Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. 2254-DEP
Marchiano, P.J.
D.D. (Mother) appeals orders entered on February 5, 2008 (the February 2008 order) and March 14, 2008 (the March 2008 order) by the Sonoma County Superior Court, Juvenile Division. These orders, respectively, denied Mother’s petition for modification under Welfare and Institutions Code section 388, and terminated her parental rights with regard to E.E. (born August 1999). Mother claims the juvenile court erred in its denial of her section 388 petition without a hearing, and that such error requires reversal of both the February 2008 order and the March 2008 order. As discussed below, we dismiss the appeal as to the February 2008 order and affirm the March 2008 order.
Further statutory references are to the Welfare and Institutions Code.
Background
The Sonoma County Human Services Department (Department) initiated this proceeding on January 17, 2006, filing a petition seeking to establish dependency jurisdiction over the minor, then six years of age. The juvenile court ordered the minor detained on February 9. On May 8, the court sustained the jurisdictional allegations of the amended section 300 petition, continued the minor in out-of-home custody, ordered reunification services for both parents, and directed them to comply with their adopted case plans.
The ultimate jurisdictional facts that the juvenile court sustained as to Mother were that she had a history of substance abuse and domestic violence placing the minor at risk. (See § 300, subd. (b).) Mother’s court-ordered case plan consisted primarily of requirements that she abstain from alcohol and illicit drugs, submit to random drug testing, complete a substance abuse treatment program, attend 12-step meetings, complete courses on parenting and anger management, maintain stable housing, and adhere to a “consistent visitation schedule” with the minor.
At the six-month status review hearing held October 2006, the juvenile court ordered continuation of services for both parents and adopted an updated case plan for Mother that essentially continued the foregoing requirements. One concern expressed by the Department at this time, in its report submitted at the hearing, was that Mother had not been consistent in keeping her scheduled visits with the minor.
In its report prepared for the 12-month permanency hearing (the 12-month hearing), signed in early March 2007, the Department recommended that the juvenile court continue reunification services as to A.E. (Father), but terminate them as to Mother. The assigned social worker reported that Mother had tested negative for alcohol and drug use in the random tests taken during the reporting period, and had complied with her case plan in many other respects. But in October 2006, Mother had been discharged from her outpatient substance abuse treatment program at the Drug Abuse Alternatives Center (DAAC) for “inconsistent attendance.” She began the DAAC program again in late November, but her DAAC case manager reported to the social worker that Mother’s attendance in the treatment program remained inconsistent. The social worker also stated that Mother was authorized for weekly, unsupervised visits with the minor. Mother, however, “ha[d] been inconsistent in visiting [the minor],” and had cancelled or missed several visits due to medical issues. The worker reported that the visits went well when Mother did arrive for them, but that the minor was “very disappointed,” appearing withdrawn and sad, whenever Mother did not visit. For these reasons, the social worker concluded that there was not a substantial likelihood that Mother could reunify with the minor if her services were continued to the 18-month permanency review hearing (the 18-month hearing).
In an addendum report, completed in early May 2007, the social worker reported that Mother had continued to miss or cancel visits with the minor during the preceding two months. The foster caretakers and the minor’s therapist had reported that the minor would have a “meltdown” or exhibit a low energy level following these missed or cancelled visits. Mother had also reportedly failed to keep in contact with her DAAC case manager after February 23, and thus had not scheduled individual and group sessions since that time. The social worker reiterated her concern over these issues, and noted that 12 months had now passed since the dispositional order, yet Mother had still not completed her substance abuse treatment program.
At the 12-month hearing held May 4, 2007, the juvenile court adopted the Department’s recommendations, continuing services for Father, but terminating them as to Mother.
The Department’s report prepared for the 18-month hearing, signed in late June 2007, noted that, since the termination of her reunification services, Mother had continued to miss a number of scheduled visits with the minor, again the “result of her health issues.” In fact, Mother had missed “nearly all scheduled visits” for May and June, and the minor continued to be “sad and extremely disappointed about not seeing her mother.” The Department had accordingly reduced Mother’s weekly visits to bi-weekly visits, and by June, had reduced them a second time to one supervised visit per month.
The juvenile court held the 18-month hearing on August 29, 2007, and at this time terminated reunification services for Father and set a hearing under section 366.26. In the following months, the court twice continued the section 366.26 hearing, to February 5, 2008.
On February 5, 2008, Mother filed a petition under section 388, requesting modification of the juvenile court’s order of August 29, 2007 (the August 2007 order). Specifically, she sought “[f]ull legal and physical custody of [the minor] so she can return back to her home with [Mother].” In support of her petition, Mother averred that she had “been attending [an] Anger Management Workshop,” had attended “a considerable number of AA meetings,” and had “healed from past injuries.” She further stated she was receiving “physical therapy for [her] back and [was] feeling much better,” had “gathered books on parenting for free or low cost at yard sales,” had “a stable home” with a room for the minor, and could “feed and clothe [the minor] and . . . parent her in a clean and sober environment.” Mother averred that her requested modification would be in the minor’s best interest because “in one of [her] past visits” with the minor, the latter had told her “Mommy, I want to live with you again . . . I wish we could have dinner together again like before . . . I miss your cooking food for me, Momma.” Mother additionally expressed her belief that the minor “want[ed] to see [her],” that she loved and missed her daughter, and that she “kn[e]w what [the minor] need[ed] because [she was the minor’s] mother.” The petition included a number of attachments.
Mother described the August 2007 order as that which had terminated her reunification services. In fact, the court terminated her services in its order of May 4, 2007. Liberally construed, it appears Mother’s petition sought to modify the August 2007 order. Mother was not seeking a resumption of the services the court had discontinued in May 2007, but was, in effect, asking that the court vacate the section 366.26 hearing that it had set in its August 2007 order and return the minor immediately to her care.
The juvenile court entered the February 2008 order the same day, denying Mother’s section 388 petition. The court based its denial on its determination that her petition neither showed a change of circumstances nor that the requested modification would be in the minor’s best interest. It commented that, while Mother’s evidence “show[ed] some improvement, [it did] not really constitute what would be changed circumstances.” The court again continued the section 366.26 hearing.
On March 14, 2008, the juvenile court held the section 366.26 hearing. At its conclusion, the court entered the March 2008 order, in which it found there was a likelihood the minor would be adopted and terminated the parental rights of both Mother and Father. This appeal followed. (§ 395.)
Discussion
A. The February 2008 Order
Mother contends that her section 388 petition made a prima facie showing sufficient to justify an evidentiary hearing, and that the juvenile court therefore erred when it made the February 2008 order of summary denial.
We cannot address the merits of this claim because we lack jurisdiction to do so. With the exception of an order that sets a section 366.26 hearing, any post-dispositional order—including one summarily denying a petition under section 388—is an appealable order under section 395. (In re Aaron R. (2005) 130 Cal.App.4th 697, 702-703 (Aaron R.).) Appellate jurisdiction to review an appealable order depends on a timely notice of appeal. (In re Madison W. (2006) 141 Cal.App.4th 1447, 1450 (Madison W.).) Here the record indicates that the commissioner who made the February 2008 order was sitting as a temporary judge of the juvenile court, and hence it was necessary to file any notice of appeal from that order within 60 days. (Cal. Rules of Court, rule 8.400(d); see also Super. Ct. Sonoma County, Local Rules, rule 12.3.) The notice of appeal, filed April 17, 2008, was untimely as to the February 2008 order, and we must dismiss Mother’s appeal as to that order.
While a notice of appeal from an order terminating parental rights may be liberally construed to include a prior order denying a section 388 petition, the notice must still be timely filed as to both orders. (See Madison W., supra, 141 Cal.App.4th at p. 1450.)
Even if we assume—for the sake of argument—that we may properly address the merits of Mother’s contention, we see no error in the juvenile court’s summary denial of Mother’s section 388 petition. A petition under section 388 is to be liberally construed. (Cal. Rules of Court, rule 5.570(a).) Thus, a parent need only make a prima facie showing to trigger the right to a full evidentiary hearing. (Aaron R., supra, 130 Cal.App.4th at p. 705.) This prima facie showing refers to those facts that will sustain a favorable decision if the evidence submitted in support of the petition’s allegations is credited. (Ibid.) Those facts must show that there has been a genuine change of circumstances and that the modification sought would be in the best interests of the minor. If the petition’s allegations, liberally construed, do not show changed circumstances such that the minor’s best interests may be promoted by the proposed change of order, the juvenile court need not order an evidentiary hearing. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250 (Anthony W.).) We review a summary denial of a section 388 petition for abuse of discretion. (Aaron R., supra, 130 Cal.App.4th at p. 705.) The appropriate test is whether the ruling “exceeded the bounds of reason.” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319 (Stephanie M.).)
Mother argues extensively that we should review independently the issue whether her petition makes a prima facie showing sufficient to trigger a hearing. The proper standard of review, however, is abuse of discretion. An “abuse of discretion” has been described, in effect, as an exercise of a legal discretion that is erroneous because it does not conform to the spirit of the applicable law and impedes, rather than serves, the ends of substantial justice. (See In re Robert L. (1993) 21 Cal.App.4th 1057, 1066, superseded on other grounds by statute, as stated in Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.) The parameters of a legal discretion are thus determined by the law applicable in a given case. As summarized above, the applicable law—to determine whether a hearing is necessary in a section 388 proceeding—is designed to safeguard due process rights to a hearing. (See In re Angel B. (2002) 97 Cal.App.4th 454, 460-461.) As such, that law circumscribes rather narrowly the juvenile court’s legal discretion. In interpreting appellate decisions reviewing summary denials, Mother has misconstrued some of the analyses to be functionally equivalent to independent review. These decisions, however, simply review the record to determine whether the juvenile court’s denial of a hearing in a given case exceeded its relatively limited “bounds of reason.” (See, e.g., In re Aljamie D. (2000) 84 Cal.App.4th 424, 431-433; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413-1416.) The lower court’s limited legal discretion in granting or denying a hearing in a section 388 proceeding is not, however, so limited as to preclude entirely a reviewing court from giving the lower court’s ruling that deference which is due under the abuse of discretion standard. For example, if the section 388 petition makes a prima facie showing from which more than one inference may reasonably be drawn, the reviewing court may draw only that inference which is favorable to the lower court’s ruling. (See Stephanie M., supra, 7 Cal.4th at p. 319.)
Here, Mother’s reunification services were terminated because she had not completed her substance abuse treatment program after having 12 months to do so, and because of her ongoing failure to comply with the requirement that she maintain a “consistent visitation schedule.” With respect to these particular issues, the averments of Mother’s petition and supporting documentation showed only that she was continuing to work on the requirements of her case plan. It did not show that Mother had completed a substance abuse treatment program approved by the Department, despite the lapse of another nine months since the termination of her services in early May 2007. Without a showing she had completed such treatment, Mother’s conclusory averment that she could now parent the minor in a “clean and sober environment” was insufficient. (See Anthony W., supra, 87 Cal.App.4th at p. 250.) Mother’s petition further averred that her “past injuries”—presumably the medical problems that had impaired her ability to maintain a consistent visitation schedule, were “healed.” This, too, is a conclusory averment, and the supporting documentation is similarly insufficient. It shows only that Mother received medical treatment for various problems at various times—most of them predating the termination of her services in May 2007.
Moreover, Mother’s petition did not request a resumption of services and visitation, but full legal and physical custody. At the time Mother filed her petition, reunification services had been terminated as to both parents. At that stage of the dependency proceeding, there was a rebuttable presumption that it was in the minor’s best interest to continue in out-of-home custody and care. (See Stephanie M., supra, 7 Cal.4th at p. 317.) It cannot be said that Mother’s averments and other evidence, which were not sufficient to show that she had remedied the problems that remained unresolved when the court terminated her services, were sufficient to rebut this presumption and justify an immediate return of the minor to Mother’s care.
In our view, Mother’s petition, liberally construed, showed that she was continuing efforts to complete a substance abuse treatment program and other aspects of her case plan, and was continuing to address her medical issues through treatment such as physical therapy. But a prima facie showing of change of circumstances must be of a significant nature that justifies the requested modification. (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485.) A prima facie showing of changing, as opposed to changed, circumstances is not enough. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 609-610.) We see no abuse of discretion in the juvenile court’s determination that Mother had failed to make the prima facie showing necessary to require a full evidentiary hearing on her requested modification.
B. The March 2008 Order
Mother argues that, because the juvenile court erred in making the February 2008 order, it is necessary to reverse the March 2008 order as well. (See, e.g., In re Kimberly F. (1997) 56 Cal.App.4th 519, 535-536.) As discussed above, Mother’s direct attack on the February 2008 order is ineffective, and in any event without merit. Hence, her challenge to the March 2008 order must also fail.
Disposition
The appeal is dismissed as to the order entered February 5, 2008. The order of March 14, 2008, is affirmed.
We concur: Margulies, J., Flinn, J.
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.