Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County. Terry Truong, Juvenile Court Referee. L.A. Super. Ct. No. CK 08345
Kimberly A. Knill, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
ROTHSCHILD, J.
Appellant Bobby G. appeals from orders pursuant to Welfare and Institutions Code sections 366.26 and 388 terminating his parental rights to his daughter D.G. (born in 2005) and denying his section 388 motion. He contends the trial court abused its discretion by denying his section 388 petition without an evidentiary hearing. We disagree and affirm.
All undesignated code section references are to the Welfare and Institutions Code.
BACKGROUND
When D.G. was born, she and her mother, Margaret Y., who is not a party to this appeal, tested positive for cocaine. The Los Angeles County Department of Children and Family Services (DCFS) placed D.G. in a foster home. On August 30, 2005, DCFS filed a section 300 petition regarding D.G. and her older half-siblings, who also are not involved in this appeal. The agency alleged failure to protect and sibling abuse under section 300, subdivisions (b) and (j). In its report for the detention hearing, DCFS noted that Margaret stated that Bobby was D.G.’s father and was incarcerated, but Margaret did not know where. The DCFS was attempting to locate him.
On August 30, 2005, at the detention hearing, Bobby appeared in custody. His counsel reported that he was scheduled to be relocated from the county jail to a state prison. Although Bobby was not named in the petition, he submitted to the court’s jurisdiction temporarily. The court ordered family reunification services for both parents.
On four separate dates around mid-September 2005, a DCFS dependency investigator attempted to contact Bobby and Margaret regarding the petition and left messages to which neither parent responded. On September 15, 2005, the investigator tried to meet Bobby in person at the county jail but was informed that he had been relocated to the Wayside Detention Center. The investigator could not meet with Bobby there because the facility was locked down.
On September 28, 2005, DCFS filed a first amended petition adding a new count, b-5, alleging that “[Bobby G.] has an extensive criminal history including but not limited to eighteen felony convictions for the possession, sale and transportation of narcotics and violation of parole, which conduct endangers [D.G.’s] physical and emotional health, safety, and well being, creates a detrimental home environment and places [her] at risk of physical and emotional harm and damage.” DCFS warned that it might seek an order pursuant to section 361.5 that Bobby and Margaret receive no reunification services, allowing D.G.’s case to proceed directly to permanency planning. In its jurisdiction/disposition report filed on the same date, DCFS stated that Bobby had an “extensive criminal history” dating back to 1984 and including numerous felonies, some of them violent, resulting in sentences totaling 20 years.
On October 12, 2005, Bobby was transferred to North Kern State Prison. Six days later, the dependency investigator telephoned the facility and spoke to Bobby’s prison counselor, who told her that Bobby was currently “in ‘reception’” and would be unable to make phone calls for two or three months. On October 26, 2005, DCFS filed a second amended petition that included the same count b-5 regarding Bobby. The court continued the jurisdiction/disposition hearing repeatedly because DCFS was unable to contact Bobby, Margaret, or the father of D.G.’s half-siblings, who was also incarcerated.
On January 5, 2006, the court held the jurisdiction/disposition hearing after Bobby and the other father received proper notice and waived attendance and the court found that DCFS had been duly diligent in trying, unsuccessfully, to locate Margaret. The court sustained the petition. It ordered no family reunification services for any of the parents, but it ordered monitored visits for Bobby “by a DCFS-approved monitor in consideration of the rules of incarceration” pursuant to section 361.5, subdivision (f). The court set a section 366.26 permanency hearing for May 9, 2006, which was later continued to August 31, 2006.
On May 11, 2006, a DCFS social worker sent notice of the section 366.26 hearing to Bobby at the Kern County prison facility, but on June 15, the social worker learned that he had been transferred to the California Men’s Colony in San Luis Obispo. On July 19, 2006, the latter facility reported that on June 30, Bobby had been transferred to the California Medical Facility in Vacaville. On July 19, the social worker served a section 366.26 notice by facsimile to the facility’s litigation department, which served Bobby in person.
Meanwhile, in a status review report filed on June 26, 2006, DCFS noted that D.G. was doing well with her foster mother, who was eager to adopt her. On June 26, 2006, the court held a review of permanent plan (RPP) hearing and ordered D.G. to be placed with her foster mother as the permanent plan. The court continued the RPP hearing to December 18, 2006.
On August 31, 2006, DCFS filed a section 366.26 report stating that there had been no contacts between the children and their parents, and that the parents, including Bobby, had made no attempt to contact the DCFS social worker. Regarding D.G., the agency recommended that “parental rights be permanently severed and that [D.G.] be placed for adoption once publication [of notice] for [Margaret] is completed.” The agency further recommended no visits between D.G. and her parents. In its report for the December 18, 2006 RPP hearing, DCFS repeated these recommendations.
On August 31, 2006 and January 23, 2007, the court continued the section 366.26 hearing and ordered that “visits remain as previously ordered.” The hearing was reset for February 15, 2007. On January 31, 2007, the DCFS social worker sent notice and a waiver of attendance form for Bobby to complete to the California Men’s Colony but received no response until February 21, when the Men’s Colony reported that Bobby had been transferred to the Atascadero State Hospital. The court continued the hearing to March 29, then to June 12, then to July 27, then to September 5, 2007, mostly due to the difficulty of securing Bobby, Margaret, or another parent’s attendance or waiver of attendance. On June 12, the social worker reported that D.G. had had no contact with her parents. On August 6, 2007, the social worker learned that Bobby had been released from prison on July 22. On August 9, the social worker personally served him with notice of the September 5 hearing.
On September 5, 2007, with Bobby in attendance, the court held the section 366.26 hearing and terminated Bobby and Margaret’s parental rights to D.G., although the court stayed the order until September 13 to allow Bobby to file a section 388 petition. The court again ordered monitored visits for Bobby.
On September 5, Bobby filed a JV-180 “Request to Change Court Order” form petition. He requested visitation and that D.G. be placed with her half-siblings. Under Question 5, “What changed after the judge’s order that would change the judge’s mind?” Bobby wrote, “Change placement plan and find myself to be the biological father of minor.” Under Question 7, “Why would the changes you are requesting be better for the child?” he wrote, “This is the best for [the] child.” At the hearing on September 5, Bobby also requested a DNA test to determine D.G.’s paternity, and custody of her if she was in fact his child. The court observed that it already had found Bobby to be D.G.’s biological father, and that he already was granted visitation. On September 10, the court denied a hearing of Bobby’s section 388 petition, finding that the petition did not state new evidence of a change of circumstances. On September 13, the court lifted the stay and reinstated the September 5 order terminating Bobby and Margaret’s parental rights to D.G. Bobby timely appealed from all appealable orders made on September 5 and September 13, 2007.
DISCUSSION
Bobby contends the dependency court abused its discretion by denying his section 388 petition without hearing evidence or considering the merits. We disagree.
Section 388, subdivision (a), provides, in pertinent part, “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 in the same action in which the child was found to be a dependent child . . . to change, modify, or set aside any order of court previously made[.]” Section 388, subdivision (b)(4) requires the petitioner to set forth “[w]hy that request or order is in the best interest of the dependent child.” Section 388, subdivision (c), further provides, “If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held[.]” A parent “need only make a prima facie showing” of changed circumstances to justify holding a section 388 hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) “A petition under this section must be liberally construed in favor of its sufficiency[,]” and a court may deny a hearing “only if the petition fails to state a change of circumstance or new evidence that even might require a change of order or termination of jurisdiction.” (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) We review a trial court’s refusal to grant a section 388 hearing for abuse of discretion. (See id. at p. 460.) A court abuses its discretion when it exceeds the bounds of reason by making a decision that is arbitrary, capricious, or patently absurd. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Even construing Bobby’s section 388 petition liberally, it does not make a prima facie showing of changed circumstances or explain why a change in the court’s orders would be in D.G.’s best interest. Bobby’s terse petition effectively offers no information or illumination on either point. Accordingly, we cannot conclude that the dependency court acted arbitrarily or capriciously in refusing to hear the petition.
Moreover, even if the court had heard Bobby’s petition, we fail to see how he could have obtained a better outcome. The court never ordered reunification services for Bobby, and where reunification services have been terminated or never ordered, parental rights and family reunification are not the court’s primary concern, and the best interest of the child, particularly the child’s need for a permanent and stable home, is paramount. (In re Angel B., supra, 97 Cal.App.4th at pp. 464-465.) It is unclear how Bobby ever could show that visitation with a father D.G. has never seen and does not know, and whose own life record reflects chronic instability, could contribute to her permanency and stability. (See id. at p. 465.) Even assuming that Bobby’s petition contains at least one implicit changed circumstance—he was incarcerated, and now he is not—the required showing as to D.G.’s best interest remains both absent and virtually impossible. Indeed, Bobby also never explains in his appellate brief how visitation would be in the best interest of D.G. Instead, he argues that DCFS failed to arrange visits with D.G. the whole time he was incarcerated and thus denied him any chance to establish the close parental relationship that might qualify for the exception to termination of parental rights under section 366.26, subdivision (c)(1)(B)(i).
Section 366.26, subdivision (c)(1)(B)(i), requires a showing that “(t)he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” To show sufficient benefit from continuing the relationship to avoid termination of parental rights, a “parent must prove he or she occupies a parental role in the child’s life, resulting in a significant, positive emotional attachment of the child to the parent.” (In re Valerie A. (2007) 152 Cal.App.4th 987, 1007; see also In re Derek W. (1999) 73 Cal.App.4th 823, 827 [parental relationship must resemble consistent, daily nurturing, not just frequent and loving contact or a pleasant and emotionally significant bond].)
To the extent Bobby’s appeal concerns the denial of visitation in the past, he has forfeited this issue by failing to raise it before the dependency court. (See In re Anthony P. (1995) 39 Cal.App.4th 635, 641-642.) The record indicates that neither Bobby nor his counsel ever objected to the lack of visitation with D.G., whether at hearings, in court filings, or by letters or phone calls from Bobby to DCFS or the court. Even at the September 5, 2007 section 366.26 hearing, Bobby only requested visitation going forward and did not challenge past denial of visitation. An appellant may not raise new theories on appeal. (Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 874; see also In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1138.)
At the hearing, counsel explained Bobby’s inability to establish an exception to termination of his parental rights as follows: “He has not had any visitation with the child because he has been incarcerated the entire time. So I do not have an offer of proof to give to make a (c)(1)(A) [now (c)(1)(B)] exception under [section 366.26].” Counsel noted that Bobby objected to his parental rights being terminated but did not further mention past lack or denial of visitation.
Even assuming that this issue were not forfeited, we would find no error. When the court granted Bobby visits with D.G. on January 5, 2006, it conditioned that grant “in consideration of the rules of incarceration.” Although Bobby faults DCFS for not ensuring that the visits occurred, he does not show or even allege that the rules of incarceration made visitation possible. What the record does show is that Bobby was incarcerated in six different jails, prisons, or state hospitals in less than two years, that DCFS found it difficult or impossible to keep abreast of Bobby’s ever-changing location despite repeated efforts to contact him or serve him with notice, and that Bobby apparently never contacted DCFS or the court regarding visitation or his whereabouts. Section 361.5 requires a good faith effort to provide reasonable services, including visitation, to families. (In re Monica C. (1995) 31 Cal.App.4th 296, 306.) A child welfare agency, however, is not obliged to “track [a parent] continually throughout the dependency process”; rather, an agency “has a duty initially to make a good faith attempt to locate the parents of a dependent child. Once a parent has been located, it becomes the obligation of the parent to communicate with the [agency] and participate in the reunification process.” (In re Raymond R. (1994) 26 Cal.App.4th 436, 441.)
Bobby cites In re Hunter S. (2006) 142 Cal.App.4th 1497 (Hunter S.), in which Division Eight of our district reversed the dependency court’s denial of a section 388 petition by a mother who was denied court-ordered visitation after her reunification services were terminated shortly following her release from prison. (Id. at p. 1501.) The case is distinguishable on several grounds. Significantly, the mother in Hunter S., unlike Bobby, “consistently raised the issue of the juvenile court’s failure to enforce its visitation order for over two years,” complained about the denial of visitation to both the court and DCFS through counsel and through her own letters, and raised the issue in her petition. (Id. at pp. 1505, 1506.) She also had a preexisting “loving close relationship” with her son for more than five years from his birth until she was incarcerated. (Id. at pp. 1501, 1506.)
In sum, Bobby’s section 388 petition was facially insufficient, he has not shown how visitation with D.G. would be in her best interest, he forfeited the issue of past denial of visitation during his incarceration as an issue on appeal, and he has not shown why the dependency court or DCFS should be blamed for this lack of visitation given the highly unstable circumstances of his incarceration. For all these reasons, we conclude that the court did not abuse its discretion by denying his petition without a hearing.
DISPOSITION
The orders are affirmed.
We concur: VOGEL, Acting P. J., JACKSON, J.
(Judge of the L. A. S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)