Nickolas F. v. Superior Court

• Decision Date: 25 October 2006
• Docket Number: No. D048652.,D048652.
• Citation: 50 Cal.Rptr.3d 208,144 Cal.App.4th 92
• Court: California Court of Appeals Court of Appeals
• Parties: NICKOLAS F., Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; San Diego County Health and Human Services Agency, Real Party in Interest.

50 Cal.Rptr.3d 208

144 Cal.App.4th 92

NICKOLAS F., Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent San Diego County Health and Human Services Agency, Real Party in Interest.

No. D048652.

Court of Appeal, Fourth District, Division 1.

October 25, 2006.

Law Offices of Christopher R. Booth, Christopher R. Booth, and Robert Gulemi for Petitioner.

John J. Sansone, County Counsel, John E. Phillips, Chief Deputy County Counsel, and Paula J. Roach, Deputy County Counsel, for Respondent.

Steven J. Carroll, Public Defender, and Dana Feuling, Deputy Public Defender, for Minors.

AARON, J.

INTRODUCTION

Nickolas F. seeks writ review of juvenile court orders made at the 12-month review hearing terminating family reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26.¹ Nickolas contends that the juvenile court erred when it granted petitions for modification, filed pursuant to section 388, to deny him family reunification services. He maintains that under section 385, the juvenile court does not have the discretion to modify its previous orders unless the court first determines either that there has been a change of circumstances, or that new evidence justifies the modification, as required under section 388. Nickolas further contends that he did not receive reasonable reunification services as the court initially ordered, and that the court's modification of the disposition order substantially impaired his rights.

We conclude that the juvenile court has the statutory authority, pursuant to section 385 to change, modify, or set aside "[a]ny order made by the court in the case of any person subject to its jurisdiction" sua sponte,² after providing the parties with notice and the opportunity to be heard. (LeFrancois v. Goel (2005) 35 Cal.4th 1094, 1104-1108, 29 Cal.Rptr.3d 249, 112 P.3d 636 (LeFrancois).) The juvenile court's authority to modify a previous order that the court independently recognizes as having been erroneously, inadvertently or improvidently made is not contingent on a party seeking a modification pursuant to section 388.

We further conclude that the juvenile court has inherent authority, pursuant to California Constitution, article VI, section 1, to reconsider its prior interim orders when necessary to prevent a miscarriage of justice, provided that in so doing, the court does not violate the constitutional rights of the parties.

Although a section 388 petition for modification is the appropriate procedural mechanism to use when a party seeks a modification of a court order based on new evidence or changed circumstances, we are reluctant to endorse a procedure in which the court requests that a party file a petition pursuant to section 388 in order to allow the court to modify an order it considers to have been erroneously, inadvertently or improvidently made. Proceeding in this manner is particularly problematic where, as here, the evidence presented at the disposition hearing was sufficient to apprise the juvenile court that section 361.5, subdivisions (b), (c) or (e) might apply to preclude a routine order for reunification services. However, we conclude that the court's denial of reunification services to Nickolas, through the procedural mechanism of a section 388 petition, did not result in a miscarriage of justice. Thus, any error was harmless. Accordingly, we deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2005, Nickolas's sons, Joshua F. and Matthew G. (together, the children), who were then ages 3 years and 18 months, respectively, were detained by the San Diego Health and Human Services Agency (Agency) after their maternal half-brother tested positive for methamphetamine at birth. The Agency filed petitions pursuant to section 300, subdivision (b) alleging that there was a substantial risk that the children would suffer serious physical harm or illness due to their mother's drug use, unsanitary conditions in the home, and her inability to care for the children. The petitions further alleged that Nickolas was unable to protect and supervise the children.

In its jurisdiction/disposition report, the Agency reported that it had learned from E.G., the children's mother, that Nickolas was serving a five-year sentence in Arizona for abusing the children's paternal half-brother. That child suffered a broken hip, collarbone and ribs, and other injuries as a result of abuse by Nickolas. E.G. told the social worker that Nickolas had introduced her to methamphetamine use, and that he had physically abused her during their marriage. The Agency also reported that Nickolas had a criminal record that included charges or convictions for aggravated assault on a minor, possession and use of a dangerous drug, unlawful sexual intercourse with a minor under age 14, oral copulation with a minor under age 16, and burglary.³

The Agency contacted Nickolas in the Arizona state prison system prior to the jurisdiction and disposition hearing. In a letter to the social worker dated April 1, 2005, Nickolas stated that he would be incarcerated until May or August 2008 and asked the Agency to consider placing Joshua with his mother.⁴

The Agency did not include Nicholas's expected release date in its report to the court. While the Agency did not develop a case plan for Nickolas, it did not explicitly recommend that the court deny Nickolas reunification services. At the disposition hearing, the court ordered the Agency to provide reunification services to the parents "consistent with their case plan(s)"⁵ and specifically ordered the Agency to provide services to "Father [F.]".

In its six-month status review report, the Agency stated that it had had "no contact whatsoever" with Nickolas. It had not prepared a case plan for Nickolas, nor had it offered him services. In an addendum report prepared for the November 2005 six-month review hearing, the Agency included a letter from Nickolas dated November 6, 2005, in which he stated that he was scheduled to be released in August 2008, and again asked the Agency to evaluate his mother for placement of the children. Despite the Agency's report of having had no contact with Nickolas, the court found that reasonable services had been offered or provided to "the parent(s)," and continued services as previously ordered.⁶

In April 2006, the case was assigned to a new social worker. The day before the scheduled 12-month review hearing, the social worker sent Nickolas a prison parenting packet and a letter inquiring about his access to programs and services at the facility in which he was incarcerated. In a letter to the social worker dated April 15, 2006, Nickolas provided information about programs that were available at the prison, and expressed his willingness to participate in services. He reiterated his wish to involve his mother in the children's care.

The social worker contacted Nickolas's mother, who was the guardian of his youngest son. She told the social worker that as a result of physical abuse, that child had suffered a skull fracture, had developed hydrocephalus,⁷ and had been diagnosed with mild mental retardation.

In its April 2006 status review report to the court, the Agency recommended that the court terminate family reunification services and set a permanency plan hearing under section 366.26. E.G. had not resolved her substance abuse issues. Her cousin planned to adopt the children's maternal half-brother and was interested in adopting Joshua and Matthew as well. E.G. believed the proposed adoption by a family member was in the children's best interests, and she did not intend to contest the Agency's recommendations.

At the 12-month review hearing, Nickolas moved for a directed verdict, arguing that the Agency had not met its burden to show that it had provided him reasonable reunification services. The court denied the motion. The court reasoned that even under the best circumstances, it would not be possible to return the children to Nickolas's custody, due to his incarceration. The court also determined that the Agency had provided services to Nickolas in that it had made efforts to locate Nickolas and to advise him of the children's status throughout the proceedings. The court found that under the totality of the circumstances, the Agency had provided services to Nickolas and that the services provided were reasonable.

Nickolas, through his counsel, objected to the finding that he had been provided reasonable services. Nickolas's attorney pointed out that at the disposition hearing, the court had specifically ordered the Agency to provide Nickolas reunification services, and argued that the Agency had a duty to follow the orders of the court. Counsel maintained that the evidence established that the Agency had not offered or provided reasonable reunification services to Nickolas, and pointed out that the court's orders requiring the Agency to provide services remained in effect because no other party had filed a formal petition pursuant to section 388 to modify the orders granting Nickolas reunification services.

Although the court believed its judgment as to the substantive issue was correct, it found that Nickolas's procedural objection had merit. The court continued the proceedings in order to allow the Agency time to file a petition for modification. Both the Agency and E.G. subsequently filed petitions pursuant to section 388 requesting that the court modify its disposition orders to deny reunification services to Nickolas. In her petition, E.G. alleged that there was new evidence in that, at the time of the disposition hearing, the court was not aware of the details of the crime for which Nickolas was incarcerated or his release date. She also argued that circumstances had changed because she now agreed to submit to the proposed adoption of the children by her cousin. E.G. asserted that providing reunification services to Nickolas would be detrimental to the...