Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Fresno County No. 06CEJ300154. Jane A. Cardoza, Judge.
Teri A. Kanefield, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Levy, J., and Gomes, J.
INTRODUCTION
Appellant, P.T., appeals from the juvenile court’s order denying her petition pursuant to Welfare and Institutions Code section 388 to modify the court’s prior orders terminating her reunification services for two of her children, P. and B. The court ordered legal guardianship as the children’s permanent plan.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
FACTS AND PROCEEDINGS
Earlier Proceedings
Appellant had three younger daughters, P., M., and B. Each daughter has a different father. M.’s father is deceased. Appellant is the mother of two older sons, D. and F., who live with their grandmother. Appellant is also the mother of an adult daughter, N. Juvenile dependency proceedings were initiated on October 11, 2006, when it was alleged that appellant was involved in substance abuse and failed to provide adequate supervision, care and protection for her younger daughters. These proceedings were initiated when appellant, who was in emergency housing, failed to pick up M. from school on October 9, 2006.
Appellant had many prior referrals to Child Protective Services (CPS) dating back to 1991. The current proceedings were initiated and pursued by the Fresno County Department of Children and Family Services (department).
N. and M. are sisters.
At the conclusion of a jurisdiction hearing on December 5, 2006, the court sustained the allegations that appellant had a substance abuse problem and failed to adequately supervise her children. On January 23, 2007, the court ordered reunification services to appellant. P. and B. were to remain in foster care. M. was to stay in the custody of N. The court ordered appellant to participate in parenting classes. The court further ordered appellant to participate in evaluations of, and recommended treatment for, mental health, domestic violence, and substance abuse. Appellant was ordered to undergo random drug testing. Appellant and the children’s fathers were ordered not to use corporal punishment.
On March 27, 2007, in response to a section 388 petition filed by appellant, the court modified appellant’s reunification plan to allow her to be in an outpatient drug treatment program. The court also ordered an evaluation of appellant to determine if she would benefit from mental health services. On December 12, 2007, appellant contended that she was not receiving reasonable services.
At the 12-month review hearing held on January 24, 2008, the court found appellant’s progress toward alleviating or mitigating the causes necessitating the children’s placement in foster care had been significant. The court ordered the children remain dependents of the court and that reunification services continue. The court found the department had provided reasonable services. The court further permitted extended visitation between appellant and the children.
Between November 2006 and August 2008, appellant failed to submit to a drug test on four occasions and tested negative for drug use on over 90 occasions.
The Court Appointed Special Advocate (CASA), Ginger Thomas, filed a report with the court, which was dated March 26, 2008. Thomas noted that the father of P. and the father of B. had criminal records and histories of substance abuse. During a visit to the zoo in mid-March 2008, appellant frequently communicated with P., the oldest of her minor daughters, but had limited engagement with the other children. Appellant expressed reluctance to go on the outing. P. was doing well in school and was heavily involved in sports. B. was not of school age but was enrolled in a Head Start preschool program.
Thomas reported that M. was enrolled in the third grade and was a good student. M. was attending weekly sessions with a therapist and appellant was scheduled to attend sessions with M. every other week. Appellant told Thomas she did not understand why she had to attend more therapy. Appellant was told the therapy was court-ordered and necessary for M. M. said she wanted to be with appellant, but also wanted to keep her relationship with her older sister, N.
N. reported there were several instances of minor to moderate physical injury to M. during unsupervised visits. M. claimed the bruises were caused by a teenage brother. M.’s mental health had been a concern because she told N. and her therapist that she wanted to end her life. Thomas stated there she had concern over the quality of appellant’s interaction with her three children and that appellant’s engagement with M. was negative. Thomas still recommended an extended visit between appellant and her children.
At the 18-month review hearing scheduled on April 1, 2008, counsel for the department reported there had been unreasonable services provided and the department was seeking a continuance to pursue a motion to extend reunification services. The matter was continued. On May 7, 2008, the department conceded there were unreasonable services provided to appellant. The court ordered a mental health assessment of the youngest child, B. The court granted the department’s motion to extend reunification services to appellant.
Appellant had been referred to a batterer’s program. In December 2007, however, the department no longer used the services of that provider. On January 15, 2008, appellant was referred to a program with Primer Paso. The department sought to have appellant receive these services. Appellant began the program on February 2, 2008, but was dropped on June 11, 2008, for noncompliance. Appellant began the program again and completed 26 of 52 sessions as of September 2008.
On March 25, 2008, P., M., and B. began an extended visit with appellant. On July 30, 2008, Thomas submitted a new CASA report with the court. Thomas made 13 visits to appellant’s home while the children were placed with appellant during an extended visit. M.’s therapist reported on May 19, 2008, that appellant had failed to bring M. to scheduled therapy appointments since April 16, 2008. Thomas contacted the department social worker who said she would bring M. to her next therapy session and Thomas would take her the following week. Appellant, however, failed to add Thomas to M.’s emergency card at school and did not return calls from Thomas.
By May 2008, it was clear that M. was struggling in her placement with appellant. M. had four unexcused absences, six tardies, five discipline referrals, and one suspension from school. When the school attempted to contact appellant by phone concerning the discipline issues, it learned appellant’s phone had been disconnected. On June 9, 2008, the school could not reach appellant when M. was ill. Appellant was home, but failed to respond to the school’s call. M. expressed her desire to live with N.
P. told an investigator for the district attorney that she had no problems at home but M. made things difficult for everyone. According to P., M. was always crying, talking back to appellant, and calling appellant names. P. explained M. knew adults could not do anything to her and is always screaming at them and refusing to do what they ask.
Thomas was concerned about P.’s emotional status after a visit on May 30, 2008. P. was sad and expressed frustration with her home situation. P. stays at school until 5:30, comes home at 6:30, and goes to her room because she does not care about the rest of her family. Appellant complained about B.’s behavior saying that she was beginning to act like M. and would not mind. M. was placed with N. on June 16, 2008. P. and B. were removed from appellant’s custody by department social workers on June 27, 2008.
The department reported that on May 29, 2008, P. appeared to be sad. On unannounced home calls by the department on March 26, 2008, April 30, 2008, and June 27, 2008, B., who was four years old at the time, was found alone and unsupervised inside the courtyard a few doors down from appellant’s residence. The extended visit was chaotic and stressful for the children. Home life was described as involving shouting and screaming, as well as being unstructured and poorly supervised. Appellant and her husband appeared unmotivated to make the changes necessary for a calm, structured, and safe home for the children.
Although the parents had complied with most of their case plan, they received 24 months of reunification services and failed to ameliorate the conditions leading to the court’s jurisdiction. The department concluded appellant was unable to provide a safe and secure environment for her children. It recommended termination of family reunification services for appellant and the fathers.
In an interim review report filed September 30, 2008, M.’s therapist reported in May 2008 that appellant told M., “wait until we are no longer with CPS. You are going to get it.” Appellant denied making the statement, attributing it to her husband. P. reported to the social worker in late May 2008 that appellant’s husband is always yelling and told P. that he hopes she gets jumped at school. P. said she sometimes wishes she could go back to her foster parent. P. said appellant told her once to go to her room or appellant was going “to get on your face.” Appellant’s husband sometimes hits B. on the buttocks.
On June 12, 2008, appellant told the social worker she did not know what else to do with M. and stated that she told M. “If you go back with your sister, I do not want to visit with you.” When asked if she needed another referral for parenting classes, appellant told the social worker she did not need additional services. The social worker reminded appellant not to use corporal punishment and not to drive the children because she did not have a driver’s license. The social worker thought the children’s behavior was regressing since being placed in appellant’s care.
On September 30, 2008, the court noted it considered all of the reports and found convincing evidence that the department had provided reasonable services designed to assist the parents. Appellant’s progress toward alleviating or mitigating the causes necessitating the children’s placement in foster care was moderate. The court found a detriment for the children to be placed with appellant, continued placement of the children outside the home for their safety and emotional well-being was necessary, and the children would remain dependents of the court. The court terminated reunification services to appellant and set the matter for a section 366.26 hearing.
Hearing on Section 388 Petition and Section 366.26
The court received a petition from appellant pursuant to section 388 seeking to change prior orders of the court. The petition was withdrawn by counsel so it could be amended. On March 17, 2009, appellant filed a petition pursuant to section 388 seeking restoration of reunification services for P., M., and B. Appellant sought orders permitting liberal, unsupervised visits. Appellant alleged the three children were bonded with her and enjoyed sibling relationships.
The petition stated appellant completed drug treatment and continued to test clean. Appellant had a mental health assessment with no treatment recommended. Appellant participated in a batterer’s treatment program, remained stable, and desires to have her children returned to her.
Thomas reported that CASA recommended the children stay in their current placement. Thomas learned that appellant had frequent conversations with P., providing P. with negative information about the department’s involvement in the case. P. defends appellant and coaches M. and B. to tell Thomas they want to live with appellant. Thomas was concerned that P., who was in middle school, would become the silent caretaker for appellant’s eight-month-old baby. The department opposed appellant’s section 388 petition. The department noted M. wanted to stay with her sister, N. Appellant had yet to complete the batterer’s program and other court- ordered services. The department was concerned appellant could not provide a safe environment for the children.
On March 17, 2009, the court held a hearing on appellant’s petition and a section 366.26 hearing. The parties stipulated that the court could receive as evidence a letter written by appellant. In the letter, appellant stated she loved her children and never abused them. Appellant asserted the department wrote reports in which nothing said about her was true. Appellant explained she had turned her life around, her children loved her, and she wanted more visits with her children. Appellant further stated that she finished all of her court-ordered reunification services.
The court received a letter from M. into evidence as well. M. said she missed her old school and her siblings. M. said that if her mother was ready, M. wanted to go back home with her, and if not, M. wanted to stay with her sister. M. explained how good her sister was to her. M. also said her mother would like M. now because she had changed her attitude.
There was also a letter from P. dated January 24, 2009. Neither the court nor the parties referred to P.’s letter during the hearing on March 17, 2009. In the letter, P. stated she wanted to go back home to her mother and missed her other siblings. P. acknowledged appellant made mistakes but was trying to do better and P. believed appellant loved her.
Appellant’s counsel argued that appellant had completed her batterer’s program, complied with services, and was ready for unsupervised visits. Counsel argued that the children also wished to return to appellant and appellant should have more frequent visits. The court denied the section 388 petition finding, that at best, appellant’s circumstances were only changing. The court further found it would not be in the children’s best interests to grant the petition. The court found termination of parental rights would not be in the children’s best interests and legal guardianship was the appropriate plan for them.
DISCUSSION
Appellant argues the court abused its discretion by denying her section 388 petition as to her children, P. and B. We disagree.
It was appellant’s burden of proof to show there was new evidence or there were changed circumstances that made a change of the children’s placement in their best interest. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).)
Although appellant made progress in her reunification plan, completing most of the court-ordered services, the children’s extended stay with her between March and June 2008 was not successful. Appellant had continuing conflicts with M. and failed to take her to therapy for a month. Appellant was uncooperative with the department. P. was depressed and stayed at school as long as she could. B. began acting out like M. and would not follow her parent’s instructions.
Appellant drove the children without a license. Appellant’s husband often yelled and home life was described as chaotic. Despite a court order not to do so, appellant’s husband apparently spanked B. Appellant let B. play independently without direct supervision even though she was only four years old during the extended visit.
Appellant complains on appeal that the dependency started merely because she failed to pick up M. from school. Appellant argues the initial grounds for jurisdiction had nothing to do with P. or B. We find this to be an inaccurate and one-sided depiction of the dependency process in this case. The CASA worker, for instance, worried that P., who was showing signs of depression, would end up in the role of caretaker for appellant’s new baby. The court’s finding that appellant’s circumstances were changing but not changed is supported by substantial evidence.
The parent bears the burden of showing in a section 388 petition both a change of circumstance and that the proposed change is in the best interests of the child. A petition only alleging changing circumstances, which would lead to a delay in the selection of a permanent home, to see if a parent could eventually reunify with a child at some future point, does not promote stability for the child or the child’s best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) At best, appellant showed only changing circumstances, not changed circumstances.
To understand the element of best interests in the context of a section 388 motion brought, as in this case, shortly before and during the section 366.26 hearing, we look to the Supreme Court’s decision in Stephanie M. At this point in the proceedings, a parent’s interest in the care, custody, and companionship of his or her children is no longer paramount. Rather, once reunification efforts end, the focus shifts to the children’s needs for permanency and stability; there is in fact a rebuttable presumption that continued out-of-home care is in the best interests of the child. (Stephanie M., supra, 7 Cal.4th at p. 317.) A court conducting a modification hearing at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child. (Ibid.)
Notably, both here and in the juvenile court, appellant ignores the children’s need for permanence and stability in advocating her position. Neither the juvenile court nor this court, however, may do so. Appellant failed to make any showing at the section 388 hearing concerning how her children’s best interests would be served by giving her additional reunification services. Appellant lacked the ability to consistently care for her children’s needs. The children’s current care providers, not appellant, acted as their parental figures. Appellant failed to demonstrate in her petition that granting her further reunification services would be in the best interests of her children.
DISPOSITION
The juvenile court’s orders denying appellant’s section 388 petition and selecting a long-term plan of legal guardianship are affirmed.