In re Jaime L.

Filed 8/1/07 In re Jaime L. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 an order and judgment of the Superior Court of San Diego County, Cynthia Bashant, Judge. Affirmed.

Ada L. appeals an order denying her Welfare and Institutions Code section 388^[1]petition, in which she sought placement with her of her son, Jaime L., and family maintenance services. She also appeals the judgment terminating her parental rights to Jaime. She contends the court abused its discretion by denying her section 388 petition because she showed her circumstances had changed and granting the petition would promote Jaime's best interests. She also contends that reversal of the order denying her section 388 petition necessarily results in a reversal of the judgment terminating her parental rights. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 12, 2005, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of four-month-old Jaime, alleging he was at risk because Ada has a mental illness and Jaime, who was born prematurely, will require specialized medical care that Ada cannot provide. The social worker reported Jaime was born four months prematurely with numerous complications.

Ada's father sexually abused her as a child, and she was placed in foster care after she reported the abuse. Her first two children were born when she was a teenage foster child. These children were taken into protective custody and she did not reunify with them. Her next three children also became dependents of the court and she did not reunify with them. The psychologist who evaluated Ada in October 2005 concluded she suffered from chronic depression, had poor social judgment, displayed immaturity and instability, and was unlikely to be able to maintain an appropriate parent-child relationship. He said she tended to blame others for her adjustment difficulties, and diagnosed her condition as an adjustment disorder with mixed anxiety and depressed mood and a personality disorder.

On January 19, 2006, Ada submitted to the petition on the basis of the social worker's reports. The court placed Jaime in foster care and ordered services.

By the time of the six-month hearing on July 11, 2006, the Agency recommended terminating services and setting a section 366.26 hearing. The social worker reported Jaime continued to have significant medical issues. Ada had completed a parenting class and had been participating in individual therapy and gastrostomy tube feeding training, but the social worker was concerned about her long child protective history, caused by her mental illness, substance abuse and violent tendencies. Ada had visited Jaime on a sporadic basis while he remained in the hospital for the first four months of his life. She also had been inconsistent in attending his medical and occupational therapy appointments. At the close of the hearing, the court terminated services and set a section 366.26 hearing.

For the section 366.26 hearing, the social worker reported that by the time he began working on the case in September 2006, Ada was having regular contact with Jaime during his medical and therapy appointments and she acted appropriately during these visits. However, he said she lacked the medical skills necessary to care for Jaime. The social worker stated Jaime was adoptable because his current caretaker, who had adopted his older half-brother, wanted to adopt him, and there were 12 other approved adoptive families who wanted to adopt a child like Jaime.

On February 20, 2007, Ada petitioned under section 388, requesting the court place Jaime with her and order family maintenance services.

For the combined sections 388 and 366.26 hearings, Jaime's occupational therapist testified Ada had attended all of Jaime's twice-weekly appointments since August 2006. Ada was appropriate during appointments and would often take notes and ask questions. Jaime's physical therapist testified Ada had been consistent in attending his therapy appointments since August 2006 and understood the purposes of his physical therapy. The public health nurse testified Ada could use the gastrostomy feeding tube. The social worker said that although Ada had been visiting regularly, she did not take advantage of additional visits that were offered and there was little interaction between Ada and Jaime during appointments. He questioned her competency in using the gastrostomy feeding tube. Ada testified she believed she could care for Jaime. She had met with all of his doctors and would keep a list of appointments if he were in her care.

At the close of testimony and argument, the court denied Ada's section 388 petition, finding that although Ada may have shown changed circumstances, she had not shown it would be in Jaime's best interests to remove him from his foster home and place him with Ada. After further argument, the court terminated Ada's parental rights and ordered adoption as the permanent plan.

DISCUSSION

Ada contends the court abused its discretion by denying her section 388 petition. She asserts she showed her circumstances had changed because she had attended all of Jaime's appointments and demonstrated her competence in meeting his medical needs. She argues his best interests would be promoted by granting the petition.

Section 388 provides in part:

"(a) Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of the court previously made or to terminate the jurisdiction of the court. . . . [] . . . []

"(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 . . . ."

To gain the relief sought in a section 388 petition, the petitioner must show both a change of circumstances or new evidence and that the change sought is in the child's best interests. ( 388; Cal. Rules of Court, rule 5.570; In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) "It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must [also] show that the undoing of the prior order would be in the best interests of the child." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) A petition is liberally construed in favor of its sufficiency. (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) The petitioner bears the burden of proof, however, to make both showings. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)

Even assuming that Ada showed a change of circumstances, the court did not abuse its discretion by denying the petition on the basis that placing Jaime with Ada would not be in his best interests.

Ada's psychological evaluation concluded she has poor social judgment and continued to blame others for her problems. There were ongoing concerns about her dependence on men and her abusive relationships. Her therapist reported she could not assess whether unsupervised visits or placement would be advisable because she had not observed Ada with Jaime.

Ada did not visit Jaime regularly during the first four months of his life when he remained at the hospital. During the months she was receiving reunification services, she did not have regular contact with him and did not consistently attend his medical or therapy appointments. After services were terminated, Ada began attending Jaime's appointments, but she did not regularly visit him outside of these scheduled times and interacted little with him during the appointments she attended. The social worker testified there was only a limited bond between them. Although Ada had been going to Jaime's appointments, she did not show she was able to take care of his medical needs independently and did not progress to unsupervised visits. She had never given Jaime his numerous medications, cleaned his stomach area, completed an entire feeding procedure, used the nebulizer or administered his required exercises without supervision.

Jaime and Ada did not share a parent-child bond. By the time of the hearing, he had lived for 10 months in his foster home. He was bonded to his foster mother and to his older half-brother, who had been adopted by the foster family. Ada had serious mental health and relationship problems, and she had not completed her treatment program or dealt sufficiently with the problems that had led to her losing custody of her five older children to be able to care for a child with Jaime's special needs. The court did not abuse its discretion by finding it would not serve Jaime's best interests to remove him from the home he shared with his half-brother and his foster mother and place him with Ada.

DISPOSITION

The order and judgment are affirmed.

McDONALD, J.

WE CONCUR:

HALLER, Acting P. J.

AARON, J.

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