Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. CK63054 Marilyn H. Mackel, Referee.
Orren & Orren, Tyna Thall Orren, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and William D. Thetford, Principal Deputy County Counsel for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
Appellant Ch. G. (mother) appeals from two orders of the juvenile court. One order denied her Welfare and Institutions Code section 388 petition, wherein she sought to modify an order terminating family reuinification services provided by respondent Los Angeles Department of Children and Family Services (DCFS). The other order terminated her parental rights with respect to two children. We affirm.
All future statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Children’s Lives Prior to the Dependency Petition
Mother and K.G. (father) were married in 1992 and had two children: C.G. (older daughter), born in 1994, and S.G. (younger daughter), born in 1997. The lives of the girls were affected by their parents’ lifestyle and the relationship between their parents. Both father and mother were long-time users of illegal drugs who unsuccessfully participated in drug counseling programs. Mother and father had a tumultuous relationship; they separated four times, and mother obtained three restraining orders against father.
The couple divorced in 2000. After the divorce, mother and father had joint custody of the children. By early 2006, the girls were living with father, though mother continued to have a relationship with them.
In February 2006, DCFS received a referral alleging that father was using illegal drugs and neglecting the children. DCFS investigated and confirmed the allegations. Father tested positive for illegal drugs three times. The children were frequently left unsupervised, often did not have clean clothes to wear, and lived in a dirty home. Older daughter informed a DCFS case worker that mother used illegal drugs and that is why she and her sister lived with father. Both girls reported finding drug paraphernalia at her mother’s home.
2. The Filing of the Dependency Petition and the Detention of the Children
On April 18, 2006, DCFS filed a dependency petition and the juvenile court held a hearing on the petition. DCFS claimed that the court had jurisdiction over both girls pursuant to section 300, subdivision (b). Mother and father, DCFS alleged, were substance abusers and were incapable of providing regular care for the children. DCFS further alleged that the parents’ substance abuse and father’s neglect endangered the children’s physical and emotional health and safety and placed them at risk of serious harm.
The court found that there was a prima facie case for sustaining the petition and detaining the children. DCFS was ordered to provide the parents with family reuinification services, counseling, and random drug and alcohol testing. The court also advised the parents that the time for reuinification with children was 12 months from that day. The children were placed in the care of D.W., father’s cousin (cousin). Mother and father, however, were given the right to make DCFS-monitored visits with the children.
3. Mother Fails To Comply with DCFS Case Plan and Fails Keep In Contact With the Children
On June 7, 2006, the court sustained DCFS’s petition, declared the children dependents of the court, and removed the children from the parents’ physical custody. The court again ordered DCFS to provide the parents with family reuinification services. Both parents were ordered to complete parenting and drug rehabilitation programs, individual counseling, and random drug testing. The parents were again given monitored visitation rights.
Mother and father both failed to comply with the case plan for family reuinification developed by DCFS. They did not make themselves available for monthly visits by DCFS case workers, nor did they complete the required counseling and parenting and drug programs. They repeatedly failed to appear at drug tests. From April 2006, when the children were placed with cousin, to June 6, 2007, when the court held a hearing to determine whether to end family reuinification services, mother had no telephone contact with the children and only visited them twice in October, 2006.
In the meantime, the children were thriving in cousin’s care. Cousin and her husband had known the children since their birth and had provided part-time care for them throughout the children’s lives. Cousin and her husband had been married for 30 years and had four biological children of their own; three adults and one adolescent. Cousin worked part-time at her husband’s dental office; she spent most of her time taking care of her family’s needs. The girls reported to DCFS that they felt safe and happy living with cousin. Cousin and her husband, in turn, stated that they wished to adopt the children.
4. The Termination of Family Reuinification Services
On June 6, 2007, the court found that mother and father were not in compliance with the case plan and that DCFS made reasonable efforts to enable the children to safely return to the parents. The court ordered that family reuinification services be terminated. The court further found that adoption was the goal of the proceedings.
5. The December 5, 2007 Section 366.26 Hearing
On December 5, 2007, the court held a hearing pursuant to section 366.26 (26 Hearing) regarding the termination of mother’s and father’s parental rights and a permanent plan for the children. At the hearing, older daughter, who was 13, consented to the termination of mother’s and father’s parental rights and her adoption by cousin and cousin’s husband. Younger daughter, who was 10, initially stated that she wanted to be adopted. When asked again, however, she began to cry and said that she “sort of” wanted to be adopted. Younger daughter explained: “I don’t want my mom to feel bad.”
Mother testified that she had not seen the children in the previous sixty days because she was living in a residential treatment facility for her substance abuse problem. Before then, mother stated, she was “out of the picture” because it was “too painful” to see the children.
The court accepted into evidence and considered a DCFS report dated December 5, 2007. The report stated that the children were still “thriving” in cousin’s care. The report further stated that cousin was meeting the children’s “physical, emotional and medical needs.” The court continued the 26 Hearing to January 31, 2008, in order to allow father’s newly-appointed counsel an opportunity to contact father. Counsel for all parties waived the appearance of both children on January 31, 2008.
6. Mother’s Section 388 Petition
On January 31, 2008, prior to the 26 Hearing, mother filed a petition pursuant to section 388 requesting that the court (1) take the 26 Hearing off calendar, or postpone it; and (2) reinstate mother’s family reunification services, “so that Mother can continue to comply with the Court’s original orders, and work towards regaining custody of her children.” The petition alleged: “Mother is now in compliance with all her Court-ordered programs. She resides in a residential treatment center that provides housing for addicted women. The program offers drug treatment and counseling, random drug testing, parenting classes, individual counseling, all of which are the Court’s orders, as well as 12-step meetings, domestic violence counseling and anger management courses.”
The petition further alleged: “Both children are older, and obviously know who their mother is. Mother is now demonstrating her commitment to her sobriety as well as to her children by continuing to succeed in her comprehensive residential treatment program. Both the children and Mother, through reinstated Reunification services, deserve a chance to rebuild and repair their relationship so that the children can see their mother drug free.” Attached to the petition were letters from the residential treatment center and a “parenting specialist” stating that mother had been at the center since October 22, 2007; that she was participating in parenting and drug programs; and that she had passed random drug tests.
7. The January 31, 2008 Hearing
At the beginning of the 26 Hearing on January 31, 2008, mother’s counsel asked for a ruling on mother’s section 388 petition. Before any witnesses were called, the court denied mother’s section 388 petition on the grounds the petition did not show it would be in the best interests of the children to change the June 7, 2007 order terminating reunification services. The court also noted that mother had only recently begun to comply with the case plan and that her compliance began after 18 months had passed since the filing of the dependency petition.
Although father was not given proper notice of the 26 Hearing, the court went forward with mother’s contest. Mother testified that for the past two months she spoke to the children for 10 minutes every day and visited them for three hours on Sundays. The children were happy to see mother and sat on her lap and played games with her. Mother admitted, however, that she did not know the names of the children’s teachers or therapist. Mother further testified that she apologized to the children for not visiting or calling them for many months. She explained to the court: “I didn’t want them [the children] to see me down and out.”
Mother’s counsel asked for permission to call younger daughter n as a witness. In response to the court’s request for an offer of proof, mother’s counsel stated: “. . . the court saw she [younger daughter was very upset and tearful [at the December 5, 2007 hearing;] [¶] and that I believe that could speak to the relationship that she has with her mother . . . .” The court did not allow mother to call younger daughter on three grounds: (1) younger daughter’s appearance was waived; (2) younger daughter would suffer “greater trauma” if she testified; and (3) the court and mother’s counsel had “sufficient information.”
The court received into evidence and considered a DCFS report dated January 31, 2008, which attached a letter dated January 17, 2008 from the children’s therapist, Loretta Hoffman, MA., to DCFS. Ms. Hoffman stated that she had counseled the girls for a total of 26 sessions, some joint, mostly individual, and had observed cousin with both girls. She further stated: “I have been impressed with [cousin’s] loving, warm and wise parenting skills. . . . Both girls have told me they love her a lot . . . .” Ms. Hoffman also stated: “I am very thankful that these young ladies who have experienced so much neglect, upheaval and anxiety with their biological parents have this opportunity to heal and grow to their full potential with [cousin and her husband]. When or if their natural parents establish themselves as safe and stable influences, I believe [cousin and her husband] will facilitate renewing their relationships with them.”
The court then heard closing arguments. DCFS’s counsel argued that parental rights should be terminated. The children’s counsel agreed on the grounds that adoption was in the best interest of the children. Mother’s counsel requested that mother be given another opportunity to comply with court orders, though she conceded “the children have become very bonded [to cousin] and [are] thriving in foster care.”
At the conclusion of the hearing, the court found by clear and convincing evidence that the children were adoptable and that mother did not establish a parental relationship with the children such that it would be detrimental to the children if the court terminated parental rights. The trial concluded with respect to mother’s contest. In light of improper notice to father, however, the court ordered: “court will terminate parents[’] parental rights on 2/11/08, once notice is given to the father. No further notice necessary to the mother.”
8. Termination of Mother’s Parental Rights
On February 11, 2008, the court found that father was given proper notice and terminated mother’s and father’s parental rights. Mother filed a timely notice of appeal from (1) the court’s order denying her section 388 petition and (2) the court’s order terminating her parental rights.
CONTENTIONS ON APPEAL
Mother contends that the juvenile court abused its discretion and denied her due process of law in “summarily” denying her section 388 petition. She further contends that because a hearing under section 388 was improperly denied, the subsequent order terminating her parental rights must be vacated. The termination order should also be vacated, mother argues, because the juvenile court abused its discretion in denying her request to call younger daughter as a witness at the February 11, 2008 hearing.
DISCUSSION
1. The Juvenile Court Did Not Abuse Its Discretion By Summarily Denying Mother’s Section 388 Petition
“After the termination of reuinification services, the parents’ interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point ‘the focus shifts to the needs of the child for permanency and stability’ [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child.” (In re Stephanie M. (1994) 7 Cal.4th 295, 317; see also In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.)
Mother sought to modify the order terminating family reuinification services pursuant to a section 388 petition. Section 388, subdivision (a), allows any parent in a dependency action, “upon grounds of change of circumstance or new evidence,” to petition the court for a hearing “to change, modify, or set aside any order of court previously made[.]” The petition must be verified and “shall set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order[.]” (§ 388, subd. (a).) We review mother’s contention that she should have been granted an evidentiary hearing on her section 388 petition under an abuse of discretion standard. (In re Angel B. (2002) 97 Cal.App.4th 454, 461.)
A parent seeking to modify an order pursuant to section 388 must make a prima facie showing to trigger the right to proceed by way of a full hearing. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) “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.” (Ibid.)
Whether a parent makes a prima facie showing entitling him or her to a hearing depends on the facts alleged in the petition, which must be liberally construed, as well as the facts established as without dispute by the court’s own file. (In re Angel B., supra, 97 Cal.App.4th at p. 461.) If the petition and undisputed facts “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., supra, 87 Cal.App.4th at p. 250; see also In re Angel B., at p. 465.)
Here, mother’s petition, the evidence attached to the petition, and the undisputed facts found in the file did not show that the resumption of family reunification services for mother was in the best interests of the children. Assuming that all of the facts mother alleged and relied upon were true, these facts merely show that after October 22, 2007, mother (1) began another effort to overcome a long-standing substance abuse problem; and (2) started reestablishing a relationship with her children.
Mother’s efforts, while commendable, were unfortunately too little and too late. Mother did not allege that she finally overcame her substance abuse problem or when, if ever, she would be capable of taking care of the children. She also did not allege that the children did not bond with their foster parents or that the foster parents were not taking good care of the children’s emotional, medical, educational and other needs. The petition therefore did not overcome the presumption that the stability of the placement of the children in foster care was in their best interests, particularly because the placement was leading to adoption by the long-term caretakers. (In re Angel B., supra, 97 Cal.App.4th at p. 465.) Accordingly, the juvenile court did not abuse its discretion in denying mother’s section 388 petition without an evidentiary hearing.
2. The Juvenile Court Did Not Abuse Its Discretion in Terminating Mother’s Parental Rights
Mother argues that because a hearing under section 388 was improperly denied, the subsequent termination of her parental rights must be vacated. We have, however, rejected mother’s argument with respect to the necessity of a hearing on her section 388 petition. A fortiori, mother’s argument that the subsequent termination of her parental rights should be vacated, must also be rejected.
Mother argues that the juvenile court abused its discretion in denying her request to call younger daughter as a witness at the February 11, 2008 hearing on the termination of mother’s parental rights. The record, however, does not indicate that mother clearly requested to call younger daughter as a witness at that hearing. Rather, the record indicates that mother requested to call younger daughter as a witness at the January 31, 2008 hearing. But mother concedes, as she must, that the court reasonably denied her request to call younger daughter as a witness at the January 31, 2008 hearing, because she previously waived any right to do so. Mother’s contest of the termination of her parental rights was fully tried on January 31, 2008, and all interested parties presented closing arguments at that time. At the February 11, 2008 hearing, mother did not explicitly renew her request to call younger daughter as a witness.
Even assuming mother made such a request, the juvenile court acted well within its discretion in denying it. Because younger daughter was under 12 years old, she did not have a right to prevent the termination of mother’s parental rights by objecting to it. (§ 366.26, subd. (c)(1)(B).) Further, the juvenile court already received and could consider younger daughter’s testimony regarding adoption at the December 5, 2007 hearing. At that hearing, younger daughter did not indicate that she opposed being adopted. Instead, she merely indicated that she felt “bad” for mother. There was no reason to believe that younger daughter would have changed her testimony. Moreover, the juvenile court was justifiably concerned that forcing younger daughter to provide further testimony would cause her unnecessary mental anguish. (See In re Leo M. (1993) 19 Cal.App.4th 1583, 1593.)
Finally, even assuming the juvenile court abused its discretion in denying mother’s request to call younger daughter, we cannot reverse the termination order unless we find “it reasonably probable the result would have been more favorable to the appealing party but for the error.” (In re Celine R. (2003) 31 Cal.4th 45, 60.) We cannot make such a finding here.
There was strong evidence that the girls had been living for more than 18 months in a stable and loving home environment, with caring, competent and committed prospective adoptive parents. Mother was requesting the juvenile court to stop the train toward adoption, turn it around, and send it in the opposite direction toward family reunification, based on the possibility that at some undetermined future date she would become a fit parent. The juvenile court reasonably and wisely declined mother’s request because it was not in the best interests of the children. We find that it was not reasonably probable that additional testimony by a ten-year-old child, who understandably had sympathy and love for her mother, would have changed or compelled a change in the juvenile court’s decision.
DISPOSITION
The juvenile court’s orders denying mother’s section 388 petition and terminating mother’s parental rights are affirmed.
We concur: KLEIN, P. J. CROSKEY, J.