In re Alfonso T.

Filed 3/7/07 In re Alfonso T. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from judgments of the Superior Court of San Diego County, Joe O. Littlejohn, Judge. (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.) Affirmed.

Virginia U. appeals following the judgments terminating her parental rights over Alfonso T., Diego T., and Daisy T. Virginia contends the juvenile court abused its discretion by summarily denying her Welfare and Institutions Code section 388^[1]modification petition and therefore the ensuing termination of parental rights was error. We affirm.

BACKGROUND

Virginia has a record of child neglect referrals dating from 1994. The earlier referrals concern her oldest daughter, who lived with her biological father during the pendency of the instant case. This case arose out of the 14th referral and concerns Virginia's three youngest children.

On July 6, 2005, the San Diego County Health and Human Services Agency (the Agency) filed dependency petitions, which alleged as follows. Virginia and Travis T., the presumed father of Alfonso, Diego, and Daisy, used marijuana. They admitted using it on the morning of June 30, and there was marijuana and drug paraphernalia in their home. Travis had completed only 10 days of a 30-day drug detoxification program. The family home was dirty, with little food.

At the time the petitions were filed, Alfonso was five years old, Diego was one and one-half years old, and Daisy was four months old. The children were detained with their paternal grandparents, where they were later placed and where they remain.

At the detention hearing, the court referred Virginia to the Substance Abuse Recovery Management System (SARMS) and ordered supervised visitation. Virginia failed to appear for a July 15, 2005 meeting with the social worker. At a July 27 meeting, Virginia seemed agitated, with rapid speech and dilated pupils, but denied being under the influence of drugs. She said that she had tried methamphetamine when she was younger, but did not like it. She denied using alcohol, marijuana, or any other drugs, and denied neglecting the children.

At the September 13, 2005 jurisdictional and dispositional hearing, the court entered true findings on the petitions, ordered Virginia to comply with the case plan and participate in SARMS, and advised her that she might be allowed only six months to reunify with the two younger children ( 361.5, subd. (a)(3)). After a SARMS assessment and intake interview, she was instructed to attend outpatient treatment five times a week at Healthy Beginnings, starting in early October. Her initial drug test was positive for amphetamine/methamphetamine and she did not appear for her first appointment at Healthy Beginnings. On October 12, she had another positive drug test. She did not make arrangements for further tests and did not appear for her first SARMS review hearing on October 27. The court concluded that her progress in SARMS was fair, issued a bench warrant, and ordered it withheld until December 1. Virginia did not appear for her second SARMS review hearing on December 1. The court concluded that her compliance with SARMS was poor and ordered the bench warrant to go forth. On December 15, SARMS discharged Virginia for noncompliance.

On January 10, 2006, Virginia contacted the Agency and asked for visitation and a special hearing for readmittance into SARMS. She said that she had been homeless, and had used methamphetamine a few times, but denied current use. At a supervised visit with the children on January 12, Virginia did not interact with them much and appeared to ignore Alfonso. She told the social worker that she had been clean for at least six months. Virginia left the visit early.

At a January 19, 2006 visit, Virginia asked Alfonso about his visits with Travis and where Travis was living. She spoke about the paternal grandparents in an angry tone. After the social worker told her to focus on the children, Alfonso initiated a game with Virginia and she played with the children appropriately until the end of the visit. At a January 29 visit, Virginia was affectionate and attentive, and displayed concern for the children's safety, but was unable to set limits and redirect their behavior. She failed to appear for a February 5 visit.

The social worker requested a special hearing regarding SARMS reinstatement, and on February 7, 2006, the court recalled the bench warrant and granted the Agency's request that Virginia be ordered back into SARMS. On February 9, Virginia called SARMS to schedule an assessment, which she later rescheduled due to a work conflict. At a February 12 visit, she was not attentive to the children, and was unable to set limits and redirect them. On February 17, the day of the SARMS assessment, she tested positive for methamphetamine. She again tested positive on February 21, and failed to appear for a March 3 drug test.

At a visit with the children on March 5, 2006, Virginia was inattentive, became angry with the visitation supervisor, and left the visit early. When Virginia missed seven of 10 visits, the visitation center stopped providing supervision. After that, she tended to show up at the paternal grandparents' home unannounced, and generally interacted with the children for only five to 10 minutes. On April 5, the court terminated reunification services and set a section 366.26 hearing for August 3.

On July 28, 2006, the social worker observed a visit that went well. The first week in August, the social worker was unable to supervise visits, so none took place. Virginia said that she would call the paternal grandparents and request a visit in their home, but no such visits took place.

On August 3, 2006, Virginia's counsel informed the court that she intended to file a section 388 petition. The court set a due date of August 25 and set a contested section 366.26 hearing for September 5. On August 18, Virginia told the social worker that she felt guilty visiting with the children, knowing that she was not drug free. The social worker recommended that she enroll in a drug treatment program. On August 21, Virginia had a visit with the children that went well. By late August, visits had become less frequent and the children typically did not ask to see Virginia "when a long time passes." On August 28, Virginia filed her section 388 petition. On September 5, the court summarily denied the petition and terminated parental rights.

DISCUSSION

"A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. [Citation.] A parent need only make a prima facie showing of these elements to trigger the right to a hearing on a section 388 petition and the petition should be liberally construed in favor of granting a hearing to consider the parent's request. [Citation.] [] However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] The prima facie requirement is not met unless the facts 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.)

Virginia's section 388 petition sought modification of the order terminating reunification services and setting the section 366.26 hearing. It asked that the court vacate the section 366.26 hearing and reinstate her services. As changes of circumstances, the petition alleged that Virginia completed a parenting class on April 26, 2006; had been employed with the International Longshore Warehouse Union since 1997; attended two Narcotics Anonymous meetings a week; and recognized that she had a drug problem and was willing to receive treatment. The petition alleged that the proposed change was in the children's best interests because she had a steady job and was financially able to support them, they spent much of their lives with her before their removal, they appeared to enjoy visits, and the children should be "ke[pt] together as one unit."

On August 3, 2006, the court ordered Virginia to return to court on September 5. Virginia did not appear on September 5. Her attorney requested a continuance, saying she did not know why Virginia was absent. The court denied the request. It then heard arguments concerning whether it should grant an evidentiary hearing on the section 388 petition. Virginia's counsel argued that the parenting course certificate attached to the petition, dated after the termination of services, and Virginia's acknowledgement that she had a substance abuse problem, which she had not acknowledged when services were terminated, both showed changed circumstances.

The court summarily denied the petition. It noted that Virginia was not present to testify, so that her asserted recognition of her drug problem was simply an allegation; there was no foundation for the parenting class certificate; and there was no testimony from Virginia that she attended Narcotics Anonymous meetings twice a week. The court stated that Virginia had always been employed, so her stable employment was not a changed circumstance, nor was it a factor showing that the proposed change would be in the children's best interests, as her ability to support them financially had never been an issue. The court also observed that the children were placed together, the paternal grandparents wanted to adopt, and there were other prospective adoptive parents for the sibling group.

At that point, Virginia entered the courtroom. The court invited the parties to enter a stipulation regarding her testimony. The parties stipulated that if called to testify, Virginia would testify to the information in the petition.

The court then stated that it would still deny an evidentiary hearing. It found that Virginia's proffered testimony that she attended Narcotics Anonymous meetings twice a week and now recognized that she had a drug problem was an insufficient showing of changed circumstances. It noted that she was "scratching the very tip of an iceberg" and had not said that she was in residential drug treatment. The court concluded that Virginia fell "far short" of establishing the second prong of section 388, the children's best interests.

The court did not abuse its discretion by determining that Virginia had failed to make a prima facie showing that circumstances had changed in the five months since it had terminated reunification services. At the outset of this case, Virginia had stable employment, and her ability to support the children financially was never in question. Thus, her employment was not a change of circumstances.

Before the court terminated services, Virginia apparently attended four sessions of a parenting class, ending on March 1, 2006. The parenting certificate attached to the petition, showing completion of a 24-hour parenting class on April 26, three weeks after the court terminated services, must be viewed in the context of her interaction with the children. Throughout the case, her relationship with them was inconsistent. By the time of the hearing at issue, visits had become less frequent, the children did not seem to be attached to Virginia, and their relationship had deteriorated. Moreover, Virginia did not claim that she benefited from the parenting class. For these reasons, the evidence concerning her completion of a parenting class was insufficient for a prima facie showing of changed circumstances.

Virginia's acknowledgement that she had a drug problem, her willingness to receive treatment, and her attendance at two Narcotics Anonymous meetings a week were also insufficient as a prima facie showing of changed circumstances. In view of her positive drug tests during the course of the dependency, her failure to cooperate with SARMS, and her termination from that program, she needed to provide, at a minimum, information regarding her sobriety and the treatment plan she intended to pursue. She made no claim that she was sober and, indeed, fewer than three weeks before the hearing, indicated "that she [was] not drug free."

Virginia cites testimony given during the section 366.26 hearing, following the denial of an evidentiary hearing on her section 388 petition, and asserts that the court found that her visitation was "consistent and significant, even if not totally predictable." Actually, the court found that her visitation was "consistent," although "random," and "not . . . regular and predictable." In any case, a finding based on evidence adduced after the denial of an evidentiary hearing cannot be used to support Virginia's argument that the court should have granted her an evidentiary hearing.

Nor did the court abuse its discretion by determining that Virginia had failed to make a prima facie showing that her proposed change was in the children's best interests. The court correctly noted that she had been employed throughout this case and her ability to support the children financially was never an issue. While at times the children appeared to enjoy visits, by the time of the hearing, as noted above, Virginia's relationship with them had deteriorated. Although the children's detention in this case was the first time they had been removed from Virginia's custody, the paternal grandparents had often cared for them for extended periods even before the detention. Finally, the children had been placed together for the entire case, the paternal grandparents wanted to adopt them, and there were two other approved adoptive families willing to take a sibling group such as this one, allowing them to remain together.

The court did not abuse its discretion by summarily denying Virginia's section 388 petition.^[2] In light of our conclusion, we need not discuss her contention that the juvenile court erred by terminating her parental rights, as that contention is premised solely on her incorrect assertion that the summary denial of her section 388 petition was erroneous.

DISPOSITION

The judgments are affirmed.

HALLER, Acting P. J.

WE CONCUR:

McINTYRE, J.

AARON, J.

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^[1] All statutory references are to the Welfare and Institutions Code.

^[2] Virginia also asserts that she was offered "only approximately six months of services." Actually, she was referred to SARMS at the detention hearing. At the jurisdictional and dispositional hearing, almost seven months before the court terminated services, she was ordered to comply with the case plan and participate in SARMS. Throughout the case, even after the court terminated services, she was allowed visitation. The problem was not a failure to offer services, but rather Virginia's failure to participate in the services offered.