In re Destiny D.

Filed 6/17/08 In re Destiny D. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from the orders of the Superior Court of Los Angeles County, Patricia Spear, Judge. Affirmed.

Christopher Blake, under appointment by the Court of Appeal, for Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Jacklyn K. Louie, Senior Deputy County Counsel, for Respondent.

In these consolidated appeals, Cornell H. (father) contends that the juvenile court erred by denying his petition pursuant to Welfare and Institutions Code section 388[1]to place his daughter, Destiny D. (child), in his home and to take off calendar a scheduled permanency planning hearing pursuant to section 366.26. We find no abuse of discretion and affirm.

BACKGROUND

A toxicology screen indicated that child was born with cocaine in her system. Shortly thereafter, the Los Angeles County Department of Children and Family Services (DCFS) filed a juvenile dependency petition pursuant to section 300 alleging that childs mother, Priscilla D. (mother), had a history of substance abuse and was a cocaine abuser. Mother admitted to DCFS that she had used crack cocaine while pregnant with child. Child was placed with her maternal great aunt, Dora L., a licensed foster parent.

Mother told DCFS that father was childs biological father. When DCFS contacted father, father stated that he was not sure if he was childs biological father and wanted a paternity test. Prior to the detention hearing, however, father told DCFS that he no longer had any doubt regarding his paternity and that he wanted to attend the detention hearing.

Father attended the detention hearing, at which counsel was appointed for him. The juvenile court found father to be childs alleged father, and ordered a paternity test. The juvenile court granted father monitored visits, and ordered that his visits would be unmonitored after father completed four clean drug tests. Fathers counsel informed the court that if the paternity test determined that father was childs biological father, father wished to have child placed with him. The juvenile court ordered DCFS to investigate whether fathers home would be a suitable placement.

Prior to the jurisdictional hearing, DCFS reported that a preliminary criminal history check indicated that father had no criminal history, although father informed DCFS that he had been arrested five years earlier on a cocaine-related charge. Father also told DCFS that he had seen mother using cocaine while she was pregnant. Father was employed as a manager at a convenience store.

The paternity test confirmed and the juvenile court found that father was childs biological father. At a hearing on April 12, 2004, father requested that child be released to him. Father informed the juvenile court that he had completed two drug tests, both of which were clean. The juvenile court ordered DCFS to complete a prerelease investigation (PRI) of fathers home, with a view to releasing child to father once father completed four clean drug tests.

In its PRI report, DCFS reported that father had two drug-related felony convictions (the last in mid-1993) and had twice violated parole (the last time in mid-1996). Father told DCFS that, as part of his parole, he had completed a drug treatment program, and denied any current drug use. During April 2004, father had three clean drug tests.

DCFS reported that father lived with his mother (paternal grandmother), sister (Lena)[2]and brother (paternal uncle). Paternal grandmother and Lena would care for child while father worked; neither had any criminal history. Paternal uncle, however, had three DUI convictions and five convictions for possession of narcotics, the most recent in 1999. Although DCFS had some concern regarding paternal uncle, it reported that fathers home was appropriate and safe. DCFS recommended that the juvenile court place child with father if father met certain conditions, such as continued drug testing and obtaining a crib for child.

At the disposition hearing in May 2004, the juvenile court sustained the petition and placed child with father. The juvenile court ordered DCFS to provide family maintenance services to both mother and father. Father was ordered to participate in counseling, provide drug tests on demand, and to get a crib for child immediately. Mother was to have monitored visits. There was to be no visitation with child by anyone under the influence of drugs or alcohol.

In October 2004, DCFS reported that child seemed very happy and well-adjusted, and was being very well cared for. Father continue[d] to display appropriate behavior and remained employed, working seven days per week to support his mother, sister & [child]. The juvenile court found that a permanent plan of return to home of Father is appropriate and is ordered as the permanent plan.

By late November 2004, mother was having overnight visits with child at the drug treatment center where mother resided. By early March 2005, mother had completed her drug treatment program and moved in with maternal grandmother. Mother was drug testing, and had actively participated in caring for child, who was showing strong attachment to mother.

Father, on the other hand, was becoming overextended. In addition to working seven days per week, father was providing care for both paternal grandmother, who was elderly and in declining health, and Lena, who suffered from sickle cell anemia. Father asked DCFS to permit mother to resume primary care of child temporarily. DCFS requested that mother be given an extended unmonitored visit with child at maternal grandmothers home.

In late March 2005, however, DCFS removed child from fathers home and filed a subsequent petition pursuant to section 342, alleging that father had allowed mother access to child when he knew or suspected that mother had relapsed into drug use. Father had telephoned DCFS to state that he no longer wanted mother to care for child because mother had begun to use drugs again. Father stated that he saw mother smoke crack on March 8, but later stated that had not actually seen her use drugs but could tell by mothers odd behavior that she was under the influence. Father thus had permitted mother to take child knowing mother had resumed her drug use. Father also admitted to DCFS that he had failed to pick up child from maternal grandmothers house without arranging with maternal grandmother for childs care.

Mother admitted to DCFS that she had used drugs and told DCFS that father had procured drugs for her, although he did not use drugs himself. Father denied buying drugs for mother. Maternal grandmother told DCFS that she had been caring for child 99% of the time because paternal grandmother was too old and Lena too ill to care for child while father worked.

The juvenile court ordered child detained. Father denied the section 342 petition. Child was placed with Dora L. Father was permitted weekend overnight visits with child, but was ordered not to leave child alone with anyone else. In late April 2005, DCFS reported that child was thriving in the care of [Dora L.] . . . .

In early May 2005, prior to the adjudication of the section 342 petition, the parties entered into a mediation agreement. The petition was amended to allege and father admitted to show[ing] poor judgement [sic] to allow mother to have access to the child when he knew or suspected that mother had relapsed, and that this poses a risk to the child. Father was to provide eight random drug tests. He was to receive reunification services and unmonitored weekend overnight visits, on the condition that he not leave child alone with anyone else. Child was to remain placed with Dora L. The juvenile court sustained the section 342 petition as amended. The juvenile court also ordered father to participate in a program of counseling as directed by DCFS.

In June 2005, the juvenile court terminated mothers family reunification services. Fathers reunification services were continued for another six months. DCFS reported that child was still thriving under the care of Dora L. and maternal grandmother, and that maternal grandmother wanted to adopt child if child was unable to reunify with her parents. Dora L. also committed to providing the child with a permanent home.

Prior to the six-month review hearing in November 2005, DCFS reported that father had completed eight random drug tests. All were negative. Father had also attended three individual counseling sessions with a therapist. Father had been taking child for overnight visits twice per month. Dora L. told DCFS that child missed and asked after father when he was unable to visit. Dora L. also told DCFS that paternal grandmother was hospitalized, and that Lena had been in and out of the hospital. Father sometimes missed visits when Lena was in the hospital. Father told DCFS that he wanted child returned to him, but that he would like Dora L. and maternal grandmother to have partial custody because he needed their assistance with child when he was at work. Mothers whereabouts were unknown. The juvenile court found that father was in compliance with the case plan and set the matter for a 12-month review hearing in May 2006.[3]

Prior to the May 2006 hearing, father was unable to visit child on a consistent weekly basis because both paternal grandmother and Lena were ill. Father explained that he needed Lenas help to care for child, but Lena had been in and out of the hospital. DCFS reported that, at a family team decision-making meeting, father and maternal grandmother had agreed that maternal grandmother should take legal guardianship of, rather than adopt, child because both wanted father to remain part of childs life. DCFS recommended terminating fathers reunification services and setting a permanency planning hearing pursuant to section 366.26. Maternal grandmothers home study was approved prior to the May hearing.

At the May 2006 hearing, fathers counsel explained to the juvenile court that father wanted child back, but with all of his obligations and the fact that he hasnt been able to visit regularly he agreed to legal guardianship, subject to fathers right to do something about it when his situation changes. The juvenile court observed that father was sandwiched between taking care of his elders and his young child, and stated that it was not holding it against him. The juvenile court found that father was in compliance with his case plan, but that he could not care for child when hes got these other relatives hes providing so much assistance for . . . . The juvenile court terminated fathers reunification services, and set the matter for a permanency planning hearing in September 2006.

Beginning in July 2006, father began to visit child weekly on a consistent basis. He kept her overnight for two nights rather than one. Child loved father and was excited about and enjoyed the visits. Prior to the permanency planning hearing, however, DCFS changed its recommended permanent plan from guardianship to adoption by maternal grandmother, and moved child from Dora L.s home to maternal grandmothers home. DCFS did not report a reason for the change. It appears that a permanent plan liaison disagreed with the recommendation of guardianship because child was only 2 years old and highly adoptable; adoption would not stop from [sic] father to maintain relationship with [child]; and there is post adoption agreement that adoptive family and parents/relative can sign before adoption is finalized.

At the September 2006 hearing, childs attorney objected to the change in placement and permanent plan, and told the juvenile court that Dora L. had been told that she must adopt or the child will be moved. Childs counsel asked the juvenile court to order a team decision meeting involving Dora L., maternal grandmother, father and the social worker to decide whats really going on here and what is the most appropriate plan for the child. Fathers counsel stated that DCFSs conduct was egregious, and accused the adoption worker of creating problems between the family. The juvenile court ordered a family team decision-making meeting, ordered DCFS to provide an explanation of why child had been moved, and set the matter for a further permanency planning hearing in November 2006.

On September 18, 2006, father filed a section 388 petition seeking the return of child to his custody and asking the court to take the permanency planning hearing off calendar. Father cited as changed circumstances that he had maintained regular visitation since July 2006, that other relatives had come forward to help care for child while father was at work if Lena was too ill to do so, and that child had spent extended visitation of weeks with father and her paternal relatives. Child had bonded to father, calls him daddy, and wants to have as much contact as possible. Father submitted a letter from his niece, Tasha B., who stated that she was a foster parent, and that father had sisters, nieces, and great-nieces that are willing and ready to help. The juvenile court granted father a hearing on the petition, and ordered DCFS to file a report prior to the hearing.

DCFS reported on November 7, 2006 that, except for one week in September, father had consistently visited child since July 2006. DCFS reported that fathers elderly mother continues to be sick and that Lena has a life long illness, which causes her to go in and out of the hospital for undeterminable [sic]periods of time. Therefore, [father] cannot rely on their help to care for [child]. DCFS stated that Dora L. and maternal grandmother had been involved in caring for child since her birth, that child was well adjusted and bonded to her caregivers, and that maternal grandmother was willing to sign a post adoption agreement allowing father regular visitation. DCFS did not address whether father had additional relatives who could assist him in caring for child, stating only that child does not really know [fathers] other family members, with the exception of a cousin who lives out of the Los Angeles area.

DCFS further reported that a second family team decision-making meeting had been held. Dora L., maternal grandmother and the two social workers who attended had all advocated adoption by maternal grandmother as the best permanent plan for child. A social worker had raised the possibility of a post-adoption agreement that would allow father to continue visiting child. Father did not agree to adoption, did not want his parental rights terminated, stated that he felt the social workers were on maternal grandmothers side, and left the meeting.

Through no fault of fathers, the juvenile court continued the hearing on fathers section 388 petition several times. A contested hearing finally began in June 2007, nine months after father filed his section 388 petition. Paternal grandmother died prior to the hearing.

Prior to the hearing, DCFS reported that child was well adjusted and thriving under the care of her maternal grandmother . . . . Father continued to visit child regularly, sometimes keeping child for three nights per week instead of two. Child generally enjoyed her visits, although there was a time in April when child did not want to visit because she had been cared for by one of fathers other sisters, Saundra, and because father worked too much. Later visits were fine, however, when child was cared for by Lena.

When the hearing commenced, the parties stipulated that three of fathers sistersSaundra, Yvonne and Edna, all of whom were present in courtwould be available to care for child while father was at work if Lena fell ill. The social worker, Noelle Nemeth, testified that the last visit with child father had missed was in September 2006, nine months earlier. She had not inquired of father why he missed that visit. She had not visited fathers home recently. She had not discussed with father his plans for caring for child if Lena became ill. When asked why she recommended denial of fathers section 388 petition, the social worker testified that, prior to July 2006, father had not visited child consistently.

Father testified that he was 51 years old and worked as a manager at Three Minute Market. He worked a shift from 4:00 p.m. to midnight six days per week, so that he would be with minor during the day if she were returned to his care. When father was at work, his sister Lena would care for her. When Lena was ill, fathers sister Saundra would care for her; his sister Edna would care for her if Saundra was unavailable. If all four of his sisters were unavailable, father had three nieces who had said they would help. Father testified that child was always happy to see him and called him Daddy. He testified that he enjoyed caring for child, and wanted to care for her until she grew up. On cross-examination, father testified that, during the period child had been in his home, paternal grandmother and Lena had cared for child while he was at work.

At this point, the juvenile court interrupted cross-examination, held a chambers conference with counsel, ordered the matter continued, and ordered DCFS to inspect fathers home. The chambers conference was not transcribed, but the juvenile court later stated on the record that it had informed counsel in chambers that father probably had established, pursuant to former section 366.26, subdivision (c)(1)(A) (now subdivision (c)(1)(B)(i)), that he had maintained regular visitation and contact, and that child would benefit from continuing the relationship. The juvenile court informed counsel that it probably would not find child adoptable, and that guardianship would likely be a preferable permanent plan.

DCFS reported that fathers home was a three bedroom, one bath house that was generally clean and orderly, with some clutter. Father still resided there with Lena and paternal uncle. When child visited, she slept in Lenas bed. The social worker recommended against returning child to father because father was unable to provide a specific plan for childs care if Lena fell ill; father failed to provide contact information for his sister Denise; father did not know if he needed to obtain enrollment papers to enroll child in preschool; and paternal uncle had a criminal record.

When proceedings on fathers section 388 petition continued, father submitted a letter from his employer verifying his employment, a letter from Lenas physician stating that Lena is in fit state and mind to care for [child]; and an hourly schedule showing how childs days at fathers house would be structured and who would be caring for her. The parties also stipulated that, if called, fathers niece Tasha, who lived in Palm Springs, would testify that she, too, would provide emergency care if necessary. DCFS submitted a report stating that the social worker had been unable to contact fathers employer by telephone; and that Lenas doctor had said that Lena had to be hospitalized every one to three months for periods of up to five days, and was occasionally treated with morphine for pain relief.

The juvenile court denied fathers section 388 petition. Although father had always complied with the case plan, the juvenile court concluded that placing child with father would not be in childs best interest because fathers work schedule would make it very difficult for father to spend any time with child, particularly if she was to be enrolled in preschool, as father intended to do. Furthermore, although Lena took great care of child and child was crazy about her, Lenas medical condition meant she could not be the mom. On the other hand, in a guardianship arrangement with Dora L. and maternal grandmother, child would be parented by two people who take good care of her and would be available to parent her. Child still would be able to spend time with father on the weekends, when they would have more time available to be together. The juvenile court noted that the issue could be reexamined when child starts school because child would be older and fathers working hours might have changed. The juvenile court identified the permanent plan as a permanent living arrangement with relatives with a goal of guardianship, and set a permanent plan hearing for October 2007. Father timely filed a notice of appeal from the denial of his section 388 petition.[4]

At the permanent plan hearing, DCFS recommended guardianship as the permanent plan. Counsel for father noted that fathers appeal was pending and objected to legal guardianship, but did not ask the juvenile court to set the matter for contest. The juvenile court appointed maternal grandmother as childs legal guardian. Father timely appealed.[5]

DISCUSSION

A. Section 388 and Standard of Review

Section 388, subdivision (a), permits anyone having an interest in a dependent child to petition the juvenile court for a hearing to change, modify or set aside a previous order on the ground of changed circumstances or new evidence.[6] If the petition shows changed circumstances or new evidence indicating that the proposed modification may be in the childs best interests, the juvenile court must hold a hearing on the petition within 30 days. ( 388, subd. (c); Cal. Rules of Court, rule 5.570(e), (f).)

If the juvenile court grants a hearing, the burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) For a parent seeking to regain custody after the termination of reunification servicesas in this casethis burden is heavy. After the termination of reunification services, the parents interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point the focus shifts to the needs of the child for permanency and stability [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.] (Ibid.) The parents burden is particularly weighty when the section 388 petition is made on the eve of the section 366.26 permanency planning hearing, when the childrens interest in stability [i]s the courts foremost concern and outweigh[s] any interest in reunification. [Citation.] [Citation.] (In re Angel B. (2002) 97 Cal.App.4th 454, 464; In re Edward H. (1996) 43 Cal.App.4th 584, 594.)

We review the juvenile courts denial of a section 388 petition for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Shirley K. (2006) 140 Cal.App.4th 65, 71.) We must uphold the juvenile courts denial of appellants section 388 petition unless we can determine from the record that its decision exceeded the bounds of reason. 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.] [Citations.] (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)

B. The Juvenile Court Did Not Abuse Its Discretion in Denying Fathers Section 388 Petition

Father relies on the factors for evaluating a section 388 petition set forth in In re Kimberly F. (1997) 56 Cal.App.4th 519 (Kimberly). Those factors are (1) the seriousness of the problem leading to the dependency proceedings; (2) the strength of the relative bonds between the child and both the parent and the caretaker; and (3) the degree to which the problem may be or has been easily removed. (Id. at p. 532.) Father argues that the problem that led the juvenile court to remove child from fathers home in March 2005 (as distinct from the problem that led to childs initial detention in 2004) was relatively trivialhe had shown poor judgment by permitting mother access to child knowing that mother had relapsed into drug use. No harm had come to child, father points out, and there was virtually no chance of recurrence because mothers parental rights were terminated and she was no longer involved in childs life. On the other hand, father contends, childs bond with father was close and loving.

The factors set forth by the court in Kimberly, however, are not meant to be exhaustive. (Kimberly, supra, 56 Cal.App.4th at p. 532; see also In re Jacob P. (2007) 157 Cal.App.4th 819, 832.) Rather, the specific factors a court must consider vary with each case . . . . (In re Angel B., supra, 97 Cal.App.4th at p. 463.) It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child. (In re Kimberly F., supra, 56 Cal.App.4th at p. 529.) [T]he proper focus [is] on the childs interests, not the [parents]. (Id. at p. 534, citing In re Stephanie M., supra, 7 Cal.4th at p. 323.)

The juvenile court in this case did not deny fathers section 388 petition because it concluded that father was unfit to parent child or that his home was unsafe or unsuitable.[7] Rather, the juvenile court concluded that child would have a more stable and nurturing home environment with maternal grandmother because maternal grandmother and Dora L. were constantly available to parent child, whereas fathers work schedule would prevent him from spending meaningful time with child except on weekends, and Lenas illness would prevent her from providing a stable environment for child while father worked.

We cannot say that the juvenile courts conclusion exceeded the bounds of reason. (In re Brittany K., supra, 127 Cal.App.4th at p. 1505.) Child was three years old at the time of the juvenile courts decision. She was placed with and cared for by maternal relatives she had known since birth and with whom she also had close and loving bonds. Even during the period that child was placed with father, Dora L. and maternal grandmother cared for child a significant portion of the time because of fathers other responsibilities. Father does not dispute that maternal grandmother and Dora L. played a substantial and beneficial role in childs life. Father recognized this in November 2005 when he proposed a joint custody arrangement with maternal grandmother and Dora L., and again in May 2006 when he agreed to a permanent plan of guardianship with maternal grandmotherthe plan ultimately adopted by the juvenile court.

In contrast, the schedules that father provided to the juvenile court to show how child would spend her days if returned to fathers care support the juvenile courts conclusion that father and child would have little time together. For six days of the week, child would be in preschool or church for most of the time that father would be home and available to parent her. The schedules showed that Lena would care for child in the evenings and on much of Sunday, but there was evidence that Lena was hospitalized with some frequency for periods of up to five days, and that between hospitalizations she frequently suffered severe pain that sometimes required treatment with morphine. The juvenile court could reasonably conclude that, although father and Lena loved and cared for child, childs best interests at this time would be better served by remaining in the more stable and nurturing environment offered by maternal grandmothers home.

Father also argues, in essence, that it was illogical for the juvenile court to deny his section 388 petition. Father argues that he was in a better position to care for child at the time of his section 388 petition than he had been when the juvenile court had placed child with him in late 2004 because he no longer had to care for paternal grandmother. Moreover, father contends, he had complied with his case plan since child was removed from his home in March 2005, and had done everything reasonably possible under the circumstances to regain custody of child.

Fathers efforts to build and maintain a relationship with child under difficult conditions were, as the juvenile court noted, laudable. Fathers argument, however, fails to recognize that circumstances materially changed between childs initial placement in fathers home as an infant in 2004 and the juvenile courts denial of fathers section 388 petition in 2007. When child was placed in fathers home, she was an infant and had been placed with Dora L. for approximately three months. Father was being provided family reunification services by DCFS. At that point, the focus of the dependency proceedings was on maintaining the family unit. (See In re Celine R. (2003) 31 Cal.4th 45, 52; In re Marilyn H. (1993) 5 Cal.4th 295, 308.) Fathers reunification services were terminated, however, more than a year before the hearing on fathers section 388 petition. Father did not challenge that orderto the contrary, he agreed at the time that maternal grandmother should become childs legal guardian. As noted above, [a]fter the termination of reunification services, the parents interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point the focus shifts to the needs of the child for permanency and stability [citation]. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) The juvenile court was required to recognize this shift in focus in determining the ultimate question before it, that is, the best interests of the child. (Ibid.)

Moreover, when child was removed from fathers home in March 2005, she was again placed with Dora L. and, later, with maternal grandmother. By the time fathers section 388 petition was heard more than two years later, child was three. She had been cared for by maternal grandmother and Dora L. most of her life, had been living with maternal grandmother or Dora L. for two years, and had developed a deep bond with them. [A]s in any custody determination, a primary consideration in determining the childs best interest is the goal of assuring stability and continuity. [Citation.] When custody continues over a significant period, the childs need for continuity and stability assumes an increasingly important role. [Citation.] That need often will dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child. [Citation.] (In re Angel B., supra, 97 Cal.App.4th at p. 464, citing In re Stephanie M., supra, 7 Cal.4th at p. 317.) The juvenile court could reasonably conclude that childs interests in continuity and stability were best served by denying fathers section 388 petition and maintaining childs placement with maternal grandmother.

Fathers position is not unreasonable. But the juvenile court, in its discretion, determined to deny the section 388 petition. In making that determination, the juvenile court did not abuse its discretion. The juvenile court may revisit the matter as child ages.

DISPOSITION

The orders denying fathers section 388 petition and appointing maternal grandmother as childs legal guardian are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

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[1] All statutory references are to the Welfare and Institutions Code unless otherwise stated.

[2] The record contains several different spellings for Lenas name. We use the same spelling consistently.

[3] The reporters transcript contains the transcript of a hearing dated November 8, 2005 that appears to be from a different case. No transcript of the November 8 hearing in this case appears in the record.

[4] That appeal is Case No. B201475.

[5] That appeal is Case No. B204244. We granted fathers motion to consolidate the appeals. Fathers sole contention in Case No. B204244 is that the asserted error denying fathers section 388 petition also requires reversal of the order appointing maternal grandmother childs legal guardian. Because we conclude that the juvenile court did not err in denying fathers section 388 petition, we need not address that contention.

[6] Section 388, subdivision (a) provides in pertinent part: Any parent or other person having an interest in a child who is a dependent child of the juvenile court or the child himself or herself through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court or in which a guardianship was ordered pursuant to Section 360 for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.

[7] DCFS asserted repeatedly below and continues to argue on appeal that fathers inconsistent visitation and other conduct prior to July 2006while father was both supporting and providing care for his ailing mother and sisterjustified denial of the section 388 petition. We agree with father that these arguments are inappropriate because they are contrary to the juvenile courts contemporaneous findings that father was in compliance with his case plan. Indeed, the juvenile court twice stated that fathers conduct during that period was commendable. We do not rely on DCFSs arguments in this respect in reaching our conclusion.