Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Steven L. Berman, Juvenile Court Referee. (Pursuant to Cal. Const., art. VI, § 21.), Los Angeles County Super. Ct. No. CK59950
Diana W. Prince, under appointment by the Court of Appeal, for Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, O. Raquel Ramirez, Deputy County Counsel, for Respondent.
MOSK, J.
K.G. (mother) is the mother of fraternal twins M.W., a girl, and Ma.W., a boy (the children). The children were detained by the Los Angeles County Department of Children and Family Services (DCFS). Mother appeals from an order of the juvenile court denying her petition for modification under Welfare and Institutions Code, section 388 by which she sought to regain custody of the children, including the juvenile court’s denial of mother’s request for a continuance of the section 388 hearing. She also appeals from an order terminating her parental rights. We affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Mother’s Notice of Appeal specifies that mother appealed from the juvenile court’s order under section 366.26 terminating her parental rights, entered the same day as the juvenile court’s order denying her section 388 petition. We liberally construe mother’s Notice of Appeal to encompass the order denying her section 388 petition, and therefore have jurisdiction to review that order. (In re Madison W. (2006) 141 Cal.App.4th 1447, 1450; see also In re Josiah S. (2002) 102 Cal.App.4th 403, 418.)
BACKGROUND
The children were born in July, 2004. On July 8, 2005, mother was arrested for burglary. (Pen. Code, § 459.) Mother called the children’s maternal grandmother to care for them. Maternal grandmother could not take care of the children, however, because she was scheduled to undergo major surgery. Maternal grandmother left the children with their father (father) at his residence, where he lived with the children’s paternal grandmother. Father refused to or was unable to care for the children. Paternal grandmother called DCFS and asked DCFS to take the children, falsely telling DCFS that the children had been abandoned on her porch. A subsequent examination discovered no evidence that the children had been neglected or abused.
Mother had five other children at the time, none of whom is the subject of or party to this appeal.
Mother’s prior criminal history included convictions for possession of a bad check or money order, receiving known stolen property, and importation of marijuana.
On July 15, 2005, DCFS filed a section 300 petition with respect to the children and two of their half-siblings, alleging that mother was incarcerated and had failed to make adequate provision for the children’s on-going care and supervision. The juvenile court ordered the children and their half-siblings detained. The children were placed together in a foster home; the children’s half-siblings were released to their father.
Mother was convicted of burglary and sentenced to 180 days in jail. She was released on October 18, 2005. On November 8, 2005, the juvenile court held a contested adjudication hearing. Mother was represented by counsel, but did not attend the hearing. The juvenile court sustained the section 300 petition and removed the children from mother’s custody. The juvenile court ordered reunification services for mother, and ordered mother to participate in parenting education, individual counseling, drug rehabilitation and random drug testing.
On March 9, 2006, the juvenile court held a six-month review hearing. Prior to the hearing, DCFS reported that mother was pregnant and was expected to deliver her eighth child in August 2006. Mother had visited the children only twice since her release from jail. Mother had not made telephone contact with them. Mother claimed she had scheduling conflicts with the children’s foster parents.
Mother gave birth on August 3, 2006. That child is not a subject of or party to this appeal.
On March 9, the juvenile court continued the matter to April 6, 2006 for a contested hearing. In doing so, the juvenile court indicated that it was inclined to terminate reunification services, citing mother’s failure to visit the children and to submit to random drug testing. Mother argued that she had completed a parenting program and had been attending individual counseling, but that her program had not provided the appropriate documentation to DCFS.
Prior to the April 2006 hearing, DCFS reported that mother had visited the children three times since the March 9 hearing, noting that mother arrived one hour late for one visit and 45 minutes late for another. Ma.W. refused to go to mother at two of the visits; M.W. resisted contact with mother, but eventually went to her. DCFS further reported that mother had completed a program of eight two-hour parenting classes, but the program where mother claimed to be receiving drug counseling had failed to document the services mother had received. The program furnished a letter stating only that mother was involved in a supportive employment program. The letter did not mention drug rehabilitation. Mother had submitted to a random drug test that was positive for marijuana.
At the contested six-month review hearing, a DCFS social worker testified that she was aware that mother and the children’s foster mother had difficulty scheduling visitation due to conflicting work schedules. Mother, however, had asked the social worker to facilitate a visit only once, and that had been after the March 9 hearing.
The juvenile court found that mother was only in partial compliance with the case plan and ordered reunification services terminated. The court found that mother had a history of drug abuse, had submitted to drug testing only three times in 10 months, and two of those three tests were positive. Mother had not been proactive in arranging visits, and did not call to check on the children. Mother had provided no evidence that she had addressed any relevant issues with her therapist in her counseling sessions, and had submitted no evidence regarding what her counseling program entailed. The juvenile court set a section 366.26 hearing for August 1, 2006.
Mother filed a notice of appeal from the order terminating reunification services, but the record does not indicate the disposition of that appeal.
Prior to the section 366.26 hearing, the DCFS social worker reported that the children had developed a strong bond with their foster parents — with whom they had been living half their lives — and that their foster parents were being considered for adoptive placement. Mother visited the children approximately six times between April 6 and August 1. Neither child exhibited a significant attachment to her, although M.W. would go to her and interact with her. Ma.W., however, cried and had tantrums when mother tried to hold or play with him.
The juvenile court continued the section 366.26 hearing to November 2006, and then again to January 19, 2007, March 5, 2007, and April 3, 2007. During this period, the children continued to bond with their foster parents. The children exhibited no behavior during visits to indicate a significant bond with mother, although they seemed more willing to interact with mother if her new baby was present.
On April 2, 2007 — the day before the section 366.26 hearing — mother filed a petition under section 388 requesting that the juvenile court modify its order placing the children in foster care and return the children to her. The petition cited as changed circumstances mother’s involvement (since 2003) with the “National Mental Health Association of Los Angeles” (NMHA), where she purportedly attended two group meetings per week to address “drug recovery issues and anger management issues.” The petition also claimed that mother had completed a drug treatment program at Tarzana Treatment Center. A letter dated March 15, 2007 from an NMHA “personal services coordinator,” attached to mother’s petition, further claimed that mother met with staff members individually “regarding 12-step issues and drug recovery issues,” and that mother had “consistently attend[ed]” the program. The letter also indicated that NMHA “will be helping [mother] with obtaining individual counseling from Kaiser Mental Health where she is also in treatment with a Psychiatrist.”
On April 3, 2007, the juvenile court said it would grant mother a hearing on the section 388 petition, but only on the condition that the hearing proceed concurrently with the section 366.26 hearing that day. The juvenile court began the hearing by asking mother’s counsel if he was “prepared to go ahead today with the 388.” Counsel responded, “Your Honor, I am. If that is my only option.” Counsel requested “a short continuance so I can prepare my client to proceed on the merits of the 388 proceedings.” The trial court denied the request for a continuance, stating that “counsel has had plenty of time to file a 388 motion. The motion is not timely.” Counsel reiterated his request for a continuance “so I would have a chance to subpoena some witnesses . . . .” The trial court inquired, “What witnesses would be different for the 26.” Counsel responded that the issues under section 366.26 were different than those under section 388, but he identified no specific witness who would testify to the issues on the section 388 petition.
Counsel called mother to testify. Mother testified that she had visited the children every two to four weeks since she was released from jail in October 2005, and that she made up any missed visits. She had brought “family members and friends” to visits. During visits, she would give the children “a hug and a kiss; let them know who I am.” She would watch them play, and sometimes play with them. She never changed their diapers before they were potty trained. The children seemed happy to see her. She had three of her other children living with her at the time, including a 19 year old, a four year old and her eight-month-old baby.
Mother testified that she had attended a three-month drug program at Tarzana Treatment, but had failed to complete it because she had her most recent baby by Caesarian section and because she had been prescribed opiates and “other sleeping drugs” afterward that made it impossible for her to drive. When she had been unable to re-enroll at Tarzana Treatment, she had gone to an outpatient 12-step program called Home Base for two classes, after which she returned to NMHA. She testified that she had individual counseling at NMHA “every month since 2001.” Mother said she had been diagnosed with depression, and had taken both anti-depressants and mood stabilizers. She had been treated by a psychiatrist at Kaiser. She was no longer taking medication, however, and it had been a year since she had last seen her psychiatrist. Mother testified that she had participated in random drug testing throughout the case, with her most recent test being in March 2007. She admitted to having tested positive twice, both times for marijuana, including once in February 2007.
Mother testified that she had just started a 12-step program at NMHA, although she was unsure which step she was on. She had completed one parenting program, and had three classes left to complete another. She did not consider herself a drug addict, although she considered drugs a problem. She testified that she was better able to cope with her children than she had been when the children were detained.
On cross-examination, mother stated that, in fact, she had not received counseling at Home Base, admitting that Home Base was a special-education program her son was involved in. She had been off of her psychiatric medications at least since she had become pregnant, approximately 17 months before, and had not resumed her drug regimen after giving birth. When cross-examination was completed, the juvenile court asked mother to name the children that were living with her; she identified the baby living with her as “[M.W.].”
The juvenile court denied the section 388 petition. The juvenile court found that mother was still “testing dirty.” Although she had been diagnosed with depression, she had not seen a psychiatrist in over a year and had not resumed her medication after having her baby. She had never returned to drug treatment after she “fell out of the Tarzana Treatment program.” She had attended only one Alcoholics Anonymous meeting, and did not know what the 12 steps were. The juvenile court concluded that there was “no evidence the mother is dealing with her problems at all. And nothing showing it is in the best interest of the children to live with the mother.” The juvenile court then proceeded to terminate mother’s parental rights. Mother timely appealed.
DISCUSSION
A. Section 388
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, subdivision (a) provides in pertinent part: “Any parent or other person having an interest in a child who is a dependent child of the juvenile court or the child himself or herself through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court or in which a guardianship was ordered pursuant to Section 360 for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.”
All rule references are to the California Rules of Court.
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. ‘[S]pecific 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.)
If the juvenile court grants a hearing, “the burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interests of the child.” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) For a parent seeking to regain custody after the termination of reunification services — as in this case — this burden is heavy. “After the termination of reunification services, the parents’ interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point ‘the focus shifts to the needs of the child for permanency and stability’ [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.].” (Ibid.) The parent’s burden is particularly weighty when the section 388 petition is made “‘on the eve of the section 366.26 permanency planning hearing,’” when “‘the children’s interest in stability [i]s the court’s foremost concern and outweigh[s] any interest in reunification. [Citation.]’ [Citation.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 464; In re Edward H. (1996) 43 Cal.App.4th 584, 594.)
We review the juvenile court’s denial of a section 388 petition for abuse of discretion. (In re Jasmon O., supra, 8 Cal.4th at p. 415; In re Shirley K. (2006) 140 Cal.App.4th 65, 71.) “We must uphold the juvenile court’s denial of appellant’s section 388 petition unless we can determine from the record that its decisions ‘“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.” [Citations.]’ [Citations.]” (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
B. The Juvenile Court Did Not Err in Denying Mother Additional Time to Prepare for the Section 388 Hearing
Mother argues that the juvenile court erred by denying her request for a continuance and by failing to give her notice of the hearing pursuant to section 388, subdivision (c). We disagree.
Addressing mother’s notice contention first, neither section 388 nor the California Rules of Court by their terms require the juvenile court to provide notice prior to holding ahearing on a section 388 petition. Rather, those authorities require that the juvenile court provide notice to the parties prior to granting a section 388 petition. Section 388, subdivision (c), provides that the juvenile court must give notice of a section 388 hearing “to the persons and by the means prescribed by Section 386 . . . .” In turn, section 386 provides that “[n]o order changing, modifying, or setting aside a previous order of the juvenile court shall be made . . . unless prior notice of the application therefor [sic] has been given by the judge or the clerk of the court to” specified parties. (§ 386, italics added.) Rule 5.570 is similar. Although the juvenile court may deny a petition without a hearing (rule 5.570(d)), rule 5.750(e) provides that the juvenile court “may grant the petition [only] after following the procedures in [subsections] (f) [hearing within 30 days if petition contested or court desires further evidence] and (g) [notice of petition and hearing].” (Rule 5.570(e), italics added.)
Thus, nothing in section 388 or rule 5.570 prohibits the juvenile court from receiving evidence on a section 388 petition without prior notice when, for example, the juvenile court believes the petition to appear insufficient. The juvenile court could not properly grant the petition after such a proceeding, nor could the juvenile court deprive the petitioner of due process by denying the petition based on conflicting evidence extrinsic to the petition. (See In re Clifton V. (2001) 93 Cal.App.4th 1400, 1405.) There is no proscription, however, against a juvenile court choosing to receive additional evidence from the petitioner to supplement, in effect, the evidentiary showing made in a section 388 petition, when in the exercise of its broad discretion the juvenile court thinks it appropriate to do so. (See In re Edward H., supra, 43 Cal.App.4th at p. 591.)
Mother does not argue that she was denied due process.
That is essentially what the juvenile court did in this case. As noted above, mother filed her section 388 petition on April 2, 2007, one day before the scheduled section 366.26 hearing. When the parties appeared for the section 366.26 hearing, the juvenile court informed mother that it did not believe mother had stated a prima facie case sufficient to warrant a hearing on her section 388 petition. “But,” the juvenile court continued, “in an effort to be fair and give mother a hearing, I will allow it. To go concurrent with the .26.” The juvenile court indicated in its written order that granting the hearing was “conditioned on going forward today [April 3, 2007].” If mother was not ready to proceed, the juvenile court stated, “then I will deny the 388.” The juvenile court heard evidence only from mother. It did not receive extrinsic evidence in opposition to her petition. Moreover, all parties were present. There was no objection based on lack of notice. Accordingly, the juvenile court did not violate the notice requirements of section 388, subdivision (c) or rule 5.570(g).
The juvenile court also did not abuse its discretion in denying mother’s request for a continuance. (In re Elijah V. (2005) 127 Cal.App.4th 576, 585 [juvenile court’s “denial of a request for a continuance will not be overturned on appeal absent an abuse of discretion”].) In dependency proceedings, a party may obtain a continuance “only upon a showing of good cause and only for that period of time shown to be necessary . . . .” (§ 352, subd. (a); rule 5.550(a)(2).) Further, “no continuance shall be granted that is contrary to the interest of the minor. In considering the minor’s interests, the court shall give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.” (§ 352, subd. (a); rule 5.550(a)(1).) “Courts have interpreted this policy to be an express discouragement of continuances.” (In re Elijah V., supra, 127 Cal.App.4th at p. 585.) Indeed, one purpose of section 388’s petition procedure is to prevent a parent from “assert[ing] a meritless claim of changed circumstances[, thus] necessitating a delay of the [section 366.26] hearing to allow the court to determine whether there is sufficient evidence to hold a hearing on the issue and to allow the other parties time to respond. . . . [Such claims] could result in lengthy and unnecessary delay in providing permanency for children, the very evil the Legislature intended to correct.” (In re Marilyn H., supra, 5 Cal.4th at p. 310.)
To grant mother a continuance on her section 388 petition, the juvenile court would necessarily have had to continue the section 366.26 hearing. That hearing, however, had originally been scheduled for August 1, 2006 — eight full months before mother filed her section 388 petition — and had been continued four times. Mother made no showing to justify her delay in attempting to comply with her case plan, or in filing her section 388 petition. As the juvenile court noted, mother’s section 388 petition simply was “not timely.” Further, although mother’s counsel sought the continuance “to subpoena some witnesses,” he failed to identify a single witness in response to the juvenile court’s inquiry. Mother failed to establish good cause for the continuance.
Finally, mother has failed to establish prejudice. The juvenile court stated that mother’s petition failed to establish a prima facie case entitling her to a hearing on the relief she requested. If the juvenile court was correct, then it could have denied mother’s petition summarily, without any hearing at all. (§ 388, subd. (c); Cal. Rules of Court, rule 5.570(d).) As a matter of law, mother was not prejudiced by being granted a hearing to which she was not legally entitled, even if she had inadequate time to prepare for it. (See In re Edward H., supra, 43 Cal.App.4th at p. 594.)
As noted above, mother did not identify any witness or evidence that was not available at the hearing she was given.
The juvenile court was correct that mother’s section 388 petition failed to state a prima facie case that changed circumstances required a modification or that the home-of-parent order mother sought was in the children’s best interests. The changed circumstances alleged in the petition were that (1) since March 2003, mother had attended two group meetings per week to address “drug recovery issues and anger management issues” at NMHA, (2) mother had completed a drug treatment program at Tarzana Treatment Center, and (3) mother was “committed to being a better parent and has shown improvement in regards to parenting.” With respect to the group meetings at NMHA, the petition on its face alleged that those had been on-going since 2003, long before the children were detained by DCFS in July 2005. Mother’s meetings at NMHA therefore did not constitute “new” evidence or a “changed” circumstance, particularly in light of mother’s persistent failure to comply with the juvenile court’s order for random drug testing and her “dirty” results when she did test. The same is true of mother’s purported commitment to being a better parent. She had completed her parenting class nearly a year earlier, prior to the juvenile court’s order terminating reunification services in April 2006. With respect to the drug treatment program at Tarzana Treatment Center, the petition does not state when mother completed the program, nor did mother submit a certificate of completion or other evidence from Tarzana Treatment Center to verify her allegation. The evidence mother submitted to support the petition consisted of a single letter from a “personal services coordinator” at NMHA, which stated somewhat equivocally that mother “appear[ed] to be making progress towards finding better ways to deal with frustration and anger,” and “appear[ed] to be making progress toward lessening her depression issues and polysubstance use issues.” Mother did not submit drug test results, a letter from a licensed therapist, or any other evidence to establish a material change in circumstances.
Mother’s petition also failed to establish that the home-of-parent order she sought would be in the children’s best interests. Although mother alleged that she was “now able to provide a loving and caring environment for her children” and had “a strong emotional bond” with the children, she submitted no evidence to substantiate those allegations. The juvenile court could not ignore the consistent evidence provided by DCFS that, in fact, the children had no significant emotional bond with mother. In contrast, the children had very strong emotional bonds with their foster parents, with whom they had lived most of their lives. In sum, the juvenile court correctly concluded that mother’s petition failed to warrant a hearing under section 388, subdivision (c) and rule 5.570(d). Accordingly, because the juvenile court properly could have denied mother’s petition ex parte, mother was not prejudiced when the juvenile court refused to grant her additional time to prepare for the hearing.
C. The Trial Court Did Not Abuse Its Discretion by Denying Mother’s Section 388 Petition
Mother argues that her testimony at the petition hearing demonstrated “truly changed circumstances” and that the home-of-the-parent order she sought was in the children’s best interests. Although mother appears to have made some sincere efforts to change, those efforts were not sufficient and were too late, and thus the juvenile court did not abuse its discretion in denying mother’s section 388 petition.
Mother failed to establish by a preponderance of the evidence a material change in circumstances. Mother admitted that, contrary to the averment in her verified petition, she had not completed the drug treatment program at Tarzana Treatment, and had not re-enrolled in drug treatment after having her new baby. Mother tested positive for marijuana in February 2007, less than two months before the petition hearing. Mother testified that she had been diagnosed with depression and previously had been prescribed both anti-depressants and mood stabilizers, but she had not seen her psychiatrist in over a year and had not taken her psychiatric medications for nearly a year and a half. She had completed a parenting class, but had done so prior to the termination of reunification services. She had not completed the second parenting program she had enrolled in. Although mother had recently begun a 12-step program, she had attended only one meeting, and she did not know what the 12 steps were or what step she was on. Such minimal evidence of reform was not sufficient to support a section 388 petition. (See In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9 [“It is the nature of addiction that one must be ‘clean’ for a much longer period than 120 days to show real reform”].)
Mother also failed to present evidence that the modification was in the children’s best interests. In assessing the “best interests” component under section 388, we examine “(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.) Although elements of bad luck and paternal grandmother’s actions played a role in the children’s initial detention, that chain of events was set in motion by mother’s arrest and subsequent conviction for a felony burglary in which she had involved one of her own children. The record contains sufficient evidence to support the juvenile court’s concerns with regard to mother’s chronic substance abuse and mental health issues, and its conclusion that mother had made inadequate efforts to address those issues. The evidence was undisputed that the children had no significant emotional bond with mother — even mother admitted that she needed to remind the children of who she was during visitation — whereas the children had developed strong emotional bonds with their foster, and prospective adoptive, parents. Accordingly, the juvenile court did not abuse its discretion in denying mother’s section 388 petition. If there is no abuse of discretion we must affirm that determination. Because mother makes no other argument with respect to the juvenile court’s order terminating her parental rights, we affirm the order.
DISPOSITION
The order is affirmed.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.