Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. J219246. Wilfred J. Schneider, Jr., Judge. Affirmed.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
Sharon Rollo, under appointment by the Court of Appeal, for Minor.
OPINION
RAMIREZ P.J.
Appellant D.R. (mother) appeals from the juvenile court’s ruling denying her petition for change of court order filed under Welfare and Institutions Code, section 388, regarding her daughter, M.R. (child). Specifically, mother argues the juvenile court abused its discretion when it found that mother’s participation in reunification services did not constitute changed circumstances and that it would not be in the best interests of the child to extend the initial period of reunification services. As discussed below, we conclude that the juvenile court did not abuse its discretion when it found that mother had not established changed circumstance.
All section references are to the Welfare and Institutions Code unless otherwise indicated.
Statement of Facts and Procedure
This case came to the attention of Children and Family Services (CFS) when the child was born prematurely in January 2008. The child was in the neonatal intensive care unit (NICU) because of low birth weight (4 pounds, 3 ounces) and respiratory distress. The child had sleep apnea and was on an apnea monitor. Neither mother nor the child had drugs in their system at the child’s birth. However, mother told hospital personnel and the social worker that she had used methamphetamine as late as December. Mother had been homeless until early January, when she entered the I-Care Shelter home, and had not received prenatal care.
Mother had an open dependency case on her then-one-year-old son, J.R. J.R. had been born with methamphetamine in his system. Mother had failed to reunify with J.R. and a section 366.26 hearing was set for the end of January. Mother also had four other children who were not in her custody—two living with their father in another state and two in guardianship with mother’s grandmother. Mother told the social worker that the child’s father had recently been released from prison, was a methamphetamine user, and she was not in contact with him.
The child’s father is not a party to this appeal.
At the detention hearing on January 16, 2008, the juvenile court found a prima facie case to detain the child. The court ordered supervised visitation for mother, as well as random or same-day drug testing as directed by CFS.
The child was placed in the home of the maternal relatives who were caring for the child’s brother, J.R. The child was on a sleep apnea monitor.
Mother had a 2005 felony conviction for possession of a stolen vehicle and a 2006 conviction for possession of an illegal substance and being under the influence. She had additional arrests for drug related charges and burglary, and had several warrants out for failure to appear.
After several delays, the contested jurisdiction/disposition hearing was set for April 1, 2008. However, mother was in custody at county jail after being arrested at the end of March on three existing warrants. The juvenile court ordered mother to be transported to the continued hearing on April 8, 2008.
At the contested jurisdiction/disposition hearing held on April 8, 2008, mother was present and in custody in county jail. Mother’s substance abuse counselor testified that mother’s prognosis for success was “fair,” given her regular but brief attendance at the program, from February 11, 2008 until her arrest at the end of March. At the continued hearing on April 10, 2008, the residential program director for the I-Care Shelter home testified that the main focus of the program is to provide clients with shelter, that the substance abuse counselors on staff are unlicensed volunteers, that clients are free to come and go as they pleased, and that urine drug testing is done on site using a test strip. She also testified that mother had not initially informed the program staff about the current dependency case, her outstanding felony warrant and two misdemeanor warrants, or her drug use during her pregnancy with the child. I-Care did not have a contract with CFS to provide reunification services.
At the conclusion of the hearing, the juvenile court found the allegations in the section 300 petition to be true and adjudicated the child a dependent. The court ordered mother to have supervised visits with the child and advised her that she needed to show substantive progress on her reunification plans within six months because the child was under three years old.
The section 300 juvenile dependency petition alleged as to mother, under subdivisions (b), (g) and (j), that she was unable to care for the child because of her history of drug abuse, her failure to reunify with the child’s sibling J.R., and her incarceration.
The six-month status review hearing was held on October 6, 2008. Although mother had set the hearing contested, she was not present because she was incarcerated in state prison and had not contacted her attorney. Mother’s attorney offered no affirmative evidence but objected to the CFS recommendation to terminate reunification services. At the end of the hearing, the juvenile court terminated services and set a section 366.26 hearing to select a permanent plan for the child. The court ordered twice monthly visitation once mother was released from prison.
Mother entered a halfway house on October 24, 2008, was released on parole on December 10, 2008, and began to visit the child twice monthly. At the section 366.26 hearing set for February 3, 2009, mother asked for a contested hearing and stated she planned to file a section 388 petition for modification. Mother filed her petition on February 17, 2009. In the petition, mother asked the court to reverse its decision terminating reunification services and setting the section 366.26 hearing. Mother asked the court to reinstate her reunification services and liberalize visitation. Mother cited as changed circumstances her graduation from a halfway house and parole in December, as well as her participation in drug testing, drug treatment and NA/AA meetings, as well as completion of parent education courses and therapy while incarcerated. Mother argued the requested changes would benefit the child because mother was “on my way to providing a safe and loving home” for the child.
The juvenile court held a hearing on the petition on March 9, 2009. Mother testified about how her circumstances had changed since the six-month review hearing at which the court had made its challenged orders. At the conclusion of the hearing, the court denied the petition because mother had established neither changed circumstances nor that the child’s best interests would be served by continuing reunification services. The court then held the section 366.26 hearing. No additional evidence was taken. The court terminated mother’s parental rights and selected adoption as the child’s permanent plan. This appeal followed.
Discussion
Mother argues in this appeal that the juvenile court erred when it denied her section 388 petition. Specifically, mother contends she established changed circumstances because of her participation in services and that the requested order would be in the child’s best interest.
“A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new or changed circumstances exist, and (2) the proposed change would promote the best interest of the child. [Citation.] The parent bears the burden to show both ‘“a legitimate change of circumstances”’ and that undoing the prior order would be in the best interest of the child. [Citation.] The petition is addressed to the sound discretion of the juvenile court, and its decision will not be overturned on appeal in the absence of a clear abuse of discretion. [Citation.]” (In re S.J. (2008) 167 Cal.App.4th 953, 959-960 [Fourth Dist., Div. Two].)
Here, the juvenile court could reasonably find that mother’s circumstances were in the process of changing, but that they had not changed enough to take a chance on her with the child’s future. “‘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... might be able to reunify at some future point, does not promote stability for the child or the child’s best interests. [Citation.] “‘[C]hildhood does not wait for the parent to become adequate.’”’ [Citation.]” (In re Mary G. (2007) 151 Cal.App.4th 184, 206.) The main problem for mother here is that, while she had participated in services in prison and at the halfway house, she had not made additional progress on completing the drug treatment component of her service plan in the three months between her release from the halfway house on December 10 and the hearing on the petition on March 9. This did not bode well for her chances of completing the service plan and becoming capable of providing a stable home for the child. Mother, who had a ten-year addiction to methamphetamine, had not participated in an actual drug treatment program since being released on parole, her participation in NA/AA meetings notwithstanding. We applaud mother’s regular participation in these meetings and her consistently negative drug tests in the three months between her release from custody and the section 388 petition. However, mother simply did not complete the 90 days of inpatient drug treatment, which is the portion of her service plan most directly aimed at eliminating the reasons for the dependency. Even if the court considered mother’s approximately 48 days at the halfway house as inpatient drug treatment, she had completed only about half of this most critical component of her case plan. Most concerning is that, while mother did promptly begin to participate in services after the child was detained and until she was incarcerated in March 2008, she did not seek further inpatient drug treatment once she was freed from custody and able to choose how to spend her time. Thus, the juvenile court did not abuse its discretion when it determined that, in view of mother’s long-standing history of drug abuse and her failure to complete 90 days of inpatient drug treatment, mother had not established by a preponderance of the evidence that her circumstances were changed rather than merely changing. Given this conclusion and the strength of our confidence in it, we need not address whether granting the petition would be in the child’s best interest.
At oral argument, mother’s counsel stated that mother began to participate in services before the child was detained. The record indicates that, while mother did enter the I-Care shelter homes program in early January, her first intake appointment for outpatient drug rehabilitation was February 4, after the child was detained.
Disposition
The juvenile court’s ruling denying mother’s section 388 petition is affirmed.
We concur: GAUT J., MILLER J.