Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD219586, JD219587
ROBIE, J.
L.C., mother of minors A.C. and D.C., appeals from orders of the juvenile court denying her petitions to receive reunification services. (Welf. & Inst. Code, § 388.) Mother contends the court abused its discretion by denying the petitions summarily without an evidentiary hearing. We disagree.
All further statutory references are to the Welfare and Institutions Code.
The court did not deny the petitions summarily: the court examined the evidence mother submitted to support the petitions and found that the evidence was insufficient. Because the court’s finding was reasonable under any standard of review, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Dependency Proceedings Prior To The Petition
On June 26, 2008, the Sacramento County Department of Health and Human Services (the Department) filed section 300 petitions on behalf of eight-year-old D.C. and six-year-old A.C. The petitions alleged that mother, whose substance abuse history dated back to 1997, was found during a routine traffic stop to be under the influence of a controlled substance with the minors in the backseat of the car, and faced charges for possession of drug paraphernalia.
The Department’s detention report alleged:
D.C., A.C., and their half siblings had been through prior dependencies dating back to 2001, all at least in part because of mother’s substance abuse problems. Mother’s parental rights as to half sibling A.R. were terminated in October 2004 and A.R. was subsequently adopted. Other half siblings of D.C. and A.C. had been placed in guardianships, which had since been terminated and the minors’ dependencies reinstated. D.C. and A.C. were adjudicated dependents in November 2003 due to mother’s substance abuse, but had been placed with mother under the Department’s supervision in February 2005, and their dependencies terminated in August 2006 with mother regaining sole legal and physical custody.
D.C.’s father, C.B., who lived in Sacramento with mother and the minors, said that mother took them and left with her boyfriend, J., to go to a residential drug treatment center in Redding. (C.B. admitted past methamphetamine use, but denied current use.)
A.C.’s father, J.P., wanted to get the minors out of mother’s custody and to reunify with A.C. because mother had failed in treatment before and could not get “‘cleaned up.’” He had had to halt reunification when he developed liver cancer. He had received a liver transplant 20 months ago.
D.C. said that when J. was stopped for speeding on the way to Redding, the officers found a pipe in his pocket that mother claimed as hers, saying otherwise J. would go to jail. A.C. said J. was mother’s boyfriend; mother “smoked” and fought with C.B. all the time.
According to the Department’s jurisdiction/disposition report, mother admitted that on the date of her arrest she had been under the influence of methamphetamine three or four hours before the traffic stop and had taken a pill J. gave her, though she claimed she was not “high high [sic] from drugs.” If J. had been convicted for possessing the pipe in the car, it would have been his third strike, so she claimed the pipe as hers. She admitted her problems were related to her associations with men and her failure to follow advice from sponsors and others.
In an addendum to the report, the Department stated that mother had completed detoxification, but had left the residential treatment program after three weeks. She tested negative for drugs four times during August 2008. As of late September 2008, she was enrolled in a program called Strategies for Change.
The report calls this program “dual diagnosis.” This apparently means that the program aimed to treat not only mother’s drug problems but also her previously diagnosed mental health problems.
At the jurisdiction/disposition hearing on October 10, 2008, the juvenile court found the minors to be dependents. The court granted reunification services to the fathers, but denied services to mother under section 361.5, subdivision (b) (hereafter § 361.5(b)). The court ordered regular visitation for mother.
The court cited subsections (10), (11), and (13) of section 361.5(b).
The Department’s prepermanency review report, dated February 3, 2009, stated that the minors had been placed together since September 2008 and were doing well, while receiving weekly counseling. Mother had visited once a week on a supervised basis for the past six months; the visits went well and the minors enjoyed them. Neither father had consistently participated in case plans and, although D.C.’s father had visited consistently, he was currently homeless and had declined assistance in securing stable housing. Nevertheless, the Department recommended that fathers receive six more months of reunification services.
The foster family agency report for the quarter ending December 15, 2008, stated that the foster parents were not interested in adoption or guardianship at that time, as the minors were in reunification.
Counseling reports prepared in late January 2009 stated that both minors had made significant progress in individual therapy and D.C. did not need any further sessions.
The Petitions
On February 24, 2009, mother filed verified section 388 petitions requesting that the juvenile court change its order denying her reunification services and instead provide her with services.
Section 388 provides in part:
To show new evidence or changed circumstances justifying the proposed order, an attachment to each petition stated: “Since the mother was not offered reunification services by the Department[], the mother has voluntarily and through her own costs[] completed a [seven-]month substance abuse treatment program, [has] participated in parenting classes, and has been testing regularly and negatively since August of 2008. The mother has been compliant with her Prop[osition] 36 program while doing group meetings there as well as a substance abuse treatment program at NCADD. The mother also participated in Strategies for Change Dual Diagnosis program [and] has now received her 90[-]day certificate from the program. The mother also is participating in parenting classes with her husband at Make Parenting a Pleasure and is close to completing this program.”
The “husband” is not named. Parenting class attendance records for a male, M.S., appear in the supporting documentation, but the record does not show that mother is currently married to M.S. or anyone else.
To show that the proposed order would be in the minors’ best interests, another attachment stated: “The mother has regularly and consistently visited the minors every week. The minors are attached to their mother and they interact appropriately at the mother’s visits. The mother is also committed to providing the minors with a new and motivated mother who is clean and sober, as well as stable and strong. The mother and her husband are dedicated to improving their parenting skills and feel that they could adequately parent these children. The children are very attached to their mother and it would be in their best interest to provide the mother reunification services and allow her to be back on the reunification process on this case.”
Approximately 25 pages of supporting documentation followed each petition. In addition to mother’s program records, there were support letters dated January 29, 2009, written by Mary Gough, mother’s primary counselor in her Proposition 36 substance abuse treatment program (administered by the Sacramento County Affiliate of the National Council on Alcoholism and Drug Dependence, Inc. (NCADD) and E’laina West, mother’s Narcotics Anonymous sponsor.
Gough stated that mother has participated in the NCADD program, which covers “all aspects of Chemical Dependency,” since October 31, 2008. Mother “has been attending [two] groups/week of education and process groups [and] will complete 10 weeks of Women’s Coping with Emotions groups coupled with bi-weekly 1:1 Individual Session throughout the program. She will then attend [three] months of Aftercare groups.... [Mother] is active in group process and 1:1 sessions, and is addressing her issues. She reports she is attending two 12[-]Step meetings per week and appears to have a good understanding of and desire for Recovery. She reports she is working on her steps with her sponsor and appears to be making progress. [¶] [Mother] has tested drug free since she has been in the program. She is to be acknowledged for her hard work, determination and success in the Prop[osition] 36 Program and in her sobriety. [Mother] appears to be serious about improving her parenting and life skills, and is a great candidate to work on reunification with her children.”
West stated that mother, whom West had known for 10 years, was now working diligently through all aspects of the 12-step program. She has “come to terms with her life and is ready to be a mother to her children[.]”
The attached documentation also included mother’s certificates of completion for “Stimulant Detox” (dated August 19, 2008) and “CDCI Outpatient Program Phase I” of Strategies for Change (dated January 22, 2009); her negative drug testing results from October 18, 2008, to January 7, 2009; and her attendance records for the substance abuse and parenting programs.
The NCADD program records show a number of missed sessions covering “Intake,” “Level II (Group Education),” “Level II (Group Treatment),” and “Level II (Mental Health)”; only some of the absences were explained. Records for “Bridges Specialized Treatment and Recovery Services” show numerous group sessions missed, but all were marked “Excused Cancelled or Rescheduled.” The parenting program records also show sporadic attendance.
The Juvenile Court’s Ruling
The court denied each petition, finding they did not state new evidence or a change of circumstances and the proposed order did not promote the minors’ best interest. With regard to the petition filed as to A.C., the court explained: “The attachments are unverified and even if found to be reliable and credible evidence, establish only a haphazard attendance at groups and treatment sessions, with unexplained and/or unexcused absences from the same. With the longstanding substance abuse history and multiple attempts at treatment and sustained recovery, the petition[s] fail[] to cite any evidence to modify the prior finding and resultant order pursuant to [][section] 361.5(b).” The order as to D.C. stated that the request was denied “as stated in sibling application.”
The court uses “attachments” to mean not the allegations so labeled by mother’s counsel, but their supporting documentation.
DISCUSSION
I
Standard Of Review
The parties disagree on the standard of review. We conclude the outcome is the same under either proposed standard.
According to the Department, we review the denial of a section 388 petition for abuse of discretion. (See, e.g., In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re S.R. (2009) 173 Cal.App.4th 864, 866; In re Aaron R. (2005) 130 Cal.App.4th 697, 705; In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) Mother concedes that this standard applies to a ruling made after an evidentiary hearing (as in the decisions the Department cites), but asserts that the “summary” denial of a section 388 petition without a hearing compels de novo review. Mother does not cite authority that expressly so holds, and we have found none. However, she claims that several appellate courts have impliedly and correctly applied de novo review in this context -- that is, they reversed juvenile court rulings without showing deference to or citing the “abuse of discretion” standard. (In re Daijah T. (2000) 83 Cal.App.4th 666, 675; In re Hashem H. (1996) 45 Cal.App.4th 1791, 1800; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416.)
We need not decide whether the authorities cited by the parties conflict, or if so, which standard of review should control. Even assuming de novo review is required here, mother cannot show grounds for reversal, as we explain below.
II
Section 388When petitioning to modify a juvenile court order under section 388, a parent must allege facts showing both statutory grounds for a change in the order: (1) new evidence or changed circumstances exist, and (2) changing the order will serve the child’s best interests. (In re Daijah T., supra, 83 Cal.App.4th at p. 672.) The petition need make out only a prima facie case as to both grounds, meaning that it must allege facts which would support a favorable decision if the evidence supporting the allegations is credited. (Id. at p. 673.)
The petition must be liberally construed in favor of its sufficiency. (Cal. Rules of Court, rule 5.570(a).) If the juvenile court finds that the petition, so construed, states the required statutory grounds, the court may grant the petition after a noticed hearing (or on the parties’ stipulation). (Rule 5.570(e)-(g).) However, if the court finds that the petition fails to state the required statutory grounds, the court may deny it ex parte. (Rule 5.570(d).)
All further references to rules are to the California Rules of Court.
A petitioner under section 388 who makes any request other than removal of the child from the child’s home or to a more restrictive level of placement or termination of court-ordered reunification services, has the burden of proof by a preponderance of the evidence. (Rule 5.570(h)(1).) If (1) the petition does not request a child’s removal from the home of a parent or guardian or to a more restrictive level of placement; (2) the petition does not request termination of court-ordered reunification services; or (3) the petitioner does not have a due process right to confront and cross-examine witnesses, the court may receive proof by documentary evidence or testimony or both, at the court’s discretion. (Rule 5.570(h)(2).)
In assessing a section 388 petition, the juvenile court may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189; see In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)
III
The Ruling
Here, the juvenile court considered the petitions and the supporting evidence and found mother had failed to state a prima facie case as to either prong of section 388, subdivision (a). The court based its finding on two grounds: the gaps in program attendance shown by the evidence (which undercut the petitions’ allegations that mother had diligently sought to complete her programs), and the short-term duration of her current efforts at reform compared to her long history of addiction, relapses, and dependency proceedings. In other words, the court denied the petitions ex parte because mother’s evidence, even viewed in the best light, would not justify a decision in her favor given the entire history of the case. Because the court reasonably found that the petitions and their supporting documentary evidence failed to state a prima facie case for a change in the court’s order, it could properly deny the petitions without a noticed hearing. (§ 388, subd. (d); rule 5.570(d), (h)(2); In re Justice P., supra, 123 Cal.App.4th at p. 189; see In re C.J.W. (2007) 157 Cal.App.4th 1075, 1080-1081 [hearing based on documentary evidence without testimony is not summary denial of a § 388 petition].)
A
Changed Circumstances
Mother asserts the court failed to construe the petitions liberally in favor of their sufficiency as to the alleged change of circumstances (rule 5.570(a)) “when it picked out one attachment (the NCADD attendance sheet), ascribed an unsupported interpretation to it ([mother] did not regularly attend) and did not consider other attachments which counteracted [the court’s] interpretation ([mother’s] attendance was explained and not of concern to the program).” Mother’s assertion is unsupported either by record citation or by the language of the orders, which do not purport to rely on only one attachment. And the court did not have to defer to the NCADD counselor’s benign view of mother’s attendance record in that program, given mother’s history of lapses after attending or completing other such programs.
Mother cites to the documentation in summary form, but does not mention the gaps we have pointed out except as to the NCADD program.
Mother tries to deal with the court’s reliance on her unfortunate history by asserting: “In short, the court was not going to give [mother] another chance no matter what efforts she had made to overcome her substance abuse.” This is a non sequitur. The court did not refuse “to give [mother] another chance no matter what efforts she had made”: the court looked at the efforts mother said she had made and the evidence she offered to document them, and found them insufficient to justify the change in the court’s orders for which mother had petitioned.
Mother relies on In re Eileen A. (2000) 84 Cal.App.4th 1248, where the appellate court found trial counsel was ineffective for not filing a section 388 petition because it would have been “a clear winner.” (Id. at p. 1262.) Mother asserts that her “circumstances” were similar to those of the appellant in that case, “who, in the face of the denial of reunification services, assiduously visited [the minor] every chance she got, took classes and entered counseling sessions all in the hopes of maintaining her ties to her child.” (Ibid.) The similarity is not as great as mother claims. There, the child was removed from the mother’s custody because of failure to protect the child from the father’s physical abuse (due to a combination of ignorance and emotional strain), not because of drug addiction still uncured after multiple dependencies and the loss of parental rights to a child, as here. (Id. at p. 1252.) (In fact, the court stressed that the mother’s problems were “not in the same category as drug abuse.” (Id. at p. 1261.)) Furthermore, the mother not only began seeing an individual counselor but “never missed a session.” (Id. at p. 1252.) Finally, the social worker favored reunification. (Id. at p. 1261.) Since none of those factors exists here, In re Eileen A. does not assist mother.
B
The Minors’ Best Interests
The juvenile court did not make any specific findings on this prong separate from those on the first prong. But if mother failed to state a prima facie case of changed circumstances, it necessarily follows that she could not show a change in the court’s order would have served the minors’ best interests. Thus, we need not separately discuss this issue.
We note, however, that mother’s allegations going to this prong were conclusory at best. After alleging that she visited the minors once a week, they were attached to her, and the visits went well (which showed only that the minors were thriving under the status quo), mother simply asserted vague hopes for future improvement: “The mother is also committed to providing the minors with a new and motivated mother who is clean and sober, as well as stable and strong. The mother and her husband are dedicated to improving their parenting skills and feel that they could adequately parent these children.” The court could reasonably have found that this pleading did not state facts showing a prima facie case that granting mother reunification services would promote the minors’ best interests.
DISPOSITION
The juvenile court’s orders denying mother’s section 388 petitions are affirmed.
We concur: BLEASE, Acting P. J. HULL, J.
Section 361.5(b)(10) permits denial of reunification services where “the court ordered termination of reunification services for any siblings or half siblings of the child because the parent... failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent... pursuant to Section 361 and that parent... is the same parent... described in subdivision (a) and that, according to the findings of the court, this parent... has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent[.]”
Section 361.5(b)(11) permits denial of reunification services where “the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from the parent.”
Section 361.5(b)(13) permits denial of reunification services where “the parent... of the child has a history of extensive, abusive, and chronic use of drugs... and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court’s attention, or has failed or refused to comply with a program of drug... treatment described in the case plan required by Section 358.1 on at least two prior occasions, even though the programs identified were available and accessible.”
“(a) Any parent [of] a dependent child of the juvenile court... may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court... for a hearing to change, modify, or set aside any order of court previously made.... The petition shall be verified and... shall set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order[.]
“[¶]... [¶]
“(d) 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[.]”
Mother asserts, and the Department appears to concede, that the court’s observation does not support its ruling: section 388, subdivision (a), provides only that the petition itself must be verified.