Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. J217010 & J217011 Stephanie Thornton-Harris, Judge.
Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
Sharon S. Rollo, under appointment by the Court of Appeal, for Minors.
OPINION
HOLLENHORST, J.
Appellant R.S. (father) contends that the juvenile court abused its discretion in summarily denying his Welfare and Institution Code section 388 petition regarding his children, R.S. and L.S. (the children). We affirm.
The record also refers to father as B.S.
All further statutory references will be to the Welfare and Institutions Code unless otherwise noted.
Counsel for the children filed a brief on April 3, 2009, asking this court to affirm the juvenile court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
San Bernardino County Children and Family Services (CFS) filed section 300 petitions on September 11, 2007, on behalf of the children. R.S. was seven months old at the time, and L.S. was two years old. (The children apparently had two half siblings who lived with them, but the half siblings are not subjects of this appeal.) The petitions alleged that the children came within section 300, subdivisions (b) (failure to protect), (g) (no provision for support), and (j) (abuse of sibling). The petitions contained specific allegations concerning father and the children’s mother (mother), who is not a party to this appeal. As to father, the petitions alleged that he had a substance abuse problem, he had physically abused the children’s sibling, and he was incarcerated and could not provide care. CFS later amended the petitions to add the allegation that father had an extensive criminal history, as well as a history of domestic violence.
The detention report stated that on September 5, 2007, mother told all four children she was going to the store and would return soon. She never returned. Soon thereafter, father, who was a heavy methamphetamine user and alcohol drinker, came home intoxicated. He was upset that mother was not home. He took his children to the store two different times to purchase beer. Upon arriving home from the second trip to the store, father became enraged and physically violent because of mother’s absence. He punched holes in the walls and threw furniture. He also broke windows, resulting in his cutting himself and bleeding on the sidewalk and patio area. He physically abused the children’s half sister. Father then set fire to mother’s clothing inside the house. All of these actions took place in the presence of the children. The police arrived and arrested father.
At the detention hearing on September 12, 2007, the court detained the children in foster care. The children were subsequently moved to their maternal great-grandmother’s home.
Jurisdiction/disposition Report and Hearing
The social worker filed a jurisdiction/disposition report on September 27, 2007, recommending that the court declare the children to be dependents of the court. The social worker further recommended that reunification services not be offered to father due to his incarceration period exceeding statutory time limits.
The jurisdiction/disposition hearing was held on December 3, 2007. The court found that the children came within section 300, subdivisions (b) and (g), and declared them dependents of the court. Father was declared the presumed father of the children. The court adopted the social worker’s findings that the court order reunification services for mother but not provide services to father because he was scheduled to be incarcerated beyond the statutory time limits. The court added the finding that reunification with father would be detrimental to the children. The court ordered that father would receive visitation with the children upon his release from custody in November 2008.
Six-month Status Review
A six-month review hearing was held on April 29, 2008. Father was in custody and not present at the hearing, but was represented by counsel. The court continued reunification services for mother. It set a 12-month status review hearing for October 29, 2008.
12-month Review and Section 388 Petition
On October 29, 2008, the court held the 12-month review hearing. Father’s counsel represented him and informed the court that father was in custody but would be released “in a few days.” The matter was set contested by other parties (the fathers of the other siblings), and the hearing was continued to November 21, 2008.
On November 19, 2008, father filed a section 388 petition to request reunification services. As for changed circumstances, he alleged that he had been released from prison, had been visiting the children, was in contact with CFS, and that services were continuing for mother. He further alleged the “[c]hildren could benefit by having a relationship with [him].” (Capitalization omitted.) The court summarily denied the request, finding that the facts did not support what was requested, the request did not state new evidence or a change of circumstances, and the request did not show that it would be in the children’s best interests to offer reunification services.
The 12-month review hearing was held on November 21, 2008. Father was not present but was represented by counsel. Father’s counsel requested that father be granted reunification services, noting that father had been visiting the children and that mother’s services were continued. The court reminded counsel that the section 388 petition was denied. The court found there was a substantial probability the children would be returned to mother’s physical custody within 18 months of the initial removal and ordered her services to continue. The court ordered visitation with father to be supervised and ordered him not to be under the influence of alcohol or controlled substances.
Father filed a timely notice of appeal from the denial of his section 388 petition.
ANALYSIS
The Court Properly Denied the Section 388 Petition
Father contends the court abused its discretion in denying his section 388 petition without a hearing. He claims the court initially denied him reunification services based solely on the length of his prison sentence. He reasons that since he was released from prison “while the case was still in the reunification services phase,” and since he was entitled to services as a presumed father, the court should have granted him a hearing. We disagree.
A. Standard of Review
“A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. [Citation.] A parent need only make a prima facie showing of these elements to trigger the right to a hearing on a section 388 petition and the petition should be liberally construed in favor of granting a hearing to consider the parent’s request. [Citation.]” (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G.).) “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.]” (Ibid.) More than general conclusory allegations are required to make this showing, even when the petition is liberally construed. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) A hearing is only required to be held “if it appears that the best interests of the child may be promoted by the proposed change of order, which necessarily contemplates that a court need not order a hearing if this element is absent from the showing made by the petition. [Citation.]” (Zachary G., supra, at p. 807, fn. omitted.) In other words, “if the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.” (In re Heather P. (1989) 209 Cal.App.3d 886, 891.)
B. The Court Did Not Abuse Its Discretion
The court here declined to order a hearing on the petition because it concluded the facts did not support what was requested, the request did not state new evidence or a change of circumstances, and the request did not show it would be in the children’s best interests to offer father reunification services. We find no abuse of discretion in the court’s ruling. Although there was evidence of a changed circumstance in that father had been released from prison, the petition did not show it was in the children’s best interests to offer him services. As to best interests, father’s petition merely alleged that the “children could benefit by having a relationship with [him].” This statement is nothing more than a general conclusory allegation, which is insufficient to make the prima facie showing. (In re Edward H., supra, 43 Cal.App.4th at p. 593.) Moreover, contrary to father’s claim, the court did not initially deny him services only because he was scheduled to be incarcerated beyond the statutory time limits. The court specifically stated it was also denying services because reunification would be detrimental to the children. Father has not made any showing that the best interests of the children could be promoted by reunifying with him. Thus, a hearing was not required. (Zachary G., supra, 77 Cal.App.4th at p. 807.)
We conclude that the court did not abuse its discretion in denying father a hearing on his section 388 petition.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P.J. MILLER J.