From Casetext: Smarter Legal Research

In re D.W.

California Court of Appeals, First District, Fifth Division
Feb 8, 2011
No. A128344 (Cal. Ct. App. Feb. 8, 2011)

Opinion


In re D.W., a Person Coming Under the Juvenile Court Law. SOLANO COUNTY HEALTH AND SOCIAL SERVICES DEPARTMENT, Petitioner and Respondent, v. TODD B., Objector and Appellant. A128344 California Court of Appeal, First District, Fifth Division February 8, 2011

NOT TO BE PUBLISHED

Solano County Super. Ct. No. J37866

NEEDHAM, J.

Todd B. appeals from orders denying his petition under Welfare and Institutions Code section 388 and terminating his parental rights after a hearing under section 366.26. Appellant contends the juvenile court abused its discretion in summarily denying the section 388 petition without a hearing. We will affirm the orders.

Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.

I. FACTS AND PROCEDURAL HISTORY

The minor was born in August 2007. The following day she was placed in protective custody based on the mother’s history of mental illness, anger management issues, and inability to parent. The mother had four older children, none of whom were in her care.

The mother identified appellant as the biological father, but claimed she had no contact information for him, he had no contact with the minor, he had not provided any support, and she did not want him to have contact with the minor.

A. Allegations of the Dependency Petition

The Solano County Health and Social Services Department (Department) filed a petition in August 2007, contending that the minor came within the provisions of section 300. The minor was detained. An amended petition alleged that appellant’s whereabouts and ability to care for the child were unknown.

Appellant appeared at the jurisdictional hearing on September 18, 2007, and an attorney was appointed for him. The matter was continued to September 25, at which time he was ordered to submit to a paternity test.

An addendum to the report for the jurisdictional hearing indicated that appellant had a long history of mental health issues, with past diagnoses of schizophrenia and schizophrenia with psychosis and a current working diagnosis of bipolar disorder, for which he was prescribed psychotropic medication.

In October 2007, the Department filed a second amended petition under section 300. It alleged that the minor had suffered, or there was a substantial risk she would suffer, serious physical harm or illness as a result of the parents’ failure or inability to supervise or protect her adequately and by their inability to provide regular care for her due to mental illness, developmental disability, or substance abuse. (§ 300, subd. (b).) The second amended petition further alleged that the minor had been left without adequate provision for support, the minor’s siblings were abused or neglected, and there was a substantial risk the minor would be abused or neglected based on the mother’s prior history and refusal to accept services. (§ 300, subd. (j), (g).)

Specifically as to appellant, the second amended petition alleged that his “mental health status, lack of parenting experience and current housing situation impair[ed] his ability to provide safe and adequate care of the infant minor.” (See § 300, subd. (b-6).)

B. Jurisdictional Order

At the continued jurisdictional hearing on October 29, 2007, appellant waived his rights and submitted to an amended allegation under subdivision (b-6) of section 300, which provided: “The alleged father, [appellant], acknowledges issues related to parenting, housing and mental health that impact his ability to provide safe and adequate care of the infant minor.” As so amended, the second amended petition was sustained as to appellant.

The mother requested a contested jurisdictional hearing, which was held on November 9, 2007. The court found that the minor came within the provisions of section 300, subdivisions (b), (g), and (j) and set the matter for a dispositional hearing.

C. Dispositional Order and Paternity Test

The disposition report (filed on November 29, 2007) indicated that appellant had stable employment, had successfully completed a dual diagnosis treatment program, was not abusing drugs, was compliant with his psychotropic medication, and was cooperative and candid with the Department. On the other hand, the report also indicated that appellant had no prior parenting experience and his mental health functioning was a likely cause of his struggle to meet even his own needs as an independent adult. The case plan for appellant required him to complete a parenting education program, visit the minor, obtain and maintain a safe residence for the minor, and comply with medical and mental health treatment.

The disposition report also advised that an adoptability review had determined the minor to be adoptable. The child was in a concurrent planning home that was willing to adopt her if the parents were unable to reunify with the child.

On December 4, 2007, the juvenile court adopted the recommended disposition findings and orders as to appellant, including an order that appellant had to participate in counseling programs addressing “parenting skills, therapy, personal functioning and in-home training on parenting and communication, ” until “terminated by the therapist and/or social worker.” The court also set a contested disposition hearing as to the mother for February 8, 2008.

At the February 8, 2008, dispositional hearing, the court continued the minor in out of home placement and offered reunification services to appellant and to the mother. Based on the results of the paternity test, the court also found appellant to be the legal father of the minor.

D. Six-Month Review

At the six-month review hearing on April 22, 2008, the report (filed on April 15, 2008) advised that appellant had completed a parent education program and obtained a “CPR/First Aid” certification. He did not miss a visit with the minor and had progressed to the point where visits were unsupervised. He remained consistently employed and received additional income through social security benefits, had access to mental health services, consistently visited the minor, and completed his probation. However, his lack of suitable housing and his need to demonstrate the ability to care for the minor for longer periods of time were still barriers to reunification with the child.

The court extended reunification services to appellant and the mother for an additional six months. The court reiterated that appellant must continue to participate in counseling programs addressing parenting skills.

E. Twelve-Month Review

The report for the 12-month review hearing (filed on October 10, 2008), stated that appellant had lost his job as a delivery driver because his driver’s license was suspended following an asthma attack. He still lived in a house with several roommates in an arrangement that appellant acknowledged was inappropriate for the minor. Appellant had not met with the social worker in July, August, or September 2008. Appellant was not visiting the minor on a regular basis and had not visited her at all since May 2008. He missed a scheduled visit with her in September 2008. Due to his failure to maintain contact with the Department, the social worker was unable to verify his participation in mental health services. Although appellant had participated in parenting services in May 2008, the Department was unable to confirm any subsequent participation. The Department recommended that reunification services be continued as to the mother but terminated as to appellant.

At the contested 12-month review hearing on December 4, 2008, appellant failed to appear. The court continued reunification services for the mother. The court terminated reunification services for appellant, however, citing his lack of participation with his case plan during the last reporting period. The court noted that if appellant’s level of participation justified the court’s reconsideration of its order at a future date, he could file a section 388 petition. The court also allowed appellant to continue supervised visits with the minor.

F. Eighteen-Month Review

A status review report for the 18-month review, filed on March 9, 2009, stated that appellant had not requested visitation with the minor during the last reporting period. The minor was determined to be an appropriate candidate for adoption. The Department recommended termination of reunification services to the mother and requested a permanency planning hearing pursuant to section 366.26.

The contested 18-month review hearing began, after several continuances, on June 4, 2009, and continued on July 15, September 9, and October 26, 2009. Appellant did not appear at any of these hearings.

On October 26, 2009, the court terminated reunification services to the mother and set the matter for a section 366.26 hearing.

G. Section 366.26 Report

On February 1, 2010, the Department filed a section 366.26 report recommending termination of the parental rights of both appellant and the mother. At the time the report was filed, appellant was no longer living at the address he provided and his whereabouts were unknown, despite his obligation to advise the Department of any change of address. Between May 2008 and August 6, 2009, appellant had not visited the minor at all. He visited her only twice in 2009 (August 7 and September 18), noting his explanation to be the loss of his job due to an asthma attack. During these visits, the minor kept her distance from appellant because she did not know him.

The minor was determined to be adoptable, and her caregivers were willing to adopt her. There were also families on the adoptions wait list that were interested in adopting children of the minor’s age. The minor had been placed in the concurrent home continuously since she was released from the hospital in August 2007. According to the preliminary assessment of the prospective adoptive family, they possessed good parenting skills, maintained a structured and consistent home environment, and were financially stable. They had also consistently demonstrated the ability to meet the minor’s emotional, developmental, health, and psychological needs.

A contested hearing was set for March 16, 2010.

H. Appellant’s Section 388 Petition

On March 15, 2010, the day before the scheduled section 366.26 hearing, appellant filed a petition for modification under section 388. The petition requested that the court vacate its December 2008 order terminating reunification services, and issue a new order placing the minor with him.

Appellant’s section 388 petition alleged that he had obtained suitable housing for the minor and was volunteering his time at the “Neighborhood of Dreams” community program. The petition further alleged that it would be better for the minor to be placed with appellant (instead of the prospective adoptive family with whom she had lived since released from the hospital after her birth) because “[t]he child would be able to be raised, loved and known by her father.” The petition was signed by appellant’s attorney, without any assertion that the attorney had personal knowledge of the facts alleged. No documentary evidence was attached to the petition to support the allegations.

On March 16, 2010, before proceeding to the scheduled section 366.26 hearing, the court addressed appellant’s section 388 petition, seeking input from counsel on whether or not a prima facie showing had been made and whether the petition should be set for a hearing. County counsel pointed out that the petition did not contain any facts that would indicate the proposed modification would be in the minor’s best interest. Counsel for the minor agreed, and further noted there was “no verification or documentation attached to the motion to support the statements of change that were made.” Appellant’s counsel made an offer of proof that if called to testify, appellant would state (contrary to the social worker’s observation) that the minor knows him despite his lack of visits. Appellant’s counsel also stated that, if the court decided to grant a hearing, she would like to “subpoena witnesses that could attest to the facts alleged in [the] petition.”

The court denied appellant’s section 388 petition without an evidentiary hearing, finding that: (1) there was no showing that the person who signed the petition had personal knowledge of the facts; (2) the allegations were too conclusory; and (3) the petition did not make a prima facie showing that a change in the prior order would be in the best interests of the minor, particularly since it would involve reopening a case in which reunification services to appellant had been terminated for over a year and he had visited the minor only twice in all of 2009.

I. Section 366.26 Hearing

The court proceeded to the section 366.26 hearing. After the hearing, the court found the minor to be adoptable and terminated appellant’s parental rights.

This appeal followed.

II. DISCUSSION

Appellant’s sole contention is that the juvenile court erred in denying his section 388 petition without a hearing. We review for an abuse of discretion. (In re Angel B. (2002) 97 Cal.App.4th 454, 460.)

Section 388 permits a parent to file a petition showing that a change of circumstances warrants a hearing to determine whether a prior court order, including an order terminating reunification services, should be modified. To trigger the right to a hearing, the petition must make a prima facie showing of the following: (1) a change of circumstances or new evidence, and (2) the proposed modification would promote the best interests of the child. (In re Daijah T. (2000) 83 Cal.App.4th 666, 672-673; see Cal. Rules of Court, rule 5.570(d).)

A prima facie showing requires an assertion of facts which, if established, would warrant relief. (In re Aaron R. (2005) 130 Cal.App.4th 697, 705.) The petition is liberally construed in favor of its sufficiency. (In re Jeremy W. (1992)3 Cal.App.4th 1407, 1413-1414.) It must, however, allege facts rather than mere conclusions. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)

A. Personal Knowledge

One of the reasons the juvenile court denied appellant’s section 388 petition was because it was signed by appellant’s attorney, rather than appellant, and there was no showing that the attorney had personal knowledge of the facts alleged. The court did not abuse its discretion in this regard.

Pursuant to section 388, subdivision (a), the “petition shall be verified.” The Judicial Council form for a section 388 petition (JV-180) provides, above the signature line: “I declare under penalty of perjury under the laws of the State of California that the information in this form is true and correct to my knowledge. I understand that this means I am guilty of a crime if I lie on this form.” Appellant’s attorney signed the form, thus providing a verification.

Acknowledging that “the procedure actually contemplates” that the petition may be signed by counsel, the court was nonetheless concerned that there was no allegation or attachment indicating that the person who signed the form – appellant’s attorney – really did have personal knowledge “as opposed to just information and belief.” Thus, the court observed, there was an issue whether the allegations of the petition were true at all. Or, to put it slightly differently, the absence of any showing of personal knowledge brought into question whether the allegations could ever be proved. It was not a prejudicial abuse of discretion to conclude that the required prima facie showing was therefore not met, particularly since there were no attachments to the petition or other supporting documentation (see post).

Appellant argues that both he and his attorney were present when the court addressed the section 388 petition, and the court should have taken the initiative to question counsel as to whether she had personal knowledge of the alleged facts or asked appellant to attest to them himself. However, appellant provides no authority for this proposition, and the Legislature has squarely placed the burden on the petitioner to make the prima facie showing. In any event, the court did give appellant’s counsel the opportunity to address the court, after counsel for the minor specifically brought to everyone’s attention that the petition lacked adequate verification and support. Appellant’s counsel ignored the issue, saying only that the appellant would testify that the minor knows who he is, and reserving the right to subpoena witnesses if the court granted a hearing. Even when the court later announced that it was denying the petition specifically because it was unclear whether appellant’s attorney had personal knowledge of the facts alleged, appellant’s attorney made no effort to dispute the court’s characterization or to cure the obvious defect.

B. Change of Circumstances

Appellant contends that his section 388 petition alleged that he had obtained a suitable home for the minor, had obtained employment, was involved in a supportive community called Neighborhood of Dreams, and had developed a plan for how to care for the minor. The juvenile court ruled that the allegations were too conclusory and were not supported by any facts. The court did not abuse its discretion in this regard.

It is clear the petition failed to allege a change of circumstances with requisite particularity. The allegations of a section 388 petition must specifically and factually describe the evidence constituting the purported change of circumstances. (In re Edward H. (1996) 43 Cal.App.4th 584, 593 [petition that includes general, conclusory allegations does not make the prima facie showing required under section 388].) Where the petition contains conclusory allegations without supporting declarations, the court is well within its authority to deny a hearing. (In re Anthony W., supra, 87 Cal.App.4th at p. 250.)

The copy of the section 388 petition in the clerk’s transcript is obscured so that we cannot see what was written in this portion of the petition. The appellate record was later supplemented with another copy of the petition, which alleges in pertinent part: “[Appellant] now has a home suitable for his daughter. [Appellant] has learned how to manage his life, though not necessarily at the pace others expect. Currently he is gainfully employed, volunteers his time @ Neighborhood of Dreams, a community of others born w/disabilities, and he has a plan in place for how he will care for his daughter.”

The allegations of appellant’s section 388 petition were conclusory, general, and wholly insufficient. Although appellant alleged that he had obtained a suitable home for the minor, there was no description of the home to support the conclusion or any documentation of the new residence. Although appellant claimed that he had obtained employment, there was no evidence to that effect. Although he claimed that he volunteered his time at Neighborhood of Dreams and had a plan to care for the minor, there is no explanation for these general assertions. Nor were there any supporting documents or declarations attached to the petition.

Appellant contends it was improper for the court to deny the petition on the ground there was insufficient support for the statements in the petition, because his attorney asked the court for the opportunity to subpoena witnesses who could attest to the facts at a hearing. Counsel’s statement was so general, however, that it did not suffice as a meaningful offer of proof: it did not identify what witnesses would be called or what they would say. Moreover, a petitioner must make a prima facie showing first, in order to have a hearing; the petitioner does not get to have a hearing in order to make a prima facie showing.

Appellant also notes that, at the ensuing section 366.26 hearing, he made an offer of proof (through his attorney) that appellant was a leader at Neighborhood of Dreams (a community of persons born with disabilities) and facilitated groups, enjoyed helping people, attended the program daily, was active in his own substance abuse and mental health recovery, and had completed a wellness recovery action plan. But this was far too little, and far too late. The offer of proof was not made before the court decided the section 388 petition, and there was no request of the court to revisit the section 388 ruling after the offer of proof was made. Furthermore, there remained no substantiation, even by offer of proof, that appellant had obtained housing that was actually suitable for the minor or that appellant was gainfully employed. There is no indication that, even if the court had held a hearing, the allegations would have been proved and relief would have been appropriate.

The juvenile court did not err in denying the petition without a hearing on the ground the allegations of the petition were mere conclusions.

C. Best Interests of the Child

As its third ground for denying the petition without an evidentiary hearing, the juvenile court ruled there was no prima facie showing that the restoration of reunification services and placement with appellant would be in the best interests of the minor. We agree.

At the time of the section 388 petition (March 2010), appellant had visited the minor only two times since May 2008 – in other words, just twice in the last 22 months of the minor’s 31-month life. The social worker observed that in those more recent visits, the minor kept her distance from appellant because she did not know him. Although appellant took a parenting course in May 2008, he did not take any further parenting classes despite the court’s order that he participate in programs addressing “parenting skills, therapy, personal functioning and in-home training on parenting and communication, ” until “terminated by the therapist and/or social worker.” Due to his failure to maintain contact with the Department, the social worker was unable to verify that appellant participated in mental health services or took his prescribed medication for bipolar disorder. Appellant’s reunification services had already been terminated for 15 months, and there was no evidence or indication that, with further reunification services, appellant would be ready for the minor to be placed with him. Meanwhile, the minor had lived in the prospective adoptive home practically since her birth, she was adoptable, and the prospective adoptive family displayed good parenting skills, maintained a structured home environment, and consistently demonstrated their ability to meet the minor’s emotional, developmental, health and psychological needs. In this context, the general and unsupported allegations of the section 388 petition plainly do not suggest that any further postponement of permanent placement would be in the best interests of the minor.

Appellant argues that the section 388 petition made a prima facie showing as to the best interests of the minor, because it addressed the factors that had originally required her placement outside appellant’s home: the lack of a suitable residence and his lack of experience parenting a young child. As discussed ante, however, there was no factual support for the conclusion that appellant had a suitable residence, and no evidence or allegation that he had attained parenting experience or reached a level of parenting ability that would warrant restoration of reunification services. Moreover, there were other barriers to reunification that the section 388 petition clearly did not address: his mental health and his failure to continue visiting the minor. The second amended petition alleged that appellant’s “mental health status, lack of parenting experience, and current housing situation impair[ed] his ability to provide safe and adequate care of the infant minor, [D.W.].” (Italics added.) The juvenile court sustained the allegation – to which appellant submitted – that he “acknowledges issues related to parenting, housing, and mental health that impact his ability to provide safe and adequate care of the infant minor, [D.W.].” (Italics added.) Appellant’s case plan required him to complete a parenting education program, visit the minor, obtain a safe residence for the minor and comply with his own medical/mental health treatment. (Italics added.) There was no allegation in the section 388 petition that his mental health status had improved to the point he could provide safe and adequate care, even with continued reunification services. The case plan requirement that he visit the minor was obviously not being met by the time reunification services were terminated or the date of the section 388 petition.

Appellant nonetheless insists that the minor would benefit from a continued relationship with appellant, because he had visited her before the six-month status review and there was no indication she was worse off because of it. Appellant goes further in his reply brief, insisting that the “uncontroverted evidence here shows a bond between appellant and his daughter, ” apparently because he had weekly visits with her for a few months and she recognized him. That is hardly a parental bond from the child’s perspective, and there was certainly no showing that any such “bond” remained by the time of the section 388 petition.

At the section 366.26 hearing (held after the ruling on the section 388 petition), appellant represented (through counsel) that at his last visit in September 2009, the minor walked over to him with open arms and knew who he was. This is apparently inconsistent with the report of the social worker. He also purchased books on child rearing and child development and claimed his “greatest feeling” was holding his daughter and having her smile and look at him.

Appellant notes that his progress on his case plan was derailed when he had an asthma attack, which led to his driver’s license being suspended, which caused him to lose his job; that he had problems receiving his social security benefits, which made it difficult to obtain the proper medications for his mental health issues; and that he had a hard time dealing with these issues at the same time. We are not unsympathetic to his circumstances, and we applaud his efforts at Neighborhood of Dreams and his fondness for the minor. At stake, however, are the interests of the minor and the allegations of the petition. (See In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348-1349.) The juvenile court was well within its discretion in denying appellant’s section 388 petition without an evidentiary hearing. Because that is the only ground on which it is alleged the ensuing section 366.26 order was erroneous, we find no error in the section 366.26 order either.

III. DISPOSITION

The orders are affirmed.

We concur. JONES, P. J., BRUINIERS, J.


Summaries of

In re D.W.

California Court of Appeals, First District, Fifth Division
Feb 8, 2011
No. A128344 (Cal. Ct. App. Feb. 8, 2011)
Case details for

In re D.W.

Case Details

Full title:In re D.W., a Person Coming Under the Juvenile Court Law. SOLANO COUNTY…

Court:California Court of Appeals, First District, Fifth Division

Date published: Feb 8, 2011

Citations

No. A128344 (Cal. Ct. App. Feb. 8, 2011)