IN RE: JESUS O. et al. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Jesus O. (born Jan. 1999) and Alondra O. (born Sep. 2003) were removed from the care of their mother, Veronica L. (mother), in 2005 because mother was using amphetamines and methamphetamines and could not properly care for them.   After an initial period of noncompliance with the juvenile court's family preservation order, mother made efforts to resolve her drug addiction and attended parenting classes and individual counseling.   Unfortunately, after a period of sobriety in 2006, mother disappeared from the children's lives and did not see or contact them for two years.   During that period, the children were in four different foster homes.   They ultimately were placed with prospective adoptive parents, with whom they are now living.

At about the time the children were placed in their prospective adoptive home, mother contacted the Department of Children and Family Services (DCFS), advised that she had finished an outpatient drug program, parenting education, and individual counseling and had continued to randomly drug test with negative results.   She filed a Welfare and Institutions Code section 388 petition,¹ asking the court to reinstate family reunification services and visitation.   The trial court summarily denied her petition and terminated her parental rights.   Mother appeals from both orders, contending that the court erred by failing to conduct a hearing on her petition.

Although we applaud mother's efforts to overcome her many challenges, including long-term drug addiction, the trial court manifestly did not abuse its discretion in concluding that giving mother another chance to reunify with her children was not in their best interests.   The children have not lived with mother for more than four years, have bonded with their current prospective adoptive parents, and do not wish to return to mother's care.   Accordingly, we affirm the orders denying mother's section 388 petition and terminating parental rights.

FACTUAL AND PROCEDURAL HISTORY

I. Detention and Dependency Petition

On June 8, 2005, DCFS received a referral alleging general neglect of six-year-old Jesus and one-year-old Alondra.   DCFS offered mother voluntary, in-home family-preservation services, including on-demand drug testing, which mother accepted.   However, mother tested positive for amphetamine and methamphetamine on July 29, 2005, and failed to drug test on demand on August 1, 2005.   Thus, DCFS detained the children on August 2, 2005.

DCFS filed a section 300 petition and detention report on August 5, 2005.   The petition alleged that mother and father Jesus O. (father) had a history of substance abuse and that father struck mother in the children's presence.   The court found a prima facie case for detaining the children pursuant to section 300, subdivisions (a) and (b).  The court ordered that DCFS provide mother with family reunification services and refer her for no-cost drug counseling and testing, parenting classes, and individual counseling.   Mother was granted monitored visits with the children at least three times per week.

II. Jurisdiction and Disposition Hearing

DCFS advised the court in September 2005 that Jesus and Alondra had been placed together in foster care.   Mother had moved out of her apartment and had not provided DCFS with a new address.   She had missed several scheduled visits with the children and had not enrolled in court-ordered drug counseling or testing, parenting classes, or individual counseling.

At the September 22, 2005 jurisdiction and disposition hearing, the court sustained counts in the amended petition and found by clear and convincing evidence pursuant to section 361, subdivision (c), that substantial danger existed to the physical health of the children or that the children were suffering severe emotional damage and there was no reasonable means to protect them without removing them from mother's physical custody.   The court ordered DCFS to provide mother with reunification services, including parenting classes, drug counseling, individual counseling, and random drug testing, and granted mother monitored visits with the children.

III. Six-Month Review Hearing

In April 2006, DCFS told the court that Jesus and Alondra had been moved to a second foster home.   The foster mother reported that the children were adjusting well but were having difficulties not seeing mother.   Mother visited the children sporadically, but visits often were limited because mother did not show up on time.   Jesus was having academic and behavioral problems at school and was receiving individual counseling.   Mother remained transient and had not provided DCFS with an address or phone number where she could be reached.   She tested negative for drugs on five separate occasions between December and March, but twice had failed to show up for drug testing.   She attended a 12-step program in March and April and participated in some of the court-ordered classes, but did not attend individual counseling.   In April, she told the social worker that she was six months pregnant.

At the six-month review hearing on May 24, 2006, the court terminated family reunification services for mother and referred the matter for a section 366.26 hearing to implement a permanent, out-of-home plan for the children.   The court stated that it was “not unsympathetic to mother's situation with respect to her pregnancy,” but noted that mother was only “in barely partial compliance with the case plan and is not making substantive progress.”   Accordingly, “the court cannot find a reasonable likelihood ․ that the children could be returned even if the court were to extend reunification services to November.”

IV. Mother's Efforts to Reunify After the Six-Month Review Hearing

In September 2006, DCFS reported that the children had adjusted well to their foster care placement.   Mother had given birth to another child in August 2006, and she visited Jesus and Alondra sporadically.   She had enrolled in an outpatient treatment program in July 2006, and as of September had attended 40 educational group settings, six individual counseling sessions, and 26 twelve-step meetings.   She had had nine negative drug tests.   The children's maternal grandmother had expressed interest in adopting them, but she did not yet have a residence large enough to accommodate them and her own four children.   DCFS thus recommended that the court continue the section 366.26 hearing to allow placement and adoptive issues to be resolved.   The court continued the hearing to November 2006.

In November 2006, DCFS reported that mother had actively participated in a drug treatment program and had made significant progress towards resolving her substance abuse.   She had participated in classes addressing addiction, relapse prevention, recovery, parenting, coping, and anger management, and had attended individual counseling sessions.   She and her newborn were living with the maternal grandmother until mother could find other appropriate housing.   Mother had visited the children “for [the most] part consistently.”   Jesus told the social worker that he enjoyed his placement but wished to return to his mother's care as soon as possible.   On November 21, 2006, the court ordered the children to remain in foster care, but gave DCFS discretion to liberalize mother's visits at her request.   It ordered DCFS to continue to seek an adoptive home for the children.

DCFS reported in January 2007 that Jesus and Alondra's foster parents were not interested in adopting them, although they were willing to provide the children with long-term foster care.   The maternal grandmother also was no longer interested in pursuing adoption because she believed that mother was on her way to completing her court-ordered programs.   Mother stated that she had been working hard to complete her court-ordered programs because she wanted her children back in her care, and Jesus stated that he missed his mother very much and wanted to return to her care.   On January 17, 2007, the court took the section 366.26 hearing off calendar because no adoptive home had been found, and it gave DCFS discretion to initiate family preservation services or to return the children to the mother, if appropriate.

V. Mother's Disappearance and Two-Year Absence From the Children's Lives

In May 2007, DCFS reported that Jesus had been moved to a new foster placement, his third, because his angry outbursts were posing a safety risk for the other children in the foster home.   Further, mother had moved and had not given DCFS her current address, and she had not made herself available to DCFS since her referral to Family Preservation Services on February 15, 2007.   Thus, family preservation services had been canceled on April 18, 2007.   Mother had visited the children inconsistently, and had last visited them in March.   DCFS stated that “[g]iven that the mother's whereabouts are unknown, and she has not complied with court orders given on 01/17/2007, the proposed plan to return the children[ ] to the care of the mother is no longer appropriate.   It is the DCFS' respectful recommendation that a .26 hearing be calendared within 120 days.”

In November 2007, DCFS reported that Jesus and Alondra had been placed together in the home of Maria R., who was interested in adopting them.   Mother's whereabouts were still unknown, and the maternal grandmother had told DCFS that mother had lost interest in reunifying with Jesus and Alondra when DCFS did not return the children to her when she finished the drug treatment program.

In March 2008, DCFS reported that mother's whereabouts were still unknown and that mother had not visited the children since March 2007.   Maria R. no longer was interested in adopting the children and had asked to have them removed from her home because Jesus was behaving aggressively and was expressing suicidal thoughts.   The children were in a new foster placement, with Magyilka R., but no prospective adoptive match had been found.

VI. Mother's Reappearance and Request for Visitation

DCFS reported on December 10, 2008, that the children remained placed with Magyilka R., with whom they were very bonded.   Alondra was in kindergarten and had begun to have behavioral problems, including frequent wetting, defiance, and aggression.   Jesus had continued to have episodes in which he attempted to harm himself, but was making significant progress at home and at school.   He was reported to be very sensitive to news about his birth family.

DCFS reported that mother had recently been in contact with them and had asked to see Jesus and Alondra.   This request “is concerning to this CSW, Adoption CSW, the caregiver, and the children's therapist.   The children have not had any contact with their mother for almost two years.   Mother exited their life without any explanation and there are no guarantees that this time things will be different.   Visits with mother can very well be detrimental to the health and well being of the children.   Both Jesus and Alondra are at risk of having an emotional outburst that could warrant a hospitalization.   Jesus has had two episodes this year and foster mother had difficulties keeping him safe and almost got hospitalized.   Alondra is still working on her enuresis, aggressiveness, and defiant issues.”

On January 14, 2009, DCFS reported that Jesus had told his social worker that he was not ready to see his mother.   He wanted to move forward with adoption planning and did not want to return to his mother's care.   DCFS therefore recommended that the court not grant mother visitation.   The court agreed and on January 28, 2009, ordered that it was not in the children's best interests to have visits with mother.

VII. The Children's Placement in a Prospective Adoptive Home;  Mother's Section 388 Petition for Visitation;  Termination of Mother's Parental Rights

A prospective adoptive home was identified for Jesus and Alondra in early 2009, and they were moved into the home in March, nearly four years after they were removed from mother's care.   The prospective adoptive parents were both educators and had been foster parents for 10 years, including to teenagers and children with special needs.   They reported that they had experienced several episodes of inappropriate behavior by Jesus, but they were not concerned.   Jesus stated that he was pleased with his placement and wished to remain there.   He said that he had no desire to see his mother or younger brother.

On March 12, 2009, mother filed a petition pursuant to section 388 seeking visitation with Jesus and Alondra.   The court denied the petition because it had no supporting documentation and “when read together with the interim review report and the CASA [court-appointed special advocate] report, does not give the court any information or evidence that the requested change by the mother is in the children's best interest.”   The court also noted that “I'm considering this a hearing on the 388, although I don't think that mother actually provided prima facie evidence that a hearing should be held.   Just as long as we were here and had the parties before me.   We are at a very critical stage with respect to these children's lives.   They are finally in a home that, hopefully, will be a permanent home for them․  I think that to bring the mother into the children's lives now, at this juncture, where they are just getting to know their prospective adoptive parents, and in light of the recommendations of the therapists, I think it would be detrimental to the children.   So I'm not going to grant the petition.”

In August 2009, DCFS reported that Jesus and Alondra “feel happy and comfortable with their prospective adoptive parents.”   They “have adapted well to their new home and school and they have developed a strong attachment towards their prospective adoptive parents.”   Both children were doing well in school.   DCFS reported that “[t]here are clear signs that Jesus and Alondra are benefiting from their current environment and have a strong bond with the adoptive applicants.”   The prospective adoptive parents were “happy and eager” to provide the children with a permanent home by way of adoption.   DCFS recommended that parental rights be severed and the children be placed for adoption.

On August 18, 2009, the court terminated mother's and father's parental rights.   Mother filed a section 388 petition the same day, asking that her reunification services be reinstated and that she be granted visitation.   Mother stated that she had finished an outpatient drug program, parenting education, and individual counseling at Tarzana Treatment Center in April 2009, and she continued to randomly drug test with negative results.   She asserted that the changes she was requesting would be better for her children because “I have maintained a clean [and] sober lifestyle.   I currently have unmonitored overnight visits with the children's sibling [J.B.]”

The court denied mother's petition, finding that “the department and the CASA and minors' counsel have established that the second prong of the test with respect to the 388 cannot be met.   There's just no showing of best interest.   And without evidence of regular and consistent visitation and that being in the best interest, I don't think that going forward with a contest on that basis would be appropriate or fruitful.”

Mother filed a timely appeal from the orders terminating her parental rights and denying her section 388 petition.

DISCUSSION

Mother contends on appeal that the trial court's failure to grant her a hearing on her section 388 petition was a denial of due process.   Specifically, she urges that her petition satisfied both of the elements required to trigger a section 388 hearing-(1) changed circumstances, and (2) the proposed change would promote the best interests of the children.   For the reasons that follow, we disagree.

Section 388 provides that a parent of a dependent child may, “upon grounds of change of circumstance or new evidence,” petition the juvenile court to change, modify, or set aside any court order. (§ 388, subd. (a).)  The petition must allege why the requested change is “in the best interest of the dependent child.” (§ 388, subd. (b).)  “If it appears that the best interests of the child may be promoted by the proposed change of order, ․ the court shall order that a hearing be held.” (§ 388, subd. (d).)  However, the court may summarily deny the motion if the petition fails to make a prima facie showing (1) of a change of circumstances or new evidence requiring a changed order, and (2) the requested change would promote the best interests of the child.  (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)   A summary denial of a section 388 petition is reviewed for abuse of discretion.  (In re D.R. (2007) 155 Cal.App.4th 480, 487.)

There is no dispute that mother's petition adequately alleged changed circumstances.   Mother contends, however, that she also alleged a prima facie case that reunification services and visitation were in the children's best interests.   In this regard, she notes that:  (1) she had resolved her substance abuse problem and completed counseling and parent education;  (2) she was committed to being a good parent;  and (3) placing the children with her “would give the children the opportunity to be raised by their mother in their own family as opposed to being adopted by strangers.”   Moreover, she said, prolonging the case would not harm the children “as they had only been with the prospective adoptive family five months, not long enough to form a strong bond.”

After reviewing the whole record, we conclude that the juvenile court did not abuse its discretion in concluding that mother had not alleged a prima facie case that reinstating reunification services and visitation would be in the children's best interests.   At the time of the section 388 hearing, the children had not lived with mother for four years, and they had not seen her in nearly two years.   Alondra did not remember mother, and Jesus repeatedly had told his social worker and CASA that he did not want to see mother or return to her care.   Further, although DCFS had had difficulty finding a prospective adoptive home for the children because of their ages and emotional difficulties, prospective adoptive parents recently had been identified, and the children were doing well in their home.   The prospective adoptive parents had been foster parents for 10 years, including to children with special needs, and were not troubled by the children's emotional outbursts.   Thus, there was every indication that the adoption would be successful.   Moreover, mother had a long history of substance abuse, and her sobriety, while commendable, was relatively recent.   Finally, “[t]he presumption favoring natural parents by itself does not satisfy the best interests prong of section 388.   The cases that state a child may be better off with his or her biological parent rather than with strangers do so when the biological parent has shown a sustained commitment to the child and parenting responsibilities.  (See Adoption of Kelsey S. (1992) 1 Cal.4th 816, 844-849;  In re O.S. (2002) 102 Cal.App.4th 1402, 1411.)”  (In re Justice P. (2004) 123 Cal.App.4th 181, 192.)   That manifestly was not the case here.

The present case is analogous to In re Angel B. (2002) 97 Cal.App.4th 454.   There, Angel was born drug-exposed and was detained by DCFS. Her mother had a long history of drug abuse, having begun using at age 13.   At the time of Angel's birth, mother was 35 years old, and had tried to rehabilitate herself, without permanent success, on a number of occasions.  (Id. at p. 459.)   Mother was granted monitored visitation with Angel, but appeared for only some of the scheduled visits.   She also failed to appear at several of the earliest court hearings.  (Ibid.) Despite these problems, mother began to do better:  She enrolled in a residential drug treatment program, consistently tested clean for four months, completed various classes, and got a job.   She had regular visits with Angel, which went well.   As a result, she petitioned the juvenile court pursuant to section 388 to either grant her supervised custody of Angel, or grant her reunification services.   Her petition was summarily denied without an evidentiary hearing, and thereafter her parental rights were terminated.  (Ibid.)

The appellate court concluded that the juvenile court did not abuse its discretion by refusing to hold a hearing on mother's section 388 petition.   It explained:  “Here, there was no evidence that Mother was ready to assume custody of Angel or provide suitable care for her;  while she had completed the drug program, the time she had been sober was very brief compared to her many years of drug addiction (a concern expressed by the social worker), and in the past she had been unable to remain sober even when the stakes involved were the loss of her other child.   Nor was there evidence that she had a housing situation suitable for Angel, or any arrangements for child care while she worked.   And, ․ there was no evidence that Angel preferred to live with Mother rather than with the foster family.”  (In re Angel B., supra, 97 Cal.App.4th at p. 463.)

The court continued:  “In this case, the facts presented by the section 388 petition show that Mother is doing well, in the sense that she has remained sober, completed various classes, obtained employment, and visited regularly with Angel.   In addition, we shall assume, for the sake of this appeal, that this time her resolve is different, and that she will, in fact, be able to remain sober, remain employed, become self-supporting and obtain housing.   Even so, such facts are not legally sufficient to require a hearing on her section 388 petition.  [¶] As noted above, there is a rebuttable presumption that, in the absence of continuing reunification services, stability in an existing placement is in the best interest of the child, particularly when such placement is leading to adoption by the long-term caretakers.  [Citation.]  To rebut that presumption, a parent must make some factual showing that the best interests of the child would be served by modification.  [¶] Here, Mother has not made such a showing․  Angel was removed from Mother's custody directly from the hospital, just two days after her birth.   She was placed with a family that was not only in the process of adopting her older sibling, Robert, but that also was successfully parenting two biological children and two other adopted children (a sibling set), and that wanted to adopt Angel as well, in part because it valued providing its adopted children with biological siblings.  [¶] ․ Perhaps if Angel were not adoptable and Mother was the only mother-figure in Angel's life, and Angel's only hope of having a family in the future, the result might be different.  [Citation.]  But those are not the facts presented here.   Accordingly, we conclude that the juvenile court did not abuse its discretion by denying the section 388 petition with no hearing.”   (In re Angel B., supra, 97 Cal.App.4th at pp. 464-465.)

In the present case, as in Angel B., mother has had a long history of substance abuse and has been sober for a very brief time compared to her years of drug addiction.   As in that case, mother's reunification services have been terminated, and thus there is a rebuttable presumption that stability in an existing placement is in the children's best interests.   Moreover, as in Angel B., Jesus and Alondra are adoptable and are in a suitable adoptive placement.   Finally, as in Angel B., there is no evidence that the children prefer to live with mother rather than with the adoptive family;  to the contrary, Jesus has stated that he wants to be adopted and does not want to return to mother's care.   Accordingly, as in that case, the juvenile court here did not abuse its discretion in summarily denying mother's section 388 petition.

The facts of the present case are substantially different than those of In re Aljamie D. (2000) 84 Cal.App.4th 424, on which mother relies.   There, as a result of mother's drug abuse, her children were detained by DCFS when they were six and eight years old.  (Id. at p. 426.)   Mother initially did not comply with the family reunification plan, but by the 12-month hearing, she had enrolled in a drug rehabilitation program, had had eight clean drug tests, was participating in parenting classes, and was visiting the children regularly.   (Id. at p. 427.)   By the time her parental rights were terminated two years later, she had fully complied with the case plan, was sober, and had visited the children regularly.   Further, both children testified that they wanted to be returned to mother's care.  (Id. at p. 430.)   Under these circumstances, the court held that the juvenile court abused its discretion by failing to grant a hearing on mother's section 388 petition:  “Clearly her petition made out a prima facie case of changed circumstances.   She had completed numerous educational programs and parenting classes, and had tested clean in weekly random drug tests for over two years.   She had visited consistently with the children and continued to have a strongly bonded relationship with them.   Indeed, the Department does not dispute that appellant's petition alleged changed circumstances.   Rather, the Department argues that the petition failed to show how modification of the placement order would be in the children's best interests.  [¶] ․ We cannot see how the petition failed to show prima facie evidence which might justify modification of the court's order regarding the permanent placement plan for the children․  The children, ages 9 and 11, repeatedly made clear that their first choice was to live with their mother.   While a child's wishes are not determinative of her best interests, the child's testimony that she wants to live with her mother constitutes powerful demonstrative evidence that it would be in her best interest to allow her to do so.”  (Id. at p. 432.)

In the present case, Jesus and Alondra were much younger when they were removed from mother's care than were the children in In re Aljamie.   Moreover, mother has had a much shorter period of sobriety:  several months, rather than two years.   And, significantly, Jesus has expressed a strong preference not to be returned to mother's care, in contrast to the children in Aljamie, who “repeatedly made clear that their first choice was to live with their mother.”  (84 Cal.App.4th at p. 432.)   Accordingly, Aljamie does not guide our determination here.

DISPOSITION

The order denying mother's section 388 petition and terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All undesignated statutory references are to the Welfare and Institutions Code..  FN1. All undesignated statutory references are to the Welfare and Institutions Code.

EPSTEIN, P.J. MANELLA, J.