Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct.No. RIJ107783. Becky Dugan, Judge.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Karen J. Dodd, under appointment by the Court of Appeal, for Minor.
OPINION
King , J.
On December 6, 2006, the juvenile court denied mother’s request for modification of a prior court order which denied mother family reunification services. Mother appeals, contending that the trial court erred in denying the motion under Welfare and Institutions Code section 388 because substantial evidence supported the motion. Finding no abuse of the juvenile court’s discretion, we affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. PROCEDURAL HISTORY
A juvenile dependency petition regarding minor, Elijah A., was reactivated on March 16, 2006. The petition alleged that minor, age two, came within the jurisdiction of the dependency court due to mother’s failure to protect him within the meaning of section 300, subdivisions (b) and (d). The minor was removed from the custody of mother and a jurisdictional hearing was set for April 10, 2006.
On April 10, 2006, mother was advised that the Riverside County Department of Public Social Services (the Department) was recommending that she not receive further reunification services. A contested jurisdictional hearing was set for June 7, 2006.
On June 7, 2006, the trial court considered the social worker’s report and mother’s testimony and found the allegations of the petition to be true. The Department was ordered not to provide further services to mother, and a selection and implementation hearing was set for October 5, 2006.
Mother then filed a notice that she intended to file a writ petition pursuant to California Rules of Court, rule 38.1. The writ petition was filed on July 12, 2006. The petition requested that we vacate the order setting the selection and implementation hearing, order that reunification services be provided, and return custody of minor to mother.
On September 13, 2006, we filed a 14-page opinion denying the petition for writ of mandate. After reviewing the facts, we found that the trial court did not err in assuming jurisdiction over minor, or in removing him from mother’s care. We also found that the trial court properly denied mother additional reunification services. We said: “In this case, mother’s participation in counseling and domestic violence programs has made no difference in the situations in which she places herself and her child. Although presumably she knows how to change, she is not doing it. In that crucial respect her efforts are insufficient.”
By order filed February 5, 2007, the record in case No. E040635 was incorporated into the record in this case.
We find it unnecessary to again review the facts, and we adopt the statement of facts and procedural history in our opinion in case No. E040635.
A week before our opinion was filed, the current section 388 petition was filed. A hearing was held on the petition on December 6, 2006. After hearing testimony from mother, the petition for a change in the court order was denied. The court reviewed the circumstances and concluded by telling mother: “But the truth is, Ms. S., I know you’re trying. You’ve always tried. It still doesn’t make it safe, from my perspective, to return [minor] to you. I don’t think giving you services for another six months will make any difference at all. We have been doing this for a long time with [minor].”
II. DISCUSSION
Section 388 provides, in relevant part: “Any parent . . . having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance . . ., 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 or to terminate the jurisdiction of the court.” If the court finds that the best interests of the child may be promoted by the proposed change, the court must order a hearing. (§ 388, subd. (c).) The trial court’s order denying the petition is tested under an abuse of discretion standard of review. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71.)
On appeal, mother contends that the trial court erred, because her testimony established changed circumstances. Mother testified that, since reunification services were terminated, she had continued working toward reunification by completing a 10-week parenting class, visiting the child, attending Narcotics Anonymous meetings regularly, and seeing a therapist. She had also obtained an apartment and enrolled in classes at a local college.
Mother also contends that she showed that minor would benefit if mother was granted reunification services. She argues that, at the time of the hearing, minor was in foster care, and no permanent adoptive parents had been found, thus leaving the child “on track to becoming a legal orphan.” In this situation, argues mother, it was in minor’s best interests to obtain services which would allow him to reunify with her.
As noted above, reunification services were terminated at the June 7, 2006, hearing. The court said: “The problem is she’s had 65 months of services. 65 months of services. And she seems like a perfectly nice human being, but it’s always the same allegations since ’99 that she fails to protect her children from other people, a boyfriend, relatives, people around her children. [¶] It’s not that she actually does anything. But she keeps getting herself in situations where she allows her children to be injured either because she has economic problems, or physical problems, or mental problems.”
The social worker reported that mother had been in the dependency system since 1999, and had failed to reunite with three other children before minor was born.
The court specifically denied further services under section 361.5, subdivision (b)(10) and (11). It also found that there was a substantial danger to the physical and emotional health of minor if he were to be returned to mother, within the meaning of section 361, subdivisions (a) and (c)(1).
Section 361.5, subdivision (b)(10) generally provides that reunification services need not be provided to a parent when services have been terminated for siblings, the parent has failed to reunify with the siblings, and the parent has not made a reasonable effort to treat the problems which led to removal of the siblings. Section 361.5, subdivision (b)(11) is a similar provision for parents whose parental rights have been terminated as to a sibling.
We elaborated on this point in our decision on the writ petition. We found that the statutory term “reasonable efforts” “must be construed to mean not only participation efforts, but also results efforts.” Results efforts were clearly insufficient in this case.
Although not emphasized by the Department, the basis for the denial of further reunification services was the termination of parental rights of the three other children. Obviously, these historic circumstances had not changed by the time the section 388 petition was filed. In our view, this fact alone establishes that the trial court did not abuse its discretion in denying the petition which sought further services.
However, since the parties focus on the testimonial evidence, we will consider it further. The Department notes that mother had attended parenting classes and attended Narcotics Anonymous meetings previously without any apparent benefit. With regard to the therapist, mother testified that she had had at least eight sessions after the termination of services. Although mother felt that she had benefited from the therapy, she was unable to pay for continuing sessions. The therapist did not have any information except what mother told her, and the trial court cited a letter from the therapist which only said that mother was committed to reunification and was motivated to reunify.
With regard to the apartment, mother testified that she had obtained an apartment and lived there by herself. However, the rent was $750 a month, and her income was only $550 a month. Although mother hoped to obtain employment in the future after four more semesters of schooling, her housing situation was obviously unstable. Mother was also unable to state how she intended to pay for food, utilities, the therapist, or further schooling.
With regard to visitation, mother testified that the Department had stopped visits for a period of time, but she had seen minor every time she was allowed a visit. The trial court stated that it would continue to allow visitation until an adoptive home was found.
We agree with the Department that the evidence presented at the hearing was insufficient to show that circumstances had significantly changed between the termination of reunification services in June 2006, and the filing of the petition in September 2006.
The Department appropriately cites In re Casey D. (1999) 70 Cal.App.4th 38: “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.] ‘“[C]hildhood does not wait for the parent to become adequate.”’ [Citation.]” (Id. at p. 47.)
As noted above, mother argues that it would be in minor’s best interests to provide her with further reunification services. But the argument cannot withstand scrutiny. Minor was not on a track to becoming a legal orphan, because the trial court indicated that parental rights would not be terminated until an adoptive home was found. Until that time, the current foster parents were willing to provide structure and stability in minor’s life, and visitation with mother would continue. But adoption was clearly the appropriate permanent plan, and the trial court did not abuse its discretion in denying the section 388 petition. As we said in our decision on the writ petition, “Given the limited likelihood of further improvement on mother’s behalf, it is not in [minor’s] best interests to remain in limbo, but to proceed to some kind of permanent resolution of his life.”
Counsel for minor joins with the Department in asking that the trial court’s order denying the section 388 petition be affirmed.
The order denying mother’s section 388 petition is affirmed.
We concur: Gaut Acting P.J., Miller J.