In re Eric R.

Filed 8/3/07 In re Eric R. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from orders of the Superior Court of Los Angeles County, Debra Losnick, Commissioner. Affirmed.

Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant Socorro R.

Aida Aslanian, under appointment by the Court of Appeal for Defendant and Appellant Christina B.

Raymond G. Fortner, Jr., County Counsel and Frank J. DaVanzo, Principal Deputy County Counsel for Plaintiff and Respondent.

___________________________

Father Socorro R. and maternal grandmother Christina B. appeal from orders of the juvenile court denying their respective petitions for modification pursuant to Welfare and Institutions Code section 388.[1] We shall affirm the orders.

FACTUAL AND PROCEDURAL SUMMARY

In May 2004, two-year-old Eric was detained from the home of his maternal grandparents because police found methamphetamine and drug paraphernalia accessible to the children. The Department of Children and Family Services filed a juvenile dependency petition pursuant to section 300. There are two companion cases involving other families.

At the detention hearing, the court denied each parents request for custody, citing substantial risk to the emotional or physical health and safety of the child. Father had a criminal record including convictions on weapons charges and for possession of controlled substances. Mother had a history of drug use. In December 2004, Eric was placed with his maternal great-aunt Yolanda.

The court ordered both parents to complete parent education classes and attend counseling. Father was ordered to complete 10 random, consecutive drug tests with a requirement that, if he missed any tests, he would have to complete a drug rehabilitation program and counseling. In March 2005, father was convicted and incarcerated for manufacturing, selling, or possessing a dangerous weapon. He completed 10 drug tests with his parole officer during the first six months after his release in June 2005. He has not drug tested since. Father failed to comply with the court-ordered counseling programs, attending only four of 12 parenting classes.

In June 2005, the court terminated reunification services for the parents and appointed Yolanda legal guardian. The maternal grandparents were granted weekly unmonitored visitation. Yolanda became concerned about unmonitored visitation with maternal grandmother. On one occasion, maternal grandmother appeared to be under the influence when she picked up Eric, and the other children in the car were not wearing seatbelts. Later that year, the court ruled that as legal guardian, Yolanda could determine whether visits would be monitored.

In March 2006, father and maternal grandmother each filed a section 388 petition. Father asked that Eric be placed with him and that he receive six months of reunification services; maternal grandmother asked for weekly unmonitored visitation. After a hearing, both petitions were denied. Father and maternal grandmother appeal from these orders.

DISCUSSION

I

Father claims the court abused its discretion by refusing to return Eric to his care and denying additional reunification services, as requested in his section 388 petition.

Section 388 provides: Any parent or other person having an interest in a child who is a dependant child of the juvenile court . . . 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 dependant 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.

To prevail on a section 388 petition, a parent must prove by a preponderance of the evidence: (1) changed circumstances and (2) that the proposed change would promote the best interests of the child. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) A ruling on a petition filed under section 388 is committed to the sound discretion of the juvenile court, and the trial courts ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. [Citations.] . . . [Citations.] [T]he appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319, quoting Walker v. Superior Court (1991) 53 Cal.3d 257, 272.) We find no abuse of discretion in this case.

Fathers petition sought placement of Eric with him, or in the alternative, additional reunification services so that he could work to regain custody. Father stated he was currently employed; he drug tested regularly throughout his parole; and he had completed a parenting class. Additionally, he claimed that Eric had bonded with him and on occasion, had asked to live with him.

Father was unable to establish changed circumstances. The court had ordered 10 random drug tests; the parole officers drug testing was not random. Although father had drug tested regularly for the first six months of his parole, he had not drug tested within the past six months because he was no longer meeting his parole officer in person. Additionally, he only attended four of 12 parent education classes which were part of the original court orders. Fathers visits with his son were always facilitated by the guardian; he had not taken the initiative to visit with his son since the last court hearing a few weeks earlier.

Father also was unable to establish that modifying the previous order would be in Erics best interest. Eric was thriving in the care of his guardian and wanted to continue living with her. Father admitted he was uncertain as to whether Eric would be better off in his care. Eric told the social worker that his fathers home was a little bit dirty, and that his father bought food rather than cooking. Father had been in and out of jail throughout the first four years of Erics life. Father had never cared for his son on a day-to-day basis. Eric told the social worker that he wanted to continue visiting his father but did not want to live with him.

On this record, we can find no abuse of discretion in the courts conclusion that it was not in Erics best interests to be placed with his father.

II

Maternal grandmother contends the court abused its discretion in denying her a hearing on her section 388 petition. Although section 388 provides that a party with an interest in a dependant child may petition the juvenile court for a hearing, the court is entitled to summarily deny the petition if it fails to make a prima facie showing of change of circumstances or new evidence that suggests the proposed change of order would promote the best interest of the child. (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 323.) In denying maternal grandmothers hearing, the juvenile court held: There certainly is no change of circumstances. In fact, it appears to be actually the other way around as far as not being positive but going negative, and there is no showing at all in the 388 or the report from the Department that this would be in the best interest of the child.

Maternal grandmother argues that her section 388 petition was brought to enforce an existing order that her visits be unmonitored. Although her visits had been unmonitored through September 2005, the guardian became concerned that maternal grandmother was under the influence and was opposed to unmonitored visitation. In October 2005, when the court granted legal guardianship to Yolanda, the court stated: If the guardian feels that anyone elses visits need to be monitored, they certainly have the right to do so.

Maternal grandmother is unable to establish either change of circumstances or that it would be in the childs best interest to modify the prior order. In June 2006, the social worker obtained an incidents report on the maternal grandparents residence stating there was ongoing criminal and drug activity within the last year. Some of the incidents involved children living in the home. Eric told the social worker that he did not want to visit his maternal grandmother because she used abusive language in addressing him. The legal guardian was appropriately concerned that Eric would be exposed to a negative environment. The court did not abuse its discretion in denying maternal grandmothers section 388 petition for unmonitored visitation.

DISPOSITION

The orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

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[1] All statutory references are to this code unless otherwise indicated.