Filed 5/11/18 In re I.R. CA4/2


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re I.R. et al., Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

A.D.,

Defendant and Appellant.


E069181 / E069406

(Super.Ct.Nos. J265481/J269343)

OPINION


APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Michelle D. Blakemore, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
A.D., hereafter mother, appeals an order terminating her parental rights to her children, I.R. and L.D. The only issue she raises is the denial of her request to modify the order setting the permanency planning hearing and for six months of reunification services. She contends that because she made the necessary prima facie showing, she was entitled to have an evidentiary hearing. We conclude that she did not make a prima facie showing as to either prong of Welfare and Institutions Code section 388, and we will therefore affirm the order.
FACTUAL AND PROCEDURAL HISTORY
Mother has used methamphetamine since her early teens. In 2010, her first child, D.C., was removed from her custody because mother’s drug use made her unable to care properly for the child. Mother was able to reunify with D.C. after taking part in reunification services, including inpatient drug rehabilitation, drug testing, parenting and domestic violence education, and counseling. In 2014, D.C. was again removed from mother’s custody because mother left her with an aunt while she went to Mexico for a few weeks to “do a drug deal.” The aunt’s boyfriend sexually molested D.C. for nearly a year. Allegations of sexual abuse were reported to mother, but she allowed her daughter to remain in the home. Mother was not offered reunification services in that dependency and her parental rights were terminated. D.C. was ultimately adopted.
 
Mother was convicted of child cruelty in connection with the abuse of D.C. and was on probation for that offense on May 13, 2016, when she reported to her probation officer while under the influence of methamphetamine and Seroquel. She had three-month-old I.R. with her at the time. The probation officer called San Bernardino County Children and Family Services (CFS) and reported that mother was going to be arrested for being under the influence. Mother stated that she had been clean for about a year but had used methamphetamine the night before. She wanted to get help but knew she was going to be arrested and wanted I.R. to go somewhere safe. CFS workers responded and took I.R. into custody because mother was not able to arrange for suitable care for I.R. I.R. appeared well cared for, and mother had brought a bag of clothes, diapers, and formula for I.R.
CFS contacted I.R.’s father, who said that he wanted to file for custody of the child. However, he admitted that he had a history of illegal drug use and appeared to be under the influence of methamphetamine while he was speaking to the social worker. Mother had a restraining order against him for domestic violence.
A petition pursuant to section 300 was filed on May 17, 2016, alleging failure to protect, inability to provide for suitable care, and abuse of a sibling. At the jurisdiction and disposition hearing, I.R. was declared a court dependent. Mother was denied reunification services pursuant to section 361.5, subdivisions (b)(6), (b)(10), (b)(11) and (e)(1).
In January 2017, while still incarcerated on the probation violation, mother gave birth to L.D. L.D. was detained immediately and a section 300 petition was filed on her behalf. At the jurisdiction and disposition hearing, reunification services were denied to both parents, pursuant to section 361.5, subdivision (b)(6), (b)(7), (b)(10), and (b)(11).
Parental rights were terminated as to both children on October 31, 2017, and adoption was selected as their permanent plan. The children had been placed together in a concurrent planning home on June 9, 2017. I.R. initially had some difficulty adjusting, as she was very attached to her former foster parents, but by mid-July 2017, both children appeared to be bonding with the prospective adoptive parents.
On September 25, 2017, mother filed a notice of appeal from an order denying her petition pursuant to section 388 in which she asked the court to provide her with six months of reunification services and to take the permanency planning hearing off calendar. On October 31, 2017, mother filed a notice of appeal from the order terminating her parental rights.
LEGAL ANALYSIS
THE JUVENILE COURT PROPERLY DENIED MOTHER’S
SECTION 388 PETITION SUMMARILY
Under section 388, a parent may petition to change or set aside a prior order “upon grounds of change of circumstance or new evidence.” (§ 388, subd. (a)(1); see Cal. Rules of Court, rule 5.570(a).) The juvenile court shall order an evidentiary hearing where “it appears that the best interests of the child . . . may be promoted” by the new order. (§ 388, subd. (d).) Thus, the parent must sufficiently allege both a change in circumstances or new evidence and the promotion of the child’s best interests. (In re G.B. (2014) 227 Cal.App.4th 1147, 1157.)
Section 388 petitions are liberally construed in favor of granting an evidentiary hearing. (In re Aaron R. (2005) 130 Cal.App.4th 697, 705.) The parent need only make a prima facie showing in order to trigger the right to a hearing. (Ibid.) However, a prima facie showing means a showing that evidence exists which, if found true, would support both the conclusion that changed circumstances warrant modifying the order in question and the conclusion that the modification would be in the child’s best interest. (Ibid.) The parent fails to make a prima facie showing if the allegations would not sustain a favorable decision even if they were found true at a hearing. (In re G.B., supra, 227 Cal.App.4th at p. 1157.)
On August 22, 2017, mother filed a petition for modification of the juvenile court’s orders terminating reunification services as to I.R. (sic) and denying reunification services as to L.D. She requested six months of reunification services and asked to have the permanency planning hearing taken off calendar. She stated that she had been participating in a transitional living program since May 31, 2017, including recovery-related activities and random drug testing, all of which had been negative. She was also participating in anger management classes. She stated that the requested order would benefit the children because she loved her children and was committed to providing them with a safe, stable and loving environment.
The juvenile court set a hearing to determine whether an evidentiary hearing should be held. It ordered CFS to prepare a response to the petition. At the hearing, after argument, the court ruled that although mother had shown that she was making positive strides and that her circumstances were changing, her sobriety was still new, the case plan had not been completed, and that all of the issues that led to the removal of the children had not been resolved. Accordingly, the court found that mother had not made a prima facie showing that circumstances had changed. At most, they were changing. The court also found that there was no evidence as to the best interest prong sufficient to merit an evidentiary hearing. The court noted that L.D. had been removed from mother at birth and I.R. at the age of three months, and that neither child recognized mother as their mother. On the contrary, the court found that both children had bonded with the prospective adoptive mother. The court held that mother loving her children and wanting to provide a safe home for them was not sufficient to constitute prima facie evidence that modification of the order would be in the children’s best interest. Based on those findings and conclusions, the court denied the petition without an evidentiary hearing. Mother contends that this was an abuse of discretion.
Mother argues, preliminarily, that an order summarily denying a section 388 petition without a hearing should be reviewed independently, either as a pure question of law or as a mixed question of law and fact. She contends that if the petitioner makes a prima facie showing, the court has no discretion but to set an evidentiary hearing.
Mother relies on In re Jeremy W. (1992) 3 Cal.App.4th 1407. In that case, the juvenile court found that the summary denial of a section 388 petition was error because the mother had made a prima facie showing “of a favorable change in the single negative factor on which the referee purported to base his . . . order, if not its complete elimination. On these facts, its summary denial without affording a hearing is not supported by the record.” (Jeremy W., at p. 1416.) The court went on to state that the general proposition that a juvenile court has broad discretion to determine the best interests of a minor “is pertinent when a reviewing court applies its ‘abuse of discretion’ standard when reviewing final determinations on the merits underlying a section 388 petition. However, the issue here is the right to procedural due process to permit a full and fair hearing on the merits. Case precedent . . . only required [the mother] to make a prima facie showing to trigger her right to proceed by way of a full hearing. This she has done and the court erred in its check mark denial of her petition.” (Ibid., italics added.)
In reaching this conclusion, the court independently examined the record to determine whether a liberal interpretation of the evidence the mother proffered in support of her petition would justify modifying the order terminating reunification. (Jeremy W., supra, 3 Cal.App.4th at pp. 1414-1416.) However, the court did not hold that de novo review is the standard of review for all summary denials of section 388 petitions. Rather, the court resorted to independent review of the record because the trial court failed to give any explanation or state any factual basis for its summary denial. (Jeremy W., at p. 1413.) Here, in contrast, the court stated its reasons and its reasoning on the record. In any event, whether we review the court’s findings for abuse of discretion or independently determine whether mother’s petition, liberally construed, stated a prima facie case for modification, the result is the same, because we agree with the juvenile court’s assessment.
It is well-established that a parent with long-standing substance abuse problems that are sufficiently severe as to cause the parent to be unable to provide adequately for the child’s needs or protection cannot show changed circumstances within the meaning of section 388 by showing recent sobriety and recent participation in a drug treatment program. (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) After years of substance abuse, a few months of sobriety demonstrates, at most, that the parent’s circumstances are changing. (Ibid.)
Here, although mother’s efforts are definitely to be commended, the record shows that she abused methamphetamine since the age of 13. Mother reported that she had first stopped using methamphetamine in July 2015, when she learned she was pregnant with I.R. Based on her birthdate in August 1988, mother was almost 27 years old at that point and had been using methamphetamine on and off for 14 years. She stated that she had relapsed on May 13, 2016. Thus, in 15 years, she had less than a year of sobriety, not counting the enforced period of sobriety while she was incarcerated on her probation violation.
In her petition, mother provided no factual basis that would support the conclusion that her lengthy struggle with substance abuse could be resolved with a few months of postrelease drug treatment. Thus, mother’s evidence as to her allegedly changed circumstances would not have been sufficient to sustain a favorable decision even if it were found true at a hearing. (In re G.B., supra, 227 Cal.App.4th at p. 1157.)
Because the parent must make a prima facie showing as to both prongs in order to warrant an evidentiary hearing (In re Zachary G. (1999) 77 Cal.App.4th 799, 806), mother’s failure to make such a showing as to changed circumstances is a sufficient basis for summarily denying the petition. However, she also failed to meet her burden as to the second prong. She made no concrete factual allegations whatsoever that modifying the order would serve the children’s best interests. Merely stating that she loves her children and is committed to providing them with a safe and secure home is not sufficient. Accordingly, the juvenile court did not err in summarily denying the section 388 petition.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
J.
We concur:



RAMIREZ
P. J.



FIELDS
J.