Opinion
H036741
10-28-2011
In re J.Y., a Person Coming Under theJuvenile Court Law. SANTA CRUZ HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. T.P., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Cruz County Super. Ct. No. DP002321)
1. Introduction
T.P. (mother) appeals from the termination of her parental rights to J.Y. at a Welfare and Institutions Code section 366.26 hearing. J.Y., born in July 2010, is mother's seventh child to have survived birth, and her sixth baby to have been born with cocaine in her or his system, a pattern that began with mother's first child in 1988. On appeal mother challenges the summary denial of her section 388 petition that requested the trial court to set aside an order bypassing reunification services and scheduling a permanency planning hearing. Her petition asserted, "Mother believes that she has turned her life around in the right direction and is ready to raise her daughter and that it is in the best interest of [J.Y.] to be part of this new life of her mother." According to mother, her new life had begun seven months earlier after giving birth to J.Y. The trial court summarily denied the section 388 petition without a hearing, finding that the proposed change of order did not promote the best interests of the child. For the reasons stated below, we will affirm the judgment, finding no abuse of discretion.
We would use the family's first names instead of initials for ease of reference, except that some of the names are unusual enough that they would provide inadequate privacy protection.
Unspecified section references are to the Welfare and Institutions Code.
2. Prior Dependency Proceedings
Mother was born in 1970. In turn, she gave birth to A.W. (1988), J.T. (1991), D.W. (1994), I.W. (1995, along with a twin who died at birth), Cat. W. (2005, along with a twin who died at birth), and Car. W. (2007). D.W., I.W., and Cat. W. were born prematurely. Each child but J.T. was born with cocaine in his and her system. D.W. and I.W. also tested positive for marijuana. I.W. and Car. W. also tested positive for morphine.
In March 1994, A.W., J.T., and D.W. were declared dependents of the Santa Cruz County Superior Court after D.W. was born prematurely at home with drugs in his system. The family received 12 months of family maintenance services and the dependency was dismissed in April 1995.
In the trial court the Santa Cruz Human Services Department (the Department) requested judicial notice of the prior dependency actions, providing documentation for all children except I.W. The Department also requested judicial notice of three criminal proceedings against mother. The trial court granted the Department's requests for judicial notice.
In September 1995, A.W., J.T., D.W., and I.W. were declared dependents after I.W. was born with drugs in his system. Reunification services were terminated in September 1996 after 12 months due to mother's lack of participation. During that time mother left a residential drug program after three days and failed to reenter and complete a drug and alcohol program. Mother's parental rights were terminated in May 1997 and all four children were eventually adopted by relatives.
In August 2005, Cat. W. was declared a dependent child one month after she was born with drugs in her system. The court authorized a bypass of reunification services based on mother's past failures at reunifying with her children. Mother stated she was homeless, unemployed, using drugs, had no plans to provide for the infant and was undecided whether she wanted to raise her. In May 2006, mother's parental rights were terminated and the child was later adopted by a nonrelative.
In August 2006, mother was convicted by guilty plea of possessing a controlled substance. Among her probation conditions was completing a Proposition 36 drug program. In February 2007 probation was reinstated after she admitted violating probation. In May 2007 she admitted a second violation of probation.
In November 2007, Car. W. was declared a dependent child three months after she was born with drugs in her system. The court authorized a bypass of reunification services based on mother's past failures at reunifying with her children. Mother was not interested in holding her baby. She wanted to get out of the hospital and get on with her life. In May 2008, mother's parental rights were terminated and the child was later adopted by a nonrelative.
In July 2008, mother was convicted by guilty plea of possessing a controlled substance. Among her probation conditions was completing a Proposition 36 drug program. In February 2009 probation was reinstated after she admitted violating probation.
In July 2010, mother admitted violating probation in her earlier case. Due to her pregnancy, a 120-day jail sentence was stayed until September 18, 2010.
3. Current Proceedings
A dependency petition was filed in July 2010, three days after mother gave birth to J.Y., who was determined to have cocaine, marijuana, and opiates in her system. On August 2, 2010, the juvenile court ordered J.Y. detained.
Mother completed a drug and alcohol assessment and entered a perinatal center on August 18, 2010. On intake her rapid test result was presumptively positive for cocaine, marijuana, opiates, and benzodiazepine, though she told the social worker she last used cocaine in March 2010.
On September 10, 2010, the criminal court modified mother's probation to allow her to serve 120 days in a perinatal program.
After a contested jurisdictional hearing on October 8, 2010, the court declared J.Y. a dependent of the court, ordered a bypass of reunification services, and scheduled a section 366.26 selection and implementation hearing on February 3, 2011. Bypass was based on the following findings. (1) The court had previously terminated reunification services for a sibling or half-sibling because mother had failed to reunify. (2) The court had previously terminated parental rights for a sibling or half-sibling. (3) Mother did not subsequently make a reasonable effort to treat the problems that led to removal of that sibling or half-sibling. (4) Mother has a history of extensive, abusive, and chronic drug use. (5) She has either resisted prior court-ordered treatment during a three-year period prior to the filing of the petition or has failed or refused to comply with a treatment program on at least two prior occasions.
On February 3, 2011, the Department filed a report in anticipation of the section 366.26 hearing. At a hearing on the same date, mother asked for a settlement conference and a contested section 366.26 hearing. A settlement conference was scheduled for March 8, 2011 and a contested hearing for March 30, 2011.
The Department's report included the following statements. J.Y.'s father is an ex-boyfriend of mother, with whom she had not kept up after a brief encounter. While pregnant with J.Y., mother used cocaine, marijuana, and opiates. She did not receive any prenatal care. Mother has established "a strong 'visiting relationship' with" J.Y., but not a parental relationship. During one visit mother showed up with her sister, and was confrontational when informed that the visiting time was for herself and her child only. She made several angry and snide comments to the social worker during this visit. Due to mother's "long history of substance abuse, homelessness and family instability she has not been able to provide for [J.Y.]'s day to day needs for consistency, stability and nurturance." Mother did not bring J.Y. diapers, formula, toys, or books during their visits. "Their relationship is based on playing, and holding [J.Y.] throughout the visit. It does not consist of the daily care of feeding, changing, structure and stimulation [J.Y.] needs for this crucial time of development." "[T]he minor would not benefit from the possibility of renewing parent/child relationships with her parents." J.Y. "has only been cared for by her prospective adoptive caregiver." She "has adjusted well to her [c]aregiver. She appears happy and content with her [c]aregiver." "The prospective adoptive parents stated they want to raise [J.Y.] in a safe and loving environment. [They] have been caring for [J.Y.] for almost six months, since her birth . . . ." The prospective parents are maternal relatives, both employed, and have been together for over 20 years.
On March 8, the case did not settle and mother filed a section 388 petition, asking the court to set aside its October 8, 2010 order setting a section 366.26 hearing and, instead, to order family reunification services. Mother asserted the following changed circumstances. She had been clean and sober since August 18, 2010. She completed eight classes of Positive Discipline for Parents in Recovery, 12 hours of Options for Recovery Birth Parent Training, a 90-day residential treatment program and 90 more days of the program's after-care, and probation in a criminal case. She had regularly attended NA/AA meetings and consistently visited with J.Y. She enrolled as a full-time college student. Mother answered the JV-180 form question, "Why would the changes you are requesting be better for the child?" with "It is the best interest of the child to be raised by her loving mother, who has turned her life in the right direction."
On March 14, 2011, the court summarily denied the section 388 petition without a hearing, finding that the proposed change of order does not promote the best interests of the child. On the JV-183 form, the court did not check the box indicating that the petition "does not state new evidence or a change of circumstances." On March 30, 2011, at the contested section 366.26 hearing, the court commended mother's "recent efforts to make dramatic changes," but was not "in a position to hold onto the hope that Mother has in order to hold up the future that [J.Y.] has," and so terminated mother's parental rights and selected adoption as the permanent plan.
Department asserts that "the trial court found that [mother] had demonstrated changing but not changed circumstances." We do not interpret this form the same way.
4. Standard Of Review
On appeal, we review the summary denial of a section 388 petition for an abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) "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.]' " (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) "A decision that rests on an error of law constitutes an abuse of discretion." (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1061.)
5. Reviewing Section 388 Petitions
A parent seeking to change or set aside any dependency court order may present a petition under section 388, subdivision (a) alleging "change of circumstance or new evidence." The dependency court "shall order that a hearing be held" "[i]f it appears that the best interests of the child may be promoted by the proposed change of order." (§ 388, subd. (d).) "A petition for modification must be liberally construed in favor of its sufficiency." (Cal. Rules of Court, rule 5.570(a).)
"The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) The showing includes both that circumstances have changed and that the proposed change is in the child's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806-807; cf. In re Kimberly F. (1997) 56 Cal.App.4th 519, 529 ["The parent must show that the undoing of the prior order would be in the best interests of the child."]; In re Jasmon O., supra, 8 Cal.4th 398, 415.)
The nature of the prima facie showing has been characterized in various ways, both as something that "would" require changing a prior court order (In re Zachary G., supra, 77 Cal.App.4th 799, 806 ["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."]; In re Jasmon O., supra, 8 Cal.4th 398, 415 ["As one court has explained, 'if the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.' "]) and as something that "might" require changing an order (In re Angel B. (2002) 97 Cal.App.4th 454, 461 (Angel) ["if a parent makes a prima facie showing of a change of circumstance such that a proposed change in custody might be in the child's best interest, then the juvenile court must hold a hearing"]; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414 ["a hearing may be denied only if the application fails to reveal any change of circumstance or new evidence which might require a change of order"].) The petitioner "needed only to show 'probable cause'; she was not required to establish a probability of prevailing on her petition." (In re Jeremy W., supra, 3 Cal.App.4th at p. 1414.)
A showing of changed circumstances necessarily requires consideration of the circumstances existing at the time the challenged order was made. The court may consider the entire factual and procedural history of the case (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189) as established by undisputed facts in the court's files. (Angel, supra, 97 Cal.App.4th 454, 461.) A change in a parent's circumstances may be enough to warrant a hearing. (In re Daijah T. (2000) 83 Cal.App.4th 666, 674.)
6. There Was No Abuse Of Discretion
Though mother does not claim that the trial court erred on October 8, 2010, when it denied her reunification services under section 361.5 and scheduled a section 366.26 hearing, she argues on appeal that by March 8, 2011, five months later, when she filed her section 388 petition, circumstances had changed sufficiently to require the trial court to set aside its orders of October 8, 2010. She asserts that her circumstances had begun to change before October 8, namely on August 18, 2010, when she tested presumptively positive for cocaine, marijuana, opiates, and benzodiazepine, upon entering a 90-day residential drug treatment program that she later completed successfully.
To evaluate her position, we first identify the kinds of circumstances that warrant the exceptional step of bypassing reunification services to a parent. "The purpose of section 361.5 was explained in In re Baby Boy H. [(1998)] 63 Cal.App.4th [470] at page 478. 'As a general rule, reunification services are offered to parents whose children are removed from their custody in an effort to eliminate the conditions leading to loss of custody and facilitate reunification of parent and child. This furthers the goal of preservation of family, whenever possible. [Citation.] Nevertheless, as evidenced by section 361.5, subdivision (b), the Legislature recognizes that it may be fruitless to provide reunification services under certain circumstances. [Citation.] Once it is determined one of the situations outlined in subdivision (b) applies, the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. [Citation.]' " (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744 (Renee J.).)
The dependency court found applicable each of the following three quoted subdivisions of section 361.5. "(b) Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following:
"[¶] . . . [¶]
"(10) That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian.
"(11) That the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from the parent.
"[¶] . . . [¶]
"(13) That the parent or guardian of the child has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court's attention, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358.1 on at least two prior occasions, even though the programs identified were available and accessible."
" '[C]ourt-ordered treatment' " includes criminal proceedings as well as dependency proceedings. (Cf. D.B. v. Superior Court (2009) 171 Cal.App.4th 197, 204.)
In addition to the three situations quoted in the text, section 361.5, subdivision (b) authorizes bypassing reunification services in a dozen other situations. "(1) That the whereabouts of the parent or guardian is unknown. . . .
"(2) That the parent or guardian is suffering from a mental disability that is described in Chapter 2 (commencing with Section 7820) of Part 4 of Division 12 of the Family Code and that renders him or her incapable of utilizing those services.
"(3) That the child or a sibling of the child has been previously adjudicated a dependent pursuant to any subdivision of Section 300 as a result of physical or sexual abuse, that following that adjudication the child had been removed from the custody of his or her parent or guardian pursuant to Section 361, that the child has been returned to the custody of the parent or guardian from whom the child had been taken originally, and that the child is being removed pursuant to Section 361, due to additional physical or sexual abuse.
"(4) That the parent or guardian of the child has caused the death of another child through abuse or neglect.
"(5) That the child was brought within the jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of that parent or guardian.
"(6) That the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half sibling by a parent or guardian, as defined in this subdivision, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian.
"[¶] . . . [¶]
"(7) That the parent is not receiving reunification services for a sibling or a half sibling of the child pursuant to paragraph (3), (5), or (6).
"(8) That the child was conceived by means of the commission of an offense listed in Section 288 or 288.5 of the Penal Code, or by an act committed outside of this state that, if committed in this state, would constitute one of those offenses. This paragraph only applies to the parent who committed the offense or act.
"(9) That the child has been found to be a child described in subdivision (g) of Section 300, that the parent or guardian of the child willfully abandoned the child, and the court finds that the abandonment itself constituted a serious danger to the child; or that the parent or other person having custody of the child voluntarily surrendered physical custody of the child pursuant to Section 1255.7 of the Health and Safety Code. . . .
"(10) [¶] . . . [¶]
"(12) That the parent or guardian of the child has been convicted of a violent felony, as defined in subdivision (c) of Section 667.5 of the Penal Code.
"(13) [¶] . . . [¶]
"(14) That the parent or guardian of the child has advised the court that he or she is not interested in receiving family maintenance or family reunification services or having the child returned to or placed in his or her custody and does not wish to receive family maintenance or reunification services.
"[¶] . . . [¶]
"(15) That the parent or guardian has on one or more occasions willfully abducted the child or child's sibling or half sibling from his or her placement and refused to disclose the child's or child's sibling's or half sibling's whereabouts, refused to return physical custody of the child or child's sibling or half sibling to his or her placement, or refused to return physical custody of the child or child's sibling or half sibling to the social worker."
Mother sought to establish that, since August 18, 2010, she had been making reasonable efforts to overcome her drug addiction. As the trial court did not find insufficient her allegations of changed circumstances, we will focus on whether mother made a prima facie showing, in her words, that "providing Mother reunification services and the opportunity to reunify with [J.Y.] might be in the child's best interest."
Mother relies on this passage in Angel, supra, 97 Cal.App.4th 454, "Although the specific factors a court must consider vary with each case, each child's best interests would necessarily involve eliminating the specific factors that required placement outside the parent's home [citation], here, Mother's drug addiction." (Id. at pp. 463-464.) The unstated premise of this passage is that reunification should be the primary objective of all dependency proceedings. Mother asserts that "the overriding principle of juvenile dependency court law [is] that families should be preserved when possible." While this general principle is valid in many circumstances, it does not apply in those exceptional circumstances that authorize bypassing reunification services.
Of course we acknowledge the general statement of legislative intent in section 202, subdivision (a): "The purpose of this chapter is to provide for the protection and safety of the public and each minor under the jurisdiction of the juvenile court and to preserve and strengthen the minor's family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare or for the safety and protection of the public. If removal of a minor is determined by the juvenile court to be necessary, reunification of the minor with his or her family shall be a primary objective." (Our emphasis.)
But the legislature's intent is also reflected in its enactment of section 361.5 and its identification of 15 different sets of circumstances (described in fn. 5, ante and accompanying text) in which reunification, far from being the primary objective, may be bypassed entirely. In re Allison J. (2010) 190 Cal.App.4th 1106 explained, "When the court determines a bypass provision applies, the general rule favoring reunification is replaced with a legislative presumption that reunification services would be ' "an unwise use of governmental resources.' " (Id. at p. 1112.) In the specified circumstances, "the bypass provisions of section 361.5 protect the child, promote the child's permanency and stability, and help focus limited resources where they can best effect the goals of child protection and family reunification." (In re Adrianna P. (2008) 166 Cal.App.4th 44, 59.) In other words, the general goal of maximizing reunification of families in California can best be served by targeting the families most likely to benefit from reunification services and not offering them indiscriminately to all.
Bypass is not mandatory in all these situations if reunification is in the child's best interest. Section 361.5, subdivision (c) provides in part: "The court shall not order reunification for a parent or guardian described in paragraph (3), (4), (6), (7), (8), (9), (10), (11), (12), (13), (14), or (15) of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child."
While family reunification is "a primary objective" of the dependency statutes, "in addition to family preservation and reunification where possible, the primary goal of the dependency statutes is to obtain stability and permanency for children who will not return to their natural parents. The clear legislative intent is that 'minors who are adoptable will no longer have to wait months and often years for the opportunity to be placed with an appropriate family on a permanent basis.' (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 247.) It is also often stressed that '[t]he reality is that childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by someone[] at the time the child needs it, not when the parent is ready to give it.' (In re Debra M. (1987) 189 Cal.App.3d 1032, 1038.)" (Arlena M. v. Superior Court (2004) 121 Cal.App.4th 566, 572.)
Moreover, even when bypass of reunification is not warranted, the Legislature has identified prompt permanent placement as a particular need of infants who are removed from parental custody. "At the same time that it enacted [section 361.5] subdivision (b)(10), . . . , the Legislature shortened from 12 months to six the period for provision of reunification services in the case of a child who was under age three at the time of removal from the physical custody of the parent. (§ 361.5, subd. (a)(2), added by Stats.1996, ch. 1083, § 2.7.) One might thus characterize both of these amendments as aimed at expediting the dependency process in order to facilitate the placement of minors in stable, permanent homes, particularly in the cases of the youngest children and those least likely to benefit from reunification services." (Renee J., supra, 26 Cal.4th 735, 745.)
The Supreme Court looked more closely at the same legislation in In re Tonya M. (2007) 42 Cal.4th 836 at pages 846 and 847. "The language at issue in section 366.21, subdivision (e) was added by Assembly Bill No. 1524 (1995-1996 Reg. Sess.). Existing law failed to 'differentiate between the status needs of the very young child with limited parental relationship and that of the older child who has more of an ongoing parent-child and community relationship. As a result, infants and toddlers [had to] remain in foster care for at least one year, even if the parents [made] no concerted effort to re-unify.' (Assem. Com. on Appropriations, Analysis of Assem. Bill No. 1524 (1995-1996 Reg. Sess.) as amended Jan. 22, 1996, p. 1.) Moreover, '[m]ost cases receive[d] re-unification services for the maximum 18 months.' (Assem. Com. on Human Services, 3d reading analysis of Assem. Bill No. 1524 (1995-1996 Reg. Sess.) as amended Jan. 19, 1996, p. 1.) A central purpose of Assembly Bill No. 1524 was to establish a second, expedited track for children under three years of age. As the bill's sponsor, the California Department of Social Services, had argued, 'very young children entering the public foster care system require a more timely resolution of a permanent plan because of their vulnerable stage of development. [The sponsor] believes that, given the unique developmental needs of infants and toddlers, moving to permanence more quickly is critical.' (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 1524 (1995-1996 Reg. Sess.) as amended Aug. 6, 1996, p. 4.) While it does not appear the Legislature considered the precise ambiguity this case illuminates, the legislative recognition that time is of the essence, most especially for the very young, indicates the statute should be read in favor of promoting prompt rather than delayed resolutions." (Fn. omitted.)
The issue in Tonya M., supra, 42 Cal.4th 836 was essentially how far into the future a dependency court should look under section 366.21, subdivision (e) when deciding at a six-month review hearing whether to continue or terminate reunification services. That section was amended by the same legislation that enacted section 361.5. (Id. at p. 840.)
In other words, the Legislature has acknowledged in section 361.5, subdivision (a) that the best interests of an infant removed from parental custody at birth, as was J.Y., may differ from an older child who has been raised by that parent. Given their general developmental needs, the very young have a more pressing need for a permanent plan. In section 361.5, subdivision (b), the Legislature has acknowledged that reunification is usually not in the best interests of a child, very young or not, whose mother (1) failed in reunification efforts with four half-siblings, (2) had her parental rights terminated to those four children, as well as two more half-siblings, (3) continued to use cocaine and other drugs while pregnant in 2010, as she had consistently over 22 years, and (4) failed to complete court-ordered drug treatment programs.
Having established that in J.Y.'s circumstances a prompt permanent placement is more imperative than unifying her with her birth mother, we return to the question whether mother presented a prima facie showing that it is in J.Y.'s best interests, not mother's, to defer imminent permanent planning in order to offer mother reunification services for up to six months.
We consider the facts of Angel, supra, 97 Cal.App.4th 454 to be comparable. The mother in that case had a 22-year history of drug abuse, having failed several times to rehabilitate herself. (Id. at p. 459.) By the time her daughter was born with cocaine and amphetamines in her system, the mother had already failed to reunify with and lost custody of her son, who had been born exposed to methamphetamines and amphetamines. (Ibid.) The court ordered a bypass of reunification with her daughter. (Ibid.) The mother filed a section 388 petition alleging she had "enrolled in a residential drug treatment program, consistently tested clean for four months, completed various classes, and even obtained employment. She had regular visits with Angel, which went well." (Ibid.)
The appellate court found no abuse of discretion in the summary denial of the mother's section 388 petition. (Angel, supra, 97 Cal.App.4th at p. 462.) The court observed, "Here, there was no evidence that Mother was ready to assume custody of Angel or provide suitable care for her; while she had completed the drug program, the time she had been sober was very brief compared to her many years of drug addiction (a concern expressed by the social worker), and in the past she had been unable to remain sober even when the stakes involved were the loss of her other child. Nor was there evidence that she had a housing situation suitable for Angel, or any arrangements for child care while she worked." (Id. at p. 463.) "As noted above, there 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." (Id. at p. 465.)
Almost all these observations apply in our case, except that mother's situation is more extreme, as she has already lost parental rights to six children, five of whom, like J.Y., were born with cocaine in their systems. Mother may seek to distinguish Angel on the basis that she has been sober for seven months, not four. But sobriety is not the sine qua non of good parenting. Providing suitable care and housing are also important. The section 388 petition was summarily denied when J.Y. was seven and one-half months old, two weeks in advance of the scheduled section 366.26 hearing. We conclude that there was no abuse of discretion in the trial court finding that mother did not present a prima facie showing that it was in the best interests of J.Y. to defer her imminent permanency planning hearing.
7. Disposition
The judgment is affirmed.
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Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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MIHARA, ACTING P.J.
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DUFFY, J.