IN RE: JEREMIAH M.

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Court of Appeal, Second District, California.

IN RE: JEREMIAH M., a Person Coming Under the Juvenile Court Law LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. KENT M., Defendant and Appellant. Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.

B218098

Decided: February 25, 2010

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.

Father appeals from an order of the juvenile court summarily denying his petition to modify the court's order terminating reunification services.   We affirm.

BACKGROUND

On July 17, 2008, the Department of Children and Family Services (DCFS) received a referral alleging general neglect of one-year-old Jeremiah M. and eight-year-old Trinity B. The referral alleged that mother and the maternal aunt were using drugs in the home in front of the children, and that mother left the children unattended or with the children's 88-year-old great grandmother who was incapable of providing adequate care.

Mother reported that Trinity's father was incarcerated and that Jeremiah's father was Kent M. (father).  She said that father was 30 years older than she and that she had met him when she was 17 years old.   She explained that she had recently ended her relationship with father because of his physical abuse toward her and because he was so controlling he did not permit her to go to work or school.   Mother reported that father visited Jeremiah once or twice a month.

Earlier, in January 2008, DCFS had received three separate referrals which alleged that father battered mother.   Regarding the first referral, mother told the social worker that father had choked her, put a gun to her mouth, and hit her.   Trinity confirmed that she had seen father kick and strike mother.   Mother sought a restraining order against father but then did not pursue it, concerned it would jeopardize his job.   Mother tested positive for marijuana use and admitted that she had stopped taking medications for her bi-polar disorder.   The second referral alleged that father had physically abused Trinity by hitting her and that he was endangering her and Jeremiah by keeping guns in the home accessible to the children.   The third referral alleged that father had hit Trinity on her head with the buckle end of a belt which had caused bruising.

When interviewed father acknowledged that the previous year he and mother had had a “misunderstanding,” but did not acknowledge any physical abuse.   He stated that the police had investigated the incident but that he had not been arrested, charged, or prosecuted.   Father told the social worker that he was a police officer and, for this reason, would never be physically abusive.  (Later investigation revealed that his claim of police officer status was untrue.)

DCFS requested mother to take a drug test.   She tested positive for marijuana and cocaine.   Several family members, including Trinity, reported that father used marijuana as well.

On August 15, 2008, DCFS filed a Welfare and Institutions Code section 300 1 petition alleging that mother and father had a history of domestic violence and had engaged in violent altercations in the children's presence.   The petition further alleged that mother had a history of drug abuse, had tested positive for marijuana and cocaine, had mental and emotional problems, including a diagnosis of bi-polar disorder, and had failed to take prescribed medications.   The petition also alleged that father had used marijuana in the children's presence.

At the August 15, 2008, detention hearing the court found that the petition stated a prima facie case for detaining the children and ordered them detained in shelter care.2  The court found that father was Jeremiah's presumed father and ordered DCFS to provide father referrals for individual counseling, parenting classes, a domestic violence program, random drug testing, and a drug program if he tested positive for drugs.   The court authorized monitored visits for mother and father for a minimum of three hours a week.

DCFS reinterviewed father before the combined jurisdiction and disposition hearing.   A report dated September 5, 2008, stated that father denied physically abusing mother and claimed that she had concocted the allegations, fearful father would take Jeremiah from her and return to his native Belize.   Father also denied pointing a gun at mother, claiming that he had given all his weapons to the Los Angeles Police Department.   He stated that mother's reports of physical abuse were false because they had not lived together since 2007.   He, however, admitted recently sending mother a text message in which he accused her of being an escort or prostitute, told her that she would turn out like her mother, and warned her that, “ ‘pay back will be a bitch.’ ”

The report continued that on August 12, 2008, father had complied with an “on-demand” request for a drug test and had tested negative.   He claimed that he was a decorated and respected officer who had worked for the office of Homeland Security, FEMA, the FBI, and as a marine safety officer, and that his work required him to be drug free (his claims of employment with these organizations, like his claim that he was a police officer, turned out to be untrue).

On September 9, 2008, social workers met with father at his apartment to evaluate its suitability for visits or as a possible placement for Jeremiah.   Father did not want to show the workers his apartment, and falsely claimed that workers had already inspected and approved it.   He finally permitted the workers entry.   They reported that father's apartment was cluttered and filled with boxes and numerous swords.

A week later DCFS learned of a 1998 child abuse referral regarding father.   The referral stated that one of father's daughters reported to police that she had run away from home and did not want to return.   She filed a complaint stating that father had slapped her across the face with the back of his hand and had threatened to knock her teeth out.   In 2005 she filed another complaint against father claiming that he had sexually abused her and her siblings, as well as some of their friends.

DCFS interviewed father's now adult daughters who both described how father had physically, mentally, and sexually abused them, beginning when they were young girls.   They both also reported that father had sexually abused some of their young friends as well.   J.M. reported that her “ ‘first memories are being in his bed with him or him sneaking into [her] bed’ ” while naked from the waist down.   Beginning when J.M. was five years old and continuing until she was 13, father regularly fondled her breasts, digitally penetrated her, and orally copulated her, telling her it would help her relax.   J.M. recalled at least three times that father had forced her to orally copulate him.   Father often watched J.M. as she showered and sometimes forced her at knifepoint to let him digitally penetrate her as she showered.

His daughters and their friend, C.T., reported that father often took his oldest daughter A.M. into his bedroom and closed the door, and that A.M. had always resisted and made a “big hassle.”   C.T. reported that she believed that father was raping A.M. because she often saw them lying together in his bed, and because A.M. always seemed depressed.   C.T. reported that during an overnight visit when they were in the fourth or fifth grade, she woke up to find father lying in bed rubbing her vagina.   C.T. reported that on another occasion father rubbed her vagina over her clothing while the children were playing a game.   When C.T. told the daughters what he had done, J.M. and C.M. started crying and told her that father had been doing the same thing to them for years.

His daughters, as well as others, described incidents in which father used guns or knives to terrorize them or to enforce compliance with his wishes.   Father's daughter, J.M., stated that she suspected that he might have played a role in A.M.'s suicide.   J.M. reported that on a few occasions when she had threatened to kill herself, father had handed her a gun and told her “ ‘ “just do it.” ’ ”   J.M. described father as “ ‘very manipulative’ ” and a person who “ ‘really breaks people down.’ ”   Father's ex-wife confirmed that father had a violent side and had sporadically beat her, but opined that he “was much more mentally or emotionally abusive.' ”

DCFS obtained copies of the police reports detailing the officers' investigation of the incidents of sexual abuse.   In February 2008, the officers submitted the allegations of sexual abuse to the district attorney for possible prosecution.   As part of their investigation, police learned that father had never been employed in any branch of government.

At the September 18, 2008 hearing, mother and father submitted on the reports regarding both jurisdiction and disposition.   The court sustained the allegations of the section 300 petition under subdivisions (a), (b) and (g), declared Jeremiah a dependent child of the juvenile court, and ordered him removed from mother and father's custody.   Father's counsel requested unmonitored visits, noting that Jeremiah was a one-year-old boy.   The children's counsel was concerned about the allegations of serious sexual abuse, father's violence, and his use of guns and knives, and thus requested that father have no visits with Trinity and only monitored visits with Jeremiah in DCFS offices.

The court offered father visits with Jeremiah monitored at DCFS offices and ordered DCFS to provide reunification services for father, consisting of anger management, parenting and domestic violence programs, and to submit six clean drug tests in lieu of a substance abuse program.

On October 17, 2008, DCFS filed a subsequent petition pursuant to section 342, alleging that father had sexually, physically and mentally abused half-siblings, J.M. and C.M. when they were children, and had sexually abused other unrelated female children, which abuse put Jeremiah at risk of physical and emotional harm.

In an interim review report regarding the section 342 petition, DCFS reported that father had enrolled in programs, had tested negative for drugs, and had had weekly monitored visits with Jeremiah.   The court set the matter for hearing on November 14, 2008.

In the report prepared for the November 14, 2008, jurisdiction/disposition hearing on the subsequent petition, the social worker reported that father stated that he would be unavailable for a while and could not meet to discuss the allegations.   An investigating detective told DCFS that he had interviewed five of father's alleged sexual assault victims but was unable to locate two other alleged victims.   The detective reported that he believed that the allegations were true, in part because all of the victims' stories had common features, and because some of the victims were unaware of the abuse suffered by the other victims.

DCFS recommended reunification services be terminated for father pursuant to section 361.5, subdivision (b)(6) based on his severe sexual abuse of Jeremiah's half-siblings.3

Father did not appear at the November 14, 2008, hearing.   The court sustained the allegations of the subsequent petition, again declared Jeremiah a dependent of the juvenile court, and reaffirmed its orders removing Jeremiah from his parents' custody.   The court ordered that father have no contact with Trinity and terminated reunification services for father pursuant to section 361.5, subdivision (b)(6), based on clear and convincing evidence of severe sexual abuse of Jeremiah's half-siblings.

Father did not appear at the March 19, 2009, status review hearing.   His counsel reported that father had been present but had left to make another court appearance.   The court granted mother's request for an additional six months of reunification services and directed DCFS to submit a supplemental report regarding the status of father's criminal case.

In an interim review report dated April 9, 2009, DCFS reported that the Los Angeles Police Department had completed its investigation, had submitted the case to the district attorney, and that the district attorney's office had not yet made a determination whether to file criminal charges against father.   DCFS called the district attorney's office on April 3, 2009, and learned that no file had yet been opened for father.

On July 12, 2009, father filed a section 388 petition requesting that reunification services be reinstated.   Father's petition alleged that on November 15, 2008, he had enrolled in a sexual abuse treatment program with Community Family Counseling Programs and had attended 29 weekly sessions.   Father also alleged that he had continued to attend the Community Family Counseling Programs of individual therapy, parenting, domestic violence, and anger management, and had attended over 30 sessions of each course.

Father attached a client progress report written by the clinical director of Community Family Counseling Programs who wrote:  “Client seems to have grasp [ed] insight about parental Responsibility to protect children from Physical and Emot[ional] Harm. Client seems eager and prepared to be reunited with his Child, Jeremiah.   Client claims that he has learned the value of awareness as being the most important tool to protect children from child abuse and neglect.   Client reflects on gaining the opportunity to be a more Responsible parent and expresses that he now Understands that he may have ‘made a mistake’ and expresses wanting the opportunity to ‘remedy’ any inappropriate behavior that may have caused Child, Jeremiah emotional harm.   Client asserts that he has been benefiting from his Individual Therapy sessions and other DCFS Family ReUnification Intervention programs.   Indeed, Client takes pride in explaining and demonstrating that he is a better Parent that has learned to Protect and Respect the livelihood of his Children.”  (Capital letters and bold in original.)

Father's petition stated that he was concerned about Jeremiah's safety and well-being in foster care.   He alleged that because mother was in the process of reunifying with Jeremiah, providing him reunification services would give him the opportunity to reunify with Jeremiah too, and if successful, Jeremiah could live within a “family unit” with “two loving parents.”

On July 13, 2009, the court denied father's petition without a hearing finding that his petition did not state any new evidence or change of circumstances.   The court further stated, “[c]onsidering the sustained counts,” it found nothing in father's petition or in the attachment, “to provide evidence sufficient to find that the father should have contact with his child other than closely monitored.   Reunification services are not warranted.”   Father appeals from the court's order.4

DISCUSSION

Father contends that his section 388 petition and its attachment provided prima facie evidence of changed circumstances sufficient to warrant a hearing on his petition.   He contends the trial court applied the wrong standard and abused its discretion in summarily denying his petition ex parte.   We disagree.

“The petition pursuant to section 388 lies to change or set aside any order of the juvenile court in the action from the time the child is made a dependent child of the juvenile court (In re Stephanie M. (1994) 7 Cal.4th 295, 316;  In re Marilyn H. [ (1993) ] 5 Cal.4th [295] at pp. 308-309), including the order after a permanency planning hearing.  (See, e.g., In re Stephanie M., supra, 7 Cal.4th 295;  In re Marilyn H., supra, 5 Cal.4th 295;  In re Heather P. (1989) 209 Cal.App.3d 886, 891-892.)”  (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)   The petition must be verified and “set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order ․“ (§ 388, subd. (a).)

“The parent seeking modification must ‘make a prima facie showing to trigger the right to proceed by way of a full hearing.  [Citation.]’  (In re Marilyn H. (1993) 5 Cal.4th 295, 310;  In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1412-1414.)   There are two parts to the prima facie showing:  The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the child [ ].  (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)   If the liberally construed allegations of the petition do not show changed circumstances such that the child's best interests will be promoted by the proposed change of order, the dependency court need not order a hearing.  (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)”  (In re Anthony W. (2001) 87 Cal.App.4th 246, 250;  see also, Cal. Rules of Court, rule 5.570(d) [“If the petition fails to state a change of circumstance or new evidence that may require a change of order ․, or that the requested modification would promote the best interest of the child, the court may deny the application ex parte”].)

We review the juvenile court's summary denial of a section 388 petition for abuse of discretion.  (In re Anthony W., supra, 87 Cal.App.4th at p. 250.)

Father failed to make the showing necessary to obtain a hearing.   Father's burden was to present prima facie evidence that changed circumstances had occurred between the time the court terminated services on November 14, 2008, and July 12, 2009, when he filed his petition, which warranted a change in the court's order.   To satisfy this initial element of showing changed circumstances, father alleged that on November 15, 2008, he had enrolled in a sexual abuse treatment program and had since attended 29 sessions.  (His petition also mentioned that he continued to attend the programs he joined in September 2008 of individual therapy, parenting, domestic violence, and anger management.)   Father attached a progress report from the program's clinical director dated June 4, 2009, stating that father “seem[ed]” to have gained insight about parental responsibility, “seem[ed]” eager to have the opportunity to be a responsible parent, “assert[ed]” that he had benefitted from individual therapy, “expresse[d]” that he now understood that he “may have ‘made a mistake’ ” about some unspecified matter, and claimed that he wanted the opportunity to remedy the emotional harm he may have caused Jeremiah.

Given the findings of father's extensive and serious physical, mental and sexual abuse of his daughters and others, and of his several years of physical abuse of mother, evidence that he had attended 29 sessions of a sexual abuse treatment program was insufficient.   The director's comments added nothing to his petition because the director's comments show that he had no knowledge whether father had actually benefitted from attending any of the programs and no knowledge whether father had made any actual progress.   To show a prima facie case of changed circumstances sufficient to warrant a hearing on his petition required factual allegations of rehabilitation, i.e., facts showing how he had actually benefitted from the therapy, or facts specifying how he had since modified his behavior to address the issues which made Jeremiah a dependent child.  (See In re Angel B. (2002) 97 Cal.App.4th 454, 465 [allegations of a petition that mother had remained sober, completed classes, obtained employment and visited regularly were legally insufficient to warrant a hearing on her section 388 petition];  In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [seven months of sobriety was insufficient for father to show changed circumstances in light of his lengthy drug abuse history].)

Father asserts that the trial court applied the wrong standard when it denied his petition ex parte, by stating that his petition lacked “sufficient evidence.”   He argues that the actual evidence of changed circumstances only needs to be presented at the hearing.   The court in In re Edward H. (1996) 43 Cal.App.4th 584, 593, rejected this precise argument, noting that “to adopt the parents' position would endorse vague and evasive section 388 petitions.”

Father's petition failed to satisfy the first prong of the dual requirements for a hearing.   We accordingly conclude that the court acted within its discretion in finding that father's section 388 petition did not state a prima facie case for a change in the court's order sufficient to warrant a hearing.   (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.)

DISPOSITION

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. Further unmarked statutory references are to this Code..  FN1. Further unmarked statutory references are to this Code.

FN2. Trinity is not father's child and she is not a subject of this appeal..  FN2. Trinity is not father's child and she is not a subject of this appeal.

FN3. Section 361.5 provides that reunification services need not be provided when the court finds by clear and convincing evidence certain circumstances, including the circumstances “[t]hat the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse ․ to the child, a sibling, or a half sibling by a parent ․ and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent ․“ (§ 361.5, subd. (b)(6).).  FN3. Section 361.5 provides that reunification services need not be provided when the court finds by clear and convincing evidence certain circumstances, including the circumstances “[t]hat the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse ․ to the child, a sibling, or a half sibling by a parent ․ and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent ․“ (§ 361.5, subd. (b)(6).)

FN4. Mother is not a party to this appeal..  FN4. Mother is not a party to this appeal.

CHANEY, J. JOHNSON, J.

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