Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. J965611, Stanley Genser, Commissioner. Affirmed.
Roni Keller, under appointment of the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Kirstin J. Andreasen, Associate County Counsel, for Plaintiff and Respondent.
KLEIN, P. J.
Rhoda M. (mother) appeals an order of the juvenile court denying mother’s petition under Welfare and Institutions Code section 388 for modification of a previous order entered with respect to 13 year old T.W. Mother contends the juvenile court erred in denying her petition summarily. We find no abuse of discretion and affirm the juvenile court’s order.
Subsequent unspecified statutory references are to the Welfare and Institutions Code.
BACKGROUND
1. Detention of T.W.
On January 30, 2004, the Department of Children and Family Services (the Department) received a report that T.W. was the victim of neglect. The referring party indicated mother regularly abused crack cocaine in the home and T.W. was not attending school. On February 19, 2004, mother put T.W. in maternal grandmother’s care and enrolled in a residential drug treatment program. However, mother left the program after one week. On March 12, 2004, the Department took T.W. into protective custody. The detention report indicated T.W. had been a dependent child from 1994 through 1998, mother had open court cases for other children with whom mother failed to reunify and mother was arrested for sale of a controlled substance in June of 2003.
T.W. was placed in the foster care of Joanne K., who had raised her own two children, has been a foster parent for the past 10 years, has cared for many children with special needs and understood behavioral issues and the effect of loss and separation on a child. Joanne K. had four foster children in her home including T.W.
On May 11, 2004, mother submitted to the jurisdiction of the juvenile court. As amended, the dependency petition alleged mother had a 10-year history of drug abuse which rendered her periodically unable to care for T.W., T.W. previously was a dependent child as to whom jurisdiction was terminated in 1998, two of T.W.’s siblings were in permanent placement and another had been adopted, and T.W.’s father has a history of illegal drug involvement and domestic violence and currently was incarcerated. On June 14, 2004, the juvenile court denied mother family reunification services under section 361.5, subdivisions (b)(10) and (13), but continued the matter for further proceedings as to father.
2. Dependency proceedings result in legal guardianship of T.W.
A social report prepared for June 29, 2004, indicated mother was injured in a drive-by shooting and was in the jail ward of Women’s Hospital following her arrest on a parole violation. A subsequent social report indicated mother had been transferred to prison to complete her term for sale of a controlled substance and she expected to be released in October of 2005. T.W. was doing well in Joanne K.’s care and had received excellent grades on her latest report card.
On May 17, 2005, the Department reported that, after Joanne K. moved from Hawthorne to Palmdale, T.W. showed a marked decline in her grades and school participation. T.W. was receiving weekly in-home therapy and was making progress adjusting to her new home but continued to feel sad about being separated from mother and wanted to return to her. Mother was sending T.W. cards and letters on a regular basis.
On September 28, 2005, the juvenile court identified legal guardianship as the appropriate permanent plan for T.W. and continued the matter to January 25, 2006 for a permanency planning hearing. A social report prepared for that date indicated mother had visited T.W. twice following mother’s release from prison on November 23, 2005. Joanne K. had reconsidered her decision to become T.W.’s legal guardian. Although T.W. continued to do well academically, she was having behavioral problems at school and had been suspended twice for stealing. T.W. also recently had been disrespectful and non-compliant with Joanne K.’s rules. T.W.’s recent behavior was surprising in that she previously had been “a sweet[,] well mannered child.” The CSW opined T.W. was disappointed that mother had visited only twice after her release from prison. Mother maintained contact with the CSW and indicated a desire to seek custody of T.W. However, mother’s parole officer reported that mother tested positive for morphine and codeine on December 20, 2005.
On January 25, 2006, the juvenile court ordered the Department to provide transportation funds to mother and granted the Department discretion to liberalize mother’s visits. The juvenile court also directed the Department to resume in-home counseling for T.W. The juvenile court indicated long-term foster care now was the appropriate permanent plan.
A social report prepared for March 1, 2006, indicted T.W. was receiving counseling on a weekly basis. On February 15, 2006, mother’s parole officer reported that mother had tested positive for cocaine and PCP and would be required to enter a residential treatment program. Mother telephoned the CSW and admitted she had suffered a relapse and was willing to enter drug treatment. Since her release from prison, mother had visited T.W. three times but had maintained weekly telephone contact.
A social report prepared for July 26, 2006, indicated Joanne K. had decided to become T.W.’s legal guardian and wanted to move forward as soon as possible. T.W. continued to receive in home counseling to address her depressed mood, increase her self-esteem and resolve her behavioral issues. David Leonelli, Ph.D. found T.W. was struggling with emotional immaturity and impulse control and she lacked age appropriate problem solving skills. Also, T.W. had exhibited signs of bipolar disorder. T.W. was referred for a psychiatric evaluation and on June 30, 2006, a psychiatrist prescribed the child Wellbutrin.
Mother entered a residential drug treatment program on February 27, 2006, but left the program on March 18, 2006, claiming it was poorly run. On April 24, 2006, at the insistence of mother’s parole officer, mother entered another residential program but was terminated on May 14, 2006, due to poor conduct and physical aggression with other residents. On July 8, 2006, mother tested positive for cocaine and PCP. On July 12, 2006, mother entered a third residential program. However, mother left that program on July 22, 2006.
During a visit with T.W. on May 24, 2006, mother was confrontational with Joanne K., complained that T.W.’s hair had been ruined, appeared excitable and “was running around talking a mile a minute.” Mother gave T.W. money from a “bank roll” and told T.W. she was terminated from her drug treatment program due to a dirty test. Joanne K. reported that any contact between mother and T.W., either by telephone or in person, results in severe acting out behavior by T.W. The CSW noted T.W.’s behavioral problems are mainly related to her disrespectful attitude, but her conduct had improved since her psychological evaluation in April of 2006.
On July 26, 2006, the juvenile court set a permanent planning hearing for October 25, 2006, to finalize legal guardianship with Joanne K. A social report prepared for that date indicated mother telephones T.W. approximately once a week but had not had face-to-face contact with the child in several months.
On October 25, 2006, the juvenile court appointed Joanne K. the legal guardian of T.W. and terminated jurisdiction.
3. Mother’s petition for modification.
On March 26, 2007, mother filed a petition for modification of the juvenile court’s order. Mother alleged she was “completing six months of the drug treatment” at Tarzana Treatment Centers (TTC) and had been “drug-free [for] one year.” Mother also stated, “I have a good home for [T.W.]” Mother requested unsupervised overnight visits with T.W. in mother’s home and return of T.W. to mother’s custody. Mother asserted, “My daughter loves me and desires to live with me. She needs me and I can take good care of her.” Mother attached to the petition numerous certificates of completion and achievement. Also attached to the petition was a letter from mother indicating she had changed her behavior and she now has “a wonderful relationship” with T.W. based on their daily telephone calls. Mother wanted to reunify with T.W. and provide her a safe home and motherly love. Mother’s goal was to move to a sober living home or to get an apartment where she and T.W. could live.
The attached certificates consisted of a certificate of completion of “process groups” dated January 24, 2007, a certificate of achievement in chemical dependency dated January 19, 2007, a certificate of achievement in “big book study group” dated February 12, 2007, a certificate of completion in relapse prevention dated January 19, 2007, an undated certificate of completion of 12 weeks of domestic violence education classes, a certificate of achievement for completion of eight living skills training modules dated February 24, 2007, an undated certificate of participation in 10 creative expression art groups, an undated certificate of completion of 30 days of treatment at TTC, a certificate of completion of a 10-week parenting class dated January 30, 2007, a certificate of completion of 10 weeks of anger management dated February 12, 2007, and a certificate of attendance at the basics of parenting workshop “keeping your child safe” dated February 15, 2007.
Mother further indicated the classes at TTC had been extremely beneficial to her and she was enrolled at Long Beach City College. A letter dated March 14, 2007, from TTC indicated mother entered their program on October 26, 2006, she had established a sober support system, she has displayed the ability to maintain abstinence, she was preparing to transition to a sober living facility and she continues to lead a clean and sober life.
On April 23, 2007, the juvenile court summarily denied mother’s petition indicating it did not demonstrate the requested change of order would be in the best interest of the child.
On May 4, 2007, mother appealed the denial of her petition.
In a handwritten statement attached to the notice of appeal, mother indicates she has completed a nine-month program, she is in an outpatient program and she is enrolled in school and attending meetings three times a week with her sponsor. Mother was avoiding people and places she previously had frequented, she visited T.W. as often as she could and was enjoying overnight and weekend visits with T.W. in mother’s home, during which they attended church together. Mother further stated she had reunited with one of her other children and mother desired to be reunited with T.W.
DISCUSSION
Mother claims she was entitled to a hearing on the petition because she presented prima facie evidence that T.W.’s best interests would be served by the requested modification. Mother notes she has completed drug treatment and numerous classes, she has been drug free for one year, she has established a support system, she intended to move to a sober living facility and she asserted she would be able to provide T.W. an appropriate home. Thus, the juvenile court had an obligation to conduct a hearing on her petition for modification.
Under section 388, a party seeking to change, modify or set aside a previous order of the juvenile court must show, by a preponderance of the evidence, that there is a change of circumstances or new evidence, and that the proposed modification is in the child’s best interests. (In re Amber M. (2002) 103 Cal.App.4th 681, 685.) The petition must be liberally construed in favor of its sufficiency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309; Cal. Rules of Court, rule 5.570(a).) “ ‘[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.’ [Citation.]” (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) However, if the liberally construed allegations of the petition do not make a prima facie showing that the relief sought would promote the best interests of the child, the court may deny the petition without an evidentiary hearing. (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 323.) The petition is addressed to the sound discretion of the juvenile court, which will not be disturbed absent a clear abuse. (In re Jasmon O., supra, at p. 415.)
Here, the attachments to mother’s petition reveal that, at the time mother sought modification, she had been in drug treatment at TTC for only five months. Additionally, mother last tested positive for controlled substances on July 8, 2006. Thus, mother had been drug free, at the most, for only nine and half months when she filed the section 388 petition. Given mother’s long history of drug abuse, treatment and relapse, mother’s participation in the TTC drug rehabilitation program for five months did not demonstrate a change of circumstances.
Further, although the petition asserted mother had an appropriate home for T.W., it also stated mother had not yet entered a sober living facility or obtained an apartment that would be suitable for T.W. Thus, it appears mother continued to live in the residential drug treatment program and she failed to allege the program would be able to accommodate overnight visits by T.W. or placement of the child in mother’s care. (In re Angel B. (2002) 97 Cal.App.4th 454, 463.)
Finally, even assuming mother has shown a change of circumstances, she failed to demonstrate that modification of the juvenile court’s order would be in T.W.’s best interests. Mother was denied reunification services in this case on June 14, 2004. After reunification services have been terminated, the focus of the proceedings shifts from family preservation to providing the child with a safe, stable and permanent home. (See In re Jasmon O., supra, 8 Cal.4th at pp. 419-420; In re Marilyn H., supra, 5 Cal.4th at p. 309.) Establishing the best interest prong of section 388 becomes more difficult at that point in time and a “motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining . . . the best interests of the child.” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Indeed, after termination of family reunification services, a rebuttable presumption arises that continued care is in the child’s best interest. (In re Marilyn H., supra, at p. 310.)
Mother’s petition fails to address the fact that T.W. has been in the care of Joanne K. since March of 2004. Joanne K. is an experienced caregiver who has been T.W.’s legal guardian for approximately one year. Joanne K. successfully assisted T.W. through her difficult pre-teen years. During this time, mother repeatedly relapsed into drug abuse, she rarely visited T.W., and the contact mother did have with the child resulted in depression and acting out behavior. Although mother alleged she had maintained telephone contact with the child, mother had not had regular physical contact since T.W. was detained in March of 2004. Moreover, mother failed to assert that she was able to care for T.W.’s psychological problems and bipolar disorder. Clearly, the juvenile court could conclude that a change in T.W.’s placement might exacerbate her mental health issues or that additional hearings in the juvenile court related to her placement might disrupt her stability and permanence.
For all the foregoing reasons, the juvenile court committed no abuse of discretion in summarily denying mother’s petition for modification. (In re Angel B., supra, 97 Cal.App.4th at pp. 464-465; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1449-1451.)
DISPOSITION
The order of the juvenile court is affirmed.
We concur: CROSKEY, J., KITCHING, J.
Because these facts were not before the juvenile court at the time it denied mother’s petition for modification, they are not relevant to the instant appeal.