In re TaliaU.

Filed 8/9/07 In re Talia U. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Peter E. Riddle, Judge. Affirmed.

Alyssa T. appeals a juvenile court order summarily denying her Welfare and Institutions Code^[1]section 388 modification petition seeking reinstatement of visits with her minor children, Talia U., Fabian U., Jr., Hali U., and Kirk U. (the minors). We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2005, the San Diego County Health and Human Services Agency (Agency) filed petitions in the juvenile court on behalf of then 12-year-old Talia, 11-year-old Fabian, Jr. (Fabian Jr.), nine-year-old Hali, and seven-year-old Kirkland (Kirk), under sections 300, subdivisions (d) and (j). The petitions alleged Talia and Hali had been sexually abused by their father, Fabian, Sr. (Father).^[2] Fabian Jr. and Kirk were also at risk of suffering sexual abuse at the hands of Father. The Agency reported an extensive history of involvement with child protective services. The referrals detailed instances of neglect and several allegations of sexual abuse. Alyssa lived with the minors until her divorce from Father in 1998, seven years before the current allegations arose. Following the divorce, Alyssa's whereabouts became unknown.

The court detained the minors and ordered that they be placed with their maternal grandmother (Grandmother). While in Grandmother's care, the minors began counseling to address the emotional trauma they suffered as a result of the abuse.

During the next six months, the Agency social workers located Alyssa living with her new husband in Arizona. Alyssa had a total of eight children, including the four minors subject to the instant dependency. She had abandoned seven of her children and currently was living with her eighth child. Alyssa admitted she had not seen the minors for three years but hoped to regain custody of them. The social worker sent Alyssa notice of the ongoing dependency proceedings. However, after three months, Alyssa had made no contact with the Agency.

The minors remained in the care and custody of Grandmother, and the placement appeared to be providing them with a healthy and nurturing home. They continued to suffer from emotional problems, but regularly participated in trauma therapy and had started to make progress. The minors indicated they wanted to remain in Grandmother's care. In therapy, Talia and Fabian Jr. disclosed being molested by Father and by Alyssa's second husband. The minors told social workers they did not want to see Alyssa or Father because they had done "mean things" to them and they wanted to "forget the pain." The minors' therapist agreed contact was not appropriate at this time.

On March 16, 2007, at the six-month review hearing, Alyssa requested services. The court noted the need for caution and to "ease into" any visits. Alyssa was instructed to contact the Agency concerning visitation and services. The court continued proceedings for an additional six months. By the 12-month review hearing, however, Alyssa had made no effort to initiate contact with the Agency or the minors. The court terminated reunification services and set a section 366.26 hearing.

Alyssa filed a section 388 petition for modification, seeking to have the court allow her visitation and conjoint therapy with the minors. Alyssa alleged as changed circumstances that she was in the area with a sibling, was pregnant with another child, and was sober. Alyssa asserted it would be in the minors' best interests to have visits with her because they would benefit from knowing their biological family and receiving love and support from her as their parent.

In an addendum report, the minors indicated they did not want to see Alyssa. The minors' therapists believed the progress made by the minors thus far in therapy would be thwarted were the minors forced to see Alyssa. The court addressed the section 388 petition in February 2007. After considering Alyssa's contentions, the court summarily denied the petition. It found the petition did not meet the prima facie requirements and there was no evidence in the petition showing it would be in the minors' best interests to see Alyssa at this time. Alyssa timely filed a notice of appeal.

DISCUSSION

Alyssa contends the court erred by summarily denying her section 388 modification petition seeking visitation and conjoint therapy with the minors. She asserts she made a prima facie showing her circumstances had changed and the proposed modification was in the minors' best interests because they would benefit from having contact with their biological family.

A. Section 388 Modification Petition

Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there is a change of circumstances or new evidence, and (2) the proposed modification is in the child's best interests. ( 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Amber M. (2002) 103 Cal.App.4th 681, 685.)

The petition must be liberally construed in favor of its sufficiency. (Cal. Rules of Court, rule 5.570(a); In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (Marilyn H., at p. 310.) " '[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.' [Citation.]" (Jasmon O., supra, 8 Cal.4th at p. 415; see also In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.) However, if the liberally construed allegations of the petition do not make a prima facie showing that the relief sought would promote the best interests of the child, the court may deny the petition without an evidentiary hearing. (In re Justice P. (2004) 123 Cal.App.4th 181, 189; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 322-323.) "The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)

B. Alyssa Did Not Show Changed Circumstances or

That the Proposed Modification Was in the Minors' Best Interests

Here, the liberally construed allegations of Alyssa's petition do not establish a prima facie showing that her circumstances had changed. (Cf. In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416.) As changed circumstances, Alyssa alleged she recently remarried, was parenting her eighth child, and was pregnant. However, these factors do not indicate significant changes had taken place that would warrant Alyssa having further contact with the minors. The record shows Alyssa left the minors in Father's care and her whereabouts were unknown for several years. After the social workers located Alyssa, she showed little interest in the minors' circumstances. During the nine months prior to filing her section 388 petition, Alyssa failed to contact social workers, visit the minors or participate in the dependency proceedings. Alyssa did not make a strong effort to reunite with the minors when she was provided the opportunity to do so. The absence of any showing of a change in circumstances does not require the court to hold a hearing on Alyssa's section 388 petition. (See In re Angel B. (2002) 97 Cal.App.4th 454, 465.)

Even if Alyssa had shown changed circumstances, she did not show it was in the minors' best interests to resume contact with her based on their biological connection. At the time of the hearing on Alyssa's modification petition, the focus of the proceedings had shifted from family preservation to providing the minors with a safe, stable and permanent home. (Marilyn H., supra, 5 Cal.4th at p. 309.) The problems leading to these dependency proceedings were serious. Alyssa abandoned the minors and left them with Father, who committed acts of sexual abuse against Talia and Hali. Once reunited with the minors, Alyssa did not take interest in the ongoing proceedings or make efforts to contact them. The minors stated they did not want to see Alyssa. Hali became distressed at the thought of seeing Alyssa. Fabian Jr. and Talia wanted no contact with her, and their therapist agreed contact would be detrimental. The minors needed to feel safe at this point in the dependency. They were making progress in therapy and felt secure in Grandmother's care. Any delay in ensuring the minors the stability they deserved was not in their best interests.

Because the facts alleged in Alyssa's section 388 petition would not have sustained a favorable decision on the modification petition, Alyssa was not entitled to an evidentiary hearing. (Zachary G., supra, 77 Cal.App.4th at p. 808; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)

DISPOSITION

The order is affirmed.

IRION, J.

WE CONCUR:

O'ROURKE, Acting P. J.

AARON, J.

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^[1] All statutory references are to the Welfare and Institutions Code.

^[2] Fabian Sr. is not a party to this appeal.