IN RE: G.L. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Defendant S.S. (Mother) appeals from an order denying her motion under Welfare and Institutions Code section 388 ¹ to modify the juvenile court's order setting this case for a section 366.26 permanent plan hearing and to return her minor daughter, G.L., to her custody or, in the alternative, order an additional six months of reunification services.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In her petition, Mother alleged that since the last petition, she had completed her case plan.   Specifically, she had completed two parenting classes;  she had completed a six-month substance abuse program and tested clean on random drug tests for several months;  she had completed individual counseling;  she was employed full-time and had her own apartment.   She included with her petition a January 12, 2010 certificate of completion from her substance abuse treatment program;  May 5 and November 25, 2009 certificates of completion from parenting classes;  and negative random drug test results from May 6, May 26, June 16, July 20, August 24, September 21, and December 23, 2009.

The Department of Children and Family Services (DCFS) reported on February 4, 2010 that a children's social worker (CSW) had spoken to the assistant to the director at the facility where Mother had completed her substance abuse treatment program.   The assistant could not give the CSW any information because Mother had not signed a release form.   The assistant had received the results from seven random drug tests between October 22, 2009 and January 20, 2010;  two of these were negative and five had been missed and were considered “dirty.”

The CSW noted that she had given Mother referrals for a psychiatric evaluation but had received no documentation showing that Mother had completed the evaluation.

Mother told the CSW that she worked part-time.²  She missed a lot of work, but her employer was a friend who allowed her to do so.

The CSW reported that Mother had been inconsistent in her visitation with G.L. and her infant son, Solomon S.³ Mother explained that she cancelled most of her visits with Solomon because she could not wake up on time in the morning.   Mother's visitation with G.L. averaged about once per month;  Mother frequently called to cancel scheduled visitation.   During visitation, Mother frequently talked on her cell phone while G.L. played by herself.

Based on the foregoing, the CSW concluded that Mother had made no effort to bond with either of her children.   For that reason, she recommended that the section 388 petition be denied and permanent placement services be ordered for G.L.

In an April 12, 2010 section 366.26 report, the CSW noted that the Foster Family Agency which conducted visitation reported that Mother's behavior was at times “erratic and inconsistent.”   On March 4, 2010, Mother “looked a mess”;  her speech was very slurred and her eyes were drooping.   G.L. appeared scared and hesitant due to Mother's appearance.

At the hearing on the petition, Mother's counsel pointed out how hard Mother had worked to turn her life around.   Counsel stated that Mother had been clean and sober for two years.   When the court asked about visitation, Mother explained that she did not have a car, which made it difficult for her to visit G.L., who was living in Palmdale;  Mother was living in Van Nuys.

Counsel for G.L. admitted she was “on the fence on this case.”   She recognized that Mother had been working hard to change her circumstances.   Mother had been in drug counseling for about eight months;  she was drug testing, had a job, and had an apartment.   However, Mother was not drug testing as often as counsel would have liked, and she “still has changing circumstances that remain,” including the need for a mental health evaluation.

Counsel noted that “with regard to the child's best interest, the second prong of the section 388 petition, the mother is visiting sporadically.   I think that's the biggest weakness.”   She added, however, that Mother chose to keep the child with the current caregiver, who was good for G.L., rather than having her placed closer to Mother's home, showing that Mother was concerned with G.L.'s best interest.   Counsel also noted that it could be in G.L.'s best interest to be able to maintain a relationship with her younger sibling, Solomon S. Because of her concerns, counsel requested that if the court were inclined to grant Mother's petition, that it give her an additional six months of reunification services rather than place G.L. with Mother.

Counsel for DCFS asked that the court deny Mother's petition.   While acknowledging that Mother had made progress, he argued “it's not to the level that would justify changing the permanent plan for this child.”   He pointed out that while Mother had good drug testing results within her drug program, once she was ordered to test through an independent laboratory, she missed five tests.

Counsel was also concerned about Mother's sporadic visitation and the excuses she made as to why she could not visit with G.L. and Solomon S. An additional concern was Mother's failure to obtain a psychiatric evaluation.   The court asked counsel why, since Mother was receiving reunification services as to Solomon, it should not order reunification services as to G.L. as well.   Counsel explained that they were already at the permanency planning stage with G.L., while they were in an earlier stage of the proceedings with Solomon.   The DCFS felt, “with the approved [adoptive] home study, with people who can commit to the child without excuses or missing visits or missing tests, this is the better plan for the child.”

The juvenile court stated, “I appreciate everyone's arguments.   This is a difficult case.   However, I'm going to ․ deny the 388.   I just find that in terms of circumstances, they're changing, not necessarily changed.   I also find that there has been a bonding now between the child [G.L.] and her caretakers.   They do want to adopt.   She's been there 18 months.   I'm going to deny the 388 on those grounds.”

DISCUSSION

Mother contends the juvenile court abused its discretion in denying her section 388 petition, in that the evidence showed she had remedied her problems and was now able to care for G.L. For the reasons set forth below, we disagree.

Section 388 permits a party to petition the juvenile court to change its prior orders based upon a change of circumstances.  (In re Amber M. (2002) 103 Cal.App.4th 681, 685;  In re Casey D. (1999) 70 Cal.App.4th 38, 47.)   The party seeking a change must demonstrate both that a change of circumstances exists and that the proposed change of court order is in the child's best interests.  (Casey D., supra, at p. 47.)   We review the court's rulings on the petitions for abuse of discretion.  (Amber M., supra, at p. 685;  Casey D., supra, at p. 47.)   Discretion is abused when the court's ruling is arbitrary or capricious or exceeds the bounds of reason.  (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)   Rarely does the denial of a section 388 petition require reversal.  (Amber M., supra, at pp. 685-686.)

In the consideration of a section 388 motion, a number of principles come into play.   One of these is the child's need for permanence and stability.   As noted in In re Marilyn H. (1993) 5 Cal.4th 295, “[t]he federal and state Constitutions guarantee that no state shall deprive any person of life, liberty or property without due process of law.  [Citation.]  A parent's interest in the companionship, care, custody and management of his children is a compelling one, ranked among the most basic of civil rights.  [Citation.]  Likewise, natural children have a fundamental independent interest in belonging to a family unit [citation], and they have compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.   [Citation.]  The interests of the parent and the child, therefore, must be balanced.”  (Id. at p. 306.)

When a child has been removed from the parent's custody, the initial focus of dependency proceedings is reunification of the child with the parent.  (See In re Marilyn H., supra, 5 Cal.4th at p. 308.)   Once reunification services are terminated, however, the focus of the proceedings shifts to the child's need for permanency and stability.  (Id. at p. 309.)

In determining whether the proposed change is in the child's best interests, “a primary consideration ․ is the goal of assuring stability and continuity.  [Citation.]  When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role.  [Citation.]  That need often will dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.  [Citation.]  Thus, one moving for a change of placement bears the burden of proof to show, by a preponderance of the evidence that there is new evidence or that there are changed circumstances that may mean a change of placement is in the best interest of the child.  [Citations.]”  (In re Angel B. (2002) 97 Cal.App.4th 454, 464.)

Here, no one denied that Mother demonstrated her circumstances had changed.   The question was whether that change of circumstances was significant enough to demonstrate that removing G.L. from a stable placement or giving Mother an additional six months in which to reunify with G.L. would be in G.L.'s best interest.  (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.)   We agree with the juvenile court that Mother failed to demonstrate that G.L.'s best interest would be served by the requested change.

While Mother had completed a substance abuse program and tested negative for drugs, she had missed five recent random drug tests.   A missed test is considered a positive test.   Additionally, on one occasion when mother visited G.L., she appeared to be under the influence:  her speech was very slurred and her eyes were drooping.

Mother had obtained an apartment and two part-time jobs, but one of these was with a friend who, Mother admitted, allowed her to miss a lot of work.   Mother also missed a lot of scheduled visitation, both with G.L. and with Solomon S. She gave a number of reasons for missing visitation.

In sum, we agree with the juvenile court the evidence shows “in terms of circumstances, they're changing, not necessarily changed” to the point where it was in G.L.'s best interest to postpone permanent placement with her long-term caregivers.   Mother had yet to demonstrate that she was able to maintain long-term sobriety and stability.   We thus find no abuse of discretion in denying Mother's section 388 petition.  (See, e.g., In re Angel B., supra, 97 Cal.App.4th at pp. 464-465.)

DISPOSITION

The order is affirmed.

We concur:

FOOTNOTES

FN1. All further section references are to the Welfare and Institutions Code..  FN1. All further section references are to the Welfare and Institutions Code.

FN2. At the hearing on her petition, Mother explained that she had two part-time jobs..  FN2. At the hearing on her petition, Mother explained that she had two part-time jobs.

FN3. Although Solomon S. is also a dependent child of the court, he is not a subject of this appeal..  FN3. Although Solomon S. is also a dependent child of the court, he is not a subject of this appeal.

PERLUSS, P. J. ZELON, J.