Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD228922
BLEASE, Acting P. J.
D.R. (mother) appeals from the juvenile court’s orders denying her petition for a modification of the court’s placement order, terminating her parental rights, and designating the de facto parents as prospective adoptive parents of the five-year-old minor M.W. (Welf. & Inst. Code, §§ 366.26, 388.) She contends the court erred in denying her modification petition seeking a change of placement to the maternal grandmother. We shall affirm the judgment.
All further undesignated section references are to the Welfare and Institutions Code.
The modification petition requested in the alternative that the minor be returned to the mother under dependent supervision with reopened reunification services. On appeal, however, mother does not argue that the juvenile court erred by denying this request. We therefore deem the issue abandoned.
FACTUAL AND PROCEDURAL BACKGROUND
The matter was referred to the Sacramento County Department of Health and Human Services (the Department) in October 2008 after it was reported that mother, who had a history of marijuana use and depression, had exposed the minor to domestic violence between mother and her boyfriend. Mother agreed to participate in counseling programs, but as of December 2008 she had not done so and had repeatedly tested positive for marijuana and cocaine.
The minor’s father was not living with mother and the minor. Though offered reunification services, he did not participate in them. He is not a party to this appeal.
On December 31, 2008, the Department filed a section 300 petition as to the minor. The minor was detained on January 2, 2009. At the jurisdiction/disposition hearing on March 4, 2009, the juvenile court removed the minor from mother’s custody and ordered reunification services for mother.
At the six-month review hearing, the juvenile court continued the minor’s placement with her foster parents and ordered further services for mother. However, at the contested 12-month review hearing on April 22, 2010, the court found mother had failed to make substantial progress in her treatment programs and displayed limited insight into her problems. Therefore, the court terminated her services and set a section 366.26 hearing for August 19, 2010.
On June 3, 2010, the minor’s counsel filed a section 388 petition seeking the placement of the minor with the foster parents. Counsel asserted that the assigned social worker, thinking the foster parents would not pass a home study due to recent financial hardships, had been trying to place the minor with a relative who had not been approved for placement. On June 24, 2010, the juvenile court made the requested order.
On August 6, 2010, the minor’s counsel filed another section 388 petition to obtain orders restricting the maternal grandmother’s visitation and referring the foster parents for a home study. Counsel asserted that the assigned social worker had been trying to move the minor into the maternal grandmother’s home, allowing the maternal grandmother to make unsupervised visits with the minor, and refusing to refer the foster parents for a home study.
On August 12, 2010, the juvenile court granted the petition in part. After learning that the foster parents’ financial situation had improved, the court ordered that they be referred for a home study; however, the court deferred the matter of the maternal grandmother’s visitation to a scheduled section 366.26 hearing.
The Department’s section 366.26 report, filed August 18, 2010, and written by the same social worker, recommended a continuance to give the foster parents time to participate in a home study. According to the report, the maternal grandmother still wanted placement of the minor with her, the mother endorsed that plan, and the minor liked the idea; however, the grandmother had a criminal record. The minor, who was generally adoptable, was doing well in the foster home, but had problems getting along with other children there.
On September 2, 2010, the juvenile court set a pretrial section 366.26 hearing on September 23, 2010, and a contested section 366.26 hearing on September 29, 2010.
During the proceedings on September 2, 2010, the foster mother told the juvenile court that mother had threatened her outside the courtroom, while the maternal grandmother stood by and did nothing. The court told the grandmother that she needed to choose between supporting mother and supporting the minor. County counsel stated that the Department was considering the grandmother for placement as a fallback.
The court observed that a new social worker had just gotten the case.
On September 20, 2010, mother filed a section 388 petition requesting one or more of the following orders: “1) The [minor] is returned to the care and custody of [mother], under dependent supervision. [¶] 2) Alternatively, the [minor] is placed with the maternal grandmother... under the supervision of the [Department]. [¶] 3) The Mother... is offered additional reunification services.” The section 388 petition alleged:
Since placement with the maternal grandmother was proposed as a prospective adoptive placement, requested order 2 was in the alternative to requested orders 1 and 3.
“[M]other... has moved to Pittsburg, California to be near her own grandmother. The reason for the move is to be away from the drama and old friends in Sacramento. She has finished college, graduating with an Associates [sic] in Business Technology. She is employed for the first time in her life.... She is randomly drug tested and has passed all tests. Her grandmother is a positive influence on her, and checks up to see that she is continuing on a path of recovery and living a life free of her former friends and influences. [Mother] is visiting with [the minor] one time per mother [sic] for one hour and speaks to her on the telephone weekly.
“Additionally, the Department... approved placement with the maternal grandmother... in May of 2010. This information was not shared with other parties until recently by the new social worker.... [The social worker] supported contact between the grandmother and [the minor], and was allowing additional visits, to include overnight visits. According to the grandmother these visits go very well, and the child asks to stay and asks when she can ‘come home.’ When they were cohabiting, the grandmother and mother were previously told by [a different] social worker... that the child could reside with the family. However, at the contested hearing, the mother’s services were terminated (which was not the recommendation of the social worker) and the case was sent to a new worker. It is [mother]’s belief that the social worker could have and should have let parties know that the grandmother was approved. Now that the [mother] has her own residence, which is separate and apart from the grandmother’s home, the child can reside with her grandmother, here in Sacramento.
At the hearing on September 23, 2010, mother’s counsel asserted that the maternal grandmother’s placement request “fell through the cracks of the Department.” County counsel replied: “That’s not true. The maternal grandmother was on probationary status, therefore was not qualified and not able to have the placement at that time.”
“Please see... [the] report prepared for the Selection and Implementation hearing, dated August 19, 2010[, ] for additional support and information regarding the maternal grandmother. The social worker’s report indicates that the maternal grandmother should pass an adoptive home-study and is willing to provide permanency for the child.
“If the child cannot be returned to... [m]other, ... [m]other supports the child living with the maternal grandmother. If... [m]other’s services are not reopened and the court finds the child adoptable, over her objection, ... [m]other supports the maternal grandmother adopting the child.”
The section 388 petition also alleged that the minor, who considered the maternal grandmother’s residence “home, ” had asked to live with her. There would be no other children in the home. The grandmother was willing to adopt the minor and to follow all court orders. Granting additional time through providing mother with further reunification services “would support the child’s connection with... [m]other, allowing for a continuing of the natural family relationship.”
The petition did not attach any supporting evidence.
The juvenile court set the section 388 petition to be heard at the pretrial section 366.26 hearing on September 23, 2010.
At that hearing, mother’s counsel requested a contested evidentiary hearing on the section 388 petition, at which mother, the maternal grandmother, the minor, and the originally assigned social worker would testify. County counsel and the minor’s counsel argued that mother had not made a prima facie case for placing the minor with her or reopening services, and that placement with the maternal grandmother could be considered along with other possible placements at the section 366.26 hearing.
The juvenile court ruled as follows:
“In terms of the [section] 388 [petition], as it applies to the mother, the Court does not find persuasive, her recent decision to finish college and get a job. And the Court... in April of this year, when looking at what had been accomplished at the [section 366].21(f) hearing, indicated that the efforts of the mother were too little and too late. And the Court does not find that... the evidence presented in the motion provides any substantial change of circumstances and does not find a prima facie case having been made for either a substantial change of circumstances or that it would be in the best interest of the child either. Therefore, the Court would deny the [section] 388 [petition] as to the mother’s request for return of the child to her [and reopening reunification services].
“And, as to placement, the Court has already addressed the issue of placement pending the [section 366].26 hearing, and therefore the Court would deny the motion as to placement at this time, that is, without prejudice to evidence being presented at the evidentiary hearing next week as to what the Department should consider and what the law requires in terms of the facts and circumstances to support findings under [section] 366.26.”
An addendum report filed September 28, 2010, written by a newly assigned social worker, recommended terminating parental rights and ordering adoption for the minor. She was generally adoptable. She had not seen her biological parents since before the case was transferred to adoptions, and telephone contact had been sporadic. Mother had not shown any change in circumstance that would enable her to meet the minor’s needs. The maternal grandmother was not considered for placement before the jurisdiction/disposition hearing because she was on probation for misdemeanor vehicle theft, and (though having completed probation as of November 2009) could not receive preferential consideration for placement at this stage. Although the minor had an emotional connection to her, the minor also had such a connection to her foster family, with whom she had resided since February 2009 and whose members she sought out to meet her needs; she referred to her foster mother as “Mom” and “Mommy.” The foster parents, who wished to adopt her, had recovered from their financial problems and had applied to begin the [home-study] process. Their current home was suitable for the minor, and there was no evidence that their prior problems had compromised the needs of any of the children in their care. Continuing placement with the foster parents would be in the minor’s best interest.
At the contested section 366.26 hearing on September 29, 2010, mother did not appear, to her counsel’s surprise. After the juvenile court denied counsel’s request for a continuance, counsel restated mother’s request for placement with the maternal grandmother and entered objections to the proposed findings and orders.
The court asked mother’s counsel whether she wished to present testimony. Counsel replied, “No, Your Honor. I think that would -- there is evidence in the report that the child -- in the original [section 366].26 report prepared by [the original assigned] social worker, ... that the child is connected to her maternal grandmother, was enjoying time with her, and so I would ask the Court to take that into consideration when making its rulings this afternoon.”
Without comment on the section 388 petition, the court terminated parental rights and ordered adoption as the permanent plan.
DISCUSSION
I
Mother contends: “The juvenile court’s grounds for denying [mother] a hearing on her request for modification of [minor’s] placement were improper.” The Department responds that the court “properly denied [mother]’s request for an evidentiary hearing.”
In fact, the court did not deny mother an evidentiary hearing on her section 388 petition request for placement with the maternal grandmother, the only issue on which she now claims error. Rather, the court granted her an evidentiary hearing on the section 388 petition as part of the section 366.26 hearing.
On September 23, 2010, the court said that because it “ha[d] already addressed the issue of placement pending the.26 hearing, ” it was denying mother’s request for placement with the maternal grandmother “without prejudice” to mother’s right to present evidence on the request at the upcoming section 366.26 hearing. During that hearing, the court invited mother’s counsel to present such evidence. Instead, counsel rested on the existing record. (See In re C.J.W. (2007) 157 Cal.App.4th 1075, 1080-1081 [§ 388 petition not summarily denied without hearing where juvenile court heard argument and considered written evidence, but did not take testimony].)
Because mother received an evidentiary hearing on her placement request at the section 366.26 hearing, we need not decide whether the reason the juvenile court gave at the prior hearing for “deny[ing] the motion as to placement at this time” was correct. We review the court’s ruling, not its reasoning. (California Aviation, Inc. v. Leeds (1991) 233 Cal.App.3d 724, 731.)
II
Mother contends her section 388 petition made a prima facie case to justify her request for placement with the maternal grandmother. Even assuming it did, that would not require reversal. If a section 388 petition is sufficient on its face, it entitles the petitioner to an evidentiary hearing -- which mother obtained. (In re Daijah T. (2000) 83 Cal.App.4th 666, 673.) The critical question is whether, at the hearing, she met her burden to justify the requested placement. We conclude she did not.
A parent petitioning to modify a juvenile court order under section 388 must allege facts showing that new evidence or changed circumstances exist and that changing the order will serve the child’s best interests. (In re Daijah T., supra, 83 Cal.App.4th at p. 672.) To obtain a hearing, the petition, when liberally construed in favor of its sufficiency, need establish only a prima facie case as to both statutory grounds -- that is, it must allege facts which would support a favorable decision if the evidence supporting the allegations is credited. (Id. at p. 673; Cal. Rules of Court, rule 5.570(a).)
At a hearing on the petition, the petitioner has the burden of proof by a preponderance of the evidence. (Cal. Rules of Court, rule 5.570(h)(1).) In assessing the petition, the juvenile court may consider the entire history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)
To decide whether mother met her burden, the juvenile court should consider such factors as the seriousness of the problem which led to the dependency and the reason for the problem’s continuation; the degree to which the problem may be and has been removed or ameliorated; and the strength of the relative bonds between the dependent children and their parents and caretakers. (See In re B.D. (2008) 159 Cal.App.4th 1218, 1229; In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.)
We reverse the court’s determination on a section 388 petition only for abuse of discretion. (See In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re S.R. (2009) 173 Cal.App.4th 864, 870; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413.) Abuse of discretion is shown only if, under all the evidence (including reasonable inferences from the evidence), no reasonable judge could have made that ruling. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) The juvenile court here did not abuse its discretion.
At the section 366.26 hearing, mother rested on the petition itself and the original section 366.26 report, written by the original social worker who had long advocated placement with the maternal grandmother. Citing only to the report, the section 388 petition alleged: (1) the Department had approved the maternal grandmother for placement, but this approval had somehow, for unstated reasons, been kept secret from all parties; (2) the maternal grandmother could pass an adoptive home study; (3) she was willing and able to adopt the minor; (4) the minor wanted to stay with her and considered her residence “home”; and (5) if mother could not regain custody, she wanted the maternal grandmother to adopt the minor. These points were either unsupported by reliable evidence or outweighed by other evidence before the juvenile court.
At the hearing on September 23, 2010, the Department disputed the petition’s claim, which appeared to rely solely on the original social worker’s opinion, that the maternal grandmother had been approved for placement. As mentioned, after mother’s services were terminated, the minor’s counsel twice petitioned under section 388 to thwart the social worker’s apparent design of shifting placement from the foster parents to the maternal grandmother, and the juvenile court granted both petitions. Thus, at the section 366.26 hearing, the court could reasonably have concluded that the social worker’s assertion stemmed from her bias in favor of the maternal grandmother, not from objective reality.
The petition’s assertion that the grandmother could pass a home study likewise appeared to rest only on the original social worker’s opinion. The juvenile court could reasonably have found this claim to be both speculative and belated, given that the foster parents’ home study was already under way.
The petition’s remaining assertions and supporting evidence might have carried weight at an earlier stage of the proceedings, or if no countervailing evidence existed. However, because the case was now at the selection and implementation stage and the minor had been found generally adoptable, the Legislature’s preference for adoption as the favored outcome of providing the minor with stability and permanence outweighed all else, absent a showing of detriment to the minor from the termination of parental rights. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) No such showing was made. On the contrary, the Department’s final addendum report suggested the opposite.
As to the section 388 factor chiefly relevant under the circumstances -- the strength of the relative bonds between the minor, her caretakers, and the maternal grandmother (see In re B.D., supra, 159 Cal.App.4th at p. 1229; In re Kimberly F., supra, 56 Cal.App.4th at p. 532) -- the addendum report stated that whatever the minor’s attachment to the maternal grandmother might be, the minor was bonded to her foster parents and looked to them to meet her needs. To move her out of their home and into the maternal grandmother’s home at that time would have forced the minor into a conflict of allegiances and indefinitely delay the achievement of permanence and stability.
Furthermore, it was part of the history of the case, which the juvenile court could properly consider (In re Justice P., supra, 123 Cal.App.4th at p. 189), that the maternal grandmother had recently failed to intervene when mother threatened the foster mother outside the courtroom. As the court told the maternal grandmother at the time, her conduct suggested that she had not realized she might have to choose between mother’s wishes and the minor’s needs. This failure of recognition was yet another reason why the requested placement with the maternal grandmother would not have served the minor’s best interest.
In short, nothing offered by mother at the section 366.26 hearing met her burden to justify the change of placement she sought.
DISPOSITION
The orders denying the mother’s section 388 petition, terminating her parental rights, and ordering adoption as the permanent plan are affirmed.
We concur: BUTZ, J., DUARTE, J.