In re B.R.

Filed 4/12/07 In re B.R. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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P.R. (appellant), the mother of B.R. (the minor), appeals from an order of the juvenile court denying appellants petition for modification. (Welf. & Inst. Code, 388, 395; further unspecified section references are to this code.) Appellant contends the juvenile court committed reversible error in denying her petition for modification, which sought a bonding study, without conducting an evidentiary hearing. We affirm the order.

Facts and Proceedings

In November 2005, the juvenile court assumed jurisdiction over the minor based on a finding that appellant was unable to provide regular care for the minor as a result of appellants mental illness. According to the court, the minor also was at a substantial risk of suffering serious physical harm because appellants home posed various dangers to the minor. The court ordered the minor removed from appellants custody.

On August 15, 2006, this court affirmed the juvenile courts dispositional order in In re B.R. (C051395). We take judicial notice of that opinion. (Evid. Code, 451, subd. (a).)

On August 30, 2006, appellant filed a petition for modification, requesting the juvenile court to order preparation of an attachment assessment between appellant and the minor. According to that petition, appellants visitation with the minor had been reduced from two hours a week to one hour a week. Appellant alleged that the decrease in visitation was detrimental to the minor.

Appellant averred that she and the minor enjoyed a positive relationship. In support of her petition, appellant attached several documents pertaining to visits she had attended with the minor. One of those documents noted appellant and the minor had a good relationship. Moreover, it stated that the minor seemed to enjoy the time she spent with appellant.

On August 31, 2006, the juvenile court denied appellants petition for modification without a hearing. The court found the facts stated in the petition did not support what appellant requested. The court also concluded the petition failed to show how appellants request for a bonding assessment would be in the best interest of the minor.

Discussion

Appellant contends the juvenile court committed reversible error in denying her petition for modification. According to appellant, the court should have ordered a bonding study in response to the petition, or at the very least, held a hearing on the petition to determine the extent of harm being suffered by [the minor] following the reduction in visitation with [appellant]. According to appellant, she satisfied one of the statutory prerequisites by demonstrating new evidence in the form of the reduced visitation hours and resulting detrimental effect on the minor. Moreover, appellant argues, a bonding study would be in the best interest of the minor because the court and parties could accurately comprehend the harm being done to [the minor] by the reduction in time spent with [appellant].

A parent may bring a petition for modification of any order of the juvenile court pursuant to section 388 based on new evidence or a showing of changed circumstances.

Section 388 provides, in part: Any parent . . . 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 . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. [] . . . [] (c) If it appears that the best interests of the child may be promoted by the proposed change of order, recognition of a sibling relationship, or termination of jurisdiction, the court shall order that a hearing be held . . . .

The parent requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is preponderance of the evidence. [Citation.] (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Determination of a petition to modify is committed to the sound discretion of the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) The best interests of the child are of paramount consideration when the petition is brought after termination of reunification services. (In re Stephanie M., supra, at p. 317.) In assessing the best interests of the child, the juvenile court looks not to the parents interests in reunification but to the needs of the child for permanence and stability. (Ibid.; In re Marilyn H. (1993) 5 Cal.4th 295, 309.)

The court may consider (1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.)

To establish the right to an evidentiary hearing, the petition must include facts that make a prima facie showing of a change in circumstances and that the best interests of the child may be promoted by the proposed change in order. (In re Daijah T. (2000) 83 Cal.App.4th 666, 672; In re Zachary G. (1999) 77 Cal.App.4th 799, 806; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414; Cal. Rules of Court, formerly rule 1432(b).) More than general conclusory allegations are required to make this showing even when the petition is liberally construed. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) The prima facie requirement is not met unless the facts alleged, if supported by evidence . . . would sustain a favorable decision on the petition. (In re Zachary G.,supra, at p. 806.)

In this case, the minors needs . . . for permanence and stability (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319) required a demonstration that appellant had made significant changes in her circumstances and would be able at some point in the near future to resume custody of the minor. Alternatively, appellant was required to show that the proposed modification might serve the best interests of the minor. The record demonstrates neither circumstance.

Here, putting aside the fact that appellants petition did not seek, as section 388 requires, modification of a court order, the only new evidence or changed circumstances she alleged was her reduced visitation with the minor. Although she averred a belief that the decrease in visitation was detrimental to the minor, she provided no evidence for that assertion, nor could detriment be inferred merely from the existence of a good relationship with the minor.

Appellants petition failed to articulate how a bonding study would promote the minors best interests. In her reply brief, appellant states only that a bonding study could assist the juvenile court in understanding the harm being done to [the minor] by the reduction in time she spent with [appellant]. But, as noted by the Department of Health and Human Services, appellant failed to establish any connection between her unsupported allegation of detriment to the minor and preparation of a bonding study.

Citing the lack of factual support for a bonding study and failure to show how the best interests of the minor would be promoted, the juvenile court denied appellants request for a bonding study. The record supports the courts determination. It is difficult to discern how a bonding study would have led to an outcome favorable to appellant, especially where, as here, the record already contained evidence that appellant and the minor enjoyed a bond. In any event, appellant has not asserted she wished to have her visitation with the minor modified further. There was no abuse of discretion. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1341.)

Disposition

The order of the juvenile court denying appellants petition for modification is affirmed.

HULL, J.

We concur:

SCOTLAND, P.J.

BUTZ , J.

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