Opinion
E083443
09-17-2024
In re E.H. et al., Persons Coming Under the Juvenile Court Law. v. J.H., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Tracy De Soto, under appointment by the Court of Appeal, for Defendant and Appellant. Minh C. Tran, County Counsel, Teresa K.B. Beecham and Catherine E. Rupp, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. DPRI2300082 Dorothy McLaughlin, Judge. Affirmed.
Tracy De Soto, under appointment by the Court of Appeal, for Defendant and Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Catherine E. Rupp, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
RAPHAEL J.
A father appeals denial of his petitions to reinstate family maintenance services and return custody of his two older children, who entered dependency after being exposed to domestic violence. The court denied the petitions without a hearing, concluding father had not established a prima facie case of changed circumstances or new evidence requiring a change in order or that family maintenance services were in the children's best interests. Father argues the court erred by denying his petition without holding an evidentiary hearing. We affirm because father's petitions did not show a change in order would be in the best interests of the children.
I
FACTS
This is father's second appeal in the dependency of his children E.H. and K.H.Previously, he challenged the order terminating his reunification services at the six-month review hearing. We affirmed that order. (In re E.H. (June 12, 2024, E082831) 2024 WL 2952547 [nonpub. opn.].) Our prior opinion recounts the facts of the dependency in more detail. Here, father challenges the trial court's subsequent refusal to change its order and order family maintenance services.
Father filed another appeal, chronologically the first, challenging the court's jurisdiction and disposition findings, but his counsel filed a brief concluding there were no arguable issues and we dismissed the appeal. (Case No. E081189; case No. E081189 Sept. 13, 2023 Order.)
A. Removal and Termination of Father's Reunification Services
On March 5, 2023, the Riverside County Department of Public Social Services, Children's Services Division (department) received a referral that two-year-old K.H. and six-month-old E.H. were victims of emotional abuse and general neglect because they were exposed to domestic violence between their parents.
Mother had visible injuries she attributed to a physical fight with father, and he was arrested for inflicting corporal injury on a spouse. In addition, the family home, a converted garage off the maternal grandparents' home, was dirty and unkept and the social worker saw a bong accessible to the older child.
The parents were not receptive to assistance. Mother said they had agreed not to fight any more, and refused to seek a restraining order, enter a safety plan, or accept referrals for domestic violence, counseling, or parenting services. Father was combative and resistant. He said he had been diagnosed with multiple personality disorder as a teenager, but denied having physical fights with mother and blamed her family and the older child for the altercation and causing mother's injuries. He said he did not need any services. Later, mother recanted her domestic violence allegations and adopted father's story.
The department filed a juvenile dependency petition alleging the children came under Welfare and Institutions Code section 300, subdivision (b) (unlabeled statutory references refer to this code) due to the parents' domestic violence and mother's failure to protect the children and obtain a restraining order (b-1, b-2), both parents' unresolved mental health issues (b-3, b-4), and the parents' neglect of the children's health and safety by maintaining their home in an unsafe condition (b-5). The court ordered the children detained and later declared them dependents, removed them, and ordered the parents to participate in reunification services.
Father's visits and services went poorly. On May 19, the juvenile court suspended his visits due to inappropriate and disruptive behaviors. On June 29, the department attempted to meet with him to discuss his case plan, but he did not show up. The department referred him for counseling, domestic violence, anger management, and substance abuse services, and for substance abuse testing.
Father participated minimally and sometimes actively resisted the services. He was discharged from the individual counseling, domestic violence, and anger management programs because he was not making progress and "was becoming increasingly hostile towards the treatment provider." He claimed parenting classes were unnecessary and failed to report for several random drug tests. He asked to be reassessed on the need for domestic violence services, because he felt he "may not fall under the 'perpetrator' category and questions whether he needs to receive DV treatment." The service provider discharged him, but recommended he continue being treated as a perpetrator of domestic violence and reported he had participated minimally and behaved inappropriately.
Father insisted "depression was the only problem he had, and his services are not appropriate." He said he was seeing a therapist who believed he was suffering from depression due to the dependency. The department told father he would be referred to another program, but he declined saying he didn't need assistance. He also refused to discuss the coping skills he had learned in therapy and said he and his therapist were not obligated to provide such information. He accused the service providers and social workers of lying about his conduct. Meanwhile, he failed to show for several more on-demand drug tests from September through October.
At a contested six-month review hearing, both parents argued for extending father's services. Mother represented she was father's caregiver, legal guardian, and spouse. She said father had been shot two years earlier, which caused "memory problems as well as muscle spasms," and complained the department refused to account for his condition. Father complained of trouble getting to services because he was confined to a wheelchair. Father said he and mother were unified and expecting another child, and it made more sense to provide services to the entire family together. The department and the minors opposed continuing reunification services for father.
On November 16, the court terminated father's reunification services. The court found by clear and convincing evidence that father had failed to participate regularly and make substantive progress in his treatment plan, and concluded there was no substantial probability of return if father were given more time. The court extended mother's services for six months. Father appealed, and we affirmed. (In re E.H., supra, E082831.)
B. The New Sibling and His Dependency Case
Less than a week after the court terminated father's services, mother gave birth to H.H., and the department received a referral alleging the newborn may be a victim of general neglect. The department filed a juvenile dependency petition alleging H.H. came under section 300, subdivisions (b) and (j) for various reasons, including that the parents had an open dependency for the older siblings.
In the early stages of the new dependency, both parents repeated claims they made during their older children's dependency. Mother denied substance abuse and domestic violence, and reported she was unwilling to separate from father because she was his caregiver. Father denied any domestic violence with mother and claimed the maternal grandfather was verbally abusive and had assaulted him. He denied any violence occurred in the children's presence. He denied he had any mental health issues other than depression, which he attributed to the first dependency. Father said "he was diagnosed with severe chronic pain, muscle spasms, and memory loss" as a result of being shot and hit in the head about two years earlier. He said he had been confined to a wheelchair and only recently started getting up and could no longer work because of memory loss.
The parents also refused to cooperate with the new investigation. Father accused the social worker of coming to remove the newborn and told mother not to sign a consent form allowing contact with mother's service providers. Father accused the social worker of telling mother to say he was abusive. The next day, mother refused to let the department complete a safety assessment of her home. Father admitted there was an open case for the older siblings, but claimed the social worker prevented mother from reunifying despite completing her services.
At H.H.'s jurisdiction/disposition hearing father argued he had complied with his services "to the best of his ability" and argued H.H. was not at risk in his care. The court sustained the j-1 allegation and a modified version of the b-6 allegation. The court declared H.H. a dependent, ordered the child remain in the custody of his parents, and ordered both parents to participate in family maintenance services.
C. Father's Section 388 Petitions
On December 22, 2023, only about five weeks after the court terminated his reunification services, father filed section 388 petitions for each child asking the court to change its order by reinstating family maintenance services. Father based the requests on the court ordering family maintenance services for H.H. He reasoned that if "there was no risk for [H.H.] to be placed with the parents on a plan of family maintenance," E.H. and K.H. "would not be at risk if placed back in the home with services in place for the family." Mother filed her own petitions asking to reinstate family maintenance for E.H. and K.H. on the same basis. Neither parent claimed circumstances had otherwise changed.
The department asked to perform a home assessment as part of responding to father's section 388 petitions. Father refused to allow a home visit and asked the assessment to be conducted at the department's office. Father said he would not sign any documents or speak to department staff without his attorney present. He also appears to have misrepresented the date of a court hearing to avoid another proposed home visit just days before the section 388 hearing.
On January 26, 2024, the court held a hearing on whether to set the parents' section 388 petitions for a full evidentiary hearing. The department asked the court to deny the petitions because they failed to demonstrate changed circumstances. Mother argued circumstances had changed because the parents retained custody of H.H. She argued both parents made progress in their case plans and there was no reason why E.H. and K.H. could not be placed with their sibling. Father argued the fact H.H. remained with his parents was "certainly new information, new evidence for the Court to consider in terms of returning [K.H.] and [E.H.] to [father]." Father asked the court to "look at this new information and new evidence" and asked how it could be safe for H.H. to remain in the home but unsafe for E.H. and K.H. "If it is safe for [H.H.] to be in the home, how is it not safe for [K.H.] and [E.H.] to be in the home on a plan of family maintenance? That's my argument. The bottom line is either it is legitimately safe or it is legitimately not."
Counsel for the department and the minors argued the circumstances of E.H. and K.H. were different from those of H.H. The older children had been exposed to their parents' domestic violence and substance abuse, while the department was not aware of new incidents of domestic violence with H.H. present. The department said it remained concerned about the potential that H.H. will be exposed to domestic violence "given the lack of cooperation from the parents and given that these older two children who were previously exposed to that, and the Department is having trouble with home visits and the parents' cooperation." The department emphasized the parents had not addressed the domestic violence issues and in the new dependency refused to allow the department to assess their home. Father responded that his previous domestic violence program did not sufficiently evaluate whether father "needed to actually engage in that program."
On February 9, the court denied both petitions concluding there was "no new relevant evidence." It explained, "at the time the petition for [H.H.] was submitted, arguably the same logic and information that's being used to argue in favor of the [section 388 petitions] could be used to support detention of [H.H.]. And because there are two different situations that have happened chronologically at two different times with different factual situations surrounding both, the Court didn't make that order for [the younger child]. [¶] I do find that there's not new evidence with regard to the older children and at this time the [section 388 petitions] are denied."
II ANALYSIS
Father argues the trial court abused its discretion by finding he did not establish a prima facie case that new evidence justified reinstatement of services or custody and that the relief would be in the best interests of the children. "Under section 388, a parent may petition to modify a prior order 'upon grounds of change of circumstance or new evidence.' (§ 388, subd. (a)(1); see Cal. Rules of Court, rule 5.570(a).) The juvenile court shall order a hearing where 'it appears that the best interests of the child . . . may be promoted' by the new order. (§ 388, subd. (d).) 'Thus, the parent must sufficiently allege both a change in circumstances or new evidence and the promotion of the child's best interests.' [Citation.] [¶] 'A prima facie case is made if the allegations demonstrate that these two elements are supported by probable cause. [Citations.] It is not made, however, if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing. [Citations.] While the petition must be liberally construed in favor of its sufficiency [citations], the allegations must nonetheless describe specifically how the petition will advance the child's best interests.' [Citation.] In determining whether the petition makes the required showing, the court may consider the entire factual and procedural history of the case." (In re K.L. (2016) 248 Cal.App.4th 52, 61-62.) We review a juvenile court's decision to deny a section 388 petition without an evidentiary hearing for abuse of discretion. (Id. at p. 62.)
Our Supreme Court has made it clear that reunification under section 388 must remain a viable possibility even after the termination of reunification services at a 12- or 18-month review if there is a "legitimate change of circumstances." (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) However, "[i]t is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)
"Not every change in circumstance can justify modification of a prior order. [Citation.] The change in circumstances must relate to the purpose of the order and be such that the modification of the prior order is appropriate. [Citations.] In other words, the problem that initially brought the child within the dependency system must be removed or ameliorated. [Citations] The change in circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged order." (In re A.A. (2012) 203 Cal.App.4th 597, 612.)
"[B]est interests is a complex idea.... [A] number of factors should be examined. Most of the time such factors will fall along a continuum, one extreme of which is the notion that just because a parent makes relatively last-minute (albeit genuine) changes he or she is entitled to return of the child, the other is the obvious attractiveness of insuring that the child remains with highly functional caretakers. Neither extreme can be dispositive. In the middle are a number of factors which may be derived from the existing dependency statutes themselves, and which drive a case in one direction or another." (In re Kimberly F., supra, 56 Cal.App.4th at p. 530.) Those factors, include, but are not limited to, "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (Id. at p. 532.)
The department argues the court acted within its discretion to deny father's petition for a new order without a hearing. The only basis father puts forward to justify holding a hearing is the court's determination that the infant sibling could remain in the care of his parents while they received family maintenance services. The department argues the trial court's discretion in deciding what to do in each case is broad enough to allow family maintenance for a new baby who has not yet been exposed to domestic violence while denying it for older children who have been exposed to violence and removed. They contend the different outcome is especially appropriate because father's conduct during H.H.'s dependency establishes no change occurred. In the older children's dependency father (and eventually mother) denied domestic violence was a problem in the relationship and questioned whether father needed services aimed at helping perpetrators of domestic violence. Father also denied needing mental health services and claimed his only problem was depression caused by the dependency itself. During the investigation in H.H.'s dependency they made the very same claims. In other words, far from addressing the causes of the dependency, the parents doubled down on the strategy of denying the problems existed. They also refused to allow a home visit so the department could assess the suitability of the home. The department argues all these things show the trial court did not act unreasonably by concluding that providing family maintenance services for H.H. did not constitute significant new evidence requiring a hearing on the section 388 petition. (In re A.A., supra, 203 Cal.App.4th at p. 612.)
We do not need to resolve the question whether the choice to place H.H. on family maintenance constituted new evidence sufficient to require a hearing on father's petition. We instead base our decision to affirm on the fact that father made no offering of proof that a change in order would be in the children's best interest. The best interest determination turns in part on the degree to which the problem that triggered the dependency may be easily removed or ameliorated, and the degree to which it has been. (In re Kimberly F., supra, 56 Cal.App.4th at p. 530.) Here, the father made no effort to show progress in addressing the causes of the dependency while reunification services were being provided, and he lost services as a result on November 16, 2023. His petition for a change of order five weeks later did not allege any change in his commitment to addressing those problems. Instead, he continues to deny they exist and relies only on the fact that the court allowed H.H. to remain in the parents' custody during family maintenance services.
It is uncontested that father continued refusing to cooperate with the department. As part of its investigation into father's section 388 petition, the department asked to perform a home assessment. Father refused to allow a home visit, claiming the department office "is 'the most appropriate place for this to be conducted.'" Later, when the department attempted to schedule a home visit for January 22, father claimed falsely to have a court hearing on that day. Father also said he would not sign any documents or speak to department staff without his attorney present. Both the focus of his pleadings and his continued resistance to cooperating with the department show there is no reason to believe he can provide a safe and appropriate home for all three very young children.
Father points to a couple of minor incidents at visits with the children to support his petitions. He says he was upset by a bruise on K.H. suffered in a fall and advised the foster father to hold his hand, and he says he refused to extend a visit because the children had no water, and he was worried about their well-being. These incidents do not change the fact that father has had only supervised visits in a public setting. He has not qualified for visits at home, for unsupervised visits, or for overnight or weekend visits. As a result, there is no evidence the parents are capable of safely parenting all three of these very young children together, particularly given father's claimed disability and the many demands mother has insisted interfere with her own ability to have extended visits.
Father's petition therefore fails because he did not establish a prima facie basis for concluding a change in order was in the best interests of the older children. The bare fact that the trial court thought it appropriate to order family maintenance services for the newborn sibling does not establish probable cause that it would be in the older children's best interest to be returned to father's custody.
We conclude the trial court's decision not to hold a hearing was within its discretion because there was no offer of proof that a change of order would be in the children's best interest. Though the trial court did not expressly address the best interest prong of the analysis, review is appropriate because the parties argued the issue in the trial court and on appeal, and the determination whether the petition established a prima facie case for a hearing requires review limited to the petition, declarations, and uncontested facts. (In re Angel B. (2002) 97 Cal.App.4th 454, 461 ["Whether Mother made a prima facie showing entitling her to a hearing depends on the facts alleged in her petition, as well as the facts established as without dispute by the court's own file"]; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414, 1416.) We therefore conclude any error in the new evidence prong of the trial court's analysis was harmless. (In re Celine R. (2003) 31 Cal.4th 45, 60 [harmless error analysis applies in dependency appeals].)
III DISPOSITION
We affirm the orders denying father's section 388 petitions.
We concur: McKINSTER Acting P. J. MENETREZ J.