Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK37781, Richard D. Hughes, Juvenile Court Referee.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens and Tracey F. Dodds, Deputy County Counsel.
ARMSTRONG, J.
Krista G. appeals from a trial court order denying her a hearing on her Welfare and Institutions Code section 388 petition and terminating her parental rights, in the dependency proceedings concerning her children Jessie, Rex, and Scott. We affirm, as we explain:
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The children were detained in June of 2005, when Jessie was three years old and twins Rex and Scott were two. All three children were in good health and exhibited normal development. None had any emotional problems. They were placed in the same foster family, where they have remained throughout the dependency.
The factual allegations of the section 300 petition involved appellant's history of drug use, record of criminal convictions for drug related offenses, failure to reunify with an older child, and the unsanitary state of her home and the children when DCFS first investigated.
Appellant told DCFS that she no longer used drugs and had completed a drug program while incarcerated in 2004. She also said that she had not completed the post-incarceration program which was a condition of her probation and that she planned to turn herself in on the warrant.
In early August, she turned herself in on a Los Angeles County warrant. She pled to non-drug misdemeanor offenses and was sentenced to summary probation and 15 days in jail. However, she still had a warrant outstanding in San Bernardino County and on August 19, she was pulled over on a traffic stop and arrested on that warrant. She was sentenced to 16 months, though her credit for time served meant that her actual incarceration was much shorter.
The petition was sustained in November under section 300, subdivisions (b) and (j). Reunification services were not ordered.
Beginning in May 2006, DCFS began to report that the foster family wished to adopt all three children.
Appellant did not visit the children between their detention in June and her arrest in August, and although DCFS had asked her to drug test, she did so only once, with negative results. However, on her release from custody, apparently in December 2005, she began to visit. For the most part, she and the children had weekly monitored visits until October 31, 2006. After that, the visits stopped and appellant's whereabouts were for a time unknown to DCFS. Later, DCFS reported that appellant appeared to be under the influence at that last visit, and appellant explained that she had a relapse into drug use and was shortly thereafter arrested for a parole violation, for living in a different county.
Appellant was apparently released in March 2007. In July 2007, she filed her first section 388 petition. She asked that the children be returned or in the alternative for liberalized visits and reunification services. As changed circumstances, she wrote that she had completed all the programs ordered at the disposition hearing, had stable housing and been visiting regularly and drug testing for her parole officer, with negative results. Concerning the children's best interest, she wrote that they wanted to live with her, that she had addressed all problems that had led to their removal, and that she could meet their physical and emotional needs. She wrote that they were better suited to living with her than with an adoptive parent and that they had a strong bond with her. She attached evidence that she had completed substance abuse and other programs in 2004, generally through the San Bernardino County Sheriff's Department. The court set a hearing on the petition. The hearing took place in September 2007.
DCFS reported for the hearing: Appellant was living with her fiancé, John M. He had an extensive criminal history, but told DCFS that he had completed a two-year inpatient substance abuse program and had not been arrested since 2002, a claim borne out by the criminal history DCFS attached.
Appellant said that she had been drug testing voluntarily for the last four months, and attending NA meetings. She was on parole. Her parole officer told DCFS that she was in violation of her parole because she lived in Victorville, outside the county.
The children's foster mother said that appellant had not maintained regular telephone contact or visits with the children. The social worker reported that after visits, Jessie would say that appellant had told her that she would be going home soon. As a result, the social worker asked the foster family agency to monitor visits. Appellant had not followed through with this arrangement.
Appellant testified at the hearing. She admitted that she had relapsed in October 2006, but said that she went back to counseling immediately after her release from custody. She also testified that she was currently attending NA and counseling three times a week, and was drug testing with negative results.
As to visits, appellant testified that she had visited as much as she was allowed, which was for a time three one-hour visits a week. Visits had recently become difficult because of the children's school schedule, and had been postponed by the foster mother or the social worker, who did not want her to pick the children up after school and who had been uncooperative about scheduling visits. At her most recent visit, in August, the children were excited to see her and called her Mommy. She testified that from her programs, she had learned sobriety and learned to be a better parent, and that she loved her children and knew them as no one else could.
The court denied the petition.
Appellant's second section 388 petition, the subject of this appeal, was filed on January 24, 2008. By this time, a section 366.26 hearing had been set, and the foster family had an approved adoption home study.
In her petition, appellant again asked that the children be returned or in the alternative for liberalized visits and reunification services. As changed circumstances, she wrote that she had completed programs and classes to address the issues that caused her children to be removed from her, that she was visiting the children, drug testing with negative results, had stable housing, and had completed parole. Concerning the best interest of the children, she wrote that they had always wanted to live with her, and again wrote that she had addressed all problems that had led to their removal, that she could meet their physical and emotional needs, that they were better suited to living with her than with an adoptive parent, and that they had a strong bond with her.
She attached evidence that she had completed an on-line class covering such topics as child development, a copy of the lease through which she and John M. leased their home, and a number of what appear to be scrapbook pages with pictures of the children at their birthdays, Christmas, and Easter. An adult, presumably appellant, is in several of the pictures.
DCFS reported on January 24, with an interim review report. The report included the foster mother's statement that appellant had had only two visits since October 31, 2007, and that she did not call the children consistently.
The court denied a hearing on the motion. Appellant contends that the court abused its discretion in so doing. The law is well established. A parent has a right to a hearing on a section 388 petition if the petition makes a prima facie showing that new evidence or changed circumstances exist and that the proposed change in order would promote the best interests of the child. (§ 388; In re Marilyn H. (1993) 5 Cal.4th 295, 301.) The petition must be liberally construed in favor of granting a hearing. (Id. at p. 309.) We review the trial court's ruling under an abuse of discretion standard. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
Appellant argues that the petition made the required prima facie showing. She cites her additional months of stable housing, stable relationship, NA meetings, and negative drug tests, and, as to best interest, her statement that the children had a strong bond with her and her statement that she could meet all of their needs. She also argues that the denial of a hearing meant that she could not testify concerning the foster mother's representation about visits.
We see no abuse of discretion. The petition stated that the children wanted to live with appellant and that they had a strong bond with her, but the assertions are not supported by the record of the dependency and we cannot see that in evaluating the petition, the trial court was required to ignore that record.
The record establishes that when the children were first detained, they very much wanted to be with their parents. All three children were evaluated by a psychologist in February of 2006. The evaluator wrote that Jessie and Rex wanted to be with their parents and that Scott vacillated between wanting to go back and wanting to stay in the foster home. As soon as she got to the foster home, Jessie repeatedly asked to go home, and as of the time of the evaluation she still talked about baking cookies with her mother and watching soap operas with her, and said that she wanted to go home. Rex said that he missed his mommy and wanted to see her. Even Scott still said that he was sad because "no more mommy, no more daddy."
However, that evaluation took place almost two years before the section 388 petition. Moreover, it took place during the period of appellant's most consistent visits, which was between December 2005 and October 2006. Reports after February 2006 do not reflect that the children wanted to return home, but instead that they were doing well in their foster home and were attached to their foster parents. DCFS's final report was that they were closely bonded to their foster parents.
The petition also stated that appellant was visiting the children regularly. The earlier petition made the same claim, but there was contested evidence on the point, and in denying the petition the court found that appellant's visits had been "occasional." It is true that without a hearing, appellant could not cross-examine the foster mother about visits, but nothing prevented her from presenting, for instance, a log of her visits, or other evidence that she had visited.
Appellant cites the evidence that the children were excited to see her at her August 2007 visit, and called her "mommy." That is evidence that appellant had a positive relationship with her children, but it is not a prima facie showing that a change in order was in the children's best interest.
Disposition
The order is affirmed.
We concur: TURNER, P. J. KRIEGLER, J.