Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. SJ11563, Josephine Dedina, Juvenile Court Referee.
IRION, J.
Douglass E., father of dependent minor D.E., appeals an order denying his petition for modification under Welfare and Institutions Code section 388. Douglass contends he met his burden of showing his circumstances had changed and it was in D.E.'s best interests to be returned to his custody. We affirm the order.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2005 the San Diego County Heath and Human Services Agency (Agency) filed a petition in the juvenile court alleging the parents of eight-month-old D.E. had exposed him to domestic violence. (§ 300, subd. (b).) An investigation showed Douglass had chased D.E.'s mother, Nikita, with a pipe as she held D.E., and he threw a plastic bottle at Nikita, hitting D.E. in the head. Two other domestic violence incidents had been reported in the previous month, including one where Douglass kicked Nikita in the stomach because he believed she was pregnant and another where Douglass pointed a gun at Nikita and threatened to kill her. Douglass denied any domestic violence or physical confrontations with Nikita. The court issued a restraining order prohibiting Douglass from having any contact with Nikita.
The court sustained the allegations of the petition, declared D.E. a dependent and placed him with the paternal grandmother. The court ordered Douglass to comply with the requirements of his case plan, which included parenting education, domestic violence treatment and individual counseling.
During the next six months, Douglass participated in domestic violence treatment and claimed he completed a parenting class. He began but discontinued therapy and continued to minimize any domestic violence. The social worker believed Douglass needed to simultaneously participate in domestic violence treatment and counseling in order to break the cycle of violence. The court ordered six more months of services.
At the 12-month hearing, the court found Douglass had not made substantive progress with his case plan and there was no substantial probability D.E. could be returned to Douglass in the next six months. The court terminated services and set a section 366.26 selection and implementation hearing.
According to an assessment report, Douglass had a criminal history which included assault with a firearm. Douglass was currently employed, attending college and living with his girlfriend and their newborn son. Although he reported having completed a parenting class, he had no certificate of completion. Douglass had 14 sessions remaining in his domestic violence treatment program, from which he had been discharged twice for excessive absences. In the social worker's opinion, Douglass had not shown he could provide a safe and stable environment for D.E. or meet his daily needs.
D.E. was assessed as adoptable. He was thriving in the care of his current caregivers, the paternal grandparents, who wanted to adopt him. Additionally, there were eight families with approved home studies interested in adopting a child like D.E.
Douglass filed a section 388 petition for modification seeking to have D.E. returned to his custody with family maintenance services. As changed circumstances, the petition alleged Douglass continued to participate in services, successfully completed a 52-week domestic violence treatment program and was actively engaged in community services. As to best interests, the petition alleged Douglass had a positive relationship with D.E. and could now appropriately parent his son.
The court held a hearing on the section 388 modification petition. Douglass testified he completed a domestic violence treatment program as a condition of probation in his criminal case. He denied several incidents of domestic violence and said he did not need therapy and could not afford it.
Michael Martella, the facilitator in Douglass's domestic violence treatment group, testified Douglass successfully participated in the program. Martella saw positive changes in Douglass's attitude and said Douglass now takes responsibility for his past behavior.
Social worker Yolanda Thomas testified Douglass did not participate in therapy and she had no proof of completion for his participation in a parenting class. Douglass had not consistently visited D.E. and had not seen him for the past three weeks. Although D.E. enjoyed visits with Douglass, he separated easily from him. He was strongly bonded to his caregivers, looked to them to meet his needs and referred to them as momma and poppa. In Thomas's opinion, it was not in D.E.'s best interests to be placed with Douglass.
After considering the evidence and hearing argument of counsel, the court denied the modification petition, finding it was not in D.E.'s best interests to be placed with Douglass. The court conducted the section 366.26 selection and implementation hearing and terminated parental rights.
DISCUSSION
A
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 change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Whether a previous order should be modified and a change would be in the child's best interests are questions within the sound discretion of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Michael B. (1992) 8 Cal.App.4th 1698, 1704.) The juvenile court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. When two or more inferences reasonably can be deduced from the facts, we have no authority to reweigh the evidence or substitute our decision for that of the trial court. (In re Stephanie M., supra, at pp. 318-319; In re Casey D. (1999) 70 Cal.App.4th 38, 47; In re Zachary G. (1999) 77 Cal.App.4th 799, 812.)
B
The evidence showed Douglass had completed a 52-week domestic violence treatment program. He claimed to have benefitted from that program, but his testimony showed he did not take responsibility for the domestic violence; instead, he continued to deny or minimize his participation. He did not complete therapy, which was an important component of breaking the cycle of violence. Although Douglass said he completed parenting classes, he had not learned the concept of consistency and stability for children, as shown by his sporadic visits with D.E. Douglass's circumstances may have been "changing," but they had not "changed." A petition alleging changing circumstances does not promote stability for a child or the child's best interests because it would mean delaying the selection of a permanent home to see if a parent, who has failed to reunify with the child, might be able to reunify at some future point. (In re Casey D., supra, 70 Cal.App.4th at p. 47.) "Childhood does not wait for the parent to become adequate." (In re Marilyn H. (1993) 5 Cal.4th 295, 310.)
Even had Douglass shown sufficient changed circumstances, he did not show modifying the court's order by placing D.E. with him was in D.E.'s best interests. Douglass's visits with D.E. were inconsistent and he did not visit for the three weeks preceding the hearing. Douglass had not progressed beyond supervised visits and D.E. was not strongly bonded to him.
At the time of the hearing on Douglass's modification petition, the focus of the proceedings had shifted from family preservation to providing D.E. with a safe, stable and permanent home. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) D.E. had been living with his caregivers for nearly two years and viewed them as his parents. Where, as here, " 'custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' " (In re Stephanie M., supra, 7 Cal.4th at p. 317.) The court evaluated all the evidence in light of D.E.'s needs for stability and security, and found his best interests would not be served by removing him from a stable and loving home and placing him with Douglass. The court acted within its discretion by denying Douglass's modification petition.
DISPOSITION
The order is affirmed.
WE CONCUR: McDONALD, Acting P. J., AARON, J.