Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. SWJ008674 Michael J. Rushton, Judge.
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
McKinster J.
A.J. (father), contends the trial court abused its discretion when it summarily denied his Welfare and Institutions Code section 388 petition. Father filed the petition on the day of the Welfare and Institutions Code section 366.26 selection and implementation hearing to terminate father’s parental rights to his infant son, C.C. Father alleged in the petition that he had completed a parenting class and drug treatment and that it would be in C.C.’s best interest either to be placed with father under a family maintenance plan or for the court to order additional reunification services. The trial court denied the petition after finding father had failed to make the required prima facie showing that the requested change would be in C.C.’s best interest. The trial court then terminated father’s parental rights and ordered adoption as the permanent plan for C.C.
Father contends in this appeal that he made the required prima facie showing and therefore the trial court abused its discretion by summarily denying his petition; the trial court should have ordered a hearing on the petition. We conclude, as we explain below, the trial court did not abuse its discretion by summarily denying the petition. Therefore, we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Riverside County Department of Public Social Services (DPSS) removed C.C. from the custody of his mother after the infant tested positive for methamphetamine at the time of his birth in September 2008. The relationship between mother and father was sporadic over the four years before C.C. was born. As a result mother was uncertain whether father or another man was C.C.’s biological father. At the time of C.C.’s birth, mother was married to someone other than father, and father was living with a woman with whom he also had a young child.
DPSS filed a Welfare and Institutions Code section 300 petition with respect to C.C. on September 12, 2008. The petition included allegations under section 300, subdivision (b) that C.C. was at risk of harm from father because father abuses marijuana and has failed to adequately provide for the child. The trial court detained C.C. following a detention hearing on September 15, 2008, at which the trial court also ordered father submit to paternity testing. At the time of the detention hearing, C.C. was in a hospital neonatal intensive care unit. By early October, C.C. was living in the foster home of a nonrelative.
All further statutory references are to the Welfare and Institutions Code unless indicated otherwise.
After testing established that he is C.C.’s biological father, father expressed interest in obtaining physical custody of C.C. To that end, father consistently visited the child. During those visits father appeared comfortable with the infant and helped teach mother how to handle the baby. However, on September 29, 2008, father tested positive for marijuana and cocaine; on October 17, 2008, he tested positive for marijuana and opiates.
At the combined jurisdiction and disposition hearing in December 2008, mother and father submitted on the issue of jurisdiction, the trial court recognized father as C.C.’s presumed father, and ordered reunification services for him. Father’s case plan required him to complete a parenting class, and, after a substance abuse evaluation, to complete the recommended drug treatment program.
Father consistently visited with C.C. during the six-month reunification period. According to the social worker’s report for the six-month review hearing, from September 26, 2008, to May 7, 2009 (the date of the report), father had 40 supervised visits with C.C. and missed 12 visits. Father’s interaction with C.C. was “very appropriate” during those visits, and included reading to the child, talking with him, and playing with toys together. C.C. responded well to father, as evidenced by his frequent smiles and his apparent comfort while sitting in father’s lap.
Although father’s interaction with C.C. was positive and “the bond was reciprocated” by C.C., father had not completed a parenting class and had only just enrolled in drug treatment by the time of the six-month review hearing on June 17, 2009. Moreover, the social worker reported that father did not regularly drug test and in February 2009, when father did drug test, the result was positive for marijuana and cocaine. Although father had a medical marijuana card and used marijuana for pain caused by back spasms, he denied cocaine use and “expressed feeling devastated that he tested positive for cocaine.” In March 2009, father, who was on probation for battery on a so-called former companion, was arrested and charged with selling cocaine base. Father denied any involvement in the crime, and claimed that he had separated from friends who were a bad influence. Father also was arrested two times in March for driving with a suspended license.
At the six-month review hearing, the trial court made the required findings and, in accordance with the recommendation of DPSS, terminated reunification services for both father and mother. The trial court set the section 366.26 selection and implementation hearing for October 13, 2009, and authorized father to have monthly visits with C.C., who was doing well in his nonrelative foster care placement.
The selection and implementation hearing did not take place until a year after the date originally set due to difficulty finding a family willing to adopt both C.C. and his half sister, J.J. Mother gave birth to J.J. in December 2009, and DPSS placed the infant with C.C. and his foster parents. C.C. quickly bonded with J.J. The foster parents declined to adopt the children because they felt they were too old to raise them to adulthood. After unsuccessful efforts to have out-of-state relatives adopt the children, DPSS placed C.C. and J.J. with prospective adoptive parents on July 15, 2010. C.C., who by then was two years old, initially had difficulty adjusting to his adoptive family. By October 25, 2010, the date of the selection and implementation hearing, C.C. appeared to be adjusting well and bonding with his prospective adoptive parents.
Father filed his section 388 petition on the day of the selection and implementation hearing. In that petition, father asked the trial court either to place C.C. in father’s custody under a family maintenance plan or reinstate reunification services. Father alleged that his circumstances had changed because he has a stable home and family, he completed a parenting class in June 2009, and he completed a drug treatment program in July 2010. The trial court denied the petition, without conducting a hearing, after finding father had failed to demonstrate the requested change was in the best interests of C.C. The trial court then terminated father’s parental rights to C.C. after making the required findings, and ordered adoption as the permanent plan.
Father appeals from the order terminating his parental rights.
DISCUSSION
Under section 388, a parent may petition the juvenile court to change, modify or set aside a court order if the parent demonstrates by a preponderance of the evidence that (1) new or changed circumstances exist, and (2) the requested relief would be in the best interests of the child. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 316-317 (Stephanie M.); In re Kimberly F. (1997) 56 Cal.App.4th 519, 529 (Kimberly F.).) “The parent seeking modification must ‘make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]’ [Citations.]” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) “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. [Citation.] We review the juvenile court’s summary denial of a section 388 petition for abuse of discretion. [Citation.]” (Ibid.)
Father did not make the necessary showing. “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. [Citation.]” (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) Conclusory allegations do not suffice. (Ibid.) Although father arguably alleged facts showing changed circumstances (he completed a parenting class and drug treatment), he did not allege facts that would demonstrate the requested change was in C.C.’s best interest.
After reunification services have ended, “the parents’ interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point ‘the focus shifts to the needs of the child for permanency and stability’ [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interest of the child. [Citation.] A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interest of the child.” (Stephanie M., supra, 7 Cal.4th at p. 317.)
In arguing that the requested change in this case is in C.C.’s best interest, father focuses on the three factors set out in Kimberly F., supra, 56 Cal.App.4th at pages 530-532. The Kimberly F. court, after rejecting the trial court’s comparison of the biological parent’s household with that of the adoptive parents as the test for determining the child’s best interest, identified three factors, not meant to be exclusive, that trial courts should consider in assessing the issue of the child’s best interest: the seriousness of the problem that led to dependency and the reason the problem had not been resolved by the time of the final review; the strength of the relative bonds between the child to both the child’s parent and the child’s caretakers and the length of time the child has been in the dependency system in relation to the parental bond; and the degree to which the problem that led to the dependency may be easily removed or ameliorated, and the degree to which it actually has been. (Kimberly F., at pp. 530-532.)
Father’s reliance on the Kimberly F. factors is misplaced because those factors conflict with the Supreme Court’s directive in Stephanie M. that stability and continuity are the primary considerations in determining a child’s best interests in the context of placement. (Stephanie M., supra, 7 Cal.4th at p. 317.) Moreover, Kimberly F. also fails to take into account our Supreme Court’s analysis in Stephanie M. of the child’s best interests once reunification efforts have failed.
In denying father a hearing on his petition, the trial court stated, “I just don’t see on that second element that you have even begun to scratch out a prima facie case that now placement with the father or denying closure to this child now, so many months after the child was removed from the father’s care, would be in the best interest of the child.” Father’s petition does not address the best interests of C.C. “At this point in the proceedings, on the eve of the selection and implementation hearing, the children’s interest in stability was the court’s foremost concern, outweighing any interest [father] may have in reunification.” (In re Anthony W., supra, 87 Cal.App.4th at pp. 251-252.) Because father failed to make a prima facie showing that the requested change is in C.C.’s best interest, the trial court did not abuse its discretion by summarily denying father’s section 388 petition. Our conclusion that the trial court did not abuse its discretion by summarily denying father’s section 388 petition also resolves father’s claim that the trial court erroneously terminated his parental rights. Father bases his challenge to the order terminating his parental rights on the assertion that the trial court should have granted him a hearing on the section 388 petition.
DISPOSITION
The order terminating father’s parental rights is affirmed.
We concur: Ramirez P.J., King J.