In re C.G.

Filed 3/23/07 In re C.G. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge. Affirmed.

Nicole Williams, under appointment by the Court of Appeal, for Plaintiff and Appellant.

Ruth E. Stringer, Acting County Counsel, and Jacqueline Carey-Wilson, Deputy County Counsel, for Defendant and Respondent.

Konrad S. Lee, under appointment by the Court of Appeal, for Minors.

Jaime G., plaintiff and appellant (hereafter mother), appeals from the trial courts order summarily denying her Welfare and Institutions Code section 388 petition.^[1] Mother filed the petition in April 2006 in order to obtain a modification of the trial courts order establishing legal guardianship as the permanent plan for her young sons, C.G. and B.G., in a section 300 proceeding that San Bernardino County Department of Childrens Services (DCS) initiated in June 2003 after mother was in a car accident in which both boys were injured.^[2]More particularly, mother had then 18-month-old C.G. and four-year-old B.G. in the car with her when she had a head-on collision while driving under the influence of cocaine and various prescription medications. Both of the boys were injured in the collision B.G.s injuries included a cut on his lower lip that required four stitches and C.G.s injuries included a contusion on his forehead.^[3]

The day before the collision, mother was fired from the doctors office where she had been working as a medical assistant and her employer reported her to the police for stealing a blank prescription pad. A criminal background search revealed that mother and father had been arrested several months earlier after the doctor for whom mother then was working reported that mother had stolen prescription pads and had forged prescriptions in the names of various family members, including father.

Mother initially denied that she had a substance abuse problem and resisted treatment. However, by the time of the 18-month review hearing in March 2005 mother had made significant progress toward addressing the problem and also had participated in drug court in order to resolve her pending criminal charges. Despite that progress, mother tested positive for opiates in two drug tests taken in October and December 2004. Consequently, at the 18-month review hearing the trial court followed the social workers recommendations and terminated reunification services for mother. The trial court also directed DCS to initiate legal guardianships for both boys with their paternal grandparents^[4]as the permanent plan.

On November 4, 2005, the trial court conducted the section 366.26 hearing, after the parties submitted on the social workers reports. The trial court had originally set that hearing for June but had continued it for several months at the social workers urging so that a final attempt could be made at reunification. That attempt failed when father was arrested in July at a drug store where he tried to fill a forged prescription for narcotics. Mother was waiting for father in the car, and when questioned told the police officer, among other things, that father had stolen the prescription pad from the doctors office where mother recently had been employed. Father also told the police that he had stolen the prescription pad several months earlier when he had gone to visit mother at work in the doctors office. At the conclusion of the section 366.26 hearing the trial court found that termination of parental rights would be detrimental to the children. Therefore, the trial court ordered legal guardianship as the permanent plan and appointed the paternal grandparents as guardians for both boys. The trial court then dismissed the dependency.

On April 10, 2006, mother filed a petition under section 388 in which she alleged that circumstances had changed and that the trial court should either terminate the guardianship and return the boys to her or should reinstate family reunification services in order to facilitate the return of the children to mother. The trial court summarily denied mothers petition by checking the box on the petition form that states that the request does not show how it will be in the best interest of the child. Mother appeals from that order, and contends that the trial court should have conducted a hearing on her petition because mother made the necessary showing.

We disagree with mothers claim, for reasons we now explain, and therefore will affirm.

DISCUSSION

Under section 388, a parent or other interested person may petition the juvenile court to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court upon the grounds of new evidence or changed circumstances. ( 388, subd. (a).) The juvenile court may summarily deny a section 388 petition if the petition fails to make a prima facie showing (1) of a change of circumstance or new evidence requiring a changed order, and (2) that the requested change would be in the best interests of the child. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189.) In ruling on a section 388 petition, the trial court may consider the entire factual and procedural history of the case in determining whether the petition makes the required showing. (In re Justice P., at p. 189.) On appeal, we review the summary denial of a section 388 petition for abuse of discretion. (In re Angel B. (2002) 97 Cal.App.4th 454, 460.)

In order to trigger the right to a full hearing, [t]he parent need only make a prima facie showing. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) A prima facie showing has two parts: (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.] (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) 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. (Ibid.)

In her section 388 petition, mother alleged the following changed circumstances: (1) she had completed the family reunification plan, including a drug treatment program, drug testing, parenting classes and counseling; (2) she had consistently visited the children; and (3) she had taken care of her criminal court matter and has not had any further incidents since the last court hearing. Despite her allegations, the first two circumstances existed in November 2005 when the court ordered legal guardianship as the permanent plan for the boys. The only circumstance that had arguably changed was that in December, mother completed her drug court program and the pending criminal charges against her were dismissed. However, that purported change in circumstance did not support the requested modification or revocation of the trial courts previous order because the trial court had not relied on the fact that mother had not completed drug court in making its order selecting legal guardianship as the permanent plan for B.G. and C.G. The trial court relied on the facts set out in the social workers report which indicated that mother had not fully changed her conduct, as evidenced by her continued association with the boys father whom mother acknowledged had a serious dependency on drugs, including heroin, and from whom mother was in the process of obtaining a divorce. In other words, mother did not demonstrate that the requested modification was in the best interests of the children because mother did not demonstrate changed circumstances that would support the requested modification.

In short and simply put, the trial court did not abuse its discretion by denying mothers section 388 petition without conducting a hearing because mother did not make the required prima facie showing that, as a result of changed circumstances, the requested modification or termination of the order was in the childrens best interests.

DISPOSITOIN

The order summarily denying mothers section 388 petition is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Ramirez

P.J.

/s/ Richli

J.

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

^[2]The boys father was also named in the section 300 petition but he has not filed an appeal.

^[3]Mother did not have a car seat for B.G. and claimed that she had been told he did not need one given his age and weight. Mother also claimed that B.G. had been appropriately restrained by a seat belt-harness at the time of the collision.

^[4]DCS had placed the boys with their paternal grandparents shortly after the dependency was initiated.