Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. CK74455 Jan G. Levine, Judge.
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant S.S. (Mother) appeals from an order denying without a hearing her motion under Welfare and Institutions Code section 388 to modify regarding her minor daughter, G.L. We affirm.
All further section references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2008, the Department of Social Services in Santa Barbara County (DSS) detained five-month-old G.L. when Mother was arrested on an outstanding warrant for solicitation and was unable to name a caregiver for G.L. The DSS filed a petition under section 300, subdivisions (b) and (g), alleging G.L. was at risk of harm due to Mother’s history of criminal behavior and substance abuse, as well as untreated mental health disorders.
The whereabouts of G.L.’s father were unknown. Although he later was located, he was not in a position to take custody of G.L. and is not a party to this appeal.
Mother had been a dependent child and had been placed in various foster and group homes, as well as psychiatric facilities. She had been prescribed psychotropic medication, which she stopped taking when she was 17, believing she no longer needed it.
In July, the Santa Barbara Superior Court sustained the petition. It transferred the case to Los Angeles County, where Mother was living with the maternal grandmother in Van Nuys. G.L. was placed in foster care in Palmdale.
Although maternal relatives wanted G.L. placed with them, the maternal grandmother had a criminal history which precluded placement with her.
On September 18, pending the disposition hearing, the court ordered Mother to drug test. It advised her that she was entitled to only six months of reunification services, and services could extend no more than 18 months. The court stressed the importance of completing her programs. Mother told the court she had enrolled in parenting classes and was visiting G.L. weekly.
For the October 2 disposition hearing, a social worker for the Department of Children and Family Services (DCFS) reported she had been unable to contact Mother for drug testing. The court ordered reunification services and monitored visitation for Mother. Mother was to complete parenting classes and individual counseling and to submit to a psychiatric evaluation to determine whether she needed psychotropic medication. Additionally, Mother was to submit to 10 random drug tests; if she missed a test or had a dirty test, she would be required to participate in drug rehabilitation. Mother told the court she had enrolled in both parenting classes and individual counseling.
Dr. Alisha Smith conducted the psychiatric evaluation of Mother on January 9, 2009. Dr. Smith concluded that Mother did not have a diagnosable mental disorder, although she had problems dealing with anger and a low stress tolerance. Dr. Smith did not believe Mother needed psychotropic medication. The doctor recommended that Mother continue to receive outpatient psychiatric treatment with an emphasis on anger management and stress tolerance.
Dr. Smith noted that Mother would not release her medical records, so the doctor could not evaluate the records from Mother’s previous psychiatric hospitalizations.
For the February 9, 2009 six-month review hearing, DCFS noted Mother had been visiting G.L. on a fairly regular basis. A social worker had talked to Mother about moving G.L. to a closer foster home, but Mother did not want G.L. to be moved because she liked the way the current foster mother was caring for G.L.
Mother had missed drug tests in October and November 2008 and had one dirty test and one diluted test in November 2008. DCFS had been unable to verify Mother’s participation in parenting classes and counseling. The court set a contested hearing for March 25, 2009.
At the March 25 hearing, DCFS reported that on February 26, Mother had called the social worker to let her know she had moved to Louisiana to live with the maternal great-grandmother. Mother said she wanted G.L. to live with the maternal great-grandmother or aunt in Louisiana. If that was not possible, Mother wanted G.L. to remain with her current foster mother.
DCFS further reported Mother had completed 13 of 16 parenting classes. Mother’s participation in counseling and her visitation with G.L. had been inconsistent. Mother had missed two drug tests.
The court found Mother to be in partial compliance with her case plan. It terminated reunification services and set a section 366.26 permanency planning hearing for July 23.
On April 17, DCFS reported that Mother had returned to California and was pregnant. Mother no longer wanted G.L. adopted by her relatives in Louisiana. Mother had visited with G.L. and planned on reuniting with her so that her second child would not be detained.
On July 23, DCFS reported on Mother’s visitation with G.L. The adoption home study had not been completed, and the matter was continued. While G.L. was doing well in the foster mother’s care, the foster mother was vacillating over whether she wanted to adopt, because she thought she was too old to raise a child.
Mother gave birth to her second child on October 1. DCFS detained the child.
On October 9, Mother filed a section 388 modification petition seeking to have G.L. placed with her or, in the alternative, to receive an additional six months of reunification services. As changed circumstances, she claimed: “Mother has completed and/or enrolled and substantially completed the court-ordered disposition case plan. To date, Mother has completed a parenting class. She has attended (13) out of (13) individual counseling sessions, and at least (37) out of (60) group counseling sessions to address case issues.... She has drug tested clean and sober for several months. She has gainful full-time employment which has enabled her to secure a one-year lease for an apartment on her own.”
The requested modification would be better for G.L., Mother asserted, because: “Mother has made major lifestyle changes and has become successfully independent for the sake of her children and herself. Mother continues to thrive in counseling. The counselor at her substance abuse program states that Mother appears to be ‘willing to take part in her recovery program, and has gained insight into her own presenting problems.... [Mother] has made good progress over the past three months.’ Mother has gained a wealth of knowledge, tools and insight to provide much love and nurtur[ing] to G[.L.]”
For the October 15 hearing, DCFS reported that G.L. was doing well in her placement. She was healthy, developmentally on target and had started daycare. Mother’s visitation with G.L. had not been consistent, but her visits were appropriate, and G.L. seemed happy to visit with Mother.
At the hearing, the juvenile court denied Mother’s modification petition without a hearing. It explained that it would not consider granting such a petition until Mother completed her program. It acknowledged that Mother had been working hard and had made progress. However, it wanted to be sure that “[o]nce you’re no longer in the program and you’re coping with the stressors that caused you to use drugs in the first place, you won’t relapse. So some amount of time has to pass with you living in the outside world and doing well there....” The court “won’t be able to find a change in circumstances until I know you’re able to cope....”
The court added that there were delays in moving forward with G.L.’s adoption plan, giving Mother time to complete her plan. Then she could file another section 388 petition and the court would address her issues.
DISCUSSION
As noted in In re Marilyn H. (1993) 5 Cal.4th 295, “[t]he federal and state Constitutions guarantee that no state shall deprive any person of life, liberty or property without due process of law. [Citation.] A parent’s interest in the companionship, care, custody and management of his children is a compelling one, ranked among the most basic of civil rights. [Citation.] Likewise, natural children have a fundamental independent interest in belonging to a family unit [citation], and they have compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.] The interests of the parent and the child, therefore, must be balanced.” (Id. at p. 306.)
When a child has been removed from the parent’s custody, the initial focus of dependency proceedings is reunification of the child with the parent. (See In re Marilyn H., supra, 5 Cal.4th at p. 308.) Once reunification services are terminated, the focus of the proceedings shifts to the child’s need for permanency and stability. (Id. at p. 309.) However, a parent is provided with an “‘escape mechanism’” to avoid permanent loss of custody and revive the issue of reunification-a petition under section 388 based on changed circumstances. (Ibid.)
Section 388 provides a means for obtaining modification of previous orders in a dependency hearing “upon grounds of change of circumstance or new evidence.” (Id., subd. (a).) It further provides, in pertinent part, that “[i]f 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” on the petition for modification. (Id., subd. (d).)
A section 388 petition is construed liberally in favor of granting a hearing to consider a parent’s request for modification. (In re Marilyn H., supra, 5 Cal.4th at p. 309; In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798.) If the petition presents any evidence that a hearing would promote the child’s best interests, the court must order a hearing. (In re Jasmon O. (1994) 8 Cal.4th 398, 415; Hashem H., supra, at pp. 1798-1799.) A hearing would promote the child’s best interests if the parent makes a prima facie showing that the proposed modification would promote the child’s best interests. (Marilyn H., supra, at p. 310; In re Josiah S. (2002) 102 Cal.App.4th 403, 418.) We review the trial court’s decision not to order a hearing for abuse of discretion. (Josiah S., supra, at p. 419.)
A number of factors should be considered in determining whether the child’s best interests warrant a hearing. These include the seriousness of the reasons for the dependency, the strength of the bonds between the parent and the child and between the caretaker and the child, and the nature of the change of circumstances. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-531.)
In In re Hashem H., supra, 45 Cal.App.4th 1791, the child was removed from the mother’s home due to her mental and emotional problems, which prevented her from caring for him properly. (Id. at pp. 1793-1794.) Several years later, the mother filed a section 388 petition alleging she had been participating regularly in counseling for nearly a year and visiting the child on a regular basis, and she was ready to care for him. The trial court denied her petition summarily, noting her mere participation in counseling did not mean she had completed successfully the court-ordered counseling. (Id. at p. 1797.)
The mother filed a second section 388 petition six months later. (In re Hashem H., supra, 45 Cal.App.4th at p. 1797.) In addition to setting forth the steps she had taken regarding psychotherapy and visitation, she included a letter from her psychotherapist. The psychotherapist detailed the course of the psychotherapy and opined that the mother would be able to care for the child. (Id. at pp. 1797-1798.) The trial court again denied the mother’s petition summarily. It refused to consider the psychotherapist’s letter as hearsay and noted that the mother had not alleged successful completion of psychotherapy or that the mental problems which resulted in dependency had been addressed. (Id. at p. 1798.)
On appeal, the court concluded that the mother had made a prima facie showing that a hearing would promote the child’s best interests. (In re Hashem H., supra, 45 Cal.App.4th at p. 1799.) She presented evidence of continuous participation in therapy for more than 18 months, leading to a recommendation from her psychotherapist that the child be returned to her custody. She also presented evidence as to her visitation with him for more than a year and their participation in conjoint counseling. “A fair reading of the petition” supported the conclusion that the mother’s mental and emotional problems which led to the child’s removal from her custody had been resolved through therapy. (Ibid.)
The situation here is akin to the mother’s situation in Hashem H. when she filed her first section 388 petition. That Mother had completed parenting classes, participated in counseling and tested clean for several months did not necessarily mean a change in circumstances. (In re Hashem H., supra, 45 Cal.App.4th at p. 1797.) Neither did it establish that G.L.’s best interests would be served by a modification of the trial court’s previous orders. (Cf. In re Joseph B. (1996) 42 Cal.App.4th 890, 901.)
At the time of the hearing, it had been over a year since the dependency proceedings had commenced. For much of that time, Mother had made very little progress in her program. It was only recently, when she became pregnant with her second child and tried, unsuccessfully, to prevent him from becoming a dependent child of the court, that she became serious about completing her program. Against this backdrop, the juvenile court was well within its discretion in concluding that until Mother could complete her programs and maintain a sober and stable life that she had not demonstrated a change of circumstances that would render it in her daughter’s best interests to remove her daughter from a stable placement and return her-or take steps to return her-to Mother’s custody.
DISPOSITION
The order is affirmed.
We concur: PERLUSS, P. J., ZELON, J.