In re J.G.
Filed 6/26/12 In re
J.G. CA3
NOT
TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Sacramento)
In re J. G., a Person Coming
Under the Juvenile Court Law.
SACRAMENTO COUNTY DEPARTMENT OF
HEALTH & HUMAN SERVICES,
Plaintiff and Respondent,
v.
ROBERT G.,
Defendant and Appellant.
C069638
(Super.
Ct. No. JD230914)
Father, Robert G.,
appeals the juvenile court’s summary denial of his Welfare & Institutions
Code section 388
title="">[1]
petition. He contends the court erred in
denying him the opportunity to have a full hearing on his petition. We find father did not make a prima facie
case that modification and further
reunification services were in the minor’s best interest. Accordingly, we affirm the judgment.
FACTUAL BACKGROUND
AND PROCEDURAL HISTORY
The minor lived
with father intermittently for five of his first seven months of life. At eight months old, the minor was detained
and placed in protective custody. The minor had been diagnosed with poly cystic
renal disease, a condition requiring close medical monitoring and father had
left the minor without medical coverage and in the custody of mother, who he
knew had substance abuse problems. Four
months later, the court found mother and father were unable or unwilling to
provide the minor with adequate food, clothing, shelter and medical treatment. At that time, the minor was also placed in a
new foster home, which later became his prospective adoptive home. A few months later, the minor’s newborn half
sister was placed in the same foster home.
Reunification
services were not ordered for mother, based on her past history of failing to
reunify with the minor’s half siblings and the termination of her parental
rights over them. Father was granted
reunification services and visitation.
Over the next six months, father did not maintain a stable and safe
residence, had difficulty maintaining employment and had his driver’s license
revoked. He enrolled in three separate
substance abuse treatment programs, but did not complete them. He completed the Strategies for Change
program and a parenting program and enrolled in counseling. Father was scheduled to visit the minor twice
a week. Visits were appropriate, but
father missed numerous visits. The minor
usually “went easily” to father, but would sometimes reach back for his foster
mother. After visits, the minor
separated from father and returned to his foster mother easily.
The
Human Services (DHHS) recommended reunification services be terminated
because father had only recently begun counseling, did not have a stable
residence or income and there was a risk father would return the minor to
mother. Following a contested hearing,
the juvenile court found father was not credible regarding his relationship
with mother, did not regularly visit the minor and failed to make substantive
progress in his case plan. Accordingly,
the juvenile court followed DHHS’ recommendation, terminated
for a selection and implementation hearing.
The minor
continued to do well in the prospective adoptive home. Visitation with father continued to be
appropriate. DHHS deemed the minor
adoptable due to his age, physical health and development. Adoption was recommended as the permanent
plan.
Prior to the
permanency hearing, father filed a petition for modification (§ 388) seeking
either placement of the minor or additional reunification services. He alleged since the time services had been
terminated he had completed group counseling and outpatient substance abuse
treatment, continued to attend after care and counseling, obtained a stable
residence and ended his relationship with mother. As to the minor’s best interests, father
claimed his “progress in his alcohol and drug rehabilitation, counseling, and
parenting education, have significantly increased his ability to care for and
reunify with the child []. His
demonstrated commitment to remain out of chaotic relationships, such as his
previous relationship with [mother], will lend towards emotional stability and
a healthy parenting environment for the child.
The father’s desire to continue on with counseling well beyond merely
receiving a certificate indicates his understanding to the commitment needed to
provide the best possible environment for [the minor].”
A hearing was held
to determine whether father’s petition made a prima facie showing of changed
circumstances and the best interests of the child. Father made an offer of proof that he would
testify about how he had benefitted from group counseling, learned from
substance abuse treatment and taken responsibility for his actions. In addition, father and a family friend would
testify about the nature of father’s relationship with, and love for, the
minor. During argument, father
reiterated his claimed changed circumstances.
As for the minor’s best interests, he argued, “it’s always in a child’s
best interest if we have a parent who has not given up. [¶]
[Father] has continued to fight for his son and fight for himself really
in order to be a better man and a better father, and I believe even though [the
minor] might be placed in a home that is committed in providing permanency
through the form of adoption it’s always in a child’s best interest, if a
parent has made significant changes in their lives, for that parent to further
be provided an opportunity to give testimony as to why it is in [the minor]’s
best interest to grant the 388 motion.”
The juvenile court
found there was “no proof that the father’s motion either to place [the minor]
with him or to reopen services [was] in the child’s best interest. There’s not only not prima facie evidence,
there’s no evidence. No evidence.” The court also found there was no evidence of
changed circumstances. Based on these
findings, the court summarily denied father’s modification petition. Following a contested hearing, the court
found the minor adoptable and ordered parental rights terminated. The court noted father had not consistently
and regularly contacted the child, with over 75 percent of the child’s life
being outside the father’s care.
name="_ftnref2" title="">[2]
DISCUSSION
Father contends he
made a prima facie showing of changed
circumstances and that the minor’s best interests would be served by either
placing the minor with him or ordering further reunification services; and,
therefore the trial court abused its discretion in summarily denying his
section 388 petition to modify. We
disagree.
Under section 388,
subdivision (a), a parent “may, upon grounds of change of circumstance or new
evidence, petition the court . . . for a hearing to change” a
previous court order. “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. (d).) Whether to provide a
hearing on a petition alleging changed circumstances is within the juvenile
court’s discretion, but the petition must be liberally construed in favor of
its sufficiency. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431.) To be entitled to a hearing on a section 388
petition a parent must make a prima facie showing both that there is “(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, italics added; In
re Aljamie D., supra, 84
Cal.App.4th at p. 432.) 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.” (In re Zachary G., supra, 77 Cal.App.4th at p. 806.) While the petition must be liberally
construed, more than general conclusory allegations are required to make a
prima facie showing. (
584, 593.) If the petition fails to
state facts showing it would be in the best interests of the child to modify
the order, the petition may be denied without a hearing. (Cal. Rules of Court, rule 5.570(d);
When as here, the
petition for modification is brought after termination of
interests of the child are the paramount consideration. (In re
Stephanie M. (1994) 7 Cal.4th 295, 317.)
In assessing the best interests of the child, the juvenile court looks
to the needs of the child for permanence and stability. (Ibid.)
Father alleged no
facts, and proffered no evidence, supporting his assertion that a change in
order was in the minor’s best interests.
There was no evidence of a particular bond between the minor and
father. The minor lived with father for
no more than five months, was an infant when he was detained and visits with
father were sporadic. The minor showed
no distress at separating from father after visits and looked to his foster
mother for reassurance during visits.
Father’s assertions and evidentiary proffers regarding the minor’s best interests
focused on father’s progress in services and his feelings for the minor. Father made no proffer regarding the minor,
his need for permanence and stability or his best interests. Father’s only claim as to the minor’s best
interests is that where the parent has made significant changes in their life,
“it’s always in a child’s best interest” for the parent to be provided further
opportunity to reunify. It is not. Rather, under the circumstances of this case,
where father's reunification services were terminated, continued care in the prospective adoptive home is presumptively
in the minor’s best interests. (
p. 317; In re Marilyn H. (1993) 5
Cal.4th 295, 310.) Because
father failed to make a prima facie showing that granting his petition would
serve the minor’s best interests, the court did not abuse its discretion by
denying the petition without a full hearing.
Thus, we need not address father’s argument he made a prima facie
showing of changed circumstances. Under
the circumstances presented here, the juvenile court did not abuse its
discretion by denying father's section 388 petition without a hearing.
DISPOSITION
The juvenile court’s
order is affirmed.
BLEASE , Acting P. J.
We concur:
ROBIE , J.
MAURO , J.
name="_ftn1" title="">[1] Undesignated statutory references are to
the Welfare and Institutions Code.
name="_ftn2" title="">[2] The court specifically found the section
366.26 report filed by DHHS was inaccurate when it stated father had continued
to have regular visitation with the minor.
