Filed 8/21/25 In re E.T. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re E.T., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E085764
Plaintiff and Respondent, (Super. Ct. No. DPRI2200176)
v. OPINION
H.H.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Walter H. Kubelun,
Judge. Affirmed.
John P. McCurley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham, and Prabhath
Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
1 I.
INTRODUCTION
This is defendant and appellant H.H.’s (Father) second appeal. Father appeals the 1 March 19, 2025, orders denying his Welfare and Institutions Code section 388 petition
and terminating parental rights (§ 366.26). Father contends the juvenile court erred in
denying him an evidentiary hearing on his 388 petition, in which he requested the court to 2 change a November 29, 2023, order denying him reunifications services and Kelsey S.
father status. Father also argues that the Department of Social Services (DPSS) failed to
assess him for additional visits with his daughter, E.T. (born in 2022), in violation of his
due process right to develop a relationship with E.T.
Father requests this court to reverse the denial of his 388 petition and termination
of parental rights, and direct the juvenile court to hold a full evidentiary hearing on his
388 petition. Father also requests this court to order DPSS to conduct an assessment on
whether additional, liberalized visitation would be appropriate. We reject Father’s
contentions and affirm the order entered on March 19, 2025, denying Father’s 388
petition. We also affirm the order terminating parental rights.
1 All further statutory references are to the Welfare and Institutions Code. 2 Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.).
2 II. 3 FACTS AND PROCEDURAL BACKGROUND
On November 17, 2022, DPSS received an immediate response referral alleging
general neglect. Mother, who tested positive for fentanyl, gave birth to E.T., who
suffered from severe drug withdrawal symptoms requiring medical intervention. Mother
admitted to using fentanyl daily and methamphetamine throughout her pregnancy. She
disclosed she had a 10-year history of abusing opioids, which included using fentanyl
daily for the past five years. Before that, she used prescription drugs and heroin. Mother
failed to complete any drug rehabilitation programs. E.T. remained hospitalized until
January 2023, while receiving morphine to manage her withdrawal symptoms. Within
hours of giving birth to E.T., Mother began experiencing drug withdrawal symptoms and
left the hospital against medical advice.
A. Juvenile Dependency Petition
During an investigative interview on November 17, 2022, Mother identified Father
as E.T.’s father and said he was aware of Mother’s pregnancy but not of E.T.’s birth. She
also stated that Father was residing in San Diego, but she refused to provide his phone
number and said she did not want him contacted. Mother lived with maternal grandfather
3 The facts and procedural background, beginning in November 2022, through the November 29, 2023, hearing on Father’s 388 petition, are taken from our previous opinion in this case (E082721), entered on November 21, 2024. A more detailed summary of the facts is included in that opinion.
3 (MGF). MGF reported that Mother could not possibly care for a baby because of her use
of fentanyl.
Because of the severity of E.T.’s drug withdrawal symptoms, Mother’s drug
addiction and unresolved drug use while pregnant, Mother’s failure to engage in
substance abuse services, and Father’s absence, DPSS placed E.T. in protective custody.
At the detention hearing on November 23, 2022, the court ordered E.T. detained from her
parents, with supervised visitation for Mother.
B. Jurisdiction/Disposition Hearing
During the contested jurisdiction hearing on January 5, 2023, the court continued
the contested jurisdiction hearing to January 25, 2023. At the continued hearing, the
court ordered family reunification services for Mother and denied them for Father, who
still had not been located.
C. Six-Month Status Hearing Report
On January 12, 2023, E.T. was discharged from the hospital and placed with
maternal aunt, M.A. Father, whose whereabouts remained unknown, was denied services
in January 2023. On May 29, 2023, Father texted DPSS for the first time and requested
visitation with E.T. DPSS responded that the court had ordered a DNA paternity test for
him. DPSS requested Father to provide his date of birth, address, and social security
number, which were needed for a paternity test referral. Father did not respond. On June
7, 2023, DPSS sent Father another text requesting Father’s personal information for the
paternity test referral. On June 13, 2023, he responded.
4 Meanwhile, Mother failed to engage in reunification services. She was unwilling
to enter substance abuse treatment and declined detox treatment. She also declined to
participate in a residential program.
DPSS concluded in the June 2023, six-month status report that Mother had not
mitigated the issues that led to E.T. being placed in protective care, her unresolved
substance abuse negatively affected her ability to care for E.T., and Mother failed to
consistently visit E.T. As to Father, DPSS reported that the possibility of placing E.T. in
Father’s care “is nonexistent” because he had failed to provide his current location, he
had not maintained contact with E.T., and he had not submitted to DNA paternity testing.
DPSS concluded it was in E.T.’s best interest to terminate Mother’s reunification services
and set a section 366.26 hearing.
Father appeared in court for the first time at the six-month review hearing on July
10, 2023. The court appointed counsel for him and continued the hearing to allow him to
complete paternity testing. On August 14, 2023, Father reported that he missed his
paternity test and was waiting to talk to his attorney. On September 6, 2023, Father
completed paternity testing, which showed a 99.99 percent probability that he is E.T.’s
biological father.
During the contested six-month review hearing on September 18, 2023, the court
ordered that E.T. remain with M.A., terminated Mother’s reunification services, set the
matter for a section 366.26 hearing, and found that DPSS had made diligent efforts to
5 locate Father. The court ordered supervised visitation for Father upon completing
paternity testing.
D. 388 Petition Filed on September 27, 2023
On September 27, 2023, Father filed a JV-180 form petition (388 petition)
requesting the court to change the November 23, 2022, order finding Father was an
alleged father. Father requested Kelsey S. father status and reunification services.
Following a hearing on Father’s 388 petition and testimony by Father on November 29,
2023, the juvenile court denied his 388 petition. The juvenile court found that Father was
E.T.’s biological father but was not a Kelsey S. father and denied reunification services
for Father.
Father appealed the November 29, 2023, order, and this court ordered stayed the
section 366.26 hearing, pending this court’s determination of Father’s appeal (E082721).
On November 21, 2024, this court issued an opinion affirming the November 29, 2023,
orders denying Father’s 388 petition and Kelsey S. father status (E082721). This court
also denied Father’s writ petition requesting reversal of the November 29, 2023, orders,
and the jurisdictional and dispositional findings and orders as to Father.
E. 388 Petition Filed on April 22, 2024
On January 2, 2024, DPSS filed an addendum report and preliminary adoptions
assessment report, which stated that E.T. was placed with M.A. on January 12, 2023,
upon release from the hospital. E.T. had been living with M.A. ever since then. E.T.
reportedly was happy, healthy, and doing well in her prospective adoptive home. DPSS
6 recommended proceeding with adoption. DPSS reported that Father had participated in
monthly, supervised visits with E.T.
At the section 366.26 hearing on January 17, 2024, Father requested additional
visits. His attorney acknowledged Father had no change of circumstances. The juvenile
court continued the hearing to February and ordered DPSS to assess if it was appropriate
for Father to have additional contact with E.T. The juvenile court authorized, but did not
order, additional time for Father.
DPSS filed an additional addendum report on February 15, 2024, stating that
Father was appropriately participating in supervised, monthly visits. DPSS concluded
that Father had not demonstrated a change of his current circumstances such that he could
care for E.T. Meanwhile, E.T. continued to stabilize and thrive in M.A.’s home and was
closely bonded to M.A. and her family. DPSS recommended termination of parental
rights, with a permanent plan of adoption by M.A.
At the contested section 366.26 hearing on February 22, 2024, the juvenile court
continued the hearing because of the pending appeal of the previous writ petition order on
November 29, 2023. In April 2024, DPSS filed another addendum report, stating that
Father and paternal grandmother (PGM) participated in appropriate monthly visits with
E.T., but Father had not shown a change of circumstances showing he was able to
provide care for E.T.
7 On April 22, 2024, Father filed a 388 petition requesting the juvenile court to
vacate the November 29, 2023, order and grant him reunifications services, Kelsey S.
father status, and unmonitored and overnight visits. Father stated in his petition that
granting his petition was in E.T.’s best interest because Father did not pose a safety risk
to E.T., he was financially stable, he had stable housing, and he had a dependable support
system. Father stated in his supporting declaration that E.T. was very affectionate with
him, and that they had developed a strong bond, but the current visitation was
unnecessarily restrictive. As a consequence, Father was prevented from further
developing his relationship with E.T. Attached to the 388 petition were also supporting
photographs and declarations by Father’s sister (PA), PGM, and Father’s brother.
At the hearing on April 24, 2024, the juvenile court stated it was not inclined to
relitigate the Kelsey S. issue. Because the 388 petition raised additional issues, the court
set the matter for a hearing on the same date as the section 366.26 hearing on July 17,
2024, and directed DPSS to submit an addendum report.
DPSS reported in the July 12, 2024, addendum report that on May 23, 2024, DPSS
conducted a home evaluation of Father’s home and reported it was safe, and had a crib
and baby supplies. DPSS further reported that Father had not participated in any of
E.T.’s medical appointments and was “adamant in denying responsibility for his lack of
engagement with the child, which placed her at risk of abuse.” Father reportedly failed to
become involved in E.T.’s life until May 29, 2023, despite DPSS’s attempts to locate
Father, and never contacted DPSS to receive updates on E.T.’s health. At the 388
8 petition hearing on July 17, 2024, the juvenile court noted that the proceedings were
stayed while the appeal was pending, and therefore continued the section 366.26 hearing
to November 24, 2024. Father withdrew his 388 petition without prejudice.
F. Refiled 388 Petition Filed on September 24, 2024
On September 24, 2024, Father refiled his 388 petition, once again requesting the
juvenile court to vacate the November 29, 2023, order and grant him reunification
services, Kelsey S. father status, and unmonitored and overnight visits. The refiled 388
petition was identical to the 388 petition filed on April 22, 2024, and withdrawn.
On October 11, 2024, the juvenile court signed a JV-183 court order, in which the
court ordered “a hearing on whether the court should grant or deny an evidentiary
hearing.” During the hearing on October 23, 2024, counsel for DPSS stated that he had a
conversation with Father, who said he would not be requesting Kelsey S. designation
because the issue had already been litigated. Father’s attorney said Father would like to
testify as to the most recent updates regarding the 388 petition and present additional
supporting evidence. Father stated that, although he did not withdraw his Kelsey S.
request, he did not intend to argue it or present anything on the issue. Father agreed to a
continuance of the hearing. Father also clarified that he was not withdrawing his request
for placement, but would be focusing on liberalization of visits.
The trial court stated during the hearing that it was not going to deny the 388
petition outright at that time. Instead, the court set the matter for a hearing on November
14, 2024, on the ground “the best interest of the child may be promoted by the request.”
9 The court stated that it would hear testimony, noting that Father wanted to testify. The
court also granted DPSS leave to file an addendum responding to the 388 petition.
The juvenile court rejected DPSS’s request not to set the 388 petition for an
evidentiary hearing on the three issues raised in the 388 petition (Kelsey S. status,
placement, and visitation), because they were intertwined. The court acknowledged that
the Kelsey S. status issue had already been previously litigated and was subject to the
pending appeal. Therefore, the juvenile court intended to wait to decide Father’s most
recent 388 petition until the appeal was decided on the 388 petition filed on September
27, 2023.
DPSS reported in its November 8, 2024, addendum that Father continued to
participate in visitation with E.T. but also continued to refuse to take any responsibility
for E.T.’s detention, or understand how his previous lack of engagement placed E.T. at
risk of continued neglect. DPSS therefore concluded that it was in E.T.’s best interest to
deny the 388 petition request to place her with Father, and for unmonitored and overnight
visitation.
DPSS reported in its December 11, 2024, addendum that since the last hearing,
Father had two supervised visits with E.T. on November 18, 2024, and December 9,
2024. During the most recent visit, Father displayed affection towards E.T. but E.T. did
not reciprocate. When E.T. was told it was time to go, she walked to the exit without
saying goodbye to Father and did not cry or appear affected. DPSS therefore
recommended the court deny Father’s 388 petition request, because it was not in E.T.’s
10 best interest. DPSS concluded that, although he engaged in visitation, “due to his lack of
coming forward on the behalf of the child when detained she does not have [a]
relationship with [Father] and does not engage with him on an emotional level. Further,
[Father] continues to fail to take any responsibility for the child’s detainment or
understand how his lack of engagement has placed the child at risk of continued neglect.”
On January 16, 2025, the juvenile court again continued the 388 petition and
section 366.26 hearings, because there was still no remittitur. Father indicated that he
would be requesting placement or unmonitored, overnight visits and intended to testify.
Judge Kubelun, who was recently assigned to the case, stated during the hearing that,
contrary to Judge Nemat’s previous rulings, the court had not yet granted an evidentiary
hearing on the 388 petition, and the matter was being delayed while waiting for the
remittitur. Judge Kubelun therefore concluded it was premature to decide whether to
grant an evidentiary hearing, adding that “If this court does grant an evidentiary hearing,
then we’ll set it at 1:30 p.m. [on March 19, 2025].”
Judge Kubelun then continued the 388 petition and section 366.26 hearings to
March 19, 2025, with the expectation that a remittitur would be issued by then. Although
the court did not state that it was denying Father’s request for an evidentiary hearing, the
January 16, 2025, minute order states, “motion for evidentiary hearing denied.”
11 G. Hearing on 388 Petition Filed on September 24, 2024
At the 388 petition hearing on March 19, 2025, DPSS and minor’s counsel
requested the juvenile court to deny the petition. Father stated he was requesting Kelsey
S. father status, placement of E.T. in his home, and visitation. Father also requested to
testify. Judge Kubelun stated that the 388 petition had not been set for an evidentiary
hearing, but agreed to allow Father to testify.
Father testified at the 388 petition hearing that he had visitation with E.T. 19
times, once a month for one hour, and that they had a strong bond. Father further
testified that he currently had a full-time job as a technician and had arranged for
childcare while he was working. Father said his house was ready and safe for E.T., with
toys, books, food, bedding, a playroom, and secured electrical outlets. Father completed
a six-hour parenting course and listens to parenting podcasts.
Father argued he demonstrated changed circumstances and that granting his 388
petition was in E.T.’s best interests. He further requested that, if his petition was denied,
the court order legal guardianship and continue visitation, instead of terminating parental
rights.
Minor’s counsel opposed legal guardianship and argued there was no change of
circumstances or evidence that granting the 388 petition was in E.T.’s best interests.
Father’s visits remained supervised and were only once a month. DPSS reported that
during the December 2024 visit, E.T. did not return Father’s affection and appeared to be
more interested in playing with her toys than interacting with Father. At the end of the
12 visit, E.T. walked away without saying goodbye and did not appear affected. DPSS
joined in minor’s counsel’s argument. DPSS added that it was not in E.T.’s best interests
to remove her from her current home, where she was closely bonded to M.A., and place
her with someone she does not know as her family. DPSS further argued that no
exception to adoption applied and there was no evidence termination of parental rights
would be detrimental to E.T. DPSS therefore urged the court to find E.T. adoptable and
terminate parental rights.
After hearing oral argument, the juvenile court noted that this court affirmed the
juvenile court’s finding that Father was not a Kelsey S. father, and that E.T. had closely
bonded with her caregiver during the eight-month period at the beginning of her life,
before Father became involved with her. The juvenile court stated: “There’s a reason
why these cases are six-month cases when the minors are under the age of three. It’s
because they tend to bond, and it’s important to engage in services in that first six months
as the court of appeals has pointed out. The father did not do so.” The juvenile court
added that Father knew Mother was pregnant with E.T., he learned Mother gave birth to
E.T. six days after the birth, he knew a social worker was involved, and he knew by early
January 2023, that E.T. was living with M.A., not Mother. Nevertheless, during the first
six to eight months of E.T.’s life, he did not make a concerted effort to become involved
with E.T. and assist with her care and financial support.
13 The juvenile court concluded that it was not in E.T.’s best interests to be removed
from the only home she had ever known since her birth. The juvenile court also found
there were no changed circumstances since the November 29, 2023, order denying
Father’s first 388 petition. The juvenile court further found that the parental benefit
exception to adoption did not apply. After denying Father’s 388 petition, the court
conducted the 366.26 hearing and terminated parental rights.
Father filed a notice of appeal of the March 19, 2025, orders denying his 388
petition and terminating parental rights.
III.
EVIDENTIARY HEARING ON 388 PETITION
Father contends that he was entitled to an evidentiary hearing on his 388 petition,
and the court abused its discretion by depriving him of such a hearing on March 19, 2025.
We disagree. Father received a full evidentiary hearing.
A. Law Applicable to 388 Petitions
“A juvenile court dependency order may be changed, modified, or set aside at any
time. (§ 385.) A parent may petition the court for such a modification on grounds of
change of circumstance or new evidence. (§ 388, subd. (a).) The parent, however, must
also show that the proposed change would promote the best interests of the child. (§ 388,
subd. (a)(2); In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) [¶] Whether the
juvenile court should modify a previously made order rests within its discretion, and its
determination may not be disturbed unless there has been a clear abuse of discretion. (In
14 re Stephanie M. (1994) 7 Cal.4th 295, 318.) ‘. . . “[‘]The appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of reason. When two or more
inferences can reasonably be deduced from the facts, the reviewing court has no
authority to substitute its decision for that of the trial court.’”’ (Id. at pp. 318-319.)” (In
re J.C. (2014) 226 Cal.App.4th 503, 525-526.)
“The juvenile court has discretion whether to provide a hearing on a petition
alleging changed circumstances. But in doing so, ‘there are safeguards to prevent
arbitrariness in precluding such hearings. Specifically, a petition must be liberally
construed in favor of its sufficiency (Cal. Rules of Court, rule 1432(a)) and a hearing may
be denied only if the application fails to reveal any change of circumstance or new
evidence which might require a change of order. Only in this limited context may the
court deny the petition ex parte. (Rule 1432(b).)’ [Citation], fn. omitted.) ‘“Thus, if the
petition presents any evidence that a hearing would promote the best interests of the
child, the court will order the hearing.”’ [Citations.] ‘“The parent need only make a
prima facie showing to trigger the right to proceed by way of a full hearing.”’
[Citations.] Indeed, to be entitled to a hearing on her petition, appellant needed only to
show ‘probable cause’; she was not required to establish a probability of prevailing on
her petition. [Citations.]” (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431-32.)
15 B. Discussion
Contrary to Father’s contention, the record shows the court held a full evidentiary
hearing on his section 388 petition on March 19, 2025, and did not summarily deny the
petition or merely conduct a prima facie hearing to determine whether an evidentiary
hearing should be held.
1. Whether the 388 Petition Hearing Was a Prima Facie Hearing or
Evidentiary Hearing
On October 23, 3034, Judge Nemat continued the 388 petition hearing because of
a pending appeal in this case (E082721). In doing so, Judge Nemat said that she was
setting a “full hearing” on the petition and giving DPSS “an opportunity to file a response
is so they can address each of the three issues before the Court makes a ruling on each of
the three issues.” The court added that, although DPSS had requested the court not hold
an evidentiary hearing on the 388 petition, the issues were “to some degree intertwined.”
The three issues raised in the 388 petition were (1) whether Father was a Kelsey S. father,
(2) whether Father was entitled to placement of E.T. with him, and (3) whether Father
was entitled to reunification services and liberalized visitation. The juvenile court stated
that it was not inclined to hear or decide the Kelsey S. issue. The JV-183 court order,
signed on October 23, 2024, stated that the juvenile court ordered “a hearing on the form
JV-180 request because the best interest of the child may be promoted by the request.”
16 However, as Father notes, during the continued 388 petition hearing on January
16, 2025, Judge Kubelun stated that the juvenile court had not yet granted an evidentiary
hearing, and Father’s request for an evidentiary hearing was premature. Therefore, Judge
Kubelun denied the request at that time. The court clarified that, “I’m not saying I’m not
going to grant an evidentiary hearing. I’m just saying it’s premature at this point in
time.” The court continued the 388 petition and 366.26 hearings to March 19, 2025.
During the 388 petition and 366.26 hearings on March 19, 2025, DPSS submitted
for consideration DPSS status reports and addendums, and requested the juvenile court to
deny Father’s 388 petition. Minor’s counsel also requested the court to deny the petition.
Father requested to testify at the 388 petition hearing, and stated that he was not
requesting status as a Kelsey S. father because this court recently held that Father is not a
Kelsey S. father (E082721). Father said he was only requesting the juvenile court to grant
placement of E.T. with him, as her biological father, or, alternatively, liberalized
unmonitored and overnight visits, with a permanent plan of custody.
In response, the court stated that, although it did not previously set the hearing for
an evidentiary hearing, the court would allow Father to testify as to the issue of changed
circumstances. As to Kelsey S. father status, the juvenile court stated that the issue was
already decided by this court, which affirmed the juvenile court’s finding that Kelsey S.
father status did not apply. Father then testified and was cross-examined. The court also
received evidence attached to Father’s 388 petition, which included photos of E.T. with
Father, Father’s home, items Father purchased in the event E.T. was placed in his home, a
17 2023 W-2 earnings statement for Father, one of Father’s paystubs, and Father’s home
rental/lease agreement. In addition, attached were declarations by Father’s sister (PA),
E.T.’s paternal grandmother (PGM), and Father’s brother. Father also submitted
additional photographs at the 388 petition hearing.
After Father testified, the court heard oral argument from the parties. Father’s
attorney argued that he established a change in circumstances based on his commitment
and consistency in visiting E.T. He also asserted that he had stable employment and had
prepared his home for E.T. to live there. Father added that he had taken an online
parenting course, and he believed his visits with E.T. were “exceptional,” resulting in
Father and E.T. developing a “strong significant” bond. Father further argued that it was
in E.T.’s best interest to be placed with him because he was her biological father.
Attorneys for the minor, Mother, and DPSS all disagreed, arguing Father had not
established changed circumstances or that it was in E.T.’s best interests to grant the 388
petition and remove her from her stable home environment and place her with someone
she did not know well. No mention was made that the court was conducting only a prima
facie hearing. After hearing Father’s testimony and argument by all parties on the 388
petition, the juvenile court denied the petition, finding that there was “no significant
change in circumstances and parental bonding does not exist.”
Instead of signing an order that Father’s 388 petition was summarily denied, the
court signed form JV-184, entitled “Order After Hearing on Form JV-180, Request to
Change Court Order,” which stated the court found and ordered that, “[a]fter reading and
18 considering the Request to Change Court Order “and considering the evidence at the
hearing held on . . . 03-19-2025 . . . ,” the request was denied. This order indicates that
the juvenile court conducted a full evidentiary hearing on the 388 petition, and did not
summarily deny it or conduct a prima facie hearing on whether to grant an evidentiary
hearing.
Although the court did not expressly state that it was proceeding with a full
evidentiary hearing on the 388 petition, the JV-184 order and the totality of the
circumstances demonstrate that the hearing was a full evidentiary hearing. During the
388 petition hearing on March 19, 2025, the court permitted Father to testify, permitted
him to submit additional photos, heard oral argument from all of the parties and, as stated
in the JV-184 order, “consider[ed] the evidence at the hearing” and then denied the
“Request to Change the Court Order.” The signed order makes it clear the order was not
merely denying a prima facie hearing on whether to grant an evidentiary hearing. In
addition, after the court conducted an evidentiary hearing and considered the 388 petition
based upon the totality of the evidence, the court denied the petition without any mention
of limiting the hearing to the prima facie stage of only considering whether to grant an
evidentiary hearing. The record therefore does not support such a conclusion.
2. Whether Father Received a Full Evidentiary Hearing
Father argues that the limited nature of the prima facie hearing was not a full
evidentiary hearing on the merits. We disagree. Father received a full evidentiary
19 A fair trial requires “a full and fair opportunity to the parties to present all
competent, relevant, and material evidence bearing upon any issue properly presented for
determination. [¶] . . . To this end a trial judge should not determine any issue that is
presented for his consideration until he has heard all competent, material, and relevant
evidence the parties desire to introduce.” (Shippey v. Shippey (1943) 58 Cal.App.2d 174,
177, italics added; see also Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1357-1358.)
“Ordinarily, parties have the right to testify in their own behalf [citation], and a party’s
opportunity to call witnesses to testify and to proffer admissible evidence is central to
having his or her day in court.” (Elkins v. Superior Court, supra, at p. 1357.)
As we explained above, Father received a full evidentiary hearing, and any
objections on appeal to the robustness of the hearing were forfeited by Father’s failure to
either object during the 388 petition hearing or request the introduction of additional
evidence. He also did not request a continuance for the purpose of allowing him to
introduce additional witness testimony or documentary evidence.
Because Father had the opportunity during the 388 petition hearing to object and
request the introduction of additional evidence, but failed to do so, he forfeited any
objections to such deficiencies in the hearing. (See In re Riva M. (1991) 235 Cal.App.3d
403, 411-412 [party’s failure to object waives appellate review]; In re Dakota S. (2000)
85 Cal.App.4th 494, 501 [“‘“[I]t is unfair to the trial judge and to the adverse party to
take advantage of an error on appeal when it could easily have been corrected at the
trial.”’”].) There is nothing in the record that shows that the court prohibited or
20 prevented Father from presenting additional evidence. Father asserts that had there been
a full evidentiary hearing, he would have called additional witnesses, including PA and
PGM. Yet even though they were both present at the hearing, he did not request that they
be permitted to testify.
Father could have requested the court to allow him to introduce additional
evidence and introduce additional witness testimony, or he could have requested a
continuance of the hearing for this purpose. He, therefore, is now precluded from
belatedly complaining that the court deprived him of introducing additional evidence and
witness testimony, when he never asked the court to allow him to do so during the 388
petition hearing.
We conclude that, contrary to Father’s contention that he was denied due process
by the court not granting him an evidentiary hearing, the record shows that Father
received a full evidentiary hearing. Furthermore, Father forfeited any objections he could
have raised, but failed to assert during the 388 petition hearing.
IV.
NONPERFORMANCE OF VISITATION ASSESSMENT
Father contends the DPSS’s failure to assess him for additional visits, as directed
by the juvenile court, violated his due process opportunity interest in developing a
relationship with E.T.
“The biological connection between father and child is unique and worthy of
constitutional protection if the father grasps the opportunity to develop that biological
21 connection into a full, and enduring relationship.” (Kelsey S., supra, 1 Cal.4th at p. 838.)
Therefore, “a biological father has a constitutionally cognizable opportunity interest in
developing a relationship with his child.” (Id. at p. 844.) “[A] state may not deny a
biological parent the opportunity to establish a protected custodial relationship with his or
her child.” (Id. at p. 843.)
A. Procedural Background
During the contested six-month review hearing on September 18, 2023, the court
ordered supervised visitation for Father upon completing paternity testing. On September
6, 2023, Father completed paternity testing, and on November 29, 2023, the juvenile
court found that Father was E.T.’s biological father. Thereafter, Father had supervised
visitation for one hour, once a month.
At the section 366.26 hearing on January 17, 2024, Father requested additional
visits. The juvenile court stated in response: “I will not order but authorize additional
time. The Department is to assess whether it’s appropriate to allow father additional
contact with the minor.”
In February 2024, DPSS filed an additional addendum report stating that Father
was appropriately participating in supervised monthly visits. DPSS concluded that Father
had not demonstrated a change of his current circumstances such that he could care for
E.T. Meanwhile, E.T. continued to stabilize and thrive in M.A.’s home and was closely
bonded to M.A. and her family. DPSS recommended termination of parental rights, with
a permanent plan of adoption by M.A.
22 In April 2024, DPSS filed another addendum report, stating that Father
participated in appropriate monthly visits with E.T., but Father had not shown a change
of circumstances showing he was able to provide care for E.T.
On April 22, 2024, Father filed a 388 petition requesting the juvenile court to
vacate the November 29, 2023, order and grant him reunifications services, Kelsey S.
father status, and unmonitored and overnight visits. Father stated in his supporting
declaration that E.T. was very affectionate with him, and that they had developed a strong
bond, but the current visitation was unnecessarily restrictive. As a consequence, Father
was prevented from further developing his relationship with E.T.
DPSS reported in its November 8, 2024, addendum that Father continued to
participate in visitation with E.T. but also continued to fail to take any responsibility for
E.T.’s detention, or understand how his lack of engagement placed E.T. at risk of
continued neglect. DPSS therefore concluded that it was in E.T.’s best interest to deny
the 388 petition request for placement with Father and for unmonitored and overnight
visits.
DPSS reported in its December 11, 2024, addendum that Father had two
supervised visits with E.T. on November 18, 2024, and December 9, 2024. During the
most recent visit, Father displayed affection towards E.T. but E.T. did not reciprocate.
When E.T. was told it was time to go, she walked to the exit without saying goodbye to
Father and did not cry or appear affected. DPSS again reported that Father continued to
fail to understand how his lack of engagement with E.T. placed her at risk and was
23 neglectful. He reportedly was “adamant in denying any responsibility for his lack of
engagement with the child, which placed her at risk of abuse.” DPSS therefore
recommended the court deny Father’s 388 petition request because it was not in E.T.’s
best interest.
During the continued 388 petition hearing on January 16, 2025, Father indicated
that he would be requesting placement or unmonitored, overnight visits. At the 388
petition hearing on March 19, 2025, Father requested Kelsey S. father status, placement
of E.T. in his home, and liberalized visitation. Father testified that he had visitation with
E.T. 19 times, once a month for one hour, and they had a strong bond. E.T. calls him
daddy. He did not object to DPSS not performing a visitation assessment, as ordered on
January 17, 2024.
B. Discussion
The court ordered a visitation assessment at the hearing on January 17, 2024.
Thereafter, Father did not object during any of the subsequent hearings to DPSS not
assessing him for additional visitation, or assert that the omission violated his right to due
process. He therefore forfeited his objection to DPSS not conducting a visitation
assessment. (In re Riva M., supra, 235 Cal.App.3d at pp. 411-412; In re Dakota S.,
supra, 85 Cal.App.4th at pp. 501-502]; In re Lorenzo C. (1997) 54 Cal.App.4th 1330
(Lorenzo C.) [father waived his objection to the court not ordering completion of a
bonding study by not asking the juvenile court to order it].)
24 In Lorenzo C., supra, 54 Cal.App.4th at page 1338, a request was made that the
caretakers schedule a psychological evaluation for the minor. The psychological
evaluation was not performed. Because the psychological evaluation would have
included a bonding assessment, the father argued that the juvenile court abused its
discretion by not ordering the completion of a bonding study before terminating his
parental rights. (Ibid.) The father asserted that such an assessment would have provided
information which would have compelled the juvenile court to find that termination of
parental rights would be detrimental to his son. (Ibid.)
The court in Lorenzo C., supra, 54 Cal.App.4th at page 1338, concluded that the
father’s argument was “neither cognizable nor meritorious.” The Lorenzo C. court
agreed “with the department that the father waived the issue for purposes of appeal by not
asking the juvenile court to order a bonding study. Many dependency cases have held
that a parent’s failure to object or raise certain issues in the juvenile court prevents the
parent from presenting the issue to the appellate court. . . . As some of these courts have
noted, any other rule would permit a party to trifle with the courts. The party could
deliberately stand by in silence and thereby permit the proceedings to reach a conclusion
in which the party could acquiesce if favorable and avoid if unfavorable.” (Id. at pp.
1338-1339.)
Because Father did not object in the juvenile court to DPSS not performing the
visitation assessment and did not assert that the omission was a due process violation, he
forfeited these issues on appeal.
25 V.
DISPOSITION
The March 19, 2025, order denying Father’s 388 petition is affirmed. The order
terminating parental rights is accordingly also affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
McKINSTER Acting P. J.
FIELDS J.