Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County No. SJ11842A-C, Garry G. Haehnle, Juvenile Court Commissioner.
AARON, J.
Eric J., father of dependent children E.J., A.J. and T.J. (collectively the minors), appeals an order summarily denying his petition for modification under Welfare and Institutions Code section 388. Eric also challenges the court's refusal to hold an evidentiary hearing for a family maintenance review under section 364 regarding the minors' continued placement with their mother, T.J. (the mother). We affirm the orders.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2008, 16-year-old E.J., 13-year-old T.J. and 11-year-old A.J. became dependents of the juvenile court under section 300, subdivisions (b) and (j) based on findings that the mother's live-in boyfriend, Kelvin C., had physically abused T.J. Eric, who lived in Arizona, requested placement of the minors with him as a nonoffending, noncustodial parent. However, by the time of the disposition hearing, Kelvin had moved out of the home and the court was able to safely return the minors to the mother's custody. The court ordered family maintenance services and set a review hearing pursuant to section 364. The mother and Eric appealed, and in an unpublished opinion, this court affirmed the court's jurisdictional findings and dispositional orders. (In re E.J. (Nov. 24, 2008, D052595) [nonpub. opn.].)
In a report prepared for the six-month family maintenance review hearing, the social worker recommended that the juvenile court continue its jurisdiction, that the minors remain with the mother, and that services be continued for six more months. The mother had difficulty disciplining the minors and providing structure for them. She was receiving in-home services and was beginning to take responsibility for the minors' dependencies. T.J. had developmental delays and was in therapy. E.J. was struggling academically and had recently agreed to participate in family counseling. Although there were no longer any protective issues, the mother continued to suffer from depression and required ongoing help with parenting.
Eric expressed an interest in rekindling a relationship with the minors, but he had had little contact with them for the past seven months. The minors did not want to live with Eric, and only A.J. wanted to visit him. The social worker recommended that the minors remain with the mother, but requested discretion to allow visits between the minors and Eric if the minors requested visits in the future.
Eric filed a section 388 petition for modification, seeking to have the juvenile court vacate its order placing the minors with the mother, and to have them placed with him instead. As changed circumstances, Eric alleged that E.J. was not doing well in school, and that Eric had a new home, approved by the Department of Child Welfare Services in Arizona, that could accommodate the minors. Eric alleged that the proposed change was in the minors' best interests because he could ensure E.J.'s academic performance, and he could provide the minors with stable housing, proper guidance and a good role model. Eric later withdrew his section 388 petition, stating that he preferred to raise these issues at a contested family maintenance review hearing.
At the family maintenance review hearing, the parties discussed the proper vehicle by which Eric could request that the minors be placed with him. The court noted that because the minors were currently placed with the mother, Eric would have to request a change in placement in a section 388 modification petition. Eric conceded he had the burden of proof on this issue, and the parties agreed that the court could base its ruling on the modification petition that Eric has previously filed and withdrawn.
The court summarily denied Eric's modification petition, finding Eric had not made a prima facie showing as to changed circumstances or that the proposed change would be in the minors' best interests. The court further found that Eric's request that the minors be placed with him rather than with the mother was not a proper subject for the family maintenance review hearing, and thus, there was no need to hold a contested hearing under section 364. The court continued the minors' placement with the mother, continued services for the mother, and set another family maintenance review in six months.
DISCUSSION
I
Eric contends that the court erred by summarily denying his section 388 modification petition. He asserts that he made a prima facie showing sufficient to trigger the right to a full hearing on his petition.
A
Under section 388, a party may petition the court 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 B.D. (2008) 159 Cal.App.4th 1218, 1228.) 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. [Citation.]" (In re Marilyn H., supra, 5 Cal.4th at p. 310.) If the petition presents any evidence that a hearing would promote the child's best interests, the court will order the hearing. (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. [Citation.]" (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
B
Here, the petition alleged that Eric's circumstances had changed because he now had an approved home for the minors, and that it would be in the minors' best interests to live with him in a safe and stable environment where he could provide them with proper parenting and guidance. Although Eric made a prima facie showing of changed circumstances by alleging that he had a new home that could accommodate the minors, he did not make a prima facie showing that placing the minors with him would promote the minors' best interests. The minors, who were 17, 14 and 12 years old at the time of the hearing, were no longer at risk of harm in the mother's care, their basic needs were being met, and the court determined their emotional well-being required that they remain with the mother with ongoing services. The minors were comfortable living with the mother, and did not want to move to Arizona to live with Eric. The court could properly consider the minors' placement preferences, as well as their need for stability and continuity.
Liberally construing the allegations in Eric's petition, we conclude that the petition did not show that the minors' best interests would be served by removing them from their mother's care and requiring them to live with Eric, against their wishes. (See In re Jacob P. (2007) 157 Cal.App.4th 819, 831 [when making custody determination, juvenile court's focus and primary consideration must always be best interests of child].) As the juvenile court noted, Eric could renew his request for custody of the minors once he established a relationship with them. Because the facts alleged would not have sustained a favorable decision on the section 388 petition, Eric 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.)
II
Eric contends that the juvenile court erred by refusing his request for a trial at which Eric could contest Agency's recommendation for the minors' continued placement with the mother. He asserts that he had a right to fully participate in the proceedings and to present evidence at the family maintenance review hearing under section 364.
A
The juvenile court must hold review hearings for dependent children at least once every six months. (In re N.S. (2002) 97 Cal.App.4th 167, 171.) If a dependent child has not been removed from parental custody, review hearings are conducted pursuant to section 364. At a hearing under section 364, the court considers evidence presented by any party regarding the necessity of continued juvenile court supervision. (§ 364, subd. (c).) The court must terminate jurisdiction unless the Agency establishes "that the conditions still exist which would justify initial assumption of jurisdiction under [s]ection 300, or that those conditions are likely to exist if supervision is withdrawn." (§ 364, subd. (c).) Because the child is placed with a parent, "the court is not concerned with reunification, but with determining whether continued supervision is necessary in the family home. (§ 364, subd. (c).)" (In re Gabriel L. (2009) 172 Cal.App.4th 644, 650.) Thus, whether a minor's placement should be changed is not a proper inquiry at a hearing held pursuant to section 364.
B
The court correctly found that the issue of the minors' continued placement with the mother could not be litigated at a section 364 family maintenance review hearing. That hearing was limited to determining whether continued juvenile court supervision was necessary—an issue that Eric did not contest. Eric previously challenged the minors' continued placement with the mother by filing a section 388 petition, which was unsuccessful. He was not entitled to relitigate that issue. The court properly denied Eric's request to present evidence at the section 364 family maintenance review hearing on the issue of the minors' placement.
Eric claims that he should not have been restricted to challenging the minors' placement by filing a section 388 petition. He asserts that pursuant to section 388, he focused on the appropriateness of his home and the minors' best interests, whereas at a review hearing under section 364, he would have focused on the conditions in the mother's home and her inability to provide adequate care for the minors. However, the proper focus of the section 364 hearing was whether the court should continue its supervision in the family home, not whether the mother was properly parenting the minors. (See § 361.2, subd. (b).)
DISPOSITION
The orders are affirmed.
WE CONCUR: McCONNELL, P. J., McDONALD, J.