In re M.B.








Filed 12/17/08 In re M.B. CA5




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

In re M.B. et al., Persons Coming Under the Juvenile Court Law.
MERCED COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. V.B., Defendant and Appellant.	F055749 (Super. Ct. No. 27758) O P I N I O N

THE COURT^*
APPEAL from a judgment of the Superior Court of Merced County. Harry L. Jacobs, Commissioner.
David M. Thompson, under appointment by the Court of Appeal, for Defendants and Appellants.
James N. Fincher, County Counsel, and James B. Tarhalla, Deputy County Counsel, for Plaintiff and Respondent.
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INTRODUCTION
Appellant, V.B., appeals from the juvenile court’s order denying his petition pursuant to Welfare and Institutions Code section 388 to modify the court’s prior orders terminating his reunification services.^[1] The court terminated appellant’s parental rights to his children pursuant to section 366.26.
FACTS AND PROCEEDINGS
Earlier Proceedings
Appellant had two children, M.B. and S.B, with N.B. On December 11, 2007, a petition was filed alleging that N.B. failed to protect her children because her home was filthy with debris and trash on the floor, her children had significant head lice, and N.B. had a developmental disability causing her to be unable to care for her children. N.B. was agitated and suffering anxiety attacks. The children were detained on December 17, 2007.
The social worker’s report for the jurisdiction hearing on January 16, 2008, appellant asserted American Indian heritage.^[2] N.B. had a prior child welfare history involving her children. These past incidents involved general filth, failure to care for the children, general neglect, and domestic violence.
When social workers arrived at appellant’s home on December 7, 2007, N.B. was on the telephone and her computer. The children were in the living room unclothed and not wearing shoes. N.B. explained that the children were only in their diapers because they had just been given a shower. The children’s diapers appeared to be soiled. The home was dirty with piles of clothes on the floor and furniture. There were piles of dirty dishes on the kitchen countertops. There was debris on the floor and spoiled food in the refrigerator and countertops.
There were kitchen knives in the bathroom and kitchen countertops within the children’s reach. There appeared to be feces in the hallway. One child picked up candy on the floor and placed it in her mouth. The children had scratches all over their bodies which were likely caused by head lice. The children had sores on their ankles that were scabbed. Appellant said these injuries were caused by boots the children wore that were too tight. Lice and nits were visible in the children’s hair. N.B. explained that she used hair dye to treat the lice and lice had been a problem since August 2007. The children had small bruises on their arms, legs, and back.
N.B. became very agitated, said she was having an anxiety attack, and stepped outside. N.B. told the social worker she had a learning disability and ADHD. A social worker explained that N.B. does not have the capacity to follow through with the children’s needs.
When a social worker called appellant to ask him what caused his children to be detained, he replied that he did not know how bad it was because he is a truck driver and had left home a few days before the detention. Appellant described the home as a bit dirty but decent and no problem for the children. When asked about the pictures taken by the social worker, appellant said he had never seen the home that bad before. Appellant explained that the children had bruises because they like to beat each other up. Appellant said the children like to play and sometimes things get out of hand. The children like to take a bed apart and hit each other with the pieces.
At the jurisdiction hearing, both parents denied the allegations but submitted the matter on the social worker’s report. The juvenile court found the allegations of the petition true and set the matter for a disposition hearing. A psychological examination was ordered for both parents.
The social worker’s report for the disposition hearing included the psychological reports for each parent. N.B. had recently reported suffering from multiple personalities with different names. Appellant said he had an inability to keep the home clean given the way he was raised. Appellant said he was diagnosed with Attention-Deficit/
Hyperactivity Disorder but overcame it. Although appellant had several years of counseling, he was severely depressed after his father passed away. Appellant reported no history of substance abuse and denied prior domestic violence. Appellant added, however, that he had once accidentally hit N.B. with a belt.
Appellant and N.B. had six visits with their children between December 2007 and late March 2008. The visits went reasonably well. Appellant often took pictures of the children and played with them. The parents hugged and kissed their children and they in turn expressed love to their parents. The social worker noted that N.B. suffers from a “mental incapacity” that affects her global functioning and ability to adequately provide for her own needs, which in turn affects her ability to provide appropriate care for her children. N.B. behaves much like a child herself. Two psychological evaluations of N.B. indicated that she would not benefit from reunification services.^[3]
Appellant’s work as a truck driver takes him away from home most of the time. Appellant is higher functioning than N.B., but behaves in a passive manner and has failed to take action to insure that his children receive adequate care. Two psychological evaluations of appellant indicated he would not benefit from reunification services. One of the evaluating psychologists noted appellant could respond to treatment for a depressive disorder, but that he was not being treated. Furthermore, appellant suffers from a personality disorder, mild retardation, and is unable to function independently. Another psychologist diagnosed appellant with Recurrent Major Depressive Disorder and Paranoid Personality Disorder. As a result of these disorders, appellant is unable to care for his children and treatment would not restore his ability to do so.
The disposition hearing was conducted on April 14, 2008. Jane Wilkinson, who works with adults for the Central Valley Regional Center (CVRC), saw N.B. once or twice a week for the prior three or four months. Wilkinson tried to train N.B. on how to maintain a home and keep it clean. Wilkinson provided transportation to medical appointments. N.B.’s home was a shambles with dishes and food on the floor and a counter that was unclean. There was mail on the floor that had been opened and no food in the refrigerator. Wilkinson kept telling N.B. to keep food in the refrigerator and demonstrated to her how to clean.
Appellant and N.B. have a friend living in the home who is developmentally delayed and who adds chaos to the household. Francisco Guzman, N.B.’s case manager at CVRC testified that N.B. had been a client since August 2007. N.B. was offered independent living training. N.B. initially accepted a referral for further services, but stopped attending after three or four sessions.
Appellant testified that he was recently unemployed and had a high school education. Appellant was a long-haul driver who was gone for three weeks at a time up until the children were taken. Appellant wanted reunification services and was willing to comply with any reunification orders and programs offered at CVRC. Appellant attended all scheduled visits with his children except for the last one because his job kept him from getting home on time. Recent pictures of his home depict it in a clean state. Appellant explained that he would come home too tired to clean up.
The juvenile court found that both parents were “pleasant guileless people,” who do not have problems with the law or abuse drugs. They are not mean spirited and try to do the best they can. The court noted, however, that the social workers and two psychologists have concluded that both parents cannot take care of their children. The court terminated reunification services and set the matter for a section 366.26 hearing.
Section 388 Petition and Section 366.26 Hearing
Appellant filed a section 388 petition on July 11, 2008. Appellant stated that he wanted reunification services. Appellant was no longer living with N.B. and had filed for divorce. Appellant was living with his sister and her husband and has relatives who are willing to help with the children. Appellant stated visits with his children went well and that he could provide a stable home. Appellant sought to have the section 366.26 hearing vacated.
Appellant missed a visit with his children on April 7, 2008. Appellant visited the children on May 19, 2008, but they were quiet and did not want to go up to him. Appellant believed the children were shy because they had not seen him in two months. After 15 minutes, the children giggled and began to interact with appellant, who later hugged and kissed them. Appellant visited the children again on June 4, 2008. The visit when well and ended without incident. Appellant missed a visit on June 18, 2008. Appellant told the social worker on June 19, 2008 that he had filed for divorce and was leaving his home. Appellant did not have a job and his phone was turned off.
The children’s care provider told the social worker that she wished to adopt the children. The social worker stated both children were adoptable and that the care provider had a safe, child-proofed home. The prospective adoptive parents have a stable and structured home with food and positive interactions with the children. The prospective adoptive father is patient and skilled at working with each child’s individual developmental delays. The social worker recommended termination of parental rights with adoption as the permanent plan.
On July 14, 2008, the juvenile court permitted a hearing on appellant’s petition. Appellant testified that he should have the children back because he felt they should be with at least one of their parents. Appellant explained that he was living with his sister and brother-in-law and was separated from the children’s mother. Appellant did not intend to go back to N.B. and believed that by leaving her, he was more amenable to reunification services. Although the last few years were very stressful, appellant was no longer under stress. Also, appellant now had support from family members.
On cross-examination, appellant conceded that his sister had a current dependency case with Child Protective Services. Appellant was no longer with N.B. because she accused him of a rape and abuse, which he denied. Appellant denied that he needed any psychological help. After the psychological evaluations of appellant, he did not seek help from a mental health professional. Appellant said that his children appeared fine the week prior to their detention.
The court found that appellant’s new living arrangements was a significant change of circumstance, but only a single change of circumstance. The court noted that the level of chaos between appellant and N.B. had increased. The court found it would be a great detriment to the children’s best interest to grant appellant’s petition and the court denied the petition. The court found both minors to be adoptable, accepted adoption as the permanent plan, and terminated the parental rights of both parents.
SECTION 388 PETITION
Appellant argues the court abused its discretion by denying his 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 (Stephanie M.).) 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 (Jasmon O.).) The petition must be liberally construed in favor of its sufficiency. (Ibid.)
“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 5.570 [formerly rule 1432(a)(6)]) requires the petition allege changed circumstance or new evidence that requires changing a prior order. (Jasmon O., supra, 8 Cal.4th at p. 415.)
We agree with the juvenile court’s ruling that appellant failed to sustain his burden for a section 388 petition. The juvenile court found a significant change of circumstance but noted there was only a single change. Although appellant was separated from N.B. and living with his sister, appellant was embroiled in a bitter dispute with N.B. over her allegations that he abused and raped her. Appellant admitted that the sister he was staying with was involved in a dependency action. Appellant failed to obtain any psychological treatment.^[4] The failure of appellant to deal with his depression was a major contributing cause to his children’s detention. Appellant’s single change of circumstances does not rise to changed circumstances.
At most, appellant has shown changing circumstances. 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 petition brought, as in this case, shortly before and during the section 366.26 hearing, we look to the Supreme Court’s decision in Stephanie M. At this point in the proceedings, 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. (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 his position. Neither the juvenile nor this court, however, may do so. Appellant failed to demonstrate in his petition or in his testimony that granting him reunification services would be in the best interests of his children.
DISPOSITION
The juvenile court’s orders denying appellant’s section 388 petition and terminating parental rights are affirmed.


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