In re Jorge M.
Filed 5/20/13 In re Jorge M. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re JORGE M., a Person Coming
Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
SONIA P.,
Defendant and Appellant.
D063285
(Super. Ct.
No. EJ3478)
APPEAL from
orders of the Superior Court
of
County, Gary M. Bubis, Judge.
Affirmed.
Cristina
Gabrielidis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E.
Montgomery, County Counsel, John E.
Philips, Chief Deputy County Counsel and Patrice Plattner-Grainger, Deputy
County Counsel, for Plaintiff and Respondent.
Sonia P. appeals orders summarily
denying her petition for modification under Welfare and Institutions Code
section 388
title="">[1]
and terminating parental rights to
her son, Jorge M., under section 366.26.
the court abused its discretion when it summarily denied her petition to set aside
the orders terminating reunification services and setting a section 366.26
hearing. We affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
In November
2011, the San Diego County Health and
Human Services Agency (Agency) detained Jorge, a newborn infant, in
protective custody after he tested positive for methamphetamine at birth. Sonia had a 20-year history of substance
abuse. She was on parole for drug
offenses and other charges. Sonia's two
other children were in the care of their maternal grandmother.
The court
adjudicated Jorge a dependent under section 300, subdivision (b), placed him in
foster care and ordered Sonia to comply with her reunification case plan.
In
December, Sonia left an inpatient substance abuse treatment facility. She was arrested for
incarcerated until late January 2012.
After her release, a social worker referred Sonia to another substance
abuse treatment program, but she did not appear for intake. Sonia did not remain in contact with the
social worker.
Sonia
visited Jorge from six to eight times from late January to mid-March.
In May,
Sonia's parole agent informed the social worker that Sonia had not reported to
parole and her whereabouts were unknown.
A warrant was issued for her arrest.
Sonia
turned herself into authorities in late July.
She remained in jail until November 1, when she entered KIVA, an
At the
six-month review hearing in August, the court found that Sonia failed to
participate regularly and make substantive progress in a court-ordered
treatment plan. The court terminated
services and set a section 366.26 hearing.
The section
366.26 hearing was held on January 2,
2013. On that date, Sonia
filed a section 388 petition (petition) asking the court to place Jorge with
her at KIVA or alternatively, place Jorge with paternal relatives.
prima facie case and denied the petition.
The court
admitted the Agency's section 366.26 reports in evidence. The social worker reported that Jorge was
considered highly adoptable. He had a
strong attachment to his foster parents, who had been his primary caregivers
since he was two weeks old. They were
committed to adopting him if parental rights were terminated. The social worker also identified 104
approved adoptive families that were interested in adopting a child like
Jorge.
Sonia had
four supervised one-hour visits with Jorge from September 18 to November
7. Jorge did not recognize his mother
and appeared fearful when she first held him.
Sonia was appropriate and positive toward him and demonstrated the
ability to interact and care for a young child.
The social worker said Jorge had a minimal relationship with Sonia. Jorge had never met his biological father,
who did not come forward until late in the case.
Sonia
testified she had weekly visits with Jorge since arriving at KIVA on November
1. Jorge did not recognize her at first,
but he was getting used to her.
The
juvenile court found that Jorge was adoptable and there were no exceptions to
termination of parental rights. The
court terminated parental rights.
DISCUSSION
I
Juvenile Court Did Not Abuse Its Discretion When It Summarily Denied
Section 388 Petition
Sonia
contends the court erred when it did not hold an
petition. She argues her petition stated
a prima facie case that her circumstances were changed and a modification of
the prior orders was in Jorge's best interests.
Under
section 388, a parent, interested person or the dependent child may petition
the court to change, modify or set aside a previous order on the grounds of
changed circumstances or new evidence.
(§ 388, subd. (a).) The
petitioner requesting the modification has the burden to show a change of
circumstances or new evidence, and that the proposed modification is in the
child's best interests. (
Cal.4th 398, 415; Cal. Rules of Court, rule 5.570(e).)
"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; In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799; Cal.
Rules of Court, rule 5.570(a).)
"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 Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G.).) The court must liberally construe the
petition in favor of its sufficiency. (
We review a denial of a hearing on a modification petition
for abuse of discretion. (Zachary G., supra, 77 Cal.App.4th at p.
808.)
When determining whether the
petition makes the necessary showing, 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.) Here, the court reasonably determined
that Sonia had not successfully resolved or ameliorated her problems to the
degree necessary to provide a safe and stable home for her son. Sonia had a 20-year substance abuse problem
and had only recently engaged in a treatment program. During the reunification period, Sonia was a
fugitive and did not visit her son for more than six months. The record also permits the reasonable
conclusion that removing Jorge from the home in which he had lived since he was
two weeks old was not in his best interests.
He was strongly bonded to his foster parents, who were willing and able
to provide a safe, stable, permanent home to him.
Section 388
petitions filed on the same day as the permanency plan selection and
implementation hearing are disfavored, and the court could have denied the
petition on timeliness grounds alone.
(See In re Edward H. (1996) 43
Cal.App.4th 584, 594.) The court
did not abuse its discretion when it denied Sonia's section 388 petition
without an evidentiary hearing.
DISPOSITION
The findings and orders denying a hearing on the section 388
petition and terminating parental rights are affirmed.
BENKE, Acting P. J.
WE CONCUR:
HALLER, J.
AARON, J.
name="_ftn1" title="">[1] All further statutory references are to the Welfare and
Institutions Code.
name="_ftn2" title="">[2] The identity of Jorge's biological father was confirmed by
paternity testing on December 11,
2012.
