Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Super. Ct. Nos. J208935, J208936 Deborah Daniel, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant L.R.
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant T.C.
Ruth E. Stringer, County Counsel, and Dawn Stafford, Deputy County Counsel, for Plaintiff and Respondent.
Michael D. Randall, under appointment by the Court of Appeal, for Minors.
OPINION
RICHLI, J.
L.R. (Mother), mother of Karen C. and G.R., and T.C. (Father), father of Karen C., appeal from the termination of their parental rights from a Welfare and Institutions Code section 366.26 hearing. Mother, joined by Father, raises one issue on appeal: that the juvenile court erred by refusing to conduct an evidentiary hearing on their section 388 petitions.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
We find no error. Hence, we will affirm.
I
PROCEDURAL AND FACTUAL BACKGROUND
On June 19, 2006, San Bernardino County Department of Children’s Services (the Department) detained Karen C., who was two months old, and her half brother G.R., who was three years old, after Mother was found intoxicated by the Department and unable to care for her children.
This court incorporated the record in case No. E042564 into the instant case on its own motion and draws evidence from both cases in this appeal.
Amended section 300 petitions were filed by the Department on July 11, 2006, on behalf of Karen and G.R. against Mother and Father (who admitted he was the biological father of Karen), and G.R.’s alleged father, J.R. It was alleged pursuant to subdivision (b) that there was willful neglect of the children. Mother had a substance abuse problem, and Father and J.R. did not protect the children despite their knowledge of her problem. There was also domestic violence between Mother and Father. J.R.’s whereabouts were unknown.
Pursuant to the detention reports, on April 4, 2006, Mother was admitted into Arrowhead Regional Medical Center for complications due to alcoholism; she was pregnant with Karen. Mother was diagnosed with advanced cirrhosis of the liver. She admitted suffering from problems with alcohol for 15 years. She agreed to participate in voluntary family maintenance and attend substance abuse programs.
Mother attended her substance abuse programs sporadically and stopped submitting to drug testing in June 2006. Mother only kept medical appointments for her children if someone from the Department provided transportation. On June 19, 2006, the Department made a surprise visit to Mother’s home and found her intoxicated. The home was in disarray. Karen was asleep outside her crib, and G.R. was at a neighbor’s house. G.R. had not eaten anything that day. The Department took Karen and G.R. into their custody. The children were placed in confidential foster care.
The juvenile court found that a prima facie case for detention of both children outside the home had been made. It ordered that the children remain in confidential foster care. Mother was ordered to submit to drug testing. Reunification services were ordered.
In a jurisdictional report filed on July 16, 2006, the Department provided information that Karen and G.R. both suffered from Fetal Alcohol Syndrome (FAS). G.R. needed continuing medical attention for complications due to the FAS. Karen had severe feeding and respiratory problems. Mother admitted drinking while pregnant with G.R. Since the children’s detention, Mother had refused to take drug tests and had contacted the Department while clearly intoxicated. Father and Mother had a rocky relationship that involved yelling, pushing, and shoving. Visitation between Mother and Father and the children was not productive. Mother had been intoxicated during a visit. The current foster parents were willing to provide a permanent home for both children if reunification failed.
At the jurisdictional hearing held on August 14, 2006, Mother pled no contest to the allegations in the amended petitions, and Father submitted on the report. The juvenile court found that Karen and G.R. came within section 300, subdivision (b). Father was found the presumed father of Karen. Reunification services were granted to the family. Mother and Father were to submit to random drug testing and enter drug treatment programs.
In the six-month review report and addendum, it was recommended that services to Mother and Father be discontinued and that a section 366.26 hearing be held to establish a permanent plan of adoption. Mother continued to attend visitation while intoxicated, failed to complete her substance abuse programs, and refused drug tests. Father had lost his job. They had made some progress in their parenting and domestic violence classes.
Mother and Father “minimized” the children’s medical issues and exhibited no bonding during visitation; in fact, they usually upset Karen and ignored G.R. G.R. and Karen had bonded with the foster parents, who were providing exemplary care to both of them. The foster parents wanted to adopt both children. Karen continued to need round-the-clock assistance, and both children needed long-term medical care.
Both Mother and Father testified at the six-month review hearing held on March 13, 2007, claiming they were making progress on their plan and did not want their parental rights terminated. Mother was currently living in a facility and was thinking of renting a room somewhere.
After reviewing all the reports, the juvenile court found by a preponderance of the evidence that returning the children to Mother and Father continued to be detrimental to them. Reunification services were terminated, and the matter was set for a section 366.26 hearing to consider termination of parental rights. Mother and Father both filed notices of intent to file writ petitions pursuant to California Rules of Court, rule 8.450, but neither found legal or factual issues upon which to file a writ petition.
On August 8, 2007, Mother filed a section 388 petition, requesting that reunification services be reinstated. On August 23, 2007, Father filed a section 388 petition requesting that Karen be returned to his custody. The juvenile court denied the section 388 petitions without an evidentiary hearing, as will be set forth fully, post. The foster parents were granted de facto parent status.
The contested section 366.26 hearing was held on September 13, 2007. The juvenile court took judicial notice of all the prior proceedings and had taken into account all of the prior reports. Both Mother and Father testified at the hearing. The juvenile court found that Karen and G.R. were adoptable and that the parental rights of Mother and Father should be terminated. Karen and G.R. were freed for adoption. Mother and Father appealed.
II
EVIDENTIARY HEARING ON MOTHER’S AND FATHER’S SECTION 388 PETITIONS WAS NOT REQUIRED
Both Mother and Father contend that the juvenile court erred by refusing to hold an evidentiary hearing on their section 388 petitions.
A. Additional Factual Background
Mother attached a declaration to her section 388 petition in which she claimed to have successfully completed an inpatient drug and alcohol treatment program, had participated in outpatient programs, had negative substance abuse results, and was regularly attending Alcoholics Anonymous (AA) meetings. She had an AA sponsor. She was attending anger management classes and was consistently attending domestic violence classes.
Mother attached documentation showing she had completed the inpatient treatment program, proof of attendance at AA meetings, and proof of participation in an outpatient treatment program.
Mother had continued her visitation with Karen and G.R and claimed that they were bonded to her. Mother claimed that reunification was in the best interests of her children.
Father also submitted a declaration in support of his section 388 petition. He had completed an outpatient treatment program for substance abuse and anger management classes and had full AA attendance. Father owned his own home. He was able to provide a loving, risk-free home for Karen.
Father provided documentation of completion of the outpatient treatment program, his record of attending counseling sessions, proof of completion of anger management classes, and AA attendance.
The Department filed an interim report in response to the section 388 petitions. Mother had relapsed in March 2007 by drinking. She had never participated in any therapy programs. Although she had dealt with stress in the past by drinking, she told the Department that she would not do this if the children were returned to her.
The children were still in therapy. Karen, who was 14 months old, was still unable to walk. G.R. had made progress since being in the foster parents’ care and was bonded to them.
The Department noted that although Father and Mother had made progress in completing their case plan, they had done nothing to show they could provide proper care for the children. Mother was in the very early stages of sobriety, and there might be relapses. G.R. and Karen would need extensive long-term care. Both parents had little insight into their children’s problems. During visitation, neither child appeared bonded with Mother or Father.
A hearing was held on both section 388 petitions on August 30, 2007. Father wanted to present testimony that he had made substantial progress on his case plan, had a home, and had an income. Mother wanted to present the testimony of her service providers to explain fully her progress in the preceding three months.
Counsel on behalf of G.R. and Karen objected to the granting of the section 388 petitions. The children required particular care that the parents could not provide. Neither Mother nor Father could meet the “best interest prong” for granting a section 388 petition. Their progress was too late. Further, it was not in the best interests of the children, who were bonded with the adoptive parents and had special needs.
The juvenile court ruled that there was not good cause to set an evidentiary hearing. It had reviewed Mother’s and Father’s declarations and supporting attachments to the section 388 petitions. The parents were commended for their progress; however, the juvenile court concluded that there was no evidence that granting their requests was in the best interests of the children. It found that “[t]hese children are special needs children who were very damaged prior to the Department’s intervention. Their progress requires a level of care and supervision that the parents are unable to meet.” The parents continued to be in a dysfunctional relationship. The court concluded, “The relief requested would not be in the best interest of the children. Disruption of their bond with their current caretaker and interference with their services would be detrimental to them and the Court denies the request.”
B. Analysis
“A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. [Citation.] A parent need only make a prima facie showing of these elements to trigger the right to a hearing on a section 388 petition and the petition should be liberally construed in favor of granting a hearing to consider the parent’s request. [Citations.]” (In re Zachary G. (1999) 77 Cal.App.4th 799, 806; see also In re Anthony W. (2001) 87 Cal.App.4th 246, 250; In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)
“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. [Citation.]” (In re Zachary G., supra, 77 Cal.App.4th at p. 806; see also In re Edward H. (1996) 43 Cal.App.4th 584, 592-594.) “[T]he hearing is only to be held if it appears that the best interests of the child may be promoted by the proposed change of order, which necessarily contemplates that a court need not order a hearing if this element is absent from the showing made by the petition. [Citation.]” (Zachary G., at pp. 806-807, fn. omitted; see Cal. Rules of Court, rule 5.570, subds. (d) & (e).)
Absent a showing of a clear abuse of discretion, the decision of the juvenile court on a petition to modify must be upheld. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Hence, we “‘will not disturb [a] decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].’” (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.)
We conclude that the juvenile court did not abuse its discretion by denying the section 388 petitions filed by Mother and Father without an evidentiary hearing. Initially, neither Mother nor Father made a prima facie showing of changed circumstances or new evidence that would require a change of the court’s previous orders.
Mother did show for the first time that she had completed an inpatient alcohol treatment program. She also was consistently attending AA meetings and other classes. Mother wanted to present further testimony regarding her progress.
Mother’s period of sobriety shown by this evidence in relation to her years of alcohol abuse is not prima facie evidence of changed circumstances. Mother had admitted she had had a drinking problem for 15 years. She had severe cirrhosis of the liver. She had been monitored by the Department since 2002, when she admitted drinking while pregnant with G.R. G.R. suffered from FAS, and related symptoms caused by FAS, because of Mother’s excessive drinking during pregnancy. Mother also had been drinking while pregnant with Karen, and Karen had extensive complications from FAS. Mother failed miserably during reunification services in trying to seek help. Given the severity of Mother’s alcohol abuse problem, the juvenile court could reasonably find her completion of an inpatient program and participation in outpatient programs were not particularly compelling.
Mother also claimed in her section 388 petition that she had bonded with Karen and G.R., but she provided no facts to support that claim. According to the Department, the quality of the visits between Mother and the children had not significantly changed since a section 366.26 hearing had been ordered. There was no prima facie evidence of changed circumstances as to the relationship between Mother and the children.
Father also submitted documentation that he was attending substance abuse programs. However, throughout reunification services, Father had been attending classes. Termination of services was not based on his refusal to participate in classes, so proof such attendance was not prima facie evidence of changed circumstances that would warrant changing the previous orders.
Furthermore, Father claimed he had income to support Karen and that he owned his home, but there is no evidence that this was any new employment or that he had recently purchased the home. Father failed to show prima facie evidence of changed of circumstances.
More importantly, both Mother and Father failed to present prima facie evidence that continuing reunification services or granting Father custody of Karen would be in the children’s best interests. In considering whether a child’s best interests would be served by modifying a previous order, the juvenile court must evaluate several factors, including the seriousness of the problem that led to the dependency and the continuation of the problem. (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1261, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) The juvenile court should also consider the bond between the parents and the child against the bond that the child has forged with the prospective adoptive parents. (Eileen A., at p. 1261.)
Here, Karen and G.R. were taken from the custody of Mother and Father because Mother had a significant history of alcoholism. Father did nothing to stop it. Mother had severely harmed her children by drinking during her pregnancies. Visitation during reunification services were not successful, as Mother was intoxicated at several visits, and there was inappropriate and inadequate interaction between the children and Mother and Father. Mother and Father also had a history of domestic violence. As late as February 2007, Mother and Father continued to have problems with each other.
In addition, Mother and Father had failed to seek medical attention for G.R. and Karen while they were in their custody. Mother only attended appointments if taken by the Department. As noted by the Department, Mother and Father never participated in the children’s therapy during reunification.
Neither Mother nor Father demonstrated how they intended to care for G.R. and Karen. Karen had severe medical and developmental problems due to her FAS. She continued to have difficulty breathing and swallowing. She had to be specially fed. Karen suffered from sensory integration disorder, which required that she be handled and dealt with very carefully.
G.R. also suffered from developmental and speech delay due to the FAS and needed specialized treatment for muscular and eye problems. G.R. also had an inability to sense danger and had to be watched constantly so that he wouldn’t hurt himself. Both children were going to require both short- and long-term therapy and assistance, which Mother and Father had completely failed to show they were capable of providing. Nothing in their section 388 petitions addressed how they had progressed in learning how to take care of Karen and G.R.
Karen and G.R. were thriving in the adoptive parents’ home. Both were making significant progress and were bonding with the adoptive parents. The adoptive parents were actively engaged in seeking help for both of them. The adoptive parents had shown their commitment to helping these very needy children.
Based on the foregoing, we conclude the trial court did not abuse its discretion by denying a hearing on Mother’s and Father’s section 388 petitions because there was no prima facie evidence of changed circumstances that would require a change of the court’s previous orders or that such change would be in the best interests of Karen and G.R.
III
DISPOSITION
The order appealed from is affirmed.
We concur: McKINSTER, Acting P.J., KING, J.