Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. CK64112, Robert Stevenson, Juvenile Court Referee.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Frank J. DaVanzo, Principal Deputy County Counsel, for Plaintiff and Respondent.
Johanna N. (mother) appeals from the juvenile court’s summary denial of her Welfare and Institutions Code section 388 petition. We affirm.
All further statutory references are to the Welfare and Institutions Code.
SUZUKAWA, J.
FACTUAL AND PROCEDURAL BACKGROUND
On May 26, 2006, the Child Abuse Hotline, operated by the Department of Children and Family Services (the Department), received a referral. The caller reported seeing a woman standing in line at the Department of Public Social Services office with a small child. The woman threw the child to the floor, cursed at her, and twisted the child’s arm when she attempted to get away. The caller said the child needed a bath and clean clothes. A later investigation revealed that the woman was mother and the child was her 15-month-old daughter, E. N.
That same day, children’s social worker (CSW) Rathmony Chung went to mother’s home to investigate the complaint, but no one was there. Chung was able to reach mother by telephone. She asked mother to return home so that they could discuss the allegations. Mother hung up the phone.
On June 5, two new referrals were made to the Hotline. Each caller said that E. N. was a victim of physical abuse and general neglect. One caller alleged that on June 4, mother punched her daughter twice in the stomach with a closed fist. The caller reported that mother cursed E. N. and that the child cried constantly at night on a regular basis. One caller said that “mother is on drugs.” According to both callers, E. N. was forced to remain in soiled diapers, and mother’s house was piled with dirty clothes and infested with roaches.
On June 5, CSW Marta Franz-Moe went to mother’s home, but she and her child were not there. However, the maternal grandmother, Ana N., mother’s landlord, and a woman who wanted to remain anonymous were at the location. Franz-Moe learned that mother was renting a room in the home. She looked into mother’s room and saw bags of clothes and food piled on the floor and cockroaches crawling on the bags and the walls. The anonymous woman said that she often heard mother hitting and cursing E. N. As the CSW was speaking to the women, an officer from the Huntington Park Police Department arrived.
Ana told Franz-Moe and the officer that she was afraid of mother. She said that at the end of April, mother had kicked E. N. in the leg, causing the child to fall. Mother then grabbed her by the hair, dragged her across the living room, and threw her on a bed. Ana reported seeing mother strike E. N. on the buttocks with an open hand at least twice a day. Mother had told Ana on another occasion that she struck E. N. on the buttocks and stomach so that there would be no signs of bruising. Ana said that during the early morning hours of June 5, she was awakened by the sound of mother punching E. N. in the stomach.
On June 6, Franz-Moe returned to the home. Mother and E. N. were at the location. Franz-Moe noted that mother’s room was still cluttered with bags of clothes, trash, and food. Franz-Moe had arranged for a medical appointment for E. N., and she took mother and the child to the clinic. A doctor examined E. N. and concluded that she was healthy and did not appear to be a battered child.
After the appointment, mother submitted to a drug test. The results returned positive for cannabinoids. Mother was told she had to submit to random drug testing, and was provided with testing instructions and bus tokens to get to the clinic.
Between June 8 and June 21, several visits were made to mother’s home. During the one scheduled visit, the room was clean. During the unannounced visits, the room was cluttered with trash, food, and other debris. Mother was told that the environment was not appropriate for a child. On one occasion, while CSW Chung was speaking with mother, E. N. touched mother’s makeup. Mother responded by cursing at her daughter, and Chung admonished her.
On the June 21 visit, the room was extremely dirty. In addition to the aforementioned clutter on the floor, E. N. was lying on a bed with filthy bedding, piles of trash, and a bottle of Advil. Mother explained that the room was in its current condition because she was getting ready to move. After further inquiry, the CSWs determined that mother had no source of funds that would allow her to move. Mother reported that she had not begun drug testing because she had lost the phone number she was supposed to call. She also did not take E. N. to a scheduled doctor’s appointment.
On June 22, E. N. was detained by the Department. A medical examination revealed that she had “a faint purple bruise under [her] right eye and a green bruise on [her] forehead.”
During an interview with Franz-Moe, mother denied physically abusing E. N. Although mother could not explain the bruise under the child’s eye, she called the allegations “all a lie.” She denied using drugs on a regular basis, claiming she had been clean since becoming pregnant with E. N. Mother said she knew the Advil bottle was on the bed with E. N. because she supervised her baby. When asked about the cursing and angry outbursts directed at E. N., mother denied that they constituted emotional abuse.
On June 27, 2006, the Department filed a petition alleging that E. N. had suffered serious physical harm (§ 300, subd. (a)), and mother had failed to protect her by maintaining a home with unsanitary conditions and using drugs (§ 300, subd. (b)). At the detention hearing, mother denied the allegations. The court found that a prima facie case had been established and ordered E. N. placed with the Department. Mother was advised that the court might limit reunification services to six months due to E. N.’s age. Mother was ordered to participate in drug rehabilitation, including weekly testing, parenting classes, and individual counseling. She was granted one-hour monitored visits three times a week.
In the report for the July 18, 2006 disposition hearing, the Department stated that E. N. was doing well in her foster home. The report noted that on July 12, CSW Ofelia Soto interviewed mother regarding the allegations. Mother appeared to have difficulty maintaining a clear train of thought. On five occasions during the interview, Soto had to stop mother from raving about how CSW Franz-Moe had lied and ruined mother’s life, in an attempt to get mother to focus on the question at hand. Mother denied ever striking E. N. or causing her any pain. However, mother acknowledged that she had tested positive for the use of drugs. As to the allegation that the room she shared with E. N. was filthy, she said that although the house was dirty, her individual room was clean.
On August 23, 2006, the court sustained the allegations in the petition. Mother was ordered to enroll in drug counseling and submit to testing. The court told mother that if she missed one test or tested dirty, she had to enroll in a drug program. She also was ordered to enroll in individual counseling to address case issues and her drug use. The case was continued to February 21, 2007.
On October 23, 2006, mother filed a section 388 petition seeking the return of E. N. to her custody. The petition was summarily denied.
She does not appeal this ruling.
In the report prepared for the February 21, 2007 status review hearing, the Department informed the court that mother had enrolled in a drug counseling program on June 29, 2006. As of July 28, she had missed five of the seven scheduled sessions. On August 21, mother was terminated from the program for noncompliance. On September 22, mother enrolled in another program, but as of October 5, she had failed to attend any classes. Due to mother’s constant failure to appear for her drug counseling sessions, CSW Franz-Moe arranged to monitor mother’s drug testing. Although the CSW gave mother instructions on how to complete testing, mother did not test once. After mother consistently missed her tests, Franz-Moe referred her to a drug program. An appointment was made for mother, but she failed to show up.
One CSW believed mother was continuing to use marijuana. During a home visit, the CSW saw “joints” and the remnants of smoked marijuana and smelled a “very noticeable” odor of marijuana. When confronted by the CSW, mother said the remains in the ashtray were “just cigarettes.”
Mother was provided with referrals for parenting classes and individual counseling. She did not enroll in any of the programs. When mother was asked about her failure to enroll, she became defensive and said she did not “need to do any of this[.] [I]t’s bulls**t.”
Mother had scheduled visits with E. N. twice a week for two hours. She was either late to the visits or failed to show up at all. She was warned that she had a 20-minute grace period after which the visit would be cancelled. On the days she appeared for visits, she was always late. On one occasion, when mother refused to leave the Department office, police were called to escort her off the premises.
During the visits mother had with E. N., she cursed around the child and became defensive when counseled about her behavior. E. N. appeared happy to see mother. Mother was observed to be attentive to the child during the early part of the visits, but she lost interest in interacting with E. N. toward the end.
In a report filed just prior to the February 21 hearing, the Department informed the court that during two of the last four visits, mother had to be escorted off the site by security. Mother was observed yelling and cursing in the lobby of the Department’s office, in front of children. On February 6, mother got into an argument with the mother of a child who lives in the same home as E. N. When mother began yelling, the CSW asked mother to leave. When mother continued to yell and curse, security was summoned, and she was escorted out of the office. On February 13, the visit had to be canceled due to mother’s erratic behavior. Mother began cursing at E. N.’s care provider and accused her of not letting mother speak to E. N. on the telephone. When the care provider tried to explain that E. N. is asleep when mother calls at nine or ten at night, Mother yelled that was “bulls**t.” She continued to yell and curse in front of other parents and children. Once again, security was called.
The care provider told the CSW that mother calls the home seven or eight times a day, often after E. N. is asleep. When the care provider tells mother the child is asleep, mother threatens her, once proclaiming that she was “‘going to kick her ass.’” The current care provider was E. N.’s fourth since June 22. The child had to be moved due to “mother’s erratic behavior and non-compliance.” The Department’s attorney told the court that mother had threatened previous care providers.
The Department recommended that the court terminate family reunification services, reduce the number of mother’s visits, and set the matter for a section 366.26 hearing. It had located a prospective adoptive parent for E. N., a long time foster mother, whose home study had been approved on January 4, 2007.
On February 21, 2007, the review hearing was set as a contested matter for the date of March 27.
Prior to the March 27 hearing, the Department reported to the court that mother was participating in a drug program requiring random testing at Joint Efforts. Mother’s primary counselor told the CSW that mother’s attendance and participation were erratic. During the times she did attend, mother had to be admonished to pay attention. She was often disruptive and distracted other clients in the group. The counselor later reported that mother had to be removed from group sessions due to her behavior. Mother’s counselor advised the CSW that on March 20, mother tested positive for amphetamines, methamphetamines, and marijuana. Mother missed two of her three visits with E. N., and was 30 minutes late to the third.
On March 27, 2007, the parties submitted on the Department’s reports. The juvenile court made the following findings based on mother’s failure to complete the ordered programs, her record of inconsistent visits with E. N., and her recent positive drug test: 1) a return of E. N. to mother’s custody would create a substantial risk of detriment to the child; 2) mother had not made sufficient progress toward ameliorating the problems that brought E. N. to the Department’s attention; and 3) there was no substantial probability that the child and mother would reunify by the next review period. The court terminated reunification services and set a July 24 date for a permanency planning hearing pursuant to section 366.26. Mother was granted monitored visits.
In its report to the court for the section 366.26 hearing, the Department informed the court that mother’s attendance at her scheduled visits with E. N. “continues to be sporadic.” During the visits she attended, mother interacted little with E. N., choosing instead to read a book or magazine. The social worker had to constantly remind mother that she was there to interact with her daughter.
The section 366.26 hearing was continued to September 5, 2007. On September 4, mother filed a section 388 petition. Mother claimed that she had completed a parenting program and had been enrolled in a drug program since June 18. She provided a letter from the Boyle Heights Recovery Center that stated she had submitted negative drug tests, with the last being on September 4. She asserted that she had “visited her daughter on each occasion she was permitted to do so by the Department.” Mother asked the court to reinstate reunification services, to give her custody of E. N., and to grant unmonitored visits.
On September 5, the court, after hearing argument from counsel, summarily denied the section 388 petition. It concluded that mother’s petition had failed to adequately set forth a change of circumstances. Moreover, the court found that the petition did not provide any basis for determining that a hearing was in the best interests of the child.
The court proceeded with the section 366.26 hearing. After considering the Department’s reports and mother’s testimony, the court terminated mother’s parental rights. She does not seek review of this ruling.
DISCUSSION
Mother recognizes that she failed to address the juvenile court’s concerns during the reunification period. However, she asserts that by displaying a positive effort and attitude in her counseling sessions and completing a parenting class and two and a half months of drug treatment, she “sufficiently established a prima facie showing of changed circumstances and that the requested modification would be in [her daughter’s] best interests.”
“Under section 388, a party may petition the court 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 in the court’s previous order is in the child’s best interests. [Citations.] The petition must be liberally construed in favor of granting a hearing to consider the parent’s request. [Citations.] If the liberally construed allegations of the petition do not show changed circumstances or new evidence that the child’s best interests will be promoted by the proposed change of order, the court need not hold a hearing. [Citation.]” (In re Carl R. (2005) 128 Cal.App.4th 1051, 1071.) The trial court’s decision will not be disturbed on appeal unless its determination is arbitrary, capricious, or patently absurd. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.)
Where, as here, family reunification services have been terminated, the parent’s interest in the child is no longer the focus of the court’s concern. Instead, “the focus shifts to the needs of the child for permanency and stability.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
We conclude that mother failed to establish a prima facie case for relief. The trial court correctly observed that mother’s recognition of her drug problem came quite late in the game. She had been in the drug program for only two and a half months prior to her filing of the motion for reconsideration. In contrast, she had continued to use drugs during the period reunification services were offered, and had tested positive for drug use as recently as March of 2007. The court recognized that mother had made some progress, including completing a parenting class. We cannot say that the court’s decision that the change of circumstances was not sufficient to warrant a hearing constituted an abuse of discretion.
More importantly, the evidence established that mother’s attitude toward E. N. had not changed. Notwithstanding mother’s claim that she did not miss a visit, the Department reported that her attendance record in this regard continued to be “sporadic.” When she did appear for visits, she arrived late and was more interested in reading than in interacting with her child. The social worker had to constantly remind mother to give E. N. some attention. In addition, mother had never progressed beyond monitored visits. When we compare this scenario with the adoptive home that was waiting for E. N., the juvenile court properly concluded that mother had failed to establish that granting a hearing on the petition was in the child’s best interests.
We also note that at the conclusion of the section 366.26 hearing, the court found that mother and daughter had no significant relationship. It also was convinced that mother was unaware of E. N.’s established special needs and how to address them. Mother does not contest these findings.
On this record, even if we were to conclude that mother had established an adequate change of circumstances, there is no question that a hearing on the section 388 petition was not in E. N.’s best interests.
DISPOSITION
The juvenile court’s order denying mother’s section 388 petition is affirmed.
We concur: WILLHITE, Acting P. J., MANELLA, J.