In re C.M

Filed 5/4/07 In re C.M. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Valerie Skeba, Juvenile Court Referee. Affirmed.

M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Deborah L. Hale, Senior Deputy County Counsel, for Plaintiff and Respondent.

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Desiree H. (mother) appeals from an order denying her petition under Welfare and Institutions Code section 388^[1]for an order granting reunification services with A. H., born in 2006, and further reunification services with C. M., born in 2002. Mother contends it was an abuse of discretion to deny a hearing on the petition. As the petition failed to make a prima facie showing warranting a hearing, the dependency court did not abuse its discretion in denying the petition without a hearing. Accordingly, we affirm the order.

FACTS AND PROCEDURAL BACKGROUND

C., born to mother and Ralph M. in January 2002, was medically fragile and had special and unique medical problems. C. lived with mother, his two older half-siblings Eileena J. and Emery J., and maternal grandmother. Born premature at 25 weeks, he spent eight months in neonatal intensive care. He was developmentally delayed and suffered from chronic lung disease, microencephally, and gastroesophageal reflux disease. He required nine medications, a gastrostomy tube in place for feedings, physical and occupational therapy, and frequent follow-up medical examinations. Mother had a long history of substance abuse dating back to 1997 and periodically continues to abuse drugs.

In July 2004, C. was diagnosed with failure to thrive. On July 13, 2004, he was detained at Childrens Hospital Los Angeles by the Department of Children and Family Services (the Department), because mother had missed 16 of his previous 24 medical appointments and was not giving him the medicines and oxygen he required. A section 300 petition was filed.

On July 16, 2004, the Department was ordered to provide reunification services to mother, and mother was awarded monitored visits.

On October 18, 2004, C. was declared a dependent of the court under section 300, subdivision (b), based on sustained allegations that he had special medical needs and mothers ability to deal with his medical problems was limited. C. was removed from mothers custody, family reunification services were ordered, and mother was ordered to complete parenting and individual counseling to address case issues, including bonding with C.^[2] Mother was granted monitored visits and ordered to participate in C.s treatment plan at Childrens Hospital Los Angeles.

Mother did not participate in the reunification services, comply with the courts orders, or visit consistently. Her drug problem surfaced as an issue in the case when she was arrested on February 27, 2005, for possession of a controlled substance or drug paraphernalia. She admitted recent drug usage. Emery was with her in the car when the police found mother with the contraband. A subsequent petition (section 342) was filed on March 2, 2005.

On March 30, 2005, the dependency court sustained the subsequent allegations under section 300, subdivision (b), that there was a substantial risk C. would suffer serious physical harm or illness as a result of mothers failure to supervise and inability to provide regular care due to substance abuse. In addition to the previous reunification orders, drug testing and individual drug counseling were ordered. The Department was given discretion to liberalize mothers visits.

Mother showed no interest in reunifying with C. She made no progress in rehabilitation, did not visit consistently, and failed to maintain a significant bond with C. On September 28, 2005, reunification services were terminated.^[3] A permanent plan hearing was set for C. under section 366.26 for February 28, 2006.

While continuing to abuse drugs, mother became pregnant with A., who was born in January 2006 with special medical needs. The father, Luis V., had a history of substance abuse. A. suffered from arthrogryposis [joint contractures caused by a muscle disorder], multiple limb fractures, scoliosis, small muscles VSD, mild hypospadius, underdeveloped scrotum, microcephaly, multiple pterygyum syndrome, poor feeding by mouth, and drug exposure. He depended on oxygen and a feeding tube. Mother did not visit, bring him home when he was ready to be discharged, or learn how to care for his special needs. A. needed medication, a consistent, structured regime of care, and follow-up by specialists. As mother was showing no interest in him, A. was detained in the hospital on February 16, 2006. A section 300 petition was filed on February 22, 2006.

On February 22, 2006, the Department was ordered to provide mother with referrals for drug counseling and testing, parenting, and individual counseling. Mother was awarded monitored visits.

Mother tested positive for amphetamines and methamphetamines on March 14, 2006. On March 15, 2006, she enrolled in an outpatient drug treatment program. Mother and Luis lived together and were transient.

On April 18, 2006, A. was declared a dependent of the court based, as to mother, on the following sustained allegations under section 300, subdivisions (b) (failure to protect and inability to provide care due to substance abuse) and (j) (sibling abuse): mother had a history of substance abuse, was a current amphetamine abuser, abused drugs during the pregnancy with A., and continued abusing drugs after being ordered to participate in a drug rehabilitation program; A.s siblings were current dependents; mother failed to reunify with them; and services failed to resolve the problems. Custody was taken from the parents. No reunification services were ordered for mother. As reunification services were ordered for Luis with A., the dependency court set a six-month review hearing under section 366.21, subdivision (e) hearing for October 17, 2006. Mother was granted monitored visitation.

On June 27, 2006, C.s section 366.26 hearing was continued to October 30, 2006.^[4]

On September 27, 2006, mother filed a petition under section 388 to change the order made June 27, 2006, continuing C.s section 366.26 hearing to October 30, 2006, and the order made on April 18, 2006, granting reunification services for Luis and setting a six-month review hearing for October 17, 2006. Mother asked the dependency court to order a period of family reunification for both children. Mother alleged circumstances had changed in that she entered a drug program on March 15, 2006, and was doing well in the program and with visits. She alleged a period of reunification would be better for the children because they were having consistent visits and seemed bonded with her, and mother was participating in training for the childrens medical needs.

On October 4, 2006, the dependency court denied the section 388 petition without a hearing because the request did not state new evidence or a change of circumstances. This timely appeal followed.

DISCUSSION

The Order Denying Mother a Hearing on the Section 388 Petition Was Not an Abuse Of Discretion

Mother contends the order denying her section 388 petition without a hearing was an abuse of discretion, because she made a prima facie showing that circumstances had changed such that a hearing on the petition was required. Mother argues she was making progress addressing her substance abuse problem, participating in training to care for C.s and A.s special needs, and visiting regularly. She also argues, [t]his evidence did not prove with any confidence yet that [mothers] recovery would be successful long-term. But it [did] confidently indicate a serious change in [mothers] circumstances. The allegations of mothers petition are legally insufficient to warrant a hearing and, thus, denial of a hearing was not an abuse of discretion.

Section 388^[5]provides that the dependency court may modify an order if circumstances have changed such that modification would be in the childs best interest. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) The petition for modification must contain a concise statement of any change of circumstance or new evidence that requires changing the [previous] order. (Cal. Rules of Court, rule 1432(a)(6).) The petition must be liberally construed in favor of its sufficiency. (Id., rule 1432(a)[.]) As one court has explained, if the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing. [Citation.] (In re Jasmon O., supra, 8 Cal.4th at p. 415.) If it does not appear from the liberally construed allegations of the section 388 petition that changed circumstances or new evidence exists such that the childs best interest will be promoted by the proposed change of order, the dependency court will not hold a hearing and the request for modification will be denied. (Cal. Rules of Court, rule 1432(b) [If the petition fails to state a change of circumstance or new evidence that might require a change of order . . . , the court may deny the application ex parte]; In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) 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 Zachery G., supra, 77 Cal.App.4th at p. 806.)

Whether a prima facie showing is made out entitling the petitioner to a hearing depends on the facts alleged in the petition, as set out in the petitioners declaration and exhibits, and the facts concerning the child that are established by the dependency court file, such as the nature of the childs placement and when the child came into the system. (In re Angel B. (2002) 97 Cal. App. 4th 454, 461.) The dependency courts determination denying a hearing is reviewed for abuse of discretion. (Id. at p. 460.)

In deciding what services or placement are best for the child, time is of the essence. . . . [T]he priority in dependency proceedings is to identify and carry out the services and placement that best serve the child's interests as swiftly as possible. (In re Josiah Z. (2005) 36 Cal.4th 664, 674.)

The exhibits attached to the section 388 petition showed only four months of making progressfrom March 2006 until July 2006. At the end of the four months in drug treatment, mother showed a fair disposition to change her life style, had poor attendance in the beginning but subsequently attended regularly, and was working to be more open in individual counseling. Drug testing was once monthly, and mother had four negative tests from April 2006 to July 2006. She had attended twenty 12-step meetings and enrolled in a parenting class. As of July 24, 2006, mother was visiting A. regularly once a week and attending A.s medical appointments, and A. seemed to recognize mother. Mother attached no evidence supporting her declaration that she consistently visited with C. and learned how to deal with his medical needs.

The liberally-construed allegations of the petition do not warrant a hearing on the request for reunification services. Mothers effort to address her long-standing substance abuse problem was recent and of uncertain result. C. and A. needed reliable, trained caregiving to meet their special medical needs. Mother alleged no more than the beginning of a relationship with A. and no substantial development of the relationship with C. She was denied reunification services with A. because she had failed to reunify with C. or resolve the problems leading to the loss of custody. Reunification with C. was terminated after 14 months of services because mother had no significant parent-child bond and made no progress in rehabilitation. These circumstances had not changed: mother still had not reunified with C., become rehabilitated, or developed a significant bond with C. Time is of the essence in dependency proceedings. The limited progress mother alleged did not amount to changed circumstances warranting a hearing on whether the childrens best interests would be promoted by delaying permanency for C. or changing the decision not to provide a period of reunification services for her with A. Since mother did not make a prima facie showing of changed circumstances, no hearing was required. The dependency courts order was not an abuse of discretion.

DISPOSITION

The orders are affirmed.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J.

MOSK, J.

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

^[2] Eileena and Emery were also declared dependents of the court.

^[3] Reunification services regarding Eileena and Emery were terminated as well.

^[4] Parental rights to Eileena and Emery were terminated on June 27, 2006.

^[5] Section 388 provides in pertinent part that a parent may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made . . . . [] . . . [] (c) If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . .