In re K.P.

Filed 11/24/09 In re K.P. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Bradley O. Snell, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant T.P.

Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.

Linda Rehm, under appointment by the Court of Appeal, for Minor.

Appellant T.P. (mother) contends that the juvenile court abused its discretion in summarily denying her Welfare and Institution Code^[1]section 388 petition regarding her daughter, K.P. (the child). We affirm.^[2]

FACTUAL AND PROCEDURAL BACKGROUND

The Riverside County Department of Public Social Services (the department) filed a section 300 petition on March 14, 2006, on behalf of the child, who was five years old at the time. The petition alleged that the child came within section 300, subdivision (b) (failure to protect). The petition specifically alleged that mother admittedly abused controlled substances; she attempted suicide on February 21, 2006; she had a long history of mental illness and was not following through with recommended mental health treatments; she had received family maintenance and reunification services for seven other children, from October 1995 to January 1997, and family maintenance services as to the child from May 2001 to June 2002, but she failed to benefit from such services; her parental rights were terminated as to two other children; she had a history of using inappropriate physical discipline with the child; she had a criminal history; and she engaged in domestic violence with the childs father (father)^[3]in the childs presence.

The social worker filed a detention report stating that mother had a total of 11 children. She reportedly lived with one of her adult daughters. The department received a referral when mother attempted suicide by hanging. She was transported to the hospital and tested positive for cocaine and marijuana. Mother said she staged her suicide attempt in order to get attention because she wanted to get Social Security Income (SSI). She admitted that she had a long history of drug use and that she had been diagnosed with bipolar disorder and manic depression. Furthermore, the social worker reported that the department had received numerous referrals with regard to her other children, alleging general and severe neglect. It was reported that all 10 of her other children had been removed from her by the department at various times. She failed to reunify with any of them, and her parental rights were terminated as to two of them.

Mother failed to appear at the detention hearing on March 15, 2006. The court detained the child in foster care. The child was later placed with her cousin, M.R.

Jurisdiction/disposition Report and Hearing

The social worker filed a jurisdictional/dispositional report on March 30, 2006, recommending that the court declare the child a dependent of the court, and that mother be denied reunification services under section 361.5, subdivisions (b)(10) and (b)(11).^[4] The social worker opined that mother did not have the capacity to properly care for the child because of her psychological needs. Mother did not seem to comprehend the severity of the combination of her drug and alcohol use with her mental health disorders. She had failed to seek proper treatment for her substance abuse or mental health problems. Mother was transient and had not provided the child with a consistent living environment. Instead, she left the child with various relatives for long periods of time. At the time of the writing of the report, mother had failed to follow up with the social worker to be interviewed further or receive referrals for services.

Mother failed to appear for a jurisdictional hearing on April 4, 2006. A contested hearing was set for April 27, 2006.

A contested jurisdictional/dispositional hearing was held on April 27, 2006, and mother failed to appear. The court found the child came within section 300, subdivision (b), declared her a dependent, and continued the matter. The court also denied mother reunification services under section 361.5, subdivisions (b)(10) and (b)(11). Father was ordered to participate in reunification services.

Six-month Status Review Report and Hearing

The social worker filed a status review report and recommended the child continue to be a dependent and that reunification services be continued for father. The child was doing well in the home of her cousin, M.R. At the six-month review hearing on December 11, 2006, the court followed the recommendations.

12-month Status Review Report and Hearing

The social worker filed a report on April 6, 2007, and recommended that fathers reunification services be terminated and that a section 366.26 hearing be set, with adoption as the permanent plan. Father had not participated in services. M.R. told the social worker that she was very interested in adopting the child.

However, in an addendum report filed on May 24, 2007, the social worker reported that M.R. was no longer interested in adopting the child due to pressure and harassment from her family. Subsequently, mother contacted the social worker and said she wanted to obtain custody of the child. Mother was receiving SSI as her sole income and was in an outpatient substance abuse treatment program.

At the 12-month review hearing on June 26, 2007, mother appeared with counsel. The court terminated fathers reunification services, set a section 366.26 hearing for October 22, 2007, and ordered adoption as the permanent plan. The court authorized visits between mother and the child, as directed by the department.

Section 366.26 and Section 366.3 Reports and Hearings

On October 17, 2007, the social worker filed an addendum report recommending that the court continue the section 366.26 hearing for 90 days, since the child had not been placed in a prospective adoptive home. The social worker reported that the child had some visits with a prospective adoptive parent and that the child was likely to be placed in that home at the end of November. The court continued the hearing to January 22, 2008.

The social worker then filed a section 366.26 and a section 366.3 report on January 11, 2008. The social worker requested another continuance because the preliminary adoption assessment had not yet been completed. The child had been placed in the prospective adoptive home on November 17, 2007, and was adjusting well. The hearing was continued to April 21, 2008.

On April 15, 2008, the social worker filed an addendum report informing the court that the prospective adoptive caregiver had a sudden death in her immediate family and determined that she was not prepared to adopt. The child was then placed in a temporary shelter on February 16, 2008. Another prospective adoptive home was then identified, and the child had had three visits with the family. The social worker anticipated the child would be placed in this prospective adoptive home in April or May 2008. Thus, the social worker requested a continuance to allow for placement and an adoption assessment to be performed. The court granted a continuance to August 18, 2008.

The social worker next filed a section 366.3 report on July 1, 2008. The social worker reported that the last documented contact from mother was in January 2008, when mother cancelled her visit with the child. The social worker further stated the prospective adoptive mother reported the child was having behavioral issues, including physically and verbally hurting the other children in the home. Due to the childs behavior, the prospective adoptive mother informed the department that she was unable to care for the child anymore. The child was placed in a foster home but continued to exhibit inappropriate behavior.

At the hearing on August 18, 2008, the parties stipulated that the hearing be continued to December 15, 2008.

The social worker filed an addendum report on November 26, 2008, requesting the court to grant a 90-day continuance a preliminary home assessment for another prospective adoptive home that the child moved into on November 17, 2008. The court continued the hearing to January 15, 2009.

In a report filed on December 24, 2008, the social worker stated the child was in a stable environment and was receiving excellent care from her foster parents. They were committed to proceeding with adoption.

At the section 366.26 hearing on January 15, 2009, mother did not appear but was represented by counsel. Counsel for the child requested the matter to be continued to allow the child more time in her current placement to ensure that it would be a stable home for her. The court agreed to continue the hearing.

Section 388 Petition

Mother filed a section 388 petition on March 16, 2009, requesting the court to return the child to her custody under a family maintenance plan, or in the alternative, to reinstate her reunification services. As to changed circumstances, mother stated that she began the Shields for Families program and listed the classes she was attending, including anger management and parenting. She was also participating in counseling, drug treatment, drug testing, and psychiatric evaluations. Mother also stated that she was working on obtaining her general education degree and stable housing, and that she was testing clean and complying with her medications. As to the best interests of the child, mother simply stated there was a strong bond between her and the child. The court summarily denied mothers petition because it did not state new evidence or a change of circumstances. The court noted that the letter mother attached from Shields for Families indicated that she had just entered into the program within the last month. The court stated that, since the child was removed three years ago, mothers participation in the program was too little too late.

The court continued on to the section 366.26 proceeding. It heard testimony from the child, who was then eight years old. The child testified that the last time she saw her mother was when she was five years old. She said she loved her mother but wished to be adopted by her current caregivers. She understood that she might not be able to see her mother anymore. After reviewing the evidence and hearing the testimony, the court found the child to be adoptable and terminated parental rights.

ANALYSIS

The Court Properly Denied the Section 388 Petition

Mother contends the court abused its discretion in denying her section 388 petition without a hearing. We disagree.

A. Standard of Review

A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. [Citation.] A parent need only make a prima facie showing of these elements to trigger the right to a hearing on a section 388 petition and the petition should be liberally construed in favor of granting a hearing to consider the parents request. [Citation.] [] However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] 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. [Citation.] (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) More than general conclusory allegations are required to make this showing, even when the petition is liberally construed. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) A court need not order a hearing if it does not appear from the petition that the best interests of the child may be promoted by the proposed change of order. (Zachary G., supra, at p. 807.)

B. The Court Did Not Abuse Its Discretion

The court here declined to order a hearing on mothers petition, finding that it did not state new evidence or a change of circumstances.. We find no abuse of discretion in the courts ruling. The petition alleged merely that mother was finally participating in programs to address her numerous problems. However, at the time of the hearing on the section 388 hearing, mother had been enrolled at Shields for Families for only three weeks. At most, she showed only that she was making efforts to effect life changes. Moreover, she provided no evidence that it was in the childs best interests to be deprived of the stability of a permanent home with her prospective adoptive parents, in order to possibly be returned to a parent who had a long history of substance abuse, mental health problems, numerous past failures to reunify with her children, no stable housing, and who had had her parental rights terminated to two of her other children.

Even on appeal, mother fails to show it is in the childs best interests to either return to her custody or provide her with services. Mother states only that her request to obtain reunification services may have served the childs best interests, but she does not even attempt to show how that would be so. She merely asserts that she has a bond with the child and then points out the child has been in the current prospective adoptive home for only five months. Although such length of time has no bearing on how mothers request for reunification services would serve the childs best interests, we note the prospective adoptive parents are meeting all the childs needs and are fully committed to adopting her. Moreover, the child wants to be adopted by them, even if it means never seeing mother again.

We conclude the court did not abuse its discretion in denying mother a hearing on her section 388 petition. Even if the petition did allege an actual change of circumstances, the facts alleged in the petition do not support the conclusion that the childs best interests would be served by the orders requested by mother.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

MCKINSTER

J.

MILLER

J.

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^[1] All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.

^[2] Counsel for the child filed a brief on August 28, 2009, asking this court to affirm the juvenile courts order.

^[3] Father is not a party to this appeal.

^[4] Section 361.5, subdivision (b)(10) provides that reunification services need not be provided to a parent who has previously failed to reunify with any of the childs siblings or half siblings. Subdivision (b)(11) provides that services need not be provided if the parental rights of a parent over any of the childs siblings or half siblings have been permanently severed.