In re Christopher E.

Filed 8/15/06 In re Christopher E. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Jamileh Schwartzbart, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

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

Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.

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Gracie O. appeals from an order following a March 3, 2006 hearing denying her petition (Welf. & Inst. Code, § 388) to regain custody of her child.^[1] At the conclusion of the hearing, the court terminated appellant's parental rights (Welf. & Inst. Code, § 366.26). Appellant contends the court erred by denying her petition. On review, we disagree and will affirm.

PROCEDURAL AND FACTUAL HISTORY

Christopher E. was born in June 2005 while his mother, appellant, was in jail. Christopher was removed from his mother's custody and a section 300 petition was filed on June 21, 2005. The petition alleged a failure to protect (§ 300, subd. (b)) because appellant had a history of abusing methamphetamine which negatively affects her ability to care and protect her child despite receiving extensive services, including treatment for her substance abuse. It was further alleged that Christopher's sister, born in October 2003, had been removed from appellant's custody shortly after birth because mother and child tested positive for methamphetamine (§ 300, subd. (j)). Appellant failed to reunify, continued to abuse drugs, and a permanent plan of adoption was ordered for the sister.

Christopher was appellant's tenth child. The family had a significant history of child welfare referrals alleging general neglect and physical abuse while the children were in appellant's care. Several of appellant's children are now adults, others are living with their father. The juvenile court ordered Christopher detained on June 23, 2005.

Christopher's sister had been recently adopted by Christopher's foster parents. An amended petition was filed on July 13, 2005, alleging that Christopher's father lacked a permanent residence. The court found the allegations in the amended petition true at the July 15, 2005, jurisdictional hearing. At the disposition hearing on August 19, 2005, the court found Christopher was a person described by the petition. The court ordered Christopher removed from appellant's custody and ordered a bypass of reunification services for appellant's inability to reunify with Christopher's sister (§ 361.5, subd. (b)(10)) and termination of the parental rights of a sibling (§ 361.5, subd. (b)(11)). On August 31, 2005, the court denied reunifications services to the father and set the case for a section 366.26 hearing.

On February 14, 2006, seeking reunification services, appellant filed a request to change the court's order. Appellant alleged she had completed the first phase of her substance abuse program at Spirit of Woman and a parenting class on December 29, 2005.^[2] Appellant alleged she was currently attending aftercare classes and had tested negative for drugs between February 21, 2005, and December 22, 2005. The petition further alleged that appellant continuously visited Christopher and developed a relationship with him.

Finding the petition insufficient on its face, the trial court denied appellant's section 388 petition on March 2, 2006. The court also denied the section 388 petition of Christopher's father. The court noted that although appellant had possibly made a prima facie showing of changed circumstances, and commended appellant for her efforts to achieve sobriety, the court found appellant failed to show how the requested change was in the child's best interest.

Appellant testified at the termination phase of the hearing that she had been visiting Christopher since June 2005. Visitations were initially one hour twice a week and were later one hour once a week. Appellant talked to the infant and changed his diapers. The father testified that he visited Christopher on several occasions. The social worker observed appellant's visitations a few times. The social worker's recommendation was for Christopher to be adopted. The social worker's report noted Christopher was in the care of his sister's adoptive parents and they wanted to adopt him. The prospective adoptive parents have demonstrated their ability to meet Christopher's physical, emotional, and psychological needs.

At the conclusion of the hearing, the court noted appellant and the father had maintained regular visitation with Christopher, the court found that neither parent established the child would benefit from continuing the relationship with either parent. The court found there was no parent-child relationship with either parent. The court terminated the parental rights of both parents and found adoption to be the appropriate permanent plan for Christopher.

DISCUSSION

Appellant argues the court abused its discretion by denying her section 388 petition. We disagree. It was appellant's burden of proof to show there was new evidence or there were changed circumstances that made a change of the children's placement in their best interest. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 317.) 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. (1993) 5 Cal.4th 295, 310.) If the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) The petition must be liberally construed in favor of its sufficiency. (Ibid.; see also Cal. Rules of Court, rule 1432(a)).

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