In re Ali C.

Filed 10/1/09 In re Ali C. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 of the Superior Court of San Diego County, Richard Montes, Judge. (Retired Judge of the Los Angeles Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

A.C. appeals a juvenile court order summarily denying her Welfare and Institutions Code[1] section 388 modification petition requesting that her minor son, Ali C., be returned to her custody with family maintenance services or alternatively, for additional reunification services. She further asserts that the court erred by denying her request for a continuance of the section 388 prima facie hearing. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Ali was born in July 2006 to A.C. and J.A. The San Diego County Health and Human Services Agency (Agency) filed a petition on behalf of then three-month-old Ali, alleging A.C. abused methamphetamines on a regular basis, including while pregnant with Ali. The petition further alleged Ali had been exposed to domestic violence in the family home between A.C. and J.A. Specifically, J.A. punched A.C., forced her to the ground, sat on her and threatened to kill her.

An Agency social worker interviewed A.C. and A.C. admitted to an extensive history of drug use. A.C. had abused methamphetamines before she became pregnant with Ali. She stopped using drugs while pregnant but resumed drug use after Ali's birth, including while she nursed Ali. The social worker did not believe that A.C. appreciated the risks that drug use would pose to Ali. Concerning the domestic violence allegations, A.C. admitted she fought with J.A. and the social worker noticed A.C. had visible injuries on her body. J.A. reported that A.C. would sometimes become violent toward him while she was high on drugs. The court held a detention hearing in October 2006. The court appointed counsel for A.C. and detained Ali in out-of-home care.

Agency social worker submitted a jurisdiction and disposition report recommending that A.C. receive six months of services. Ali's older siblings disclosed to the social worker that A.C. abused drugs in the home and sometimes, A.C. did not provide the children with food. The social worker reported that eight incidents of domestic violence had been reported to the police between July 2006 and October 2006. A.C. told the social worker she had filed restraining orders against J.A. but she did not give the social worker any documentation confirming a restraining order was in place. Agency provided A.C. with referrals for services, including drug treatment and parenting classes.

At the jurisdiction and disposition hearing, the court declared Ali a dependent and removed him from A.C.'s custody. The court ordered A.C. to participate in services and to comply with her drug treatment program.

During the next 12 months, A.C. made substantive progress with her case plan. She provided 27 negative drug tests, taken at random, and graduated from her drug treatment program. She continued attending therapy sessions on a weekly basis. The therapist reported that A.C. acknowledged she suffered from a drug addiction and anger management issues. A.C. reportedly had a relapse prevention plan in place. The social worker referred A.C. to home-based services in anticipation of her reunifying with Ali. A.C. received unsupervised visits during the reunification period. She used public transportation to reach all of her appointments and visits with Ali.

At the 12-month review hearing in November 2007, the court placed Ali in A.C.'s care. The court ordered A.C. to comply with random drug testing. Ali remained a dependent and the court ordered family maintenance services to A.C.

One month after Ali returned to live with A.C., A.C. started to miss appointments with her therapist and with her in-home services provider. In March 2008 the social worker telephoned A.C. five times before A.C. returned the phone calls. A.C. explained she had moved and stated she was feeling overwhelmed. The social worker encouraged A.C. to fall back on her support services and that she should reach out to her sponsor. A.C. missed three random drug tests but completed five others, which were negative.

In April 2008 the court held a special hearing to address A.C. and Ali's whereabouts, as they had become unknown. A.C. did not attend and the court continued the hearing. One week later, A.C.'s whereabouts remained unknown. A neighbor of J.A. reported that she saw J.A. packing bags into a car and left during the night with a woman and four children.

Agency filed a section 387 petition seeking to remove Ali from A.C.'s care and to place him in out-of-home care. Agency reported A.C. had left California for Alabama and had taken Ali with her. An Agency social worker went to Alabama and brought Ali back to California. The social worker reported that A.C.'s behavior in the weeks before she left for Alabama caused Agency concern. In addition, A.C. went to Alabama with J.A., and A.C. had represented to social workers that she no longer had contact with J.A.

Ali's older sibling disclosed to the social worker that J.A. was with the family while A.C. was in Alabama. However, A.C. denied that J.A. went to Alabama with her. She claimed she went to Alabama to get "some help" and that she "wanted to relapse but I couldn't. . . ." In April 2008 the court held a detention hearing and removed Ali from A.C.'s custody and ordered him detained in out-of-home care. A.C. received supervised visitation.

In its addendum reports, Agency recommended scheduling a section 366.26 selection and implementation hearing. A.C. remained living in Alabama. She claimed that she worked as a security guard and that she had been unable to drug test. The social worker reported A.C. had received 18 months of services and that she had shown poor judgment by leaving San Diego. The social worker encouraged A.C. to drug test and attend 12-step meetings in Alabama. However, A.C. had yet to provide any documentation showing she had drug tested while living in Alabama. A.C.'s therapist reported that A.C. started to miss therapy sessions once Ali had been placed back in her custody. In the meantime, Ali had been placed with a family that wanted to adopt him and Ali was doing well in his placement.

The court made a true finding on the supplemental petition filed under section 387 and continued Ali as a dependent. The court terminated services for A.C. and scheduled a 366.26 hearing.

Social worker Jaime Kobayashi submitted a section 366.26 report in November 2008. Kobayashi assessed Ali as adoptable because of his young age, overall good health and social nature. Concerning visitation between A.C. and Ali, A.C. had only sporadic contact with Ali when he first returned to San Diego. By August 2008, A.C. began to call Ali about once a week. When A.C. returned to San Diego and resumed visits with Ali, Ali spent most of the visits playing with his siblings while A.C. watched. Ali sometimes referred to A.C. as "mommy." However, Ali had spent most of his life as a dependent and Kobayashi opined that Ali did not see A.C. as his mother but rather as an extended family member. He did not cry at the end of visits and he did not seek out A.C. for comfort. Instead, Ali looked to his caregivers on many occasions for comfort. He referred to them as his "mommy" and "daddy" and looked for them to help him. Kobayashi opined that Ali's relationship with the caregivers was parental in nature.

A.C. filed a section 388 modification petition with the court in February 2009. In the petition, she alleged her circumstances had changed because she had maintained contact with Ali and she was sober. She had attended drug therapy sessions and claimed she had a stable family life. She had recently married and moved back to San Diego. She requested that the court return Ali to her care and order six months of family maintenance services or that the court order additional services. A.C. claimed it would be in Ali's best interests to modify the court's order because Ali was bonded to the siblings that lived with her and he was bonded to her. In support of her petition, A.C. submitted documents showing she had attended 32 Alcoholics Anonymous meetings between September 2008 and January 2009. She also tested negative for drugs nine times from August 2008 to January 2009.

Agency opposed A.C.'s request. Kobayashi submitted a report showing that A.C. returned to San Diego in April 2008. A.C. did not call Ali until June 2008. She moved to San Diego in August 2008 and resumed visits in September 2008. In January 2009, A.C. missed two visits and did not call to cancel them. The caregivers represented that A.C. did not call them to ask about Ali. Kobayashi noted A.C. was having less contact with Ali following Ali's second detention than she did during the earlier reunification period.

Concerning her sobriety, A.C. submitted drug tests to the court but the drug tests had not been taken at random. A.C.'s drug counselor, Darrin Boyd, explained A.C. participated in the tests at a time of her choosing. Boyd further expressed concerns that A.C. had anger issues that she needed to work on. Boyd suggested to A.C. that she enroll in a more in-depth drug treatment group but she declined to do so.

Kobayashi believed that A.C.'s history of domestic violence and her unresolved anger issues placed her at a higher risk of relapse. Kobayashi expressed great concern over A.C.'s decision to leave California with J.A., and she had lied about her involvement with J.A. A.C. made assertions that her life was now stable since she moved back to California and married L.B., the father of Ali's older siblings.[2] However, A.C. had a history of domestic violence with L.B. When asked about her history of domestic violence with L.B., A.C. dismissed any concerns about future abuse and told Kobayashi that "us victims like to go back." A.C. continued to minimize her history of domestic violence, both as the victim and as the perpetrator.

Kobayashi believed that returning Ali to A.C. would be detrimental to him. He had been living with his current caregivers for 10 months. He saw his caregivers as his parents and the caregivers were committed to adopting Ali. Ali would likely suffer harm if removed from his caregiver's home because he had a secure attachment with them. Ali's therapist reported that Ali made excellent progress in therapy and the therapist was prepared to terminate therapy at one point. Then the therapist noted Ali started to exhibit negative behaviors. These behaviors surfaced around the time he started having contact with A.C. and J.A. Concerning Ali's relationship with his siblings, Kobayashi reported Ali had a friendly relationship with his siblings and had lived with them in the past. Ali rarely asked about his siblings and he never asked to see them. Ali related to his siblings more like cousins than as siblings.

In February 2009 the court heard argument from the parties as to whether an evidentiary hearing should be granted on A.C.'s section 388 petition. A.C.'s counsel asserted that A.C. had evidence to show she had changed her lifestyle. She was sober, attended therapy and regularly drug tested. A.C. married L.B. and it would be in Ali's best interests to live with his mother and his two older siblings. Agency submitted its report asserting its position that the court should not grant the section 388 petition. At the prima facie hearing, Agency argued the face of A.C.'s petition was conclusory with regard to making a showing that a change in the court's order would serve Ali's best interests. Minor's counsel asserted A.C. had failed to show changed circumstances. After hearing argument from counsel, the court continued the hearing.

One day later, the court reconvened. After considering A.C.'s contentions, the court summarily denied the petition. It found the petition did not meet the prima facie requirements, and there was no evidence in the petition showing it would be in Ali's best interests to be moved from his current placement. A.C. timely filed a notice of appeal.

DISCUSSION

I

A.C. contends the court erred by summarily denying her section 388 modification petition seeking custody of Ali, or alternatively, for additional services. A.C. asserts the petition stated a prima facie case of changed circumstances in that she had maintained her sobriety and completed additional drug related services. A.C. further asserts the record shows that a modification of the court's order was in Ali's best interests because he would benefit from living with his biological family.[3]

A

Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there is a change of circumstances or new evidence, and (2) the proposed modification is in the child's best interests. ( 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Amber M. (2002) 103 Cal.App.4th 681, 685.) The petition must be liberally construed in favor of its sufficiency. (Cal. Rules of Court, rule 5.570(a); In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (In re Marilyn H., supra,at p. 310.) " '[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.' [Citation.]" (Jasmon O., supra, at p. 415; see also In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.) However, if the liberally construed allegations of the petition do not make a prima facie showing that the relief sought would promote the best interests of the child, the court may deny the petition without an evidentiary hearing. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 322-323.) "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.) The summary denial of a section 388 modification petition does not violate a parent's due process rights. (In re Jasmon O., supra, 8 Cal.4th at p. 419.)[4]

B

The court correctly determined that the modification petition did not state a prima facie case. (See Marilyn H., supra,5 Cal.4th at p. 310; In re Hashem H., supra, 45 Cal.App.4th at pp. 1798-1799; In re Zachary G., supra,77 Cal.App.4th at p. 806.) Here, A.C. did not make a prima facie showing of a change in circumstances. An absence of any showing of a change in circumstances obviated the requirement that the court hold a hearing on A.C.'s section 388 petition. (In re Angel B. (2002) 97 Cal.App.4th 454, 465.) As changed circumstances, A.C. alleges she was sober, had drug tested and attended drug therapy. She further alleges that she maintained contact with Ali. A.C. provided the court with nine negative drug tests and attendance slips for Narcotics Anonymous meetings. Nevertheless, A.C.'s sobriety remained in question. The record shows A.C. had a 20 year history of drug abuse. After leaving California for Alabama, A.C. took nine drug tests. Agency had requested that these tests be taken at random but none of these tests were random. In addition, A.C. missed three drug tests before leaving for Alabama and she did not drug test while living in Alabama. A.C.'s drug counselor reported to Agency social workers that he had suggested to A.C. that she participate in a more in-depth drug treatment group. A.C. did not make an effort to enroll herself in the program.

A.C.'s drug counselor also believed A.C. needed to resolve additional anger issues. The record shows A.C. had an extensive domestic violence history in which she was both the victim and the perpetrator. A.C. offered no evidence showing she had taken responsibility for the domestic violence that had occurred in her life. Specifically, A.C. told social workers that she did not go to Alabama with J.A. and that she was no longer in contact with J.A. However, the record shows A.C. did go to Alabama with J.A. After returning to San Diego, A.C. married L.B., with whom she had a history of domestic violence. A.C. disregarded the social worker's concerns about her marriage to L.B. even though she shared a history of violence with him. A.C. instead stated, "us victims like to go back." Any changes in A.C.'s circumstances were "not legally sufficient to require a hearing on her section 388 petition." (In re Angel B., supra,97 Cal.App.4th at p. 465.)

C

Even had A.C. shown changed circumstances, A.C. did not make a prima facie showing that it was in Ali's best interests to be placed in her custody. In her petition A.C. asserts it would be in Ali's best interests to be placed with his biological mother and his siblings. A.C. also argues Ali was bonded to her, and she now had a stable home life well suited for Ali. However, after termination of reunification services, the focus of dependency proceedings is to provide the child with permanency and stability. (See In re

Baby Boy L. (1994) 24 Cal.App.4th 596, 609-610 [after reunification services are terminated, the focus of the court's concern shifts from assisting the parent in reunification to securing a stable new home for the child]; Kimberly H. v. Superior Court (2000) 83 Cal.App.4th 67, 71-72.) At the time of the prima facie hearing on the section 388 petition, Ali had been a dependent of the court for most of his life. Ali admittedly lived with A.C., but only for four months before his first removal. He lived with A.C. again for five months when he was briefly reunited with A.C., during which time A.C. left California, along with Ali, without permission. After Ali returned to live in San Diego, A.C. did not contact Ali's caregivers or start regular visitation with Ali for several months. Ali did not see A.C. as a parent but rather as an extended family member. Ali interacted with A.C. during visits but did not show signs of distress at the end of visits. Ali did not seem to prefer interacting with A.C. over other people, such as his siblings. He instead referred to his caregivers as "mommy" and "daddy" and he had a secure attachment to them. Ali looked to his caregivers to meet his needs. Ali's therapist also reported that Ali suffered from an increase in negative behaviors in September 2008, after A.C. returned from Alabama. Kobayashi opined that Ali would suffer from harm if he was separated from his caregivers.

Because the facts alleged in the petition would not have sustained a favorable decision on the section 388 petition, A.C. was not entitled to an evidentiary hearing. (In re Zachary G., supra, 77 Cal.App.4th at p. 808.) By summarily denying A.C.'s section 388 petition, the court did not deny her due process. (In re Jasmon O., supra, 8 Cal.4th at p. 415.)

II

A.C. contends the court abused its discretion by denying her request to continue the prima facie hearing on her section 388 petition. She asserts the court should have granted her a continuance because she needed additional time to subpoena her drug counselor to present his testimony at the hearing.

Under section 352, the juvenile court may grant a continuance of any hearing only on a showing of good cause and only if the continuance is not contrary to a child's best interests. ( 352, subd. (a); see In re Ninfa S. (1998) 62 Cal.App.4th 808, 810.) Continuances in juvenile cases are discouraged. (Ninfa, S., supra, at pp. 810-811; Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1242.) We reverse an order denying a continuance only on a showing of an abuse of discretion. (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187.)

At the start of the prima facie hearing on February 23, 2009, A.C.'s counsel requested a continuance to allow for additional time in order to reserve A.C.'s drug counselor, Boyd, with a subpoena. The first attempt to serve Boyd with the subpoena had been unsuccessful. A.C. represented that Boyd would testify about her ongoing drug treatment and her changed circumstances. The court, after hearing some discussions concerning proper service for a subpoena, denied the request for a continuance and proceeded with the case. The court, after hearing argument from counsel, determined a prima facie showing had not been made on the section 388 petition and that an evidentiary hearing had not been triggered.

The court scheduled the section 366.26 hearing about two months in advance and A.C. filed her section 388 petition about two weeks before the hearing took place. A.C. had sufficient notice that a hearing was going to take place and she had ample time to serve Boyd. In addition, the hearing extended over a period of two days. Even after the court denied her request for a continuance, A.C. had additional time to serve her witness. Agency further notes that Boyd's statements concerning A.C.'s progress with her drug treatment were included in an addendum report filed the day of the hearing. In any event, the court summarily denied A.C's petition and an evidentiary hearing was not going to take place. As such, there was no need to serve Boyd with a subpoena for his testimony because there was not going to be a hearing for Boyd to testify at. Because A.C. did not demonstrate good cause for a continuance, the court did not err by denying her request. (See In re Gerald J., supra, 1 Cal.App.4th at p. 1187.)

Further, any continuance, regardless of how brief, would have impacted Ali's need to have his custody status promptly resolved and placement made permanent and secure. The Legislature did not contemplate last-minute efforts by a parent to postpone a permanent plan for a minor who has already spent most of his life in out-of-home placement. (See In re Richard C. (1998) 68 Cal.App.4th 1191, 1197, citing In re Marilyn H., supra, 5 Cal.4th at p. 310.) The court properly exercised its discretion by denying A.C.'s request for a continuance. ( 352, subd. (a); Jeff M. v. Superior Court, supra,56 Cal.App.4th at p. 1242; In re Ninfa S., supra,62 Cal.App.4th at pp. 810-811.)

DISPOSITION

The order is affirmed.

NARES, J.

WE CONCUR:

McCONNELL, P. J.

AARON, J.

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

[2] Ali's older siblings are not subjects in this appeal.

[3] A.C. asserts that at trial, Agency submitted to the court as to whether or not to grant her an evidentiary hearing on the section 388 petition. A review of the record shows Agency stated it would "submit on the court granting a hearing on [A.C.'s] 388 petition." However, Agency also argued that it found the petition to be conclusory and that was a "short falling" of evidence that would indicate that "the change would be in the child's [Ali's] best interests." Agency's report further states its opposition to the petition. Agency does not explicitly make concessions that an evidentiary hearing should be granted or that the petition should be granted. Rather, Agency's position remained consistent throughout the proceedingsthat A.C.'s petition should not be granted. Even had Agency explicitly agreed that an evidentiary hearing should be held, the court would not be bound by that concession. The court had the obligation to review the petition and determine whether a prima facie showing had been made. The court properly did so here.

[4] A.C. asserts that the trial court did not use the correct standard in evaluating her section 388 petition. A review of the record shows counsel for A.C., the minors and Agency all stated to the court that the first step in evaluating A.C.'s petition was to determine whether a prima facie showing, changed circumstances and best interests had been made. When counsel for A.C. asked the court whether it understood it was only addressing a prima facie case at that time, the court replied, "that's exactly what I've address." The court used the proper standard.