Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK51734 Valerie Skeba, Referee.
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
Mother Cindy V. (Mother) appeals orders summarily denying her petition brought pursuant to Welfare and Institutions Code section 388, and terminating parental rights to her child, Matthew M. To obtain a hearing on a section 388 petition seeking to change, modify, or set aside a previous dependency court order, a parent must show that there is a change of circumstances or new evidence, and that setting aside or modifying the prior order would be in the child’s best interests. We conclude that the petition did not provide new evidence that setting aside the order terminating family reunification services to Mother would be in Matthew’s best interests, and that summary denial of Mother’s section 388 petition was not an abuse of discretion. We affirm that order and the order terminating parental rights.
Unless otherwise specified, statutes in this opinion will refer to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL HISTORY
Detention:
In November 2008, a CSW responded to a referral from Hollywood Presbyterian Hospital regarding allegations of general neglect of two-day-old Matthew M. by his mother, Cindy V. (Mother), age 28. Mother had tested positive for cocaine. Mother also had an extensive history of cocaine abuse, which had resulted in removal of two older children, and a criminal history that included imprisonment for drug possession in 2004 and 2006 and for prostitution in 2003.
Mother admitted using cocaine since age 18, and smoking cocaine six times during the last trimester of her pregnancy with Matthew. Mother was aware that exposing Matthew to drugs could harm him and result in medical complications. Mother had suffered from depression in the past, currently received therapy weekly, and was prescribed medication. She had not informed her therapist of her drug use. Father Ramon M. appeared to have no knowledge of Mother’s drug use.
None of Mother’s three eldest children were in her care. Mother stated that her eldest child, Juan, was removed from her care and was in the care of his father. Mother claimed to have lost contact with him. Eight-year-old Ashley V. was detained from Mother in 2003 due to general neglect, after Ashley was observed walking unsupervised wearing only a diaper. Police were called, and they found Mother inside a van at the location. Mother was under the influence and admitting to having just smoked rock cocaine. Mother failed to reunify and Ashley was adopted in 2006. Three-year-old Joey M. was detained from Mother in September 2007. Mother and Joey were homeless and Mother was mentally unstable and had a positive cocaine toxicology report during the investigation. Mother failed to reunify and Joey was placed in his father’s care.
Matthew was detained and placed in foster care on November 27, 2008.
On December 3, 2008, the juvenile court found that a prima facie case for detaining Matthew as a person described by section 300, subdivision (b) was established, and ordered Matthew detained in Shelter Care. The juvenile court ordered the DCFS to provide family reunification services to the parents and to Matthew.
Petition:
The DCFS filed a section 300 petition, alleging that Matthew had suffered, or there was a substantial risk that he would suffer, serious physical harm or illness as a result of Mother’s failure or inability to supervise or protect him adequately, as a result of Father’s willful or negligent failure to supervise or protect Matthew adequately from Mother’s conduct, and by Mother’s inability to provide regular care due to her mental illness or substance abuse.
Adjudication and Disposition:
The DCFS reported additional facts concerning Mother’s drug abuse. Mother stated that crack cocaine was her drug of choice, that she began using cocaine when she was 18 years old, and that she used it very frequently during 10 years of substance abuse. Mother stated that she tended to use cocaine when she had problems, sometimes spent $300 a week for cocaine but at other times she could get it free. To maintain her drug use, Mother stated that she engaged in prostitution and borrowed money. She last prostituted about seven months earlier.
Mother admitted using crack cocaine while pregnant with Matthew. She received pre-natal care, but did not tell her doctors she was using drugs. She told Father that she formerly used drugs, but did not inform him she was using crack cocaine during their relationship. Mother stated that Father was unaware of her drug use.
On December 17, 2008, Mother declined referrals for drug inpatient programs and said she would continue attending her outpatient substance abuse program and individual counseling at People in Progress. As of February 10, 2009, however, Mother was discharged from People in Progress on January 22, 2009, when she failed to attend or to call to report that she would no longer be attending. Mother scheduled an appointment with the Homeless Healthcare—Community Assessment Services Center program, but Mother did not attend as she had been ill. Mother did appear at a second appointment on February 5, 2009, and was referred for an intake appointment at Impact, a residential treatment center, on February 9, 2009. Mother did not attend that appointment, however, and called an Impact staff member to tell him she was sick. As of February 10, 2009, Mother had not contacted the DCFS.
In the February 11, 2009, dispositional hearing, the juvenile court declared Matthew a dependent child of the court under section 300, subdivision (b), removed custody from the parents and placed it with the DCFS for suitable placement, ordered no family reunification services for Mother pursuant to section 361.5, subdivision (b)(10) and (12), and ordered family reunification services for Father only. Mother and Father were ordered to have monitored visits.
Six-Month Review Hearing:
Matthew continued placement in foster care, and was healthy and well cared for. Matthew’s physical and cognitive development were age appropriate. Matthew called his foster parent “mama.” The foster parent desired to adopt Matthew if the parents did not reunify with him. Initially Father and Mother visited Matthew, but since March 2009, the parents visited inconsistently, and since June 2009 the parents had not visited Matthew or attempted to schedule a visit with him.
Mother was arrested on August 19, 2009, for possession of narcotic/controlled substance, use/under the influence of a controlled substance, and possession of controlled substance paraphernalia. She was incarcerated. At the September 24, 2009, review hearing, the juvenile court found that Father was not in compliance with the case plan and ordered family reunification services terminated for Father. The juvenile court found that return of Matthew to his parents’ physical custody would create a substantial risk of detriment to his physical and emotional well-being, set the matter for a section 366.26 permanent plan hearing (later continued to March 30, 2010), and ordered the DCFS to provide permanent placement services.
For the period leading to the permanent plan hearing, the DCFS reported that Matthew, now 13 months old, had lived with his foster parent since November 28, 2008. Matthew was healthy and happy and met developmental milestones. He was closely bonded to his caregiver, and responded to her affection. The foster mother was Matthew’s primary attachment. They had a parent-child relationship and the foster parent was committed to adopting Matthew.
Although the parents stopped visits with Matthew in June 2009, Father resumed visits in September 2009. Mother resumed her visits in November 2009, shortly after she entered a substance abuse rehabilitation center. Mother visited four times in November 2009 and three times in December 2009. During visits Matthew needed time to become accustomed to his parents and cried when the visit started, crying out for his foster mother and saying “mama.”
On November 9, 2009, Mother entered Tarzana Treatment Center, a residential program for chemical dependency, where she participated in programs for Chemical Dependency, Relapse Prevention, HIV 101, Parenting, Dual Recovery, Art Therapy, Anger Management, Process Groups, 12-Step Education, Trauma in Recovery, and group therapy. Mother drug-tested negative 10 times since entering the program.
Mother’s Section 388 Petition:
Mother filed a section 388 petition on March 8, 2010, seeking a change in the order denying family reunification services. Mother’s petition stated that she had addressed all case issues by enrolling and participating in Tarzana Treatment Center’s in-patient program, had obtained a sponsor, and consistently visited with Matthew and interacted with him in a parental role. Mother sought an order returning Matthew to her in the in-patient facility and implementing family maintenance services. Alternatively, Mother sought an order taking the section 366.26 hearing off calendar and granting Mother family reunification services for Matthew. Mother stated that she participated in substance abuse treatment programs and was willing and able to care for Matthew, was well-bonded to Matthew, and could provide him a safe home. Mother alleged it would be in Matthew’s best interest for her to receive family maintenance or family reunification services.
In an attached declaration, Mother stated that she was scheduled to complete her six-month in-patient treatment at Tarzana Treatment Center at the end of March 2010. Mother participated in individual counseling once per week, where she addressed all case issues, including her substance abuse addiction. Mother participated in 12-step meetings three or four times a week, obtained a sponsor, and was currently working on Step 4. Mother participated in random drug and alcohol testing. Mother said she had worked diligently at making progress and doing what she needed to do to provide for Matthew’s needs in a safe home and was committed to raising and taking care of him. Mother asked for return of Matthew to her custody, as she would be allowed to stay for six more months in Tarzana Treatment Center if he was placed with her. Mother also stated that a sober living facility was willing to accept her once she graduated, and that facility allowed children to live with their parents.
The juvenile court held a hearing on Mother’s section 388 petition and a section 366.26 hearing on March 30, 2010. For that hearing, the DCFS reported that the foster mother continued to facilitate Mother’s weekly visits for Mother, which had lengthened to two hours. The foster mother reported that visits went well and she had not observed anything creating significant concerns. The foster mother and Matthew were observed to be strongly bonded, as evidenced by Matthew’s comfort in the home. Matthew reached for his foster mother, called her “mama, ” was smiling and happy when she held him, and sought her comfort when he cried. The foster mother remained committed to adopting Matthew. An adoption home study for the foster mother was approved on March 16, 2010.
In the March 30, 2010, hearing, after finding that Mother’s petition had shown a substantial change in circumstances, the juvenile court heard argument on whether the requested change of order would be in Matthew’s best interests. Counsel for Mother argued that Mother consistently visited, that there was a bond between Mother and Matthew, that Mother was now clean and sober and had been for some time, that she continued to work on her sobriety, and that it would be in Matthew’s best interests to grant Mother’s petition and order reunification services so Mother and Matthew could continue bonding and growing together and Mother could prove her sobriety to the juvenile court. Counsel for Matthew argued that although the duration of Mother’s visits had lengthened, there was no evidence of a bond between her and Matthew. He argued that Mother was a friendly visitor, which did not equate to a showing that the change of order would promote Matthew’s bests interest for purposes of a section 388 petition. Counsel for the DCFS argued that Matthew had been placed in his foster home for nearly 18 months and recognized his current caretaker as his parent, and nothing in the reports supported the view that providing Mother with family reunification services or increasing her visitation would be in Matthew’s best interests. Instead, counsel for the DCFS argued that doing so would create confusion in Matthew and would be detrimental to him emotionally.
The juvenile court found that although Mother made a substantial change in circumstance, the issue was whether the proposed change of order would be in the best interests of the child. Matthew had been placed in the same foster home for 16 months since he was detained three days after birth. The parents’ compliance with the case plan began only after reunification services were terminated for Father six months previously. Although there was some form of bond or recognition, it was not of the quality that would justify a finding that it would be in the child’s best interests to order reunification services for either parent, given the length of time Matthew had been with his foster parent, and would not have a beneficial effect on Matthew. The juvenile court denied Mother’s section 388 petition, finding that the requested change of order did not promote the child’s best interest.
Also in the March 30, 2010, hearing, the juvenile court found that Matthew was likely to be adopted, and ordered parental rights terminated.
Mother filed a timely notice of appeal from the orders denying the section 388 petition and terminating parental rights.
ISSUES
Mother claims on appeal that:
1. The juvenile court erroneously refused to hold an evidentiary hearing on her section 388 petition, which presented new evidence and requested changes to court orders which may have served Matthew’s best interests; and
2. Erroneous summary denial of the section 388 petition requires reversal of the order terminating parental rights.
DISCUSSION
A. Standard of Review of an Order Denying a Section 388 Petition
“Under section 388, a parent 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 [1] there is a change of circumstances or new evidence, and [2] the proposed modification is in the minor’s best interests.” (In re S.M. (2004) 118 Cal.App.4th 1108, 1119.) The parent must show both a genuine change of circumstances and that setting aside or modifying the prior order would be in the child’s best interests. (In re Aaron R. (2005) 130 Cal.App.4th 697, 705.) In determining whether the petition makes the necessary showing, the juvenile court may consider the factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.) “ ‘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 Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) This court reviews a summary denial of a section 388 petition for abuse of discretion. (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348.)
A hearing on the section 388 petition is required only if it appears that the proposed change of order may promote the dependent child’s best interests. A court need not order a hearing if the petition makes no showing of this element. (In re Zachary G., (1999) 77 Cal.App.4th 799, 806-807.)
B. Mother’s Petition Did Not Show New Evidence That a Hearing would Promote Matthew’s Best Interests, and Summary Denial of the Section 388 Petition Was Not an Abuse of Discretion
Mother argues that the juvenile court erroneously failed to hold an evidentiary hearing on her section 388 petition because Mother presented evidence that the requested changes to previous court orders might have served Matthew’s best interests.
To be entitled to a hearing on a section 388 petition, a parent need only make a prima facie showing of evidence that a hearing would promote the best interests of the child. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432.) Alternatively stated, the juvenile court “may deny the application ex parte only if the petition fails to state a change of circumstance or new evidence that even might require a change of order[.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 461.)
Although Mother had nearly completed her drug program, she had not yet completed it. She had been sober since entering her drug program on November 9, 2009, but this period of less than five months was brief compared to her more than 10 years of drug use, which had begun when she was 18 years old. Her extensive cocaine use had resulted in the loss of two older children. Mother had relatively little contact with Matthew, having resumed visitation only in November 2009. Matthew’s foster parent cared for his needs for nearly 16 months since Matthew was four days old, Matthew had bonded to his caregiver, and he was developing well and happily. Mother’s petition failed to state facts showing that the proposed change of order might promote Matthew’s best interests. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1449-1451.)
On the issue whether the change of order proposed by Mother might promote Matthew’s best interests, the child’s best interests “would necessarily involve eliminating the specific factors that required placement outside the parent’s home [citation], here, Mother’s drug addiction.” (In re Angel B., supra, 97 Cal.App.4th at pp. 463-464.) After reunification services are terminated, a parent’s interest in the care, custody, and companionship of the child is no longer paramount, and the focus shifts to the child’s needs for permanency and stability. (Id. at p. 464.) “[T]here is a rebuttable presumption that, in the absence of continuing reunification services, stability in an existing placement is in the best interest of the child, particularly when such placement is leading to adoption by the long-term caretakers.” (Id. at p. 465.) To rebut that presumption, a parent must make a factual showing that modification would serve the child’s best interests. (Ibid.)
Mother did not make that showing, particularly since Mother never parented Matthew before he was detained from her directly from the hospital three days after birth. Matthew was immediately placed with a foster parent, who was the mother of a grown, 27-year-old daughter and who was successfully parenting a three-year-old former foster daughter whom the foster parent had adopted. She was also the foster parent of a 17-year-old foster daughter with a baby daughter. The foster parent desired to adopt Matthew. The foster parent, whom Matthew called “mama” and with whom Matthew was emotionally bonded, was Matthew’s parent in view of her 16 months of caring for him. Indeed, the foster mother was the only parent Matthew had known. Mother had visited throughout Matthew’s life, but her visits became irregular and then stopped for five months from June to November 2009, when Mother resumed them. Visits that did occur amounted only to a tiny fraction of the time Matthew spent with his foster parent. Bonding that Matthew might feel toward Mother was not comparable to the bond he felt for a parent. (See In re Angel B., supra, 97 Cal.App.4th at p. 465.)
Although Mother had achieved sobriety, completed classes, and visited with Matthew, even assuming that Mother would be able to remain sober and obtain housing, those facts are not legally sufficient to require a hearing on her section 388 petition. (In re Angel B., supra, 97 Cal.App.4th at pp. 464-465.) We find no abuse of discretion in the juvenile court’s summary denial of Mother’s section 388 petition.
Because we affirm the order denying the section 388 petition, there is no basis for a reversal of the order terminating parental rights.
DISPOSITION
The order denying the section 388 petition, and the order terminating parental rights, are affirmed.
We concur KLEIN, P. J.CROSKEY, J.