Opinion
B211540 B213203
10-29-2009
In re ANDREW M., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ROBERT M., Appellant and Defendant.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant. James M. Owens, Assistant County Counsel and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
Not to be Published in the Official Reports
In September 2007, respondent Los Angeles County Department of Children and Family Services (the Department) commenced this action by filing a petition pursuant to Welfare and Institutions Code section 300 regarding Andrew M. The petition sought to remove Andrew from the custody of appellant Robert M. (father) on, among other grounds, that father sexually and physically abused Andrew.
All subsequent section references are to the Welfare and Institutions Code.
On May 19, 2008, the juvenile court sustained the Departments petition and asserted jurisdiction over the matter. Almost a year later, we issued an opinion (In re Andrew M. (Apr. 7, 2009, B208640) [nonpubl. opn.]) (the first opinion) affirming the juvenile courts May 19, 2008, jurisdictional and dispositional orders. In the first opinion we held, inter alia, that substantial evidence supported the juvenile courts findings that father sexually and physically abused Andrew.
On December 3, 2008, the juvenile court held a hearing regarding whether it should terminate its jurisdiction over Andrew. On that same date, father filed a petition pursuant to section 388 requesting the juvenile court to modify its May 19, 2008, dispositional order. The juvenile court denied the petition, terminated its jurisdiction over Andrew, and entered judgment granting Andrews mother Donna G. (mother) sole custody of Andrew and denying father the right to visit Andrew.
Father argues that the judgment should be reversed because he was denied due process. He contends that the juvenile court erroneously denied him a hearing on his section 388 petition. He further contends that the juvenile court erroneously refused to continue the December 3, 2008, hearing regarding the termination of the courts jurisdiction. Finally, father argues that there was insufficient evidence supporting the juvenile courts judgment.
For reasons we shall explain, we reject fathers arguments and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts relating to the Juvenile Courts May 19, 2008, Dispositional Order
In the first opinion, we summarized the facts relating to the juvenile courts May 19, 2008, dispositional order as follows:
"Andrew M. was born in November 1994. He is the son of appellant Robert M. (father) and Donna G. (mother). In April 2007, father filed a petition for dissolution of marriage against mother. At that time, and at all relevant times thereafter, father resided in Las Vegas, Nevada, and mother resided in Los Angeles, California. On September 17, 2007, the family law court awarded father sole custody of Andrew.
"Andrew began living with father in approximately March 2007. While there, Andrew witnessed his father smoking marijuana and `crystal looking stuff. Father was frequently `high on illicit drugs and once offered Andrew marijuana. In response to Andrews minor infractions of fathers rules or code of conduct (e.g. leaving a towel on the bathroom floor), father frequently beat Andrews buttocks and legs with a hanger or belt, leaving welts and bruises.
"In September 2007, father sexually abused Andrew on two occasions. The two incidents occurred in very similar ways. Father had Andrew drink several apple `martinis, causing the boy to feel `whoozy. Father then took off Andrews clothes and, over Andrews objections, sodomized Andrew by inserting his penis into Andrews anus. Father told Andrew if he informed anyone about these incidents, he would harm Andrew and the rest of his family.
"About a week after the second incident of sexual abuse, Andrew ran away from father while he and father were visiting Los Angeles County. Andrew fled from father because he was `scared that father would sexually abuse him again. Shortly after running away, Andrew was interviewed and detained by the Los Angeles County Department of Children and Family Services (Department)."
2. The May 19, 2008, Dispositional Order
On May 19, 2008, the juvenile court sustained most of the allegations in the Departments section 300 petition regarding fathers sexual and physical abuse of Andrew, and removed Andrew from fathers physical custody. By clear and convincing evidence, the court found that substantial danger existed to Andrews physical and emotional health and safety, and that there were no reasonable means to protect the child without removing him from fathers custody.
The court also ordered that father would not receive family reunification services and would not be allowed to visit Andrew pending further order of the court. Andrew was released to mother, who was ordered to ensure that Andrew received individual counseling.
3. Mothers Care for Andrew from May 19, 2008 to December 3, 2008
According to the Department, after the May 19, 2008, dispositional order, Andrew was "doing well" in mothers care. Andrew and his siblings were properly supervised by mother or a neighbor who served as a caretaker while mother worked. Andrew stated to the Department that he enjoyed living with mother and his siblings and that he no longer was interested in interacting with father. He further stated that he wanted this case to be terminated.
In compliance with the courts order, Andrew received psychological therapy at the Child Trauma Clinic at Harbor UCLA Medical Center. According to Andrews psychologist, Andrew made progress with his treatment goals of "reducing the frequency of anger outbursts and reducing his unwanted reexperiences of the event . . . ."
By August 2008, mother made plans to move to Missouri. She could not do so right away, however, because she had a commitment to work in California until at least November 2008.
In approximately late September 2008, Andrew moved to Missouri and stayed with his maternal uncle and his uncles girlfriend. After some delays, Andrew enrolled in school in Missouri. Andrews uncle stated to the Department "that it is a joy living with Andrew." Andrew, in turn, stated that he was "fine" and that he "love[d]" to live with his uncle and his uncles girlfriend.
4. August 19 and September 29, 2008, Hearings and Orders
The juvenile court held a hearing on August 19, 2008, which was attended by father and mother and their respective counsel, as well as counsel for the Department and Andrew. At that hearing, mother requested through counsel that the juvenile court terminate its jurisdiction and close the case. In response to that request, the court scheduled a section 364 "contest" hearing on September 29, 2008.
Section 364, subdivision (c) provides: "After hearing any evidence presented by the social worker, the parent, the guardian, or the child, the court shall determine whether continued supervision is necessary. The court shall terminate its jurisdiction unless the social worker or his or her department establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that those conditions are likely to exist if supervision is withdrawn."
When the court was informed that mother was contemplating moving to Missouri with Andrew, the court stated: "If mother wishes to move with Andrew, that is her right as a parent, as a custodial parent." The court further stated: "If she [mother] wants to place him [Andrew] with a relative, thats fine. She can do that because the child is in her custody." The court, however, ordered the Department to initiate an interstate compact investigation (ICPC) regarding mothers and Andrews new home in Missouri.
On September 29, 2008, the court continued the section 364 hearing to December 3, 2008.
5. Fathers Section 388 Petition
On December 3, 2008—the date of the scheduled section 364 hearing—father filed a section 388 petition requesting a modification of the May 19, 2008, dispositional order. Specifically, father requested that the juvenile court "[g]rant father reunification services and or visitation, including conjoint counseling, return minor Andrew to California."
Section 388, subdivision (a) provides: "Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made . . . ."
The section 388 petition listed the following changed circumstances justifying the relief sought: "Father acknowledged he had a substance abuse relapse and self-admitted himself into a rehabilitation program. He has subsequently completed the program. Additionally, the minor has contacted his paternal grandmother requesting information on contacting his father, thus indicating he has a desire to maintain some form of contact with his father. Additionally, minor indicated to his paternal grandmother that he was out of state."
The petition stated that the requested relief was in the best interests of Andrew for the following reasons: "In addition to the minors siblings, both parents currently reside in California. The minor, through his attempts to contact his father, has indicated some desire for continued/reinstated contact. Returning the child to California will allow the Department and the Court to ensure that the minor is receiving appropriate services, and allow the Department to complete the previously ordered ICPC on the out of state relative."
The petition was signed by fathers counsel but was not signed by father.
6. December 3, 2008, Hearing, Order and Judgment
At the December 3, 2008, hearing, fathers counsel asked that a hearing be set for fathers section 388 petition and for a "contest" of the family law custody order contemplated by the juvenile court. The court, however, stated: "Well, the family law custody order is being contested today. So you can put your contest on today. . . . [¶] . . . [¶] He [father] can certainly contest the termination and any exit orders if he wants. But Im going to do that today. I dont think that necessitates going over to a future date."
The court further stated: "The child has been [in the] home of parent, mother, since the [section 300] petition was filed. I think the mother — mother has made appropriate arrangements for Andrew. I dont hear his [Andrews] attorney indicating she wants to keep the case open. [¶] So Ill hear whatever evidence you want to present, but Im going to do it today."
The court denied fathers section 388 petition on the grounds that (1) the request did not state new evidence or a change of circumstances and (2) the request did not show that it would be in the best interest of the child to grant the petition. The court stated at the hearing: "I think its in the best interests of the child to terminate jurisdiction and let him [Andrew] go on with his life."
The court concluded the hearing by stating: "At this time the Court finds that the conditions that originally justified jurisdiction under Welfare and Institutions Code Section 300 no longer exist. The matter is terminated."
The court then signed a document entitled "CUSTODY ORDER—JUVENILE—FINAL JUDGMENT." The judgment awarded sole custody of Andrew to mother without giving father visitation rights.
7. Fathers Appeals
Father timely appealed the August 19 and September 29, 2008, orders. That appeal was assigned Case Number B211540 by this court. Father also timely appealed the judgment dated December 3, 2008. This court assigned case Number B213203 to fathers second appeal, and then consolidated the two appeals.
DISCUSSION
1. Father Forfeited Any Claim of Error With Respect to the August 19 and September 29, 2008, Orders
In his opening and reply briefs, father does not assert any arguments relating to the trial courts orders dated August 19, 2008 and September 29, 2008. He therefore forfeited any claim of error relating to those orders. (In re S.C. (2006) 138 Cal.App.4th 396, 410.)
2. The Court Did Not Abuse Its Discretion or Deny Father Due Process By Denying Father a Hearing on His Section 388 Petition
"After the termination of reunification services, the parents interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point `the focus shifts to the needs of the child for permanency and stability [Citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child." (In re Stephanie M. (1994) 7 Cal.4th 295, 317; see also In re Marilyn H. (1993) 5 Cal.4th 295, 308-310.)
Father sought to modify the order terminating family reunification services pursuant to a section 388 petition. Under section 388, a parent may petition the court to change, modify or set aside a previous order on the grounds of changed circumstances. (§ 388, subd. (a).)
We review the denial of a petition for modification under section 388 for an abuse of discretion. (In re B.D. (2008) 159 Cal.App.4th 1218, 1228.) "Broad deference must be shown to the trial judge. The reviewing court should interfere only `"if we find that under all the evidence, viewed most favorably in support of the trial courts action, no judge could reasonably have made the order that he did." [Citations.] [Citation.]" (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
A parent seeking to modify an order pursuant to section 388 must make a prima facie showing to trigger the right to proceed by way of a full hearing. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) "There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children." (Ibid; see also In re Kimberly F. (1997) 56 Cal.App.4th 519, 526; In re B.D., supra, 159 Cal.App.4th at p. 1228.)
In determining whether granting a section 388 petition is in the best interest of a child, the court must review a number of factors, including "(1) the seriousness of that problem which led to the dependency, and the reason for any continuation of the problem; (2) the strength of relative bonds between the dependent children to both parent and caregivers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.)
Whether a parent makes a prima facie showing entitling him or her to a hearing depends on the facts alleged in the petition, which must be liberally construed, as well as the facts established as without dispute by the courts own file. (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) If the petition and undisputed facts "do not show changed circumstances such that the childs best interests will be promoted by the proposed change of order, the dependency court need not order a hearing." (In re Anthony W., supra, 87 Cal.App.4th at p. 250; see also In re Angel B., at p. 465.)
Here, in fathers petition, the evidence attached to the petition and the undisputed facts found in the file did not show that providing family reunification services for father was in the best interests of Andrew. Assuming the facts alleged by father were true, these facts merely show that (1) father completed a substance abuse program, (2) Andrew contacted his paternal grandmother and indicated that he wanted to contact father, and (3) Andrew moved out of state. The principal reason Andrew was removed from fathers custody, however, was that father beat and raped Andrew. As we shall explain, none of the new facts alleged by father address the very serious physical and sexual abuse committed by father which led to Andrews dependency.
While fathers completion of a substance abuse program is commendable, there is nothing in the record indicating that fathers substance abuse is connected with fathers physical and sexual abuse of Andrew. More importantly, father did not allege that he is less likely to physically and sexually abuse Andrew in the future as a result of his completion of a substance abuse program.
Andrews alleged telephone conversation with his paternal grandmother also does not support fathers claim that it is in Andrews best interest to grant fathers petition. The mere fact that Andrew sought fathers contact information does not mean that Andrew wanted to live with or visit father. In fact, the only evidence in the record is that Andrew did not want to spend time with father, and for good reason. There is no evidence in the record, moreover, that Andrew had developed a significant bond with father. Conversely, there was substantial evidence in the record showing that Andrew developed a strong bond with mother, and was doing well in the temporary care of his maternal uncle.
Father contends it is not in Andrews best interest to move to Missouri because mother has not demonstrated she has arranged for Andrews therapy there and the Department has not completed an ICPC on Andrews maternal uncle. This argument confuses the issue before this court. The issue is whether granting father reunification services is in the best interest of the child, not whether Andrews move to Missouri is in his best interest. Andrews move to Missouri in no way supports fathers contention that it is in Andrews best interest to grant father reunification services.
Father did not make a prima facie showing that the modification of the May 19, 2008, dispositional order was in Andrews best interest. The juvenile court therefore did not abuse its discretion by denying fathers section 388 petition without a hearing.
3. The Court Did Not Abuse Its Discretion or Deny Father Due Process by Refusing to Continue the December 3, 2008, Hearing
Continuances in juvenile dependency proceedings are "disfavored." (In re David H. (2008) 165 Cal.App.4th 1626, 1635.) This is because the expeditious resolution of juvenile dependency proceedings is an important policy objective of the Arnold Kennick Juvenile Court Law, section 200 et seq. (the juvenile law). (See In re Josiah Z. (2005) 36 Cal.4th 664, 674; In re Jesusa V. (2004) 32 Cal.4th 588, 625.)
The juvenile court has discretion to continue hearings pursuant to section 352, which provides: "(a) Upon request of counsel for the parent . . . the court may continue any hearing under [the juvenile law] beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minors interests, the court shall give substantial weight to a minors need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.
"Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance. Neither a stipulation between counsel nor the convenience of the parties is in and of itself a good cause. . . ." (Italics added.)
Here, father did not show good cause to continue the December 3, 2008, hearing. Since August 19, 2008, father was aware that the court intended to hold a hearing to consider terminating its jurisdiction. Father thus had more than sufficient time to gather evidence for the hearing. Moreover, the juvenile court offered father an opportunity to present any evidence he wished, but father failed to take advantage of that opportunity. In addition, father did not state what evidence, if any, he would have offered at a continued hearing that would have persuaded the juvenile court to rule differently.
Finally, and most importantly, the juvenile court correctly stated that it was important to let Andrew "go on with his life." The section 364 hearing had already been continued once and, at the time of the hearing, more than 26 months had passed since the Department filed its section 300 petition. The juvenile court therefore did not abuse its discretion by declining to continue the December 3, 2008, hearing.
4. Substantial Evidence Supports the Juvenile Courts Judgment
Father argues that there was insufficient evidence supporting the juvenile courts judgment awarding sole custody to mother and denying father visitation rights. We disagree. As stated, in the first opinion, we found that there was substantial evidence supporting the juvenile courts finding that father physically and sexually abused Andrew. Father offers no arguments to the contrary.
Instead, father makes a number of allegations against mother. Father alleges, without citing to the record, that in 2007 a family law court found that "mother had committed welfare fraud, allowed the minor substantial contact with her boyfriend who had a felony criminal conviction for rape and sodomy of a minor, and had taken the minor out of school so that he could provide child care to his younger half-siblings."
"When an appellants brief makes no reference to the pages of the record where a point can be found, an appellate court need not search through the record in an effort to discover the point purportedly made." (In re S.C., supra, 138 Cal.App.4th at p. 406.) Nevertheless, we searched the record but could not find anything that supports fathers allegations against mother. Rather, the record indicates that in 1998 the Department investigated allegations that mother physically and emotionally abused her children, but determined that the allegations were unfounded.
Finally, father speculates, without citing anything in the record, that Andrews maternal uncle "might have a criminal record . . . ." We could not find anything in the record to support this allegation. Fathers allegations against the maternal uncle therefore do not support fathers claim that there is insufficient evidence to support the judgment.
DISPOSITION
The juvenile courts orders dated August 19, 2008 and September 29, 2008, and judgment dated December 3, 2008, are affirmed.
We concur:
CROSKEY, Acting P. J.
ALDRICH, J.