Filed 10/12/17 In re D.W. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Michael Imhoff, Commissioner. Affirmed.

Katherine A. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.

D.W., Sr. (Father) appeals from a juvenile court order summarily denying his petition under Welfare and Institutions Code[1] section 388 requesting that the court modify its placement order and to place his son, D.W., Jr. (Minor, born 2006) in his care instead of a group home. Father contends the juvenile court abused its discretion and denied him due process by denying the petition without a hearing. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2015 Minor came to the attention of the San Diego County Health and Human Services Agency (Agency) after it received a phone call from the Oceanside Police Department stating Father abducted Minor and Minor's half-sibling from their home and attempted to take stepmother Amber B. at gun point. Father was later arrested and the children returned to their home. When law enforcement went to the family home, they found it to be very dirty and unsafe because it contained marijuana and chemicals accessible to the children. There were also allegations of domestic violence between Father and Amber. The police took Minor and his half-sibling into protective custody. Father was subsequently convicted of child abuse for his actions.

The Agency filed a petition on behalf of Minor alleging there was a substantial risk he would suffer serious physical harm due to Father's inability to supervise or protect him and the violent confrontations between Father and Amber. At the July 2015 detention hearing the court made a prima facie finding that Minor was described by section 300, subdivisions (a) and (b) and ordered him detained with his paternal grandfather. At the August 2015 jurisdiction hearing the court sustained the petition finding the allegations to be true by clear and convincing evidence. At the October 2015 disposition hearing the court declared Minor a dependent and removed physical custody from Father. The court placed Minor in relative care and ordered reunification services be provided to Father. In December 2015 Father was released from jail and his case plan was amended to reflect the change. In April 2016 the Agency located Mother, who indicated that she wanted to be part of the case.

At the June 2016 six-month review hearing the court continued Minor as a dependent placed in relative care, and found the services provided to Father had been reasonable. The court terminated services to Father, but ordered reunification services be provided to Mother and scheduled a 12-month permanency hearing.

In March 2017 the Agency filed a section 387 supplemental petition alleging that Minor's relative placement was no longer appropriate because his paternal grandfather had passed away and Minor's nonrelated extended family members were no longer able to care for him and requested his removal. Minor was removed and placed at Polinsky Children's Center (Polinsky). Minor's behavior declined, making foster care placement difficult. Minor exhibited aggression, anger, defiance and was placed on informal probation for brandishing a knife.

At the hearing on the Agency's section 387 supplemental petition the court found a prima facie showing had been made that Minor was described by section 387 and the court ordered him detained at Polinsky. At the jurisdiction hearing the court made a true finding on the petition and ordered Minor placed in a "group home/short term residential therapeutic program."

In April 2017 Father filed a section 388 petition requesting that Minor be placed in his care. At the May 2017 hearing the court denied Father's section 388 petition without prejudice and encouraged Father to bring another petition for modification when the treating professionals were able to support Minor's discharge from the short-term residential program. Father timely appealed.

DISCUSSION

In his section 388 petition Father requested the juvenile court remove Minor from his group home and return Minor to his care. After reviewing the evidence, the juvenile court concluded that Father had demonstrated a prima facie showing of changed circumstances, but had failed to make a prima facie showing that placing Minor with him was in the child's best interests. Father contends the juvenile court erred in summarily denying his petition because the evidence demonstrated a complete change in his circumstances and that it was in Minor's best interests to remove Minor from the group home and place him with Father.

Section 388 allows the juvenile court to modify an order if a parent establishes, by a preponderance of the evidence, that changed circumstances exist and that 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 petitioner must plead facts sufficient for a prima facie showing that (1) the circumstances have changed since the prior juvenile court order, and (2) the proposed modification will be in the best interests of the child. (In re Daijah T. (2000) 83 Cal.App.4th 666, 672-673.) "f the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition." ([i]In re Zachary G., at p. 806.) "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. (2004) 123 Cal.App.4th 181, 189.) We review a summary denial of a hearing on a section 388 petition for abuse of discretion. (In re A.S. (2009) 180 Cal.App.4th 351, 358.)

Father attached to his section 388 petition certificates of completion for 52-week programs in domestic violence, parenting and anger management. He also presented a letter showing employment as a welding shop foreman. As the juvenile court found, and the Agency does not dispute, this evidence satisfied Father's prime facie showing of changed circumstances. However, to obtain an evidentiary hearing Father also needed to make a prima facie showing that removing Minor from his group home and placing him with Father would be in Minor's best interests. (In re G.B. (2014) 227 Cal.App.4th 1147, 1157 [parent seeking a modification under section 388 must show "both a change in circumstances or new evidence and the promotion of the child's best interests."].) On the best interests prong, Father claims he made the requisite showing because Minor had spent the majority of his life in Father's care and they shared a strong bond as evidenced by Minor's consistent requests throughout the case to be placed with Father.

We agree that Minor had spent the majority of his life in Father's care and that Minor requested throughout the case to see Father. In summarily denying the section 388 petition, the court noted that Minor had only been in his short-term residential treatment program for about a month and Father had produced no evidence showing Minor was ready to be discharged from the program. The juvenile court encouraged Father to work with the residential treatment program to develop a discharge plan for Minor.

While with the paternal grandfather Minor showed "aggression, anger, defiance, impulsivity and inability to self regulate." When placed with a nonrelative caregiver, Minor refused to follow rules and threatened to make sexual abuse allegations regarding his caregivers and run away to be with Father. Minor was placed at Polinsky where he got into a physical altercation with another resident and exhibited aggressive and defiant behavior. Based on these issues, the Agency recommended a higher level of care and placed Minor in a short-term residential treatment program. At the time of the hearing on Father's section 388 petition, Minor had been in the program for about a month and there was no evidence in the record showing how Minor was doing in the program or whether he was ready to be discharged from the program.

Based on the record, the juvenile court reasonably found that, at this juncture, a prima facie showing had not been made that granting the section 388 petition would promote Minor's best interests. We have no authority to substitute our decision for that of the juvenile court. (In re J.C. (2014) 226 Cal.App.4th 503, 526.) Under the circumstances, the court's denial of a full evidentiary hearing on Father's section 388 petition, after determining he had not made the required prima facie showing, was not an abuse of discretion, nor did it result in a denial of his due process rights. (In re Jackson W. (2010) 184 Cal.App.4th 247, 260 [if petition fails to make the required prima facie showing, summary denial of the petition without a hearing does not violate the petitioner's due process rights].)

DISPOSITION

The juvenile court's order is affirmed.

NARES, J.

WE CONCUR:

BENKE, Acting P. J.

O'ROURKE, J.