Filed 10/3/13 In re L.W. 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.




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



In re L.W. et al., Persons Coming Under the Juvenile                                         C072974
Court Law.

SACRAMENTO COUNTY DEPARTMENT OF                                                  (Super. Ct. Nos. JD232207,
HEALTH AND HUMAN SERVICES,                                                               JD232208)

                   Plaintiff and Respondent,

         v.

Betty W.,

                   Defendant and Appellant.




         Betty W., mother of the minors, appeals from orders of the juvenile court denying
her petition for modification and terminating parental rights. (Welf. & Inst. Code,
§§ 366.26, 388, 395 [further undesignated statutory references are to the Welfare and
Institutions Code].) Mother argues the juvenile court erred in denying her petition for
modification without a hearing. We affirm.



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                                            FACTS
       In 2006 the minors’ half sibling, Am.W., was removed from mother’s custody
after the then four-year-old child was found wandering on a busy street. She was covered
with self-inflicted scars and was a victim of sexual abuse by relatives. The juvenile court
ordered reunification services for mother that included parenting and anger management
classes and, in June 2007, returned the minor to mother under supervision. Within a year,
Am.W. was again removed and mother was offered further parenting and substance abuse
services, but services were soon terminated because mother did not participate in them
and was again neglecting the child’s care. The court subsequently suspended visitation
due to the effect mother’s conduct had on Am.W. In September 2010 the court granted
mother six more months of reunification services but ultimately terminated services again
in March 2011. The child was placed in a group home.
       The minor As.W. was born in January 2009 and mother was afforded informal
supervision services by the Sacramento County Department of Health and Human
Services (Department) that included substance abuse and mental health treatment.
Mother admitted a history of substance abuse including methamphetamine, alcohol, and
marijuana. Mother was compliant with the informal supervision services and the case
was closed in October 2009. L.W. was born in December 2009 and mother completed a
substance abuse treatment program shortly thereafter.
       In February 2012 the Department filed a petition to have the minors As.W., age
three, and L.W., age two, removed from mother’s custody due to neglect and physical
abuse after the minors were found wandering in the rain clad only in diapers and a
physical examination disclosed marks and scars consistent with physical abuse. Mother
blamed the minors’ injuries on rough play and was unwilling to take responsibility for her
failure to provide adequate care and supervision of the minors, showing little insight into
why the minors were removed. In further interviews, mother declined to discuss the issue
of physical abuse with the social worker.

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       Department reports suggested that the minors’ extreme aggressive behavior
toward mother during visits could indicate exposure to violence. When an intensive
treatment counselor used a story to identify the minors’ feelings, both minors commented
that the mommy in the story would “ ‘beat their asses’ ” if they did not stop jumping on
the bed.
       The minors’ behaviors were initially very challenging, but after a placement
change, therapy, and several months in a new foster home, the minors were reportedly
making “ ‘great progress’ ” in foster care, their aggressive behaviors were decreasing,
and they were learning to use their words and table manners. Visits continued to be
marked by the minors’ aggressive behavior toward mother and other adults. Over time,
their aggression decreased but mother needed coaching to redirect the minors. L.W.
continued to be more aggressive than As.W. and tantrums occurred when the minors
were stressed, but there were visits that went well for both minors. When visitation was
increased, the minors’ behaviors regressed both at visits and at the foster home.
       Mother participated in some services, including parenting education, prior to the
disposition hearing. The court sustained the petition and bypassed services based on
evidence of infliction of severe physical abuse on the minors while in mother’s care
(§ 361.5, subd. (b)(6)) and of the prior termination of services as to Am.W. with no
reasonable efforts to treat the problems that led to Am.W.’s removal (§ 361.5,
subd. (b)(6)). The court set a section 366.26 hearing to select a permanent plan for the
minors.
       The November 2012 report for the section 366.26 hearing stated that when the
case was transferred to the adoptions unit, visits were decreased from twice a week for
two hours to once a month for one hour. The minors had behavioral issues before and
after visits but looked forward to seeing mother. Visits continued to be marred by the
minors’ challenging behaviors and intervention by the visit supervisor when mother did
not respond appropriately. The minors were moved to an adoptive placement in

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October 2012. During the November 2012 visit following the move, L.W. began acting
out halfway through the visit and mother was unable to redirect his behavior. Both
minors were removed from the room at the end of the visit and the foster father worked to
calm L.W. The social worker believed that L.W. showed age-appropriate behavior,
pushing boundaries but respecting authority. The current caretakers were successful in
redirecting his behavior and in handling his fears, which they thought might be due to
past trauma. As.W. would benefit from a stable and supportive environment and also
presented as age-appropriate. Her tattling and lying behaviors decreased over time in
placement. Both minors’ negative behaviors had moderated with ongoing therapy and
reduced visitation, but both needed routine and could react poorly to transitions. The
report recommended termination of parental rights with adoption by the current
caretakers as the permanent plan because the minors needed a stable permanent home.
       In January 2013 mother filed a petition for modification seeking an order vacating
the section 366.26 hearing and granting her services. Mother alleged that since the
disposition hearing she had continued in services, completing counseling and addressing
anger management issues and appropriate discipline. She also completed substance
abuse treatment and had tested alcohol free. Mother further alleged she had maintained
stable housing, and enrolled in and completed classes on anger management and
parenting separate from her counseling sessions. Various summaries, letters, and
certificates attached to the petition supported the allegations that she had completed some
services. Mother alleged the proposed change was in the minors’ best interests because
she was committed to them and they were attached to her. She believed the minors’
increased behavioral issues were due to their desire to spend more time with her.
       The court issued a written ruling denying the petition for modification, finding that
the petition showed neither changed circumstances nor that the proposed order was in the
minors’ best interests. In explaining the ruling, the court noted that a counseling
summary attached to the petition stated that mother felt what the group had taught her

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was that she was “normal and not what CPS portrayed her to be.” The court observed
that physically abusing her children was not “normal” and that mother was in general
counseling with no indication that she addressed the question of physical abuse of the
minors. Further, even assuming mother’s services addressed past issues that recurred in
this case, the evidence showed her circumstances were changing, not changed. Finally,
the petition did not show how the best interests of the minors in permanence and stability
would be served by the provision of services. Despite the services mother had
completed, she still required supervised visitation and was unable to manage the minors’
behaviors without assistance. There was no indication that mother would be better able
to apply what she had learned if she had more services. The court concluded that
delaying permanency for services which over the years had not produced adequate
parenting by mother was not in the minors’ best interests.
       At the section 366.26 hearing on January 15, 2013, the juvenile court terminated
parental rights and selected adoption as the permanent plan for the minors. Mother filed
a notice of appeal January 22, 2013, and an application for rehearing January 25, 2013.
The order denying rehearing of the denial of the petition for modification and the order
terminating parental rights was filed March 7, 2013.
                                       DISCUSSION
                                              I
       Mother requests that this court construe her notice of appeal to include the order
on rehearing.
       When the juvenile case is heard by a referee, the time in which to appeal the
referee’s order is measured from the date the order is final, which is either “10 calendar
days after service of a copy of the order” or, if an application for rehearing has been
made, the date of service of the denial or entry of the denial order, whichever is later.
(Cal. Rules of Court, rules 5.540(c), 8.406(a).) The time for filing the notice of appeal is
either 60 or 30 days, depending upon the conditions of finality. (Cal. Rules of Court,

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rule 8.406(a)(3).) The notice of appeal was filed well before the application for rehearing
was denied and the referee’s order was final. (In re L.J. (2013) 216 Cal.App.4th 1125,
1139, fn. 12.) We may, and we do, construe the notice of appeal as timely. (Ibid.)
However, because appellant raises no issues regarding review of the process of rehearing,
we treat the appeal as from the referee’s order only. (In re Eric B. (1987)
189 Cal.App.3d 996, 1001, fn. 3; In re William C. (1977) 70 Cal.App.3d 570, 577.)
                                               II
       Mother argues the court erred in failing to order a hearing on her petition for
modification, asserting that she established a prima facie showing of changed
circumstances and best interests of the minors. We disagree.
       A parent may bring a petition for modification of any order of the juvenile court
pursuant to section 388 based on new evidence or a showing of changed circumstances.1
“The parent requesting the change of order has the burden of establishing that the change
is justified.” (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) The best interests of
the child are of paramount consideration when the petition is brought after termination of
reunification services. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In assessing the
best interests of the child, the juvenile court looks not to the parent’s interests in
reunification but to the needs of the child for permanence and stability. (Ibid.; In re
Marilyn H. (1993) 5 Cal.4th 295, 309.)
       To establish the right to an evidentiary hearing, the petition must include facts
which make a prima facie showing that there is a change in circumstances and “the best


1 Section 388 provides, in part: “Any parent . . . 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 or to terminate the jurisdiction of
the court.” (§ 388, subd. (a)(1) .) The court must set a hearing if “it appears that the best
interests of the child . . . may be promoted by the proposed change of order . . . .” (§ 388,
subd. (d).)

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interests of the child may be promoted by the proposed change of order.” (In re
Daijah T. (2000) 83 Cal.App.4th 666, 672-673 (Daijah T.); see In re Zachary G. (1999)
77 Cal.App.4th 799, 806 (Zachary G.); In re Jeremy W. (1992) 3 Cal.App.4th 1407,
1414; Cal. Rules of Court, rule 5.570(e)(1).) More than general conclusory allegations
are required to make this showing even when the petition is liberally construed. (In re
Edward H. (1996) 43 Cal.App.4th 584, 593.) “The prima facie requirement is not met
unless the facts alleged, if supported by evidence . . . would sustain a favorable decision
on the petition.” (Zachary G., supra, 77 Cal.App.4th at p. 806.) “In determining whether
the petition makes the necessary showing, the court may consider the entire factual and
procedural history of the case.” (In re Jackson W. (2010) 184 Cal.App.4th 247, 258.)
       Mother insists she made a prima facie showing of changed circumstances because
she continued to engage in services and completed various programs. Evidence that a
mother is simply continuing to participate in services with no change in behavior,
attitude, ability to parent, or acceptance of responsibility for past actions that injured or
created risk of injury to the minors cannot constitute a prima facie showing of changed
circumstances. Her reported open, honest presentation in groups and classes has not
translated into application of the principles learned. She has made no progress in dealing
with the minors’ behaviors during visits and continues to insist that their behaviors are
not stress and trauma related but are due to a desire to spend more time with her. If her
view were correct, the increase in visitation would have produced a positive effect on the
minor’s behaviors during visits. It did not. Moreover, while mother was unable to deal
with the minors’ behaviors, others, including visit supervisors and the various foster
parents, were. The evidence of progress in substance abuse treatment and housing was
evidence only that circumstances may be changing, not that they had changed.
       Even assuming mother has adequately shown a change in circumstances, she has
not shown that the proposed order was in the minors’ best interests. The minors were
subjected to serious physical abuse and neglect in mother’s care. Their exposure to

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indifferent parenting and violence had a negative effect on their behavior and
perceptions. Mother’s alleged commitment to them had not averted either the neglect of
care or abuse they suffered despite years of services to reunify with the half sibling and
similar informal services prior to their removal. The minors needed structure,
consistency, and safety. Mother’s pattern of succeeding in services and failing to apply
what she had learned led to years of upheaval and eventual group home placement for the
minors’ half sibling. We see no reason to subject these already troubled children who are
beginning to stabilize and improve to a similar fate. Mother did not plead facts showing
the proposed change was in the minors’ best interests, and the court could properly deny
the petition for modification on that ground without holding a hearing. (Daijah T., supra,
83 Cal.App.4th at pp. 672-673; Zachary G., supra, 77 Cal.App.4th at p. 806.)
                                     DISPOSITION
       The orders of the juvenile court are affirmed.




                                                            RAYE              , P. J.



We concur:



         ROBIE              , J.



         MURRAY             , J.




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