In re D.B.

Filed 5/29/07 In re D.B. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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K.A. (appellant), the mother of D.B. (the minor), appeals from an order of the juvenile court terminating appellants parental rights. (Welf. & Inst. Code, 366.26, 395; further unspecified section references are to this code.) Appellants sole contention is that the juvenile court abused its discretion in denying her petition for modification ( 388), requiring reversal of the order terminating parental rights. Disagreeing with that claim, we affirm.

FACTS AND PROCEEDINGS

On September 7, 2005, Department of Health and Human Services (DHHS) filed an original juvenile dependency petition pursuant to section 300 on behalf of the approximately 18-month-old minor. That petition alleged the minor was at a substantial risk of suffering serious physical harm due to appellants aggressive and violent behavior in the presence of the minor. The juvenile court sustained the petition as amended, adjudged the minor a dependent child, and ordered appellant to participate in reunification services.

One element of appellants reunification plan was regular supervised visitation with the minor. According to an April 2006 social workers report, appellant was visiting the minor twice weekly, and the visits were described as productive, with appellant interacting appropriately with the minor. Thereafter, however, problems occurred, as appellant complained about the minors care during one visit and allegedly had excessive tardiness to visitations.

DHHS recommended termination of appellants reunification services and a permanent plan of adoption for the minor.

According to the social worker, appellant either failed to complete or failed to benefit from anger management services. Although appellant expressed various concerns about the minors foster care placement, the social worker opined that frequently appellant was uncooperative and verbally hostile and abusive with DHHS and service providers.

On June 16, 2006, the juvenile court terminated appellants reunification services. Thereafter, on August 18, 2006, and September 19, 2006, appellant filed petitions for modification, alleging in the first petition that she was not receiving regular visitation with the minor, and in the second seeking return of the minor to her custody and an additional period of reunification services. According to appellant, she had completed numerous sessions of anger management and individual therapy. Moreover, she averred, the minor and appellant were closely and positively bonded.

In support of her September 2006 petition, appellant attached several documents, including a letter from appellants therapist. The therapist wrote that, as a result of participating in treatment, [appellant] has significantly improved her ability to tolerate everyday stressors that previously could have resulted in angry outbursts. Believing that appellant was capable of performing parental duties, the therapist recommended return of the minor to appellant. Finding the best interests of the minor might be promoted by the requested new order, the juvenile court scheduled the matter for a hearing.

In its report prepared for the section 366.26 hearing, DHHS noted appellant had not contacted the social worker to arrange for visitation with the minor for some time, and that, when she did call on one occasion, appellant became so rude and belligerent that the social worker ended the call. That report also noted the minor had been in multiple placements and had some difficulties. However, the minor did not demonstrate any significantly disturbed behavior. DHHS concluded the minor was generally adoptable.

At the December 8, 2006, hearing on appellants petitions for modification and selection of a permanent plan for the minor, appellant proceeded in pro per. Appellant told the juvenile court that she was very close to the minor, but also said that, due to fewer visits, she was not as close as [she] used to be . . . . According to appellant, at visits the minor appeared happy to see her, told appellant he loved her, and called her Mom. Appellant denied being aggressive, and denied suffering from any mental illness. Appellant also testified that she had completed the requirements of her case plan, and requested return of the minor to her custody.

At the conclusion of the hearing, the juvenile court denied both petitions for modification. In doing so, the court stated in part: Ive considered the reports. Ive considered the 388 motions, and it appears to me that as to the 388 motions there is insufficient evidence to establish that there is a change of circumstances, or that to the extent there might be a change, that it would be in the best interests of the child to grant either of these requests for modification. . . . The court found it likely the minor would be adopted and terminated appellants parental rights.

DISCUSSION

Appellant contends the juvenile court abused its discretion in denying her petition for modification. (The juvenile court considered and denied both of appellants petitions for modification of previous court orders. However, in her written argument appellant challenges only the denial of her September 19, 2006, petition, which sought either the minors return or additional services. Accordingly, we will discuss only the latter petition.) Noting the evidence of changed circumstances adduced at the hearing, appellant asserts the best interests of the minor would have been promoted either by returning the minor to her custody or by granting appellant an additional period of reunification services. According to appellant, the record also showed little evidence of harm to the minor while in her care, and it also reflects the existence of a strong bond between appellant and the minor.

Section 388, subdivision (a), provides that a parent of a dependent child may petition the juvenile court upon grounds of change of circumstance or new evidence . . . for a hearing to change, modify, or set aside any order of court previously made . . . . Section 388 permits modification of a dependency order if a change of circumstance or new evidence is shown and if the proposed modification is in the best interests of the minor. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526 (Kimberly F.).)

When a petition for modification is brought after the termination of reunification services, the best interests of the child are the paramount consideration. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In assessing the best interests of the child at this stage of the proceedings, the juvenile court looks to the childs needs for permanence and stability. (Ibid.)

The party petitioning for modification has the burden of proof by a preponderance of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 48.) A modification petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)

In denying appellants petition for modification, the juvenile court recognized she had made efforts to ameliorate the difficulties underlying the dependency petition. However, doubtless out of concern for the minors needs, the court suggested the best interests of the minor would be promoted by proceeding to the selection of a permanent plan.

The determination by the juvenile court was well within its discretion. As the record reflects, appellant had made some progress, and her efforts are to be commended. But the record also suggests more time lay ahead for appellant in which she would continue to participate in programs. As DHHS noted in an October 2006 report, appellant had only had two months of counseling with her therapist. In the meantime, it was likely, as the record suggests, that the minor would continue to develop and attach to adult figures.

In her petition, appellant averred it was in the best interests of the minor to return the minor to parental custody or provide appellant with additional services, due to the close bond they shared. But, at this point in the proceedings, the focus of the case had shifted to the minors interests, and it was unreasonable to expect the minor to wait for appellant to establish her fitness as a parent. As DHHS suggested, appellant needed much more time in order to develop appropriate parenting skills.

The difficulty with appellants petition and attached documents is her failure to allege pertinent facts in support of her belief that the minors best interests required reunification with appellant. A prima facie showing requires the proffering of facts relevant to the claim made. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) Mere beliefs, without facts to support them, do not constitute prima facie evidence of the minors best interests. Here, it is not enough to assert, as appellant does, that the minor should be returned to her because they were closely and positively bonded.

At the time of the hearing on the modification petition, the minor had been out of appellants custody for a substantial period of time. Appellants petition, therefore, is deficient because it contains few, if any, facts relating to the minors current circumstances.

Appellants brief emphasizes the strength of the bond with the minor and the efforts she was making to become a better parent. But appellant says little about the minors circumstances and feelings, and little about the possibility that, even after modification in the form of additional services, she might not be able to achieve reunification with the minor. As DHHS noted, appellants focus appeared to be on herself, rather than on the minor.

Most importantly, appellant did not allege any facts that the minors needs for permanence and stability would be promoted either by an extended period of reunification services or by return to a parent who had been unable to demonstrate only months before that the programs in which she decided to participate had resulted in sufficient changes in her behavior to permit the minor to reside with her safely.

In Kimberly F., supra, 56 Cal.App.4th 519, the appellate court warned against the juvenile court simply comparing the situation of the natural parent with that of a caretaker in determining a section 388 petition. It termed such an approach the simple best interest test. (Kimberly F., supra,at p. 529.) Instead, the appellate court found that determining a childs best interests under section 388 required an evaluation of a number of factors, including the seriousness of the reason for the dependency action, the existing bond between parent and child and caretaker and child, and the nature of the changed circumstances. (Kimberly F., supra,at pp. 529, 532.) The court suggested it was unlikely a parent who lost custody because of sexual abuse of a minor could prevail on a section 388 petition, whereas in a dirty house case, which was present in Kimberly F., the changes of success were greater. (Kimberly F., supra, at pp. 531, fn. 9, 532.) In Kimberly F., the court concluded the decision to deny the section 388 petition was based largely and improperly on the juvenile court judges adoption of the narcissistic personality rationale, which the judge had applied to the mother in that case. (Kimberly F., supra, at p. 533; see id. at pp. 526, 527, 532-533.)

In this case, in denying appellants section 388 petition, the juvenile court did not discuss the factors analyzed in Kimberly F., supra, 56 Cal.App.4th 519. However, evidence of all of the critical factors contained in Kimberly F., including the basis of the dependency action, the relationship between appellant and the minor, and the nature of the alleged changed circumstances, was before the court. The courts comments about the case suggest it considered carefully all pertinent circumstances. On the record before it, the court concluded that appellant failed to sustain her burden. Under the abuse of discretion standard, we see no error in that determination.

The juvenile court was required by statute ( 388) to focus on the minors best interests in deciding whether to grant the petition for modification. As we have seen, those interests consist of the minors needs for stability and permanence. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Childhood cannot wait for a parent to establish readiness for parenting. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) Here, the minor had shown the ability to adjust to several different foster care placements. On the other hand, apparently appellant was still working on the problems that had contributed to the dependency proceedings. On this record, it is not surprising that the court ruled the minor should not be forced to wait any longer.

We agree with DHHS that the record of appellants efforts demonstrates a showing of changing rather than changed circumstances. By including a request for additional services in her petition, even appellant acknowledged the possibility of a continuing need for assistance. Moreover, although recognizing the efforts made by appellant, DHHS also opined that appellant had only begun to make the necessary changes required to become the kind of parent to which the minor was entitled. According to DHHS, the minor needed the stability afforded by an empathetic, patient, loving family, for which the minor should not have to wait.

Appellant makes much of one of the factors discussed in Kimberly F.: The nature of the bonds existing between the minor and the minors parents and foster parents. According to appellant, the minor had retained his strong bond with appellant, but had no significant bond with any foster parent. The record, however, is not so supportive of appellants position. It indicates the following: Appellant had caused some difficulties at visits in the past, she was not as close to the minor as she had been previously and, as we have emphasized, her petition failed to aver how the minors best interests would be promoted by changing court orders.

Under the circumstances of this case, the juvenile court did not act arbitrarily, capriciously, or beyond the bounds of reason in denying appellants petition for modification. The courts implicit determination that the minors need for permanency compelled denial of the petition and served the minors best interests was reasonable and is supported by the record. (Cf. In re Edward H., supra, 43 Cal.App.4th at p. 594.) In sum, appellant failed to make the necessary showing, as required by section 388, that a modification would promote the best interests of the minor. (Compare In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416, with In re Heather P. (1989) 209 Cal.App.3d 886, 891.) There was no abuse of discretion or other error in the courts decision. (Cf. In re Daijah T. (2000) 83 Cal.App.4th 666, 673-675.)

DISPOSITION

The orders denying appellants petition for modification and terminating the parental rights of appellant are affirmed.

HULL, J.

We concur:

BLEASE , Acting P.J.

ROBIE , J.

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