Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. Nos. J179973 & J174991
Lambden, J.
Jordan C. and Taylor G. were born in 1998 and 2000, respectively, and Jessica M. (mother) is their biological mother. The Alameda County Social Services Agency (the agency) filed petitions pursuant to Welfare and Institutions Code section 300 for both girls and the juvenile court sustained the allegations in the petitions. In 2001, the court terminated reunification services for mother and set a hearing pursuant to section 366.26. The court continued the section 366.26 hearing numerous times.
All further unspecified code sections refer to the Welfare and Institutions Code.
In 2009, mother filed separate section 388 petitions for her daughters and asked the court to vacate the orders setting the section 366.26 hearing and terminating reunification services for mother. After considering mother’s petitions, the lower court denied mother’s requests without an evidentiary hearing. Mother appeals and argues that the lower court abused its discretion in summarily denying her petitions. We affirm the judgment.
BACKGROUND
Mother was declared to be a dependent child of the court in September 1996, after the juvenile court found true allegations that her stepfather, Julian W., sexually abused and behaved violently toward her. The court also found true allegations of inappropriate discipline by her mother (grandmother).
Jordan was born in 1998, when mother was 14 years old. Mother had been living at a group home but, after she ran away from her group home placement, she left Jordan with grandmother and Julian. On October 30, 1998, Jordan was removed from the home after it was determined that she was at risk for physical and sexual abuse in that home given the court’s findings in mother’s dependency proceedings. On November 24, 1998, the court sustained a dependency petition under section 300 and declared Jordan a dependent child and placed her in foster care.
Mother became pregnant and went to live with grandmother. Grandmother had moved out of the home she shared with Julian, and Jordan was returned to mother on the condition that mother continue to reside with grandmother. Taylor was born to mother in 2000.
Grandmother returned to Julian’s home and mother was evicted from the home where they had been living. On July 10, 2000, the agency placed Jordan and Taylor into protective custody.
On September 20, 2000, Julian was killed. The night before he was killed, he admitted sexually molesting mother and both of mother’s children. A petition charging mother with voluntary manslaughter with regard to the killing of Julian was sustained. Grandmother was convicted of being an accessory after the fact. Subsequently, Jordan and Taylor were examined for possible sexual abuse. The findings were positive for Jordan and inconclusive for Taylor. On December 8, 2000, the court sustained the agency’s petitions, continued dependency for Jordan, and declared Taylor a dependent child. The court ordered out-of-home placement for the minors and reunification services for mother. On June 22, 2001, the court terminated mother’s reunification services for both children and set the matter for a section 366.26 hearing.
Jordan and Taylor were placed with various prospective adoptive families, but for various reasons the children were removed from these homes. On September 20, 2002, at the conclusion of the continued section 366.26 hearing, the court found that the agency had not met its burden of proof of showing adoptability by clear and convincing evidence. The court found that termination of parental rights would be detrimental to the children and appointed a legal guardian for the children. The children appealed this order, and we affirmed in our nonpublished opinion, In re J.C., A100523, filed February 19, 2004.
Mother was released from custody for the killing of Julian on June 26, 2006. Mother lived with her grandmother and the minors’ great-grandmother, Lorene J. (great-grandmother).
On September 8, 2006, at the review hearing, the court ordered two visits a month between mother and the two children. In 2007, mother’s parole status was revoked because of a positive test for methamphetamine. In 2007, mother reported completing a job training program and was working 20 hours a week. On April 11, 2008, mother was released from parole. In October 2008, mother was no longer working.
Mother claims that the hearing officer found that she had not violated parole.
On December 15, 2008, the court granted the agency’s request to place Taylor in another fostadopt home.
After various placements through the years, Taylor was placed with prospective adoptive parents on December 18, 2008. On March 17, 2009, both Jordan and Taylor were reassessed for adoption and were found adoptable.
Mother gave birth to another baby girl in April 2009. She continued to reside with the great-grandmother and mother’s maternal aunt in a two-bedroom apartment.
On May 15, 2009, the court set a section 366.26 hearing for July 30, 2009, which was continued until October 2009.
On October 9, 2009, mother filed two section 388 petitions. Mother wanted the court to vacate its orders setting a section 366.26 hearing and terminating mother’s reunification services. She also asked the court to set a timetable for placement of the children with her. With regard to changed circumstances, mother wrote: “Mother was incarcerated when order entered, with a release date four years in the future.” “Mother was 18 years old when order entered––is now 26 years old.” “Mother [had] been providing excellent care to her daughter born in April 2009––has demonstrated ability to safely and appropriately care for her child.”
Mother stated in the petitions that she wanted her children returned after she obtained suitable housing. She wanted her children to reside with her maternal great-aunt until she became ready to take care of them.
With regard to explaining how the changes requested would benefit Jordan, mother asserted: “Jordan has always had a close relationship with her mother, even though long periods of time passed in Jordan’s life when there was no visitation. Her mother has been the most constant parental figure in her life. She consistently states that she misses her mother and wishes to be returned to her. She is eleven years old and has had 14 placements.”
Mother maintained the following with regard to the requested changes being in Taylor’s best interests: “Taylor was placed in foster care at age six months and her mother was incarcerated just two months later. Her mother never had a chance to raise her. However, while rotating through multiple foster placements, Taylor has spent significant time with her maternal grandmother and aunt, and has a close relationship with her sister. She says that she loves her mother and wants to be with her and the rest of her family.”
Mother attached two declarations to both of her petitions. One declaration was by Shanale Allen, an employee of Family Advocate for the “Your Family Counts Program.” Mother and her new baby participated in this program and Allen was her case manager. Allen reported that mother was conscientious, responsible, and a devoted mother. Exemplifying mother’s devotion to her baby was, according to Allen, the fact that mother was breast feeding her baby even though it was not always easy. Allen also observed that mother had a loving and intimate relationship with her baby.
The second declaration was from mother’s maternal aunt. She stated that she would like to have Jordan placed with her rather than having her go to another foster care home. She said that she would also like to take Taylor, but understood that her placement was not being considered.
On October 22, 2009, at the section 366.26 hearing, the agency requested a continuance to file opposition to mother’s section 388 petitions. The court granted a continuance.
The attorneys for Taylor and Jordan and the agency all filed opposition to mother’s section 388 petition. The agency also filed a memorandum regarding Taylor for the continued 366.26 hearing, which reported that Taylor was doing well in her proposed adoptive home. The agency’s summary of Taylor’s situation was as follows: “Taylor has a chance now to be part of a permanent family that can provide committed nurturing and stability in her life. Taylor has had so many temporary placements in her life.... Over and over again, Taylor’s biological family has shown their interest in her and their desire to remain her family; nevertheless, none of her relatives have actually raised her, nor met her needs in any kind of consistent and healthy way. Taylor has been a dependent for almost literally her entire life; it is time for her to be able to feel that she knows where she will grow up, and with whom. [¶] Taylor is living in a home where she has actually been claimed as a family member. The proposed adoptive parents have enormous parenting, child development and intuitive skills, patience, and consistency. They show their love for Taylor in all the small and large ways that a healthy family can do and Taylor is thriving. Taylor seems as committed to them as they are to her, and both have indicated to others their desire to remain a family. Adoption is the most permanent plan for Taylor, and the Agency recommends termination of parental rights and a plan of adoption for Taylor.”
On November 30, 2009, the juvenile court summarily denied mother’s section 388 petitions. The court found that the petitions did not state new evidence or a change of circumstances and that they did not show how the change would be in the best interests of the children.
Mother filed a timely notice of appeal.
DISCUSSION
In mother’s section 388 petitions she sought reversal of the order terminating her reunification services and setting a section 366.2 hearing. She also requested a timetable for placement of Jordan and Taylor with her. Mother contends that she alleged sufficient facts in her section 388 petitions to entitle her to an evidentiary hearing.
I. Standard of Review
A juvenile court’s ruling on a section 388 petition is reviewed for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) The lower court’s decision will not be disturbed unless the court has abused its discretion by making a capricious, arbitrary, or absurd determination. (Ibid.)
II. The Showing Required for a Hearing on a Section 388 Petition
Section 388, subdivision (a) provides that “[a]ny parent... having an interest in a child who is a dependent child of the juvenile court... may, upon grounds of change of circumstance or new evidence, petition the court... for a hearing to change, modify, or set aside any order of court previously made....” “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....” (§ 388, subd. (d).) Modification may be sought even after the reunification period has ended. (In re Eric E. (2006) 137 Cal.App.4th 252, 258.)
There are two parts to the prima facie showing a parent bringing such a petition must make in order to proceed by way of a full hearing: (1) that there is a genuine change of circumstances or new evidence, and (2) that revoking the previous order would be in the best interests of the children. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) While the petition should be liberally construed in favor of granting a hearing, if the allegations in a petition so construed do not show changed circumstances such that the child’s best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. (Id. at p. 309.) After reunification services have been terminated, the focus is on the child’s need for permanency and stability; the parent’s interest in the custody and companionship of the child is not paramount. (In re Angel B. (2002) 97 Cal.App.4th 454, 464.) A mere showing of “changing” circumstances is not enough. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) “In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. [Citation.]” (In re Justice P. (2004) 123 Cal.App.4th 181, 189, citing In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.)
A. Changed Circumstances
In the present situation, mother failed to make a prima facie showing of changed circumstances. A “ ‘changed circumstance’ ” is one “ ‘that requires changing the [court’s] order’ ” because the problems that led to the dependency of the child have been resolved or eliminated. (In re Edward H. (1996) 43 Cal.App.4th 584, 592.) “A ‘prima facie’ showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited. [Citation.] If a petitioner could get by with general, conclusory allegations, there would be no need for an initial determination by the juvenile court about whether an evidentiary hearing was warranted. In such circumstances, the decision to grant a hearing on a section 388 petition would be nothing more than a pointless formality.” (Id. at p. 593, )
Mother filed her section 388 petitions on October 9, 2009. With regard to changed circumstances, she alleged that she was no longer incarcerated, that she was older and more mature, and that she was taking good care of her new baby. Mother provided declarations in support of these allegations, which indicated that mother was providing good care to her new baby. Mother also stated that she would testify that she passed the General Educational Development tests, that she had received vocational training, and that she had participated in mental health counseling while incarcerated.
None of the above mentioned assertions address the circumstances leading to the court’s taking jurisdiction over mother’s children. The problems leading to the dependency of both girls were mother’s instability, housing problems, unresolved mental health issues related to bipolar depression, and her inability to care for her children and exercise proper judgment. Other than being released from custody and being older, nothing in mother’s section 388 petitions or attached declarations showed by a preponderance of the evidence that any of the circumstances leading to the children’s dependency had changed.
The petitions did not indicate that mother had taken any responsibility for her behavior, had attended therapy consistently after being released from the California Youth Authority, or had worked for any consistent period of time. Indeed, during a telephone conversation on May 1, 2009, with Child Welfare Worker Janet Bayer, mother continued to deny any responsibility for her children’s removal. Mother commented, “I never did anything physically to harm my children or have them taken away. I’m just a victim of circumstance.” Bayer reported that she believed mother had not attended therapy, pursued medication treatment for her bipolar disorder, or participated in a substance abuse treatment program since her release from the California Youth Authority. This was despite some indication in the record that mother had tested positively for methamphetamines. Additionally, mother has not consistently visited her children. Mother was released from custody for the killing of Julian on June 26, 2006, but she did not consistently visit her children after release. She did not visit Jordan from August 2007 until October 2008. Moreover, mother’s evidence that she could care for her baby did not demonstrate that she could consistently handle the responsibilities of caring for two adolescents who have serious problems due to the sexual abuse they suffered while in mother’s care and the lack of a stable home placement.
Mother was charged with a parole violation in 2007 based on testing positively for methamphetamines, but mother claims that the hearing officer found she had not violated parole.
Both Taylor and Jordan were placed in protective custody in July 2000. It is now more than nine years later, and even mother’s own declaration makes it clear that she still cannot care for them. Mother does not claim to be ready to care for her children but wants them to reside with her maternal great-aunt until mother can obtain suitable housing. At the time of the section 366.26 hearing, mother was living in a homeless shelter, and her baby was staying with the sister of the baby’s father. Thus, the evidence was that mother was not ready to assume custody of Jordan and Taylor and that she was not presently able to provide suitable care for them. (See In re Angel B., supra, 97 Cal.App.4th at p. 463 [noting that appellate courts have reversed the summary denial of section 388 petitions only when the declarations attached to the petition established that the petitioning parent was presently able to provide suitable care for the child].)
Accordingly, we conclude that the lower court properly denied a hearing on mother’s section 388 petitions based on her failure to make a prima facie showing of changed circumstances. Even though we can affirm the judgment on this basis alone, we also consider whether mother’s petitions established that reinstituting reunification services would be in her children’s best interests.
B. The Children’s Best Interests
A primary consideration in determining the child’s best interest is the goal of assuring stability and continuity. (In re Angel B., supra, 97 Cal.App.4th at p. 464.) “When custody continues over a significant period, the child’s need for continuity and stability assumes an increasingly important role.” (Ibid.) After the termination of reunification services, as is the situation in the present case, a parent’s interest in the care, custody and companionship of the child is no longer paramount. (Ibid.) Rather, at this point, the focus shifts to the needs of the child for permanency and stability. (Ibid.)
When deciding whether a modification of the court order would be in the best interest of the children, the court considers the seriousness of the reason for the dependency, the reason the problem was not overcome, the relative strength of the parent-child bonds, the length of time the child has been in the system, the ease by which the change of circumstances could be achieved, and the reason the change was not made sooner. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446-447.) Here, a consideration of these factors supports the lower court’s denial of mother’s section 388 petitions.
The problems that led to the dependency of both children were, as discussed above, very serious and mother has not addressed the issues leading to the removal of Jordan and Taylor. Mother was just a child when she had her children and was unable to care for them. Indeed, she left them in the care of the person who had sexually abused her. The children have been in the system for almost their entire lives. Disrupting the children’s lives, yet again, to place them temporarily with a relative of mother’s and then later with mother would be extremely detrimental to these children. Jordan has already been in 14 placements. Prior to the current foster home placement, Jordan was formally placed with her mother, two different maternal great-aunts, the mother’s cousin, seven unrelated foster caregivers, and two group homes. Taylor formally entered foster care at six months of age, and has experienced 10 placements. Prior to her current placement, Taylor was placed with her mother, a maternal aunt, the mother’s cousin, and six unrelated foster caregivers.
With regard to the parent-child bonds, mother claims that she has a particularly close bond with Jordan. She notes that in 2009, Jordan had tantrums after speaking to her and Jordan said she missed her mother and grandmother. Jordan also commented, “If I follow the rules, then it will help me go home sooner.”
The record does show that there is some bond between Jordan and mother and that Jordan missed her mother. However, Jordan’s tantrums after talking to her mother may be partially because of mother’s inconsistent contact with her. As already noted, mother did not visit Jordan from August 2007 until October 2008. Furthermore, Jordan has serious emotional issues and requires a high level of care; mother has provided no evidence that she could meet these special needs. In October 2006, Jordan entered residential treatment to address her emotional and behavioral issues; she graduated from residential treatment in June 2008. In 2009, Jordan was diagnosed with posttraumatic stress disorder and reactive attachment disorder. Dr. Michelle Nakaishi saw Jordan on February 11, 2009, and stated that Jordan had intermittent explosive outbursts. She listed Jordan’s relationship with her biological mother as being one of Jordan’s current stressors.
Mother’s bond with Taylor is even more tenuous, as Taylor was removed from her mother’s care when she was a baby. Taylor calls her fostadopt parents “mom” and “dad.” The child welfare worker observed that, with the possible exception of her relationship with Jordan, Taylor’s relationships “with her birth family are not especially developed.” The child welfare worker elaborated: “Meanwhile, Taylor has grown attached to her fostadopt caregivers who are insightful and compassionate about her more challenging behaviors and needs, and express a desire and willingness to adopt her and to sustain her relationship with her sister. Taylor has expressed enthusiasm about the prospect of being adopted by her current family, and occasional nine-year-old angst when she is in trouble or fighting with fostadopt sister. The best way to help a child with a history of superficial or disrupted attachments is to build lasting ones. The undersigned sees no compelling reason at this time not to support a plan of adoption by her current caregivers.”
Thus, mother has failed to show that instituting reunification services would be in the girls’ best interests and the lower court properly denied mother’s section 388 petitions without holding an evidentiary hearing.
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Richman, J.