California Court of Appeal Oct 9, 2024 No. E083781Unpublished
Filed 10/9/24 In re P.A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 P.A., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E083781
Plaintiff and Respondent, (Super.Ct.No. J293357)
v. OPINION
P.C.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Affirmed.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Tom Bunton, County Counsel, and Dawn Martin, Deputy County Counsel, for
Plaintiff and Respondent.
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I. INTRODUCTION
Defendant and appellant P.C. (“Father”) is the alleged father of P.A., a girl born in
September 2018. Father appeals from the April 29, 2024 orders, summarily denying
Father’s Welfare and Institutions Code section 3881 petition, and the section 366.26
orders terminating parental rights and placing P.A. for adoption. In his petition, Father
sought presumed father status, visitation, and reunification services for P.A.
Father claims the juvenile court abused its discretion in denying his section 388
petition, summarily and without an evidentiary hearing. He claims his petition made a
prima facie showing of new evidence, and that granting the petition may have served
P.A.’s best interests. Thus, Father argues the April 29, 2024 orders must be reversed and
the matter remanded for an evidentiary hearing on Father’s petition.
We conclude Father’s petition was properly denied without an evidentiary hearing.
Regardless of whether Father made prima facie showings of new evidence or change of
circumstances, Father did not make a prima facie showing that granting Father presumed
father status, visitation, and reunification services may have served P.A.’s best interests.
(§ 388, subd. (d).) Thus, we affirm the April 29, 2024 orders.
II. FACTS AND PROCEDURE
A. The Initial Proceedings for P.A.
On May 31, 2022, plaintiff and respondent San Bernardino County Children and
Family Services (CFS) took P.A. into custody pursuant to a detention warrant,
1 Unspecified statutory references are to the Welfare and Institutions Code.
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authorizing CFS to detain P.A. from her mother, Y.A. (Mother), and from Father. On
May 30, Mother went to a hospital, with P.A., and appeared to be under the influence.
P.A., then age three, was nonverbal and was reported to have autism. The hospital
determined Mother was medically unable to care for P.A. because Mother was at risk of
passing out due to very low hemoglobin and anemia. Mother was also “exhibiting odd
behavior such as accusing medical staff of things that did not occur,” and Mother said she
had been evicted from her home on May 30. Against medical advice, Mother left the
hospital with P.A., after Mother was told CFS would be called if Mother could not
arrange care for P.A.
On the following day, May 31, 2022, law enforcement found Mother, sleeping in a
car wash parking lot while P.A. was playing. Mother said she had no vehicle and no
place to go, and was “ ‘all over the place’ ” in explaining her circumstances. CFS was
called to the scene, spoke with Mother, and later obtained the detention warrant and took
P.A. into custody. In prior contacts with CFS, Mother had disclosed being diagnosed
with schizophrenia, dissociative disorder, depression, and post-traumatic stress disorder.
In investigating a December 2021 referral, CFS noted “there was concern that Mother
was not taking her medication” and that [M]other had abused methamphetamines “in the
past.” Mother admitted she was not taking her mental health medication. Mother also
admitted “abus[ing] substances” in the past but denied any substance use during the
previous 20 years.
Mother also reported Father was living in Mexico, but Mother was not in contact
with Father and had a restraining order against Father. Mother said she and Father
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married in 2016 and separated at the time of P.A.’s birth (in September 2018). Father did
not sign P.A.’s birth certificate. Mother said she had not seen Father in over three years,
and she was in the process of filing for a divorce from Father.2 CFS initiated an absent
parent search for Father.
On June 2, 2022, CFS filed a petition alleging jurisdiction based on Mother’s
untreated mental health and substance abuse issues, Mother’s failure to provide a safe and
appropriate living environment for P.A., Father’s failures to provide care and support for
P.A. and to protect P.A. from Mother’s conduct, and Father’s unknown whereabouts and
ability to parent P.A. (§ 300, subds. (b), (g).) On June 2, P.A. was placed with her
maternal uncle and aunt, Mr. and Mrs. A. The A.’s home was later approved as a
concurrent planning home.
In response to the court’s questions at the June 3, 2022 detention hearing, Mother
said Father was P.A.’s only possible biological Father, and Mother had a DNA test.
Mother said Father left California to live in Mexico when P.A. was born, Mother had “no
idea” where Father was, and there was no court order for visitation or child support.
Father had “never” sent money for P.A., and Father had last seen P.A. when P.A. was
two months old. Mother had seen Father’s social media but “[did not] use it.” Mother
provided Father’s birthdate and second last name. P.A. was ordered detained outside the
parents’ custody.
2 Mother had three older children from a prior marriage who lived with their father; the youngest was 17 years old.
4
On September 26, 2022, the court sustained the allegations of the petition, granted
Mother reunification services, and denied services to Father who remained an alleged
father whose whereabouts were unknown. At the 12-month review hearing on September
18, 2023, Mother’s services were terminated, and a section 366.26 hearing was set for
January 16, 2024.
The section 366.26 hearing was continued several times in order to notify the
parents of the hearing. At the hearing, CFS recommended terminating parental rights and
selecting adoption as P.A.’s permanent plan. CFS reported P.A. was “thriving” with Mr.
and Mrs. A. and had no medical, emotional, mental diagnoses, and no developmental
delays. Mr. A. was willing to adopt P.A.
Father first appeared in the case at the continued section 366.26 hearing on
March 27, 2024. Counsel was appointed for Father, and the matter was continued to
April 29. On April 23, Father filed his section 388 petition seeking presumed father
status, reunification services, and visitation.
B. Father’s Section 388 Petition
In his petition, Father alleged he could provide “information and documentation”
that was not available when the court made the jurisdiction findings and disposition
orders on September 26, 2022. The petition stated Father “was previously in [P.A.’s] life
and now wishes to resume that previous relationship. [P.A.] should have the opportunity
to reunify with a parent who is willing to step up and do what is necessary to reunify with
his child. [P.A.] has a parent who is ready and willing to do what is required to achieve
reunification.”
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In an attached declaration, Father stated he and Mother were married at the time of
P.A.’s conception and birth; they were still married; Father was at the hospital when P.A.
was born; Father “signed paperwork at the hospital” stating he was P.A.’s father; after
P.A. was born, Father took a paternity test which confirmed he was P.A.’s father. Father
and Mother separated shortly after P.A. was born; a few weeks later, Father resumed his
relationship with Mother; Father lived with Mother and P.A. until June 2019; and, during
this time, Father financially supported P.A. and “held [P.A.] out to be” his own daughter.
In June 2019, Father left the home, and Father’s relationship with Mother ended after
Mother “committed an act of domestic violence against” Father. Father last saw P.A. in
June 2019. “A few months” after Father left the home, Mother obtained a restraining
order against Father. Due to the restraining order, Father did not “make any contact”
with Mother or P.A. Father claimed he did not respond to Mother’s messages asking
Father for money because he did not want to violate the restraining order.
After his relationship with Mother ended, Father began living in Mexico to care
for his parents, and Father “would go back and forth between the United States and
Mexico.” “Sometime in 2022 a letter was sent to [Father] at [his] sister’s address in
California, letting [Father] know [P.A.] had been removed from [Mother]. The letter did
not mention any court dates. [Father] believe[d] the letter may have been received in
August 2022. When the letter was received, [Father] was still in Mexico and did not
return to the United States until a month or two later.”
Father next “heard about [the] case . . . sometime between June 2023 and January
2024 when [Father] received a phone call from” CFS, informing Father of “two
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upcoming court dates.”3 Father went to court on January 16, 2024, not knowing the date
had been “vacated.” After receiving the phone call from CFS, Father “made many efforts
to contact the social worker” but “was not able to speak to a social worker until January
16. At that time, Father requested visits with P.A. Father next went to court on March
27, 2024, and was appointed counsel. By his petition, Father was requesting “visits and
services” so he could reunify with P.A.
Father attached several documents to his petition: (1) A “DNA test report” dated
February 6, 2019, from DNA Services Limited, showing Father’s biological paternity of
P.A. but stating there was “no chain of custody” for Father’s biological sample; and
(2) three unauthenticated and unexplained documents concerning Father’s Riverside
County probationary status. These three documents were (1) a “domestic violence
report,” from the Riverside County Probation Department, indicating Father had not
completed a 52-week domestic violence course, in an unspecified case, as of August 23,
2023; (2) another document from the Riverside County Probation Department, indicating
Father was on summary probation, in an unspecified case, as of July 19, 2023; and (3) a
“Time Completion Memorandum” from the Riverside County Sheriff Department, stating
Father had “completed his commitment” in case number RIF20011652 on
November 8, 2023.
3 The record includes a declaration of due diligence showing that, on October 6, 2023, CFS “telephonically noticed” Father of the date, time, and location of the January 16, 2024 section 366.26 hearing, and provided Father with the social worker’s phone number. In the October 6 phone call, Father provided CFS with an address in Apple Valley, but numerous attempts to serve Father with written notice of the section 366.36 hearing at that address were unsuccessful.
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On April 29, 2024, the court heard argument on whether to hold an evidentiary
hearing on Father’s petition. Following argument, the court ruled the petition did not
make the required prima facie showings and denied the petition without an evidentiary
hearing. Next, the court proceeded to the section 366.26 hearing, terminated parental
rights, and selected adoption as P.A.’s permanent plan. Father appeals from the April 29,
2024 orders.
III. DISCUSSION
Father claims the juvenile court abused its discretion in summarily denying his
section 388 petition, without an evidentiary hearing. We conclude the petition was
properly denied without an evidentiary hearing.
A. Legal Principles
“Section 388 allows a parent to petition to change, modify, or set aside any
previous juvenile court order. [Citation.] ‘The petitioner has the burden of showing by a
preponderance of the evidence (1) that there is new evidence or a change of
circumstances and (2) that the proposed modification would be in the best interests of the
child.’ ” (In re J.M. (2020) 50 Cal.App.5th 833, 845; § 388, subd. (a).) “ ‘New
evidence’ ” means “material evidence that, with due diligence, the party could not have
presented at the dependency proceeding at which the order, sought to be modified or set
aside, was entered.” (In re H.S. (2010) 188 Cal.App.4th 103, 105, 108-109.)4 Any
4 The section 388 modification procedure is an “ ‘escape mechanism’ when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights.” (In re [footnote continued on next page]
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alleged change of circumstance must be substantial. (In re Ernesto R. (2014)
230 Cal.App.4th 219, 223.)
California Rules of Court, rule 5.570(d), allows a juvenile court to deny a
section 388 petition, without an evidentiary hearing, on specified grounds, including that
the petition “fails to state a change of circumstance or new evidence that may require a
change of order” or “fails to demonstrate that the requested modification would promote
the best interests of the dependent child.” (Cal. Rules of Court, rule 5.570(d)(1), (2); In
re Alayah J. (2017) 9 Cal.App.5th 469, 479.) The court is required to hold a hearing on
the petition, “[i]f it appears that the best interests of the child . . . may be promoted by the
proposed change of order . . . .” (§ 388, subd. (d); In re I.B. (2020) 53 Cal.App.5th 133,
152.)
To obtain a hearing on a section 388 petition, the parent must make a prima facie
showing as to both elements; that is, the parent must sufficiently allege both a change in
circumstances or new evidence and that the proposed change of order would promote the
child’s best interests. (In re Samuel A. (2020) 55 Cal.App.5th 1, 7; In re K.L. (2016)
248 Cal.App.4th 52, 61.) Although the petition should be liberally construed in favor of
granting an evidentiary hearing on the petition, the prima facie requirement is not met
unless the alleged facts, if supported by creditable evidence, would sustain a favorable
decision on the petition. (In re Samuel A., at p. 7.) In determining whether the petition
Kimberly F. (1997) 56 Cal.App.4th 519, 528.) “Even after the focus has shifted from reunification, the [statutory] scheme provides a means for the court to address a legitimate change of circumstances while protecting the child’s need for prompt resolution of [the child’s] custody status.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
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made the required prima facie showings, the court may consider the entire factual and
procedural history of the case. (In re K.L., at p. 62.) We review the summary denial of a
section 388 petition for an abuse of discretion. (Id., at p. 61.) If the denial is based on
undisputed facts, our review is de novo. (In re Samuel A., at p. 7.)
B. Analysis
Father argues he “presented sufficient, prima facie, new evidence—establishing
presumed father status” and that granting his petition by ordering visitation and
reunification services may have served P.A.’s best interests. Father claims the evidence
he adduced with his petition was “new” in that Father could not have presented the
evidence at or before the September 26, 2022 jurisdiction and disposition hearing, given
that Father did not receive actual notice of that hearing.
We conclude Father’s petition was properly denied, summarily and without an
evidentiary hearing. It is unnecessary to determine whether Father made a prima facie
showing that he was P.A.’s biological father and presumed father (Fam. Code, § 7611,
subd. (d)), and whether Father presented any “new evidence” or changed circumstances.
We do not decide these questions because the entire record, including Father’s proffered
evidence, shows Father did not make a prima facie showing that granting Father
visitation and reunification services may have served P.A.’s best interests.
Father’s evidence shows Father abandoned P.A. in June 2019, when P.A. was nine
months old; Father never supported P.A. after that time; Father refused Mother’s requests
to send money to support P.A.; Father has not seen P.A. since she was nine months old;
and P.A. was over five and one-half years old when Father filed his section 388 petition
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in April 2024. The record also shows P.A. had a lifelong bond with her maternal uncle,
Mr. A., and other maternal relatives; P.A. was thriving in Mr. A.’s care; Mr. A. was
willing to adopt P.A.; and P.A. was generally and specifically adoptable.
In sum, Father did not make a prima facie showing that P.A.’s interests may have
been best served by finding Father was P.A.’s presumed Father, and ordering visitation
and reunification services for Father. Granting Father’s section 388 petition would have
meant delaying permanency for P.A., perhaps for a substantial period of time, in order to
give Father an opportunity to develop a parental relationship and to reunify with P.A.,
with only a speculative possibility that would occur. Based on the entire record, the court
could have reasonably concluded that P.A.’s interests were best served by denying
Father’s petition, given P.A.’s longstanding parental bond with Mr. A., and Father’s
abandonment of and failure to support P.A. since June 2019. Father was not entitled to
an evidentiary hearing on his section 388 petition, and the trial court did not abuse its
discretion in denying Father’s petition without an evidentiary hearing.
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IV. DISPOSITION
The April 29, 2024 orders denying Father’s section 388 petition, terminating
parental rights to P.A., and selecting adoption as P.A.’s permanent plan, are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J. We concur:
McKINSTER Acting P. J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the juvenile court did not abuse its discretion in summarily denying a father's section 388 petition without an evidentiary hearing because the father failed to make a prima facie showing that the requested modification would serve the child's best interests.
Issues
Did the juvenile court abuse its discretion by summarily denying the father's section 388 petition without an evidentiary hearing?
Did the father make a prima facie showing that granting presumed father status, visitation, and reunification services would serve the child's best interests?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We conclude Father’s petition was properly denied without an evidentiary hearing.”
“Regardless of whether Father made prima facie showings of new evidence or change of circumstances, Father did not make a prima facie showing that granting Father presumed father status, visitation, and reunification services may have served P.A.’s best interests.”
“Father was not entitled to an evidentiary hearing on his section 388 petition, and the trial court did not abuse its discretion in denying Father’s petition without an evidentiary hearing.”