Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIJ11415, Gary Vincent, Temporary Judge. Pursuant to Cal. Const., art. VI, § 21.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
Leslie A. Barry, under appointment by the Court of Appeal, for Minor.
OPINION
Gaut J.
Mother appeals from the summary denial of her petition to modify a prior court order (Welf. & Inst. Code, § 388 [388 petition]), filed on the date of the hearing to select and implement the permanent plan. (§ 366.26.) Reunification services were terminated at the six-month review stage, due to mother’s failure to contact Riverside County Department of Public Social Services (DPSS), and failure to visit minor, R.C., for nearly two months, prior to her imprisonment for a felony. DPSS was not informed of mother’s incarceration until after she had been sentenced to prison.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
Mother gave birth to another child in prison, nearly a year after the initiation of the present dependency, and lost custody of that child due to the same mental instability that gave rise to the dependency of this child. In the three months after her release from prison, where she served 12 months in custody, mother commenced participation in a reunification plan in San Diego County, and the changed circumstances alleged in the petition relate to changes she was beginning to make in that case. We affirm.
BACKGROUND
In March, 2007, a referral was received by DPSS, stating mother used drugs in front of the baby, the crib smelled of urine, the mother did not let the child out of the crib, the child was dirty and unfed, and the child wandered off because mother did not watch him. The mother shared the house with others, several of whom had been arrested for drugs during a raid. The house was littered with empty beer bottles, but mother did not feel it was unsafe for her son to live in the environment. Nevertheless, she agreed to move out of the home with R.C., then 22 months old, and into a new apartment. She also agreed to submit to a drug test. Mother had 13 prior referrals to DPSS relating to R.C. as well as older half-siblings.
Mother failed to relocate, and then evaded the social worker who attempted to follow up with mother by pretending to be in the shower, while secretly exiting the residence with the child, and scaling down the side of a steep mountain. She continued to evade social workers, but a housemate provided an alternate address. The child was located and taken into protective custody on March 29, 2007.
When interviewed by the social worker, mother made many inconsistent statements. She claimed she did not know the other people who were renting rooms in her house. She was aware that her housemates were arrested for drugs but felt her son was safe. She stated her two other children had been kidnapped by her ex-husband and that she used medical marijuana for cancer which was in remission, but could not produce a medical marijuana card. Mother denied having any relatives, claiming she was an orphan when, in fact, her parents were alive and living in Georgia. When asked why she did not drug test at any of the testing sites provided, mother stated that she did not know where to go so she went to a location in Orange County, although she could not recall the name or location of the testing site, and no results were made available to DPSS in Riverside.
On April 3, 2007, a dependency petition was filed as to R.C., alleging neglect and failure to protect by mother. Specifically, it alleged (1) mother did not acknowledge the danger of living with the child in a house where co-inhabitants were abusing drugs, and mother had eluded authorities by running away with the child and going over the side of a steep mountain risking injury to the child, (2) mother abused controlled substances and refused to submit to drug testing, (3) mother failed to follow through with services relating to at least 14 prior referrals for neglect and abuse (including failing to follow up with treatment for R.C. for a fractured ulna), (4) mother has a criminal history relating to drugs, (5) the child’s father’s whereabouts were unknown and he failed to protect the child. The juvenile court found the allegations of the petition true on April 25, 2007, declared the child a dependent of the court, ordered a psychological evaluation of mother, and ordered mother to participate in reunification services.
The six-month status review (§ 366.21, subd. (e)) report revealed that mother had not submitted to a psychological evaluation although she acknowledged receiving the referral information, and she had attended only one parenting class; she did not comply with drug testing. Mother had not contacted DPSS for more than six weeks between September and October, 2007, and missed numerous visits with R.C. between April and September 2007, although they were regular and appropriate in the beginning. A friend of mother’s eventually reported that mother was sick because of her cancer, but it was later discovered that mother was in jail pending felony charges. Mother’s parents were unaware of any cancer diagnosis or treatment.
On December 28, 2007, DPSS reported mother had been located and contacted by mail. DPSS learned that mother had been sentenced to a two-year prison term on October 3, 2007. On January 7, 2008, at the contested review hearing, reunification services were terminated and a hearing was set to select and implement a permanent plan of adoption.
Mother had given birth to a baby girl in February 2008, while in custody in San Diego County. That baby was detained due to mother’s mental instability, which included her attempts to sell the infant, as well as leaving the child unattended.
R.C. was placed in a prospective adoptive home on May 29, 2008. Visits between mother and R.C. could not be facilitated for some of the time mother was in prison for several reasons. First, DPSS did not know where mother was until October 2007. In March 2008, DPSS was unable to arrange visits because (1) mother had been transferred to a different institution, (2) mother was denied visits by the prison authorities due to a disciplinary action, and (3) a prison doctor related that mother was in a medical unit due to complications relating to the birth of the youngest child. In April, 2008, two visits had to be canceled because the child acted out of control in the car, endangering his own safety.
In the meantime, the adoptive home was approved and DPSS recommended proceeding with termination of parental rights. On November 17, 2008, the section 366.26 hearing took place. Mother’s counsel submitted a petition to modify a prior court order (§ 388) based on changed circumstances at the beginning of the hearing, which was summarily denied. After hearing testimony from mother and the social worker, the court found the child was adoptable and terminated parental rights. Mother appeals.
DISCUSSION
Mother argues that she made the requisite prima facie showing to satisfy her burden of proof such that denial of her 388 petition was error. She acknowledges that the petition did not show that return of the child was in his best interests, but asserts that her petition was tailored to meet the best interests of the child by requesting reinstatement of services rather than return of custody. Because the petition did not show that reinstatement of reunification services would be in the child’s best interest, summary denial was proper.
A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist, and (2) the proposed change would promote the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-317.) To trigger the right to a hearing on the petition, the petitioner need only make a prima facie showing of these elements, and the petition should be liberally construed in favor of granting a hearing to consider the petitioner’s request. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.)
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. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) Where the allegations of the petition, even when liberally construed, do not make a prima facie showing of either changed circumstances or that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)
The juvenile court has discretion whether to provide a hearing on a petition alleging changed circumstances. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431.) We review a summary denial of a section 388 petition for abuse of discretion. (In re Angel B. (2002) 97 Cal.App.4th 454, 460.)
Mother’s argument implies that she does not have to show the requested relief serves the child’s best interest if she does not expressly request return of the child. However, the requirement of showing best interests is not limited to petitions seeking return of custody. For any proposed modification, the petitioning party is required to establish both prongs: (a) change of circumstances, and (b) that the proposed change would serve the child’s best interests. (In re D.R. (2007) 155 Cal.App.4th 480, 487.)
Because the court is only required to order a hearing if the petition discloses that a hearing would promote the best interests of the child, the party must plead facts showing that the best interests of the child may be promoted by the proposed change. (In re Daijah T. (2000) 83 Cal.App.4th 666, 672, citing In re Jasmon O. (1994) 8 Cal.4th 398, 415.) There is nothing in the statutory language or in any of the decisions interpreting that language suggesting that this requirement is limited to petitions seeking return of the child, as opposed to any other proposed modification.
Here, mother’s petition refers to her current cooperation with parole supervision, and her attendance at parenting classes in connection with the dependency action pending in San Diego relating to her infant daughter. At the time of the section 366.26 hearing in November 2008, mother had only been out of custody for three months. Mother’s current circumstances are of very recent vintage, and reflect ongoing participation, but not completed, or changed, circumstances. “A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify 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.)
Most problematic is the mother’s failure to allege or prove that she has addressed her long history of mental problems, despite the fact her instability is the dark thread woven throughout the dependency proceedings relating to both children. Because the core of mother’s problems related to mental instability, she has not demonstrated a change in “material” circumstances.
As to the best interests prong of a section 388 petition, the court considers (1) the seriousness of the problem leading the dependency proceedings, (2) the strength of the relative bonds between the child and both the parent and the caretaker, and (3) the degree to which the problem may be or has been easily removed. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.)
Regarding the first factor, we observe that mother’s mental instability was a serious and chronic problem of longstanding which mother denied, consistently refusing to submit to an evaluation. Regarding the second factor, mother concedes the parent-child relationship had eroded by the time of the section 366.26 hearing when she filed her petition. Although mother attempts to blame DPSS for failing to facilitate prison visits, the record shows she failed to avail herself of visitation with R.C. for at least six weeks prior to being incarcerated, resulting in suspension of visits, and she did not inform DPSS that she was in custody. Instead, her “friend” contacted DPSS in September 2007, to report that mother had been unable to see her son because of her cancer. It was not until October 2007 that mother’s friend revealed mother was in custody. Contrary to mother’s assertion, her lack of visits was not solely attributable to DPSS, and the erosion of the mother-child relationship was due to her own actions.
In the meantime, the minor was placed in an adoptive home and has adapted well. Comparing the relative bonds between the child and both parent and the caretaker, mother has not established the second Kimberly F. factor.
As for the third prong, relating to the degree to which the problem may be or has been easily removed, we find no evidence in the record that mother’s mental instability has been or is being addressed, much less removed. Mother simply states, without proof, that she has undergone a psychological evaluation in San Diego and received a favorable assessment. We view this statement as further denial of her mental instability and an acknowledgment that she has done nothing to change that circumstance. Considering the longstanding nature of mother’s mental instability, her failure to acknowledge or address it shows the problem will not be easily removed.
The mother did not establish changed circumstances as to the most serious of the problems leading to the dependency, and did not allege or show that the proposed modification would be in the child’s best interests. The juvenile court properly exercised its discretion to deny the petition, which was filed at the eleventh hour and fifty-ninth minute, without a hearing. (See In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.)
DISPOSITION
The judgment is affirmed.
We concur, Ramirez P. J., King J.