Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County, No. SJ11211F, Elva Soper, Judge. (Retired Judge of the Los Angeles S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
AARON, J.
Francisco S. appeals a juvenile court order summarily denying his Welfare and Institutions Code section 388 modification petition in which he requested that his minor daughter, Erika S., be placed in his custody. We affirm the order.
All statutory references are to the Welfare and Institutions Code
FACTUAL AND PROCEDURAL BACKGROUND
In April 2006 the San Diego County Health and Human Services Agency (Agency) filed a petition in the juvenile court under section 300, subdivision (b) on behalf of Erika. The petition alleged that Erika was at risk of suffering serious physical harm because her mother, Claudia M., and Claudia's boyfriend, exposed Erika to domestic violence and drugs in the home. The court detained Erika and ordered that she be placed in out of home care.
In the jurisdiction and disposition report, the social worker noted that Francisco was a nonoffending parent in these proceedings, but recommended that he receive parenting services and supervised visits before the court considered placing Erika in his care. Francisco told the social worker that he wanted the court to place Erika in his custody. He had been visiting Erika once or twice a month while she lived with Claudia. Francisco reported having stable employment and denied any history of domestic violence in his past or current relationships.
The parties did not raise Francisco's status as a nonoffending, noncustodial parent as an issue for review. Therefore, we do not address his parental status in this opinion.
During the next six months, the social worker reported that Francisco had not complied with the provisions of his case plan. He did not regularly visit Erika, and when he did, he sometimes ended the visits earlier than scheduled. Francisco told the social worker that he was busy with work, and that he would make more of an effort in the future to visit with Erika. In addition to visitation, Francisco's case plan required that he complete a parenting program. He initially attended several weeks of classes, but dropped out of the program before its completion.
On January 4, 2007, the court held a six-month review hearing. Francisco did not appear at the hearing. At that hearing, the court reviewed the Agency's reports and found that Francisco had made substantive progress with the case plan. The court ordered an additional six months of services. By the time of the 12-month review hearing, however, Francisco had made no effort to initiate contact with the Agency or with Erika. The court terminated reunification services and set a section 366.26 selection and implementation hearing.
In the November 2007 section 366.26 assessment report, the social worker reported that Francisco had not visited Erika for more than 19 months. In a January 2008 addendum report, the social worker acknowledged that Francisco had visited Erika five times since November 2007. During these visits, Francisco played with Erika. After one visit, Erika started to cry. When she was asked what was upsetting her, Erika replied she did not want to see Francisco. Erika had not lived with Francisco for more than four years. The social worker believed that Erika did not have a relationship with Francisco, and noted that when it came time for the two to visit each other, Erika showed signs of anxiety and distress.
Before the section 366.26 hearing, Francisco filed a section 388 petition for modification, seeking to have the court place Erika in his care and custody. Francisco alleged as changed circumstances that he had completed a parenting class, that he regularly visited Erika, and that he had maintained sobriety for 11 years. Francisco asserted that it would be in Erika's best interests to live with and be raised by him, because he is her biological father.
The Agency reported that there did not appear to be a significant parent-child relationship between Francisco and Erika. Francisco visited only one hour a week, and had not requested additional visitation. Between visits, Francisco did not call the social worker or Erika's caregivers to ask about Erika's well-being. The social worker believed that Erika did not look to Francisco for her daily needs, and that she received emotional stability from her caregivers.
The court addressed the section 388 petition in April 2008. After considering Francisco's contentions, the court summarily denied the petition. The court found that the petition did not make a prima facie showing of changed circumstances, and that there was no evidence in the petition showing that it would be in Erika's best interests to be moved from her current placement to placement with Francisco. Francisco timely filed a notice of appeal.
DISCUSSION
The Court Properly Denied a Hearing on Francisco's Section 388 Petition
Francisco contends that the court erred by summarily denying his section 388 petition. He asserts that he made a prima facie showing that circumstances had changed, and that the proposed modification was in Erika's best interests because she would benefit from having contact with her biological father.
A. Section 388 Modification Petition
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: (1) that there is a change of circumstances or new evidence, and (2) that 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." (Id. 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.)
B. Francisco Did Not Show Either Changed Circumstances or That the Proposed Modification Was in Erika's Best Interests
As changed circumstances, Francisco alleged that he had completed a parenting class, that he regularly visited Erika, and that he had maintained sobriety for 11 years. While we acknowledge that Francisco made some efforts to comply with the provisions of his case plan, the petition does not allege that significant changes had taken place that would warrant placing Erika in his care. At best, Francisco's circumstances were arguably "changing." (In re Casey D., supra, 70 Cal.App.4th at p. 47.) Francisco completed a parenting class, but there is little indication that he had the ability to parent Erika. He had not maintained a relationship with her throughout the proceedings. The record shows that Francisco did not make a strong effort to reunite with Erika when he was provided the opportunity to do so. He did not visit or make contact with Erika for a period of approximately 19 months. Once visits resumed, the social worker observed that Erika did not have a relationship with Francisco. Visits took place infrequently and were short in duration. Between visits, Francisco showed little interest in Erika's circumstances. He did not call the social worker or the caregivers to ask how Erika was doing.
Granting a hearing on a petition that alleges changing circumstances would not promote a child's best interests or stability for the child because to do so would mean delaying a permanent plan in order 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.) Any changes in Francisco'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.)
Even if Francisco had shown changed circumstances, he did not show that it would be in Erika's best interests to resume contact with him based on their biological connection. At the time of the hearing on Francisco's modification petition, the focus of the proceedings had shifted from family preservation to providing the minor with a safe, stable, and permanent home. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) The record shows that Francisco rarely visited Erika during extended periods of time and she had not lived with him for more than four years. Before scheduled visits took place, Erika would show signs of distress, and during visits, Erika seemed anxious in Francisco's presence. After one visit, Erika cried and said that she did not want to see Francisco. Erika needed to feel safe at this point in the dependency. Her caregivers remain committed to adopting Erika, and she is doing well in her current placement. Any delay in ensuring Erika's stability after several years as a dependent is not in her best interests.
Because the facts Francisco alleged in his section 388 petition would not have sustained a favorable decision on the modification petition, Francisco was not entitled to an evidentiary hearing. (In re Zachary G., supra, 77 Cal.App.4th at p. 808; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)
DISPOSITION
The order is affirmed.
WE CONCUR:, HUFFMAN, Acting P. J., NARES, J.