Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. Stephen Marpet, Juvenile Court Referee, Los Angeles County Super. Ct. No. CK58941
Anna L. Ollinger, by appointment of the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, Owen L. Gallagher, Deputy County Counsel, for Plaintiff and Respondent.
RUBIN, J.
Mother Sara appeals from the trial court’s order denying her a hearing on her section 388 Welfare and Institutions Code petition. We affirm.
FACTS AND PROCEDURAL HISTORY
When mother Sara was a preschooler in the late 1980s, she was adopted by her maternal grandmother. In October 2002, mother, who was still living with her grandmother, gave birth to Sarah, and in August 2004 gave birth to Savannah. In April 2005, respondent Department of Children and Family Services received a report that mother was abusing and neglecting the two girls. During the department’s investigation, mother tested positive for methamphetamine. The department filed a petition under section 300 of the Welfare and Institutions Code, alleging mother’s history of drug abuse and current use of methamphetamine endangered the children.
Mother told the department she had methamphetamine in her system because she inhaled it while around people who were smoking it.
Mother agreed to move from her grandmother’s home and allow grandmother to care for Sarah and Savannah. The court permitted mother daily monitored visitation with her daughters so long as grandmother did not leave the three of them alone. The court ordered reunification services for mother, including individual counseling, parenting education classes, drug counseling, and random drug testing. It also ordered reunification services for the girls’ father, who was not living with mother or the children.
Mother tested clean on three random drug tests in the first two months after the petition was filed in April. But by the third month in July 2005, she had only completed “maybe 2 or 3” drug counseling classes, and “maybe 1 or 2” parenting classes. She told the department she had delayed starting drug counseling because she did not feel she had a drug problem. She said she used drugs but did not abuse them, and had resumed using them only a few months before the department filed its petition when she was depressed over the collapse of her relationship with her girls’ father.
The petition was mediated in July, and the court sustained it after mother submitted to its allegations. At the disposition hearing, the court allowed mother to return to grandmother’s home under certain conditions, including that she participate in drug counseling and pass random drug tests, and that she never be left by herself with the children.
In October 2005, the court learned mother had missed a number of random drug tests. In addition, mother had not participated in parent counseling and stopped going to drug counseling after her counselor told her “once an addict always an addict.” Because of mother’s failure to comply with her reunification plan, the court ordered her to move out of grandmother’s house. Mother thereafter began living with a succession of relatives.
At the six month status review hearing in December 2005, the court found father was complying with his case plan. The court therefore ordered six more months of reunification services for him. But the court found mother was not complying with her case plan because she was not enrolled in court ordered classes, was not taking random drug tests, and was not employed. The court therefore terminated her reunification services.
In the following months, grandmother suffered financial setbacks and she and the girls were evicted from her home. Because grandmother could not take care of the girls, the department placed them with maternal cousin Veneranda. Around this time, father, who wanted Veneranda to adopt the girls, fell out of regular contact with them because of his strained relationship with mother and his responsibilities for three other children he had with another woman.
In August 2006, the court terminated reunification services for both parents and set a permanency planning hearing for late November. On October 19, mother filed a petition under Welfare and Institutions Code section 388 (§ 388) alleging new circumstances that she claimed justified reversing the court’s order terminating reunification services. Her petition asserted she had substantially completed her case plan by maintaining regular visitation with her children, beginning substance abuse counseling, completing parent education and drug abuse classes, and submitting to five random drug tests (although the results were not yet available to her or the court). She thus sought reinstatement of reunification services moving toward liberalized visitation and regaining custody of her daughters.
While her petition was pending, she also began individual counseling, but it appears she did not tell the court before it denied her petition.
The court denied the petition without a hearing. It found mother did not show changed circumstances or that modifying its orders was in the girls’ best interests. Mother appeals from the court’s refusal to grant a hearing on her petition.
DISCUSSION
A parent is entitled to a hearing on her section 388 petition if she offers a prima facie case of changed circumstances making it in a child’s best interests for the court to modify a previous order. A prima facie case for a hearing exists if the petition offers any evidence that, if believed, would justify the court’s changing its order. (In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Josiah S. (2002) 102 Cal.App.4th 403, 418-419; In re Angel B. (2002) 97 Cal.App.4th 454, 461.) We review denial of a hearing on a section 388 petition for abuse of discretion. (Angel B., supra, at p. 460.)
Mother alleges her circumstances changed after the court terminated her reunification services. She claims she finished her parent education course, participated in ten sessions of substance abuse group therapy, and submitted the order slips for five random drug tests (which, after denying mother’s petition, the court learned were all negative.)
Mother argues In re Aljamie D. (2000) 84 Cal.App.4th 424 shows she was entitled to a hearing on her petition. But mother’s facts are not as favorable to her as they were for the parent in Aljamie. There, the mother “had completed numerous educational programs and parenting classes, and had tested clean in weekly random drug tests for over two years. She had visited consistently with the children and continued to have a strongly bonded relationship with them. Indeed, the Department does not dispute that appellant’s petition alleged changed circumstances.” (Aljamie, supra, at p. 432.) Here, however, mother had taken only five recent drug tests, the results of which were not before the court when it ruled on mother’s petition. Moreover, her petition does not indicate compliance with individual counseling, which the court also ordered. (See In re Kimberly F. (1997) 56 Cal.App.4th 519, 531 [expressing doubts over the propriety of “ever” granting a 388 petition for a drug abusing parent whose compliance with reunification plan is incomplete].) And finally, the 9- and 11-year-old children in Aljamie expressed a strong desire to return to their mother, but the children here are too young to have expressed their desires.
Even if we were to accept that mother has journeyed far along the road to recovery, we cannot conclude the court abused its discretion in finding resumption of reunification services would not serve the children’s best interests. (In re Angel B., supra, 97 Cal.App.4th at p. 463 [best interest test involves more than completing court ordered classes].) Once reunification services end, the dependency proceeding’s focus shifts from a parent’s interest in regaining custody of her children to the children’s interest in a stable and permanent family life and home. (In re Marilyn H. (1993) 5 Cal.4th 295, 309; In re Casey D. (1999) 70 Cal.App.4th 38.) Resuming terminated reunification services postpones that stability. As one court noted, “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.” (Casey D., supra, at p. 47.)
Mother contends renewed reunification services meet her daughters’ best interests. She notes that in addition to substantially completing her case plan, she had frequent contact with her children while they lived with grandmother. They recognized her as their mother, enjoyed the time they spent together, and looked forward to seeing her again. Mother overlooks, however, that her visits had become “iffy” and erratic since the children moved to cousin Veneranda’s home. Moreover, and perhaps most important, she ignores the uncertainty surrounding her recent sobriety. After missing months’ worth of drug tests in 2005 and the first half of 2006, she filed with her 388 petition the order slips for five drug tests from August through October 2006. She did not, however, submit the test results themselves. Thus, when the court denied mother’s petition, she had no documented sobriety. (Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1343 [missed tests are deemed positive].) As the court in In re Kimberly F., supra, 56 Cal.App.4th 519, noted, “It is the nature of addiction that one must be ‘clean’ for a much longer period than 120 days to show real reform.” (Kimberly F., supra, at p. 531 fn. 9.) Here, mother had at the time of her petition no proof of sobriety, let alone for 120 days (Kimberly F.) or two years (Aljamie D.). We therefore find the dependency court did not abuse its discretion in denying mother’s section 388 petition without a hearing.
We do know after the fact that all five tests were negative, but we review the correctness of the dependency court’s ruling as of the time the court ruled and not with the benefit of hindsight.
DISPOSITION
The court’s order denying mother’s section 388 petition without a hearing is affirmed.
WE CONCUR: COOPER, P. J., FLIER, J.