Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, Ct. No. CK71532 Marguerite Downing, Judge.
Thomas S. Szakall, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Heather C. appeals from the juvenile court’s order denying her Welfare and Institutions Code section 388 petition and section 366.26 order. We affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The Department of Children and Family Services (DCFS) received a referral on January 18, 2008, alleging general neglect by Heather C. (Mother) of her children—15-year-old Andrew C., 11-year-old Jazlyn R., and 2-year-old Zoe R. According to the referral, Mother was using and selling methamphetamines in the presence of the children, she had numerous people coming and going from their home as a result of her drug use, and the 2-year-old child had been observed with hypodermic needles and glass methamphetamine pipes in her hands. In the initial investigative interview on January 24 by a DCFS children’s social worker (CSW), Mother explained that she was the children’s biological mother and she gave the names of the father of Andrew and the father of Jazlyn and Zoe. She reported that she had been incarcerated until January 19 and the children were still in the care of her brother, James C., as they had been during her incarceration.
Neither of the fathers is a party to this appeal.
DCFS initially removed the children from Mother’s custody on January 28, 2008. On February 5, DCFS filed a juvenile dependency petition against Mother under section 300, subdivisions (a), (b) and (g), on behalf of the children. At the February 5 detention hearing, the juvenile court ordered that each child be detained and gave DCFS discretion to place them with any appropriate relative. As of January 31, 2008, the children were placed with their maternal uncle, James C., and his wife, Vanessa C. The court granted Mother monitored visits three times a week, to be monitored by DCFS-approved monitors not to include the maternal relatives who were the caretakers, and the court gave DCFS discretion to liberalize the visitation.
At the jurisdiction/disposition hearing on August 5, 2008, the juvenile court declared the children to be dependent children of the court, after the court sustained counts b-1, b-2 and b-3 of the petition against Mother under section 300, subdivision (b). The counts are summarized as follows:
Section 300, subdivision (b), provides, in pertinent part: “Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶]... [¶] (b) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent... to adequately supervise or protect the child, or the willful or negligent failure of the child’s parent... to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent... to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent... to provide regular care for the child due to the parent’s... mental illness, developmental disability, or substance abuse.”
“b-1 On numerous prior occasions, ... [M]other created a detrimental and endangering home environment for the children in that [M]other and her adult acquaintances were under the influence of illicit drugs including methamphetamine and marijuana in the children’s home in the children’s presence. [M]other possessed glass methamphetamine pipes in the children’s home within access of the children. Such detrimental and endangering home environment established for the children by [M]other endangers the children, placing the children at risk of harm.
“b-2 [M]other has an unresolved history of substance abuse which periodically limits her ability to provide regular care for the children thereby placing them at risk of harm.
“b-3 [M]other and [her] male companion, ... father of Jazlyn and Zoe, have a history of domestic violence. Further, the father has a criminal conviction of battery of a non-cohabitant former spouse. Such violent conduct on the part of the... father against [M]other endangers the children’s physical and emotional health and safety and places the children at risk of physical and emotional harm, damage, and danger.”
The juvenile court also sustained count g-2 against Andrew’s alleged father, who, as previously noted, is not a party to this appeal.
At the jurisdiction/disposition hearing, the juvenile court also ordered DCFS to provide Mother with family reunification services. The court ordered Mother to enroll in drug counseling and random drug testing, parenting and individual counseling to address case issues including domestic violence issues. Andrew and Jazlyn were to have conjoint counseling with Mother when appropriate and individual counseling. Mother was granted monitored visits, subject to DCFS’s discretion to liberalize.
At a hearing on April 1, 2009, the juvenile court found that Mother was not in compliance with the case plan and terminated family reunification services for Mother. The court based its finding in part on the following information from the DCFS Interim Review Report dated April 1, 2009, and the earlier DCFS status report dated February 26. The children appeared to be very comfortable and well-settled in the home of their caregivers. The caregivers stated they would adopt the children in the event the parents were not able to reunify. Andrew and Jazlyn both made significant improvements in their school grades after placement in the caregivers’ home. They each reported they were happy in their current home with the caregivers, and Jazlyn stated that her first choice is to be adopted by the caregivers. In March 2009, Andrew and Jazlyn expressed concern for Mother because she appeared to have lost weight and to be sick. Andrew indicated that he was very upset with Mother for continually making excuses for being late to, or not showing up for, visits. He also conveyed that it did not look like Mother had tried to change.
According to the reports, Mother enrolled in a random drug testing program in May 2008. Through March 2009, she was a no-show for 11 tests. The police found methamphetamines in Mother’s room in June 2008. Mother tested positive for methamphetamines in August and October 2008. Mother enrolled in a 15-week parenting class in March 2008, but she was terminated in June. In September, she reenrolled, but her attendance was sporadic. She did not complete the class until almost a year after she first enrolled. In March 2008, Mother enrolled in a six-month substance abuse program but was terminated from the program in May. She reenrolled in November. A January 2009 progress report explained that Mother had missed many activities and needed to complete a lot of make up sessions, but could possibly complete the program in May 2009. During March 2009, she improved her attendance. According to a staff member for the substance abuse program, Mother lacked motivation, which could be an indication that she was not maintaining her sobriety. As to compliance with the court-ordered individual counseling, Mother had not yet enrolled in counseling with an agency, although DCFS had provided referrals to her in August, November and December 2008. Mother reported to DCFS that, during March 2009, she had called two agencies, but no one answered, and she had driven by the agencies and a third agency, but they were closed.
Mother tested positive for methamphetamines at the time she gave birth to her son, I.M., in October 2008. Dependency proceedings with respect to I.M. have been held concurrently with proceedings for Andrew, Jazlyn and Zoe. However, this appeal does not concern I.M.
Regarding visitation, according to the reports, Mother had been inconsistent with visitation and there had been a history of problems with her monitors and the quality of her visits. She had been at least 20 minutes late for most of the scheduled visits. Mother missed five visits during September 2008 and October 2008, and four out of five visits scheduled in January 2009. In March 2009, Mother missed the first visit, explaining she was too late for the visit due to an accident on the freeway. She was 40 minutes late for the second visit, which she said was due to her car overheating. Andrew and Jazlyn had limited interaction with Mother during the ensuing visit. Afterward they told the CSW they were tired of hearing excuses from Mother and wanted to decrease their visits to every other week. Mother was on time for the third visit, but only Zoe participated in the visit. Andrew and Jazlyn refused to participate. The caregivers reported to the CSW that Mother had only called to speak to the children a couple of times during the past year but had often called the caregivers during school hours to ask for money or talk about her current situation.
According to the subsequent DCFS status review report dated September 30, 2009, the last reported visit between Mother and Zoe had been on May 11, 2009, and that Andrew and Jazlyn refused to visit with Mother because she did not show up at several of their scheduled visits and when she arrived, she was always late. On June 5, Mother requested a visit at a restaurant. The children arrived at the scheduled time, but Mother never came. Jazlyn became upset and indicated that she did not want to visit with Mother. Andrew stated that he did not want to see Mother until she decided to be responsible and was on time for their visit. A scheduled visit on July 20 was cancelled due to the late time Mother arrived.
At a February 2, 2010 hearing, 24 months after the children were detained, the juvenile court found that there was no substantial probability the children would be returned to Mother’s physical custody within six months. The court ordered family reunification services terminated for the parents, ordered DCFS to provide permanent placement services and set the permanent plan hearing for the children for June 2010. DCFS informed the court that the children’s caretakers were interested in adopting them and had an approved adoption homestudy dated January 29, 2010.
On February 26, 2010, Mother filed a request pursuant to section 388 to change the court’s February 2 order (section 388 petition). Mother based her petition on changed circumstances as follows: “Mother has completed a Parenting program; [two] substance abuse programs with random testing; Mother has enrolled and is participating in individual therapy with a licensed therapist.” Mother requested the court to make a new order for placement of all the children in her home and for extension of reunification services to Mother to include conjoint counseling between Mother and the children. She made the related request that the court order unmonitored visitation and overnight visitation for Mother and the children. As to the reasons the new order would be better for the children, Mother stated in the petition: “The children are in separate homes with separate plans and deserve the opportunity to grow up together. Zoe has suffered severe attachment disorder due to being separated from her mother and having very limited contact; Andrew and Jazlyn are extremely angry at their mother and have been told negative things about their mother by their caretakers and the DCFS CSW; The least restrictive placement is HOP [home of parent].”
At a hearing on March 2, 2010, the juvenile court denied the section 388 petition because it did not state new evidence or a change of circumstances and then granted Mother’s request for a contested hearing on the matter. The contested hearing was continued from April 14 to May 27, and then continued again to July 19.
DCFS filed a section 366.26 report dated June 1, 2010. According to the report, the children were detained on January 31, 2008 in the home of their maternal uncle, James C., and his wife, Vanessa C., had continuously resided there, and had never returned to Mother’s home. Andrew and Jazlyn said that they would like to be adopted by their caregivers. Over time, they had exhibited and reported feeling anxious about returning home to Mother. Zoe told a CSW that she was happy at her placement, but she was too young to have the understanding required to answer whether she would like to be adopted by her caregivers. A concurrent planning assessment completed in October 2008 indicated adoption as the most appropriate permanent plan for all three children.
The June 1, 2010 report revealed further that DCFS had been informed that Mother had been inappropriate by trying to coach Zoe to say that her caregiver hurts her and by giving Zoe unauthorized vitamins. Mother also wrote an inappropriate letter intended for Andrew in which she addressed her pain and told him not to make her look worse than how she already was or felt.
As to visitation, the June 1, 2010 report stated that Mother appeared to have given up on establishing regular contact with the children. Andrew and Jazlyn had refused to meet with Mother since May 2009, due to her being inconsistent with her visits and lack of commitment to the children. Zoe had continued to have monitored visits with Mother.
According to a July 19, 2010 DCFS report, as of June 4, 2010 Mother was serving a 365-day sentence for felony charges and was presently housed at the Century Regional Detention Facility in Lynwood.
DCFS filed a status review report dated August 3, 2010. Among other matters noted about Mother’s criminal history, the report chronicled that she was arrested in August 2009 and charged with possession of a person’s identification with intent of committing fraud, false checks/records, forgery, and being under the influence of a controlled substance. She was convicted and sentenced to 180 days in jail and three years of formal probation. Subsequently, on June 4, 2010, she was sentenced to 365 days in jail and three years of formal probation after conviction on similar charges stemming from an April 2009 arrest. As of the date of the status review report, she remained in jail.
On August 3, DCFS reported that the three children had resided for almost three years in the home of their maternal relatives, Mr. and Mrs. C. The children seemed happy, to have bonded with the relatives, and to feel safe with them. The children told the CSW that they would like to be adopted by Mr. and Mrs. C., who want to adopt the children and who have an approved adoption homestudy. DCFS recommended that the children be provided permanent placement services and that a permanent plan hearing under section 366.26 for the plan of adoption remain as scheduled for September 27.
The hearing on the contested section 388 motion was held on August 17, 2010. Mother testified on her own behalf. She testified that it had been more than a year since she used an illegal substance and she had completed a six-month drug rehabilitation program and then a three-month aftercare program. She said she had completed a six-month anger aggression class, a 14-week mentor class, seven months of individual therapy and a parenting class. She attended AA and NA meetings. She testified that recently she had been incarcerated for 64 days for a non-drug-related fraud situation from the past and had not been arrested during the current year for any new offenses.
After arguments by counsel, the juvenile court denied Mother’s section 388 petition. The court found that granting the petition was not in the children’s best interest, although in some instances, there was a change of circumstance. The court then ordered DCFS to provide conjoint counseling for Andrew, Jazlyn and Mother in a therapeutic setting, unless the therapist objected to such arrangement by written notice to the court. DCFS was to set up a weekly visitation schedule for Mother with Zoe.
DCFS reported on September 27, 2010 that the CSW informed Andrew and Jazlyn about the court’s order for them to participate in conjoint counseling with Mother. Both Andrew and Jazlyn stated that they did not want to do that and just wanted to go on with their life as it was. Nevertheless, a CSW put Andrew, Jazlyn and Mother on a waiting list to initiate the counseling by approximately October 2010.
On September 27, 2010, the juvenile court held a hearing on termination of Mother’s parental rights as to Andrew under section 366.26. The juvenile court received in evidence [by reference only] the DCFS section 366.26 report dated June 1, 2010 and the two DCFS information for court officer reports dated September 27, 2010. The juvenile court found by clear and convincing evidence that it is likely that Andrew would be adopted. The court ordered the termination of Mother’s parental rights as to Andrew. The same type of hearings were also scheduled on the same date for Jazlyn and Zoe, but the hearings were continued, in that DCFS had not yet obtained their incarcerated father’s signature on the waiver of appearance.
The juvenile court postponed conducting a section 366.26 hearing with respect to Jazlyn and Zoe, in that it was not clear that their father had been properly given notice.
On October 19, 2010, Mother filed a notice of appeal from the August 17, 2010 order denying Mother’s petition under section 388 and from the September 27, 2010 order terminating Mother’s parental rights as to Andrew.
DISCUSSION
Mother contends the juvenile court abused its discretion by denying her section 388 petition, in that she made the required prima facie showing of a change of circumstances. Mother also claims that the juvenile court’s abuse of discretion in denying her section 388 petition resulted in a violation of her due process rights and, as a result, reversal as to the section 388 petition also requires reversal of the juvenile court’s subsequent order terminating her parental rights as to Andrew under section 366.26.
Pursuant to section 388, subdivision (a), after a juvenile court has declared a minor to be a dependent child of the court, then the child’s parent may petition the juvenile court to “change, modify, or set aside” any prior order of the court or “to terminate the jurisdiction of the court” over the parent’s child, based “upon grounds of change of circumstance or new evidence.” Any change, modification, or setting aside of the order must be in the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; see also In re Marilyn H. (1993) 5 Cal.4th 295, 308-309.) We review a juvenile court’s decision on a section 388 petition for abuse of discretion. (Stephanie M., supra, at p. 318.) That is, we may not disturb the court’s decision unless it was arbitrary, capricious, or patently absurd. (Ibid.)
Section 388 provides: “(a) Any parent... [of] a child who is a dependent child of the juvenile court... may, upon grounds of change or circumstance or new evidence, petition the court... for a hearing to change, modify, or set aside any order of court previously made.... [¶]... [¶] (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 and shall give prior notice, or cause prior notice to be given....”
In order to trigger a hearing on the section 388 petition, the parent has the burden of making a prima facie showing both (1) the requisite change of circumstance or new evidence and (2) that the proposed modification would be in the best interests of the child. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250; In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) The changed circumstances asserted by Mother were that she had completed a parenting program and two substance abuse programs with random testing. She had enrolled and was participating in individual therapy with a licensed therapist. The juvenile court found that Mother had shown some change in circumstances, but that the record did not support a finding that the requested modification would be in the best interests of the children. We agree with the court.
The factors to be considered in determining the best interests of a child in a section 388 hearing include “(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been. While this list is not meant to be exhaustive, it does provide a reasoned and principled basis on which to evaluate a section 388 motion.” (In re Kimberly F., supra, 56 Cal.App.4th at p. 532, italics omitted.)
Application of the Kimberly F. factors to the record in the instant case demonstrates strong support for a determination that granting Mother’s section 388 petition would not have been in the best interests of the children. (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.) The problem which led to the children’s dependency was very serious, and Mother’s conduct while the dependency proceedings were pending had shown the likelihood that the problem continued with little reason to believe that it would be satisfactorily resolved in the near future. The serious problems that led to the children’s dependency arose from Mother’s long history of substance abuse and her then-current activities with respect to substance abuse, including methamphetamine and marijuana abuse, which limited her ability to provide regular care for the children and created a detrimental and endangering home environment for the children, all of which placed the children at risk of harm. Although Mother’s circumstances had been changed to some degree by her completion of a parenting class, two drug rehabilitation programs, and participating in individual counseling, serious problems remained.
The record reveals that, by the time of the hearing on Mother’s section 388 petition, she had made little progress in ameliorating her substance abuse problem. She tested positive for methamphetamine twice and did not show up for the required random drug testing numerous times. Her continuing inability to refrain from putting her children at risk due to her substance abuse problems was demonstrated by the fact that she tested positive for methamphetamine when she gave birth to I.M. in October 2008. Her commitment to solving the problems leading to the children’s dependency did not appear to be strong, in that she was terminated from or dropped out of court-ordered classes and programs. Although she reenrolled in some of them, she failed to complete them in a timely manner due to her sporadic participation. Mother was convicted of a felony and incarcerated while her section 388 petition was pending.
During the course of the dependency proceedings, the bonds between Mother and each of the children, particularly the two older children, had deteriorated significantly, but the bonds between all three children and their caretakers had become strong. Mother’s relationship with Andrew and Jazlyn deteriorated to the point that they no longer wanted to participate in visitation with her. Her pattern of no-shows and very late arrivals for visitation caused Andrew and Jazlyn to question her commitment to them and the likelihood that she would ever show responsibility for their welfare.
On the other hand, all three children were happy in the home of their maternal uncle, James C., and his wife, Vanessa C., who had been their caretakers throughout the years of the dependency proceedings. By the time of the hearing on Mother’s section 388 petition, the caretakers had repeatedly expressed their desire and willingness to adopt the children. DCFS had conducted and approved an adoptive homestudy on their home. Andrew and Jazlyn had each expressed to a CSW that they would like to be adopted by their caregivers. All three children had indicated that they did not want to return to reside permanently with Mother.
The juvenile court was faced with weighing the uncertainty with respect to Mother’s progress with her substance abuse problem and improvement in her parenting ability against the virtual certainty of immediate adoption of the children if the court denied the section 388 petition and continued with scheduled proceedings for termination of parental rights. At the time of the hearing on Mother’s section 388 petition, evidence showed that the children could have a permanent, stable home with the prospective adoptive parents as soon as parental rights were terminated, freeing them for adoption. Adoption would allow the children to remain in the home of the prospective adoptive parents where they had already lived for three years.
A key factor in determining whether a modification proposed in a section 388 petition would be in the best interests of the child is the extent to which it would assure stability and continuity of a home for the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) The legislative objective of the dependency statutory scheme is to provide a permanent, stable home for a child who cannot be returned home within a prescribed period of time, generally not to exceed 18 months after the child was originally removed from the parent’s home. (§§ 300, 361.5, 366.26; Stephanie M., supra, at p. 317; In re Marilyn H., supra, 5 Cal.4th at pp. 307, 310.) By the time of the hearing on Mother’s section 388 petition, approximately 30 months had passed after the children’s initial removal, much longer than the legislatively established 18-month target for a child to be in a stable, permanent home. As one court has expressed, “[c]hildhood does not wait for the parent to become adequate.” (Marilyn H., supra, at p. 310.)
We conclude that the juvenile court had a reasonable basis for finding that it would not be in the children’s best interests to delay their placement in a permanent, stable home in order for Mother to have yet another opportunity to show she was able to provide such a home for the children, as Mother was requesting in her section 388 petition. (In re Stephanie M., supra, 7 Cal.4th at p. 317; In re Marilyn H., supra, 5 Cal.4th at p. 307.) Thus, the court did not abuse its discretion in denying Mother’s section 388 petition. (In re Stephanie M., supra, at p. 318; In re Anthony W., supra, 87 Cal.App.4th at p. 250.) We must affirm the juvenile court’s order denying the petition. (Stephanie M., supra, at p. 318.) Having affirmed the court’s order, we need not address Mother’s contention that, if we reversed the order, then we would also be required to reverse the subsequent order terminating Mother’s parental rights with respect to Andrew.
DISPOSITION
The orders are affirmed.
We concur: WOODS, Acting P. J., ZELON, J.