Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, Michael Imhoff, Commissioner. Super. Ct. No. NJ13263
HALLER, J.
Tami L. appeals a juvenile court order summarily denying her petition for modification under Welfare and Institutions Code section 388 as to her minor daughter Jessica R. Tami contends the court erred by denying her a hearing because she made a prima facie showing her circumstances had changed and the proposed modification—returning Jessica to her care or ordering further reunification services—was in Jessica's best interests. We affirm the order.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2006 the court declared 10-year-old Jessica a dependent of the court under section 300, subdivision (b) and removed her from Tami's custody based on findings Tami abused alcohol, failed to take her prescription medication for depression, talked about suicide, and physically and emotionally abused Jessica. The court placed Jessica in foster care and ordered Tami to participate in reunification services.
During the next 18 months Tami participated in services, which included addressing her alcohol problem, and was able to reunify with Jessica. However, in October 2007 the San Diego County Health and Human Services Agency (Agency) filed a section 387 supplemental petition, alleging Tami could no longer provide adequate care and supervision for Jessica because Tami resumed drinking alcohol and was arrested for being drunk in public. At a contested jurisdiction and disposition hearing, the court found Tami had not made substantive progress with her case plan, terminated services and set a section 366.26 selection and implementation hearing.
According to an assessment report, Tami's visits with Jessica were sporadic. When Tami did visit, her behavior was unpredictable and sometimes inappropriate. Tami acted like a child, and Jessica took on the role of parent. In a three-month period, Tami telephoned Jessica only 10 times. The calls were often disturbing and upsetting to Jessica.
Jessica participated in a psychological evaluation with M. Bruce Stubbs, Ph.D. Dr. Stubbs reported that Jessica wanted to live with Tami, and was confused about why she could not do so. Jessica had extremely poor insight into Tami's many deficits and difficulties, and went to great lengths to defend and rationalize Tami's behavior despite her pattern of emotionally abusing and denigrating Jessica. In Dr. Stubbs's opinion, returning Jessica to Tami was a poor and unreasonable option. Jessica felt responsible for Tami's happiness and well-being. In Dr. Stubbs's opinion, her relationship with Tami was extraordinarily pathological and ultimately very unhelpful to Jessica.
At a selection and implementation hearing, the court found Jessica was not adoptable and there was no one willing to accept legal guardianship. The court identified foster care as Jessica's permanent plan, with a goal of a less restrictive placement. That goal was achieved three months later when the court placed Jessica in San Pasqual Academy.
In February 2009, Jessica ran away from San Pasqual Academy. She told the staff she wanted to live with Tami. Agency filed another section 387 supplemental petition and Jessica was placed in a group home. As of April 4, Tami had not visited Jessica at the group home despite being encouraged to do so.
On April 8 Tami filed a section 388 petition, seeking to modify the court's orders terminating services and placing Jessica in a group home. Tami asked the court to return Jessica to her custody, or alternatively, reinstate reunification services including unsupervised visitation and conjoint therapy. As changed circumstances Tami alleged: she had been in therapy since December 4, 2008, and had made excellent progress; she was attending Alcoholics Anonymous (AA) meetings and had been sober for three years; she was living and working in a sober living home; and Jessica wanted to return home. Tami further alleged the proposed modification was in Jessica's best interests because family reunification would allow her to rebuild her relationship with Jessica. Further, Jessica would be able to grow up in a safe and secure home, and Tami and Jessica wanted to reunify and were willing to work toward having a healthy and loving relationship. Attached to the modification petition was a letter from Tami's therapist stating Tami was ready to "move forward in her relationship with [Jessica], hopefully in the direction of reunification." Tami also attached a letter verifying her residence and stating she earned $300 a month for housekeeping services. The court denied Tami's modification petition without an evidential hearing, but authorized conjoint therapy for Tami and Jessica if Jessica's therapist deemed it therapeutically appropriate.
DISCUSSION
A
A party may petition the court under section 388 to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there is a change of circumstances or new evidence, and (2) the proposed change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The petition must be liberally construed in favor of its sufficiency. (Cal. Rules of Court, rule 5.570(a); In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (In re Marilyn H., supra, at p. 310.) " '[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.' [Citation.]" (In re Jasmon O., supra, at p. 415.) "However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189.)
B
Tami's modification petition alleged her circumstances had changed because she had been making progress in therapy for the past four months. However, Tami made no prima facie showing her progress in therapy was sufficient to warrant having Jessica returned to her care. Instead, her therapist's opinion that she was ready to "move forward" with her relationship with Jessica in the hopes of reunifying shows, at most, Tami's circumstances were "changing," but had not changed. These allegations of changing circumstances are not legally sufficient to warrant a hearing on her section 388 petition. (In re Angel B. (2002) 97 Cal.App.4th 454, 465.)
Tami's petition also alleged she was attending AA meetings and had maintained her sobriety for three years, and she currently lived and worked in a sober living home. However, Tami's claim she had been sober for three years is belied by the record showing her alcohol abuse had not been treated and she was arrested for being drunk in public in October 2007, necessitating Agency's intervention on behalf of Jessica. Although Tami may currently be in a sober living residence, her petition does not allege she has resolved the protective issues, including alcohol abuse, such that she is able and ready to safely parent Jessica or have unsupervised visits with her.
C
Even had Tami made a prima facie showing of changed circumstances, her petition did not show that placing Jessica with her or providing further services was in Jessica's best interests. According to a psychological evaluation, Jessica's relationship with Tami was "extraordinarily pathological and ultimately very unhelpful for her." Jessica assumed the role of parent with Tami, believed she was responsible for Tami's happiness and well-being, and consistently excused Tami's poor behavior. The court was entitled to consider this evidence in finding Tami did not make a prima facie showing that the proposed change—placing Jessica with Tami—might be in Jessica's best interests.
Although Tami's goal of rebuilding her relationship with Jessica and providing her with a safe and secure home is admirable, the record shows Tami received more than 18 months of services and was unable to maintain her sobriety or properly parent Jessica. Significantly, Tami has been unable or unwilling to consistently visit Jessica, contributing to Jessica's serious emotional and behavioral problems. In Dr. Stubbs's opinion, Jessica's long-term interests would be best served by living in a stable family setting and having only limited and highly structured contact with Tami. Because the facts alleged in the petition, even liberally construed, would not have sustained a favorable decision on the section 388 petition, Tami was not entitled to an evidential hearing. (In re Zachary G., supra, 77 Cal.App.4th at pp. 806, 808; In re Mary G. (2007) 151 Cal.App.4th 184, 205-206.)
DISPOSITION
The order is affirmed.
WE CONCUR: NARES, Acting P. J. O'ROURKE, J.