happy and secure. The children also expressed concern about Mothers drinking problem and their parents transient lifestyle.
At the September 24 hearing on Fathers section 388 petition, the court accepted an offer of proof that Father would testify that in July 2001 he had completed his parenting class and his treatment for substance abuse and anger management; beginning in March 2002, he was participating in an outpatient drug-free program; and he had safe and secure housing and was in a position to take care of Angel. The court found that although the parents had "substantially complied" with the case plan, they had not yet completed it, and the best interests of the children would not be promoted by the proposed change of order.
On the section 366.26 hearing, the court heard testimony from the foster mother and determined that it was in the childrens best interests that a guardianship be granted. In an October 25, 2002 order granting the guardianship, the court found that termination of parental rights would be detrimental to Angel. Citing Angels special needs, the court continued the parents monitored visitation but gave DCFS the discretion to liberalize visitation.
The order appointing the foster parents as legal guardians provides in pertinent part that "[t]ermination of parental rights would be detrimental to the child because: [¶] a. The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. [¶] . . . [¶] d. The child is living with a relative or foster parent who is unable or unwilling to adopt because of exceptional circumstances, but is willing and able to provide the child with stable and permanent home, and removal would be detrimental to the child."
The guardianship papers were filed on October 25, 2002. The court retained jurisdiction over the guardianship. At a review hearing on March 7, 2003, Fathers counsel stated that Father had handed him some documents and that Father would be filing another section 388 petition and was requesting liberalized visitation. The court ordered that DCFS had discretion to liberalize the visitation after evaluating the parents progress in their programs.
On April 10, 2003, Father filed a petition for modification under section 388, seeking to modify the March 8, 2002 order terminating family reunification services and setting a permanent plan hearing. Father requested placement of Angel in his home or in the alternative further family reunification services. The petition alleged that Father had completed a live-in drug rehabilitation program, an outpatient rehabilitation program, and parenting classes. Attached as exhibits to the petition were completion certificates and counselors letters regarding Fathers participation in those programs. The documents indicated that as of March 27, 2003, Father had completed an outpatient drug-free program, which Father attended three times per week for 12 months. As part of this program, Father had been randomly screened for drug use and his tests were negative. In July 2001, Father had completed classes for rehabilitation of substance abuse and anger management and classes in parenting. The petition also alleged that Father visited Angel regularly.
On April 18, 2003, the court denied the petition without a hearing on the ground that there was no showing that return to Fathers home would be in Angels best interests and there was "no testing by Father to show he is off drugs." Father filed a timely notice of appeal from the April 18, 2003 order. His principal argument on appeal is that the summary denial without a hearing on his petition constituted reversible error and a violation of his due process rights because he made a prima facie showing for a full evidentiary hearing under section 388.
DISCUSSION
"Section 388 allows a person having an interest in a dependent child of the court to petition the court for a hearing to change, modify, or set aside any previous order on the grounds of change of circumstance or new evidence." (In re Anthony W. (2001) 87 Cal.App.4th 246, 250 (Anthony W.).) The parent seeking modification must make a prima facie showing to trigger the right to proceed by way of a full hearing. (Ibid .) To warrant a full hearing, case law has interpreted section 388 to require both a showing of a change of circumstances and a showing that the proposed change of order is in the best interests of the child. (In re Daijah T. (2000) 83 Cal.App.4th 666, 672 (Daijah T.).)
Although the petition should be liberally construed in favor of its sufficiency (Daijah T., supra, 83 Cal.App.4th at p. 672), conclusory allegations are not sufficient. (Anthony W., supra , 87 Cal.App.4th at p. 250.) "Thus, if the petition presents any evidence that a hearing would promote the best interests of the child, the court must order the hearing." (In re Angel B. (2002) 97 Cal.App.4th 454, 461 (Angel B.).) But, if the liberally construed allegations of the petition do not show changed circumstances such that the childs best interests might be promoted by the proposed change of order, the dependency court need not order a hearing. (Ibid.; Anthony W., supra, 87 Cal.App.4th at p. 250.) We review the juvenile courts summary denial of a section 388 petition for abuse of discretion. (Anthony W., supra, 87 Cal.App.4th at p. 250.)
Cases have held that simple completion of educational programs, including drug counseling, does not, in and of itself, show prima facie that either the requested modification or a hearing would be in the minors best interests. (Angel B., supra, 97 Cal.App.4th at pp. 463, 464—465; see also Anthony W., supra, 87 Cal.App.4th at p. 251.) "In addition, as in any custody determination, a primary consideration in determining the childs best interests is the goal of assuring stability and continuity. [Citation.] When custody continues over a significant period, the childs need for continuity and stability assumes an increasingly important role. [Citation.] That need often will dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child." (Angel B., supra, 97 Cal.App.4th at p. 464.) "After the termination of reunification services, a parents interest in the care, custody and companionship of the child is no longer paramount. [Citation.] Rather, at this point, the focus shifts to the needs of the child for permanency and stability. [Citation.] In fact, there is a rebuttable presumption that continued foster care is in the best interest of the child . . . . A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, what is in the best interest of the child." (Ibid.)
The instant petition did not make a prima facie showing that the new evidence or changed circumstances indicated that a change of placement might be in Angels best interests. The only reference to Angels best interests in the petition was the conclusory allegation that "[i]t would be in the minors best interest to be placed with Father." Although Father showed that he was doing well in his alcohol rehabilitation program and had completed various classes, the petition contained no allegations and no information showing that he had obtained employment or had suitable housing for Angel. Without any information regarding Fathers employment or that he would be able to provide Angel with adequate housing, Father failed to make a factual showing to support the petitions conclusory assertion that it would be in Angels best interests to be placed with him. (See, e.g., Anthony W., supra, 87 Cal.App.4th at pp. 250—251.)
Although Mothers niece asserted that Mother and Father were living in her home in El Monte in September 2002, Fathers April 10, 2003 petition listed his address as 3611 Whittier Boulevard in Los Angeles, the address for the live-in drug rehabilitation center where the parents previously had lived from October 2001 until February 2002.
Even if we assume, for the purpose of this appeal, that Father was indeed sober, had complied with the case plan, and had adequate housing, those facts alone are not sufficient to require a hearing on his petition because they do not indicate that Angels best interests would be served by a modification of his placement. (See, e.g., Angel B., supra, 97 Cal.App.4th at p. 465.) Father made no showing how it would be in Angels best interests to remove him from his safe and secure placement with his guardians, where he had lived for almost three years, in order to continue reunification with a Father who was then entitled only to monitored visitation, had a history of drinking, and had relapsed in December 2001, during the reunification period.
Father argues that the juvenile courts previous ruling — granting the guardianship and finding that a termination of parental rights would be detrimental to Angel — established as a matter of law that placement with him would be in Angels best interests. Father asserts that the previous order acknowledged "that the relationship between Pedro and Angel was so great as to result in significant harm to the child if legally severed." No authority is cited to support Fathers assertion that a determination not to terminate his parental rights to Angel has legal significance with respect to his section 388 petition seeking a modification as to Angels placement. That Father was able to maintain his parental rights does not resolve the issue of whether a modification of Angels placement would be in Angels best interests. Fathers reliance on section 202, subdivision (a) is also inapposite, as section 202, subdivision (a) is a general provision and does not purport to supplant the statutory scheme set out in section 366.26 to provide stable and permanent homes for dependent children.
Section 202, subdivision (a) provides: "The purpose of this chapter is to provide for the protection and safety of the public and each minor under the jurisdiction of the juvenile court and to preserve and strengthen the minors family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare or for the safety and protection of the public. When removal of a minor is determined by the juvenile court to be necessary, reunification of the minor with his or her family shall be a primary objective. When the minor is removed from his or her own family, it is the purpose of this chapter to secure for the minor custody, care, and discipline as nearly as possible equivalent to that which should have been given by his or her parents. This chapter shall be liberally construed to carry out these purposes."
In sum, Father failed to make a prima facie showing that a modification of placement might promote Angels best interests. There was no denial of due process, abuse of discretion, or error in the courts summary denial of Fathers section 388 petition.
DISPOSITION
The order is affirmed.
We concur: ORTEGA, Acting P. J., VOGEL (MIRIAM A.), J.