Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Imperial County, Poli Flores, Commissioner, Super. Ct. No. JJP01092.
NARES, J.
Janet F. appeals a judgment of the juvenile court terminating her parental rights to her minor son Jesus F. under Welfare and Institutions Code section 366.26. Janet contends the court abused its discretion by denying her section 388 petition for modification seeking additional reunification services based on a showing of changed circumstances and Jesus's best interests. We affirm the judgment.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In 2004 two-year-old Jesus became a dependent of the court under section 300, subdivision (g) and was removed from parental custody after the court found Janet left him without any provision for support, and her whereabouts were unknown despite reasonable efforts to locate her. The court ordered no reunification services for Janet and set a section 366.26 selection and implementation hearing.
Janet appeared several months later and requested custody of Jesus and reunification services. Janet explained she left Jesus with a friend because she was depressed and had no money. She admitted using drugs. The court vacated the selection and implementation hearing and ordered her to participate in a case plan, including parenting classes, individual counseling and random drug testing.
During the next six months, Janet did not comply with her case plan and her whereabouts were once again unknown. Jesus was thriving in his foster care placement and was bonded to his caregivers. The court terminated reunification services and set a selection and implementation hearing.
The matter was continued several times for various reasons, including proper notice to Janet. After being located, Janet appeared in court in September 2006. She filed a section 388 modification petition seeking to have the court vacate the selection and implementation hearing and order further reunification services. As changed circumstances, Janet alleged she was currently living at Imperial Valley Ministries Women's Home (Imperial Valley Ministries) and was not using drugs. As to best interests, Janet alleged she was able to provide Jesus with a safe and supportive home. The court ordered a hearing on the modification petition to coincide with the selection and implementation hearing.
The Imperial County Department of Social Services (Department) recommended the court deny Janet's section 388 petition, noting Janet began drug treatment only two months ago and she admitted using drugs one week before entering the program. A recent visit between Jesus and Janet was the first in more than two years. Jesus was guarded at first, but eventually warmed up to Janet. He told the social worker he wanted another visit. However, when Jesus was told Janet wanted him to live with her, he became upset, pointed to his foster mother and said, "No, with my mother."
At a hearing on November 29, 2006, Janet testified she had lived at Imperial Valley Ministries for the past three months and was participating in parenting classes and counseling. She went there to restore her life and regain custody of Jesus. Janet said she had used methamphetamine for two and one-half years, but had been drug free for almost four months. She admitted she had not visited or tried to contact Jesus for two years. The recent visits she had with Jesus had gone well. Janet expected to stay at Imperial Valley Ministries for at least a year.
Janet's counselor from Imperial Valley Ministries, Rachel Zavala, testified Janet was enrolled in drug and alcohol counseling and parenting classes, and her participation was good. There was no indication Janet was using drugs. Zavala noticed a change in the way Janet thinks and speaks. Zavala admitted it can take as long as three years for a person to overcome a drug addiction.
After considering the evidence and hearing argument of counsel, the court denied Janet's section 388 petition, finding she had not shown changed circumstances or that the requested modification would be in Jesus's best interests. The court continued the selection and implementation hearing to December 20, 2006. At that hearing, the court received into evidence Department's various reports which noted Jesus was adoptable and his caregivers, with whom he had lived with for the past two years, were willing and able to adopt him. The court terminated Janet's parental rights and referred Jesus for adoptive placement.
DISCUSSION
Janet contends the court erred by denying her section 388 modification petition. She asserts her circumstances had changed because she was no longer using drugs, and she was now attending parenting classes and counseling. She further asserts it was in Jesus's best interests to live with her at Imperial Valley Ministries.
I
Preliminarily, Department notes Janet's notice of appeal did not specifically include the order denying her section 388 petition for modification. Because that order was made more than 60 days before Janet filed her notice of appeal, Department asserts the appeal is untimely and this court is without jurisdiction to consider her claim of error.
Minor's counsel joins in this argument.
A
The record shows Janet filed a notice of appeal on February 20, 2007, stating she was appealing the December 20, 2006 order terminating her parental rights. The notice of appeal contained no reference to the order of November 29, 2006, denying Janet's petition for modification. Ordinarily, courts will liberally construe a parent's notice of appeal from an order terminating parental rights to encompass the denial of the parent's section 388 petition "provided the trial court issued its denial during the 60-day period prior to filing the parent's notice of appeal." (In re Madison W. (2006) 141 Cal.App.4th 1447, 1451.) In her reply brief, Janet concedes more than 60 days elapsed between the denial of her section 388 petition and the filing of the notice of appeal. Nevertheless, she asks us to construe her notice of appeal as properly encompassing the denial of the section 388 petition under the unique procedural posture of this case.
B
On October 16, 2006, the court ordered the contested hearing on Janet's section 388 petition to be set on the same day as the selection and implementation hearing, noting some of the issues overlapped. The minute order reflects both hearings were set for November 29, 2006. On that date, the court heard and denied Janet's section 388 petition. County counsel then requested additional time to file an addendum report and the court continued the selection and implementation hearing to December 20, 2006. Because the court intended to combine the two hearings but was interrupted by the necessity of an updated report, we view the hearings as continuous for purposes of liberally construing the notice of appeal as encompassing the denial of Janet's section 388 petition. Accordingly, we will address the merits of Janet's claim of error.
Department has responded to Janet's argument on the merits.
II
Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, there is a change in circumstances or new evidence, and the proposed change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Whether a previous order should be modified and a change would be in the child's best interests are questions within the sound discretion of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The juvenile court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. When two or more inferences reasonably can be deduced from the facts, we may not substitute our decision for that of the trial court. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319; In re Casey D., supra, 70 Cal.App.4th at p. 47.)
The evidence showed Janet had not used drugs for four months, was participating in parenting classes and counseling, and had visited Jesus several times. Her efforts to change her life were commendable. However, Janet's relatively brief period of sobriety following years of substance abuse and refusal to address her addiction showed she was just beginning to make progress in addressing the problem that led to Jesus's dependency. Her participation in parenting classes and counseling was recent, and she had just begun to visit Jesus after not visiting or contacting him for more than two years. In this regard, Janet's circumstances were "changing," but had not "changed." (See In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9 [addiction requires much more than 120 days of sobriety to show real reform]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [father's seven months of sobriety insufficient to show changed circumstances in light of his substance abuse history].) A petition like Janet's that alleges changing circumstances does not promote stability for the child or the child's best interests because it would mean delaying the selection of a permanent home to see if a parent, who has failed to reunify with the child, might be able to reunify at some future point. (In re Casey D., supra, 70 Cal.App.4th at p. 47.) "Childhood does not wait for the parent to become adequate." (In re Marilyn H. (1993) 5 Cal.4th 295, 310.)
Even had Janet shown sufficient changed circumstances, she did not show modifying the court's previous order was in Jesus's best interests. At the time of the hearing on Janet's modification petition, the focus of the proceedings had shifted from family preservation to providing Jesus with a safe, stable and permanent home. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) Jesus was bonded to his caregivers who wanted to adopt him. The court properly evaluated the evidence in light of Jesus's need for stability and security, and found his best interests would not be served by returning him to Janet's custody or by ordering further reunification services. The court acted well within its discretion by denying Janet's modification petition.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., O'ROURKE, J.