Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. EJ2720, Gary M. Bubis, Judge.
NARES, Acting P. J.
Lawrence H., father of dependent minor Maranda H., appeals a juvenile court order summarily denying his petition for modification under Welfare and Institutions Code section 388 by which he sought supervised visits with Maranda. Lawrence
Statutory references are to the Welfare and Institutions Code.
contends his due process rights were violated when the court denied his modification petition without a hearing despite a prima facie showing his circumstances had changed and the proposed modification was in Maranda's best interests. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2006 eight-year-old Maranda became a dependent of the juvenile court and was removed from parental custody based on findings her parents exposed her to domestic violence, including Lawrence yelling at Maranda when she pleaded with him to stop hurting her mother, Tammy H. Maranda told police she was afraid of Lawrence and said he hit her with a belt and threw her against a wall. Maranda frequently saw Lawrence hit Tammy, push her and throw things at her. She was aware Lawrence had broken Tammy's nose and had threatened to kill Tammy and others. Lawrence minimized the violence, characterized Tammy as the aggressor and insisted Maranda had not witnessed any domestic violence. After Tammy obtained a restraining order, Lawrence was seen prowling around the house, shining lights in the windows and firing gunshots into the air. Lawrence was arrested twice for violating the restraining order.
Maranda's therapist reported Maranda was fearful of Lawrence and adamantly refused to have contact with him. Lawrence claimed Maranda was being manipulated by her caregivers. The court ordered no visits between Maranda and Lawrence pending trial on the issue of visitation.
According to a six-month review report, Lawrence was again arrested for multiple violations of the restraining order. Maranda continued to express fear of Lawrence, saying she was afraid he was going to kill her older sister and the sister's baby. Maranda wrote a letter to the court stating she did not want to see her father and wanted to return to her mother's care.
Lawrence was participating in therapy, but he remained in denial. Although Lawrence was making progress with domestic violence treatment, he had not yet developed empathy and openness to group feedback. According to a psychological evaluation, Lawrence minimized or denied the allegations of domestic violence, calling into question his ability to properly parent and placing him at risk for further violence. He showed traits of a physically abusive parent and viewed children negatively.
At a six-month review hearing, the court continued Maranda placed with relatives and ordered further services for the parents. The court set a trial on the issue of visitation.
Maranda continued to adamantly state she did not want to see Lawrence. The social worker believed visitation would be detrimental to Maranda. Maranda's therapist informed the court Maranda had consistently stated she did not want contact with Lawrence. Maranda still had emotional outbursts and showed regressive behavior whenever the topic of Lawrence and domestic violence was raised. Her anxiety and fear escalated in anticipation of testifying on the issue of visitation. In the therapist's opinion, contact with Lawrence was likely to create increased emotional turmoil and a high potential for emotional damage to Maranda.
Lawrence continued to have difficulty accepting responsibility for his abusive behavior. Although he was facing incarceration for the restraining order violations, he maintained he was unlawfully arrested.
According to a psychological evaluation, Maranda was in a state of mild, chronic stress with inadequate coping skills, and she was at risk of developing anxiety or depressive disorders. She expressed negative feelings about Lawrence. The evaluator recommended Maranda's and Lawrence's therapists work together to determine if father and child were ready for contact and what type of conjoint therapy and support services were needed.
At a contested hearing on the issue of visitation, the court found it would be detrimental to Maranda to have face-to-face contact with Lawrence. However, the court ordered telephone contact could occur in a therapeutic setting with the concurrence of both therapists.
By the 12-month review date, Maranda had been placed with Tammy. The parents had completed their divorce proceedings, and Lawrence was still on probation for domestic violence charges. Maranda continued in therapy and consistently stated she wanted no contact with Lawrence. Her therapist informed Lawrence's therapist that contact between Maranda and Lawrence would increase Maranda's posttraumatic stress symptoms and emotional distress. After Lawrence was reportedly seen near the family home, Maranda's symptoms dramatically increased, requiring her to be hospitalized for five days.
Lawrence completed a one-year domestic violence treatment program. However, he was sentenced to six months in jail for a probation violation when he tested positive for cocaine and methamphetamine. He blamed Tammy for his drug use and continued to deny responsibility for his actions.
Lawrence's therapist, Scott Weiner, Ph.D., believed Lawrence was not yet ready for contact with Maranda because he had not shown accountability for the domestic violence. Dr. Weiner suggested Lawrence write an atonement letter to Maranda. Although Lawrence attempted to write one, Dr. Weiner rejected it as "unacceptable."
In September 2007 a subsequent petition under section 342 was filed because Tammy tested positive for methamphetamine and physically abused Maranda. The court removed Maranda from Tammy's custody, placed her in licensed foster care and ordered Another Planned Permanent Living Arrangement as Maranda's permanent plan. The court ordered six more months of services for the parents under section 366.3.
Lawrence filed a section 388 modification petition, seeking to have supervised contact with Maranda. As changed circumstances, the petition alleged Lawrence has continued in therapy and was making progress resolving his issues. The petition further alleged it was in Maranda's best interests to work together with Lawrence on their issues and to see him. The court summarily denied the petition, finding Lawrence had not made a prima facie showing of changed circumstances or best interests.
DISCUSSION
A
A party may petition the court under section 388 to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there is a change of circumstances or new evidence, and (2) the proposed change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The petition must be liberally construed in favor of its sufficiency. (Cal. Rules of Court, rule 5.570(a); In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (In re Marilyn H., supra, at p. 310.) " '[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.' [Citation.]" (In re Jasmon O., supra, 8 Cal.4th at p. 415; see also In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.) "However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) The summary denial of a section 388 modification petition does not violate a parent's due process rights. (In re Jasmon O., supra, 8 Cal.4th at p. 415.)
B
Here, Lawrence's modification petition alleged he was making progress on his issues through therapy. In support of this allegation, Lawrence relied on a letter from Dr. Weiner, stating "I see movement in [Lawrence's] state of responsibility-taking, be it ever so late to appear." Dr. Weiner also stated he strongly believed Lawrence "is sincere in his wish to do whatever he must, or can, to be able to see and spend time with [Maranda]." However, Dr. Weiner was troubled by, and disbelieved, Lawrence's claim that his positive drug test resulted from being in the same room with others who were using drugs. Given Lawrence's continued inability to accept responsibility for any of his problems—domestic violence, restraining order violations and drug use—the letter from Dr. Weiner cannot be read as supporting Lawrence's claim his circumstances had changed, entitling him to visits with Maranda.
Lawrence made no prima facie showing his progress in therapy was otherwise sufficient to warrant contact, even supervised contact, with Maranda. He offered no evidence he had gained empathy or taken responsibility for the domestic violence that so traumatized Maranda. Dr. Weiner had recommended Lawrence express his responsibility in an appropriate letter of atonement, but Lawrence had not done so nine months later. Dr. Weiner's opinion there was recent "movement" by Lawrence toward taking responsibility showed, at most, "changing" circumstances. A petition that alleges changing circumstances does not promote a child's best interests or stability for the child because it would mean delaying a permanent plan to determine whether a parent who has not reunified with the child might be able to reunify at some future time. (In re Casey D., supra, 70 Cal.App.4th at p. 47.) "Childhood does not wait for the parent to become adequate." (In re Marilyn H., supra, 5 Cal.4th at p. 310.)
Further, Lawrence's allegation he was sincere in his desire to repair his relationship with Maranda was not a changed circumstance as that was his position all along. Significantly, there were no changed circumstances regarding Maranda's position on visitation; throughout the proceedings, she consistently and adamantly refused any contact with Lawrence. Any changes in Lawrence's circumstances were "not legally sufficient to require a hearing on [his] section 388 petition." (In re Angel B. (2002) 97 Cal.App.4th 454, 465.)
C
Even had Lawrence made a prima facie showing of changed circumstances, his petition did not show that the proposed modification was in Maranda's best interests. Lawrence claims Maranda's best interests would be served by working together with him on their conflicts, which would give Maranda the opportunity to heal their relationship. However, the professionals involved in this case concur that Maranda's best interests require she have no contact with Lawrence, whose conduct caused Maranda to suffer from posttraumatic stress disorder and anxiety because she repeatedly witnessed and experienced Lawrence's domestic violence and physical abuse. Despite a restraining order, Lawrence continued to threaten the family, causing Maranda further emotional damage and requiring her to be hospitalized. Lawrence failed or refused to take an important step toward repairing the damage to their relationship by not completing an appropriate atonement letter.
Because the facts alleged in the petition would not have sustained a favorable decision on the section 388 petition, Lawrence was not entitled to an evidentiary hearing. (In re Zachary G., supra, 77 Cal.App.4th at p. 808; In re Mary G. (2007) 151 Cal.App.4th 184, 205-206; cf. In re Aljamie D. (2000) 84 Cal.App.4th 424, 432 [mother made prima facie showing of best interests where children expressed their desire to live with her].) By summarily denying Lawrence's section 388 petition, the court did not deny him due process. (In re Jasmon O., supra, 8 Cal.4th at p. 415.)
DISPOSITION
The order is affirmed.
WE CONCUR: O'ROURKE, J., AARON, J.