Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County No. J515585, Hideo Chino, Juvenile Court Referee.
McDONALD, J.
Julio O. appeals the juvenile court order summarily denying his Welfare and Institutions Code section 388 petition in which he sought custody of his minor son, Nathan T. Julio contends he made a prima facie showing his circumstances had changed and the proposed modification was in Nathan's best interests. We affirm the order.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2004 six-month-old Nathan became a dependent of the juvenile court under section 300, subdivisions (a) and (b) and was removed from parental custody based on findings his mother, Shannon T., had exposed him to domestic violence, was mentally ill and used methamphetamine. Shannon identified Julio as Nathan's biological father. Following paternity testing, the court entered a judgment of paternity in favor of Julio and ordered an evaluation of his home for Nathan's placement.
The domestic violence occurred between Shannon and her husband, Joseph R., who is not Nathan's father.
Julio was on probation for counterfeiting and had a history of domestic violence involving Shannon. When Shannon was pregnant with Nathan, Julio punched her in the face and choked her while she was on the ground. The social worker recommended Julio complete a case plan before Nathan could be placed with him. The court ordered Julio to participate in domestic violence counseling, a parenting program, general counseling and a psychological evaluation.
Julio was parenting his five-year-old son and said he was capable of parenting Nathan. Julio's home was not evaluated for placement of Nathan because he told the social worker he was moving but did not provide her with his new address. Nathan was doing well in the home of his maternal relatives, where he had been placed since his removal from Shannon's custody.
Julio began having weekly supervised visits with Nathan in March 2005. Nathan initially experienced stranger anxiety, but eventually became comfortable in Julio's presence. Between April and August 2005 no visits between Julio and Nathan occurred because Julio was living in a halfway house and his probation officer would not allow him to visit Nathan. Julio's probation officer explained he had Julio live in a halfway house because he did not have a stable residence or a verifiable source of income and Julio did not provide the probation officer with a copy of the court order for visitation.
Julio denied he ever hit Shannon and refused to participate in a domestic violence program. The social worker asked Julio to be fingerprinted so she could obtain records to verify the incidents of domestic violence with Shannon but Julio ignored this request.
At a 12-month review hearing in December 2005 the court found Julio had not made substantive progress with his case plan and terminated his services. At the 18-month review hearing in May 2006 the court placed Nathan with Shannon. A few weeks later, a section 387 petition was filed because Shannon was involved in another incident of domestic violence and Nathan was again placed with his maternal relatives. In July 2006 the court terminated Shannon's services and set a section 366.26 selection and implementation hearing.
In January 2007 Julio filed a section 388 petition for modification, requesting the court place Nathan with him and order family maintenance services, or place Nathan with him and terminate jurisdiction. As changed circumstances, Julio alleged he was participating in domestic violence treatment and parenting classes, attending Narcotics Anonymous (NA) meetings and visiting Nathan twice a week. Julio submitted letters from his treatment providers stating he was an active participant with excellent attendance. Julio further alleged it was in Nathan's best interests to be placed with him because he and Nathan had a parent-child relationship, every child deserved to be raised by his or her own parent, and Julio had a safe and secure home in which Nathan could grow up with his half brother.
According to an addendum report, weekly supervised visits between Julio and Nathan went well. Nathan seemed to enjoy visits with Julio but separated easily from him when visits ended. The social worker believed there was no beneficial parent-child relationship between Julio and Nathan. She noted Julio had not been actively involved in Nathan's life and did not participate in services until the court terminated them at the 12-month hearing.
The court denied the section 388 petition without a hearing, finding Julio did not make a prima facie showing of changed circumstances or that the requested modification was in Nathan's best interests.
DISCUSSION
A
A party may petition the court under section 388 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 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 [petitioner] 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
Julio's petition alleged his circumstances had changed because he was attending domestic violence prevention classes, parenting classes and NA meetings. It also alleged he was regularly visiting Nathan and could provide him with a safe and secure home. According to progress reports from Julio's service providers, Julio was a willing and active participant who was motivated to become an effective parent. Julio's willingness to participate in services was commendable but "was not a compelling consideration at this point in the process." (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348.) Julio did not begin to address issues of domestic violence and parenting until December 2006 when Nathan had been a dependent for more than two years. At the time Julio filed his section 388 petition, he had attended only four sessions of domestic violence counseling and seven of 12 parenting classes, showing at most, "changing" circumstances. (See
In re Carl R. (2005) 128 Cal.App.4th 1051-1072.) A petition that alleges changing circumstances does not promote a child's best interests or stability for the child because it would mean delaying the selection of a permanent home 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 Julio'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.)
C
Even had Julio made a prima facie showing of changed circumstances, his petition did not show that placing Nathan with him was in Nathan's best interests. Julio's allegation that he had a parent-child relationship with Nathan was conclusory. Throughout the dependency proceedings, Julio's contact with Nathan had been inconsistent. Nathan seemed comfortable with Julio during some visits, but was subdued or refused to interact with Julio during other visits, and had no difficulty separating from him when visits ended. Although Julio alleged he could provide Nathan with a stable home and the opportunity to live with his half brother, Nathan had never lived with Julio or met his half brother, and there was no evidence Julio could safely parent Nathan.
Further, the petition's liberally construed allegations did not show Nathan's best interests would be served by being removed from his prospective adoptive home and placed with Julio. Where, as here, " 'custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' " (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) After reunification services are terminated, a parent's " '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 interests of the child.' " (Ibid.) The proper focus of this case was Nathan's need for stability, continuity and permanency, regardless of Julio's interest in reunification. (Id. at pp. 317-318; In re Brittany K. (2005) 127 Cal.App.4th 1497, 1507.) Because the facts alleged in the petition would not have sustained a favorable decision on the section 388 petition, Julio 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.)
DISPOSITION
The order is affirmed.
WE CONCUR: McCONNELL, P. J., NARES, J.