In re Edward O.

Filed 5/14/07 In re Edward O. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

I.

Introduction

In this juvenile dependency matter regarding her son Edward O., Wanda O. (Mother) appeals orders of the juvenile court denying her Welfare and Institutions Code section 388 petition^[1]without a hearing and terminating her parental rights. We affirm because Mother did not present a prima facie case that there were changed circumstances or that the modification would be in Edwards best interests; and thus, she was not entitled to a hearing on her section 388 petition.

II.

Facts and Procedural History

In November 2005, the Mendocino County Department of Social Services (the Department) filed a petition alleging two-day-old Edward was a child described by section 300, subdivisions (b) [failure to protect] and (j) [sibling abuse or neglect]. Edward was detained shortly after his birth after hospital personnel contacted the Department regarding concerns that the mother . . . appeared to be under the influence of a drug or alcohol while giving birth to the child. On the day of his birth, Edward had THC from marijuana in his system. There were also concerns due to the lack of prenatal care until late in Mothers pregnancy.

At the time of these proceedings, Mother was 27 years old. Edward was her seventh child. With the exception of one child who died of SIDS in 1999, Mother had lost the parental rights to her five other children in dependency actions in Missouri. The reasons underlying the dependency cases involving Mothers older children were a significant and long-term history of drug and alcohol abuse; physical neglect; ongoing domestic violence; the sexual abuse of her three older children by the father of the two younger children; and Mothers failure to protect her children from his abuse. Dependency jurisdiction over Edward was established on January 11, 2006.

On March 1, 2006, in accordance with the Departments recommendation, the court bypassed reunification services under section 361.5, subdivision (b)(11) and set the matter for a section 366.26 hearing.^[2] The Department cited several reasons for bypassing reunification services, including Mothers long and debilitating history of alcohol and drug abuse and her documented history of starting services, and relapsing into alcohol and drug abuse.

The court also had before it a court-ordered psychological evaluation regarding Mother completed on February 6, 2006. The psychologist found Mother exhibited impaired judgment, insight, distorted logic, failure to learn from her experiences, and a lack of ability to take responsibility for her actions. She still did not demonstrate insight about, responsibility for, or remorse about losing her parental rights to her five older children. As a result, the psychologist reported that Mother will only be benefiting from treatment in a rather superficial manner, and this will not sustain her during periods when she experiences some distress . . . . The psychologist further indicated that even if reunification services were ordered, it was unlikely that she will make substantial progress in a twelve month period such that she will be able to have her child returned to her.

On October 16, 2006, Mother filed a section 388 petition seeking to modify the courts March 1st order denying reunification services. Her section 388 petition sought six months of reunification services. In support of the requested modification, the petition alleged that she has engaged in and completed various services on her own, achieved an income, abstained from mind-altering substances, enrolled in college and formulated career goals, all of which indicate substantial change in her character and potential to benefit from services and parent her child. On October 16, 2006, the court found Mothers section 388 petition did not state a prima facie case; consequently, the court denied it without holding an evidentiary hearing.

At the October 19, 2006 contested section 366.26 hearing, the court found Edward to be an adoptable child and that adoption was in his best interests. The court terminated Mothers parental rights and selected a permanent plan of adoption for Edward. This appeal followed.^[3]

III.

Discussion

As her sole contention on appeal, Mother contends the juvenile court abused its discretion by denying an evidentiary hearing on her section 388 petition because she made a prima facie showing that her circumstances had changed and that it was in Edwards best interests to grant the petition.

[T]o be entitled to a hearing on a [section 388] petition for modification, a parent must show changed circumstances and it must appear that the best interests of the child may be served by a change in the order. [Citations.] (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432.) Section 388 petitions are to be liberally construed in favor of granting a hearing to consider the parents request. [Citations.] The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.] (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.) A prima facie showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited. [Citation.] (In re Edward H. (1996) 43 Cal.App.4th 584, 593.)

In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451; In re Angel B. (2002) 97 Cal.App.4th 454 (Angel B.).) The parent bears the burden of showing both a change of circumstance exists and that the proposed change is in the childs best interests. [Citation.] (In re Casey D. (1999) 70 Cal.App.4th 38, 47 (Casey D.).) This is a difficult burden to meet in many cases, and particularly so when . . . reunification services have been terminated or never ordered. (Angel B., supra, 97 Cal.App.4th at p. 464.) We will not reverse the decision of the juvenile court unless the parent establishes that the court abused its discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

Mother alleges as changed circumstances that she has maintained visits with Edward on a weekly basis, began attending college as a full-time student, successfully applied for Medi-cal and Disability, remained drug free, and completed numerous classes including: Break the Cycle, Communication, and Discipline with Confidence. Mother also reminds us that she was making these changes on her own without the benefit of any Department assistance.

Basically, Mothers argument on appeal is that being drug free for approximately 10 months and enrolling in supportive programs is a prima facie change of circumstances warranting the grant of six months of reunification services. Under the circumstances of this case, however, we are forced to disagree. These developments, as positive as they are, did not constitute changed circumstances; at most, they showed changing circumstances regarding Mothers ability to remain drug and alcohol free and to acquire the emotional stability necessary to safely parent a child.

Although Mother was certainly making progress, her changes were not significant when measured against her many years of alcohol and drug abuse, which had already caused her to lose custody of five other children. At the dispositional hearing, Mother testified about the myriad of services she had received in the past in conjunction with her older childrens dependency cases. For example, during her prior dependency cases in Missouri she had completed an in-patient treatment program followed by four months of outpatient care. She had participated in substance abuse treatment for about five months. She had completed several months of parenting classes. She had also previously attended psychological counseling. Unfortunately, Mother was unable to benefit sufficiently from any of these reunification services to prevent the termination of her parental rights to her five older children, and she continued to deny her role in their abuse.

Despite having five children removed from her care due to alcohol and drug use and her various attempts at treatment and sobriety, Mother acknowledged that while pregnant with Edward, she relapsed into drug use, smoking marijuana twice a week and neglecting his prenatal care. As our Supreme Court has observed: Experience has shown that with certain parents, as is the case here, the risk of recidivism is a very real concern. Therefore, when another child of that same parent is adjudged a dependent child, it is not unreasonable to assume reunification efforts will be unsuccessful. (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 745.)

Echoing the above-quoted passage, a psychological evaluation was conducted, which found Mother was not likely to benefit from reunification services because of the factors that adversely affect her capacity to parent her child including her poor judgment, lack of insight, and difficulty taking responsibility for her own behavior. The psychologist advised against reunification and said Mother has a lack of insight or understanding of her emotions which would make it unlikely she could benefit from any of the services received.

Thus, while Mothers efforts are certainly commendable, the court could properly find she had not demonstrated a significant period of sobriety or stability to establish changed circumstances sufficient to warrant a modification of the courts order denying her reunification services. The court could reasonably find Mother had only just begun addressing her problems, and thus her circumstances in this regard were only changing, not truly changed. (See Casey D., supra, 70 Cal.App.4th at p. 49 [to be entitled to a hearing on a section 388 petition, parent must show the circumstances had changed, not that they were merely changing]; Angel B., supra, 97 Cal.App.4th at p. 463 [summary denial of section 388 petition affirmed where there was no evidence that Mother was ready to assume custody of [the child] or provide suitable care for her . . . .]); In re Anthony W. (2001) 87 Cal.App.4th 246, 251, fn. 4 [summary denial of section 388 petition affirmed where mother made no showing she could demonstrate at a hearing that she had overcome the problems which led to the dependency jurisdiction.].)

Nor did Mothers section 388 petition establish a prima facie showing that granting the petition would be in Edwards best interests. (Casey D., supra, 70 Cal.App.4th at p. 48.) After the reunification phase has ended, the focus of dependency proceedings  shifts to the needs of the child for permanency and stability [citation] . . . . (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Therefore, at this stage of the proceedings, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.] (Ibid.) [S]uch presumption obviously applies with even greater strength when the permanent plan is adoption rather than foster care. (Angel B., supra, 97 Cal.App.4th at p. 464.) To rebut that presumption, a parent must make some factual showing that the best interests of the child would be served by modification. (Id. at p. 465.)

Here, Mother presented no evidence to rebut this presumption. As the court in Angel B. noted, it is difficult to imagine how she could have done so, given the fact that she never actually parented Edward before his removal. (Angel B., supra, 97 Cal.App.4th at p. 465.) As was the case in Angel B., Edward was taken from Mother directly from the hospital within days of his birth. In February 2006 Edward was placed with a foster family who wish to adopt him, and it is reported he has thrived physically and emotionally in their care. It is his prospective adoptive parents, not Mother, who have provided Edward with all the day-to-day, hour-by-hour care needed by a helpless infant and then growing toddler. (Ibid.) By contrast, Mother has had only monitored visits with Edward and such visits, in total, add up to only a tiny fraction of the time [the child] has spent with the foster parents. (Ibid.) In summary, Mother did not show that it would be in Edwards best interests to order six months of reunification services. Such a course of action would delay permanency and stability for a child who had been in foster care his entire short life.

IV.

DISPOSITION

For the foregoing reasons, the juvenile court did not abuse its discretion by denying Mother an evidentiary hearing on her section 388 petition.

The judgment is affirmed.

_________________________

Ruvolo, P. J.

We concur:

_________________________

Sepulveda, J.

_________________________

Rivera, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^[1] All statutory references are to the Welfare and Institutions Code. Under section 388, a party may petition the court to change, modify or set aside a previously made court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there is a change of circumstances, and (2) the proposed change is in the childs best interests. ( 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416 (Jasmon O.).)

^[2] Section 361.5, subdivision (a) directs the juvenile court to order reunification services whenever a child is removed from the custody of the parent unless the case falls within one of the 15 enumerated exceptions in section 361.5, subdivision (b). (Rosa S. v. Superior Court (2002) 100 Cal.App.4th 1181, 1188.) The juvenile court ordered a bypass of reunification services pursuant to section 361.5, subdivision (b)(11). Under the statute, [r]eunification services need not be provided to a parent or guardian . . . when the court finds, by clear and convincing evidence, any of the following: [] (11) That the parental rights of a parent over any sibling or half-sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling of that child from the parent. It has been said that section 361.5, subdivision (b) is a legislative acknowledgement that it may be fruitless to provide reunification services under certain circumstances. [Citation.] (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.)

^[3] Mother filed a notice of appeal from both the denial of the section 388 petition and the termination order, but presents appellate argument only regarding the 388 petition. We tailor our discussion accordingly.