In re A.V.

Filed 8/27/08 In re A.V. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Valeriano Saucedo, Judge and Charlotte A. Wittig, Commissioner.

David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.

Kathleen Bales-Lange, County Counsel, and John A. Rozum, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant, T. E., appeals from orders of the juvenile court rejecting her petition pursuant to Welfare and Institutions Code section 388^[1]to modify earlier orders of the court denying her reunification services and her motion to continue the hearing, as well as the order terminating her parental rights as to four of her children pursuant to section 366.26. After consideration of appellants argument, we will affirm the juvenile courts judgment.

FACTS AND PROCEEDINGS BELOW

On February 9, 2007, a petition was filed alleging appellant failed to protect ( 300, subd. (b)) and failed to support ( 300, subd. (g)) her six children who were between the ages of four months to nine years. The investigating social worker went to appellants residence on February 8, 2007 and filed a report. According to the social worker, appellants one-year-old child had been left alone in a crib. No one else was at home. An older child had to crawl into a window to enter the home. The older child reported not eating the prior evening because there was no food at home. The social worker took the two children present, placed them in a van, and called the sheriffs department.

A neighbor from across the street told the social worker she had seen appellant with three of her children at 9:00 a.m. that morning, but appellant did not have the one-year-old with her. According to the neighbor, appellant was always leaving her children alone. The neighbor checked the one-year-old at 10:00 a.m. The child was alone in a crib with a wet diaper. A second neighbor confirmed that appellant often left her children alone.

A sheriffs deputy brought appellant to the social workers van. Appellant told the social worker one of her boys had a kidney condition and was scheduled to have surgery. Appellant denied leaving the one-year-old with anyone or leaving the child alone. Appellant denied that she failed to feed her children the prior evening. The sheriffs deputy arrested appellant. One of appellants daughters was found at her aunts home.

While in the social workers van, the one-year-old grabbed at pieces of food fed to her by a neighbor. The child was obviously very hungry. The other children with the social worker also ate. Other children were found at another address. They were all hungry and crying. The children were detained on February 13, 2007.

A social workers report prepared in March 2007 for the jurisdiction/disposition hearing noted appellants home was found to be filthy and she had a history of prior referrals for allegations of substance abuse, lack of food, and neglect. As of the time of the social workers report, appellant had not contacted Child Welfare Services (CWS) concerning visitation. The social worker could not find appellant and appellant failed to leave a working telephone number.

The social worker believed reunification of the children with appellant would be detrimental to the children. ( 361.5, subd. (b)(10), (11), & (12).) The children were at risk of being neglected by their mother, had been placed in a stable environment, and were bonding well with their foster parents. The social worker concluded there were no further services that would prevent the need for further detention. Appellant had failed reunification services for another child in the past, leading to the termination of her parental rights for that child.

Appellant failed to appear at the combined jurisdictional/dispositional hearing on April 3, 2007. One allegation in the petition was amended to reflect that appellant was no longer incarcerated and one allegation made pursuant to section 300 subdivision (g) was dismissed. The parties submitted the case on the reports of the social worker and appellants counsel presented no evidence. The court found the allegations, as amended, true.

On July 5, 2007, the social worker filed a report pursuant to section 366.21, subdivision (e) and section 366.26. The report recommended a permanent plan of legal guardianship for two children with an aunt and adoption as a sibling group for the other four children. The children were all doing well in their placements. All of the children had strong sibling relationships. The two children staying with their aunt were older and told the social worker they wanted to stay with her.^[2] The children had several contacts with each other.

At the time the social worker prepared her report, appellants whereabouts were unknown. Because of appellants prior history, she was not granted reunification services or visitation. The social worker had no form of contact with appellant. On July 16, 2007, appellant called the social worker to report that she had entered the Mothering Heights program on July 7, 2007.

The social worker filed a new section 366.26 report on August 21, 2007. Two of the older children indicated they want to stay with their aunt. The aunt is committed to the care of these two children. The placement plan was for the aunt to become the legal guardian of these children. The aunt loves the children. A couple had been identified who were interested in adopting the other four children.

Since entering the Mothering Heights program, appellant made only one attempt to contact the social worker concerning the well being of her children. At the hearing on September 21, 2007, appellants counsel made an offer of proof without objection that appellant had been in the Mothering Heights in-patient treatment program since July 7th. Counsel had a letter from that program stating appellant was completing and meeting the program requirements. The court accepted the offer of proof. Appellants counsel then argued that the court should not proceed with adoption because it would substantially interfere with sibling relationships.

The aunt was made the legal guardian of the two older children. The court found that visits with all of the children by appellant were detrimental to their best interest based on lack of contact and the childrens need for stability.

A social workers report filed on December 31, 2007, indicated that the four children who remained together had begun pre-placement visits with a prospective adoptive family. All of the children had been deemed adoptable. The social worker noted the prospective adoptive foster parents were showing patience and cooperation for the special needs of each young child. Adoption would not significantly interfere with sibling relationships because the four younger children were being placed in one family and were in regular visitation with the two older children.

A social workers status review report on the two older children living with their aunt was filed on January 10, 2008. Both children were doing well in school and were involved in positive activities outside school such as church choir, soccer, and Cub Scouts. The children indicated they would like to have visits with their mother, although one of the children pointed to the aunt and said he wanted to stay with his aunt. Appellant had completed her six-month residential program at Mothering Heights and planned to reside in a transitional living program in Hanford for one year. Residents must participate in various groups, parenting classes, and attend NA/AA meetings. The social worker recommended that the children remain placed with their aunt and that, in the aunts discretion, they have visitation with appellant.

The section 366.26 hearing was noticed for a hearing on January 18, 2005. On January 15, 2008, appellants counsel filed a notice of motion to continue the section 366.26 hearing. The hearing for the continuance motion was set for 8:30 a.m. on January 16, 2008.

On January 16, 2008, the juvenile court informed counsel that his motion was not in the proper form because it did not have a proof of service or a declaration. Counsel for the agency objected to the motion. Appellants counsel explained he had talked to the social workers assigned to this case and there was an extreme amount of activity behind the scenes. The court explained that appellants counsel failed to file a declaration with his motion. Counsel said he would do so. The court found the motion to continue was not properly filed and denied it.

Appellants counsel filed a notice of motion to continue the hearing, a declaration, and a declaration of notice of an ex parte hearing on January 17, 2008. Counsel declared that: he was appellants attorney of record, appellant had completed the six-month Mothering Heights residential treatment program, appellant was in a transitional living home where she resides with a newborn child as of January 4, 2008, appellant had been sober for six months, and appellant was taking excellent care of her newborn child. Counsel further declared that a social worker team leader strongly agrees with a continuance. Counsel declared that without a continuance, he would not be able to adequately prepare a section 388 petition.

Counsel filed a form JV180 that stated counsel was informed and believed that appellant was in a transitional living home after having completed a six-month residential in-patient substance abuse program. The transitional living home had a Champions program with a very detailed structure where a mother and her children would have support in the home and the children have group leaders to assist the parents. This programming provides cutting edge family treatment. Appellant can reside in the transitional home up to two years.

The court found the motion was not properly filed and denied the motion for a continuance without prejudice. On January 18, 2008, appellants counsel renewed his motion to continue the case. The court denied appellants section 388 petition finding there was no showing that granting the petition was in the best interests of the children. Counsel explained he sought a very short continuance to provide the court with information that the children could be placed in the mothers new residential home and the treatment provided at the home was cutting edge treatment.

The juvenile court questioned whether counsel was following the statutory requirements for a continuance as set forth in section 352.^[3] Counsel argued that his section 388 petition was founded on due process. Counsel for the agency objected to the motion for a continuance as not following section 352. The court, however, noted it could still consider appellants oral motion. Counsel for the minors did not object to a continuance up to one week.

The court explained that the problem with counsels offer of proof was its failure to support a finding that the proposed modification would be in the best interests of the children. The court observed that the fact there may be a facility available where the children could stay does not explain the mothers relationship to her children. The court noted the facts indicate the mother had not contacted the children since July. The court found no good cause for a continuance and that the mother failed to bring this information to the court in a more timely manner. The court denied the motion for a continuance and the section 388 petition.

The parties submitted the matter on the social workers reports. No party submitted other evidence. The court finalized the permanent plan as to the two older children with the termination of dependency as to those children to occur on February 9, 2008, unless a party placed the matter on calendar prior to that date. The court adopted the recommendations of the social worker that the two older children be permitted supervised visitation with appellant and continued visitation with their younger siblings. The court terminated appellants parental rights as to the four younger children. Appellants counsel filed a petition for rehearing on her section 388 petition renewing her motion, which was denied on February 5, 2008.

APPELLANTS SECTION 388 PETITION

Appellant argues the court abused its discretion by denying her section 388 petition as well as her motion for a continuance to provide more information concerning her petition. Appellant also contends the court abused its discretion in denying her motion to continue the hearing. We disagree.

We initially note that appellants motion for a continuance failed to establish good cause for even a brief delay in the proceedings. The motion was brought literally on the eve of the scheduled section 366.26 hearing. The information concerning appellants completion of the Mothering Heights program and her acceptance into the transitional living home was available in late December 2007 or early January 2008, two or more weeks prior to the ex parte hearing on January 17, 2008, and the renewed motion for a continuance the following day, the day of the section 366.26 hearing. Continuances of hearings to terminate parental rights are discouraged and a juvenile courts denial of such a motion is reversed on appeal only upon a showing of abuse of discretion. (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)

It was appellants burden of proof to show there was new evidence or there were changed circumstances that made a change of the childrens 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; see also Cal. Rules of Court, rule 5.570(a).)

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)]) require 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 courts ruling that appellant failed to sustain her burden for a section 388 petition. Although appellant was finally beginning to deal with her drug dependency, she only recently completed the residential in-patient program. Appellant had very little contact with any of her children. Although appellant was moving to a transitional residential facility, her circumstances were not completely stable. Appellant was apparently still receiving parental training and treatment services for her substance and/or alcohol abuse in the transitional residential facility.

Equally important, appellant failed to state any evidence or fact in the petition establishing that it would be in the best interests of her children for her to have custody. Appellants counsel only set forth a general and conclusory statement that appellant was sober and that she could provide housing for her children at the transitional residence. Even liberally construing appellants section 388 petition, we cannot find she made a prima facie showing to the trial court that her changed circumstances were in the best interests of her children. Appellant failed to establish a significant bond with any of her six children. Appellants argument ignores her childrens need for stability and care.

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 childs 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 motion brought, as in this case, shortly before and during the section 366.26 hearing, we look to the Supreme Courts decision in Stephanie M. At this point in the proceedings, a parents interest in the care, custody, and companionship of his or her children is no longer paramount. Rather, once reunification efforts end, the focus shifts to the childrens 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 childrens need for permanence and stability in advocating her position. Neither the juvenile nor this court, however, may do so.

DISPOSITION

The orders denying appellants motion for a continuance and her section 388 petition are affirmed. There being no separate challenge to the courts selection of permanent plans for the children, including the termination of appellants parental rights as to the four younger children, the courts section 366.26 findings and orders are affirmed as well.

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^* Before Vartabedian, Acting P.J., Dawson, J. and Kane, J.

Judge Saucedo heard and ruled on appellants motion to continue of January 17, 2008; Commissioner Wittig heard all other matters.

^[1] Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.

^[2] Only one presumed father had been located. No presumed father was involved with the children. !(CT 149-150, 156-157, 164)!

^[3] Section 352, subdivision (a) provides:

(a) Upon request of counsel for the parent, guardian, minor, or petitioner, the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minors interests, the court shall give substantial weight to a minors need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.

Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance. Neither a stipulation between counsel nor the convenience of the parties is in and of itself a good cause. Further, neither a pending criminal prosecution nor family law matter shall be considered in and of itself as good cause. Whenever any continuance is granted, the facts proven which require the continuance shall be entered upon the minutes of the court.

In order to obtain a motion for a continuance of the hearing, written notice shall be filed at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains an oral motion for continuance.