Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an Order of the Superior Court of Los Angeles County No. CK 68293, Steven L. Berman, Referee. Affirmed.
Amy Z. Tobin, under appointment by the Court of Appeal for Appellant Ruby T.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Ligia G. Schaffer, Senior Deputy County Counsel, for Respondent Los Angeles County Department of Children and Family Services.
ZELON, J.
Mother Ruby T. appeals from the dependency court’s denial of her Welfare and Institutions Code section 388 petition seeking return of her children to her. She contends the dependency court abused its discretion in denying her petition because the evidence demonstrates changed circumstances. We affirm.
All statutory references herein are to the Welfare & Institutions Code unless otherwise noted.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Ruby T. is the mother of two girls, V.S. (born 1993) and J.H. (born 1996), and a boy, M.O. (born 2004). On April 27, 2007, the Department received a referral alleging that Mother physically abused J.H. by hitting her with her hand and shoe and emotionally abused J.H. by telling her that Mother did not know why she had her. J.H. was afraid of Mother.
On May 1, 2007, the Department interviewed the children’s maternal grandmother, who told the social worker she was concerned about Mother’s treatment of the children. At the time, Mother, J.H. and M.O. had been living with Mother’s mother for two weeks. V.S. had been residing with her grandmother since birth because Mother had left her with the grandmother when she was a week old; the grandmother was V.S.’s legal guardian.
The grandmother told the social worker that Mother had been irresponsible all of her adult life, was unable to maintain a job, and moved every one to two months because she failed to pay her rent. During the two weeks Mother had been staying with her, Mother yelled at J.H., called her names, and used profanity. Mother expected J.H. to take care of M.O. As a result of Mother’s behavior, J.H. was unable to sleep, had nightmares, was nervous and cried at night. Every Friday and Saturday, Mother dropped the children off with a babysitter so she could go out dancing.
J.H. told the social worker she was afraid of Mother, and that Mother yelled at her on a regular basis. Mother used profanity and hit J.H. with a shoe on her back, arms, legs, and buttocks. J.H. explained that Mother became angry when J.H. did not take care of her brother M.O. when Mother was watching television or talking on her cell phone. J.H. stated that her grandmother intervened when Mother mistreated her, and that she felt safe with her grandmother.
V.S. told the social worker she had observed Mother abusing J.H. V.S. did not have a good relationship with Mother because Mother abandoned her as a baby. The grandmother told the social worker that Mother does not abuse M.O.
Mother admitted to the social worker that she told J.H. “I wish I didn’t have you.” Mother stated she apologized to J.H. afterwards because she did not mean it. Mother denied using profanity, and denied abusing J.H. on a regular basis, although she admitted hitting her once and pulling her hair.
Mother claimed that J.H. “gets on her nerves” and that it was stressful living with her own mother. Her mother constantly asked her to get a job, did not like it when Mother returned home after 10 p.m., and did not want her to leave the children with a babysitter. Mother admitted that she had moved J.H. from school to school and as a result, J.H.’s grades had suffered. Mother claimed that she had recently gotten work and intended to stay in the area so that J.H. could remain at the same school.
On May 11, 2007, the social worker received a call from the grandmother who told her that Mother had left and had taken J.H. and M.O. Mother had become upset when her mother confronted her with the fact Mother did not have a job. On May 16, 2007, the children’s babysitter dropped them off, stating that Mother had left the children with her while Mother was at work, but had not returned for them. On May 18, 2007, Mother contacted her mother to ask about the children.
A Team Decision Meeting was held on May 23, 2007. Mother claimed she had not picked up the children because she had taken two sleeping pills and had fallen asleep. Mother did not explain why it took so long for her to contact her mother or the babysitter. During the meeting, Mother did not take responsibility for her actions, but blamed her mother for her difficulties. Mother admitted that eight years prior, she had attempted suicide by cocaine overdose.
The social worker concluded that the children’s safety was an immediate concern. Mother had failed to sustain a permanent, stable home for the children, and moved from home to home, disrupting J.H.’s school attendance; Mother had been dishonest about her mental health history and substance abuse; Mother lacked insight into her own behavior and lack of responsibility; and she displayed a pattern of abandoning her children.
A section 300 petition filed May 29, 2007, alleged that Mother physically and emotionally abused the children. (§ 300, subd. (a), (b), (c) and (j).) The Department’s detention report recommended that the children remain placed with their grandmother. At the May 29, 2007 detention hearing, the court ordered the children detained. The court ordered Mother to take domestic violence classes (a 52-week batterer’s program), parenting, counseling (addressing all case issues), random drug and alcohol testing, and alcohol rehabilitation. The court ordered individual counseling for J.H.
The Department’s jurisdictional and disposition report stated that the children remained with their grandmother. Mother denied using drugs. Mother was sharing an apartment with a friend and was employed at Ross. Mother told the social worker she had married M.O.’s father Juan in 2002, but they had separated in December 2006. Juan, who was living in Mexico, was employed in the produce business, and would like his son to reside with him in Mexico.
The court found Juan Manuel O. to be the presumed father of M.O. It also found Lorenzo H. to be the presumed father of V.S. and J.H. Lorenzo H. did not participate in the dependency proceedings.
Mother had been visiting the children once a week. However, the children’s grandmother told the social worker that Mother would schedule a visit and then not arrive; this behavior disrupted J.H.’s time to visit with her friends. V.S. did not want to visit Mother because she had never had a relationship with Mother.
The Department concluded that Mother was immature and had unresolved issues with drugs and alcohol. Mother had lied to her mother about her work and blamed her mother for all of her problems. The Department found Mother’s situation “grim” because she would neither cooperate nor take responsibility for her actions.
Following mediation, at the continued August 20, 2007 jurisdictional hearing, Mother submitted to an amended petition admitting that she physically disciplined J.H. by striking her and verbally abused her. Mother also admitted illicit drug use and failure to provide appropriate care for the children. Mother agreed to parenting education, alcohol and drug abuse counseling, monitored visitation, and counseling for J.H. The court ordered Mother into a drug and alcohol program, weekly testing, rehabilitation, parenting education, joint counseling with J.H., and counseling to address case issues including a psychiatric evaluation. The Department was given discretion to liberalize visitation after the psychiatric evaluation and substantive progress in Mother’s programs. The court noted that mother had finished her 12-week parenting classes, and ordered the Department to determine the appropriateness of placing M.O. with his father Juan.
The interim review report for the September 21, 2007 hearing stated that Mother had been arrested for disorderly conduct on September 2, 2007 by the Downey Police Department. Mother was intoxicated and attempting to break into a friend’s van. The report recommended that parental rights to V.S. be terminated because she had resided with her grandmother since birth and was not attached to Mother. At the hearing, Mother waived reunification services with respect to V.S. and the court terminated her parental rights to V.S.
The status review report for the February 15, 2008 six-month review hearing stated that J.H. and M.O. remained placed with their grandmother. J.H. told the social worker she did not want to be returned to Mother, nor did she want unmonitored visitation with Mother. Mother had recently enrolled in a counseling program, and showed a “high interest” in reunifying with her children. However, Mother was guarded about her mental health issues, and denied that she had problems. Although the home study on M.O.’s father had been completed, the Department did not recommend that M.O. be placed with him at this point because Mother had shown progress in complying with her treatment plan.
In August 2007, Mother had enrolled in a six-month substance abuse program, and was testing weekly. She had submitted 21 negative tests, but had failed to test on three occasions. Mother had enrolled in individual counseling on February 7, 2008, and a psychiatric evaluation of Mother disclosed that Mother was “within normal limits,” and she had not been prescribed any medication. However, the report noted that Mother might suffer from a mood disorder or bipolar disorder. Mother visited with J.H. and M.O. twice weekly at their grandmother’s home, and based on her progress, Mother’s visits had been liberalized from monitored to unmonitored in placement only. Nonetheless, J.H. told the social worker she did not want unmonitored visits with Mother, and that she feared Mother would abscond with M.O. Mother’s interaction with the children at the visits was poor. J.H. complained that Mother would give J.H. the answers to her homework rather than sitting with her to work through the problems. The Department reported that Mother was making progress in complying with her case plan, and “[o]verall the mother is working toward meeting her treatment goals and overcoming past issues that initially led the family to have DCFS intervention.”
At the February 15, 2008 hearing, the court stated it was considering placing M.O. with his father. Mother informed the court she was making progress in her programs, and had completed her parenting class, six sessions of individual counseling, 60 sessions of AA and had been visiting the children. Mother indicated she needed low-cost referrals for additional psychiatric needs to address her bipolar issues. The court noted that Mother had not enrolled in domestic violence or anger management until February 7, 2008, a week before the hearing. Further, the court observed that Mother had three no-shows on her testing, one diluted test, and had “not dealt with her mental health issues in the slightest.” Mother protested that the court had not ordered anger management. The court found Mother in partial compliance, noting that she needed four or five more months of reunification services; it ordered her to continue testing and continue her domestic violence and anger management courses. The court ordered M.O. released to his father’s custody, and set a review hearing for May 27, 2008.
On February 18, 2008, Juan O. informed the Department he would take custody of M.O., pending issuance of a passport for M.O. so that they could return to Mexico.
On March 11, 2008, Mother filed a section 388 petition seeking return of M.O. and J.H. She alleged that she had completed a parenting class, a drug and alcohol program, attended individual counseling, had over 20 negative drug tests, and had visited her children regularly. In spite of the fact the court found Mother was not in compliance due to her failure to attend domestic violence or anger management classes, she contended she had not been ordered to do so. Mother further alleged that the children would benefit by being returned to her because the children had a close bond and should be considered a sibling group. She alleged that if M.O. were returned to Mexico, the siblings would be separated; furthermore, M.O. had a closer relationship with Mother than he did with his father. Documentation attached to Mother’s petition stated that she had started attending anger management classes on February 20, 2008, and had been evaluated by the Los Angeles County Mental Health Department, which had found she had no mental health issues.
The dependency court summarily denied the petition on the grounds it did not state any new evidence or changed circumstances since the last hearing on February 15, 2008, and Mother had just started an anger management program.
On March 21, 2008, Mother filed another section 388 petition seeking return of J.H. and M.O., alleging that M.O. would be emotionally hurt by a return to Mexico; she was willing to support her children; and she was working, could provide a stable home, and was attending church every Sunday. The dependency court summarily denied the petition because it did not state facts supporting the request, and the request did not set forth new evidence or changed circumstances.
DISCUSSION
Mother contends the dependency court erred in summarily denying her two section 388 petitions because she made a prima facie showing of changed circumstances and that it was in the children’s best interests to change the order. She contends that at the disposition hearing held August 20, 2007, the dependency court adopted the case plan reached in mediation, which called for Mother to take parenting education, alcohol and drug abuse programs with random testing, psychiatric evaluation and compliance with prescribed medication, and monitored visitation. She argues that the dependency court’s assertion at the six-month review hearing that she was not in compliance because she only recently started anger management was therefore erroneous based upon her case plan. Finally, she submits that the children’s sibling bond and the importance of maintaining that bond mandated that the court hold a hearing.
Section 388, subdivision (a), permits anyone having an interest in a dependent child to petition the juvenile court for a hearing to change, modify or set aside a previous order on the ground of changed circumstances or new evidence. If the petition shows changed circumstances or new evidence indicating that the proposed modification may be in the child’s best interests, the juvenile court must hold a hearing on the petition within 30 days. (§ 388, subd. (c); Cal. Rules of Court, rule 5.570(d).) If, however, the petition fails to “make a prima facie showing (1) of a change of circumstances or new evidence requiring a changed order, and (2) the requested change would promote the best interests of the child[,]” the juvenile court may deny the petition summarily, without a hearing or notice to the other parties. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189; see also rule 5.570(b).)
Section 388 petitions “are to be liberally construed in favor of granting a hearing to consider the parent’s request. [Citations.] The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.) “‘[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.’ [Citation.]” (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) Nevertheless, “[t]he petition may not be conclusory. ‘Specific allegations describing the evidence constituting the proffered changed circumstances or new evidence’ is required. [Citation.] Successful petitions have included declarations or other attachments which demonstrate the showing the petitioner will make at a hearing of the change in circumstances or new evidence.” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) In determining whether to grant a hearing, the juvenile court is not limited to considering the facts averred in the petition. Rather, the juvenile court “may consider the entire factual and procedural history of the case. [Citation.]” (In re Justice P., supra, 123 Cal.App.4th at p. 189.) We review the dependency court’s denial of a hearing on the section 388 petition for abuse of discretion. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431.)
Here, Mother has not made a prima facie showing of changed circumstances or that the change in the children’s placement would promote their best interests. Whether the court specifically ordered her into anger management is not relevant to this determination. The record demonstrates that although Mother was making good progress, it also demonstrates that she needed further reunification: J.H. did not want unmonitored visits with Mother; Mother’s interaction with the children at visitation was poor; Mother had not completed her substance abuse program; and she had only recently begun the court-ordered individual counseling. These facts show return of the children to her at this time would not be in their best interest. Mother’s two section 388 petitions filed closely on the heels of the six-month review hearing do not demonstrate changed circumstances sufficient to trigger the need for an evidentiary hearing.
DISPOSITION
The order of the superior court is affirmed.
We concur: WOODS, Acting P. J. JACKSON, J.