Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, Super. Ct. No. CK58927 S. Patricia Spear, Judge.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
M.O. appeals from the order denying her Welfare and Institutions Code section 388 petition without a hearing and the order terminating her parental rights as to her two youngest children, Jennifer M. and Michael M. We affirm both orders.
All further statutory references are to the Welfare and Institutions Code.
FACTS
Appellant and Michael tested positive for amphetamine and methamphetamine following Michael’s birth. Appellant told medical staff that someone must have put something in her apple juice.
While interviewing appellant at the hospital, a social worker from the Department of Children and Family Services (DCFS) learned that appellant had three other children, Matt O., E.O. and Jennifer, who then were 11 years, 13 years and 18 months old, respectively. Appellant would not explain why she and Michael tested positive for drugs, noting only that “[m]aybe at a party someone put [it] in my apple juice.” Appellant did not know the date of the party or who was present at the party, and she would not admit to the use of drugs.
The whereabouts of Robert O., the presumed father of Matt and E., are unknown. In 1987, appellant and Robert were married. Matt and E. were born thereafter. Robert stayed home and took care of the children while appellant worked. When appellant found out that Robert was cheating on her, she kicked him out of the family home. She later took him back but told him he needed to find a job. The couple argued when Robert did not find a job, and he hit her. Appellant called the police, who arrested Robert for domestic violence. During the course of the arrest, the police discovered drugs. Robert was charged with dealing drugs. The couple’s relationship ended when Robert was deported to the Philippines.
During the interview, appellant disclosed that Rodney M., the presumed father of Jennifer and Michael, had been arrested a few months earlier for domestic violence after he burned appellant with a blow torch. Appellant claimed it was an accident, however. When the social worker attempted to delve further into appellant’s drug use, she suggested that the social worker ask Rodney. Appellant did admit to having a drug problem “1-year prior to her pregnancy with Jennifer.” Appellant stated she had used drugs with Rodney at that time because she had no money and had nowhere to live.
Rodney is not a party to this appeal.
For this act of domestic violence, Rodney served 15 days in jail.
After speaking with appellant, the social worker went to the family residence and spoke with Rodney, who stated that appellant never would use drugs. When informed of appellant’s positive drug test, Rodney again denied that appellant used drugs. With regard to his own drug use, Rodney claimed that he had been clean since 1995. He admitted that he had been arrested months earlier for domestic violence after appellant falsely accused him of trying to burn her with a blow torch. Rodney stated he was currently enrolled in anger management classes.
In 1995, Rodney was arrested for possession and sales of methamphetamines. He also admitted to receiving stolen property, which was reduced to disturbing the peace. He served seven months in jail.
Rodney subsequently informed the social worker that appellant had him arrested in November 2004 for domestic violence because he asked her to move out of his bedroom. An argument ensued, and appellant blocked the bedroom door, preventing Rodney from leaving. Rodney physically picked her up and moved her. This was the only time he touched her. Appellant had burned her leg the previous week. Rodney had been welding something, and the blowtorch accidentally fell on her leg. Appellant later admitted that she told the police he burned her with a blow torch, but acknowledged it may have been an accident.
Matt confirmed that his mother and Rodney were always fighting and arguing. Their worst fight occurred when Rodney was arrested, and their last fight took place four days earlier. Matt stated that he was used to the fighting and arguing, as well as his mother’s use of profanity toward Rodney. E., too, acknowledged that appellant and Rodney fought frequently.
At a later date, Matt denied that his mother and Rodney ever hit or physically hurt one another. He admitted that their arguing scared him, however. He, as well as E., denied knowing anything about his mother’s or Rodney’s drug use.
In light of appellant’s failure to provide truthful information regarding her drug use, her decision to live with Rodney despite domestic violence in the home, Rodney’s lack of honesty regarding his own drug problem and his failure to acknowledge violence in the home, DCFS took all four children into protective custody.
DCFS thereafter filed a section 300 petition on behalf of all the children, alleging appellant’s substance abuse resulting in Michael’s positive drug test at birth, appellant’s history of domestic violence with Rodney and Rodney’s history of substance abuse. In its detention report, due to appellant’s and Michael’s positive drug tests and the violence between appellant and Rodney, DCFS characterized the family “as being at high risk for future abuse.”
On April 28, 2005, the juvenile court ordered the children detained and ordered DCFS to provide appellant and Rodney with family reunification services. Following the hearing, the older children, Matt and E. were placed in the foster home of R.M., while their younger siblings were placed in the foster home of P.N.
The jurisdiction/disposition report prepared for a hearing on May 24, 2005, related that on May 19, during an interview with a social worker, appellant again refused to come to grips with her substance abuse problem, stating, “I have no idea about drug use. I don’t know how it got into my system. All I like to drink is juice.” She stated, “I never use drugs” and denied any knowledge regarding Rodney’s drug use. She admitted that when she was three months pregnant with Michael, she thought Rodney was cheating on her. She became angry and they fought. She did tell police he burned her with a blow torch but it may have been an accident. She denied any other physical altercations with Rodney but admitted they argued. Appellant did not believe she had done anything wrong.
Rodney on the other hand stated, “I’ve never known [appellant] to use drugs.” He admitted using drugs ten years earlier and that he sold drugs to support his own habit. With regard to his arrest for domestic violence, he related that in November 2004, he asked appellant to move out of his bedroom. She was jealous and an argument ensued. Appellant blocked the door to prevent Rodney from leaving. He picked her up and moved her. This was the only time he touched her. He acknowledged that a week earlier appellant had suffered a burn to her leg. He had been welding something when the blow torch accidentally fell onto her leg. He entered into a plea bargain on the domestic violence charge. He served 15 days in county jail followed by probation.
At this point, the following background information will place the relationship between Rodney and appellant into perspective: Rodney and Robert O. were long time friends. During the time that Robert was incarcerated in the Antelope Valley (see fn. 2, ante), Rodney, who then lived in the San Fernando Valley, allowed appellant to move in with him so that she could be closer to Robert and visit him on a regular basis. According to Rodney, his relationship with appellant is “one in which she moved in and just never left, even though he has asked her to leave many times” since Robert O. was deported. While appellant claims to “love” Rodney, Rodney has not voiced the same sentiment toward appellant. Jennifer and Michael are the product of appellant’s relationship with Rodney.
Rodney agreed to separate from appellant if he had to. He wanted all the children, as he also felt like a father to Matt and E.
Matt and E.’s caregiver described the children as “very good” and “well behaved” but noted they were sad because “they miss their mother.” Both children wanted to return home. In DCFS’s view, appellant “ha[d] clearly provided positive parenting to her two older children, who appear[ed] to be delightful youngsters, saddened by their removal from their mother.” Jennifer also was having difficulties due to her separation from Matt and E. Michael was doing well. His caregiver, P.N., a pediatric nurse, noted that with regard to his prenatal exposure to drugs, Michael’s joints are stiff and “he experiences a few tremors and shaking. He also has a bluish gray tint to his lower extremities.”
After the court’s May 24, 2005 hearing, DCFS learned that another incident of domestic violence had taken place between appellant and Rodney on May 13. Neither appellant nor Rodney had disclosed this incident when interviewed by the social worker on May 19. This incident resulted in police arresting appellant on a charge of assault with a deadly weapon. Although the social worker noted that appellant was released from custody the following day and no charges were filed, “the incident is very concerning as it depicts [appellant] as being out of control, throwing objects at [Rodney], and inflicting much damage to the home.” Both adults were under the influence of alcohol during the incident, and police described appellant as irrational.
During this reporting period, appellant’s and Rodney’s drug tests were negative. Appellant missed one test, which “must be considered ‘dirty.’”
DCFS noted that if appellant and Rodney remained together, “there are significant issues that require resolution before they [would be] able to provide a safe and stable home for the children.”
On June 22, 2005, appellant and Rodney entered into a mediation agreement. They agreed to submit on the section 300 petition as amended, and they agreed that the children be suitably placed. At the adjudication hearing held on June 28, the court sustained the petition as amended per agreement of the parties, declared the children dependents of the court, removed the children from the custody of their parents and ordered the children suitably placed. The court also ordered family reunification services for both parents. As to appellant, the court ordered her to participate in a parenting program, as well as individual, anger management, drug, domestic abuse and alcohol counseling. The court also ordered appellant to submit to random alcohol and drug testing. As to Rodney, the court ordered him to complete parenting and domestic violence programs and to participate in a random drug and alcohol testing program. Ten clean and consecutive drug/alcohol tests were required. If Rodney missed a test or had a dirty test he was to participate in a substance abuse program with random testing.
All the children were declared dependents pursuant to section 300, subdivision (b). Matt and E. also were declared dependents pursuant to section 300, subdivision (g).
Finally, the court granted appellant monitored visitation three times per week with Jennifer and Michael and once per week with Matt and E. Rodney was granted monitored visitation with Jennifer and Michael three times per week.
In September 2005, DCFS exercised its discretion to liberalize appellant’s visitation from monitored to unmonitored. In November, DCFS increased the number of appellant’s visits. In December, appellant’s substance abuse counselor informed DCFS that appellant was not in compliance with the requirement that she attend three Narcotics Anonymous/Alcoholics Anonymous meetings per week. DCFS further learned that in November, appellant had been informed that she had to make up 11 group sessions before she could receive a certificate of completion for the substance abuse programs. Although she had since made up five group sessions, appellant had shown a lack of commitment to the substance abuse program and her own recovery in November and December.
On December 13, 2005, appellant went to her substance abuse program to discuss her missed group sessions. While speaking to the program director, appellant “became very angry, was screaming and demanded a certificate of completion.” She also threatened to sue the program director if she did not provide her with the requested certificate. The director refused, offering to provide her only with a letter documenting the number of sessions she actually had attended.
The program director confirmed that during appellant’s substance abuse treatment, she “continued to deny using drugs during her pregnancy with Michael and has shown no acceptance of the fact that she has a substance abuse problem.” While the policy of the program is to provide a client who attends all components of the program with a certificate of completion, it is up to the client to use the information provided during treatment to his or her benefit.
Results of drug tests taken by appellant on July 11, July 21, September 15, and October 6, 2005, contained the notation, “Specimen is dilute, low creatinine levels.” Such low creatinine levels “raise suspicion that the donor of the sample attempted to create a negative drug and alcohol test result by drinking excessive amounts of water or taking something to dilute the results but is not conclusive evidence of these facts.”
Given appellant’s continued denial of drug use, her lack of participation in court ordered substance abuse treatment, her change in commitment to treatment (which coincided with Rodney’s release from jail) and her diluted test results, DCFS, on December 28, 2005, the date set for the six-month review hearing (§ 366.21, subd. (e)), filed an ex parte application with the juvenile court, asking the court to order appellant’s visits be monitored and to preclude Rodney from acting as a monitor during the visits.
In August 2005, Rodney was arrested for perjury after he used his brother’s identity to obtain a driver’s license. Rodney was incarcerated from August 9 to November 1, 2005.
At the six-month review hearing (§ 366.21, subd. (e)), the court found both parents to be in partial compliance with their case plans. The court continued reunification services for another six months and scheduled a 12-month review hearing (§ 366.21, subd. (f)). With regard to visitation, the court stated that once DCFS determined that appellant was back in her programs and complying with them, her visits with Matt and E. should be unmonitored. With regard to the younger children, the court gave DCFS discretion to liberalize visitation upon receiving verification that appellant was back in her programs and complying with her case plan.
On February 3, 2006, DCFS filed a section 385 petition wherein it reported that on February 1, it learned that Rodney had tested positive for amphetamine and methamphetamine on January 12, 2006. Rodney denied any drug use and claimed the results of February 1 were mistaken. His drug test of February 2 was negative.
The juvenile court ordered DCFS to determine if a mishap could have occurred at the lab during testing. After contacting the laboratory, DCFS learned that the possibility that Rodney’s positive drug test results were mistaken was “highly unlikely as the clients are asked to sign the specimen bottle containing their urine sample . . . to ensure that one client’s specimen is not mistakenly identified as belonging to another client.” In addition, if a drug test is positive, the specimen is tested a second time to ensure accuracy before the result is communicated to DCFS. According to the lab, the level of amphetamine and methamphetamine in Rodney’s urine specimen provided on January 12, 2006 was relatively low, indicating that the narcotics may have been introduced into his system two to three days prior to the drug screening.”
In its petition, DCFS further noted that while Rodney did not have court-ordered visitation with Matt and E., he attended appellant’s monitored visits with these children. In DCFS’s assessment, Matt and E. have a relationship with Rodney and consider him a father figure, and it would be detrimental to their emotional well-being to deny them contact with him. DCFS recommended that Rodney be given monitored visits with all four children. The court granted DCFS’s section 385 petition and ordered monitored visitation for Rodney with all four children. Rodney was prohibited from monitoring appellant’s visitation.
On February 28, 2006, Rodney filed a request for a temporary restraining order against appellant. He requested an order requiring appellant to stay 100 yards away from his home and work. The impetus for Rodney’s decision to seek a restraining order against appellant occurred on February 24, when appellant drove to Rodney’s place of work and tried to run him over. Appellant was hysterical and accused Rodney of having an affair with his boss. Appellant further threatened to call the police and tell them that he hit her so he would never see his children again.
At a review hearing held on March 3, 2006, the court ordered Rodney to complete a drug program. The court’s minute order reflects that the temporary restraining order filed on February 28 had expired and was withdrawn as of March 3.
In an interim review report prepared for a hearing on May 1, 2006, DCFS noted that Matt and E. both had expressed their desire to reunify with appellant and Rodney. Matt specifically stated, “It has been too long, I just want to be with my mom and Rod.” The children nevertheless appeared to be well adjusted in their current placement and were engaging in normal teenage activities.
DCFS further reported that appellant and Rodney were living apart due to a fire at the family home in January. As a result of conflict in their relationship, both informed the social worker that they did not wish to live together as a couple. They planned to secure separate housing. The separation had given rise to a lot of arguing between appellant and Rodney, however. The caregiver of the older children, as well as the caregiver of the younger children, each reported to the social worker that the parents have disagreements with one another during visitation with the children. Due to the separation, appellant no longer wanted Rodney to visit Matt and E. as they are not his biological children. Both of the children wanted to visit with him and viewed him as a father figure.
In the social worker’s view, the conflict between appellant and Rodney was fueled by appellant’s jealousy of Rodney’s interactions with other women. Rodney shared that he recently was fired from a job after appellant accused Rodney’s female boss of having an affair with Rodney. Appellant denied making the accusation. Matt and E.’s caregiver informed the social worker that while monitoring a visit for both parents, appellant became angry and accused the caregiver of having a romantic relationship with Rodney.
Due to the fact that neither appellant nor Rodney had completed substance abuse counseling or secured permanent housing, DCFS recommended that the children remain in their placements.
In fact, appellant had been terminated from her program and had enrolled in another program.
At the May 1, 2006 hearing, the court ordered that appellant receive two hours of unmonitored visitation with her two oldest children. Rodney was given monitored visitation with all four children. Appellant and Rodney were ordered not to visit the children at the same time.
In a report prepared for the 12-month review hearing (§ 366.21, subd. (f)) scheduled for June 28, 2006, DCFS stated its “assessment that while mother and father Rodney . . . have made some progress towards complying with the Court ordered case plan, they have not adequately addressed the main case issue of substance abuse. Neither parent has completed substance abuse treatment during this dependency case or even come to terms with and admitted that they have struggled with substance abuse issues. Both mother and father have already received twelve months of Family Reunification services. Father’s two children, Jennifer and Michael are under the age of three. Further, the parents continue to struggle with relationship issues and mother is at times unable to control her anger in front of the children.” DCFS recommended that family reunification services be terminated and that, based on a home assessment report received from Southwest Human Development, all the children be placed in Arizona with their maternal grandparents. Appellant wanted all four children to be placed with their grandparents. Rodney wanted Jennifer and Michael to remain with their caregiver P.N., who stated her willingness to become the permanent caregiver for all four children if necessary. Matt and E. wanted to remain in California close to their mother.
On June 28, 2006, the juvenile court authorized roundtrip airfare for two social workers to accompany all four children to Arizona to visit their grandparents. It continued the matter to August 14, 2006 for a contested hearing.
On July 6, 2006, the children flew to Arizona to visit their maternal grandparents. On July 17, the social worker received a call from the children’s maternal aunt who lived with the maternal grandparents. Both the aunt and the grandparents confirmed that it was too difficult to take care of the children. Jennifer and Michael returned to California on July 22 and were placed with P.N. Matt and E. returned to California on August 6, at which time they, too, were placed in the home of P.N. On August 7, the children’s maternal grandmother died.
On August 14, 2006, the juvenile court again found appellant and Rodney in partial compliance with their case plans. Over the objection of DCFS, the court continued the parents’ reunification services for another six months.
On August 25, 2006, DCFS filed another section 385 petition. On August 23, DCFS learned that appellant had tested positive for amphetamine and methamphetamine on August 15. When the social worker telephoned appellant on August 23, appellant denied using these drugs and had no idea how she could have tested positive for them. Appellant later called the social worker back and admitted she had used methamphetamine with Rodney the weekend of August 12. Appellant also admitted that she tested positive for methamphetamine at the sober living facility where she was residing after the weekend of August 12. According to appellant, the facility asked her to leave but had since let her live there again. Appellant also saw Rodney the night of August 22, 2006. At that time, she declined his invitation to use methamphetamine. DCFS asked that appellant’s visitation revert back to monitored. The juvenile court granted the section 385 petition and ordered appellant’s visits to be monitored. The court again ordered that the parents not visit the children together.
A status review report prepared in anticipation of the 18-month review hearing related that Rodney tested positive for methamphetamine on September 20 and October 4, 2006. When DCFS inquired about his drug use, he admitted to using methamphetamine on occasion. He admitted that he used the drug “because he realizes that he cannot care for the children and supports them being adopted by their current caregiver.” He previously could not admit this to the social worker. According to her substance abuse counselor, appellant was currently in compliance with her substance abuse program.
Although appellant and Rodney were no longer involved romantically, they continued to have an unhealthy relationship. In August, DCFS received a letter from Rodney’s substance abuse program, asking that appellant no longer submit to random drug tests at its facility. Appellant would look for Rodney when she came to the facility and then become hostile toward him, as well as the employees.
DCFS again noted that while the parents had made some progress in complying with the case plan, they had yet to address adequately their substance abuse by completing a substance abuse program. Moreover, each parent continued to have positive drug tests. DCFS again recommended that family reunification services be terminated and that the children remain suitably placed with P.N.
At the 18-month review hearing held on October 27, 2006, the court noted that appellant had a positive drug test in August. In light of appellant’s “dirty test,” her counsel submitted the matter rather than setting the matter for a contest.
Appellant explained, “I did what I did because on that situation that I tested positive for drugs because I was like lost because of my mom[’s death], all my problems every day. So that’s what happened.”
The court observed: “[Appellant] is in a sober living program. She’s almost completed it. But she has not quite. She has had a positive drug test, but that’s part of recovery, I guess. She’s also to do [domestic violence] and parent education and individual counseling. She hasn’t accomplished all those things. She’s like in partial compliance with the case plan.” Appellant’s attorney observed that the court had fairly assessed his client’s progress.
The court concluded that Rodney was not in compliance with his case plan. Concluding that the children could not be returned to their parents and that it was not probable that they would be returned in six months, the court terminated appellant’s and Rodney’s family reunification services and scheduled a section 366.26 hearing for February 23, 2007.
The court directed DCFS to undertake an adoption assessment, noting that the older children may not want the same plan as their younger siblings. The court stated it looked forward to seeing a “very positive” section 388 petition from appellant in the future. The court encouraged appellant to finish her programs, “stay with it, get back on the horse and stay sober.”
On February 21, 2007, DCFS advised the court that on February 7 appellant was requested to submit to an on-demand drug test, in that she slurred her words and seemed intoxicated during a telephone conversation. Appellant became very upset and refused to test. Appellant’s substance abuse counselor at Tarzana Treatment Center informed the social worker that appellant was required to submit to weekly random drug tests as part of her aftercare program. On February 16, 2007, appellant refused to submit to a random drug test.
In its report prepared for the February 23, 2007 section 366.26 hearing, DCFS stated that on January 22, 2007, the social worker assigned to the case received a call from an anonymous source who reported that appellant “had gotten some ‘stuff,’” meaning that she had used methamphetamine. The social worker called appellant and asked her to submit to an on-demand drug test. Appellant became extremely upset and stated she would test in two days with her substance abuse counselor. Appellant explained that “she was sick and wanted to stay in bed all day and did not want to go to the drug-testing site.” The social worker terminated the telephone call when appellant started to yell.
Appellant and Rodney continued to have regular contact with all four children. Although the juvenile court had ordered the parents not to visit at the same time, appellant nevertheless would show up during Rodney’s visits. “During these visits, [appellant] displayed angry outbursts that included screaming and being irate which upset the children, including, Matt and [E.].” This behavior also occurred when P.N. reminded appellant that it was inappropriate for her to visit at the same time as Rodney. Because of appellant’s behavior, as of January 12, 2007, Matt refused to go to the visits.
DCFS noted that while appellant continued to attend her court-ordered programs, “it appears she is not gaining insight into the problems that led to the removal of her children. She has displayed angry outbursts that upset the children and has not tested upon demand of the Department and as recommended by her drug treatment program.” DCFS recommended a plan of legal guardianship for Matt and E. but adoption for Jennifer and Michael. P.N. was committed to adopting Jennifer and Michael and to providing a permanent plan of legal guardianship for Matt and E. so they could remain in their home and grow up with their siblings.
Matt and E. still wanted to return to their mother and did not want to be adopted. They were, however, agreeable to having P.N. be their legal guardian if they could not live with their mother.
Matt was having some difficulty accepting the fact that his mother had not regained custody of him. He also was having some behavioral problems, including smoking marijuana. On November 29, 2006, police picked up Matt for smoking marijuana and issued him a citation. P.N. and her husband were committed to parenting Matt and E. and to helping Matt deal with his issues. They had every intention of seeking legal guardianship of Matt and E.
At the February 23, 2007 hearing, the court noted that all four children continued to live in the same foster home. While the caregivers were willing to adopt the two younger children, Jennifer and Michael, the two older children, Matt and E., did not want to be adopted. Rather, they wanted to reunify with their mother. The court continued the matter to April 11, 2007 for a contested section 366.26 hearing as to Jennifer and Michael. The court also advised appellant that every drug test she refuses to take is considered a dirty test, and it will be assumed that she is using drugs.
In preparation for the April 11, 2007 hearing, DCFS prepared a report in which it repeated that appellant had refused to submit to drug testing on February 7 and 16, 2007. Appellant was asked to submit to a drug test on February 7 because she was slurring her words and seemed intoxicated while speaking to a social worker over the telephone. The February 16 test was required as part of her aftercare drug treatment program. Appellant refused to test, stating she was tired and did not feel well. Appellant’s drug tests were negative on February 2, 9, 20 and 29, March 16, 23 and 29, and April 6, however. DCFS reiterated that appellant did not appear to be gaining insight into the problems that led to the removal of her children.
On April 11, 2007, the date set for the contested section 366.26 hearing, appellant filed a section 388 petition in which she asked the court to modify its prior orders. Specifically, appellant asked the court to reinstate reunification services, to change her visitation from monitored to unmonitored and to return her children to her. Appellant advanced as changed circumstances her successful completion of five out of six months of her drug treatment program, her negative drug tests, and her older children’s desire to be reunified with her. She further claimed that the changes she requested were better for her children, in that she was “ready, willing and able to care for her children, and, as the children are also bonded to her emotionally, it would be in their best interest to return them to her care.” In addition, she claimed that her “drug rehabilitation participation and clean testing evidences no risk in making [her] visits unmonitored.” Attached to her request for change of court order was a progress letter from Tarzana Treatment Center dated April 9, 2007. This letter stated that appellant, who was admitted into the program on November 3, 2006, “has tested negative on eleven UA test[s] from 11/08/2006 until to[day] 04/09/2007. She has been consistent in her group attendance and provided proof of attending 12-step meeting[s]. [Appellant] appears motivated for change and receptive to counseling to bring about change. [She] has completed all requirements of the intensive outpatient part of the program and has transitioned into the after care program.”
Appellant did so by filing a Request to Change Court Order. California Rules of Court, rule 5.570(b) provides that “[a] petition under Welfare and Institutions Code section 388 must be made on form Request to Change Court Order (form JV-180).”
At the commencement of the hearing on April 11, 2007, the court referenced appellant’s section 388 petition and denied it stating, “[U]nfortunately the court feels it needs to deny [the section 388 petition] because she says that she’s completed and complied with the drug program, and today’s report tells me that she’s missed two tests, missed a test and refused to test on demand twice. And so I don’t think that shows good rehabilitation, so I’m denying the 388 because I don’t believe there’s a change in circumstances or that it shows it’s in the best interest of the children.”
The court then held the section 366.26 hearing during which it terminated appellant’s and Rodney’s parental rights over Jennifer and Michael, thereby freeing them for adoption. With respect to the two older children, the court trailed the section 366.26 hearing to the review of permanent placement hearing already scheduled for April 26. On that day, the court selected a permanent plan of legal guardianship for Matt and E. This appeal from the denial of appellant’s section 388 petition and the termination of her parental rights followed.
DISCUSSION
Procedure for Modifying Juvenile Court Orders
Section 388 in pertinent part provides that “[a]ny parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made . . . .” (Subd. (a).) If it appears that the child’s best interests “may be promoted by the proposed change of order, . . . the court shall order that a hearing be held.” (§ 388, subd. (c).) “The section 388 modification petition plays a particularly important role in juvenile dependency cases, because it is the mechanism by which the changing conditions of a family and a child’s life may be taken into account.” (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1260, disapproved on another ground in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)
In order to establish an entitlement to a full evidentiary hearing under section 388, a parent seeking modification of a juvenile court order must make a prima facie showing (1) that there has been a change of circumstances or there is new evidence and (2) that the best interests of the child would be promoted by the requested modification. (In re Marilyn H. (1993) 5 Cal.4th 295, 310; In re Justice P. (2004) 123 Cal.App.4th 181, 188-189; In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) A parent meets the prima facie requirement if the facts alleged in the petition are supported by evidence, which if credited at the hearing, would warrant the granting of the petition. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505; In re Josiah S. (2002) 102 Cal.App.4th 403, 418.) “[C]onclusory claims are insufficient to require a hearing,” however. (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348.) Rather, “[s]pecific descriptions of the evidence constituting changed circumstances is required. ‘Successful petitions have included declarations or other attachments which demonstrate the showing the petitioner will make at a hearing of the change in circumstances or new evidence.’ [Citation.]” (Ibid.)
Thus, a section 388 petition may be denied without a hearing if the liberally construed petition fails to disclose a change of circumstances or new evidence that might call for the modification of a prior order or if the petition fails to show that the proposed modification would be in the child’s best interest. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1071; In re Justice P., supra, 123 Cal.App.4th at p. 189; In re Josiah S., supra, 102 Cal.App.4th at pp. 418-419; In re Zachary G. (1999) 77 Cal.App.4th 799, 806; Cal. Rules of Court, rule 5.570(e).) On the other hand, 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; In re Hashem H. (1996) 45 Cal.App.4th 1791, 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. (In re Marilyn H., supra, 5 Cal.4th at p. 310; In re Daijah T. (2000) 83 Cal.App.4th 666, 671-672; In re Kimberly F. (1997) 56 Cal.App.4th 519, 526-527, fn. 5.)
A section 388 petition is to be construed liberally in favor of its sufficiency. (In re Marilyn H., supra, 5 Cal.4th at p. 309; In re Hashem H., supra, 45 Cal.App.4th at p. 1798; Cal. Rules of Court, rule 5.570(a).) In determining whether a prima facie showing has been made, the juvenile court “may consider the entire factual and procedural history of the case.” (In re Justice P., supra, 123 Cal.App.4th at p. 189.)
We review the summary denial of a section 388 petition for an abuse of discretion. (In re D.R. (2007) 155 Cal.App.4th 480, 487; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.) “We must uphold the juvenile court’s denial of appellant’s section 388 petition unless we can determine from the record that its decisions ‘“exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” [Citations.]’ [Citations.]” (In re Brittany K., supra, 127 Cal.App.4th at p. 1505.) It is a rare occasion when the denial of a section 388 petition warrants reversal. (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)
The Trial Court did not Abuse its Discretion in Denying Appellant’s Section 388 Petition Without an Evidentiary Hearing
In her section 388 petition, appellant stated that she successfully had completed the first five months of her six-month drug treatment program and that she had tested “clean” for the entire treatment period. She further alleged that her two older children had expressed their desire to be reunited with her and that all four children were bonded to her emotionally. Her petition included a progress report dated April 9, 2007 from her drug counselor. The report confirmed that appellant had 11 negative drug tests from November 8, 2006 until April 9, 2007, had been “consistent in her group attendance” and had “provided proof of attending 12-step meetings.” In addition, appellant “had completed all requirements of the intensive outpatient part of the program and ha[d] transition[ed] into the after care program.”
On April 11, 2007, the juvenile court summarily denied appellant’s section 388 petition, explaining that the report prepared for the hearing disclosed that appellant had refused to submit to drug testing twice. The trial court was referring to appellant’s refusal to submit to drug testing on February 7 and 16, 2007. As previously noted, appellant was asked to submit to a drug test on February 7 because she was slurring her words and seemed intoxicated while speaking to a social worker over the telephone. The February 16 test was required as part of her aftercare drug treatment program. Appellant refused to test, stating she was tired and did not feel well. In the court’s view, appellant’s refusal to test did not “show[] good rehabilitation.”
Appellant’s trial counsel stated that the letter from appellant’s counselor demonstrated “that mother had completed the intensive portion of her drug program.” Although counsel “underst[oo]d the hurdle with regard to the best-interest showing,” he believed appellant had substantially complied with her program and thus demonstrated a change of circumstances.” The trial court did not agree; neither do we.
Appellant’s near completion of a substance abuse program does not constitute a prima facie showing that her circumstances have changed. (See, In re Angel B. (2002) 97 Cal.App.4th 454, 463.) Nothing in her petition remotely suggests that she has gained insight into the problems that led to the removal of her children. Appellant has never admitted that she used drugs while she was pregnant with Michael. When confronted with a positive drug test result in August 2006, her initial reaction was to deny that she had used drugs. To her credit, she called the social worker back and admitted that she had ingested methamphetamine on August 15 with Rodney. In February 2007, only two months prior to the date set for the section 366.26 hearing, appellant refused to submit to drug testing twice.
The record on appeal discloses that on May 10, 2007, the date on which appellant filed her notice of appeal, the juvenile court held a detention hearing, in that appellant had given birth to another child, Gianna M., and DCFS filed a petition on the child’s behalf. The court observed that Gianna had been “born clean and sober” but noted that “there’s a lot of issues about whether mom is still using. She’s still with Mr. M[.] who’s never really got his act together.” The court ordered Gianna detained and placed the child with DCFS, which agreed to offer appellant family reunification services. The record sheds no light on whether appellant already was pregnant with Gianna when she ingested methamphetamine on August 15, 2006. In February 2007, when she refused to submit to drug testing on two occasions, appellant would have been approximately six months pregnant.
In addition, appellant’s substance abuse was not the only basis for juvenile court jurisdiction over her children. Domestic violence also played a role. The record reveals that although appellant and Rodney stopped living together in January 2006, their relationship remained tumultuous as evidenced by appellant’s continued irate behavior in the presence of her children. In fact, their constant fighting and bickering had led Matt to stop visiting with his mother in January 2007. “Although the specific factors a court must consider vary with each case, each child’s best interests would necessarily involve eliminating the specific factors that required placement outside the parent’s home.” (In re Angel B., supra, 97 Cal.App.4th at pp. 463-464.) Appellant’s section 388 petition is silent on the issue of her volatile relationship with Rodney.
While appellant is to be commended for her continuing efforts to complete her substance abuse program, that she is nearing completion of the program shows only that her circumstances may be changing, not that they have changed sufficiently to warrant the modifications she requested. “‘A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent . . . might be able to reunify at some future point, does not promote stability for the child or the child’s best interests. [Citation.] “‘[C]hildhood does not wait for the parent to become adequate.’”’ [Citation.]” (In re Mary G. (2007) 151 Cal.App.4th 184, 206.) Absent a prima facie showing of changed circumstances or new evidence that might require modification of an order, the trial court acted well within its discretion in summarily denying appellant’s section 388 petition.
Assuming for purposes of argument that appellant made a prima facie showing of changed circumstances, we nevertheless would conclude that she failed to demonstrate adequately that the changes she requested were in the best interests of her children. Once the juvenile court terminates family reunification services, the parent’s interest in the care, custody and companionship of his or her child ceases to be of paramount concern. At this junction, the focus shifts to the child’s need for permanency and stability (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Marilyn H., supra, 5 Cal.4th at p. 309; In re Brittany K., supra, 127 Cal.App.4th at p. 1507; In re Mary G., supra, 151 Cal.App.4th at p. 204), and “a rebuttable presumption that continued foster care is in the best interests of the child” arises (Stephanie M., supra, at p. 317; Marilyn H., supra, at p. 310). This “presumption obviously applies with even greater strength when the permanent plan is adoption rather than foster care.” (In re Angel B., supra, 97 Cal.App.4th at p. 464.)
Michael has never lived with appellant. P.N., with whom he was placed directly from the hospital and who is willing to adopt him, is the only real parent he has ever known. Appellant’s petition contains no evidence suggesting that it would be in Michael’s best interests to remove him from his placement. Appellant also has proffered no evidence suggesting that reinstitution of reunification services or unmonitored visits would be in Michael’s best interests. Stated otherwise, appellant has failed to rebut the presumption that it is Michael’s best interest to remain in his current placement with P.N. (In re Brittany K., supra, 127 Cal.App.4th at p. 1505.) Appellant had 18 months within which to reunify with Michael and his siblings but failed to do so. “The current statutory scheme makes it clear that the turning point at which the child’s interest may outweigh that of the parent is reached no later than 18 months after the child has been removed from the parental home, because the maximum length of time that reunification services are provided to the parent is 18 months. [Citations.]” (In re Jasmon O., supra, 8 Cal.4th at p. 420.) At this point in the dependency proceedings, Michael’s need for permanency and stability are paramount.
Although Jennifer lived with appellant for the first 18 months of her life, Jennifer too has found permanency and stability in the home of P.N., where she lives with her brother Michael and her half-siblings, Matt and E. The permanent plan for Jennifer is adoption, and P.N. is willing to adopt her. Appellant did not make a prima facie showing that the modifications she sought were in Jennifer’s best interest.
Matt and E. present a more difficult problem. They are very attached to their mother and have steadfastly voiced their desire to be reunited with her. In addition, they have made it clear that they do not want to be adopted. While a child’s desire to live with a parent “constitutes powerful demonstrative evidence that it would be in [the child’s] best interest to allow [him or] her to do so” (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432), children do not always know what is best for them. Thus, “a child’s wishes are not determinative of [his or] her best interests.” (Ibid.)
Matt and E. presently are in a loving home with Jennifer and Michael. In light of their unwillingness to be adopted, P.N. offered to be their legal guardian so that all four children could remain together. Matt and E. were not opposed to a permanent plan of legal guardianship if they could not return to their mother. Appellant’s petition failed to make a prima facie showing that it was in Matt’s and E.’s best interests to forego this permanent plan in favor of the changes sought by appellant.
Finally, although appellant in her petition claimed to be “ready, willing and able to care for her children,” she did not provide any evidentiary support that she actually had the present ability to care for them. This conclusory assertion did nothing to bolster her already deficient petition. (In re Ramone R., supra, 132 Cal.App.4th at p. 1348.)
We do not intend by anything we have said to imply that an adequate showing in this regard would have warranted a hearing on appellant’s section 388 petition.
For the foregoing reasons, we conclude that the trial court acted well within its discretion in summarily denying appellant’s section 388 petition. (In re D.R., supra, 155 Cal.App.4th at p. 487; In re Brittany K., supra, 127 Cal.App.4th at p. 1505; In re Jamika W., supra, 54 Cal.App.4th at p. 1451.)
The Order Terminating Appellant’s Parental Rights Must be Upheld
Appellant’s request that we set aside the order terminating her parental rights over Jennifer and Michael is based solely on her claim that the juvenile court abused its discretion when it denied her a hearing on her section 388 petition. Inasmuch as we have concluded that the court did not abuse its discretion in denying her petition without a hearing, and appellant has proffered no independent basis for setting aside the court’s order terminating her parental rights over Jennifer and Michael, we have no basis for disturbing that order.
The orders are affirmed.
We concur: MALLANO, Acting P. J. ROTHSCHILD, J.