Opinion
NOT TO BE PUBLISHED.
APPEAL from the Superior Court of Riverside County No. INJ014734, Christopher J. Sheldon, Judge.
Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Nicole Williams, under appointment by the Court of Appeal, for Minors.
OPINION
HOLLENHORST, J.
Michelle J. (Mother) appeals from an order terminating her parental rights to Summer J. (born 2002) and W.J. (born 2004). (Welf. & Inst. Code, § 366.26.) She contends the trial court abused its discretion in denying her section 388 petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. PROCEDURAL BACKGROUND AND FACTS
On October 26, 2005, the Department of Public Social Services (the Department) filed a juvenile dependency petition alleging the children came within the jurisdiction of the court under section 300, subdivisions (b) and (g). The petition alleged that Mother failed to provide appropriate care for the children, she used controlled substances, she physically abused one of the children’s siblings, she had a history of poor mental health, and she was incarcerated for making criminal threats and was therefore unable to provide regular care and support.
Mother’s first dependency action was initiated on January 17, 2003, and included Summer. Mother had given one child’s prescription medication (Ritalin) to Summer and another sibling. The dependency was terminated on February 10, 2004, with custody being awarded to Mother.
The petition also alleged the father’s criminal history and outstanding warrant, the fact that his whereabouts were unknown, and his history of mental health problems.
A contested jurisdiction hearing was held on January 17, 2006. After striking the allegations regarding Mother’s incarceration and inability to provide care and support, and considering the father’s whereabouts were unknown, the juvenile court found the remaining allegations to be true. The court declared the children dependents, removed them from the parents, and placed them in a suitable licensed foster home. Family reunification services were ordered. Among other things, the case plan required Mother to stay free from illegal drugs and comply with drug tests, comply with medical or psychological treatment, obtain resources to meet the needs of her children, and provide a safe home.
The six-month review hearing was held on June 20, 2006. The Department’s status report noted that Mother had not engaged in any of her services. Mother had visited with the children only once since the January 17 hearing. Although the other siblings were happy to see their parents, it appeared that Summer J. and W.J. were not. Summer played mostly by herself during the visit, while W.J. cried due to the commotion around him and not feeling comfortable around his parents, whom he hardly knew. On March 22, 2006, law enforcement found Mother unclothed and on drugs in the middle of the night. Upon being informed that Mother could no longer stay with the person she was staying with, she became hysterical, making suicidal comments. She was placed on a psychiatric hold for a little over a week. The Department noted that Mother was unemployed and homeless and hoped to move out of Blythe. The children’s caregivers were willing to adopt if reunification failed. At the six-month review hearing, the juvenile court continued reunification services.
The 12-month review report was filed on November 22, 2006. Mother moved to Alabama in July 2006, and had not had any visits with the children since that time. Shortly after her move, she married a registered sex offender and reported that she lived in a house with him. Mother’s new husband had a history of methamphetamine use and a lengthy history with Child Protective Services (CPS) resulting in the removal of all his children from his care. In August 2000, one of his children died while in his care. Due to Mother’s move, she attended only two visits during the reporting period. On the first of her two visits, W.J. cried when the foster mother left the room. On Mother’s last visit, she was detached from the children, hardly interacting with them. Mother said, “I can’t take these two[-]hour visits.” Summer became more aggressive after the visits. Mother had not complied with her case plan.
On January 30, 2007, at the 12-month hearing, the juvenile court terminated Mother’s reunification services. A section 366.26 hearing was set for May 31, 2007. Mother did not challenge or refute any of the information included in the 12-month review report.
A section 366.26 report was filed on May 15, 2007. The Department recommended that the juvenile court terminate all parental rights and free the children for adoption. The social worker reported that Mother had not visited the children. The children had been moved to their prospective adoptive home on February 5, 2007. The prospective adoptive parents said that the children were doing well, but the move was difficult for Summer. However, by March 9, 2007, Summer was calling the prospective adoptive mother, “Mommy,” and by April 16, she called the prospective adoptive father, “Daddy.” W.J. had become more verbal and was now saying, “Mommy” and “Daddy.” The children looked healthy and were well taken care of.
In the May 18, 2007, addendum report, the social worker stated that the children had been living with the prospective adoptive parents for almost four months, they were doing well, and they had been embraced by the entire family. Summer said that she did not want to move to another family and that she wanted to talk to the judge so that she could tell him this. The children were thriving in the adoptive parents’ home.
On May 30, 2007, a day before the section 366.26 hearing, Mother filed a section 388 petition (JV-180 Request to Change Court Order). She wanted the court to change its January 30 order which terminated her reunification services and set a permanency planning hearing. She wanted the children placed with her in family maintenance status or, in the alternative, she wanted reunification services reinstated. As a change of circumstance, Mother alleged that she had completed her case plan, a parenting program, and a substance abuse program; she was attending domestic violence counseling, receiving supplemental security income (SSI) and was due to start a new job; she had suitable housing, and she had completed a psychological evaluation. Mother stated that she was unable to visit the children because she was living in Alabama. Because of these changes, she believed that granting her petition would be in the children’s best interests.
Mother’s petition was heard on May 31, 2007. She did not offer any evidence in support of the petition, which was denied. The court proceeded with the section 366.26 hearing, where it found by clear and convincing evidence that it is likely the children will be adopted, that none of the exceptions to adoption exists, and that termination of parental rights would not be detrimental to the children. Thus, the court terminated the parental rights of Mother and the father and selected adoption as the permanent plan that is in the best interests of the children.
Mother appeals.
II. SECTION 388 PETITION
Section 388 provides: “Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . to change, modify, or set aside any order of court previously made . . . .” The petitioner must show by a “preponderance of the evidence” that: (1) there is new evidence or a change of circumstances; and (2) the proposed modification based on the new evidence or change of circumstances would be in the child’s “‘best interests.’” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526-527, fn. 5.) We review the juvenile court’s decision on a section 388 petition for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.)
Here, the new evidence or change of circumstances that Mother alleged consisted of her alleged completion of her case plan, parenting program, and substance abuse program. She was attending domestic violence counseling, receiving SSI, and was due to start a new job. She had suitable housing and had completed a psychological evaluation. However, there was no evidence that the substance abuse program met with the requirements of her case plan. There was no indication that Mother had been involved in drug testing as required. Mother’s psychological evaluation was not done through the Department of Mental Health as required. There was no documentation or any other form of evidence to verify Mother’s claim that she was attending domestic violence counseling. Nor was there any evidence of her progress. Regarding her housing, Mother offered an unsigned lease. Even if she did live at the address on the lease, she was married to a registered sex offender with a long history with CPS.
At best, Mother’s petition can only be construed to reflect that her circumstances might have been in the process of changing. “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. [Citation.] ‘“[C]hildhood does not wait for the parent to become adequate.”’ [Citation.]” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
Pursuant to section 388, it is Mother’s burden to show that at the time of the hearing she is stable, has a residence, and is an appropriate mother for the children. Mother did not make this showing, either in the petition or at the hearing. While Mother wanted her attorney to file a section 388 petition, she was not very cooperative. As counsel stated, “I contacted mother in early May requesting all the information to be able to file a [section 388 petition]. May 25 I needed to do it, but I submitted what she had presented to me, that she had asked me to submit . . . . [¶] I did not get full cooperation from the mother. She says she could not afford to be here today so that’s why it’s very limited what I presented.” According to the record, the dependency began in October 2005, and Mother failed to seriously address her problems, if in fact she did, until a few months prior to the section 366.26 hearing set for May 31, 2007. Any improvements in Mother’s circumstances were quite recent, and are best described as “in the process of changing” rather than “changed.”
Further, the juvenile court did not abuse its discretion when it concluded that Mother did not show by a preponderance of the evidence that it was in the children’s best interests to postpone a permanent plan to allow Mother time to complete the required reunification services. The children had no significant relationship with Mother. They had been out of Mother’s care for nearly two years, and Mother had not seen them since July 14, 2006, nearly one year prior to the section 388 hearing. During that visit, she was very detached from them, hardly interacting with them. They had been placed with prospective adoptive parents on February 5, 2007. Although the initial move was difficult, the children had bonded with the prospective adoptive parents and had been completely embraced by the entire family. W.J. would cry when separated from the prospective adoptive male, and Summer wanted to tell the judge that she did not want to be moved out of her current placement. As the Department notes, a child’s testimony regarding who he or she wants to live with “constitutes powerful demonstrative evidence that it would be in [his or] her best interest to allow [him or] her to do so.” (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432.)
Based on the above, we find that the juvenile court correctly denied Mother’s section 388 petition.
III. DISPOSITION
The judgment is affirmed.
We concur:
RAMIREZ P.J., GAUT J.