Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. EJ2192B, Gary M. Bubis, Judge.
McConnell, P. J.
W.E., mother of dependent minor Cody E., appeals a juvenile court order summarily denying her Welfare and Institutions Code section 388 petition for modification in which she sought reunification services previously denied to her under section 361.5, subdivision (b)(13). W.E. contends she made a prima facie showing her circumstances had changed and the proposed modification was in Cody's best interests. We affirm the order.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2008 the San Diego County Health and Human Services Agency (Agency) filed a petition in the juvenile court on behalf of 19-month-old Cody under section 300 subdivision (b) alleging W.E. abused drugs, had a history of parental neglect and drug abuse involving Cody's sister Ashley, was hospitalized due to a psychiatric episode, and was charged with several felonies. Ashley had been a dependent of the juvenile court two other times—from 2002 to 2004, and from 2006 to 2008—due to W.E.'s drug abuse. W.E. received services during both dependencies and was able to reunify with Ashley. However, shortly after the court terminated jurisdiction in Ashley's second dependency, W.E. relapsed into methamphetamine and alcohol use. She admitted she had been using drugs since she was 13 years old.
An allegation under section 300, subdivision (g) was later dismissed.
Ashley is not a subject of this appeal.
The court sustained the allegations of the petition filed on behalf of Cody, declared him a dependent, removed him from W.E.'s custody and placed him in foster care. The court ordered reunification services for Cody's father, but denied services for W.E. under section 361.5, subdivision (b)(13) based on her lengthy history of drug abuse and "exceptionally serious relapse." W.E. appealed, and in an unpublished opinion, we affirmed the court's order denying W.E. services. (In re Cody E. (April 29, 2009, D054035) [nonpub. opn.].)
According to a six-month review report, W.E. entered CRASH, a residential drug treatment program, in December 2008. This was her fourth time at CRASH. Cody was living with Ashley in foster care and was brought to CRASH for visits with W.E. During visits, W.E. was attentive to her children, but struggled with age-appropriate activities for them. The social worker believed W.E. had "limited ability to sustain treatment gains outside the confines of Agency supervision or the structure of treatment programs."
On April 1, 2009, W.E. filed a section 388 petition, seeking to modify the court's order denying her reunification services. The petition alleged W.E.'s circumstances had changed because she had been clean and sober since July 10, 2008, she had participated in CRASH and she had completed a court-approved parent education class. The petition further alleged the proposed modification was in Cody's best interests because W.E. had regularly visited Cody and maintained a strong relationship with him and Cody knew and loved his mother. Attached to the petition were several documents: (1) a certificate of completion for the parent education class; (2) a letter from the program director at Vista Hill stating W.E. completed drug treatment from May 11 to December 12, 2007; (3) proof of W.E.'s attendance at Narcotics Anonymous/Alcoholics Anonymous (NA/AA) meetings from January through March 2009; (4) four receipts showing W.E. submitted to drug tests in March 2009; and (5) a certificate of participation in a career development class.
Agency opposed W.E.'s request for reunification services. In an addendum report, the social worker noted W.E. took 104 days to complete CRASH's 60- to 90-day treatment program. This was her fourth time attending CRASH and she had previously graduated from two other drug treatment programs: Vista Hill in 2008 and KIVA in 2003. During the time W.E. attended NA meetings, she had three different sponsors.
The social worker also reported that W.E. was having weekly supervised visits with Cody. She greeted him with appropriate affection, but did not inquire about his well-being, and appeared to have limited insight into his needs. W.E. interfered with Cody's ability to transition easily following visits.
Attached to the addendum report was a letter from Joe Alexander, program coordinator for CRASH, discussing W.E.'s positive participation in the program, and stating W.E. was using skills she learned to remain clean and sober. Alexander believed W.E. "has made a decision to make major permanent changes in her life." He stated W.E. moved into a sober living facility, attends 12-Step meetings several times a week and attends meetings and counseling at CRASH.
W.E. wrote the court a letter asking for services, explaining how she was making changes within herself in order to "break the cycle" because she did not want to lose her children. She also submitted a poem she wrote on behalf of Cody and Ashley. The court received a letter verifying W.E. was a resident at Safe House Sober Living and was doing well there.
On April 8, 2009, the court indicated it had read and considered Cody's and Ashley's dependency files. After hearing argument of counsel, the court found W.E. had not made a prima facie showing and summarily denied her section 388 modification petition.
DISCUSSION
A
A party may petition the court under section 388 to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there is a change of circumstances or new evidence, and (2) the proposed change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The petition must be liberally construed in favor of its sufficiency. (Cal. Rules of Court, rule 5.570(a); In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (In re Marilyn H., supra, at p. 310.) " '[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.' [Citation.]" (In re Jasmon O., supra, 8 Cal.4th at p. 415; see also In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.) "However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] 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." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189.)
B
W.E. petitioned the court for reunification services that were previously denied at disposition based on her lengthy history of drug abuse and her latest serious relapse. W.E.'s petition alleged her circumstances had changed because she had been clean and sober for nine months, she participated in CRASH and she completed classes in parent education and career development. In support of this allegation, W.E. relied on a letter from CRASH's program coordinator stating W.E. had taken steps to remain clean and sober, and she had "made a decision to make major permanent changes in her life." W.E. also submitted documentation that she had successfully completed drug treatment in 2007, she was currently attending NA meetings and she had drug tested four times. However, W.E.'s petition and attachments show, at most, her circumstances were "changing," but had not changed. A petition that alleges changing circumstances does not promote a child's best interests or stability for the child because it would mean delaying a permanent plan to determine whether a parent who has not reunified with the child might be able to reunify at some future time. (In re Casey D., supra, 70 Cal.App.4th at p. 47.) "Childhood does not wait for the parent to become adequate." (In re Marilyn H., supra, 5 Cal.4th at p. 310.)
W.E.'s commendable sobriety has been too brief when compared to her 16-year history of drug use, her rehabilitation attempts and eventual relapses. W.E. had twice completed services in Ashley's dependency cases, including more than four years of drug treatment, but had been unable to use the skills she was taught to remain clean and sober. As the social worker noted, W.E. had a limited ability to sustain treatment gains outside the confines of Agency supervision or the structure of treatment programs. On this record, the juvenile court could reasonably find the uncertainty surrounding W.E.'s recent sobriety supported a finding that her changing circumstances were not legally sufficient to warrant a hearing on her section 388 petition. (In re Angel B. (2002) 97 Cal.App.4th 454, 465; see also In re Kimberly F. (1997) 56 Cal.App.4th 519, 531; cf. In re Aljamie D. (2000) 84 Cal.App.4th 424, 432 [mother made prima facie showing of changed circumstances where she completed entire case plan, had two years of documented sobriety and unsupervised visits with her children, who wanted to live with her].)
W.E.'s argument she had successfully reunified with Ashley in previous cases does not aid her position. Those reunifications were short-lived and ultimately unsuccessful.
C
Even had W.E. made a prima facie showing of changed circumstances, her petition did not show the proposed modification was in Cody's best interests. The Legislature has determined that an attempt to facilitate reunification between a parent and child generally is not in the child's best interests when the parent is a chronic drug abuser who has resisted prior treatment. (In re Levi U. (2000) 78 Cal.App.4th 191, 199-200.) The parent's high risk of relapse into drug use puts his or her interest in reunifying with the child directly at odds with the child's compelling right to a " 'placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.' " (In re William B. (2008) 163 Cal.App.4th 1220, 1228, quoting In re Marilyn H., supra, 5 Cal.4th at p. 306.)
Here, W.E.'s petition alleged that ordering reunification services was in Cody's best interests because he had a strong relationship with her, she regularly visited him and he knew and loved her. However, Cody was removed from W.E.'s custody when he was 19 months old. His needs were being met by his caregivers, with whom he has lived since September 2008, and his attachment was to Ashley. When W.E. visited Cody, she did not ask about his well-being, she had limited insight into his needs and she made it difficult for him to transition after visits.
Ordering services for W.E. in the uncertain hope of reunification postpones stability for Cody and is not in his best interests compared to the certainty of his placement. (See In re Angel B., supra, 97 Cal.App.4th at p. 464 [primary consideration regarding minor's best interests is goal of assuring stability and continuity].) The proper focus of this case was on Cody's need for stability, continuity and permanency, regardless of W.E.'s interest in reunification. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Brittany K. (2005) 127 Cal.App.4th 1497, 1507.) Because the liberally construed allegations would not have sustained a favorable decision on the section 388 petition, W.E. was not entitled to an evidentiary hearing. (In re Zachary G., supra, 77 Cal.App.4th at p. 806; In re Mary G. (2007) 151 Cal.App.4th 184, 205-206.)
Contrary to W.E.'s argument, there is no indication in the record that the court misunderstood the standard for granting an evidentiary hearing by placing undue emphasis on the denial of services to W.E. at disposition.
DISPOSITION
The order is affirmed.
WE CONCUR: O'ROURKE, J., AARON, J.