Filed 2/19/14 In re G.V. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re G.V., Jr., a Person Coming Under the Juvenile Court Law.

ORANGE COUNTY SO CIAL SERVICES AGENCY, Plaintiff and Respondent,

v. M.C. et al., Defendants and Appellants. G048712 (Super. Ct. No. DP022677)

O P I N I O N

Appeal from a judgment of the Superi or Court of Orange County, Deborah C. Servino, Judge. Affirmed. Megan Turkat Schirn, under appoin tment by the Court of Appeal, for Defendant and Appellant M.C.2 Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant G.V., Sr. Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.

* * *

M.C. (mother) and G.V., Sr., (fathe r) appeal from the juvenile court’s termination of their parental rights to thei r son G.V., Jr., (child) at a hearing under Welfare and Institutions Code section 366.26 (a ll further statutory references are to this code). Mother’s sole contention is the cour t erred in summarily denying her section 388 modification petition (section 388 petition). Father does not raise any independent grounds, but merely argues if mother’s appeal is found to have merit, we must also

reverse as to him. We find no error and a ffirm the judgment as to both parents.

FACTS AND PR OCEDURAL BA CKGROUND This is our second opinion in this ca se. Our first opinion denied father’s petition for writ of mandate challenging the suffi ciency of the eviden ce to support the March 6, 2013 order denying both parents reunification services under section 361.5, subdivisions (b)(5 ) and (b)(6). ( G.V. v. Superior Court (June 27, 2013, G048140) [nonpub. opn.].) Mother was not a party to those writ of mandate proceedings. 1 At the March 6, 2013 di sposition hearing the juven ile court also declared the child to be a dependent, removed th e child from parental custody, and set a permanency planning hearing und er section 366.26 (.26 hearing) for July 3, 2013. The facts and procedural background which led to these orders are summ arized in our prior

1 Mother filed a notice of intent to file a writ petition, which she later withdrew.3 opinion and need not be repeated here. It is sufficient to note the j uvenile court found the child had suffered severe nonaccidental physical harm during the first three months of his life, both parents denied inflicting that harm, each parent pointed the finger at the other, and “either they personally inflicted it on the child or they knew or reasonably should

have known.”

On the date set for the .26 hearin g, mother filed a section 388 petition seeking return of the child to her custody o r, in the alternative, a 60-day visit and

reinstatement of reunification services. Moth er’s supporting declaration stated that as of July 3, 2013 she had: (1 ) completed 35 of 52 weeks in the child abuse treatment program, begun on October 8, 2012; (2) completed the 26-week parenting component program, begun in late 2012; (3) continue d participating in the weekly counseling services, begun on November 27, 2012; and (4) never missed any of the permitted twice weekly two-hour visits with the child, they were affectiona te with each other and the

child was bonded to her.

Her declaration further stated: “Based on what I have learned in my [child abuse treatment] program, I believe that the in jury to my son’s leg was not accidental.

The fact that the father has lied about me hitti ng him in the past, show s me that the father clearly lied about how my son was injured. I am no longer with the father because I believe that he intentionally harmed my son.” Mother also declared she had, “learned the difference between punishment and discipline. ” “[A]ddressed the original problems that led to [G.] becoming a dependent child.” “[And] shown that given the opportunity I could complete future services if they were offered to me.” The juvenile court entertained argume nt on whether the section 388 petition stated a prima facie case which would warra nt an evidentiary hearing. Counsel for mother argued the section 38 8 petition showed there were changed circumstances, and the requested modification was in the best in terests of the child. Counsel for the child and the Orange County Social Services Ag ency (SSA) both argued the section 3884 petition did not show changed or even changing circumstance s, or that the requested

modification was in the best interests of the child. The juvenile court summarily deni ed the section 388 petition without conducting an evidentia ry hearing, and found, “a prima facie case has not been made . . . the request does not state . . . a change of circumstances, and . . . the proposed order does not promote the best interests of the child.” At the conclusion of the .26 hearing on July 11, 2013, th e court terminated the parental rights of both parents and ordered adoption as the permanent plan. This appeal followed.

DISCUSSION Under section 388, a juvenile court ma y modify its orders if the petitioner shows, by a preponderance of the evidence, there are (1) changed circumstances or new evidence that support a modification; and (2 ) the modification would be in the best interests of the child. ( In re Stephanie M. (1994) 7 Cal.4t h 295, 316-317 ( Stephanie M. ); In re Zachary G. (1999) 77 Cal.App.4th 799, 805, 806 ( Zachary G. ).) To obtain a hearing on a section 388 petition, the petitioner needs only to make a prima facie showing of these two elements, and “the petition should be liberally c onstrued in favor of granting a hearing to consider the parent’s request. [Citation.]” ( Zachary G ., supra , 77 Cal.App.4th at p. 806; see In re Marilyn H. (1993) 5 Cal.4th 295, 309-310 ( Marilyn H. ).)

But the burden is on the party seeking modification ( Marilyn H ., supra , 54 Cal.4th at p. 309), and “if the liberally cons trued allegations of the petition do not make a prima facie showing of change d circumstances and that the proposed [modification is in] the best interests of the child, the court need not order a hearing on the petition. [Citations.]” ( Zachary G ., supra, 77 Cal.App.4th at p. 806; see also In re Kimberly F. (1997) 56 Cal.App.4th 519, 529 ( Kimberly F. ).) A section 388 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 of5 discretion. [Citations.]” ( In re Jasmon O. (1994) 8 Cal.4th 398, 415-416; see Stephanie

M ., supra , 7 Cal.4th at pp. 318-319; Zachary G ., supra , 77 Cal.App.4th at p. 808.) 1. Changed Circumstances Mother claims her section 388 pe tition made the prima facie showing required to warrant an evidentiary hearing. Not so. As a thre shold matter, we note mother did not seek extraordinary writ review of the juvenile court’s order denying her reunification services, and so cannot implicitl y question the correctness of that order now. (Cal. Rules of Court, rule 5.695(h)(18).) Mother asserts as changed circum stances her “documented progress in services.” However, the bu lk of mother’s supporting declaration refers to her accomplishments before the disposition hearing. She was actively participating in all of these services prior to the disposition hearing and merely continued to do so after. For example, with respect to th e 52-week child abuse treatment program, mother completed approximately 21 weeks before and 14 weeks af ter the disposition heari ng. Similarly, as to the 26-week parenting component program, mother completed abou t 13 weeks prior to and 13 weeks subsequent to th e disposition hearing. Finally, mother attended 15 weeks of counseling before the dispos ition hearing and 17 weeks after. Mother also asserts as changed ci rcumstances that, as a result of her participation in these services, she accepted “full responsibility for her actions,” separated from father, had no intention of reunifyin g with him, and no longer suffered from postpartum depression. Yet again all of thes e circumstances existe d at the time of the disposition hearing, and changed little thereafter. In fact , mother’s current claims are remarkably similar to her testimony on these points at the disposition hearing. Finally, mother claims an evidentiary hearing wo uld have permitted her to present third party evidence and testimony re garding “whether her counseling services showed that reabuse was likely to be prevented if mother was given reunification

services.” Here she relies on the form lette r which verified her a ttendance in the child6 abuse treatment program, and stated, “Counsel ors are not qualified to . . . give expert testimony, or make recommendations to the court. If you need this type of service, a referral will be provided.” But she offered no such expert testimony or any evidence she ever even requested this type of service. In short, we agree with the juvenile court. Mother failed to make a prima facie showing of changed circumstances su fficient to warrant a modification of the challenged orders. 2. Best Interests of the Child Even assuming a prima facie case of changed circumstances was shown, mother did not make a prima facie showing th at undoing the prior orde rs is in the best interests of the child. Preliminarily we no te, because mother was denied reunification services under section 361.5, subdivisions (b )(5) and (b)(6), the usual preponderance of

the evidence standard doe s not apply here. Instead, the juvenile court was only permitted to modify the prior orders if it found “by cl ear and convincing evidence that the proposed change is in the best interests of the child.” (§ 388 , subd. (a)(2).) “Family Code section 7800 declares th e welfare and best interest of a child is achieved ‘“by providing the stability and se curity of an adoptiv e home when those conditions are otherwise missing from [the child ’s life].”’ [Citations.] The fact is, ‘[o]nce reunification services are ordered termin ated [or denied], the focus shifts to the needs of the child for permanency and stability. . . . [¶] . . . The parent’s interest in having an opportunity to reunif y with the child is balanced against the child’s need for a stable, permanent home.” ( In re Ronell (1995) 44 Cal.App. 4th 1352, 1369-1370.) In that situation there is a rebuttable pr esumption continued foster care is in the best interests of the child. ( Marilyn H. , supra , 5 Cal.4th at p. 310.) “[ S]uch presumption obviously applies with even greater strength when the pe rmanent plan is adoption rather than foster care.” ( In re Angel B . (2002) 97 Cal.App.4th 454, 464 ( Angel B ).)7 Against this backdrop, mother asserts her secti on 388 petition showed that returning the child to her would promote the ch ild’s “best interest because she was a good mother, took full resp onsibility for her actions, and had addressed the original problems that led to the dependency.” She contends such statements by mother were sufficient to show the child’s best interests may be prom oted by holding a hearing. And she argues her section 388 petition “sho wed she could demonstrate ‘best interests’ under the Kimberly F. factors.” We are not persuaded.

The Kimberly F. factors to which mother refers are: “(1) The seriousness of the problem which led to the dependency, a nd the reason for any continuation of that problem; (2) the strength of relative bonds be tween the dependent child ren to both parent and caretakers; and (3) the degree to whic h the problem may be easily removed or ameliorated, and the degree to which it actually has been.” ( Kimberly F. , supra , 56 Cal.App.4th at p. 532.) “While this list is not meant to be exhaustive, it does provide a reasoned and principled basis on which to evaluate a section 388 motion.” ( Ibid .) We will briefly address each of these best interest factors in turn. With respect to the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem, “[m]other concedes that the dependency was the result of her child sust aining severe physical injuries that were non-accidentally inflicted.” Mother then argu es “she has taken steps to prevent future abuse by no longer being with the father and having no desire to reunify with him.” But this argument ignores the juvenile court find ing that either both parents inflicted the injuries on the child, or both parents knew or sh ould have known of the abuse. And even assuming mother was not an actual abuser, he r continued participation in the child abuse treatment program shows little mo re than that which was deem ed insufficient to warrant reunification efforts just four months earlier. Regarding the strength of relative b onds between the child to mother and the caretakers, mother focuses exclusively on her relati onship with the child. Mother8 emphasizes how much she look ed forward to having a child, how she visited with the child whenever allowed, and “t hus made the most of her limit ed opportunity to preserve her relationship with her son.” Mother also points out the social worker agreed mother was appropriate and nurturing in her visits , and the social work er observed the child laughing with mother while they played. A ll of this is true. Still mother ignores the relationship be tween the child and the caretakers. The SSA report filed June 10, 2013 for the .26 hearing noted: “The child was placed with the prospective ad optive parents on June 21, 2012. Du ring this time, the prospective adoptive parents have bonded w ith the child. They have provided a nurturing, loving and stable home for him. They ha ve integrated the child into their family and are committed to providing him a permanent home.” These caretakers were, “by deed if not by name,” the child’s parents. ( Angel B. , supra , 97 Cal.App.4th at p. 465.) And, while the bond to the caretakers cannot be dispositive, “‘the disruption of an exis ting psychological bond between dependent children and their caretakers is an extremely important factor bearing on any section 388 motion.’ [Citation.]” ( In re D.R. (2011)193 Cal.App.4t h 1494, 1512.) Insofar as the degree to which the problem may be easily removed or ameliorated, and the degree to which it actual ly has been, “mother asserts that under her showing of changed circumstances, as argued above, she has learned to protect her son

from abuse and to handle the stress in her life which lead to her situation with [the] father.” Again, we find little in the way of changed circumstances which would rebut the presumption that adoption is in the best interests of the child, and thus warrant a modification of the challenged orders. To remove him from the only secure, stable home

he had ever known would have caused chaos a nd uncertainty in an al ready uncertain life.9 Under these circumstances, the juvenile court did not abuse its discretion by summarily dismissing mothe r’s section 388 petition.

DISPOSITION The judgment is affirmed.

THOMPSON, J.

WE CONCUR:

O’LEARY, P. J.

MOORE, J.