In re Jazmin B.

Filed 3/28/07 In re Jazmin B. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

S. Patricia Spear, Judge. Affirmed.

Jennifer Mack and Leslie A. Barry, under appointment by the Court of Appeal, for Defendants and Appellants.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel and Angela Williams, Deputy County Counsel, for Petitioner and Respondent.

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In this case, the trial court denied the Welfare and Institutions Code[1]section 388 petition of Kristina B. (mother) and Bradley B. (father) with respect to their daughter Jazmin, and terminated their parental rights. The parents appeal the denial of the section 388 petitions.[2] Finding no error, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On January 26, 2005, the Los Angeles County Department of Children and Family Services (DCFS) filed a petition pursuant to section 300 with respect to two-year-old Jazmin B. That petition alleged that mother abused drugs, allowed father to physically abuse mother's eight-year-old daughter Katrina Y.,[3]and left Katrina and Jazmin home alone and unsupervised. Jazmin was detained with her paternal grandmother. The court sustained the petition, and ordered mother to attend a drug rehabilitation program with random drug testing, to participate in parent education, NA/AA after care with a sponsor, and individual and conjoint counseling with Katrina when her therapist deemed it appropriate. The court ordered monitored visits for mother with discretion to DCFS to liberalize.

Although mother and father initially visited Jazmin on a weekly basis, by mid-2005, their visits diminished. Between the jurisdiction and disposition hearing in June and the contested 366.21, subdivision (e) review hearing in November, the parents had seen Jazmin on two occasions. The paternal grandmother reported that Jazmin missed her parents dearly.

The trial court terminated reunification services at the November 17, 2005 review hearing, finding that the parents had not regularly participated in, and had made no substantive progress in, their court-ordered treatment programs, and there was no substantial probability that the court could return Jazmin to their care within the next six months. A section 366.26 termination hearing was set for February 16, 2006, but was continued.

On February 27, 2006, mother delivered a baby girl, Kelly. Toxicology tests administered at that time indicated that mother and baby were drug free.

On March 24, 2006, mother and father filed separate section 388 petitions, seeking either return of Jazmin or additional reunification services. The court set the matter for hearing. Mother alleged as changed circumstances that she was regularly drug testing with clean results, and had completed a parenting class.

The combined section 366.26 and 388 hearings were held on July 31, 2006. As of that time, mother had tested negative for drugs on December 28, 2005, January 20, February 10, March 13 and 29, April 12 and 27, and May 11 and 23, and had missed random drug tests on January 5, February 27, [4]and June 5. Moreover, on May 18, 2006, the social worker reported that mother appeared to have no relationship with Jazmin. During monitored visit, mother held Kelly and sat and watched father and Jazmin interact.

In support of her section 388 petition, mother testified that she had been testing clean, attended NA twelve step classes, and was going to individual counseling. Mother maintained that the only portion of her reunification plan which she had not satisfied was completion of a drug rehabilitation program. She argued that because her random drug tests were negative and she had delivered a drug-free baby in February of 2006, she demonstrated that she had accomplished the goal of a drug rehabilitation program and established that she had resolved the problem which had led to the dependency.

After both parents testified, the court denied both petitions and proceeded to make its findings under section 366.26 that the exception found in section 366.26, subdivision (c)(1)(A) did not apply. The court found that it was likely Jazmin would be adopted, and terminated parental rights.

Mother appeals the denial of her section 388 petition. Father joins mother's appeal.

STANDARD OF REVIEW

Throughout the dependency process, a parent may file a petition under section 388 requesting that the court change, modify or set aside a previously made order. ( 388.) The burden of showing that the requested modification should be granted is on the parent. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The parent must show both that (1) there is a change of circumstances or new evidence, and 2) the proposed modification is in the child's best interests. ( 388; Cal. Rules of Court, rules 1432(c) and 1432(f); In re Casey D. (1999) 70 Cal.App.4th 38, 47.) Whether a previous order should be modified and whether a change would be in the child's best interests are questions which are committed to the sound discretion of the juvenile court and that court's determination is reviewed for abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 317.)

DISCUSSION

Mother contends that the juvenile court abused its discretion when it denied her section 388 petition, maintaining that the court should have ordered additional reunification services. Mother claims that she presented "substantial evidence" of changed circumstances in that she was "regularly drug testing with clean results and had completed a parenting class."

Under section 388, "the change of circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged prior order." (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485.) Moreover, the petition must be considered in the context of the entire dependency proceeding. (See In re Marilyn H. (1993) 5 Cal.4th 295, 307; In re Heather P. (1989) 209 Cal.App.3d 886, 891.)

Here, mother's circumstances had changed somewhat, in that she had complied with certain elements of her case plan by submitting clean drug tests and completing a parenting class, which she had not done during the reunification period. However, other portions of her case plan, such as participation in a drug rehabilitation program and individual counseling, remain unfulfilled. Thus, at best, mother's circumstances were "changing" but not "changed," which is insufficient to support a modification under section 388. (In re Casey D., supra, 70 Cal.App.4th at p. 47; In re Amber M. (2002) 103 Cal.App.4th 681, 686.) "The failure of the parent . . . to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental." ( 366.22, subd. (a).) Thus, the juvenile court did not abuse its discretion in denying mother's 388 petition.

The court also determined that it would not be in Jazmin's best interests to grant mother's petition. The record supports the trial court's determination.

Mother never progressed beyond monitored visitation with Jazmin, and the bond that they once shared had deteriorated during the reunification period due to mother's infrequent visits. In May 2006, the social worker observed no interaction between mother and Jazmin during a monitored visit. Since her placement with her paternal grandmother, however, Jazmin developed a deep bond with her grandparents, who had an approved home study and were ready to adopt the child.

Where a section 366.26 hearing has already been set in order to select a permanent plan, "a petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent . . . might be able to reunify at some future point, does not promote stability for the child or the child's best interests." (In re Casey D., supra, 70 Cal.App.4th at p. 47.) Here, as in Casey D., mother essentially sought to delay the selection of a permanent home for Jazmin so that she would have more time to attempt to reunify. At this point in the proceedings, however, the focus was no longer on mother, but instead on the best interests of Jazmin, particularly her need for stability. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.)

DISPOSITION

The orders denying parents' section 388 petitions and terminating their parental rights to Jazmin are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

MOSK, J.

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[1]Further statutory references are to this Code.

[2]Father joined in mothers appeal, but raised no independent issues.

[3]Katrina Y., the older half-sibling of Jazmin, is not a party to this appeal.

[4]DCFS apparently excused this missed test because mother gave birth to Kelly on that date.