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In Re A.M., A Person Coming Under the Juvenile Court Law. v. M.M

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


December 1, 2011

IN RE A.M., A PERSON COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
M.M., DEFENDANT AND APPELLANT.

(Super. Ct. No. JD230583)

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

In re A.M.

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appellant, the mother of the minor, appeals from the juvenile court's orders denying her request for modification and terminating parental rights. (Welf. & Inst. Code, §§ 366.26, 388, 395; further statutory references are to the Welfare and Institutions Code.) On appeal, appellant contends the juvenile court erred by denying her an evidentiary hearing on her request for a modification. We affirm the superior court's orders.

FACTS AND PROCEEDINGS

In April 2010, the Sacramento County Department of Health and Human Services (the Department) filed a dependency petition concerning the nearly three-year-old minor based on appellant's inability to provide regular care due to her substance abuse. As later amended, the petition alleged that the minor opened the door to police officers who were responding to a welfare check at the home, and appellant was found passed out on the couch with track marks on her arms. Syringes, a plastic bag with cocaine residue, pills and burning incense were located in the residence within reach of the minor, and appellant admitted to using heroin the previous day. She was arrested for child endangerment and possession of a controlled substance.

Appellant, who was 36 years old, reported that her "drug of choice" was heroin. She began injecting the drug at age 31 and had overdosed several times. She had used a variety of other drugs beginning at age 12, including marijuana, cocaine, methamphetamine and hallucinogens. She had been through a variety of treatment programs, most recently an outpatient program that she stopped attending after two months. She also took medication for mental health problems.

The allegations in the amended petition were sustained. At the dispositional hearing in July 2010, appellant was granted reunification services, and the minor was placed with her great-aunt and uncle.

By the six-month review, appellant had completed "detox" twice but otherwise had been discharged from a number of treatment programs due to noncompliance. In addition, she was not having her medications monitored as required, and she had three psychiatric hospitalizations in the preceding two months. She also had not attended counseling or completed a parenting class. And although appellant's visits with the minor were positive, they were suspended at one point due to her continued drug use. Noting that the Department had no further resources to offer appellant, the social worker recommended termination of her services.

Appellant failed to appear at the six-month review hearing, which occurred in November 2010. The juvenile court terminated reunification services and set the matter for a hearing pursuant to section 366.26 to select and implement a permanent plan for the minor.

According to the social worker's report for the section 366.26 hearing, the minor's great-aunt and uncle were committed to adopting her. The minor was described as being "comfortable in the home and . . . look[ed] to her caretakers to have her needs met."

Meanwhile, in March 2011, appellant filed a request to modify the juvenile court's order terminating services. She alleged she was participating in a residential treatment program and had signed up for counseling and a parenting course. She attached written verification of these assertions, including a letter from the community director of her treatment program confirming that she had entered the program in February 2011. The letter stated that appellant had been "working consistently with the guidelines and the standards" of the program and "commend[ed] [her] for her current progress and positive steps to become a productive, successful member of society . . . ." Appellant asserted it would be in the minor's best interest "to be reunited with her natural mother rather than being raised by older relatives."

The juvenile court signed an order setting appellant's modification request for a hearing in April 2011, on the same date as the section 366.26 hearing. The order contained a preprinted finding that "the best interest of the [minor] may be promoted by the request."

On the date scheduled for the hearing, the attorney for the Department argued that appellant's modification request failed to make a prima facie showing of changed circumstances or that modification would be in the minor's best interest. The minor's attorney also objected to a hearing on appellant's modification request, arguing, in part, that her recent entry into a treatment program did not constitute changed circumstances.

Appellant's attorney noted there had been no previous objection to the matter proceeding by way of a hearing. She urged the court to allow appellant to present "all the evidence she feels is relevant to convince the Court to change the permanent plan for [the minor] from termination of parental rights . . . ."

The juvenile court denied appellant's request to present further evidence, finding her petition did not set forth a prima facie showing of changed circumstances or that the modification would be in the minor's best interest. The court noted appellant had a longstanding substance abuse problem and had failed numerous treatment programs in the past. The court ordered a permanent plan of adoption and terminated parental rights.

DISCUSSION

Appellant contends the juvenile court erred by refusing to hold an evidentiary hearing on her modification request after finding she had made a prima facie showing of changed circumstances and that modification would be in the minor's best interest.

Section 388, subdivision (a), provides in pertinent part: "Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made . . . . The petition . . . shall set forth in concise language any change of circumstance of new evidence that are alleged to require the change of order . . . ."

The person seeking modification must make a prima facie showing to trigger the right to proceed by way of a full hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) The petition must plead facts showing both changed circumstances and that the proposed modification may be in the best interests of the child. (In re Daijah T. (2000) 83 Cal.App.4th 666, 672.) "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." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) The juvenile court has discretion to deny the request ex parte if it fails to set forth a prima facie showing. (Cal. Rules of Court, rule 5.570(d)(1); further rule references are to the California Rules of Court.)

Although the juvenile court is not always required to proceed by way of witness testimony at a hearing on a modification request (see rule 5.570(h)(2)), some form of hearing must be held if a prima facie showing has been made in support of the request for modification. (In re Lesly G. (2008) 162 Cal.App.4th 904, 914.)

On the other hand, a juvenile court is authorized to change, modify or set aside a dependency order at any time, as long as the individuals who are affected by the order remain subject to its jurisdiction. (§ 385; In re Hirenia C. (1993) 18 Cal.App.4th 504, 512.) This is precisely what the juvenile court did here when it set aside its order granting a hearing on appellant's modification request. In an ex parte order, the court set appellant's modification request for a hearing based on its finding that she had made a prima facie showing entitling her to a hearing. On the date set for the hearing, the court was asked to reconsider its prior order. After allowing the parties the opportunity to present argument on whether the modification request set forth a sufficient showing to warrant a hearing, the court concluded that appellant had failed to make a prima facie showing of changed circumstances or that the minor's best interests would be served by a modification. Consequently, it set aside its order setting the matter for a hearing.

Appellant is mistaken in asserting her circumstances are analogous to those in In re Lesly G., supra, 162 Cal.App.4th 904. In that case, after making an ex parte finding of a prima facie showing, the court summarily denied the mother's modification on the date set for the hearing without taking evidence or hearing argument on the propriety of granting the hearing. (Id. at pp. 910-911.) Unlike in the present matter, the court did not purport to reconsider its previous order setting the modification request for a hearing or hear argument on that issue. Thus, appellant's situation is distinguishable.

Appellant argues she was entitled to notice before the juvenile court reconsidered its prior order. She is correct that prior notice is required before a previous dependency order may be set aside. (§ 386 [notice required to social worker and child's attorney]; Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 112, fn. 16 [notice requirement extends to parents if modification of prior order may affect their interests].) However, failure to object to a lack of notice generally forfeits the issue for purposes of appeal. (In re Christopher B. (1996) 43 Cal.App.4th 551, 558.) Here, although appellant's attorney noted that the Department had not previously objected to the setting of a hearing, she did not object to reconsideration of the issue based on lack of notice. Thus, the issue has been forfeited.

We note further that notice errors are subject to harmless error review (In re J.H. (2007) 158 Cal.App.4th 174, 183), and any error here would be deemed harmless. Appellant was present and prepared to go forward with an evidentiary hearing when the juvenile court reconsidered its prior ruling. Thus, she was in a position to inform the court of any further evidence to support her prima facie showing. It can be inferred from her failure to do so that her written modification request had fully summarized the evidence in this regard.

Appellant argues, in the alternative, that her modification request was supported by a prima facie showing and, thus, it was an abuse of discretion to deny her a hearing on her request. We discern no abuse of discretion.

As previously noted, a hearing on a request for modification may be denied if it "fails to state a change of circumstance or new evidence that may require a change of order or . . . that the requested modification would promote the best interest of the child." (Rule 5.570(d)(1).) Appellant's modification request alleged as changed circumstances that she had entered a treatment program the previous month and had signed up for the other services required by her case plan. By the time of the hearing on her request, she had been in the treatment program for approximately two months. However, as observed by the juvenile court at the time of its ruling, appellant was battling a well-entrenched substance abuse problem and had been unsuccessful in numerous programs in the past. In fact, the last program she attended prior to the minor's removal was an outpatient program that she stopped attending after two months. Thus, the juvenile court was warranted in concluding that appellant's recent short-term success in treatment did not constitute a change of circumstances.

Appellant maintains that, "for purposes of the [modification] petition, it is not [her] history that is relevant, but her current circumstances and the changes she has made that might benefit her child." To the contrary, the juvenile court may consider "the facts established as without dispute by the court's own file" in determining whether a prima facie showing has been made. (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) Such facts are particularly relevant when evaluating whether the allegations in a modification petition truly constitute changed circumstances.

We also conclude the juvenile court properly could reject appellant's assertion that it was in the minor's best interest to be raised by a natural parent instead of "older relatives." Appellant did not set forth any specific information bearing on the ability of the minor's caretakers to make a long-term commitment to the minor. On appeal, she argues only that "maintaining ties with [appellant] might be in [the minor's] best interests," pointing to the bond between them that was reported early in the proceedings. However, by the time of the section 366.26 hearing, it had been months since appellant had visited the minor, who was comfortable in the home of her relative caretakers and looked to them to meet her needs. In any event, it is not necessary to delay the determination of a permanent plan for a child who has a significant bond with a parent, as such a bond may form the basis for an exception to adoption in an appropriate case. (§ 366.26, subd. (c)(1)(B)(i).)

Accordingly, we find no merit to appellant's claim.

DISPOSITION

The juvenile court's orders are affirmed.

We concur: RAYE , P. J. DUARTE , J.

20111201

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