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In re Mariana M.

California Court of Appeals, Fourth District, Third Division
Mar 18, 2008
No. G039528 (Cal. Ct. App. Mar. 18, 2008)

Opinion


In re MARIANA M., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. GEORGINA T., Defendant and Appellant. G039528 California Court of Appeal, Fourth District, Third Division March 18, 2008

NOT TO BE PUBLISHED

Appeal from orders of the Superior Court of Orange County Super. Ct. No. DP012592, John C. Gastelum, Judge.

Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, and Karen L. Christensen and Alexandra G. Morgan, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minor.

OPINION

MOORE, J.

The mother, Georgina T., contends the juvenile court erred when it denied her a hearing on her petition brought under Welfare and Institutions Code section 388. (All further statutory references are to the Welfare and Institutions Code.) We affirm.

I

FACTS

When the minor, Mariana M., was 14 months old, she was taken into custody. The father, Cesar M., was in prison. The mother was arrested on a probation violation and taken to Orange County jail when the minor was taken into custody. At that time, the minor was “filthy, wearing a soaking diaper which caused her wet clothing from the waist down, an unexplained scratch on her left cheek and conjunctivitis.”

The father has an extensive criminal history. He has been arrested numerous times for carrying a loaded fire arm, participating in a criminal street gang, burglary, assault with a deadly weapon, attempted murder as well as other charges. In 2005, he was sentenced to 16 months in prison for participating in a criminal street gang. The mother has been arrested for charges involving the selling of a dangerous weapon and vehicle theft. She was convicted of vehicle theft and sentenced to three years probation; one of the conditions of probation was that she spend 150 days in jail. In 2006, the mother, too, was sent to prison.

Orange County Social Services (SSA) reported to the court that both parents abuse substances and that the mother “has an unresolved substance abuse problem, dating from approximately 1996; which includes, but is not limited to, the use of methamphetamines, marijuana, heroin, cocaine, and alcohol. The mother’s substance abuse problem impairs her ability to effectively care for and parent the child and places the child at risk of neglect and abuse.”

On July 19, 2007, SSA reported: “Despite the mother’s recent progress, the mother has not been able to remain drug free for over three months since she was released from jail in December 2006. Although more recently, she has been attending the Perinatal Program and is making some progress, the undersigned does not believe that the mother would be in a position to regain custody of the child. She is currently not employed, resides with her mother and that relationship seems to be conflictual. Further, with the mother expecting her second child, she sounds unsure about what her future will be like. . . . [¶] The child has been in protective custody for almost two years out of her three years of her short life. The mother was offered reunification services for over a year and was unable to remain drug free and had several legal problems that landed her in jail twice. The undersigned does not believe that the likelihood of the child reunifying with her mother is feasible. The child has the right to live in a loving and permanent stable home and the paternal grandparents have demonstrated their continued commitment to care for her.”

On November 5, 2007, the mother filed a motion under section 388. In it she stated: “On March 29, 2007 the judge made the following order that [I] feel should be changed: the Court terminated family reunification services and set the matter for a permanency hearing.” She requested the juvenile court return the minor to her care and custody.

In her declaration attached to her motion, the mother declared that she found a new residence with the female owner of a mobile home as well as the mother’s 17-year-old sister. The mother went on to say that she intended the minor share a bedroom with her, that the mother’s boyfriend pays her rent and that the mother’s mother promised to help should the boyfriend become unable to pay the rent in the future. According to the declaration and an attached letter, the mother was then in Phase IV of the County of Orange Health Care Agency Perinatal Treatment Program. She said she was drug testing and attending Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings. She claimed to have monitored visits with the minor two times a week.

Her declaration concludes: “I believe it would be in my daughter’s best interest to be returned to my care for several reasons. I am now in a better position to care for my child and am much more aware of her needs. I have extended family support. My sister is willing to help with childcare. I love [the minor] deeply and believe it is time she come home. She is three years old and has spent too much time out of my care. [¶] I respectfully request that the court return my daughter and am willing to do whatever is necessary to protect my child.”

The juvenile court’s order denying the request notes it does not state new evidence or a change of circumstances, and does not show that it will be in the best interest of the child to change the order.

II

DISCUSSION

A parent may, upon grounds of change of circumstances or new evidence, petition the court for a hearing to change, modify or set aside any order of the court previously made to terminate the jurisdiction of the court. (§ 388, subd. (a).) If it appears that the best interests of the child may be promoted by the proposed change of order or termination, the court shall order that a hearing be held. (§ 388, subd. (c).)

Juvenile courts have the discretion to summarily deny a hearing if it does not appear that the best interest of the child may be promoted by the proposed change or order. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806; Cal. Rules of Court, rule 5.570) The juvenile court’s denial will not be disturbed on appeal absent an abuse of discretion. (In re Zachary G., supra, 77 Cal.App.4th at p. 808.) A hearing may be denied only if the application fails to reveal any change of circumstance or new evidence which might require a change of order. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431.)

In this case, the mother abused substances for years. When she petitioned the juvenile court to change its rulings, she had a new baby on the way, had spent a very short time in a new residence and demonstrated a shaky ability to pay her rent. The minor had been in a loving and protective home. While the mother was in the process of changing her life style, such was insufficient to demonstrate her circumstances were changed. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1072.) Under this set of facts, we cannot say the juvenile court abused its discretion when it denied a hearing on the mother’s petition under section 388.

III

DISPOSITION

The findings and orders of the juvenile court are affirmed.

WE CONCUR: O’LEARY, ACTING P. J., FYBEL, J.


Summaries of

In re Mariana M.

California Court of Appeals, Fourth District, Third Division
Mar 18, 2008
No. G039528 (Cal. Ct. App. Mar. 18, 2008)
Case details for

In re Mariana M.

Case Details

Full title:ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Mar 18, 2008

Citations

No. G039528 (Cal. Ct. App. Mar. 18, 2008)