IN RE: L. L. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Vincent L. appeals from the order denying his Welfare and Institutions Code 1 section 388 petition in the dependency proceeding concerning his daughter L. We affirm.

Facts

When L. was born, in January 2010, her siblings were dependents of the court.   L. was detained, and on January 5 was released to her maternal grandparents, which was where her siblings lived.   A section 300 petition was filed on January 8, 2010.   This petition included allegations concerning a history of domestic violence between Father and Mother (who is not a party to this appeal), Mother's mental and emotional problems, and Father's alcohol abuse.

By way of background, in the older children's dependency, the petition was filed in December 2008 and was sustained on allegations concerning domestic violence between Father and Mother and on allegations concerning Father's alcohol abuse.   Reunification services were ordered, and Father at first made progress with his reunification plan.   By the time L. was born, he had completed his court-ordered classes.

However, in December of 2009, shortly before L. was born, he had a significant relapse to alcohol use, and was hospitalized for alcohol poisoning.   In interviews with DCFS right after L. was born, Mother said that Father was drinking frequently and had stopped attending his substance abuse meetings.   Father also told DCFS that he was drinking, but reported drinking only “a couple of beers,” and that the recent hospitalization did not involve alcohol.   Instead, he lost his balance and fell because he took too much Nyquil on an empty stomach.   Medical records showed alcohol abuse.

When L. was born, Mother and Father were living together, though in the earlier case, Father frequently said that he and Mother were separating.   DCFS expressed concern that when Father and Mother lived together, violence ensued.   In the months after L. was born, DCFS learned, from Father, of angry incidents between Father and Mother in January 2010.   In one, Mother threw a book at Father, and in another, Mother pushed Father and threw a phone, and Father grabbed Mother.   Mother's therapist reported that Mother believed that Father was the aggressor in “verbal assault.”

In this dependency and the earlier one, Father visited the children.   In February 2010, DCFS reported that he was appropriate and nurturing.   In March, DCFS wrote that Father “is able to care for all children at one time as he is aware of children's needs and is able to effectively multitask.”

The section 300 petition concerning L. was sustained on March 22, 2010, under section 300, subdivision (b), on allegations concerning Mother's mental and emotional problems, Father's history of alcohol abuse (including the December 2009 incident), and the history of domestic violence.   Reunification services were ordered, including, for Father, individual counseling, alcohol counseling, and random testing for alcohol use.

Father had many negative alcohol tests, but tested positive in April, told DCFS that he drank on Father's Day because he was feeling down, and was arrested for disorderly conduct-intoxication in May. Father and Mother continued to live together, and each reported incidents of violence, with each naming the other as the aggressor.

As to the older children, Father's parental rights were terminated in February 2011.

In May, Father enrolled in an outpatient alcohol program and in November, his counselor reported very favorably on his progress which included negative tests, many AA meetings, and individual counseling.

DCFS also reported that Father visited the children regularly, in monitored visits.   Our record includes a Delivered Service Log which details Father's many visits between L.'s detention and September 2010.   The monitor's notes are almost uniformly positive.   Father played with and cared for his children.

By April, the maternal grandparents had been identified as the potential adoptive parents for L., and were in the process of adopting her siblings.

The Delivered Service Log of visits between November 2010 and April 2011 recounts positive visits.   However, Father's visits had become sporadic, with many cancelled visits in February and March.   DCFS reported that the quality of L.'s interaction with both parents was “minimal,” and wrote that it was difficult for either parent to give L. much one-on-one attention, because the visits were with all the children.   As to L.'s home with her grandparents, DCFS reported that the grandparents were bonded to L. and had provided a nurturing environment for her.

The section 388 petition at issue here was filed on April 19, 2011.   Father asked for a home of parent order or continued family reunification services.   He attached proof of completion of a drug and alcohol program, parenting classes, and many AA meetings, and proof of clean tests.   He wrote that he was living apart from Mother, had a home for L. and a good support system, and wrote of his many positive visits.

The petition was denied without a hearing, on a finding that “the best interest of the minor would not be promoted by the proposed change in order.”

The section 366.26 hearing was held on May 16, 2011.   The court rejected Father's argument that the “continuing relationship” exception to adoption (§ 366.26, subd. (c)(1)(A)) applied, and noted that through adoption by the grandparents, “[t]his child will grow up with the siblings, the only parents she's ever known as parents.”   The court then terminated parental rights.

Discussion

The applicable law is well established.   In order to trigger a right to a hearing on a section 388 petition, the petition must make a prima facie showing.  “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.   [Citation.]  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.   [Citation.]  (3) We review the juvenile court's summary denial of a section 388 petition for abuse of discretion.  [Citation.]”  (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)

Here, whether or not there is a prima facie showing of changed circumstances, we can see no abuse of discretion in the trial court's finding that there was no prima facie showing that a change in the order would be in L.'s best interest.

In determining best interest, the juvenile court must make a complex determination which includes consideration of the reason for the dependency and of children's current circumstances.  (In re Kimberly F. (1997) 56 Cal.App.4th 519, 530–532.)

Here, the dependency arose from Father's alcohol problems and the domestic violence between the parents, as well as Mother's mental and emotional problems.   Father's sobriety, and his separation from Mother, were relatively recent, despite the fact that those problems had caused his older children to be removed from him in 2008.   As to L.'s current circumstances, she had been cared for by her maternal grandparents for all of her life, and had seen Father only for monitored visits.   DCFS reported favorably on the visits, but we can see no evidence of a strong bond between Father and L. Indeed, only a few weeks later, at the section 366.26 hearing, the court found that there was no special bond, for purposes of that statute.

In contrast, L.'s home with her grandparents was a happy and stable one, so that the juvenile court could properly conclude that a home of parent order or continued reunification services, which would have disrupted her stability, would not have been in her best interest.

Disposition

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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code..  FN1. All further statutory references are to the Welfare and Institutions Code.

TURNER, P. J. MOSK, J.