In re Abigail R.

Filed 10/25/06 In re Abigail R. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. Nancy C. Staggs, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant.

David A. Prentice, County Counsel, and Miranda Neal, Deputy County Counsel, for Plaintiff and Respondent.

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INTRODUCTION

Appellant, Elizabeth H., appeals from orders of the juvenile court rejecting her petition pursuant to Welfare and Institutions Code, section 388^[1] to modify earlier orders of the court denying her reunification services and terminating her parental rights pursuant to section 366.26. After consideration of appellant’s argument, we will affirm the juvenile court’s judgment.^[2]

FACTS AND PROCEEDINGS BELOW

On December 24, 2004, the Madera County Department of Social Services/Child Welfare Services (Department) received a referral that appellant tested positive for amphetamine upon the birth of her daughter, Alexis. On December 28, 2004, the Department filed a dependency petition alleging Alexis, born in December 2004, and Abigail, born in December 2003, came within the provisions of section 300, subdivision (b) because appellant tested positive for a high amount of methamphetamine upon Alexis’s birth, Alexis tested high for amphetamines and barbiturates upon her birth, appellant used methamphetamine two days prior to delivering Alexis, the children’s father uses and abuses methamphetamine, Abigail was in the same room as her father when he used methamphetamine, and appellant failed to get prenatal care during her pregnancy with Alexis.

Appellant admitted using a pure form of methamphetamine known as “ice” two weeks prior to delivery of Alexis. Because the concentration of methamphetamine was so high in her system, however, she must have used it closer to Alexis’s birth. Appellant admitted she did not receive prenatal care because she did not know she was pregnant. On December 29, 2004, the juvenile court found a prima facie showing had been made that both minors were described by section 300 and ordered their detention.

Between December 2004 and February 2005, appellant failed at least three drug tests. On February 18, 2005, the court conducted the jurisdiction hearing and sustained the petition. The social worker’s report prepared for the disposition hearing noted appellant was taking parenting classes and attending Narcotics Anonymous/Alcoholics Anonymous meetings. The social worker noted appellant and the children’s father had not begun to address their substance abuse issues. The mother tested positive for methamphetamine use four times between December 24, 2004, and February 22, 2005. On four other occasions during that time span, appellant failed to take drug tests as requested. The social worker recommended the parents be provided reunification services and the children be found dependents of the court.

During the March 16, 2005, disposition hearing, the parents both submitted on the social worker’s report and recommendation. The court adjudged the two minors as dependents of the court, finding the allegations in the petition true by clear and convincing evidence, and ordered reunification services for the parents. The parents were permitted visitation with the children according to the case plan. The case was set for a six-month review hearing.

A status review report prepared on August 1, 2005, indicated Abigail and Alexis had been placed with their paternal grandmother after spending nearly seven months in a foster home. Both children had special needs. Abigail was unable to independently walk at age one and Alexis was born positive for methamphetamine. Abigail appeared to need help in meeting developmental milestones.

The social worker reported appellant was on probation after having been incarcerated for most of the review period for prior drug-related felonies and probation violations. Appellant failed to comply with drug tests in April, May, and June of 2005. She failed to complete a substance abuse assessment. During the review period, appellant attended three visitations with her children. Appellant failed to attend in some cases because she was incarcerated. Other times, appellant simply failed to show up. Appellant had not made any progress in resolving the issues causing the Department’s intervention and had not provided verification of completion of any component to her case plan. The social worker concluded that both children would be at substantial risk if they were returned to their parents and there was no evidence to suggest another six months of services would lead to the return of the children.

After several continuances, the six-month review hearing was finally held on November 30, 2005. An addendum report prepared on September 22, 2005, noted both parents were arrested on August 11, 2005, for violating probation. Appellant had been incarcerated in the Madera County Jail from March 29, 2005, until April 22, 2005 and again from June 3, 2005, until July 11, 2005.

On November 30, 2005, the juvenile court held a contested six-month review hearing. The parents submitted the case on the social worker’s reports, which were admitted into evidence without objection. Neither parent attended the hearing. The court found that neither parent had made progress toward alleviating or mitigating the causes necessitating removal of the children from their parents’ care. The court found the children both faced a substantial risk of detriment if they were returned to their parents’ care. The court found by clear and convincing evidence that both parents failed to participate in court ordered treatment. The court ordered the termination of family reunification services and set the matter for a section 366.26 hearing.

The social worker’s report prepared for the section 366.26 hearing noted that Abigail was still developmentally behind. She showed signs of failure to thrive. Her speech and gross motor development were behind children of her chronological age. It was possible she was suffering the effects of fetal alcohol exposure. Alexis was developing normally. In February 2006, the paternal grandmother informed the Department that she was not going to adopt the minors and was about to move out of state. On March 2, 2006, the Department found prospective adoptive parents for the children.

The paternal grandmother reported that both parents visited the children for one hour a week except for those times the parents were incarcerated. In February and March 2006, appellant did visit her daughters once every other week with the assistance of her mother. The social worker noted a very weak parent/child relationship between appellant and Abigail, who saw appellant as someone familiar who could offer her affection. The social worker noted, however, that the relationship was not “one of sufficient strength to be described as a relationship between a parent and a child.”

The social worker opined that Abigail would not be harmed by severing her tenuous relationship with her mother. Due to appellant’s minimal contacts with Alexis, appellant did not have even a weak relationship with her. The prospective adoptive parents had experience working with special needs children. The prospective adoptive parents had been made aware of the children’s significant developmental challenges, but have not wavered in their commitment to a plan of permanency through adoption for both girls.

The social worker observed that both children were establishing bonds with the prospective adoptive parents and would benefit from adoption. The social worker recommended the parental rights of both parents be terminated and adoption ordered as the permanent plan.

On March 23, 2006, appellant filed a petition pursuant to section 388 to modify the court’s prior orders. Appellant alleged she was sober for seven months, in counseling, undergoing drug testing twice a week, and attending parenting classes. Appellant alleged it would be in her children’s best interests for her to retain custody because their most likely permanent living situation was with appellant now that she was off of drugs.

The juvenile court held combined section 388 and section 366.26 hearings on April 28, 2006. Appellant testified at the hearing that when she was arrested in August 2006, she remained in custody until November 14, 2006. On November 18, 2006, appellant entered a two-year inpatient treatment program in Los Angeles. Because appellant was suffering from asthma, she was released from the program after a month and a half. Appellant was doing well enough that her probation officer permitted her to go into an outpatient program while she was waiting to enter another inpatient program. Appellant receives individual counseling once every two weeks and group counseling three times per week. Appellant had a job as a waitress at a local country club.

Appellant’s plan was to live with her maternal grandmother. The girls would share their own bedroom. Appellant said she never used drugs when she was pregnant with Abigail.

Appellant’s probation officer, Edna Rivera, testified that appellant was following her drug program. Appellant started this program in May 2005. She had completed 11 months of an 18-month program. She had no positive drug tests. Rivera believed that if appellant continued on this course and continues the positive changes she has made in her life, her prospects for remaining drug free looked good. If appellant violates probation, however, she is facing a prison term of 16 months. A second probation officer testified that appellant was taking control of her life, going to parenting classes, and had “more probability of . . . succeeding.”

The juvenile court denied appellant’s section 388 petition. The court noted that with children under three years of age, the statutory scheme permits services for six months and this case was nearly 18 months along. The court noted that had appellant taken serious steps to control her addiction in 2005, the court could have extended services another six months.

The court found that Abigail’s health was tenuous and fragile, both emotionally and psychologically. She also suffers physical health and developmental problems. The court noted that parenting classes could not have addressed the stresses and strains of the problems Abigail faces. The court found it unfortunate that the paternal grandmother initially showed interest in adopting the children, and then left the state. The court stated it had to look to the best interests of the children. The court denied the section 388 petition, found the children adoptable, and terminated both parents’ parental rights.

APPELLANT’S SECTION 388 PETITION

Appellant argues the court abused its discretion by denying her section 388 petition. We disagree. It was appellant’s burden of proof to show there was new evidence or there were changed circumstances that made a change of the children’s placement in their best interest. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 317.) 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.) If the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) The petition must be liberally construed in favor of its sufficiency. (Ibid; see also Cal. Rules of Court, rule 1432(a)).

“The references in In re Marilyn H., supra, 5 Cal.4th at page 310, to a ‘prima facie’ showing is not an invitation to section 388 petitioners to play ‘hide the ball’ in pleading changed circumstances or new evidence. A ‘prima facie’ showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 719, fn. 6.) If a petitioner could get by with general, conclusory allegations, there would be no need for an initial determination by the juvenile court about whether an evidentiary hearing was warranted. In such circumstances, the decision to grant a hearing on a section 388 petition would be nothing more than a pointless formality.” (In re Edward H. (1996) 43 Cal.App.4th 584, 593.)

Likewise, the mandate for liberal construction of a section 388 petition does not entitle a petitioner to avoid describing the changed circumstances or new evidence. Section 388 and the pertinent rule of court (Cal. Rules of Court, rule 1432(a)(6)) require the petition allege changed circumstance or new evidence that requires changing a prior order. (In re Jasmon O., supra, 8 Cal.4th at pp. 398, 415.)

We agree with the juvenile court’s ruling that appellant failed to sustain her burden for a section 388 petition. Although appellant was finally beginning to deal with her drug dependency, she was failing drug tests during the early part of 2005 and violated the terms of her probation as late as August 2005. By her own admission, appellant remained in jail from August 2005 until midway through November 2005. Because of her incarcerations, she missed many scheduled visitations with her children.

Although appellant was finally taking her drug dependency seriously, she was not yet finished with her 18-month program. If appellant failed the program, or possibly violated other terms of her probation, she faced a 16-month prison term. Although appellant’s probation officers expressed optimism for appellant’s ability to successfully complete her drug treatment program, they both acknowledged that appellant would have to maintain her current positive course of conduct to achieve that goal. As late as August 2005, appellant had violated a term or terms of her probation and was incarcerated for two months. Appellant’s circumstances still were not completely stable.

Equally important, appellant failed to state any evidence or fact in the petition establishing it would be in the best interests of her children for her to have custody. Appellant only set forth a general and conclusory allegation that she was drug free and that she was the most likely to provide permanency in her children’s living situation. Even construing appellant’s section 388 petition liberally, we cannot find she made a prima facie showing to the trial court that her changed circumstances were in the best interests of her children. Appellant failed to establish a significant bond with either child even though the proceedings took place over nearly 18 months. Appellant argues that this factor should not be considered as dispositive because of the progress she made in her drug treatment. This argument, however, ignores the children’s need for stability and care.

The parent bears the burden of showing in a section 388 petition both a change of circumstance and that the proposed change is in the best interests of the child. A petition only alleging changing circumstances, which would lead to a delay in the selection of a permanent home, to see if a parent could eventually reunify with a child 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.)

To understand the element of best interests in the context of a section 388 motion brought, as in this case, shortly before the section 366.26 hearing, we look to the Supreme Court’s decision in In re Stephanie M.. At this point, a parent’s interest in the care, custody, and companionship of his or her children is no longer paramount. Rather, the focus shifts once reunification efforts end to the children’s needs for permanency and stability; there is in fact a rebuttable presumption that continued out-of-home care is in the best interests of the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) A court conducting a modification hearing 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. (Ibid.) Notably, both here and in the juvenile court, appellant ignores the children’s need for permanence and stability in advocating her position. Neither the juvenile nor this court, however, may do so.

DISPOSITION

The order denying appellant’s section 388 petition is affirmed. There being no separate challenge to the court’s selection of permanent plans for the children, the court’s section 366.26 findings and orders are affirmed as well.

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^*Before Harris, Acting P.J., Wiseman, J., and Levy, J.

^[1] Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.

^[2] Only the mother has filed an appeal in this case. The father’s parental rights were also terminated.