Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Marilyn Mackel, Juvenile Court Referee. Los Angeles County Super. Ct. No. CK49589
Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant.
James M. Owens, Assistant County Counsel, Jacklyn K. Louie, Senior Deputy County Counsel for Plaintiff and Respondent.
WOODS, J.
Appellant, R.F., the maternal great aunt of the minors N.B., E.B. and C.B. appeals the juvenile dependency court’s orders summarily denying her Welfare and Institutions Code section 388 petitions seeking, among other relief, visitation with the minors. For the reasons stated herein, we conclude the juvenile dependency court did not abuse its discretion in summarily denying R.F.’s petitions because she failed to present a prima facie case showing a change of circumstances or that the proposed change would benefit the children. Accordingly we affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A. Dependency Proceedings From 2002-2006 and Circumstances Resulting in the First Appeal.
This is the third appeal R.F. has filed in this court. The facts described in section “A” are set forth in detail in the unpublished opinion of this court in the prior appeal brought by R.F. (In re E.B. (case No. B190383)); they are summarized here. The facts in section “B” are set forth in detail in the unpublished opinion in a second appeal brought by R.F. (In re E.B. (case No. B206537)) and are summarized here as relevant.
The eldest of the children subject of this appeal, N.B. (born in November 2000), originally came to the attention of the Kern County Department of Human Resources (“DHS”) in May 2002. The DHS filed a section 300 petition and took N.B. into protective custody after his five-month-old sister A.B. died under questionable circumstances. Allegations were also made against C.B., (“Mother”) to the effect that Mother was abusing N.B.
Neither Mother nor the minors’ father N.C. B. (Father) is a party to the appeal.
The petition was sustained and in March 2003 the matter was transferred to Los Angeles County when the parents moved to the county.
On August 27, 2003, DCFS filed a petition under section 300 on behalf of E.B. who was born in August 2003, alleging that Mother had a history of amphetamine use and that E.B. tested positive for drugs at birth. DCFS also filed a petition on behalf of N.B. under section 342 on the ground that Mother was a current user of amphetamine and that such use “periodically limited[ed]” Mother’s ability to regularly care for N.B. Both petitions were ultimately sustained. On October 21, 2003, at the jurisdictional/disposition hearing the court sustained the petitions, declared the children dependents; removed custody from the parents; ordered the children placed with the paternal grandparents; and ordered family reunification services.
In 2004, after Father had made progress in the case plan the court ordered N.B. to be placed in the home of parent (Father) at the section 366.21, subdivision (e) hearing and ordered DCFS to make unannounced home visits. E.B. remained placed with the paternal grandmother (“Paternal Grandmother”). Over the next year the children remained as placed while the parents worked to maintain compliance with the case plan.
On June 28, 2005, a petition under section 388 was filed by R.F. declaring she was the maternal great-aunt of the children and stating she had “maintained a life-long interest” in Mother and had “a consistent interest in her children throughout their young lives.” She described the maternal side of their family and their interest in Mother’s whereabouts and gave information about the life of Mother. R.F. indicated she had made many requests of the social worker to visit the children. R.F. indicated she had offered herself as an available adoptive placement for E.B. and to care for N.B. R.F. asked for visitation with the children, consideration as placement for the minors and for de facto parent status.
R.F. also reported that Father hit N.B. on the head and DCFS was in the process of investigating the allegations. A section 366.26 report had been prepared earlier for that date; it noted that E.B. had lived with the Paternal Grandmother since shortly after her birth and that Father lived with N.B. in a separate part of the house. Paternal Grandmother stated that Mother visited E.B. inconsistently and the social worker believed Mother may be living with Father. Paternal Grandmother had a DUI in 1998 in the state of Nevada and seemed to show little remorse about it and denied any current alcohol use. The DCFS was also concerned that Paternal Grandmother was seeking a legal guardianship so that she could eventually turn E.B. over to the parents once jurisdiction was terminated. During an interview with the social worker N.B. stated that Father and Mother hit him and Mother was living in the home, but there were no bruises or marks on him. DCFS made the recommendation that while allegations were being investigated E.B. be placed in long term foster care.
At the time the DCFS also expressed concerns about the placement of the children because of the Paternal Grandmother’s alleged abuse of alcohol and conditions of Paternal Grandmother’s home.
The court granted R.F. monitored visits once or twice a week with both children with discretion vested in DCFS to liberalize the visits. Paternal Grandmother also filed a request for de facto parent status on July 6, 2005, on the basis that R.F. had not been in the lives of the children and that the last time the Mother saw R.F. was when she was four or five years old. Paternal Grandmother also related that she had no intention of returning E.B. to the parents once she had adopted E.B. In July 2005 the court granted the request of both parties for de facto parent status.
At the September 26, 2005, hearings, DCFS reported that Father was found by the social worker to be sincere in his concerns for N.B.’s well being and development and was aware of his duty to protect N.B. from Mother’s drug use. Father was described by the social worker as a mild person who seemed able to control his temper and who cared for N.B. Father believed N.B. needed him, needed stability, and was very concerned about N.B’s welfare. The DCFS also closed the investigations of the allegations concerning the Father from June 2005.
DCFS recommended N.B. be ordered home-of-parent, jurisdiction be terminated over N.B.; that legal guardianship be granted to the Paternal Grandmother over E.B.; that the case be closed; and that the de facto statuses and R.F.’s unmonitored visitation orders be lifted. In the fall of 2005, the DCFS asked the court to reconsider the de facto parent status of R.F. and/or reduce her visitation with the children to four hours once a month in view of the fact that her current visitations were “very disruptive” and “[t]hey are essentially with someone who has never been involved in their lives....” Counsel for the children did not take issue with the visits. Mother and Father joined in the position of DCFS. A hearing date to determine termination of jurisdiction over N.B. was set for early 2006, the court declining to terminate jurisdiction on that date because it wanted assurances of Mother’s compliance and that the Father and Paternal Grandmother were following the court’s orders. The court further ordered that R.F. could continue to have visits with the children for two to four hours twice a month. The court also appointed Paternal Grandmother as E.B.’s legal guardian. Letters of guardianship were issued and no objections were made. The matter was then continued to February 2006 for a progress report and to May 2006 for a section 364 hearing and consideration for a permanent plan.
On December 27, 2005, Mother gave birth to a son, C.B.
On May 8, 2006, at a hearing where R.F. and her attorney were present, the court found there was no longer any risk to the children and that it was inclined to terminate jurisdiction over both children. Mother was in compliance and Paternal Grandmother had been providing E.B. with a stable home. The court then stated that it was “inclined to terminate jurisdiction. Any objections? Hearing none, jurisdiction is terminated.” R.F.’s de facto parent status was terminated “by operation of law today.”
A section 388 petition was filed by R.F. on May 8, 2006, seeking to reinstate jurisdiction, reassign a new social worker, and give her the “opportunity to have [her] day in court....” The petition was denied for failing to state facts to support the allegations, failing to state a change of circumstances or new evidence or how it would promote the children’s best interests, and because counsel and R.F. were present at the hearing.
R.F. appealed the court’s order terminating its jurisdiction over N.B. and E.B. and court’s failure to order visitation with E.B. prior to the termination of jurisdiction. This court affirmed, finding that R.F. had forfeited her right to challenge the termination of jurisdiction order. Likewise as to the order of visitation with E.B., we concluded that she had failed to preserve it for appellate review and that any error in the proceedings was harmless.
B. Dependency Proceedings From 2007 to Present and Circumstances Resulting in the Second Appeal.
The children N.B. and C.B. came to the attention of the DCFS again in the late spring of 2007 when it was reported that Mother had given birth to a baby in the garage of the family home during a yard sale. Father had provided Mother with a shoe lace to tie off the umbilical cord after Mother cut it with scissors. Mother admitted to having used drugs, but stated that she had planned to give the baby up for adoption.
A section 300 petition was filed on behalf of the baby, but it was ultimately dismissed when the parents formally relinquished their rights as to that child.
In early May 2007, the DCFS filed a section 300 petition on behalf of N.B. (who was then 6 years old) and the toddler C.B. under subdivisions (a), (b), and (j) alleging that Mother was physically abusing the boys and using illegal drugs. The original petition did not contain any allegations concerning Father, but it was amended to allege that Father abused N.B. and that Mother had given birth to a baby under questionable circumstances. The children were detained and placed in Paternal Grandmother’s home.
On July 20, 2007, DCFS filed an ex parte application on behalf of N.B. and C.B. and a section 300 petition as to E.B. against Paternal Grandmother alleging that the parents had been periodically living in the Paternal Grandmother’s home against court orders, that the Paternal Grandmother was often intoxicated and that she used inappropriate discipline with the children. The children were placed in foster care. In early August, R.F. wrote to the court mediator and the DCFS expressing an interest in gaining custody of the children and even adopting them.
At the jurisdictional hearing for N.B. and C.B., it was indicated that both boys had a number of issues. N.B. had a number of diagnoses including ADHD, autistic disorders and bipolar disorder. C.B. had developmental delays, possible auditory problems and was being evaluated by the Regional Center. The Paternal Grandmother indicated that she wanted E.B. returned to her, but she was unable to care for the other minors; the parents continued to reside with her.
The petition as to N.B. and C.B. was sustained and the children were found to be described by section 300, subdivisions (a), (b) and (j). Services were offered for the parents and they were ordered into counseling, drug rehabilitation and various parenting courses.
In August 2007, a section 387 petition was filed concerning E.B. adding an allegation of neglect against the Paternal Grandmother. The DCFS also filed a section 388 petition to terminate the Paternal Grandmother’s legal guardianship over E.B. and to re-instate jurisdiction as to E.B. According to an information report, R.F. had been visiting the children and her home included enough beds to accommodate the children; R.F. also expressed an understanding of the children’s special needs.
On October 11, 2007, after a contested hearing, the court found that returning E.B. to the Paternal Grandmother posed a risk of harm to the child and sustained the petition. The court terminated the legal guardianship. The court ordered that E.B. be placed in the care and custody of the DCFS for suitable placement. At the time, R.F. was identified as the suitable placement for the child. The court further noted that the permanent plan was placement with R.F. with the goal of legal guardianship. All three of the children were released to R.F., and family preservation and in-home parenting services were ordered to be provided. A review hearing was scheduled for February 2008.
On January 9, 2008, the DCFS filed a section 387 petition on behalf of N.B. asserting that R.F. was unable to care for N.B. and that his behavior had become aggressive, requiring that he be psychiatrically hospitalized.
A DCFS report submitted with the petition further indicated that R.F. had enrolled the children in a 24-hour daycare facility and had left the children in “daycare” from after school at 2:00 p.m. until 10:00 p.m. for several weeks while she was completing a degree. The report further disclosed that because R.F. was self-employed and was remodeling a house she sometimes left the children in daycare until 1:00 a.m., believing that she had permission to leave the children in daycare for 10 hours a day, Monday through Friday. The report indicated that R.F. had not provided the social worker with information to justify the long hours in daycare. The report further disclosed that R.F. had been evicted from her housing, and that she and the children were staying in an apartment that R.F. used as an office and that she kept a number of pet rabbits in the apartment as well. Finally, the DCFS report stated that unsuccessful efforts were made to set-up a Team Decision Making meeting with R.F. The DCFS recommended that N.B. be detained and undergo a mental evaluation. In addition, the DCFS noted that R.F. was uncooperative in facilitating the DCFS’s examination of her apartment.
R.F. appeared at the detention hearing and was appointed counsel. Both R.F. and her counsel addressed the court, and the court gave R.F. an opportunity to explain her circumstances. R.F. explained her housing situation; she stated the reason that she had to move occurred because the person who owned the house she had been renting returned to the country and needed to reoccupy the premises. She explained that she intended that the stay in her apartment/office was temporary and that the social worker had known about it and “didn’t have a problem.” She also explained that the social worker had approved the long hours in daycare and that situation occurred because she was attempting to finish her culinary arts degree, but ultimately did not finish because she had missed so many classes. The court expressed surprise that it had not known about R.F.’s schooling, and R.F. responded that the social worker knew about the situation before the children were placed with R.F., and had told R.F. not to provide the information or documents to the court or speak with the children’s attorney.
The children’s lawyer expressed concern over the decision to leave the children in “daycare” for such long hours and also relayed a concern from N.B.’s counsel about whether R.F. was an appropriate caretaker for the children.
DCFS counsel provided a different account from the social worker. According to the DCFS, the social worker detained the children from R.F. because she could not verify R.F.’s housing situation or other representations. The DCFS also provided the records and other evidence from the daycare showing the hours the children had been in the program and the interaction of R.F. with the program.
Mother’s counsel indicated Mother’s opposition to the children’s placement with R.F. and expressed problems Mother had with visitation since the children had been placed with R.F.
The juvenile court found that reasonable efforts had been made to prevent removal and ordered N.B. detained from R.F.’s care and placed in foster care. The court indicated that if it had known all of the circumstances with R.F. it would not have placed the children with R.F. The court stated that it had concerns about R.F.’s judgment and her care for the children and their special needs. The court also expressed its concern that these special needs children had not received individualized nurturing and care from R.F., and also ordered an administrative review from DCFS. The court declined to order visitation for R.F. at that time. The court indicated that too much was going on with the children and the court needed additional information. The court suggested that the visitation issue could be revisited at a later date.
On January 11, 2008, the DCFS filed a section 387 petition on behalf of C.B. and E.B. alleging R.F.’s inability to care for the minors, leaving them in “daycare” for more than 20 hours a day and failure to cooperate with the DCFS and family preservation. The reports and evidence submitted in support of the petition were substantially similar to that submitted to the court in connection with the petition for N.B.
At the outset of the January 11, 2008, detention hearing, R.F’s counsel asked to be relieved. R.F. stated that she and her counsel had a miscommunication and that she had wanted a new lawyer. The court relieved R.F.’s counsel and denied R.F. (and her former counsel’s request) that she be appointed new counsel. The court reminded R.F. that she was neither the legal guardian nor the de facto parent of the children in which case the court might appoint counsel for her. The court stated that based on the information provided at the prior hearing from R.F.’s counsel and R.F. the court understood what was going on and that the court did not intend to return the children to R.F.’s care. The court further indicated that R.F. was free to seek her own counsel and to provide the court with any relevant information, but that the information that had been provided to the court thus far was “disturbing.”
The court detained E.B. and C.B. and ordered that they be placed in foster care. The court again stated that it would not order visitation for R.F. with the children until it had more professional information about the children’s health and well-being. A discussion was then held off of the record. When the court returned on the record, it sua sponte dismissed the section 387 petition without prejudice; and then advanced and vacated the adjudicatory hearing on the section 387 petition pertaining to N.B., dismissing the petition without prejudice. When R.F. asked the court why it had dismissed the petitions, the court explained that it was doing so to protect R.F. from the negative consequences that occur if the petition was sustained.
The court explained that it would preclude R.F. from getting a foster care license in the future and could result in her being characterized as a child abuser on the child abuse index.
On January 27, 2008, R.F. filed an application for rehearing of the orders of the juvenile court made on January 9, 2008. The application was denied because the “relative caretaker is not entitled to a rehearing under WIC 252.”
R.F. filed an appeal of the orders dismissing the two section 387 petitions. On appeal R.F. asserted the juvenile dependency court erred in removing the children from her placement and dismissing the section 387 petitions sua sponte prior to the jurisdictional hearing and without considering whether placement with her was no longer appropriate in light of section 361.3. This court did not reach the merits of R.F.’s contentions. We concluded that R.F., as a mere relative and short-term caretaker, had no legally recognized interest that was harmed as a result of the orders and thus she lacked standing to challenge them on appeal. (See In re E.B. (case No. B206537) filed May 18, 2009.)
C. Dependency Proceedings From January 2008 to Present and
Circumstances Resulting in the Current Appeal.
In early February 2008, N.B. had a mental evaluation and was diagnosed with Post-traumatic Stress Disorder, ADHD and Fetal Alcohol Syndrome (FAS). After he was released from the hospital he was placed in foster care/group home—a family home for boys.
C.B. and E.B. were placed in the same foster care home. The foster parents of E.B. and C.B. stated that it appeared that in their prior placement (with R.F.) the children did not have any routines or boundaries and that they were adjusting to their new placement. Specifically with respect to E.B. the foster parent reported that when she first arrived she would not eat and would stand in one spot for long periods of time. E.B. also experienced behavioral problems and regression after her visits with the Paternal Grandmother. C.B. was diagnosed with Reactive Attachment Disorder and FAS.
All three of the children were receiving counseling; the therapist reported that the children would benefit from a structured environment with predictable and safe routines.
R.F. attended the February 6, 2008, status hearing, but upon request of the Mother the court excused her from the courtroom. At the hearing the court ordered the DCFS to explore placing N.B. with his siblings.
R.F. also filed several section 827 petitions for disclosure of juvenile court records.
In March 2008, E.B. and C.B. moved into another foster care placement. In March 2008, the court terminated reunification services for the parents with N.B. and C.B. and scheduled a section 366.26 hearing.
In May 2008, N.B. was moved to a new placement after inappropriate sleeping arrangements were discovered at the foster home.
The report prepared for the July 17, 2008, status review hearing indicated that N.B. had been hospitalized in mid-May 2008 for psychiatric issues and then placed in another “D-rated” foster home because his prior placement proved so “chaotic” for him in view of his lack of focus and PTSD. The report indicated that N.B. had experienced problems stabilizing because of his severe PTSD and “extreme aggression.” He had apparently started a fire in the foster home. It was recommended that N.B. required “a higher level of care to include 24-hour a day seven day a week child supervision.” N.B. was also having difficulty achieving consistency in taking his medication and could not maintain mental stability without his psychotropic medication. It was further reported that N.B.’s visits with his parents were detrimental, and the therapist recommended that the visits be stopped.
The July 2008 status review report further noted that in May 2008 E.B. was diagnosed with PTSD and prior physical abuse. It was also reported that E.B. was very aggressive with siblings, had poor sleeping episodes and had been prescribed Prozac. The report indicated that with respect to C.B., he was speech delayed. C.B. had received a new referral to the Regional Center and was at high risk for developmental delays. The report indicated that the DCFS was searching, but had not located any appropriate adoptive homes for the children.
In July 2008, Mother filed a section 388 petition, seeking reinstatement of reunification services and unmonitored visits. The court scheduled a hearing on Mother’s petition for August 21, 2008.
On August 19, 2008, R.F. filed a section 388 petition, requesting a change in the court’s orders of January 2008. Specifically, in describing the change of circumstances, R.F. stated that she always acted in the children’s best interest and had provided the court with valuable information. R.F. asked that the court order monitored or unmonitored visits with the children, and urged the court not to place the children with the maternal grandmother (R.F.’s former sister-in-law) who resided in Florida; R.F. asked the court to keep the children in California until “we can work out a better case plan.” R.F. indicated that the children would be “reasonably safe” as “wards of the court” rather than with the maternal grandmother, mother or paternal relatives. In connection with the petition, R.F. submitted her declaration which focused on why R.F. believed that the children should not be sent to Florida. She also attached numerous pages of documents, including letters, e-mail correspondence and other documents which related to R.F. and her interactions with the maternal relatives.
In late July 2008, the social worker had spoken with the maternal grandmother who had indicated that she would be able to care for the children if the Mother was not provided with additional reunification services. The maternal grandmother had provided the DCFS with information for the preliminary criminal background investigation. The DCFS requested that the court initiate an expedited ICPC.
R.F. filed a second 388 petition on August 20, 2008. This petition sought a change of the January 2008 orders denying her visitation and removing the children from her home. In the August 20 petition R.F. sought visitation (monitored or unmonitored) with the children, custody and indicated that she wanted to become the children’s legal guardian and/or to adopt them. R.F. described the change of circumstances as: “For the last seven months I have been diligently changing everything around that I thought would show how much more I was and still would do on behalf of these children. And it has been difficult because I never knew what was against me because up until the end of April 2008 [I] never had the 1/11/08 petition and once I had it everything was dismissed, I continued to do all I could to …. change that order.” With response to the issue of whether the change in order would be in the children’s best interest, R.F. again referred to her efforts, her expense and sacrifice over the last seven months to create a home for the children. In a handwritten statement attached to the August 20 petition, R.F. stated that she had gotten a new job with regular hours and benefits, had leased a new apartment and had completed course work to obtain a “D-rating” for caring for a child. In support of these statements, R.F. attached a copy of a brochure for an apartment, a letter dated December 2008 indicating that an apartment was available, and one page of an undated rental agreement. She also attached certificates showing her completion of course work for a “D-Rate” pre-service training and “F-Rate” Foster and Kinship Care Pre-Service training. R.F. also attached multiple pages of documents pertaining to the children’s childcare arrangements and other matters from the November and December 2007 time period, prior to their removal from her home.
At the Mother’s August 21, 2008, section 388 petition hearing both R.F and the maternal grandmother were present. R.F. was excluded from the proceedings because she was not a party. Counsel for the children advocated for the children to be placed with the maternal grandmother in Florida. The court noted that the maternal grandmother was willing to assume guardianship and had experience with special needs children. The court denied the Mother’s 388 petition, but ordered unmonitored visits for the maternal grandmother with the children while the maternal grandmother was in California. The court also ordered an ICPC for the maternal grandmother’s home in Florida.
On September 19, 2008, the court summarily denied R.F.’s August 20 section 388 petition noting that the facts did not support the request, that the petition failed to state new or a change of circumstances or show that it would be in the best interest of the children. With respect to the request for visitation, the court wrote “Seeking stability for children—will reinstate visits when/if children’s best interest.” On November 7, 2008, the court also summarily denied R.F.’s August 19 section 388 petition, noting: “Request is same as August 20 [section] 388 re visitation. Re: request not to place with [maternal grandmother] – issue not determined and is under investigation by ICPC [Interstate Compact for the Placement of Children] prior to consideration of court.”
On November 18, 2008, R.F. filed a notice of appeal of the court’s order on the August 20 petition; on January 16, 2009, R.F. filed an appeal of the court’s denial of the August 19 petition.
Both appeals have been assigned the same appellate case No. B212457.
DISCUSSION
R.F. contends the juvenile court abused its discretion in summarily denying her 388 petitions without a hearing. She asserts the petitions established a change of circumstances sufficient to trigger a full hearing on the merits. We find no error.
Preliminarily we observe that on appeal R.F. is only claiming error with respect to the court’s refusal to change the visitation order; she claims that she was entitled to a hearing on whether the court should grant her monitored or unmonitored visitation. As we explain below, the court did not abuse its discretion in denying that request without hearing.
The determination of whether to deny a section 388 petition without a hearing is committed to the discretion of the juvenile court; we will not disturb the ruling on appeal unless an abuse of discretion is clearly established. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.) We will affirm unless the appellant demonstrates the lower court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. When two or more inferences can be reasonably deduced from the facts, the reviewing court has no authority to substitute its judgment for that of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Section 388 provides, in pertinent part, that any parent or other person having an interest in a dependent child of the juvenile court, “may upon grounds of change of circumstance or new evidence, petition the court... for a hearing to change, modify, or set aside any order of the court previously made....” (§ 388.) It provides a means for the court to address a legitimate change in circumstances–one last opportunity to reinstate reunification services or to make a different order with respect to the children and their care prior to final resolution of custody status. (In re Marilyn H. (1993) 5 Cal.4th 295, 309; In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.)
After the court terminates reunification services, the focus shifts to the needs of the child for stability and permanent placement; there is a rebuttable presumption that continued foster care is in the best interests of the child. (In re Stephanie M., supra, 7 Cal.4th at pp. 316-317.) A section 388 motion requires a two-step determination. First, the moving party must show a genuine, significant and substantial change of circumstances or new evidence. (In re Kimberly F., supra, 56 Cal.App.4th at p. 529; In re Jamika W., supra, 54 Cal.App.4th at p. 1451; In re Heraclio A. (1996) 42 Cal.App.4th 569, 577.) Second, the petitioner must prove the undoing of the prior order would be in the best interests of the child. (In re Kimberly F., supra, 56 Cal.App.4th at p. 529.)
In re Kimberly F. described three factors the courts use to determine whether a modification is in the “best interests” of the child. These factors are: “(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of the problem; (2) the strength of relative bonds between dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.)
A party filing a section 388 petition is not automatically entitled to a full hearing on the request. The petitioner must make a prima facie showing of changed circumstances or new evidence, which might require a change in prior orders. (In re Marilyn H., supra, 5 Cal.4th at p. 310.) “A prima facie showing refers to those facts which would sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited.” (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) Nonetheless, the hearing on the section 388 petition 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.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 807.) The prima facie requirement is not met unless the facts alleged, if supported by evidence credited at the hearing, would sustain a favorable decision on the petition. (Id. at p. 805.)
Although the petition should be liberally construed in favor of granting a hearing to consider the parent’s request (In re Marilyn H., supra, 5 Cal.4th at pp. 309-310), conclusory assertions are not sufficient. Likewise, “a petition which merely alleges changing circumstances and would mean delaying the selection of a permanent home for a child... does not promote stability for the child or the child’s best interest.” (In re Kimberly F., supra, 56 Cal.App.4th at p. 529.) “[S]pecific allegations describing the evidence constituting the proffered changed circumstances or new evidence are required. [Citation.]” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250; In re Angel B. (2002) 97 Cal.App.4th 454, 460.) The court may take into account the entire record, not just the allegations of the petition and supporting attachments. (Cf. id. at p. 463.)
In In re Hashem H. (1996) 45 Cal.App.4th 1791, 1799, the appellate court reversed the juvenile court’s summary denial of a mother’s 388 petition, reasoning the mother had made a prima facie showing the requested modification would promote the child’s best interests. The appellate court found allegations of the mother’s continuous and successful participation in individual therapy for more than a year, her therapist’s recommendation that the child be returned to her custody, her regular and consistent visitations with the child for over a year, her participation in conjoint counseling with the child, her stable employment, religious affiliation, and her current ability to provide a home for the child on a full-time basis, constituted a sufficient change of circumstance to warrant a hearing. (Ibid.)
By contrast, in In re Angel B., supra, 97 Cal.App.4th 454, the appellate court affirmed a summary denial of a mother’s 388 petition where the mother had a 20-year history of substance abuse from which she had tried but failed to rehabilitate herself on a number of occasions, had failed to reunify with an older child, and the child subject of the petition, Angel, was likely to be adopted by the same family that had adopted the older sibling. Although the mother had enrolled in a residential drug treatment program, tested clean for four months, completed various classes, obtained employment and consistently visited Angel, her 388 petition seeking either supervised custody of Angel or renewed reunification services was summarily denied and her parental rights were terminated. (Id. at p. 459.) The appellate court affirmed, reasoning the mother’s petition showed only that she was making progress, not that she was presently able to provide suitable care for Angel. “[S]imple completion of the kinds of classes taken by... Mother here does not, in and of itself, show prima facie that either the requested modification or a hearing would be in the minor’s best interests. [Citations.]” (Id. at p. 463; see also In reAnthony W., supra, 87 Cal.App.4th 246 [no abuse of discretion in summary denial of a mother’s conclusory 388 petition].)
Here R.F.’s petition did not make a prima facie showing necessary to warrant an evidentiary hearing. The conclusory allegations in her petitions do not show either a substantial change in circumstances or that the proposed change—visitation—would benefit the children.
First, as to evidence of change of circumstance, little in either petition pertains to the issue of visitation. The August 19 petition (and its supporting evidence) focuses almost entirely on matters relating to the maternal grandmother’s issues and inter-family conflicts. The August 20 petition makes bald allegations concerning the efforts and unspecified sacrifices R.F. has endured on behalf of the children, and yet nearly all of the evidence presented concerns events that occurred prior to January 2008 when the children were removed from her care, and it appears that most of this evidence was already presented to the court at that time.
In any event, R.F.’s petitions and their supporting “evidence” have little relevance to the issue of visitation. At the January 9, 2008, hearing the court stated that it had concerns about R.F.’s judgment and her care for the children and their special needs. The court also expressed its concern that these special needs children had not received individualized nurturing and care from R.F. The court declined to order visitation for R.F. because too much was going on with the children and the court needed additional information. A few days later at the January 11, 2008, hearing the court reiterated that it would not order visitation until it had more “professional” information about the children’s health and well-being. Nothing in R.F.’s petition addressed these matters.
Giving R.F.’s petition and evidence the broadest interpretation possible the only “evidence” suggesting tangential relevance to visitation was R.F.’s unsupported claims that she has suitable housing, and a new job with regular hours. Arguably these claims are meant to suggest that R.F. offers stability and consistency sufficient to warrant visitation, but again, R.F. had already claimed the existence of steady employment and housing prior to the first placement in October 2007 and yet those claims proved illusory at that time. This time around, R.F. did not present substantiation for either of these—housing and employment.
We do not agree with R.F. that mere passage of time is a sufficient change of circumstances. The children were removed from R.F. in part because she appeared to lack sound judgment. When the children lived with R.F., they had an unstructured environment, lacking in routines and boundaries. But in her section 388 petitions, R.F. presented no evidence she had substantially or genuinely developed in those areas—had gained any insight or new skill—in the months after the removal of the children from her care. (See In re Dustin R. (1997) 54 Cal.App.4th 1131, 1142-1143[A parent’s failure to appreciate and take responsibility for his or her conduct which led to the juvenile court’s intervention, notwithstanding attendance at therapy and visitation with the child, indicates that the reasons which necessitated removal of the child have not been ameliorated].) Nothing in her section 388 petitions shows she could offer consistency and a nurturing presence in the lives of these children. At most the D-rated and F-rated evidence shows that R.F. was attempting to address some of these issues and was in the process of changing. However, evidence of “changing” circumstances is insufficient to obtain relief under section 388. (In re Kimberly F., supra, 56 Cal.App.4th at p. 529.)
Furthermore, the court had evidence concerning the health and well-being of these children, without reference to anything presented in R.F.’s petitions. Several status review reports were presented to the court during the spring and summer of 2008 which addressed the status of the children. This information was sufficient for the court to assess whether a change in the visitation order was warranted.
Second, the court did not abuse its discretion in summarily rejecting these petitions because R.F. failed to demonstrate that the best interests of the children would be promoted by a visitation order. Here the record shows that as of August 2008, the children had yet to reach a level of stability and consistent care in their lives; they continued to be moved and replaced a number of times during the months after their removal from R.F.’s care. They struggled with psychiatric, behavioral and developmental issues, and their visitation with other family members had proved detrimental for them. Based on R.F.’s prior interaction with the children—the visits in 2007 which were described as “disruptive” and the environment in which they lived with her for three months in late 2007—which the court characterized as lacking individualized nurturing, we cannot say the court erred in concluding that the children were not ready to resume visits with R.F.
Thus, we conclude that R.F.’s section 388 petitions failed to present facts which would sustain a favorable decision even if the evidence submitted in support of the allegations by the petitioner is credited. In sum, because the factual allegations in the petition are insufficient, a hearing on the petition would have been futile. Consequently, the summary denial of R.F.’s section 388 petitions does not warrant reversal.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P.J. ZELON, J.