In Re Anthony W.
INTRODUCTION
Lilark W., mother of six-year-old Anthony W., four-year-old Aireal L. and two-year-old Jonathan L., appeals from the
FACTUAL AND PROCEDURAL BACKGROUND
Mother was a dependent of the juvenile court at the time she gave birth to Anthony in 1994. Anthony became a dependent of the court upon an amended petition alleging mother‘s minority and lack of ability and resources to care for the child. That petition was dismissed on April 17, 1995. (
On June 5, 1998, the Department of Children and Family Services (the department) filed a new petition naming Anthony and the two additional children born to mother, Aireal and Jonathan. This petition alleged Jonathan had been born in May 1998, with a positive toxicology screen for cocaine, and mother‘s drug use rendered her incapable of caring for the children. (
In October 1998, the court sustained the petition declaring the three children dependents of the court under
By April 1999, mother had only partially complied with the case plan, and by October 1999, mother had still not completed the case plan. Mother never regularly visited the children and the record indicates she has not visited the children since June 1999. Meanwhile, the children appear well cared for and loved in their placement with their paternal aunt.
Although mother contested the permanent planning hearing, scheduled for November 15, 1999, she left the courthouse before the case was called and so her attorney submitted on the department‘s recommendation. Thereafter, the court terminated reunification services to mother indicating that the department had made reasonable efforts to assist mother, but that those efforts had failed. Mother had not complied with the services provided, and had failed to remediate the drug addiction which led to the court‘s jurisdiction. Still, the court allowed mother reasonable, monitored visits. The case was continued to enable the social worker to submit additional information as to one of the fathers.2
On February 16, 2000, the court terminated family reunification services upon a finding mother had not complied with the case plan, or resolved the issues which led to the court‘s jurisdiction.
Thirteen days later, on February 29, 2000, mother filed the petition here at issue for modification under
CONTENTION
Mother contends the juvenile court abused its discretion in declining to hold a hearing on her section 388 petition.
DISCUSSION
The parent seeking modification must “make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation .]” (In re Marilyn H. (1993) 5 Cal.4th 295, 310, 19 Cal.Rptr.2d 544, 851 P.2d 826; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1412-1414, 5 Cal. Rptr.2d 148.) There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529, 65 Cal.Rptr.2d 495.) If the liberally construed allegations of the petition do not show changed circumstances such that the child‘s best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806, 92 Cal.Rptr.2d 20.) We review the juvenile court‘s summary denial of a section 388 petition for abuse of discretion. (In re Jeremy W., supra, 3 Cal.App.4th at p. 1413, 5 Cal.Rptr.2d 148.)
Mother failed to make the showing necessary to obtain a hearing. The petition may not be conclusory. “[S]pecific allegations describing the evidence constituting the proffered changed circumstances or new evidence” is required. (In re Edward H. (1996) 43 Cal.App.4th 584, 593, 50 Cal.Rptr.2d 745.) 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 In re Jeremy W., supra, 3 Cal.App.4th at pp. 1413-1415, 5 Cal. Rptr.2d 148, not only had the department‘s reports evidenced the alleged change in circumstances, but the mother‘s declarations attached to her section 388 petition directly addressed deficiencies in the reports, justifying a hearing on the section 388 petition.4
Here, mother merely asserted that she had “participated [in] and completed the family reunification program,” including drug counseling and testing and parenting
Nor did mother make a showing of changed circumstances. Mother‘s assertion she “visits the children on a regular basis” is nothing more than assertions entirely unsubstantiated by even a declaration. The record shows mother had not visited the children between June 1999 and February 29, 2000, when she filed her 388 petition, and mother did not present anything to suggest otherwise. Further, mother‘s allegations she has completed the reunification program is belied by the fact that just five months earlier, the court had found mother had not completed the program and had not overcome the drug dependency which led to the court‘s jurisdiction, and mother has not shown by any documents or declarations that a change occurred in the past five months. (Cf. In re Kimberly F., supra, 56 Cal.App.4th at p. 531, 65 Cal.Rptr.2d 495, fn. 9 [“It is the nature of [drug] addiction that one must be `clean’ for a much longer period than 120 days to show real reform“].)
Most important, mother‘s petition does not demonstrate how a change in the order would be in the best interest of these children. (In re Kimberly F., supra, 56 Cal.App.4th at p. 529, 65 Cal.Rptr.2d 495.) 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 mother may have in reunification. (In re Beatrice M. (1994) 29 Cal. App.4th 1411, 1418, 35 Cal.Rptr.2d 162.) Mother made no showing how it would be the children‘s best interest to continue reunification services, to remove them from their comfortable and secure placement to live with mother who has a long history of drug addiction and a recurring pattern of domestic violence in front of the children. The children should not be made to wait indefinitely for mother to become an adequate parent. (In re Marilyn H., supra, 5 Cal.4th at p. 310, 19 Cal.Rptr.2d 544, 851 P.2d 826.) There was no abuse of discretion in denying mother‘s petition.
DISPOSITION
The judgment is affirmed.
KITCHING, Acting P.J., and PERLUSS, J.,* concur.