Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Kern County Nos. JD115672, JD115673. Peter A. Warmerdam, Referee.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.
Theresa A. Goldner, County Counsel, and Jennifer L. Thurston, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Vartabedian, A.P.J., Levy, J., and Hill, J.
P.M. (father) appeals from orders terminating his parental rights (Welf. & Inst. Code, § 366.26) to his two- and three-year old sons. Father contends the court erred by summarily denying a modification request (§ 388) he made to regain custody of the children. He also joins in an argument made by the children’s mother, in her pending appeal from the termination order, In re P.G., et al., F056984, that the children were not likely to be adopted. On review, we affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In November 2007, the Kern County Superior Court adjudged father’s four children, including his two sons who are the subjects of this appeal, juvenile dependents and removed them from parental custody. The court previously found the children came within its jurisdiction under section 300, subdivision (b), due to parental neglect. Having removed the children from parental custody, the court ordered reunification services for both parents. Father’s services included child neglect, parenting, and family counseling as well as supervised visitation.
During the first six months of services, father did not enroll in family counseling but otherwise met the objectives of his case plan. In the meantime however, respondent Kern County Department of Human Services (department) discovered that prior to the children’s dependency, father had engaged in sexual intercourse with one of his children’s half siblings. He also hit his sons and several of their half siblings with a fist, wire, cable, and belt. This new information led the department to allege and the court to find, pursuant to section 342, additional grounds for dependency jurisdiction, namely that the children suffered or were at substantial risk of suffering serious physical harm inflicted nonaccidentally by father (§ 300, subd. (a)) and that there was a substantial risk of sexual abuse by father (§ 300, subd. (d)). The department also petitioned the court to modify its reunification services order for father and deny him services based on his severe sexual abuse of the children’s half sibling (§ 361.5, subd. (b)(6)).
In June 2008, the court conducted a dispositional hearing on these additional jurisdictional grounds, a hearing on the department’s modification petition, and a status review of the children’s dependency. At the combined hearing, the court both granted the modification petition terminating father’s services and denied him further services, pursuant to section 361.5, subdivision (b)(6), as well as terminated the mother’s reunification services due to her minimal progress and the substantial risk of detriment to the boys’ well being. The court in turn set a hearing, pursuant to section 366.26 to select and implement permanent plans for appellant’s sons.
Although father filed a notice of intent in anticipation of challenging the trial court’s decision, he did not file any petition for extraordinary writ. (P[.]M. v. Superior Court, F055552 (dismissal order).)
In October 2008, the court held the first of two section 366.26 hearings for father’s sons. At the October hearing, the court found termination would not be detrimental to the children and identified adoption as the permanent plan goal for them. The court also found the children had a probability for adoption but were difficult to place for adoption. The court consequently ordered the department to make reasonable efforts to locate an adoptive home for the children within the next 90 days and calendared a further section 366.26 hearing for early 2009. The children were placed together in early December 2008 with foster parents committed to adopting them.
Father did not appeal this decision by trial court.
In January 2009, father’s trial attorney filed a request, pursuant to section 388, to vacate the court’s June 2008 decision denying father reunification services and instead order family maintenance services. Father recently completed two 26-week counseling programs for “Sexual Abuse Awareness as the Perpetrator” and “Physical Abuse as the Perpetrator.” Attached to the request was a letter from father’s counselor. The counselor observed father “demonstrate[d] an understanding of the dynamics of sexual abuse and the long-term traumatic effects this causes for the abused individuals and family” and “developed a better understanding of his own role within his family and has learned new techniques to work effectively to create a positive environment for all family members.” Father’s attorney alleged the children would have the benefits of growing up with siblings and a parent if the court modified its earlier order denying father services.
The court summarily denied the section 388 request the following day. It did so specifically because the facts did not support the request and the request did not show it would be in the children’s best interest to change the order.
The court held its further section 366.26 hearing on February 2, 2009. Father’s counsel asked the court to reconsider its summary denial of the section 388 request. The attorney did not claim he had any additional information which would warrant a hearing. The court reiterated its previous findings that the alleged facts did not support the request and there was no showing that it would be in the children’s best interests to change the prior order denying father services. Having found by clear and convincing evidence that the children were likely to be adopted, the court terminated parental rights to the children.
DISCUSSION
I.
Father contends the court abused its discretion and violated his due process rights by denying him an evidentiary hearing on his modification request. According to father, his counselor’s letter established a prima facie showing of changed circumstances sufficient to support a favorable decision. We disagree as explained below.
First, father’s appellate briefing mischaracterizes his modification request as one for reunification services. When a court orders reunification services for a parent, the children are out of that parent’s custody. (§§ 361.5, subd. (a) & 16507.) However, father’s attorney did not request reunification services. Instead, he expressly sought family maintenance services. Family maintenance services are services provided to maintain a child in his or her home, i.e. with the parent. (§§ 362 & 16506.) In other words, the relief father sought was an order returning custody of the children to father subject to family maintenance services. For changed circumstances to warrant family maintenance services and therefore a return of custody, father had to show that placement in his care no longer posed a substantial danger to the children’s safety, protection, or physical or emotional well-being as the court had previously found. (See §§ 361, subd. (c) & 366.21, subd. (e).) The counselor’s letter did not address this important issue. Thus, it comes as no surprise that the court specifically found the alleged facts did not support the relief father requested.
In any event, father erroneously argues he only had to make a prima facie showing of changed circumstances to warrant a hearing on the merits of his request. To be entitled to a full hearing on a section 388 request, the petitioner must make a prima facie showing that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) There must be some evidence that a hearing would promote the best interests of the child before the court will order a hearing. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) Here, there was no such evidence contained in the section 388 request.
In addition, father’s conclusory allegation -- that the children would have the benefits of growing up with siblings and a parent -- was insufficient. Although a petitioning party need only make a prima facie showing to trigger the right to proceed by way of a full hearing (In re Marilyn H. (1993) 5 Cal.4th 295, 310), a ‘prima facie’ showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 719, fn. 6.) General, conclusory allegations do not suffice. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.)
Father also fails to acknowledge that the court previously found in October 2008 that termination would not be detrimental to the children and that determination was final when the court considered his section 388 request. Consequently, father could no longer claim, as of his section 388 request, detriment either on a theory that the children would benefit from a continuing relationship with him or that termination would substantially interfere with an existing sibling relationship absent some new evidence. (In re A.G. (2008) 161 Cal.App.4th 664, 670-671.) His section 388 request did not make any such showing.
Last, father’s section 388 request also failed to address how services, be they family reunification or maintenance services, would promote the children’s interests in permanency and stability at this stage of the proceedings. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
Under these circumstances, we conclude the trial court’s summary denial of father’s section 388 request neither violated his due process rights nor was an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-318.)
II.
As previously mentioned, father also joins in the mother’s claim in her appeal (In re P.G., et al., F056984) that the children were not likely to be adopted. Mother relies on the following statement made by county counsel at the February 2009 hearing:
“I received a call from the social worker, and it is my understanding that the children are being moved today, along with two siblings.... [T]hey are all going to be moved into a home together, but these children are generally adoptable.”
Mother speculates the family with whom the children were placed in December were no longer willing to adopt them so as to establish the children were not likely to be adopted after all. Assuming for the sake of argument that the adoptability issue is preserved for review in this appeal, mother’s contention nevertheless fails because an attorney’s remark is not evidence (In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 11) and her interpretation of it is speculative. This court frankly does not know what to make of the attorney’s remark. However, we do note that it also could be interpreted to mean: the children and their two siblings were being placed in a home where the adults were interested in adopting all four of them; or the children nonetheless were generally adoptable. In any event, the statement does not detract from the evidence that the children were likely to be adopted.
DISPOSITION
The orders terminating parental rights are affirmed.