Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County, Super. Ct. No. J516488A, Ronald L. Johnson, Judge.
McCONNELL, P. J.
Blanca P. appeals an order summarily denying her Welfare and Institutions Code section 388 petition seeking the return of her son, Donnie P., to her care and the initiation of family maintenance services. We find no abuse of discretion and affirm the order.
All future undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Donnie was born in March 2006 and the following December the San Diego County Health and Human Services Agency (the Agency) took Donnie into protective custody and filed a petition on his behalf under section 300, subdivision (j). It alleged that Blanca had subjected Donnie's half sibling, Marie, to serious physical harm by pulling out her hair and leaving a bald spot on her scalp, and that conduct created a substantial risk of harm to Donnie. The family previously had multiple referrals for emotional, physical and sexual abuse and neglect. In August 2006 Blanca entered into a voluntary contract for Donnie, but the Agency terminated it in November 2006 because she had anger management issues, an "inability to control her impulses," and refused to participate in services. Blanca was arrested in 2005 for obstructing a public officer and in 2006 for domestic violence. She also has a history of illicit drug use. Donnie's alleged father was incarcerated and had never seen him.
Marie, who lived primarily with her father, told the social worker that during a visit with Blanca, they were on a walk when Marie bent down to tie her shoelace. Blanca pulled Marie's hair and cursed at her for not moving fast enough. Marie also told the social worker that Blanca sometimes slapped her face and pinched her. Further, Blanca forced Marie, then seven years old, to care for Donnie while Blanca slept. Blanca denied pulling Marie's hair or otherwise abusing either of her children. She accused Marie of lying at her father's behest. Blanca denied she needed parenting education, but conceded she could benefit from anger management therapy.
The court declared Donnie a dependent child, removed him from Blanca's custody and ordered her to comply with her case plan, including general counseling, anger management and parenting classes, and supervised visitation.
At the time of the six-month review hearing, Donnie was living with his maternal aunt. Blanca had made only minimal progress with her case plan. Her counselor had not heard from her and was unaware of her whereabouts. She had not participated in any counseling. The counselor advised that Blanca was unstable "and has unrealistic expectations of herself and [of] reunifying with . . . Donnie." Blanca had attended some anger management classes, but the social worker had not received a certificate of completion. Blanca's counselor advised that she needed additional anger management classes. Blanca had completed a 10-hour parent education course. She had visited Donnie weekly, and she behaved appropriately during the visits. The Agency requested six additional months of services, and the court acquiesced, noting that Blanca had not made substantive progress with her case plan and she was "being provided with a gift and a further opportunity."
At the 12-month review hearing, the Agency recommended the termination of reunification services. Blanca was pregnant and unemployed, she lacked stable housing, she had not followed through with individual counseling or completed an anger management course, and she was inconsistent in her visitation. Blanca told the social worker she wanted Donnie to remain in his aunt's care because she "wants [him] to have the best and she knows that his needs are being taken care of." The court terminated reunification services and scheduled a section 366.26 hearing.
In an assessment report, the Agency recommended termination of parental rights and adoption as the preferred permanent plan. The social worker described Donnie as highly adoptable, and "an adorable, bright and playful 2-year-old boy with big brown eyes and very curly hair. He has a good disposition and a ready smile." He was healthy with the exception of suffering from asthma, which was controlled with medication, and he had been exposed to drugs in utero. His aunt was committed to caring for him long-term, although she was worried about finances, and the Agency intended to assess her home. Additionally, there were 24 approved families in San Diego County interested in adopting a child with Donnie's qualities. Blanca had recently contacted the social worker and stated she wanted to try to get custody of Donnie and she was opposed to his adoption. Blanca had given birth to another daughter.
In an addendum report, the Agency advised that Donnie's aunt was committed to adopting him. Further, Blanca's visitation with Donnie showed there was not a parent-child relationship between them. Rather, Donnie looked to his aunt for feeding, diaper changing, and comfort. Donnie was happy to see Blanca, but he exhibited no distress when they parted. Blanca had not cooperated with the social worker in arranging for more visits with Donnie.
On July 18, 2008, the day the contested section 366.26 hearing was scheduled, Blanca filed a petition under section 388 to gain custody of Donnie and for family maintenance services. As changed circumstances, the petition stated that Blanca's new daughter was not removed from her custody, she had successfully completed parenting and anger management courses, she had a stable job and housing and "is ready to provide emotional, financial support to her son," she had consistently visited Donnie, and they had a loving relationship. The court continued the section 366.26 hearing.
In a September 2008 report, the social worker described three pleasant visits between Blanca and Donnie, and explained that after one of the visits Donnie cried for a few minutes. The Agency's recommendations remained the same.
Blanca submitted a letter from her counselor that said she had been attending sessions since August 1, 2008, in an effort to regain custody of Donnie. According to the counselor, Blanca was taking responsibility for her mistakes and "has made efforts to move past the mistakes and to grow in ways that ensure that she will not make those kinds of mistakes again."
During a September 16, 2008 hearing, the court summarily denied Blanca's section 388 petition and continued the section 366.26 hearing. The court explained that Blanca presented no evidence that removing Donnie from his aunt's custody would be in his best interest.
DISCUSSION
Blanca contends the court abused its discretion by denying her section 388 petition without an evidentiary hearing. Under section 388, a person with an interest in a dependent child may petition the court to change, modify, or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that there is a change of circumstances or new evidence, and the proposed modification is in the child's best interest. (§ 388, subds. (a), (c); In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.)
"[I]f the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citation.] The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
"The petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of clear abuse of discretion." (In re Jasmon O., supra, 8 Cal.4th at p. 415.) " ' "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." ' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) "The denial of a section 388 motion rarely merits reversal as an abuse of discretion." (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686.)
Blanca asserts her petition "alleged significant steps in personal growth and stability to meet her prima facie burden" for a hearing. She completed the parenting class, however, during the six-month review period, and thus it was not a changed circumstance. Her other accomplishments were positive, but they were very recent and showed she was still in a transition stage. The May 2007 certificate from her domestic violence program stated she applied anger management techniques only sometimes, and she "is making good effort to apply what she is learning in group." Further, the social worker noted in a report that in June 2007, Blanca's counselor reported that despite having completed the class, Blanca needed additional anger management classes. It did not indicate Blanca was ready to parent Donnie. "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.)
Blanca's reliance on In re Hashem H. (1996) 45 Cal.App.4th 1791 is misplaced. There, the court held the mother met her prima facie burden by showing "her continuous participation in individual therapy for more than 18 months which was so successful that her therapist recommended Hashem be returned to her custody." (Id. at p. 1799.) Here, the letter from Blanca's counselor showed she had only attended about six therapy sessions. Further, the counselor did not recommend that Donnie be returned to Blanca's custody, but merely explained that was what Blanca wanted. The letter states, "Blanca is aware of the challenges that face her should she get custody of her son," and "[s]he knows that it will be a possibly difficult transition for him and she is aware that it will be challenging for her."
Further, Blanca presented insufficient evidence that removal of Donnie from his aunt's care would be in his best interest. He had lived with her for most of his life, and undisputed evidence shows he is bonded to her, relies on her, and considers her his mother. Blanca cites evidence that although Donnie looked to his aunt for comfort, he "never shied away from" Blanca during visitations and he and Blanca have an affectionate relationship. According to the counselor's letter, however, even Blanca knew a custody change would be hard on him. "In any custody determination, a primary consideration in determining the child's best interests is the goal of assuring stability and continuity. [Citation.] 'When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' " (In re Stephanie M., supra, 7 Cal.4th at p. 317.) Donnie is entitled to permanence and stability now, not at some unknown point in the future. Under all the circumstances, we find no abuse of discretion.
DISPOSITION
The order is affirmed.
WE CONCUR: O'ROURKE, J. IRION, J.