Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County. Ct. No. CK14687, Jan G. Levine, Judge.
Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Tracey F. Dodds, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minors.
DOI TODD, J.
Alberto G. (father) appeals from the juvenile court’s order summarily denying his petition under Welfare and Institutions Code section 388 seeking unmonitored visits with his youngest daughter, A.G. Because father failed to make a prima facie showing of changed circumstances or new evidence, the juvenile court properly denied his petition without a hearing. We affirm.
Unless otherwise noted, all statutory references shall be to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Minor A.G., who is now age 16, and her two older sisters first came to the attention of the Los Angeles County Department of Children and Family Services (the department) in 1994 due to inappropriate discipline by both parents. The girls were declared dependents of the juvenile court and eventually placed with father and the dependency case was dismissed in 1997. In 2000, after sustaining another section 300 petition alleging that the girls’ mother had physically and emotionally abused them, the juvenile court sustained an amended section 387 petition alleging that father had failed to adequately supervise and care for the girls, to ensure their attendance in school and to provide effective treatment of head lice. The girls were placed in foster care, family reunification services were terminated, the department was ordered to provide permanent placement services and father was granted unmonitored visits. There were occasional problems with the visits, including father once leaving the girls alone.
In 2003 father’s visits were changed to monitored after A.G. reported that father had hit her in the stomach and on the hand, hard enough to make her cry. A.G., who was developmentally delayed, later clarified that father hit her on the head, but refused to discuss the matter further. Her sisters believed that she was lying. Father was later allowed unmonitored visits up to eight hours per week.
Father filed his first section 388 petition in March 2004, requesting two overnight visits per month. He attached a declaration stating that he had obtained adequate housing for the overnight visits and that he had completed parenting classes and a domestic violence program. The court set the matter for a hearing in May 2004. On the day of the scheduled hearing, the department submitted a supplemental report stating that the girls’ mother had informed the social worker that she saw father expose himself to the middle daughter by using the bathroom without closing the door, that this daughter told her that father did this all the time, and that the mother was concerned that he might sexually abuse A.G., who had begun puberty and still sat on father’s lap like a baby while being caressed by him. Based on the written submissions, the juvenile court found no change of circumstances and denied father’s petition.
In September 2004, the department reported that A.G. had told her therapist that father had showered with her during an unmonitored visit, which made her angry because she was able to shower alone, and that she saw pornographic magazines in father’s home. A.G.’s foster mother stated that after A.G. reported the shower incident, A.G. became uncomfortable visiting father alone and asked the foster mother to be present during the visits. The report also stated that it had been reported that father often exposed himself and walked around naked or in his underwear in front of the girls, that he never shut the bathroom door and that his brother did the same thing, all of which made the girls uncomfortable. The middle daughter denied any sexual molestation by father, accused A.G. of lying and was upset that she could no longer have unmonitored visits with father. When the social worker called father to request an interview to discuss the sexual molestation allegations, father became upset, called the social worker a “liar,” and requested that the social worker’s supervisor be involved in the interview. Father failed to appear at the scheduled interview and never explained his absence nor requested that the interview be rescheduled. The foster mother also reported that father had a tendency not to appear for the scheduled visits without explanation.
In its March 2005 report, the department reported that A.G. stated that she did not want to be alone with father, and that she did not like being kissed on the mouth by father, sitting on his lap, or being picked up like a little girl with her legs around his waist. Six months later the department reported that father had not visited A.G. in many months and that A.G. was still stating that she did not want to be alone with father. At the October 2005 hearing, father stated that the social worker had unilaterally terminated his visits. The following month the social worker explained in a written report that the girls’ mother was still insisting that father’s visits be monitored based on the prior allegations concerning sexual molestation and that the mother had seen father with pornographic materials in the past two years and that he always had such materials while they were married.
At the November 28, 2005 hearing, father objected to the visits being monitored, stating: “Without proof, without an investigation, without anyone speaking to [A.G.], without [A.G.] being here and present to give testimony that she does say these things, my visits have been restricted for years. And all I ask is that there be a proper investigation, a proper interrogation that [A.G.] says these things they claim she says.” In response, A.G.’s attorney represented that she had privately interviewed A.G. at the prior court hearing and that her instruction from A.G. was to request that visits with father be monitored. The court ordered A.G.’s visits with father to remain monitored.
A year later in November 2006, father wrote to the court complaining that his attorney was not assisting him in defending the sexual molestation allegations or in obtaining increased visitation with A.G. Father was appointed new counsel in December 2006.
In January 2007, the department reported that father had only visited A.G. twice in the prior six months, and that A.G. still stated that she did not want to be alone with father during the visits. At a hearing on January 16, 2007, father’s attorney requested that father be given increased visits with A.G. The court ordered that father’s visits with A.G. be increased to weekly visits of “not less than a couple of hours” and that the visits be monitored.
After a monitor was arranged for the visits, father began having weekly one-hour visits with A.G. in March 2007, but some visits did not occur when father failed to give advance notice that he would attend. A.G. continued to state that she did not want to be alone with father during the visits. At a hearing on July 16, 2007, father’s attorney requested that father’s visits with A.G. be increased to two hours. The court reminded the department of its previous order for two-hour visits and ordered that the visits remain monitored.
On September 14, 2007, father filed a second section 388 petition, seeking modification of the court’s January 16, 2007 order that his visits with A.G. be monitored. As to what had changed since the court’s order, the petition alleged: “The judge’s orders for monitored visits were based on vague and unproven allegations by the social worker. I have never harmed my daughter and I have not behaved inappropriately with her. The social worker has not provided any evidence of misconduct, only vague allegations that I was never given an opportunity to challenge. No reasonable efforts were made to resolve these allegations.” Father sought unmonitored weekend and overnight visits and a report that “explains the social worker’s actions so that I know what exactly she is accusing me of doing so that I can address her concerns.” As to why the requested changes would be better for A.G., the petition stated: “I lost my relationship with my daughter due to the unproven allegations. My daughter’s wish is to spend time with me and she would benefit from her father’s guidance.” On September 21, 2007, the court denied the petition without a hearing by checking the boxes indicating that the facts do not support the requested relief and the request does not state new evidence or a change of circumstances. This appeal followed.
DISCUSSION
I. Section 388.
Section 388, subdivision (a) allows a parent to petition the court for a hearing to change, modify or set aside any previous court order or to terminate jurisdiction “upon grounds of change of circumstance or new evidence.” Under subdivision (c), if it appears that “the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . .” (§ 388, subd. (c).)
A section 388 petition is to be liberally construed in favor of granting a hearing to consider a parent’s request. (Cal. Rules of Court, rule 5.570(a).) The parent 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. [Citation.]” [Citation.]’” (In re Aaron R. (2005) 130 Cal.App.4th 697, 705.) “There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.]” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250; In re Zachary G. (1999) 77 Cal.App.4th 799, 806 [“section 388 contemplates that a petitioner make a prima facie showing of both elements to trigger an evidentiary hearing on the petition”].) If a parent presents any evidence that granting the petition would promote the best interest of the child, the court must order a hearing. (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) But 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 interest of the child, the juvenile court need not order a hearing. (In re Zachary G., supra, at pp. 806–807; Cal. Rules of Court, rule 5.570(d).)
Not just any change of circumstance will entitle a petitioner to a hearing under section 388. Rather, “the change of circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged prior order.” (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485.) To warrant a hearing, “[t]he petition may not be conclusory. ‘[S]pecific allegations describing the evidence constituting the proffered changed circumstances or new evidence’ is required. [Citation.] Successful petitions have included declarations or other attachments which demonstrate the showing the petitioner will make at a hearing of the change in circumstances or new evidence.” (In re Anthony W., supra, 87 Cal.App.4th at p. 250; see also In re Edward H. (1996) 43 Cal.App.4th 584, 593 [“If a petitioner could get by with general, conclusory allegations, there would be no need for an initial determination by the juvenile court about whether an evidentiary hearing was warranted”].)
II. Standard of Review.
We review a juvenile court’s summary denial of a section 388 petition for abuse of discretion. (In re Aaron R., supra, 130 Cal.App.4th at p. 705; In re Anthony W., supra, 87 Cal.App.4th at p. 250.) Under this standard, a reviewing court must uphold the trial court’s decision unless it determines from the record that the decision exceeded the bounds of reason. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) “‘“When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” [Citations.]’” (Ibid.)
III. The Court Did Not Abuse Its Discretion in Denying a Hearing on Father’s Section 388 Petition.
The juvenile court correctly found that father’s petition did not set forth new evidence or a change of circumstances. Although the petition purports to challenge the monitored visitation order made on January 16, 2007, father’s visits with A.G. had been monitored for years before that order, as even father acknowledges on appeal. The record establishes that father’s visits with A.G. were first changed to monitored for a time in 2003 when A.G. reported that father had hit her in the stomach. In May 2004, the social worker reported that A.G.’s mother claimed to have seen father expose himself to the middle daughter by using the bathroom without closing the door and the mother reported that this daughter told her that father did this all the time. Then, in September 2004, the social worker reported that A.G. told her therapist that father had showered with her during an unmonitored visit and that she saw pornographic magazines in father’s home. Following the reported shower incident, both the social worker and A.G.’s attorney represented that A.G. had told them that she did not want to be alone with father during the visits, and the visits were changed to monitored. Each of the social worker’s reports over the next several years reported that A.G. continued to state that she did not want to visit father alone.
Rather than setting forth new facts or a change of circumstance, father’s petition is essentially a complaint that his visits with A.G. have been monitored based on “vague and unproven” allegations that he has never been given an opportunity to challenge. But the record suggests otherwise. As far back as November 2005, father has been denying the allegations to the court and complaining about a lack of investigation. Even before that, the social worker’s September 2004 report states that she arranged an interview with father and, at his request, her supervisor specifically to discuss the sexual molestation allegations, but father never appeared and never requested that the interview be rescheduled. Father’s petition also seeks a report explaining exactly what the social worker is accusing him of doing, but her reports set forth the allegations, which father himself identifies in his brief on appeal. The purpose of a section 388 hearing is not to seek a clarification of the reasons for a court’s order, but rather to modify the terms of an order.
We reject father’s contention that the summary denial of his petition violated his right to due process by denying him the opportunity to present live testimony and cross-examine unidentified witnesses. The cases father relies on, In re Matthew P. (1999) 71 Cal.App.4th 841 and In re Clifton V. (2001) 93 Cal.App.4th 1400, do not assist him because they did not address the prima facie showing required to entitle a petitioner to a full evidentiary hearing. Rather, they addressed due process requirements in the context of the hearing, after the prima facie showing had been made. (In re Matthew P., supra, at pp. 850–851; In re Clifton V., supra, at pp. 1404–1405; see also Cal. Rules of Court, rule 5.570(h) [former rule 1432(f)].) The right to an evidentiary hearing attaches only after a party has made the requisite prima facie showing. (In re Angel B., supra, 97 Cal.App.4th at p. 461.) Because father’s petition was insufficient on its face to satisfy his initial burden of making a prima facie showing, his cited authorities have no bearing on this case.
DISPOSITION
The order summarily denying father’s section 388 petition is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.