Filed 4/10/13 In re Teresa N. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re TERESA N., a Person Coming Under
the Juvenile Court Law.
                                                                 D062998
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                                 (Super. Ct. No. CJ001006)
         Plaintiff and Respondent,

         v.

A.N.,

         Defendant and Appellant.



         APPEAL from orders of the Superior Court of San Diego County, Laura J.

Birkmeyer, Judge. Affirmed.



         A.N. appeals an order denying his motion for a continuance of the Welfare and

Institutions Code1 section 366.26 hearing concerning his daughter, Teresa N., and the

order terminating his parental rights to Teresa. He contends the court abused its

1        Statutory references are to the Welfare and Institutions Code.
discretion by denying his request for a continuance and by not hearing his oral section

388 motion.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In June 2011, nine-month-old Teresa was placed in protective custody when her

parents, A.N. and T.F., violated a mutual restraining order that had been put into place

after a domestic violence incident in March. The San Diego County Health and Human

Services Agency (the Agency) petitioned on Teresa's behalf under section 300,

subdivision (a), alleging she was at substantial risk of serious physical harm from

domestic violence. The court named A.N. as Teresa's presumed father and ordered

Teresa detained.

       At the jurisdictional/dispositional hearing on August 8, 2011, the court found the

allegations of the petition to be true, declared Teresa a dependent child of the court,

removed custody from her parents and ordered her placed in foster care. A.N.'s court-

ordered reunification plan included counseling, a domestic violence prevention program,

parenting education, substance abuse services and supervised visitation. He was in and

out of custody during the months of Teresa's dependency.

       At the six-month review hearing in April 2012, the court terminated reunification

services and set a section 366.26 hearing for August 15. The section 366.26 hearing was

continued and finally took place on November 9, 2012. A.N. was incarcerated again by

this time and he participated by telephone. At the hearing, his counsel requested a

continuance to allow her to file a section 388 petition or that the court entertain an oral

section 388 petition. A.N.'s counsel reported that one day earlier A.N. had contacted her

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with information regarding his completion of a parenting class and an anger management

program and of his participation in substance abuse treatment, and she had contacted the

other counsel in the case to inform them she would be requesting a continuance. The

court denied the motion and denied A.N.'s request to present an oral section 388 petition.

It then considered the evidence and argument by counsel, and found Teresa was

adoptable and no statutory exceptions were present to preclude adoption. It terminated

parental rights and designated adoption as the permanent plan.

                                        DISCUSSION

       A.N. contends the court abused its discretion by denying his request for a

continuance of the section 366.26 hearing. He asserts he made a good cause showing that

a continuance was appropriate. He also argues the court erred by not allowing him to

present an oral section 388 petition.

       The juvenile court may grant a continuance only on a showing of good cause.

"[T]he court shall give substantial weight to a minor's need for prompt resolution of his or

her custody status . . . ." (§ 352, subd. (a).) "Continuances are discouraged [citation] and

we reverse an order denying a continuance only on a showing of an abuse of discretion

[citation]." (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)

       Once a court terminates reunification services, the focus of the proceedings shifts

from family reunification to the needs of the child for permanency and stability. (In re

Marilyn H. (1993) 5 Cal.4th 295, 309.) The court "must recognize this shift of focus in

determining the ultimate question before it, that is, the best interests of the child." (In re

Stephanie M. (1994) 7 Cal.4th 295, 317.)

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       A.N. has not shown an abuse of the court's discretion by the denial of the motion

for a continuance. A.N. had adequate notice of the hearing. Counsel had been appointed

for him in July 2011. In May 2012, he was served with notice of the section 366.26

hearing to be held on August 15, and he was informed that the Agency was

recommending his parental rights be terminated. On August 15, the court granted the

Agency's request for a continuance so T.F.'s counsel could locate and personally serve

T.F. Then, at the continued hearing on September 25, the court granted A.N.'s attorney's

motion for a continuance so A.N. could be produced from prison. By the time of the

hearing on November 9, A.N. had had ample time to contact his counsel and to provide

information about the services in which he was participating.

       The court did not err by finding that delaying the hearing would not serve Teresa's

best interests. Teresa was nine months old when she was first detained. By the time of

the section 366.26 hearing, she was two years old and had spent much of her life in foster

care. A.N.'s argument that his loving relationship with Teresa should be protected is not

convincing. He had visited her only five times while she was in foster care and he had

been in custody for much of her life. Although Teresa went to him easily the time she

visited him in jail on September 15, 2011, and spent much of the visit with her head on

his shoulder, it was reported that after the visit she cried more frequently, was afraid of

the dark and afraid of being left alone. A.N. has not shown that he has a strong

relationship with Teresa deserving of protection at the expense of delaying her

permanency.



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       A.N. misplaces reliance on In re B.C. (2011) 192 Cal.App.4th 129, where the

reviewing court held the juvenile court had abused its discretion by granting a mother's

request for a continuance on the day set for the section 366.26 hearing. (Id. at p. 140.) In

our view, contrary to A.N.'s argument, he is like the mother in In re B.C. and was

attempting to make "a last-minute 'end-run' around an anticipated termination of parental

rights." (Id. at p. 145.)

       A.N. also has not shown the court erred by finding he had not sustained his burden

to make a prima facie showing triggering a right to a full hearing on an oral section 388

petition.

       To obtain the relief sought in a section 388 petition, the petitioner must show both

a change of circumstances or new evidence and that the change sought is in the child's

best interests. (§ 388; Cal. Rules of Court, rule 5.570(e)(1); In re Michael B. (1992)

8 Cal.App.4th 1698, 1703.) " ' "The parent need only make a prima facie showing to

trigger the right to proceed by way of a full hearing." ' [Citations.]" (In re Aljamie D.

(2000) 84 Cal.App.4th 424, 432.) "[I]f the petition presents any evidence that a hearing

would promote the best interests of the child, the court must order the hearing." (In re

Angel B. (2002) 97 Cal.App.4th 454, 461.) However, a last-minute filing of a section 388

petition just before a section 366.26 hearing is generally disfavored. (In re Edward H.

(1996) 43 Cal.App.4th 584, 594.) Further, a "court is not required to entertain an oral

motion under section 388 at the time set for the section 366.26 hearing." (In re

Baby Boy L. (1994) 24 Cal.App.4th 596, 609.) A hearing on a last minute oral motion



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could unnecessarily delay permanency for a child who is in need of a stable, permanent

home. (Ibid.)

       A.N. waited until the eve of the hearing to provide information about his

participation in services. Moreover, as the court noted, the hearing had been delayed for

some months and A.N.'s description of having completed parenting and anger

management classes and participated in substance abuse treatment showed at most

changing, not changed, circumstances, as required by the statute, and by the 18-month

date, A.N. would still be in prison and unable to assume custody. A.N. has not shown an

abuse of the court's discretion.

                                     DISPOSITION

       The orders are affirmed.



                                                            BENKE, J.

WE CONCUR:


McCONNELL, P. J.


HUFFMAN, J.




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