Opinion
2d Juv. No. B299659
01-21-2020
In re S.S., a Person Coming Under the Juvenile Court Law. VENTURA COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. S.H., Defendant and Appellant.
Patricia G. Bell, under appointment by the Court of Appeal, for Defendant and Appellant. Leroy Smith, County Counsel, Joseph K. Randazzo, Assistant County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J071765)
(Ventura County)
S.H. (mother) appeals the juvenile court's orders denying her petition to reinstate family reunification services (Welf. & Inst. Code, § 388) and terminating parental rights to her minor child S.S. with a permanent plan of adoption (§ 366.26). Mother contends the court erred in denying her section 388 petition without an evidentiary hearing. We affirm.
All statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL HISTORY
S.S. was born in September 2014. In March 2018, the Ventura County Human Services Agency (HSA) filed a section 300 petition as to S.S. after mother was arrested for child endangerment, being under the influence of a controlled substance while on probation, and possession of drug paraphernalia. The petition alleged that a gram of heroin, hypodermic needles, and other drug paraphernalia were all found within reach of S.S. and that mother had an unresolved history of abusing methamphetamine and heroin.
S.S.'s presumed father A.S. (father) is not a party to this appeal. --------
S.S. was ordered detained and was placed in foster care. Mother and father were each granted two weekly monitored visits. At the conclusion of the April 2018 jurisdiction and disposition hearing, S.S. was ordered removed and mother and father were granted reunification services with monitored visitation. Mother and father's case plans required them to, among other things, submit to random drug tests, refrain from using or possessing any drugs or alcohol, and attend AA/NA meeting at least three times a week. S.S. was subsequently placed with the maternal grandmother.
In its six-month review report, HSA recommended that reunification services be terminated for both parents and that the matter be set for a section 366.26 hearing. HSA reported that mother and father had not complied with any of the terms of their case plans. During the reunification period, mother had been arrested twice for being under the influence of a controlled substance and had recently been arrested for unlawfully driving a vehicle and possessing a controlled substance. She had also provided false information about her participation in AA/NA and missed 10 out of 11 drug tests; the one test she took was positive for methadone.
Mother set the matter for a contested hearing but did not attend that hearing. At the conclusion of the hearing, the court terminated services for both parents and set the matter for a section 366.26 hearing.
On November 29, 2018, mother absconded with S.S. from the maternal grandmother's house and took her to Arizona. A protective custody warrant was issued for S.S. and she was returned to Ventura County and placed in a confidential foster home. Parental visits were suspended.
In April 2019, S.S. was placed in Kern County with her parental grandparents. In its section 366.26 report, HSA recommended that parental rights be terminated with a permanent plan of adoption by the paternal grandparents. Both parents contested the recommendation and the matter was set for a contested hearing on July 29, 2019.
On July 24, 2019, mother filed a section 388 petition seeking the reinstatement of reunification services on the ground of changed circumstances. Mother alleged that she had moved to Tucson "to escape some of her local connections and to attempt to make another effort to deal with her substance [abuse]." For the past three months she had been participating in an outpatient methadone maintenance and intensive therapy program and submitted proof of her regular attendance at AA/NA meetings from January through June 2019. She had also completed two parenting classes and was currently working as a home health care aide. Mother offered that reinstating reunification services would be in S.S.'s best interests because the child "spent the critical 3½ years of her life in her mother's care," she was bonded to mother, and "the effects of failing to reunite with her mother will be felt for the rest of her life."
In opposing mother's section 388 petition, HSA noted among other things that although mother had offered evidence of her participation in an outpatient drug treatment program she "has provided no evidence of sobriety, any information about which step she is on in her NA/AA program, nor has she provided any evidence that she has a sponsor." On the issue of S.S.'s best interests, HSA submitted that "[t]hroughout the life of this case the mother has made minimal and fictitious attempts at participating in substance abuse treatment and has continued making wrong choices, including moving to another state during her reunification services and abducting [S.S.] with full knowledge of [S.S.'s] Court dependency. . . . [M]other is no closer to reunifying now than she was the day [S.S] was removed. . . . [S.S.] has had a very rough time in this system and is now in her fifth placement. As a result of these multiple moves and the mother not being consistent with her visitations, [S.S.] has experienced a lot of trauma. [S.S.] was making huge strides in her everyday life until the visit with her mother that occurred on 07/06/2019. Since that visit, she began wetting the bed, crying, and not being able to fall asleep by herself."
On July 26, 2019, the juvenile court summarily denied mother's section 388 petition. At the conclusion of the contested section 366.26 hearing, the court terminated parental rights with a permanent plan of adoption by the paternal grandparents.
DISCUSSION
Mother contends the juvenile court abused its discretion in denying her section 388 petition without a hearing. She claims there was sufficient evidence of changed circumstances and that the requested change (reinstatement of reunification services) would be in S.S.'s best interests. We are not persuaded.
"A juvenile court order may be changed, modified or set aside under section 388 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. [Citation.] A parent need only make a prima facie showing of these elements to trigger the right to a hearing on a section 388 petition and the petition should be liberally construed in favor of granting a hearing to consider the parent's request. [Citation.]" (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
To warrant relief under section 388, the change of circumstances or new evidence "must be of such significant nature that it requires a setting aside or modification of the challenged prior order." (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485; see In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.) When reunification services have been terminated and a section 366.26 hearing has already been set, a court assessing the child's best interests must recognize the focus of the case has shifted from the parents' interest in the care, custody, and companionship of the child to the needs of the child for permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The child's best interests "are not to further delay permanency and stability in favor of rewarding" the parent for his or her "hard work and efforts to reunify." (In re J.C. (2014) 226 Cal.App.4th 503, 527.) "A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The petitioner has the burden of proof by a preponderance of the evidence. (Cal. Rules of Court, rule 5.570(h)(1)(D).) In assessing the petition, the juvenile court may consider the entire history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189.)
Section 388 gives the court discretion whether to provide a hearing on a petition alleging changed circumstances. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413.) "[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." (In re Zachary G., supra, 77 Cal.App.4th at p. 806; see Cal. Rules of Court, rule 5.570(d)(1).) We review the denial of a section 388 petition for abuse of discretion. (In re S.R. (2009) 173 Cal.App.4th 864, 870.)
The court did not abuse its discretion in finding that mother had failed to provide prima facie evidence that her circumstances had changed and that she was capable of providing a stable, safe home environment for S.S. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) Although mother offered proof that she was in the early stages of rehabilitation, "'[c]hildhood does not wait for the parent to become adequate.' [Citation.]" (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) Delaying permanency for S.S. to see if mother would ever be able to provide a sober, stable home was not in the best interests of S.S., so the court did not err in summarily denying her section 388 petition. (See, e.g., In re Casey D., supra, 70 Cal.App.4th at pp. 48-49 [nine months of sobriety insufficient to warrant section 388 modification]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [seven months of sobriety since relapse, "while commendable, was nothing new"]; In re Angel B. (2002) 97 Cal.App.4th 454, 463 [parent's sobriety very brief compared to many years of addiction].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
GILBERT, P. J.
TANGEMAN, J.
Tari L. Cody, Judge
Superior Court County of Ventura
Patricia G. Bell, under appointment by the Court of Appeal, for Defendant and Appellant.
Leroy Smith, County Counsel, Joseph K. Randazzo, Assistant County Counsel, for Plaintiff and Respondent.