Filed 7/21/15 In re Z.S.J. CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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

                                     SECOND APPELLATE DISTRICT

                                                    DIVISION SIX


In re Z.S.J. et al., Persons Coming Under                                     2d Juv. No. B260649
the Juvenile Court Law.                                                (Super. Ct. Nos. J069093, J069094)
                                                                                (Ventura County)

VENTURA COUNTY HUMAN
SERVICES AGENCY,

     Plaintiff and Respondent,

v.

GREGORY J.,

     Defendant and Appellant.


                   Gregory J. (Father) appeals orders of the juvenile court denying his
modification petition, declaring that his two minor sons, Z.S.J. and Z.M.J., are
adoptable, and terminating his parental rights. (Welf. & Inst. Code, §§ 388, 366.26,
subd. (c)(1).)1 We affirm.
                                FACTUAL AND PROCEDURAL HISTORY
                   Mother and Father have two minor sons under eight years of age. Mother
suffers from schizophrenia and receives treatment and medication for her illness. Father


1
 All statutory references are to the Welfare and Institutions Code unless otherwise
stated.
suffers from alcohol abuse, bipolar disorder, and longstanding anger issues. On
November 18, 2010, Father received sole legal and physical custody of the children,
with visitation rights to Mother. Mother then lived in Colorado with her father. Her
mental health had deteriorated, however, and she had not visited the children for nearly
one year.
              On October 26, 2012, the Ventura County Human Services Agency
(HSA) detained the children after Father argued with a neighbor and enlisted the
children in flooding the neighbor's home with a garden hose. When HSA arrived, the
children were naked, dirty, and hungry. Father was under the influence of alcohol at the
time and subsequently was arrested for child endangerment.
              HSA filed a dependency petition pursuant to section 300, subdivisions (b)
and (g). On October 31, 2012, the juvenile court detained the children and placed them
in the temporary custody and care of HSA. On January 31, 2013, following a hearing,
the court sustained the section 300, subdivision (b) allegations of the dependency
petition and ordered HSA to provide family reunification services to Mother and Father.
              During the reunification services period, Father had aggressive outbursts
with HSA staff when he visited his children. Father also ceased drug-testing and
resumed consuming alcohol. During one visit with his children, Father "grabbed" and
"physically shook" a case aide who was supervising the visit. The juvenile court later
issued a permanent restraining order against Father concerning the case aide.
              On October 30, 2013, HSA filed a section 388 petition to terminate
Father's reunification services and visits with the children. Following a hearing on
November 26, 2013, the juvenile court terminated Father's services and visits. At the
contested 12-month review hearing on April 24, 2014, the court terminated Mother's
reunification services and visits due to her insufficient progress with the case plan.
Neither parent had benefitted from their reunification services plans and Mother had
permitted Father to have unsupervised visits with the children, despite orders otherwise.
The court set the matter for a permanent plan hearing pursuant to section 366.26.


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              Mother then filed a petition for an extraordinary writ, challenging the
orders terminating reunification services and setting a permanent plan hearing. We
concluded that the juvenile court did not abuse its discretion when it terminated
services, and we denied the petition. (K.J. v. Superior Court (Sept. 3, 2014, B255895)
[nonpub. opn.].)
              On August 22, 2014, HSA filed another request for a restraining order due
to Father's threats to HSA employees. The juvenile court subsequently granted a
permanent restraining order precluding Father from contacting social workers, county
counsel, his two children, and the foster parents. On October 20, 2014, HSA filed a
request for another restraining order due to Father's threats to an HSA program
manager. Father stated that the program manager should consider "shooting [himself]
in the head" in the event he (Father) or the children are hurt when he "grab[s]" the
children. The court also granted this request for a permanent restraining order.
                              Father's Modification Petition
              On September 26, 2014, Father filed a modification petition requesting the
return of his children. Father stated that the juvenile court's orders have proven true his
earlier statements that the judge is "a Nazi" and HSA employees are "State funded
kidnapers." Father attached 40 pages of documents to his petition and stated: "It is
clear that after almost 3 years [HSA] has no clue of what they do to famil[ies] [and]
they have chosen to put [their] snibbles and lies and try to cover child abuse placing my
children at risk." The attachments included family photographs and a letter written to
the judge stating that a television crew was filming the dependency, and that Father had
made a music video with a swastika over the judge's face. Father closed the letter by
stating that if his children were not returned to him, the judge would be "battling
something way bigger."
              The juvenile court set the modification petition for a hearing. The notice
of hearing states: "The court has made no finding that a prima facie showing has been



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made. The hearing will first address whether a change of circumstance has been
shown."
                                 Permanent Plan Hearing
              On December 4, 2014, the juvenile court held a combined modification
hearing and permanent plan hearing. The court received evidence of HSA written
reports and memorandums, the court's prior findings and orders, and a letter from
Mother. Father, Mother, Mother's adult daughter, and an HSA social worker testified.
Following argument by the parties, the court found by clear and convincing evidence
that the children are adoptable, and it terminated parental rights. (§ 366.26, subd.
(c)(1).) The court also found that Father did not establish a prima facie case of changed
circumstances or that a return of the children to him would be in the children's best
interests. It then denied Father's modification petition.
              Father appeals the order of the juvenile court summarily denying his
modification petition filed pursuant to section 388.
                                      DISCUSSION
              Father contends that his modification petition, liberally construed, sets
forth a prima facie case of changed circumstances or new evidence, and that the return
of his children is in their best interests. He points out that he has not harmed his
children and that they enjoy being with him. Father argues that summary denial of his
petition denied him due process of law.
              Section 388 provides that any interested person may petition for
modification of an order in a dependency proceeding upon a showing of changed
circumstances. Subdivision (d) of that section requires the court to order a hearing "[i]f
it appears that the best interests of the child . . . may be promoted by the proposed
change of order . . . ." A parent seeking modification of an order has the burden of
making a prima facie showing that the proposed modification will be in the child's best
interest. (In re Marcelo B. (2012) 209 Cal.App.4th 635, 641-642.) "'There are two
parts to the prima facie showing: The parent must demonstrate (1) a genuine change of


                                             4
circumstances or new evidence, and that (2) revoking the previous order would be in the
best interests of the [child].'" (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079.) If a
petition does not show sufficient change of circumstances or new evidence showing that
it would be in the best interests of the child to modify the order setting the section
366.26 hearing, the petition may be denied without an evidentiary hearing. (Cal. Rules
of Court, rule 5.570(d); Marcelo B., at p. 642 [statement of general rule]; In re Lesly G.
(2008) 162 Cal.App.4th 904, 912 [same].) We review the juvenile court's summary
denial of a section 388 petition for an abuse of discretion. (Marcelo B., at p. 642.)
              The juvenile court properly determined that Father's modification petition
did not establish a prima facie showing of changed circumstances and that a return of
the children to Father's custody was in the children's best interests. Father suffers from
continuing alcohol abuse and significant and unabated mental health problems. HSA
obtained three restraining orders against Father based upon his assaultive and
threatening behavior against HSA employees. In his modification petition, Father
described the juvenile court judge as a "Nazi" and HSA as "State funded kidnappers."
Prior to the permanent plan hearing, Father had been incarcerated for making terrorist
threats against HSA employees. The court did not abuse its discretion by denying the
petition without first holding an evidentiary hearing.
              Moreover, the juvenile court merely set Father's modification petition on
calendar for argument concerning whether Father met the prima facie evidence
threshold. The stamped wording on the calendar notice notified Father that the court
had not yet found the requisite showing and that the noticed hearing would address
whether a change of circumstances had been established. The juvenile court judge also
orally informed Father that the stamped notice indicates there was "no finding that a
prima facie showing has been made." (In re G.B. (2014) 227 Cal.App.4th 1147, 1159
["the juvenile court here explained at the first opportunity that the form order was not
intended to be a ruling that mother had made a prima facie case and was entitled to an



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evidentiary hearing"].) Denial of Father's modification petition without an evidentiary
hearing was not an abuse of discretion and did not deny Father process of law.
             The orders are affirmed.
             NOT TO BE PUBLISHED.




                                         GILBERT, P. J.
We concur:



             YEGAN, J.



             PERREN, J.




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                                Bruce A. Young, Judge

                          Superior Court County of Ventura

                         ______________________________


             Jack A. Love, under appointment by the Court of Appeal, for Defendant
and Appellant.


             Leroy Smith, County Counsel, Linda Stevenson, Assistant County
Counsel, for Plaintiff and Respondent.




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