Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Ct. Nos. DP003315 & DP010242 James Marion, Judge.
Donna P. Chirco for Petitioner Dianna H.
Deborah A. Kwast, Public Defender, Frank Ospino, Assistant Public Defender, Dennis Nolan and Paul DeQuattro, Deputy Public Defenders, for Petitioner Michael C.
No appearance for Respondent.
OPINION
BEDSWORTH, J.
Benjamin P. DeMayo, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel for Real Party in Interest Orange County Social Services Agency.
Law Office of Harold LaFlamme and Yana Kennedy for Real Parties in Interest Melanie C. and Donovan C., Minors.
Dianna H. seeks a writ of mandate to vacate an order that denied her modification petition. It requested return of her children, Melanie C. and Donovan C., and further reunification services, or a permanent placement of the children together within Orange County. Dianna argues an evidentiary hearing should have been held, and reducing visitation in connection with an out of county placement was an abuse of discretion. Michael C., the children’s father, joins in the petition. We discern no error and deny the petition.
FACTS
In a related opinion filed concurrently with this decision, we affirm an order that denied a modification petition by Michael. (In re Melanie C. (Apr. 3, 2008, G039226 [nonpub. opn.].) The history of the parents’ involvement in the dependency system – now approaching its eighth year – is set out in detail there and need not be repeated here. Michael’s modification petition was denied at a July 2007 selection and implementation hearing, and Dianna’s was denied at a continued selection and implementation hearing in December 2007.
We pick up with the December 2007 hearing. SSA reported it had identified a prospective adoptive family in Kern County, the only one willing to adopt both of these hard-to-place children. It opined “the children have a long history as dependents and a resolution with an end in sight is needed for their sake. They need permanency in their life. Many of their behavioral problems are caused from continuous changes in placements, schools and the lack of a permanent home. The unknown has caused so much anguish and restlessness for them.” A psychologist who evaluated Melanie found she “still has a chance to resolve [her] issues, however, the older she becomes without stability and support the more difficult it will be. . . .” A bonding study found a strong bond between the children, who wanted to be placed together. The assigned social worker believed their chances for a successful placement were best if they remained together. The social worker reported the children’s first choice was to return to Dianna, but “their second choice would be to be in a home where they can grow up together.”
Of the parents, the assigned social worker reported she “noticed a continuous pattern that no matter how hard the parents work at reunifying with their children, and even after they’ve been reunified . . . whenever they get close to complete success they continuously sabotage their own efforts by relapsing, or being together which often times creates chaos, drama and violence in their own lives and the [lives] of their children.”
SSA recommended reducing the parents’ visitation to once a month for two hours (from twice monthly two-hour visits) to pave the way toward a stable home for the children: “For the children to have a successful transition to an adoptive home it is important that they be allowed time to adjust to their permanent home and connect with the prospective parents.” It requested the children be placed together with the prospective adoptive parents and the hearing be continued to April 2008 to allow time for the completion of various adoption requirements.
In a declaration supporting her modification petition, Dianna set out her efforts at self-improvement since October 2006, when the most recent dependency petition was sustained. She said she had a job and stable housing. On her own (since reunification services were denied), she had completed a drug treatment program, attended Narcotics Anonymous and Alcoholics Anonymous meetings, consistency drug tested negative, completed programs in domestic violence, occupational therapy, and literacy, and was receiving ongoing individual counseling. Documentation verifying these claims was attached. Dianna declared “I have made similar requests from this court in the past. I have promised to be drug free and to stay away from the children’s father, [Michael C.] and I have let myself and the court down. Today is different in that I am asserting my self-sufficiency and independence as a former battered woman and a mother. The change is evident by my maintaining my residence solely, my job which before with [Michael] I was never allowed to have, and by trying to improve myself and my situation. I do this all for my children.”
At argument, SSA and minor’s counsel strongly opposed the relief for Dianna. Minor’s counsel pointed out “there was something like a staggering 57 months of [family maintenance] services . . . . [¶] . . . [¶] We’re way out of time on the services. I believe it is not in their best interests even if the court takes everything in [the petition] to be true. . . . [Dianna] suffered from . . . extreme passivity and inability to protect the children. One thing that hasn’t changed is the parents . . . . They were seeing each other . . . and the court repeatedly made orders for the parents to stay apart . . . repeatedly ordered [Dianna] not to allow contact. And they could not follow the court orders. [¶] . . . [¶] [W]hen we’re this far into this case . . . there is no best interests in considering a return to these parents. The parents just cannot parent. They can’t safely parent their children.” Later, she said “[t]hese kids need to have a life. . . . I am concerned about their mental health even as it is. [A] primary focus of my office right now is to get these kids in some sort of stable, permanent situation . . . so they don’t have to worry or be afraid or scared or be exposed to violence anymore.”
The juvenile court found no evidence Dianna made a prima facie case of changed circumstances, or that the relief sought was in the children’s best interests. It commended Dianna, saying “this is a life struggle you have, and right now you’re doing what you can. So I don’t minimize it and I commend you for it . . . .” But, the court explained, at most the evidence showed circumstances that were changing, not changed circumstances.
On the issue of best interests of the children, the court found their last, best hope was adoption, not another try with Dianna. It determined the circumstances that led to dependency – drug and alcohol abuse and domestic violence the children had witnessed – were serious problems that would take a long time to overcome, and not easily at that. Although the children were bonded with Dianna and loved her, and as yet had no bond with the prospective adoptive family, the court noted “but I do have [the psychologist’s] reports suggesting that [the prospective adoptive family is] the last best place.” Summing up, the court said “these two little ones need to have a permanent home. . . . They’ve gone through hell their whole lives. What they’ve gone through, it’s just amazing. And what they have now is each other now. And so I’m going to give them a chance to have a permanent home, their last best chance it looks like . . . .”
The court found placement with the Kern County couple was appropriate, saying “there have been so many placements, and I’m hoping this one is going to work.” It followed SSA’s recommendation to reduce Dianna’s visitation to once a month for two hours, to give the children time to settle in their new placement: “As far as visitation, again, I’m going to give them the best chance. I want them to have a chance to have permanency . . . .” An order was entered that denied Dianna’s petition and set the new visitation schedule.
I
Dianna argues she offered evidence that circumstances had changed and returning the children to her was in their best interests. While we join the juvenile court in praising her efforts, look as we may, we cannot find any abuse of discretion in denying the petition.
A hearing is required on a modification petition only if a parent makes a prima facie showing of facts which, if proved, would show changed circumstances and that modification is in the best interests of the children. (§ 388; In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) It is not enough to show changing circumstances, since that does not benefit the child. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The circumstances must actually have changed. We review the denial of modification petition without a hearing for abuse of discretion. (In re Aaron R. (2005) 130 Cal.App.4th 697, 705.)
Dianna ducks the juvenile court’s finding that circumstances were changing but had not yet changed. Instead of trying to explain why the finding was beyond the court’s discretion, she marshals the evidence and insists it showed changed circumstances. That is not good enough.
Whatever we might think on the issue, under the abuse of discretion standard we must affirm a decision that is reasonable. This one was. It must be remembered that from 2000 to October 2006, Diana abused drugs, engaged in domestic violence, and failed to protect the children from Michael’s abuse. Twice the children were returned to her, only to be removed again. Considered against this history, it was reasonable to find that what she had accomplished by December 2007 showed things were moving in the right direction but had not yet changed. So for this reason alone, we must affirm the order.
Regarding best interests, Dianna argues there was enough evidence to find the children’s best interests would be served by giving her another chance. But that is not the test. On a substantial evidence challenge, it is the appellant’s burden to lay out the contrary evidence and show why it is insufficient. (In re S. C. (2006) 138 Cal.App.4th 396, 414-415.) Dianna fails to make this showing.
Dianna points out the children were bonded with her and wanted to return to her, she visited regularly, and a social worker reported the visits helped the children. Assuming that to be so, it is not enough. The juvenile court acknowledged this evidence, yet found it was outweighed by evidence the problems that led to dependency were serious, long standing, and would take a long time to overcome. And it found the children deserved the one chance SSA had identified for a permanent adoptive home before it was too late. Since the evidence supports the finding that a prima facie case was not made on the best interest test, that is a second reason the order must be affirmed.
II
Dianna contends it was an abuse of discretion to make an out-of-county placement and to reduce visitation, which she states was set at one hour per month. The latter is not quite accurate factually, since she was allowed one visit per month, for two hours, down from two monthly visits of two hours. In any event, the juvenile court acted within its discretion here, too.
The placement argument consists of a point heading, unsupported by anything – no explanation, no reasoned argument, and no supporting authority. We deem it waived.
The visitation argument rests on In re David D. (1994) 28 Cal.App.4th 941, but the case is distinguishable. There, the court found that allowing a parent only one final visit between termination of services and the selection and implementation hearing was unreasonable, particularly since the court failed to make any finding that further visitation would be detrimental to the children. Here, on the other hand, Dianna was not limited to a single, final visit, and the juvenile court did make a finding that additional visitation would be detrimental, since the children needed time to settle into the prospective adoptive home. So David D. does not support Dianna’s position.
More broadly, the visitation reduction was reasonable in light of the situation. The juvenile court focused on giving the children their “best chance” for permanency in the only adoptive placement SSA was able to identify for both together, the kind of placement Dianna also wants. The choice, though hard on Dianna, was without a doubt reasonable, so it was not an abuse of discretion.
Since the record supports the finding that Dianna failed to make the prima facie showing required for an evidentiary hearing, and there was no abuse of discretion in reducing visitation, the petition must be denied. In the interests of justice, this decision shall become final on filing. (Cal. Rules of Court, rule 8.264 (b)(3).)
WE CONCUR: SILLS, P. J., RYLAARSDAM, J.