Filed 8/26/14

                        CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                    DIVISION ONE

                            STATE OF CALIFORNIA



In re J.P., a Person Coming Under the
Juvenile Court Law
                                            D065390
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES AGENCY,
                                            (Super. Ct. No. NJ14788B)
        Plaintiff and Respondent,

        v.

Alejandro G, et al.,

        Defendants and Respondents,

J.P.,

        Appellant.


        APPEAL from an order of the Superior Court of San Diego County,

Michael J. Imhoff, Commissioner. Affirmed.

        Patricia K. Saucier, under appointment by the Court of Appeal, for

Appellant.
       Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy

County Counsel, and Patricia Plattner-Grainger, Deputy County Counsel, for

Plaintiff and Respondent.

       Neale B. Gold, under appointment by the Court of Appeal, for Defendant

and Respondent, Alejandro G.

       Elizabeth C. Alexander, under appointment by the Court of Appeal, for

Defendant and Respondent Marina P.

       J.P., a minor child, appeals an order denying her request for a hearing to

suspend visitation with her father and/or terminate his reunification services under

Welfare and Institutions Code section 388, subdivisions (a) and (c).1 Specifically,

she contends the juvenile court erred when it ruled that (1) the statutory

framework of the dependency system as well as principles of due process required

the juvenile court to hold a six-month status review hearing to determine whether

reasonable services were offered or provided to the parent before it could consider

a request to terminate reunification services under section 388, subdivision (c),

and (2) the allegations in the child's section 388 petition did not state a prima facie

case to show that the action or inaction of the parent created a substantial

likelihood family reunification would not occur, or that a modification of the prior

visitation order was in the child's best interests.



1      Unless otherwise specified, further statutory references are to the Welfare
and Institutions Code.

                                            2
       We conclude that the juvenile court misinterpreted section 388,

subdivision (c) when it denied J.P.'s request for a hearing to terminate her father's

reunification services. While section 388, subdivision (c) requires a reasonable

services finding, the juvenile court is not required to hold a six-month review

hearing to determine whether reasonable services have been offered or provided to

a parent before it holds a hearing on a petition to terminate reunification services

under section 388, subdivision (c). The reasonable services finding required under

section 388, subdivision (c) may be made at a hearing on the petition. In addition,

terminating reunification services before the statutory reunification period has

ended does not violate a parent's due process rights where the parent's action or

inaction has created a substantial likelihood that family reunification will not

occur. Where there is a substantial likelihood the child will not be reunited with

his or her parent as a result of a parent's action or inaction, the child's interests in a

safe, permanent home takes precedence over the parent's diminished interests in

the child. In addition, the juvenile court erred when it found that J.P.'s petition to

terminate her father's reunification services and/or suspend visitation did not state

a prima facie case.

       We nevertheless conclude reversal is not necessary to avoid a miscarriage

of justice. In view of the lack of any challenge on appeal to the juvenile court's

findings at the six-month review hearing that visitation was not detrimental to the

child, and the father was making progress with his case plan and it was likely that



                                            3
reunification would occur by the next review hearing, any error in not granting a

hearing on the section 388 petition is harmless. Accordingly, we affirm.

               FACTUAL AND PROCEDURAL BACKGROUND

       J.P., born March 2009, is the daughter of Marina P. and Alejandro G.

Alejandro and Marina had a brief romance while Alejandro was separated from his

wife, with whom he has three children. Before J.P.'s dependency proceedings

began, Alejandro visited J.P. four times. He last saw her in approximately

March 2012. Alejandro made regular child support payments and maintained

health care insurance for J.P.

       On March 8, 2013, the San Diego County Health and Human Services

Agency (Agency) detained J.P. and her two half-brothers2 in protective custody

after Marina's boyfriend severely physically abused J.P. J.P. remained in the

hospital for a month while she recovered from a pancreatic injury,

malnourishment, and at least 38 fractures, including a fractured hip, which were

deliberately inflicted by her mother's boyfriend. He subjected J.P. to acts of

cruelty, including requiring her to stand in a cold shower for extended periods of

time, up to and including all day, while fully clothed, and spanked J.P. with

clothes hangers, causing her to bleed.3 (In re J.M. (May 9, 2014, D065121)

[nonpub. opn.]; In re J.M. (June 10, 2014, D065252) [nonpub. opn.].) Additional

2      This appeal only concerns J.P.

3      The perpetrator was charged with 21 counts of willful cruelty to a child and
one count of torture for severely physically abusing J.P. He was sentenced to nine
years in prison. (In re J.M, supra, D065252.)
                                         4
acts of physical and emotional abuse and maltreatment are detailed in this court's

nonpublished opinions, In re J.M., supra, D065121 and In re J.M., supra,

D065252, and we need not repeat all the details here. Suffice to say J.P. suffered

unimaginable acts of cruelty that left her physically battered and emotionally

traumatized.

       Alejandro appeared at the jurisdiction and disposition hearings. The

juvenile court found that Alejandro was J.P.'s adjudicated biological father. The

court assumed jurisdiction over J.P. and her brothers, and removed them from

parental custody. Due to her extended hospitalization, J.P. was placed in a

separate foster home from her brothers. The juvenile court denied family

reunification services to Marina, who knew that her boyfriend was physically

abusing J.P. and failed to intervene, and ordered a reunification services plan for

Alejandro consisting of supervised visitation and conjoint therapy with J.P. The

juvenile court authorized the social worker to expand Alejandro's supervised visits

with J.P. and permit unsupervised and overnight visits, and a 60-day visit, with the

concurrence of minor's counsel.

       J.P. was diagnosed with posttraumatic stress disorder (PTSD). She had

intense tantrums and nightmares. Her foster mother, who was a mother and

grandmother and had been a foster parent for 17 years, said J.P. was the most

challenging child she ever had in her care. J.P. sought safety and security, and

often fell asleep on the floor next to her foster mother's bed. The foster mother

and her husband loved J.P. but were not in a position to adopt a young child.

                                          5
       The social worker talked to Alejandro about the importance of maintaining

regular contact with J.P. to establish and strengthen their relationship. The social

worker was aware that Alejandro's travel time to visit J.P. was approximately two

and a half hours each way, and that his financial circumstances were stressed and

he was at risk of losing his home.

       The foster mother set up weekly visits on Sunday evenings and offered

Alejandro the opportunity to have another visit the following day if he wished to

stay overnight in San Diego.

       J.P.'s first visit with her father occurred on June 14, 2013. Alejandro said

the visit was "awesome." According to J.P.'s foster mother, J.P. appeared to

recognize her father when she first saw him. However, J.P. pulled away from her

father when he hugged and kissed her goodbye.

       After the June 24 visit, J.P. referred to "daddy Alex," adding, "but he's a

stranger." She told her foster mother she did not like it when he hugged her,

saying, "I'm a little bit scared of him." When Alex abruptly cancelled his visit on

June 25, J.P. cried and said, "He hurt my feelings."

       Alejandro cancelled his visit on July 1. He visited J.P. on July 7, 14 and

21. On July 26, J.P. told her foster mother, "I'm scared of my daddy Alex and I

don't like my visit." Later, while playing "visit" with another child, J.P. said, "The

girl is scared because her daddy is a stranger. So, she should sit next to the lady

and try not to be scared."



                                          6
       Alejandro visited J.P. on August 4. He cancelled the August 11 visit. J.P.

was on vacation in late August with her foster family. Alejandro did not telephone

to check on her well-being.

       In early October, Alejandro became upset when he arrived for a visit and

learned that the foster mother would be present. Alejandro left the visitation

center without acknowledging J.P., who saw him drive away. J.P. rejected the

explanation he later gave to her for leaving, saying "He's a liar."

       J.P. told her foster mother, her therapist and the social worker that she did

not want to visit her father.

       On October 20, J.P. waved to Alejandro when she arrived but hesitated to

walk up to him. She stayed close to the foster mother during the visit. J.P. was

introduced to Alejandro's wife and children. She was very shy. During a visit on

October 27, J.P. was very bossy, which was out of character. She became

hyperactive and started talking baby talk. J.P. would not sleep in her own bed that

night. She began engaging in risky behaviors, including suddenly running out into

a parking lot, stuffing food into her mouth until she choked, and jumping off a

high bed. The following week, J.P. cried for 20 minutes because she did not want

to go to the scheduled visit. When Alejandro cancelled at the last minute, J.P. said

"yay" and appeared to be happy.

       In early November, Alejandro cancelled several visits, saying he was on

pain medication for a leg injury and could not drive long distances. He also

complained about the foster mother being present at the visits. In mid-November,

                                          7
Alejandro asked the social worker to suspend visits. His wife had learned that he

had picked up J.P.'s mother from jail when she was released and, as a result,

Alejandro and his wife were experiencing significant marital discord. In addition,

Alejandro had filed for bankruptcy and was working six days a week to support

his family and pay child support for J.P.

       In December, J.P. told her attorney (minor's counsel) she did not want to

visit her father. Minor's counsel filed a section 388 petition on January 6, 20144

seeking termination of Alejandro's reunification services and/or suspension of

visitation. The juvenile court set the initial hearing on the petition for January 28,

the date of the previously scheduled six-month review hearing.

       In mid-December, Alejandro asked the social worker to resume visitation.

Visits were scheduled for January 16 and 23, 2014.

       J.P. continued to insist that she did not want to visit Alejandro. She

questioned why the social worker was arranging visits when J.P. kept telling her

she did not want to go on any more visits. When J.P. learned that the foster

mother would not be at the visits, J.P. cried until the foster mother was able to

distract her.

4       There is a discrepancy between the reporter's transcript and the clerk's
transcript. The reporter's transcript shows that the juvenile court stated on
January 6, 2014, that minor's counsel had filed a section 388 petition, and set an
initial hearing on the petition for January 28, the same date as the previously
scheduled six-month review hearing. The clerk's transcript shows that the section
388 petition is file stamped January 28, 2014. When there is a discrepancy
between the record transcript and the clerk's transcript, the reporter's transcript
generally prevails as the official record of the proceedings. (Cf. Arlena M. v.
Superior Court (2004) 121 Cal.App.4th 566, 569-570.)
                                            8
       On January 28, the juvenile court stated that it had read and considered

J.P.'s section 388 petition and the social worker's report, and was familiar with the

facts of the case. The juvenile court determined J.P. did not meet her burden to

establish a prima facie case that visitation should be suspended or modified. The

court said there was no need to grant the request to modify or suspend visitation

because the court's order directed the parties to structure visitation in a manner in

which J.P. felt comfortable and to have a "safe person" present at all visits. The

court also denied without prejudice a hearing on J.P.'s petition to terminate

Alejandro's reunification services, ruling that the statutory scheme and principles

of due process required the court to make a reasonable services finding at a six-

month review hearing before it could consider terminating a parent's reunification

services.

       With respect to the six-month review hearing, minor's counsel was not in

agreement with the social worker's recommendation to continue reunification

services to Alejandro for six months.

       The social worker supervised visits between J.P. and Alejandro on July 28

and October 20, 2013, and January 16 and 23, 2014. In July, the social worker

observed that Alejandro was very engaging and playful with J.P. J.P. went easily

and willingly to her father but did not display any physical affection with him. At

the October 20 visit with Alejandro and his family, J.P. relaxed as the visit

progressed. The family played games, and played the piano and sang. On

January 16, Alejandro visited J.P. for the first time since October 27. Before the

                                          9
visit, Alejandro talked with J.P.'s therapist about J.P.'s needs for safe boundaries.

During the visit, when another child asked her to play, J.P. said, "No, I'm playing

with my dad." After the visit, J.P. told her therapist she felt happy playing with

her father. J.P. told her foster mother she did not feel as scared as she had felt

during earlier visits. At a visit on January 23, J.P. allowed Alejandro to help her

with her scooter helmet. J.P. told her foster mother she felt "a little bit safe" with

her father.

       The social worker reported that Alejandro had struggled with all aspects of

his case plan and needed to be more proactive in his efforts to reunify with J.P.

However, she believed that Alejandro was making an effort to respect J.P.'s

boundaries and meet her emotional needs. The social worker hoped J.P. would

become less fearful of her father if he showed a growth in commitment to her,

became better educated about her needs, and maintained consistent contact with

her. The social worker recommended that Alejandro receive six more months of

reunification services.

       The juvenile court found that Alejandro was "now making progress with his

case plan" and that he was provided reasonable reunification services. Minor's

counsel then renewed her request for a hearing on J.P.'s petition to terminate

Alejandro's reunification services under section 388, subdivision (c). The court

denied the request on the grounds the petition did not state a prima facie case to

show that reunification would not occur and that terminating reunification services



                                          10
under section 388, subdivision (c) at the six-month hearing would violate

Alejandro's due process rights.

                                    DISCUSSION

                                           I

                             THE ISSUES ON APPEAL

       J.P. contends the juvenile court erred as a matter of law in denying a

hearing on her section 388 petition. She challenges the ruling that the juvenile

court cannot grant a hearing on a request to terminate reunification services under

section 388, subdivision (c) until it has made a reasonable services finding at a six-

month status review hearing. She also contests the ruling that granting a hearing

on the section 388 petition prior to a six-month status review hearing would

infringe on the parent's due process rights. In addition, J.P. contends the juvenile

court erred when it determined that the section 388 petition did not state a prima

facie case that a modification of the prior visitation order was in her best interests,

or there was a substantial likelihood that reunification would not occur.

       The Agency does not address J.P.'s arguments concerning the juvenile

court's interpretation of section 388, subdivision (c) and its ruling that holding a

section 388 hearing to terminate a parent's reunification services before the six-

month hearing violates the parent's due process rights, thus implicitly

acknowledging the juvenile court misinterpreted the law. Instead, the Agency

argues J.P. does not meet her burden on appeal to show that the juvenile court



                                          11
clearly abused its discretion in denying a hearing because the petition failed to

state a prima facie case.

                                           II

          THE COURT IS NOT REQUIRED TO HOLD A SIX-MONTH REVIEW
          HEARING BEFORE HOLDING A HEARING ON A PETITION TO
          TERMINATE REUNIFICATION SERVICES UNDER SECTION 388,
          SUBDIVISION (C)

                                           A

                                Statutory Framework

       "Family reunification services play a 'crucial role' in dependency

proceedings." (In re Alanna A. (2005) 135 Cal.App.4th 555, 563, quoting

In re Joshua M. (1998) 66 Cal.App.4th 458, 467.) When a child is removed from

the physical custody of his or her parent, the juvenile court is required to offer or

provide family reunification services to the child's mother and presumed father,

and has the discretion to offer or provide reunification services to the child's

biological father. (§ 361.5, subd. (a).)

       However, in some circumstances, the juvenile court need not order

reunification services to a parent at the disposition hearing under section 361.5,

subdivisions (b) or (e) (the reunification bypass provisions). For example,

reunification services need not be provided to a parent who has severely abused a

child, either sexually or physically; caused the death of another child; willfully

abandoned the child; has a history of extensive, chronic drug use and has resisted

treatment or failed to comply with a drug or alcohol treatment program on at least


                                           12
two prior occasions; failed to reunify with the child's sibling and has not

subsequently made a reasonable effort to treat the problems that led to the sibling's

removal; or who is incarcerated or institutionalized and providing services to that

parent would be detrimental to the child. (§ 361.5, subds. (b), (e).)

       Family reunification services, when provided, are subject to time

limitations. For a child who was three years of age or older on the date of the

initial removal from the physical custody of his or her parent, court-ordered

services shall be provided beginning with the dispositional hearing and ending

12 months after the date the child entered foster care5 unless the child is returned

home. (§ 361.5, subd. (a)(1)(A).) For a child who was under three years of age on

the date of the initial removal from the parent's custody, or for a child who is a

member of a sibling group,6 court-ordered services shall be provided for a period

of six months from the dispositional hearing but no longer than 12 months from

the date the child entered foster care, unless the child is returned home. (§ 361.5,

subd. (a)(1)(B), (C).) Thus, generally, the statutory scheme envisions that a parent

of a child who is three years of age or older will have 12 months to mitigate the

5       The date the child entered foster care is defined as the earlier of the date of
the jurisdictional hearing or the date that is 60 days after the date on which the
child was initially removed from the custody of his or her parent. (§ 361.49.)

6       A "sibling group" means two or more children who are related to each other
as full or half-siblings and who were removed from parental custody at the same
time, and in which one member of the sibling group was under three years of age
at the time of removal. Court-ordered services may be limited to six months to the
members of the sibling group who are three years of age or older for the purpose
of placing and maintaining a sibling group together in a permanent home should
reunification efforts fail. (§ 361.5, subd. (a)(1)(C).)
                                          13
conditions that led to the initial removal and continued custody of the child,

whereas a parent of a child who is under three years of age, or who is a member of

a qualified sibling group, will have only six months in which to reunify. (See In re

Marilyn H. (1993) 5 Cal.4th 295, 308.) The juvenile court must review the case at

least once every six months. (§ 366.)

       At each review hearing, if the child is not returned to the custody of his or

her parent, the juvenile court is required to determine whether reasonable services

that were designed to aid the parent in overcoming the problems that led to the

initial removal and the continued custody of the child have been offered or

provided to the parent (reasonable services finding). (§ 366.21, subd. (e), (f).)

Generally, the remedy for not offering or providing reasonable reunification

services to a parent is an extension of reunification services to the next review

hearing. (§ 366.21, subds. (e), (g)(1); see In re Tracy J. (2012) 202 Cal.App.4th

1415, 1424, 1428.)

       Any motion to terminate court-ordered reunification services prior to the

12-month review hearing for a child who is three years of age or older, or prior to

the six-month review hearing for a child who is under three years of age or who is

a member of a qualified sibling group, shall be made pursuant to section 388,

subdivision (c). (§§ 361.5, subd. (a)(2), 388, subd. (c)(1).) A motion to terminate

court-ordered reunification services is not required at a six-month review hearing

if the court finds by clear and convincing evidence that the whereabouts of the

child's parents are still unknown, the parent has failed to contact and visit the

                                          14
child, or the parent has been convicted of a felony indicating parental unfitness.

(§ 361.5, subd. (a)(2).)

       Section 388, subdivision (c) provides that any party, including a child who

is a dependent of the juvenile court, may petition the court, prior to the applicable

review hearing, to terminate court-ordered reunification services only if one of the

following conditions exist: (1) it appears that a change of circumstances or new

evidence exists that satisfies a condition set forth in the reunification bypass

provisions under section 361.5, subdivision (b) or (e); or (2) the action or inaction

of the parent creates a substantial likelihood that reunification will not occur,

including, but not limited to, the parent's failure to visit the child, or the failure of

the parent to participate regularly and make substantive progress in a court-

ordered treatment plan. (§ 388, subd. (c)(1)(A), (B).) In determining whether

there is a substantial likelihood that reunification will not occur, the court is

required to consider factors such as the parent's incarceration, institutionalization,

federal immigration detention, deportation, or participation in a court-ordered

residential substance abuse treatment program. (§ 388, subd. (c)(2).)

       The court shall terminate reunification services only upon a finding that

reasonable services have been offered or provided, and upon a finding by clear and

convincing evidence that one of the conditions of section 388,

subdivision (c)(1)(A) or (c)(1)(B) exists. (§ 388, subd. (c)(3).)




                                            15
                                           B

           Standard of Review and Principles of Statutory Construction

       The interpretation of a statute is a legal issue, which we review de novo.

(Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800.) In construing a statute, we

look to the words of the statute to determine legislative intent and to fulfill the

intent of the law. (Gooch v. Hendrix (1993) 5 Cal.4th 266, 282.) Where the

language of the statute is clear and unambiguous, we follow the plain meaning of

the statute and need not examine other indicia of legislative intent. (In re

Alanna A. (2005) 135 Cal.App.4th 555, 563.) The language is construed in the

context of the statute as a whole and the overall statutory scheme, and courts give

significance to every word, phrase, sentence and part of an act in pursuing the

legislative purpose. (People v. Canty (2004) 32 Cal.4th 1266, 1276.) The term

"shall" is mandatory and the term "may" is permissive. (§ 15.)

                                           C

                                       Analysis

       In denying the request for a hearing on J.P.'s section 388 petition, the

juvenile court explained:

           "When you have a child over the age of three, the statute says
           it is the burden of the Agency to establish [] the statutory
           criteria. The parents have a due process right to hold the
           Agency to their burden. And usually at a six-month review
           for a child over the age of four, the primary consideration in
           that regard is whether or not reasonable services have been
           offered or provided.



                                          16
          "Here there appears to be no disagreement that reasonable
          services were offered or provided. So I think that the due
          process rights of the parents compels the court to follow the
          statutory scheme under the Supreme Court precedent that
          there be continuity of our statutory scheme in the rollover
          nature for findings in all of these hearings. The Legislature
          made a specific exception for children under the age of three,
          but did not do so for children over the age of three, and that's
          because of the developmental considerations that come into
          play. So I do believe that a 388 motion at a six-month review
          for a child over three where there is no dispute as to
          reasonableness of the services is actually premature, and if
          heard contemporaneously or prior to the [six-month review]
          findings, would endanger the parents' due process rights of
          holding the Agency to [its] burden."

       The juvenile court's interpretation of section 388 is incorrect.

       Section 361.5, subdivision (a)(2) and section 388, subdivision (c)(1) each

provide that a motion to terminate reunification services for a child who was three

years of age or older at the time of removal may be made "prior to the hearing set

pursuant to subdivision (f) of Section 366.21." The hearing under

section 366.21, subdivision (f), commonly referred to as "the 12-month review

hearing," shall be held no later than 12 months after the child entered foster care.

(§ 366.21, subd. (f).) This language is clear and unambiguous. (In re Alanna A.,

supra, 135 Cal.App.4th at p. 563.) Nothing in the language of

section 388, subdivision (c) limits the authority of the juvenile court to consider

terminating a parent's reunification services until after the six-month review

hearing has been held.

       Further, neither the statutory framework of the dependency system nor

principles of due process require the juvenile court to continue to provide

                                         17
reunification services to a parent where a party can show, by clear and convincing

evidence, that a condition set forth in section 361.5, subdivision (b) or (e) exists as

to that parent, or that the action or inaction of that parent creates a substantial

likelihood that reunification will not occur. (§ 388, subd. (c).) The juvenile court

has the authority at the disposition hearing to deny services to a parent under a

reunification bypass provision. (§ 361.5, subds. (b), (e).) If the existence of such

a reunification bypass condition is brought to the juvenile court's attention after the

disposition hearing on a showing of changed circumstances or new evidence, the

termination of reunification services on those grounds completely comports with

the dependency framework. It would contravene the purpose of the dependency

system to be required to attempt to reunify a child with a parent who, for example,

has been sentenced to a lengthy prison term, has committed a violent felony, or

has been found to have committed severe physical harm or severe sexual abuse to

the child or the child's sibling, unless reunification is in the best interest of the

child. (§§ 300.2, 361.5, subds. (b), (c), (e); In re Y.M. (2012) 207 Cal.App.4th

892, 918 [juvenile court erred when it did not grant child's petition to terminate

reunification services to her father under § 388, subd. (c) after he was incarcerated

on charges of transporting the child with the intent to engage in criminal sexual

activity].)

       In enacting section 388, subdivision (c), the Legislature did not distinguish

between the two alternative grounds for terminating reunification services prior to

the completion of the applicable review period. The statutory requirements that

                                           18
govern termination of reunification services where a reunification bypass

provision is found to apply, also govern a petition to terminate reunification

services to a parent whose action or inaction has created a substantial likelihood

that reunification will not occur. (§ 388, subd. (c)(1).) Where a parent is not

creating or maintaining a relationship with his or her dependent child by regularly

visiting or contacting the child, and is not participating and making progress in

court-ordered reunification services, it is not premature to consider terminating

reunification services to that parent prior to the six-month review hearing.

"Childhood does not wait for the parent to become adequate." (In re Marilyn H.

(1993) 5 Cal.4th 295, 310.) There is a "limitation on the length of time a child has

to wait for a parent to become adequate." (Id. at p. 308.) Where a party

establishes a prima facie case under section 388, subdivision (c), granting a

hearing on the merits comports with the Legislative directive to the juvenile court

to "give substantial weight to a minor's need for prompt resolution of his or her

custody status, the need to provide children with stable environments, and the

damage to a minor of prolonged temporary placements." (In re Marilyn H., supra,

at p. 308, citing § 352, subd. (a).)

       In addition, the plain language of section 388, subdivision (c) requires the

juvenile court to make a reasonable services finding before it may terminate

reunification services to a parent. (§ 388, subd. (c)(3).) Thus, it is not necessary

to hold a six-month review hearing prior to hearing a motion to terminate

reunification services in order to make a reasonable services finding.

                                         19
       The juvenile court ruled that a parent7 has a due process right to a six-

month review hearing in which the government must return the child to the

parent's custody unless it proves "the return of the child to his or her parent would

create a substantial risk of detriment to the safety, protection, or physical or

emotional well-being of the child." (§ 366.21, subd. (e).) The juvenile court cited

"the Supreme Court precedent" discussing the repeated findings that ensure a

parent's due process rights are not violated. The juvenile court was no doubt

referring to Cynthia D. v. Superior Court (1993) 5 Cal.4th 242 (Cynthia D.), in

which our Supreme Court stated:

          "Considered in the context of the entire process for
          terminating parental rights under the dependency statutes, the
          procedure specified in section 366.26 for terminating parental
          rights comports with the due process clause of the Fourteenth
          Amendment because the precise and demanding substantive
          and procedural requirements the petitioning agency must have
          satisfied before it can propose termination are carefully
          calculated to constrain judicial discretion, diminish the risk of
          erroneous findings of parental inadequacy and detriment to
          the child, and otherwise protect the legitimate interests of the
          parents." (Cynthia D., supra, at p. 256.)


7       In assessing the right to a six-month review hearing, the juvenile court did
not consider Alejandro's status as J.P.'s biological father. "[A] biological father's
'desire to establish a personal relationship with a child, without more, is not a
fundamental liberty interest protected by the due process clause.' " (In re
Christopher M. (2003) 113 Cal.App.4th 155, 160.) A biological father's rights in
his child's dependency proceedings are limited to establishing his right to
presumed father status, and the court does not err by terminating his reunification
services, when granted, when he has had the opportunity to establish presumed
father status by forming a parental relationship with the child, and has not done so.
(Cf. In re A.S. (2009) 180 Cal.App.4th 351, 362.) Thus, holding a hearing under
section 388, subdivision (c) prior to the six-month review hearing did not
implicate Alejandro's due process rights as a biological father.
                                          20
       There is no doubt that due process guarantees apply to dependency

proceedings. (In re Dakota H. (2005) 132 Cal.App.4th 212, 222.) Section 388,

subdivision (c) meets the "precise and demanding substantive and procedural

requirements" required under Cynthia D. to safeguard a parent's fundamental

interests in his or her child. Before a party files a petition under section 388,

subdivision (c), the juvenile court has already determined the child cannot be

safely maintained in the parent's home, or that placement with a noncustodial

parent would be detrimental to the child. (§§ 361, subd. (c), 361.2, subd. (a).) The

parent has been offered or provided reasonable reunification services and has had

the opportunity to mitigate the conditions that led to the child's placement in out-

of-home care. (§ 361.5, subd. (a).) A party must establish a prima facie case to be

entitled to a hearing on the merits of a section 388 petition. (§ 388.) Before it

may terminate reunification services, the juvenile court must find by clear and

convincing evidence that section 388, subdivision (c)(1)(A) or (c)(1)(B) applies,

and that the parent has been offered or provided reasonable reunification services.

(§ 388, subd. (c)(3).) A finding that a condition exists that would have justified a

bypass of reunification services at the disposition hearing, or that there is a

substantial likelihood reunification will not occur because of the action or inaction

of the parent, is equivalent to a finding of detriment. At that point, "it has become

clear 'that the natural parent cannot or will not provide a normal home for the

child,' and the state's interest in finding the child a permanent alternate home is

fully realized." (Cynthia D., supra, 5 Cal.4th at p. 256, quoting Santosky v.

                                          21
Kramer (1982) 455 U.S. 745, 767.) Thus, when there has been a judicial

determination that reunification is unlikely to be effectuated, it becomes inimical

to the interests of the child to delay permanency and "heavily burden efforts to

place the child in a permanent alternative home." (Cynthia D., supra, at p. 256.)

       We conclude that the statutory scheme in which a party has the right, on a

prima facie showing, to a hearing on the merits of a petition to terminate a parent's

reunification services prior to the six-month review hearing does not violate due

process.8

                                          III

                 THE PETITION MADE A SUFFICIENT PRIMA FACIE
                    SHOWING FOR A HEARING ON ITS MERITS

       The juvenile court erred when it determined the petition did not state a

prima facie case to show it was in the child's best interest to modify the prior

visitation order because of changed circumstances and there was a substantial

likelihood that reunification would not occur because of the action or inaction of

the parent.

       Under section 388, a party "need only make a prima facie showing to

trigger the right to proceed by way of a full hearing." (In re Marilyn H.,

supra, 5 Cal.4th at p. 310.) The prima facie showing is not met unless the facts


8      We are not holding that terminating reunification services to the child's
mother or presumed father prior to a six-month review hearing after a hearing on
the merits may never implicate the parent's due process rights. (See generally
In re Dakota H. (2005) 132 Cal.App.4th 212, 222-224 [due process depends on
the competing interests at stake].)
                                          22
alleged, if supported by evidence given credit at the hearing, would sustain a

favorable decision on the petition. (In re Zachary G. (1999) 77 Cal.App.4th 799,

806.) In determining whether the petition makes the necessary showing, the court

may consider the entire factual and procedural history of the case. (In re

Jackson W. (2010) 184 Cal.App.4th 247, 258.) The petition must be liberally

construed in favor of its sufficiency. (Cal. Rules of Court, rule 5.570(a); In re

Marilyn H., supra, at p. 309.)

         On January 6, 2014, minor's counsel filed a section 388 petition alleging

Alejandro did not consistently visit J.P. He last saw her on October 27, 2013, and

last telephoned her on October 9, 2013. Alejandro did not speak to J.P.'s therapist

about her needs. Alejandro was discharged from the visitation center for missing

three consecutive visits. He did not want J.P.'s foster mother to attend any visits,

even though the foster mother's presence calmed and comforted J.P. J.P. was very

clear about her desire not to visit Alejandro. She told all the professionals and

important adult figures in her life that she did not want to visit him. J.P. did not

feel safe with Alejandro. Alejandro put his own needs ahead of J.P.'s needs. He

had picked up J.P.'s mother from jail and lied about it to the social worker.

Alejandro did not understand complex trauma and was not able to meet J.P.'s

needs.

         The petition further alleged J.P. was a victim of serious physical abuse.

According to her therapist, J.P. was making progress but it would be a long time

before she healed. When J.P. voiced her opposition to visiting Alejandro and then

                                           23
had to attend the visits despite her fears, it interfered with her sense of safety and

well-being and did not promote the healing process. J.P.'s father had not shown

much interest in, or progress towards, developing a safe and supportive home for

J.P., and it was therefore in her best interest to shift the focus of her case from

reunification to permanency and stability.

       In view of the factual and procedural history of the case, these allegations,

if supported by evidence given credit at the hearing, are sufficient to sustain a

favorable decision on the petition. (In re Zachary G., supra, 77 Cal.App.4th at

p. 806.) J.P. was severely traumatized, both physically and emotionally, by severe

physical abuse. Her need for a stable, permanent home in which she felt safe and

secure was of critical importance to her current and future well-being. Alejandro

was a stranger to her. After J.P.'s birth, Alejandro chose not to establish a

relationship with J.P., placing his and his wife's needs above those of his child.

Alejandro's status throughout the dependency proceedings was as J.P.'s biological

father. To his credit, Alejandro participated in J.P.'s dependency proceedings and

expressed an interest in reunification. However, Alejandro did not consistently

visit J.P. and did not make a prompt effort to understand the nature of her complex

needs. J.P. did not feel safe with him. When other matters demanded Alejandro's

attention, J.P.'s interests in family reunification were shelved for almost half of the

first six-month review period. When J.P. learned visits with Alejandro were to

resume, she became distressed. She was frustrated with the social worker, saying

the social worker "just keeps telling me I'm gonna visit daddy Alex and I keep

                                          24
telling her I don't want to." Although she was only four years old, J.P. insisted

that the court, social worker, minor's counsel and her foster mother should respect

her wishes not to visit Alejandro.

       In view of J.P.'s circumstances, the allegations in her petition are sufficient

to state a prima facie case that visitation was detrimental to J.P. and a modification

of the prior visitation order appeared to be in her best interests, and the inaction of

the parent created a substantial likelihood that reunification would not occur.

Thus, the juvenile court erred in denying a hearing on J.P.'s petition to modify the

prior visitation order and/or terminate Alejandro's reunification services.

                                           IV

                  THE ERROR DOES NOT REQUIRE REVERSAL

       The determination that the juvenile court has erred, however, does not end

our inquiry. " 'We will not reverse a judgment unless "after an examination of the

entire cause, including the evidence," it appears the error caused a "miscarriage of

justice." (Cal. Const., art. VI, § 13.) In the case of civil state law error, this

standard is met when "there is a reasonable probability that in the absence of the

error, a result more favorable to the appealing party would have been reached." ' "

(Henry v. Red Hill Evangelical Lutheran Church of Tustin (2011) 201 Cal.App.4th

1041, 1048, quoting Elsner v. Uveges (2004) 34 Cal.4th 915, 939.)

       In view of the juvenile court's uncontested findings at the six-month review

hearing that visitation was not detrimental to J.P., and that Alejandro was making

substantive progress with the provisions of his case plan and it was likely that

                                           25
reunification would occur, and the lack of any challenge on appeal to those

findings, we conclude that a result more favorable to J.P. would not have been

reached in the absence of error. (Elsner v. Uveges, supra, 34 Cal.4th at p. 939.)

       In reaching this conclusion, we also keep in mind that if, during the

pendency of this appeal, the resumed visits appeared to be detrimental to J.P., or

Alejandro did not fully comply with the reunification services plan, any party,

including the child, was able to petition the juvenile court to modify the prior

visitation order or terminate reunification services. (§ 388, subds. (a), (c); see In

re Anna S. (2010) 180 Cal.App.4th 1489, 1499, 1501-1502 [juvenile court retains

authority and duty to make orders in accordance with the California dependency

scheme during the pendency of an appeal].) Thus, there was an adequate remedy

at law, and reversal to avoid a miscarriage of justice is not required.

                                   DISPOSITION

       The order is affirmed.




                                                             HUFFMAN, Acting P. J.

WE CONCUR:



NARES, J.



McDONALD, J.


                                          26
