Opinion
A148292
03-20-2017
In re ALEXANDER P., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. HEIDI S., et al., Defendants; MICHAEL P., Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. JD15-3101) MEMORANDUM OPINION
We resolve this case by a memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1(1), (3).
The procedural history of this dependency proceeding and further information about the relationship between Alexander P. (the minor) and appellant Michael P. are set out in our earlier opinion ruling on two prior consolidated appeals, In re Alexander P. (2016) 4 Cal.App.5th 475 (Alexander P.).
The minor, who is now five years old, became the subject of a dependency petition two years ago, when he was three. (Alexander P., supra, 4 Cal.App.5th at p. 479.) Michael is not the minor's biological father, but he helped raise the minor from his birth in February 2012 until January 2013, when the minor's mother (Mother) took steps to sever ties with Michael. (Id. at pp. 480-481.) Thereafter, Michael continued to have joint custody of the minor and frequent visits until April 2014, when Michael's visitation was reduced to twice weekly supervised visits due to concerns about his domestic violence against Mother. (Id. at p. 481.) Even that visitation ended in August 2014, when the order permitting Michael's visitation was vacated by the family court. (Id. at p. 482.) So far as it appears in the record, Michael has had little or no contact with the minor since that time.
Over a year earlier, in July 2013, the minor had begun living in the home of Donald Q., who has since married Mother. In addition, since September 2013, the minor has had regular weekend visits with his biological father. (Alexander P., supra, 4 Cal.App.5th at p. 481.) This dependency proceeding arose as a result of Donald's commission of domestic violence against Mother in the minor's presence. (Id. at p. 479.)
In Alexander P., we vacated orders of the juvenile court designating Michael a presumed parent and denying him visitation. We directed the juvenile court to conduct a new hearing with respect to Michael's status as a presumed parent and to reconsider his visitation if he was found to be a presumed parent. (Alexander P., supra, 4 Cal.App.5th at p. 499.)
In April 2016, prior to the issuance of Alexander P., Michael filed a request pursuant to Welfare and Institutions Code section 388 for a resumption of his visitation with the minor. The juvenile court had denied his earlier request for visitation on the basis of expert testimony that visitation with Michael would be detrimental to the minor as a result of Michael's history of domestic abuse toward Mother. In an effort to create changed circumstances, Michael had enrolled in a weekly parenting class, although at the time the request was filed he could not have attended more than two of the 12 classes. The request also stated that Michael's probation for a conviction involving domestic violence against Mother had ended, and he was continuing in individual psychotherapy. A letter from his psychotherapist attested to the sincerity and passion of Michael's concern for the minor.
All statutory references are to the Welfare and Institutions Code.
In Alexander P., we found the juvenile court's rationale in denying visitation erroneous (Alexander P. (Oct. 21, 2016, A146040, A146595) [nonpub. part of partially pub. opn.], at pp. 27-29), but our decision had yet to issue at the time Michael filed this section 388 request.
The request also stated Michael had completed two domestic violence programs as part of his probation, but his participation in the programs would not have qualified as "changed circumstances" because even the most recent was completed nearly a year before the request was filed.
The request contended that visitation with Michael would be in the minor's best interests because the minor's home life was rendered unstable by Donald's domestic violence, and Michael, who contends he has put domestic violence behind him, "believes he will only add love and stability for his child given the opportunity."
The juvenile court denied the section 388 request without a hearing, finding that the proposed change would not promote the best interests of the minor.
"Under section 388, a parent may petition to change or set aside a prior order 'upon grounds of change of circumstance or new evidence.' [Citations.] The juvenile court shall order a hearing where 'it appears that the best interests of the child . . . may be promoted . . .' by the new order. [Citation.] Thus, the parent must sufficiently allege both a change in circumstances or new evidence and the promotion of the child's best interests." (In re G.B. (2014) 227 Cal.App.4th 1147, 1157, fn. omitted.) Unless the moving party makes a prima facie showing of both elements, the petition may be denied without an evidentiary hearing. (In re Marcelo B. (2012) 209 Cal.App.4th 635, 642.) " 'A prima facie case is made if the allegations demonstrate that these two elements are supported by probable cause. [Citations.] It is not made, however, if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing. [Citations.] While the petition must be liberally construed in favor of its sufficiency [citations], the allegations must nonetheless describe specifically how the petition will advance the child's best interests.' " (In re K.L. (2016) 248 Cal.App.4th 52, 61-62.) "In assessing the best interests of the child, 'a primary consideration . . . is the goal of assuring stability and continuity.' " (In re Mickel O. (2011) 197 Cal.App.4th 586, 616.) We review "a juvenile court's decision to deny a section 388 petition without a hearing for abuse of discretion." (In re G.B., at p. 1158.)
We find no abuse of discretion in the juvenile court's conclusion that visitation with Michael was not in the minor's best interests. The thrust of Michael's argument was that he would be a loving supplement to the minor's life, which has been upset by Donald's domestic violence. However, given the minor's regular visits with his biological father, in addition to therapeutic visits with Donald, there is no reason to think the minor is in need of additional periodic adult male companionship. No matter how well intentioned Michael might be, introducing compulsory visits with yet another adult, particularly an adult who is viewed with hostility by Mother, is likely to be confusing to the minor, while providing little emotional benefit.
The minor argues that de novo review is required, without citing any relevant authority for the proposition. We decline to resolve the issue because our decision would be the same under both de novo and abuse of discretion review. --------
Further, visitation with Michael risks disrupting the progress of the dependency proceedings. Through Mother's marriage to Donald, the minor became part of a family, and he had begun to accept Donald as his father at the time the dependency petition was filed. By their participation in the dependency process, Mother and Donald are working to repair a relationship strained by violence, and Donald is participating in visitation with the minor for the same purpose. By establishing another potential father figure for the minor, Michael's request is more likely to interfere with the objective of family reunification than to advance it. In short, nothing in Michael's section 388 request suggests that his visitation with the minor would be of sufficient value to overcome the confusion to the minor and disruption to his family that such visitation could create.
We find no merit in Michael's claim that denial of visitation is tantamount to a denial of his parental rights without due process. The merits of Michael's claim to parental status are a subject of this proceeding, which has not yet been concluded. There is no reason, at this point, to conclude either that Michael's claim to parental status has been denied or that the denial occurred without appropriate process.
Because we affirm the juvenile court's order on its merits, we need not address the Agency's argument that this appeal was rendered moot by our decision vacating Michael's status as a presumed father.
The order of the trial court is affirmed.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.