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In Re R.L. et al., Persons Coming Under the Juvenile Court Law. v. E.L

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR


December 20, 2010

IN RE R.L. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW.
SONOMA COUNTY HUMAN SERVICES DEPARTMENT, PLAINTIFF AND RESPONDENT,
v.
E.L., DEFENDANT AND APPELLANT.

(Sonoma County Super. Ct. Nos. 3024-DEP, 3025-DEP)

The opinion of the court was delivered by: Ruvolo, P. J.

In re R.L.

CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

I. INTRODUCTION

Appellant E.L. is the mother of three-year-old twins, R.L. and S.L., who have been found to be dependent children of the juvenile court. At the six-month review hearing, the court terminated reunification services and set a hearing pursuant to Welfare and Institutions Code section 366.26.*fn1 Months later, appellant filed a petition for modification pursuant to section 388. The juvenile court denied the section 388 petition without a hearing, and proceeded with the section 366.26 hearing, which resulted in the termination of appellant's parental rights.

Appellant has filed a notice of appeal from both the denial of the section 388 petition and the termination order, but presents appellate argument only regarding the section 388 petition. She claims the juvenile court erred by denying the section 388 petition without conducting an evidentiary hearing. We disagree, and affirm.

II. FACTS AND PROCEDURAL HISTORY

Respondent Sonoma County Human Services Department (the Department) filed a juvenile dependency petition on December 31, 2008, when the twins were 21 months old. The Department alleged that appellant had failed to provide adequate care, support, and a safe living environment for the children, within the meaning of section 300, subdivisions (b) and (g), due to appellant leaving the minors with a friend and then not returning at the agreed-upon time or calling to explain her absence. The Department also alleged that appellant "has a history of substance abuse that, at times, renders her unable to provide adequate care and supervision for the minors . . . ." The juvenile court detained the children and placed them in foster care.

In a combined jurisdictional and dispositional report, the Department noted that appellant had left the children for three days with an unrelated caretaker whom she had known for only three weeks. She left them purportedly for an evening, and three days later she had not come back or called to check on them. A police officer who interviewed appellant after she was located reported that she explained her behavior by saying that she needed a break from her kids.

At the time the report was written, appellant did not have stable income or housing, and she "appear[ed] to have a significant problem with alcohol, which she acknowledges . . . ." After her children were taken into protective custody, she waited three weeks to contact the Department. Furthermore, she failed to visit her children; she also failed to provide the Department with a random drug and alcohol test. The report noted that appellant has an older child, M., who resides with her ex-husband in New York. Appellant left M. when she was two years old, and had not seen or had any contact with her for the previous four years.

The court sustained the allegations of the petition and found the children to be dependent children under section 300, subdivisions (b) and (g). At the dispositional hearing, the juvenile court found there would be substantial danger to the children if they were returned to appellant's custody, and ordered reunification services per the Department's recommendation.

The matter was once again before the court for a three-month update on May 7, 2009. Appellant was not engaging in services and was still testing positive for alcohol consumption. By the time of the six-month review hearing, the Department's report indicated that appellant had attended a parenting class and she was attending classes to address her alcohol problem. She was also participating in weekly individual therapy. Visitation with the children was supervised and described as "enjoyable for all parties." However, it was likely that appellant was still not able to maintain her sobriety. It was reported that appellant had been asked to submit to random drug and alcohol tests twelve times. She had failed to show six times (two of which involved excuses by appellant as to why she was not able to test, neither of which turned out to be true), two tests were positive for alcohol, one was positive for benzodiazepes, and three tests were clean.

In anticipation of the six-month review hearing, appellant participated in a psychological evaluation with Gloria Speicher, Ph.D. One of the purposes of the evaluation "was to better understand [appellant's] thought processes, particularly justifying leaving her children and not returning (including her daughter M[.] in New York)." Another purpose was "to explore what triggers [appellant] to 'binge drink[,]' which ultimately leads to her leaving her relationships behind, including her children."

The results of Dr. Speicher's evaluation were discussed in detail in the Department's report. Dr. Speicher noted that " '[w]hile [appellant] puts forth the image of being currently motivated for treatment and wants to have her children returned to her, there are some deficits in personal awareness that are likely to impede her progress and bode poorly in terms of prognosis.' . . . 'She has characterological disorders and longstanding habits of behavior that are clearly more focused on self-indulgent and impulsive behaviors combined with a strong desire to present an overly virtuous image.' " Dr. Speicher also noted that appellant fails to recognize the seriousness of her drinking: " 'She simply dismisses her behavior in terms of not doing it any longer. She therefore is not attending to or concerned with understanding the situations and "triggers" that make her vulnerable to drinking again.' "

The Department's report noted that appellant's "alcohol dependency and dysfunctional pattern of behavior . . . has not been addressed at all in the past four years." (Original italics.) Although appellant was now engaging in services, she was just "at the beginning of a long journey" and "it will take a long positive track record before people can start to believe her again." Consequently, it was the Department's position that based on appellant's "failure to embrace sobriety and make significant progress in services," it was not probable that the children could be returned to her within the next six months even if reunification services were extended. The Department therefore recommended that reunification services be terminated and that a hearing be set pursuant to section 366.26.

The court held a six-month review hearing on September 29, 2009. Appellant did not attend the hearing. The Department reported that appellant had been asked to test three times during the previous week and had failed to show for two of the tests, with no explanation as to why she missed the tests. The juvenile court followed the Department's recommendations and terminated reunification services and set a 366.26 hearing for January 14, 2010. Appellant was served with a blank notice of intent and petition for extraordinary writ, in order to challenge the order setting the 366.26 hearing. (Cal. Rules of Court, rules 8.450, 8.452.) She failed to file a petition for extraordinary writ.

Prior to the section 366.26 hearing, the Department and the adoptions branch staff of the California Department of Social Services prepared and submitted a joint assessment in which the agencies recommended adoption as the most appropriate permanent plan for the children. The children had been in their current placement since December 29, 2008, and had adjusted well to the home. The children look to their caretakers as their psychological parents, and the children have developed an attachment to the other children in the home. The caretakers are committed to the children and have expressed a desire to adopt.

The juvenile court continued the section 366.26 hearing to March 2, 2010. On or about February 26, 2010, appellant filed a section 388 petition.*fn2 The section 388 petition sought modification of the court's previous order terminating reunification services and setting the section 366.26 hearing. In her section 388 petition, appellant made the following allegations in support of changed circumstances: "Since services were terminated, I have continued on in my recovery (alcoholism.) I have been clean and sober since July 4, 2009.[*fn3 ] My boyfriend and I have launched a successful business (a line of natural products I am making myself) and our relationship is stable. I have a comfortable home and a room for the children." The only documents supporting the section 388 petition were a number of unidentified photographs of a well-kept, attractive home.

On February 26, 2010, the juvenile court summarily denied appellant's section 388 petition on the ground the best interest of the children would not be promoted by the proposed change of order. The court found that the petition failed to state new evidence or changed circumstances. The court specifically stated that "[c]omfortable house, income, continued recovery all positive. The rehabilitative efforts have not address [sic] the concerns raised by Dr. Speicher. So there is evidence that Mother's situation is changing but not changed."

On March 2, 2010, the section 366.26 hearing was held. Appellant submitted on the Department's recommendation that adoption was in the children's best interest. She did not present any argument or evidence to dispute the children's adoptability, and her attorney conceded that she did not have a witness who could testify that a parent-child relationship existed between appellant and her children. As a result, the juvenile court found that it is likely the children will be adopted and that termination of parental rights would not be detrimental to the children, and ordered that appellant's parental rights be terminated. Appellant filed a timely notice of appeal on April 16, 2010.*fn4

III. DISCUSSION

Appellant contends she was entitled to an evidentiary hearing on her section 388 petition. We disagree. Section 388 allows a parent to petition the juvenile court to change or modify a previous order "upon grounds of change of circumstance or new evidence. . . ." (§ 388, subd. (a).) The court must hold a hearing on the petition only "[i]f it appears that the best interests of the child may be promoted by the proposed change of order . . . ." (§ 388, subd. (d).) Thus, the petition must state a prima facie case of both changed circumstances and best interests of the child.

"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.) Allegations of changing, rather than changed, circumstances are not sufficient to warrant a hearing. (See In re Casey D. (1999) 70 Cal.App.4th 38, 49.) If the petition fails to make the required prima facie showing, summary denial of the petition without a hearing does not violate the petitioner's due process rights. (In re Angel B. (2002) 97 Cal.App.4th 454, 460-461.) We review the juvenile court's decision to deny a hearing for an abuse of discretion.*fn5 (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)

In the present matter, the trial court did not abuse its discretion in concluding that appellant did not make a prima facie showing that her circumstances had changed, or that the modification was in her children's best interest. First, appellant's section 388 petition did not allege specific facts describing the changed circumstances; it merely contained general or conclusory allegations she was "continu[ing] on in my recovery (alcoholism)," that she had launched a new business with her boyfriend, and that she had a home. These allegations were not supported by any documentation or specific facts demonstrating a change in circumstances.

General or conclusory allegations are not enough to make a prima facie showing under section 388. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) The petition must include "specific allegations describing the evidence constituting the proffered changed circumstances or new evidence." (Ibid.) "Successful petitions have included declarations or other attachments which demonstrate the showing the petitioner will make at a hearing of the change in circumstances or new evidence." (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) Indeed, "[i]f a petitioner could get by with general, conclusory allegations, there would be no need for an initial determination by the juvenile court about whether an evidentiary hearing was warranted. In such circumstances, the decision to grant a hearing on a section 388 petition would be nothing more than a pointless formality." (In re Edward H., supra, at p. 593.)

Second, even if appellant's allegations are accepted at face value, the fact that she is continuing in her recovery from alcoholism, and that she has stabilized her housing and employment, do not suffice to meet her burden of establishing a prima facie case of changed circumstances. Given the severity of appellant's alcoholism and her history of abandoning her children when parenting becomes too overwhelming, the juvenile court could reasonably find that these short-term gains were not particularly compelling. (See In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 ["Carl's seven months of sobriety since his relapse . . . , while commendable, was nothing new"].) Furthermore, in summarily denying appellant's section 388 petition, the juvenile court properly considered appellant's mental health issues as described in Dr. Speicher's evaluation, and the absence of any reference in her section 388 petition to continued counseling or therapy.

Appellant argues that this factor "was an improper basis for denying the section 388 petition" because the original dependency petition "did not allege that [she] had any mental health issues that caused her to abuse or neglect her children." However, when determining whether the required showing has been made, the juvenile court need not put blinders on to everything that has occurred in the case since the original dependency petition was filed. Rather, the court can consider the "entire factual and procedural history of the case" when evaluating the significance and strength of the allegations in the section 388 petition. (In re Justice P. (2004) 123 Cal.App.4th 181, 189; see, e.g., In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446-447.) Consequently, the juvenile court was entitled to find that the fact that appellant had a house and employment and had allegedly been sober for several months did nothing to address a critical component of her recovery--the mental health concerns Dr. Speicher outlined in her psychological evaluation of appellant.

Moreover appellant's conclusory statement in her section 388 petition that "my boyfriend Sean and I can provide a loving, stable home" for the children does not, by itself, support a finding that the children's best interests would have been promoted by canceling the section 366.26 hearing, and granting her additional reunification services. "At this point in the proceedings, on the eve of the selection and implementation hearing, the children's interest in stability was the court's foremost concern, outweighing any interest [appellant] may have in reunification." (In re Anthony W., supra, 87 Cal.App.4th at pp. 251-252; In re Aaron R. (2005) 130 Cal.App.4th 697, 706 [petitioner's conclusory allegation that she had formed a bond with child held insufficient "to rebut the mass of evidence in the record indicating that [the child] was thriving under [his foster mother's] care.).] " ' "[C]hildhood does not wait for the parent to become adequate." ' [Citation.]" (In re Casey D., supra, 70 Cal.App.4th at p. 47.) "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. [Citation.]" (Ibid.)

For the foregoing reasons, the trial court properly concluded that appellant's section 388 petition did not make a prima facie showing necessary to warrant an evidentiary hearing.

IV. DISPOSITION

The orders denying appellant's section 388 petition and terminating her parental rights are affirmed.

We concur: REARDON, J. SEPULVEDA, J.


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