Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. HJ10015551
Dondero, Acting P. J.
Q.C. (Mother) is the parent of K.S. She appeals from the juvenile court’s order summarily denying her modification petition under Welfare and Institutions Code section 388, in which she requested six months of reunification services. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Factual and Procedural Background
I. Section 300 Petition and Detention
On September 16, 2010, the Alameda County Social Service Agency (Agency) filed a section 300 petition on behalf of K.S. The child was 17 months old at the time. The petition alleged that the child came within the provisions of section 300, subdivisions (b) (failure to protect) and (g) (failure to support). Specifically, the petition was based on Mother’s ongoing substance abuse and mental health issues, her inability to provide adequate care to her child despite having received extensive services in connection with her other children, and her failure to reunify with her other children. The subdivision (g) allegations were based on the father’s unknown identity, ability, and interest to provide care.
The Agency’s social worker filed a detention report stating that on August 11, 2010, Mother had tested positive for methamphetamine and cocaine, and was not complying with her safety plan to attend out-patient drug treatment. She had also been diagnosed with depression and bipolar disorder. She had recently experienced periods of medication noncompliance and was exhibiting increased mental health symptoms, and had not been appropriately supervising K.S. and his nine-year-old sister. On multiple occasions, she had been observed to be sleeping during the day, while K.S. was left completely unattended or in the care of his sister, who is developmentally delayed. Three older half brothers had already been removed from Mother’s care, and on this occasion the sister was removed along with K.S. K.S. has a congenital kidney condition that requires him to take daily medications.
At the detention hearing on September 17, 2010, the juvenile court placed K.S. in the temporary custody of the Agency. He was placed with his sister in the home of their fictive maternal aunt.
A contested jurisdictional hearing was held on November 4, 2010. The juvenile court found the child came within section 300, subdivisions (b) and (g), and adjudged him a dependent of the court. The court ordered Mother to participate in reunification services.
On December 22, 2010, the Agency filed a section 387 detention report. The Agency reported that the fictive aunt had been arrested for DUI and driving with a suspended license, and had failed to inform the Agency of her arrest. She also had requested that K.S. and his sister be removed because she was unable to cope with Mother’s harassing behavior, which interfered with her ability to care for the children.
At a detention hearing held on December 22, 2010, the juvenile court again ordered K.S. detained. Thereafter, the previous placement with the fictive aunt was set aside. Custody and control of the child was given to the Agency for out-of-home placement.
II. Interim Review
The Agency filed an interim review report on January 28, 2011. The Agency also filed a section 388 petition recommending that reunification services for Mother be terminated. The social worker reported Mother had been discharged from an in-patient treatment program after threatening a peer, and was referred to an out-patient treatment program. She was subsequently terminated from that program due to noncompliance. The foster mother reported that Mother had made various and numerous threats to harm her and her family. Mother also left upwards of 30 messages on the social worker’s answering machine over a weekend, several of which were threatening in nature. Visitation was not going well as Mother did not attend to K.S.’s needs during visits.
On February 2, 2011, a restraining order was issued against Mother, prohibiting her from harassing, threatening, following, or stalking the Agency’s social worker.
On March 28, 2011, the juvenile court granted the Agency’s petition and terminated reunification services. The matter was set for a section 366.26 hearing. The Agency agreed to provide Mother with referrals for in-patient treatment, psychological evaluation, parenting classes, and anger management classes.
III. First Section 366.26 Hearing and Postpermanent Plan Review
The Agency’s social worker filed a section 366.26 report on July 14, 2011, recommending that legal guardianship of K.S. be established with his current caregiver. Termination of parental rights was not recommended as the foster parent was unwilling to adopt.
At the section 366.26 selection and implementation hearing held on July 19, 2011, the juvenile court ordered legal guardianship as the permanent plan. Therapeutic visitation with Mother was set for once every two weeks.
In a status review report filed on December 13, 2011, the Agency reported Mother had been kicked out of five alcohol and drug rehabilitation programs for assaultive or threatening behavior. She was discharged from one program after she physically attacked a resident in front of other children. Each time she was discharged, she blamed her medication, the staff, or her peers. She was calling K.S. and his sister at the legal guardian’s home several times a day and making false promises to the children. She had also missed several visitations. According to the foster mother, K.S. did not seem to miss his mother and was not showing any behavioral changes after his visits with her.
On December 28, 2011, the Agency filed a second section 387 report on K.S. and his sister after their guardian abandoned them at a store to avoid being arrested for shoplifting. The children were placed in foster care. The guardianship was subsequently ordered set aside.
On April 6, 2012, the Agency filed an interim review report. The report stated that Mother had moved three times since the last hearing. She had been asked to leave each shelter where she was residing due to her aggressive behavior. She stated it was always someone else’s fault and that she was being unfairly blamed. Mother’s mental health appeared to be very unstable. The permanent plan for K.S. was to be placed in an adoptive home once an appropriate home was identified.
A hearing was held on April 17, 2012. Visits for Mother were ordered reduced to once a month. The Agency was granted discretion to increase visits.
On June 14, 2012, the Agency filed a status review report recommending that a section 366.26 hearing be set for K.S. with the goal of adoption. Mother had told the social worker that she had moved from a shelter to transitional housing, but would not allow the social worker to speak with housing staff about the services they provide or to confirm where she was residing. She had not made any progress in addressing her case plan for the last 18 months. K.S. was becoming very reserved during visits with Mother and his sister, and would often find a toy and locate himself in another part of the room away from his mother. He would cry upon arriving at the visit when the social worker would leave. His caregiver reported that he would wet the bed and have some behavioral issues for a couple of days following the visits. Meanwhile, a prospective adoptive home had been found for K.S. He had started preplacement visits with the goal of transitioning to his prospective adoptive family. Overall, he appeared to be more stable than in the past.
On June 26, 2012, the juvenile court ordered adoption as the permanent plan for K.S. and set the section 366.26 hearing date for October 18, 2012.
An ex parte order suspending visits pending the section 366.26 hearing date was granted on July 17, 2012.
IV. Second Section 366.26 Hearing and Section 388 Petition
On October 3, 2012, the Agency filed a section 366.26 report. K.S. had been placed with his proposed adoptive parents. The family had indicated their willingness to be considered as a placement for his older sister when that became appropriate for her. K.S. had been experiencing major temper tantrums. He was referred for therapy to the Fred Finch Crisis Service Program. The program was to assist the proposed adoptive parents in dealing with future outbursts. The family was willing to adopt him, even after experiencing the outbursts and the distress caused by his medical issues. K.S. was comfortable in the home and related to his caregivers as his primary parental figures.
On October 12, 2012, Mother filed a section 388 petition requesting six months of reunification services. As to changed circumstances, she stated she was in a residential treatment program addressing the problems that brought about the removal of the minor from her home. She had entered the program on August 31, 2012, and had met all the program’s requirements and was in good standing. As to the best interest of the child, she stated K.S. is bonded with her and his older sister.
On October 18, 2012, the juvenile court found Mother had not made a sufficient prima facie showing to warrant a hearing on her petition. The court opined that her having been in a program for only one and a half months was not enough to show a change of circumstances. At best, there were changing circumstances, but the actual circumstances had not changed. The court noted reunification services had been terminated almost two years prior, and yet Mother was only just now participating in a program. Moreover, the program was a six-month program that would not be completed until February 2013, further suggesting that circumstances had not changed at the present time. Nor did Mother show how the proposed change order would be in K.S.’s best interest. The court noted that at this stage in the proceedings, the focus was on finding permanency for K.S. and not on Mother’s desire to reunify. In the instant case, there had really not been a parental relationship for the last 25 months, and the court could not find it was in his best interests to have his mother receive reunification services. Accordingly, the court summarily denied the section 388 motion. Thereafter, Mother’s parental rights were terminated. This appeal followed.
Discussion
Mother contends the juvenile court erred by denying her a full evidentiary hearing on her section 388 petition. She claims she made a prima facie showing sufficient to warrant a hearing.
“Section 388 permits ‘[a]ny parent or other person having an interest in a child who is a dependent child of the juvenile court’ to petition ‘for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court’ on grounds of ‘change of circumstance or new evidence.’ (§ 388, subd. (a).) ‘If it appears that the best interests of the child may be promoted by the proposed change of order, ... the court shall order that a hearing be held....’ [Citation.] Section 388 thus gives the court two choices: (1) summarily deny the petition or (2) hold a hearing. [Citations.] In order to avoid summary denial, the petitioner must make a ‘prima facie’ showing of ‘facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited.’ [Citations.]” (In re Lesly G. (2008) 162 Cal.App.4th 904, 912.)
The petition must make a prima facie showing as to two elements, change of circumstance and promotion of the best interests of the child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) A hearing must be held if the petition states a prima facie case, which has been analogized to a showing of probable cause. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432 (Aljamie D.).) The petition should be liberally construed. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414 (Jeremy W.).) But the prima facie requirement is not met unless the facts alleged, if supported by evidence credited at the hearing, would sustain a favorable decision on the petition. (In re Zachary G., supra, at p. 806.)
“We review a summary denial of a hearing on a modification petition for abuse of discretion. [Citation.] Under this standard of review, we will not disturb the decision of the trial court unless the trial court exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination.” (In re A.S. (2009) 180 Cal.App.4th 351, 358.)
Mother contends the juvenile court erred by not allowing her to present evidence that she had undergone changes since entering the program. Specifically, she had two witnesses who reportedly were prepared to testify about the classes she had taken and what she had learned.
We conclude the juvenile court did not abuse its discretion in denying a full evidentiary hearing on the petition. Significantly, Mother waited until the eve of the section 366.26 hearing to provide information about her participation in program services. We agree with the court that on the issue of changed circumstances, the petition alleged at most changing circumstances, i.e., a recently renewed effort to address the problems that led to the K.S.’s dependency by participating in a residential treatment program designed to address her issues.
As the juvenile court noted, Mother would not complete the program for several more months. Thus, the changes she sought to make in her life had not yet occurred. “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, who has repeatedly failed to reunify with the child, 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. (1999) 70 Cal.App.4th 38, 47, italics added.) The changed circumstances alleged in Mother’s petition on their face were too little and too late in this 25-month dependency case to justify further delay in adopting a permanent plan for K.S. (Cf. In re Kimberly F. (1997) 56 Cal.App.4th 519, 526–527 [changed circumstances existed where “home was no longer in an unsanitary and unsafe condition, ” where condition of home had led to the dependency].)
Mother argues the court applied an incorrect legal standard when it required “credible evidence” of a change of circumstances, as the statute only requires a “change of circumstances.” We disagree. Common sense dictates that the change of circumstance standard must include a materiality element as measured by the purpose of the statute; otherwise, the mere passage of time would suffice to reopen prior orders upon an appeal to a child’s best interests. Courts recognize this implicit materiality standard by referring to “a genuine change of circumstance” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250), and a change of circumstances “which may make the modification of a prior order appropriate” (In re Daijah T. (2000) 83 Cal.App.4th 666, 674) when discussing the section 388 standard. Here, though Mother alleges she had witnesses who would testify that her behavior “had changed dramatically, ” she fails to fully acknowledge her history of noncompliance in connection with similar programs, including her repeated failure to accept responsibility for the aggressive and uncooperative behavior that caused her to be discharged from such programs on so many prior occasions.
In contrast, in Jeremy W., the section 388 petition was accompanied by three declarations, including one in which the mother’s doctor opined that she was presently able to provide suitable care for her son. (Jeremy W., 3 Cal.App.4th at p. 1416.) Likewise, in In re Hashem H. (1996) 45 Cal.App.4th 1791, the petition included a letter from a physician discussing the substance of the mother’s therapy, opining that she now could adequately supervise her son full time, and recommending he be returned to her custody. (Id. at p. 1798.) And in Aljamie D., supra, the petition alleged several concrete changes in the mother’s situation, such as completion of a variety of educational programs, including domestic violence management, as well as consistent visitation and strong bonding with the children. (84 Cal.App.4th at pp. 428, 432.) Moreover, the petition also showed that the nine- and 11-year-old children’s first choice, repeatedly expressed, was to live with their mother. (Ibid.) This later fact is clearly important and relevant to the outcome in Aljamie D.; other cases have held that simple completion of the kinds of classes taken by the mother in Aljamie D. (and begun by Mother here) does not, in and of itself, show prima facie that either the requested modification or a hearing would be in the minor’s best interests. (See In re Anthony W., supra, 87 Cal.App.4th at pp. 250–251.)
Even had Mother made a prima facie showing of changed circumstances, her petition did not show that providing an additional six months of reunification services was in her son’s best interests. Throughout the dependency proceedings, she did not maintain a consistent relationship with him, and he had recently begun avoiding her during the visits that she did participate in. He had also started exhibiting negative behaviors after the visits. Thus, his bond with her was not particularly strong.
Moreover, K.S. appeared to be comfortable in his prospective adoptive home. The family was willing and able to provide a permanent home for him, and possibly for his older sister in the future. The adoptive parents thus offered a stable home environment. Mother could not. “After termination of services, the focus shifts from the parent’s custodial interest to the child’s need for permanency and stability.” (In re Amber M. (2002) 103 Cal.App.4th 681, 685.) Thus, the juvenile court could reasonably find the child would not benefit from vacating the section 366.26 hearing and providing Mother with more services. Accordingly, we conclude that it did not err by summarily denying her section 388 petition.
In light of our conclusion, we need not address the Agency’s alternative arguments.
Disposition
The order appealed from is affirmed.
We concur: Banke, J., Sepulveda, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.