In re Esther O.
Filed 3/26/13 In re Esther O. CA2/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
In re
ESTHER O., a Person Coming Under the Juvenile Court Law.
B243084
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Respondent,
v.
LORENA G.,
Petitioner and Appellant.
(Los Angeles
County
Super. Ct.
No. CK74921)
APPEAL from
an order of the Superior Court
of
County.
Stephen Marpet, Juvenile Court Commissioner. Affirmed.
Ernesto Paz Rey, under appointment
by the Court of Appeal, for Respondent and Appellant.
John F. Krattli, County Counsel,
James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy County
Counsel, for Petitioner and Respondent.
_________________________________
SUMMARY
Lorena G.
(“Motherâ€), the mother of now four-year-old Esther O. (“Estherâ€), appeals from
the juvenile court’s order of June 27, 2012, summarily denying her petition
filed the same day under Welfare and Institutions Code
section 388, seeking to have her reunification
services reinstated, to vacate the section 366.26 hearing, and to be
granted custody of Esther. We affirm.
STATEMENT
OF FACTS AND PROCEDURE
On October 8, 2008, the
Family Services (“DCFSâ€) filed a section 300 petition (“Petitionâ€) on
behalf of Esther, Mother’s then one-week-old daughter. In count b-1, the Petition alleged that at
Esther’s birth on October 1, 2008,
both Esther and Mother tested positive for amphetamine and methamphetamine and
that Esther’s father, Ruben O. (“Fatherâ€), failed to protect Esther when he
knew of Mother’s drug use. In count b-2,
the Petition alleged that Mother had a history of drug abuse and was a current
user of cocaine, amphetamine and methamphetamine, having tested positive in May
and August 2008.
DCFS filed
a Detention Report on October 8, 2008
(“Detention Reportâ€), showing that Esther was placed with foster parents. The Detention Report stated that a DCFS social
worker interviewed Mother who said that she had a tooth ache, was given cocaine
by a friend, and only used a small amount on her tooth to numb the pain. Mother stated that she never used drugs prior
to her pregnancy and admitted to using cocaine five times during her
pregnancy—once before she knew she was pregnant and four times after she knew
she was pregnant to treat her tooth pain.
Mother stated that she was not an addict and that she would do anything
DCFS asked to regain custody of Esther.
According
to the Detention Report, Mother was offered inpatient drug
stating that she needed to work to provide for her four other children who
resided in Mexico with maternal grandmother.
The report also stated that Mother and Father resided in the same
home. Mother stated that if DCFS was not
willing to return Esther to her, Esther should be given to Father and Mother
would leave the home, and Father likewise stated that Mother could leave the
home and Esther could be given to him.
At the October 8, 2008 detention hearing,
the juvenile court found that a prima facie showing for detention had been
made. The court ordered monitored
visitation and reunification services for Mother and Father once they contacted
DCFS.
On November 10, 2008, DCFS filed a First Amended Petition,
adding an allegation that Father had a prior arrest for
resembling methamphetamine.
At a Pretrial Resolution Conference
on December 8, 2008, the
juvenile court sustained the First Amended Petition as amended and declared
Esther a dependent of the court under section 300, subdivision (b). The court ordered monitored visitation and
reunification services for Mother, including drug and alcohol programs and
individual counseling. The juvenile
court scheduled a six-month review hearing under section 266.21, subdivision
(e) in June 2009.
In January, February and March
2009, the juvenile court in its minute orders acknowledged that Mother had
three months of sobriety and participation in a drug court program. In April 2009, the juvenile court in its
minute order noted that Mother was terminated from the drug court program.
On June 8, 2009, DCFS filed a
Status Review Report, noting that Mother enrolled in the drug court program on
October 14, 2008 but was discharged on April 2, 2009 after testing positive for
narcotics. Mother then enrolled in another
substance abuse treatment program on May 4, 2009 and had tested negative for
drugs at the new program. According to
the Status Review Report, Mother visited Esther on a weekly basis and acted in
an appropriate manner during the visits.
At the six-month review hearing on
June 8, 2009, the juvenile court found Mother in partial compliance and set the
matter for a 12-month review.
On September 14, 2009, DCFS filed
an Interim Review Report, stating that mother was testing negative for drugs
and was continuing to receive services at the second drug abuse treatment
program. The report noted that because
of Esther’s spica cast,
name="_ftnref2" title="">
Mother and Father preferred visitation only once a week while Esther was in
foster placement in order to not move or transport Esther needlessly and that
Mother and Father agreed to visit Esther at her placement, once she was placed
with a relative, to alleviate the need to transport Esther.
On December 7, 2009, DCFS filed a
Status Review Report, reporting that Mother continued to test negative for
drugs, continued to participate in services and had completed individual
counseling, substance abuse treatment and parent education. It also reported that Mother’s visitation had
been liberalized to unmonitored visitation beginning in September 2009 and
overnight visitation beginning in October 2009.
The report also stated that Father had been arrested and sentenced to
six months in jail for failure to appear and having an existing warrant and
noted that Father faced the possibility of deportation due to his undocumented
status and criminal history. DCFS
recommended continued family reunification services for Father and that Esther
be released to Mother’s care.
At the 12-month review hearing on
December 7, 2009, the juvenile court
found Mother in compliance and placed Esther in Mother’s home under DCFS
supervision and ordered family maintenance
services for them. The matter was
set for a section 364 review on April 2, 2010.
On April 2, 2010, DCFS filed a
Status Review Report, stating that DCFS received numerous anonymous reports
regarding Mother and as a precaution DCFS home visits were unannounced. The report stated that on December 9,
2009—two days after the juvenile court’s home-of-Mother order—it received an
anonymous call alleging that Mother continued to use drugs and that Mother had
an unidentified male drug dealer living in the home and, because the DCFS
social worker informed Mother when he would be arriving at the home, the male
would leave prior to the visit. In
response to the referral, DCFS social worker visited the home and found a glass
pipe with a white crystal like residue which Mother said belonged to a woman to
whom she had rented a room for a short time but who had moved out. Mother tested negative for drugs on that day.
The report stated that Mother
continued to test negative for drugs, but did have a missed test in February
2010 which Mother said was due to having her purse and testing identification
stolen.
The report indicated that on
December 29, 2010, DCFS received an anonymous call stating that Mother was
residing with an unidentified male named “El Kikis†and Mother was selling
drugs from her home, that Mother had a video camera that allowed her to see
when a DCFS social work approached outside the home, and that Mother had sold
drugs to caller’s son. During a visit
from a DCFS social worker in response to referral, Mother stated that El Kikis
was a family friend and mechanic helping her with Father’s car, that neither of
them were drug dealers and that she was tired of neighbors and family alleging
that she was engaged in illegal activity.
The social worker observed that Esther looked to be clean, appropriately
clothed and without any bruises.
The report stated that on February
5, 2010, DCFS received an anonymous call stating that Mother was engaged in an
altercation with El Kikis in the home and the caller was concerned for Esther’s
safety and well-being. A DCFS social
worker visited the home in response to the referral and spoke to Mother who
stated she had just returned home and her stereo and other items were
missing. Mother told the social worker
that on February 3, 2010, she had an argument with El Kikis about use of
Father’s car. The social worker observed
that Esther did not have any visible bruises and appeared appropriately
dressed. The report noted that Mother
had allowed the social worker to walk through the home on numerous occasions
and the social worker had not found any reason to suspect child safety issues.
At the April 2, 2010 section 364
hearing, the juvenile court continued jurisdiction and family maintenance
services and set the matter for another section 364 hearing on June 7, 2010.
On May 6,
2010, DCFS filed a section 342-Subsequent Petition, alleging that on or about
May 3, 2010, Mother was arrested, methamphetamine and drug pipes were found in
Esther’s home, and Mother allowed an unrelated adult who engaged in drug
trafficking and abused drugs to reside in Esther’s home. The petition also alleged, among other
things, that the home was filthy and unsanitary, with roach infestation in the
home, maggot infestation in Esther’s clothes, odor of sewage and rotten food.
A May 6, 2010 Detention Report,
reported that DCFS received a referral on May 3, 2010, after Mother was
arrested for severe neglect and drug-related charges. According to the report, when interviewed by
a DCFS social worker, Mother denied abusing drugs. When asked about 10 empty little bags with
residue of what appeared to be drugs spread around the floor of her home and
other drug paraphernalia found by sheriff deputies, Mother denied that they
were hers. When asked about the sheriff
deputies’ observations—that the home was filthy, the kitchen sink was filled
with dirty dishes and rotting food piled high, there was no food for Esther in
the refrigerator and what food there was was rotten, there was a roach
infestation, maggots in piles of Esther’s clothing, and Esther’s diaper bag
contained rotting food—Mother stated that she was sick and could not move, or
did not respond. When asked about a male
roommate, Mother stated that she did not know he was using drugs or sold drugs
when he moved in. Mother cried and
stated she wanted Esther back.
At the May 6, 2010 detention hearing, the juvenile court found
that a prima facie showing for detention had been made. The court ordered monitored visitation at the
DCFS office.
In a June 7, 2010
Jurisdiction/Disposition report, DCFS reported that Mother claimed that the
drugs found by sheriff deputies did not belong to her or her male roommate, but
were given to deputies by a paternal cousin of Esther’s who also ransacked her
home in an attempt to sabotage Mother.
Mother stated that the police were lying as to the conditions in the
home, that her male roommate stated the drugs belonged to him so as not to get
Mother in trouble and he did not actually live in the home but was just there
often, and that Mother did not leave the male roommate alone with Esther and
that she paid paternal aunt whenever she needed childcare.
Paternal cousin denied ransacking
Mother’s home. Paternal cousin lived
next door to Mother and stated that he called law enforcement to report that
Esther had been left unattended after Mother’s male roommate brought Esther
over and asked paternal cousin to watch her and, when paternal cousin said he
could not watch her, put Esther on a chair outside of Mother’s home and left.
In a Last Minute Information For
the Court form filed on June 7, 2010, DCFS reported that Mother was in
sheriff’s custody after being arrested on May 25, 2010 for assault with a
deadly weapon and for making criminal threats.
According to the police report that was attached to the form, Mother
told a paternal cousin that he was going to pay for having Esther taken away
and physically assaulted paternal cousin’s mother.
In a July
14, 2010 Interim Review Report, DCFS reported that Mother had been released
from immigration custody and had attended a one-and-one-half hour orientation
on proper parenting techniques and the dependency court while in custody. The report also stated that Mother had missed
her initial scheduled visit with Esther on July 3, 2010.
At the July
14, 2010 hearing, the juvenile court ordered DCFS to give Mother referrals for
weekly random drug testing.
In an
August 11, 2010 Interim Review Report, DCFS reported that in addition to the
missed initial visit on July 3, 2010, Mother had missed the next two weekly
visits (scheduled for July 10 and 17), stating that she was unaware that weekly
visitation was scheduled. Mother was
late to her July 24th scheduled visit and arrived with friends and was informed
that visitation was specifically intended for Mother to focus on child parent
bonding and that the friends needed to wait elsewhere. After acting appropriately with Esther for
first hour of the visit, Mother began checking her cell phone messages and
calling her friends. The report
indicated that Mother had missed one drug test, had one negative test, and
another test had results still pending.
Foster mother also reported that Mother acted in a loving manner with
Esther during visitations and medical appointments but had a habit of arriving
extremely late.
title="">
In a Last Minute Information For
the Court form filed on August 11, 2010, DCFS reported that Mother’s scheduled
July 31st visit was cancelled because Mother was over an hour late and that
Mother called and canceled her August 7th visit. DCFS recommended no reunification services
for Mother.
At the
August 11, 2010 hearing, the juvenile court ordered DCFS to provide Mother with
referrals in individual counseling.
In an
October 25, 2010 Interim Review Report, DCFS indicated that Mother was reminded
to provide information on her enrollment in court ordered programs and given
additional referrals. Mother stated that
she had done all that had been asked and was told that it was a new detention
and she needed to complete her programs.
The report also indicated that foster mother reported that Mother often
arrived late for visits and spent half the time on her cell phone. In terms of visitation from August 11 to
October 25, 2010, Mother canceled or missed two visits, was late for or left
early from five of her visits and had one full visit during which she was on
her cell phone half the time.
Mother missed some of Esther’s
medical appointments and foster mother expressed concern that when Mother did
attend Esther’s medical appointments, she arrived late and did not wait so that
she could ask the doctor about Esther’s medical status. When asked about missing Esther’s medical
appointments, Mother responded that she had to work but that if Esther was in
her care she would make it, stating that “if I had Esther I would be getting
aid from the state and might not need to work anyways.â€
In terms of
drug testing, Mother did not show up for testing on five dates and tested
negative on two dates. A DCFS social
worker spoke with Mother’s therapist to verify her compliance with
court-ordered individual counseling and was told that Mother had not told her
therapist that Esther’s second detention was due to her altercation with her
sister-in-law and had not provided her therapist with police or DCFS reports.
In a Last Minute Information For
the Court form filed on October 25, 2010, DCFS reported that Mother had called
DCFS social worker very upset, stating that the social worker had no right to
tell Mother’s therapist why Esther was detained and that Mother’s therapist had
asked Mother why she was untruthful.
In a second Last Minute Information
For the Court form filed on October 25, 2010, DCFS reported that Mother claimed
to have missed drug tests due to dental appointments but provided documentation
showing a conflict for only one missed test.
The form also stated that Mother had missed another scheduled visit,
explaining that the person who drove her was sick. The form also stated that when asked why
Mother leaves visits early, she responded because it costs too much. The DCFS social worker asked Mother why she
used a driver when DCFS provides her with a bus pass and Mother stated that she
only recently learned how to get around Los Angeles and did not know how to get
to Norwalk from Los Angeles.
At the
October 25, 2010 contested section 342 hearing, the juvenile court after
hearing testimony from Mother concerning the May 3, 2010 incident sustained
after modification the 342 petition as to the counts alleging Mother was
arrested, methamphetamine and drug pipes were found in Esther’s home, and
Mother allowed an unrelated adult who engaged in drug trafficking and abused
drugs to reside in Esther’s home, and dismissed the count alleging the home was
unsanitary. The court declared Esther a
dependent of the court under section 300, subdivision (b), and terminated
reunification services for the parents as 18 months of services had elapsed and
neither parent was ready to resume custody of Esther. The court urged Mother to continue drug
testing, complete her programs, consistently visit Esther and attend Esther’s
medical appointments, and ordered DCFS to provide her referrals and to provide
Father a referral for Esther’s possible placement with him in Mexico.
In a
December 15, 2010 Interim Review Report, DCFS stated that foster mother
reported that during visits Mother mostly sits and watches Esther or is on her
cell phone and does not interact with Esther.
Foster mother also reported that Mother had been visiting Esther but
would often leave early or arrive late and that Mother asked foster mother to
falsely report that Mother visited twice a week for two hours. The report also noted that Father was
“willing to have custody of his daughter but was not sure of the services they
have for her in Mexico†and therefore “he would prefer that mother got custody
of Esther and that she would benefit from the services out in the United
States.†The report stated that Esther
had been matched with two possible adoptive families and home studies had been
initiated.
At the
December 15, 2010 hearing, the juvenile court ordered DCFS to initiate an
international home study request on Father.
In a
February 23, 2011 section 366.26 WIC Report, DCFS reported that “although
mother has made slight progress in her interactions and attentiveness with
Esther; this change has only been within the last month.†Mother was reported as staying for the full
two hours and playing with Esther 90 percent of the time during several
visits. The report also indicated that
Father continued to state that he preferred Esther be returned to Mother but
that he would take Esther if the court ordered her returned to him.
On April 4,
2011, Mother filed her first of three section 388 petitions. In her April 4, 2011 section 388
petition, Mother requested the court take the section 366.26 hearing off
calendar and return Esther to Mother’s custody or, alternatively, to reinstate
Mother’s reunification services and set a section 360.22 hearing. Mother alleged that she continued to comply
with her case plan, attended A.A. meetings two to three times a week and had a
sponsor, completed a 26-week anger management program and individual counseling,
visited Esther twice a week for two hours, attended Esther’s medical
appointments, was working full-time, and had secured a new home where she lived
alone. The petition also alleged that
Mother was now able to provide a safe, stable, permanent home and Esther
recognized Mother and called her “ma†and looked to Mother for comfort and
support.
On April 7,
2011, the juvenile court summarily denied the section 388 petition without
hearing, finding it was not in Esther’s best interest and the petition did not
state a sufficient change in circumstances.
In a June
22, 2011 section 366.36 WIC Report, DCFS reported that Mother had cancelled
every Friday visit and foster mother stated that Mother does not cancel the
Sunday visits because it is convenient for Mother as Esther is brought to
her. Foster mother stated that during
the Sunday visits at Mother’s place of employment, Mother is often working and
her focus is not on Esther.
In a July
26, 2011 Interim Review Report, DCFS reported that the potential adoptive
parents, Mr. and Mrs. A, had begun the transition
process by visiting Esther. The
report also noted that Mother was in regular contact with the DCFS social
worker and stated that she had re-enrolled in her court ordered programs and
understood that her workplace was not an appropriate environment for visits.
On July 26,
2011 Mother filed her second section 388 petition. Like her first petition, Mother’s second
petition requested the court take the section 366.26 hearing off calendar and
return Esther to Mother’s custody or, alternatively, to reinstate Mother’s
reunification services and set a section 360.22 hearing. As in the first petition, Mother alleged in
her second petition that she continued to comply with her case plan, attended
A.A. meetings two to three times a week and had a sponsor, completed a 26-week
anger management program and individual counseling, attended Esther’s medical
appointments, was working full-time, and had secured a new home where she lived
alone. Unlike the first petition, the
second petition alleged simply that she visited Esther but no longer alleged
that she visited twice a week for two hours.
The second petition also alleged that Esther was no longer in an
adoptive home and needed greater permanency which Mother could provide. Attached to Mother’s Petition was
documentation showing Mother had completed a 26-week anger management program
in February 2011, had completed five sessions of individual counseling as of
September 2010 and attended A.A. meetings from mid-2010 to early 2011.
At the July
26, 2011 hearing, the juvenile court set Mother’s second section 388 petition
for a contested hearing on September 15, 2011 and ordered DCFS to investigate
and prepare a report. The juvenile court
noted that Mother was progressing in some programs but had been very
inconsistent in her visits with Esther.
In a
September 15, 2011 Interim Review Report, DCFS reported that as of July 28,
2011 Esther had been placed in the potential adoptive home of Mr. And Mrs.
A. The report indicated that
documentation showed Mother had attended A.A. meetings from June 23, 2011 to
July 2, 2011. The report also stated
that there were no visits scheduled from July 11, 2011 to August 2, 2011 due to
placement issues and once visits resumed, Mother canceled two visits. The report also noted that Esther on her own
had begun calling Mr. and Mrs. A “papi†and “mami.†The report recommended that the juvenile
court deny mother’s second petition and that Mother’s monitored visits be
reduced to twice per month.
In a Last
Minute Information For the Court form filed on September 15, 2011, DCFS
reported that Mother had canceled two more visits.
Documentation
filed with the court on September 15, 2011 showed that as of September 12,
2011, Mother had completed six sessions of individual counseling, ten sessions
of parenting classes and ten sessions on substance abuse since enrolling in
June 2011. Documentation also showed
Mother had three negative drugs tests from August to September 2011.
At the
September 15, 2011 hearing on Mother’s second section 388 petition, after
hearing argument, the juvenile court denied the petition, finding only partial
compliance with the case plan which was insufficient change of circumstance,
and Mother’s contact with daughter to be infrequent which indicated that it was
not in Esther’s best interest to grant the petition.
In a
section 366.26 WIC Report filed on October 27, 2011, DCFS reported that on the
afternoon of September 15, 2011, Mother called the DCFS social worker and
stated that she “saw no point†in continuing to visit Esther as the juvenile
court had denied her section 388 petition and she was not going to regain
custody of Esther. Mother stated that
her scheduled visit for September 20, 2011 would be her final visit and that she would entrust
Esther’s care to Mr. and Mrs. A and God.
Mother reiterated that the September 20, 2011 visit would be her final
visit in a call the day before to confirm the visit. During the September 20, 2011 visit, Mother
provided a photograph of herself to be given to Esther, took pictures of
Esther, and stated to the DCFS social worker that Mother’s employer was going
to help her with legal assistance to get Esther back.
The report
also indicated that Father agreed that it would be in Esther’s best interest to
be adopted as opposed to being kept in the foster care system.
At the
October 27, 2011 hearing, the juvenile court ordered Mother to provide 24
hours’ notice to cancel a visit; otherwise visits would be limited to twice a
month.
In a
January 11, 2012 Interim Review Report, DCFS reported that Mother had not
visited Esther and had not contacted DCFS to try to schedule a visit since the
September 20, 2011 visit. The
report noted that Esther had bonded with prospective adoptive parents, Mr. and
Mrs. A, and referred to them as “mommy and daddy.†The report recommended that Esther be placed
for adoption.
In a Last
Minute Information For the Court form filed on January 11, 2012, DCFS summarized
the findings of the home study of Mr. and Mrs. A and the recommendation that
the court terminate parental rights.
On March
29, 2012, Father filed a section 388 petition, seeking placement of Esther with
Father in Mexico.
title="">
petition for a hearing.
In a Status
Review Report filed on April 26, 2012, DCFS reported that on March 12,
2012, Mother called to request information on whether Esther was placed with
Father, and Mother was told that Esther was with Mr. and Mrs. A. Mother requested visits with Esther. Visits were scheduled to begin after the
April 26, 2012 hearing, and DCFS recommended that visits be limited to once a
month.
In an Interim Review Report filed
on April 26, 2012, DCFS recommended that Father’s section 388 petition be
denied.
On June 14, 2012, the court
received from Mr. and Mrs. A, a De Facto Parent Request, that included letters
of recommendation from co-workers, friends, and Esther’s service
providers.
In an Interim Review Report filed
on June 27, 2012, DCFS reported that on May 25, 2012 Mother called and
asked if Esther was placed with Father and was informed that Esther continued
to reside with Mr. and Mrs. A. The
report indicated that Esther was continuing to flourish and progress in the
environment provided by Mr. and Mrs. A and had bonded with the entire
family. Mrs. A stated that Mother’s last
visit with Esther was over six months earlier.
On June 27,
2012, Mother filed her third section 388 petition requesting the court take the
section 366.26 hearing off calendar and return Esther to Mother’s custody. The petition alleged that Mother had
continued with her programs, and obtained housing and a stable lifestyle. The petition also alleged that Esther would
“have a better future here in the United States rather than in Mexico.†Attached to the petition was documentation,
showing Mother had completed a 26-week anger management program in February or
January 2011, had completed three sessions of individual counseling as of July 2011,
had completed three sessions of parenting class as of July 2011, had completed
three sessions on substance abuse as of July 2011, and attended A.A. meetings
from June 23, 2011 to September 3, 2011 and from mid-2010 to early 2011.
On June 27, 2012, the juvenile
court denied Father’s section 388 petition after considering evidentiary
statements offered by Father, finding no change of circumstances and that it
was not in Esther’s best interest to grant the petition. The juvenile court also summarily denied
Mother’s third section 388 petition, finding no change of circumstances and
that it was not in Esther’s best interest to grant the petition. The juvenile court found it was likely that
Esther would be adopted and terminated the parental rights of both Mother and
Father. The court also found placement
through adoption appropriate and designated Mr. and Mrs. A as the prospective
adoptive parents.
On July 23, 2012, Mother filed a
notice of appeal.
DISCUSSION
On appeal,
Mother argues that the juvenile court abused its discretion in summarily
denying her third petition for modification and terminating her parental rights
because she had made a prima facie showing of changed circumstances and best
interest of the child. We disagree and
affirm.
A. Standard of Review
Under section 388,
the dependency court should modify an order if circumstances have changed such
that the modification would be in the child’s best interest. (In re
Kimberly F. (1997) 56 Cal.App.4th 519, 526 & fn. 5.) “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.]†(
799, 806.) But, in order to obtain a
hearing, the parent must show both changed circumstances and promotion of the
child’s best interests; failure to show either of these elements defeats the
prima facie showing. (
We review a denial of a hearing on
a section 388 petition for abuse of discretion.
(In re Ramone R. (2005) 132
Cal.App.4th 1339, 1348.)
B. No Abuse Of Discretion In Summarily Denying
Mother’s Section 388 Petition.
On appeal, Mother argues that “her
re-enrollment in the substance abuse treatment program with support services
and continuing sobriety were sufficient prima facie proof of changed
circumstances.†Likewise Mother argues
that she made a prima facie showing or promotion of Esther’s best interests “because
[Mother] was now in a better position to care for her daughter, had extended
program support, and she loved Esther.â€
If the allegations of the petition,
even liberally construed, fail to make a prima facie showing of either changed
circumstances or that the proposed modification would promote the child’s best
interests, the court need not order a hearing on the petition. (In re
Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.) “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.†(In re
Edward H. (1996) 43 Cal.App.4th 584, 593.)
A petition containing only general or conclusory allegations does not
rise to the level of a “prima facie†showing.
(Ibid.)
Mother did not meet her burden of
demonstrating sufficiently changed circumstances in her third section 388
petition. The petition alleged that
Mother had continued with her programs, and obtained housing and a stable
lifestyle. Mother, however, made no
allegations and provided no information about her participation in programs in
the 10 months since her second section 388 petition was denied after an
evidentiary hearing. Rather, Mother attached
documentation to her third petition that was previously submitted to the court
for her second section 388 petition or that preceded the September 15, 2011
hearing on that petition. For instance,
Mother attached documentation to her third petition showing that she had
attended A.A.meetings from June 23, 2011 to September 3, 2011 and from mid-2010
to early 2011, but made no allegations and provided no documentation of her
attendance from September 2011 to the filing of her third petition in July
2012. Similarly, Mother’s third petition
attached documentation that, as of July 2011, she had completed three sessions
of individual counseling, three sessions of parenting class and three sessions
on substance abuse, but Mother neither made allegations nor provided
documentation concerning her participation in programs between July 2011 and
July 2012.
We find
that the juvenile court’s summary denial of Mother’s third section 388 petition
was not an abuse of discretion.
Likewise we find no abuse of
discretion in the juvenile’s court determination that Mother failed to carry
her burden under section 388 to present prima facie evidence that granting the
petition would promote the child’s best interest. Esther had been with the prospective adoptive
parents for one year and was approximately three and a half years old at the
time Mother filed her third section 388 petition. Esther had bonded with Mr. and Mrs. A and
referred to them as “mami†and “papi.â€
In contrast, Mother’s contact with Esther during the nine months after
her second petition was denied was infrequent and minimal.
Once
reunification services are terminated, the focus shifts from reunification to
the child’s need for permanency and
stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309; In re Stephanie M. (1994) 7 Cal.4th 295, 317.) For a parent “to revive the reunification
issue,†the parent must prove under section 388 that circumstances have changed
such that reunification is in the child’s best interest. (In re
Marilyn H., supra, 5 Cal.4th at
pp. 309-310.) “[O]ur Supreme Court made
it very clear in [In re Jasmon O.
(1994) 8 Cal.4th 398, 408, 414-422] that the disruption of an existing
psychological bond between dependent children and their caretakers is an
extremely important factor bearing on any section 388 motion.†(In re
Kimberly F., supra, 56
Cal.App.4th at p. 531.) Moreover, time
is of the essence, especially to young children; when it comes to securing a
stable, permanent home for children, prolonged uncertainty is not in their best
interest. (In re Josiah Z. (2005) 36 Cal.4th 664, 674 [“‘There is little that
can be as detrimental to a child's sound development as uncertainty over
whether he is to remain in his current “home,†under the care of his parents or
foster parents, especially when such uncertainty is prolonged.’ [Citation.]â€].) “Childhood does not wait for the parent to
become adequate.†(In re Marilyn H., supra,
5 Cal.4th at p. 310; In re Casey D.
(1999) 70 Cal.App.4th 38, 47.)
Construing
Mother’s third section 388 petition liberally, the allegations would not have
sustained a decision that granting the petition was in Esther’s best
interest. Accordingly, the juvenile
court did not abuse its discretion in summarily denying the petition.
Finally, although Mother makes no
substantive arguments regarding the court’s ultimate decision to terminate
parental rights, for the reasons discussed above, we find no error in the
juvenile court’s conclusion that Esther was adoptable and that termination of
parental rights was in her best interest.
DISPOSITION
The order denying mother's petition
for modification and terminating parental rights is affirmed.
NOT TO BE
PUBLISHED.
CHANEY,
J.
We concur:
ROTHSCHILD,
Acting P. J.
JOHNSON,
J.
Institutions Code unless otherwise indicated.
was repositioned and placed in a spica cast
in June 2009. Esther’s spica cast
was removed in September 2009.
