Opinion
E070257
10-01-2018
In re N.A., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. S.G., Defendant and Appellant.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWJ1500582) OPINION APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge. Affirmed. Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
S.G. (Mother) had unresolved mental health issues and a history of abusing drugs and neglecting her five-year-old son N.A. that led to the Riverside County Department of Public Social Services (DPSS) removing N.A. from her home. After over 18 months of reunification services, services for both Mother and Father were terminated and a Welfare and Institutions Code section 366.26 hearing was set. Mother filed a section 388 petition requesting additional reunification services and increased visits with N.A. The petition was denied without an evidentiary hearing. Mother appealed after her parental rights were terminated. On appeal, Mother contends the juvenile court erred in summarily denying her section 388 petition without a hearing because she met the requisite "probable cause" to trigger an evidentiary hearing.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
N.A.'s father, N.A. (Father), is not a party to this appeal. --------
We conclude Mother's appeal is untimely as a vehicle for challenging the separately appealable order denying her section 388 petition. While In re Madison W. (2006) 141 Cal.App.4th 1447 (Madison W.) concludes the policy promoting liberal construction of notices of appeal does allow us to construe one challenging an order terminating parental rights as also encompassing an earlier order denying a section 388 petition, the case also makes clear that our power extends only to such orders issued within 60 days of the date an appellant filed the notice of appeal. In this case, the order denying Mother's section 388 petition was issued more than 60 days before she filed her notice of appeal. Consequently, as applied to that earlier order, the notice is untimely.
Secondly, even if we were to reach the merits, we would find Mother's argument unpersuasive. Mother has not demonstrated any significant change in circumstances, nor has Mother established that providing her with additional services was in N.A.'s best interest. Consequently, we conclude the juvenile court did not err by summarily denying Mother's section 388 petition.
Finally, because Mother makes no arguments challenging the order terminating her parental rights, we affirm that order.
II
FACTUAL AND PROCEDURAL BACKGROUND
The family has a prior child welfare history with DPSS dating back to April 2013 for general neglect of N.A. On April 15, 2013, a referral was received alleging that Mother had tested positive for marijuana at the time of N.A.'s birth. Mother reported that she and Father had a history of smoking marijuana but denied current use. It was also reported that Mother was discharged from the hospital on April 11, 2013, but had not returned to visit N.A., who was born prematurely and expected to spend three weeks in the hospital. The referral was closed out as substantiated, and the parents agreed to participate in a parenting program.
On January 1, 2015, another referral was received alleging that N.A. had presented as extremely irritable, with a rash and diarrhea, and that he had not urinated in over two days. The maternal grandparents had taken N.A. to the hospital. A medical examination revealed that N.A. had a severely infected and inflamed penis due to being uncircumcised and not washing. After an investigation, the referral was closed out as substantiated.
Another referral was received on February 24, 2015, alleging that N.A. was " 'removed' " from his parents' home, approximately one month prior, and placed in the maternal grandparents' home due to the parents locking N.A. in a room for " '6-8 hours at a time.' " It was reported that around February 10, 2015, the maternal grandfather had dropped N.A. off at his parents' home for a visit for several hours and that the parents had neglected N.A. while he was in their care. It was further reported that the parents used marijuana in the presence of N.A. Following an investigation, the allegation was closed as unfounded.
The current referral was received on September 21, 2015, alleging general neglect and caretaker absence. Mother had left then two-year-old N.A. with an apartment manager and said that " 'Some people are not meant to be parents . . . I never wanted him (N.A.) . . . my parents made me keep him . . . if I take him back home I am afraid I am going to hurt him.' " N.A. was nonverbal, wore filthy clothes, had a strong foul odor, and was very hungry. N.A. also had a "quarter-inch gap of tissue out" of his head as a result of him falling and hitting his head on a piece of wood with a nail in it. Mother did not seek medical care for N.A.'s injury. N.A. also had another smaller injury on his forehead and a diaper rash that extended to his thighs.
A forensic pediatrician reported that N.A. did not appear developmentally on target because he did not speak and was socially withdrawn. The pediatrician noted that N.A. was socially deprived and neglected because he hardly moved from where he was standing or sitting for long periods of time. Mother reportedly suffered from postpartum depression, but had never spoken to a doctor about it, because she did not want to take medication. There were also reports of possible domestic violence between Mother and Father. Mother denied the allegations. N.A. was taken into protective custody and placed in a foster home.
On September 23, 2015, a petition was filed on behalf of N.A. pursuant to section 300, subdivision (b) (failure to protect). The following day, the juvenile court detained N.A. from his parents. Mother was ordered to undergo a hair follicle drug test and a psychological evaluation. The parents were provided with visitation.
DPSS recommended that the allegations in the petition be found true and that the parents be provided with reunification services.
The jurisdictional/dispositional hearing was held on October 16, 2015. Neither parent was present. The juvenile court found the allegations in the petition true and declared N.A. a dependent of the court. The parents were provided with reunification services and supervised visitation twice a week. Mother's case plan required Mother to participate in a domestic violence/anger management program, individual counseling, a parenting program, a substance abuse program, and random drug testing.
By the six-month review hearing, DPSS recommended that services be continued for both parents and that visitation remain supervised. Mother and Father resided together in an apartment, and Mother had a full-time job, making around $11 an hour. Mother received referrals and had enrolled in her services. She planned on attending her programs in April and May 2016. Mother and Father consistently visited N.A. twice a week and engaged in appropriate activities. N.A. was always happy to see his parents. N.A. was making progress in his foster home. He was able to understand directives and was referred to a speech therapist. He was able to parallel play with his peers, but had difficulty playing directly with his peers due to easily becoming angry.
The six-month review hearing was initially held on April 18, 2016. Both parents were present in court at that time, and the parties requested the matter be set for a contested hearing. The court continued the six-month review hearing to May 19, 2016.
In an addendum report filed on May 16, 2016, DPSS recommended that reunification services be terminated for the parents and that a section 366.26 hearing be set. The parents were referred to services in September and October 2015, but DPSS had a difficult time communicating with the parents. The domestic violence program coordinator had also been unsuccessful in contacting the parents. Mother felt that she " 'didn't need services and didn't know that she needed a psychological evaluation.' " She, however, enrolled in parenting and domestic violence classes in March 2016. She tested positive for "[c]annabinoids" on April 1, 2016, and "THC" on May 7, 2016. She enrolled in an outpatient substance abuse program on May 2, 2016.
The contested six-month review hearing was held on June 20, 2016. Both parents were present. DPSS informed the court that it was changing its recommendation and requesting that the court continue the parents' reunification services. The juvenile court continued services to both parents, but indicated that the parents' comments indicating that they did not believe there was anything wrong or that they needed services caused the court "some serious concern."
By the 12-month review hearing, DPSS recommended that services be continued for Mother and Father and that visitation between N.A. and the parents continue to be supervised with authorization for liberalized visits including unsupervised, weekends, and overnights. The parents had made progress on their case plan. Mother had undergone a psychological evaluation for which a report was prepared on August 15, 2016. Her psychological evaluation revealed a diagnosis of depression with postpartum features. Her evaluation also showed that Mother minimized her domestic violence issues and abandonment of N.A. Mother's psychologist recommended more therapy for Mother. Mother had bought a double-wide two-bedroom mobile home, paid $450 a month in mortgage, and continued to work. In addition, Mother had enrolled in a domestic violence program, and was expected to complete the program by October 4, 2016. Mother had also enrolled in, and completed, her substance abuse program, her parenting classes, and individual counseling in July 2016. DPSS, however, had concerns about whether Mother had benefitted from her parenting classes and individual counseling due to her minimizing her domestic violence relationship with Father and abandonment of N.A.
Furthermore, the parents had consistently visited N.A. The visits had been reported as appropriate. Although Father had utilized appropriate parenting techniques during visits, Mother had a difficult time disciplining N.A. Mother was attempting to make an effort in using time out when N.A. had tantrums and was receiving good feedback and was receptive to learning more. N.A. continued to be placed with his foster family and was making developmental progress. He, however, did not play well with other children, became easily upset, and had tantrums.
Both parents were present at the October 18, 2016 12-month review hearing. The juvenile court continued the parents' reunification services to the 18-month review hearing and ordered supervised visits with authorization for liberalized visits including unsupervised, weekends, and overnight. Father's counsel requested referrals for Safe Care and conjoint counseling, and the court ordered DPSS to provide both parents with referrals for conjoint counseling for co-parenting and Safe Care parenting services.
By the 18-month review hearing, DPSS recommended the parents' reunification services be terminated, visitation be reduced to once a month and be supervised, and a section 366.26 hearing be set. Mother had completed a domestic violence program, individual counseling, a parenting program, and substance abuse counseling. The parents were both referred to the Safe Care parenting program on October 18, 2016. However, the referral was closed on February 7, 2017, due to the parents' noncompliance with the program. The Safe Care public health nurse reported that Mother did not appear interested in participating in the program, because Mother said it was difficult to participate due to her very busy schedule. Mother failed to provide alternative days to complete her services, even though the parents were given the option to meet as early as 7:30 a.m. to accommodate their schedules. Father was not working at the time. The parents were offered services on their preferred day, Mondays, but Mother cancelled appointments on December 5, 2016, January 23, 2017, and January 30, 2017. Mother later stated that she thought the Safe Care program was a voluntary program.
In addition, Mother failed to submit to random drug tests on October 25, November 1, November 30, December 6, and December 28, 2016, and January 4, 2017. She tested positive for marijuana on June 8, 2016, January 10 and February 9, 2017, and failed to show up once to a drug test appointment. At some point, she obtained a medical marijuana card due to lack of appetite. Mother was also referred to conjoint counseling, but could not participate until Father completed his individual therapy. Father had failed to complete a parenting program, individual therapy, had missed five drug tests, and had tested positive on two tests. On March 29, 2017, Mother disclosed that Father has been emotionally abusive to her and that he was cheating on her with a woman while she was at work supporting him.
The parents were provided with unsupervised visits with N.A. Visitation had transitioned from two hours unsupervised to eight hours unsupervised. The parents were typically late to the pick-up and the drop off. They also began cancelling visits in January 2017 at the last minute. The foster mother reported that the parents' visits had been once a week instead of twice a week due to them cancelling visits or not showing up at all. N.A. was usually excited to see his parents and willingly went to them. N.A. was making significant developmental, emotional, and physical progress in his foster home. He was learning self-control, actively working on being potty-trained, and was able to be redirected by his foster mother. He often showed affection towards his foster family, and his speech had developed greatly since being in placement. He had become more verbal and was able to express his needs and desires. N.A.'s foster mother had continued to provide N.A. with a safe and nurturing home environment.
The contested 18-month review hearing was held on May 3, 2017. Neither parent was present. The juvenile court terminated reunification services for both parents and set a section 366.26 hearing. The court also reduced the parents' visitation to once a month. Writ rights were mailed to the parents' last known address on May 3, 2017.
DPSS recommended that parental rights be terminated with a permanent plan of adoption for N.A. On July 6, 2017, N.A. was placed with his maternal grandparents with hopes of moving forward with adoption by the maternal grandparents. However, on July 17, 2017, the maternal grandparents requested that N.A. be removed from their home due to N.A.'s unruly and uncontrollable behavior. While N.A. was in the maternal grandparents' care, the maternal grandparents had supervised the visits. The maternal grandmother reported that during a visit, Mother had told N.A. that he was going home with her. By this time, Father's whereabouts were unknown.
On July 23, 2017, N.A. was moved from his maternal grandparents' home and placed in a foster home. DPSS recommended that the section 366.26 hearing be set out 120 days to allow for an adoptive family to be identified and a home study to be completed. N.A.'s therapist had diagnosed him with "ADHD, Combined Type, as well as PTSD." N.A. had difficulty with impulse control, hitting and kicking others, biting himself, and banging his head. He had qualified for a number of therapies including "Parent, Child, Interactive Therapy," as well as "Trauma Focused Cognitive Behavioral Therapy," "Wraparound," and "in home Therapeutic Behavior Services." DPSS was in the process of finding an appropriate adoptive home for N.A. that would engage in services to help N.A. stabilize his aggressive behaviors.
On August 14, 2017, Mother filed a section 388 petition with supporting exhibits, including on-line certificates of completion, seeking family reunification services and increased visits to a minimum of two times a week. As changed circumstances, Mother stated that she had completed a substance abuse program and parenting classes and that Father was no longer residing with Mother or on her lease. As best interest, Mother asserted that it "would be in the best inter[e]st of a child to reside with a natural parent that can demonstrate that the issues giving rise to the dependency have been ameliorated."
The juvenile court ordered "a hearing on whether the court should grant or deny an evidentiary hearing" for September 18, 2017.
On August 17, 2017, due to N.A.'s uncontrollable behaviors, his then foster parents requested that DPSS remove N.A. from their home.
In an interim report filed September 12, 2017, DPSS recommended that Mother's section 388 petition be granted and that Mother be provided with an additional six months of services on the condition that she participate in a substance abuse treatment program with drug testing and after care services, a parenting and domestic violence program, and individual therapy. DPSS also requested that Mother provide employment verification and an updated rental lease agreement that excluded Father. DPSS requested that the court not "accept the online certificates filed by the mother . . . as [DPSS] believe[d] these certificates [were] not appropriate based on the number of on line hours the programs granted for completion."
The juvenile court heard Mother's section 388 petition on September 18, 2017. Mother was not present at the hearing. Mother's counsel and counsel for DPSS argued that Mother had met her prima facie burden. Minor's counsel argued that Mother had not met her burden, in that Mother had failed to provide any evidence to show that she had drug tested or that she had completed the Safe Care parenting requirement. Following argument, the juvenile court denied Mother's section 388 petition, finding Mother failed to show "prima facie evidence of change of circumstances." The court explained: "Counsel, we talked briefly off the record this morning that it was the court's initial thought that [it] would grant—find that a prima facie showing had been made and grant an evidentiary hearing. [¶] But looking closer at the certificate of completion, [the court] note[s] that the description of the topics covered, there's virtually nothing with regards to substance abuse, one tiny component of 12 hours that talks about substance abuse related to parenting. That's not the same as doing anything to have changed the circumstances and participating in a substance abuse treatment program or the fact that, as minor's counsel does point out, one of the issues that we were dealing with substantially for mother was the fact of her noncompliance with testing orders. [¶] So it had been my original intention to grant the evidentiary hearing, but upon further review of that certificate of completion, even granting all inferences in favor of the moving party towards granting the evidentiary hearing, [the court] [does not] think that mother has made a prima facie showing. [¶] And, as such, the evidentiary hearing is denied." The juvenile court signed an "Order After Hearing on Form JV-180" denying Mother's request. The form was filed on September 18, 2017. Mother did not file a notice of appeal from this order.
On November 29, 2017, N.A. was placed in a prospective adoptive home. He had numerous visits with the prospective adoptive family before he was placed in the home and had transitioned well to the home. N.A. and the prospective adoptive parents were developing a reciprocal bond, and N.A. was developing a strong attachment to his prospective adoptive parents. N.A. had actively participated in Wraparound services and was eating and sleeping well in his new home. His anger issues had decreased, and he was better able to express himself. He appeared comfortable around the prospective adoptive parents and referred to them as "Nana and Papa."
Meanwhile, Mother had missed her October 2017 visit. And no visit had occurred in November 2017 due to her failure to contact the social worker to schedule a visit.
On December 27, 2017, the juvenile court continued the section 366.26 hearing to obtain a preliminary adoption assessment report.
On February 15, 2018, DPSS filed a preliminary adoption assessment report. DPSS reported that N.A. was social, attending preschool, and had not had any reported behavioral issues. He had made "huge strides" in his services and his behavior had greatly improved. His prospective adoptive parents were patient and understanding and were strong advocates for services for him. The prospective adoptive mother was a teacher and the prospective adoptive father was a community manager. They did not have biological children of their own, strongly valued adoption, and were committed to adopting N.A. and providing him with stability and security. N.A. was the only child in their home, and he was strongly attached to his prospective adoptive parents. N.A. had been observed to be very bonded with his prospective adoptive parents and comfortable in their home.
The section 366.26 hearing was held on March 1, 2018. Neither Mother nor Father were present in court. Following argument, the juvenile court terminated parental rights and found N.A. adoptable.
Mother filed a notice of appeal on March 29, 2018, indicating that she was appealing from the March 1, 2018 order terminating her parental rights.
III
DISCUSSION
Mother argues the juvenile court erred in summarily denying her section 388 petition because her petition with supporting attachments showed a prima facie case for changed circumstances and best interest of the child.
DPSS responds Mother's appeal challenging the juvenile court's September 18, 2017 order summarily denying her section 388 petition should be dismissed because Mother did not file a timely notice of appeal from that order. In the alternative, DPSS asserts the juvenile court did not abuse its discretion in summarily denying Mother's section 388 petition.
A. Appeal From Denial of the Section 388 Petition was Untimely
A timely notice of appeal vests jurisdiction in this court. (Adoption of Alexander S. (1988) 44 Cal.3d 857, 864.) Unless a timely notice of appeal is filed, we have no power to entertain an appeal. (Van Beurden Ins. Services v. Customized Worldwide Weather Ins. Agency (1997) 15 Cal.4th 51, 56.) " 'If a judgment or order is appealable, an aggrieved party must file a timely appeal or forever lose the opportunity to obtain appellate review.' [Citation.]" (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46.) When a notice of appeal is untimely, we must dismiss the appeal. (Hollister Convalescent Hospital, Inc. v. Rico (1975) 15 Cal.3d 660, 666-667.)
To be timely, a written notice of appeal from a juvenile dependency order must be filed within 60 days after the order appealed from is made. (Cal. Rules of Court, rule 8.406(a).) An order denying a section 388 petition is a separate, appealable order. (Nahid H. v. Superior Court (1997) 53 Cal.App.4th 1051, 1068; accord, In re K.C. (2011) 52 Cal.4th 231, 235-236 ["[o]rders denying petitions under section 388 to modify prior orders of the juvenile court . . . are appealable under section 395"].)
Here, the court denied Mother's section 388 petition without an evidentiary hearing and issued a minute order to that effect on September 18, 2017. However, Mother filed no direct appeal from the September 18, 2017 order denying her section 388 petition. Instead, she waited until after the court terminated her parental rights on March 1, 2018, and filed a notice of appeal on March 29, 2018, challenging the March 1, 2018 order terminating parental rights. Mother waited approximately 192 days after the order denying the section 388 petition was issued to file a notice of appeal.
Furthermore, even if Mother's notice of appeal can be construed as encompassing the earlier order denying her section 388 petition, it would nonetheless be untimely, because the notice was filed more than 60 days after the denial order was entered. (Cal. Rules of Court, rule 8.104(a)(1).) Specifically, the court denied Mother's section 388 petition on September 18, 2017, but she did not file her notice of appeal until March 29, 2018—nearly 192 days later. That was too late to perfect an appeal from the order.
Madison W., supra, 141 Cal.App.4th 1447 is instructive. In that case, the mother filed a notice of appeal from the order terminating parental rights, but did not refer to a previous order denying her section 388 petition. (Madison W., at pp. 1450-1451.) The appellate court held that it would "liberally construe a parent's notice of appeal from an order terminating parental rights to encompass the denial of the parent's section 388 petition, provided the trial court issued its denial during the 60-day period prior to filing the parent's notice of appeal." (Id. at p. 1451.) The court noted that the denial of a section 388 petition is an appealable order and that a parent's notice of appeal is entitled to liberal construction. The court also asserted that appellate jurisdiction to review an appealable order depends upon a timely notice of appeal and that the notice of appeal would have been timely as to the denial of the parent's section 388 petition because it had been filed within 60 days of the order. The court further found that the respondent, the department of social services, was not prejudiced. (Madison W., at p. 1450.)
Unlike the present matter, the order denying the section 388 petition in Madison W. had been issued only three days before the court ordered the termination of parental rights—and within 60 days of the date on which the mother in that case filed her notice of appeal. Thus, when the court decided to construe her notice of appeal as encompassing the order denying her section 388 petition, it was also able to expressly determine the notice would qualify as a timely appeal from that earlier order. That timeliness determination was key to the court's ability to address the merits of the order denying the mother's section 388 petition.
By contrast, in this case, the juvenile court's denial of Mother's section 388 petition was outside the 60-day appeal period. Consequently, our ability to construe Mother's notice of appeal as encompassing the earlier order denying her section 388 petition is not sufficient to preserve her right to challenge that order on appeal.
Because Mother had not filed a timely notice of appeal from the summary denial of her section 388 petition, we have no jurisdiction to address those issues raised in her brief. Mother filed a timely notice of appeal from the March 1, 2018 order terminating her parental rights and finding N.A. adoptable. However, she raises no substantive issues as to that order. When a party does not articulate any pertinent legal argument in his or her opening brief, the appellate court may, in its discretion, deem this failure to be an abandonment of the appeal justifying dismissal. (In re Jerry M. (1997) 59 Cal.App.4th 289, 293, fn. 3; Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.)
Further, in an appeal from an order under section 366.26, the waiver rule prevents us from reviewing orders made at earlier hearings from which appellate review was not sought. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.) The waiver rule applies unless enforcing it would result in a denial of due process. (Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1149; In re Janee J. (1999) 74 Cal.App.4th 198, 208.) To establish a denial of due process, Mother must demonstrate a defect in the proceeding that fundamentally undermined the statutory scheme and prevented her from availing herself of the protections afforded by the scheme as a whole and is not merely an error that might have been held reversible had it been timely reviewed. (In re Janee J., at pp. 208-209.)
The issue of whether the court properly summarily denied a section 388 petition is reversible if timely reviewed. Accordingly, we may not review the court's ruling on the section 388 petition, which was issued on September 18, 2017, from Mother's timely appeal of the March 1, 2018 order terminating her parental rights.
B. Mother's Appeal Lacks Merit
But even if we could entertain Mother's challenge to the denial of her section 388 petition on the merits, we would affirm the juvenile court's order.
Under section 388, a juvenile court order may be changed or set aside "if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G.).) "[I]f the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition." (Ibid.; § 388, subd. (d) ["If it appears that the best interests of the child . . . may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . ."]; In re Mickel O. (2011) 197 Cal.App.4th 586, 615 (Mickel O.) [" '[I]t is not enough for [the petitioner] to show just a genuine change of circumstances under the statute. The [petitioner] must show that the undoing of the prior order would be in the best interests of the child.' "].) The prima facie requirement is not met "unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (Zachary G., at p. 806.) We review the juvenile court's order denying a hearing for abuse of discretion. (Id. at p. 808.) "It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion . . . ." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 522 (Kimberly F.).)
Mother contends the juvenile court should have held a hearing on her section 388 petition because she established a prima facie showing of changed circumstances and that the proposed change would promote the best interest of the child.
We need not decide whether the juvenile court erred in finding there was no prima facie showing of changed circumstances because Mother failed to make a prima facie showing that granting the section 388 petition and providing additional reunification services and visitations was in the best interest of the child.
Parent and child share a fundamental interest in reuniting up to the point at which reunification efforts cease. (In re R.H. (2009) 170 Cal.App.4th 678, 697, disapproved on another ground in John v. Superior Court (2016) 63 Cal.4th 91, 98-100.) By the point of a section 366.26 hearing to select and implement a child's permanent plan, however, the interests of the parent and the child have diverged. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.) Therefore, after reunification efforts have terminated, the court's focus shifts from family reunification toward promoting the child's needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) This is a difficult burden to meet when reunification services have been terminated. This is because, "[a]fter the termination of reunification services, a parent's interest in the care, custody and companionship of the child is no longer paramount. [Citation.]" (In re Angel B. (2002) 97 Cal.App.4th 454, 464 (Angel B.).) In fact, there is a rebuttable presumption continued foster care is in the child's best interest. (Ibid.) Such presumption applies with even greater strength when adoption is the permanent plan. (Ibid.) "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." (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
At the time Mother filed her section 388 petition, about three months after services were terminated, the child's interest in stability was the juvenile court's foremost concern, outweighing any interest in reunification. The prospect of allowing Mother additional reunification services and liberalized visitations to see if Mother would and could do what she was required to do to regain custody would not have promoted stability for N.A., and thus would not have promoted the child's best interest. (Angel B., supra, 97 Cal.App.4th at p. 464.) N.A. was removed from parental custody when he was two years old in September 2015. By the time Mother filed her section 388 petition, N.A. was four years old, and by the time of the section 366.26 hearing, N.A. was almost five years old. Mother had received over 18 months of reunification services, and the record shows that Mother still had not benefitted from the services she received. Moreover, there was no evidence to show N.A. was significantly bonded to Mother. Rather, the record demonstrates that N.A. required stability and security to stabilize his behavior and establish permanency. Granting additional reunification services to Mother would only prolong N.A.'s adoption into a stable and loving home. N.A. and his prospective adoptive parents were bonded to each other, and N.A.'s prospective adoptive parents were meeting N.A.'s needs. The juvenile court reasonably concluded that, under such circumstances and in light of Mother's history of abusing drugs, failing to drug test, failing to address her mental health issues, and neglecting N.A., Mother had not made a prima facie showing of changed circumstances or that reinstating reunification services would have promoted stability for the child and be in his best interest. (Angel B., at p. 464.)
In Angel B., supra, 97 Cal.App.4th 454, the court rejected the mother's contention the juvenile court erred in denying her section 388 petition without holding a hearing. The mother in Angel B. had a long history of drug abuse, unsuccessful rehabilitation attempts, and failure to reunify with another child. After the mother was denied reunification services, she began to improve, enrolling in a treatment program, testing clean for four months, completing various classes, and obtaining employment. Regular visits with her child also went well. (Id. at p. 459.) Nevertheless, when she filed her section 388 petition for reunification services, the court summarily denied her petition without a hearing. The Court of Appeal affirmed, finding no abuse of discretion in the juvenile court refusing to hold a hearing. (Id. at p. 462.)
The appellate court in Angel B. acknowledged the petition showed the mother was doing well, "in the sense that she has remained sober, completed various classes, obtained employment, and visited regularly with [the child]." (Angel B., supra, 97 Cal.App.4th at pp. 464-465.) The court also assumed for purposes of the appeal "that this time her resolve is different, and that she will, in fact, be able to remain sober, remain employed, become self-supporting and obtain housing." (Id. at p. 465, italics omitted.) Nevertheless, the court concluded "such facts are not legally sufficient to require a hearing on her section 388 petition." (Ibid.) The court explained: "[T]here is a rebuttable presumption that, in the absence of continuing reunification services, stability in an existing placement is in the best interest of the child, particularly when such placement is leading to adoption by the long-term caretakers. [Citation.] To rebut that presumption, a parent must make some factual showing that the best interests of the child would be served by modification." (Ibid.) Like the mother in Angel B., Mother did not make such a showing.
As to best interest, Mother's section 388 petition merely alleged that it "would be in the best inter[e]st of a child to reside with a natural parent that can demonstrate that the issues giving rise to the dependency have been ameliorated." Mother's allegation is conclusory, not a factual showing that granting reunification services would promote the child's best interest. (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348-1349 ["allegations of her [section 388] petition were to be liberally construed, but conclusory claims are insufficient to require a hearing"].) Mother's petition offered no evidence of the nature of her own bond or that N.A. wanted to live with Mother. (See Angel B., supra, 97 Cal.App.4th at p. 465 [the mother's petition, denied without a hearing, stated that she had bonded with the child, who was happy to see her and reached for her on their visits].)
In re Hashem H. (1996) 45 Cal.App.4th 1791 (Hashem H.), on which Mother relies, is inapt. There, the Court of Appeal held the mother had made a prima facie showing sufficient to satisfy an evidentiary hearing on the section 388 petition. But the factual circumstances in that case were different from the present case. The mother in Hashem H. had participated in a continuous 18 months of individual therapy, consistently and regularly visited the child for more than a year, participated in joint counseling with him, had stable employment, and was currently able to provide a home for the child on a full-time basis. (Id. at p. 1799.) In fact, the mother did so well in therapy that her therapist recommended the child be returned to her. The court held the section 388 petition showed the mother's problems leading to removal "had been successfully resolved through therapy" and that the mother's "petition made out a prima facie case of changed circumstances." (Hashem H., at p. 1799.) That is not the case here. Mother provided no proof of participation in the Safe Care parenting program, conjoint counseling, drug testing, or that she was treating her mental health concerns. In addition, as noted above, in Hashem H. there was regular and consistent visitation. In our case, visitation was problematic. Beginning in January 2017, Mother began coming late to visits or cancelling visits, and she missed her August, September, and October 2017 visits.
Mother also relies on In re Jeremy W. (1992) 3 Cal.App.4th 1407 (Jeremy W.). She represents Jeremy W. as "similar" to this case, but it is not. There, the only stated basis for terminating reunification services was the instability of the mother's housing. The mother had successfully complied with her court-ordered reunification plan, had continued to abstain from drug and alcohol use, and had continued psychotherapy at her own expense after the court-ordered services were terminated. (Id. at pp. 1414-1415.) In terminating reunification services, the referee cited one factor only, i.e., she had not established an ability to provide a stable environment. (Id. at p. 1415.) Subsequently, the mother submitted a section 388 modification petition, with declarations stating she had maintained her own apartment since August 1990 and continued to visit with her son, who remained strongly bonded to her. (Id. at pp. 1415-1416.) A bonding study had found the child was strongly bonded to the mother and was at a significant risk of harm should he be permanently separated from his mother. A court-appointed psychologist had concluded that it was substantially probable that the child could be returned to the mother's custody within a month. On these facts, the appellate court reversed the juvenile court, concluding that the uncontradicted declarations incorporated with the mother's petition established "a strong prima facie showing of a favorable change in the single negative factor" (lack of stable living accommodations) on which the termination of reunification services had been based, "if not its complete elimination." (Jeremy W., at p. 1416.)
There are no comparable facts supporting Mother's petition in this case, and thus no prima facie showing entitling her to a hearing. DPSS did not acknowledge that Mother had fully complied with almost all of the components of her court-ordered case plan. In fact, DPSS believed Mother still needed to participate in a substance abuse treatment program, randomly drug test, after care services, a parenting education program, a domestic violence course, and individual therapy. While her certificate of completion suggested Mother was making changes through a 12-hour online substance abuse and parenting course, no declarations, additional reports of facts based on personal knowledge, or testimony was provided to support this picture. As the juvenile court noted, in "looking closer at the certificate of completion, . . . the description of the topics covered, there's virtually nothing with regards to substance abuse, one tiny component of 12 hours that talks about substance abuse related to parenting. That's not the same as doing anything to have changed the circumstances and participating in a substance abuse treatment program or the fact that, as minor's counsel does point out, one of the issues that we were dealing with substantially for mother was the fact of her noncompliance with testing orders."
Moreover, contrary to Mother's suggestion, Mother's burden went beyond showing changed circumstances: she also had to convince the court that reunification services were in the best interest of her child. "It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child." (Kimberly F., supra, 56 Cal.App.4th at p. 529; accord, Mickel O., supra, 197 Cal.App.4th at p. 615; see Angel B., supra, 97 Cal.App.4th at p. 465 [to rebut presumption that stability in existing placement is in the best interest of the child, parent must make some "factual showing that the best interests of the child would be served by modification"].)
We conclude Mother had not made a prima facie showing that N.A.'s best interest would be served by providing Mother additional reunification services and visitation. The juvenile court therefore did not abuse its discretion in summarily denying Mother's section 388 petition without a hearing.
C. The Order Terminating Parental Rights
In her brief, Mother makes no argument directly challenging the order terminating her parental rights. We consequently affirm that order.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur:
RAMIREZ
P. J. MILLER
J.