Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. CK25635 Stephen Marpet, Juvenile Court Referee.
Lisa A. Raneri, on appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Frederick Klink, Senior Deputy County Counsel, for Plaintiff and Respondent.
PERLUSS, P. J.
Yvette D. appeals from an order summarily denying her petition under Welfare and Institutions Code section 388 seeking, among other things, reunification services and increased visitation with her three youngest children. Yvette contends the juvenile court erred in denying her petition without an evidentiary hearing. We affirm.
Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Yvette also appealed from the order entered the same day terminating her parental rights under section 366.26, alleging she received improper notice of the hearing. After filing her initial brief, however, she withdrew that contention and has proceeded solely on the section 388 issue. There is some authority that Yvette’s failure to maintain an appeal from the section 366.26 termination order deprives us of jurisdiction to consider her appeal from the denial of the section 388 petition. (See, e.g., In re Jessica K. (2000) 79 Cal.App.4th 1313, 1316-1317.) In light of our affirmance of the juvenile court’s order denying the section 388 petition, we need not decide whether under the circumstances presented we would still have jurisdiction to vacate the termination order if we had come to a different conclusion. (See id. at p. 1317 [“[M]other was not without an appellate remedy.... [She] might have appealed from the order terminating her parental rights simply to preserve her right to appeal the denial of her section 388 petition.”].)
FACTUAL AND PROCEDURAL BACKGROUND
1. Previous Proceedings
The Los Angeles County Department of Children and Family Services (Department) first filed a section 300 dependency petition involving Yvette in 1996 after her oldest child, B.L., was detained on allegations Yvette had a history of selling drugs and had left B.L. in the care of her mother, a heroin addict. The allegations were sustained. B.L. was declared a dependent child of the juvenile court, and Yvette was provided with reunification services consisting of drug treatment/testing, parenting classes and an Alanon program. She successfully reunified with B.L., and the jurisdiction of the juvenile court was terminated in November 1997.
Yvette has a lengthy history with the Department. Proceedings through March 13, 2009 were the subject of a previous appeal of an order summarily denying her section 388 petition of that date. (See In re E.D. (Dec. 21, 2009, B215164) [nonpub. opn.].) To provide an appropriate context for our consideration of the order summarily denying Yvette’s most recent section 388 petition, we recount those facts in this appeal.
A second dependency petition was filed in October 2000 alleging Yvette, who was then on probation for drug use, continued to abuse drugs, had left her three children (B.L., D.L. and C.L.) in the care of relatives who were substance abusers and had failed to ensure B.L. attended school or C.L. had been properly immunized. The allegations of the petition were sustained, and Yvette was again provided with reunification services consisting of random drug testing and parenting classes. She was able to reunify with the children, and dependency jurisdiction was terminated in March 2003.
A third petition was filed in February 2004 concerning Yvette’s four children (B.L., then 10 years old; D.L., 7 years old; C.L., 4 years old; and E.L., then only 12 months old). The sustained allegations included serious charges of physical and emotional abuse: Four-year-old C.L. had been systematically starved by her mother and weighed 22 pounds. Yvette and other family members beat C.L. with a belt to keep her from eating and beat her siblings when they gave her food. C.L. was also locked in her room and tied up with shoelaces to prevent her from seeking food. She was forced to eat scraps from the floor or garbage and drink water from the turtle tank. At the same time, the other children were severely overweight. The house was filthy and unsanitary, and the children were dirty. Further, Yvette had forced the one-year-old to drink adult-prescription cough medicine, and he had multiple bruises on his forehead and severe diaper rash. Yvette had also abused the children emotionally, telling them she wished they had never been born and she intended to kill her unborn child.
The detention report included additional details about C.L.’s condition when she was found hiding behind a curtain in the filthy home. She appeared “starved and deathly, ” having “no affect” and “unable to speak or walk.” She was dressed in a T-shirt and underwear and was “extremely cold and shivery.” Her bones were protruding from her body; her skin was hanging from her body. She had a severe bruise across her face and others on her legs; her skin was “extremely dry and chapped”; her hair was “full of lice”; and she had two large lesions on her scalp that appeared to be insect bites. While the other children shared a bed with their mother, she slept on a dirty sheet on the hardwood floor. Although the family was well aware of C.L.’s condition, Yvette kept C.L. locked in a backroom so visitors would not see her. Although other referrals had been made to the Department, Yvette hid C.L. during the Department’s previous attempts to investigate.
This time, Yvette was not offered reunification services; and the children were ultimately placed in permanent plans consisting of legal guardianship and adoption. In March 2004, shortly after the children were detained, Yvette was arrested and charged with a violation of Penal Code section 273a, subdivision (a), for willfully causing great bodily harm to a child. She pleaded no contest and received a suspended sentence and was placed on formal probation for five years.
A fifth child, F.D., was born in June 2004. After the Department detained him, Yvette was offered no family reunification services; and parental rights were terminated in November 2005.
Yvette again came to the attention of the Department in May 2006. After delivering a baby girl, S.L., at home, she was taken with the baby to a hospital where she denied she had used drugs during her pregnancy. When she and the baby tested positive for methamphetamine, the hospital alerted the Department. During an interview with a social worker, Yvette admitted she had two other children, twin boys, E.D. and F.D., who had been born in April 2005. According to Yvette, the twins resided with their father near Sacramento.
The Department detained the baby and filed a petition on behalf of the baby and the twins alleging the children were at risk of abuse due to the parents’ substance abuse and the severe abuse and neglect their older siblings had suffered. When the alleged father and twins failed to appear for the detention hearing, the court issued protective custody warrants for the twins and an arrest warrant for the father. The father was arrested and appeared before the court but denied the twins were living with him. At the jurisdiction hearing on July 31, 2006 Yvette and the twins failed to appear. Over her counsel’s objection, the court issued a warrant for Yvette’s arrest, sustained the allegations of the petition, held a disposition hearing as to S.L., denied reunification services with S.L. pursuant to section 361.5, subdivision (b)(10), (11) and (13), and set a section 366.26 hearing to consider a permanent plan for S.L.
Yvette’s parental rights with respect to S.L. were terminated on August 28, 2007.
For the next year and a half Yvette eluded the Department, notwithstanding multiple attempts to locate her. Family members denied knowing where she or the twins could be found or claimed they did not live at the address. She was finally arrested and appeared before the court on January 25, 2008. Under questioning by the court she claimed the twins were residing in Mexico with their father. According to Yvette, the family had moved to Mexico to allow her to deliver her ninth child, R.D., in September 2007. She had returned to the United States only to assist her grandmother, and the children had remained in Mexico with the father. Based on her history of lying to the court, the inconsistencies in her story and her inability to remember the name of the hospital or where the family was living in Mexico, the court ordered her detained and scheduled a contempt hearing.
A section 300 petition was filed on behalf of R.D. in March 2008 although his whereabouts were then unknown. On March 26, 2008 the court ordered R.D. detained and issued a protective custody warrant for him pursuant to section 340.
Between January and April 2008 Yvette was detained in the county jail and twice cited for contempt for refusing to disclose the location of the children. A second warrant was issued for the alleged father, and he too was arrested and detained. Finally, on April 14, 2008 the Department was informed by the paternal grandmother the children, who had been living with a friend of Yvette’s, had been returned to her when the friend learned Yvette would be required to serve the suspended sentence on the March 2004 felony child abuse conviction. The Department immediately removed the children (E.D., F.D. and R.D.) and placed them in foster care. At a hearing on April 16, 2008 the court issued restraining orders barring the parents from having any contact with the children pending the disposition hearing set for May 15, 2008.
In one exchange the court asked Yvette, who had claimed not to know where the children were living, whether she would disclose their location if she knew where they were and she admitted she would not. Although Yvette was incarcerated on the contempt citations for several days, she was also detained because she had violated probation on the felony child abuse conviction.
The disposition report prepared for the hearing disclosed that Yvette gave birth to the twins at the paternal grandmother’s home and was taken to a local hospital where she had given a false name and had claimed to have unlawfully immigrated to the United States. The twins had been born three months prematurely and spent two months in the neonatal intensive care unit. Upon their release, Yvette was directed to take them to the regional center for services, but she never went. The foster parents reported that, although the three-year-old twins were healthy, they appeared to be developmentally delayed. Based on the history of Yvette’s drug use, her neglect of her older children and her failure to reunify with them, the Department recommended Yvette and the alleged father be denied reunification services. As the Department explained, “Both parents [have] had ample opportunity to address their substance abuse issues. The mother was provided with reunification services multiple times where she attended drug treatment programs, counseling and parenting [classes]. Even after participating in treatment, the mother continued to use drugs and place the children at-risk of harm. The mother admits that when the children’s four older siblings... were removed, she was ‘so high’... she didn’t know what was going on in the home.... [The father] also continues to have substance abuse issues as well. In fact, the mother reports that [he] wrote her a letter stating that all he is doing right now is getting high.... It seems that the parents are not able to alleviate their substance abuse problem....”
The disposition report for R.D. further discloses that, after his birth, the father became physically abusive to Yvette. Around the same time, Yvette’s mother, a heroin addict with whom Yvette and the children were then living, was convicted of attempted murder and sentenced to state prison for 13 years. Yvette began again to use methamphetamines and became unable to care for the children, who went to live with their paternal grandmother.
The disposition hearing was continued until August 25, 2008. An interim review report stated the twins had been found to have developmental delays, possibly resulting from fetal alcohol syndrome. In addition, Yvette had been found in violation of the terms of her probation and sentenced to four years in state prison. At the hearing the court denied reunification services for the parents and scheduled a permanency planning hearing under section 366.26 for December 16, 2008 for E.D., F.D. and R.D.
The permanency planning hearing had to be continued for six months because the children lacked birth certificates. The court reset the hearing for June 16, 2009. On February 20, 2009 Yvette submitted a petition under section 388 seeking reunification services, investigation of placement of the children with specified relatives, visitation for the children with those relatives and visitation with her at her place of incarceration. She based her request on the significant bond between her and the children and her significant advance in rehabilitation, which included her participation in substance abuse counseling and other rehabilitation programs during her incarceration. The court summarily denied the petition on March 13, 2009, finding (1) there had been no change of circumstances; and (2) the requested relief was “clearly... not in [the] minors’ best interest[s].” We affirmed the March 13, 2009 order. (See In re E.D., supra, B215164[, at pp. 8-10].)
2. The Instant Proceedings
The June 16, 2009 permanency planning hearing was continued because the Department failed to obtain a removal order for Yvette, who remained incarcerated. On July 30, 2009, the date of the rescheduled hearing, Yvette again did not appear. Although she had executed a waiver of her right to appear at the hearing, the juvenile court concluded the notice was potentially defective and continued the hearing to October 29, 2009.
On August 27, 2009 E.D., F.D. and R.D. were matched with a prospective adoptive family who agreed to adopt all three boys. On October 6, 2009 Yvette was released from prison on parole. She enrolled in a residential drug rehabilitation program, and, when contacted by the social worker in anticipation of the rescheduled hearing, indicated she wanted to reunify with her sons. Yvette appeared at the October 29, 2009 hearing, but the father had been transferred to a state prison and was unable to appear. Before continuing the hearing yet again, the court authorized the Department to place the twins, E.D. and F.D., with the prospective adoptive family but ordered R.D. to remain with his foster family where he had been for the previous 18 months. Yvette was granted weekly monitored visits of no more than two hours. The permanency planning hearing was reset for January 7, 2010.
On November 13, 2009 Yvette filed a section 388 petition seeking reunification services and placement of the children with either their paternal grandfather or grandmother. She also requested expanded visitation rights. In support of the petition Yvette claimed she had been drug-free for more than 18 months and had taken drug abuse and parenting classes in prison. She was now enrolled in another residential drug treatment program where she was receiving counseling and other services. On December 11, 2009 the court summarily denied the petition on the grounds Yvette had failed to show a change of circumstances and the proposed change of order would not promote the best interests of the children. Yvette did not appeal from the order denying her petition.
Meanwhile, Yvette had requested that her previously ordered monitored visits with the children be scheduled. Thereafter, those visits were cancelled twice because Yvette failed to appear. On one occasion her brother called at the last minute to advise the social worker Yvette was too sick to visit with the children. On November 18, 2009 the worker telephoned Yvette at her treatment facility to ask whether she would appear at the next scheduled visit and was informed Yvette had left the facility without leave. The next day Yvette left a message explaining she was sick and could not attend the visit but failed to leave contact information. As the worker noted in a report for the scheduled January 7, 2010 hearing, “the children have no significant bonding with mother, ” who continues to move prematurely “from one sober living [facility] to another.”
Yvette appeared at the January 7, 2010 hearing, but the Department had failed to give adequate notice to the father; and the hearing was postponed yet again and rescheduled for April 29, 2010. The children remained in their respective proposed adoptive placements, where they were reported to be well-cared for and adjusted.
The report filed by the Department for the April 29, 2010 hearing stated that Yvette had not visited with the children at all since the previous hearing. Although she claimed she had not been able to visit because she was not allowed to leave her new drug treatment program, as the Department pointed out, the excuse applied only to a single 30-day period. Again, the Department reported the children were making excellent progress in their respective placements. Yvette appeared at the hearing, which, again, was postponed. The children’s father had been paroled from prison; and the Department had not made the necessary effort to locate him. Accordingly, the hearing was continued to July 29, 2010.
Yvette did not appear at the July 29, 2010 hearing. Nonetheless, the hearing was again continued because the father, who had been reincarcerated in a local facility, was in the infirmary on that date. The court continued the hearing to August 3, 2010. On August 3, 2010, however, because the father had been transferred to state custody, the court continued the hearing to October 28, 2010.
On October 15, 2010 Yvette filed another section 388 petition requesting reunification services, expanded visitation and placement of the children with their maternal uncle. According to the petition, Yvette, who was living in a long term transitional home and attending classes, was now drug-free and had successfully addressed the issues that led to the detention of the children.
The Department had already conducted a home study for the maternal uncle as a prospective adoptive placement, but the uncle indicated he would be willing to adopt the twins only and did not want to be considered as a placement for R.D., the youngest child.
In a status review report for the October 28, 2010 hearing, however, the Department advised the court Yvette had disappeared. According to a social worker, Yvette had appeared to be pregnant at a recent visit with the children, and her uncle confirmed she had already had the baby. The Department also contacted the father of the children, who confirmed he did not want to attend the permanency planning hearing and executed a waiver of his right to attend. Notwithstanding Yvette’s request the children be placed with her uncle, the Department recommended the best interests of the children would be to remain in their current placements. Yvette did not attend the October 28, 2010 hearing. The court summarily denied the section 388 petition and terminated the parental rights of Yvette and the alleged father.
DISCUSSION
1. Governing Law and Standard of Review
Section 388 provides for modification of prior juvenile court orders when the moving party can demonstrate new evidence or a change of circumstances and modification of the previous order is in the child’s best interest. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446; In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) “The parent seeking modification 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.)
Section 388 provides a parent or other interested party “may, upon grounds of change of circumstance or new evidence, petition the court... for a hearing to change, modify, or set aside any order of court previously made.... [¶]... [¶]... 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....”
The required prima facie showing has two elements: The parent must demonstrate (1) a genuine, significant and substantial change of circumstances or new evidence and (2) revoking the previous order would be in the best interests of the child. (In re Anthony W., supra, 87 Cal.App.4th at p. 250.) That is, “the petition must allege a change of circumstance or new evidence that requires changing the existing order.” (In re Daijah T. (2000) 83 Cal.App.4th 666, 672.) “It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child.” (In re Kimberly F., supra, 56 Cal.App.4th at p. 529.)
“The petition [is] liberally construed in favor of its sufficiency.” (In re Daijah T., supra, 83 Cal.App.4th at p. 672.) To be entitled to a hearing, the petitioner “need[] only... show ‘probable cause’; [the petitioner is] not required to establish a probability of prevailing on [the] petition.” (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432-433.) Nonetheless, if the allegations fail to 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 Zachary G. (1999) 77 Cal.App.4th 799, 806-807 [“the hearing is only to be held if it appears that the best interests of the child may be promoted by the proposed change of order”]; cf. In re Edward H. (1996) 43 Cal.App.4th 584, 593 [“‘prima facie’ showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited”].)
We review the juvenile court’s summary denial of a section 388 petition for abuse of discretion. (In re Angel B. (2002) 97 Cal.App.4th 454, 460; In re Anthony W., supra, 87 Cal.App.4th at p. 250.) The appellate court will not disturb the juvenile court’s decision unless the juvenile court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. (Angel B., at p. 460.)
2. The Juvenile Court Did Not Abuse Its Discretion in Denying Yvette’s Section 388 Petition
After the termination of reunification services, a parent’s interest in the care, custody and companionship of the child is no longer paramount. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Instead, the focus shifts to the needs of the child for permanency and stability, and a rebuttable presumption arises that continued foster care is in the best interest of the child. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.) In determining the best interests of the child, the juvenile court is required to consider, among other factors, the reason for the dependency, the reason the problem was not overcome, the strength of the parent-child and child-caretaker bonds, the length of time the child has been a dependent, the nature of the change of circumstance, the ease by which the change could be achieved and the reason it was not made sooner. (In re Aaliyah R., supra, 136 Cal.App.4th at pp. 446-447.) Although the specific circumstances a court must consider vary with each case, the child’s welfare necessarily involves elimination of the specific factors that required placement outside the parent’s home. (In re Heather P. (1989) 209 Cal.App.3d 886, 892.)
The instant section 388 petition, filed on the eve of the termination of both Yvette’s and the alleged father’s parental rights, lacks even a modicum of evidentiary support. Yvette’s failure to complete even one residential treatment program demonstrates she cannot prove the requisite change of circumstances in her sobriety or parenting skills. Moreover, her cavalier approach to visits with her sons and their welfare proves she has yet to understand the meaning of a parental relationship. As we suggested in our previous opinion, Yvette has succeeded only in “gaming” the system and delaying much needed stability for her sons. (See In re E.D., supra, B215164[, at p. 9].) E.D. and F.D. are now six years old, and R.D. is four years old. None of the boys has a meaningful relationship with his mother. The trial court did not abuse its discretion in summarily denying the petition.
DISPOSITION
The order of the juvenile court is affirmed.
We concur: WOODS, J., JACKSON, J.