Opinion
F043072.
11-3-2003
In re KEITH G. et al, Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. MANDY M., Defendant and Appellant.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Phillip S. Cronin, County Counsel, and W. Richard Bailey, Deputy, for Plaintiff and Respondent Respondent.
OPINION
THE COURT
Before Ardaiz, P.J., Gomes, J. and Dawson, J.
Mother Mandy M. (appellant) appeals from a dependency court order denying her request for a hearing on her petition to modify prior visitation orders and to allow her reunification services again. (Welf. & Inst. Code, § 388.) We disagree with her claims of error and affirm.
FACTUAL AND PROCEDURAL HISTORY
Appellant has three children that are the subject of these dependency proceedings.[] Appellants children were removed from her custody in April 1999 due to appellants substance abuse and neglect. After failed reunification efforts appellants reunification services with the children were ordered terminated in July of 2000.[]
It appears she also has two other children born after losing custody of the three children at issue here.
We upheld the termination of reunification services in October of 2000. (See case No. F036057, opn. filed 10/19/00.)
Since being removed from appellants custody, the two oldest children have been placed with members of their fathers family, and the younger child is with members of her fathers family under permanent plans of guardianship.[]
The three children have two different fathers.
Nearly three years after reunification services were terminated, appellant filed a section 388 modification petition asking for renewed reunification services and increased visitation. The petition alleged appellant was participating in a parents therapy group and had been testing negative for drugs for at least four months. The petition further alleged the modification would be in the childrens best interests because it would promote bonding between the children who were currently separated and "enhance the already established bond between the children and [appellant]."
The juvenile court denied the petition without a hearing. The court concluded the petition failed to establish on its face that any modification was in the childrens best interests. The older children remained under a guardianship, and a section 366.26 hearing was scheduled for the youngest child to be adopted by her caretaker. Appellant timely appeals.
DISCUSSION
To trigger the right to a full hearing on a section 388 petition, appellant was required to make a prima facie showing for relief. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) If the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) We liberally construe the petition in favor of its sufficiency. (Ibid.; see also Cal. Rules of Court, rule 1432(a).)
Having reviewed the record, we conclude the juvenile court did not abuse its discretion by denying appellants petition without the benefit of a hearing. At the time the court denied appellants petition, reunification efforts had ceased almost three years earlier, visits had been sporadic at best,[] and all three children were at a stage of the proceedings in which they were entitled to the greatest permanence and stability available. By the time she brought her petition, appellants interest in the care, custody and companionship of her children was no longer paramount. Rather, the focus shifted to the needs of each child for permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
Appellant had only visited the youngest child once since October of 2000.
Appellants petition contended she had completed parenting classes, was testing negative for drugs and included letters from counselors that she was progressing in therapy and her ability to parent. Appellant did present specific evidence that she had made some steps toward a more stable life. However — even assuming this was sufficient to show appellants circumstances were actually changed and stable after only four months of negative drug tests — appellants best interest allegation fails on its face. Appellant contended the minors would benefit from sibling contact and to enhance their bond with her. Such claims would not sustain a finding that any of the childrens need for permanency and stability would be advanced by an order for services or increased visitation. This was especially true for the youngest child who awaited a section 366.26 hearing for the purposes of adoption. (In re Stephanie M., supra, 7 Cal.4th at p. 317.)
Nevertheless, appellant urges that the trial court should have considered the best interests factors set forth by the appellate court in In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-532 [setting forth best interests analysis to include: 1) seriousness of problem that led to the dependency; 2) strength of bonds between the child and parent versus caretakers; and 3) the degree to which the problem can be easily removed or solved and whether it has been solved.]) We decline to apply the Kimberly F. factors as they do not adequately account for the best interests analysis set forth by our Supreme Court in Stephanie M. In any event, those factors here do not weigh in appellants favor: her drug abuse and neglect of her children had been exceedingly serious, the children had already been separated for more than three years due to her drug use and neglect, thus greatly weakening any bond between them, and the issues that contributed to this dependency are of the most difficult to ameliorate (i.e., drug use). Regardless of the standard applied, appellant failed to make any prima facie showing of best interests.[]
Because we agree appellant failed to make a prima facie showing in her petition, we do not address respondents alternate claim that a section 388 petition is an inappropriate means by which to alter a plan for children under a guardianship.
DISPOSITION
The judgment (orders) are affirmed.