In re Damari Y.

Filed 6/12/23 Certified for Publication 6/16/23 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re Damari Y., a Person Coming
Under the Juvenile Court Law.
ALAMEDA COUNTY SOCIAL
SERVICES AGENCY,
Plaintiff and Respondent,
A166037
v.
D.Y., (Alameda County
Super. Ct. No. JD-033282-01)
Defendant and Appellant.
D.Y. (Father) has been incarcerated since before his son Damari Y.
(Minor) was born in February 2021. A few days after Minor’s birth, the
Alameda County Social Services Agency (Agency) filed a petition on his
behalf under Welfare and Institutions Code section 300.1 After the juvenile
court terminated Father’s reunification services and set a section 366.26
hearing, Father did not file a writ petition. But on the eve of the section
366.26 hearing, he filed a petition under section 388 to reinstate reunification
All statutory references are to the Welfare and Institutions Code
1
unless otherwise stated. References to rules are to the California Rules of
Court.
1
services, stating that although he had sought to play an active role in the
matter, the Agency had not provided services despite the court’s orders. The
court denied Father’s request for an evidentiary hearing on his petition,
denied the petition, and terminated Father’s parental rights. On appeal,
Father argues that the juvenile court erred in denying his request for an
evidentiary hearing on his petition.
Over the course of the proceedings below, all of which occurred during
the COVID-19 pandemic, Father was incarcerated in three different facilities.
He was represented by at least five different attorneys, three of whom
informed the court of difficulties they encountered in contacting him in
prison. And the Agency reported that prison officials did not respond to
emails and voicemails about services for Father or arranging Father’s
participation in case planning. In these circumstances, it was error to deny
Father’s request for an evidentiary hearing on his section 388 petition, and
we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. Original and Supplemental Petitions
In February 2021, Minor’s mother arrived at a hospital in labor and
tested positive for illegal drugs. Minor tested positive for amphetamines at
his birth. A few days after Minor was born, the Agency removed him from his
mother’s care and filed a petition under section 300, alleging that mother was
unable to care for Minor (§ 300, subd. (b)), and that Minor had no provision
for support by Father (identified as the alleged father) as the mother reported
he was incarcerated.2 (Id., subd. (g).) The juvenile court ordered Minor
detained and appointed attorney Pretzer to represent Father.
2 The Agency later confirmed that Father was in custody at Santa Rita
Jail, having been arrested in September 2020 on charges related to the
2
Father was not present at the jurisdiction/disposition hearing, which
was held by videoconference due to COVID-19. Attorney Pretzer informed
the court that Father requested a DNA test and would seek to be raised to
the status of biological father. The court ordered DNA testing for Father,
found the allegations of the petition true, and set the matter for a six-month
review hearing in September 2021.
In June 2021, the Agency removed Minor from a relative’s home to a
foster home, and filed a supplemental petition for more restrictive placement
under section 387, based on allegations that Minor was not being safely cared
for by the relative. In its detention report, the Agency reported that Father
remained in custody at Santa Rita Jail, that he had not maintained contact
with the Agency, and that DNA testing was being scheduled for him.
Father was present at the July 2021 videoconference
jurisdiction/disposition hearing on the supplemental petition. The court
ordered DNA testing for Father “forthwith” and continued the hearing to
August 10, 2021. In advance of the continued hearing, the Agency reported
that Father, who was still at Santa Rita Jail, and who had requested
reunification services, had completed a DNA test, and that results were
pending.
By the time of the continued hearing, Father was represented by
attorney Trask. Father was present at the hearing, which was conducted by
videoconference, and was elevated to biological father status, and the Agency
was ordered to provide Father with reunification services. A review hearing
was scheduled for September 21, 2021.
receipt or possession of firearms by a person subject to a domestic violence
protection order. Minor’s mother is not a party to this appeal, and we discuss
facts pertaining to her only to provide background.
3
B. Six Month Review
In a status review report filed on September 9, 2021, the Agency
recommended that reunification services be terminated, and that a section
366.26 hearing be scheduled with the proposed permanent plan of adoption
by the current caregiver. The Agency reported that Father’s case plan
required him to show his ability and willingness to have custody of Minor, to
make himself available to the Agency for assessment of needs, and to “work
on ways to parent [Minor] and establish a relationship that includes
providing regular physical, emotional, financial, educational, and medical
support.” The Agency further reported that Father, who was still
incarcerated at Santa Rita Jail, had not maintained contact with the Agency,
and that in the time since reunification services had been ordered for Father,
the social worker mailed family reunification paperwork and parenting
information to Father at the jail.
Father was not present at the September 21, 2021 hearing, which, like
previous hearings, was conducted by videoconference due to COVID-19. In
view of the Agency’s request to terminate reunification services, attorney
Trask requested a continuance so that she would have the opportunity to
discuss the matter with her client. She reported that Father had recently
been moved to the Mendota Prison in Fresno, and that she had “significant
difficulties contacting” him. The court continued the hearing to October 8,
2021.
The October 8, 2021 hearing was conducted by videoconference.
Father, who had by this time been transferred to a federal prison in
Victorville, appeared by telephone, and was represented by attorney Bradley,
4
who stated she was replacing Trask as Father’s attorney of record.3 The
Agency informed the court that it was changing its recommendation to
request continued services, explaining that because Father was not offered
services until the August 10 hearing he had not yet had services for six
months. The Agency requested a continued hearing date in early 2023.
Father’s counsel objected to a finding that reasonable services had been
provided, but stated she would not set the matter for contest if the hearing
was continued as the Agency had requested.
The court found that reasonable services had been offered or provided,
and that Father had not made substantial progress in complying with the
case plan. The court ordered reunification services to continue, and
scheduled a hearing for February 7, 2022, which would be construed as a
combined six-month and 12-month review.
C. Twelve Month Review
On January 27, 2022, the Agency filed a status review report
recommending that reunification services be terminated, and that a section
366.26 hearing be set to proceed with a permanent plan of adoption with the
current caregiver, with whom Minor had been placed since September 2021.
The Agency reported that Father remained incarcerated and had not
maintained contact with the Agency. According to the Agency, in October
2021, after Father was transferred to federal prison in Victorville, the social
worker mailed another copy of the family reunification paperwork and
parenting information to Father at his new location. In October, the social
worker also emailed Father’s case manager at the prison several times to
inquire about services available for Father at the facility, but received no
3The court provided a break-out room for Father to speak with
attorney Bradley before the case was called.
5
response. In November, December, and January the social worker made
further efforts to contact the Father and his case manager by mail, email,
and telephone, but received no responses from Father or prison personnel.
The 12-month review hearing, held on February 7, 2022, was conducted
by videoconference due to COVID-19.4 Father was not present, but was
represented by attorney Tung, who stated that he had not been able to reach
Father, and submitted.5 The court adopted the Agency’s recommendations,
and found that reasonable services had been offered and that Father had
made no progress in mitigating the causes necessitating placement or made
substantial progress in complying with the case plan. The court terminated
reunification services and scheduled a section 366.26 hearing for May 31.
The court advised those present, including Father’s counsel, that “[a]ny
parties seeking to preserve the right to appeal from the order setting the
Section 366.26 hearing must first seek a writ, using forms that are available,
from the court clerk, except as otherwise provided by law.” However, nothing
in the record suggests that Father was provided with written notice of the
writ requirement by the court clerk, as required by section 366.26,
subdivision (l)(3)(A), and rule 5.590(b).6
4 Subsequent dates are in 2022 unless otherwise stated.
5Tung, who was appointed to represent Father on or about the day of
the hearing, was apparently under the misimpression that Minor was a girl.
6 Rule 5.590(b)(2) requires that if a party is not present when the court
orders a section 366.26 hearing, “within 24 hours of the hearing, the [writ]
advisement must be made by the clerk of the court by first-class mail to the
last known address of the party.” Rule 5.590(b)(4) requires that the mailed
notice be accompanied by copies of the Judicial Council forms that the party
must file. The minute order, a copy of which was mailed to Father at
Victorville, did not include a writ advisement, and there is no indication in
the record that forms were sent to Father.
6
D. Section 366.26 Hearing Continuances; Section 388 Petition
Father was not present at the May 31 hearing, which was held by
videoconference. He was represented by attorney D’Malta, who reported that
she was taking the matter over from attorney Tung and requested a
continuance on the ground that because of her recent assignment to the case,
she had not had the opportunity to speak with Father. The court continued
the section 366.26 hearing to June 29.
The June 29 hearing was held by videoconference. Father was not
present. Attorney D’Malta requested a further continuance to speak with
Father. She reported that after making “countless” phone calls to the
Victorville facility since the previous hearing, she had not spoken with
anyone until two days ago, and she had a legal call scheduled with Father for
the next day. The court continued the hearing to July 7.
Father was not present at the July 7 hearing, which was apparently
the first hearing in the matter that was conducted in person rather than
under COVID-19 videoconference protocols. Attorney D’Malta stated that
Father wanted to be present at the section 366.26 hearing, and that she had
found it difficult “maintaining contact or getting into contact with him, due to
the facility.” The court again continued the hearing, this time to July 25.
Father appeared at the July 25 continued section 366.26 hearing by
telephone. That morning, attorney D’Malta had filed a petition under section
388 on Judicial Council form JV-180 asking the court to reinstate
reunification services. The court had not received the petition, and stayed
the section 366.26 hearing to August 16, to allow for the section 388 petition
to be received.
On July 29, Father filed an amended section 388 petition, seeking to
change the court’s February 7 order finding that reasonable services had
7
been offered or provided and that the extent to which Father availed himself
of services was “none.” Father stated that he had been incarcerated
throughout the case, and had “continuously sought to participate and play an
active role in this matter”; that no reunification services had been provided
despite the court’s order; that the Agency’s attempts to engage him had been
de minimis; and that he was not present at the February 7 hearing when his
attorney failed to object to the termination of services. He asked the court to
reinstate reunification services and order the Agency to make “reasonable
proactive efforts” to provide services, and stated that the requested order
would be better for Minor because Minor “should not be denied of the
benefit(s) of knowing his Father, to feel the biological parent-child connection,
to be nurtured by and feel his Father’s unconditional love and to know he is
wanted. For the Father to establish and maintain a meaningful presence in
[Minor’s] life is critical to the health of [Minor’s] cognitive, emotional, and
social development.”
In its written response to Father’s petition, the Agency recommended
that the petition be denied because there was no change in circumstances.
The Agency outlined the efforts it had taken to engage Father from May 2021
through May 2022, and stated that Father had not remained in contact with
the Agency or responded to any of its correspondence regarding services and
visits. The Agency’s efforts included sending first class mail to Father at
Santa Rita Jail and Victorville on several occasions in May, August,
September, October, and November 2021, none of which had received a
response. From October 2021 through January 2022, the Agency contacted
personnel at Victorville, with no response. There were no reported efforts by
the Agency after January 2022 until April 28, 2022, when the Agency
emailed Father’s counselor seeking to arrange for Father to create a
8
visitation plan, and the counselor responded that Father “can mail the
Agency visiting form and the Agency can mail them back when complete.”
The Agency received no response to first class mail it sent to Father at
Victorville on April 28, 2022 and in May 2022.
The court scheduled a hearing on whether to grant or deny an
evidentiary hearing on the section 388 petition for August 16, the day of the
continued section 366.26 hearing.
E. August 16, 2022, Hearing
Father attended the August 16 hearing, first by telephone and later by
videoconference. The court asked for argument as to whether an evidentiary
hearing should be held, and whether a section 388 petition was the
appropriate mechanism for Father to assert a lack of reasonable services.
Attorney D’Malta represented that she had learned from Father that at
Victorville he was denied phone calls and was not getting his mail regularly
from September 2021 to March 2022. She argued that the adequacy of
reunification services should have been contested at every stage of the
proceeding, and that there had never been any follow-through on the court’s
orders for visitation. Counsel for the Agency argued that any challenge to the
termination of reunification services should have been brought by means of a
writ petition; that there was no writ or appeal from the February 7 orders;
and that Father had not shown the changed circumstances that are required
for a section 388 petition.
After a brief recess to allow for the review of some procedural issues,
the court offered its preliminary view that the law did not support granting
an evidentiary hearing on reasonable services in view of the fact that at the
February 7 hearing, the parties and their counsel had been advised of their
right to take a writ, and had also given notice of appellate rights, but no
9
challenge to the order had been brought. Father’s counsel noted that Father
had not been present at that hearing, and stated that in view of the
difficulties she had in getting in touch with Father she had doubts about the
extent to which prior counsel had consulted with him.7
After a further recess, Father’s counsel argued that the petition
presented new information about Father’s views: while he was at Santa Rita
Jail he indicated that he wanted to be part of Minor’s life, but from the time
of Father’s transfer to Victorville up to the filing of the petition Father’s
views on the proceeding had been unknown because there was no contact
with him. Counsel acknowledged that Father’s position as to the provision of
reasonable services might be better suited to a writ, but contended that a
section 388 petition was nevertheless appropriately filed.
The court stated that it was considering the petition, not striking it.
Then, based on its finding that Father had not made the necessary prima
facie showing under section 388 that there were changed circumstances or
new evidence, the court denied the request for an evidentiary hearing as well
as the petition. Turning to the section 366.26 issues, the court found by clear
and convincing evidence that Minor was likely to be adopted, and terminated
parental rights. Father timely appealed.
DISCUSSION
A. Applicable Law and Standard of Review
Section 388 authorizes a parent to petition the juvenile court to modify
an order “upon grounds of change of circumstance or new evidence.” (§ 388,
subd. (a)(1).) The petition must “state the petitioner’s relationship to or
7 Father’s counsel did not discuss the court’s failure to provide Father
the required writ advisement and forms by mail. That issue was raised for
the first time on appeal.
10
interest in the child . . . and . . . set forth in concise language any change of
circumstance or new evidence that is alleged to require the change of order.”
(Ibid.) The court may summarily deny a section 388 petition without an
evidentiary hearing if the petition “fails to state a change of circumstances or
new evidence that may require a change of order . . . or fails to show that the
requested modification would promote the best interest of the child.” (Rule
5.570(d)(1); see also In re R.A. (2021) 61 Cal.App.5th 826, 836 (R.A.)
[discussing grounds for denying an evidentiary hearing].) But a petition
must “be liberally construed in favor of granting a hearing to consider the
parent’s request,” and “[t]he parent need only make a prima facie showing to
trigger the right to proceed by way of a full hearing.” (In re Marilyn H. (1993)
5 Cal.4th 295, 309-310.) “In determining whether the petition makes the
necessary showing, the court may consider the entire factual and procedural
history of the case.” (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)
We review the summary denial of a section 388 petition for abuse of
discretion. (R.A., supra, 61 Cal.App.5th at p. 837.)
B. Analysis
To begin, we reject the Agency’s contention that Father’s failure to file
a writ petition is fatal to Father’s challenge to the termination of
reunification services. By statute, a parent must timely file a writ petition to
challenge the termination of reunification services when a section 366.26.
hearing has been set, and failure to file a petition dooms a challenge to the
termination. (§ 366.26., subd. (l).)
Here, however, Father was not present at the hearing where his
reunification services were terminated, and there is no evidence that the
court provided Father with the writ advisement or forms to challenge the
termination of services and setting of a section 366.26 hearing. (Rule
11
5.590(b)(2) & (4).) In light of the juvenile court’s failure to provide Father
with notice of the writ requirement, we find good cause to consider the merits
of his appeal. (See In re A.A. (2016) 243 Cal.App.4th 1220, 1245 [failure to
provide “timely and adequate notice” of writ advisement as required by rule
5.590(b) constitutes good cause to excuse failure to file writ petition and
consider claim of error on appeal]; In re Cathina W. (1998) 68 Cal.App.4th
716, 722 [good cause shown for parent’s failure to file writ petition under
section 366.26, subd. (l) where court fails “to discharge its duty to give . . .
timely, correct notice” as required by the California Rules of Court].)
We turn now to the question whether Father made a prima facie
showing to require the juvenile court to hold an evidentiary hearing on his
section 388 petition. In the petition, Father stated that he had continuously
sought to participate in the matter. This is new evidence, because, except for
the Agency’s report that Father did not respond to correspondence it sent,
there was no evidence in the record as to Father’s attempts to participate in
the matter from October 2021, when Father’s then-counsel objected to a
finding that reasonable services had been provided and the court ordered
continued reunification services through the February 2022 hearing where
the court ordered the termination of services. At the February hearing,
Father was represented by an attorney who had just recently been appointed
for him, who had not spoken with him, who apparently believed that Minor
was a girl, and who failed to ask for a continuance to speak with his client.
That attorney was not in a position to offer the court information about
Father’s positions as to services or anything in light of the circumstances.
Then, at the August 16 hearing where the court denied Father’s
request for an evidentiary hearing, the court was informed that inmates at
Victorville were denied phone calls and regular mail service from September
12
2021 to March 2022 during the COVID-19 pandemic, which might shed light
on the Agency’s report that neither Father nor prison officials responded to
its communications and on reports by Father’s attorneys of the difficulties
they faced in contacting Father after he was moved from Santa Rita Jail.
Father’s section 388 petition also shows that Minor’s best interest
might be served by changing the February 7 order, in which the court found
that reasonable services had been provided and that the extent to which
Father availed himself of services was “none”: Father contends that even
apart from the possibility that his presence in Minor’s life would be beneficial
to Minor’s cognitive, social and emotional development, there is benefit to
Minor in knowing that he is wanted.
The circumstances here are unusual. The entire proceeding took place
during the COVID-19 pandemic. Father, who was incarcerated throughout
the proceedings, was in three different facilities, and was represented by
multiple attorneys who had difficulties contacting him, particularly in
Victorville. Father has been at Victorville starting in October 2021, and was
there during the bulk of the time during which reasonable services were to be
offered. From October 2021 through February 2022, when Father’s services
were terminated, the Agency received no responses to its communications to
Father or to prison officials. Father was not present at the February 7
hearing where his reunification services were terminated; the attorney who
represented him at that hearing had never spoken to him; and Father was
not provided with the required writ advisements for challenging the orders
terminating services and setting the section 366.26 hearing, which meant
that Father was had no opportunity to timely contest those orders. In these
circumstances, where Father’s section 388 petition states evidence that casts
doubt on the juvenile court’s finding that reasonable services were offered or
13
provided and the court’s decision to terminate services and set a section
366.26 hearing, we conclude that justice requires Father to be granted an
evidentiary hearing on his section 388 petition, even at this late date. We
express no opinion as to the outcome of the evidentiary hearing.
DISPOSITION
The challenged orders are reversed, and the matter is remanded to the
juvenile court with directions to promptly schedule an evidentiary hearing as
to the merits of Father’s section 388 petition, which was filed on July 29,
2022. The court strongly encourages the parties to consider stipulating to the
immediate issuance of a remittitur, pursuant to California Rules of Court,
rule 8.272(c)(1).
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_________________________
Miller, J.
WE CONCUR:
_________________________
Richman, Acting P.J.
_________________________
Markman, J.*
A166037, Alameda County Social Services Agency v. D.Y.
*Judge of the Alameda Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
15
Filed 6/16/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re Damari Y., a Person Coming
Under the Juvenile Court Law.
ALAMEDA COUNTY SOCIAL
SERVICES AGENCY,
Plaintiff and Respondent,
A166037
v.
D.Y., (Alameda County
Super. Ct. No. JD-033282-01)
Defendant and Appellant.
BY THE COURT:
The opinion in the above-entitled matter filed on June 12, 2023, was
not certified for publication in the Official Reports. For good cause and
pursuant to California Rules of Court, rule 8.1105, it now appears that the
opinion should be published in the Official Reports, and it is so ordered.
Dated: ____________________ _______________________________
Richman, Acting P.J.
1
Court: Alameda County Superior Court
Trial Judge: Hon. Tara M. Flanagan
Deborah Dentler, under appointment by the Court of Appeal, for Defendant
and Appellant
Donna R. Ziegler, Alameda County Counsel; Samantha Stonework-Hand,
Deputy County Counsel, for Plaintiff and Respondent
A166037, Alameda County Social Services Agency v. D.Y.
2