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In Re S. P. et al., Persons Coming Under the Juvenile Court v. C. N

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)


August 18, 2011

IN RE S. P. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
C. N., DEFENDANT AND APPELLANT.

(Super. Ct. No. J05149)

The opinion of the court was delivered by: Robie , Acting P. J.

In re S.P. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Father, C. N. appeals the juvenile court orders denying his Welfare and Institutions Code*fn1 section 388 petition and terminating parental rights to his three children. He contends the juvenile court abused its discretion by denying his section 388 petition without a hearing and applying a local rule of court so as to deprive him of his right to seek modification. We need not reach the second contention, as we find no abuse of discretion in denying father's petition without a hearing. Accordingly, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In March 2009, mother gave birth to her second drug-exposed baby.*fn2 Father and mother lived together at the time proceedings commenced. Mother admitted using methamphetamine during her pregnancy and father admitted he was aware mother had used drugs. The San Joaquin County Human Services Agency (agency) filed a section 300 petition alleging mother had admitted using methamphetamine during her pregnancy, the minor S. P. had tested positive for drugs at birth, and father was aware of mother's drug use and failed to take any action to protect S. P. Mother's three children were detained in April 2009, at which time they were two years old, one year old, and one month old.

Father's reunification plan required him to obtain stable housing, successfully complete parenting classes, and participate in general counseling. Father had a learning disability for which he receives Social Security's Supplement Security Income. Based on his learning disability, father's attorney requested services be tailored for father. In addition, because father could not utilize bus passes, the agency agreed to arrange father's transportation to parenting classes. The agency was also concerned about his ability to care for the children on his own if mother entered drug treatment.

At the time of the dispositional report, mother was not participating in services. Father had just begun parenting classes. The agency had also referred the parents for in-home counseling.

At the six-month review hearing, the agency reported father was dependent upon others for transportation. He was frequently late to visits or missed them altogether due to transportation problems. Mother and father had ended their relationship and father was now living with his mother. Father was discharged from parenting class due to poor attendance. He was allowed to reenroll, but failed the final exam. He was informed he should again reenroll, but had not done so at the time of the status hearing. Father had not engaged in any general counseling. Based on the parties' agreement, the court ordered psychological evaluations of father to assess his ability to benefit from services and continued the review hearing.

At the next hearing, father's counsel reported father had stopped visiting with the children entirely and the agency had done what it could to address his special needs. The psychological evaluators concluded father would not benefit from services, "as he had difficulty taking care of himself let alone three young children as well." Reunification services were terminated as to both parents and the matter was set for a section 366.26 hearing.

The children were placed together in the same foster home and the foster parents wanted to adopt them. Between August 25 and October 1, 2010, father did not visit the children. The section 366.26 hearing was set for January 7, 2011.

Eight days before the scheduled section 366.26 hearing, father filed a section 388 petition to modify the order terminating his reunification services. He sought either immediate placement of the children or additional reunification services. In the petition, father alleged he was in a new relationship with a woman who was "attempting to help [father] obtain stability so he can care for his children. She is ready, willing and able to assist [father] in the care of his three children." In particular, father's new girlfriend was helping him with "issues surrounding his learning disability which prevent [father] from fully participating in his case plan," (bolding omitted) assisting father with transportation, and renting him a room in her home on a month-to-month basis. Father also claimed he was "in the process of contacting the parenting [class] instructor so he can take the final exam" and was "in the process of obtaining a letter from the therapist" indicating he had completed six sessions of counseling and the therapist was available for further therapy. He also asserted a change in order was in the best interests of the children because he was their father, he and two of the children had learning disabilities so he could help them overcome obstacles related to the disability, they deserved to know their father, and they would lose their unique cultural Cambodian heritage. The court denied the petition without a hearing, finding father had not made a prima facie showing of new evidence or changed circumstances and the petition was not in compliance with Local Rules of Court, rule 5-300.*fn3 The court found the children adoptable and terminated parental rights.

DISCUSSION

Section 388 allows the juvenile court to modify an order if a party establishes, by a preponderance of the evidence, that changed circumstances or new evidence exists and the proposed change would promote the child's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) To obtain an evidentiary hearing on a section 388 petition, the parent must make a prima facie showing as to both of these elements. (Ibid.; In re Justice P. (2004) 123 Cal.App.4th 181, 188-189.) The section 388 petition should be liberally construed in favor of granting a hearing, but "[i]f 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 Anthony W. (2001) 87 Cal.App.4th 246, 250.) "In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case." (In re Justice P., at p. 189.) We review the summary denial of a section 388 petition for an abuse of discretion. (In re Zachary G., at p. 808; In re Aljamie D. (2000) 84 Cal.App.4th 424, 431, 433.)

Father did not make a prima facie showing of changed circumstances requiring the court to hold an evidentiary hearing. When reunification services were terminated, he had completed parenting classes but had not passed the final exam, had not engaged in counseling services, and his living situation was not stable. His visitation schedule with the children was sporadic and he was dependent upon others for transportation to visits and services.

As indicated in the petition, father has completed parenting classes but needs to take the final exam. He has not engaged in counseling since the termination of reunification services. He relies on his new girlfriend and her family for transportation to visits. He rents one bedroom in his girlfriend's home on a month-to-month basis. Father has not completed the services required of him in his plan, nor has he made substantial progress in completing those services. Furthermore, he does not claim he has achieved stability, rather that his girlfriend is "attempting" to help him achieve it. He does not claim he is ready to care for his children, but that his girlfriend is ready to assist him in caring for them. He has not taken the final exam for the parenting class, he is "in the process" of contacting the course instructor to arrange to take the exam. He has not completed counseling, and is "in the process" of obtaining a letter from the therapist. These are not changed circumstances. (Compare with In re Hashem H. (1996) 45 Cal.App.4th 1791 [juvenile court abuses discretion in summarily denying section 388 petition when parent has consistently participated in individual and conjoint counseling, regularly visited with child, held a full-time job, provided stable home for child, and therapist recommended child be returned to parent's custody].) At best, father has demonstrated changing circumstances. "'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 . . . might be able to reunify at some future point, does not promote stability for the child or the child's best interests. [Citation.] "'[C]hildhood does not wait for the parent to become adequate.'"'" (In re Mary G. (2007) 151 Cal.App.4th 184, 206.)

These children were extremely young when removed from their parent's custody, ranging between two years old and one month old. At the time the section 388 petition was denied, they had been out of the home for almost two years. They had been living with the foster parents for almost a year, and those foster parents wanted to adopt them. There was a rebuttable presumption that continued foster care was in the children's best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Based on this record, the court did not abuse its discretion by summarily denying father's section 388 petition.

DISPOSITION

The orders of the juvenile court are affirmed.

We concur: BUTZ , J. MURRAY , J.


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