Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Marsha Slough, Judge. Affirmed., Super.Ct.Nos. J196382-86
Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
Michael D. Randall, under appointment by the Court of Appeal, for Minors S.R., Z.R., and A.R.
Sharon S. Rollo, under appointment by the Court of Appeal, for Minor D.R.
Jacquelyn E. Gentry, under appointment by the Court of Appeal, for Minor V.R.
OPINION
King J.
I. INTRODUCTION
Defendant and appellant C.R. (Mother) is the mother of seven children, including two boys, V.R. and D.R., now ages 12 and 11, respectively. All seven children were detained in 2004, and Mother’s reunification services for all of the children were terminated in 2006. Since March 2008, D.R. has been in a long-term guardianship with his foster parents, and V.R. has been in a permanent planned living arraignment, formerly known as long-term foster care, with another foster family. Mother has had bi-monthly supervised visitation with both boys, and they have expressed some desire to return to Mother’s care.
Mother appeals from an order summarily denying her January 2009 Welfare and Institutions Code section 388 petition, seeking liberalized visitation and further reunification services, with the ultimate goal of returning the boys to her care. She claims the juvenile court denied her due process rights and abused its discretion in summarily denying her petition without any hearing.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We affirm. In summarily denying the petition, the juvenile court neither violated Mother’s due process rights nor abused its discretion. Mother did not make a prima facie showing that her circumstances had changed since June 2008, when she filed a section 388 petition seeking substantially the same modifications. Nor did she make a prima facie showing that any of her proposed modifications would serve the best interests of D.R. or V.R.
II. FACTS AND PROCEDURAL HISTORY
The facts and procedural history of the present dependency proceedings involving V. R., D.R., and Mother’s other five children, two of whom are older than V.R. and D.R., are described at length in a prior nonpublished opinion of this court. (In re S.R. (Apr. 10, 2009, E046194) [nonpub. opn.].) There we affirmed the juvenile court’s denial, without a full evidentiary hearing, of Mother’s June 2008 section 388 petition, in which she sought substantially the same modifications she sought in her January 2009 petition, the subject of her present appeal. On our own motion, we hereby take judicial notice of our April 10 opinion. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
As stated in our April 10 opinion, all seven children were detained outside the family home and placed in foster care in July 2004. At that time, the children ranged in ages from seven months to 13 years. V.R., the third oldest, was age seven. D.R., the fourth oldest, was age six. All of the children were living with Mother and their father, W.R., in the rural high desert community of Phelan. The family home was strewn with rotten food and debris, and there was inadequate food and clothing for the children. The youngest three children and D.R. showed signs of severe neglect. There were 16 prior referrals involving the family, including a 1998 dependency case in Orange County. The father had a lengthy criminal history, a history of domestic violence, and a history of alcohol abuse. Mother suffered from a seizure disorder. Both parents were arrested for felony child endangerment and child neglect. Jurisdictional allegations were sustained based in part on Mother’s failure to protect V.R. and D.R.
W.R. is not a party to the present appeal.
In March 2005, the four oldest children, including V.R. and D.R., were returned to the parents’ care pursuant to a family maintenance plan. The family was later provided with “wrap-around” services, after the San Bernardino County Children and Family Services (CFS) reported in May 2005 that the three older children were “testing the rules and limits” in the family home. The family was also provided in-home family counseling services. In September 2005, the three youngest children were returned to the family home, even though they suffered from significant developmental delays. At that time, the family maintenance plan was continued.
CFS was previously known as the San Bernardino County Department of Children’s Services.
Then, in September 2006, all seven children were again removed from the family home and placed in foster care. V.R., then age nine, had come to school crying, saying the father had beaten his older brother. Both parents were drinking alcohol and had given alcohol to the children. Section 387 petitions were filed, and the court found Mother had failed to protect the children from the father. The father was sentenced to one year in prison for hitting V.R.’s older brother. The father’s reunification services for all seven children were terminated in November 2006. (§ 361.5, subd. (a).)
Mother’s reunification services for her five youngest children, including V.R. and D.R., were also terminated in November 2006. That month, however, the court returned the two oldest children to her care pursuant to a family maintenance plan. Although Mother had failed to complete her case plan and had recently failed to protect the children from the father, the two oldest children were considered “problematic” and had a strong desire to live with Mother. Mother was ordered not to permit the father to enter or reside in the home, and not to allow any other adult male to reside in the home without the prior approval of CFS. Following the father’s release from prison on parole, Mother allowed him to stay in the family home. After that incident, her visitation with her five youngest children was reduced from weekly to monthly, supervised.
By November 2007, Mother was living in the home of her new boyfriend, J.G., in Orange County, together with her two oldest children. V.R was in the sixth grade. He was not getting along well with the other children in his foster home, was not doing well in school, and was in need of behavioral and mental health services. In mid-November, V.R. was placed in a group foster home. In December 2007, he expressed a desire to be returned home to Mother. D.R. was in the fourth grade and was doing well behaviorally and academically. In October 2007, his permanent plan was changed from long-term foster care to long-term guardianship with his foster parents. Although his foster parents wanted to adopt him, D.R. preferred guardianship because he did not want to lose contact with Mother. D.R. wanted to visit with Mother but he also wanted to live with his guardians and revisit the possibility of adoption in the future.
In February 2008, Mother withdrew her previous contest to D.R.’s guardianship in exchange for twice monthly visits with D.R. and V.R., with authority to CFS to increase the duration and frequency of the visits. In March 2008, D.R. was placed in a long-term guardianship with his foster parents, and the court terminated its jurisdiction over him. V.R.’s permanent plan was a permanent planned living arrangement in his foster home. Mother’s visitation with each boy was increased from monthly to twice monthly, supervised. In August 2008, parental rights to Mother’s three youngest children were terminated, and they were placed for adoption.
In June 2008, Mother filed a section 388 petition seeking various modifications concerning her five youngest children, including termination of D.R’s guardianship, reunification services for D.R. and V.R., and increased and overnight visitation with D.R. and V.R. with the goal of returning them to her care. She also sought court approval for her companion, J.G., to be present at and participate in her visits with the children. At a hearing in August 2008, the juvenile court denied the petition without a “full” evidentiary hearing—that is, based on the papers submitted in support of and in opposition to the petition and the arguments of counsel. Mother appealed. In our April 10 opinion, we affirmed the order denying the petition.
In September 2008, the juvenile court liberalized Mother’s visitation with V.R. and D.R. Mother was allowed to visit the boys in the maternal grandparents’ home, subject to the grandparents’ approval and supervision. The court denied Mother’s request to allow her companion, J.G., to participate in the visits, and ordered that his participation be approved by the court in advance pursuant to an “approval packet.” In January 2009, Mother filed a new section 388 petition seeking substantially the same relief she sought in her June 2008 section 388 petition—that is, termination of D.R’s guardianship, reunification services, liberalized visitation with D.R. and V.R., and allowing J.G. to participate in Mother’s visits. The court summarily denied the petition on the grounds it failed to make a prima facie showing that Mother’s circumstances had changed since June 2008 or that any of her proposed modifications would serve the best interests of D.R. or V.R. Mother then appealed from the order summarily denying her petition.
III. DISCUSSION
Mother claims the juvenile court denied her due process rights and abused its discretion in summarily denying her new section 388 petition, filed in January 2009. She argues her petition made a prima facie showing that her circumstances had changed since June 2008, when she filed her first section 388 petition, and that the changes she was proposing—including liberalized visitation with D.R. and V.R. and further reunification services with the goal of returning the two boys to her care—would serve the best interests of each child.
CFS maintains that Mother’s current section 388 petition was properly denied in its entirety and without a hearing, because Mother failed to make a prima facie showing of changed circumstances or that her proposed modifications would serve the best interests of either child. Counsel for D.R. and V.R. agree with and adopt CFS’s position. We, too, agree that Mother’s new petition was properly denied because Mother did not make the required prima facie showings.
A. Applicable Law
Section 388 allows a parent of a dependent child to petition the juvenile court to change, modify, or set aside any previous order of the juvenile court. When it appears from the petition that the best interests of the child “may” be promoted by the proposed modifications, the court “shall” order a hearing on the petition. (§ 388, subd. (d); see In re Marilyn H. (1993) 5 Cal.4th 295, 309-310 [“[t]he parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing”].) The court may summarily deny a section 388 petition without a hearing, however, if the petition fails to make the required prima facie showing. (Cal. Rules of Court, rule 5.570(d); In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) “‘There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children....’ [Citation.]” (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079 [Fourth Dist., Div. Two].)
As indicated, at the time Mother filed her new section 388 petition in January 2009, the court had already terminated its jurisdiction over D.R. Still, the court had jurisdiction to consider Mother’s petition, to the extent it requested modifications concerning D.R. (§ 366.4; see In re Michael D. (1996) 51 Cal.App.4th 1074, 1086-1087.)
A section 388 petition must be liberally construed in favor of its prima facie sufficiency (Cal. Rules of Court, rule 5.570(a); In re Marilyn H., supra, 5 Cal.4th at p. 309), but conclusory allegations in a petition or its supporting declarations, without supporting evidence, are insufficient to make the required prima facie showing (In re Anthony W., supra, 87 Cal.App.4th at pp. 250-251). “A ‘prima facie’ showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations... is credited.” (In re Edward H. (1996) 43 Cal.App.4th 584, 593, citing College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 719, fn. 6.) “Successful petitions have included declarations or other attachments which demonstrate the showing the petitioner will make at a hearing....” (In re Anthony W., supra, at p. 250.) Indeed, “[i]f a petitioner could get by with general, conclusory allegations, there would be no need for an initial determination by the juvenile court about whether an evidentiary hearing was warranted. In such circumstances, the decision to grant a hearing on a section 388 petition would be nothing more than a pointless formality.” (In re Edward H., supra, at p. 593.)
We review a juvenile court’s summary denial of a section 388 petition for abuse of discretion and resolve the constitutional issue as a matter of law. (In re Angel B. (2002) 97 Cal.App.4th 454, 460.) If the petition fails to make the required prima facie showing, summary denial of the petition without a hearing does not violate the petitioner’s due process rights. (Id. at pp. 460-461.)
Furthermore, when a section 388 petition is filed after the parents’ reunification services have been terminated, in assessing whether the petition has made the required prima facie showing, the court must be mindful that “the parents’ interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point ‘the focus shifts to the needs of the child for permanency and stability’ [citation]....” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
B. Analysis
As the juvenile court indicated in summarily denying Mother’s new section 388 petition, Mother did not make a prima facie showing that her circumstances had changed since June 2008, when she filed a substantially identical petition. Mother had a history of being repeatedly incapable of protecting her children or properly caring for them, despite having had the benefit of many years of reunification and family maintenance services, including in-home counseling services and wrap-around services. Thus, in order to make the required prima facie showing of changed circumstances, Mother had to proffer evidence that she was currently capable of protecting and adequately caring for V.R. and D.R. She did not make this showing.
According to her supporting declaration, Mother had recently become “essentially full-time employed in retail work,” but she did not provide evidence of her employment, such as a paystub or a letter from her employer. She also claimed to have co-signed a lease agreement with her companion, J.G., and offered this as “further evidence” of her “independence” and “mutually respectful relationship” with J.G. But she did not provide a copy of any lease agreement. In short, Mother proffered no evidence of changed circumstances or new evidence, other than her “belief” that she was now “fully capable” of having all her children returned to her care. This was insufficient.
Moreover, Mother failed to make a prima facie showing that increasing the frequency of or otherwise liberalizing her visitation with the boys, or providing Mother with even more reunification services with the goal of returning the boys to her care, would serve the best interests of either child. As of January 2009, D.R. was 11 years old and had been living with his guardians for two years, since January 2007. V.R. was 12 years old and had been in his current foster home for over one year, since November 2007. This was the most stability either child had known, at least since CFS took them into protective custody in July 2004. And, given that Mother’s services had been terminated over two years earlier, in November 2006, the boys’ interest in the permanency and stability they had found outside Mother’s care was paramount, even if, as Mother averred, they wished to return to her care.
IV. DISPOSITION
The January 15, 2009, order denying Mother’s section 388 petition is affirmed.
We concur: Gaut Acting P.J., Miller J.