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In Re K.R., A Person Coming Under the Juvenile Court Law. v. G.F. et al

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT


February 10, 2011

IN RE K.R., A PERSON COMING UNDER THE JUVENILE COURT LAW. TRINITY COUNTY HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
G.F. ET AL., DEFENDANTS AND APPELLANTS.

Super. Ct. No. 09JU072

In re K.R. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Trinity

----

Mother and father appeal a juvenile court order terminating parental rights to their minor child. Father contends there was insufficient evidence to deny him reunification services at the dispositional hearing. Mother contends the juvenile court erred in denying her Welfare and Institutions Code section 388 petition without a hearing.*fn1 We conclude that father's claim is barred because he failed to file a writ within seven days after the dispositional hearing, at which hearing the section 366.26 hearing was set. We further conclude that the juvenile court did not abuse its discretion in denying mother's section 388 petition without a hearing. We affirm the orders.

BACKGROUND

In December 2009 mother and father were living in a motor home on a large piece of property in Trinity County with their 15-month-old daughter. Also living on the property in a converted bus and a motor home, respectively, were Richard W. and Mike M.

On December 14, 2009, mother celebrated her birthday by drinking six beers. Mother and father fought; father walked off the property. Mother then walked to the converted bus in which Richard lived. Inebriated, angry, and holding her daughter, mother engaged in a physical altercation with Richard, Mike, and Mike's adult daughter Michelle D. Before and during the altercation, the child was dropped repeatedly.

The child was detained four days later. The Department of Health and Human Services (DHHS) then filed a petition alleging the child came within the provisions of section 300, subdivision (b). An amended petition was filed a short time later, adding an allegation under section 300, subdivision (j). The amended original petition specifically alleged that while mother was under the influence of alcohol, she engaged in a physical altercation with other adults while at the same time holding the minor child. The child was thus handled roughly and dropped.

Additionally, it was alleged that father failed to protect the child from mother, who has a history of substance abuse and mental illness, and the conduct of both parents was due, in part, to their substance abuse. As to mother, it was specifically alleged that she failed to overcome the problems that resulted in the removal of the child's half brother and the termination of her parental rights over him in 2007.

In March 2010 a contested jurisdiction/disposition hearing was held. Mother testified and denied dropping the child. Mother claimed Richard pulled the child from her arms, Richard and Mike pinned mother to the ground and beat her, and Richard "stuck a couple of Klonopin" in her mouth.

Michelle D. also testified. Michelle said she arrived at the converted bus on December 14, 2009, to find mother so drunk she kept falling down, dropping the child each time she fell. Michelle testified that mother was "ranting and raving and screaming that she had to go follow [father] and find him." Michelle also described mother attacking her, grabbing handfuls of Michelle's hair, ripping it from her scalp, and punching Michelle in the face.

Michelle also observed that the child, who once was crying, had become quiet. Michelle approached the child, who had been left on the floor where she had been "thrown," and saw that the child had a "blank stare" on her face and was having trouble holding her head up. Michelle called 911. Michelle's account of the assault was corroborated by the social worker with whom she met three days later.

The social worker testified that when she met with Michelle, Michelle had "several clumps of hair missing, and it looked like it had kind of scabbed over and looked painful. She also had some bruising on her face. She looked like she had a black eye, remnants of one, and her lip was split."

DHHS also reported that the child's half brother, J.M. was removed from mother's custody in 2007 on the grounds that mother neglected and abused J.M. Mother was given reunification services for J.M., including substance abuse treatment, but failed to participate. Accordingly, mother's parental rights were terminated and J.M. was successfully adopted into another family.

Based on this evidence, the trial court sustained the allegations in the amended original petition.

In regard to disposition, DHHS reported that mother and father both had numerous arrests and convictions, many of which were related to their drug and alcohol abuse. Moreover, father had repeatedly violated parole, escaped from jail with force, and in August 2000 was convicted of attempting to dissuade a witness with the use of threat or force in violation of Penal Code section 136.1, subdivision (c)(1).

DHHS also reported that two other children were taken from mother's custody in 1999, when she was living in Maine, after a drug raid was conducted on the home in which mother was living with her boyfriend, who was subsequently arrested for trafficking heroin. Maine State Child Protective Services asked mother to participate in inpatient substance abuse treatment for her heroin addiction, but she tested positive for cocaine and marijuana while in treatment. The children were given to their biological father, and mother has had no contact with them since.

Based on father's conviction under Penal Code section 136.1, subdivision (c)(1) and mother's failure to ameliorate the problems that caused her to lose her son in 2007, DHHS recommended denying services to both parents under Welfare and Institutions Code section 361.5. Mother and father both opposed the recommendation and asked the court for reunification services.

In support of her request, mother argued that she had made substantial changes in her life since her son was removed in 2007 and even more since the child at issue here was removed. She said she had not used methamphetamine since December 2007, had been mostly clean and sober, changed her friends, attended Narcotics Anonymous meetings, moved to a new residence, was participating in a support group, attended church regularly, and since December 2009 had been participating in an outpatient drug treatment program as well as a local "AODS" perinatal program.*fn2 Mother also testified that she has been testing clean for drugs since December 29, 2009, she attended four parenting classes, and she was visiting her daughter twice a week under supervision pursuant to the court's order.

Father offered a similar story of betterment. Father testified that, at the time of the hearing, he was on parole and had thus far been successful. Child protective services had been drug testing father once a week, his parole officer was testing him once a month, and all tests had come back clean. Father also testified that other than the medical marijuana he smoked for pain five or six times a day, he was not using illicit drugs; he had not used methamphetamine since Thanksgiving 2007; and other than the occasional beer, father claimed he did not drink alcohol.

Father visited the child twice a week, supervised, as permitted by the court, and told the court he wanted more time with his daughter. He also said he was committed to doing whatever he needed to do to have his daughter returned to him.

After hearing the testimony and reviewing the relevant reports from DHHS, the juvenile court denied services to both mother and father: "[T]he court was really quite impressed with the efforts that [mother] had made in the last two months. Those were significant. . .

"But we've had three children removed. We've lost three children already. When [mother] testified that she didn't understand the effect that alcohol would have on her, I found it kind of hollow. She had to know. She's had alcohol problems for a long time. Then the event we have a neutral witness that tells us that [mother] pretty much attacked -- not pretty much, that she attacked this woman, that she dropped, threw the baby on the ground, the baby had been dropped multiple times, that the fight wasn't because she suddenly, without provocation, attacked [mother]. It was they were protecting their family from [mother] because of her attack. We've had the child -- the child is what? Fifteen months old. Eighteen months old right now. And since last December the child has been in foster care. So we had 15 months with the child. We had 15 months to know and hopefully understand that alcohol was a bad thing. We had a lifestyle choice. We already knew that alcohol was not going to fit well and we would meet together on a regular basis at the [converted bus], and we drank, and we know that's going to hurt our mental state.

"We know this baby is at risk. While I think they love their baby, I think it's too much to ask for the child to have to go back and face that risk. The goal seems to me to be to protect the child, not to protect the parents from their own mistakes.

"The court finds that, based on the report that's been submitted to it, that the parents have been properly represented by counsel throughout these proceedings, that . . . [t]he evidence is clear and convincing of the circumstances stated in . . . section 361."

The court then set the section 366.26 hearing and advised the parents as follows:

"THE COURT: You have a right to appeal from this ruling today -- hearing today setting a [section 366.26] hearing. You have the right to file a notice of writ. You have the right to take a writ on this. You have to do that in a timely fashion. Talk with your attorneys. If you don't do that, you don't have the right to challenge the decision even setting the two six hearing.

"Now, I used to give those out. How do they receive copies of that?

"[COUNTY COUNSEL]: The clerk provides them.

"THE COURT: You mail them to them?

"THE CLERK: Uh-huh.

"THE COURT: You'll receive in the mail a copy of the notice and the list of priorities and your requirements to protect your rights in relation to the setting of this [section 366.26] hearing.

"So notice needs to be given to the mom and the dad and to counsel for the parties." The record reflects that mother also received written notice in the mail; there is no record of father having received the same.

On June 23, 2010, six days before the section 366.26 hearing, mother filed a section 388 petition, alleging that since disposition nearly three months prior, she had made "significant and positive changes" in her life. Mother completed parenting classes, and continued participating in outpatient drug treatment and "batterer's treatment." Mother continued going to church regularly, met with her social worker, and visited with her daughter.

Mother's addiction specialist reported that mother "is the most motivated client that I have ever worked with." She further stated that "[mother] has proved in so many ways that she is a loving, capable, and determined mother in recovery who can provide not only sustenance for her daughter, but the kind of love that only a mother can give."

Those who supervised the parents' visits with the child reported no fear or apprehension from the child, and indicated that everyone was happy to see one another. The parents were further described as "completely appropriate" with the child during the visits, with mother mostly watching the child play with father.

DHHS opposed mother's section 388 petition, as did minor's counsel. The court ruled as follows: "It appears [mother's] done really well in the efforts she's made, and she should be commended for that. And I was impressed with the efforts that she has made.

"Considering the matter in its totality, however, with the history in this case with the -- of the prior removals, with the long history with [DHHS], and efforts at rehabilitation, the Court feels that what we have thus far is not enough at this late stage of the game because of the imperative of doing something for the child.

"For the same reason that counsel articulates, I agree it's been a short time, but isn't that what the law expects of us now for the child to do things rapidly for the best interest of the child."

The juvenile court then proceeded with the section 366.26 hearing and terminated both parents' parental rights.*fn3 Mother and father both appeal.

DISCUSSION I

Father's claims arise from the procedure and circumstances surrounding the setting of the section 366.26 hearing. Father argues he may assert these claims in this appeal because he was not advised of his right to seek writ review of the order setting the section 366.26 hearing. We disagree.

Section 366.26, subdivision (l) bars review of an order setting a permanency planning hearing unless the parent has sought timely review by extraordinary writ. That section further directs the Judicial Council to adopt a rule to ensure the juvenile court will provide notice to the parties, orally if the parties are present and by mail if they are not, of the requirements to be met to satisfy the statute. (§ 366.26, subd. (l)(3).) The Judicial Council adopted California Rules of Court, rule 5.695(f)(19) to implement the statute. That rule states, in relevant part: "When the court orders a hearing under section 366.26, the court must advise orally all parties present, and by first-class mail for parties not present, that if the party wishes to preserve any right to review on appeal of the order setting the hearing under section 366.26, the party must seek an extraordinary writ by filing a Notice of Intent to File Writ Petition and Request for Record (California Rules of Court, Rule 8.450) (form JV-820) or other notice of intent to file a writ petition and request for record and a Petition for Extraordinary Writ (California Rules of Court, Rules 8.452, 8.456) (form JV-825) or other petition for extraordinary writ. [¶] . . . [¶] Copies of [the relevant Judicial Council forms] must be available in the courtroom . . . ."

Here, father was present at the time the section 366.26 hearing was set. On the record, the juvenile court advised both father and mother that they had the right to file a writ to review the court's ruling. The court further advised the parents that the writ must be filed in a "timely" fashion and told them to discuss the matter with their counsel, who also were present. The court also advised the parents that they would lose their ability to appeal from the order setting the section 366.26 hearing if they failed to file a writ.

Father thus received oral notice of his right to file a writ; there is no requirement that father also receive written notice, as father contends. (Cal. Rules of Court, rule 5.695(f)(19).) Nor does father cite any authority for his position that when a party is present with counsel, the court must specifically advise the party that the writ must be filed within seven days. (In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1108-1110 [mother not present at hearing, never received notice in the mail, the People concede no notice]; In re Rashad B. (1999) 76 Cal.App.4th 442 [appellant not present at hearing, did not receive notice in mail because court failed to obtain a permanent mailing address].)

Father's reliance on Jennifer T. v. Superior Court (2007) 159 Cal.App.4th 254 to support his contention is misplaced. In Jennifer T., the juvenile court's minute order from the hearing where the section 366.26 hearing was set included a recital that "'[t]he parties are advised of writ procedures in open court.'" (Jennifer T., supra, at p. 259.) No such advisement was found in the reporter's transcript. (Ibid.) Because the reporter's transcript is presumed more accurate, the appellate court ruled no notice had been given. (Ibid.)

Here, the reporter's transcript reflects that notice was given to father orally, and we find the court's oral notice to be sufficient.*fn4 Accordingly, father's claim that the court erred in denying him reunification services is barred on this appeal.

II

Mother contends the court erred in denying her section 388 petition without a hearing. Section 388, subdivision (a) provides, in pertinent part: "Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court." The juvenile court must liberally construe a section 388 petition in favor of its sufficiency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.); Cal. Rules of Court, rule 5.570(a).)

A juvenile court may deny the section 388 petition without a hearing if the petition "fails to state a change of circumstance or new evidence that may require a change of order or termination of jurisdiction or, that the requested modification would promote the best interest of the child." (Cal. Rules of Court, rule 5.570(d)(1).) The parent need only make a prima facie showing in order to trigger the right to proceed by way of a full hearing. (Marilyn H., supra, 5 Cal.4th at p. 310.) "'[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.' [Citations.]" (In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.)

A number of factors should be considered in determining whether the child's best interests warrant a hearing. These include the seriousness of the reasons for the dependency, the strength of the bonds between the parent and the child and between the caretaker and the child, and the nature of the change of circumstances. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-531 (Kimberly F.).)

"We review a summary denial of a hearing on a modification petition for abuse of discretion. [Citation.] Under this standard of review, we will not disturb the decision of the trial court unless the trial court exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination." (In re A.S. (2009) 180 Cal.App.4th 351, 358.)

Here, mother asserts she was entitled to have a hearing on her petition because "the juvenile court's orders denying [mother] a hearing on her section 388 petition and terminating her parental rights was contrary to the principles of the constitutionally-required 'escape mechanism' that section 388 provides [citations] and the legislative intent to give parents the opportunity to reunify, 'if at all possible.' [Citations.]." Mother goes on to argue that "[w]ithout a hearing, the probability of error was great, and the judicial temptation to simply leave [the child] with the foster family with whom she had been placed, shortly after her detention, and who wanted to adopt her." (Sic.)

Mother's rhetoric is strong, but she does not offer any facts to support her claims other than, "[h]ere mother's contact with [the child] was limited by the court and [DHHS]. Mother attended all the visits the social worker arranged and those visits reportedly went very well." Thus, while mother would like to focus on the strong bond she has with her now two-year-old daughter, mother ignores the seriousness of the problem that led to dependency and the degree to which the problem may be, or already has been, ameliorated. (Kimberly F., supra, 56 Cal.App.4th at p. 532.)

As stated by the juvenile court, mother's drug and alcohol addiction extends back many years. As a result of her addictions, mother had three children removed from her custody, yet she continued to drink alcohol and take drugs. The child at issue here was 15 months old when she was detained and placed in a foster home. That means for 15 months of the child's life, mother chose her addictions over the health, safety, and well-being of her fourth child--as she had her first three children.

Mother may complain that three months is not long enough to overcome her addictions, but mother has really had the ten years since her first two children were removed to overcome her addictions and she has failed to do so. Thus, even after having lost three children, on her birthday in 2009 mother got falling-down drunk, repeatedly dropped her infant child, and assaulted another adult.

Mother does not suggest when she will be ready to offer her child a permanent and stable home, and mother has only just begun to change the circumstances leading to the dependency. It cannot be said it would be in the child's best interests to wait for mother based on a mere tentative hope for reunification in the distant future. (Marilyn H., supra, 5 Cal.4th at p. 309; In re Anthony W. (2001) 87 Cal.App.4th 246, 251-252.)

We agree with the juvenile court's conclusion that the petition did not demonstrate how a change in the order would be in the child's best interests. The court did not abuse its discretion in denying the petition without a hearing.

DISPOSITION

The orders of the juvenile court are affirmed.

RAYE , P. J.

We concur:

BLEASE , J.

BUTZ , J.


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