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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE


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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 T.B. was necessary; pursuant to section 366.3, T.B. had received adequate services; and there had been substantial compliance with the permanent plan and the case plan.

Father appealed from the juvenile court's order on the ground the court erred by denying his request for a contested postpermanency plan review hearing and by finding that adequate services had been provided to T.B.

In In re T.B. I, we affirmed the juvenile court's order, stating: "Under section 366.3, subdivision (f), Father was not entitled to a contested postpermanency plan review hearing unless he made an offer of proof showing that removing T.B. from his current placement and returning him to Father's care would serve T.B.'s best interest. Father did not make such an offer of proof. Furthermore, substantial evidence supported the juvenile court's finding T.B. had received adequate services." (In re T.B. I, supra, G041623.)

III. SSA'S JUNE 30, 2009 STATUS REVIEW REPORT

SSA filed a status review report on June 30, 2009, which stated T.B.'s placement at the group home "continues to be appropriate" as his "caregivers appear to be committed to providing for [his] challenging needs" and have "exhibited appropriate concern." The caregivers' "efforts to provide [T.B.] with needed medical, emotional, and educational care" have been "to the best of their abilities and resources." They are able to care for T.B.'s daily needs and desires and understand T.B's special needs which have been addressed effectively and efficiently. T.B. was enrolled in a special day class at a public high school where he "is entitled to receive a free and appropriate public education until December of his 22nd birthday year."

The report explained T.B. "requires a highly structured setting that provides a comprehensive behavior modification program. The therapist . . . and staff . . . provide clear and consistent structure for T[.B.] while creating a nurturing and safe environment to facilitate supportive interaction and healthy interpersonal skills." T.B. continued to display disruptive social behavior and physically aggressive behaviors toward staff, peers, and himself; he caused physical injury to others by biting, spitting, hitting, and kicking. He also exhibited "hostile behaviors," such as throwing objects, swearing, and hitting others, when he is frustrated. T.B. had daily emotional outbursts and engaged in self-injurious behaviors, including hitting his head with a closed fist or against the floor, a wall, or furniture. T.B. had been provided with "one-on-one" services which had enabled him "to establish trusting relationships" and resulted in his disclosure of his "personal history of endured or witnessed abuse."

Staff members had reported that T.B.'s "maladaptive behaviors" had decreased, he had been able to control his impulsivity, he "displays more confidence in his verbal abilities," and his "socially appropriate skills" have "improved greatly." After completing an evaluation at the University of California Irvine, Medical Center in October 2008, the evaluating team concluded T.B.'s "severe challenging behaviors are likely a variant of Post Traumatic Stress Disorder" in that T.B. "experienced severe trauma in his early childhood and he appears highly anxious and distrustful of others."

The report addressed T.B.'s recent health issues, explaining that T.B. required constant supervision while eating because he suffers a high risk of choking. The group home staff performed the Heimlich maneuver on T.B. several times. The most serious incident occurred in March 2009 when T.B. aspirated a piece of hamburger meat; he was therefore placed on a puree diet. As a result of the aspiration incident, T.B. developed a fungal infection in his lungs which caused his admission to the hospital on May 26, 2009, where he was in critical condition for several days. He was discharged from the hospital on June 14, 2009 and returned to his group home. During his illness, he lost 10 pounds and was "alarmingly thin." T.B.'s one-on-one staff member reported that he had gained back four pounds as of June 19 as she was "literally feeding him constantly."

The report also stated Father continued to reside in Idaho with his wife and communicated with T.B. through telephone calls and periodic monitored visits. T.B. occasionally asked to speak with Father on the telephone. SSA had explored three possible placement options for T.B. in Idaho at Father's request but none of those placements would take T.B. "due to his ongoing incident reports and sexually acting out behavior." The report further stated: "At the current time, there is no group home available to meet T[.B.]'s needs."

T.B.'s one-on-one staff member expressed that she was "a little disturbed" at the conclusion of one of Father's visits because "rather th[a]n giving T[.B.] a hug or a kiss on the cheek, the father put his head on T[.B.]'s stomach facing his feet and began to stroke the inner part of T[.B.]'s leg." The staff member further stated, "she felt uncomfortable as she had witnessed T[.B.] 'play out this same action on a doll in play therapy.'" She also stated Father did not pay much attention to T.B. during their visit but instead watched a game on television.

IV. THE AUGUST 2009 SECTION 388 PETITION SEEKING THE RETURN OF T.B. TO FATHER'S CARE

In August 2009, Father filed a petition under section 388 seeking to change the juvenile court's order that the continued supervision of T.B. was necessary and that T.B. continued to require "out of home care" (August 2009 section 388 petition). Father asserted the following change of circumstances: "The child has continued to suffer from declining health and has been admitted to the hospital on three occasions over the past 6 months. T[.B.]'s weight has dropped significantly over the past month. [Father] has sought community resources in Idaho which can meet T[.B.]'s needs and is committed to providing daily oversight of his son's care." Father asserted the requested changes would be better for T.B. because "Father is capable, available and willing to provide daily oversight and advocacy for his son in all areas of his life; educational, medical and psychiatric care, something that the Social Services System does not have the resources or time to do. T[.B.] is a special needs child who needs constant oversight and advocacy which father can provide."

In the declaration filed in support of the August 2009 section 388 petition, Father stated he was asking for "an immediate referral" for an "expedited approval for placement" in his home in Idaho through the Interstate Compact on the Placement of Children, or, in the alternative, a suitable out-of-home placement near his home in Pocatello, Idaho, to enable him to provide "daily oversight" of T.B.'s care. He stated several facilities exist in his area which provide services for the Down syndrome community, including residential care facilities which can meet T.B.'s needs. Father stated he also wanted a "second, fairer chance" for family reunification services.

In his declaration, Father also asserted he knows how to care for T.B. because he had done so during T.B.'s first 10 years of life; he can feed, bathe, and otherwise provide for T.B.'s needs in the four-bedroom, 3,000-square-foot residence he shares with his wife. Father also stated he is "on disability" and thus available 24 hours per day and seven days per week to care for T.B. He described his multiple church and community services activities, including providing care for an elderly stroke victim. Father stated he has made efforts to find parenting resources through the Down syndrome organization in his community and has participated in "mandtsystem training" which he did not describe. He requested a court order requiring that (1) he be provided information regarding T.B's medical, psychological, and education information "just as if [he] were T[.B.]'s custodial parent"; (2) at least one unmonitored visit; and (3) a complete physical and mental assessment of T.B. by a neutral medical group. Father attached to his declaration a letter from a reverend of a local church, a list of group homes in Idaho, and letters from his brother, his friends, and his wife. The attachments addressed Father's love for T.B., his skills as a caregiver, and/or instances where Father's visits with T.B. were negatively impacted, for example, by T.B. arriving late.

V. SSA'S AUGUST 12, 2009 ADDENDUM REPORT

SSA filed an addendum report on August 12, 2009, stating that on July 15, 2009, T.B. had banged his head against a wall and then appeared to calm down before he began to display "unusual behavior" which included wanting to lie down, slurring his speech, exhibiting unbalanced walking, complaining about being thirsty, and displaying slower than normal movements and reactions. T.B. was taken to the hospital, determined to have the flu, and discharged the same day with instructions to get plenty of rest; he felt better the following day. As of July 30, T.B. had gained additional weight; he refused, however, to eat independently.

The addendum report also stated that on July 21, 2009, the social worker called the director for group homes in Idaho. The director told the social worker that residential options were very limited in Idaho "especially for clients with challenging behaviors." She said that unfortunately, some private group homes initially accept clients to turn a profit but then shortly after admission, begin the process of removal. She identified one group home as a good facility but that facility had already informed SSA that it was unable to serve T.B.

The report further stated T.B. "has been a resident at the Caladium Group Home since February 2, 2005. Since this time the direct care staff and numerous support staff have been providing excellent medical, physical and emotional care for the child T[.B.]. During his hospitalizations T[.B.] received ongoing visitation and personal care from his staff. T[.B.] looks to these staff as extended family and refers to Caladium House as his home."

VI. FATHER'S SUPPLEMENTAL DECLARATION TO AUGUST 2009 SECTION 388 PETITION

Father filed a supplemental declaration to his August 2009 section 388 petition, which reiterated the requests contained in his original declaration. He also asserted that he had never received any telephone calls regarding T.B. during his hospitalization in May 2009. Father attached a letter, dated over three years earlier in March 2006, from a group home in Idaho, which stated the home required information before it could consider admitting T.B. and the required information had not been provided by the social worker. He attached a letter from the wife of the elderly stroke victim for whom Father provided care, which described, inter alia, Father's and his wife's community service, participation in a local church, and love for T.B.

VII. THE JUVENILE COURT SUMMARILY DENIED THE AUGUST 2009 SECTION 388 PETITION, CONDUCTED A LIMITED CONTESTED POSTPERMANENCY PLAN REVIEW HEARING, AND FOUND T.B. HAD RECEIVED ADEQUATE SERVICES; WE AFFIRMED THE COURT'S ORDERS IN IN RE T.B. II.

After hearing argument, the juvenile court summarily denied Father's August 2009 section 388 petition on the ground he had not made a prima facie showing. The court stated it would conduct a contested postpermanency plan review hearing, but it would not admit into evidence certain letters attached to Father's declaration. The court also limited testimony to that provided by Father and the social worker. The court denied Father's counsel's request that Father be recalled for rebuttal testimony following the social worker's testimony.

Following the hearing, the juvenile court found, pursuant to section 366.3, by a preponderance of the evidence, that the services provided to T.B. had been adequate, and that there had been substantial compliance with the permanent plan and with the case plan. The court's minute order stated, "[i]n making this finding, court also considered testimony and demeanor of father." The court found T.B.'s placement "necessary and appropriate." The court denied Father's request for unmonitored visitation but granted his request "for current psychological assessment, social medical assessment, functional assessment and medical evaluation."

Father appealed from the juvenile court's orders on the ground the court erred by (1) summarily denying Father's August 2009 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; and (2) finding at the postpermanency plan review hearing that T.B. had received adequate services.

In In re T.B. II, we affirmed the juvenile court's orders. We held, "Father failed to make a prima facie showing in support of the section 388 petition to warrant a hearing. The juvenile court did not err by limiting the scope of the testimony and other evidence admitted at the postpermanency plan review hearing, and, even if it had, Father has not addressed how he suffered any resulting prejudice. Substantial evidence supported the court's finding T.B. had received adequate services." (In re T.B. II, supra, G042513.)

VIII. SSA'S FEBRUARY 2010 STATUS REVIEW REPORT

In a status review report dated February 10, 2010, SSA recommended that at the next postpermanency plan review hearing, the juvenile court find that T.B.'s placement and permanent plan continue to be appropriate, that there has been compliance with the permanent plan, and that the court's existing orders should remain in effect. The report stated T.B. continues to reside at the Caladium House and Father and his wife continue to reside in Idaho. Father telephones T.B. on a monthly basis and visits him approximately three times per year. T.B. has gained weight since his release from the hospital in June 2009 and appears healthy.

T.B. continues to have "one[-]on-one-staff." The group home staff is "loving and nurturing towards T[.B.]." The staff monitors T.B. as he completes his daily living activities and prevent him from hurting others and himself due to his continual impulsive and hyperactive behavior. The group home staff is well trained and are aware of T.B.'s problems. They know "what techniques to utilize to redirect and deescalate T[.B.] when he is having a tantrum or is expressing aggression towards himself or others"; they are "highly qualified to address T[.B.]'s challenging behavior and provide appropriate supports and reinforcements." They "continue to appropriately care for T[.B.]'s daily physical and emotional needs."

The report stated T.B. "appears secure in his group home setting and with the staff who care for him." Although T.B. is in a highly structured program which includes a comprehensive behavior modification component, T.B. "continues to have numerous disruptive social behaviors resulting in weekly and sometimes daily Special Incidents Reports," which require staff intervention.

The report also stated that on December 7, 2009, the social worker received an e-mail message from T.B.'s group home, which stated: "T[.B.] was upset all night after talking to dad . . . Beating up stuffed animals and saying stuff like 'no more daddy . . . bad daddy . . . I hate you daddy . . . daddy hurt . . . I'm scared--no more talk to daddy . . . no touch daddy.' He was so sad and so scared to be alone. Never seen him that way. Nothing bad was said--we listened the whole time. Staff kept asking if he was okay--that's about it. He finally laid down and said 'stay with T[.B.] all night? T[.B.] scared. Bad daddy.'" (Original ellipses.)

IX. THE SECTION 388 PETITION

In March 2010, Father filed the section 388 petition in which he requested further reunification services. The section 388 petition alleged the change of circumstances warranting further reunification services was T.B.'s birthday in November 2010 at which time he would reach the age of majority. The section 388 petition stated further reunification services were in T.B.'s best interest because he "will require appropriate adult care and supervision throughout his life and will not be eligible to be a dependent of the Juvenile Court in the coming years."

In a supporting declaration, Father stated he was asking the juvenile court to order reunification services "designed to meet [his] needs and those of [his] son so that [he] may have T[.B.] placed in [his] care in [his] home in Idaho." Father's declaration reiterated evidence set forth in his prior declaration filed in support of his August 2009 section 388 petition through which he sought the return of T.B. to his care. That evidence included his knowledge of how to care for T.B., his ability to assume full-time care of T.B. in his home with the assistance of his loving and supportive wife, his status as a trusted member of his church and community, his experience of providing care for a man who has been disabled by a massive stroke, and his love for and commitment to T.B.

X. THE JUVENILE COURT SUMMARILY DENIES THE SECTION 388 PETITION AND DOES NOT CONDUCT A CONTESTED POSTPERMANENCY PLAN REVIEW HEARING; FATHER APPEALS.

At a hearing, the juvenile court simultaneously addressed the common issues underlying the section 388 petition and the scheduled postpermanency plan review hearing. The court summarily denied the section 388 petition, stating Father had not made a prima facie showing of changed circumstances or new evidence that would support the section 388 petition. The court also stated that Father had failed to make a prima facie showing that further reunification services would be in T.B.'s best interests. The court found, pursuant to section 366.3, that the services provided to T.B. are adequate and that there has been substantial compliance with the permanent plan and with the case plan. The court set a postpermanency plan review hearing. Father appealed.

DISCUSSION

I. THE JUVENILE COURT DID NOT ABUSE ITS DISCRETION BY SUMMARILY DENYING THE SECTION 388 PETITION SEEKING FURTHER REUNIFICATION SERVICES.

Father contends the juvenile court erred by summarily denying the section 388 petition in which he sought further reunification services. We review the juvenile court's decision to deny the section 388 petition without a hearing for an abuse of discretion. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) For the reasons discussed post, we conclude the juvenile court did not abuse its discretion.

As we explained in In re T.B. II, to succeed on a section 388 petition, a parent must show changed circumstances establishing that the proposed modification would be in the best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) "The parent seeking modification [through a section 388 petition] must 'make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]' [Citations.] 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. [Citation.] If the liberally construed allegations of the petition do not show changed circumstances such that the child's best interests will be promoted by the proposed change of order, the dependency court need not order a hearing." (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)

Father has failed to make a showing of any change of circumstances or new evidence within the meaning of section 388. The section 388 petition asserts the following change of circumstances or new evidence: "[Father] contends that he can and will benefit from a plan of Family Reunification, as he did benefit and make progress in services during prior reunification services. Further, [Father] contends that and that it is in his son's best interest for [Father] to be provided Family Reunification Services at this time, as T[.B.] will be 18 years old this year and will always be dependent on adults for his care."

Father's asserted basis for a change of circumstances is dependent upon his speculation that "T[.B.]'s age could have a profound effect on his life by changing the services available and his status as a foster child" and that his placement "would likely have to be changed due to T[.B.]'s age." But Father has cited neither evidence nor legal authority in support of his speculation that T.B., notwithstanding his severe disabilities and significant needs, will no longer be permitted to continue in his current placement and continue to receive similar, if not the same, services he has received after he turns 18 years old. Citing section 391, in the respondent's brief, county counsel asserts T.B. "can remain a dependent for years to come, and will also be provided with services in California through Regional Center for the rest of his life" under the Lanterman Developmental Disabilities Services Act (§ 4500 et seq.). Section 391, subdivision (b) confirms the juvenile court's discretion to continue jurisdiction over a dependent child even though the child has reached the age of majority.

As pointed out by the juvenile court, "insufficient changed circumstances have been shown by the evidence proffered by father in this matter to warrant [an evidentiary] hearing. [¶] The fact that the minor is going to be age 18 is not a changed circumstance; it's a simple fact of life. All of us get older and there is no change in that regard. [¶] Furthermore, whatever [Father]'s, whatever role [Father] plays in the minor's life to the extent that it is construed as being constant suggests by definition that there is no change in that regard. The constancy of his contact with the minor and the nature of that contact, if I were to take it as consistent throughout his entire life, suggests that is not in and of itself a changed circumstance. [¶] Moreover, the court would find that an insufficient showing has been made with regard to father's ability to care for the minor sufficient to constitute a changed circumstance as it relates to this [section] 388 petition."*fn2

In addition, Father failed to make a prima facie showing that an order providing him further reunification services would be in T.B.'s best interests. As we explained in In re T.B. II, in determining whether a section 388 petition addresses the best interests of the child, the following factors should be considered: "(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." (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.) We have explained that the strength of the relative bonds between the dependent children to both parent and caretakers becomes an even more important factor when a section 388 petition is filed after reunification services have been terminated. In In re Stephanie M. (1994) 7 Cal.4th 295, 317, the California Supreme Court stated, "[a]fter 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. [Citation.] A court hearing a motion for change of placement 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."

Here, the section 388 petition fails to address the strength of the relative bonds between T.B. and Father, on the one hand, and T.B. and his caregivers in his current placement, on the other. The juvenile court observed, "this minor has significant problems that require a high level of care, and that his best interests at this point are in the home where he is currently placed." Although Father's declaration asserts he would be able to provide T.B. full-time care, Father did not produce any evidence showing that even after the receipt of further reunification services, he, or any individual outside of a group home context, would be able to provide the kind of extensive, high quality care T.B. requires and has been receiving in his current placement.

The juvenile court acknowledged Father's evidence (which Father has presented before in support of the August 2009 section 388 petition) showing he had served as a caregiver for a man who had suffered a stroke. The court stated it considered Father's ability to care for an adult "significantly different than the ability potentially to care for the minor in this instance who has significant and profound disabilities as is described in the various reports that are before the court. [The] court is generally aware and takes into consideration the significant level of medical care that this minor has required over the intervening time that this court has supervised this particular matter. He has significant and profound problems, as the declaration by [Father] suggests. It is not simply a situation where there is a physical disability similar to a person who suffered a stroke." The court's statement is supported by the record detailing T.B.'s need for high quality care by well-trained staff.

Father contends the juvenile court's order summarily denying the section 388 petition must be reversed because the court erroneously believed that it did not have authority to provide further reunification services at this stage in the proceedings, although section 366.3, subdivision (f) grants such authority. Section 366.3, subdivision (f) provides: "Unless their parental rights have been permanently terminated, the parent or parents of the child are entitled to receive notice of, and participate in, those hearings. It shall be presumed that continued care is in the best interests of the child, unless the parent or parents prove, by a preponderance of the evidence, that further efforts at reunification are the best alternative for the child. In those cases, the court may order that further reunification services to return the child to a safe home environment be provided to the parent or parents up to a period of six months, and family maintenance services, as needed for an additional six months in order to return the child to a safe home environment."

In reviewing whether Father made a prima facie showing in support of the section 388 petition, the court asked Father's counsel: "Other than what might be the generalized discretion of the court to issue orders in the best interests of the minor, are you aware of any particular code section that would provide for an order for reunification services in the context of this case?" Father's counsel responded, "[n]o Your Honor, other than the vehicle of the [section] 388 motion."

After explaining that the section 388 petition failed to make a prima facie showing of a change of circumstances or that its proposed relief would be in T.B.'s best interest, the juvenile court stated: "Finally the court would find that there appears not to be a basis in the Welfare & Institutions Code for the grant of the relief that is being sought in the [section] 388 petition; specifically, the provision of family reunification services that is articulated in the J.D. 180 form."

Even assuming the juvenile court was unaware that section 366.3, subdivision (f) authorized further reunification services to Father at the postpermanency plan reviewing hearing stage, any such unawareness did not constitute reversible error. Such statutory authority was expressly contingent upon the court's determination that further reunification services were in T.B.'s best interest. As discussed ante, the juvenile court's determination Father failed to show that further reunification services would be in T.B.'s best interest did not constitute an abuse of discretion. We find no prejudicial error.

II. THE JUVENILE COURT DID NOT ERR IN CONDUCTING THE POSTPERMANENCY PLAN REVIEW HEARING.

Father argues he was automatically entitled to a contested postpermanency plan review hearing, and, even if he was not, he made a sufficient offer of proof in support of his request for further reunification services to trigger a contested hearing on that issue. Although the record does not show Father specifically requested a contested postpermanency plan review hearing on any issue, he contends the juvenile court erred by failing to hold such a hearing.

As we explained in In re T.B. I and In re T.B. II, postpermanency plan review hearings are governed by section 366.3. Section 366.3, subdivision (d) provides in pertinent part: "If the child is in a placement other than the home of a legal guardian and jurisdiction has not been dismissed, the status of the child shall be reviewed at least every six months. . . . The review of the status of a child for whom the court has not ordered parental rights terminated and who has not been ordered placed for adoption may be conducted by the court or an appropriate local agency."

As discussed ante, under section 366.3, subdivision (f), the parent carries the burden of proof of showing that further efforts at reunification are the best alternative to overcome the presumption that continued care is in the child's best interest.

In M.T. v. Superior Court (2009) 178 Cal.App.4th 1170, 1181, the appellate court rejected the argument that a parent's right to participate in a section 366.3 hearing necessarily affords the parent an absolute right to an evidentiary hearing. The court stated: "It is plainly not the case that a parent may insist upon an evidentiary hearing at every postpermanency review, irrespective of the nature of the parent's objection to the social service agency's recommendations. When the parent has the burden of proof, the right to participate in a section 366.3 hearing is meaningful only if the parent can present sufficient admissible, relevant evidence that bears upon the matter that must be proved. As explained in Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1146-1147 . . . : 'While a parent in a juvenile dependency proceeding has a due process right to a meaningful hearing with the opportunity to present evidence [citation], parents in dependency proceedings "are not entitled to full confrontation and cross-examination." [Citation.] Due process requires a balance. [Citation.] The state's strong interest in prompt and efficient trials permits the non-arbitrary exclusion of evidence [citation], such as when the presentation of the evidence will "necessitate undue consumption of time." [Citation.] The due process right to present evidence is limited to relevant evidence of significant probative value to the issue before the court. [Citations.]'" (Ibid., italics added.)

Father had to carry the burden of overcoming the presumption that continued care in his current placement was in T.B.'s best interest by proving, by a preponderance of the evidence, further efforts at reunification were in T.B.'s best interest. Hence, Father was required to tender an offer of proof to justify a contested hearing. As discussed ante, Father failed to make a prima facie showing that further reunification services were in T.B.'s best interest, and, thus, the juvenile court did not err by not holding a contested hearing on that issue.

DISPOSITION

The orders are affirmed.

WE CONCUR: SILLS, P. J. RYLAARSDAM, J.


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