Jesus G. v. Super. Ct.
Filed 5/7/08 Jesus G. v. Super. Ct. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
JESUS G., Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Real Party in Interest. | E045186 (Super.Ct.No. RIJ112872) OPINION |
ORIGINAL PROCEEDINGS; petition for writ of mandate. Robert Padia, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Petition denied in part; granted in part with directions.
Patricia Nance for Petitioner.
No appearance for Respondent.
Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Real Party in Interest.
INTRODUCTION
This petition involves the trial courts summary denial of petitioners request that it change a previous order or orders. (Welf. & Inst. Code, 388.)[1] Mother is not involved in the petition; fathers identity only became known after the trial court had set a hearing pursuant to section 366.26. The factual and procedural history of the case is otherwise not relevant to the issue before us.
STATEMENT OF FACTS
Jesse L. (the child) was born in September 2006 and was taken into protective custody shortly thereafter as both he and mother tested positive for amphetamine. In November 2007, mother informed the social worker handling the case that Jesus G. (father) might be the childs father.[2] On January 25, 2008, the social worker received results indicating that petitioner was in fact the childs father. Nevertheless, on January 28, 2008, the social worker filed a report for the selection and implementation hearing recommending that the parental rights of both mother and father be terminated. At that time, the child had been in foster care/adoption placement for almost six months and was thriving. Although the report indicated that father had expressed interest in obtaining
custody of the child, the social worker did not consider this a realistic option for the child because father was currently incarcerated. However, documents submitted with the report reflected that father had called the social worker on January 22, 2008, stating that he expected to be out on bail in March and offering to take full custody of the child. He also provided the name and number of his sister as a potential temporary custodian for the child and said, She [mother] should have told me earlier. If hes my responsibility I want to raise him. I would have loved to be there for him.
On February 5, 2008, fathers mother and sister filed a petition for appointment of guardian of minor. The paternal grandmother indicated that she had been a foster parent in Los Angeles County and had sisters who had also served as foster parents; she also expressed willingness to adopt the child.
Through counsel, father himself submitted a Request to Change Court Order on February 12, 2008, in which he sought to vacate the jurisdictional findings and to obtain reunification services, among other relief. The request set out the basic facts that he had just been identified as the father, that he expected to be released from custody soon, that he was willing to assume custody of the child, and that he had an extended biological family, members of which were willing to assist.
This request was summarily denied by the trial court on February 15, 2008. Three boxes were checked as containing grounds for the denial: The facts do not support what is requested, [t]he request does not state new evidence or a change of circumstances, and [t]he request does not show that it will be in the best interest of the child to change the order.[3] Father timely sought writ review of the order.
DISCUSSION
Section 388 allows a parent to, inter alia, ask the court to change, modify, or set aside any order previously made. The request must be based either upon grounds of change of circumstance or new evidence. ( 388, subd. (a).) If it appears that the best interests of the child may be promoted by the proposed change of order . . . the court shall order that a hearing be held. ( 388, subd. (c), italics added.)[4] The allegations in a parents request should be liberally construed in favor of granting a hearing to consider the parents request. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) A parent meets the requirement of stating a prima facie case if the facts alleged, if supported by credible evidence, would sustain a favorable decision on the petition. (In re Mary G. (2007) 151 Cal.App.4th 184, 205.) The summary denial of a petition under section 388 is only appropriate if the petition fails to state a change of circumstance or new evidence that even might require a change of order. (In re Angel B. (2002) 97 Cal.App.4th 454, 461.)
In our view, fathers section 388 request meets the statutory standards for a prima facie case. At the time the dependency petition was filed, and throughout virtually all of the subsequent proceedings, no father had been identified for the child and the case had necessarily proceeded on the assumption that if mother failed to reunify, the only viable option for the child would be adoption. The identification of the childs biological father, coupled with the stated readiness of that father and his extended family to provide a permanent home for the child clearly constitutes a changed circumstance and new evidence. Although the child is currently apparently thriving in a potential adoptive home, it can hardly be denied that his best interests may or might be served by giving father the opportunity to step up to the plate, as it were.
We stress that we do not determine whether a change in the existing orders would be in the childs best interests, and to the extent that the petition asks that we direct the trial court to grant substantive relief under the section 388 request, we deny it. It is for the trial court to exercise its discretion after hearing all the evidence that may be presented at a hearing. (See In re Aaliyah R. (2006) 136 Cal.App.4th 437, 447.) We only hold here that the trial court erred in finding that the petition did not state a prima facie case entitling father to an evidentiary hearing.
DISPOSITION
The petition for writ of mandate is granted in part and denied in part. The Superior Court of Riverside County is directed to vacate its summary denial of fathers request under section 388, and to enter a new order setting the matter for an evidentiary hearing. In all other respects the petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P. J.
KING
J.
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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
[2] Two other men suggested by mother had previously been excluded as the childs father.
[3] At that time, the selection and implementation hearing had been continued to April 8, 2008. The status of the matter is unclear and there is no reference to a ruling having been made in respondents letter brief dated April 21, 2008; a further continuance of the hearing seems probable.
[4] We note that the form order provides a box for denial, which reads, The request does not show that it will be in the best interest of the child to change the order. (Italics added.) But, as we have noted, this is not the standard.
