Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. J508804B-C Michael J. Imhoff, Commissioner.
McCONNELL, P. J.
J.G., mother of dependent children Jonathan G. and Brenda G. (together minors), appeals an order summarily denying her petition for modification under Welfare and Institutions Code section 388. J.G. contends her due process rights were violated when the court denied her modification petition without a hearing despite a showing she no longer suffered from a severe mental illness. We affirm the order.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2005 the nine-year-old minors (who are twins) became dependents of the juvenile court and were removed from parental custody based on findings they had been exposed to violent confrontations in the home between J.G. and a male roommate. J.G. had a history of psychiatric hospitalizations. The San Diego County Health and Human Services Agency (Agency) had received 15 prior referrals for child abuse or neglect by J.G. between 1999 and 2004. J.G. had exposed the minors to outbursts of anger and rage, domestic violence, drug abuse and neglect. The minors had been removed from J.G.'s custody at least four other times because J.G. was either under the influence of drugs or was mentally incapacitated.
During the reunification period, J.G. participated in services and was taking her prescribed medication. Her condition was diagnosed as schizoaffective disorder, methamphetamine dependence and borderline intellectual functioning with a poor prognosis for treatment. A later psychiatric evaluation showed J.G. had bipolar disorder. She was having negative drug tests until February 2006 when she tested positive for amphetamine.
By the 18-month review hearing, J.G.'s mental stability had improved and she was having unsupervised visits with the minors, who were willing to return to J.G.'s care. The court placed the minors with J.G. and ordered continued services.
In November 2006 Agency filed supplemental petitions under section 387 alleging J.G. had become mentally unstable, appeared overwhelmed and threatened to leave the state with the minors. The court sustained the allegations of the supplemental petitions, removed the minors from J.G.'s custody and placed them with their adult sister, S.G., with whom they had previously been placed. The court terminated reunification services and set a section 366.26 selection and implementation hearing.
The social worker recommended adoption as the minors' permanent plans. The minors were assessed as adoptable. They wanted to be adopted by S.G., to whom they looked to meet their needs. Although the minors loved J.G., they did not want to return to her care because of her unpredictable moods. The minors had been removed from and placed back with J.G. on five occasions, and they did not want to move again. In the social worker's opinion, terminating parental rights would not be detrimental to the minors.
On May 31, 2007, J.G. filed a section 388 modification petition, seeking return of the minors to her custody or alternatively, additional reunification services. The court ordered an evidentiary hearing.
According to addendum reports, J.G. maintained regular visits with the minors. During a recent visit, the minors did not want to interact with her. Although J.G. was not in therapy, she continued to be monitored through County Mental Health for her prescribed medications. S.G.'s adoptive home study was progressing, and she would likely be approved to adopt the minors. S.G. said she would never prevent J.G. from visiting the minors.
At a hearing on the modification petition, J.G. testified she wanted the minors returned to her custody. She was taking her prescribed medication and was under the care of a psychiatrist. J.G. said she was able to provide for the minors financially and they would be safe in her care. The court denied the modification petition, finding J.G. had not shown changed circumstances or that the proposed modification was in the minors' best interests.
On December 18, 2007, J.G. filed another section 388 modification petition requesting return of the minors or additional services. As changed circumstances, the petition alleged she had made some progress in stabilizing her mental health as shown by a recent psychological evaluation. As to best interests, the petition alleged J.G. has had a long and consistent relationship with the minors and they are bonded to her. After considering the petition and psychological evaluation and hearing argument of counsel, the court summarily denied J.G.'s request.
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 [petitioner] need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (In re Marilyn H., supra, 5 Cal.4th 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, 8 Cal.4th at p. 415; see also In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.) "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.) The summary denial of a section 388 modification petition does not violate a parent's due process rights. (Id. at p. 808; In re Justice P. (2004) 123 Cal.App.4th 181, 192-193.)
B
Here, J.G.'s modification petition alleged she had made progress in stabilizing her mental condition. In support of this allegation, J.G. relied on a psychological evaluation performed by Robert Kelin, Psy.D. According to that evaluation, J.G. cares about her children but has significant problems parenting them. J.G.'s erratic behavior is a result of her bipolar disorder. She becomes overwhelmed by her problems and has poor judgment and coping skills. She has little insight into her own behavior, is in denial about her role in the minors' dependency and continues to blame Agency for her problems. Dr. Kelin had "much concern about [J.G.'s] ability to parent her children in a stable and consistent manner" and thus could not recommend placing the minors with her. He recommended J.G. "continue on her psychotropic medication, as there appears to be some benefit in stabilizing her functioning." However, given J.G.'s lengthy treatment history, Dr. Kelin concluded her negative behaviors were "not likely to change."
Dr. Kelin's opinion that J.G. was "stabilizing" through medication therapy showed, at most, "changing" circumstances. A petition that alleges changing circumstances does not promote a child's best interests or stability for the child because it would mean delaying the selection of a permanent home to determine whether a parent who has not reunified with the child might be able to reunify at some future time. (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., supra, 5 Cal.4th at p. 310.) Any changes in J.G.'s circumstances were "not legally sufficient to require a hearing on her section 388 petition." (In re Angel B. (2002) 97 Cal.App.4th 454, 465.)
C
Even had J.G. made a prima facie showing of changed circumstances, her petition did not show that placing the minors with her or reviving reunification services was in the minors' best interests. The minors had been in out-of-home care for nearly three years and were 12 years old at the time of the hearing. They looked to S.G., rather than J.G., to meet their needs. Although the minors loved their mother, they did not want to live with her because of her psychological problems. The petition's liberally construed allegations did not show the minors' best interests would be served by being removed from their prospective adoptive home and placed with J.G. The proper focus of this case was the minors' need for stability, continuity and permanency, regardless of J.G.'s interest in reunification. (See In re Stephanie M. (1994) 7 Cal.4th 295, 317-318; In re Brittany K. (2005) 127 Cal.App.4th 1497, 1507.) Because the facts alleged in the petition would not have sustained a favorable decision on the section 388 petition, J.G. was not entitled to an evidentiary hearing. (In re Zachary G., supra, 77 Cal.App.4th at p. 808; In re Mary G. (2007) 151 Cal.App.4th 184, 205-206.)
DISPOSITION
The order is affirmed.
WE CONCUR: McINTYRE, J., O'ROURKE, J.