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In Re A.K. et al., Persons Coming Under the Juvenile Court v. L.K

December 17, 2010


Super. Ct. Nos. SCSCJVSQ085071501 & SCSCJVSQ085071701

The opinion of the court was delivered by: Mauro,j.

In re A.K. CA3



Appellant is the biological father of the minors. He appeals from the juvenile court's order denying his petition for modification of a prior order which bypassed father for services. (Welf. & Inst. Code, §§ 366.26, 388, 395.)*fn1 Father contends the juvenile court abused its discretion because there was a change of circumstances warranting reunification services and custody of the minors, and that granting modification would have been in the best interests of the minors. We conclude the trial court did not abuse its discretion and we will affirm the orders of the juvenile court.


A section 300 petition was filed on behalf of two-day-old twins, minors A.K. and J.K., on September 18, 2008. The minors' mother had a history of psychiatric problems and substance abuse, and she tested positive or admitted to illegal drug use during pregnancy. Father also had a history of substance abuse, and at the time of the minors' detention he was incarcerated for violation of felony probation on an underlying conviction for possession of cocaine.

Father and mother had been involved in an ongoing dependency case since September 2007 for the minors' older sibling. Reunification services were terminated in that case and a section 366.26 hearing was set for October 31, 2008, with a recommendation that parental rights be terminated as to the older sibling. Father was released from custody on October 4, 2008, and he was present for the section 366.26 hearing for the minors' older sibling. Parental rights were terminated and the sibling was freed for adoption with relatives.

The disposition hearing for the minor twins took place in December 2008. The juvenile court bypassed father for services due to his failure to reunify with the minors' sibling (§ 361.5, subd. (b)(10) & (11)) and because he was declared an alleged father (not presumed) and was not, therefore, entitled to custody and reunification (see In re Zacharia D. (1993) 6 Cal.4th 435, 450-452).*fn2 Reunification services were, however, ordered for mother.

Father was originally provided visitation three days a week, but was visiting twice a week by the time of the six-month review hearing. He was generally consistent in appearing for visitation. He was often focused and engaged during visits, but sometimes appeared distant. He required a high level of supervision during visits, as he struggled with basic parenting skills such as changing diapers, picking up on the minors' cues, and general safety. Generally, he acted in a loving way to the minors, and the minors were sometimes willing to play but sometimes wiggled away from him.

Although father had tested clean since October 2008, mother continued to struggle with substance abuse. Additionally, her visits with the minors were irregular and did not go well. Accordingly, mother's reunification services were terminated on November 2, 2009. Visitation for both parents was reduced to once a week.

On February 26, 2010, father filed a section 388 petition seeking reunification services and custody of the minors. He alleged his circumstances changed because he remained free from drug or alcohol use since just after his release from jail on October 4, 2008, he engaged in visitation and bonding with the minors, and he participated in services on his own. He further alleged reunification services and custody were in the best interests of the minors because "[i]t is always more beneficial for children to be in the home of their natural parents," he is in the position to care for the minors, and he and the minors have a bond.

The hearing on the petition for modification occurred concurrently with the section 366.26 hearing which, due to repeated continuances, did not take place until May 28, 2010. The juvenile court took the matter under submission and subsequently issued an order denying the petition for modification, finding the proposed modification would not promote the best ...

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