Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J213909, Kyle Brodie, Judge.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant N.D.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant B.K.
Ruth E. Stringer, Acting County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
Karen J. Dodd, under appointment by the Court of Appeal, for Minor.
OPINION
HOLLENHORST, J.
Appellants N.D. (mother) and B.K. (father) contend that the juvenile court abused its discretion in summarily denying their Welfare and Institution Code section 388 petitions regarding their son, C.J. (the child). They also argue that having erred in denying their petitions, the court consequently erred in terminating their parental rights. We affirm.
All further statutory references will be to the Welfare and Institutions Code unless otherwise noted.
Counsel for the child filed a brief on August 15, 2008, asking this court to affirm the juvenile court’s orders.
FACTUAL AND PROCEDURAL BACKGROUND
The San Bernardino County Department of Children’s Services (the department) filed a section 300 petition on April 2, 2007, on behalf of the child, who was seven months old at the time. Mother was 17 years old. Mother’s boyfriend, R.G., was listed in the petition as the father. The petition alleged that the child came within section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). Essentially, the petition alleged that on March 29, 2007, the child was left in mother’s care without food, clothing or baby necessities; that mother failed to seek medical treatment for the child, who was suffering from a respiratory illness; and that the child’s residence was condemned as unfit for human occupancy because it had no food, electricity, heat, or running water. The home had cat urine, feces, dirty clothes, trash, old food and mold, and mother allowed the child to crawl around the house. Furthermore, the petition alleged that as of March 29, 2007, the child had not eaten in over 12 hours. Finally, the petition alleged that the father knew or should have known that the residence where the child was staying was unfit for human occupancy and that mother allowed the child to crawl around in it, that the child had not eaten in 12 hours, and that mother was unwilling or unable to feed, house, or clothe the child.
The social worker filed a detention report stating that she visited the child’s home, and it was in “horrible condition.” Aside from having no electricity, running water or heat, the toilets apparently had not been working for months, and they had human feces and urine in them. The child appeared not to have been bathed for weeks, his clothes were dirty, his nails were filthy, and his nose and face were “caked with old nasal drip.”
At the time the case was initiated, it was unclear who the biological father was. Mother hoped her current boyfriend, R.G., was the father but suspected that her old boyfriend, B.K. (father) was. R.G. and father were both 17 years old.
At the detention hearing on April 3, 2007, the court detained the child in foster care and ordered paternity testing. The court also ordered reunification services for mother and both alleged fathers pending the development of a case plan.
Jurisdiction/disposition Report and Hearing
The social worker filed a jurisdiction/disposition report on April 23, 2007, recommending that the court declare the child a dependent of the court, that mother receive reunification services, and that the alleged fathers both continue to receive services until paternity is established. The social worker reported that mother did not have a regular income but relied on her father and R.G.’s relatives to give them money and baby items when needed. Mother was homeless when R.G. and his father “took her in.” Since that time, she had moved back and forth between the home of R.G.’s father and the home of his aunt. She broke up with R.G. a few times and moved in with her mother during those periods. Furthermore, mother grew up residing in multiple residences with a variety of people because of issues with her own parents. Mother dropped out of high school and was attending evening adult school to obtain her GED.
The social worker also reported that father lived with his maternal grandmother and had done so for the past two years. However, his grandmother was going into the hospital due to cancer. Father informed the social worker that he was currently on juvenile probation for a weapon charge.
Overall, the social worker was concerned because mother and the alleged fathers were all minors and were “very young minded.” They all relied on others to meet their needs, and they had all demonstrated they could “hardly care for themselves let alone a small child.”
Amended Petition
The social worker filed an amended section 300 petition on May 4, 2007, alleging that the child came within subdivisions (b) and (g). The petition added an allegation that mother had a history of substance abuse. Another detention hearing was held, and the court continued to detain the child in foster care.
Addendum Report
The social worker filed an addendum report dated June 13, 2007, reporting that R.G. was found not to be the child’s father. The social worker recommended that father (B.K.) be declared a presumed father and receive reunification services. The social worker also reported that mother continually made excuses for not participating in her services and failed to take responsibility. Mother and father had been provided with referrals multiple times but failed to provide any documentation that they had enrolled in a parenting course. In addition, mother failed to provide documentation that she had enrolled in an anger management course.
At a contested jurisdiction/disposition hearing on June 21, 2007, the court declared the child a dependent and continued the matter. On July 6, 2007, the court again declared the child a dependent and maintained him in foster care. It found that R.G. was not a party to the action and not entitled to notice. The court further found father to be the child’s biological father but not presumed father. The court ordered mother and father to participate in reunification services and ordered visitation to be twice per week.
Six-month Status Review Report and Hearing
The social worker filed a status review report and recommended that reunification services be terminated for mother and father and that a section 366.26 hearing be set. The social worker reported that mother told another social worker she used marijuana and drank beer. Father had an extensive drug history and continued to use marijuana. The social worker reported that mother and father had minimally engaged in their case plans. They had both been provided with referrals multiple times yet had failed to provide any documentation that they had completed any services. Mother had also attended a few sessions of individual counseling but was terminated due to “failed appointments.” Mother had attended four sessions of a parenting course, and father had attended one parenting class. Father failed to provide any documentation that he had attended a substance abuse program, and they both had failed to provide documentation that they had enrolled in anger management classes.
The social worker opined that mother and father had shown immaturity in caring for their own lives. Furthermore, they were clearly unaware of developmental milestones for the child or the daily needs of a child. The social worker was further concerned because father continued using drugs and mother stayed in a relationship with a father who had a substance abuse problem.
At a contested six-month review hearing on January 8, 2008, the court terminated reunification services and set a section 366.26 hearing. Mother subsequently filed a “non-issue” writ, which this court dismissed.
Interim Review Report/366.26 Adoption Assessment and Section 366.26 Report and Hearings
The social worker filed an interim review report dated April 7, 2008. She recommended that parental rights be terminated and that adoption be selected as the permanent plan. The child had been placed with his prospective adoptive parents since July 17, 2007, and they had expressed their strong desire and commitment to adopt him. The child’s cousin had also been placed in this home, and the prospective adoptive parents were committed to adopting both boys together.
The social worker reported that visits with mother and father had been sporadic. Although the child recognized both of them as familiar people, the prospective adoptive parents did not feel that the child recognized mother and father as his parents, or even as previous caregivers. In contrast, the social worker stated that the child and the prospective parents had a visibly strong bond. He was happy and very comfortable with them, and he was thriving in their home.
A section 366.26 hearing was held on April 7, 2008. Father contested, and mother joined him. The matter was continued, and mother’s and father’s counsel indicated they would be filing section 388 petitions.
Section 388 Petitions
Father filed a section 388 petition on April 18, 2008, requesting the court to reinstate his reunification services. As to changed circumstances, he stated that he had started classes in anger and stress, and drugs and alcohol, and that he had completed a parenting course. He further alleged that he had started individual counseling. As to why the changes he was requesting would be better for the child, father stated: “Mothe[r] and Father who are teenagers are now starting ‘to get their act together’ and acting in a responsible manner to provide a save [sic] enviorment [sic] for their son.” Father attached a certificate showing that he had successfully completed an eight-week parenting class. He also attached a letter from the Family Service Association showing that he started the Home Again program on January 29, 2008, and identifying the classes and groups he had attended and his dates of attendance. The court summarily denied the request, stating “The request does not show that it will be in the best interest of the child to change the order.”
Mother filed a separate section 388 petition on April 22, 2008, requesting the court to return the child to her custody under a family maintenance plan, or in the alternative, to reinstate her reunification services and grant her liberalized visitation. As to changed circumstances, mother stated that she began the Home Again program on January 29, 2008, and listed the classes she was attending. As to the best interests of the child, mother stated that since the termination of her services, she had made significant progress in her case plan and in addressing the issues which led to the removal of the child. She further stated that she continued to improve her lifestyle, had found a suitable residence, and had maintained regular visitation with the child. Mother concluded she had made “major strides towards creating a loving and risk free home for her child.” She attached a certificate showing she had successfully completed an eight-week parenting class, as well as a copy of the same letter from the Family Services Association that father attached to his petition. The court summarily denied mother’s petition because it did not show that it would be in the child’s best interest to change the order.
At a pretrial settlement conference on April 28, 2008, mother’s counsel stated that at the contested section 366.26 hearing, mother would testify as to the beneficial parental relationship exception to the termination of parental rights. Father’s counsel concurred that father would also argue that exception.
A contested section 366.26 hearing was held on May 6, 2008. Mother and father changed their minds and both declined to testify. Their attorneys objected to the department’s recommendations for the record, with no affirmative evidence. After reviewing the evidence, the court concluded that the beneficial parental relationship exception did not apply, noting that visits had been sporadic, and the child did not recognize mother and father as his parents. The court then terminated parental rights and ordered adoption as the permanent plan.
ANALYSIS
The Court Properly Denied the Section 388 Petitions
Mother and father both contend that the court abused its discretion in denying their section 388 petitions without a hearing. We disagree.
A. Standard of Review
“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. [Citation.] A parent need only make a prima facie showing of these elements to trigger the right to a hearing on a section 388 petition and the petition should be liberally construed in favor of granting a hearing to consider the parent's request. [Citation.]” (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G.).) “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. [Citation.]” (Ibid.) More than general conclusory allegations are required to make this showing, even when the petition is liberally construed. (In re Edward H. (1996) 43 Cal.App.4th 584, 593 (Edward H.).) A hearing is only required to be held “if it appears that the best interests of the child may be promoted by the proposed change of order, which necessarily contemplates that a court need not order a hearing if this element is absent from the showing made by the petition. [Citation.]” (Zachary G., supra, 77 Cal.App.4th at p. 807, fn. omitted.) In other words, “if the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.” (In re Heather P. (1989) 209 Cal.App.3d 886, 891 (Heather P.).)
B. The Court Did Not Abuse Its Discretion
The court here declined to order a hearing on either petition because it concluded there was no evidence that it was in the child’s best interests to return him to mother’s custody or reinstate mother’s or father’s reunification services. We find no abuse of discretion in the court’s rulings. Although there was evidence of changed circumstances in that mother and father had finally begun to participate in individual counseling and other programs, the petitions did not show that it was in the child’s best interests to be removed from the home of his foster parents where he had been developing and thriving. As to best interests of the child, father’s petition merely alleged that he and mother were teenagers who were just “starting to get their act together” and just starting to act responsibly in order to provide a safe environment for their son. Mother’s petition essentially alleged that she had made significant progress in her case plan, had found a suitable residence and had maintained regular visitation, and concluded that she had made “major strides towards creating a loving and risk free home for her child.” These statements are nothing more than general conclusory allegations, which are insufficient to make the prima facie showing. (Edward H., supra, 43 Cal.App.4th at p. 593.) Moreover, at most mother and father showed only that they were making efforts to effect life changes. However, they provided no evidence that it was in the child’s best interests to be deprived of the stability of a permanent home with his foster parents in order to possibly be returned to parents who were young and immature, and had histories of substance abuse, no income, and no parental bond with the child.
Even on appeal, mother and father fail to show it was in the child’s best interests to either return to mother’s custody or reinstate their services. Mother argues only that her petition presented prima facie evidence of changed circumstances, without mention of the best interests of the child. Father admits that he and mother “had issues to work on,” but then blames that on “the fact they were such young parents.” He also admits that the child only “recognized him as a familiar person” and contends that he should have been given the chance to present evidence on the issue of the bond he had with the child to “establish what efforts he was making in maintaining the bond.” In his reply brief, father simply asserts that he “was never really afforded the opportunity to be a parent to [the child],” and that he previously admitted he needed help. He also states that the child should have been “given the opportunity to preserve and strengthen his family ties with his Father . . . .” These arguments do nothing to bolster his petition.
We conclude that the court did not abuse its discretion in denying mother and father a hearing on their respective section 388 petitions. Even if evidence at the hearings supported the facts alleged by their petitions, those facts would not have supported the conclusion that the child’s best interests would be served by the orders requested by mother and father. Furthermore, in making this determination, we accordingly reject mother’s and father’s argument that the court erred in terminating parental rights following the denial of the section 388 hearings.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., MILLER, J.