Opinion
F080129
03-20-2020
In re A.C., a Person Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. MIGUEL R., Defendant and Appellant.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Margo A. Raison, County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. JD138315-00)
OPINION
THE COURT APPEAL from an order of the Superior Court of Kern County. Raymonda B. Marquez, Judge. Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Margo A. Raison, County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Franson, J. and Smith, J.
-ooOoo-
INTRODUCTION
Father, Miguel R., did not believe himself to be the biological father of A.C., asked to be dismissed from the Welfare and Institutions Code section 300 proceedings, and declined to submit to paternity testing. Fourteen months later in child support proceedings, Miguel was determined by DNA testing to be the biological father of A.C. Miguel thereafter filed a section 388 petition seeking reunification services; it was denied. Miguel appeals the denial of the section 388 petition. We affirm.
References to code sections are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL SUMMARY
The Kern County Department of Human Services (department) filed a section 300 petition on behalf of A.C. on February 2, 2018, alleging the child came within the provisions of subdivisions (b) and (g) of section 300. Miguel appeared at the initial hearing on February 6, 2018, as an alleged father and the court appointed counsel to represent him.
Mother named Miguel as the father of A.C. Miguel was not at the hospital when A.C. was born and had not signed the paperwork to be listed on the birth certificate.
Miguel's counsel informed the court that Miguel denied being the biological father of A.C. and filed "a document ... asking to be dismissed" from the case. Miguel asked to be dismissed from the case; did not want to be included as a party to the case; and declined to submit to DNA testing. The court dismissed Miguel from the section 300 case per his request.
On April 5, 2018, the court found A.C. came within the provisions of section 300, subdivision (b). A.C. was adjudged a dependent of the court and reunification services were ordered for mother.
Mother failed to reunify with A.C. and reunification services were terminated on October 24, 2018. A section 366.26 hearing was set for February 20, 2019.
On November 7, 2018, Miguel was ordered in a child support proceeding to submit to DNA testing.
In a report filed by the department for the section 366.26 hearing scheduled for February 20, 2019, it was noted that Miguel did not visit with, and had no relationship with, A.C. A.C. had never been in Miguel's care nor resided with him. The current care providers had been caring for A.C. since March 16, 2018. A.C looked to the care providers to meet his daily physical, social, and emotional needs.
At the February 20, 2019 section 366.26 hearing, the court directed the department to produce A.C. for paternity testing in the child support case. The section 366.26 hearing was continued.
At the continued section 366.26 hearing on May 20, 2019, the court elevated Miguel to the status of biological father. Supervised visitation was ordered between Miguel and A.C. for a total of two hours per week. The section 366.26 hearing was continued to September 9, 2019.
The social worker mailed a letter to Miguel and attempted to reach him by phone on May 20, 2019. Miguel called the social worker back and indicated he wanted to have his daughter at all the visits with A.C. The social worker told Miguel she would check with her supervisor about having the daughter present and would contact the foster parents to schedule the visits.
On May 28, 2019, the social worker attempted to contact Miguel by telephone but was unsuccessful. The social worker received a message from Miguel's sister on July 11, 2019, that Miguel had been trying to reach the social worker but because of his work schedule, had been unable to do so. The social worker called the sister back on July 12 and left a message and called again on July 15.
On July 15, 2019, the social worker spoke with Miguel's sister and told her Miguel needed to call to discuss the visitation arrangements. The sister stated she would pass along the message.
The September 9, 2019 section 366.26 hearing was continued to November 13, 2019, because Miguel had not been properly noticed.
On September 10, 2019, the social worker left a voice mail for Miguel at the number she had for him, asking him to call her. Later that day, the social worker received a message from Miguel where he left a new number. The social worker called the new number on September 11 and left a message with Miguel's mother. Miguel called back on September 12 and spoke with the social worker. It was agreed that Miguel would participate, with his daughter, in a two-hour visit with A.C. on September 14, 2019.
At the September 14, 2019 visit, Miguel interacted well with the child. At the September 19 visit, A.C. became emotional and began asking for his "mami, mami," his foster mother, when Miguel wanted A.C. to interact with his daughter. At a visit on September 26, A.C. and Miguel's daughter played with toys but A.C. kept asking for "mami." At the October 2, 2019 visit, A.C. repeatedly asked for "mami" during the first 15 minutes of the visit.
Miguel filed his section 388 petition on September 19, 2019. The section 388 petition sought to change the order from February 6, 2018, dismissing Miguel from the case. Miguel's alleged changed circumstances were that he had denied paternity and been dismissed from the case, was subsequently found to be the biological father as a result of DNA testing, and "wishes a chance to gain custody." He requested reunification services pursuant to section 361.5, subdivision (a), and alleged it would benefit A.C. Miguel stated he had "made a mistake by signing any waiver of services."
The court set a hearing on the section 388 petition for October 11, 2019. Miguel testified at the hearing that his visits with A.C. went well and A.C. was developing a bond with his daughter. Miguel explained he had difficulty arranging visitation because he did not have a telephone and there was "just a lack of time." Miguel also testified that "as soon as I got that they were going to really just completely terminate me" he decided to seek visits. He testified he was subject to a child support order for A.C. and was paying support.
In argument, Miguel's counsel argued that the desire to rescind the waiver and request services was a changed circumstance. Counsel also argued that it was in A.C.'s best interests to have a relationship with Miguel.
Minor's counsel argued that "a change of mind" nearly a year after the waiver was not a changed circumstance and noted A.C. had been placed with the foster parents since March 2018. Minor's counsel opined that it was not in A.C.'s best interests to be reunited with Miguel. The department concurred with minor's counsel.
The court found that there was no evidence to undermine the waiver. Miguel's difficulties in eventually scheduling visitation were not the fault of the department, but Miguel's failure to engage. The court also found that A.C. was bonded to the foster parents and the request to delay permanence was not in A.C.'s best interests. The section 388 petition was denied.
Miguel filed a timely notice of appeal challenging the denial of the section 388 petition.
DISCUSSION
Miguel contends that he established changed circumstances and that granting the section 388 petition was in A.C.'s best interests.
Section 388 Generally
A petition to modify a juvenile court order under section 388 must allege facts showing new evidence or changed circumstances exist, and that changing the order will serve the child's best interests. (§ 388, subd. (a)(1); In re Nolan W. (2009) 45 Cal.4th 1217, 1235.) We review the denial of a section 388 petition after an evidentiary hearing for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318 (Stephanie M.).) " ' "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." ' " (Id. at pp. 318-319.) Where there is conflicting evidence, we reverse only if the evidence compels a finding for the appellant as a matter of law. (In re I.W. (2009) 180 Cal.App.4th 1517, 1527-1529.)
A parent may petition the court for such a modification on grounds of change of circumstances or new evidence. (§ 388, subd. (a)(1).) The parent, however, must also establish by clear and convincing evidence that the proposed change would promote the best interests of the child. (§ 388, subd. (b)(1); Cal. Rules of Court, rule 5.570(h)(1)(C).)
The best interests of the child are of paramount consideration when, as here, a section 388 petition is brought after reunification services have been terminated. (See Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the best interests of the child at this juncture, the juvenile court's focus is on the needs of the child for permanence and stability rather than the parent's interests in reunification. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47 (Casey D.).)
The " 'escape mechanism' " provided by section 388 after reunification efforts have ceased is only available when a parent has completed a reformation before parental rights have been terminated. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) This is because, if a parent's circumstances have not changed sufficiently to permit placement of the child with that parent, reopening reunification "does not promote stability for the child or the child's best interests" when the child is otherwise adoptable. (Casey D., supra, 70 Cal.App.4th at p. 47.) In assessing whether to grant the section 388 petition, the juvenile court may consider the entire history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)
Analysis
Here, we view the allegations of Miguel's section 388 petition as alleging new evidence, rather than changed circumstances. The alleged new evidence being that Miguel had been determined by DNA testing to be A.C.'s biological father. This determination was made 14 months after Miguel initially appeared in the dependency proceedings, refused to voluntarily submit to DNA testing, and asked to be dismissed from the dependency case.
New evidence, as that term is used in section 388, is construed to mean evidence that is material and that could not have been discovered earlier with reasonable diligence. (In re H.S. (2010) 188 Cal.App.4th 103, 108-109.) The alleged new evidence, that Miguel was the biological father and, thus, wanted to develop a relationship with A.C., could have been determined with reasonable diligence at the commencement of the dependency case, had Miguel agreed to voluntary DNA testing.
Even if we were to view the allegations of the section 388 petition as alleging changed circumstances, Miguel has failed to show changed circumstances. Miguel failed to demonstrate that circumstances had changed. At most, Miguel demonstrated that he was engaged in the effort of changing his circumstances and attempting to develop a relationship with A.C. However, he had not even exercised due diligence in this regard. Miguel testified at the section 388 hearing that there was "just a lack of time."
Assuming arguendo the allegations in Miguel's section 388 petition sufficiently showed his circumstances were changing, this showing was insufficient to require the court to change its earlier orders. (Casey D., supra, 70 Cal.App.4th at p. 49.) If a parent's circumstances have not changed sufficiently to permit placement of the child with that parent, reopening reunification "does not promote stability for the child or the child's best interests" when the child is otherwise adoptable. (Id. at p. 47.)
Miguel also failed to demonstrate that granting the section 388 petition would be in A.C.'s best interests. Here, A.C. had been in the home of the foster parents, the prospective adoptive parents, for about 19 months at the time of the hearing on the section 388 petition. A.C. was bonded with the foster parents and looked to them as his parents. The child's daily physical, social, and emotional needs were being met by the foster parents.
As the Supreme Court explained in Stephanie M., by the time a child's dependency has reached the permanency planning stage, a parent's interest in the care, custody, and companionship of the child is no longer paramount. Rather, the focus shifts to the child's needs for permanency and stability, and, in fact, there is a rebuttable presumption that continued out-of-home care is in the best interests of the child. A court hearing a modification petition at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child. (Stephanie M., supra, 7 Cal.4th 295 at p. 317.)
The moving party has the burden of showing a legitimate change of circumstances or new evidence exists and that undoing the prior order would serve the child's best interests. (In re A.A. (2012) 203 Cal.App.4th 597, 611-612.) Miguel failed to meet his burden of showing new evidence, a change of circumstances, or that the best interests of A.C. would be served by granting the petition.
DISPOSITION
The order denying Miguel's section 388 petition is affirmed.