Opinion
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County Super. Ct. No. CK52341. Stephen Marpet, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
John L. Dodd, under appointment by the Court of Appeal, and John L. Dodd & Associates for Defendant and Appellant Shelli B.
Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant Larry C.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Tracey L. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
MALLANO, Acting P. J.
Shelli B. (Mother) and Larry C. (Father) appeal from orders denying, without a hearing, their petitions for modification seeking custody of their son, Jacob C. (born in March 2006), who has been in foster care since being detained in April 2006. We affirm the orders because the juvenile court did not abuse its discretion in determining that the petitions did not make a prima facie showing that a modification might be in Jacob’s best interest.
We granted Mother’s request to take judicial notice of two prior nonpublished appellate opinions involving Jacob as well as the record in the most recent prior appeal. Much of the background before September 2006 is taken from these opinions: In re Jacob C. (Mar. 21, 2007, B193154 [nonpub. opn.]) and In re Hope B. et al. (June 27, 2007, B194386 [nonpub. opn.]).
In July 2004, when her daughter Hope B. was four years old and a dependent of the juvenile court, Mother abducted Hope. A warrant was issued. Mother was arrested on the warrant in Florida and returned to California in February 2006, when she was pregnant with Jacob. After Hope was returned to her father’s custody under the supervision of the Department of Children and Family Services (DCFS), Hope revealed that Mother had locked her in the trunk of Mother’s car.
In April 2006, Jacob was detained and a petition was filed alleging that Jacob was a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). Jacob was placed in foster care, where he remains. On August 1, 2006, he was placed with his current foster parents. Both the current foster parents and the paternal grandmother in North Carolina desire to adopt Jacob.
Unless otherwise specified, statutory references are to the Welfare and Institutions Code.
According to the detention report, Father appeared in court on April 20, 2006, with bloodshot eyes and an odor of alcohol. The May 2006 jurisdiction and disposition report stated that Father had a lengthy arrest record and no permanent or stable residence. In June 2006, the juvenile court sustained the petition, as amended, under section 300, subdivision (b), based on Mother’s abduction of Hope. Jacob was removed from parental custody. The parents were afforded monitored visits and reunification services. Father was ordered to enroll in parenting and to submit to eight consecutive weekly random drug tests, and if he missed a test or tested dirty, he was to enroll in a drug or alcohol abuse program.
Mother appealed from the jurisdictional and dispositional orders. We affirmed the jurisdictional order but reversed the dispositional order on the ground that there was insufficient evidence that there were no reasonable means to protect Jacob other than removal from Mother’s custody. (In re Jacob C., supra, B193154 [nonpub. opn.] p. 7.)
On August 1, 2006, a subsequent petition was filed, alleging that Jacob was a dependent of the court under section 300, subdivisions (a) (serious physical harm), (b), and (j), based on allegations that the parents had a history of violent confrontations, that Father helped Mother conceal Hope’s identity after Mother abducted her, and that Mother used drugs and alcohol during her pregnancy with Jacob. Later in August 2006, DCFS learned that in May 2006, Father was arrested on a misdemeanor charge of being drunk in public, and in July 2006, he was convicted of a felony charge of inflicting corporal injury on Mother. Father was placed on three years’ formal probation and was ordered to serve 180 days in jail, pay monetary fines, attend domestic violence counseling, and have no contact with Mother. He was released from custody on August 31, 2006.
According to Mother, Father had been drinking on the evening that he injured her. Although she was badly injured, her injuries were not permanent. Mother continued to associate with Father until his arrest in June 2006. In August 2006, Mother moved into a shelter designed to help her maintain permanent housing and self-sufficiency in 60 to 90 days. Mother moved out of the shelter in October to reside with her great grandmother.
In September 2006, DCFS filed a first amended subsequent petition as to Jacob, alleging that he was a dependent of the court pursuant to section 300, subdivisions (a) and (b), based on the parents’ history of violent confrontations in Hope’s presence, Father’s history of alcohol abuse and convictions for crimes related to alcohol abuse, and Father’s conviction and incarceration for inflicting injuries on Mother. On September 12, 2006, portions of the first amended subsequent petition were sustained and Jacob was declared a dependent under section 300, subdivisions (a) and (b). Jacob was ordered removed from parental custody. Reunification services were granted to Father, who was ordered to attend individual counseling, domestic violence counseling, alcohol counseling and random weekly alcohol testing. The court also ordered DCFS to initiate an ICPC (Interstate Compact on the Placement of Children) request for the paternal grandmother, A.E., in North Carolina, as a possible placement option for Jacob.
Reunification services were denied to Mother under section 361.5, subdivision (b)(10) and (15), because of Mother’s failure to reunify with Hope and her abduction of Hope. Mother appealed from the September 12, 2006 order, which was affirmed on appeal. (In re Hope B. et al., supra, B194386 [nonpub. opn.] p. 14.)
In late September 2006, Father enrolled in a random drug and alcohol testing program but by late October 2006, he had taken only two such tests. At the six-month review hearing on October 25, 2006, the court admitted into evidence an Evidence Code section 730 evaluation of Father by psychologist Michael Ward. Ward reported that he had no “direct data to suggest that [Father posed] an imminent, significant risk of physical or emotional abuse to a child,” that there was no reason why Father should not have more frequent or extended monitored visits with Jacob, and that Father could be considered for reunification as long as he tests negative for alcohol and drugs, continues with his domestic violence classes, and has an appropriate residence for the care and custody of Jacob. According to his attorney, Father worked out of the county and requested referrals for programs near his work. Father was undergoing random testing for his employment. The review hearing was continued to November 6, 2006, for Father’s contest on the issue of whether his reunification services should be extended or terminated.
On November 6, DCFS reported that Father enrolled in parenting and domestic violence programs on November 2, 2006. In September 2006, a psychiatrist began treating Mother for “a mood disorder with psychiatric medications and supportive counseling.” Mother’s initial diagnosis was “Schizoaffective Disorder, Bipolar Type.”
At the November 6 hearing, Father’s attorney made an offer of proof, which was accepted by the parties and the court, that Father drug tested clean on three occasions from April to October 2006, but one test in October indicated “dilute,” meaning that Father drank an unusual amount of water before the test; that Father attended two of twelve parenting classes before his incarceration and will now begin another parenting program as well as individual counseling and a domestic violence program; that Father attended some Alcohol Anonymous meetings in September through November 3, 2006; and that Father visited Jacob on 12 occasions from April 28 to June 16, 2006, and after his release from incarceration on August 31, his visits were not as consistent because of his work schedule and because DCFS was unwilling to approve his suggested monitors for visits outside of the DCFS offices. The referrals for services also had waiting lists, and Father enrolled in the programs as quickly as he could, considering that he lived outside of Los Angeles County.
On November 6, 2006, the juvenile court terminated Father’s reunification services, finding that Father was not in substantial compliance but only “partial compliance” with the case plan, that his attempt to comply was “last minute” and “just not enough,” and that there was no likelihood that Father would comply with the case plan in the next six months. The court also found that DCFS made reasonable efforts to comply with the case plan and that it would be detrimental to return Jacob to his parents’ custody. But the court increased the parents’ visitation to two hours, twice a week, with the parents’ visitation on separate days. A section 366.26 hearing was set for March 5, 2007. The parents were given notice of their right to take a writ from the November 6, 2006 order, but neither filed a writ.
On February 23, 2007, Father filed a notice of appeal from the orders of November 6, 2006, and January 3, 2007. DCFS points out in its respondent’s brief that an order setting a section 366.26 hearing is not an appealable order.
In a January 2007 interim review report, DCFS stated that Jacob had developed a genuine bond with his caretakers and was thriving in their care. The paternal grandmother in North Carolina also wanted Jacob placed in her home, but North Carolina had not yet confirmed receipt of the ICPC request. At the January 3, 2007 hearing, the parents reported that each was visiting regularly twice a week. DCFS reported that the parents were not visiting Jacob together, but they arrived together at the visits. The court ordered that DCFS had discretion to liberalize Mother’s visits but not Father’s.
On February 22, 2007, Mother and Father each filed, in propria persona, a petition for modification under section 388. The petitions sought custody of Jacob. Each petition contained the same allegations of changed circumstances: “Parents have undergone extensive counseling, as well as substance abuse counseling and 12-step program enrollment and participation and drug/alcohol testing and do not present any danger or risk to the minor child.” Each petition also stated that placing Jacob into his parents’ custody would be in his best interest and “would serve to reunite his family.”
Mother’s petition was supported by her declaration stating that she had a good, stable job and would be able to provide Jacob with a loving, safe home. She acknowledged past mistakes but asserted that she has “changed for the better,” that she has engaged in counseling, and that she “will remain clean and sober around my son Jacob and I would be most willing to participate in random drug or alcohol testing should the Court or [DCFS] request that I do so.” Attached to her petition was a certificate of completion of a parenting class in February 2007; a letter from her domestic violence program stating that as of February 14, 2007, she had completed 14 of 16 classes and was expected to complete the program on February 22, 2007; a letter from her therapist stating that Mother had an “Adjustment Disorder With Anxiety” and had been attending weekly individual counseling since January 2007; and a letter from the agency monitoring Mother’s visits stating that Mother interacted well with Jacob, the visits went well, and Jacob appeared to feel comfortable and at ease with Mother.
Father’s petition was supported by a similar declaration and contained attachments showing he completed the same parenting program as Mother, that he had negative drug tests, that he regularly attended a 12-step program beginning in early November 2006, and that his visits with Jacob were consistent and were going very well.
On February 27, 2007, the juvenile court denied the parents’ petitions by checking the boxes on the petition form stating that the requests did not state new evidence or changed circumstances and did not show that a change of order will be in the child’s best interest.
DCFS’s March 5, 2007 report for the section 366.26 hearing stated that there were two prospective adoptive families for Jacob, his current foster parents and the paternal grandmother. The home evaluation results for the paternal grandmother in North Carolina were still pending.
A March 5, 2007 status review report was also filed for the March 5 hearing. DCFS reported that a hearing was scheduled for March 6, 2007 in Mother’s pending kidnapping case involving her daughter Hope and that Mother believed that she would be found guilty and sentenced to house arrest. DCFS received from the parents the same documents attached to their section 388 petitions for modification and attached those documents to the DCFS report. DCFS also attached a certificate showing that Mother completed her 16-week domestic violence counseling program in late February 2007.
The status review report stated: “[Mother] is currently not employed but sustains herself economically through Social Security Disability payments. [Her] housing is regularly inconsistent [and she] currently resides with her parents, although it is strongly believed that [she] resides with [Father]. [¶] According to [Mother’s] statements and also noted in historical records, [she] has a drug history, which includes marijuana and occasional use of alcohol. There are no current guarantees that [she] is leading a sober life style as she . . . has not submitted to random drug and alcohol testing. [¶] [Mother] continues to exhibit some erratic speech and behavior, is impulsive and quickly becomes emotional. According to the case records and current history [Mother] requires consistent psychological and psychiatric services. [Mother] has begun [to] show some consistency and progress in this area.”
According to the status review report, Father’s 14-year-old son by another mother recently moved from North Carolina, where he had lived with the paternal grandmother, to live with Father. Father told DCFS that his 14-year-old son was attending school and was well cared for. The parents also informed DCFS that the restraining order was revoked and the order that Father and Mother were to have no contact was lifted, but the parents did not provide any documentation regarding the no-contact order.
DCFS wrote that although Father “has been limited by [the] criminal court to not have any contact with [Mother], nonetheless, [he] remains in a relationship with [Mother]. [Father] has stated to [the social worker] that he is willing to abandon his relationship with [Mother] in order to satisfy the court orders and reunify successfully with his son. . . . [Father] has little insight as to the family’s larger problems, mainly with the mother of Jacob.” DCFS also pointed out that Father had not yet provided evidence of compliance with domestic violence counseling.
At the selection and implementation hearing on March 5, 2007, the court stated that the parents’ petitions for modification were denied without a hearing, explaining, “I have to balance the entire facts of the case with the underlying allegations of the petition and, based on all that information, it is the court’s decision that it is not in the minor’s best interest.” After Father’s attorney pointed out that Father was not in the same position as Mother and was not guilty of child abduction, the court responded, “He also had six months of services and didn’t comply with the case plan, and I terminated his reunification services for a six-month-old child. I see no need to change.” “I don’t think that it is in the minor’s best interest at this stage. We need permanency, and that is the decision of the court.”
The court found that it would be detrimental to return Jacob to his parents’ custody and that there was no substantial probability he could be returned within six months. DCFS was given the discretion to liberalize Mother’s and Father’s visitation. Father’s attorney asked for unmonitored visits and stated that Father had just presented him with a domestic violence report from the Riverside County Probation Department and that Father was “involved.” Father’s attorney asked whether the court wanted to look at it. The court stated that it had made its ruling on the petition for modification and, “If you want to give that to the [social] worker and see if she is willing to liberalize, that is another issue.” The court set a contested section 366.26 hearing for April 11, 2007.
On April 2, 2007, the parents each filed a notice of appeal from the denial without a hearing on the petitions for modification.
DISCUSSION
A. Father’s Challenge to Order Terminating Reunification Services
Father’s briefs challenge the order terminating Father’s reunification services on the ground that he did not receive a full six-month period of services. In his opening brief, he argues that the order denying his petition for modification must be reversed as a matter of law “based solely on the B193154 decision [In re Jacob C., nonpublished opinion filed March 21, 2007] and the statutory provision that requires a parent must be given at least six months of services.”
In his reply brief, Father insists that he is not now attacking the November 6, 2006 order, but “whether this court should now toll his services since this court has reversed the juvenile court’s initial removal of Jacob from the home [in the prior appellate decision, In re Jacob C., filed March 21, 2007].”
Father fails to show that the reversal in March 2007 of the June 2006 disposition order had any practical effect on his reunification services. He also does not provide authority that he is entitled to a recalculation of the period for reunification services under the instant circumstances. More important, and notwithstanding Father’s protests to the contrary, his arguments constitute a challenge to the previous November 6, 2006 order. But on this appeal from the denial of his petition for modification, Father cannot challenge the previous November 6, 2006 order terminating his reunification services and the finding that reasonable reunification services had been offered. (Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1156 [“it is impermissible to challenge an earlier finding by way of an appeal from a subsequent order”].)
B. Denial of Section 388 Petitions for Modification
We review the summary denial of a section 388 petition for abuse of discretion. (In re Angel B. (2002) 97 Cal.App.4th 454, 460 (Angel B.); see also In re Josiah S. (2002) 102 Cal.App.4th 403, 419 (Josiah S.).) A parent seeking modification must make a prima facie showing to trigger the right to proceed by way of a full hearing on the petition. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250 (Anthony W.).) Cases have interpreted section 388 to require both a prima facie showing of a change of circumstances and that the proposed change of order is in the best interest of the child. (In re Daijah T. (2000) 83 Cal.App.4th 666, 672.) Although the petition should be liberally construed in favor of its sufficiency (ibid.), conclusory allegations are not sufficient (Anthony W., supra, 87 Cal.App.4th at p. 250). After the termination of reunification services, the focus shifts from reunification to the need of the child for permanency and stability. (Angel B., supra, 97 Cal.App.4th at p. 464.) Cases have held that simple completion of educational programs, including drug counseling, does not, in itself, show prima facie that either the requested modification or a hearing would be in the minor’s best interest. (Id. at pp. 464–465.)
Asserting that cases such as Angel B. and Josiah S. are incorrect, and relying on language taken out of context from In re Jeremy W. (1992) 3 Cal.App.4th 1407 (Jeremy W.), Mother urges us to apply a de novo standard of review to the summary denial without an evidentiary hearing of a petition for modification. Father also argues in favor of a de novo standard of review.
Mother argues that the de novo standard of review applies because the issue of whether a petition states facts sufficient to warrant an evidentiary hearing is a “pleading” issue and presents a question of law as opposed to a task requiring the weighing of evidence or the making of a factual determination.
But Jeremy W. did not expressly or by implication advocate or apply a de novo standard of review to the denial without a hearing of a petition for modification. Rather, the court in Jeremy W. determined that where the parent had eliminated the only negative factor which supported the finding of detriment in the return of the child to his mother, the five-year-old child and the mother were strongly bonded to each other and the child wanted to be reunited with his mother, the mother’s section 388 petition made a prima facie showing to proceed by way of a full hearing on the merits. (Jeremy W., supra, 3 Cal.App.4th at p. 1416.) Indeed, the caption to the “analysis” portion of the decision stated, “The Court Abused Its Discretion in Denying [the Mother] a Hearing on Her Section 388 Motion to Set Aside Its Earlier Order.” (Id. at p. 1413.) The court also explained, “We have previously determined section 388 is not facially unconstitutional, because it gives the court discretion whether to provide a hearing on a petition alleging changed circumstances. [Citation.]” (Ibid.)
The court in Jeremy W. stated that the “generalized extensive discretion to determine the best interests of a minor” was not pertinent to the issue before it, which was whether the petition made a prima facie showing to trigger a full hearing on the petition. (Jeremy W., supra, 3 Cal.App.4th at p. 1416.) The court had previously explained that the parent was not required to establish a probability of prevailing on the petition, but only “‘probable cause,’” and that “we search the record to see if even a liberal interpretation of the proffered evidence of changed circumstances might not justify modifying the order . . . .” (Id. at p. 1414.) Thus, the court was making a distinction between the abuse of discretion standard of review utilized by the appellate court and the principles governing the juvenile court’s determination of whether a petition made a prima facie showing to proceed by way of a full hearing. In connection with the appellate court’s standard of review, the case does not mention or discuss the de novo standard of review. Thus, Jeremy W. reasonably cannot be read as the sub silentio repudiation of established authority and the announcement of a novel standard of review. We therefore proceed to apply the abuse of discretion standard of review.
Even assuming for purposes of argument that the de novo standard of review applied, the petitions in this case do not make a prima facie showing that a change of custody would be in Jacob’s best interest. The rationale offered by the parents is a tautology: “Issuing appropriate orders that the minor child . . . be reunited and placed into his parents’ . . . custody . . . would serve to reunite his family.” This statement does not establish that a change might be in Jacob’s best interest.
Assuming, without deciding, that the parents made a prima facie showing of new facts or changed circumstances, the juvenile court did not abuse its discretion in determining that there was no prima facie showing that a change of custody might be in Jacob’s best interest. It was undisputed that in late February 2007, Father still had not completed a program of domestic violence counseling. Nor did Father’s petition establish that he had an appropriate home for Jacob (then 11 months old), or that he had arranged childcare for Jacob while he worked. Viewing the petition liberally, we conclude that the juvenile court did not abuse its discretion in finding that Father’s petition did not make a prima facie showing that a change in custody might be in Jacob’s best interest.
Similarly, the juvenile court did not abuse its discretion in determining that Mother’s petition, viewed liberally, did not make a prima facie showing to trigger a right to an evidentiary hearing. A hearing in Mother’s criminal case was scheduled for March 6, 2007, and Mother told DCFS that she expected to be convicted. It was unclear where Mother was living in February 2007, and her declaration in support of her petition was silent as to her living situation, whether she was then living a sober lifestyle, and whether she had an appropriate home for Jacob. Mother’s petition also did not address the issue of the arrangements she would make for Jacob in the event that she was convicted and incarcerated. Because of these uncertainties about Mother’s sober lifestyle, living situation, and ability to provide an appropriate home for Jacob, the juvenile court did not abuse its discretion in determining that Mother’s petition did not make a showing that a change in Jacob’s custody might be in his best interest.
Because the juvenile court did not abuse its discretion or err in denying the parents’ petitions without an evidentiary hearing, their procedural due process rights were not violated. No prejudice is shown.
DISPOSITION
The orders denying Shelli B.’s and Larry C.’s petitions for modification are affirmed.
We concur: ROTHSCHILD, J., JACKSON, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.