In re Sarah P.

Filed 6/11/08 In re Sarah P. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, James Patrick Marion, Judge. Affirmed.

Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant Erick P.

Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant Teresa O.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.

* * *

Erick P. and Teresa O. appeal the termination of their parental rights to their daughter, Sarah. They both contend the juvenile courts refusal to provide them with hearings on their petitions under Welfare and Institutions Code section 388^[1]was reversible error. Erick also contends there is a legal impediment to Sarahs adoption by her caretaker, thus rendering the juvenile courts finding of adoptability erroneous. We find no error and affirm.

FACTS

Sarah was detained by the Orange County Social Services Agency (SSA) two days after her birth on January 30, 2005. She was born with a positive toxicology screen for cocaine. Her mother had a lengthy history of drug abuse and drug-related arrests, as did her father. A dependency petition filed on Sarahs behalf was sustained, and Sarah was placed with her paternal aunt, Nina P. Reunification services were offered to her parents.

The six-month review hearing was held in September 2005. The mother had been following her case plan and visiting Sarah consistently. The father, however, was arrested and convicted following an incident in June 2005 where he attacked the mother and Nina. He received monthly visits with Sarah in jail. The court ordered more reunification services.

In March 2006, SSA reported the mother had missed some visits and had canceled others. In December, she appeared to be on something at a visit and the monitor smelled alcohol on her breath at a visit a few months later. But by May 2006, the mother was drug testing regularly, had found a full-time job, moved into an apartment, and was receiving increased visitation. At the 12-month review hearing, SSA reported that Nina had obtained a restraining order against the father because he threatened her during a visit at the jail. The court ordered six more months of reunification services and set the 18-month review hearing for July 2006.

The mother continued to improve, and SSA released Sarah to her for a 60-day trial visit in July 2006. At SSAs request, the juvenile court continued the 18-month hearing until the scheduled end of the trial visit. Unfortunately, the trial visit did not go well. Despite repeated instructions by the social worker, the mother allowed unauthorized adults to care for Sarah, failed to follow basic safety guidelines, failed to get adequate medical care when Sarah became ill, and was significantly and repeatedly late to Sarahs therapy appointments. Finally, the mother tested positive for cocaine and the trial visit was terminated. Sarah was returned to Ninas home.

In the meantime, the father was released from prison on June 6, 2006. As required by the terms of his parole, he enrolled in a domestic violence program. He also began drug testing and attending a 12-step program. After an alcoholic binge in July, the father enrolled in a detox program, then moved into a sober living home. He relapsed with both alcohol and heroin a few weeks later. At that point, he enrolled in an inpatient drug treatment program, but was subsequently discharged for noncompliance. He used heroin again in September, then enrolled in an outpatient drug treatment program.

In October 2006, things continued to go downhill. Both the mother and father were missing drug tests and visits, and appeared to be under the influence of drugs on occasion. The father was arrested for multiple parole violations and incarcerated in late October. During November 2006, December 2006, and January 2007, the mother visited Sarah six times; she canceled seven visits and failed to show up for seven visits. She was not drug testing, and the visitation monitor reported she appeared to be under the influence of drugs during two visits. The father was released from prison on January 15, 2007. The next day he tested positive for cocaine and heroin; he admitted using the same drugs less than a week later.

The 18-month review hearing was finally held on February 15, 2007. SSA reported the mother was enrolled in an inpatient drug program, but had relapsed several times by using heroin and cocaine. The facility had decided to increase the level of her care to address the overwhelming physical and emotional aspects of heroin addiction. The father had moved from one sober living home to another; he was not drug testing as required by his case plan. The juvenile court terminated reunification services and set a permanent plan selection hearing for June 2007.

The mother visited Sarah regularly while she was in the inpatient drug program; she was transported to visits by the staff. As soon as she completed the program, however, she stopped visiting, and within a few weeks, on June 28, she was arrested for possession of narcotics. She was released from jail on July 21 but was rearrested two days later for drinking alcohol, a probation violation. She remained in jail until September 11, 2007, when she was released and admitted into another residential drug program. The father was released from jail in early July. He moved into a sober living home and visited Sarah regularly twice a week, except for two weeks in September when he canceled four consecutive visits. Starting in October, both parents visited with Sarah twice a week at the mothers residential facility.

The permanent plan selection hearing, having been repeatedly continued, was finally set for October 23, 2007. On that date, both parents filed petitions under section 388, seeking to have Sarah returned to their custody or to receive additional reunification services. The mothers declaration detailed her progress in drug treatment, claiming she had not relapsed or tested positive for drugs since entering these[] programs and committing to my sobriety . . . . She described her visits with Sarah, claiming Sarah was emotionally attached to her and they were bonded. The father declared he had been visiting Sarah regularly since his release from prison in July 2007. He completed 35 days of Life Skills and Workforce Development, including Anger Management, Goal Setting, Substance Abuse, Decision Making, Parenting, and English Language Development while in prison. He had obtained appropriate housing and was working full time. The father claimed he had been drug testing regularly since February 2007 and attending Alcoholics Anonymous on a regular basis.

The juvenile court found neither parent had made a prima facie case that circumstances had changed or that returning Sarah to parental custody would be in her best interests. It denied the petitions without holding a hearing. The juvenile court then found it was likely that Sarah would be adopted and terminated parental rights.

DISCUSSION

On appeal, both parents argue they stated a prima facie case under section 388, thus entitling them to a hearing. We disagree.

Section 388 allows a parent to petition the juvenile court to change or modify a previous order upon grounds of change of circumstance or new evidence. ( 388, subd. (a).) The court must hold a hearing on the petition only [i]f it appears that the best interests of the child may be promoted by the proposed change of order. . . . ( 388, subd. (c).) Thus, the petition must state a prima facie case of both changed circumstances and best interests of the child. 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.)

Although the petition should be liberally construed in favor of granting a hearing (In re Mary G. (2007) 151 Cal.App.4th 184, 205), the juvenile court need not put blinders on when determining whether the required showing has been made. Rather, the court can consider the entire factual and procedural history of the case when evaluating the significance and strength of the allegations in the petition. (In re Justice P. (2004) 123 Cal.App.4th 181, 189; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.) Allegations of changing, rather than changed, circumstances are not sufficient to warrant a hearing. (See In re Casey D. (1999) 70 Cal.App.4th 38, 49.) We review the trial courts decision to deny a hearing for an abuse of discretion. (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)

Neither parent made a prima facie showing of changed circumstances. Both had lengthy drug histories and repeated relapses. In June 2007, as soon as the mother completed her residential drug program, she was arrested for possession of narcotics and rearrested a month later for drinking alcohol, which was a violation of the terms of her probation. She was incarcerated until September 11, 2007, when she entered another residential drug program. She had been in that program slightly more than six weeks when she filed her petition. This chronology is hardly evidence that she had overcome her addiction to heroin and was ready to be a responsible parent to Sarah. Likewise, the father had been substance free and out of prison for less than three months when he filed his petition. Although the petition alleged he had made progress on his case plan, was employed, and had suitable housing, he alleged no specific facts to support these conclusory statements.

Furthermore, neither parent made a showing that it would be in Sarahs best interests to leave the only caretaker she had ever known and be transferred to a tenuous placement with her parents. Sarahs primary need at this point is for stability and permanence. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Marilyn H. (1993) 5 Cal.4th 295, 309.) The juvenile court did not abuse its discretion when it denied the petitions without a hearing.

The father contends the termination of parental rights must be reversed because SSA did not provide evidence of Ninas divorce. If Nina is not legally divorced, the father argues, she needs the consent of her husband to adopt Sarah. (Fam. Code,  8603.) This argument borders on the frivolous.

At the permanent plan selection hearing, the suitability of a prospective adoptive parent is not relevant unless the minor is likely to be adopted based solely on the existence of [that] prospective adoptive parent . . . . (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1650.) There is substantial evidence that Sarah is generally adoptable, not merely because Nina intends to adopt her. The adoptions worker opined Sarah was generally adoptable because she is attractive, has a sweet smile, is very curious about her environment, and is active and constantly looks for new stimulation. Although Sarah is developing a little behind, she has no behavioral or emotional problems. Whether Ninas divorce decree was submitted into evidence is simply not an issue here.

DISPOSITION

The judgment terminating parental rights is affirmed.

SILLS, P. J.

WE CONCUR:

ARONSON, J.

IKOLA, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.