Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court Nos. 510568 & 510569 of Stanislaus County. Nancy Barnett Williamsen, Juvenile Court Commissioner.
Kristin Bryce Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before, Vartabedian, A.P.J., Cornell, J., and Poochigian, J.
INTRODUCTION
Appellant, D.S., 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 terminating reunification services for her children, K.I.S. and K.W.S. The court summarily denied appellant’s petition without a hearing on July 7, 2009. Appellant contends she demonstrated a prima facie case of changed circumstances and the juvenile court abused its discretion in denying her petition. We reject these contentions and will affirm the juvenile court’s judgment.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS AND PROCEEDINGS
Earlier Proceedings
On December 18, 2007, K.I.S. and K.W.S. were detained by the Stanislaus County Community Services Agency/Family and Children’s Services (agency) after appellant was evicted from her home and ran out of money for a motel room. A petition was filed on December 20, 2007 pursuant to section 300 making the following allegations concerning appellant: she has a history of substance abuse and a lack of insight into her abuse issues; she was arrested in 2005 for being under the influence of alcohol or drugs; she has a history of mental health issues including Bipolar disorder and panic attacks; she has a history of domestic violence in her relationships and her current boyfriend was incarcerated as the result of a domestic violence incident involving appellant; she cannot provide adequate housing for her children; and her daughter K.I.S. has serious medical problems, is medically fragile, and appellant has declined services for her daughter.
Both children were prematurely born. They were only five months old when appellant was evicted. K.I.S. suffers from a heart condition and respiratory issues, which require the use of oxygen. Appellant suffers from mental health issues and has refused services from multiple service providers.
Appellant secured temporary housing in a motel. She was receiving benefits from several programs including Social Security and food stamps. Appellant stopped working with the Turlock Family Resource Center because she felt they had not helped her find housing. Appellant stopped working with Public Health because she did not believe she required services from the nurse. The children’s father was incarcerated in a penal institution after a domestic violence incident with appellant. Appellant denied any use of drugs, but refused to take a drug test. Although appellant denied any mental health issues, she admitted she took Wellbutrin and Effexor for anxiety and panic attacks.
Appellant was advised of Families in Partnership and Family Maintenance Services but she told social workers she did not necessarily want to be involved in a case; she only wanted money to pay rent. Appellant admitted to a history of prescription drug abuse. Appellant was an elementary school teacher until February 2009.
Soon after the children were detained, the social worker reported appellant was extremely challenging because she was unwilling to take responsibility for the choices she made that led to the removal of her children. Appellant denied substance abuse issues even though she admitted to taking Methadone to overcome an addiction to Oxycontin. Appellant revealed this information to a care provider with a drug treatment facility, but not to the social worker assigned to her case. Both the care provider and the social worker believed appellant sought a place to live rather than treatment for her parenting problems and drug abuse.
Appellant was in denial about an arrest for driving under the influence, claiming she pled guilty to reckless driving. When asked why she was in a drug treatment program, appellant said her family forced her to go into the program. Appellant asserted she was able to provide excellent care for her children even though her stability was rapidly declining, she was unable to provide shelter, and she had a history of substance abuse.
A combined jurisdictional/dispositional hearing began on February 7, 2008 and continued throughout that month. Between February 21, 2008 and February 29, 2008, the hearing was continued a number of times due to appellant’s failure to appear. At the conclusion of the hearing, the juvenile court found appellant had been evasive in her testimony and found the allegations in the petiton to be true. As the court was making its findings, appellant yelled out that her children were dying and the court did not care. The court warned appellant she would be ejected from the courtroom if she could not be quiet.
In December 2008, clinical psychologist Dr. Philip S. Trompetter prepared a report concerning a psychological evaluation he began in April 2008 and completed in December 2008. Dr. Trompetter noted that although appellant had shown noticeable improvement in her testing and interview from earlier in the year, there continued to be evidence of several maladaptive traits that warrant a diagnosis of Personality Disorder NOS with Borderline, Paranoid and Narcissistic traits.
Dr. Trompetter noted appellant’s history over the prior eight months reflected she had episodic and capricious outbursts of anger, which were behaviors consistent with his initial evaluation. Appellant demonstrated maladaptive patterns of obsessive defensiveness, rationalization, and blame avoidance. Compounding appellant’s problems of emotional regulation, judgment, insight, and reasoning was her persistent sense of entitlement. Because appellant perceives her needs as urgent, her desires preeminent, and her perspective predominant, appellant remained childlike acting as though she was the center of the universe.
Although appellant showed some improvement in her behaviors, Dr. Trompetter was concerned appellant was possibly reflecting a capacity to modify her behavior when it was being observed and evaluated. This in itself was an improvement over her earlier behavior, but skepticism was still warranted. Dr. Trompetter could see no predictable harm if appellant were allowed to begin supervised visits with her children.
In February 2009, K.I.S. was hospitalized with a serious illness. Appellant was ill at the time. Appellant agreed with the social worker during a visit with K.W.S., that she would not visit K.I.S. in the hospital. Nevertheless, appellant showed up at the hospital and demanded to see K.I.S. Appellant demanded the foster mother leave.
The social worker reported in a February 2009 addendum report that appellant attended her programs, visited her children, and attended their medical appointments. The social worker was concerned, however, over appellant’s consistent outbursts of anger. Appellant continued to demonstrate maladaptive behaviors, obsessive defensiveness, and blame avoidance. Appellant was escorted away from the hospital twice by security due to her outbursts. Appellant was discharged from two clean and sober homes due to defiant behavior. Appellant was unable to provide a consistent and safe residence for a substantial period of time.
Appellant still claimed to be the victim of circumstance and would not take responsibility for her actions. The social worker was concerned that appellant’s mental health problems would continue to affect her interactions with service providers who were working with appellant’s children. Given the medical fragility of K.I.S., the social worker was not comfortable with returning the children to appellant’s care. The social worker concluded that the return of the children to appellant would create a substantial risk of detriment to them. The social worker further recommended that reunification services and visitation between the children and appellant be terminated.
A social worker’s addendum report submitted in March 2009 stated appellant was in the hospital in late February 2009 due to a miscarriage. Appellant reported the hospital gave her one Vicodin, but she did not take anything else. Appellant tested positive for Benzos and Opiates. Appellant then stated she was given two Vicodin and one Klonopin. Appellant explained she did not tell her doctors about her need to take medications without narcotics because she was now able to handle a few pain pills at a time. Appellant stated she had been routinely doing this with the permission of her drug treatment program and her residential home.
The drug treatment program reported in early March 2009 that appellant had not been attending the program for a week. Appellant continued missing drug treatment classes through March 11, 2009 and failed to report or to return telephone calls to service providers who were trying to contact her.
After continuances in February and March 2009, there was a 12-month review and permanency planning hearing on April 9, 2009. Appellant was not present at the hearing but was represented by counsel. Appellant’s counsel requested a continuance. The court explained appellant was personally present at the hearing on March 23, 2009 and there was no good cause to continue the matter. Also, appellant had not indicated when she would be available for a new hearing. The court denied counsel’s motion.
The hearing focused on testimony from the children’s father. The court ordered continuing services to the father. The court found that reasonable services had been provided to both parents. The court found that although appellant regularly participated in services, she made minimal progress toward alleviating or mitigating the causes necessitating placement. The court noted it was difficult to determine whether the appellant was being intentionally manipulative, if she was delusional from her mental illness, or if her lying and deception was the result of her addiction. In any event, the court found it would be dangerous to return the children to either parent, especially to the appellant. The court further found appellant failed to demonstrate the capacity to complete the objectives of her case plan and terminated reunification services to her.
Section 388 Petition
On July 6, 2009, appellant filed a petition to change the juvenile court’s order terminating her reunification services. Appellant alleged that she had reengaged herself in her case plan requirements, including the subsequent completion of an inpatient substance abuse program, mental health counseling, medication compliance, substance abuse aftercare compliance with AA/NA meetings, and that she obtained section eight housing. Appellant alleged it would be in the best interests of the children to reunify with her and it would be harmful to both children to prevent them every possible opportunity to be raised by a biological parent.
Appellant listed the programs she was attending as Celebrate Recovery, AA, Alano Dual Recovery, SRC Drop-in Center, Telecare/Wellness, and counseling. Appellant listed an action plan for her opiate and alcohol addiction as attending a COT day program and four recovery groups a week. Appellant stated she would attend doctor appointments to attend to her health. To prevent isolation, appellant planned to utilize her women’s phone list and attend meetings. To overcome fear, appellant planned to attend her COT day program, have treatment for PTSD, use grounding and coping skills, and talk to her therapists. Appellant attached a voucher from the United States Department of Housing.
Appellant attached a letter to her petition from Henry Cisneros, a behavioral health specialist with Stanislaus County. Cisneros stated appellant had been a participant in the COT residential program from May 5, 2009 to June 12, 2009 and had made gradual and significant progress. Cisneros stated he was sure appellant would become self-sufficient and continue to make progress provided she continues treatment by taking her prescribed medications and participates in counseling.
Appellant attached a letter to her petition from Steven Berkowitz, the recovery services program coordinator for Stanislaus County. Berkowitz stated appellant was participating in specialized co-occurring services designed to address her mental health and substance dependence diagnoses. Berkowitz explained there was a problem with appellant’s initial diagnosis and her clean and sober housing provider.
Berkowitz stated appellant entered residential treatment on April 16, 2008 and successfully completed residential treatment on May 27, 2008. Appellant reentered residential treatment on May 5, 2009 and successfully completed that treatment on June 18, 2009 without behavioral issues. Appellant had clean screening tests for opiates and was taking responsibility for her addiction issues and involvement with CPS. Berkowitz opined appellant is compliant with her treatment, is taking responsibility at an adequate level, and continues to progress in treatment.
By written order on July 7, 2009, the juvenile court denied appellant’s petition. The court noted 18 months had passed since the children were removed from appellant’s custody and the reunification period had expired for her.
DISCUSSION
Appellant argues the court abused its discretion by denying her section 388 petition. We disagree.
It was appellant’s burden of proof to show there was new evidence or there were changed circumstances that made a change of the children’s placement in their best interest. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing. (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 (Jasmon O.).) The petition must be liberally construed in favor of its sufficiency. (Ibid.)
The references in In re Marilyn H., supra, 5 Cal.4th at page 310, to a “prima facie” showing is not an invitation to section 388 petitioners to play “hide the ball” in pleading changed circumstances or new evidence. A “prima facie” showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 719, fn. 6.) If a petitioner could get by with general, conclusory allegations, there would be no need for an initial determination by the juvenile court about whether an evidentiary hearing was warranted. In such circumstances, the decision to grant a hearing on a section 388 petition would be nothing more than a pointless formality.
(In re Edward H. (1996) 43 Cal.App.4th 584, 593.)
The mandate for liberal construction of a section 388 petition does not entitle a petitioner to avoid describing the changed circumstances or new evidence. Section 388 and the pertinent rule of court (Cal. Rules of Court, rule 5.570) require the petition to allege changed circumstances or new evidence that requires changing a prior order. (Jasmon O., supra, 8 Cal.4th at pp. 398, 415.) As the moving party, it was appellant’s burden of proof by a preponderance of the evidence 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 the children’s best interest. (§ 388; Stephanie M., supra, 7 Cal.4th at p. 317.)
Appellant argues the juvenile court erred in summarily denying her petition without a hearing. Appellant, however, failed to show any more than her circumstances may have been changing, not that her circumstances had changed. Appellant was emotionally unstable throughout the dependency action. Dr. Trompetter was not sure whether some improvements in appellant’s behavior were actual changes or if they were calculated improvements she made when she knew she was being observed. Appellant had a relapse in narcotic use in March 2009. Appellant followed through with services, but did not appear to improve with time. Throughout the proceedings, appellant would sometimes show progress only to revert to substance abuse and outbursts of anger. Appellant consistently displayed maladaptive patterns of obsessive defensiveness, rationalization, and blame avoidance. Appellant failed to demonstrate a sustained period of sober stability.
The parent bears the burden of showing in a section 388 petition both a change of circumstance exists 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.)
Appellant’s only contention regarding the best interests of her children was that the children would benefit from being raised by a biological parent. Even if we were to find that appellant showed changed, rather than changing, circumstances in her petition, she failed to make a prima facie showing that providing her additional reunification services would be in the best interests of her children.
To understand the element of best interests in the context of a section 388 petition, we look to the Supreme Court’s decision in Stephanie M. After the termination of reunification services, 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 children’s need for permanence and stability in advocating her position. Neither the juvenile court nor this court, however, may do so. Appellant failed to make a prima facie showing in her petition of changed rather than changing circumstances and that continuing services would be in her children’s best interest.
Finally, appellant contends that the juvenile court erred because it found in its written order that 18 months had passed since the time she began receiving services. Appellant argues that under section 361.5, subdivision (a)(3) (now section 361.5, subd. (a)(1)(C)), the time for measuring 18 months of services began with the jurisdictional hearing, which was concluded on February 29, 2008 and would have continued until late August 2009. Although 18 months had not technically passed when the juvenile court issued its written order, the 18 month time frame was about five weeks away.
Appellant’s measure of the time is not precise. Time in dependency cases is measured under section 361.5, subd. (a)(3), as “the earlier of the date of the jurisdictional hearing held pursuant to Section 356 or the date that is 60 days after the date on which the child was initially removed from the physical custody of his or her parent or guardian.” The children here were removed from appellant’s physical custody on December 18, 2007. February 15, 2008 was 60 days after that event and a date earlier than the jurisdiction hearing. The 18 month time frame would fall in mid-August 2009.
More importantly, appellant failed to make significant progress throughout the nearly 17 months that services were made available to her. She failed in her section 388 petition to make a prima facie case for continued reunification services. As respondent points out, the court can continue a case “only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent … and safely maintained in the home within the extended period of time.” (§ 366.22, subd. (b).) Also, under section 366.22, subdivision (b)(2), the juvenile court cannot extend services to the parent or guardian unless he or she “has made significant and consistent progress in the prior 18 months in resolving the problems that led to the child’s removal from the home.” Appellant failed to make such progress and there was no evidence to support the proposition that she would be capable of caring for her children in a safely maintained home within the extended period of time.
On appeal, we follow the rule that a correct decision of the trial court must be affirmed even if it is based on erroneous reasons. (People v. Braeseke (1979) 25 Cal.3d 691, 700.) We therefore reject this contention even if appellant had a theoretical opportunity for additional services and the juvenile court miscalculated the 18 month time frame.
DISPOSITION
The juvenile court’s order denying appellant’s section 388 petition is affirmed.