In re K.I. CA4/2

• Court: California Court of Appeal
• Decided: January 8, 2016
• Docket: E063452
• Status: Unpublished

Opinion

Filed 1/8/16 In re K.I. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 K.I. et al., Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E063452

Plaintiff and Respondent, (Super.Ct.Nos. J249220, J249221, & J252549) v. OPINION V.G. et al.,

Defendants and Appellants.

APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey,

Judge. Affirmed.

John Fu for Defendant and Appellant R.I.

Christopher R. Booth, under appointment by the Court of Appeal, for Defendant

and Appellant V.G.

1 Jean-Rene Basle, County Counsel, and Dawn M. Messer, Deputy County Counsel,

for Plaintiff and Respondent.

I. INTRODUCTION

Defendants and appellants, R.I. (Father) and V.G. (Mother), appeal the juvenile

court’s April 9, 2015, order terminating their parental rights and placing their three

children, J., K., and H. for adoption. (Welf. & Inst. Code, § 366.26.)1 Father claims the

court erroneously denied his section 388 petition, in which Father asked the court to grant

him additional services and the opportunity to reunify with the children. The petition was

filed and denied by the court immediately before the section 366.26 hearing. Mother did

not file an opening brief on appeal. Instead, she joins Father’s argument on appeal, and

claims that if his parental rights are reinstated hers must also be reinstated. We affirm.

II. BACKGROUND

J. is a boy born in 2007; K., a girl born in 2011; and H., a boy born in December

2013. Mother has five other children, including two girls, M. and C., born in 2001 and

2003. Mother had a prior dependency case involving her five older children. In that

case, Mother failed to reunify with three of her five older children, but reunified with M.

and C.

In May 2013, before H. was born, plaintiff and respondent, San Bernardino

County Children and Family Services (CFS), detained J. and K., along with M. and C.,

1 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

2 outside the parents’ custody, after C. reported Father had sexually abused her. Mother

did not believe Father could have sexually abused either C. or M. M. denied that Father

had sexually abused C. and claimed C. was fabricating the allegations. Mother admitted

having a substance abuse problem with alcohol and marijuana. Father had a substance

abuse-related criminal history, namely, possession of marijuana for sale, along with

forgery and “[f]alse [i]mmigration for sale.”

At a June 25, 2013, jurisdiction/disposition hearing for J., K., C., and M., the court

sustained allegations that Father had sexually abused C., placing the other children at risk

of similar abuse, and Father had a substance abuse-related criminal history. The court

also sustained allegations that Mother had a substance abuse problem and had failed to

protect the children. The court ordered reunification services for Father and Mother and

granted Father weekly, one-hour, supervised visitation with J. and K.

H. was detained and placed in foster care shortly after he was born in December

2013. In a December 2013 six-month review report for J., K., C., and M., CFS

recommended terminating both parents’ services, setting a section 366.26 hearing, and

placing all four children for adoption. By December 2013, Father had not participated in

any of his court-ordered services. CFS reported that Father had had only two telephone

contacts with the social worker, and said “he [did] not have time” to meet with the social

worker or participate in services.

The six-month review hearing for J., K., M., and C. was continued to January 13,

2014, the same date as H.’s jurisdiction/disposition hearing. In its jurisdiction/disposition

3 report for H., CFS recommended denying services for both parents. At the January 13

hearing, CFS told the court it was now agreeable to providing Mother six more months of

services. On January 28, the court sustained jurisdictional allegations for H., ordered

additional services for Mother, terminated Father’s services for J. and K., and denied

Father services for H. on the ground he was H.’s alleged father.

In April 2014, CFS recommended a permanent placement plan for M. and C., who

were living in separate group homes, and setting a section 366.26 hearing for J. and K.,

who had been living in the same foster home since October 2013, the same foster home

in which H. was placed in December 2013. In May 2014, Mother’s services were

terminated, and the court set a section 366.26 hearing for J., K., and H. The section

366.26 hearing was continued several times, and was ultimately held on April 9, 2015.

By August 2014, Mother was in federal custody in Arizona and was still in federal

custody at the time of the April 9, 2015, section 366.26 hearing. Father’s whereabouts

were unknown in August 2014, and he had not been present in court since the May 2,

2013, detention hearing for J. and K. In September 2014, K., J., and H. were moved to

another foster home because their original foster parents were divorcing and requested

that they be moved. On February 27, 2015, K., J., and H. were placed in what became

their prospective adoptive home. M. and C. remained in separate group homes.

On April 9, 2015, the date of the section 366.26 hearing, Father filed a section 388

petition requesting that J., K., and H. be returned to his care under a family maintenance

plan or that he be granted reunification services for them. Father claimed he had

4 completed individual counseling, where he addressed his “ongoing legal concerns and his

efforts to regain custody of his children.” He completed a 10-week parenting class in

March 2015 through the San Bernardino City Unified School District. A letter from his

therapist, in Upland, indicated he was a pleasure to work with; he had “fair insight” and

was “receptive and open to suggestions”; and he continued to maintain he did not

sexually abuse C. The letter also indicated that Father was being drug tested every two

weeks; he brought his test results to his therapy sessions and the test results showed he

was “clean.” Father also submitted copies of six drug test results, showing he tested

clean for drugs on six occasions between January 19 and April 7, 2015.

In court on April 9, Father’s counsel requested an evidentiary hearing on Father’s

section 388 petition, arguing that the petition made a prima facie showing of changed

circumstances and that granting it would be in the best interests of the children. Counsel

for CFS pointed out that Father had never completed a substance abuse program, an

important part of his case plan; there was no indication his drug tests had been random;

thus his drugs tests did not show he was clean; and, most importantly, he had not visited

the children since at least the prior year and had no relationship with them. Counsel for

the children joined these arguments. After hearing argument from counsel, the court

denied the petition, finding it did not state a prima facie case. The court pointed out that

Father did not have a “significant bond” with the children because he had not visited

them, and therefore could not show that returning the children to his care, or granting him

additional services, would be in their best interests.

5 At the section 366.26 hearing, Father testified and admitted he had not visited J. or

K. since they were detained in May 2013, and he had only seen H. once, when the social

worker took H. to his brother-in-law’s house. He claimed the social worker told him that

he and Mother should separate; he temporarily left the state in order to work; and Mother

told him she would “take care of everything that was going on.” Father objected to the

termination of his parental rights; he loved his children, had a bond with them before they

were removed, and that’s why he was “fighting to get them back.” At the conclusion of

the hearing, the court terminated parental rights and selected adoption as the permanent

plan for J., K., and H.

III. DISCUSSION

A. Father’s Section 388 Petition Was Properly Denied

Section 388 allows the parent of a dependent child to petition the juvenile court to

change, modify, or set aside a previous order of the court. The parent must show by a

preponderance of the evidence (1) new evidence or changed circumstances justified the

proposed change of order, and (2) the change would promote the best interest of the

child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; § 388.) The decision to grant or

deny the petition is addressed to the sound discretion of the juvenile court, and its denial

of the petition will not be overturned on appeal unless an abuse of discretion is shown.

(In re S.J. (2008) 167 Cal.App.4th 953, 959-960 [Fourth Dist., Div. Two].)

“Section 388 plays a critical role in the dependency scheme. Even after family

reunification services are terminated and the focus has shifted from returning the child to

6 his parent’s custody, section 388 serves as an ‘escape mechanism’ to ensure that new

evidence may be considered before the actual, final termination of parental rights.

[Citation.] It ‘provides a means for the court to address a legitimate change of

circumstances’ and affords a parent her final opportunity to reinstate reunification

services before the issue of custody is finally resolved.” (In re Hunter S. (2006) 142

Cal.App.4th 1497, 1506.) “Section 388 is central to the constitutionality of the

dependency scheme.” (Ibid.)

Here, the juvenile court did not abuse its discretion in denying Father’s petition.

Father did not make a prima facie showing that his requested change of court order—

either granting him custody of the children under a family maintenance plan, or granting

him reunification services with the goal of returning the children to his care—would have

served the best interests of J., K., or H. As the court pointed out, Father did not have a

significant bond with the children, because he did not visit or contact them during their

dependency. He had only seen H. once, when the social worker took H. to Father’s

brother-in-law’s house, and he had never taken advantage of his right to visit J. and K.

Father claims he did not visit the children or participate in his case plan because

the social worker “told him to stay away from the children.” To the contrary, the record

shows that Father refused to participate in his court-ordered case plan, and refused to visit

the children despite CFS’s “efforts to pursue contacts” between Father and the children.

In addition, the children were happy in their prospective adoptive home and bonded to

their prospective adoptive parents. Depriving the children of their new-found stability,

7 while giving Father another chance to reunify with them after he failed to participate in

his court-ordered case plan or visit the children during their dependency would not have

served their best interests.

B. Father’s Writ Petition Must be Denied

On November 3, 2015, while this appeal was pending and before we issued our

tentative opinion, Father petitioned this court for a writ of mandate, suggesting that we

order the juvenile court to hold a new hearing to consider purported “new evidence,” in

the form of an unauthenticated, handwritten, and largely illegible letter from C. to

Mother, dated December 22, 2014, where C. stated she “wish [she] never lied” because if

she had not lied, Mother would “be with” her children. Father claims that, by the letter,

C. recanted her accusation that Father had sexually molested her—the basis of one of the

court’s jurisdictional findings. Father also asks that, by the writ, we direct the court to

reconsider evidence that he adduced on his section 388 petition and that is included in the

record on appeal, namely, the certificate showing he completed a parenting program, his

drug tests results, and the letter from his therapist indicating Father had “made a genuine

effort to improve as a parent.”

On November 12, we ordered Father’s writ petition considered with this appeal for

the sole purpose of determining whether an order to show cause should issue on the writ

petition. Pursuant to our request, CFS filed an informal letter response to the writ

petition, addressing whether an order to show cause should issue. Father did not respond

to CFS’s informal letter response.

8 We deny Father’s writ petition by a separate order.

As CFS points out, an extraordinary writ is not available to redress Father’s claim

that C. recanted her allegation that Father sexually abused her. (In re Brandon C. (1993)

19 Cal.App.4th 1168, 1170-1171.) The father in Brandon C. petitioned the appellate

court for a writ of habeas corpus, claiming his sister recanted her testimony that she had

seen him sexually abuse his daughter. (Id. at p. 1170.) The court held that an

extraordinary writ was not available to redress the father’s recantation claim because he

had a plain, speedy, and adequate remedy at law: raising the claim in a section 388

petition in the juvenile court. (In re Brandon C., supra, at p. 1171.) Indeed, section 388

allows a parent of a dependent child to petition the court “for a hearing to change,

modify, or set aside” any previous order of the court based on new evidence or changed

circumstances. (§ 388, subd. (a)(1).) Father has not explained why he did not present his

alleged “new evidence” of C.’s recantation to the juvenile court in a section 388 petition.

A section 388 petition is, “by far,” a “superior procedural vehicle for resolving the

significant factual dispute and credibility issues” raised by Father’s recantation claim.

(See In re Brandon C., supra, at pp. 1173-1174.)

We further observe that Father’s writ petition does not make a prima facie

showing of new evidence or changed circumstances under section 388, which would

require the juvenile court to hold an evidentiary hearing on the petition if it were

presented to the court as a section 388 petition. (In re Marcelo B. (2012) 209

Cal.App.4th 635, 641-642 [a § 388 petition may be denied without an evidentiary hearing

9 if it fails to make a prima facie showing that new evidence or changed circumstances

exist so that the proposed change of order would promote the best interest of the child].)

The letter from C. to Mother is unauthenticated; it is unaccompanied by a declaration by

C., Mother, or anyone else stating that it is what it purports to be: a letter from C. to

Mother. (Evid. Code, §§ 1400, 1401.)

Further, even if the letter can be authenticated, it is largely illegible and does not

clearly indicate that C. was recanting her allegation that Father had sexually molested

her. The letter simply states, among much illegible handwritten print, that: “I wish i

never lied. Cus if i didn’t you would be with your kids.” It is by no means clear that C.

was saying she lied when she claimed Father had sexually molested her.

Additionally, Father has not explained why the letter, dated December 22, 2014,

constitutes “new evidence” or changed circumstances, that is, why Father could not, with

reasonable diligence, have discovered the letter earlier and presented it to the court on or

before April 9, 2015, in connection with his section 388 petition seeking further services.

Father’s appellate and writ counsel, John Fu, avers in a declaration supporting the writ

petition that the letter was “given to” him “after” he was “retained,” apparently to

represent Father on this appeal, but Mr. Fu does not indicate who gave him the letter or

explain why it was not available or discovered before April 9, 2015. The letter, in and of

itself, represents neither new evidence nor changed circumstances. (See In re Brandon

C., supra, 19 Cal.App.4th at p. 1172.)

10 Lastly, Father’s writ petition is without merit to the extent it relies on evidence

presented to the juvenile court in connection with Father’s section 388 petition, which the

court heard and denied on April 9, 2015. To this extent, the writ petition merely rehashes

Father’s claim on this appeal that his section 388 petition should have been granted

because he completed a parenting program, drug tested clean on several occasions in

early 2015, and attended counseling, and because the social worker “told him to stay

away from the children.” As noted, substantial evidence belies Father’s claim that the

social worker told him to stay away from the children. Further, Father never participated

in the services that were offered to him after the children were detained in 2013; he never

visited J. or K.; and he visited H. only once during the dependency proceedings. At the

section 366.26 hearing on April 9, 2015, the court found that Father did not have a

significant bond with the children. The evidence also showed that the children were

happy in their new home and bonded with their prospective adoptive parents. Given

these circumstances, it is difficult to see how Father could make a prima facie showing,

in a new section 388 petition, that setting aside the court’s sexual abuse jurisdictional

finding, or its section 366.26 orders, and granting Father additional services would serve

the best interests of the children.

IV. DISPOSITION

The April 9, 2015, orders terminating parental rights to J., K., and H. and selecting

adoption as their permanent plan are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

11 KING J.

We concur:

RAMIREZ P. J.

MILLER J.