Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County Super. Ct. No. CK26471, Daniel Zeke Zeidler, Judge.
Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Liana Serobian, Deputy County Counsel, for Plaintiff and Respondent.
VOGEL, J.
This is a mother’s appeal from an order denying her request to have one of her daughters returned to her home. We affirm.
FACTS
Tamika G. is the mother of six children, five of whom have been declared dependent children (the sixth and youngest child, a one-year-old, remains in Tamika’s home subject to a voluntary family maintenance agreement entered by Tamika and the Department of Children and Family Services). A. G. (now about six and a half years old) is the only child before us on this appeal.
In order, Tamika’s children are Rachel V. (born in 1991), Jacqueline P. (1997), Andre M. (1998), A. (2001), D. G. (2005), and the baby whose name does not appear in the record (2006).
A. (then two months old) was taken into protective custody in August 2001 after Tamika tried to smother her. A. was placed with her maternal grandmother (Virginia G., who had at that time already adopted A.’s oldest sister, Rachel). A petition was filed, and an amended version was sustained in January 2002 on findings that Tamika had unresolved drug abuse problems rendering her incapable of caring for A. (Welf. & Inst. Code, § 300, subds. (b), (g), (j).) No reunification services were ordered on the ground that Tamika had failed to reunify with the three older children previously removed from her custody (§ 361.5, subds. (b)(10), (b)(13)), although monitored visits for Tamika were authorized. In March 2003, the court selected long-term foster care with Ms. G. as A.’s permanent plan. In February 2005, the dependency court modified A.’s permanent plan by making Ms. G. her legal guardian. In August, jurisdiction over A. was terminated.
All section references are to the Welfare and Institutions Code.
Meanwhile, in April, D. (then two months old) was taken into protective custody and a petition was filed on her behalf. In June, D.’s petition was sustained and family reunification services were ordered. Tamika was ordered to participate in parent education classes, individual counseling, and a drug abuse program, and to appear for random drug testing.
In November, the Department filed a new petition on A.’s behalf, alleging that Ms. G.’s deteriorating health had rendered her incapable of caring for A. A. and Rachel were placed with Ms. T. R., a close friend of Ms. G.’s, and (in January 2006) A.’s case was set for a contested jurisdiction and disposition hearing, with the Department directed to submit a report considering whether A. could be returned to Tamika. At the same hearing, the court terminated reunification services in D.’s case and, as to her, set a section 366.26 permanent plan hearing.
In February 2006, the Department filed a section 388 petition asking the court to terminate Ms. G.’s legal guardianship over A. In a one-paragraph report filed at the same time as the petition, the Department told the court it was “unable to recommend” that A. be returned to Tamika because Tamika was not in compliance with the orders made in D.’s case. At a hearing held on February 8, the court sustained the section 388 petition, terminated the legal guardianship, and directed the Department to submit a report addressing A.’s placement. In April, we denied Tamika’s petition for extraordinary writ relief from the order terminating reunification services in D.’s case. (Tamika G. v. Superior Court (Apr. 18, 2006, B188921) [nonpub. opn.].)
In May, the Department reported that A. and Rachel were living with Ms. R. in a “neat and clean four-bedroom home that [met] all child safety standards.” A. has known Ms. R. since birth and adapted well to living with her. Although Ms. R. expressed interest in adopting A., she was concerned about the family’s feelings and offered to enter a post-adoption visitation contract. An adoption assessment report described A. as adoptable, physically healthy, developmentally age appropriate, and personable.
In August, the court liberalized Tamika’s visitation schedule vis-à-vis A. but at the same hearing terminated Tamika’s parental rights over D. (freeing her for adoption by her prospective adoptive parents).
In November, the Department reported that A. had a strong bond with Ms. R. and wanted to remain in her home, and a current adoption assessment recommended a permanent plan of legal guardianship with Ms. R. Although her visitation rights had been liberalized, Tamika’s contact with A. was “sporadic,” consisting primarily of weekly telephone calls. At the request of Tamika’s lawyer, the court nevertheless asked the Department to evaluate whether Tamika should have unmonitored visits with A.
On November 27, Tamika filed a section 388 petition asking for unmonitored visits and for the “reinstatement” of reunification services. According to the petition, Tamika was clean and sober, and was able to provide a stable and nurturing home for A. At that point, the youngest child was seven months old and living with Tamika while the voluntary maintenance agreement was negotiated. The petition is supported by a certificate from a substance abuse program, a progress report from Tamika’s case manager at that program, and a letter from Ms. R. in support of Tamika’s petition. The court set a hearing on the petition.
In January 2007, the Department reported that Tamika was not interested in reunifying with both of her daughters, only with A. because she was “easier to handle” than Rachel, and because A. got along with Tamika’s boyfriend. Tamika was living in a one bedroom apartment, and told the social worker that she did not visit A. because she did not have money for transportation. A criminal check on Tamika’s boyfriend disclosed a record of drug convictions and charges of inflicting corporal injury on a spouse, battery, and failure to appear. The Department asked the court to deny Tamika’s petition on the ground that the proposed change would disrupt A.’s relationship with Rachel, and recommended the appointment of Ms. R. as A.’s legal guardian.
A hearing was held in January, at which time the court had before it all of the reports plus a declaration from Tamika stating that she had visited A. whenever she could get a ride from a friend. A.’s lawyer and the Department asked the court to deny Tamika’s petition, which the court did, finding that although Tamika’s circumstances were “changing,” they had “not changed.” The court found she “was not even stable and independent enough to get herself to the visits” and, based on her 10-year history with the dependency court with regard to all of her children, found that it was not in A.’s best interest to live with Tamika.
Tamika appeals.
DISCUSSION
Tamika contends the trial court should have granted her section 388 petition. We disagree.
A parent claiming changed circumstances under section 388 must prove “by a preponderance of the evidence that there was new evidence or a change of circumstances demonstrating that it was in [the child’s] best interests that the [dependency court’s] previous . . . order . . . be changed, modified or set aside.” (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) The decision whether to grant or deny a section 388 petition requires an exercise of the dependency court’s discretion, and that decision will be reversed only upon a showing that it exceeded the bounds of reason. (Id. at pp. 415-416; In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
The trial court’s decision that Tamika’s circumstances had not changed is amply supported by the record. Although Tamika has made substantial progress with her drug problem, there is no evidence in the record to suggest she is able to care for A. To the contrary, Tamika has not been able to do something as basic as regularly visiting her daughter, and is apparently dependent on help from others to accomplish even that small task. With an infant to care for under the terms of her voluntary maintenance agreement, there does not even appear to be room for A. in Tamika’s apartment.
Considering the seriousness of the problem that led to A.’s removal from Tamika’s home (Tamika tried to smother her daughter), the length of time that A. has been living elsewhere (since 2001), the strength of the bond between mother and daughter (there is a bond but not as daughter to mother), and the fact that the one continuing relationship in A.’s life -- the presence of her sister Rachel -- would be disrupted by A.’s return to Tamika, it is clear that the dependency court’s decision was not an abuse of discretion. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531.)
DISPOSITION
The order is affirmed.
We concur: MALLANO, Acting P.J., ROTHSCHILD, J.