Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK77497, James K. Hahn, Judge.
Kimberly A. Knill, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.
ROTHSCHILD, J.
Deborah G. (Mother), mother of Shania G., appeals from the juvenile court’s November 2, 2010 order denying her petition under Welfare and Institutions Code section 388 and terminating parental rights pursuant to section 366.26. We affirm.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Section 300 Petition and Placement of the Child in Foster Care
On June 3, 2009, the Department of Children and Family Services (DCFS) filed a petition under section 300, subdivisions (b) and (g), regarding Shania, then four months old, alleging: (1) Mother “has a history of substance abuse and is a current abuser of cocaine, which renders the mother incapable of providing the child with regular care and supervision. On prior occasions, the mother was under the influence of illicit drugs while the child was in the mother’s care and supervision. On 5/22/09, the mother had a positive toxicology screen for cocaine”; (2) “[o]n or about 5/29/09 and on prior occasions... mother... left the child with an unrelated caretaker... and failed to make a plan for the ongoing care and supervision of the child. The mother failed to provide the child with the necessities of life including food, clothing and medical care. The mother failed to return to resume care and supervision of the child”; and (3) “[o]n a prior occasion, ... mother... placed the child in an endangering and detrimental situation in that the child was having difficulty breathing while the mother was under the influence of illicit drugs while the child was in the care and supervision of the mother. The mother failed to attend to the child’s condition, resulting in the intervention by an unrelated adult female.... The child was subsequently hospitalized for breathing treatment.”
The petition also included allegations against an alleged father of the child. Mother said the alleged father was not the child’s father, he was not awarded family reunification services, and the allegations against him are not at issue on appeal.
In the June 3, 2009 detention report, DCFS stated that it had received a referral regarding the child on May 20, 2009, indicating that Mother had been leaving her substance abuse program at night and using drugs or working as a prostitute and that she was under the influence that day. Mother withdrew from the program without authorization. On May 21, 2009, Mother met with a social worker, denied leaving the program at night to use drugs or work as a prostitute and being under the influence on May 20, 2009, but admitted that she had withdrawn from two inpatient drug programs. Mother said that she no longer used cocaine or marijuana, although she admitted to cocaine use after her other child had passed away from asthma in 2005. Mother’s grandmother reported that, although Mother once had a drug problem, she currently was not using drugs.
On May 29, 2009, the social worker received test results, showing that on May 22, 2009, Mother tested positive for cocaine. That same day, the social worker went to Mother’s house. Mother was not home, but the child was present with an unrelated friend of Mother’s, who said that Mother had departed from the house the previous night, without leaving food, milk or diapers for the child, and she had not heard from Mother since that time. Mother’s friend once came to Mother’s house, found the child alone and took care of her until Mother returned two days later. Later on May 29, 2009, the social worker learned that Mother had been arrested. DCFS detained the child and placed her in foster care. On June 1, 2009, Mother’s friend reported that she suspected that Mother was using drugs and said that she “was always caring” for the child because Mother “would be out two or three days getting high and return home and sleep for two days.”
At the detention hearing on June 3, 2009, which Mother did not attend, the juvenile court found a prima facie case for detaining the child, a substantial danger to the physical or emotional health of the child and no reasonable means to protect the child without removal from the home. The court ordered monitored visits for Mother and scheduled a pretrial resolution conference for June 30, 2009.
2. Adjudication of the Child as a Dependent of the Court and Disposition
In the June 30, 2009 jurisdiction and disposition report, DCFS indicated that Mother had been arrested on May 29, 2009 for an unknown misdemeanor and released the following day. On June 22, 2009, the social worker interviewed Mother at her house. “Mother was pleasant, but appeared somewhat groggy.” Mother explained her drug use after her other child had passed away. When the social worker asked Mother if she remembered the last time she used drugs, “Mother was becoming increasingly groggy and sleepy and stated, ‘I don’t remember.’” Mother then said that she thought she had “dr[u]nk some alcohol... smoked some weed” in the morning or over the previous weekend. Mother denied leaving the child alone in the house and said her friend helped with babysitting. Mother reported, “‘I don’t have nobody I can relate to. I need counseling because I am grieving and I haven’t dealt with all this stuff.’” Mother had not contacted DCFS to visit her child but said she would do so. DCFS reported that the child was doing well in her foster care placement.
On June 30, 2009, with Mother present, the pretrial resolution conference was continued to July 17, 2009. At the July 17, 2009 hearing, which Mother did not attend, the juvenile court scheduled an adjudication hearing for August 4, 2009. At that hearing, which Mother also did not attend, the court sustained the section 300 petition with minor interlineations under subdivisions (b) and (g) and declared the child a dependent of the court, with the child to remain in her foster care placement. Proceeding to disposition, the court ordered family reunification services and monitored visitation for Mother. It set a review hearing for February 2, 2010.
3. Termination of Reunification Services and Transfer of the Child’s Foster Care Placement
In the report prepared for the February 2, 2010 review hearing, DCFS indicated that the child continued to thrive in her foster care placement. As to Mother, DCFS reported that she “is articulate, polite, courteous and cooperative. [Mother] is open to receiv[ing] services and acknowledges her addiction. [She] is loving and affectionate with her child... and continues to express her desire to be a good parent. [She] enjoys visiting with [the child] and maintains regular contacts with the child, ” despite missing a number of scheduled visits. Although Mother had enrolled in several substance abuse programs in the six-month supervision period, she had not completed any of them. Mother was pregnant with twins, half-siblings of Shania, with an expected delivery date later in the month. Mother said that, although she “continued to use illicit drugs during her pregnancy, ... her unborn children are healthy and have not been impacted by the drug exposure.” Mother missed all 10 of her scheduled drug tests. She submitted to three tests when at the substance abuse programs, with one indicating negative with diluted urine, another indicating positive for marijuana and cocaine and the third indicating positive for cocaine. DCFS recommended termination of Mother’s family reunification services.
The February 2, 2010 review hearing was continued to March 24, 2010. At that hearing, Mother testified that she was in an outpatient drug program and would finish in July. She had delivered her twins on February 25, 2010, and they did not have drugs in their system at birth. After the birth, she enrolled in a parenting class and was involved in individual counseling. Mother visited with Shania once a week. DCFS and Shania’s counsel requested termination of Mother’s family reunification services. Mother’s counsel argued that services should be extended given Mother’s recent delivery of twins and her progress since that time.
The court terminated Mother’s reunification services, concluding that DCFS had established “by a preponderance of the evidence that return of the child to the parent would create a substantial risk of detriment to the safety, protection or physical or emotional well-being” of the child and Mother had not demonstrated that she can resolve the problems that led to the removal of the child within the next six months. According to the court, although Mother “has consistently and regularly contacted and visited the child, ” once per week despite being afforded visits of twice per week, it could not “make the finding that [Mother has] made significant progress in resolving the problems that led to the removal of the child. The mother has not demonstrated to the court that she has the capacity and ability to complete the objective of the treatment plan or to provide for the child’s safety, protection, physical or emotional health and special needs. [The court] need[s] to make all of those findings in order to continue reunification services for a child... this age.” The court scheduled a permanent plan hearing under section 366.26 for July 20, 2010.
4. Mother’s Section 388 Petition
In the July 20, 2010 report prepared for the section 366.26 hearing, DCFS indicated that Mother’s twin babies had been detained and placed in foster care and that Shania had been placed with the same family as her half-siblings. The family was interested in adopting all three children. On July 20, 2010, the juvenile court continued the section 366.26 hearing as to Shania to September 15, 2010. In the meantime, on July 30, 2010, the foster family received court permission to travel with Shania and the twins to Ohio from August 2, 2010 to August 25, 2010, and it was stipulated that, had the children been in Los Angeles County during the vacation time, Mother would have made her regular visits and that Mother could have make-up visits when the children returned from vacation.
On September 15, 2010, the date of her scheduled section 366.26 hearing, Mother filed a section 388 petition as to Shania. According to Mother, she was in a substance abuse program and had committed herself to “living clean and sober.” She “participated fully in [the] program including individual counseling, parenting, anger management, grief and loss, relapse prevention, among others. On 8/16/10 the court acknowledged [her] progress and granted [her] reunification services for [her] twins....” Mother requested (1) reunification services for Shania until February 15, 2011, the date of the six-month review hearing for the twins; (2) unmonitored visitation; and (3) placement of Shania with her at the substance abuse program’s sober living facility. Mother attached documentation to the petition reflecting enrollment in the program as of June 22, 2010 and negative random drug tests from June 25, 2010 to August 27, 2010.
On September 15, 2010, the juvenile court set a hearing for November 2, 2010 to consider Mother’s section 388 petition, finding the best interest of the child may be promoted by Mother’s request, and rescheduled the section 366.26 hearing for that date. The court directed DCFS to file a new report and respond to Mother’s petition.
In a status report dated September 22, 2010, DCFS indicated that Shania was thriving in her foster care placement with her half-siblings. DCFS reported that Shania had been distant with Mother during recent visits and that “most of the time Shania will seek comfort with the monitor [rather] than seek help from her mother.” At a hearing on the same date, the juvenile court directed DCFS to arrange for “a separate visit with Shania at least once a week in addition to the two times a week [Mother’s] visiting with the twins.”
The September 22, 2010 minute order states that the court ordered the separate visits with Shania for once a month rather than once a week.
In conjunction with the November 2, 2010 hearing, DCFS reported that, as of October 25, 2010, Mother continued to test negative to all substances since her June 22, 2010 enrollment in the substance abuse program. Mother “has been compliant with her programs and has not had any disciplinary actions against her.” DCFS nevertheless expressed concerns with Mother’s repeated enrollment in substance abuse programs but lack of completion and stated that Mother “needs more time in her drug treatment program.” Since filing her section 388 petition, Mother cancelled three visits for reasons other than court appearances. DCFS recommended that the court not reinstate family reunification services for Mother and that Shania not be placed with Mother in the substance abuse program.
5. The Juvenile Court’s Denial of the Section 388 Petition and Termination of Parental Rights
At the November 2, 2010 hearing on the section 388 petition, Mother testified that, after completing the initial 90-day period of her substance abuse program, she was in the sober living facility and would reach her six-month mark on December 22, 2010. She said the sober living facility accommodated children, and she believed she could stay there beyond her six-month period to continue treatment. She obtained a sponsor and was searching for a job. Mother did not receive any visits with Shania alone, although she believed she had been permitted such visits. Mother initially reported being “clean and sober” for four and a half months, since entering her program on June 22, 2010, but then stated that her brother had been hit by a car two weeks ago and placed on life support and that she had drunk alcohol after receiving the report from the doctor. Mother understood that drinking alcohol was a violation of her program. She had not been terminated from the program but was asked to redo the first 30 days while staying in the sober living facility. Mother believed that she could successfully parent her children while continuing with the program and utilizing her sponsor. On cross-examination Mother stated that, because of her drinking alcohol, she had two days of sobriety. On redirect examination, Mother said that her “drug of choice” was cocaine and that she had not used any cocaine recently.
Mother’s counsel argued that the juvenile court should reinstate family reunification services to put Shania on the same case plan as the twins because Mother had made “substantial progress in her case plan” despite dealing with substance abuse and loss. Counsel indicated that Mother had not received any separate visits with Shania and requested that she be afforded those visits with reunification services reinstated until the February 15, 2011 date provided for the twins. Shania’s counsel opposed reinstatement of family reunification services on the ground that, although Mother had made progress, she did not demonstrate changed circumstances, in terms of learning to parent and sustaining sobriety for a significant time period, nor had she established it would be in Shania’s best interests to defer permanency. DCFS agreed with Shania’s counsel, maintaining that the evidence “constitutes changing, not changed circumstances, particularly given [Mother’s] relapse” and that no evidence shows continuing reunification services would be in Shania’s best interests.
The juvenile court denied the section 388 petition. The court “acknowledge[d] that the Mother has been in a program; that she has been testing regularly. I appreciate that the Mother was candid about the recent relapse. But, even if that information hadn’t been provided at all, ... she’s about four months into this program. This isn’t the first program the Mother has entered into and then not finished. [¶] [V]arious court decisions have indicated that the court must find that circumstances have changed; the mother is in a different place; that she has demonstrated that it would be in the best interests of the children or the child to grant her motion under section 388. [¶] I would like to say that Mother’s circumstances have changed. I just can’t find that based on the evidence today.” “I don’t see that granting any portion of the Mother’s 388 at this time is in Shania’s best interests. The Mother’s circumstances are clearly in the process of changing. Whether or not they are actually going to be changed, I think it’s still too soon to tell, so the court will deny the Mother’s 388 in its entirety.”
Proceeding to address section 366.26, DCFS argued, with Shania’s counsel in agreement, that clear and convincing evidence demonstrated the child was adoptable based on her placement with a family approved for adoption and desiring to adopt her and that Mother had the burden to establish an exception to termination of parental rights. Mother’s counsel offered no specific argument with respect to section 366.26, only incorporating the prior argument on the section 388 petition. The juvenile court found clear and convincing evidence that Shania is adoptable and that Mother had not met her burden to show “such a strong emotional bond with the child that it would be detrimental to sever her parental rights to the child.” The court terminated Mother’s parental rights as to Shania.
Mother appealed from the juvenile court’s November 2, 2010 order. (Nahid H. v. Superior Court (1997) 53 Cal.App.4th 1051, 1068 [order denying § 388 petition appealable]; In re Benjamin E. (1996) 44 Cal.App.4th 71, 76 [order terminating parental rights under § 366.26 appealable under § 395 as an order after judgment].)
DISCUSSION
Mother contends that the juvenile court abused its discretion by denying her section 388 petition because she demonstrated changed circumstances and granting the petition would be in the child’s best interests. We disagree.
Section 388 authorizes modification of orders in juvenile dependency proceedings. Under subdivision (a) of the statute, a parent may petition the court on the basis of a change of circumstance or new evidence for a hearing to change, modify or set aside a previous order in the dependency. The provision is “an ‘escape mechanism’ when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528, quoting In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
Section 388, subdivision (a), provides, “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 or to terminate the jurisdiction of the court.”
In a section 388 petition, the parent has the burden to show that a change of circumstance exists and that a different order is in the child’s best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) When the petition is brought after termination of reunification services on the eve of a section 366.26 permanent plan hearing, the parent’s burden is particularly weighty because at that point “a parent’s interest in the care, custody and companionship of the child is no longer paramount” and “the focus shifts to the needs of the child for permanency and stability.” (In re Angel B. (2002) 97 Cal.App.4th 454, 464.) In evaluating the child’s best interests, courts consider: “(1) the seriousness of the problem [that] led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” (In re Kimberly F., supra, 56 Cal.App.4that p. 532.) The juvenile court has “sound discretion” in deciding a section 388 petition, and “its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.” (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
The juvenile court’s denial of Mother’s section 388 petition was not an abuse of discretion. Mother filed the section 388 petition on the date of her scheduled section 366.26 hearing. At the time of the hearing on the petition, almost two months later, Mother demonstrated that she had made progress in her treatment and was attempting to stay sober, but she recently had relapsed, albeit under difficult circumstances, and was only two days sober when she testified at the hearing. In addition, although Mother had used cocaine for a number of years, including while pregnant with Shania and with the twins and when Shania was a young infant, she had been in her current program for only four and a half months at the time of the hearing on her petition. While perhaps this progress was sufficient to show changing circumstances, or to afford Mother six months of reunification services with her twins, Mother did not establish changed circumstances as statutorily required for the granting of her section 388 petition as to Shania. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 423-424 [seven months of sobriety insufficient for parent with long history of drug use, sobriety and then relapse to show changed circumstances]; In re Casey D., supra, 70 Cal.App.4th at pp. 48-49 [mother’s circumstances were changing but not changed when she had an extensive history of using drugs, entering programs and then relapsing and had been drug free for about five months as of the hearing on her § 388 petition].)
The twins appealed from the August 16, 2010 order granting Mother reunification services. On April 19, 2011, we dismissed the appeal as moot in light of the juvenile court’s March 23, 2011 order terminating reunification services. (In re Elijah G. (Apr. 19, 2011, B226945) [nonpub. order].)
Nor did Mother establish granting her section 388 petition was in Shania’s best interests, even had she improved her relationship with the child by visiting with her separately from the twins. Shania was in foster care for all but the first four months of her life. She was in an adoptive home with her half-siblings and thriving. Mother’s drug problem was serious and long lasting, and she did not demonstrate that she could successfully care for Shania while continuing to attempt to remain sober and complete the treatment she needed to recover. Under these circumstances, and with a child under the age of two who had been detained for almost eighteen months, the juvenile court was within its discretion to conclude that moving toward permanency was in the child’s best interests. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [no showing that granting § 388 petition to offer reunification services to parents would be in children’s best interests, despite parents’ recent efforts at rehabilitation, when children, who were one and two years old at detention, were in a prospective adoptive home and should not be “depriv[ed]... of a permanent, stable home in exchange for an uncertain future”]; In re Edward H. (1996) 43 Cal.App.4th 584, 594 [“prospect of an additional six months of reunification to see if the mother would and could effectively separate from the father would not have promoted stability for the children and thus would not have promoted their best interests” when change of order requested on eve of section 366.26 hearing].)
Mother makes no separate argument regarding the termination of parental rights except to say that, if the order denying her section 388 petition is reversed, her parental rights should be reinstated. Given our conclusion that the juvenile court did not abuse its discretion in denying Mother’s section 388 petition, no basis exists to disturb the termination of parental rights.
DISPOSITION
The order denying Mother’s section 388 petition and terminating her parental rights is affirmed.
We concur: MALLANO, P. J., CHANEY, J.