Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. No. CK58817 Donna Levin, Juvenile Court Referee.
Nancy O. Flores, under appointment by the Court of Appeal, for Defendant and Appellant.
Robert E. Kalunian, Acting County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Senior Deputy County Counsel, for Plaintiff and Respondent.
MALLANO, P. J.
M.J. (Mother) appeals from a February 10, 2009 order summarily denying without a hearing her petition for modification seeking reunification services and unmonitored visits with her daughter T.B. (Daughter), born in January 2007, and her son D.J. (Son), born in December 2007. We affirm the order because the court did not abuse its discretion in determining that the petition did not show that modification might be in the children’s best interests.
BACKGROUND
In prior dependency proceedings, parental rights were terminated in October 2006 to Mother’s older child, D.A., due to Mother’s illegal drug use and failure to take her psychotropic medication for a psychiatric condition, including bipolar disorder. In late April 2007, Daughter was detained from Mother and R.B. (Father) and placed with a nonrelative extended family member after the Los Angeles County Department of Children and Family Services (DCFS) received a report that the parents were smoking marijuana in Daughter’s presence and that Father sold drugs. Daughter remained with the same caretaker throughout the proceedings set out below.
In May 2007, Mother was enrolled in an inpatient treatment program but was “‘kicked out’” of the program on June 1, 2007, due to her temper, fights, unexcused absences from the program, and noncooperation. In May 2007, both parents tested positive for marijuana; Father also tested positive for cocaine. Mother blamed DCFS for her marijuana use, claiming that she used marijuana on the day Daughter was detained because she was stressed over the detention. At the time Mother tested positive, she was pregnant with Son.
In June 2007, the juvenile court declared Daughter a dependent of the juvenile court pursuant to section 300, subdivision (b) (failure to protect) based on the parents’ history of substance abuse and current use of marijuana. Daughter was removed from parental custody. Father was afforded reunification services, but services were denied to Mother pursuant to sections 361.5, subdivisions (b)(10) (failure to reunify with a sibling) and (b)(11) (termination of parental rights as to sibling). The parents were permitted monitored visitation three times per week.
Unspecified statutory references are to the Welfare and Institutions Code.
The December 2007 status review report stated that Mother was then eight months pregnant with her third child. Mother visited Daughter consistently. Although reunification services were not ordered for Mother, she enrolled in counseling through Homeless Health Care of Los Angeles and continued to drug test with negative results from June through October 2007. At the December 18, 2007 hearing, the court gave DCFS discretion to liberalize Mother’s visits.
On December 24, 2007, Mother gave birth to Son, who was detained on January 3, 2008, with a nonrelative extended family member (the daughter of the caretaker for Daughter) after DCFS received a report that Mother allowed people at the Homeless Health Care agency to hold and kiss her three-day-old Son and did not seem to understand that she was exposing Son to colds, took Son to a drug-infested shelter and left him unsupervised on the bed and went outside for twenty minutes, and walked around with him late at night in cold weather looking for a motel room in Los Angeles. A DCFS social worker visited Mother at her motel room, where there was a strong odor of marijuana.
In a team decision-making meeting on January 4, 2008, Mother agreed to participate in services, including a dual diagnosis treatment program, a mental health assessment including an evaluation of her medication, parenting classes, and individual therapy. DCFS was to provide funds for housing assistance. On January 22, 2008, Mother was ordered to random drug testing.
In March 2008, DCFS reported that Mother was visiting her children regularly, was in therapy and was being seen by a psychiatrist. Mother was taking her medications and actively participating in drug treatment and parenting programs. Notwithstanding Mother’s current compliance, DCFS recommended that Mother not receive reunification services because of her unresolved mental health issue “that is probably the primary factor in her continued homelessness and poor judgment. In the past two years the mother has moved from place to place living in shelters and/or motels. Many of the shelters and/or motels are havens for substance abuse and/or related activities which place the child at risk, especially with the mother’s substance abuse history.” Father’s whereabouts were unknown to DCFS, but in a telephone conversation with DCFS, Father questioned his paternity of Son. Father also admitted that he had not been participating in random drug tests, had not appeared in court on hearings related to Son, and had not visited Son.
On March 12, 2008, the juvenile court adjudicated Son a dependent pursuant to section 300, subdivision (b), based on Father’s history of substance abuse and the dependency status of Daughter, and based on Mother’s history of substance abuse, failure to regularly participate in a rehabilitation program, history of mental and emotional problems, and Daughter’s receipt of permanent placement services. The court removed Son from Mother’s custody, found Father was an alleged father as to Son, and denied reunification services to Father. Mother also was denied family reunification services but was permitted monitored visitation with Son. Father’s reunification services with Daughter were terminated and a permanent plan hearing was set for both Daughter and Son on July 9, 2008.
In its July 9, 2008 section 366.26 report, DCFS stated that each of the children’s caretakers was committed to adoption and the respective home studies were expected to be completed by October 2008. Mother continued to visit the children regularly. In July 2008, the permanent plan hearing was continued to November 5, 2008.
A September 10, 2008 status review report stated that Daughter was very attached to her caretaker and was thriving in her home. On September 26, 2008, DCFS reported that it had to remove Son from his caretaker, the prospective adoptive parent, and place him in another foster home after social workers observed the caretaker’s home to be unsanitary and the caretaker herself to have medical, health, and physical limitations due to her excessive weight. A public health nurse found Son moderately underweight, not well-bonded to his caregiver, and living in an unhealthy environment. The juvenile court stated, “[T]his is a very, very disturbing report,” and ordered DCFS to investigate the home of Daughter’s caretaker, who was the mother of Son’s former caretaker.
In a November 5, 2008 interim review report, DCFS stated that Daughter’s prospective adoptive parent had been required to take 10 parenting classes after she threatened to hit Daughter with a spoon; by October 31, 2008, the caretaker had completed three parenting classes. DCFS also had concerns about Daughter’s aggressive behaviors and delayed speech and had referred Daughter for play therapy and the Regional Center. DCFS was monitoring Daughter’s situation closely. Son was thriving in the home of his new prospective parents, to whom he was bonded. Son’s new prospective adoptive parents had an approved home study. On November 5, 2008, the section 366.26 hearing was continued to March 4, 2009.
On February 4, 2009, Mother filed a petition for modification, seeking reunification services and unmonitored visits with discretion for DCFS to permit overnight and weekend visits. Attached to the petition were certificates showing that after the March 12, 2008 order denying services, Mother completed individual counseling, a one-year integrated program for “co-occurring disorders,” including twice a week group counseling, once a week individual substance abuse counseling, a 10-week parenting program, socialization activities, a women’s group, and medication compliance with a staff psychiatrist. She also had consistently visited the children as often as permitted by DCFS.
The petition asserted that the modification would be in the children’s best interests because “[t]he children are not in the same adoptive placement and there are issues as to the suitability of the prospective adoptive parents. If the children were to be moved again, it would be best if mother were allowed to be considered as the permanent placement for the children.”
The juvenile court denied Mother’s petition without a hearing on February 10, 2009, on the ground that the proposed change of order does not promote the children’s best interests.
Mother appeals from the denial of her petition without a hearing. She maintains that the juvenile court abused its discretion because the petition made a prima facie showing of changed circumstances and that the modification might be in the children’s best interests because their placements were “problematic” and such instability “is only counteracted by the mother’s consistent and caring presence.”
DISCUSSION
“The parent seeking modification must ‘make a prima facie showing to trigger the right to proceed by way of a full hearing [Citation.]’ [Citations.] 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.] If the liberally construed allegations of the petition do not show changed circumstances such that the child’s best interests will be promoted by the proposed change of order, the dependency court need not order a hearing.” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
The juvenile court may deny the petition ex parte if it “fails to state a change of circumstance or new evidence that may require a change of order... or that the requested modification would promote the best interest of the child” (Cal. Rules of Court, rule 5.570(d)), but the court may grant the petition if it “states a change of circumstance or new evidence and it appears that the best interest of the child may be promoted by the proposed change of order” (Cal. Rules of Court, rule 5.570(e)).
“In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case.” (In re Justice P. (2004) 123 Cal.App.4th 181, 189.) “Moreover, in reviewing the juvenile court’s determination, we bear in mind the fact that, ‘[i]n any custody determination, a primary consideration in determining the child’s best interests is the goal of assuring stability and continuity. [Citation.] “When custody continues over a significant period, the child’s need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.” [Citations.] [¶]... [¶] After the termination of reunification services, 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], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.] A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child.’ [Citation.]” (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505 (Brittany K.).)
We review the summary denial of the petition for abuse of discretion. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079.) “We must uphold the juvenile court’s denial of appellant’s section 388 petition unless we can determine from the record that its decisions ‘“exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” [Citations.]’” (Brittany K., supra, 127 Cal.App.4th at p. 1505.)
Mother’s principal argument in support of her contention that the juvenile court abused its discretion with respect to the best interest factor is that the children’s existing placements were “problematic” because they were either “brand new, or unstable.” She asserts that “the only stable bond the children have left is their mother.” We disagree because the record supports the contrary conclusion.
Although Son had been placed with new prospective adoptive parents in September 2008, by November 2008, he had already bonded with them. His new prospective adoptive parents also already had an approved home study. Thus, the juvenile court reasonably could have concluded, contrary to the allegations in Mother’s petition, that Son was in a suitable, stable placement with his prospective adoptive parents. Accordingly, the court did not abuse its discretion in determining that it would be in Son’s best interest to maintain the status quo because it better served Son’s needs for permanency and stability.
Notwithstanding Daughter’s placement with a prospective adoptive parent who was then undergoing parenting classes after she threatened to hit Daughter with a spoon, and the careful monitoring of that placement by DCFS, the juvenile court reasonably could have concluded that it was nevertheless a suitable placement and that the caretaker would be able to successfully complete the adoption. In February 2009, when Mother filed her petition for modification, Daughter had been placed in the caretaker’s home for almost two years (the majority of her life), and had thrived in her home in the past. Both DCFS and the court reasonably could have determined that parenting classes would be sufficient to improve the caretaker’s discipline methods and that the caretaker would be able to complete the adoption of Daughter.
Because substantial evidence supports the juvenile court’s implied finding that the children’s adoptive placements in February 2009 were stable and likely to result in successful adoptions, it did not abuse its discretion in determining that the reinstatement of Mother’s reunification services and unmonitored visitation was not in the children’s best interests, notwithstanding Mother’s consistent visits and her “caring presence” in her children’s lives.
Mother’s voluntary participation in services is commendable. The juvenile court, by not expressly denying her petition on the ground that she did not show changed circumstances, implicitly recognized Mother’s efforts to change her life and to address the issues which brought her children within the jurisdiction of the court. But a showing of changed circumstances alone is not sufficient to afford Mother an evidentiary hearing. Because Mother failed to make a sufficient showing that a modification might be in her children’s best interests, the juvenile court did not abuse its discretion in denying her petition without a hearing.
DISPOSITION
The order is affirmed.
We concur: CHANEY, J., JOHNSON, J.