Filed 4/11/18 In re C.O. CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Yolo)
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In re C.O., a Person Coming Under the Juvenile Court Law. C085203


YOLO COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES,

Plaintiff and Respondent,

v.

R.T.,

Defendant and Appellant.

(Super. Ct. No. JVSQ1573)



R.T., mother of the minor C.O., appeals the juvenile court’s order denying her petition for modification without an evidentiary hearing. (Welf. & Inst. Code, §§ 388, 395.) The petition sought continued reunification services with her now 17-year-old son, the minor in this appeal. We will affirm the juvenile court’s order.
BACKGROUND
We include only the facts relevant to resolve mother’s claim that denial of her section 388 petition for an additional six months of reunification services was in error.
The minor (born March 2001) came to the attention of the Yolo County Health and Human Services Agency (Agency) at age 13 after his two younger brothers (not involved in this appeal) were found in February 2015 wandering the streets alone, hungry and dirty. Mother was found approximately four hours later with a blood-alcohol content of 0.23 percent and methamphetamine paraphernalia in her possession. The minor’s siblings reported that they had been staying in the homes of multiple people and that, when mother drinks alcohol, “she acts out of control.”
When found at school, the minor told the social worker he had not seen his mother in two weeks and had last spoken with her a week ago. He had been staying with a family he did not know on the outskirts of town. Before that, he had been staying under a bridge with people he was not related to. He said his mother had a drinking problem and described an extensive history of moving from one location to another, spending only two weeks to a month at any given place.
As relevant here, the Agency filed a petition in the juvenile court alleging failure to protect the minor due to mother’s substance abuse and failure to provide the minor and with adequate food, clothing, and shelter. (§ 300, subd. (b).)
On February 17, 2015, the juvenile court ordered the minor detained with his siblings, as well as visitation and services including parenting education and mental health services for mother.
At the March 19, 2015 jurisdictional hearing, the juvenile court sustained the allegations in the petition. Based on mother’s reported failure to show up for visits with the minor, the court suspended mother’s visitation.
According to the disposition report filed April 7, 2015, the social worker had been unable to locate or make contact with mother since March 4. Mother had previously contacted the social worker and reported she was living with a friend, but was unable or unwilling to provide a physical address. Mother had failed to access any of the services referred to her. She had failed to participate in any visitation with the minor (or his siblings).
At the April 9, 2015 disposition hearing, the juvenile court continued and added to mother’s reunification services, but cautioned mother would “need to do a significant about-face before we come back for . . . review.”
Mother initially had a positive attitude and was optimistic about her recovery. She did make some progress, but was arrested on April 20, 2015, for vandalism and public intoxication. After her release from jail, she began residential treatment in June 2015, but was unsuccessfully discharged in late-August and was staying at a Holiday Inn Express. She was, however, dealing with her legal issues, actively searching for housing and generating income by cleaning college dorms.
She visited sporadically, but cancelled or failed to show for more visits than she attended. The Agency recommended the juvenile court continue mother’s services, but concluded that mother had made minimal progress toward reunifying with the minor and his siblings and required additional time to obtain housing, demonstrate her ability to live substance-free, and improve her attendance at supervised visits.
Mother was not present at the September 22, 2015 review hearing. The social worker reported that she had been trying to contact mother for approximately two months with no success. The juvenile court ordered continued reunification services as recommended, finding mother’s progress minimal.
The status review report filed March 11, 2016, stated the minor was doing well in his current placement. The Agency concluded that mother had made little to no progress toward reunification, had not participated in any recommended services during the review period, had not obtained housing, and had not remained sober. She was not visiting the minor. The Agency recommended that mother’s services be terminated and the matter set for a selection and implementation hearing. (§ 366.26.)
The Agency filed declarations of due diligence on March 11, 2016, and March 15, 2016, detailing its efforts to locate mother, who remained transient and whose whereabouts were unknown. It was noted that mother had not attempted to contact the Agency since February 8, 2016.
Mother was not present at the 12-month review hearing on March 22, 2016. The court terminated her reunification services and set the matter for a selection and implementation hearing. (§ 366.26.) At that point, mother had received 13 months of reunification services since detention and almost 12 months of services since the formal order providing services was made at the April 9, 2015 disposition.
According to the selection and implementation report filed September 14, 2016, mother’s whereabouts remained unknown. Her most recent visit with the minor had been in August 2015. Although the social worker reported that the minor had historically been opposed to adoption during conversations, on August 16, 2016, he had informed his foster family that he wished to be adopted into their home along with his two brothers. The minor’s caregivers expressed their willingness to move toward a plan of adoption. The Agency recommended the court order a permanent plan of adoption.
The selection and implementation hearing commenced on October 5, 2016. Mother was not present. The court ordered a permanent plan of adoption for the minor, but continued the hearing to locate an appropriate adoptive family.
An addendum to the selection and implementation report, filed January 27, 2017, stated mother was incarcerated in county jail, to be released soon. There had been no visitation between mother and the minor since her single visit in August 2015. The Agency recommended that parental rights be terminated and a permanent plan of adoption ordered for the minor, who had been residing in the same foster home as his two brothers since December 2, 2016. The current caregivers expressed a willingness to adopt all three children, but wanted to give the minor more time to decide if he wanted to be adopted.
Mother was present at the February 7, 2017 continued selection and implementation hearing and requested a contested hearing.
On February 23, 2017, mother filed the section 388 petition for modification to reinstate reunification services that is the subject of this appeal. In support of her request for an additional six months of services, the petition claimed changed circumstances as follows: “Mother has entered Salvation Army residential treatment in Marysville. Mother has spent the last few months clearing up criminal matters in Yolo and Sutter Counties and is now engaged in residential drug treatment.” Regarding best interests, the petition claimed: “The children spent their life with their mother until they were removed in February 2015. The children are old enough to have developed an attachment to their mother. It would benefit the children to be able to have an opportunity to see the positive changes the mother has made, continues to make and for the mother to receive further assistance with the goal of reunifying.”
At the contested selection and implementation hearing on February 28, 2017, the court first addressed the petition. The Agency and minor’s counsel argued as relevant here that mother had not seen the minor or his brothers in over a year and had not made a showing that the requested change was in the children’s best interest.
Regarding the minor’s best interest, mother’s counsel argued only that contact with mother might “assure all these children . . . that their mom is doing fine, and they can move on with their life if the Court doesn’t give their mother a chance.”
The juvenile court expressed concern that mother was still trying to address the issues that were present when the minor and his siblings were removed in February 2015, noting mother’s recent relapse made it “very difficult for the Court to find that this [section] 388 [petition] establishes a prima facie case for a hearing.” The court made a tentative ruling that mother’s petition did not make a prima facie showing necessitating a hearing and the section 366.26 hearing would go forward without prejudice to mother to request the court to reconsider her petition later.
At the continued hearing on June 22, 2017, the juvenile court again began with consideration of mother’s section 388 petition. The minors’ counsel and the Agency again argued mother had not made a prima facie showing to support the petition given that mother’s last visit with the minor and his siblings was in August 2015, services were terminated in March 2016, the children were stable in their placements, and restarting reunification would be confusing for them.
Mother’s counsel argued “the evidence will establish” that mother had in fact last visited the children in March 2016 and had written letters to them; however, the minor was not permitted to have mother’s letter. Mother further argued that the minor, now age 16, had lived with mother the first 13 years of his life and had established a relationship with her.
The juvenile court concluded mother had established a prima facie case as to changed circumstances, but not as to the best interests of the minor. Regardless of the timing of the last visit, the two had only minimal contact since the February 2015 detention and whether mother and the minor had “some degree of bond” was not dispositive. Finding the offers of proof did not establish services to mother would be in the minor’s best interests, the court denied the petition.
At a continued hearing section 366.26 hearing on July 6, 2017, the juvenile court ascertained through a court-appointed special advocate that the minor favored a long-term foster/guardianship and his priority was to remain with his siblings and stay in a stable situation until graduation. Accordingly, the court found termination of parental rights would be detrimental to the minor and ordered a permanent plan of legal guardianship with the minor’s current caregivers, with visitation between mother and the minor requiring the minor’s consent.
Mother filed a timely notice of appeal of the court’s June 22, 2017 order denying her section 388 petition.
DISCUSSION
Mother’s sole contention on appeal is that the juvenile court abused its discretion in denying her petition for modification without an evidentiary hearing.
Section 388 provides in relevant part that: “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.” (§ 388, subd. (a)(1).) The court must set a hearing if “[i]t appears that the best interests of the child . . . may be promoted by the proposed change of order . . . .” (§ 388, subd. (d).) “The parent requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is a preponderance of the evidence. [Citation.]” (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.)
Determination of a petition to modify is committed to the sound discretion of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) The best interests of the child are of paramount consideration when the petition is brought after termination of reunification services. (In re Stephanie M., supra, at p. 317.) In assessing the best interests of the child, the juvenile court looks not to the parent’s interests in reunification but to the needs of the child for permanence and stability. (Ibid.; In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).)
“[Section 388] petitions are to be liberally construed in favor of granting a hearing to consider the parent’s request. [Citations.] The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]” (Marilyn H., supra, 5 Cal.4th at pp. 309-310.) “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 child’s 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.) A summary denial of a section 388 petition is reviewed for abuse of discretion. (In re Anthony W., at p. 250.)
The juvenile court found a prima facie case of changed circumstances; the Agency’s briefing does not dispute that finding on appeal. The disputed finding is that mother failed to establish a prima facie case that the provision of additional services was in the minor’s best interest.
As we have detailed ante, mother’s section 388 petition argued additional services for mother were in the minor’s best interest because he had spent the majority of his life with mother before removal and he would benefit from seeing positive changes mother would make through services. At the hearing, mother argued about benefits of contact with her, but contact with mother was not the subject of the petition at issue--additional services were. Nothing in the offer of proof spoke to the minor’s actual best interest, rather than the hypothetical which was first expressed by the written petition and quoted in full ante: “It would benefit the children . . . for the mother to receive further assistance with the goal of reunifying.”
Mother claims her petition and the record supported, at the very least, an evidentiary hearing. We disagree. The limited proffer contained in the written petition and the offers of proof at the hearings detailed ante did not come close to establishing that six more months of services to mother (who had already received the statutory limit to services, given her minimal progress) were in the then-16-year-old minor’s best interest (particularly as opposed to her own interest). At the time the minor was removed from mother at age 13, he had not seen his mother in weeks and had been staying with people he did not know and under a bridge. Thus, the length of time he was with mother before removal does little to establish or even suggest that additional services for mother would somehow benefit the minor, particularly given the ample evidence in the record that he was stable in his placement and had not had any significant contact with mother in years.
Mother asserts there is evidence in the record that, “[t]hroughout the entire case . . . [the minor] wanted to be in contact with his mother and have a relationship with her.” We agree that the record states the minor “longed to be with his biological family,” but note that it clarifies the minor “wanted nothing more than to live with his aunt [P.T.] alongside his brothers.” Similarly, while the minor was “receptive and glad to hear” that he could visit mother whenever he wanted without restriction once he became an adult, he was in favor of long-term foster care or guardianship and his priority was to remain with his brothers. There was no offer of proof to the contrary, or of any other anticipated testimony or other evidence that would show the minor’s best interests were served by additional services to mother.
The minor and his two siblings had been residing in the same foster home since December 2, 2016, and the minor was doing well. The current caregivers expressed a willingness to adopt all three children, but were comfortable giving the minor more time to settle in and decide whether he wanted to stay. There was considerable evidence in the record that the minor’s best interests would be best served not by providing mother additional months of services, but by moving forward with the permanent plan of placement with his caregivers. The limited offers of proof at the hearings on mother’s petition did not constitute a prima facie showing to the contrary. (See In re Stephanie M., supra, 7 Cal.4th at p. 317; Marilyn H., supra, 5 Cal.4th at p. 309.)
In any event, in light of the evidence in the record as discussed herein, it is not reasonably probable that mother would have obtained a more favorable result had the court granted a hearing on her petition. (S.T. v. Superior Court (2009) 177 Cal.App.4th 1009, 1016; M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 183; In re Celine R. (2003) 31 Cal.4th 45, 60; In re Justin L. (1987) 188 Cal.App.3d 1068, 1077-1078.)
The juvenile court did not abuse its discretion in denying mother’s section 388 petition without an evidentiary hearing.
DISPOSITION
The juvenile court’s order is affirmed.




/s/
Duarte, J.



We concur:



/s/
Hull, Acting P. J.




/s/
Hoch, J.