Opinion
B296300
06-15-2020
In re NOAH S. et. al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. DERRECK S., Defendant and Appellant.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. DK06168 APPEAL from an order of the Superior Court of Los Angeles County, Kristen Byrdsong, Commissioner. Affirmed. Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
In October 2017, the juvenile court exercised jurisdiction under Welfare and Institutions Code section 300, subdivision (b)(1) over the three children of Derreck S. (father) and Jenifer U. (mother): Noah S., Noel S., and Naomi S. The court removed Noel and Noah from their legal guardian and maternal grandmother, Chandra M. (grandmother), and removed Naomi from mother, pursuant to section 361, subdivision (c). Mother and grandmother were granted reunification services. Father, a Florida resident, did not receive notice of the dependency proceedings until August 2018, and thus did not participate in the jurisdictional or dispositional proceedings.
All further undesignated statutory references are to the Welfare and Institutions Code.
Mother and grandmother are not parties to this appeal.
In February 2019, father filed three petitions - one for each child - under section 388, asking the juvenile court to vacate its dispositional orders and hold a new dispositional hearing based on failure by the Department of Children and Family Services (Department) to provide father with timely notice of the dependency proceedings. The court denied the petitions, finding that although the Department did not properly notify father of the dependency proceedings before the court held the dispositional hearing and entered its dispositional orders, father did not carry his burden of demonstrating that re-litigating disposition with his participation was in the children's best interests.
On appeal, father challenges the court's orders denying his section 388 petitions. Finding no abuse of discretion, we affirm.
BACKGROUND
Father and mother are the parents of three children: twins Noel and Noah, born in 2013, and Naomi, born in 2015.
Before the dependency proceedings underlying this appeal, the family was the subject of a dependency case initiated in 2014. In that case, the juvenile court sustained a petition filed under section 300, subdivision (b)(1). The petition alleged Noel and Noah were at risk of harm due to: (1) the parents' unresolved history of domestic violence; (2) mother's untreated mental health issues; and (3) father's inability to take remedial action to address these issues and absence from the home. The twins were detained and taken into protective custody. Both parents were ordered to participate in family reunification services.
Because father failed to comply with court orders directing him to attend parenting classes and individual counseling, his reunification services were terminated on May 19, 2015. Mother, however, successfully reunited with Noel and Noah. Consequently, on August 13, 2015, the juvenile court terminated jurisdiction and granted mother sole legal and physical custody of the twins. At some point, father moved to Florida, where he currently resides.
On April 11, 2016, grandmother was granted legal guardianship of Noel and Noah at mother's request. In 2017, mother left all three children in grandmother's care and went to Florida for work-related purposes.
The family came to the Department's attention again on June 30, 2017, when grandmother contacted the Department to report she was unable to care adequately for herself and the children. Grandmother related she had severe health issues and felt extremely overwhelmed; consequently, she asked the Department to intervene. The Department agreed and commenced an investigation on July 3, 2017.
During the investigation, mother and grandmother reported father resided in Florida. Because they had not maintained contact with father, neither of them had his contact information. On July 3, July 6, and July 10, 2017, a social worker attempted to contact father by phone using the number the Department previously had on file. That phone number, however, appeared to be disconnected.
On July 14, 2017, Noel and Noah were taken to the hospital after they fell out of a window on the second floor of grandmother's home while they were playing together. The twins sustained minor abrasions due to the incident. Grandmother reported she was cleaning the living room and kitchen when the incident occurred. Mother had yet to return from her trip to Florida.
During an interview with a Department social worker on July 19, 2017, grandmother reiterated she could not adequately care for the children. She stated that if the Department did not remove the children from her that day, she was going to drop them off at one of the Department's offices. In light of grandmother's comments, the social worker asked grandmother if she would consent to the children's removal. Grandmother agreed. Consequently, the social worker removed the children and placed them with foster mother Nicole T. (Nicole).
At Nicole's request, Noah was moved to a different foster home on August 10, 2018, where he currently resides with foster parents Michael and Terry B. Noel and Naomi remain placed with Nicole.
On July 24, 2017, the Department filed a petition on behalf of Noel and Noah under section 300, subdivision (b)(1). The petition alleged the twins were at risk of serious physical harm due to grandmother's failure and inability to provide them with appropriate supervision and care. On the same day, the Department filed a separate petition on behalf of Naomi under section 300, subdivision (b)(1). The petition alleged mother placed Naomi at risk of harm because she left Naomi in grandmother's care "without making an appropriate plan for [her] ongoing care, supervision, and medical care[.]"
Father did not appear at the detention hearing held on July 24, 2017. There, the court found father to be the children's "alleged and biological father," ordered the children remain detained, and ordered the Department to interview father and ascertain if he wished to have counsel appointed.
On August 24, August 28, September 15, and September 17, 2017, a Department social worker tried to contact father by phone. Each time, the social worker left messages asking father to call back, but did not receive a response. Thereafter, on September 26, 2017, the Department sent a written notice of the jurisdictional hearing addressed to father at his last known address in Florida.
At the jurisdictional hearing held on October 3, 2017, the court sustained both petitions filed by the Department. Father did not appear at the jurisdictional hearing.
On October 16, 2017, the Department sent father written notice of the dispositional hearing at his last known address. The hearing was held on October 24, 2017. Again, father did not appear. At the dispositional hearing, the court removed the twins from grandmother, and removed Naomi from mother, pursuant to section 361, subdivision (c). It also granted mother and grandmother reunification services and monitored visitation. No case plan was ordered for father.
During an interview leading up to the 12-month review hearing, on August 15, 2018, mother informed the Department she did not feel prepared to reunify with the children. She related she had reached out to father and asked him to assist her in caring for the children.
The Department successfully contacted father by phone that same day. Father stated the contact information the Department had on file was outdated and provided updated information. The Department informed father of the children's dependency case, including the reasons for their detention and the plans for them to reunify with mother and grandmother. When told neither mother nor grandmother were prepared to reunify with the children by the next review hearing, father stated he wanted to take the children into his care. Father reported he last saw the children in 2016.
On November 29, 2018, the Department filed a subsequent petition under section 342 on behalf of the twins. The petition alleged the twins came within section 300, subdivisions (b)(1), (d), and (j) because Tyrone W. (Tyrone), grandmother's "male companion," had sexually abused all three of the children, and grandmother knew or reasonably should have known Tyrone subjected the children to sexual abuse but allowed him access to the children. The Department filed a separate section 342 petition on Naomi's behalf. Naomi's petition was identical to the twins' except it alleged mother provided an inappropriate plan for her care by allowing her to reside with grandmother, where she and her siblings were sexually abused by Tyrone.
On February 11, 2019, father filed three petitions - one for each child - under section 388, asking the court to vacate the dispositional orders entered in October 2017 and hold a new dispositional hearing. Following a hearing held on March 11, 2019, the court denied the petitions. The court found the Department failed to provide father timely notice of the dependency proceedings prior to the dispositional hearing. the court further found this error was harmless, however, because father did not establish an order granting his request would serve the children's best interests.
Father timely appealed.
DISCUSSION
I. Applicable Principles and Standard of Review
"Due process requires that a parent is entitled to notice that is reasonably calculated to apprise him or her of the dependency proceedings and afford him or her an opportunity to object. [Citation.] The child welfare agency must act with diligence to locate a missing parent. [Citation.] Reasonable diligence denotes a thorough, systematic investigation and an inquiry conducted in good faith. [Citation.]" (In re Justice P. (2004) 123 Cal.App.4th 181, 188 (Justice P.).) If a parent cannot be located despite a reasonable search effort, "[d]ue process notice requirements are deemed satisfied . . . and the failure to give actual notice will not render the proceedings invalid. [Citation.]" (In re Claudia S. (2005) 131 Cal.App.4th 236, 247.)
A section 388 petition is a proper vehicle to raise a due process challenge based on lack of notice. (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 481; see also Justice P., supra, 123 Cal.App.4th at p. 189.) Section 388 provides, in relevant part: "Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made[.]" (§ 388, subd. (a)(1).) To obtain relief under section 388, "the parent must demonstrate both a change of circumstance or new evidence, and that the proposed change is in the best interests of the child. [Citations.]" (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.)
"The grant or denial of a section 388 petition is committed to the sound discretion of the trial court and will not be disturbed on appeal unless an abuse of discretion is clearly established. [Citation]. A trial court exceeds the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. [Citation]." (In re Shirley K. (2006) 140 Cal.App.4th 65, 71.) Under this standard, "'". . . [w]hen 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."' [Citations.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 319.)
II. The Juvenile Court Did Not Abuse its Discretion in Denying Father's Section 388 Petition
At the outset, we note the parties do not dispute that to demonstrate entitlement to relief under section 388, father must satisfy the two-prong test set forth above, i.e., he must demonstrate both a change of circumstance or new evidence and that the proposed change is in the best interests of the children. We further note the parties do not dispute the Department failed to provide father with proper notice of the dependency proceedings prior to the October 2017 dispositional hearing; thus father has satisfied the first prong of this test. The sole issue before us is whether the juvenile court abused its discretion in finding father did not satisfy the second prong because he failed to demonstrate re-litigation of the children's disposition with his participation would serve the children's best interests.
Father contends the court should have granted his section 388 petition because, if allowed to participate in the dispositional proceedings, he could provide the court with material information demonstrating the children's placement with him is appropriate, and obtain custody of the children. Although not entirely clear, father seems to suggest placing the children in his care would be in their best interests because he is their biological father, and has expressed willingness to take custody of the children since becoming aware of the dependency proceedings. We are unpersuaded, as a similar argument was rejected in Justice P., supra, 123 Cal.App.4th 181.
In Justice P., the father challenged the juvenile court's order declining to hold a hearing on his section 388 petition, in which he asked the court to vacate its order setting a permanency planning hearing under section 366.26 and set a new dispositional hearing, based on the Department's failure to provide him notice of the dependency proceedings. (Justice P., supra, 123 Cal.App.4th at pp. 187-188.) The father argued he demonstrated entitlement to a hearing on the section 388 petition because the children were in foster care at the time, and it should be presumed the children's placement with him - one of their natural parents - would have been more favorable. (Id. at p. 191.)
In rejecting the father's argument, the Justice P. court observed "[t]he presumption favoring natural parents by itself does not satisfy the best interests prong of section 388," noting "[t]he cases that state a child may be better off with his or her biological parent rather than with strangers do so when the biological parent has shown a sustained commitment to the child and parenting responsibilities. [Citations.]" (Justice P., supra, 123 Cal.App.4th at p. 192.) Because the record reflected the father's "lack of interest in the children," based on his failure to see or contact his children before and during the dependency proceedings, the Justice P. court concluded the juvenile court did not err in finding the father failed to satisfy the second prong of the two-prong test for obtaining relief under section 388. (Ibid.)
Here, father correctly notes that since learning of the dependency proceedings, he has told the Department he wanted to take the children into his care, and has stated he "is an active participant in the children's lives." Nevertheless, as in Justice P., the record in this case contains sufficient evidence to support a finding that re-litigation of the children's disposition with father's participation would not promote their best interests. Specifically, the record reflects that, despite his recent statements to the contrary, father has not established or maintained a relationship of any kind with his children, let alone played an active role in their lives, since separating from mother.
As discussed above, father did not comply with his court-ordered case plan and failed to reunify with his children during the 2014 dependency proceedings. The record does not reflect father has maintained contact with the children before and/or during the dependency proceedings giving rise to this appeal. For example, the record is devoid of evidence indicating father has visited the children, or contacted them remotely by phone, video conference, or other medium. Indeed, father reported he has not seen the children since 2016. Further, father has yet to contact the Department or the children's foster parents to request or arrange visitation with the children.
The record also reflects father made no attempts to remain informed of the children's wellbeing or the status of the current dependency proceedings. Father reported he stopped talking to mother after they separated. He further related that he had not spoken to mother or grandmother after learning of the allegations in the section 342 petitions. Foster mother Nicole reported father has not contacted her since the children have been placed with her, and that "the children don't mention their father." Since learning of the dependency proceedings, father has not "taken the initiative to contact [the Department] about the children's wellbeing."
Finally, while father has expressed willingness to care for the children, the record reflects he may not have the accommodations to do so. A few weeks before he filed his section 388 petitions, father told the Department he did not "'have the space to appropriately accommodate [his] children but [he was] working on it.'" Since then, however, father has not informed the Department of what progress he has made in securing these accommodations. By contrast, the children appear to be thriving in their respective foster homes where their foster parents have provided them with structured homes, consistently met their daily needs, and ensured their unique educational, emotional, and behavioral issues are being addressed. Indeed, the record indicates the children's behavioral issues have improved while in foster care.
On this record, the juvenile court could reasonably conclude that, as in Justice P., father has demonstrated a "lack of interest in [his] children" and has not shown "a full commitment to his parental responsibilities" throughout his children's lives. (Justice P., supra, 123 Cal.App.4th at p. 192.) Considering father does not have a relationship with his children and that the children have been doing well in their foster homes, the juvenile court could reasonably find father has not shown re-litigation of the dispositional proceedings to seek placement of the children in his care would promote the children's best interests. (See ibid.)
Additionally, we reject father's contention that we should not rely on Justice P. in reviewing whether the juvenile court abused its discretion in finding father's requested relief was not in the children's best interests. In support of his argument, father emphasizes the following distinctions between Justice P. and this case: (1) here, the parties do not dispute the Department failed to properly notify father of the dependency proceedings prior to disposition, whereas the Justice P. court concluded the Department's efforts to notify the father leading up to the dispositional proceedings were reasonable and only found error in the Department's efforts to notify the father of the section 366.26 proceedings; and (2) unlike the father in Justice P., father was not incarcerated during the dependency proceedings. These factual differences, however, do not provide any grounds for rejecting the Justice P. court's determination that "[t]he presumption favoring natural parents does not . . . satisfy the best interests prong of section 388" where, as here, the parent seeking relief has not shown a "sustained commitment to [his or her] child and parenting responsibilities." (Justice P., supra, 123 Cal.App.4th at p. 192.)
Accordingly, we conclude the juvenile court did not abuse its discretion in denying father's section 388 petitions.
DISPOSITION
The orders denying father's section 388 petition are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J. We concur: MANELLA, P.J. COLLINS, J.