Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. JD04-3117; JD04-3117A.
STEIN, J.
Jose B., the father of two minor children, appeals from orders reducing the frequency of his visitation with his children and summarily denying his Welfare and Institutions Code section 388 petition to modify previous orders.
All additional statutory references are to the Welfare and Institutions Code.
We affirm.
BACKGROUND
The children, then three and one, were detained in March 2004. The Department of Human Services (the Department) reported the children’s parents had been living in Spokane, Washington. They had received 11 child protection referrals over a two-year period, five of which had been accepted and investigated. The parents ultimately had signed a 60-day “Voluntary Placement Agreement,” under which the children would stay with the father pending a background clearance and his follow-through with recommended services. The agreement had to be extended after each parent was jailed. The children had been in foster care between September 2003 and December 2003, but by March 2004, the father and the children were living in a shelter in San Francisco. On March 11, 2004, the father hit one child in the face. On March 25, 2004, the father got into a fight with the mother’s boyfriend, who was visiting, with the result the father and the children lost their placement in the shelter. The following day the father was arrested for two counts of cruelty towards children and public intoxication after he was observed walking the children in a stroller, pushing the stroller hard and letting it go and then picking up a discarded television set or boom box and throwing it down repeatedly while the children screamed. The children were taken into custody.
On June 23, 2004, the juvenile court exercised jurisdiction over the children, ordering reunification services for the parents. In November 2004, the children, apparently at the father’s suggestion, were placed in the San Diego home of the father’s former wife, who already had custody of his four other children. In December 2004, the Department reported neither parent had complied with the reunification case plan. The father had left a substance abuse treatment program and had gone back to being homeless. He had visited the children on Fridays, but had not demonstrated an interest in reunifying with them. The caseworker recommended further reunification services be terminated and the children’s current placement be considered for adoption.
A six-month review hearing was held on February 28, 2005. The court found no likelihood the children would be returned to the parents within the maximum time allowed and terminated reunification services. It ruled the father could still have telephone contact with the children and could have monthly supervised visits with them. The matter was set over for a hearing on selection of a permanent plan. On May 6, 2005, a motion to terminate the father’s visitation was filed. The Department reported the father had shown up at the home of his former wife on April 30, 2005. He refused to leave and became threatening and abusive towards the ex-wife. The ex-wife refused to supervise any further visits between the father and the children. It seems the incident also caused her to decide she did not wish to adopt the children, or to be a part of their lives.
The children were placed with another foster parent in July 2005. In August 2005, the Department reported it had interviewed three families, all of which were not interested the children, apparently because the children’s relatives continued to be involved in their lives. Both parents were in substance abuse programs. The father also was suffering from health issues, for which he had been hospitalized for nine days in June 2005.
On October 18, 2005, it was agreed the father would have supervised visits every other week for a minimum of two hours, beginning October 25, 2005. On October 28, 2005, the court conducted a permanency planning hearing. (§ 366.26.) Section 366.26, subdivision (c) essentially requires that the court terminate parental rights unless one of the specified exceptions applies allowing a finding termination of parental rights would be detrimental to the child. The court here expressly did not find termination of the father’s rights would be detrimental to the children because he had “maintained regular visitation and contact with the child, and the child would benefit from continuing the relationship.” Rather, it recognized the children were living with someone who was not at that time able or willing to adopt them. The court identified long-term placement, presumably in the foster home, as the permanent plan, and set the matter over for six months for a section 366.3 post-permanency review hearing.
Section 366.26, subdivision (c)(1)(D) authorizes the court to find termination of parental rights will be detrimental to the child where “[t]he child is living with a relative, foster parent, or Indian custodian who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her relative, foster parent, or Indian custodian would be detrimental to the emotional well-being of the child. This subparagraph does not apply to any child who is living with a nonrelative and who is either (i) under six years of age or (ii) a member of a sibling group where at least one child is under six years of age and the siblings are, or should be, permanently placed together. . . .”
By January 2006, the father had made significant improvements in his situation. He had been clean, sober and in good spirits when he arrived for his visits with his children and there was a clear bond between them. He had completed his residential program, was continuing to attend substance abuse groups and was reported to be diligent in his attempts to secure housing and maintain sobriety. On February 14, 2006, the court, at the father’s request, increased the father’s visitation to one supervised visit every week for a three-hour period.
As of mid-May 2006, nearly two years after the children had been removed from his custody, the father was still in a shelter, where he reported he attended 12-step meetings. He had not entered an outpatient program nor had he obtained individual therapy. The father had been visiting as scheduled, although one visit had to be terminated early when the father came in exhausted and overstressed, became irritated and loud and could not be redirected to focus on the children. The children enjoyed his visits and appeared to benefit from them. The Department pointed out that although the father continued to participate in the children’s lives, it would be a long time before he would be in any position to reunify with them. The Department therefore was continuing to try to find an adoptive home for the children and recommended they remain in long-term placement. On May 16, 2006, the court ordered a permanent plan of foster care with a goal of adoption.
The Department submitted a status review report in October 2006, recommending the father’s visitation with the children be reduced. The visits had continued to go well, although the father still needed help developing his parenting skills. The father had missed only one visit, when he was hospitalized after having been physically attacked on the street. The father regularly visited the Mission Neighborhood Resource Center, where he accepted his case manager’s suggestions about such things as medical checkups and housing, but he was still living in a shelter and acknowledged how easy it would be for him to slip back into a destructive way of life. He had no housing or source of income. The Department also reported at least three potential adoptive homes had backed out when they learned the father had frequent visitation. Dr. Carolyn Block, a mental health consultant, advised it would be in the children’s best interests to find a permanent adoptive home. The visitation schedule currently in place was appropriate if the goal was to reunify with the father, but was not appropriate if the goal was adoption because it would be promoting a relationship with a parent who would not and could not become a reliable appropriate caretaker. Dr. Block also believed it would be easier on the children if visitation were reduced right away, rather than waiting until they were older. The Department therefore recommended the children remain in long-term placement until an adoptive home could be found, also recommending the father’s weekly supervised visits be reduced to once a month.
Several months went by without a ruling on the Department’s recommendation. On January 17, 2007, the Department reported the father had disappeared from a recovery program on November 30, 2006. The program leader stated the father’s participation in the program had been less than successful even before he left. The father constantly used bad language in group sessions, tried to manipulate the counselors and repeatedly broke the rules. He was supposed to test weekly, but had tested only four times between June 2006 and November 2006. He had failed to call or show up for a Christmas visit with the children. On February 21, 2007, the Department reported the father had been visiting, but did not appear to be capable of handling the children’s negative behaviors. He clearly cared for the children but seemed to be a “visiting parent” rather than a parent able to provide for the children’s care. A visit supervisor stated the father did not know basic child development stages and associated behaviors. He required the intervention of others, could not by himself handle the children’s behavior and did not have realistic expectations of them. He also did not appear to have basic hygiene skills.
A contested post-permanency review hearing was held in March 2007, where the court considered the Department’s request to reduce the father’s visitation. The father asked the court also to consider reinstating reunification services. The court declined to rule on that request, and refused to hear evidence specifically related to that request, taking the position that it first would determine issues relating to visitation. It later refused to consider the father’s request for reunification entirely, pointing out the father had not complied with section 388’s requirements for seeking a change of order.
The father reported he had moved from a shelter to a residential occupancy hotel and was completing requirements for obtaining an apartment through the San Francisco Housing Authority. He was continuing in his sobriety, outpatient support groups and individual therapy. He had been consistent with visitation. He introduced evidence he was aware of and concerned about the children’s problems. He had a bond with them, he was loving and caring with them and they were affectionate with him and enjoyed his company. He had been observed to discipline them appropriately. The father pointed out the frequency of his visits had been increased beginning in February 2006. He introduced evidence one child’s therapy had been terminated, suggesting the child had been benefitted by his visitation. The father noted, further, it was anticipated the child would need therapy again if his visits became less frequent, suggesting the child would be harmed by reducing visitation.
The Department introduced evidence the father, although consistent and appropriate with his visitation, could not always handle the children’s behavioral problems. As recently as February 8, 2007, he had to be pulled away from the children because he was showing frustration and discomfort. In addition, the child’s therapy had been discontinued when the therapist left on maternity leave, but since had been reinstituted. The other child had been and still was in therapy.
There was evidence the amount of visitation enjoyed by the father had interfered with the ability to locate adoptive parents for the children. An adoption recruiter had contacted three families who at first were interested in the children, but declined to go forward when they learned the extent of the visits between the children and the father. The recruiter explained potential adoptive families were afraid frequent visitation with a biological parent would prevent them from being able to finalize an adoption, and were terrified they would lose the children back into the system.
There was evidence the frequency of the father’s visits also would interfere with the ability of the children to attach to a new family. The recruiter stated her opinion it would be far better for everyone, including the children, to understand the ultimate goal was for them to go to permanent home other than their father’s home. The mental health consultant stated her opinion that weekly three-hour visits with the father would be difficult for any adoptive family. Although she favored open adoptions, visitation interfered with the ability of the adoptive family to function, as it was required to support the visits. More important, however, frequent visitation could create a sense of competition between families that would cause problems for the children.
The Department also produced evidence it would be best to reduce the frequency of visitation even before an adoptive family had been located. The mental health consultant again explained weekly supervised visits were appropriate when the goal was reunification, but opined that when the goal was adoption, visitation should be gradually decreased in a way that would not indicate to the children the new family was to blame for the decrease. The Department proposed visitation be reduced gradually in accordance with a schedule developed and reviewed with the children’s therapist and attorney.
On this evidence, the court ordered the father’s visitation to be reduced gradually to once every month.
The father filed a section 388 petition, which the court summarily denied on March 26, 2007. The father appeals from the March 14, 2007 and March 29, 2007 orders.
DISCUSSION
I.
Reducing the Father’s Visitation
We review the juvenile court’s rulings on visitation for abuse of discretion. (In re David D. (1994) 28 Cal.App.4th 941, 953.) In arguing the court abused its discretion, the father points out visitation promotes the parents’ interest in the care and management of their children. This point would be relevant if the goal of the proceedings was to reunify the children with the father, but it was not. “ ‘Family preservation ceases to be of overriding concern if a dependent child cannot be safely returned to parental custody and the juvenile court terminates reunification services. Then, the focus shifts from the parent’s interest in reunification to the child’s interest in permanency and stability.’ [Citation.]” (In re Richard C. (1998) 68 Cal.App.4th 1191, 1195.) After services are terminated, the court no longer is concerned with reunification, but instead is required to focus on how best to provide the children with stable, permanent homes. (See Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1145 (Maricela C.).) Here, the evidence was that frequent visitation with the father interfered with the children’s interest in permanency and stability as it made it less likely an adoptive home could be found for the children, and stood to make it more difficult for the children to attach to a new family should one be located.
The father complains the court considered the children’s best interests, rather than whether a reduction in visitation would be detrimental to them. Section 366.21, subdivision (h), relied on by the father’s attorney in the trial court, provides, “In any case in which the court orders that a hearing pursuant to Section 366.26 shall be held, it shall also order the termination of reunification services to the parent or legal guardian. The court shall continue to permit the parent or legal guardian to visit the child pending the hearing unless it finds that visitation would be detrimental to the child. The court shall make any other appropriate orders to enable the child to maintain relationships with individuals, other than the child’s siblings, who are important to the child, consistent with the child’s best interests.” The court’s order limiting visitation did not in any way violate this provision. First, the court was not at that time setting a section 366.26 hearing. Second, the provision applies a “detrimental to the child” standard where visitation is terminated; here the court allowed visitation to continue, albeit at a reduced rate. Cases such as In re Hunter S. (2006) 142 Cal.App.4th 1497, where visitation was not provided, therefore are inapposite. Moreover, section 366.21 is directed, at least primarily, at proceedings occurring before a permanent plan has been adopted, when the court gives weight to the parent’s interest in reunification. Here, defendant had not had custody of the children for nearly three years, reunification services had been terminated, a permanent plan had been adopted and, as noted above, the children’s interests in stability and permanency were the paramount concern. The father also cited section 366.22, subdivision (a), which provides the court “shall continue to permit the parent or legal guardian to visit the child unless it finds that visitation would be detrimental to the child,” but again, the court was not considering whether to discontinue visitation entirely. It was considering only whether visitation should be reduced.
We also are of the opinion the court in fact did consider whether the current schedule of visitation was detrimental to the children. Defendant focuses on the uncontested evidence the children enjoyed his company, had a bond with him, would be distressed if he disappeared from their lives and likely would be distressed by a reduction in visitation. While these factors are relevant, the court also was entitled to consider the detrimental effect of interfering with the children’s ability to obtain permanent placement, and to find that, on balance, it would be less detrimental to the children to promote permanent placement by reducing the frequency of the father’s visitation.
It has been noted the standards of the children’s best interests and detriment to the children are basically two sides of the same coin. (In re Jacob P. (2007) 157 Cal.App.4th 819, 829; In re Randalynne G. (2002) 97 Cal.App.4th 1156, 1169, superseded by statute on another ground as stated in In re S. B. (2004) 32 Cal.4th 1287, 1294-1295.)
It is of little significance that no adoptive family had been located during those periods when the father had no visitation. Those periods of time were not long. In addition, the most recent period had resulted from the father’s direct interference with the relationship developing between the children and a prospective adoptive parent (the father’s former wife), indicating the children would be able to find permanent placement in the absence of the father’s interference. Finally, in light of the evidence of the importance of ensuring the children would not blame a prospective family for the reduction in visitation, the court’s order was proper even though no prospective family yet had been identified.
The order reducing visitation was not an abuse of discretion.
II.
Summary Denial of Section 388 Petition
As a threshold matter, section 366.3 includes provisions suggesting a court at a post-permanency review hearing should consider whether to order reunification services. (See § 366.3, subds. (e)(1), (e)(7) & (g).) Nonetheless, it is settled these provisions do not require the court to hold a contested hearing at which a parent may produce evidence. The purpose of a permanent plan review is to provide children with stable, permanent homes, not to institute a requirement for additional contested hearings. (Maricela C., supra, 66 Cal.App.4th at pp. 1145-1147.) Section 366.3 is part of a statutory scheme in which section 388 provides the means for seeking a change of a previous order such as an order terminating reunification. In Kimberly H. v. Superior Court (2000) 83 Cal.App.4th 67, the court upheld the trial court’s refusal at a review hearing to consider the issue of substantial probability of return, holding that at that point, the burden “is on the parent to show changed circumstances under . . . section 388, in order to revive the reunification issue.” The same is true for a post-permanency review hearing where a parent’s interests in reunification are, if anything, further reduced. (And see In re Heather P. (1989) 209 Cal.App.3d 886, 891, where the court affirmed the trial court’s refusal to consider a change in custody during a post-permanency review hearing, recognizing section 388 and the relevant related rules of court provide adequate means to challenge a custody order.) In sum, we conclude, as did the trial court, section 388 provided the father with an adequate method for seeking reinstitution of reunification services.
Section 388 authorizes a parent, “upon grounds of change of circumstance or new evidence,” to petition the court “for a hearing to change, modify, or set side any order of court previously made.” (§ 388, subd. (a).) The court is required to order a hearing be held “[i]f it appears that the best interests of the child may be promoted by the proposed change of order.” (§ 388, subd. (c).) The parent seeking a modification must make a prima facie showing to trigger the right to proceed by way of a full hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 310; In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) “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 children. [Citation.] 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 Anthony W., at p. 250.) The petition may not be conclusory, but should include declarations or other attachments which demonstrate the showing the petitioner will make at the hearing. (Ibid.)
In support of his petition, the father submitted a September 1, 2006 letter from the Mission Council on Alcohol Abuse reporting he had been attending their intensive outpatient program daily. He submitted his own declaration plus supporting documentation that he had completed a three-month residential substance abuse program in October 2005, had continued with outpatient substance abuse support groups and was currently attending those groups plus group meetings dealing with issues of substance abuse and recovery. He consistently had maintained sobriety, and had been attending weekly individual psychotherapy sessions since July 2006. He had lived at a shelter until October 2006, when he had obtained single-room occupancy housing through the Tenderloin Housing Clinic, and was working to obtain an apartment. He pointed out, again, he had been consistent in his visitation with his children, asserting their behavior had improved as a result of his visitation. He therefore sought reinstatement of reunification services, retention of weekly visitation and that a bonding study be ordered.
The father’s evidence, while unquestionably demonstrating he had been bettering his situation, did not show changed circumstances. Rather it showed he was continuing to improve, but still had a long way to go before he could take full custody of his children, even if services were provided. In addition, the evidence could not support a finding that increasing visitation or providing services would promote the children’s interests. The situation is similar to that in In re Angel B. (2002) 97 Cal.App.4th 454. The court there pointed out that in the absence of continuing reunification services, the presumption is stability in an existing placement is in the best interest of the child. (Id. at p. 465.) That a parent has remained sober and has completed various classes cannot overcome this presumption, even if the parent is employed and can show he or she will be able to remain sober, remain employed, become self-supporting and obtain housing. (Id. at pp. 464-465.) Such a showing, therefore, is not legally sufficient to require a hearing on the section 388 petition. (Id. at p. 465.) As recognized in In re Zachary G. (1999) 77 Cal.App.4th 799, 808, summary denial of a section 388 petition is not an abuse of discretion where there is no showing the parent is immediately ready to take custody of the child or children on a permanent basis, and no showing by independent evidence from a therapist or similar expert, that it is in the child or children’s best interests to be removed from the stability of a permanent home in order to be returned to a parent who was still at risk of regressing. At best, the father here made a prima facie showing that someday, with sufficient help, he might be able to provide a home for his children. That showing simply is not enough to establish it is in the children’s best interests to interfere with their ability to obtain a stable, permanent placement as soon as possible.
DISPOSITION
The orders reducing visitation and summarily denying the father’s section 388 petition are affirmed.
We concur:MARCHIANO, P. J., SWAGER, J.
As both children here were under the age of six years, the exception provided no basis for the court’s decision not to terminate the father’s parental rights.