In re M.F.

Filed 10/24/06 In re M.F. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County. Steven Berman, Juvenile Court Referee. Affirmed.

Anna L. Ollinger, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, Liana Serobian, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for Minor.

* * * * * *

Defendant and appellant Allen F. (Father) appeals from the summary denial of his petition filed pursuant to Welfare and Institutions Code section 388,^[1] requesting modification of the juvenile court’s visitation order concerning 14-year-old minor M. F. He contends that the juvenile court abused its discretion in declining to order a hearing on his section 388 petition which sought to change the prior order for monitored visitation in a therapeutic setting to mandatory weekly and unmonitored visitation outside a therapeutic setting.

We affirm. Father failed to make a prima facie showing that a change of order would be in M. F.’s best interests.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

On June 6, 2005, as part of the disposition order, the juvenile court placed M. F. with her mother and ordered monitored visitation with Father in a therapeutic setting.

On June 25, 2005, John F. Leonard, M.D., submitted his Evidence Code section 730 evaluation of Father. Dr. Leonard recommended that psychological testing of Father be performed to determine “[e]valuation, prognosis, diagnosis, need of medication and whether father [is] likely to emotionally or physically abuse minor.” With respect to Father’s reunification with M. F., Dr. Leonard stated that she should be consulted regarding her preferences, and opined that reunification with the foregoing services may be appropriate if M. F. decided that she wanted to live with Father.

Subsequently, the Los Angeles County Department of Children and Family Services (Department) prepared a status review report for a December 5, 2005 review hearing. According to the report, M. F. had successfully transitioned to living with her mother and appeared happy as indicated by her own statements and the social worker’s observations. M. F. had received six months of individual therapy and had participated in two conjoint therapy sessions with her mother. Her therapist opined that M. F. was doing well in her mother’s care. During the months preceding the report, M. F. had continually stated to the social worker that she did not feel ready to see Father. M. F.’s therapist also stated that M. F. had told her that she did not want to have any contact with Father or her stepmother because she did not trust them. She did express some interest, however, in occasionally seeing her younger brother who resided with Father. M. F. and Father had not visited following the disposition order.

With respect to Father, the report indicated that he had successfully completed parenting education classes, had fully complied with the individual counseling order and had participated in additional individualized therapy. Father’s therapist reported that Father “is very committed to continue psychotherapy individually and hope[s] to have conjoint and family therapy in [a] future date with his daughter and the rest of his family.” Though Father alleged that M. F. had resumed cutting herself while in her mother’s care, the Department concluded that the allegations were unfounded. It recommended that the juvenile court terminate jurisdiction with a family law order giving mother full legal and physical custody of M. F.

The juvenile court declined to terminate jurisdiction. It found that continued jurisdiction was necessary and that returning M. F. to Father’s custody created a substantial risk of detriment to M. F.’s physical and emotional well-being, and ordered that reunification services be continued for six more months. It kept the prior visitation order in full force and effect. M. F.’s counsel stated that M. F. was willing to visit with Father if her therapist served as the monitor, and the juvenile court directed Father to contact the therapist to arrange visitation. Father indicated that he intended to file a section 388 petition.

On December 22, 2005, Father filed a section 388 petition seeking “unmonitored visits with my daughter . . . at least once a week for 4 hours or in alternative weekends with one day with my family outside [a] therapeutic setting . . . .” As evidence of changed circumstances, he cited his compliance with court orders. He further stated that a change of order would be in M. F.’s best interests because she had expressed interest in visiting the family--particularly her younger brother--but the court had not permitted visitation.

On January 5, 2006, the juvenile court considered and denied the section 388 petition without a hearing, ruling that M. F.’s best interests would not be promoted by the proposed change of order. Father thereafter filed a notice of appeal and two additional amended notices of appeal challenging the summary denial of his petition.^[3]

DISCUSSION

Father contends that he was entitled to an evidentiary hearing on his section 388 petition. We review the trial court’s summary denial of a section 388 petition for an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-318; In re Angel B. (2002) 97 Cal.App.4th 454, 460.) “We must uphold the juvenile court’s denial of appellant’s 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.]’” (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) Because Father failed to meet his burden to demonstrate that his section 388 petition warranted a hearing, we find no abuse of discretion.

In re Anthony W. (2001) 87 Cal.App.4th 246, 250, described what must be shown to warrant a hearing on a section 388 petition: “The parent seeking modification must ‘make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]’ (In re Marilyn H. (1993) 5 Cal.4th 295, 310; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1412-1414.) There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) If 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 Zachary G. (1999) 77 Cal.App.4th 799, 806.)“

Father’s section 388 petition satisfied the first prong of the requisite prima facie showing, as it established that he had completed significant elements of his court-ordered reunification plan and was making progress with respect to the remaining elements. (See In re Aljamie D. (2000) 84 Cal.App.4th 424, 432 [completion of educational programs and parenting classes, clean random drug tests for two years and consistent positive visits with children constituted prima facie evidence of changed circumstances]; In re Daijah T. (2000) 83 Cal.App.4th 666, 673 [completion of reunification plan constituted prima facie evidence of changed circumstances].)

His petition fell short because it failed to demonstrate the second aspect of the prima facie showing--that the proposed change of order would be in M. F.’s best interests. “[S]ection 388 makes clear that the hearing is only to be held if it appears that the best interests of the child may be promoted by the proposed change of order, which necessarily contemplates that a court need not order a hearing if this element is absent from the showing made by the petition.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 807, fn. omitted; see also In re Kimberly F. (1997) 56 Cal.App.4th 519, 529 [“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”].) Although the specific factors considered in determining what is in the best interests of the child may vary from case to case, “each child’s best interests would necessarily involve eliminating the specific factors which required placement outside the parent’s home.” (In re Heather P. (1989) 209 Cal.App.3d 886, 892.)

Relevant to M. F.’s best interests, the petition alleged: “[M]y daughter is older sister of my son and she is showing interests to visit my family[.] [S]he called me and she e-mailed us several notes she wants to see us but court did not let the father.” This allegation failed to make a prima facie showing that mandatory, unmonitored visitation would be in M. F.’s best interests. It did not address the elimination of any of the factors--specifically, the section 300 petition’s sustained allegations of physical and emotional abuse--which had led to the current order for monitored visitation in a therapeutic setting. Although Father’s section 388 petition established that he was complying with his reunification plan, there was no indication that his incremental progress warranted the proposed change of order. Neither therapist who was working with Father recommended unmonitored visitation. Rather, one therapist wrote that Father was progressing toward the goal of conjoint therapy with M. F. and the rest of the family. Likewise, M. F.’s therapist recommended conjoint therapy when appropriate. And although M. F. had not previously wanted to visit with Father under any conditions, at the last hearing before Father filed his section 388 petition she indicated that she would be willing to have visits monitored by her therapist.

Under these circumstances, the juvenile court acted within its discretion in determining that Father failed to make a prima facie showing that modifying the visitation order from monitored visits in a therapeutic setting to unmonitored visits would promote M. F.’s best interests. (See In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451 [summary denial of a section 388 petition affirmed where the juvenile court contrasted the history of the case with the changes of circumstances alleged in the petition and concluded that a change of order would not promote the minor’s best interests].) Moreover, M. F’s desire to visit with her younger brother could be satisfied by means other than modifying the current visitation order, as the brother could participate in monitored family visitation. In sum, we find no basis to disturb the juvenile court’s exercise of discretion.

DISPOSITION

The order denying Father’s section 388 petition is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

DOI TODD

We concur:

____________________________, P. J.

BOREN

____________________________, J.

ASHMANN-GERST

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^[1] Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.

^[2] In our prior unpublished opinion in In re M. F. (DCFS v. Allen F.), 2d Civil No. B184862, filed on February 28, 2006, we fully set forth the factual and procedural history of the case, and we need not repeat it here.

^[3] We reject the Department’s contention that the notices of appeal were untimely because Father erroneously appealed from a January 3, 2006 order denying his petition and never appealed from the correct January 5, 2006 order. Because there is no indication that the Department was misled by the incorrect date, we deem the typographical error harmless and correctible on appeal. (Cal. Const., art. VI, § 13; see also People v. Curley (1970) 12 Cal.App.3d 732, 734, fn. 1.)