Opinion
E076664
09-23-2021
In re B.R. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. E.G., Defendant and Appellant.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Kaleigh Ragon, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. J274690-J274694. Annemarie G. Pace, Judge. Affirmed.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Michelle D. Blakemore, County Counsel, and Kaleigh Ragon, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
MILLER J.
E.G.-R. (Mother) is the adoptive mother of 15-year-old J.R., 12-year-old C.R., eight-year-old A.R., seven-year-old S.R., and six-year-old B.R. Mother appeals from the juvenile court's summary denial of her Welfare and Institutions Code section 388 petition. She argues the court abused its discretion in denying her petition without an evidentiary hearing. We affirm the order.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of the San Bernardino County Children and Family Services (CFS) on January 24, 2018, after an immediate response referral was received from J.R.'s school with allegations of physical abuse by Mother. J.R., who was 11 years old at the time, was observed with a busted lip and a cut on her forehead and was complaining of head pain and blurry vision. When questioned, J.R. reported that Mother had punched her in the face with a closed fist three times and that she was afraid to go home. J.R.'s sibling C.R. corroborated the allegations and added that Mother physically abused him and his siblings. J.R. and C.R. further reported domestic violence between Mother and adoptive father J.D. (Father) with Mother hitting Father and Father mainly yelling at Mother.
J.R. also disclosed that the maternal grandfather (MGF) had sexually abused her on two occasions in 2017. Specifically, MGF had inappropriately touched J.R.'s vagina and breasts under her clothing. J.R. noted that the maternal grandmother (MGM) walked into the room on one occasion and was upset but she was unsure if MGM saw the abuse. J.R. attempted to tell Mother and MGM about the abuse but they refused to listen to her and did not believe her. The children lived with Mother, Father, MGM, MGF, and a maternal uncle.
Mother denied all of the allegations. She claimed the children were “ ‘damaged' ” and that J.R. lied about the physical abuse allegation because she wanted attention. Regarding the sexual abuse allegation, Mother stated that she did not believe the allegation and blamed J.R. for her sexualized behavior. She also stated that J.R. had since recanted the allegations. She later claimed that she had confronted MGF and he had denied touching J.R. inappropriately. She believed that there were no safety concerns since J.R. had recanted her allegations. Mother was arrested for felony child abuse and the children were taken into protective custody.
On January 26, 2018, petitions were filed on behalf of the children pursuant to section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (j) (abuse of sibling). The petitions were later amended on February 16, 2018, and again on May 21, 2018.
On January 29, 2018, the juvenile court found a prima facie case for detention out of the home and placed the children in foster care. Pending the development of a case plan, the parents were provided with services and supervised visits once a week for two hours.
CFS later discovered that Father had not participated in the adoption of the children and was found to be a non-party.
S.R., A.R., and B.R. had language and speech issues and were referred for services. According to Mother, C.R. was diagnosed with “ADHD” in March 2017 and was prescribed medication. Mother reported that C.R. had displayed behavioral issues and was receiving services. She also stated that she had been struggling to manage J.R.'s behavior as she bullied other children, broke house rules, and had watched a movie with strong sexual content. The children's caregivers reported that the children were adjusting well to their placements and that they did not exhibit any concerning emotional or behavioral issues.
On March 6, 2018, C.R. and J.R. were seen for forensic interviews. C.R. said that Mother frequently hit him with her open hand, her fist, a wooden spoon, a metal spoon, and a belt, and that on one occasion Father had thrown him against a door. C.R. stated that Mother began hitting him after the adoption was finalized. J.R. confirmed that Mother began hitting her and her siblings after the adoption was finalized. She again reported that MGF had sexually abused her and that when she told Mother and MGM, they did not believe her. A few days later forensic interviews were attempted with A.R. and S.R. Neither child reported abuse to themselves or to anyone else. However, due to the children's delayed speech and language skills, they did not understand most of the questions. The children's medical examinations confirmed that they were being physically abused and subjected to trauma.
On March 14, 2018, B.R., S.R., and A.R. were placed with their older siblings, C.R. and J.R. The children were doing well in their placement. Mother was participating in services and regularly visiting the children with no concerns.
The parties participated in mediation on June 13, 2018. The parties agreed that Mother would submit to the petitions on the basis of the social worker's reports, and CFS would allow Mother to have three hours of unsupervised visitation per week in a neutral location.
By June 20, 2018, Mother had continued to be cooperative with CFS and had completed her case plan. She had also continued to regularly visit the children with no concerns. After speaking with C.R. and J.R., the social worker noted that the children were eager to move forward with unsupervised visits.
On June 21, 2018, Mother waived her constitutional rights and submitted on the petitions on the basis of CFS's reports. The juvenile court found true the allegations in the second amended petitions and declared the children dependents of the court. Mother was provided with reunification services and unsupervised visitations once a week for three hours in a neutral location.
On September 7, 2018, CFS submitted a non-appearance review packet to allow Mother to have overnight visits on weekends. CFS noted the children had been doing well with unsupervised visits and Mother was participating in services.
The children's counsel objected to the increased visits for Mother, noting Mother's therapist had not been given the actual reports of her case, even though it was a condition of Mother receiving reunification services. Counsel stated that it was also unclear whether the therapist had addressed either the physical abuse Mother committed against the children or the sexual abuse that occurred in Mother's care. The children's counsel agreed to allow a phone call between Mother's therapist and the children's counsel for the limited purpose of answering the identified concerns.
By October 25, 2018, Mother continued to participate in her case plan and regularly visit the children without any issues or concerns. Mother reported that she was exploring reasons for the children's removal, discussed the sexual abuse allegations, and was working on not getting overwhelmed with the children. Mother had completed her parenting and anger management classes and was continuing to attend her domestic violence program, individual therapy, and family therapy sessions.
CFS recommended that Mother receive an additional six months of services to allow Mother time to demonstrate the skills she had learned through classes and therapy. Although Mother had completed her case plan, the social worker believed that Mother would benefit from continued therapy to express her feelings and learn coping skills. The children were doing well with their caregivers and appeared to be attached and bonded to their caregivers. They also appeared to enjoy spending time with their family during visits and had asked for overnight visits.
On October 31, 2018, the court heard the issue of increased visits for Mother. The children's counsel informed the court that based on the conversation with the therapist, it appears that he only very recently received CFS's reports, and therefore, had not discussed much of it in the sessions. Counsel also expressed concern about Mother's continued failure to acknowledge J.R.'s sexual abuse allegations and requested a long cause hearing to subpoena the therapist. The court agreed and continued the hearing.
At the December 21, 2018 six-month review hearing, the children's counsel requested a continuance to discuss her concerns with CFS and suggested that in the interim Mother's visits increase to allow for one overnight visit per week, in addition to her extended day visits. All parties agreed, and the court granted the continuance and authorized CFS to initiate one overnight visit a week between the children and Mother.
On January 23, 2019, CFS reported that Mother was continuing to make progress in individual therapy and that the children were observed to be comfortable and happy in Mother's home. J.R. and C.R. desired to continue overnight visits. CFS recommended that Mother continue to have overnight visits on weekends.
At the January 23, 2019 six-month review hearing, the juvenile court provided Mother with an additional six months of services and unsupervised, overnight visits one time per week.
By March 19, 2019, CFS recommended that the children be returned to Mother's care under a family maintenance plan due to the substantial progress Mother had made in her case plan. The family therapist recommended more sessions with the family “to work on decreasing negative attention seeking behaviors and to assist the mother... in recognizing and implementing ‘reasonable consequences for these negative behaviors.' ” CFS also recommended conjoint therapy between Mother and J.R. to build trust and communication.
The 12-month review hearing was continued to investigate a referral that was received alleging inappropriate sexual touching between the siblings that began to occur once Mother had received unsupervised, overnight visits. The court continued the hearing.
On April 26, 2018, the children's counsel filed a section 388 petition, seeking a return to supervised visitation between Mother and the children due to multiple referrals alleging inappropriate sexual touching between the children. The children's counsel noted that the children were not acting out in this manner prior to having overnight visits with Mother. On that same day, the court granted the section 388 petition with regard to B.R., S.R., and C.R., and ordered that Mother's visits be supervised with CFS authorized to return visits to unsupervised if nothing concerning was revealed during the children's interviews. Regarding A.R. and J.R., the court allowed unsupervised weekend and overnight visits to continue. The court found that returning the children to Mother's custody continued to be detrimental to the children's best interest and that Mother's progress towards alleviating or mitigating the causes that necessitated removal of the children had been substantial. The court thus ordered additional services for Mother and set the matter for an 18-month review hearing.
CFS's interviews with the children disclosed that A.R., C.R., and J.R. denied allegations of sexual abuse. S.R. did not disclose any sexual abuse but noted that A.R. had taken his clothes off while playing a game. B.R. disclosed that S.R. had kicked her buttocks and vagina with his shoes and sword. She further stated that S.R. and another boy in the foster home had kissed her on the mouth with their lips and also kissed each other on the mouth.
On June 12, 2019, the court ordered Mother to have unsupervised visits with B.R., S.R., and C.R. with CFS authority to liberalize to overnight and weekend visits. The court allowed Mother to continue having unsupervised, overnight, and weekend visits with J.R. and A.R.
On June 14, 2019, in an attempt to facilitate the court's June 12 orders, the social worker asked Mother who was on her lease agreement. Mother responded that only she and MGM were on the lease; but when asked to provide a copy of the lease agreement, Mother eventually disclosed that MGF was a co-signor on the lease agreement because “the owner required more income.” Mother claimed that despite signing the lease, her father agreed that he was not allowed to be at the home. The social worker noted that Mother remained reliant on MGF for financial support and denied that he had sexually abused J.R. Mother reported that J.R. had previously told her that she made up the allegations because she was upset. On a different occasion, Mother asserted that J.R. had said the disclosure was a flashback to when she lived with her biological family. Mother claimed that J.R. “ ‘doesn't care and every time she gets in trouble she turns it on others.' ” Mother explained that “ ‘Any daughter would be proud to have a dad like mine. To be able to depend on a father that sacrifices for his family to be happy but like I have been saying everything I do always backfires on me.' ” Based on Mother's actions, the social worker questioned whether Mother had truly benefitted from the services offered and believed that she continued to lack the protective capacity needed for further liberalized visitation. CFS thus requested that Mother's visits be reduced to unsupervised at a neutral location.
Mother continued to receive services, but by the 18-month review hearing in July 2019, CFS recommended that Mother's reunification services be terminated and that a permanent plan of permanent placement be ordered for the children with additional services to Mother under the permanent plan for no more than six months. CFS noted that Mother had been observed to be a caring and loving parent, and that she had demonstrated the ability to meet the children's basic needs such as housing and food. CFS also noted Mother had demonstrated that she received some benefit from the services offered as she was observed having the ability to recognize and respond appropriately to behaviors using limit setting and discipline strategies. However, CFS continued to be concerned about Mother's “perceived lack of understanding” regarding J.R.'s disclosure of sexual abuse by MGF.
At the July 24, 2019 18-month review hearing, the children's counsel expressed concern about Mother's “extreme lack of benefit in one of the main issues with this case”-that J.R. was sexually abused while in Mother's care⸺and requested either a section 366.26 hearing or a permanent plan with a goal of legal guardianship or adoption for the children. Counsel noted that from the beginning of CFS's involvement with J.R. it was clear that Mother's father had abused her; however, throughout the case and despite over 18 months of services, Mother continued to deny the abuse occurred, included her father in her support network, and blamed J.R. for the family's situation. Mother's counsel and CFS's counsel both submitted on CFS's recommendation. Mother's counsel also requested the children be placed with MGM. The juvenile court found that MGM was not an appropriate placement due to a lack of protectiveness, terminated Mother's reunification services, and ordered a “permanent plan of placement in foster care with a permanent plan of return home.” The court ordered additional services to Mother under the permanent plan and scheduled a section 366.3 hearing for January 24, 2020.
Mother planned on having MGM babysit the children when she could not be around.
In January 2020, CFS recommended that the children be returned to Mother's home with family maintenance services because Mother had made substantial progress in her services and had “proven to eliminate the safety concerns that led to the involvement of CFS.” CFS noted Mother had “benefit[t]ed from her completed services by improving her parenting, communication skills, and the understanding that she will provide appropriate protections and supervision for her children.” Mother continued to regularly visit the children and the children were always happy to see Mother. Mother had suitable housing for the children and was working two jobs to ensure she was financially independent.
At the January 24, 2020 section 366.3 hearing, the children's counsel objected to CFS's recommendation and requested that the matter be set for contest. The matter was set for a contested hearing. In the interim, the court ordered an extended 29-day visit in Mother's home with strict instructions that the children were to have no contact with MGF and a requirement that Mother cooperate with the children's counsel, who may send a social worker to see the home and speak with the children privately.
By February 20, 2020, CFS changed its recommendation to having the children remain in out-of-home care and services offered to Mother under the permanent plan be terminated. CFS recommended a permanent plan of placement in foster care with a permanent plan of adoption for the children. CFS changed its recommendation due to Mother and MGM disbelieving the sexual abuse allegations. On January 27, 2020, a social worker had a private conversation with J.R., Mother, and MGM to address J.R.'s recent recanting of the sexual abuse allegations committed by MGF. J.R. now reported the allegations as a “ ‘flashback,' ” and she was sure it was not MGF because “ ‘he wouldn't do that, he's very respectful to his granddaughters.' ” When the social worker asked MGM if she believed there was a possibility her husband could have molested J.R., MGM responded that she did not believe it happened because she was home at the time and she was “very vigilant of inappropriate behavior.” MGM further stated that the sexual abuse committed by her husband may have been a “ ‘fantasy' of the child.” Mother became uncomfortable when the topic of the sexual abuse by her father was brought up but stated that she did believe there was a possibility the abuse occurred despite J.R.'s recantation.
However, when an ICC Coordinator spoke with Mother on January 30, 2020, in response to the coordinator's questions regarding why MGF's presence had caused a reduction in unsupervised visitation, Mother stated that her father had been accused of molesting her oldest daughter but ensured her that it was common knowledge the molestation never occurred because J.R. had recanted the allegations. When the coordinator attempted to share information with Mother about why a child may recant a sexual abuse allegation, Mother was not interested in hearing the information and became upset and defensive. On February 12, 2020, the coordinator informed CFS that Mother remained adamant that the sexual abuse J.R. had disclosed never occurred. The coordinator also noted that Mother struggled to redirect her daughter B.R., had trouble managing her own emotions, and could not identify areas where her parenting skills could be developed.
These new developments caused CFS to be concerned about Mother's ability to protect J.R. CFS noted that while Mother previously informed the social worker that she believed there was a possibility the abuse had occurred, her conversations with the coordinator showed otherwise. CFS further explained that Mother had previously been offered services to address this issue, but unfortunately her perspective had not changed at all, so it appeared that she had not benefitted from the services offered. CFS pointed out that J.R. had only recently begun speaking highly of MGF, despite having no contact with him, and that Mother still could not accept the possibility that her father had molested her daughter. CFS was concerned Mother would allow MGF to move into the home when the case was dismissed because it appeared that she and her parents were only disallowing contact due to the court order, not because they recognized the safety risk. Considering all of the reported facts, CFS believed that the risk was too high to offer Mother family maintenance services.
At the contested February 20, 2020 hearing, the juvenile court noted that the children's counsel and CFS were now in agreement that the children should not be returned to Mother. Mother's attorney requested a return date for a contested hearing, and the court scheduled the parties to return on March 4, 2020.
On February 25, 2020, a new referral was received alleging new sexual abuse allegations as to J.R. J.R. had disclosed about being frustrated from being moved from Mother's home and stated, “ ‘The person that did things to me is no longer there.' ” J.R. also reported “ ‘something' ” happening to her when she was five or six years old by the father of one her siblings.
On February 28, 2020, two referrals were received alleging general neglect to B.R. and physical abuse to S.R. B.R. was observed with two scrapes on her chin that B.R. stated she received from Mother's dog. The second referral disclosed that S.R. was observed with a bruise on his arm. S.R. initially stated that he got the bruise from falling on a piano, but when questioned again, he reported that Mother “ ‘did that to him.' ” All of the referrals were under investigation.
Following testimony from Mother and argument from counsel at the contested March 4, 2020 hearing, the juvenile court found that the children would be at risk if returned to Mother's care because neither Mother nor her main support person, MGM, had shown that they could protect the children from MGF. The court explained that both Mother and MGM continually acted or made comments showing that they still, after over two years of services, did not believe J.R.'s disclosure. The court noted that throughout the case it appeared Mother was making good progress, “then we go two steps back and we get a report that we're really not as close as we thought we were.” The court ordered a permanent plan of placement in foster care with a permanent plan of adoption for all five children and terminated Mother's services under the permanent plan. Mother was provided with supervised visitation one time per month for two hours.
On July 30, 2020, Mother filed her first section 388 petition requesting the court resume services for six months, to consider returning the children to her care for another extended visitation period, and to possibly return the children to her home. On that same day, the juvenile court summarily denied the petition.
On September 4, 2020, CFS reported concerns with Mother's continued reliance on her mother, who was still married to MGF, and her previous disclosure that she maintained contact with MGF. CFS was also concerned with Mother's recent video chat visits with the children. During the visits, Mother repeatedly spoke about items she bought for the children, resulting in the children believing they would be returning to Mother's care. Mother struggled to redirect negative behaviors and C.R., B.R., and S.R. had ongoing escalating behavioral issues following visits with Mother. S.R. at times did not want to talk to Mother. Mother also allowed her boyfriend to appear on the video chat visits with the children.
On February 22, 2021, Mother filed a second section 388 petition, requesting reinstatement of services, return of the children for extended visitation periods, and possible return of the children to her care. As to changed circumstances and new evidence, Mother declared that she had taken 11 additional therapy sessions “focused on sexual abuse awareness, domestic violence awareness, and generally dealing with” issues that led to the children's removal from her care. She also asserted that she was financially independent from her family for over a year and had completed all of her case plan. In support, Mother included a letter from her therapist dated February 5, 2021, which noted Mother had accepted responsibility for exposing the children to physical and domestic violence. The letter also stated that Mother had discussed in depth that she believed J.R. had been molested by MGF and that she would be protective of her daughter in the future by having no contact with him. Mother believed it was in the children's best interest to be returned to her care because the children did not currently have appropriate permanent plans, desired to return home, and she had done “even more work on herself in order to alleviate the conditions that [led] to removal.”
On February 23, 2021, the juvenile court summarily denied the petition, finding the request did not state new evidence or changed circumstances and that the proposed change was not in the children's best interest. The court noted that “[t]here were issues with Mother's visits within [the] last report.” Mother appeals from the summary denial of her section 388 petition.
DISCUSSION
Mother contends that the juvenile court erred by denying her section 388 petition without an evidentiary hearing because she had demonstrated her circumstances had significantly changed and that it was in the children's best interest to be provided with additional services or return of the children to her care. She claims that she had made the requisite prima facie showing necessitating an evidentiary hearing. We are not persuaded.
We review the juvenile court's denial of Mother's section 388 petition without an evidentiary hearing for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 317-318 (Stephanie M.); In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079.) The denial must be upheld unless we can determine from the record that the juvenile court's decision exceeded the bounds of reason by making an arbitrary, capricious, or patently absurd determination. (In re A.S. (2009) 180 Cal.App.4th 351, 358; Stephanie M., at p. 318.) When two or more inferences can reasonably be deduced from the facts, we have no authority to substitute our decision for that of the juvenile court. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
Section 388 allows the parent of a dependent child to petition the juvenile court for a hearing to modify an earlier order. (§ 388, subd. (a)(1).) A petition to modify a juvenile court order under section 388 must allege facts showing new evidence or changed circumstances exist and that changing the order will serve the child's best interests. (§ 388, subd. (a)(1)-(2); In re Nolan W. (2009) 45 Cal.4th 1217, 1235.) Courts must liberally construe a section 388 petition in favor of its sufficiency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) However, section 388 requires a petitioner to make a prima facie showing of both elements to trigger an evidentiary hearing. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G.).) If, for instance, the parent makes a prima facie showing of changed circumstances, the juvenile court can still deny the petition without an evidentiary hearing if the parent fails to make a prima facie showing that the relief sought would promote the child's best interest. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-190.)
“ ‘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.' ” (In re Josiah S. (2002) 102 Cal.App.4th 403, 418.) Consequently, section 388 petitions with general, conclusory allegations do not suffice. Otherwise, “the decision to grant a hearing on a section 388 petition would be nothing more than a pointless formality.” (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) In determining whether the petition makes the necessary showing, “the court may consider the entire factual and procedural history of the case.” (In re Jackson W. (2010) 184 Cal.App.4th 247, 258.)
After reunification services are terminated, the focus in dependency proceedings shifts from family reunification to the child's need for permanency and stability. (Stephanie M., supra, 7 Cal.4th at p. 317; In re G.B. (2014) 227 Cal.App.4th 1147, 1162-1163.) A court entertaining a section 388 petition at this stage in the proceedings “must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child.” (Stephanie M., at p. 317.)
We conclude that the juvenile court did not abuse its discretion in denying Mother's section 388 petition without an evidentiary hearing. In her section 388 petition, Mother alleged that she had new evidence and her circumstances had changed because she had completed 11 additional therapy sessions “focused on sexual abuse awareness, domestic violence awareness, and generally dealing with case issues” that led to the children's removal. However, this is not new evidence and does not show changed circumstances. Since her children's removal in January 2018, Mother had completed her case plan, which included anger management classes, domestic violence classes, parenting classes, and numerous individual and family therapy sessions with different therapists. The past individual therapy sessions also focused on sexual abuse awareness, domestic violence awareness, and generally dealt with the issues that led to the children's removal.
“Not every change in circumstance can justify modification of a prior order.” (In re A.A. (2012) 203 Cal.App.4th 597, 612.) “The change[d]... circumstances must relate to the purpose of the order and be such that the modification of the prior order is appropriate.” (In re S.R. (2009) 173 Cal.App.4th 864, 870.) Further, “[t]he change in circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged order.” (In re A.A., at p. 612.)
Mother's issue was not participation and engagement in services, but her inability to benefit from the services provided to her, especially concerning the sexual abuse allegations against her father, as evidenced by her statements and actions throughout the dependency proceedings. She had not shown in her section 388 petition to have benefitted from the services provided to her. Although she provided a declaration in support of her petition, she did not declare any steps taken to demonstrate that she understood the safety risk to the children and was capable of being protective of her children. Instead, the declaration reiterated that she had completed the case plan, maintained financial independence, participated in additional therapy, and continued visitation.
Mother also provided a letter from her therapist dated February 5, 2021, as evidence of her change of circumstances. The letter states that Mother “discussed in depth the fact that she believes her daughter, [J.R.], was sexually molested by the maternal grandfather and that she will be protective of her daughter in the future by having no contact with this individual.” However, the letter fails to state any steps Mother had taken to protect the children from further abuse. Moreover, her therapist did not give any opinion as to the benefit Mother had received from therapy, whether she believed Mother was capable of being protective of the children, or whether she considered Mother was capable of regaining custody of the children.
In re Hashem H. (1996) 45 Cal.App.4th 1791 (Hashem H.), on which Mother relies, is inapt. There, the Court of Appeal held the mother had made a prima facie showing sufficient to satisfy an evidentiary hearing on the section 388 petition. But in that case, the mother in Hashem H. did so well in therapy that her therapist recommended the child be returned to her care. (Id. at p. 1799.) That is not the case here.
Mother also relies on In re Jeremy W. (1992) 3 Cal.App.4th 1407 (Jeremy W.). There, the only stated basis for terminating reunification services was the instability of the mother's housing. The mother had successfully complied with her court-ordered reunification plan, had continued to abstain from drug and alcohol use, and had continued psychotherapy at her own expense after the court-ordered services were terminated. (Id. at pp. 1414-1415.) In terminating reunification services, the court cited one factor only, i.e., she had not established an ability to provide a stable environment. (Id. at p. 1415.) Subsequently, the mother submitted a section 388 petition, with declarations stating she had maintained her own apartment since August 1990 and continued to visit with her son, who remained strongly bonded to her. (Id. at pp. 1415-1416.) A bonding study had found the child was strongly bonded to the mother and was at a significant risk of harm should he be permanently separated from his mother. A court-appointed psychologist had concluded that it was substantially probable that the child could be returned to the mother's custody within a month. On these facts, the appellate court reversed the juvenile court, concluding that the uncontradicted declarations incorporated with the mother's petition established “a strong prima facie showing of a favorable change in the single negative factor” (lack of stable living accommodations) on which the termination of reunification services had been based, “if not its complete elimination.” (Jeremy W., at pp. 1415-1416.)
Here, there are no comparable facts supporting Mother's petition, and thus no prima facie showing entitling her to a hearing. In both Hashem H. and Jeremy W., a therapist made a recommendation and gave an opinion that the child could safely return to the mother due to specific progress made alleviating the issue that led to removal. Mother's therapist in this case did not make any recommendation or give any opinion as to Mother's fitness to take custody of the children or her ability to be protective of the children.
Mother's participation in additional therapy sessions and her declaration that she was working on herself “to ameliorate the conditions” that led to removal of the children were not prima facie evidence of a change in circumstances because Mother had already received extensive services “to ameliorate the conditions” that led to the children's removal. The additional therapy sessions, Mother's declaration, and the letter from her therapist did not show that Mother had benefitted from the services provided or that she was capable of protecting the children. On these facts, the juvenile court properly found that Mother had not established a change of circumstances.
Accordingly, the juvenile court did not abuse its discretion in denying Mother's section 388 petition without an evidentiary hearing.
Because we find no change of circumstances and Mother must make a prima facie showing of both elements to warrant an evidentiary hearing, we need not determine the best interest of the child prong. (See Zachary G., supra, 77 Cal.App.4th at pp. 807-808.)
DISPOSITION
The juvenile court's order denying the section 388 petition is affirmed.
We concur: McKINSTER Acting P. J., FIELDS J.