In re N v. CA1/4

Filed 4/21/15 In re N.V. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re N.V., a Person Coming Under the
Juvenile Court Law.

SAN FRANCISCO HUMAN SERVICES
AGENCY,
A142904
Plaintiff and Respondent,
v. (San Francisco City & County
Super. Ct. No. JD133176)
A.V.,
Defendant and Appellant.

I.
INTRODUCTION
A.V. (appellant), the biological father of two-year-old N.V. (the minor) appeals,
contending the court erred in denying his petition under Welfare and Institutions Code
section 388 without holding an evidentiary hearing.1 Appellant asserts he made a prima
facie case showing his circumstances had changed and that his requested modification––
to declare him a presumed father and grant him reunification services—was in the

1
All future undesignated statutory references are to the Welfare and Institutions
Code. A party may petition the court under section 388 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 change is in the child’s best interests. (§ 388; In re
Jasmon O. (1994) 8 Cal.4th 398, 414-415 (Jasmon O.); In re Casey D. (1999) 70
Cal.App.4th 38, 47 (Casey D.).)

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minor’s best interests. He claims “[t]he order summarily denying Father’s petition was
an abuse of the court’s discretion, resulting in the miscarriage of justice.” We disagree
and affirm.
II.
FACTS AND PROCEDURAL HISTORY
The factual and procedural background of this case has been set out in detail in our
recent nonpublished opinion filed on December 12, 2014, In re N.V. (A141323). We
quote from the factual summary in that opinion, omitting footnotes: “The minor was
born in January 2012. The mother’s boyfriend, B.T., was present at the birth. After the
minor’s birth, the hospital’s social worker reported that mother was planning to reside
with her boyfriend, B.T., and his parents. The mother identified B.T., instead of
appellant, as the minor’s biological father.
“On May 30, 2013, the San Francisco Human Services Agency (the Agency)
became aware of the minor when an anonymous party reported that the minor was
residing in a trailer that did not have heat, electricity, running water, or a front door. The
trailer was parked on a business property in San Francisco. The reporting party alleged
the minor was allowed to play on gravel and mother was taking drugs in the minor’s
presence.
“On June 18, 2013, the Agency filed a petition under Welfare and Institutions
Code section 300 alleging the minor was a child described by subdivisions (b) (failure to
protect), (g) (no provision for support), and (j) (sibling abuse). The Agency’s
investigation revealed mother had a history of substance abuse, mental health issues,
transience, criminal behavior, and that she had five other children who were not in her
care or custody. After the petition was filed, appellant contacted the Agency and stated
he was the minor’s father.
“In the Agency’s report filed on August 1, 2013, appellant is identified as the
minor’s alleged father. It was noted that appellant ‘comes by [the mother’s] trailer 2 to 3
times a week to check up on [the minor] and to provide the mother with supplies as
needed.’ The report also indicated that appellant had unstable housing, was unable to

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work, and did not have reliable resources to provide for the minor. At the time, appellant
was scheduled to be in San Francisco Drug Court’s intensive outpatient drug program for
the next 6 to 12 months.
“On August 7, 2013, the Agency filed an amended petition, identifying appellant
as the minor’s biological father. The amended petition alleged, among other things, that
appellant was unable to provide for the minor, that he was incarcerated at the time of the
petition’s filing, and that he had another child who was currently the subject of a
dependency action and for whom he was receiving reunification services.
“A settlement conference on jurisdiction and disposition was held on August 7,
2013. Counsel was appointed for appellant and the parties were ordered to return for a
detention hearing the next day.
“On August 8, 2013, the Agency filed an addendum to the initial jurisdiction
report. The addendum noted mother had been unable to follow through consistently with
the minor’s medical appointments, had failed to take advantage of the services offered to
her, and had been unable to locate stable housing. The minor was eventually placed with
the minor’s godparents, who had been involved in the minor’s life since the minor was
three days old. They had taken the minor into their home on a consistent basis when she
was in her mother’s custody (weeknights and on weekends), they had provided her with
care and stability, and they were willing to assume guardianship of the minor if
necessary. The Agency noted the godparents ‘treat the minor as their own child’ and the
minor was ‘closely bonded to the godparents.’
“On August 8, 2013, appellant filed a Judicial Council form JV–505 (Statement
Regarding Parentage). In this form, appellant stated the minor and mother had lived with
him from March to June 2012 and from September to December 2012. The parties
entered into a stipulation on August 9, 2013, that appellant was the minor’s biological
father based upon DNA test results from March 6, 2013.
“On December 5, 2013, a supplemental section 387 petition was filed stating that
mother was discharged from her drug treatment program due to a positive drug test. The
supplemental petition also indicated appellant was unable to provide care and support for

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the minor because he was in the San Francisco County Jail. On December 13, 2013, a
referral was completed for appellant to begin weekly supervised visits with the minor at
his residential substance abuse recovery program.
“On January 14, 2014, appellant filed his first motion seeking presumed father
status. In support of the motion, appellant declared, under penalty of perjury, that he was
present at the minor’s birth and that the minor and mother lived with him after the
minor’s birth. Thereafter, they continued to live with him ‘on and off in San Francisco’
when mother was homeless. Appellant also conceded to his ‘great regret and frustration’
he never signed the minor’s birth certificate. He claimed that prior to entering a
residential treatment facility where he currently resided, he ‘visited my daughter every
other day since her birth with no exceptions.’ He also claimed to have provided financial
assistance to the minor, although the amount was not substantial ‘due to the fixed income
I receive from [Social Security] disability.’
“In support of his motion for presumed father status, appellant submitted a letter
from the residential drug treatment program that he had entered on December 12, 2013.
The letter states appellant expressed on numerous occasions ‘his daughter [has] been one
of his primary source[s] of inspiration to seek recovery.’ One of the program’s missions
was to ‘offer comprehensive services that assist in the reunification process.’ While
residing there, appellant had received two supervised visits from the minor. It was
reported by the program’s clinical case manager that appellant was ‘attentive to her needs
and there appears to be a strong bond between them.’
“Opposition was filed by the minor’s counsel who indicated ‘[w]hile [appellant]
has known [the minor], and visited her as he could, [appellant] has never assumed a
parental role in her life, nor provided for her . . . day to day care, comfort and needs. In
fact, that role has been performed by [her godparents].’
“On January 22, 2014, the court denied, without prejudice, appellant’s motion for
presumed father status on the ground that it was conclusory in nature. On that date, the
Agency filed a second addendum report. That report noted that appellant’s parental
rights had been terminated in a separate dependency matter involving another child. The

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Agency recommended that supportive services be provided to appellant, not for the
purposes of reunification, but in order for him to improve his parenting skills ‘because
the minor’s emotional, psychological, and social well-being would benefit . . . by
building a relationship with her father.’
“On February 21, 2014, appellant’s supplemental motion for presumed father
status was filed, requesting an evidentiary hearing. The court held a contested
evidentiary hearing on appellant’s supplemental motion on March 11, 2014. The court
heard testimony from two witnesses—appellant and the minor’s godmother.
“In his testimony, appellant indicated, ‘I want to provide for [the minor], take care
of her, I want her to live with me.’ He admitted that he was not present at the minor’s
birth and that the minor and the mother did not live with him after the minor’s birth. In
this respect, appellant’s testimony conflicted with the declaration he submitted under
penalty of perjury in support of his motion for presumed father status. He also gave a
completely different account of the times he had allowed the mother and minor to reside
in his home, which now added up to over a year in time, instead of just a few months.
When cross-examined about the various and differing timeframes he claimed the minor
and mother resided with him, appellant testified that he was not ‘good with dates’ and
was only ‘guessing [at] how long’ the mother and minor stayed with him at his residence.
“Appellant also admitted he never made any effort to put his name on the minor’s
birth certificate, sign a voluntary declaration of paternity, or petition the family court to
obtain custody of the minor, even though he knew long before these dependency
proceedings began that he was the minor’s biological father. He testified the only reason
he obtained DNA verification of his status as the minor’s biological father was to allay
his mother’s concerns that the minor was not his child.
“The minor’s godmother testified that she got involved with the mother because
the mother dated the godmother’s brother at one time. The mother would call, and the
godmother would pick the minor up, frequently at hotels or motels where the mother
could get a voucher, and the godmother would take the minor home for the night or for
the weekend. The godmother indicated that when mother lived with appellant, ‘she

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would stay there for as long as she can, and then she would leave and then go back, stay
there, and then leave.’ During the times the mother lived with appellant, the mother
would still call on the godmother to care for the minor. Once or twice, appellant would
come out and hand her the minor. She testified appellant would give her some diapers
and formula and would always say ‘if I needed anything, let [him] know.’
“On March 13, 2014, after taking the matter under submission for two days, the
court denied appellant’s motion for presumed father status. In doing so, the court was
clearly troubled by the discrepancies between appellant’s declaration filed in support of
his motion seeking presumed father status and the testimony presented at the March 11,
2014 hearing. As to the minor and mother’s residency with appellant, the court found
that the time line ‘is anything but completely clear.’ However, the court held it was
largely premised on ‘mother’s wanderlust’ instead of appellant’s ‘proactive’ efforts to
build a family unit. The court also noted that appellant’s paternity test, accomplished
more than year after the minor’s birth, was only obtained to reassure appellant’s mother
that the minor was indeed appellant’s biological child and was not used to assert custody
or as [a] means [of] getting his name on the birth certificate.
“In the end, for the court, the pivotal question came down to ‘does [appellant]
have a substantial familial relationship with this child?’ The court observed ‘there is
nothing in the record that talks about [appellant’s] caretaking, his hand-on caretaking of
this child. Whether it’s feeding, cleaning up after her, changing her diapers, bathing her,
putting her to bed, playing with her. . . . And there is really nothing there.’ Therefore,
the court believed the ‘provision of services to [appellant] here in the absence of such a
relationship isn’t really reuniting a family, it is attempting to create a new one.’ ”
We affirmed the juvenile court’s order denying appellant presumed father status in
our nonpublished opinion in In re N.V. (Dec. 12, 2014, A141323).
While In re N.V. was pending in this court, a status review report was filed in the
superior court on July 10, 2014, in which the Agency reported the minor’s mother had
not maintained contact with the Agency and her whereabouts were unknown. Appellant
was receiving bi-weekly supervised visitation with the minor. The Agency report

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indicated uncertainty as to appellant’s “capacity to parent at this time as he has not
demonstrated that he is living a clean and sober life that is conducive to raising a two-
year-old child.” In the meantime, the minor was flourishing in her godparents’ care.
According to the report, “[s]ince the day of her birth [the minor] has been an integral part
of the godparents’ family and [they] consider [the minor] to be one of their own
children . . . .” The minor calls her godparents “Mom” and “Dad.” The godparents have
stated they are ready to adopt the minor and provide her with a loving, stable, and healthy
home.
Appellant filed his section 388 petition on August 11, 2014. He indicated he
entered a residential drug rehabilitation program, Health Right 360, on March 24, 2014,
and was due to graduate on September 19, 2014. He filed a declaration, which was
supported by various certificates and diplomas, stating he had completed the following
classes while attending Health Right 360: “Anger Management and Exploring Anger,
Parenting-Nurturing Fathers curriculum, Compassionate Minds, Raising Safe Kids
parenting class, Coping with Stress Triggers, Life Skills, Relapse Prevention, Wellness
Recovery Action Plan (WRAP), Re-entry Workshop, Completing Overcoming
Addictions, Compassion Focused Therapy, and Art Therapy.” He was participating in
individual therapy and continued to visit the minor every other week. He requested the
court modify its previous orders by declaring him the minor’s presumed father and by
offering him reunification services.
The juvenile court summarily denied appellant’s section 388 petition by order
filed on August 21, 2014, without granting appellant an evidentiary hearing. The court’s
order found that appellant’s section 388 petition did not state new evidence or a change
of circumstances and the proposed modification does not promote the best interest of the
minor. This new appeal followed.

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 III.
DISCUSSION
A. Mootness
In a motion filed on February 9, 2015, the Agency requested that this court take
judicial notice of the juvenile court’s January 21, 2015 order terminating appellant’s
parental rights. Appellant did not oppose the Agency’s request for judicial notice; and on
February 26, 2015, this court granted the Agency’s request for judicial notice without any
determination of relevance. (Evid. Code, § 459, subd. (a).) On March 2, 2015, appellant
filed a timely notice of appeal from the juvenile court’s order terminating his parental
rights, and that appeal is currently pending (A144353).
In its motion requesting judicial notice and again on appeal, the Agency contends
the instant appeal from the trial court’s summary denial of appellant’s section 388
petition should be dismissed on the ground it is moot because of the subsequent order
issued by the juvenile court terminating appellant’s parental rights. We reject this
contention.
A parent’s appeal from an order denying a section 388 petition is moot if the court
subsequently terminates parental rights and the parent fails to appeal from that order,
because in such a case “no effective relief” is possible. (In re Jessica K. (2000) 79
Cal.App.4th 1313, 1315.) In this case, however, appellant has appealed from the
subsequent order terminating his parental rights. Thus, a reversal of the order denying
appellant’s section 388 petition seeking presumed father status and reunification services
could potentially affect the outcome of subsequent proceedings. Accordingly, we do not
find this appeal moot and address appellant’s challenge to the summary denial of his
section 388 petition. (In re Jessica K., supra, at p. 1317 [the “mother was not without an
appellate remedy. . . . . . . [The] [m]other might have appealed from the order terminating
her parental rights simply to preserve her right to appeal the denial of her section 388
petition”]; In re Michelle M. (1992) 8 Cal.App.4th 326, 330 [the “[a]ppellant’s remedy
was to attack the juvenile court’s order terminating jurisdiction in order to raise the issues
he urges before us”].)

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 B. The Denial of Appellant’s Section 388 Petition
The legal principles and standard of review when a section 388 petition is denied
without an evidentiary hearing were recently set out in by this division in In re
G.B. (2014) 227 Cal.App.4th 1147. This court explained, “[u]nder section 388, a parent
may petition to change or set aside a prior order ‘upon grounds of change of circumstance
or new evidence.’ (§ 388, subd. (a)(1); see Cal. Rules of Court, rule 5.570(a).) The
juvenile court shall order a hearing where ‘it appears that the best interests of the child
. . . may be promoted’ . . . by the new order. (§ 388, subd. (d).) Thus, the parent must
sufficiently allege both a change in circumstances or new evidence and the promotion of
the child’s best interests. [Citation.]” (In re G.B., supra, at p. 1157, original italics,
fn. omitted.)
This court went on to note, “[a] prima facie case is made if the allegations
demonstrate that these two elements are supported by probable cause. [Citations.] It is
not made, however, if the allegations would fail to sustain a favorable decision even if
they were found to be true at a hearing. [Citations.] While the petition must be liberally
construed in favor of its sufficiency [citations], the allegations must nonetheless describe
specifically how the petition will advance the child’s best interests. [Citations.]” (In re
G.B., supra, 227 Cal.App.4th at p. 1157.) 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.)
We review a juvenile court’s denial of a section 388 petition for abuse of
discretion. We “may not disturb the decision of the trial court unless that court has
exceeded the limits of judicial discretion by making an arbitrary, capricious, or patently
absurd determination. [Citations.]” (In re E.S. (2011) 196 Cal.App.4th 1329, 1335; In re
Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)
Appellant’s section 388 petition alleged his circumstances had changed because he
was maintaining consistent bi-weekly supervised visitation with the minor; and he “had
made substantial progress in his residential treatment program and had completed several

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programs and classes.” Appellant should be commended for taking concrete steps to
address his lengthy history of drug addiction and for displaying a genuine commitment to
the minor. However, even liberally construed, appellant’s petition showed that while he
was making good progress, his circumstances were far from stable. Appellant had not yet
completed the residential treatment program, he did not have a proven track record of
remaining drug-free in the community, and there was no indication that he was ready to
assume parental responsibilities for the minor or provide her with a permanent and stable
home. A prima facie showing of changing, as opposed to changed, circumstances is not
enough. (See In re Cliffton B. (2000) 81 Cal.App.4th 415, 423-424 [200 days of sobriety
insufficient given long history of drug abuse]; In re Kimberly F. (1997) 56 Cal.App.4th
519, 531, fn. 9 [120 days of sobriety insufficient to show “real reform”].)
Appellant’s section 388 petition also failed to show that a change in the case plan
granting appellant presumed father status and providing him reunification services would
be in the minor’s best interest. A section 388 petition may be summarily denied where it
fails to make a prima facie showing that the bests interests of the child will be promoted
by the proposed change of order. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806–
807; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450–1451.) It is more difficult to
show that granting a section 388 petition is in the child’s best interests when the changing
circumstances come after reunification services have been terminated or have been
denied, at which time the child’s need for a permanent, stable home is paramount. (See
Jasmon O., supra, 8 Cal.4th at p. 420; Casey D., supra, 70 Cal.App.4th at p. 48.) “At this
point in the proceedings, on the eve of the selection and implementation hearing, the
[child’s] interest in stability was the court’s foremost concern, outweighing any interest
[father] may have in reunification. [Citation.]” (In re Anthony W. (2001) 87 Cal.App.4th
246, 251–252.)
Accordingly, with the case in this procedural posture, appellant did not show it
would be in the minor’s best interests to declare him a presumed father and order
reunification services be provided for him. Those options would have delayed
permanency and stability for a child who had moved from place to place because of her

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mother’s transiency and who was shuffled back and forth between her mother and her
godparents. She was now thriving in the home of her godparents, who had provided her
the only stable and nurturing home she had ever known. The minor called her godparents
“Mom” and “Dad,” and she considered them to be her parents. The godparents were
committed to providing the minor with a permanent home. There was no prima facie
showing that it was in the minor’s best interests to prolong uncertainty and postpone
permanency with the hope that offering appellant further services would allow him to
eventually provide the minor with a safe and stable home. (See In re C.J.W. (2007) 157
Cal.App.4th 1075, 1081 [summary denial of § 388 petition was proper where there was
no showing of how the children’s best interests would be served by depriving them of a
permanent stable home in exchange for an uncertain future].)
Accordingly, the juvenile court acted well within its discretion in denying
appellant’s section 388 petition without holding an evidentiary hearing. The juvenile
court could have reasonably found that a prima facie showing had not been made as to
either changed circumstances or that modification of the court’s prior orders would
promote the minor’s best interests.
IV.
DISPOSITION
The court’s order denying appellant’s section 388 petition is affirmed.

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 _________________________
RUVOLO, P. J.

We concur:

_________________________
REARDON, J.

_________________________
RIVERA, J.

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