Opinion
B295758
07-07-2020
In re J.C., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.C., Defendant and Appellant.
Caitlin Christian, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. Nos.DK07554, DK07554B) APPEAL from orders of the Superior Court of Los Angeles County, Natalie P. Stone, Judge. Affirmed. Caitlin Christian, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
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Father J.C. appeals from the juvenile court orders denying his Welfare and Institutions Code section 388 petition to reinstate family reunification services with his son, J., and terminating his parental rights. Father contends that the juvenile court abused its discretion by summarily denying his section 388 petition without a hearing. We affirm the orders.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
BACKGROUND
Prior Dependency Proceedings
Mother F.P. and father have two children, J. (born in 2016), and a daughter, J.P. (born in 2014). Mother and father began dating in approximately 2012.
Mother and J.P. are not parties to this appeal. We therefore provide only limited background regarding mother.
In January 2015, the juvenile court sustained a petition under section 300, subdivisions (a) and (b) regarding J.P. The court found that mother used illicit drugs during her pregnancy and she and J.P. tested positive for methamphetamine at J.P.'s birth. The court further found that father knew of mother's drug use, used drugs himself, and failed to protect J.P. In addition, both mother and father had a history of mental and emotional problems and failed to take prescribed psychotropic medication. The court terminated family reunification services as to J.P. in August 2015. J.P. was placed with father's aunt, V.N. In November 2016, the court terminated mother's and father's parental rights. V.N. ultimately adopted J.P.
Initiation of Dependency Proceedings and Petition
Mother gave birth to J. in January 2016. On the day of the birth, the Los Angeles County Department of Children and Family Services (DCFS) received a referral alleging that J. was at risk of harm because of neglect by mother. Mother's toxicology screen was negative, but she had a history of using methamphetamines. J. was born prematurely at 28 weeks; his toxicology screen at birth was negative.
DCFS filed a detention report, detailing J.'s birth and interviews with mother and father. After mother was discharged from the hospital, she and father visited J. in the neonatal intensive care unit regularly. On January 27, 2016, a DCFS children's social worker (CSW) met with mother. Mother reported a history of methamphetamine use, but stated that she had been clean since she went to jail for six months in late 2014. She denied current domestic violence.
The CSW interviewed father on February 2, 2016. Father stated he was currently homeless and was attempting to locate a sober living program. He reported that he had been diagnosed with depression and prescribed medication, but that due to his unstable housing situation he was not currently participating in mental health services. He admitted past drug use but stated he was currently clean. He agreed to drug test and participate in services. Father was drug tested on February 3, 2016; the result was negative. On February 16, 2016, the hospital social worker reported that father had "made a scene" at the hospital. She stated that father was very paranoid and had not been taking his medication. A few days later, father was hospitalized under a 5150 psychiatric hold. He also tested positive for methamphetamines.
The CSW again interviewed father on February 23. Father reported that he had been released from the hospital the day before, after a five-day stay. He was diagnosed with depression and prescribed medication. He admitted using methamphetamine the day he was admitted to the hospital.
On February 29, the hospital social worker reported a second incident in which father was yelling and screaming at mother in the hospital, as well as yelling and cursing at staff, until security asked him to leave. The CSW met with father the same day. Father, who was "visibly upset," stated he believed mother was hiding something from him. He agreed to allow DCFS to remove J. from his care, explaining that "I can't take care of a baby[;] I need help taking care of myself." J. was released to mother's care that day.
DCFS filed a section 300 petition on March 4, 2016. The petition alleged that father's drug abuse and mental and emotional problems placed J. at risk of harm within the meaning of section 300, subdivision (b)(1). Specifically, paragraph b-1 alleged that father had a history of illicit drug abuse and was a recent user of methamphetamine, which rendered him incapable of caring for J. and endangered the child's physical health and safety. Paragraph b-2 alleged that father had mental and emotional problems, including depression, which rendered him incapable of caring for J. The petition further alleged that father was involuntarily hospitalized for his psychiatric condition on February 22, 2016. In addition, the petition alleged that J.'s sibling, J.P., was receiving permanent placement services through DCFS due to father's drug use and his mental and emotional problems. The petition included similar allegations regarding drug abuse and mental and emotional problems by mother, but those were later dismissed. Based on his history with J.P., DCFS recommended no reunification services for father pursuant to section 361.5.
At the March 4, 2016 detention hearing, the court found there was a prima facie case for detaining J. The court ordered monitored visitation for father for a minimum of six hours per week, to begin once father left his residential treatment facility. The court ordered J. to remain released to mother, with family reunification services for father.
Jurisdiction and Disposition
DCFS filed its jurisdiction/disposition report on April 12, 2016. Mother interviewed with DCFS on March 10, 2016, and reported that she was not living with father, but she thought he was still using drugs. She stated that during their relationship, she and father lived together in hotels because they were homeless.
On the same day, father told DCFS that he was currently at a residential drug facility and was not using drugs. He explained that he did not want to lose custody of J. as he did with J.P.
In a last-minute information for the court, DCFS reported that father "has been enrolled in several residential drug programs but he has shown a pattern of not remaining in any program to completion," and listed four different programs father failed to complete between February and May 2016.
At the adjudication and disposition hearing on May 18, 2016, the court sustained two counts alleging father's substance abuse and mental and emotional problems (counts b-1 and b-2). It declared J. a dependent of the court and ordered him to remain placed with mother under DCFS supervision. The court ordered monitored visitation for father for six hours per week, with DCFS discretion to liberalize. The court also ordered father to participate in individual counseling, alcohol and drug counseling, random alcohol and drug testing, and psychological counseling.
Review Report and Section 342 Petition
In a status review report in November 2016, DCFS reported that it was investigating a new referral received on November 1, alleging that father went to mother's home and attempted to choke her. Father said he went to her home to take mother's money but denied choking her.
Father remained in a residential in-patient substance abuse program, which he had begun in April, 2016. As part of this program, he had completed 12-step meetings, drug educational groups, parenting classes, and individual counseling sessions; he also maintained negative results in random drug testing. Father had not yet completed the required psychological assessment or evaluation; he told DCFS that he was focusing on his residential program. Father also claimed that he did not currently need medication. He visited J. once per week, monitored by a DCFS human services aide (HSA). The HSA reported that father engaged and acted appropriately with J. Father's weekly visits increased from two to three hours in November 2016.
DCFS filed a subsequent petition under section 342 on February 14, 2017. The petition alleged current drug use by mother that placed J. at risk of harm within the meaning of section 300, subdivisions (b)(1) and (j). J. was detained from mother and placed with V.N.
In the detention report, DCFS stated mother had recently failed to submit to drug testing and tested positive for methamphetamines. DCFS also reported that father successfully completed his nine-month residential treatment program in January 2017 and continued to test negative for drugs. Father expressed that he no longer felt depressed, recognized the consequences of his past choices, and wanted to reunify with his children.
In February 2017, father reported that he was living in his own apartment. He also told DCFS that he was seeing a psychologist, but had not provided verification of a psychiatric assessment. He stated that he had missed some therapy sessions due to work and his search for housing. According to the CSW, father "appears to try and connect with [J.] during visits" and J. appeared to be comfortable in father's presence.
DCFS also reported that on February 6, 2017, father called the CSW and stated in rapid speech: "I'm just calling to inform you . . . that I'm giving up my rights as a father and just want to give over my rights to [mother]. I just don't want to be involved in any of this and that's all." The following day, father called the CSW again, but said he thought he was calling the cell phone company. When he realized he had called the CSW, he apologized. Based on father's prior statements, the CSW asked whether he would be willing to sign an affidavit giving up his rights to J. Father replied, "You have to wait, I have too much going on and you just have to wait." He then hung up.
At the detention hearing on February 14, 2017, the court sustained the allegations in the subsequent petition and ordered monitored visitation for each parent of eight hours per week.
DCFS submitted an interim review report on March 23, 2017. The department reported that father had been giving contradictory statements to different DCFS staff members, such as telling one person that he had a job and was living with mother, and then denying making those statements. V.N., J.'s caregiver, stated that because of father's unstable behavior, she no longer wanted to serve as a visitation monitor for father. According to V.N., father acted fine one day, then spoke to her with profanity and disrespect the next day. The HSA monitoring father's visits reported that often father did not complete his total visitation time and that J. had been injured multiple times during visits due to father's lack of attention to the child. Father's response was, "He's a boy he's going to get hurt."
The CSW noted that DCFS was concerned because father was "very inconsistent with statements made to the Department." Father claimed he had to stop working because he could not manage all of the visits and DCFS requirements. Father also failed to attend any appointments with his psychologist from January 17 to February 17, 2017 and claimed he missed those sessions due to appointments with DCFS, which the CSW stated was not true. At the time of the report, DCFS had not been able to assess father's home because he gave inconsistent responses regarding whether he had an apartment.
Mother and father told DCFS that they were continuing their relationship and desired to reunify as a family. DCFS noted its concern over this issue due to their past history of domestic violence.
DCFS filed its jurisdiction/disposition report for the subsequent petition on March 23, 2017. DCFS was unable to interview either father or mother for the report, as they cancelled several appointments.
At the April 4, 2017 adjudication and disposition hearing on the subsequent petition, the court sustained the allegations regarding mother in count b-1 under section 300, subdivision (b) and dismissed count j-1. The order for monitored visitation for both parents remained in place, with discretion to DCFS to liberalize once father was in full compliance with his case plan.
Interim Reports and Hearings
DCFS filed a status review report on September 20, 2017, reporting that J. was doing well in V.N.'s home. According to the report, mother and father's relationship status was "undetermined yet very concerning." Mother and father had demonstrated a pattern of claiming that their relationship was over, only to later reconcile. Further, the relationship continued to be volatile. On May 22, 2017, maternal aunt reported that father broke into her residence and got into an argument with mother. She saw mother chase father with a mop; during the ensuing scuffle over the mop, father pushed mother to the ground, breaking her arm. DCFS also reported that mother had not participated in any services since May 2017. Father told the CSW in August 2017 that he and mother were back together. However, in September, mother told the CSW that she had no interest in being with father and had called the police twice in the past month regarding domestic disputes.
Father moved out of a sober living home in August 2017. As of the September 2017 report, he was homeless and sleeping "from place to place." He declined an offer by DCFS for homeless service resources. DCFS noted father had made minimal progress around the issues of concern regarding his relationship with mother, and although he acknowledged the problematic nature of the relationship, he was "unable or unwilling to separate." Father claimed to be clean and sober, but the department had received multiple reports of suspected substance use from three different sources. Specifically, in May, the HSA noted that father looked extremely thin and tired during monitored visitation. In June, V.N. reported suspected drug use, noting father's elevated and rapid speech and a possible needle mark in his arm. In July, father failed to report for an on-demand drug test. In August, the house manager at father's sober living home reported that she suspected father was under the influence, and father had refused to drug test. Further, father was a "no-show" for eight out of 10 drug tests between April and August 2017. Father completed his 18-week parenting class, but DCFS noted that he struggled to maintain consistent weekly contact with J. In addition, father was dropped by his psychologist in May for missing too many appointments, and he received no mental health services between May and September, 2017. He began meeting a new psychiatrist in September, and was diagnosed with depressive disorder, not otherwise specified. Father told the CSW that he had taken his prescribed medication until June 2017, when he was told by his doctor that he did not need it any longer.
DCFS reported that it had been unable to liberalize father's visitation because he had not fully complied with his case plan. Moreover, father's weekly visitation was inconsistent and he attended fewer than 50 percent of his scheduled visits with J. The visits father did attend were of "very good quality," with appropriate physical affection and openness to feedback and guidance from the CSW.
DCFS concluded in its report that mother and father had made "minimal progress" in their case plans and the department had concerns that their issues had not improved and may have worsened. Accordingly, DCFS recommended terminating family reunification services for both parents.
In a last-minute information filed November 27, 2017, DCFS reported that father had a negative drug test on October 12, 2017, and then two "no show" tests in November. The report also stated that father left a rehabilitation facility on October 27 and had been staying in motels and with family and friends since then. According to the HSA, father had attended all but one of his scheduled visits with J. since the beginning of October, and was appropriate and loving during the visits. However, the HSA also stated she saw father once outside of a visit and was concerned that he was under the influence, because he was disheveled, slightly dirty, thin, and making rapid eye movements.
At the review hearing on December 4, 2017, the court found both parents failed to participate regularly and make substantive progress in their court-ordered treatment plans. Accordingly, the court terminated family reunification services and set the matter for a section 366.26 hearing. At father's request, the court ordered his referral to a dual diagnosis program.
In the section 366.26 report, filed March 6, 2018, V.N. reported that father visited J. on a weekly basis and appeared to enjoy the visits. J. was doing well with V.N., and reportedly had a good relationship with his sister, J.P., whom V.N. had adopted.
On March 16, 2018, DCFS reported that it had received a referral for V.N.'s teenaged adoptive daughter, who had been removed from the home. Thus, the department planned to conduct further assessment of V.N. as a viable adoptive placement for J.
Despite the department's concerns regarding V.N.'s older daughter, DCFS reported in July, 2018 that J. continued to thrive in V.N.'s home. V.N. was cooperating fully with the case plan, providing J. with a loving environment and ensuring his needs were met. DCFS also noted that since the last hearing, father had visited J. "sporadically," attending four visits between March and June, and cancelling or failing to show up for six others. When he did attend, father's weekly visits went well and he was observed to be affectionate and appropriately engaged. The CSW stated that he was working with father to identify and assess other potential monitors, so that visitation could be increased. DCFS recommended that J. remain placed with V.N., with the permanent plan of adoption.
Father's First Section 388 Petition
On July 13, 2018, father filed a section 388 petition to change the order terminating reunification services. Father asked the court to reinstate his family reunification services, or, alternatively, return J. to his care. In the portion of the petition asking "What has happened since that order that might change the judge's mind," father asserted that between November 2017 and March 2018, he graduated from the SHIELDS for Families program, which included "alcohol and drug education, relapse prevention, group counseling, gender issues, domestic violence, residential treatment, anger management, family education, parenting education, and life skills." He also stated that he had completed a psychiatric evaluation in March 2018. Father declared that in the eight months since reunification services were terminated, he "reflected on my past mistakes, acknowledged them, and understood how important it is to be a good father for my son." He recognized his past mistakes, including spending time with mother and engaging in substance abuse, but stated that he had "learned his lesson" and was "fully committed to completely staying away from drugs and any negative influences." He also claimed to have developed "stronger bonds" with J. through increased visitation, "up to four times a week," and bonding with and teaching J. during those visits. In addition, father stated he had attended doctor visits with J. and toured "multiple preschools." Father stated he was "in the process of becoming employed as a security guard," and had enrolled in a program to become a mechanic. Father attached certificates of completion for his SHIELDS program, and a letter from a doctor confirming a psychiatric evaluation on March 9, 2018.
The court summarily denied father's section 388 petition without a hearing on July 23, 2018. The court found that father's request did not state new evidence or a change of circumstances and that it did not promote the best interests of the child.
Interim Reports
DCFS filed a last minute information on July 27, 2018, in advance of the section 366.26 hearing. DCFS reported that V.N. was receiving reunification services for her fifteen-year-old daughter, but that there was currently no visitation because her daughter refused to see V.N. DCFS was continuing to assess the viability of V.N. as an adoptive caregiver for J.
In an interim review report on November 9, 2018, DCFS reported that father continued with his weekly two hour visits. The monitor stated that father was visiting regularly and had shown improvement in his interactions with J. She had no concerns that father was under the influence during any visits. J. was affectionate with father and appeared excited to see him. She also reported that father brought mother with him to the visit on one occasion.
The CSW reported that father had not contacted the CSW since August. He made several attempts to reach father in October 2018, but was unsuccessful. The CSW also spoke with Isaiah Thomas, father's case manager from the SHIELDS program. Thomas reported that father was clean and sober at the time of graduation in March 2018. His main concern was father's ability to cope when encountering his triggers, specifically, father's relationships with V.N. and mother. Thomas referred father to outpatient treatment, but father did not attend. Thomas also stated that he saw father a few weeks ago and "he didn't look too well and I was worried about him."
DCFS reported that V.N. completed a parenting program in her efforts to reunify with her older daughter, but noted a concerning pattern in that V.N. raised father until he began to exhibit challenging behaviors as a teenager. However, the department noted that J. and J.P. continued to do well in V.N.'s care; thus, DCFS wanted to work with V.N. to help her make progress with her daughter and to alleviate potential problems as the younger children grew older. At DCFS's request, the court continued the section 366.26 hearing.
DCFS filed another status review report on January 7, 2019. Father's visits at the community center had been on hold since October 16, 2018 because the caregiver broke her foot and her doctor restricted her driving. The CSW asked V.N. to provide father with alternative visitation with J. once per week and she agreed. V.N. reported father visited two or three times per month and he appeared to have a good relationship with J. J. referred to V.N. as "mom" and was forming a healthy attachment to her.
Father's Second Section 388 Petition
On January 22, 2019, father filed a second section 388 petition. Father asked the court to return J. to his care, or, alternatively, to reinstate his family reunification services and/or provide him with unmonitored visits. Father stated that he began mental health counseling on August 2, 2018 and had since attended five or six sessions. He also stated that he had been consistently taking his prescribed medication for his depression since 2013. Additionally, father contended that he had been living in his own apartment since April 2018, had ended his relationship with mother in September 2018, and had been attending meetings with J.'s developmental therapist since October 2018. Father stated he was visiting J. "approximately four times each week." Father also stated that returning J. to his custody would allow the child "to further develop his bond with me and allow him to receive the love and support that I can give him. I observe my child being very attached to me; whenever I see him, he calls me 'dada' countless times and refuses to leave my sight. . . . Further, my child does not have a male figure in his life and by allowing him to be with me, I can be that male and father figure to my child." Father attached a letter confirming his receipt of psychological services starting August 2018 and the letter confirming his graduation from the SHIELDS program in March 2018.
The court summarily denied father's petition on January 30, 2019. Once again, the court found father's request did not state new evidence or a change of circumstances, and did not promote the best interest of the child. Section 366.26 Hearing
The court held the contested section 366.26 hearing on April 25, 2019. The monitor for father's visits testified at the hearing that father visited J. approximately three times per month from June to October, 2018, for two hours each visit. She stated that J. often ran to father and hugged him, and father would engage with and encourage J. Father also testified about his visits with J. and his beliefs that it was important for J. to have a father, and that J. would benefit from having father remain in his life. He told the court that "no one is going to love my child more than me." Father testified that he originally visited J. once a week, after which visitation increased to two to three times a week.
The court found that continuing jurisdiction was necessary, J. was generally and specifically adoptable under the clear and convincing evidence standard, and there were no exceptions barring adoption. The court concluded that mother and father had not maintained regular visitation or established a bond with J., that any benefit to J. from his relationship with mother and father was outweighed by the physical and emotional benefit to J. from the permanency and stability of adoption and that adoption was in J.'s best interests. The court further found by clear and convincing evidence that it would be detrimental to J. to be returned to his parents. The court denied father's request to continue the hearing and order a parental bond study.
The court terminated mother's and father's parental rights and transferred custody of J. to DCFS for adoptive planning and placement, with V.N. designated as the prospective adoptive parent. Father timely appealed.
Father separately appealed the denial of his second section 388 petition on February 13, 2019. We consolidated the appeals for all purposes.
DISCUSSION
Father's appeal challenges only the juvenile court's summary denial of his second section 388 petition, filed in January, 2019. He argues that he made a prima facie showing of changed circumstances and the best interests of the child, and that the court therefore abused its discretion by failing to conduct an evidentiary hearing. We disagree. I. Legal Principles
Section 388 provides a parent the right to petition the juvenile court for modification of any previous order based upon changed circumstances or new evidence. (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.) A parent may seek relief under section 388 even after the juvenile court has terminated family reunification services. Section 388 thus acts as an "'escape mechanism'" for a parent facing termination of his or her parental rights by allowing the juvenile court to consider a legitimate change in the parent's circumstances after reunification services have been terminated. (In re Marilyn H. (1993) 5 Cal.4th 295, 309; In re Alayah J., supra, 9 Cal.App.5th at p. 478.) Viewed in the context of the dependency scheme as a whole, section 388 balances the parent's right to due process and the child's right to stability and permanency. (In re Alayah J., supra, 9 Cal.App.5th at p. 478.)
On receipt of a section 388 petition, the court may either summarily deny the petition or order a hearing held. (In re Lesly G. (2008) 162 Cal.App.4th 904, 912.) The petition will be summarily denied unless the petitioner makes a prima facie showing in his or her favor. (Ibid.; see also In re Marilyn H., supra, 5 Cal.4th at p. 310.) "'There are two parts to the prima facie showing: The parent must demonstrate (1) [either] a genuine change of circumstances or new evidence, and . . . (2) [that] revoking the previous order would be in the best interests of the [child].'" (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079; see also In re Kimberly F. (1997) 56 Cal.App.4th 519, 529; Rules of Court, rule 5.570(d)(1) & (2).)
"'If the liberally construed allegations of the petition do not show changed circumstances such that the child's best interests will be promoted by the proposed change of order, the dependency court need not order a hearing.'" (In re C.J.W., supra, at p. 1079; see also In re Edward H. (1996) 43 Cal.App.4th 584, 592 ["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."].) "'[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. (2001) 87 Cal.App.4th 246, 250, citing In re Edward H., supra, 43 Cal.App.4th at p. 593.)
"To support a section 388 petition, the change in circumstances must be substantial." (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) Moreover, "[o]nce reunification services are ordered terminated, the focus shifts [from reunification] to the needs of the child for permanency and stability," and a presumption arises that "continued care [under the dependency system] is in the best interest of the child." (In re Marilyn H., supra, at pp. 309-310.) Thus, inquiry into a child's best interests includes consideration of his or her need for permanency and stability. (In re J.C. (2014) 226 Cal.App.4th 503, 526-527; see also In re Mickel O. (2011) 197 Cal.App.4th 586, 616.)
We review the juvenile court's summary denial of a section 388 petition for abuse of discretion. (In re C.J.W., supra, 157 Cal.App.4th at p. 1079.) II. Analysis
The juvenile court found that father failed to meet his initial burden to show both a genuine change of circumstances and that it would be in J.'s best interest to reinstate reunification services or return J. to father's custody. As such, the court concluded father was not entitled to an evidentiary hearing on his section 388 petition. We find no abuse of discretion in the court's summary denial.
Father failed to establish a prima facie case of changed circumstances. Although he listed multiple facts in his petition, several of them were expressly contradicted by the record. For example, although he claimed that he had been visiting J. "approximately four times each week," all of the evidence in the record, including reports from DCFS, from the visitation monitors, and father's own reports, indicated that even when his visitation was consistent, father was only visiting J. once per week at the time of his petition. Indeed, at the subsequent section 366.26 hearing, father's own witness, the visitation monitor, testified that father visited J. about three times per month from June to October 2018, thus averaging less than once per week. V.N. reported the same frequency in the DCFS report filed shortly before father's petition.
Father's claim that he had consistently taken his prescribed medication for his depression since 2013 is similarly unsupported. Father told DCFS in 2017 that he had discontinued his medication, as he believed he no longer needed it. Further, there were multiple periods during which father admittedly received no mental health care. Even crediting father's allegation as true, it would do nothing to show that circumstances had changed since termination of his reunification services in December 2017.
Father also alleged in his January 2019 petition that he once again initiated mental health counseling on August 2, 2018, and supplied a letter documenting this fact. But he made the same claim in his first petition in March 2018. It was not an abuse of discretion for the court to conclude that this evidence did not make a prima facie showing of changed circumstances, but rather demonstrated a continuing pattern of temporary, partial compliance with the case plan, rather than sustained progress. Father failed to demonstrate that he had made lasting progress in addressing the substance abuse and mental health issues that brought the case under the court's jurisdiction and resulted in the termination of his reunification services. He neither alleged nor provided evidence of sustained mental health treatment or clean drug testing. Indeed, after his graduation from the SHIELDS program in March 2018, father declined outpatient services, caused his former SHIELDS program manager to express concern about him, failed to communicate regularly with the CSW, and appeared unable to avoid his relationship with mother, as they attended a visit together in late 2018.
Moreover, it was within the juvenile court's discretion to conclude that J.'s interest in permanency and stability would not have been served by the requested change in the order. At the time father filed his second petition, J. had been involved in dependency proceedings for almost three years, and had been out of father's custody since shortly after his birth. At most, father had one to two monitored visits with J. per week, and there were many periods during which father's visits were more sporadic. Although DCFS had discretion to liberalize father's visitation during most of this time period, father never complied with his case plan sufficiently to allow him to progress to unmonitored visitation. Moreover, J. was well-cared for by and well-bonded with V.N., the relative who had cared for him for two of his three years of life and whom he called "mom." V.N. maintained her desire to adopt J., as she had with his older sister. "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, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests. (In re Edward H., supra, 43 Cal.App.4th 584, 594.) '"[C]hildhood does not wait for the parent to become adequate."' [Citation.]" (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The court was not required to disrupt J.'s life at this late stage based on father's unsupported claims.
Nor did other evidence support father's contention that returning J. to him, or resuming reunification services, would be in the child's best interests. Father repeatedly started and stopped mental health and substance abuse treatment, as well as his relationship with mother, which was marked by alleged incidents of domestic violence. He continued to insist to DCFS that he was sober, despite numerous missed tests and reports from multiple sources that he appeared to be using drugs. His visits with J. were sporadic until late 2018.
We disagree with father's contention that the decisions in In re Hashem H. (1996) 45 Cal.App.4th 1791and In re Jeremy W. (1992) 3 Cal.App.4th 1407 support the existence of a prima facie case here. In Hashem H., the mother's petition detailed her successful participation in therapy for 18 months, conjoint counseling with her son, regular and consistent visitation with her son for more than a year, stable employment, and her current ability to provide a home for her son. (In re Hashem H., supra, 45 Cal.App.4th at p. 1799.) Her petition was supported by a letter from her therapist, recommending that the child be returned to her custody. (Ibid.) The juvenile court refused to consider the letter as unverified hearsay. (Ibid.) We concluded that the letter "demonstrated the availability of admissible evidence to support appellant's allegations of changed circumstances" and therefore mother's petition sufficiently established that her "mental and emotional problems which led to the removal of Hashem from her home had been successfully resolved through therapy." (Ibid.; see also In re Jeremy W., supra, 3 Cal.App.4th at p. 1416 [finding prima facie showing based on mother's uncontradicted evidence that she had abstained from substance abuse for over a year, continued therapy, and the conclusion of a bonding study of a significant risk of harm if the child were permanently separated from his mother].)
Father's reliance on In re Aljamie D. (2000) 84 Cal.App.4th 424 is similarly unpersuasive. There, we found an abuse of discretion in the juvenile court's summary denial of the mother's petition where DCFS did not dispute that her petition alleged changed circumstances. (Id. at p. 432.) The petition included evidence that the mother had fully complied with her case plan, consistently visited the children, and the children (ages 9 and 11) repeatedly stated their desire to live with their mother. (Ibid.)
Here, father's petition does not make a similar showing. His allegations that he graduated from the SHIELDS program, began a new round of mental health counseling, had his own apartment, and recently ended his relationship with mother did not make a prima facie case that he had resolved the substance abuse and mental and emotional problems that led to J.'s removal. His supporting documentation merely confirmed his graduation from SHIELDS and initiation of counseling; they did not suggest a likelihood of sustained progress or that he was ready to take custody of his child. Under these circumstances, the court did not abuse its discretion in summarily denying father's petition.
Although father also appealed from the court's order terminating his parental rights, he does not separately challenge this order on appeal. --------
DISPOSITION
The January 30, 2019 order denying father's section 388 petition and April 25, 2019 order terminating his parental rights are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J. We concur: WILLHITE, ACTING P.J. CURREY, J.