Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK58773, Debra Losnick, Juvenile Court Referee. Affirmed.
Mitchell Keiter, under appointment by the Court of Appeal, for Appellant.
Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, Frank J. DaVanzo, Principal Deputy County Counsel, for Respondent.
MOSK, J.
INTRODUCTION
W.G. (mother) appealed an order of the juvenile court pursuant to Welfare and Institutions Code section 366.26 terminating her parental rights over her child, C.B. (child). In her opening brief, however, mother does not challenge the order terminating her parental rights, but instead challenges a contemporaneous order denying her petition pursuant to section 388 to reinstate reunification services. We reject the argument advanced by the Los Angeles County Department of Children and Family Services (DCFS) that we lack jurisdiction to review the order denying mother’s section 388 petition because she failed to identify that order in her notice of appeal. We conclude, however, that mother’s section 388 petition failed to make a prima facie showing of changed circumstances or that reinstating reunification services would be in child’s best interest. We therefore affirm the order.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
BACKGROUND
A. Detention
Child was born in April 2006. At that time, mother’s three older children had been declared dependent children due to mother’s drug abuse; her reunification services with respect to those children had been terminated, and a contested section 366.26 hearing was pending. Mother admitted to DCFS that she used drugs during her pregnancy with child, resulting in her pregnancy being considered “high risk.” Prior to child’s birth, mother had enrolled in an outpatient drug program, but she had stopped after attending only two sessions. Both mother and child tested negative for drugs at the hospital when child was born.
On May 19, 2006, mother voluntarily agreed to a “Safety Action Case Plan” requiring her to enroll in a drug treatment program. Mother failed to do so. At a Team Decision-Making Meeting on June 1, 2006, mother agreed to enroll in a drug treatment program by 5:00 p.m. that day. On June 6, 2006, mother failed to attend her treatment program; when her counselor called mother’s home, she was told that mother was sleeping. DCFS determined that child was at “Very High” risk of abuse due to mother’s substance and alcohol abuse issues, her failure to comply with case plans with respect to her other children, and her history of domestic violence. DCFS reported that mother’s social worker was concerned with “mother’s arrogant attitude regarding receiving treatment for her long history of substance abuse” and her hostility toward DCFS. DCFS further reported that mother recently had started living with a man, S.B. (father), who was on parole and had an extensive criminal record and history of substance abuse.
Father is not a party to this appeal.
On June 22, 2006, DCFS filed a non-detained petition pursuant to section 300 and requested that the juvenile court order mother to participate in family maintenance services. On June 29, 2006, the juvenile court ordered child detained, placed child with mother, and ordered DCFS to provide mother with family maintenance services. Mother was ordered to submit to “random, witnessed, on demand, consecutive drug testing” as a condition of keeping child in her home. That same day, the juvenile court also terminated mother’s parental rights with respect to her three older children.
B. Jurisdiction/Disposition
On August 2, 2006, DCFS filed an ex parte application for an order detaining child from mother’s care because father had expelled mother and child from the family home. Mother agreed to have child placed in a foster home where it would be convenient to visit him daily. Mother also agreed that she would remain in her drug treatment program and drug free. The juvenile court ordered child detained and gave temporary custody of child to DCFS, with mother to receive unmonitored visits.
After an adjudication hearing on August 8, 2006, the juvenile court sustained the allegations in the petition that mother had a history of substance abuse that rendered her incapable of providing regular care for child, and that child’s siblings were dependents of the juvenile court due to mother’s substance abuse, failure to provide care and supervision, and failure to comply with her case plans. The juvenile court also found father to be child’s presumed father.
In September 2006, DCFS reported that mother continued to attend her drug rehabilitation program and to test negative for drugs. DCFS recommended that the juvenile court return child to mother’s care. After a disposition hearing on September 18, 2006, the juvenile court so ordered. The juvenile court also ordered mother to continue drug counseling and drug testing, and to attend narcotics or alcoholics anonymous meetings.
C. Additional Petitions
On November 22, 2006, DCFS filed a subsequent petition pursuant to section 342 alleging that child’s parents had a history of physical altercations, and that father had broken down mother’s door. DCFS reported that, in mid-October, father had come to mother’s house, apparently under the influence of methamphetamine, and accused mother of infidelity. When mother refused to open the door, father broke it down. According to police, father also stole mother’s car and then deliberately crashed it into another vehicle, in the mistaken belief that mother was in the other car with another man. Father was arrested on charges of assault with a deadly weapon (vehicle). A hearing to revoke father’s parole was pending. DCFS also reported that mother’s phone had been disconnected.
The juvenile court ordered child detained on the new petition and ordered child released to mother. The matter was continued to December 6, 2006 because “just as the case was called, the court was advised... that the mother may find herself incarcerated, and so there will be another petition coming in....”
On December 1, 2006, DCFS filed a supplemental petition pursuant to section 387 alleging that mother had been arrested and incarcerated on charges of robbery and possession of stolen property, that she had failed to attend her court-ordered drug rehabilitation program, and that mother had taken child to a residence where she knew that illicit drugs were being used or possessed. DCFS reported that mother had taken child to the house of a male friend (the victim) on the night of November 27, 2006, where (according to mother) someone spiked her drink with methamphetamine. Mother became angry and began to act irrationally. Mother left the victim’s house the next morning, but returned in the afternoon with another male friend who broke down the victim’s door and pointed a gun in the victim’s face. Mother went into the victim’s bedroom and stole $600 in cash. Mother had admitted to DCFS that she had taken child to the victim’s house, and that she had gone back the next day with a male friend who “went off” on the victim. Mother denied that she was involved in the assault or that she stole the victim’s money. DCFS also reported that mother had missed some days at her drug program and had missed three consecutive weekly appointments with a counselor. The juvenile court ordered child detained on the new petition and removed child from mother’s care.
In January 2007, DCFS reported that child—then eight months old—had developed multiple health problems. He was not crawling, was overly sensitive in many areas of his body, had rigidity and low mobility down one side of his body, had blisters on his penis due to poor hygiene, and suffered significant sleep disturbance issues.
At a jurisdictional hearing on January 19, 2007, the juvenile court sustained the allegations against father in the section 342 petition, and sustained the allegations against mother in the section 387 petition that mother had failed to comply with her court-ordered drug rehabilitation and testing plan and had taken child to a residence where she knew or should have known that drugs were being used or possessed. The juvenile court modified mother’s case plan to include domestic violence counseling.
D. Twelve Month Review
Mother remained incarcerated until May 9, 2007, when she was released on probation after accepting a plea bargain. She had been admitted to a residential drug treatment program on May 22, 2007 as a condition of her probation. She was receiving regular visitation with child at her treatment center. Father was incarcerated.
In June 2007, DCFS reported that child had been placed with his maternal aunt and was adjusting well. Child was receiving both physical and occupational therapy due to his health problems. DCFS recommended that mother continue to receive family reunification services. The juvenile court so ordered and granted DCFS discretion to liberalize mother’s visitation.
E. Eighteen Month Review
In September 2007, child’s older siblings were adopted. In October 2007, the juvenile court terminated its jurisdiction as to them.
On October 11, 2007, mother was expelled from her drug treatment program for inappropriate physical contact with other women and for violating the program’s rules by twice meeting with father. Up to that point, mother had been doing well. She had completed 14 parenting classes and courses entitled “Women in Recovery,” “Introduction to 12 Steps,” and “Healthy Relationships.” Mother was testing “clean,” and she had three successful supervised overnight visits with child. Mother’s counselor, however, believed that there was “‘a whole lot more going on’” with mother than she or DCFS knew about. After mother left the drug treatment program, she was no longer permitted overnight visits. Instead, she had two weekly monitored visits.
On October 22 and 26, 2007, mother failed to keep scheduled appointments at an alternative drug treatment facility. Mother claimed on October 22 that she had been kept waiting too long, and on October 26 that she was stuck in traffic. On November 9, 2007, mother enrolled in an out-patient treatment program, but mother was informed that the conditions of her probation required a residential program.
As of December 5, 2007, mother still had not enrolled in a residential treatment program, but she continued to attend her out-patient program. Mother had five clean drug tests between August 22 and October 31, 2007. Mother was unemployed and had no permanent housing.
In December 2007, DCFS reported that child was doing “‘wonderfully’” in his placement with maternal aunt. Maternal aunt told DCFS that she had bonded with child. She had cut back on her work schedule to care for child and was considering returning to school to become a registered nurse. An adoption worker had contacted maternal aunt and they had started the adoption process. Developmentally, child was “catching up appropriately” and no longer needed physical or occupational therapy.
On December 7, 2007, mother entered the Socorro residential drug treatment program, which was described as a “highly structured rehabilitation program....” Mother’s counselor reported that mother was doing “okay,” but was having “difficulty adjusting to the treatment program” and had recently started a new medication to treat depression. Mother was on the second phase of a five-phase program.
DCFS recommended that the juvenile court terminate mother’s reunification services and set a permanency planning hearing pursuant to section 366.26. Mother contested the recommendation and a hearing was set for February 2008.
Prior to the hearing, on January 29, 2008, mother was expelled from the Socorro drug treatment program for noncompliance with the program’s rules. For a period of three weeks thereafter, DCFS was unable to contact mother. When mother contacted DCFS, she said that she had been out of the L.A. County area. Mother said that she was to be readmitted to the Socorro program; a counselor at Socorro verified this, but stated that mother’s readmission was subject to several conditions. The contested 18-month review hearing was continued to April 1, 2008.
DCFS made no additional report prior to the April 1 hearing. Mother failed to appear for the hearing for reasons not disclosed by the record. Mother’s attorney requested an additional three months of reunification services, citing “bureaucratic issues” as the cause of mother’s delay in completing a drug treatment program. The juvenile court denied the request on the ground that no good cause was shown. The juvenile court stated, “At this time, neither parent is in compliance with the case plan. I see absolutely no reason to extend reunification services past the 18-month date nor could the court make the requisite finding to do so.” The juvenile court terminated mother’s reunification services and set the matter for a permanency planning hearing pursuant to section 366.26.
F. Permanency Planning and Section 388 Petition
Mother’s whereabouts were unknown for the next five months. In early September 2008, mother contacted DCFS and said she that had been incarcerated since July 11, 2008. Mother said she had been “up to no good.” Mother had been admitted to a third residential drug treatment program in August 2008, this time at the Acton Rehabilitation Center. The social worker transported child to the treatment center to visit mother on September 21, 2008. Child responded well to mother, but was unable to identify mother as someone he knew and referred several times to maternal aunt as his mommy. The social worker stated that child “completely identifie[d] maternal aunt, uncle and cousins to be his family.”
Mother told the social worker that she was “finally ready to move forward and do the work necessary,” and that she “really want[ed] [child] in her life.” Three days later, however, mother was expelled from her drug treatment program for violating her admission agreement.
In January 2009, the adoption homestudy of maternal aunt was approved. The juvenile court set the matter for a contested permanency planning hearing.
In March 2009, DCFS reported that child, who was nearing his third birthday, had been placed with maternal aunt for 22 months. Child was doing well. He called maternal aunt his mother, and maternal aunt loved child as her own and wanted to adopt him. Mother’s visitation had been sporadic. In February 2009, mother had reenrolled at the Socorro drug treatment program. DCFS recommended a permanent plan of adoption by maternal aunt.
The contested 366.26 hearing was continued to April 8, 2009. That day, prior to the hearing, mother filed a petition pursuant to section 388 requesting that the juvenile court reinstate family reunification services. Mother declared that circumstances had changed because she was “currently in a residential drug treatment program,” and that the change would be in child’s best interest because she was “committed to completing [her] drug treatment program and living a sober and stable life,” and because she felt “child should be raised by his biological mother because [she] can best provide him with the love and nurturing he needs.” Mother attached a letter from a chemical dependency worker at the Socorro program stating that mother was currently in the second phase of a five-phase program and that, generally, mother was doing well. The letter did not state when mother was expected to complete the program, but it described the program as a “long-term residential treatment modality....”
At the section 366.26 hearing, mother’s attorney noted that mother had filed her section 388 petition that morning. The juvenile court stated that the petition was not timely, that mother had failed to establish a change of circumstances, and the requested change would not be in child’s best interest. In the juvenile court’s written order denying a hearing (set forth on Judicial Council form JV-183), the juvenile court indicated that it denied the section 388 petition because mother had failed to state new evidence or a change of circumstance and that the proposed order would not be in child’s best interest.
After a contested hearing, the juvenile court terminated mother’s parental rights as to child. Mother timely filed a notice of appeal.
DISCUSSION
A. Jurisdiction to Review the Order Denying the Section 388 Petition
As noted, mother filed her petition pursuant to section 388 on April 8, 2009, the same day the juvenile court held the section 366.26 hearing. The juvenile court summarily denied the section 388 petition and entered the order terminating mother’s parental rights that same day. Mother filed her notice of appeal on April 9, 2008, identifying the order terminating her parental rights as the order appealed. The notice of appeal did not mention the section 388 petition. On appeal, mother has challenged only the order denying her section 388 petition.
DCFS argues that we lack jurisdiction to review the order denying mother’s section 388 petition because her notice of appeal identified only the order terminating her parental rights, and not the order denying her section 388 petition. The California appellate courts rejected the identical argument as long ago as 1992, in In re Jeremy W. (1992) 3 Cal.App.4th 1407 at page 1413, footnote 9. Nevertheless, as recently as 2006, the court in In re Madison W. (2006) 141 Cal.App.4th 1447 (Madison W.) noted that the same issue continued to arise “frequently.” (Id. at p. 1450.) With the express purpose of “resolv[ing] [the issue] once and for all, at least as to this court” (ibid.), the court declared, “[W]e will henceforth liberally construe a parent’s notice of appeal from an order terminating parental rights to encompass the denial of the parent’s section 388 petition, provided the trial court issued its denial during the 60-day period prior to filing the parent’s notice of appeal.” (Id. at p. 1451.) DCFS cites no authority contrary to Madison W.
It appears that the court’s declaration in Madison W., supra, 141 Cal.App.4th 1447, has not had its intended effect, for the issue still arises with surprising frequency, even though the result in Madison W. on this issue has not been questioned in any subsequent judicial opinion. We agree with the reasoning and conclusion of the court in Madison W., and we therefore liberally construe mother’s notice of appeal from the order terminating her parental rights pursuant to section 366.26. Mother’s notice of appeal would have been timely had her notice designated the order denying her section 388 petition, and DCFS has demonstrated no prejudice. (See Madison W., supra, 141 Cal.App.4th at p. 1451; In re Jeremy W., supra, 3 Cal.App.4th at p. 1413, fn. 9; see also Cal. Rules of Court, rule 8.100(a)(2) [“The notice of appeal must be liberally construed”]; In re Joshua S. (2007) 41 Cal.4th 261, 272 [“‘[I]t is, and has been, the law of this state that notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.’ [Citations.]”].) Accordingly, we have jurisdiction to review the juvenile court’s order denying mother’s section 388 petition.
B. No Abuse of Discretion Denying Section 388 Petition
“Section 388 permits ‘[a]ny parent or other person having an interest in a child who is a dependent child of the juvenile court’ to petition ‘for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court’ on 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 and shall give prior notice....’ (Id., subd. (c).) Section 388 thus gives the [juvenile] court two choices: (1) summarily deny the petition or (2) hold a hearing. [Citations.]” (In re Lesly G. (2008) 162 Cal.App.4th 904, 912; see also In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.) “[T]he court may summarily deny the motion if the petition fails to make a prima facie showing (1) of a change of circumstances or new evidence requiring a changed order, and (2) the requested change would promote the best interests of the child. [Citation.] In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. [Citation.]” (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189; see also Cal. Rules of Court, rule 5.570(d); In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
It has been said that the juvenile court’s summary denial of a section 388 petition is reviewed for an abuse of discretion (In re Angel B. (2002) 97 Cal.App.4th 454, 460), even though the petition need only state a prima facie case. We conclude that, whatever the appropriate standard of review, mother failed to make a prima facie showing either of changed circumstances or that reinstating reunification services would be in child’s best interest.
1. Changed Circumstances
The only changed circumstance identified in mother’s petition was that she was “currently in a residential drug treatment program.” But mother had enrolled in and been expelled from two residential drug treatment programs before her reunification services were terminated, and she had enrolled in and been expelled from a third residential treatment program after reunification services were terminated. In fact, the letter from the Socorro treatment program submitted by mother with her section 388 petition (in April 2009) stated that mother was in the second phase of Socorro’s five-phase program—the same phase of the same treatment program that mother had been expelled from in January 2008. Mother failed to make a prima facie showing of changed circumstances.
Mother relies on In re Jeremy W., supra, 3 Cal.App.4th 1407 and In re Hashem H. (1996) 45 Cal.App.4th 1791. Those cases do not assist her. In In re Jeremy W., the juvenile court found that the mother was in compliance with her case plan and was “markedly improved.” The juvenile court in that case nevertheless terminated reunification services solely because the mother did not have stable living accommodations. (In re Jeremy W., supra, 3 Cal.App.4th at p. 1415.) Four months later (id. at p. 1412), the mother filed a section 388 petition, supported by evidence that she had maintained an apartment adequate for the family’s needs for four months. (Id. at p. 1416.) The appellate court held that the juvenile court erred by summarily denying the petition, as the mother had submitted evidence that the sole circumstance justifying the termination of reunification services had been eliminated. (Ibid.)
In contrast, in this case, mother had not submitted evidence that she had made any more progress toward alleviating her drug problem at the time of her section 388 petition—one year after reunification services were terminated—than she had made four months prior to the termination of reunification services. To the contrary, mother’s “progress” had only reached exactly the same stage of the same drug treatment program that she was in fifteen months earlier, before reunification services were terminated. Mother offered no evidence to establish that she would be any more successful in this program than she had been in the three prior residential programs she failed to complete. (See In re Angel B., supra, 97 Cal.App.4th at p. 462 [distinguishing In re Jeremy W.]; In re Anthony W. (2001) 87 Cal.App.4th 246, 250-251 [same]; In re Zachary G., supra, 77 Cal.App.4th at p. 807 [same].)
Similarly, in In re Hashem H., supra, 45 Cal.App.4th 1791, the child had been detained because the mother’s mental and emotional problems rendered her unable to regularly care for the child. (Id. at p. 1793.) As the case progressed, mother regularly attended therapy and improved to the point where DCFS recommended a 60-day visit between mother and child. The juvenile court did not adopt the recommendation, and instead implemented a plan of long-term foster care. (Id. at pp. 1795-1796.) The mother continued her therapy for several more months before she filed a section 388 petition to have the child placed with her. The mother supported her petition with a letter from her psychotherapist explaining mother’s progress in therapy, opining that mother was able to care for her child, and recommending that mother receive custody. (Id. at pp. 1796, 1798.) The appellate court held that the juvenile court erred in summarily denying the petition because the mother had submitted evidence “that [her] mental and emotional problems which led to the removal of [the child] from her home had been successfully resolved through therapy.” (Id. at p. 1799.) In this case, mother submitted no evidence that her drug problems were resolved. Rather, she submitted evidence only that she was in the early stages of the same sort of treatment program that she had failed to complete three times before. (See In re Angel B., supra, 97 Cal.App.4th at p. 462 [distinguishing In re Hashem H.]; In re Anthony W., supra, 87 Cal.App.4th at p. 251, fn. 4 [same]; In re Zachary G., supra, 77 Cal.App.4th at pp. 807-808 [same].)
2. Child’s Best Interests
Mother declared that reinstating reunification services would be in child’s best interests because she was “committed to completing [her] drug treatment program and living a sober and stable life.” But there is evidence that mother had said essentially the same thing to DCFS in September 2008, after mother had enrolled at the Acton Rehabilitation Center. Three days later, mother was expelled from the program. Moreover, mother filed her section 388 petition after she had received nearly two years of reunification services and almost three years after these proceedings commenced. Yet mother was still at an early stage of a “long-term” residential drug treatment program, and her visitation with child was sporadic and monitored. Child did not recognize mother as someone he knew. On the other hand, child had bonded with his prospective adoptive family, having lived with them for most of his life.
“After the termination of reunification services, a parent’s interest in the care, custody and companionship of the child is no longer paramount. [Citation.] Rather, at this point, the focus shifts to the needs of the child for permanency and stability. [Citation.] In fact, there is a rebuttable presumption that continued foster care is in the best interest of the child [citation]; such presumption obviously applies with even greater strength when the permanent plan is adoption rather than foster care.” (In re Angel B., supra, 97 Cal.App.4th at p. 464 [affirming summary denial of hearing]; see also In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Marilyn H., supra, 5 Cal.4th at p. 309.) “To rebut that presumption, a parent must make some factual showing that the best interests of the child would be served by modification.” (In re Angel B., supra, 97 Cal.App.4th at p. 465.) Mother made no such showing in this case. Accordingly, the juvenile court had justification for concluding that mother had not stated a prima facie case in her petition.
Because we affirm on the grounds stated, we need not address the parties’ arguments regarding the timeliness of mother’s petition.
DISPOSITION
The order is affirmed.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.