Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Stanislaus County No. 515373. Nancy B. Williamsen, Commissioner.
Erik R. Beauchamp, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Gomes, J. and Kane, J.
M.M. (father), the biological father of baby boy M. (the baby), appeals the juvenile court’s summary denial of his Welfare and Institutions Code section 388 petition without an evidentiary hearing. We affirm.
All further statutory references are to the Welfare and Institutions Code, unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
The baby and his mother, S.D. (mother), both tested positive for methamphetamine when the baby was born in October 2008. Mother had a history of severe psychiatric, behavioral, and mental health problems, as well as a history of substance abuse, and admitted using methamphetamine during her pregnancy. When the baby was born, father, who had a lengthy felony and misdemeanor record that included service of prison time and multiple parole violations, was in custody in county jail; he and mother were not married and he did not sign a paternity declaration. No other possible fathers were named.
Respondent Stanislaus County Community Services Agency (Agency) detained the baby and placed him in foster care after mother failed to attend a team decision meeting in November 2008. Shortly thereafter, father told a social worker that he was in jail for violating parole, had been charged with assault with a deadly weapon and served time in prison, and he thought he would be sent back to prison until August or September 2009. Father said he was the baby’s possible father. Father admitted daily methamphetamine use and that he had used with mother. Although he denied having a drug problem, he was willing to enter a drug treatment program if it would help. He did not think mother used methamphetamine while pregnant, but believed she needed drug treatment. While there were reports of domestic violence between father and mother, father denied any domestic violence occurred. Father wanted his mother or brother evaluated to take care of the baby.
On November 14, 2008, the Agency filed a petition alleging the baby came within section 300, subdivisions (b) (failure to protect) and (g) (no provision for support), as the baby was at substantial risk due to mother’s alleged history of severe psychiatric, behavioral and mental health problems, substance abuse problems, and domestic violence incidents with father, and father was incarcerated in county jail for drug possession and violating parole. Mother and father were present at the November 17, 2008 detention hearing, with father in custody. The court ordered the baby detained, appointed attorneys to represent each parent, and granted father’s motion for DNA testing to determine paternity.
Under section 300, subdivision (b), any child may be adjudged a dependent of the court if “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent... to adequately supervise or protect the child... or by the willful or negligent failure of the parent... to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent... to provide regular care for the child due to the parent’s... substance abuse. A child can also be adjudged a dependent of the court under section 300, subdivision (g), if “[t]he child has been left without any provision for support;... [or] the child’s parent has been incarcerated... and cannot arrange for the care of the child....”
On December 1, 2008, the court convened the jurisdiction hearing. Both mother and father were present with their attorneys, with father in custody. Father informed the court he was about to be transferred from county jail to Deuel Vocational Institute (DVI). The court continued the hearing because the parties had not received the Agency’s report, and stated it would order father transported from DVI to attend the jurisdiction hearing. On December 15, 2008, it issued the transportation order for the January 6, 2009 hearing.
In a report the Agency filed in anticipation of the jurisdiction/disposition hearing, the Agency stated that mother’s whereabouts were unknown and she failed to meet with the social worker or appear for scheduled appointments. The Agency recommended denial of services to mother pursuant to section 361.5, subdivision (b)(1) and to father pursuant to section 361.5, subdivision (a). The Agency was unable to comply with the court’s order to conduct paternity testing because it was unable to determine father’s location or whether he was still in custody.
The joint jurisdiction/disposition hearing was ultimately held on January 13, 2009, after the Agency filed an amended petition to include allegations that mother’s whereabouts were unknown. Neither mother nor father was present. Father’s counsel objected to conducting the hearing in his absence. The court denied father’s motion for a transportation order, finding father did not have a statutory right to be present since he was an alleged father. The court found the facts in the amended petition true, adjudged the baby a dependent within the meaning of section 300, subdivisions (b) and (g), and found a substantial risk of danger if the baby remained in a parent’s custody. The court further found the Agency used due diligence to determine mother’s whereabouts. The court denied reunification services to mother pursuant to section 361.5, subdivision (b)(1) and to father as an “alleged father” pursuant to section 361.5, subdivision (a). The court determined the DNA test to establish paternity was scheduled for later that month and set a paternity hearing in February 2009 and a six-month review hearing in June 2009.
Father appealed from the dispositional order, contending the juvenile court erroneously ordered him to be financially responsible for the baby’s expenses and the costs of appointed counsel without conducting a hearing on his ability to pay. We rejected father’s arguments, concluding he was not yet subject to any type of financial responsibility order since the baby’s paternity had not been determined and the court clearly ordered that a parent shall not be subject to a financial responsibility order without a determination of that parent’s ability to pay. (In re M.M. (Aug. 12, 2009, F056929) [nonpub. opn.].)
The Agency submitted the paternity test results to the court on February 11, 2009, which showed a 99.96 percent probability that father is the baby’s biological father. At the March 2009 paternity hearing, the juvenile court denied father’s request to be transported to the hearing and, based on the test results, found father to be the baby’s biological father and entered a paternity judgment in father’s favor.
On April 24, 2009, father filed a section 388 petition, in which he sought either to (1) have the baby placed directly with his cousin, or (2) have his cousin assessed and the baby placed with his cousin if appropriate. The court ordered a hearing on the petition. At the May 12, 2009 hearing, the court granted the petition in part, directing the Agency to assess the cousin’s home and consider his request for placement.
In the Agency’s June 2009 report prepared for the six-month status review hearing, the social worker recommended the court establish a permanent plan of adoption for the baby with his current caregivers and set a section 366.26 hearing to terminate mother’s and father’s parental rights. The social worker noted that on March 10, 2009, the Agency received a handwritten letter from father, who had not received any visits with the baby due to his incarceration, in which he stated he hoped to reunify with his son and while he could not take any classes while in prison, he was willing to complete any needed classes upon his release from prison on October 26, 2009. Father’s cousin had been assessed for placement, but the social worker concluded placement with him was not appropriate. The social worker noted that mother had not made a diligent attempt to reunify with the baby, as she had not done anything as to her case plan or visited the baby over the past six months. Accordingly, the social worker opined that termination of parental rights would be in the baby’s best interest and continuation in his current placement would be the best alternative since his caregivers had developed a bond that the baby did not have with any of his immediate relatives.
The six-month review hearing began on June 9, 2009, but was continued after mother’s attorney requested a contested hearing. Father, who was not present at the hearing but was represented by his attorney, requested photographs of the baby. The court granted the request of the foster parents, who had been caring for the baby since January, to be designated de facto parents. Father filed a section 388 petition requesting the court order direct placement of the baby in his cousin’s home, and the court ordered a hearing on the petition to be held on the same date as the status review hearing.
Neither father nor mother was present at the July 21, 2009 hearing, but each was represented by their attorneys. Father’s attorney withdrew the section 388 petition, objected to the setting of a section 366.26 hearing, and asked that father be sent recent pictures of the baby. The court found mother was denied due process because, despite mother contacting the Agency at least twice after the court denied her reunification services, the Agency did not encourage mother to pursue reunification services or bring the matter to the court’s attention so it could assess whether mother’s whereabouts were known and she should be offered reunification services. Consequently, the court directed the Agency to make active efforts to locate mother so she could engage in services, and gave it six months to do so. The court set a 12-month permanency hearing for December 2009.
On August 21, 2009, the court granted mother’s uncontested section 388 petition, which stated that she had been located and was willing to begin family reunification services, and requested approval of an updated case plan and the initiation of reunification services.
On September 29, 2009, father filed a section 388 petition, seeking to change the order denying him reunification services. The following day, the court denied father’s section 388 petition, noting it did not state new evidence or a change of circumstances.
DISCUSSION
Father challenges the summary denial of his section 388 petition without a full evidentiary hearing. He argues he made the requisite prima facie showing of changed circumstances because paternity testing established him as the baby’s biological father, mother was receiving reunification services, he had shown an interest in the baby, and he would soon be released from prison, thereby allowing him to engage in reunification services. Although father recognizes he is not a presumed father, he asserts a hearing nevertheless should have been granted because the reunification period had not ended and a parent provided reunification services is presumably a better parent.
Section 388 allows the juvenile court to modify a previous order if a parent establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed modification would promote the child’s best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G.); Cal. Rules of Court, rule 5.570.) To obtain a hearing on a section 388 petition, a parent must make a prima facie showing as to both elements. (Zachary G., supra, at p. 808; In re Justice P. (2004) 123 Cal.App.4th 181, 188.) A section 388 petition should be liberally construed in favor of granting a hearing, but “[t]he 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.” (Zachary G., supra, at p. 806.) A petition which includes general conclusory allegations does not rise to the level of a “‘prima facie’” showing. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) We review the summary denial of a section 388 petition for abuse of discretion. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431, 433; Zachary G., supra, at p. 808; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413.)
California Rules of Court, rule 5.570(d) provides: “The court may deny the application ex parte if … the petition [under section 388] fails to state a change of circumstances or new evidence that may require a change of order or termination of jurisdiction, or that the requested modification would promote the best interest of the child.”
In his section 388 petition, which was submitted on Judicial Council form JV-180, father requested a change in the court’s prior order denying him reunification services because he was an alleged father. As changed circumstances father cited the DNA results that proved he was the baby’s biological father, the judgment of paternity, and his eligibility for parole on October 26, 2009. Father also stated he was unable to obtain presumed father status due to his incarceration, which prevented him from receiving the baby into his home, and although he was willing to sign a paternity declaration, he was unable to do so because mother’s whereabouts were unknown. In addition, father stated that while he had not been able to access services during his incarceration because no services were available at DVI and he was placed in the AD-SEG unit at Corcoran State Prison, where he was then incarcerated, he may be able to access services since he was due to go before a review board to change his unit. Father claimed the provision of reunification services would be better for the baby because it was in the baby’s best interest to be reunified with a biological parent, he was willing to take on full responsibility of being a father to his son, and providing reunification services would give the baby an opportunity to stay connected with his biological family.
The juvenile court found the section 388 petition did not make a prima facie showing of new evidence or changed circumstances. It did not abuse its discretion in so finding because no facts were alleged that could establish father’s right to reunification services. “[O]nly a presumed, not a mere biological, father is a ‘parent’ entitled to receive reunification services under section 361.5, ” and custody of the child under section 361.2. (In re Zacharia D. (1993) 6 Cal.4th 435, 451 (Zacharia D.).) “Pursuant to Family Code, section 7611, a man is presumed to be a child’s natural father if he was married to (or in an ‘attempted marriage’ with) the child’s mother during the child’s conception or birth (Fam. Code, § 7611, subds. (a)-(c)), or if he receives the child into his home and openly holds out the child as his natural child (Fam. Code, § 7611, subd. (d)).” (In re Joshua R. (2002) 104 Cal.App.4th 1020, 1025, fn. 2.) There were no allegations in the section 388 petition that indicated father could qualify as a presumed father under Family Code section 7611. Without specific allegations, there was nothing to suggest the court had a basis for changing its prior order denying reunification services to him.
Father contends he should have been granted a hearing because he demonstrated a full commitment to his parental responsibilities by requesting transportation to hearings, asking for photographs, keeping in contact with his attorney and requesting his relatives be considered for placement, citing Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.). To qualify as a Kelsey S. father, the child’s biological father must show that he promptly stepped forward to assume full parental responsibilities for the child’s well-being, the child’s mother thwarted his efforts to assume his parental responsibilities, and he demonstrated a willingness to assume full custody of the child. (Kelsey S., supra, 1 Cal.4th at p. 849.) “If an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities - emotional, financial, and otherwise - his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent. Absent such a showing, the child’s well-being is presumptively best served by continuation of the father’s parental relationship. Similarly, when the father has come forward to grasp his parental responsibilities, his parental rights are entitled to equal protection as those of the mother.” (Kelsey S., supra, 1 Cal.4th at p. 849, fn. omitted.)
Father did not allege any facts in the section 388 petition to show that he is entitled to presumed father status under Kelsey S. Specifically, father did not allege facts showing that he demonstrated the required commitment before the baby’s birth or that mother thwarted his efforts to assume his parental responsibilities. To the contrary, father’s inability to establish presumed father status was of his own doing - he was incarcerated as a result of his criminal activity and thus unavailable to perform the actions normally associated with being a parent.
While the court found father is the baby’s biological father, that finding did not automatically entitle him to visitation or services, or to the rights or status of a presumed father. (Zacharia D., supra, 6 Cal.4th at p. 451; Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 595-596 (Francisco G.) Instead, “the juvenile court ‘may’ order reunification services for a biological father if the court determines that the services will benefit the child.” (Francisco G., supra, 91 Cal.App.4th at p. 596; see § 361.5, subd. (a).) Father, however, did not allege any facts to show that services would benefit the baby. To the contrary, father had been in custody since the baby was born and never developed a parent/child bond with him. The baby was thriving in foster care and was bonded to his foster parents. Father had a long criminal history, had spent nearly his entire adult life in prison, and had perpetrated domestic violence on mother while she was pregnant.
Under the circumstances, the juvenile court reasonably could conclude it would not benefit the baby or be in his best interest to grant father six months of reunification services to see if he would and could do what was required to comply with a case plan, eventually obtain custody and provide permanence for the baby. Father claims that it would be in the baby’s best interest to maintain a relationship with him because he is the baby’s biological father, citing In re Julia U. (1998) 64 Cal.App.4th 532 (Julia U.). Father argues that given this vital relationship, he at least should be granted a hearing to determine whether he should be given the opportunity to reunify with his child. In Julia U., the biological father was not named as an alleged father until late in the dependency proceedings and his paternity was not established until after reunification services were terminated. The juvenile court denied the father’s section 388 petition that sought presumed father status and reunification services on the ground the petition did not advance the child’s best interests and the father had not made a significant effort to establish a relationship with the child. (Julia U., supra, 64 Cal.App.4th at pp. 535-539.) The appellate court reversed after concluding the social services agency had unreasonably delayed in locating the father and establishing paternity, and had focused only on the child’s best interests, overlooking the father’s basic rights. (Id. at pp. 542-544.)
Father’s situation is different. There were no delays in identifying him as an alleged father. His ability to establish his status as a presumed father was precluded, not by any delay of the Agency, but because of his criminal activity that led to his incarceration from baby’s birth until he was one year old. Additionally, unlike the father in Julia U., father was not misled or induced to believe that someone else was the baby’s father; to the contrary, father was the only alleged father ever mentioned. Thus, we find Julia U. inapplicable here.
In sum, the juvenile court did not abuse its discretion when it summarily denied father’s section 388 petition.
DISPOSITION
The juvenile court’s order denying the September 29, 2009 Welfare and Institutions Code section 388 petition is affirmed.