Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. JUV76480. Bradley O. Snell, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.
Michael D. Randall, under appointment by the Court of Appeal, for Minor.
OPINION
Gaut, J.
The father of E.B. appeals following a judgment terminating his parental rights. He challenges the summary denial of his petition to modify the prior order terminating services (Welf. & Inst. Code, § 388 ), in which he sought to reinstate reunification services. We affirm.
Unless otherwise indicated, all further statutory references will be to the Welfare and Institutions Code.
BACKGROUND
E.B., the minor, was born in January 2007, to C.A., mother (not a party to this appeal), and father. She was taken into protective custody upon release from the hospital on January 22, 2007. Although neither the minor nor mother was under the influence of drugs at birth, mother had a lengthy history of involvement with the Department of Public Social Services (DPSS), going back to 1991. This minor was mother’s eighth child. The seven older children, who are not related to father, had all been removed from mother’s custody at various times due to mother’s long term heroin abuse, neglect of the children, and physical abuse of one child, in four separate dependency proceedings. Mother was given reunification services for all but the next youngest child, A.G., who was in permanency planning stages of dependency proceedings at the time of E.B.’s birth; she had failed to reunify with any of her children. Father abused alcohol and used marijuana.
Father’s initials are also “E.B.” so we will refer to him solely as “father” to avoid confusion.
On January 24, 2007, a dependency petition was filed alleging failure to protect and inability to provide regular care to the minor due both parents’ history of chronic substance abuse, mother’s failure to benefit from services for drug related issues in prior dependency actions, and the parents’ transient lifestyles (§ 300, subd. (b)); the petition also alleged that a half-sibling had been abused or neglected. (§ 300, subd. (j).) At the contested jurisdiction hearing, unattended by either parent, the juvenile court made a true finding on all the allegations of the petition, declared the minor to be a dependent, removed the minor from the parents’ custody, denied reunification services for the mother, but approved and ordered a case plan for the father.
On October 18, 2007, the court concluded the six-month status review hearing. The court reviewed DPSS reports showing that father had been terminated from parenting education classes, failed to participate in a substance abuse program, missed all drug tests, and visited the child only twice. The quality of the visits was described as inappropriate because father had almost no contact or interaction with the child. The court found father’s progress was unsatisfactory, terminated reunification services, and ordered a permanency planning hearing, to select and implement a permanent plan. (§ 366.26.)
The selection and implementation hearing (§ 366.26) was held on January 24, 2008. Father filed a petition to modify the prior court order (§ 388) on the date of the hearing, asserting (1) he was enrolled in the Omega Program, an outpatient rehabilitation program, (2) he was in parenting classes; (3) he was residing at Victory Outreach, and (4) he had drug tested. The court summarily denied the petition, and terminated parental rights. Father appealed.
DISCUSSION
Father argues the juvenile court committed reversible error by denying an evidentiary hearing on his petition for modification. We disagree.
A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist, and (2) the proposed change would promote the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-317.) To trigger the right to a hearing on the petition, the petitioner need only make a prima facie showing of these elements, and the petition should be liberally construed in favor of granting a hearing to consider the petitioner’s request. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.)
A “prima facie” showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) The prima facie showing is not met unless the facts alleged would sustain a favorable decision. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) Where the allegations of the petition, even when liberally construed, do not make a prima facie showing of either changed circumstances or that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.) A petition which includes general conclusory allegations, does not rise to the level of a “prima facie” showing. (In re Edward H., supra, at p. 593.)
The juvenile court has discretion whether to provide a hearing on a petition alleging changed circumstances. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431.) We review a summary denial of a section 388 petition for abuse of discretion. (In re Angel B. (2002) 97 Cal.App.4th 454, 460.) We examine each to determine if the juvenile court abused its discretion.
Father’s modification petition alleged as changed circumstances that he was currently engaged in parenting education and substance abuse programs, but does not show he had completed any of them. These allegations do not demonstrate changed circumstances. At best, the petition shows that after the juvenile court terminated his services due to his failure to regularly participate in his case plan, father was motivated to begin making changes, “to get on the ball” so to speak. Unfortunately, although father was belatedly applying himself in earnest to the case plan components, he does not appear to have completed any of them.
Further, all his efforts came within a three-month period immediately preceding the selection and implementation hearing, which is too short a period to show actual recovery from his substance abuse problems. After all, father had always been able to maintain his sobriety for periods of up to three months before resuming his abuse of alcohol. Thus, his circumstances were changing, but not changed. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child’s best interests. (Ibid.)
To demonstrate that the proposed modification would be in the best interests of the child, father asserted he loves his child very much, has visited monthly since the contested six-month review hearing of October 17 and 18, 2007, and wants to regain custody of his daughter. These facts show how father would be benefited by the modification, not the child. While it is important to love one’s children, visit regularly, and desire custody of one’s children, these facts do not show how the proposed modification would be beneficial to a child who is currently in a stable adoptive placement, especially where father’s visits did not demonstrate any bonding.
Father did not make a prima facie showing of either changed circumstances or that the proposed change would promote the best interests of the child. Thus, the court had discretion to deny the petition summarily. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189.) There was no abuse of that discretion here.
DISPOSITION
The judgment is affirmed.
We concur: McKinster, Acting P. J., King, J.