IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sutter)
August 24, 2011
IN RE G.B. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SUTTER COUNTY DEPARTMENT OF HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
J.R., DEFENDANT AND APPELLANT.
(Super. Ct. Nos. DPSQ09-6548, DPSQ09-6549)
The opinion of the court was delivered by: Butz , J.
In re G.B.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In August 2010, the juvenile court terminated the provision of reunification services to mother J.R. The juvenile court summarily denied successive petitions to modify the August 2010 order, which mother filed in November and December 2010 for reinstatement of services. (Welf. & Inst. Code, § 388, subd. (a).)*fn1
Mother appeals (§ 395), contending the summary nature of the denial of her section 388 petitions was a violation of her right to due process because they presented prima facie evidence that there had been a change in her circumstances, and that modifying the August 2010 order would be in the minors' best interests. We shall affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
The Sutter County Department of Human Services (DHS) filed identical petitions in case No. DPSQ09-6548 (involving minor G.B., born September 2005) and in case No. DPSQ09-6549 (involving minor L.B., born September 2007), except that in addition to Brandon R., Daniel J. was also listed as an alleged father of G.B. The juvenile court sustained the petitions in their entirety in finding jurisdiction over the two minors. In essence, it found mother had failed to protect the minors because their residence continued to be in deplorable condition despite multiple opportunities to remedy the problem and because she had a history of drug abuse, appeared to be under the influence of drugs, and failed to appear multiple times after consenting to drug testing. The alleged fathers were absent and did not provide support, and Brandon R. had parental rights terminated as to other children. Following the dispositional hearing, the juvenile court found mother had made adequate progress in remedying the jurisdictional causes, but Daniel J. (G.B.'s biological father) had not made any, and Brandon R. (L.B.'s biological father) had declined to participate. It therefore ordered services only for mother.
In anticipation of the six-month review hearing, the DHS petitioned in June 2010 for termination of provision of services to mother as to G.B. (§ 388, subd. (c)(1)(B).) The petition asserted she had participated only minimally in her case plan, had failed to make progress, had not taken a drug test since April, and had admitted use of illegal drugs. The juvenile court set the petition for hearing with the six-month review hearing. In early August 2010, Brandon R. filed a petition requesting a modification of the order that had denied reunification services to him. He alleged that at the time of the dispositional hearing, he had just discovered his paternity and had not wanted any request for services to result in a placement for L.B. separate from his half brother, G.B. It now appeared, however, that the minors had separate foster homes because G.B. was manifesting difficult behaviors, and Brandon R. had also recently reunified with L.B.'s one-year-old half sister.
The juvenile court judge found clear and convincing evidence that mother had failed to visit with the minors or engage in services, remarking, "I can't think of someone who is more successful in coming up with excuses as to why they couldn't be engaged in programs that they were referred to." The court granted the DHS petition to terminate services as to G.B., and also terminated services as to L.B. in connection with its six-month review of his case (§ 366.21, subd. (e)). It set a hearing on adoption as the permanent plan for G.B. It also granted Brandon R.'s petition for reunification services as to L.B.
The November petitions for modification in essence recited that mother had maintained sobriety for five months (although the fourth addendum report for the August hearing had documented her making numerous excuses for refusing to submit to a urine test in early August), had a program supervising her participation in various services including Narcotics Anonymous,*fn2 had found part-time work, was investigating housing,*fn3 and had successfully applied for general assistance and food stamps. She claimed insight into her past failings, and pledged further improvements.
The November petitions also included a recent adoption assessment prepared for G.B. This noted that his present placement was not interested in adoption. He also had difficult behaviors at school and at home (angry outbursts, tantrums, and bullying), and these might make him hard to place, although the assessment agency was confident that it would be able to find a suitable family. The petitions alleged G.B. was suffering from separation anxiety because he missed his mother and brother, which more regular contact with family, not with strangers, would alleviate.
After its summary denial of mother's November section 388 petitions, the juvenile court granted a DHS request for a continuance to allow further time to identify a potential adoptive home for G.B. DHS also wanted to assess the progress Brandon R. was making in reunification with L.B., who was otherwise bonding with his foster parents since his placement in their home in October 2010 (who were his paternal aunt and uncle, and who were also in the process of adopting another of Brandon R.'s sons).
Immediately after filing a notice of appeal from the denial of her November petitions for modification, mother filed new section 388 petitions in December 2010 (each having identical supporting exhibits). Other than materials reincorporated from the previous petitions and many pages of photographs of the minors, the new petitions included a further tallying of her continuing attendance at Narcotics Anonymous and efforts to find housing, a letter from a fellow former resident of the program attesting to weekly drug testing while they lived there, and a letter from mother that reiterated the efforts she had made to be a better parent after her past mistakes. The juvenile court summarily denied the petitions.
At a January 2011 hearing, the juvenile court selected adoption as the permanent plan for G.B. without a present termination of parental rights and continued the matter until July 2011. It found that he was adoptable despite the concerns about his aggressive behavior, and that mother had not made any remedial efforts. It subsequently granted de facto parent status to G.B.'s maternal grandmother.
In February 2011, the juvenile court found Brandon R. had been making adequate progress in reunification with L.B. It set an 18-month review hearing for June 2011.
Mother argues she established changed circumstances. Her petitions for modification (§ 388, subd. (a)) demonstrated that she now accepted responsibility for her actions and was actively remedying the causes that had given rise to these actions despite the termination of reunification services. She also argues she established that her continued contact with the minors would remedy their negative behaviors and allow them to grow up with their own biological family, which established renewed services would be in their best interests.
A parent is entitled to a hearing on a petition to modify a prior order only where the facts alleged, if credited, establish a colorable basis for the requested relief by demonstrating a change of circumstances or new evidence, and establishing that the proposed modification is in a minor's best interests. (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445 (Daniel C.);In re Daijah T. (2000) 83 Cal.App.4th 666, 672-673.) Although the juvenile court has discretion in resolving any inferences that a petition raises in light of the record as a whole, it abuses its discretion if it denies a petition without a hearing if there is "probable cause" that a party can demonstrate evidence of the relevant criteria; the party need not show the probability of prevailing on the allegations in order to obtain a hearing. (Daniel C., supra, 141 Cal.App.4th at p. 1445; In re Justice P. (2004) 123 Cal.App.4th 181, 188-189 (Justice P.); In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413-1414, 1416.)
The juvenile court was familiar with mother's history of addiction issues, which she had failed to address as of August 2010. Even accepting her assertion of a five-month period of sobriety (which was doubtful in light of evidence at the January 2011 hearing that she admitted being positive for marijuana to her parole officer in November 2010), even a seven-month period of abstention is insufficient evidence to establish the changed circumstance of successfully turning over a new leaf. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 423-424; In re Casey D. (1999) 70 Cal.App.4th 38, 47-49 (Casey D.); see In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9 [must be much longer than 120 days "to show real reform"]; cf. In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610 [prima facie showing of changing circumstances would not entitle petitioner to hearing].) While she had participated in a number of services, mother failed to show her participation in a drug treatment program as her case plan had required. She had been continuing instead under the irregular auspices of a barely functioning program that the juvenile court previously had found wanting. Given mother's failure to address this central issue in the circumstances giving rise to the juvenile court's jurisdiction, and her failure to secure permanent housing even as of the second petition, whatever other successes she may have achieved are irrelevant.
As for the second criterion, the focus in evaluating the best interests of the minors was mother's ability to offer them permanency and stability, not the mere emotional succor of her ongoing presence in their lives (an allegation that rests solely on her assertions to that effect without independent assessment). (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686.) A petition establishing only evolving circumstances would result in the delay of the selection of a permanent home while awaiting the parent's possible demonstration of an ability "to reunify at some future point," which "does not promote stability for the child or the child's best interests." (Casey D., supra, 70 Cal.App.4th at p. 47.) Her status as the natural parent of the minors of itself cannot trump this concern and establish reunification as being in the best interests of the minors. (Justice P., supra, 123 Cal.App.4th at p. 192.) As a result, the juvenile court did not abuse its discretion in concluding mother's efforts as of November and December 2010 were not a guarantee that she could provide a drug-free environment in a stable home, and thus it would not be in the minors' best interests to subject them to the instability that had characterized mother's life up to this point.
The orders denying the petitions to modify are affirmed.
We concur: HULL , Acting P. J. HOCH , J.