Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS.
APPEAL from an order of the Superior Court of San Diego County No. J515203A-C, Gary M. Bubis, Judge.
O'ROURKE, J.
C.G. appeals an order summarily denying her petition for modification under Welfare and Institutions Code section 388. We affirm the order.
Further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
C.G. is the mother of Joshua G., born October 2003, S.G., born September 2002, and Shawn G., born January 2006. The children's fathers do not appeal and are mentioned only when relevant to this appeal.
Joshua became a dependent of the juvenile court in October 2003 after he tested positive for methamphetamine at birth. S.G. was not detained. After participating in reunification services, the court returned Joshua to C.G.'s custody and terminated juvenile court jurisdiction in September 2005.
In December 2005 Joshua and S.G. were detained by the San Diego County Health and Human Services Agency (Agency) after medical personnel reported that Joshua had significant non-accidental bruising on his buttocks, lower back and upper legs. C.G. admitted she had spanked Joshua with her hand and a belt. The next day C.G. stated that her former boyfriend, Robert "Shawn" B. (Shawn), had inflicted Joshua's injuries and she had taken the blame because she was afraid of him. C.G. was then eight months pregnant with Shawn's child. Shawn later admitted he spanked Joshua.
On January 30, 2006, the court found that Joshua and S.G. required the protection of the juvenile court and removed them from C.G.'s custody. C.G.'s case plan required her to participate in individual counseling and receive in-home parenting support and education services.
Between May and July 2006 C.G. and Shawn had several violent confrontations while Shawn G. was present. Shawn was arrested. Shawn G. was detained and adjudicated a dependent of the court. C.G. obtained a stay away order against Shawn. In November the court removed Shawn G. from parental custody.
On March 1, 2007, the court held a 12-month review hearing for Joshua and S.G. and a six-month review hearing for Shawn G. C.G. did not complete her case plan. The Agency referred C.G. to three therapists and two domestic violence programs but she missed appointments and made minimal progress. C.G. tested positive for methamphetamine in November 2006 and did not fully comply with the requirements of her court-ordered substance abuse treatment program. C.G. refused to consider entering a recommended in-patient treatment program.
C.G. was diagnosed with a depressive disorder, personality disorder with paranoid borderline and passive-aggressive features, methamphetamine dependence-early remission, and a history of physical and sexual abuse and neglect as a child. An evaluating psychologist opined that C.G. had not undergone any significant change since her children were removed and did not appear able to safely and appropriately parent her children.
The court terminated reunification services and set a hearing to select and implement a permanent plan for the children (section 366.26 hearing.).
In a report prepared for the section 366.26 hearing, the Agency reported that on March 16, 2007, it placed the children in Georgia with a relative. C.G. moved to Georgia to be closer to the children. She had supervised visitation with the children. The visitation monitor noted that C.G.'s appearance and demeanor were indicative of substance abuse and requested random drug testing.
On July 3, 2007, C.G. filed a petition for modification under section 388 (modification petition). She asked the court to place the children in her care and to vacate the section 366.26 hearing. C.G. alleged her circumstances had changed since the prior order in that she had moved from California to Georgia, enrolled in a GED program and was living with her father in his home which had ample room for the children. C.G. also alleged she had made herself available for drug testing, all with negative results. She had strong family support, and she and the children had strong reciprocal bonds.
On July 3, 2007, the court reviewed the modification petition including letters submitted in support and the entire file. The court determined C.G. did not make a prima facie showing of changed circumstances in view of her ongoing need for treatment for substance abuse, domestic violence and mental health concerns. The court denied C.G. an evidentiary hearing on the modification petition.
DISCUSSION
I
The Court Did Not Abuse Its Discretion When It Summarily Denied C.G.'s Section 388 Modification Petition
C.G. contends the court erred by arbitrarily denying a hearing on the merits of her section 388 petition seeking the children's return to her care. She asserts that her section 388 petition stated a prima facie case of changed circumstances in that she now had appropriate living arrangements and a strong support system, was no longer in contact with Shawn, and was addressing her substance abuse problem.
The Agency contends the court did not abuse its discretion when it denied an evidentiary hearing on the modification petition. The Agency asserts C.G. did not make an adequate showing of changed circumstances or best interests of the children to justify an evidentiary hearing.
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 of circumstances or new evidence, and the proposed modification is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Amber M. (2002) 103 Cal.App.4th 681, 685.)
The court must liberally construe the petition in favor of its sufficiency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.); Cal. Rules of Court, rule 5.570(a). "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (Marilyn H., at p. 310; In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799 (Hashem H.).) "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 (Zachary G.).) When 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; see In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)
We review a summary denial of a hearing on a modification petition for abuse of discretion. (Zachary G., supra, 77 Cal.App.4th at p. 808.) Under this standard of review, we will not disturb the decision of the trial court unless the trial court exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.)
At the 12-month hearing, C.G. had not completed substance abuse treatment or a domestic violence program. She did not consistently participate in therapy or otherwise receive mental health treatment. The evaluating psychologist opined that C.G. did not appear to be able to safely and appropriately parent her children.
In the modification petition, C.G. did not allege that she completed a recommended substance abuse treatment program and maintained a substantial period of sobriety; rather she asserted that she had made herself available for drug testing. She did not assert that she completed a domestic violence program or that she was engaged in therapy or treatment to address her mental health needs. Significantly, C.G.'s modification petition did not contain an allegation that a mental health professional or social worker concluded that C.G. was now able to safely and appropriately parent her children.
The court correctly determined that the modification petition did not state a prima facie case of changed circumstances. (See Marilyn H., supra, 5 Cal.4th at p. 310; Hashem H., supra, 45 Cal.App.4th at pp. 1798-1799; Zachary G., supra, 77 Cal.App.4th at p. 806.) The facts alleged in the petition, if proved, would not allow the court to safely return the children to C.G.'s care. The court reasonably exercised its discretion when it denied an evidentiary hearing on the modification petition. (§ 388, subds. (a), (c); Cal. Rules of Court, rule 5.570(d).)
DISPOSITION
The order is affirmed.
WE CONCUR: HALLER, Acting P. J, McDONALD, J.