Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a orders of the Superior Court of Kings County No. 06JD0095. George L. Orndoff, and James T. Laporte, Judges.
Judge Orndoff ruled on appellant’s petition to modify prior court orders. Judge Laporte terminated appellant’s parental rights.
Appellant was convicted of child endangerment and possession of controlled substance paraphernalia in October 2006.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.
Peter D. Moock, County Counsel, and Bryan Walters, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Gomes, Acting P.J., Dawson, J., and Hill, J.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
Appellant’s counsel represented to the court that appellant had not had a parole revocation hearing as of the date of the disposition hearing.
The department reached the same conclusion as to J.J.’s father, who is not a party to this appeal.
INTRODUCTION
Appellant, C.J., appeals from the juvenile court’s order denying her petition pursuant to Welfare and Institutions Code section 388 to modify the court’s prior order denying her reunification services for her child, J.J.1 The court terminated appellant’s parental rights to her child pursuant to section 366.26.
FACTS AND PROCEEDINGS
Earlier Proceedings
Appellant had four children, L.C., W.G., B.J., and J.J. J.J. is the youngest of the children. The three oldest children were subjects of a dependency proceeding brought in 2006 as the result of appellant’s substance abuse.2 The petition was sustained in December 2006 and appellant received reunification services. While incarcerated, appellant gave birth to J.J. in April 2007. J.J. was sent to live with his father. Upon her release on parole, appellant entered Heartstone Residential Drug Treatment Facility (Heartstone), a “mommy and me” facility, in June 2008. Appellant stated she was scheduled to regain custody of her three older children on June 18, 2008.
While in Heartstone, appellant allegedly hit an unrelated two-year-old child in her care. Appellant denied hitting the child. She was, however, returned to state prison. A petition was filed pursuant to section 300 as to J.J., and the dependency case was ordered transferred from Kern County to Kings County on July 24, 2008.
The social worker’s report for the disposition hearing noted appellant had received 22 months of services for her three older children and recommended that services be terminated for them based on the length of services and appellant’s current incarceration. The report further recommended no services for J.J. The report noted appellant was serving a two-year prison sentence that began in January 2007 and that she gave birth to J.J. while incarcerated in Chowchilla prison. Appellant had convictions for fighting in public, forgery, and battery. Appellant is a narcotic addict. When appellant violated her parole, she was sent back to prison to finish her sentence. The report concluded that providing additional services to appellant for J.J. would be detrimental because J.J. was a year and a half old and never had the opportunity to form a significant bond with appellant.
On September 11, 2008, the social worker for the three older children, Marian Aranda, testified at the disposition hearing that, until June 2008, appellant was in full compliance with her reunification plan. Appellant had overnight visits with the older children. Appellant was returned to prison for her violation of parole.1 At the conclusion of the hearing, the court terminated reunification services for the three older children and denied services for J.J. The matter was set for a section 366.26 termination hearing in December 2008.
Section 388 Petition
On November 26, 2008, the California Department of Children and Family Services (department) filed a report for the section 366.26 hearing. The department recommended termination of appellant’s parental rights and a permanent plan of adoption for J.J., noting that a prospective adoptive family had been identified for him. The department report stated that appellant told a social worker on July 28, 2008, that she did not want visitation with J.J. while she was incarcerated in prison. On August 28, 2008, the department learned appellant would serve the remainder of her sentence in prison. On September 15, 2008, appellant told a social worker that, while she did not want visits with J.J. while in prison, she did want visits when she was transferred to a different facility. On October 29, 2008, appellant reported she had been released from prison the day before and wanted to visit J.J. On November 6, 2008, appellant visited with J.J.
The department report was unclear concerning the extent of appellant’s contact with J.J. Appellant spent some time with J.J. after his birth in prison and had two no-contact visits with him. The department reported appellant had not provided for J.J.’s care on a consistent, daily basis. It did not appear that a strong relationship had developed between appellant and J.J.1 The department concluded it was likely J.J. would be adopted if appellant’s parental rights were terminated.
On December 16, 2008, appellant filed a petition pursuant to section 388 to modify the court’s previous orders terminating reunification services and limiting visitation with her children. The petition stated that, in October 2008, criminal charges against appellant for child abuse, relating to the incident at Heartstone, were dropped in Kern County and appellant was released from prison without having been found to have violated parole. Appellant stated she was in the Cornerstone Recovery Program (Cornerstone or Cornerstone program), a program with parenting classes, a 12-step recovery program, and an emphasis on relapse prevention.
On January 12, 2009, the Kings County Human Services Agency/Child Protective Services (agency) filed a response to appellant’s section 388 petition. The agency received a report from Cornerstone indicating appellant was in step four of her 12-step NA/AA program. Appellant needed to work on grief issues, domestic violence issues, and improve her anger management skills.
On January 5, 2009, the agency received a phone call from appellant indicating she was no longer attending the Cornerstone program. Appellant’s parole officer referred her to Comprehensive Addiction Program (CAP). Appellant would finish this new program on March 29, 2009. The agency report found that although appellant had taken some important steps toward improving her lifestyle, she failed to complete components of her court-ordered case plan within the time frames set for her. Appellant received 22 months of reunification services for her older children before those services were terminated in September 2008. The agency report concluded appellant’s circumstances were changing but not fully changed. Appellant still did not have suitable housing for herself.
The hearing on appellant’s petition was held on January 16, 2009. Freddie Reynoso, the agency caseworker for J.J. and the three older siblings, testified that the agency had recommended trial visits between appellant and her children in the spring of 2008. Appellant’s visits were successful. Appellant’s prior reunification services included substance abuse classes, parenting classes, and anger management. Reunification services were terminated, however, because of allegations of physical abuse to an unrelated child. Further, when appellant left Cornerstone, she did not go directly into CAP. She was discharged from Cornerstone for poor attitude.
Appellant testified that, while she was in prison, she met her family reunification requirements. She participated in a FOTEP program, which permitted her to be with her children and have three overnight visits with them. She was paroled to the Heartstone facility. But, as a result of another member of the program accusing appellant of hitting her child, appellant was sent back to prison. She was released from prison again in October 2008 when the charges against her were dropped and prison officials dismissed the allegation that she violated her parole.
Appellant started the Cornerstone program in early November 2008 and remained there for almost two months. She felt she needed a different program because there were relatives and friends in Cornerstone with the same old behaviors and appellant wanted something better. When appellant told officials at Cornerstone about her concerns, they told her she could leave. Attending Cornerstone was a condition of appellant’s parole. Appellant kept her parole agent informed of her switch to CAP.
At the time of the hearing, appellant had been in CAP for three weeks. She was taking classes in parenting and anger management, and was involved in a social group and a 12-step program. She was in step four of the 12-step program. In prison, appellant had made it to step three of the 12-step program. Appellant had been sober since she entered prison in 2007. She had not yet completed the substance abuse program provided by CAP.
The court denied appellant’s petition to change its earlier orders denying reunification services for J.J. At the conclusion of the section 366.26 hearing, the court ordered termination of appellant’s parental rights as to J.J. and ordered a permanent plan of adoption for him.
SECTION 388 PETITION
Appellant argues the court abused its discretion by denying her section 388 petition as to J.J. We disagree.
It was appellant’s burden to show there was new evidence or there were changed circumstances that called for a change of the previous order denying reunification and that reunification services would be in J.J.’s best interest. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) Appellant argues on appeal that, because the charges she hurt a child in June 2008 were eventually dismissed, there was no basis for her not to receive reunification services for J.J. She was caught in a legal Catch-22. Appellant, however, had already received 22 months of services for her older children. Even if the allegations that appellant hurt a child in June 2008 were baseless, appellant continued to struggle with the issues that had led to dependency proceedings in 2006.
Furthermore, appellant had only limited contact with J.J. and had not formed a strong bond with him. Appellant’s circumstances remained transitional. After only two months in the Cornerstone program, appellant had moved into CAP. Although appellant testified she needed a better program, the agency reported appellant was dismissed from Cornerstone because of her attitude. Appellant was only three weeks into CAP at the hearing on her section 388 petition. She kept receiving the same services in Cornerstone and CAP that she had already received through earlier reunification efforts and in prison.
Appellant had reached step three in the 12-step program in prison and was only at step four of the 12-step program in CAP. She had earlier failed to complete components of her court-ordered case plan within the time frames set for her three older children and still did not have suitable housing for herself.
The parent bears the burden of showing in a section 388 petition both a change of circumstance and that the proposed change is in the best interests of the child. A petition only alleging changed circumstances, which would lead to a delay in the selection of a permanent home, to see if a parent could eventually reunify with a child at some future point, does not promote stability for the child or the child’s best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) At best, appellant showed only changing, not changed circumstances.
To understand the element of best interests in the context of a section 388 motion brought, as in this case, shortly before and during the section 366.26 hearing, we look to the Supreme Court’s decision in Stephanie M. At this point in the proceedings, a parent’s interest in the care, custody, and companionship of his or her child is no longer paramount. Rather, the focus shifts, once reunification efforts end, to the child’s needs for permanency and stability; there is in fact a rebuttable presumption that continued out-of-home care is in the best interests of the child. (Stephanie M., supra, 7 Cal.4th at p. 317.) A court conducting a modification hearing at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child. (Ibid.)
Notably, both here and in the juvenile court, appellant ignores the child’s need for permanence and stability in advocating her position. Neither the juvenile nor this court, however, may do so. Appellant failed to make any showing at the section 388 hearing concerning how J.J.’s best interests would be served by giving her additional reunification services. Even if charges relating to appellant’s recommitment to prison during the summer and fall of 2008 were later dropped, she failed to establish a meaningful relationship with J.J. at anytime during his young life. She failed to demonstrate in her petition that granting her reunification services would be in the child’s best interests.
DISPOSITION
The juvenile court’s orders denying appellant’s section 388 petition and terminating her parental rights are affirmed.