Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. J517375, Martin W. Staven, Judge. (Retired Judge of the Tulare Sup. Ct., assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.)
O'ROURKE, J.
L.C., Sr., (L.C.) appeals following the summary denial of his second modification petition (Welf. & Inst. Code, § 388) in the juvenile dependency case of his son, L.C., Jr. L.C. contends the court abused its discretion by denying the section 388 petition, which sought L.C., Jr.'s, return to L.C. 's custody with family maintenance services or, alternatively, reinstatement of reunification services. We affirm.
All further statutory references are to the Welfare and Institutions Code.
L.C., Jr.'s, appellate counsel believes the order summarily denying the section 388 petition should be reversed.
BACKGROUND
L.C. has a long criminal history that began in 1983 when he was 17 years old. Several of his convictions were for drug offenses, including possessing cocaine base for sale. His most recent conviction was in 2008, for driving under the influence of alcohol or drugs (DUI), and resulted in the revocation of his driver's license. L.C. had another DUI conviction but the record does not disclose when that occurred.
In January 2009 the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition for newborn L.C., Jr., because he and his mother, Sylvia J., tested positive for cocaine and marijuana. L.C., Jr., was detained in the hospital, then in a foster home. L.C. was allowed supervised visitation. In March L.C., Jr., was placed with L.C. L.C.'s case plan included abstention from drugs and alcohol and he was required to provide proof of a valid driver's license to transport L.C., Jr.
In April 2009 L.C. tested positive for PCP and in May he submitted a diluted sample for testing. Nevertheless, he denied using drugs. The social worker offered L.C. in-home support services; L.C. refused. L.C. moved into a new home with L.C., Jr., in May but did not inform the social worker of the move until June.
In June 2009 the Agency filed a section 387 supplemental petition based on L.C.'s April and May drug tests. The court ordered L.C., Jr., detained with a paternal aunt (Aunt), allowed L.C. supervised visits and ordered him to participate in the Substance Abuse Recovery Management System (SARMS) program. L.C. began participating in SARMS and had another dilute test in June. He reluctantly decided to accept in-home support services. In July he completed a parenting class. That month the court made a true finding on the supplemental petition and ordered L.C., Jr., placed with Aunt. In October L.C. began unsupervised visitation. In December he tested positive for cocaine after taking his sister's prescription muscle relaxant to treat his back pain.
In January 2010 Sylvia reported that L.C. had grabbed her hair and dragged her down the stairs in her home. L.C. admitted grabbing Sylvia's hair but denied pulling it. He claimed he was trying to stop a fight between Sylvia and her cousin. L.C. admitted drinking before the confrontation but later denied drinking. He was arrested but not charged with a crime.
According to the police report, Sylvia "sustained a visible swollen and bleeding scratch to her left wrist" and complained of pain at the top of her head. She declined medical treatment.
At the March 2010 six-month review hearing, the court terminated reunification services and set a section 366.26 hearing for June 28. In June, after a period of supervised visitation, L.C. was again allowed unsupervised visits. L.C., Jr.'s, asthma was exacerbated when he had contact with L.C. after L.C. had been smoking. The social worker had to explain to L.C. that L.C., Jr., had a serious medical condition and he should not smoke before seeing L.C., Jr. On June 28 L.C. filed his first section 388 petition.
On June 21, 2010, this court denied L.C.'s writ petition challenging the termination of services.
The first section 388 petition asked the court to vacate the order setting the section 366.26 hearing and order more reunification services. As changed circumstances, the petition cited L.C.'s continued participation in services. The petition alleged the proposed change would be in L.C., Jr.'s, best interests because he was young and would benefit from being raised by L.C.
In August 2010 the Agency learned that L.C., Jr., had suffered an accidental burn while in Aunt's care. Because Aunt did not report the matter to the Agency or cooperate with its investigation, the Agency filed a second supplemental petition. L.C., Jr., was detained in a foster home.
On August 9, 2010, the court summarily denied L.C.'s first section 388 petition. On August 30 L.C. filed his second section 388 petition. That petition asked the court to vacate the order setting the section 366.26 hearing and order more reunification services for L.C. or return L.C., Jr., to L.C.'s custody with family maintenance services. On September 1 the court denied the second section 388 petition, set a jurisdictional and dispositional hearing on the second supplemental petition and vacated the section 366.26 hearing.
DISCUSSION
Section 388 allows the juvenile court to modify an order if a party establishes, by a preponderance of the evidence, that changed circumstances or new evidence exist and the proposed change would promote the child's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G.) To obtain a hearing on a section 388 petition, the parent must make a prima facie showing as to both of these elements. (Ibid.; In re Justice P. (2004) 123 Cal.App.4th 181, 188.) The section 388 petition should be liberally construed in favor of granting a hearing, but "[t]he 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." (Zachary G., supra, at p. 806.) "In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case." (In re Justice P., supra, at p. 189.) We review the summary denial of a section 388 petition for an abuse of discretion. (Zachary G., supra, at p. 808; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413; In re Aljamie D. (2000) 84 Cal.App.4th 424, 431, 433.)
As circumstances that had changed since the March 2010 setting order, L.C.'s second section 388 petition alleged that in May he completed a substance abuse program and began a DUI program; in August he satisfied the conditions for the return of his driver's license; he had stable and appropriate housing, employment and daycare arrangements; and L.C., Jr., was no longer in Aunt's stable prospective adoptive home. L.C. asserted his requested modification was in L.C., Jr.'s, best interests because they were closely attached; L.C., Jr., would benefit by being raised by L.C. and was previously placed with him; L.C. had visited daily since L.C., Jr.'s, removal; L.C. had participated in L.C., Jr.'s, daily care until L.C., Jr.'s, removal from Aunt; and L.C., Jr., was no longer in a stable placement and needed a permanent home.
The Agency's section 366.26 report, filed in June 2010, identified Aunt as a prospective adoptive parent. After L.C., Jr.'s, removal from Aunt's care, the Agency continued to recommend a permanent plan of adoption.
In summarily denying the second section 388 petition, the court found L.C. had not made a prima facie showing of changed circumstances and the reinstatement of his driver's license was of "no significance." The court concluded it would not be in L.C., Jr.'s, best interests to grant a hearing, citing the alcohol in L.C.'s home. The court did not abuse its discretion.
While the reinstatement of L.C.'s driver's license, the day care arrangements and L.C., Jr.'s, removal from Aunt's home could be characterized as changed circumstances, L.C. failed to make a prima facie showing in other important areas. Although L.C. completed a substance abuse program in May 2010, he had a dirty test as recently as December 2009, consumed alcohol and engaged in domestic violence in January 2010, and began an 18-month DUI program only three months before the September 2010 hearing. L.C.'s substance abuse, which led to L.C., Jr.'s, removal from L.C.'s home after a placement lasting only three months, was perhaps changing; it was not changed.
L.C. did not make a prima facie showing that he had an appropriate home. In his house, bottles of alcohol and glasses were stored within L.C., Jr.'s, reach. Two weeks before the September 2010 hearing, the social worker observed L.C., Jr., grab a bottle of wine when L.C. was not watching. L.C. complained that Aunt "wouldn't give [him] any" toys. Because there were no toys in L.C.'s home, L.C., Jr., played with a trash can lid. L.C. did not have a crib or toddler's bed for L.C., Jr., and planned to have him sleep in a queen-sized bed.
Nor did L.C. make a prima facie showing that his residence was stable. It is unclear how long he had lived in his current house. In August 2009 he listed the address of the house on a change of address form. In July 2010 the homeowner said L.C. had rented a room in the house since April. In August L.C. told the social worker he had lived in the house for "years" although his newly acquired driver's license showed a different address. L.C. said the address on his license was his mother's address.
L.C. also failed to make a prima facie showing of stable employment. He worked in a hauling business that he had started before the March 2010 setting hearing. Business was slow and L.C. did not work many hours each week.
Additionally, L.C. failed to make a prima facie showing that his proposed modifications were in L.C., Jr.'s, best interests. L.C., Jr., was closely attached to L.C. and L.C. clearly loved him. For the most part, L.C. visited L.C., Jr., often and saw to his needs during visits. There were times, however, when L.C. was an inattentive parent. He caused L.C., Jr.'s, asthma to flare up by smoking before a visit. He left bottles of alcohol and glasses within L.C., Jr.'s, reach. He failed to intervene when L.C., Jr., hit him and L.C., Jr., attempted to hit the social worker. Taken as a whole, the facts summarized above show that it would not be in L.C., Jr.'s, best interests to live with L.C. or to have his permanency delayed by reinstatement of reunification services. "A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent... might be able to reunify at some future point, does not promote stability for the child or the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) By the time the court denied L.C.'s second section 388 petition, the 18-month date had passed (§§ 361.5, subd. (a)(3), 366.21, subd. (g)(1)), the reunification phase had concluded and the focus was on L.C., Jr.'s, need for permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) There was a rebuttable presumption that continued foster care was in L.C., Jr.'s, best interests. (Ibid.) The court did not abuse its discretion by summarily denying the second section 388 petition.
DISPOSITION
The order is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., NARES, J.