Opinion
A149592
03-27-2017
In re Q.G., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. D.G., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. JD15-3131)
D.G. (Father) appeals from orders denying his request for an evidentiary hearing pursuant to his Welfare and Institutions Code section 388 petition, setting the matter for a section 366.26 hearing, terminating his parental rights, and ordering adoption for Q.G. Father's sole contention on appeal is that the juvenile court erred by denying his section 388 petition without a hearing. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
BACKGROUND
Following a referral from a hospital social worker that K.M. (Mother) had a positive toxicology screen for cocaine, methamphetamines, and marijuana during the birth of Q.G., the San Francisco Human Services Agency (Agency) filed a juvenile dependency petition alleging the infant came within the juvenile court's jurisdiction. (§ 300, subds. (b) & (j).) The Agency alleged failure to protect the minor, stating she was at risk due to Mother's substance abuse and that Mother and Father were in need of assessment and treatment as to their mental health and substance abuse issues, respectively. Hospital staff reported both parents appeared to be under the influence at the time of Q.G.'s birth and Father stated "he was interested in drug treatment."
In the Agency's detention report, Mother identified D.G. as Q.G.'s father. At the April 2015 detention hearing, the juvenile court found there would be substantial danger to Q.G.'s physical and emotion well-being if she were returned to Mother's care and ordered Q.G. detained. Father did not appear but was notified of the outcome, and the court set the matter for a jurisdictional hearing on May 7. The Agency submitted a declaration of due diligence in which a social worker detailed her attempts to contact Father. The social worker stated Mother reported Father lived with her, and "[w]hile the undersigned has not been able to speak directly with the father the address of the mother and the DMV address are both verified." The social worker sent telegrams to both addresses and believed that Father had been notified of the upcoming hearing.
Mother waived reunification services and is not a party to this appeal, we therefore summarize only those facts relevant to Father.
On May 12, Father entered a denial to the allegations in the petition, the court ordered paternity testing, and advised the parents "if the petition in this matter is sustained and the child is declared a dependent of the court and removed from the custody of a parent and the parent fails to participate regularly in any court ordered treatment program, the court-ordered reunification services shall not exceed 6 months for a child who is under the age of 3 at the time of the initial removal."
In its jurisdiction report, the Agency recommended the allegations in the petition be sustained, no reunifications services be provided, and Q.G. be declared a dependent child. Father had not presented himself to the Department for assessment. The Agency's recommendations were based on Father's "extensive criminal history comprised of numerous arrests for possessing, selling and being under the influence of illegal substances," and that Father appeared to be under the influence at the time of Q.G.'s birth and later while visiting her in the intensive care unit. Due to Father's failure to contact the social worker, the Agency had "been unable to assess his ability to meet his basic needs" as to his housing situation, resource management skills, parenting skills, social support system, or mental health status. The report noted there was no domestic violence between Mother and Father, however, on June 3, Mother requested a temporary restraining order (TRO) against Father alleging he had hit her on the head several times, punched her in the mouth, and hit her on the neck with a stick or lamp post. The court granted the TRO and set a hearing for June 18, the same date as the jurisdictional/disposition hearing.
The Agency filed an addendum report noting Father's paternity test had been rescheduled to July. Father had previously claimed Q.G. was his child and a social worker had spoken to Father in early June and he stated he would like reunification services if it was determined Q.G. was his daughter. Father further stated that "although he was aware of [Mother's] substance use during her pregnancy, he did not believe that there was anything he could do to stop her from using and he did not definitively believe that the unborn child was his." However, when Q.G. was born, Father noting the strong resemblance she shared with him said "he [was] prepared to take the necessary steps to get his life together and meet her needs." Father denied he had been under the influence at the hospital during Q.G.'s birth but stated he was just sleepy. Additionally, Father stated he no longer lived with Mother and that she had been the aggressor and had attacked him during the June domestic dispute. The report detailed the Agency's service recommendations for Father, including that he complete a residential drug treatment program, complete a parenting education program, visit Q.G. regularly, obtain and/or maintain suitable housing for himself and Q.G., and cooperate with the services of a fatherhood support group. Father then told the social worker he wanted to wait until paternity results before he engaged in services. The social worker encouraged him, while results were pending, to complete an assessment with Homeless Prenatal to identify a residential treatment program for him and Q.G., and to begin random drug testing which would accelerate Q.G.'s placement with him should he be named father. On July 14, in addition to denying reissuance of the TRO the court also changed Father's status to presumed after a paternity test revealed he was Q.G.'s biological father.
After the July 14 hearing, a social worker had the opportunity to talk with Father and provided him with previously-mailed information about referrals sent on his behalf for two residential treatment programs, and the social worker encouraged him to complete intake assessments for those programs, as well as to begin weekly random drug testing with Accurate C&S Services.
At a contested jurisdiction/disposition hearing, Mother and Father submitted on the allegations of the petition as amended and the court found by clear and convincing evidence there was substantial danger to Q.G.'s physical or emotional well-being if she were to be returned home. The court ordered Q.G. placed with a relative, ordered supervised visitation, and advised Father the court may terminate reunification services within six months for failure to participate with reunification requirements and that his parental rights could also be terminated.
In September 2015, Q.G's maternal aunt notified the Agency she could no longer keep Q.G. because of financial and emotional issues, as she currently had four children of her own. In response, a team making decision (TMD) meeting was held, with Father participating in person and Mother by telephone. "No other relatives were identified for placement during this meeting. However, both parents said that they would submit the contact information, (by the end of the week) of other relatives that could be assessed for possible placement." Neither parent contacted the Agency.
In its six-month status review report, the Agency recommended reunification services for Father be terminated. Father had not reported to the Agency on his living situation either at the September TMD meeting or in response to the social worker's multiple attempts to contact him. The Agency also did not know if Father could support himself financially. Father's lack of contact with the Agency also meant they could not assess his parenting skills, social support, physical or mental health, or substance abuse issues. His compliance with his case plan requirements (residential drug treatment, parenting classes, maintaining suitable housing, fatherhood support group) was also unknown. Additionally, Father had not had any visits with Q.G. Q.G. had been placed with a family who expressed their willingness and ability to adopt. The Agency recommended the court terminate services as to Father and move toward a permanent plan for Q.G. as it would be in her best interest and "she deserves legal permanency." An agency social worker also submitted a declaration of due diligence noting the attempts to contact and find Father. The social worker declared she "was unable to contact [Father] through [her detailed] efforts."
At the contested six-month hearing, in March 2016, the juvenile court found notice had been provided as required by law, the condition which justified the initial jurisdiction still existed, return of the child would create a substantial risk of detriment, there was not a substantial probability of return within the next six months, and by clear and convincing evidence reasonable services had been provided. The court thereby terminated Father's reunification services and set the matter for a hearing pursuant to section 366.26.
The Agency, in its July section 366.26 report, noted Q.G. was developmentally above average for her age, and seemed happy and energetic in her current placement. On July 27, 2016, Father filed a request to change the order terminating his reunification services. (§ 388.) He stated he had been "actively participating in the Navigation Center program and receiving services and support there since 4/8/16," and that he would be "moving into permanent housing in SF by 8/10/16 and is able to provide a safe and stable home for his daughter." Father expressed that it would be better for Q.G. to be with him because she "deserves to be with her father who can provide a loving, safe, and appropriate home for her. Her father loves and misses [her] and she deserves to be reunified with her father so that she can grow up with her father, maintain her relationship with [him], and maintain family connections." In his attached declaration, Father maintained he had been going to the Navigation Center, a multi-service emergency program, since April. He stated he was currently receiving cash aid and mental health support, and was "working on applying for disability," and "planning on enrolling in substance abuse treatment . . . for support around my sobriety." Father additionally stated he had not been able to receive any prior notices, as Mother never gave him mail sent to their address. Father said he had visited Q.G. in the beginning of the case, but claimed "the social worker changed numerous times during the case and visits were subsequently not set up for [him]," so he had not visited Q.G. in many months. Finally, Father noted his "daughter was placed into foster care because the mother was using drugs while she was pregnant, which is not something that [he] had control over."
In support of his petition, Father attached a letter from a social worker at Episcopal Community Services. The letter verified that Father was a participant at the Navigation Center starting in April 2016. The social worker stated Father was "highly motiv[ated] and has had excellent follow through with his weekly housing and counseling appointments," and that they had discussed Father enrolling in outpatient substance abuse services.
On August 1, the court held a combined hearing to determine whether to grant the request for an evidentiary hearing pursuant to a section 388 petition, and, if denied, whether to terminate parental rights pursuant to section 366.26. Counsel for the Agency argued Father failed to satisfy his burden of showing changed circumstances or that the proposed modification was in Q.G.'s best interests. Instead, counsel contended Father merely showed a "potentially changing circumstance," and that in support of his petition Father "offered no evidence whatsoever that the proposed modification would be in the child's best interests," but rather offered "a conclusory statement . . . that this baby would be better off in the care of her father, that she deserves to be in the care of her father." Father for his part maintained he had shown a changed circumstance, he did not believe "the substance use issue has been proven with regard to his own use," and felt he had not received proper notice as he claimed Mother had not provided him with his mail and he was not able to provide his complete current address because he did not have a suite number.
The juvenile court found Father "ha[d] been given adequate notice throughout every calling of this case. He's been given notice in my courtroom, he's been told about the various hearings. [¶] . . . And even if one were to—one were to be sympathetic to his argument, he has made no attempt whatsoever to contact the social worker." The court did not find any changed circumstances. Additionally, given that Father had not secured housing, "had no contact with the social worker or the Agency since the July 1st reporting period," and that Q.G. was currently "thriving" in her placement, the trial court concluded it was in her best interest "to continue with the stability and the permanence that is taking place right now." The court denied the request for a hearing pursuant to section 388. The court then proceeded with the section 366.26 hearing and after hearing from counsel and the social worker in charge of the case, the court terminated Father's parental rights and set adoption as the permanent plan.
DISCUSSION
Father argues the juvenile court erred in denying him an evidentiary hearing on his section 388 petition because his petition "clearly established a prima facie case of changed circumstances and a showing that a section 388 hearing would be in the minor's best interests." "We review the juvenile court's summary denial of a section 388 petition for abuse of discretion." (In re Anthony W. (2001) 87 Cal.App.4th 246, 250 (Anthony W.).)
Section 388 provides in relevant part, "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 petition shall be verified and . . . shall set forth in concise language any change of circumstance or new evidence that is alleged to require the change of order . . . ." (§ 388, subd. (a).)
"A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. A parent need only make a prima facie showing of these elements to trigger the right to a hearing on a section 388 petition and the petition should be liberally construed in favor of granting a hearing to consider the parent's request. [¶] However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. The 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." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
Father relies on In re Hashem H. (1996) 45 Cal.App.4th 1791 (Hashem H.) in support of his position. In Hashem H., the Court of Appeal reversed a grant of guardianship concluding the trial court "summarily and erroneously denied a hearing" on the mother's section 388 petition. (Id. at p. 1793.) The mother in Hashem H. had participated in a continuous 18 months of individual therapy, consistently and regularly visited Hashem for more than a year, participated in joint counseling with him, had stable employment, and was currently able to provide a home for Hashem on a full-time basis. (Id. at p. 1799.) The court determined that a reading of the petition "indicate[d] that appellant's mental and emotional problems which led to the removal of Hashem from her home had been successfully resolved through therapy. Appellant's petition made out a prima facie case of changed circumstances." (Ibid.)
That is not the case here. Father did not make a showing of changed circumstances. Though he was in the process of getting housing, he had not yet obtained it and furthermore, it would only be after his rights were restored that he could begin the process of finding suitable housing for himself and Q.G. He had not completed any of the services the Agency had determined he needed, including parenting education classes and residential drug treatment. There was no evidence of dates of attendance for parenting education classes or drug treatment. Nor was there any evidence regarding drug tests or results.
Despite Father's contention that substance abuse had not been proven as an issue in regards to him, there is evidence otherwise. Father himself submitted on the allegations of the juvenile dependency petition, in his and the Navigation Center social worker's declarations attached to his section 388 petition he stated he was in discussions to enroll in substance abuse treatment "for support around [his] sobriety," hospital staff also thought he was under the influence at Q.G.'s birth, and at the hospital he stated he was interested in drug treatment. Father also maintained he had not received sufficient notice. However, the court did not credit this, concluding Father "ha[d] been given adequate notice throughout every calling of this case." Additionally, though the social worker on his case changed, the address of the Agency did not, and he presented no evidence that he was prevented from contacting the Agency directly.
Finally, Father presented no evidence to demonstrate a modification would be in Q.G.'s best interest. He had not seen Q.G. in a year and he had not yet obtained housing for himself and Q.G. As the court noted, Q.G. was currently thriving in her placement and it was in her best interest "to continue with the stability and the permanence that is taking place right now." (See Anthony W., supra, 87 Cal.App.4th at pp. 251-252 ["At this point in the proceedings, on the eve of the selection and implementation hearing, the children's interest in stability was the court's foremost concern, outweighing any interest [Father] may have in reunification."].) Beyond conclusory statements, Father failed to make a showing that Q.G. would be better served by changing the current orders. "The children should not be made to wait indefinitely for [Father] to become an adequate parent." (Id. at p. 252.) We conclude there was no abuse of discretion and the court did not err in denying Father's section 388 petition.
Given our conclusion that the trial court did not abuse its discretion in summarily denying Father's section 388 petition we need not reach the Agency's argument that any such error was harmless. --------
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
Banke, J. We concur: /s/_________
Margulies, P.J. /s/_________
Dondero, J.