Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. SWJ005035, Bradley O. Snell, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
Leslie A. Barry, under appointment by the Court of Appeal, for Minor.
OPINION
RICHLI J.
Nina M. (Mother) appeals from the termination of her parental rights under Welfare and Institutions Code section 366.26 as to her child Anthony O. (the minor) (born in 2006). Mother contends (1) the juvenile court erred in failing to comply with the notice provisions of the Indian Child Welfare Act (ICWA); and (2) the juvenile court abused its discretion when it denied Mother a hearing on her petition for modification of orders. We reject these contentions and affirm the judgment.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
I
FACTUAL AND PROCEDURAL BACKGROUND
Mother (born in 1986) became a dependent of the court herself on February 22, 1993, after her parents neglected and abandoned her and her siblings due to substance abuse and incarceration. Mother began abusing drugs around age 11 and became a ward of the juvenile court on July 20, 1999. She was placed in numerous foster and group homes. However, she frequently ran away from the homes. On May 5, 2004, Mother was convicted of assault with a deadly weapon, a strike offense, and sent to the California Youth Authority (CYA).
The Department of Juvenile Justice was formerly known as the California Youth Authority. (Gov. Code, §§ 12838, subd. (a), 12838.3; Welf. & Inst. Code, § 1710, subd. (a).) For clarity, we will refer to the facility as CYA.
Mother left her child, Andres, with a relative, Kristina, two days after his birth. Mother picked him up after her release from CYA in May 2005 and kept him for about two weeks. Thereafter, she returned the child to Kristina. On September 9, 2005, Mother overdosed on prescription drugs, resulting in her hospitalization. Andres was subsequently detained when Kristina’s home was under investigation for neglect of her own children, due to substance abuse; Mother’s whereabouts were unknown.
Minor’s half brother, Andres, is not a party to this appeal.
On September 23, 2005, the Riverside County Department of Public Social Services (DPSS) filed a dependency petition on behalf of Andres, pursuant to section 300, subdivisions (b) and (g), based on Mother’s substance abuse, her incarceration, and her leaving her child with a relative who had an open dependency case and abused drugs. On November 15, 2005, the court sustained the petition and Andres was declared a dependent of the court and placed with his maternal great-grandmother. Services were denied due to the parents’ whereabouts being unknown, pursuant to section 361.5, subdivision (b)(1).
On December 14, 2005, Mother married Anthony O., Sr., (Father). By April 2006, Mother, who had again been in custody at CYA, was living with friends, and on April 17, 2006, her paternal rights as to Andres were terminated.
The minor’s presumed father, Anthony O., Sr., is not a party to this appeal.
On June 12, 2006, the minor came to the attention of DPSS when hospital staff notified DPSS that Mother had given birth and left the hospital against medical advice. Staff reported that Mother became irate and swore at staff, and refused discharge teaching and baby care; she also denied incarceration at CYA when medical information reflected such housing. Father was incarcerated in state prison and had prior convictions for attempted murder, assault with a deadly weapon, and drug possession and use. The minor was detained and placed in the care of the paternal cousins on the “Pechanga Reservation.”
On June 14, 2006, a dependency petition was filed on behalf of the minor pursuant to section 300, subdivisions (b) and (g), based on Mother’s failure to reunite with Andres, her transient lifestyle, her erratic behavior and anger, her criminal history, and Father’s criminal history and his incarceration.
In a detention report dated June 15, 2006, the social worker reported that ICWA “does or may apply.” Mother claimed membership with “Minnesota Chippewa Tribe” and reported that Father was a member of the “San Ruis Tribe.” On June 13, 2006, DPSS noticed the Bureau of Indian Affairs (BIA), the “Minnesota Chippewa Tribe,” and Indian Child and Family Services (ICFS).
At the June 15, 2006, detention hearing, the minor was formally removed from parental custody. Mother acknowledged that she had completed the parental notification of Indian status (form JV-130), indicating that she was enrolled in the “Chippewa White Earth Reservation Tribe.” She also stated that Father was a member of the “San Luis Ray” tribe. The juvenile court ordered DPSS to give notice to the “Chippewa White Earth Reservation Tribe and also to the San Ruiz Tribe,” as prior notice was found to be untimely.
According to DPSS records, the maternal great-grandmother and the maternal grandmother are registered with the “Minnesota Chippewa Tribe.” The maternal great-grandmother had provided a registration number, and said that Mother and the minor were not registered members. The paternal grandmother reported that she and Father were “registered members of the San Luis Rey Band of Mission Indians, which is a Band of the Luiseno Indian Tribe.” DPSS received a “Tribal Member Certification Letter” from the “San Luis Rey Band of Mission Indians” to confirm the paternal grandmother’s membership status.
On June 29, 2006, DPSS sent notice to the parents, the BIA, ICFS, the “Minnesota Chippewa Tribe,” the “La Jolla Band of Luiseno Indians,” the “Pala Band of Mission Indians,” the “Pechanga Band of Mission Indians,” the “Soboba Band of Luiseno Indians,” and the “29 Palms Band of Mission Indians,” and also filed the requisite notices and certified mail receipts with the juvenile court.
In a jurisdiction/disposition report dated July 13, 2006, the social worker reported that Indian expert Phillip Powers (Powers) had contacted both the “Minnesota Chippewa Tribe and the White Earth Band of the Chippewa Tribe.” Powers was told that neither Mother nor the minor were eligible for membership and enrollment because Mother and the minor were less than the 25 percent blood quantum “cutoff” percentage. The maternal great-grandmother is 50 percent Chippewa and the maternal grandmother is 25 percent. DPSS therefore concluded that the minor was not ICWA eligible on Mother’s side.
DPSS also determined that the minor was not ICWA eligible through the “Luiseno Indian Tribe” because Powers reported that the “San Luis Rey Band is not federally recognized”; DPSS therefore did not send ICWA notice to the “San Luis Rey Band.” On July 6, 2006, DPSS received a call from Paula Acosta of the “La Jolla Band of Luiseno Indians,” who indicated that “their Band only extends services to other Bands in their consortium” and that Father’s “San Luis Rey Band is not part of that consortium.” Therefore, Father and the minor were “not eligible to receive services through the La Jolla Band of Mission Indians.”
Between July 6, 2006, and July 20, 2006, three tribes responded indicating that the minor was not eligible for membership: (1) the “Soboba Band of Luiseño Indians,” (2) the “Pechanga Indian Reservation, Temecula Band of Luiseño Mission Indians,” and (3) the “White Earth Reservation Tribal Council.”
By July 2006, Mother was in county jail with a CYA hold.
On October 10, 2006, after several continuances to secure transportation from CYA for Mother, the court sustained the petition as amended, and the minor was declared a dependent of the court. Mother was provided with reunification services. DPSS was ordered to investigate “whether or not visitation [between Mother and the minor] is allowed at the CYA facility in Ventura County.” The juvenile court also found that notice had been provided pursuant to ICWA and that ICWA did not apply.
Mother was engaged in services at CYA and in the process of transitioning to a noncustodial setting from CYA.
On November 3, 2006, Mother filed an ex parte request for visitation. The court granted the request for one visit a month at CYA.
DPSS, as well as the caretakers, attempted numerous times to arrange a visit between Mother and the minor at CYA to no avail. In fact, in one attempt, the caretaker was in route to CYA in Ventura County from the “Pechanga Reservation,” having driven for two hours, and was advised by CYA to turn around and return home. When the caretaker called DPSS and indicated the visit had been cancelled by CYA, the minor could be heard in the background crying and screaming. The caretakers had also reported that the minor was inconsolable and hysterical at being strapped in a car seat; a social service aid had also observed this behavior when transporting the minor to visits with his father. On February 8, 2007, the social worker reported no visits had occurred due to the difficulty in obtaining cooperation with CYA. The social worker also opined that an all-day trip to accomplish a one-hour visit was too difficult for the infant minor. Following discussions in open court, the court denied transportation of the minor to CYA.
The social worker reported that Mother would likely be released from CYA in June or July 2007, and was actively participating in services at CYA. Father had been released and reincarcerated in state prison after failing on parole. Mother’s continued participation in treatment while at CYA was confirmed again on May 17, 2007. Mother had failed to correspond with the minor as directed by the social worker but had reportedly written letters to the minor in her journal, which she kept in her possession.
At the May 17, 2007, six-month review hearing, the court terminated services as to Father, but continued services for Mother. Mother was also provided with visitation two times a week because she was out of custody. However, due to purported transportation problems, Mother had failed to appear for her first scheduled visit on July 30, 2007, and was instructed to confirm visits 24 hours in advance.
While Mother was incarcerated, she actively participated in her case plan. She attended parenting education classes, gang awareness classes, had completed a six-month substance abuse program, and was attending substance abuse and general counseling. She had also contacted DPSS regularly to check on the minor’s well-being.
However, by September 19, 2007, Mother, having been released from CYA, reverted back to her old habits and the social worker recommended terminating services for Mother and setting a section 366.26 hearing. In August 2007, when ordered to submit to random drug tests on separate occasions, she made excuses for her failure to comply; on September 5, 2007, she tested positive for methamphetamine. In addition, despite receiving referrals to services, Mother failed to regularly participate in services. Moreover, on September 14, 2007, Mother was arrested for violating her parole condition by associating with a known gang member, specifically Father.
In terms of visitation, Mother had consistently visited with the minor, missing only one visit. Although Mother was appropriate during visits; the minor appeared to favor Father when he was present.
At the September 19, 2007, 12-month review hearing, following admission of evidence, the court terminated reunification services for Mother and set a section 366.26 hearing. Visitation was reduced to twice a month. On that same day, the court granted the relative caretakers’ request for de facto parent status, despite Mother’s allegations that the caretakers used drugs.
On December 26, 2007, the social worker filed a section 366.26 report recommending that the court terminate parental rights and that the minor remain in placement with his prospective adoptive parents. Regarding ICWA, the social worker reported that ICWA “does not apply,” noting that on October 31, 2007, the court “declared ICWA does not apply via Ex Parte Application dated October 12, 2007.” The social worker noted that since the minor’s birth, “the prospective adoptive parents have nurtured and protected him”; that he continued “to meet age appropriate milestone[s] in terms of his physiological, physical and emotional development”; and that despite the birth of their first child, “[t]he p[ro]spective adoptive parents continue to love him as if he were their biological son.” Also, they wished to adopt him. Likewise, the minor was bonded with his prospective adoptive parents and was thriving. In addition, the prospective adoptive parents were willing to maintain contact with the minor’s biological parents and relatives, if it would be in the minor’s best interests. Meanwhile, Mother’s visits with the minor were sporadic: she had three visits arranged in November 2007—she was a no-show for one visit and failed to confirm the other two visits.
On February 5, 2008, Mother filed a section 388 petition seeking additional reunification services. As changes in circumstance, Mother attached proof of three negative drug tests (the most recent being Jan. 24, 2008); proof of attendance at three Narcotics Anonymous (NA) meetings a week beginning August 26, 2007, through December 9, 2007; a letter from the maternal great-grandmother who reared Mother; and a letter from Mother who claimed lack of cooperation in trying to arrange visitation during her incarceration, the excitement the minor showed for her during visits, and the minor’s cries upon separation at the end of visits. Mother also expressed her desire to maintain a sibling bond between the minor and his half brother. The court summarily denied the petition without a hearing, finding the petition did not show that it would be “in the best interest of the child to change the order.”
The section 366.26 hearing was held on February 13, 2008. Mother objected to the termination of parental rights, arguing the sibling relationship and parental relationship exceptions to adoption. Minor’s counsel noted that the siblings had never had any contact; that termination of parental rights was in the minor’s best interests; and that the caretakers had no objection in fostering a sibling relationship. The court terminated parental rights, finding the minor to be adoptable. Mother subsequently appealed.
II
DISCUSSION
A. ICWA
Mother contends the juvenile court failed to comply with the notice provisions of ICWA and, therefore, reversal and remand to give “notice to all Chippewa and Luiseno Tribes” is required.
“In 1978, Congress passed the [ICWA], which is designed to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children ‘in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.’ [Citations.]” (In re Marinna J. (2001) 90 Cal.App.4th 731, 734 (Marinna J.).) “The ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource. [Citation.] Congress has concluded the state courts have not protected these interests and drafted a statutory scheme intended to afford needed protection. (25 U.S.C. § 1902.) The courts of this state must yield to governing federal law.” (In re Desiree F. (2000) 83 Cal.App.4th 460, 469 (Desiree F.).)
In general, ICWA applies to any state court proceeding involving the foster care or adoptive placement of, or the termination of parental rights to, an Indian child. (25 U.S.C. §§ 1903(1), 1911(a)-(c), 1912-1921.) “‘Indian child’” is defined as a child who is either (1) “a member of an Indian tribe” or (2) “eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” (25 U.S.C. § 1903(4).) “‘Indian tribe’” is defined so as to include only federally recognized Indian tribes. (25 U.S.C. § 1903(8).)
When the social services agency has reason to know the proceeding involves an Indian child, the agency must notify the Indian child’s tribe or, if the tribe’s identity cannot be determined, it must notify the BIA of the pending proceedings and the right to intervene. (Marinna J., supra, 90 Cal.App.4th at pp. 739-740, fn. 4; In re Levi U. (2000) 78 Cal.App.4th 191, 196-197.) The agency’s duty is to inquire into the possibility of Indian ancestry and to act upon the information the family provides. The agency is not required to conduct an extensive independent investigation or to “cast about, attempting to learn the names of possible tribal units to which to send notices.” (In re Levi U., at p. 199.)
The agency providing notice is required to file with the court “a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor’s status.” (Marinna J., supra, 90 Cal.App.4th at p. 739, fn. 4; In re Karla C. (2003) 113 Cal.App.4th 166, 175-176 [noting that “[m]ost appellate courts considering the issue have held the ICWA notice, and return receipts and responses of the Bureau or tribe, if any, must be filed with the juvenile court”].)
As observed in In re I.G. (2005) 133 Cal.App.4th 1246, “[n]oncompliance with ICWA has been a continuing problem in juvenile dependency proceedings conducted in this state, and, by not adhering to this legal requirement, we do a disservice to those vulnerable minors whose welfare we are statutorily mandated to protect.” (Id. at p. 1254.) In sum, “we agree with those courts that have emphasized the importance of strict compliance with ICWA notice requirements and, if necessary, have remanded the matter for the juvenile court to ensure that proper notice is given. [Citations.]” (Ibid.)
At the same time, we recognize that substantial compliance with ICWA notice requirements may be sufficient under certain circumstances. (In re Christopher I. (2003) 106 Cal.App.4th 533, 564-565 (Christopher I.).) Moreover, “errors in ICWA notice are subject to harmless error review” (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784), and reversal and remand is not necessarily required if “the tribe has . . . expressly indicated no interest in the proceedings.” (Desiree F., supra, 83 Cal.App.4th at p. 472.) In short, “[d]eficient notice under the ICWA is usually prejudicial [citation] but not invariably so.” (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1411.) Hence, perfect compliance is not needed; “[s]ubstantial compliance with the notice requirements of ICWA is sufficient.” (Christopher I., at p. 566.)
We conclude that DPSS here complied, or at the very least substantially complied, with the notice provisions of ICWA when it provided notice to the BIA, ICFS, the “Minnesota Chippewa Tribe,” the “La Jolla Band of Luiseno Indians,” the “Pala Band of Mission Indians,” the “Pechanga Band of Mission Indians,” the “Soboba Band of Luiseno Indians,” and the “29 Palms Band of Mission Indians,” and also filed the requisite notices and certified mail receipts with the juvenile court. Contrary to Mother’s suggestion, DPSS was required to send notice only to the “Minnesota Chippewa Tribe” because that is the specific tribe with which Mother and the maternal great-grandmother claimed affiliation, specifically through the maternal great-grandmother and the maternal grandmother. “[The social services agency] must provide the tribe with notice of the pendency of the proceedings and the opportunity to intervene in them. [Citation.] When the specific tribe cannot be identified, [the social services agency] must provide notice to the BIA.” (Christopher I., supra, 106 Cal.App.4th at p. 566.) Thus, it would be a waste of resources to require DPSS to send ICWA notices to the other 19 “Chippewa” tribes, as Mother suggests, once Mother determined (and it was confirmed by the maternal great-grandmother who provided a registration number for herself) her possible affiliation was specifically with the “Minnesota Chippewa Tribe.” There was no confusion as to what “Chippewa” tribe Mother belonged to.
DPSS received a response in July 2006 from the “White Earth Reservation Tribal Council” stating that the “child is not eligible for Membership under ICWA with the White Earth Band of Chippewa.” Moreover, ICWA expert Powers contacted the “Minnesota Chippewa Tribe and the White Earth Band of the Chippewa Tribe” and confirmed that neither Mother nor the minor were eligible for membership because Mother and the minor were less than the 25 percent blood quantum “cutoff” percentage. Powers explained that the maternal great-grandmother is 50 percent Chippewa and the maternal grandmother is 25 percent. Mother acknowledges that the “tribes that did respond to notice do not require further contact” and named the “White Earth Reservation Tribal Council” as one of those tribes.
From this unchallenged evidence, it is clear that DPSS gave notice to the correct tribe and the tribe had information to determine whether the minor was eligible for membership. The maternal great-grandmother confirmed that she and the maternal grandmother were enrolled members of that tribe. Mother has never stated, nor presented any evidence, that the correct tribe was not notified. DPSS was under no duty, and no purpose would be served, by notifying the other 19 federally recognized “Chippewa” tribes.
Mother however relies on section 224.2 to argue that all the relevant tribes should have been notified. Section 224.2 requires notice be sent to all federally recognized tribes “of which the child may be a member or eligible for membership, until the court makes a determination as to which tribe is the child’s tribe . . . after which notice need only be sent to the tribe determined to be the Indian child’s tribe.” (§ 224.2, subd. (a)(3); see also In re J.T. (2007) 154 Cal.App.4th 986, 992-994; see also Cal. Rules of Court, rule 5.664(f)(2), (3), as amended Jan. 1, 2007.) Mother’s reliance on section 224.2, subdivision (a)(3), is misplaced. As noted above, section 224.2 went into effect on January 1, 2007, which is after ICWA notice was sent in this case and after the court’s ruling on October 10, 2006, that proper ICWA notice was given and that ICWA did not apply. “As a rule of procedure, the new statute did not have an impermissible retroactive effect. [Citations.]” (In re J.T., at p. 992.) Nonetheless, even if section 224.2 applied, the juvenile court here made a determination on June 15, 2006, at the detention hearing, that the minor may belong to either the “Chippewa White Earth Reservation Tribe and also to the San Ruiz Tribe” and directed DPSS to notify these two specific tribes.
Section 224.2, subdivision (a), codifies ICWA notice requirements: “(a) If the court, a social worker, or probation officer knows or has reason to know that an Indian child is involved, any notice sent in an Indian child custody proceeding under this code shall . . . comply with all of the following requirements: [¶] . . . [¶] (2) Notice to the tribe shall be to the tribal chairperson, unless the tribe has designated another agent for service. [¶] (3) Notice shall be sent to all tribes of which the child may be a member or eligible for membership, until the court makes a determination as to which tribe is the child’s tribe in accordance with subdivision (d) of Section 224.1, after which notice need only be sent to the tribe determined to be the Indian child’s tribe.” (§ 224.2, subd. (a)(2), (3).)
All further rule references are to the California Rules of Court unless otherwise indicated. Effective February 23, 2007, rule 5.664 was amended to eliminate detailed notice requirements and to refer to section 224.2, effective January 1, 2007.
While acknowledging that the “San Luis Rey Band of Luiseno Indians” is not a federally recognized tribe, Mother also argues that DPSS erred in notifying only four of the six Luiseno tribes. We disagree.
After it was reported that Father was a member with the “San Ruis Tribe,” the court directed DPSS to notify the “San Ruiz Tribe” on behalf of Father. The paternal grandmother stated that she and Father “are registered members of the San Luis Rey Band of Mission Indians, which is a Band of the Luiseno Indian Tribe.” DPSS received a “Tribal Member Certification Letter” from the “San Luis Rey Band of Mission Indians” to confirm the paternal grandmother’s membership status. However, the “San Luis Rey Band” is not a federally recognized tribe as conceded by Mother and the minor is not ICWA eligible through Father’s membership in his specified tribe.
Hence, DPSS was not required to send ICWA notice to this tribe. Additionally, in July 2006, DPSS received a call from Paula Acosta of the “La Jolla Band of Luiseno Indians” who indicated that “their Band only extends services to other Bands in their consortium and San Luis Rey Band is not part of that consortium.” Therefore, Father and the minor are not eligible to receive services through the “La Jolla Band of Mission Indians.” The fact that DPSS sent notice to four of the six “Luiseno” tribes is of no consequence, since DPSS was merely required to only send notice to Father’s identified tribe as explained previously.
Moreover, we note that the legislative intent of ICWA is essentially being preserved here. The minor has been well cared for since his birth by his paternal cousin and his wife, who reside on the “Pechanga Reservation.” (See § 224, subd. (a); Marinna J., supra, 90 Cal.App.4th at p. 734; 25 U.S.C. § 1902.)
As Mother points out, “[t]here are six federally-recognized Luiseno tribes: . . . [the] Pechanga Band of Luiseno Mission Indians of the Pechanga Reservation” is one of these recognized “Luiseno tribes.” Interestingly, DPSS sent notice to the “Pechanga Band of Mission Indians”; however, the tribe responded indicating that “the minor is not a member of the Pechanga Band or eligible for membership.”
B. Section 388 Petition
Mother next claims that the juvenile court abused its discretion when it summarily denied her section 388 petition without a hearing because she had made a prima facie showing that her circumstances had changed and that her request for additional reunification services was in the minor’s best interests. We disagree.
Section 388 authorizes a petition to modify a prior order of the juvenile court “upon grounds of change of circumstance or new evidence.” (§ 388, subd. (a).) “If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held.” (§ 388, subd. (c).)
The petition must make a prima facie showing as to both elements, change of circumstance and promotion of the best interests of the child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) A hearing must be held if the petition states a prima facie case, which has been analogized to a showing of probable cause. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432.) “The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition. [Citation.]” (In re Zachary G., at p. 806; In re Daijah T. (2000) 83 Cal.App.4th 666, 673.) The petition should be liberally construed. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414.) If the petition fails to state sufficient change of circumstances or new evidence or facts showing it would be in the best interests of the child to modify the order, the petition may be denied without a hearing. (Rule 5.570(d); In re Zachary G., at p. 808.) The juvenile court may rely on its own knowledge of the facts of the case to summarily deny a section 388 petition. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.)
Mother contends the juvenile court abused its discretion in summarily denying her section 388 petition because she had presented sufficient proof of change in circumstances to warrant receiving additional reunification services. Under all the circumstances and considering Mother had a lengthy and well documented substance abuse and criminal history beginning when she was a ward of the delinquency court in 1999, the court could reasonably conclude otherwise.
Section 388 can provide “an ‘escape mechanism’ when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) “Even after the focus has shifted from reunification, the scheme provides a means for the court to address a legitimate change of circumstances while protecting the child’s need for prompt resolution of his custody status.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) However, the best interests of the child are of paramount consideration when a petition for modification is brought after termination of reunification services. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In assessing the best interests of the child, the juvenile court looks to the needs of the child for permanence and stability. (Ibid.)
Factors to be considered in determining the child’s best interests include “the seriousness of the problem which led to the dependency” and “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.) Substance abuse is generally considered a more serious problem and, therefore, is less likely to be satisfactorily ameliorated in the brief time between termination of services and the section 366.26 hearing. (In re Kimberly F., at p. 531, fn. 9.)
Whether to conduct a hearing on a section 388 petition alleging changed circumstances or new evidence is within the juvenile court’s discretion. (In re Aljamie D., supra, 84 Cal.App.4th at p. 431.) When the juvenile court summarily denies a section 388 petition, this court reviews that decision under an abuse of discretion standard. (In re Aaron R. (2005) 130 Cal.App.4th 697, 705.) Discretion is abused only when it is exercised “‘in an arbitrary, capricious or patently absurd manner that result[s] in a manifest miscarriage of justice.’” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
Applying these principles here, we conclude that the juvenile court acted well within its discretion in denying Mother’s petition for modification without a hearing. Mother’s participation in NA and mental health services and three negative drugs tests since services were denied did not establish that she had “complete[d] a reformation.” (In re Kimberly F., supra, 56 Cal.App.4th at p. 528.) At best, the allegations in Mother’s petition indicated that she had barely commenced the reformation that would be necessary for her to assume the responsibility of parenting the minor. Given Mother’s long-standing substance abuse problem, and the fact that she had never completed a substance abuse program and was arrested twice during the dependency, the juvenile court did not abuse its discretion by finding that her last minute participation in NA and mental health services, and only three negative drug tests between September 2007 and February 2008 did not constitute changed circumstances warranting a modification of the court’s prior orders.
Additionally, the juvenile court’s finding that Mother’s petition failed to make a prima facie showing that modification was in the minor’s best interests was not an abuse of discretion. As previously stated, the minor’s need for permanency and stability were paramount at this stage in the proceedings. These needs would not have been promoted by providing services to Mother in the hope that she might be able to provide a permanent home for the minor given the minimal progress she had made. Furthermore, the juvenile court could reasonably conclude that Mother’s inconsistent visits with the minor were insufficient to establish a bond with the minor, who had been removed at birth.
In re Baby Boy L. (1994) 24 Cal.App.4th 596, relied on by Mother, supports a conclusion contrary to that urged by her. In that case, at the section 366.26 hearing, the mother presented a letter to the juvenile court from the mother’s counselor indicating that she “was enrolled in a drug counseling program and appeared sincere in her desire to become drug free,” although she had missed some appointments for counseling and testing. (In re Baby Boy L., at p. 602.) The juvenile court denied the mother’s request for return of the minor, and the appellate court affirmed, noting that the mother had not filed a section 388 petition and, in any event, the “bare scintilla of proof that she was beginning to rehabilitate” was not sufficient to warrant a hearing on return of the child. (In re Baby Boy L., at p. 610.) Similarly, Mother’s last minute attempt to engage in services did not establish a prima facie showing that her circumstances had changed.
Therefore, the court properly denied Mother’s section 388 petition without a hearing. In addition, because Mother’s petition failed to state a prima facie case for modification, the court’s denial of the petition without a hearing satisfied both the statute and constitutional due process. (In re Angel B. (2002) 97 Cal.App.4th 454, 461; see In re Marilyn H., supra, 5 Cal.4th 295, 309-310.)
III
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST Acting P. J., MILLER J.