Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, Ct. No. DP017369 Dennis J. Keough, Judge.
Hassan Gorguinpour, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Debbie Torrez, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
FYBEL, J.
Introduction
A.H. was taken into protective custody by the Orange County Social Services Agency (SSA) at six years of age. Ultimately, the juvenile court entered an order setting long-term foster care as A.H.’s permanent plan. A.H.’s mother, S.S. (mother), filed a petition pursuant to Welfare and Institutions Code section 388, asking the juvenile court to change the long-term foster care order and return A.H. to mother’s custody and care. (All further statutory references are to the Welfare and Institutions Code.) The juvenile court summarily denied the section 388 petition without prejudice, and mother appeals.
Mother’s section 388 petition does not make a prima facie showing of changed, rather than changing, circumstances. Mother’s daily telephone calls to A.H., and mother’s plan to begin counseling more than two and one-half years after A.H.’s dependency proceeding began are not changed circumstances. The juvenile court did not err in denying the section 388 petition without a hearing. We therefore affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
I. Previous Opinion
S.S. v. Superior Court (June 11, 2010, G043510 [nonpub. opn.]) contains a detailed statement of facts setting forth the factual and procedural history of A.H.’s dependency case. In this opinion, we reiterate those portions of that opinion necessary to provide a factual and procedural context for the resolution of the issue raised by the present appeal.
A.H., then age five, was living with mother in Pennsylvania in October 2007, when mother’s boyfriend, H., used a gun while arguing with mother’s ex boyfriend. A.H. was removed from mother’s care and custody, and sent to California to live with her father. A.H. was taken into protective custody in California in August 2008. A dependency petition was filed, pursuant to section 300, subdivisions (a), (b), (c), and (i), alleging A.H.’s father and paternal grandmother had physically and emotionally abused her, and mother knew or should have known about the abuse, but failed to protect her.
Mother participated in reunification services in Pennsylvania, where she was still living. A.H. wanted to move back in with mother, as long as mother’s ex boyfriends were not allowed to come to their home. Mother was still involved with H., despite the fact he had been physically abusive toward her in the presence of A.H.
At the jurisdiction/disposition hearing in October 2008, the allegations of the amended petition were found to be true. A.H. was declared a dependent of the juvenile court, custody was vested in SSA, a service plan and visitation plan were approved, and the juvenile court directed the preparation of an Interstate Compact on the Placement of Children (ICPC) study for mother’s home in Pennsylvania.
In a report prepared for the six month review hearing, mother’s compliance with her case plan was described as “moderate.” At the six month review hearing in April 2009, the juvenile court found that A.H. could not be safely returned to mother’s care, and set a 12 month review hearing.
In June 2009, SSA filed a subsequent petition pursuant to section 342, alleging A.H.’s father had sexually abused A.H., and mother knew or reasonably should have known A.H. was at risk of sexual abuse but failed to protect her. The allegations of the subsequent petition were found true, and A.H. was continued as a dependent of the juvenile court. Mother continued to see H. in Pennsylvania; they had been involved in a physical fight in which H. entered mother’s home, and punched her in the ear, face, and head when she tried to call 911. Despite the existence of a protective order, mother continued to allow H. to enter the home for visits with their child (one of A.H.’s half siblings), but claimed if A.H. were returned to her care she would cease all contact with H.
Mother did not think she needed to continue therapy “because when she deals with the issues relating to A[.H.]’s recent allegations [of sexual abuse], she gets ‘angry and frustrated’ and ‘would rather forget about the situation’ and ‘have the children placed in her care, away from their father.’”
In the status review report, filed in preparation for the 18 month review hearing, SSA recommended terminating reunification services and setting the matter for a permanency planning hearing. SSA noted that while mother continued to be enrolled in a domestic violence therapy program in Pennsylvania, she had not been consistent in her attendance. Because of mother’s eviction from her home (not due to any error on her part), mother was unable to complete her case plan requirements, and was required to obtain ICPC approval for her new home. A.H.’s therapist reported that A.H. expressed in various ways that she loved mother and wanted to be with mother. The therapist was concerned, however, that mother had not been consistent in her telephone calls with A.H. Mother’s Pennsylvania social worker had two concerns: “mother has not been calling the children weekly as she is ordered to do so as well has not been attending therapy sessions.”
Mother failed to telephone A.H. between Thanksgiving 2009 and early February 2010. A.H.’s therapist reported that A.H. had no relationship with mother and expressed anger toward mother because she did not call. The therapist believed returning A.H. to mother’s care “would be detrimental to the child because there is no relationship between the mother and child.”
At the contested 18 month review hearing, the social worker recommended termination of reunification services to mother, because mother had not followed through on her case plan. Mother had failed to participate fully in court ordered therapy, and failed to utilize her court ordered telephone visits with A.H. Although A.H. expressed a desire to return home to mother, she also expressed fear about H.’s presence in the home. The juvenile court found that return of A.H. to mother’s care and custody would create a substantial risk of detriment to her physical or emotional well being, terminated reunification services, and set a hearing on a permanency plan under section 366.26. Mother filed a petition for a writ of mandate, which this court denied.
II. NEW FACTUAL INFORMATION
After the 18-month review hearing, mother expressed her desire to relinquish her parental rights, and to have A.H. placed with the maternal grandmother. Mother had limited or no contact with A.H. between February and August 2010.
A.H. was placed in a new foster home in May 2010, after a report was filed alleging A.H. had inappropriately touched another minor in the first foster home. Ultimately, the allegation was deemed unfounded. A.H. was returned to the Orangewood Children’s Home due to behavior problems in the new foster home. A prospective foster family, the B. family, expressed interest in having A.H. placed in their home, but that placement was not pursued while SSA attempted to place A.H. with relatives.
In the permanency hearing report, SSA recommended that parental rights be terminated, and A.H. be freed for adoption. A.H.’s maternal grandparents were committed to adopting her, and A.H. was scheduled to travel to their home in another state. The juvenile court continued the permanency hearing.
After A.H. was placed with the maternal grandparents, SSA discovered they had a criminal history of child abuse and neglect. A.H. was removed from the grandparents’ care and returned to California, and SSA changed its recommendation for A.H.’s permanency plan to long-term foster care. Mother agreed to the permanent plan of long term foster care. The juvenile court found termination of parental rights was not in A.H.’s best interest, A.H. was not adoptable, and no one was willing to accept legal guardianship of A.H.; the court therefore ordered a permanent plan of long-term foster care.
A.H. had problems coping upon her return to California. She cried often, had tantrums, and occasionally wet the bed. The B. family remained available and interested in having A.H. placed with them. A.H. liked the B. family during a preplacement visit, and A.H. was placed with the B. family in October 2010.
Mother filed a section 388 petition on October 14, 2010, asking the juvenile court to change its order placing A.H. in long-term foster care, and to instead place A.H. in mother’s care and custody in Pennsylvania. Mother’s declaration in support of the section 388 petition included the following new information: (1) mother began a work program on October 5, 2010; (2) she had had daily, monitored telephonic contact with A.H. since mid-July, and A.H. often told mother she missed her and wanted to live with her; (3) mother had had no contact with H., and the social worker monitoring her case in Pennsylvania had determined no safety plan was necessary; and (4) mother was scheduled to have an intake appointment with a counselor on October 15. Mother believed A.H. should be placed in her custody and care because A.H. “is only 8 years old and is too young to spend most of her life in long term foster care, especially when one has yet to be located since August 2010. Living with a parent, as opposed to group homes or foster parents, will provide the child with a sense of belonging and acceptance. Only a parent can be truly invested in the emotional and physical well-being of a child as she develops and matures. A[.H.] has always stated she loves her mother and wanted to live with her mother, and she continues to say so. Placing A[.H.] with her mother will finally provide her with a safe and stable home.”
The juvenile court liberally construed mother’s section 388 petition, but found mother had failed to make a prima facie showing of changed circumstances sufficient to warrant a hearing, and therefore denied the petition without prejudice. Mother timely appealed.
DISCUSSION
To succeed on a section 388 petition, a parent must show changed circumstances establishing that the proposed modification would be in the best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) “The parent seeking modification [through a section 388 petition] must ‘make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]’ [Citations.] There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.] If the liberally construed allegations of the petition do not show changed circumstances such that the child’s best interests will be promoted by the proposed change of order, the dependency court need not order a hearing.” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
We apply the abuse of discretion standard in our review of the juvenile court’s decision to deny the section 388 petition without a hearing. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) We may not reweigh the evidence or substitute our judgment for that of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 319.) We affirm the order unless it “‘“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.”’” (In re Brittany K., supra, 127 Cal.App.4th at p. 1505.) The juvenile court’s decision will not be disturbed “‘“unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.”’” (In re Stephanie M., supra, 7 Cal.4th at p. 318.)
A section 388 petition that alleges only changing rather than changed circumstances does not require an evidentiary hearing. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1072.) Mother argues she made a prima facie showing of changed circumstances because her “petition laid out a series of changes she had made since the case began” that demonstrated “she was ready to bring A[.H.] home and that she was prepared to protect her.” SSA counters that the juvenile court was required to consider only those changes occurring since the April 2010 hearing, at which reunification services were terminated, and the August 2010 hearing at which long term foster care was selected as A.H.’s permanent plan. SSA argues that at those hearings, the juvenile court determined that returning A.H. to mother’s care and custody would be detrimental to her well being; therefore, mother must be able to show changed circumstances after that time to make a prima facie showing for her section 388 petition.
Mother relies primarily on In re Hashem H. (1996) 45 Cal.App.4th 1791, 1801, in which the appellate court reversed the juvenile court’s orders summarily denying a section 388 petition, and awarding legal guardianship to the minor’s caretakers. In contrast to the present case, in In re Hashem H., the mother offered evidence that she had regularly participated in therapy for a year, had regularly visited the minor, and was “‘ready, capable and able to provide for the child on a full time basis.’” (Id. at p. 1796.) The social services agency had noted the mother’s progress, and had increased and liberalized the mother’s visitation with the minor. (Id. at p. 1795.) The mother submitted a letter from her therapist in support of her section 388 petition, recommending that the mother receive custody of the minor. (Id. at p. 1796.) Although the juvenile court summarily denied the section 388 petition because the mother had not shown her “successful completion of psychotherapy” (id. at p. 1798, italics omitted), the appellate court concluded the petition made out a prima facie showing of changed circumstances, making a hearing on the petition necessary: “[The mother] described a change of circumstance-her continuous participation in individual therapy for more than 18 months which was so successful that her therapist recommended Hashem be returned to her custody. Also alleged were [the mother]’s regular and consistent visitation with her son for more than a year, her participation in conjoint counseling with him, her stable employment and religious affiliation, and her current ability to provide a home for Hashem on a full-time basis.... A fair reading of the petition indicates that [the mother]’s mental and emotional problems which led to the removal of Hashem from her home had been successfully resolved through therapy.” (Id. at p. 1799.)
In the present case, by contrast, mother had not yet begun counseling as of the time the section 388 petition was filed; she was scheduled to have an intake appointment with a counselor the next day. If 18 months of regular, demonstrably successful counseling constitutes changed circumstances, the possibility of beginning therapy more than three years after A.H. was removed from mother’s care and custody, more than two years after the dependency case in California was initiated, and six months after reunification services were terminated is, at best, an example of changing circumstances.
Mother complains, however, that her section 388 petition could not be judged against her failure to comply with the requirements of her case plan, because reunification services had been terminated in April 2010. Mother is correct that the juvenile court could not deny the section 388 petition simply because she had not completed the case plan, which was no longer in effect. We do not agree, however, that the case plan therefore became irrelevant to the court’s analysis. The case plan was developed to address and correct the problems leading to A.H.’s dependency case. Mother’s failure to complete the case plan prevented her from correcting those problems, which in turn prevented the court from returning A.H. to mother’s care and custody. The initial problems, and whether mother’s actions since reunification services were terminated had rectified those problems sufficiently to change the existing court orders, are appropriately considered, although mother’s case plan was no longer in effect.
Here, as of the time the section 388 petition was filed, mother had not moved forward with the counseling that had earlier been determined necessary to her ability to safely parent A.H. A.H.’s therapist believed it would be detrimental to place A.H. in mother’s care. That mother had not yet even begun counseling, much less proceeded in some sort of counseling to the point where she might be able to help A.H. through the issues resulting from the abuse she suffered, was entirely appropriate for the court to consider.
The juvenile court apparently found that, applying a liberal construction to the section 388 petition, mother had made a prima facie showing on the second prong-that the proposed change in the juvenile court’s order would be in A.H.’s best interests: “[W]ith reference to the best interests of the child, ... the court would note that these petitions are to be liberally construed. The court is mindful of that, and the efforts to kindle the relationship would perhaps pass muster in that particular. But the court’s specific concerns are the change in circumstances.” Having concluded, ante, that the juvenile court did not abuse its discretion in summarily denying the section 388 petition based on mother’s failure to make a prima facie case on changed circumstances, we need not consider the best interests prong further.
Disposition
The order is affirmed.
WE CONCUR: MOORE, ACTING P. J., ARONSON, J.