Opinion
G045597 Super. Ct. No. DP019578
11-15-2011
In re T.A., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. M.S., Defendant and Appellant.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant. Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from an order of the Superior Court of Orange County, Dennis J. Keough, Judge. Affirmed.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
M.S. (mother) appeals from the juvenile court's order denying her Welfare and Institutions Code section 388 (all further statutory reference are to this code) petition for modification filed after reunification services with her now almost four-year-old son, T.A. (the child) were terminated at the six-month review hearing and a section 366.26 hearing was set. She contends she made a prima facie showing of changed circumstances and the court thus erred in summarily dismissing her petition without an evidentiary hearing. Finding no error, we affirm.
FACTS
At the Orange County Social Services Agency's (SSA) request, the court detained the child in March 2010 after mother left him with a caretaker with limited supplies and failed to pick him up the following day as agreed. When SSA contacted her two days later, she admitted "'drinking all day today and yesterday.'" The child was placed with the paternal grandmother.
For the jurisdictional and dispositional hearings, SSA reported mother conceded she had been too drunk to pick the child up and had unresolved substance abuse problems including marijuana and alcohol, as well as a prior DUI conviction, but claimed she no longer drank. She did not believe her marijuana use was a concern or that she needed to attend either Narcotics Anonymous (NA) or Alcoholics Anonymous (AA). She had previously participated in an eight-month outpatient drug treatment program but was currently unable to pay for a DUI program, despite it being mandated by the court, because she was not employed and could not "morally" ask her parents for money.
Mother declined SSA's suggestion she enroll in a residential drug treatment program, stating a prior such program had not been helpful and she stated she could not live with people "'like that.'" She also rejected a recommended outpatient program as being "too expensive." When SSA explained the program provided "therapy, drug testing, twelve step meetings, and parenting" all in one location and that a sliding scale would be used to determine her ability to pay, mother began to cry, stating "the . . . situation was too overwhelming" and that one person could not reasonably accomplish all that. She felt it was unfair asking her participate in services because she was not responsible for her predicament. SSA concluded mother demonstrated "little insight into how her drug and alcohol use negatively impacts her child[ and] refuses to take responsibility for her actions and comes up with excuses for everything."
The court sustained an amended dependency petition, and at the subsequent dispositional hearing, removed the child from both parents' custody and ordered reunification services. Mother's case plan required her to attend counseling, complete a parenting class, submit to substance abuse testing, and participate in a 12-step AA/NA program. On the day the court sustained the amended petition, mother began attending a program that included counseling, parenting, and drug testing.
For the six-month review, SSA reported mother was attending the DUI classes ordered by the criminal court and once that was done she would be able to afford counseling and parent education classes. She voluntarily signed up for a Perinatal program, but was not very involved. She missed five drug tests, as well as some group sessions, and twice testing positive for alcohol. Due to her noncompliance, mother failed to progress past the program's first phase and was ultimately terminated from it. Mother also missed nine Medtox drug tests and had one positive test result for marijuana between July and October 2010 but thereafter did not miss any tests. SSA believed mother desired to reunite with her child despite her slow start.
Mother's visits with the child were inconsistent, with mother often showing up late or leaving early and bringing inappropriate snacks. She also had limited interaction with the child and instead frequently checked or talked on her cellular phone. The paternal grandmother reported that between March and November 2010, mother had attended 38 visits but had missed 29. Many of the visits were noted to be "good" although mother often left early, seemed tired, and was distant or detached. Beginning in October, mother became more engaged in the visits and paternal grandmother reported "'mother has made a turn around.'"
In late November, mother began missing visits and not calling 24-hours in advance. She had been jailed for 2-3 days for failing to pay her DUI fines and complete her program. She was continually worried about having a DUI on her record and refused a referral to an inpatient drug treatment program because of that. The maternal grandfather, who was now monitoring visits, reported mother had attended 4 out of 7 visits. Mother also began missing Medtox drug tests.
SSA changed its recommendation to termination of reunification services, noting mother seemed to be more concerned about her DUI than reunifying with the child. Mother did not appear able to complete her case plan or DUI program.
In its January 2011 report, SSA stated it last spoke with mother in December when it informed her of the changed recommendation. Mother continued to miss drug tests and a few visits. Subsequently, SSA reported mother had canceled a meeting because she needed to complete community service hours related to her DUI. The social worker told her she would meet her at the contested six-month review hearing but mother did not appear.
After several continuances, the court held the contested six-month review hearing in March. Father testified and requested additional services but mother did not appear. Her attorney requested services be continued for another six months. The court denied both parents' requests, terminated reunification services, and set a section 366.26 permanency hearing.
SSA's section 366.26 report recommended termination of parental rights. The then three-year-old child dressed himself and played appropriately for his age. He was healthy and had no major medical or developmental issues although he showed symptoms of Reactive Attachment Disorder. His therapist recommended a medical and psychological evaluation of him and the paternal grandmother, who along with her husband loved and wanted to adopt the child, arranged an appointment.
Mother now, except for one occasion, arrived on time or early for her visits. She read to and played with the child, brought healthy snacks, disciplined him, and changed his diapers. When visits ended, the child had no problem returning to the caretakers.
Mother filed a section 388 petition, requesting the child's return, a 60-day trial release to mother, or additional reunification services. She alleged her circumstances had changed in that she had obtained stable employment and housing, successfully completed a parenting course, secured an approved day care provider, enrolled in classes to obtain her G.E.D., and voluntarily registered for a substance abuse program. She also asserted the change was in the child's best interests because the visitation logs in the section 366.26 report demonstrated an "obvious" bond between them. They showed the child "clearly loves" her and said so, running to her and calling her "'Mommy.'" She in turn told him she loved him, brought him healthy, home-cooked foods, and he listened when she taught him about sharing and using the bathroom.
In an addendum report, SSA changed its recommendation to legal guardianship to allow the paternal grandfather resolve his retirement situation before the paternal grandparents adopted the child. It also responded to mother's section 388 petition, noting she did not sign up for her parenting, counseling, and substance abuse programs until after reunification services were terminated and still needed improvement in understanding the effects of illegal drug use and her depression on parenting. While not denying she had a relationship with the child, SSA disagreed they were bonded.
The juvenile court found mother had shown "at best changing circumstances and not changed circumstances" with many of the changes being only of "very recent vintage." As to the child's best interests, it reviewed the visitation logs alluded to in the petition and concluded mother had not met her prima facie burden. It summarily denied the section 388 petition without an evidentiary hearing. It then proceeded with the section 366.26 hearing and determined the permanent plan of legal guardianship to be in the child's best interests.
DISCUSSION
Mother contends the court erred by not granting an evidentiary hearing on her section 388 petition because she had made the requisite a prima facie showing.
To obtain a change, modification, or set aside a previous court order under section 388, the petitioning party must show, by a preponderance of the evidence, both a change of circumstances or new evidence and that the proposed change is in the child's best interests. (§ 388, subds. (a) & (d); In re Jasmon O. (1994) 8 Cal.4th 398, 415.) The petition "must be liberally construed in favor of its sufficiency" (Cal. Rules of Court, rule 5.570(a) and "[t]he parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing" (In re Marilyn H. (1993) 5 Cal.4th 294, 310). But "[i]f the liberally construed allegations of the petition do not show changed circumstances such that the child's best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. [Citation.]" (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) "In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. [Citation.]" (In re Justice P. (2004) 123 Cal.App.4th 181, 189.) "We review the juvenile court's summary denial of a section 388 petition for abuse of discretion. [Citation.]" (In re Anthony W., supra, 87 Cal.App.4th at p. 250.)
Mother devotes a large portion of her opening brief to arguing she had demonstrated changed circumstances. We need not address this contention because we conclude she failed to show the requested change in the court's order would be in the child's best interests.
Mother acknowledges "[i]t may not have been in this child's best interest to be returned to [her] at the time of the petition filing" but claims that she considered his best interest by alternatively asking for additional reunification services or for a modification in visitation to include overnight visits. She argues the visitation logs in the section 366.26 report contained prima facie evidence that additional services or overnight visits would have been in the child's best interests. We disagree.
While this evidence may have showed mother had a bond with the child, it is insufficient to establish the court abused its discretion in concluding the prima facie burden had not been met. After reunification services have been terminated, dependency proceedings focus on providing a child with permanency and stability (Kimberly H. v. Superior Court (2000) 83 Cal.App.4th 67, 71-72), which "outweigh[s] any interest mother may have in reunification. [Citation.]" (In re Anthony W., supra, 87 Cal.App.4th at pp. 251-252.) A rebuttable presumption exists that a child's best interests is to remain in his or her existing placement. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) "To rebut that presumption, a parent must make some factual showing that the best interests of the child would be served by modification." (In re Angel B. (2002) 97 Cal.App.4th 454, 465.)
Here, at the time of the hearing on the section 388 petition, the child had been in the paternal grandparents' care for 16 months. Although designated as the child's legal guardians, they intended to adopt him once they resolved the paternal grandfather's retirement circumstances. The child was doing well in their care and had "an attachment with [them] that is not displayed with . . . mother." He does not ask for mother or mention her and has no problems ending visits.
Mother's petition failed to show "a delay in permanency" by additional reunification services or overnight visits was in the child's best interests. (In re A.S. (2009) 180 Cal.App.4th 351, 358 [section 388 petition properly denied where no reason provided why continuing dependency proceedings and delaying permanency would benefit the children]; In re Edward H. (1996) 43 Cal.App.4th 584, 594 [concluding allowing a parent "additional six months of reunification to see if [she] would and could" do what was necessary to regain custody "would not have promoted stability for the children and thus would not have promoted their best interests"].) Because the liberally construed allegations would not have sustained a favorable decision on the section 388 petition, mother was not entitled to an evidentiary hearing and no due process violation occurred. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
DISPOSITION
The order is affirmed.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
O'LEARY, J.
FYBEL, J.