IN RE: D.J.

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Court of Appeal, Second District, California.

IN RE: D.J., a Person Coming Under the Juvenile Court Law. _ LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. A.A., Defendant and Appellant.

B230445

Decided: October 24, 2011

Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Frank J. DaVanzo, Principal Deputy County Counsel, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

A.A. (mother) appeals the summary denial of a Welfare and Institutions Code section 388 petition.1  We conclude the record supports the juvenile court's finding mother failed to show the requested change in order was in D.J.'s best interests.   Thus, the juvenile court committed no abuse of discretion in denying the petition without conducting a hearing.   We therefore affirm the order of the juvenile court.

FACTS AND PROCEDURAL BACKGROUND

1. Detention.

Mother and D.J. came to the attention of the Department of Children and Family Services (the Department) on December 31, 2007, based on a referral indicating D.J. was born prematurely and was at substantial risk for abuse and neglect due to suspected drug use by both parents.   When mother was admitted to the hospital on November 29, 2007, she tested positive for marijuana.   Mother remained hospitalized until D.J. was born approximately three weeks later.

On December 30, 2007, a doctor noticed alcohol on father's breath.   Both parents had “pinpoint pupils,” appeared to be under the influence of heroin and had to be escorted from the hospital.   D.J. was released from the hospital to mother on January 7, 2008.

On January 10, 2008, a social worker met mother at the home of maternal grandmother.   Mother denied the use of drugs and agreed to drug test but repeatedly failed to appear for testing.   A mental health assessment of mother dated January 11, 2008, indicated mother “presents as depressed.   She needs further mental health treatment to address issues of abandonment and past thoughts of hopelessness.  [Mother] may have used marijuana in the past to ‘self-medicate’ to ease her symptoms of depression.  [Mother] appears to be in denial regarding her drug use but does acknowledge the need for counseling services.”

On February 7, 2008, at a team decision making meeting to discuss a voluntary family maintenance plan, mother stated she formerly smoked marijuana but stopped when she learned she was pregnant.   Mother appeared disheveled and said she had been living in a motel with the child and father.   When mother stated father was waiting outside with the child, the social worker asked mother to bring father inside but she refused and left the meeting.   The social worker followed mother and found father in a car with the child.   Father refused to speak to the social worker and mother left with father despite the social worker's request that she stay and resolve the situation.

On February 8, 2008, mother appeared at the Department office and stated she now was living with her maternal grandmother.   The social worker explained that, because mother failed to drug test and a mental health assessment indicated mother suffered from depression, the Department was unable to ensure D.J.'s safety in mother's care.   The social worker offered mother a voluntary family reunification agreement until the recommended mental health services were in place.   After mother became upset and angry, the Department took D.J. into protective custody.

On February 13, 2008, the Department filed a dependency petition alleging mother's unresolved substance abuse issues put D.J. at risk. (§ 300, subd. (b).)

2. Adjudication and disposition.

The jurisdiction report filed March 14, 2008, indicated mother is a former dependent child whose case recently had been closed.   Mother's foster care records indicate she was referred for therapeutic services but did not receive them as she was AWOL from her placement.

On March 14, 2008, the juvenile court granted mother monitored visitation.

On March 20, 2008, mother was arrested for possession of cocaine base for sale.  (Health & Saf.Code, § 11351.5.) Mother was released from custody on March 24, 2008.   Maternal great aunt, who had been mother's legal guardian, indicated she was willing to care for D.J.

On March 28, 2008, mother submitted to the jurisdiction of the juvenile court.2

A social report prepared for disposition indicated mother and father visited D.J. on April 2, 2008, but arrived 30 minutes late, and visited again two days later.   On April 8, 2008, mother failed to appear for a scheduled visit.

On April 14, 2008, the juvenile court ordered mother to participate in individual counseling to address case issues, and to attend parenting and substance abuse counseling.   Mother enrolled in a drug treatment program but was discharged for lack of participation and missed drug tests.

3. D.J. is placed with maternal great aunt and then Ms. B.

In June of 2008, D.J. was placed with maternal great aunt who indicated mother spent time with D.J. every day.   Mother attended the child's appointments with maternal great aunt and stated she wished to live with maternal great aunt to help care for the child.

On August 27, 2008, D.J. was moved to a foster family agency home after mother took the child from his babysitter at a park.   Mother stated maternal great aunt was not providing proper care.   In October of 2008, the Department reported mother had not visited D.J. since August 27, 2008.

A social report filed December 10, 2008, indicated D.J. had been placed with Ms. B., who had cared for him before he was placed with maternal great aunt.   Mother was arrested on October 22, 2008, for possession of a gun.   The social worker visited mother in jail.   Mother stated she was participating in counseling and wanted to reunify with D.J. Mother was released from jail on November 29, 2008, but did not contact the social worker for visits.

4. Termination and reinstatement of parental rights.

On December 10, 2008, the juvenile court terminated family reunification services and set the matter for a permanency planning hearing.

A social report filed in April of 2009, indicated Ms. B. had been identified as D.J.'s prospective adoptive parent.   Investigation revealed Ms. B. had been the subject of a dependency referral in 2008 which had not yet been discussed with her because it occurred in another county.   Ms. B. indicated willingness to maintain contact with mother and father as long as these relationships remained in D.J.'s best interest.

In June of 2009 the Department reported mother had been incarcerated in April and was released on May 4, 2009.   Mother visited D.J. three times in May at the foster agency office.   She briefly enrolled in a program but had not contacted the social worker.

On December 7, 2009, the Department reported Ms. B.'s home study had been approved and Ms. B. was looking forward to making D.J. a permanent member of her family.   Mother had not visited since May 29, 2009.

On August 18, 2010, the juvenile court reinstated mother's parental rights and again set the case for a permanency planning hearing.

5. Social reports prepared for the permanency planning hearing.

A social report prepared for November 29, 2010, indicated D.J. continued to do well in the care of Ms. B. Mother visited twice in August of 2010, twice in September of 2010, and on October 7, 2010.   Mother interacted appropriately with child during the visits and engaged the child in age-appropriate activities.   Live scan of Ms. B. indicated she was arrested for assaulting a peace officer in 1991.   Ms. B. disclosed this arrest occurred as a result of her videotaping a confrontation between police officers and her brother on their property.   The incident was not believed to present a threat to D.J.'s safety in her home.

A status review report prepared for November 29, 2010, indicated mother was arrested on October 14, 2010, and she had not been in contact with the Department.   The report indicated D.J. had developed a “positive and strong bond to Ms. B. and her children.   He has become a part of the family and Ms. B. continues to want to provide him with a permanent home through adoption.   He continues to do very well in the home and Ms. B. continues [to] meet his needs while ensuring that he is in a stable and loving environment.”

The juvenile court continued the permanency planning hearing for a contested hearing.  (CT2 97

6. Mother's section 388 petition;  final social reports.

Two weeks before the contested hearing, mother filed a section 388 petition seeking reinstatement of family reunification services.   The petition indicated mother completed a parenting class in April of 2010, and substance abuse counseling in October of 2010.   Mother also had been participating in individual therapy at Shields for Families, and she visited D.J. on a weekly basis.   Attached to the petition was a certificate of participation in a 12–week parenting support group, and a completion certificate for a program entitled “Nurturing Families Affected by Substance Abuse, Mental Illness and Trauma” at Prototypes Women's Center from August 31 to October 7, 2010.   A letter from mother's counselor at Prototypes indicated mother entered the program in June of 2010, was enrolled in various programs and had made “wonderful progress.”

A social report filed January 24, 2011, indicated mother visited D.J. on December 9 and 28, 2010, at the Department's office.   No concerns were noted during either visit.   During the second visit, D.J. became tired after an hour and a half and asked for his “Mama,” referring to Ms. B. The social worker observed the child to have a close relationship with Ms. B. and to identify her as his mother.   Although the child appeared to enjoy interacting with mother, before the end of the visit, the child was eager to return to Ms. B.

7. Summary denial of mother's petition and termination of parental rights.

On January 24, 2011, the juvenile court conducted the contested permanency planning hearing.   At the start of the hearing, the juvenile court indicated it had reviewed mother's section 388 petition.   The juvenile court noted it “does appear that there may be a change in circumstances.   However, based on the visitation that's been described in the current report and previous reports,” the juvenile court was “not inclined to ․ set it for a hearing.”   Mother's counsel objected, noting the petition should be construed liberally to allow for a hearing.   The juvenile court agreed but indicated the requested modification was “not in the best interests of the child.”   Mother's counsel then offered to prove mother's recent incarceration had been based on a false positive drug test.   The juvenile court responded mother's section 388 petition did not include any information regarding an erroneous drug test and indicated it had ruled on the merits of petition filed by mother and the social reports filed by the Department.

With respect to the permanency planning hearing issues, mother testified she essentially lived with D.J. when he was in the care of maternal great aunt.   While D.J. was in foster care in August of 2008, mother visited every day for a month.   During the time mother's parental rights were terminated, mother was not allowed to visit.   After parental rights were reinstated, mother visited twice a month, which was as often as the social worker scheduled mother to see the child.   Mother testified that, on one of the visits, D.J. referred to her as mother and cried when she left.   Mother indicated she and the child are bonded and she wanted her son to be with her.

After hearing argument, the juvenile court terminated mother's parental rights.

CONTENTIONS

Mother contends her section 388 petition demonstrated that reinstitution of family reunification may have served D.J.'s best interests.   Thus, the summary denial of the petition was error.   Mother further contends the failure to hold a hearing on the petition requires reversal of the order terminating her parental rights.  (In re Lesly G. (2008) 162 Cal.App.4th 904, 916.)

DISCUSSION

1. General principles.

Section 388 permits an order of the juvenile court to be changed, modified or set aside 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.  (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)

A section 388 petition must be liberally construed in favor of its prima facie sufficiency.  (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)  “A ‘prima facie’ showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations ․ is credited.   [Citation.]”  (In re Edward H. (1996) 43 Cal.App.4th 584, 593.)

When a section 388 petition is filed after a parents' reunification services have been terminated, in assessing whether the petition has made the required prima facie showing, the juvenile court must be mindful that “the parents' interest in the care, custody and companionship of the child are no longer paramount.   Rather, at this point ‘the focus shifts to the needs of the child for permanency and stability’ [citation]․”  (In re Stephanie M., supra, 7 Cal.4th at p. 317.)  “While the bond to the caretaker cannot be dispositive ․, our Supreme Court made it very clear in [In re Jasmon O. (1994) 8 Cal.4th 398, 408, 414–422] that the disruption of an existing psychological bond between dependent children and their caretakers is an extremely important factor bearing on any section 388 motion.”  (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531.)

The juvenile court may summarily deny a section 388 petition if the petition fails to make the required prima facie showing.  (In re Angel B. (2002) 97 Cal.App.4th 454, 460–461.)   We review a summary denial of a section 388 petition for abuse of discretion.  (In re Aaron R. (2005) 130 Cal.App.4th 697, 705;  In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)

With these principles in mind, we turn to mother's contention.

2. Mother's arguments.

Mother asserts her petition suggested she had overcome the relatively minor problem that led to dependency jurisdiction, namely, mother's marijuana use.   Mother notes her petition indicated she had completed a drug treatment program, participated in therapy and completed a parenting education course.   Although mother was arrested for possession of cocaine base for sale early in the case, she never tested positive for anything other than marijuana and she did not have a history of recovery and relapse that suggested her sobriety would be short-lived.

Mother further asserts the record showed she shared a positive relationship with D.J. Mother notes she was appropriate during visits, D.J. appeared comfortable in her presence and her positive interaction with D.J. created a bond between them.   Mother argues a hearing would have allowed her to present additional evidence regarding her progress in counseling which might have established that D.J.'s interests would be served by reinstitution of family reunification services.

Mother concludes her petition established a prima facie showing of a favorable change in her circumstances and benefit to D.J. such that summary denial was error.

3. No abuse of the juvenile court's discretion appears.

With respect to the changed circumstances element, it appears the juvenile court would have been justified in finding against mother on this issue.   Mother's petition showed only that mother had completed a parenting class and a six-week course on the effects of substance abuse, mental illness and trauma on families.   The record showed mother had been in and out of jail during the dependency proceedings and she was jailed in October of 2010, apparently for violation of probation.   Mother claims she never tested positive for any drug other than marijuana.   However, she was arrested for possession of cocaine base for sale in March of 2008, mother enrolled in substance abuse programs during the pendency of the case but failed to complete any of them, and mother repeatedly had refused to drug test.   Thus, although mother completed some programs, she failed to demonstrate her circumstances truly had changed.

In any event, the juvenile court essentially agreed mother had shown changed circumstances in that it stated, “there may be a change in circumstances.”   The juvenile court denied a hearing because mother had failed to show the requested change in order would benefit D.J. The juvenile court's finding in this regard is amply supported by the record.

D.J. was in Ms. B.'s care from March through June of 2008, and from December of 2008 to the present.   Thus, D.J. had been in the care of Ms. B. for most of his life.   The social reports indicate D.J. regarded Ms. B. as his parent.   Further, Ms. B.'s was willing to provide D.J. permanency through adoption.   Mother's contact with D.J., on the other hand, was minimal after D.J. was removed from maternal great aunt in August of 2008.   The record reflects mother did not visit D.J. from August 27, 2008, until May of 2009, when she visited him three times at the foster agency office.   Mother's next visited D.J. in August of 2010.   Mother visited twice in August, twice in September and once in October of 2010.   She was arrested in October 14, 2010, and thereafter visited twice in December of 2010 and once in January of 2011.   Mother's record of visitation demonstrated her bond with D.J. was minimal, especially when compared with Ms. B.'s relationship with D.J. In refusing to grant a hearing on the petition, the juvenile court expressly referenced “the visitation that's been described in the current report and previous reports.”

The juvenile court's reliance on mother's failure to visit D.J. over the entire course of the dependency proceedings warranted its finding mother's section 388 petition failed to establish a prima facie showing the proposed modification would be in D.J.'s best interests.   Consequently, given the circumstances presented, no abuse of the juvenile court's discretion appears in the summary denial of mother's section 388 petition.

DISPOSITION

The order of the juvenile court is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Subsequent unspecified statutory references are to the Welfare and Institutions Code..  FN1. Subsequent unspecified statutory references are to the Welfare and Institutions Code.

FN2. The sustained petition alleged mother has an unresolved history of substance abuse, including the use of marijuana, which periodically renders mother unable to provide regular care..  FN2. The sustained petition alleged mother has an unresolved history of substance abuse, including the use of marijuana, which periodically renders mother unable to provide regular care.

CROSKEY, J. ALDRICH, J.