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In Re T.B., A Person Coming Under the Juvenile Court Law. v. Timothy B

December 3, 2010

IN RE T.B., A PERSON COMING UNDER THE JUVENILE COURT LAW. ORANGE COUNTY SOCIAL SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
TIMOTHY B., DEFENDANT AND APPELLANT.



Appeal from orders of the Superior Court of Orange County, Douglas Hatchimonji, Judge. Affirmed. (Super. Ct. No. DP006937)

The opinion of the court was delivered by: Fybel, J.

In re T.B. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

INTRODUCTION

In In re T.B. (Sept. 21, 2009, G041623) (nonpub. opn.) (In re T.B. I), we rejected Timothy B.'s (Father) argument he was wrongfully denied a contested postpermanency plan review hearing in January 2009. We did so because Father failed to make an offer of proof that his son T.B.'s best interests would be served by removing T.B. from his long-term foster care placement which had been selected in light of his Down syndrome and related health issues. We also held substantial evidence supported the court's finding that T.B. had received adequate services.

In In re T.B. (Apr. 5, 2010, G042513) (nonpub. opn.) (In re T.B. II),*fn1 we rejected Father's challenges to the juvenile court's August 2009 orders summarily denying his Welfare and Institutions Code section 388 petition seeking the return of then 17-year-old T.B. to his care and denying his request for a "fully contested" postpermanency plan review hearing. (All further statutory references are to the Welfare and Institutions Code.) We also held substantial evidence supported the court's finding T.B. had received adequate services.

In this appeal, Father challenges the juvenile court's March 2010 orders summarily denying Father's section 388 petition in which he sought further reunification services (the section 388 petition). He also argues the juvenile court erred by failing to hold a contested postpermanency plan review hearing and to grant Father further reunification services.

We affirm. As discussed in detail post, Father failed to make a prima facie showing that changed circumstances or new evidence supported an order granting him further reunification services, or that T.B.'s best interests would be served by such an order. Father was not entitled to a contested postpermanency plan review hearing on the issue of further reunification services because he failed to make an offer of proof showing that further reunification services would be in T.B.'s best interest.

BACKGROUND

In re T.B. I and In re T.B. II, each contains a detailed background section setting forth the factual and procedural history of T.B.'s dependency case. In this opinion, we reiterate portions of those background sections to provide a factual and procedural context for the resolution of the issues raised in this appeal.

I. THE JUVENILE COURT SUSTAINED THE ALLEGATIONS OF THE AMENDED DEPENDENCY PETITION, TERMINATED REUNIFICATION SERVICES, AND SELECTED LONG-TERM FOSTER CARE AS THE PERMANENT PLAN FOR T.B.

In August 2002, Father pleaded nolo contendere to the allegations of the amended juvenile dependency petition which alleged T.B. and his sister, R.B., came within the jurisdiction of the juvenile court under section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). The amended petition also alleged R.B. came within the court's jurisdiction under section 300, subdivision (a) (serious physical harm).

The amended petition alleged T.B. and R.B. resided with Father; their mother and Father were divorced and did not live together. In June 2002, then nine-year-old T.B. and then 13-year-old R.B. were detained after Father hit R.B., causing her to suffer a broken nose, and failed to obtain medical care for her. Father had previously disciplined R.B. by striking her with a paddle.

The amended petition further alleged R.B. had been previously taken into protective custody in December 1988 "due to substantiated allegations of sexual abuse, neglect and emotional abuse of [her] half-sibling, J[.]W[.]" by Father. R.B. "was determined to be at risk" and was declared a dependent of the juvenile court. She had a permanent plan until June 1994, when her dependency status was terminated.

The juvenile court found the allegations of the amended petition true by a preponderance of the evidence and declared T.B. and R.B. dependent children of the court. R.B.'s dependency case was closed in November 2006 after she had reached the age of majority. No issues regarding R.B's dependency case are raised in this appeal.

In February 2004, the juvenile court terminated reunification services and selected a permanent plan of long-term foster care for T.B. In March 2005, the court found, "the permanent plan of independent living with identification of a caring adult to serve as a lifelong connection" for T.B. was appropriate and ordered as the permanent plan.

II. THE JUVENILE COURT DENIED FATHER'S REQUEST FOR A CONTESTED POSTPERMANENCY PLAN REVIEW HEARING AND FOUND, INTER ALIA, T.B. HAD RECEIVED ADEQUATE SERVICES; FATHER APPEALED FROM THE COURT'S ORDER AND WE AFFIRMED.

At the January 2009 postpermanency plan review hearing, the juvenile court admitted into evidence the Orange County Social Services Agency's (SSA) status review reports. One of the reports stated that then 15-year-old T.B. resided at a South Coast Children's Society group home, "a Level 14 Regional Center Group Home," where he was being provided the structured setting and "1:1 status" he required. The status review report chronicled T.B.'s medical care, specialized developmental and educational services, and mental and emotional status. The report stated Father communicated with T.B. through telephone calls and periodic visits, and further stated Father wished to care for T.B. at his home in Idaho where he lived with his new wife. At the juvenile court's request, SSA researched whether T.B. might be transferred to a group home setting in Idaho, but did not find a group home that could or would accept T.B.

SSA also reported incidents where T.B. "ha[d] acted out scenes of 'Daddy hitting mommy[.']" T.B. took Father's picture and wanted to shred it in a shredding machine. SSA recommended that T.B. continue as a dependent child, that the court find T.B.'s current placement is appropriate, and that the court conclude T.B. should continue to be placed in long-term foster care.

An addendum report stated the house manager at T.B.'s group home reported that Father engaged in some "questionable behavior" during his September 8, 2008 monitored visit with T.B. by "plac[ing] his hand on T[.B.]'s 'butt.'" The social worker reviewed a special incident report stating that on September 9, T.B. got out of bed, pushed a stuffed bear up against a wall, and called it a "bad boy." T.B. also held the bear with one arm at the neck and shook a finger at it. He then threw the bear on the floor. The incident report stated that T.B. "was processed . . . about nice touches and proceeded to give the bear a hug and scratched the bear[']s butt before patting it." The house manager also stated T.B. "ha[d] been physically acting out some aggression in scenarios involving 'daddy hitting mamma,'" which behavior was "new for T[.B.]." She also said that T.B.'s aggression had escalated after his visit with Father and that T.B. had acted out sexually toward the staff, other residents, and his stuffed bear.

R.B. told the social worker that she thought T.B. was referring to Father's abuse of her when he used the term "mamma." T.B. often referred to R.B. as "mama." The addendum report further stated, "T[.B.] continues to function well in the care of the staff at the South Coast Children's Society home. T[.B.] appears to be happy and all of his physical, emotional, medical, and educational needs are being met in his current placement. The staff reports that T[.B.] is well liked and well received by the staff and other residents. The undersigned believes the best and most appropriate plan for T[.B.] continues to be Long Term Foster Care."

At the postpermanency plan review hearing in January 2009, Father's counsel requested that the juvenile court hold a contested hearing to enable Father to cross-examine the social worker regarding statements in SSA's reports suggesting Father had engaged in domestic violence against his wife and inappropriately touched T.B. The juvenile court denied Father's request for a contested hearing on the ground that the court was not considering those portions of SSA's reports as that information was irrelevant to the issues reviewed at the postpermanency plan review hearing. Following the hearing, the court found, inter alia, that continued supervision of ...


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