Filed 8/15/17 In re C.S. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

MEMORANDUM OPINION[1]

C.S. (minor) is the child of appellant Daniel S. (father) and Delia F. (mother). In August 2015, the minor, who was then three years old, was found crying alone in a vehicle with hundreds of pills within his reach while his parents slept in a U-Haul parked next to the vehicle. The parents were arrested for child endangerment.

In September 2015, the juvenile court sustained a petition filed by respondent Alameda County Social Services Agency (Agency), and declared the minor a dependent child under Welfare and Institutions Code section 300, subdivisions (b) and (g).[2] The minor was removed from the custody of the parents, who had substance abuse issues, and was placed in the care of the maternal grandfather. The court approved a reunification plan that called for the parents to participate in substance abuse services, counseling and parenting classes.

The parents did not avail themselves of the services offered and the minor was not returned to their custody at the six-month review hearing in February 2016. The court found that mother had made “minimal” progress toward alleviating or mitigating the causes necessitating an out-of-home placement, whereas father had made “none.” Services were continued, with the trial court stating this was the “last chance that the parents are going to have to show that they deserve consideration to get the child back.”

Neither parent appeared at the twelve-month review hearing held in July 2016, at which the court terminated reunification services and set the case for a hearing under section 366.26. The report prepared by Agency indicated the parents were currently transient and had failed to participate in their case plan or address their substance abuse issues. Father had spent part of the reunification period in jail, and had only visited with the minor infrequently since being released in April 2016.

Agency prepared a report for the section 366.26 hearing recommending that parental rights be terminated and the minor be freed for adoption. The report noted that father was incarcerated, had not demonstrated an ability to safely care for the minor, and had not been consistent in visiting the minor. The minor was doing well in the home of the maternal grandfather, who was planning to adopt him.

On January 9, 2017, father filed a section 388 petition on Judicial Council form JV-180, asking the court to modify the prior order terminating reunification services and setting the case for a hearing under section 366.26. The form stated that circumstances had changed because “[t]he father is no longer in custody. He has entered Solidarity residential drug program. He has been there since December 12, 2016. He attends nightly 12-step programs, relapse prevention classes, Spirituality programs, and submits to random alcohol and drug testing. Additionally, when he was incarcerated in Santa Clara County, he participated in parenting classes, drug abuse counseling, and domestic violence for as long as his status allowed him to attend. . . . When he was out of custo[dy] he regularly visited the minor and the visits went well. . . . The father has enrolled in parenting at Terra Firma and is scheduled to begin on Jan. 12, 2017.” The petition also stated the proposed order would be better for the child because the minor “has a relationship with his father and mother. Further services will strengthen that relationship and provide for safety to the minor. If the father and mother were to end up caring for the child together both would need additional services. The ultimate goal in dependency proceedings is to reunify a child with his or her parents. The race to permanenc[y] is not really an issue in this case. The child is with a relative and will not be moving from foster home to foster home. Further services can only help in this matter.” Mother filed a section 388 petition on similar grounds.

On January 12, 2017, at the time of the hearing under section 366.26, both parents’ counsel requested that the court hold an evidentiary hearing on their section 388 petitions. Agency and the minor’s counsel were opposed. The court denied the request for an evidentiary hearing and denied the petitions after finding no prima facie showing that circumstances had changed or that it would be in the best interests of the minor to extend the reunification period. After holding a contested section 366.26 hearing, at which both parents testified about their relationship with the minor, the court terminated their parental rights. Father appeals.

“Under section 388, a parent may petition to change or set aside a prior order ‘upon grounds of change of circumstance or new evidence.’ [Citations.] The juvenile court shall order a hearing where ‘it appears that the best interests of the child . . . may be promoted . . .’ by the new order. [Citation.] Thus, the parent must sufficiently allege both a change in circumstances or new evidence and the promotion of the child’s best interests.” (In re G.B. (2014) 227 Cal.App.4th 1147, 1157, fn. omitted, italics omitted.) Unless the moving party makes a prima facie showing of both elements, the petition may be denied without an evidentiary hearing. (In re Marcelo B. (2012) 209 Cal.App.4th 635, 642.) We review the summary denial of a section 388 petition for abuse of discretion, and “will not disturb the decision of the trial court unless the trial court exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination.” (In re A.S. (2009) 180 Cal.App.4th 351, 358.)

The trial court did not abuse its discretion in denying father’s petition without a hearing. The petition demonstrated, at most, that father had begun an eleventh-hour effort to address his substance abuse issues and start changing his life. (See In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) As explained in In re Casey D. (1999) 70 Cal.App.4th 38, 47, “[a] petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child’s best interests.” A hearing is not required when the petition alleges facts showing only that circumstances are changing. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1072.)

The trial court reasonably found that an extension of the reunification period would not be in the minor’s best interests. “Children need stability and permanence in their lives, not protracted legal proceedings that prolong uncertainty for them.” (In re Justice P. (2004) 123 Cal.App.4th 181, 191.) Moreover, “[t]he presumption favoring natural parents by itself does not satisfy the best interests prong of section 388.” (Id. at p. 192.) Father’s nascent sobriety, while commendable, was too tenuous to outweigh the minor’s interest in a stable home with loving and responsible caregivers. The court did not abuse its discretion in so concluding.

The judgment is affirmed.

NEEDHAM, J.

We concur.

JONES, P.J.

BRUINIERS, J.