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Filed 1/ 9 /15 Guy S. v. Superior Court CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ord ered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRI CT

DIVISION THREE

GUY S. , Petitioner,

v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent;
CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES B UREAU et al.,
Real Parties in Interest. A143324

( Contra Costa Co unty Super . Ct. Case No . J13

- 01015 )

Guy S ., C.S.’s biological father, p etition s this court to set aside the juvenile court’s
O ct ober 8 , 2014 order denying his motion under Welfare and Institutions Code section
388 , 1 and setting a February 2, 2015 hearing pursuant t o se ct ion 366.26. The section 388 motion sought to reverse an earlier order denying petitioner reunification services and
visitation with C.S. For the reasons sta ted below, we deny the petition

.

FA CT UAL AND PROCEDURAL BACKGROUND C.S. will turn three years old in March 2015. When she was born
, petitioner was incarcerated. He remained incarcerated on September 4, 2013, when the Contr a Costa

1 Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.2

County Social Services Bureau (a gency ) filed a petition, pursuant to se ct ion 300,
subd ivision (b), alleging that C.S. was at risk of harm due to her mother’s substance abuse and the mother’s having left her with a caregiver for four days with no provisions
for on

- going support or any indication of when she would return

. The section 300 petition contained no allegations regarding C.S.’s father

. A fter ordering that C.S. be detained on September 5, 2013, the juvenile court sustained the allegations of the section 300 pet ition on September 26 and declared the

c hild a dependent of the court. On November 26, 2013
, the caseworker informed the court that petitioner anticipated being released from custody on January 20, 2014
, and that he requested family reunification services. On January 29, petitioner appe ared in court and t he court ordered a paternity test. 2 It also requested information about his criminal history and his prior involvement with C.S.
Petitioner ’s criminal history began in 1986
, when the California Youth Authority asserted jurisdict ion over him after he co mmitted a burglary. D uring his incarceration by the Youth Authority
, he escaped from a juvenile facility. The Youth Authority maintained jurisdi ct ion over him until he was 20 yea rs old. In 1991 he was sentenced to

two years in state prison for first degree burglary. In 1993, 1994 and 1995
, he was returned to prison for parole violations. In September 1995
, he was convi ct ed of being a felon in possession of a firearm and sentenced to 32 months in state prison. In 1997 , he

was again convi ct ed of being a felon in possession of a firearm and possessing a prohibited weapon and sent enced to prison for four years. In 1998, 2000, 2001, 2002 and
2003 , he was returned to prison for parole violations. In 2004 , he was convi ct ed of being in possession of drugs while armed, possession of a prohibited weapon, and possession of a controlled substance and was sentenced to four years in prison. In 2011 , he was sentenced to five years in state prison after being convi ct ed of automobile theft, possession of controlled substances, possession of stolen property, being a felon in

2 No father was listed on C.S.’s birth certificate. The mother reported that petitioner did not have a relationship with the child.3

possession of a firearm, resisting police, trespassing, evading police, and being in

pos session of forbidden ammunition

. On February 13, 2014
, the juvenile court requested that the agency recommend whether services should be provided to petitioner if his status were raised to that of a presumed father. 3 In a February 27, 2014 memorandum
, the agency explained that it did not yet know whether petitioner was the biological father. It opined, however, that he did

not m e et the criteria to be a presumed father. His only contact with C.S. was visitation
while he was incarcerated and he had never rec eived her into his home. The memorandum continued that even if testing confirmed petitioner i s the biological father, reunification services would be discretionary. It cited h is lack of a relationship with C.S.
, his extensive criminal history, and the fact that he had been incarcerated during the
child ’s “entire life,” having just recently been released. Consequently, the agency believed that it would not be in the child’s best interests for reunification services to be provided to petitioner

. At the March 3, 2014 disposition hearing, the court found by clear
and convi ncing evidence that placing C.S. either with her mother or petitioner would be detrimental to her safety, protection or physical or e motional well

- being. It ordered that
reunification services not be provided to petitioner unless he was raised to presumed
father status. Nothing in the record reflects that any party appealed the juvenile court’s
order at that time. On April 7, 2014, the juvenile court received the results of the genetic testing,
which confirmed that petitioner i s C.S.’s biological father ( the probability of paternity i s 99.99 percent )

. On May 1, the court held a contested hearing concerning petitioner’s request to be elevated to presumed father status, his request for visitation, and his request

3 For clarity, we provide the following definitions: (1) A man who has assumed a parental role is a “de facto father.” (2) A man who may be the biological father is an “alleged father.” (3) A man who is established to be the biological father is the “natura l father.” (4) A man who has held the child out as his own and received the child into his home is a “presumed father.” These categories may partially overlap

— for example, a natural father may also be a presumed father. A presumed father alone is entitled to reunification services and custody of the child. ( In re Jerry P. (2002) 95 Cal.App.4th 793, 801.)4

for reunification services. The agency submitted a memorandum, “cautiously recommend[ing] services to” petitioner. In making its recomm endation, the agency weighed various factors including petitioner ’s “incredible history of substance use and criminal activity associated with drug use,” the fact that he had “been incarcerated the majority of [ C.S. ’s] life,” his “consistent and regular[] contact” with his daughter

— even while incarcerated, his efforts to arrange for his daughter’s care when the mother was unable to care for her, his initiative in enrolling in a parent education course and in contacting the agency, and his expressed desire to provide for his daughter. The report noted that the minor “is a young child who has experienced a trem endous amount of loss and is struggling emotionally.” Her foster parents were in the process of enrolling her in a therapeutic preschool. The juvenile court found that petitioner i s C.S.’s biological father, but denied his request for presumed father stat us. It also declined to follow the agency’s
recommendation and denied hi s request for reunification services and did not order
visitation. Although it advised petitioner orally of his right to appeal and the necessary steps to do so, no appeal was taken fr om that order

. In its September 3, 2014 review hearing report discussing both C.S. and her half

sister, the agency recommended that services to the mother be terminated and that a hearing, pursuant to section 366.26, be held to determine a permanent plan. The agency reported that C.S. had developed a trusting rel ationship with her foster parents, calling them “mama,” and “daddy.” When her older half

- sister was present, C.S. sought her
constant attention

. The foster parents w e re willing and able to provide the girls with

permanence. On or about October 6, 2014 , petition er presented the juvenile court with a section
388 motion seeking to have the court reverse its earlier order and elevate him to presumed father status, order visitation , and order that he be provided with reunification
services. At the October 8 contested hearing on the section 388 motion and the six

- and
12

- month review s , petitioner testified he had custody of and cared for a half

- sibling of5

C.S. 4 He wanted C.S. to be part of his family. He testified that he had been employed for the past five months, was in full compliance with the terms of his probation, and that all his drug tests had been negative. A letter from petitioner’s probation officer verified that through the date of the letter, September 22, 2014, petitioner had complied with the terms
of his probation “with no issues” and had passed all random drug tests. C.S.’s counsel opposed the motion. She pointed out that at the time of the hearing C.S., who was not yet three years of age
, had b een detained for 13 months
, was enjoying a stable placement in a home where she had developed a close relationship with her half

sister
, and was bonded with her caregivers

. Offering reunification services to petitioner would necessarily entail a sign ificant delay in order to assess how his relationship with
C.S. would develop , as C.S. was not attached to petitioner

. C ounsel argued that although reunification might be in petitioner’s best interests, it was not in the child’s best interests

. The juveni le court denied petitioner’s section 388 motion. It ruled that there was not a sufficient change in circumstances to warrant reversing course. It found that offering services to petitioner “at this point in time would be detrimental to the child and
not be in her best interest.” I t also found that C.S. “is in dire need of permanency.” Given (1) petitioner’s “extensive, uninterrupted criminal history, ” (2) “ the fact that he doesn’t have a relationship with this child, due mostly in part because he was incarc erated at the time that she was born and until the time he presented himself here in early 2014 ,” and (3) “ the fact that [C.S.] is doing very well,” placed with her half

- sist er, which was important to her, the court denied the motion.
Petitioner filed a notice of intent to file a writ petition on October 15, 2014 , and
filed the petition on November 13. After issu ance of an order to show cause
, the agency
filed its opposition

. All parties have waived oral argument.
DISCUSSION Petitioner contends the juvenile court abused its discretion by denying him visitation and reunification services due to his prior incarceration. He cites case law to

4 This half

- sibling is not the same child as the half

- sibling being cared for by C.S.’s foster parents.6

support the proposition that the parent

- child relationship is critically important. (See e.g., Adoption of Kelsey S. (1992) 1 Cal.4th 816, 84 8 , quoting Lehr v. Robertson (1983) 463 U.S. 248, 256 ; In re Andrew L. (2004) 122 Cal.App.4th 178, 19 5 , quoting In re Julia U. (1998) 64 Cal.App.4th 532, 544 .) In particular, he cites In re Precious J. (1996) 42 Cal.App.4th 1463, 1476

- 1478 , for the proposition that although a parent’s incarceration presents substantial obstacles to arranging visits, it is not by itself sufficient reason to deny visitation. Petitioner’s argument fails for two reasons. Fa ctually, the court did not deny
visitation or services solely or even primarily because petitioner had been incarcerated. Admittedly, petitioner’s incarceration was a factor that led to his lack of a relationship with his daughter . However, the juvenile co urt also focused on his extensive cri minal history, the child’s need for permanence, her bond with her foster family , and her lack of a relationship with petitioner. Unlike the situation in In re Precious J., where the issue was whether the agency had prov ided reasonable services when it failed to arrange for visitation while the parent was incarcerated, here visitation occurred during petitioner’s
incarceration. Nonetheless, his daughter did not have a significant relationship with him and she was developi ng a positive familial relationship with her new family, including
her half

- sibling. The court based its ruling on these facts, coupled with petitioner’s extensive criminal history. Thus, the court’s order was not based primarily on petitioner’s prior inca rceration. Secondly, p etitioner did not appeal the February 13 , 2014 order denying him services unless he attained presumed father status , the March 3 order finding that placing
C.S. with petitioner would be detrimental to her, or the May 1 order denying him presumed father status, visitation, and services. Under section 388 , subdivision (d)
, the moving party bears the burden of pro ving that there is new evidence or changed
circumstances indicating that a modified order is in the child’s best interests. ( I n re Andrew L. , supra, 122 Cal.App.4th at p. 190.) Although petitioner made a generalized claim that parent

- child rela tionships are very important, he present ed absolutely no
evidence

— much less new evidence

— that it would be in the be st interests of C.S. to visit7

with him and for him to receive reunification services. Although h e presents evidence that he has taken steps to be come a responsible parent and to hold down a job
, commendable as those steps may be he presents no evidence concerning the needs of C. S.

or tending to show how she would be affect ed were he to play a parental role in her life. The court’s decision to deny the section 388 motion f alls well within its sound
discretion. ( In re Jasmon O. (1994) 8 Cal.4th 39 8 , 415

- 416.) The determination of the child’s best interests when ruling on a section 388 motion requires consideration of (1) the seriousness of the initial reason for the dependency
, (2) the strength of the existing bond between the parent and the child
, (3) the strength of the child’s b ond to the
caretakers
, and (4) the extent to which there has been a change of circumstances. ( In re Kimberly F. (1997) 56 Cal.App.4th 519, 530

- 532.) Here, at the time of the initial dependency, petitioner was not a custodial parent and thus was unavailable to mitigate the problems with the mother ’s caretaking ; he has a weak relationship with C.S.; C.S. has a solid, trusting relationship with the foster parents and her half

- sister ; and there has been only minimal changed circumstances. While petitioner has m ade positive strides at self

improvement, and has shown genuine affection for his daughter, o n this record t here is no basis to conclude that the juvenile court abused its discretion in finding that the child’s best interests preclude the relief that he se eks.
D ISPOSITION
T he pet ition for an extraordinary writ is denied

. Because the se ct ion 366.2 6 hearing is set for February 2 , 2015 , our decision is immed iately final as to this court. (Cal. Rules of Court, rules 8.452(i), 8.490 (b)(2)(A ).)8 _________________________ Pollak, J.

We concur:

_________________________ McGuiness, P. J.

_________________________ Jenkins , J.