Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County, c/w B198519, Los Angeles County Super. Ct. No. CK14978, Marilyn Mackel, Commissioner.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Frank J. Da Vanzo, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minors.
DOI TODD, J.
In these consolidated appeals, appellant Maria L. (mother) appeals the juvenile court’s denial of her two petitions for modification under section 388 of the Welfare and Institutions Code seeking visitation with her four youngest children—Chelsea L. (now age 11), Valerie L. (now age 9), Alfredo L. (now age 7) and Donovan L. (now age 5). She contends that the trial court’s denials of her petitions constituted both an abuse of discretion and a deprivation of her right to due process because the denials precluded her from establishing the beneficial relationship exception to termination of parental rights under section 366.26. We reject these contentions and affirm the orders.
All statutory references shall be to the Welfare and Institutions Code, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
This dependency case spans five years and has, accordingly, generated a large record. Given that the facts of this case are well known to the parties, we will condense our recitation of the facts to those material to the issues on appeal.
The four children at issue here first came to the attention of respondent Los Angeles County Department of Children and Family Services (the department) on October 31, 2002, when mother was arrested following a search of the family home. The search yielded a submachine gun and a gun clip loaded with 31 rounds of ammunition, a rifle, hundreds of plastic baggies of marijuana in the family refrigerator, as well as crack cocaine and methamphetamine, and hundreds of explosive devices. All of these items were readily accessible to the children. During her interview with the police, mother denied having knowledge of drugs or guns in the house and did not ask any questions about the children or express concern as to their whereabouts. Mother received a six-year prison term that was served in Chowchilla, California. Mother had previously been arrested in 1995 and imprisoned on drug charges, and at least six of her older children had been detained and declared dependents of the juvenile court as a result of her prior arrest and imprisonment.
Mother’s brief states that she has 10 children, but the record discloses that she has at least 14 children. In addition to the four children at issue, six other minor half siblings were detained on the same date. There are at least four adult half siblings.
The Adult Half Siblings
Following their detention, the children were placed with a series of relatives and eventually into foster care. One relative caregiver, who became the children’s guardian, reported that she was afraid of the children’s adult half siblings. She reported that they stole money that was to be used to care for the children, took the children on overnight visits without the court’s approval, taught the children bad habits and would not let her discipline the children. At one point the adult half siblings threatened the caregiver and her husband with guns and destroyed some of their things. She eventually requested that the guardianship be terminated because she could no longer take care of the children under the domineering and frightening circumstances created by the adult half siblings. Two of the adult half siblings were later arrested for first degree murder in an unrelated matter. Although the adult half siblings had been attending court hearings throughout the proceedings in an attempt to gain custody of the children, in July 2006 the juvenile court ordered them to stop attending, stating that they were having a deleterious impact on the court’s ability to find a permanent home for the children. The court reiterated that it would not be able to place the children with the adult half siblings due to their criminal records.
Mother’s Contact with the Children
Mother’s reunification services were terminated in July 2003. Mother had two visits with the children in 2003 while she was in prison. In July 2005, the department reported that mother called the children once or twice a month for five to ten minutes and that the children enjoyed the calls. By January 2006, the department reported that the children no longer seemed happy to receive mother’s calls, though they enjoyed letters she had written to them. In July 2006, the department reported that the children had informed their case social worker they did not like talking with mother, they did not understand why she was calling them, mother scared them and they did not want to live with mother. The children’s adoption social worker believed that telephone contact between mother and the children should be terminated because it was causing confusion and was “emotionally detrimental to the children’s well-being.” In July 2006, the court found that “familial contact has, and continues to pose, a substantial risk of harm to these children,” and ordered that there be no further contact between the children and their biological family, including mother.
The Children’s Current Placement
The children, who were deemed to be a sibling unit, were assessed as adoptable. In July 2004, they were placed together with foster parents who did not have children of their own. The foster parents initially expressed reluctance at adopting the children, stating that they were concerned about the commitment and were afraid of the children’s family. The foster parents eventually changed their minds and became “very motivated” to adopt the children. The children were reported to be closely bonded with the foster parents, who were more than able to provide for their basic needs. The children very much wanted to be adopted by the foster parents and called them “Mom and Dad.”
The First Section 388 Petition
On November 3, 2006, mother filed a section 388 petition seeking visitation with the children. She verified that she was no longer incarcerated, had a permanent residence outside of Los Angeles County, and was active in parenting classes. She believed it was in the children’s best interest to see her outside of a prison setting and for the children to become reacquainted with her after a two-year absence. The court set the matter for hearing on December 20, 2006.
In preparation for the hearing, the department interviewed the children. The older two girls stated they did not want to see mother and did not want her to call them. The younger two boys were unable to express their desires. The foster mother described the children as being nervous when asked about mother and of still having memories of the police searching mother’s house. The social worker believed that it would not be in the children’s best interest to have any contact with mother because they had no bond with mother, they had repeatedly expressed their desire not to have any contact with mother, they were stable in their current placement and contact with mother would create instability. The social worker also reported that an adoptive home study of the children’s foster parents had been approved and the children continued to express their desire to be adopted by their foster family.
At the hearing on the petition, mother’s attorney stated that mother desired to have her older children visit with the children as well, and that she eventually wanted the children returned to her care and custody. The court denied the petition, finding that visitation between mother and the children would pose a substantial risk of detriment to the children. The court declined to state “all” the reasons for denying the petition, instead “incorporate[ing] by reference the numerous hearings that the court has held on this matter concerning the extremely disruptive familial actions and contact that have included mother’s input through her children who have had contact with her.” Mother filed a notice of appeal from the order denying this petition.
The Second Section 388 Petition
Mother filed another section 388 petition on February 20, 2007, again seeking visitation with the children. Mother verified that she had complied with her case plan and believed that the children would benefit from the relationship with their “large biological family.” The court noted that mother had not attached any documentation showing compliance with the case plan, but stated that it would consider the matter. On February 26, 2007, the court summarily denied the petition, finding that mother did not provide new evidence or demonstrate a change of circumstances and that granting the petition would not be in the best interest of the children. The court further found that “mother and family’s history with [the] court and children, pose substantial detriment to [the] children and to permanency for [the] children.”
The Section 366.26 Hearing
The contested 366.26 permanency placement hearing took place on April 3, 2007. Mother testified that she had last seen the children in prison in 2004 when her daughter-in-law brought them to visit, and that her only contact with the children since that time had been through telephone calls. Mother had been incarcerated for three years and nine months and was released from custody in September 2006. She stated that her family was a close-knit family and that she believed the children would benefit from continuing their relationship with their older half siblings.
The children’s attorney informed the court that the children did not want contact with mother and that they did not identify mother as their parent. The children’s attorney believed that any contact with mother would be too stressful for the children and not in their best interest. The children’s attorney was further concerned that the confidentiality of the children’s placement would be jeopardized by the adult half siblings following the children home from visits.
On April 25, 2007, the court read into the record a letter signed by the two girls, which the court noted did not appear to have been coached. In the letter, the girls expressed their desire to be adopted by their foster parents. They also asked the court to tell mother “to leave us alone because we don’t want to be hit by people because she always treat [sic] us wrong. She hit had [sic] us with belts, sticks and some other things. Our aunts hit us the same. She hit us, that’s why we don’t want to go with her anymore.”
The court once again found that visitation between mother and the children would pose a substantial risk of harm to the children’s welfare, permanence and stability and would be contrary to their best interest. The court found the children to be adoptable by clear and convincing evidence and terminated mother’s parental rights. Mother filed a notice of appeal from the orders terminating her parental rights and denying her second section 388 petition.
DISCUSSION
Section 388Under section 388, a parent may petition the court to change, modify or set aside a previous court order. The parent has the burden of showing, by a preponderance of the evidence, there is a change of circumstances or new evidence and the proposed modification is in the child’s best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Amber M. (2002) 103 Cal.App.4th 681, 685.) “This is a difficult burden to meet in many cases, and particularly so when, as here, reunification services have been terminated or never ordered.” (In re Angel B. (2002) 97 Cal.App.4th 454, 464.)
“The petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.” (In re Jasmon O., supra, 8 Cal.4th at p. 415; In re Stephanie M. (1994) 7 Cal.4th 295, 318.) “‘The appropriate test for abuse of discretion is whether the trial court 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 Stephanie M., supra, at pp. 318–319.) “The denial of a section 388 motion rarely merits reversal as an abuse of discretion.” (In re Amber M., supra, 103 Cal.App.4th at pp. 685–686; In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)
A. Change of Circumstances
Mother contends that her release from prison and “first steps to stabilize her life” constituted a significant change of circumstances sufficient to warrant the granting of her first section 388 petition. The department disagrees and so do we. While mother’s release from prison was certainly a positive development in her life, there is nothing in the record to suggest that mother had truly changed from her prior criminal lifestyle, which had placed the children at substantial risk of harm. Indeed, after mother’s prior arrest in 1995 and incarceration, six of her other children became dependents of the juvenile court. Yet, after her release from prison following that arrest, mother resumed her highly dangerous criminal lifestyle, leading to her second incarceration and the loss of the four children at issue here. “A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child’s best interests.” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) “‘“[C]hild hood does not wait for the parent to become adequate.”’” (Ibid.)
In her second section 388 petition, filed only three months later, mother claimed that she had complied with her case plan. But mother did not submit any documentation to verify her compliance and warrant a hearing on her petition. To warrant a hearing on a section 388 petition, “[t]he petition may not be conclusory. ‘[S]pecific allegations describing the evidence constituting the proffered changed circumstances or new evidence’ is required. [Citation.] Successful petitions have included declarations or other attachments which demonstrate the showing the petitioner will make at a hearing of the change in circumstances or new evidence.” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
Accordingly, we conclude that mother failed to meet her first burden of demonstrating a change of circumstances sufficient to grant her two section 388 petitions.
B. Best Interest of the Children
We likewise conclude that mother failed to meet her second burden of demonstrating that granting her visitation with the children would be in their best interest.
Mother claims that visits with the children would benefit them because they would know that she still loved and cared about them. But it is undisputed that the children did not wish to have any contact with mother. Mother attributes their desire not to see her to their fears that she would take them away from their foster parents. She argues that such fears could be alleviated by having the visits take place at the department’s offices or in a therapeutic setting. But by this point the children had already been in at least five different placements in four years and had finally found stability and permanency with foster parents who were motivated to adopt them. After the termination of reunification services, the focus of dependency proceedings “‘shifts to the needs of the child for permanency and stability.’” (In re Stephanie M., supra, 7 Cal.4th at p. 317.) In the four months between the filing of mother’s first section 388 petition on November 20, 2006 and the section 366.26 hearing on April 3, 2007, the children’s interest in severing their ties with mother and establishing permanence and stability with the prospective adoptive family far outweighed mother’s interest in reestablishing a parental relationship.
Mother claims it was unfair for the juvenile court to join her together with the adult half siblings when ordering that all contact between the children and their biological family be terminated. But the adult half siblings’ disruptive behavior and negative influence in the children’s lives had been well documented and it was undisputed that they had already caused one of the children’s placements to fail. The court was understandably concerned that the adult half siblings would derail the children’s placement in their stable and permanent home with foster parents who were willing to adopt all four of them. Though mother states on appeal that she would be willing to have visits alone with the children, she made it clear below that the basis for her petitions was that she wanted the children to maintain a relationship with their “large biological family.”
Mother claims her case is similar to In re Hunter S. (2006) 142 Cal.App.4th 1497, but her reliance on that case is misplaced. There, five-year-old Hunter was removed from his mother’s custody and returned to her six months later. A month later he was removed again when his mother was incarcerated. (Id. at p. 1501.) The mother maintained her “‘loving close relationship’” with Hunter by monthly letters. (Ibid.) The same month the mother was released from prison, the court terminated her reunification services and set a section 366.26 hearing. (In re Hunter S., supra, at p. 1501.) The court also ordered the department to arrange visitation, but Hunter steadfastly refused to visit his mother or have any contact with her. (Id. at pp. 1501–1502.) For more than two years, the mother persisted in her efforts to get the court to enforce its visitation order and to order conjoint therapy. Although the court never made a finding that continued visitation would be detrimental to Hunter, it neither rescinded nor enforced its orders, conditioning visitation and conjoint therapy on Hunter’s willingness to participate and his therapist’s approval. (Id. at pp. 1502–1503.) When the mother brought a section 388 petition seeking reinstatement of reunification services, the court denied it and later terminated her parental rights. The appellate court reversed, finding the juvenile court erred by not enforcing its orders and by delegating discretion whether visitation and therapy occurred to Hunter and his therapist. (In re Hunter S., supra, at pp. 1505–1508.) The failure of the juvenile court to enforce its visitation order prejudiced the mother by effectively precluding her, “through no fault of her own,” from establishing the beneficial relationship exception to termination of parental rights under section 366.26, subdivision (c)(1)(A), which requires a showing of consistent contact and visitation. (In re Hunter S., supra, at p. 1508.)
In contrast, the juvenile court here terminated mother’s contact with the children based on its express finding that such contact would be detrimental to the children. Unlike in Hunter, there was no visitation order to be enforced because the juvenile court denied visitation as being against the children’s best interest. Thus, mother’s lack of a parental relationship or bond with the children was not due to any failure by the juvenile court to enforce an order.
Furthermore, the record here does not establish that mother had a warm, loving relationship with the children. To the contrary, the two girls, who were aged six and four when mother was incarcerated, submitted a letter to the juvenile court at the section 366.26 hearing stating that mother had physically abused them. The two boys were only two years old and three months old when removed from mother and therefore too young to have much memory of mother or their relationship with her. The children had been out of mother’s custody for more than four years and had been with their prospective adoptive family for more than two years. The children were finally in a stable situation where they felt safe and loved with the people they called “Mom and Dad.” There is no reason to believe, and no evidence to support, that continued visitation with mother would have been in the children’s best interest.
In sum, we conclude that the juvenile court did not abuse its discretion in denying mother’s section 388 petitions. We therefore likewise conclude that the juvenile court did not abuse its discretion by terminating mother’s parental rights after denying her section 388 petitions. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449 [reviewing the juvenile court’s decision whether to apply the parental relationship exception to termination of parental rights for abuse of discretion].)
DISPOSITION
The orders denying mother’s section 388 petitions and terminating her parental rights are affirmed.
We concur: BOREN, P. J., ASHMANN-GERST, J.