In re K.W. CA3 ( 2013 )

Filed 6/26/13 In re K.W. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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In re K.W. et al., Persons Coming Under the
Juvenile Court Law. C071770
SACRAMENTO COUNTY DEPARTMENT (Super. Ct. Nos. JD229602,
OF HEALTH AND HUMAN SERVICES, JD229603, JD229604)
Plaintiff and Respondent,
v.
ADRIAN W.,
Defendant and Appellant.
Adrian W., father of the minors, appeals from the denial of his petitions for
modification. (Welf. & Inst. Code, §§ 388, 395.)1 He contends the juvenile court abused
its discretion in summarily denying his petitions without a hearing. We reject this, as
well as his other tangential contentions, and shall affirm.
1 Undesignated statutory references are to the Welfare and Institutions Code.
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FACTUAL BACKGROUND
On April 22, 2009, the Sacramento County Department of Health and Human
Services (the Department) filed section 300 petitions on behalf of minors D.W. (then age
seven), J.W. (then age five), and K.W. (then age one), based on mother’s substance abuse
problems and failure to protect and care for the minors. Appellant, found to be the
presumed father of all three minors,2 had been incarcerated since November 2007 for
physically assaulting mother. Appellant’s criminal history included six felonies, parole
violations, and 11 misdemeanors, for offenses such as assault to commit rape, kidnap
with use of a firearm, battery, theft, failure to register as a sex offender, and inflicting
corporal injury on a cohabitant. The juvenile court sustained the petitions and provided
mother with family maintenance services. Appellant was found to be “the non-offending,
non-custodial parent not seeking services or placement of the children.” The minors had
not visited appellant since his incarceration and the juvenile court ordered no contact,
finding visitation with him would jeopardize the minors’ safety. In December 2009, the
Department assessed possible visitation with appellant and the juvenile court again
ordered that appellant have no contact with the minors other than monitored letter
contact.
Mother did not participate in services and, on January 14, 2010, the minors were
ordered removed from her home. Mother was provided reunification services.
Appellant’s counsel inquired into reunification services and requested visitation. The
juvenile court reaffirmed its previous orders, noting any change would require that
appellant file a petition for modification.
2 Appellant is the biological father of D.W. and J.W. and had a prior judgment of
paternity as to these two minors. Appellant is not the biological father of K.W. but the
juvenile court found him to be the minor’s presumed father.
2
Mother still did not participate in services and, on July 1, 2010, the juvenile court
terminated reunification services. In October 2010, the social worker reported that all
three minors were displaying aggression and K.W.’s speech was delayed. D.W. and J.W.
were in therapy and D.W. was demonstrating sexualized behavior toward his siblings.
In January 2011, the social worker assessed the minors were not generally
adoptable. K.W. had a significant language delay for which he was receiving services
and presented as hyperactive and aggressive. J.W. had a history of being the victim of
sexual activity/behavior and acted provocatively, especially in her interactions with D.W.
D.W. acted out sexually toward J.W. Only minimal progress on these issues had been
made in therapy to date. Accordingly, the minors needed to be separated in their
placement, with D.W. residing in a different home than his siblings. The placement
change took place on January 7, 2011.
Appellant was briefly released from custody in January 2011 and requested a visit.
The minors’ therapists requested that visits be deferred until the most pressing mental
health issues could be processed. The juvenile court ordered continued letter contact only
between appellant and the minors, stating that visitation would begin only when
recommended by the therapists.
On April 21, 2011, the juvenile court held a hearing to reconsider whether
appellant would be provided visitation. By then, father had been reincarcerated. K.W.
and J.W. had recently been moved to a new foster home and J.W. and D.W. were still
dealing with major mental health issues in therapy. The juvenile court ordered there
would be no change to the current orders.
On May 24, 2011, appellant was released from custody and, again, requested
visitation. He reported he was employed as a painter and provided proof of attendance of
several classes he took while incarcerated, including anger management/domestic
violence, self-help, and substance abuse. Although the Department initially
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recommended he be permitted visitation, the Department withdrew its request as
premature in July 2011, based on appellant’s extensive criminal history and the minors’
fragile mental states.
On August 11, 2011, appellant filed section 388 petitions requesting reunification
services and a general visitation order. In support of his petitions, he stated, “The
children have not yet been placed in adoptive homes. The father’s position is that having
a goal of return home to his care is the best permanent plan for the children. Similarly, it
is in the best interest of the children to see and have a relationship with their father.
[Appellant] has grown through his services and would be a good influence in their lives.
He is currently employed and is stable. The Social Worker has found the father to be
alert and respectful. The children have regularly corresponded with the father and ask
about him.” He attached the copies of his proof of services he attended in 2008 and 2009
while incarcerated. The juvenile court denied the petitions because they did not state new
evidence or a change of circumstances and did not promote the minors’ best interests.
At a January 5, 2012 postpermanency review hearing, the juvenile court again
ordered no contact between appellant and minors J.W. and D.W. On May 21, 2012,
mother filed section 388 petitions for modification to reopen reunification services and a
hearing was scheduled for June 21, 2012.
On August 3, 2012, appellant filed new section 388 petitions for modification
requesting reunification services and visitation, and requesting a hearing on the petitions
be set for August 9, 2012. Regarding changed circumstances, appellant stated, “At the
time no reunification services were ordered, the father was incarcerated. While
incarcerated, he participated successfully in many services. See attached verification.
Since he has been released, he has worked consistently and led a stable lifestyle.
Currently, he is employed full-time with Cal Trans. [¶] The Department’s position in the
past was that the children were too unstable to resume visitation with the father. The
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children are now stable. When [J.W.] and [D.W.] saw their father at Court on June 28th
of this year, they ran to him, hugged him, had big smiles, and called him Daddy.”
Appellant attached the copies of his proof of services he attended in 2008 and 2009 while
incarcerated. With respect to best interests of the minors, appellant stated, “[J.W.] is 8
and [D.W.] is 11. They clearly know and love their father, despite the years of his
incarceration. The father is also willing and able to parent [K.W.] despite not being his
biological father. He has consistently been in contact with the children and the
Department, demonstrating his commitment to his family. The mother has filed a
petition to re-open services, and it is in the children’s best interest to have a chance to
reunify with their parents. The children are currently placed in two different homes. The
father is stable and able to provide care for all the children.”
The juvenile court denied the petitions on August 3, 2012, without scheduling a
hearing. In denying the petitions, the juvenile court stated that the petitions did not state
new evidence or a change of circumstances, and the proposed change in order did not
promote the best interests of the minors. The juvenile court further noted that appellant’s
previous section 388 petitions were denied for similar reasons and no new evidence was
submitted that was not submitted in connection with those previous petitions.
DISCUSSION3
I. Denial of a Hearing on Section 388 Petitions
Appellant contends the juvenile court erred in denying him a hearing on his
petitions for modification.
3 Appellant has filed a request for judicial notice of portions of the reporter’s transcripts
of a hearing that took place after the juvenile court’s order of which appellant has taken
this appeal. The request is denied for failure to establish relevance to the resolution of
this appeal.
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Section 388 allows a person having an interest in a dependent child of the court to
petition the court for a hearing to change, modify, or set aside any previous order on the
grounds of change of circumstance or new evidence. The petition must 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 or termination of jurisdiction.” (§ 388, subd.
(a)(1).)
In considering a petition for modification, the juvenile court’s first task is to
determine whether there is a right to an evidentiary hearing or whether the petition may
be denied without a hearing. (In re Jeremy W. (1992) 3 Cal. App. 4th 1407, 1413-1414;
Cal. Rules of Court, rule 5.570.) To establish the right to an evidentiary hearing, the
petition must include facts that make a prima facie showing of a change in circumstances
and must also include the fact that “the best interests of the child may be promoted by the
proposed change of order.” (In re Daijah T. (2000) 83 Cal. App. 4th 666, 672; /In re
Zachary G. (1999) 77 Cal. App. 4th 799, 806.) Accordingly, in determining a section 388
petition, the juvenile court initially considers only the pleading.
We decline appellant’s request to revisit the standard of review. The juvenile
court has discretion whether to provide a hearing on a petition for modification alleging
changed circumstances. (In re Aljamie D. (2000) 84 Cal. App. 4th 424, 431; In re
Jeremy W., supra, 3 Cal.App.4th at p. 1413; In re Heather P. (1989) 209 Cal. App. 3d 886,
891.) However, “there are safeguards to prevent arbitrariness in precluding such
hearings.” (In re Jeremy W., supra, 3 Cal.App.4th at p. 1413.) A petition is liberally
construed in favor of its sufficiency and a hearing may be denied only if the application
fails to reveal a change of circumstance or new evidence which might require a change of
order to promote the best interests of the child. (Id. at pp. 1413-1414.) In this context,
we review the juvenile court’s summary denial of a section 388 petition for abuse of
discretion. (Jeremy W., at p. 1413; In re Josiah S. (2002) 102 Cal. App. 4th 403, 419
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[hence, if two inferences may deduced from the facts, we do not substitute our decision
for that of the juvenile court’s]; In re Angel B. (2002) 97 Cal. App. 4th 454, 460.)
Here, we find no abuse of discretion in the juvenile court’s decision to deny the
petitions without a hearing because appellant’s petitions failed to make the necessary
showing. A petition may not be conclusory. “[S]pecific allegations describing the
evidence constituting the proffered changed circumstances or new evidence” are
required. (In re Edward H. (1996) 43 Cal. App. 4th 584, 593.) Declarations or
attachments, or at the very least, descriptions of the evidence that will support the
petitioner’s assertions are required. (See In re Anthony W. (2001) 87 Cal. App. 4th 246,
250-251.)
Appellant’s petitions contained mere conclusory allegations. There was no
description of any new evidence that would support his bare contentions. The only
evidence he proffered was his verification that he was no longer incarcerated and had
participated in services while incarcerated. As found by the juvenile court, this evidence
was not new and, in fact, had been proffered in connection with his previous petitions for
modification and, before that, attached to the Department’s July 2011 status report. He
also stated he was employed but, again, he had been employed as of the time of his
previous petitions for modification. His claim that he has “led a stable lifestyle” is
unsupported by a proffer of evidence beyond his statement that he was employed. He
also made the bare assertion that “the children are now stable” but fails to provide any
description, declaration, or other proffer of evidence to support such an assertion.
Finally, he stated that two of the minors had seen him in court, ran to him and hugged
him and called him “Daddy.” Evidence of this alone did not warrant providing appellant
an evidentiary hearing.
Regarding the minors’ best interests, appellant simply stated he was now willing
and able to parent the minors (again, without any description or proffer of evidence).
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Appellant then presumptively implied the minors’ best interests were to be together in his
home without addressing the fact that the minors were in separate homes because of their
particular needs.
In sum, appellant did not make a prima facie showing of a change of circumstance
or new evidence, or that the best interests of the minors would be served by the proposed
petitions for modification, to warrant holding an evidentiary hearing. We find no abuse
of discretion.
II. Visitation
Appellant next argues that “father has a fundamental right to visits with his
children, and contact with them can only be limited if it is detrimental.” In this section of
his brief, he discusses “due process” and “fundamental rights” but fails to identify the
specific juvenile court finding or order to which he is assigning error. To the extent that
appellant is arguing that the “best interests of the minor” standard he must meet for
successful petitions for modification is consequently improper, we note that, by the time
of the instant petitions for modification, reunification was no longer the goal and the
focus was on permanency for the minors. (In re Taya C. (1991) 2 Cal. App. 4th 1, 7.) His
argument does not address this shift in focus.
In any event, the order denying appellant visitation was entered in 2009 and was
based upon the juvenile court’s finding that visitation would jeopardize the minors’
safety. Appellant did not appeal. Appellant was, again, denied visitation in
January 2010, January 2011, April 2011, and January 2012, and again, appellant did not
appeal. And while appellant now complains that the juvenile court improperly delegated
the decision of whether to permit him visitation to the minors’ therapists, any such
argument is not cognizable in this appeal.
Appellant filed his petitions for modification of the existing no visitation order
pursuant to section 388 and it is the denial of those petitions that is the subject of this
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appeal. Section 388 expressly requires a “best interest of the child” showing for granting
the petitions. There is no error.
III. Opportunity to Participate in Postpermanency Review Hearing
Appellant next argues that section 366.3 provided a separate basis for hearing his
reunification request. Section 366.3, subdivision (f) entitles appellant to participate in
postpermanency review hearings. (See In re Kelly D. (2000) 82 Cal. App. 4th 433, 435.)
There is no evidence in the record that appellant was denied notice or an opportunity to
participate in a 366.3 hearing. Accordingly, his rights thereunder are irrelevant to this
appeal.
IV. Unfit Parent Finding
Finally, citing Cynthia D. v. Superior Court (1993) 5 Cal. 4th 242, 254, appellant
argues that the juvenile court cannot terminate his parental rights without a finding that
he is an unfit parent. Appellant appealed from orders denying his petitions for
modification, not from an order terminating his parental rights and, at least as of the time
this appeal was filed (August 2012), the juvenile court had not terminated his parental
rights. Accordingly, any such concern is premature.
DISPOSITION
The juvenile court’s orders are affirmed.
BUTZ , J.
We concur:
RAYE , P. J.
HULL , J.
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