IN RE: C.L. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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Mother Crystal Y. appeals the dependency court's order summarily denying her Welfare and Institutions Code section 388 petition.¹  She contends she showed changed circumstances warranting provision of reunification services with her son C.L. because she had completed services, had been sober for over a year, was employed, and had a place to live.   We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In this case, Mother, who had a history of substance abuse, was denied reunification services, disappeared, and did not participate in her child's life for five years.   During that period, C.remained placed with a caretaker who sought to adopt him, but who was unable to do so because of a history of residing with men who had criminal records for domestic violence or child abuse.   After five years passed, Mother reappeared, started a reunification plan on her own, and filed a section 388 petition alleging changed circumstances.

1. Detention, Jurisdiction, and Review.

C., born in February 2003, came to the attention of the Department of Children and Family Services (DCFS) in September 2004 after Mother left him with a friend, Bernetta R. Mother had stated she had been in an accident and would return shortly, but never returned.   Bernetta called DCFS because she could not care for C. Bernetta told DCFS that Mother had a history of leaving C.with unrelated caretakers without making adequate plans.   Mother had two other children, born in 1995 and 1999, who currently lived with their fathers.   According to Bernetta, Mother had a history of abusing alcohol and led an unstable lifestyle.   Bernetta denied that Mother used crack.

DCFS discovered that an unrelated caretaker had made a child abuse report against Mother on August 12, 2004, alleging that Mother had left C.with her over a month before, and had not returned.   The caretaker stated Mother abused crack.   DCFS's investigation disclosed Mother had a history of leaving C.with unrelated caretakers for weeks at a time, and that she had been arrested for assault on August 6, 2004, although she was released on August 10, 2004.   Mother had previously admitted to DCFS that she is schizophrenic and on medication.

DCFS was unable to locate Mother, and detained C. Bernetta was interested in providing care and supervision for C.because she had bonded with him.

The petition filed September 9, 2004 alleged failure to protect C.based on Mother's pattern of leaving the children with unrelated caretakers, her mental and emotional problems, and her use of alcohol.²  At the September 9, 2004 detention hearing, the court ordered C.detained, and set a pretrial resolution conference for October 21, 2004.

DCFS's jurisdictional report stated that C.'s siblings were placed with their fathers.   Mother's whereabouts remained unknown.   Bernetta informed DCFS that she had met Mother in March 2004, and babysat for her.   Mother would leave C.with her for two to three weeks, and Bernetta would not know where Mother was.   Bernetta did not see Mother use drugs or alcohol, but suspected she did because Mother had the mannerisms of a drug addict.

At the October 21, 2004 pretrial resolution conference, Mother appeared and denied the allegations of the petition.   The court continued the matter to November 4, 2004, and ordered DCFS to interview Mother and conduct an evaluation of Bernetta.

DCFS's report prepared for the continued hearing stated that C.was placed in a foster home.   DCFS reported it had obtained a mailing address for Mother, but not in sufficient time for the hearing, nor had DCFS had time to speak with Mother about placing C.with Bernetta.   Bernetta had a criminal history for domestic violence and possession of a controlled substance, had previously been a foster parent for the County, had her license revoked, but was eligible for reinstatement.   As a result, DCFS would need a waiver in order to place C.with Bernetta.   The matter was continued o December 13, 2004 after the court found the prerelease investigation was negative.

DCFS filed a first amended petition December 13, 2004, alleging counts under section 300, subdivisions (b) and (g).  Father's whereabouts were unknown.   DCFS's report for the continued hearing stated Mother was residing with different acquaintances and refused to be interviewed.   DCFS recommended that no reunification be provided to Mother.

At the December 13, 2004 hearing, the court dismissed the original petition, and sustained the allegations of the amended petition.   The court denied reunification services to the parents pursuant to section 361.5, subdivision (b)(1).³  The court ordered Mother into individual counseling and weekly on-demand alcohol testing, and set the matter for a review hearing and a section 366.26 hearing ultimately held June 9, 2005.

DCFS reported in June 2005 that C.was residing with Bernetta, and both Mother and Father's whereabouts remained unknown.   C.was doing well in his placement with Bernetta.

During the period June 2005 to July 2009, the court received review reports from DCFS and continued to set a section 366.26 hearing while Bernetta attempted to resolve issues relating to her domestic violence issues:

DCFS reported in October 2005 that C.was not developing at his current age level, and remained nonverbal at age two.   C.had a good relationship with Bernetta.   Mother and Father, whose whereabouts continued to be unknown, had not visited with him.   Bernetta wished to adopt C., who had been residing with her since March 28, 2005, and DCFS had identified Bernetta as a prospective adoptive home.

DCFS's December 2005 section 366.26 report stated that the parents' whereabouts remained unknown.   C.continued his placement with Bernetta, had been diagnosed with mild cerebral palsy, and was eligible for Regional Center services due to a speech delay.   C.also had a fractured left femur and had been placed in a cast to immobilize him.   An updated section 366.26 report prepared for February 2006 stated that C.'s condition had been reevaluated and he did not have cerebral palsy, but had developmental delays relating to his speech.   C.had no skeletal abnormalities and his cast had been removed.   C.had a good relationship with Bernetta.

DCFS reported that the home study on Bernetta had not yet been completed, but was expected to be done by June 8, 2006.

DCFS's June 8, 2006 report stated that C.remained in foster care with Bernetta.   The location of C.'s parents remained unknown.   C.had received a medical evaluation which confirmed his speech delays, and disclosed he had an abnormal gait and was banging his head.   A helmet and walker were recommended.   DCFS also reported that Bernetta's boyfriend Robert J. had a prior arrest in 1989 for grand theft auto, and that he had been arrested in 2003 for possession of a controlled substance and for transport/sale of a controlled substance and driving while his license was suspended.   Bernetta's foster care license had been previously suspended due to allegations of physical abuse by Robert.   Bernetta's ASFA ⁴ home assessment had been completed, and she was initially approved on May 24, 2005, based on the dismissal of her criminal cases and the receipt of exemptions for her.

DCFS reported in December 2006 that concerns remained regarding Bernetta's adoption of C. As a result, although Bernetta's ASFA home study had initially been approved, her home had been denied on July 10, 2006 due to the large number of child abuse referrals for Bernetta and Robert.   C.was attending preschool and achieving at his current grade level.   He did not display academic or behavior problems.

On March 28, 2007, DCFS confirmed that Bernetta had been removed from the Child Abuse Central Index (CACI) list, and court trailed the matter to June 2007 pending receipt of a supplemental section 366.26 report and confirmation of Bernetta's ASFA approval.

DCFS reported in June 2007 that the adoptive home study for Bernetta had not been approved.   DCFS noted that in view of the family's strengths, including Bernetta's efforts in caring for C., making his medical appointments and tending to his needs, and although Bernetta and Robert would need more support from DCFS until C.stabilized, Bernetta and Robert might want to revisit adoption at a later time.   Concerns about the family remained due to the prior allegations of emotional and physical abuse.   On May 10, 2007, Bernetta's home was found to meet ASFA standards.   DCFS was in the process of scheduling a team decision meeting to address child safety concerns, the recent ASFA home approval, and the permanent plan of adoption.   Thus, although the home was ASFA approved, the adoption homestudy was not yet approved.   As a result, DCFS did not recommend termination of parental rights.

On June 7, 2007, the court ordered an updated home study.

DCFS's report prepared for the September 5, 2007 hearing stated that C.was now four and developing at an age-appropriate level.   He was thriving and doing well.   Placement with Bernetta was appropriate, and Bernetta had indicated she wanted to become C.'s guardian.

DCFS's review report dated October 31, 2007 indicated that neither parent had visited with C.since his detention.   In spite of the ASFA approval, DCFS would not approve a home study on Bernetta.   As a consequence, Bernetta had indicated she would pursue legal guardianship.

2. Bernetta's Guardianship.

On January 11, 2008, the court appointed Bernetta as C.'s guardian.

DCFS's March 5, 2008 report indicated that C.'s progress was good.   His placement with Bernetta continued to be appropriate.

On September 3, 2008, DCFS reported that C.'s most recent medical evaluation disclosed he continued to have a gait abnormality, but that his prescription for use of a walker and helmet had been changed to “as-needed.”   C.'s verbal skills were good, and he was alert and lively, and could feed and dress himself.   Robert J. had died in May, 2008.   At the hearing, the court noted that one of the impediments to adoption had been Robert's child abuse history.

DCFS reported on December 15, 2008 that C.was attending kindergarten.   C.was bonded with Bernetta and identified her as “ ‘Mommy.’ ”   Bernetta wanted to adopt C., but DCFS had concluded legal guardianship was the most appropriate plan.   In October 2008, DCFS received a report that C.had a small bruise between his right eye and the bridge of his nose.   C.stated he had fallen on a door, but later said his mother had pushed him into a door.   In November 2008, C.had scratches and dried blood around his nose.   C.at first said his mother had slapped him because his socks were not on right, but then said he had hurt himself.   DCFS determined the allegations were unfounded.  “C.presents as a child whose basic needs are met and his interactions with [Bernetta] seem indicative of an emotionally supportive relationship.   However, it was unclear as to why C.made conflicting statements about the nature of the incidents when questioned.”   DCFS recommended the permanent plan of legal guardianship remain in effect.   The court continued the matter for review to March 4, 2009.

DCFS reported that Bernetta again wished to proceed with adoption.

3. Mother's Reappearance.

DCFS reported in July 2009 that Bernetta no longer wanted to pursue adoption.   At a July 17, 2009 hearing, Mother appeared and stated she wanted visitation with C. The court took the scheduled section 366.26 hearing off calendar, and ordered DCFS to reintroduce C.to Mother.

DCFS reported that on July 22, 2009, Mother contacted DCFS and had kept in contact with them.   The social worker arranged for visitation between Mother and C.on August 25, 2009.   Mother did not attend the visit.   C.was wearing leg braces on both legs and the specialized care rate of F4 had been assigned to him.   At the hearing, Mother appeared and was served with notice of the section 366.26 hearing.   The court ordered DCFS to arrange for visitation.   Bernetta indicated she again wanted to proceed with adoption.   The court set the section 366.26 hearing for January 15, 2010, and a review hearing for March 19, 2010.

DCFS reported for the January 15, 2010 hearing and Mother told them C.'s father was incarcerated in Arkansas.   Mother had completed services and was residing in a transitional women's home.   In late October 2009, Mother began visiting C.regularly, but missed two weeks in December 2009.   Bernetta reported that Mother is often verbally disrespectful of her on the telephone.   During visitations, mother was not interested in C., and rarely played or interacted with him.   In January 2010, Mother brought Christmas gifts on her visit, and played and interacted with C. Mother claimed she had not visited C.because she believed her parental rights had been terminated.   C.told the social worker he wanted to live with his “ ‘Mommy’ ” Bernetta, and called Mother “ ‘Crystal.’ ”   DCFS reported that “Mother has not been in the child's life consistently for four years, and therefore has not developed or maintained a relationship with the child.   Mother's current reintroduction into the child's life appears to have caused child to have an increase in negative behavior outbursts at school.   It is respectfully recommended that Court proceed with the adoption process.”

At the January 15, 2010 hearing, DCFS requested a continuance in order to complete the home study on Bernetta.   DCFS indicated that a new social worker on the case was attempting to identify the problems with the old home study and determine whether those issues had been resolved.   The court ordered DCFS to complete an adoption progress report and home study, and continued the matter to March 19, 2010.

DCFS's March 19, 2010 status review report stated that C.exhibited a “close and comfortable relationship with [Bernetta], referred to her as his mom.”   C.was polite and able to express himself, although he sometimes displayed a flat affect when answering questions about school and home.   C.required leg braces on both legs, was prone to tripping and needed to wear a helmet.   Bernetta reported that on several occasions, C.stated he had heard voices.   He expressed anger and frustration by hitting the wall in his room, and had been acting out sexually with Bernetta's five-year-old grandson.   C.'s behaviors were being addressed in therapy.

Bernetta reported that during visits with C., Mother used foul language with her older son, Roger, who was also at the visits.   On January 23, 2010, C.told Mother “he did not want to be with her, but he wanted to be with his daddy.”   Mother became upset and used foul language, and when Bernetta intervened, Mother threatened to “whoop [her] ass.”   The social worker told Bernetta to terminate any visit at which mother used foul language.   After visits with Mother, C.'s behavior deteriorated and he would use foul language or act angry and defiant.   DCFS believed that although Bernetta's adoption application had been denied, it would not be in C.'s best interests to find a preadoptive home because he had developed a very close bond with Bernetta.   Although he was a quiet and well behaved child, C.exhibited behaviors that warranted increased mental health services.   At the hearing, Mother claimed Bernetta was the one cursing at the visits, although it was “irritable” cursing.   The court ordered DCFS to interview Mother and issue a supplemental report, and rescheduled the matter to coincide with the section 366.26 hearing on April 16, 2010.   Visitation would be with a neutral party.

DCFS's interim report for the April 16, 2010 hearing stated that DCFS had interviewed Mother, who could not “handle the drama” with Bernetta during visits with C. Mother denied using foul or threatening language during visits, and contended Bernetta used foul language, although Mother has known Bernetta for a long time and acknowledged it was “just the way” Bernetta talks.   Bernetta never used foul language towards Mother or C. DCFS noted that the “long standing history between [Mother] and [Bernetta] has made it difficult for the two of them to get along for a protracted period of time.   Limiting contact between them seems to be an effective method for successful visitation.”   During a visit on April 12, 2010, Mother was appropriate during the visit, and sat in her chair the entire time, playing with C.and encouraging him when he read out loud.   C.was comfortable when visiting with Mother, and told the social worker privately he would like to visit with Mother more.   DCFS recommended that C.remained placed with Bernetta and guardianship remained the permanent plan.

A last-minute information for the April 16, 2010 hearing indicated Bernetta was involved with a man who had a history of domestic violence, and who had been released from prison in 2009 and who was involved with C.'s care.   The court continued the matter for a contested section 366.26 hearing on June 8, 2010.

DCFS advised Bernetta on May 28, 2010 that it was concerned with Bernetta's lack of insight, and when it confronted her with the problem of her poor judgment regarding her boyfriend's presence in her home given his past history, she changed her story and minimized his significance.   DCFS reiterated that it therefore could not recommend adoption of C.

At the June 8, 2010 hearing, the court ordered legal guardianship would remain in full force and effect, and observed that Bernetta could appeal denial of her adoption request.

4. Mother's Section 388 Petition.

On August 3, 2010, Mother filed a petition under section 388 requesting that the court reinstate reunification services and liberalize visitation based on her completion of court-ordered programs (parenting, substance abuse, anger management), visitation with C., and Bernetta's inability to obtain approval of her adoption of C. Mother claimed that Bernetta had told her that her parental rights had been terminated, but after asking some questions, Mother had learned the truth.   Mother had completed treatment, attended substance abuse meetings, and belonged to a church.   Mother lived in a place that was suitable for her and C., and was about to return to school to study massage therapy or youth counseling.   The court summarily denied the petition because it did not show a change of circumstances.   The court noted that Mother had made progress over the last year, but that there was no evidence of the quality or quantity of her recent visitation with C.

DISCUSSION

Mother contends the court erred in denying reunification services because C.would benefit from having her in his life now that she no longer abused substances.   Although the court had not provided her with reunification services, she had addressed her problems on her own and obtained employment and housing.   Further, C.was under a plan of long-term guardianship, a plan which was not likely to change because of Bernetta's ongoing problems in obtaining adoption approval.   In her case, Mother argues, conditions had changed, and were not merely changing.  (See In re Hashem H. (1996) 45 Cal.App.4th 1791.)

Section 388 provides for modification of juvenile court orders when the moving party presents new evidence or a change of circumstances and demonstrates modification of the previous order is in the child's best interests.  (In re Stephanie M. (1994) 7 Cal.4th 295, 317;  In re Jasmon O. (1994) 8 Cal.4th 398, 415;  In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446;  see Cal. Rules of Court, rule 5.570(e).)   Factors to be considered in determining whether to grant a section 388 petition include the seriousness of the problem that led to the dependency, the reason the problem continued, the strength of the parent-child and child-caretaker bonds, the length of time the child has been in the system, the nature of the change of circumstance, the ease by which the change could be achieved and the reason the change did not occur sooner.  (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.)  “A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests.”  (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)

However, even if a parent is able to demonstrate a genuine change of circumstances, the parent must also “show that the undoing of the prior order” would be in the child's best interests.  (In re Kimberly F., supra, 56 Cal.App.4th at p. 529.)  “After the termination of reunification services, 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], and in fact, there is a rebuttable presumption that continued foster care is in the best interest of the child.  [Citation.]  A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interest of the child.”   (In re Stephanie M., supra, 7 Cal.4th at p. 317.)

“If the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.  [Citations.]  ‘The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing.  [Citations]’ [Citation.]  ‘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.’   [Citation.]”  (In re Daijah T. (2000) 83 Cal.App.4th 666, 673.)   However, a party filing a section 388 petition is not automatically entitled to a full hearing on the motion.   If the petition fails to state a change of circumstance that might require a change order, the court may deny the application ex parte.  (Cal. Rules of Court, rule 5.570(d).)  “The petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.”  (In re Jasmon O., supra, 8 Cal.4th at p. 415;  see also In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450–1451 [The denial of a petition without a hearing is reviewed for an abuse of discretion keeping in mind “ ‘the change of circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged prior order.’ ”].)

Whether a parent made a sufficient showing entitling her to a hearing “depends on the facts alleged in her petition, as well as the facts established as without dispute by the court's own file.”  (In re Angel B. (2002) 97 Cal.App.4th 454, 461.)   In addition, “[w]hen custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role.”  (Id. at p. 464.)   The burden of proving changed circumstances is particularly difficult after reunification services have been terminated or were never ordered as in this case.  (Ibid.)

In In re Hashem H., supra, 45 Cal.App.4th 1791, the minor was placed with family friends who had cared for him for extended periods of time after the parents divorced, and a petition was filed alleging his mother was unable to care for him because her house was unsanitary.  (Id. at pp.   1793–1794.)   The mother was given reunification services, but had not completed her program by the 12–month review hearing, and her visits had been sporadic.  (Id. at p. 1794.)   DCFS recommended guardianship for the family friends who were the child's caretakers.   At the permanency planning hearing, the mother's physician reported that there was no evidence she had any mental disorder, and although she admitted she was not very tidy, in the physician's opinion that “was not a quality that would prevent someone from being a caring, competent custodial parent.”   The mother had also been attending therapy sessions.   The court ordered the child placed with his father, but eight months later, he returned his child to the former caretakers.  (Id. at pp.   1794–1795.)   DCFS again commenced guardianship in the caretakers.   Six months after that, DCFS filed a report noting improvement in the mother's progress.   Her house was clean, she was neatly dressed, and had been attending weekly therapy sessions.   DCFS recommended increased monitored visitation, progressing to weekend visits.   Three months later, the child requested a 60–day visit with the mother.   (Id. at p. 1795.)   Six months later, DCFS reported that the mother was regularly attending therapy, and had regular overnight unmonitored visits with the child.   DCFS recommended guardianship for the family friend caretakers.   (Id. at p. 1796.)

The mother filed a section 388 petition based on changed circumstances, and sought to have the child placed with her on a 60–day visit.   She had regularly participated in therapy for over a year, regularly visited the child, had a full-time job, and ready to provide for the child on a full time basis.   The court summarily denied the petition.  (In re Hashem, supra, 45 Cal.App.4th at p. 1796.)   The court summarily denied another section 388 petition filed six months later, and the next month entered a guardianship order for the family friends.  (Id. at pp.   1796–1797.)

The Hashem court found mother had met the standard of “changed circumstances.”  (45 Cal.App.4th at p. 1799.)   Her continuous participation in individual therapy for more than 18 months, regular and consistent visitation with her child for more than a year, her stable employment, and religious affiliation made a prima facie case of changed circumstances sufficient to trigger a hearing.  (Id. at pp.   1799–1800.)   The mother had “made an adequate showing that she could demonstrate at a hearing that she had overcome her problems through conscientious and successful individual and conjoint counseling over a lengthy period of time;  that she maintained a consistent relationship with her son, including weekly visitation․  This is more than the ‘bare scintilla of proof’ of changing circumstances․  “ (Id. at p. 1800.)   The court noted that during the reunification period, the presumption is that the child will be returned to parental custody, while after the termination of reunification, the parent “must prove changed circumstances” pursuant to section 388.  (Ibid.)

Here, Mother submitted evidence that although she had not been given reunification services, she had completed educational courses, including parenting and anger management, had maintained sobriety, and had been visiting with C. However, Mother had not, at the time, achieved the level of visitation or therapy of the mother in Hashem H., nor had Mother obtained and maintained stable employment;  instead, she was considering various educational avenues that might lead to stable employment.   Her efforts demonstrate potentially changing, rather than changed circumstances.   On the other hand, the record does not establish that a change in the court's order would benefit C., who was bonded with Bernetta.   Bernetta was providing adequate care for C., who had physical and emotional issues, and he enjoyed a stable environment with her.   After visits with Mother, C.would become agitated.

Therefore, at this juncture, we cannot say the dependency court abused its discretion in denying her section 388 petition without a hearing because Mother has not yet demonstrated the changed circumstances necessary to trigger an evidentiary hearing.

DISPOSITION

The order of the superior court is affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FN2. DCFS's petition also referenced Mother's two other children, Roger W. born in 1995, and Brenda L., born in 1999.   The court ordered them released to their fathers pending further order.   The petition as to those children was dismissed on October 21, 2004..  FN2. DCFS's petition also referenced Mother's two other children, Roger W. born in 1995, and Brenda L., born in 1999.   The court ordered them released to their fathers pending further order.   The petition as to those children was dismissed on October 21, 2004.

FN3. Section 361.5, subdivision (b) provides:  “Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following:  [¶] (1) That the whereabouts of the parent or guardian is unknown.   A finding pursuant to this paragraph shall be supported by an affidavit or by proof that a reasonably diligent search has failed to locate the parent or guardian.   The posting or publication of notices is not required in that search.”.  FN3. Section 361.5, subdivision (b) provides:  “Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following:  [¶] (1) That the whereabouts of the parent or guardian is unknown.   A finding pursuant to this paragraph shall be supported by an affidavit or by proof that a reasonably diligent search has failed to locate the parent or guardian.   The posting or publication of notices is not required in that search.”

FN4. Adoption and Safe Families Act of 1997, which establishes federal guidelines for foster care and relative care placements.  (In re Darlene T. (2008) 163 Cal.App.4th 929, 932, fn. 1.).  FN4. Adoption and Safe Families Act of 1997, which establishes federal guidelines for foster care and relative care placements.  (In re Darlene T. (2008) 163 Cal.App.4th 929, 932, fn. 1.)

ROTHSCHILD, Acting P. J. CHANEY, J.