In re Selena L.

Filed 4/20/07 In re Selena L. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from orders of the Superior Court of Madera County. Nancy C. Staggs, Temporary Judge.^*

Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.

David A. Prentice, County Counsel, and Miranda Neal, Deputy County Counsel, for Plaintiff and Respondent.

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In this dependency proceeding, Crystal L. (mother) appeals orders denying her modification petition under Welfare and Institutions Code section 388.^[1] We find no abuse of discretion and affirm.

PROCEDURAL AND FACTUAL HISTORY

A juvenile dependency petition filed September 26, 2005, alleged that mother had put her child, Selena L., age two, at risk due to her drug use and failure to protect the child from domestic violence in the home. It was further alleged that mother had attempted suicide and had a history of mental health problems. In a contested jurisdiction hearing held October 21, 2005, the court found the allegations of the petition true. The disposition report stated that mother, who first used drugs at age 11, described herself as a functioning drug addict, but had begun mental health and drug counseling and had been accepted into an inpatient drug treatment program. At the subsequent disposition hearing held November 2, 2005, reunification services were ordered for mother and Selena was continued in foster care.

On April 14, 2006, a second juvenile dependency petition was filed alleging that mother put her newborn, N.L., at risk by her drug use. Because methamphetamine was detected in N. at birth, he was placed in protective custody. Mother admitted to the social worker that she had not participated in previously ordered reunification services.

A status review report as to Selena, filed May 1, 2006, stated that mother admitted she was still addicted to methamphetamine. Mother tested positive on several occasions for drugs, she failed to attend counseling regularly and, because she left inpatient drug treatment twice, she was not eligible for outpatient services. Mother did keep most of her scheduled visits with Selena.

On May 23, 2006, at the six-month review hearing, services as to Selena were terminated and the matter set for a section 366.26 hearing to be held September 13, 2006. Also on May 23, 2006, the contested jurisdiction hearing as to N. was held and the petition sustained. The following day, mother filed a notice of intent to file a writ petition as to Selena.

The report filed June 6, 2006, in anticipation of N.s disposition hearing, stated that mother was recently employed. Mother told the social worker that she had started using marijuana and cocaine at age 12, quit at age 15, but relapsed at age 20, and began using methamphetamine and marijuana. Mother claimed to have stopped using drugs on April 9, 2006, and was participating in reunification services. Mother tested negative for drugs on May 15, and June 2, 2006.

The Madera County Department of Public Welfare (Department) recommended further services for mother be denied because of her failure to reunify with Serena ( 361.5, subd. (b)(10)); because mother had been convicted of a violent felony, a robbery, in 1993 ( 361.5, subd. (b)(12)); and because of mothers drug history and her failure to rehabilitate or complete a drug treatment program ( 361.5, subd. (b)(13)).

An addendum report filed July 14, 2006, stated that mother completed a parenting class, regularly attended Narcotics Anonymous meetings, and was participating in counseling. But the Department recommended the denial of further services as to N. because of mothers lengthy drug addiction and her inconsistent performance in both in and out patient substance abuse treatment.

On July 19, 2006, following a contested disposition hearing, services were terminated as to N. and the matter set for a section 366.26 hearing to be held November 17, 2006.

Mother filed a notice of intent to file a writ petition as to N. on July 21, 2006. The petition was never filed and the action deemed abandoned by this court on September 12, 2006 (case No. F050863). Mothers writ petition as to Selena was denied by this court on August 8, 2006, and became final on September 11, 2006 (F050466).

On August 31, 2006, mother filed a section 388 petition seeking further reunification services for both children and requesting that a bonding study be done. In her motion, mother stated she had not used drugs since the July 19, 2006, hearing and that it would be in her childrens best interests to be raised by her. In an attached declaration, mother said she had not used illegal drugs since her last positive test seven or more months ago, that her sobriety had made her eligible for housing, that she had attended Alcoholics Anonymous/Narcotics Anonymous meetings since her services were terminated, and that she and her children shared memories and had a bond and family history. Mother also submitted a letter showing she had been employed as a motel worker since July 15, 2006, and that she was doing well in her job. She also submitted a letter from her therapist stating she had a good to excellent prognosis for recovery.

The juvenile court signed the petition and checked the box which stated:

The best interest of the child may be promoted by the requested new order, and either (a) the request states a change of circumstances or new evidence, or (b) the request has been filed for the purpose of asserting a brother or a sister relationship with the child.

The underlining of the word may was added to the printed text. A hearing was set for September 5, 2006.

At the September 5, 2006, hearing, the juvenile court stated that it would not consider a bonding study without a whole lot more information, noting particularly that N. never lived with mother. The court also stated that the section 388 petition doesnt give me any facts to support in number seven why would changes you are requesting be better for the child[.] Instead, the court stated, the petition consisted of only of

a conclusionary statement that shes bonded with her children and theyve bonded with her. It would be in her best interest to be raised by myself. Im just reading exactly what you wrote here. Those are conclusions, not facts, as to why they should be taken out of where they are and placed in the mothers home.

The court advised mother to recite facts, not conclusions as to why the children should be placed with her.

The juvenile court continued the hearing to September 8, 2006, to allow proper service of the section 388 petition on county counsel and counsel for the minors and to allow mother to supplement the petition to provide more facts as to why it would be in the best interests of the children to be placed with mother.

Mother filed addendums to the section 388 petition on September 7, 2006. In her addendum, mother stated that she was living drug free, that she had the support of the recovery community, that she was offered assistance in obtaining housing, that she was attending support groups, and that she visited with her children regularly. Mother attached proof that she had tested negative for drugs on August 31, 2006. Mother also continued to request a bonding study, claiming the children, who were placed together, had a sibling bond.

The Department filed an opposition to the petition and to mothers bonding study request. The Department argued that reunification services could not be extended as to Serena because the reunification period had expired pursuant to section 361.5, subdivision (a). According to the Department, since Serena was under the age of three when she was initially removed, reunification services were limited to six months, and mother had been given approximately eight months of services. The Department also alleged that mother had not stated how further reunification services would be in the minors best interests.

The section 388 petition was heard on September 8, 2006. The Department acknowledged that mother had made recent gains, but noted mothers drug problems were lengthy and not likely to reverse in a short time. The Department argued that mothers relationship with N. was attenuated because he was removed as an infant. Counsel for the minors agreed with the Department. Counsel argued mother had not made significant progress showing a change in circumstance, and also that mother had not shown any change that would be in the childrens best interests. Mothers counsel argued that she was not seeking immediate return of the children, only additional services.

The juvenile court stated:

I note that the department actually took jurisdiction over Selena 12 months ago. So under statute I cant grant her anymore services. The first six months is all really she had because Selena was under the age of three when she was removed from mom. The statutes provide for services for the first six months and at the end of those six months if shes substantialy [sic] or substantively applied herself with those services the department could recommend and the Court can order another six months.

For Selena her time is up. Theres no more time available. So even if I granted the petition, it would not only be contrary to what the department wants, it would be in opposition in contrary to what the law provides.

She didnt do anything for the first six months. So technically we were correct and the Court of Appeal already affirmed what we did at the end of the first six months with Selena in saying that mom didnt comply during the first six months excuse me. Selena was under the age of three. Mom didnt comply during the first six months so we proceeded to setting the .26 hearing at the end of the six months because at the end of six months mom was still using. In fact he delivered a positive tox baby after the six months of when the time expired with Selena.

As for N., the trial court stated that he had never lived with mother, and that despite mothers current status of being drug free, we have to look to what is in the best interest of the child. The court stated that N.s interest was for permanence and stability and the mother just doesnt have enough time into the recovery process to convince the Court that that recovery process is going to provide a reliably stable environment for that infant.

The juvenile court denied the section 388 petition as to both Selena and N. Mother now appeals.

DISCUSSION

Denial of the Section 388 Petition

Mother contends that the trial court erred by denying her section 388 petition. She offers several theories to support her contention. We disagree and affirm.

Section 388 provides in pertinent part that,

(a) Any parent 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 court previously made or to terminate the jurisdiction of the court. The petition shall set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order or termination of jurisdiction. ( 388, subd. (a).)

Under subdivision (c) of section 388, the trial court is required to hold a hearing on the petition [i]f it appears that the best interests of the child may be promoted by the proposed change order . Further details are provided in former rule 1432 of the California Rules of Court:

(a) A petition for modification must be liberally construed in favor of its sufficiency. []  [] (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. [] (c) If the petition states a change of circumstance or new evidence and it appears that the best interest of the child may be promoted by the proposed change of order , the court may grant the petition .[] (d) If all parties stipulate to the requested modification, the court may order modification without a hearing. If it appears to the court that the requested modification will be contested or if the court desires to receive further evidence on the issue, the court must order that a hearing on the petition for modification be held .

A parent seeking modification must make a prima facie showing to trigger the right to proceed by way of a full hearing.

There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.] If the liberally construed allegations of the petition do not show changed circumstances such that the childs 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.)

Mother first claims that the juvenile court, by signing the August 31, 2006, order, found that mother had made a prima facie case that the best interests of her children might be promoted by the requested new order, and, as a result, the juvenile court was without jurisdiction to subsequently set aside its previous order on the basis of argument at hearing alone at the September 8, 2006, hearing. We disagree.

The statute and rule delineate a two-stage process for evaluating modification petitions. First, the juvenile court makes a preliminary determination of whether the petition alleges facts sufficient to justify modification. Second, if the court finds the petition to be sufficient on its face, the court holds a hearing to test the factual allegations and make a final decision.

At the preliminary stage, the juvenile court presumes that the facts stated in the petition are true and merely assesses whether that evidence would justify a modification. At this stage, the petition need only make a prima facie showing in favor of modification by presenting facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited. [Citation.] [Citation.] (In re Josiah S. (2002) 102 Cal.App.4th 403, 418.) [I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court must order the hearing. (In re Angel B. (2002) 97 Cal.App.4th 454, 461.)

Here, the order signed by the juvenile court correctly followed the first stage of the two-stage process for evaluating a modification petition. By signing the order, the juvenile court did not make the requisite finding of changed circumstance in the best interests of the children necessary to grant a section 388 petition. Instead, it found a prima facie showing sufficient to grant mother the opportunity to be heard on the matter by properly setting a hearing date. Mothers argument that the juvenile court was without jurisdiction on September 8, 2006, to set aside its previous order is without merit.

Mother next contends that the juvenile court erred when it denied her petition without a full hearing. We disagree that the juvenile court summarily denied her petition.

Helpful to our analysis is In re Edward H., Jr. (1996) 43 Cal.App.4th 584, in which the parents similarly claimed that the court denied their respective section 388 petitions without a hearing. The court in Edward H. observed, as a preliminary matter, that the juvenile court did not deny the petitions ex parte, but conducted hearings on the separate section 388 petitions filed by the parents, though the hearings were not evidentiary in nature. (In re Edward H., Jr., supra, at p. 591.) At the hearings, the juvenile court inquired specifically about the fathers compliance with the courts prior orders, and, in effect, gave the father an opportunity to amend his petition or make an offer of proof that would justify an evidentiary hearing, before denying the fathers request for such a hearing and, subsequently, the petitions. (Ibid.)

Here, as shown above, a hearing was scheduled on the section 388 petition on September 5, 2006. At that time, the juvenile court informed mother that it would need additional information before it considered a bonding study, and that the section 388 petition did not give facts to support why the requested changes would be better for the child. The court continued the matter until September 8, 2006, to allow mother to add additional information. At the subsequent September 8 hearing, argument was heard from the Department, counsel for the minors, and mothers counsel before the petition was denied. This is therefore not a case in which the petition was summarily denied without a hearing, although the hearing was not evidentiary in nature.

We also note that, unlike the father in In re Edward H., Jr., mother made no request for a further hearing. Neither mother nor her counsel asked to produce any witnesses or additional documentary evidence in support of their position. (See In re Clifton V. (2001) 93 Cal.App.4th 1400, 1405-1406 [juvenile court erred when it refused mothers request to permit live testimony and cross-examination of witnesses to resolve credibility issues].) Apparently, here, mother and counsel thought the attachments to the petition adequately demonstrated changed circumstances. They acquiesced in the procedure that was used, and may not now successfully claim that the hearing was inadequate. Former rule 1432(f) of California Rules of Court specifically stated: [P]roof may be by declaration and other documentary evidence, or by testimony, or both, at the discretion of the court. Mother has not shown an abuse of discretion in the hearing procedure used.

Finally, mother contends that the juvenile court abused its discretion because it applied an incorrect legal standard in denying her petition. According to mother, the juvenile court acted solely on its assumption that it could not, under any circumstance, extend mothers reunification services beyond 12 months. We find no prejudicial error.

Section 361.5, subdivision (a)(2) provides that if a child is under three years of age when he or she was initially removed from parental custody, the time period for providing child welfare services, including reunification services, may not exceed six months from the date when the child entered foster care. A child is initially removed from parental custody when he or she is temporarily removed from the parents home by a social worker or law enforcement officer. (In re N.M. (2003) 108 Cal.App.4th 845, 853.) The child shall be deemed to have entered foster care on the earlier of the date of the jurisdictional hearing held pursuant to Section 356 or the date that is 60 days after the date on which the child was initially removed from the physical custody of his or her parent or guardian. ( 361.5, subd. (a), 1st undesignated par.)

The time regarding Selena, age two, began running on October 21, 2005, the date of the jurisdictional hearing. Mother received eight months of services from mid-September 2005 until services were terminated on May 23, 2006, and thus received more than the six-month statutory period of services.

The court may extend child welfare services up to a maximum of 18 months from the date of original removal from parental custody if there is a substantial probability that the child will be returned to the parents custody within the extended time period. ( 361.5, subd. (a).) Here, at the time of the section 388 petition, Selena had been out of the home for almost a year, and the court did have the discretion to extend services for an additional six months upon an appropriate showing. ( 366.21, subd. (g)(1); In re Zacharia D. (1993) 6 Cal.4th 435, 447.)

We do not read the courts comments, quoted ante, as indicating it was unaware of its discretion to extend services up to a maximum of 18 months but, rather, as an implied finding that it would not be appropriate to do so here, because appellant had not made the required showing. The juvenile court did acknowledge that it could have ordered another six months after the initial six months if mother had substantia[l]ly or substantively applied herself with those services . But, as noted by the court, mother didnt do anything for the first six months[,] and [i]n fact, delivered a positive tox baby after the six months of time expired with Selena.

Moreover, appellant has not met her burden of demonstrating that giving her additional reunification services would be in the childrens best interests. The seriousness of the problem leading to a dependency proceeding and the degree to which it can be, and has been, removed or ameliorated are critical factors in deciding a section 388 petition. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531-532.) One of the major factors leading to dependency was mothers drug use. As shown by mothers own history, a lifelong drug addiction is a serious and intractable problem where alternating periods of recovery and relapse are common. (See In re Cliffton B. (2000) 81 Cal.App.4th 415, 423.)

In the August 31, 2006, petition, mother stated that she had been drug free since July 19, 2006, a little more than a month before the petition was filed.^[2] It is uncontested that, at the time of the hearing, mother was making progress and pursuing rehabilitation. It is also uncontested that she had relapsed after treatment in the past. Mother, who was 30 at the time the section 388 petition was filed, began using drugs as a young teenager, quit when she was 15, and began using again at age 20. The detention report filed in September of 2005 stated that mother had been arrested for possession of a controlled substance in 1999 and served a one-year prison term, during which time she had completed an inpatient substance abuse program. The section 300 petition filed in April of 2006 on behalf of N. stated that mother had relapsed twice since January of 2006, during the time reunification services were offered her in connection with Selena. The juvenile court could reasonably conclude that mothers circumstances will not change materially until and unless she completes drug treatment and remains drug free under unstructured conditions for an extended period of time. (In re Cliffton B., supra, 81 Cal.App.4th at p. 423 [seven months of sobriety is not changed circumstances when parents history shows recurring periods of sobriety and relapse]; In re Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 9 [It is the nature of addiction that one must be clean for a much longer period than 120 days to show real reform].)

Furthermore, the juvenile court did not abuse its discretion in concluding that renewed reunification services would not be in the childrens best interests. Mothers long-term drug addiction remains a serious threat to Selena and N.s growth and well-being. (See In re Zachary G. (1999) 77 Cal.App.4th 799, 808 [ 388 petition properly denied because parent remained a risk to the child due to historical patterns of abuse].) It is clear that mother is not ready to take custody of the minors on a permanent basis. The mere possibility that she may be able to care for Selena and N. sometime in the future does not alleviate the need for a stable home now. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) Childhood does not wait for the parent to become adequate. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.)

Another important factor in a section 388 petition is the relative strength of the bond between the child and the parent and foster parents. (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.) The August 2006 petition does not show a significant bond between mother and Selena and N. As the juvenile court stated during the section 388 hearing, Selena, at age three years and seven months, had not been with mother for about a year, and N. never liv[ed] with mom.

Conversely, the record includes evidence that Selena and N. developed a strong bond with their foster parents. The juvenile court noted that Selena was well established in the home right now. Counsel for the minors argued that the minors were thriving and doing well in their current placement. The Department argued that Selena had adjusted well in her placement and developed a strong bond with her foster family. Bonding with foster parents is not dispositive, but the disruption of an existing psychological bond between dependent children and their caretakers is a critical factor in deciding a section 388 motion. (See In re Jasmon O. (1994) 8 Cal.4th 398, 408, 414-422; In re Zachary G., supra, 77 Cal.App.4th at p. 808.)

Further, to understand the element of best interests in the context of a section 388 motion, brought as in this case two weeks before Selenas section 366.26 hearing, we look to the state Supreme Courts decision in In re Stephanie M. (1994) 7 Cal.4th 295, in which the court determined that, at this stage, a parents interest in the care, custody, and companionship of her children is no longer paramount. Rather, the focus shifts to the needs of the children for permanency and stability, and in fact, there is a rebuttable presumption that continued out-of-home care is in the best interests of the children. A court hearing a motion for a change of placement or, as here, additional services at this stage of the proceedings, must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the children. (Id. at p. 317.)

In this case, mothers evidence did not establish that Selena and N.s need for permanency and stability would be advanced by an order giving mother more time to reunify. The juvenile court did not abuse its discretion in denying mothers section 388 petition to extend reunification services.

DISPOSITION

The orders are affirmed.

DAWSON, J.

WE CONCUR:

_______________________________

CORNELL, Acting P.J.

_______________________________

KANE, J.

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^*Pursuant to California Constitution, article VI, section 21.

^[1]All further statutory references are to the Welfare and Institutions Code unless otherwise stated.

^[2]In her attached statement, mother alleged that she had not used illegal drugs for a longer period of time, nearly seven or more months, but she and Noey both tested positive for drugs at the time of Noeys birth in April 2006.