In re Antonio G.

Filed 4/3/07 In re Antonio G. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Janet H. (Mother) appeals after the juvenile court denied further reunification services with her son, Antonio G., removed Antonio from the care of Mothers mother (Grandmother), and terminated Mothers parental rights. We affirm.

I. BACKGROUND

Contra Costa County Children and Family Services (the department) filed a petition pursuant to Welfare and Institutions Code[1] section 300 on May 5, 2004, alleging that Antonio came under the jurisdiction of the juvenile court. According to the petition, Mother had not received prenatal care during her pregnancy. On the day of the childs birth, Mother and Antonio both tested positive for amphetamines, and Mother admitted she had used crank. Antonios alleged father (Father) had a history of criminal behavior and substance abuse, and was incarcerated.[2] Based on Mothers admission, the juvenile court sustained the allegations regarding the drug use, dismissed the allegation that Mother had not received prenatal care, and found that Antonio came within the jurisdiction of the juvenile court.

A June 2004 disposition report stated that Mother had admitted to using methamphetamines up to the time of Antonios birth. She was a single parent, and had three other children: a son, J.H., and two daughters, C.H. and I.H. Grandmother was the caretaker for Mothers older children. Mother was addressing her substance abuse problems: She was taking steps to enroll in an outpatient substance abuse program; was taking random drug tests, which had been negative; and was attending Narcotics Anonymous Meetings. The department believed Mother was able to care for Antonio. The juvenile court found Antonio to be a dependent child and ordered him to remain in Mothers custody, under the supervision of social services.

A December 2004 status review report stated that Mother had taken 13 random drug tests and tested negative for 12 of them. As to the one positive test for hydrocodone, on October 8, 2004, Mother was prescribed the medicine in an emergency room. Mother reported that she had attended a local AA/NA program, but had not provided proof of attendance. She had been enrolled in an outpatient substance abuse treatment program for approximately two weeks in late June 2004, but was discharged on July 1 for threatening another resident. As of the writing of the report, Mother was not enrolled in any substance abuse treatment program and was reluctant to do so. Although Mother was taking good care of both Antonio and herself and her family was supportive, the social worker was concerned that Mother needed a recovery program that would provide a variety of services, including relapse prevention.

The department filed a supplemental dependency petition ( 387) on February 28, 2005, stating Antonio had been detained. According to the petition, Mother had failed to submit to drug tests, was not enrolled in an outpatient substance abuse program, and was not participating in a 12-step program. She had failed to make herself or Antonio available to meet with her social worker, and did not disclose Antonios whereabouts when questioned by her social worker and police officers. The juvenile court ordered Antonio detained and ordered visitation with Mother. Based on Mothers no contest plea, the court sustained the allegations related to substance abuse treatment, dismissed the other allegations, and gave the department authority to release Antonio to Mother if she was in a residential treatment program. A March 2005 disposition report indicated that Antonio had been placed with Grandmother. His two sisters also lived with Grandmother; his brother lived with an aunt. Although Mother had previously been unwilling to participate in an outpatient substance abuse program, she was now on the waiting list for an inpatient program. Her visits with Antonio at Grandmothers home were supervised. The social worker had told Mothers attorney and Grandmother that if Mother did not submit to random drug tests, the visits would take place away from Grandmothers house.

On April 1, 2005, the juvenile court ordered Mother not to go to Grandmothers house. According to a memorandum prepared by Antonios social worker for an April 27, 2005 hearing, Mother visited Grandmothers home on April 12, 2005, and had an overnight visit on April 9, 2005. Grandmother told the worker she had believed Mother was not allowed to visit the home while Antonio was present. The juvenile court found by clear and convincing evidence that there would be a substantial danger to Antonios well-being if he were returned home, and ordered reunification services for Mother.

A September 23, 2005 report indicated that Mother was not enrolled in either an inpatient or outpatient substance abuse program, and that she was afraid she would fail if she entered another program. Her whereabouts at the time were unknown, it appeared that she might have relapsed, and she was not complying with her reunification plan. The agency recommended that reunification services be terminated, and recommended adoption as a permanent plan for Antonio.

A report filed for an October 13, 2005 hearing indicated that Antonio remained in Grandmothers care; was being given appropriate care, guidance, and supervision; and was developing well. During the review period, Mother had often been unreasonable, uncooperative, and rude toward her social worker; had resisted complying with her case plan; and had not provided a current address or telephone number. Mother had enrolled briefly in an inpatient substance abuse program in May 2005, and had refused to enter another inpatient program after she left. She attended an outpatient program for about two months, but had at least one substance abuse relapse during that time. She last attended the program in July 2005. She had a relapse after she stopped attending and expressed her intention to enter a detoxification program, but her social worker did not know if she had done so. She had missed several random drug tests during the review period, and had not given proof of attendance at a 12-step program. A number of relatives, including Grandmother, had requested that the department consider them for placement.

Mothers visits with Antonio were supervised by child welfare staff. After the juvenile court ordered visits supervised in early April 2005, Mother at first refused to participate in the supervised visits, but she eventually agreed to them and began visiting again on May 26, 2005. Her behavior during visits was appropriate and Antonio enjoyed the visits. However, during one visit, Mother debated the case with her social worker; and when the social worker drew her attention toward Antonio, Mother ended the visit early. Mother told the social worker she was not currently prepared to care for Antonio and that she would like Grandmother to adopt him. Grandmother was willing to adopt Antonio and wanted her former husband (Grandfather), with whom she planned to reconcile, to adopt him as well.

A hearing took place on October 13, 2005. Mother was represented by counsel, but did not appear at the hearing; and it appeared that neither her counsel nor the department knew her whereabouts. The juvenile court terminated reunification services, set the matter for a hearing pursuant to section 366.26 (the .26 hearing), and ordered that visitation with Mother must be supervised by the department or another approved adult.

The department filed a supplemental petition pursuant to section 387 on December 6, 2005, seeking a more restrictive placement for Antonio. According to the petition, Antonio had been taken into protective custody after Grandmother left him in the care of Mother and Grandfather, although Grandmother had been notified that visits with Mother had to be supervised. Grandfather had felony convictions for narcotics. The court ordered Antonio detained.

A hearing on the supplemental petition took place on January 25, 2006. Antonios former social worker testified that in both September and October 2005, she told Grandmother that Grandfathers criminal background would affect his ability to adopt Antonio. Grandmother told the social worker in October 2005 that she had found a job, and the social worker told her it would not be appropriate for Grandfather to care for Antonio while she was at work. Grandmother had been admonished that Mother could not visit her home, and since that time Grandmother had consistently told the social worker she did not know where Mother was. The social worker had also told both Mother and Grandmother that Grandmother could not supervise visits between Mother and Antonio.

Antonios current social worker, Paula Hollowell, testified that she told Grandmother twice in November 2005 that all visits between Antonio and Mother had to be arranged and supervised by the department and would take place in the departments office. The social worker also gave Grandmother a copy of the October 13, 2005 court order, with highlighting on the portion indicating that the department must arrange and supervise visits. Grandmother told the worker that Mother did not visit the home, and that she did not know how to reach Mother.

Acting on a tip from Father, Hollowell went to Grandmothers on December 2, 2005, with a colleague and police officers. Grandfather answered the door. Hollowell asked Grandfather if any other adult was at the house. At first Grandfather denied any other adult was there, but eventually admitted someone was in the back room. The officers went into the back bedroom and found Mother, who began smoking a cigarette in Antonios presence and speaking with someone on her cell phone in an agitated manner. When reminded that visits had to be supervised, Mother said the adoption had already happened so it would be okay for her to be there, and said she was at the house to pick up some clothes.

Grandmother testified that she had been shown the October 13, 2005 court order and had been told that Mother could not come to her house. However, Mother had come by on at least one occasion, when Antonio was asleep, for some food. She did not go inside the house on that occasion. Grandmother believed Mother was homeless and using drugs during that period. Grandmother denied that the former social worker had told her Grandfather could not care for Antonio, and she believed she had told Grandfather that Mother could not be in the house.

Mother testified at the hearing and denied she had been to Grandmothers house between her visit in April, when she went there for some food, and the time she was found there in December. Grandmother had told her she could not visit. According to Mother, she went to Grandmothers house on December 2 because someone she believed to be from an after-school girls and boys club had called her and told her that her daughters were missing. She admitted that she had been us[ing] on that date; but stated that as of the time of the hearing, she was clean and sober, and in a residential program.

The juvenile court found the allegations of the supplemental petition ( 387) to be true and set the dispositional hearing the same date as the .26 hearing. The juvenile court noted that a different judge would be handling the case, but that all this [would] be in the file for Judge Fannin.

Mother filed a petition pursuant to section 388, seeking to receive family maintenance services and to have Antonio live with her in the residential treatment program. The department recommended that the juvenile court deny the petition, contending that Mother had failed to avail herself of the treatment available to her over the previous 22 months, and that she was not far along enough in her current recovery to care for Antonio.

A disposition report of February 2006 explained the circumstances surrounding the events of December 2, 2005, when Mother was found at Grandmothers home. Hollowell had received a telephone call from Father, stating that Mother had been calling him on his cell phone, speaking quickly and telling him to come and get Antonio. He told her that one morning during November, Mother called to ask him for a ride from East Oakland, saying she had Antonio with her and needed a ride back to Antonios placement in San Pablo. When he picked up Mother and Antonio that evening, there were  junkies on the porch and the place smelled bad.  He also told Hollowell that Mother sometimes took Antonio for more extended periods of time, while Grandmother was visiting her boyfriend. Grandfather had told a social worker that he had felt he could not turn his daughter away on December 2 when she came to the home  hungry and dirty. 

A February 2006 report for the .26 hearing noted that several family members were interested in having Antonio placed in their homes. The report expressed concern that members of the family had at times not been honest with the department out of loyalty to Mother. The department recommended that the parental rights of Mother and Father be terminated, that a permanent plan of adoption be set, and that Antonio be referred to the department for adoptive placement.

At a hearing on March 23, 2006, the court considered Mothers section 388 petition and the dispositional phase of the departments section 387 petition, and conducted the .26 hearing. The court noted that it would do the disposition concurrently with the 388, and considered those issues first. Mother testified that she had been sober since December 16, 2005, was in a residential treatment program, and planned to attend an outpatient program after her graduation. She intended to live in transitional housing. All of her tests in the residential program had been clean, she had missed no tests, and she had complied with the programs requirements. She acknowledged that she would have to work for the rest of her life on maintaining her sobriety through attending AA and NA meetings, and explained that she was more serious about her recovery than she had been during previous attempts. She had been visiting Antonio, and he called her Momma and knew her as his mother. She understood that she could not be a good parent while using drugs, and would make any necessary sacrifices to be an adequate parent. She recognized that she had been responsible for being dismissed from the residential program she had attended the previous year, and believed her family would support her efforts to remain sober. She intended to get a part-time job, and wanted to return to school.

The juvenile court denied Mothers section 388 petition, ruling that it did not find that Mother had shown either a change of circumstances or that it would be in Antonios best interest to modify the order. The court also ruled that the placement with Grandmother had been inappropriate.

The juvenile court moved on to the .26 hearing. Hollowell confirmed that Mother had had four visits with Antonio since enrolling in the residential program. The director of the program had told Hollowell that Mother would need help and supervision with parenting for a full six months. Hollowell did not think it would be detrimental to Antonio to terminate Mothers parental rights; she stated that Mother was just coming into Antonios life sober, and that her relationship with him was one of a friendly visitor. She acknowledged, however, that Antonio enjoyed his visits with Mother.

Another social worker testified that Antonio had developmental delays in the form of language acquisition delays and some attention and focus delays. He would soon be receiving treatment. She did not believe the delays would keep Antonio from being adoptable, and was considering family members as potential placements.

The juvenile court found by clear and convincing evidence that removal to a more restrictive level of placement was necessary to protect Antonio, and continued the hearing to allow the department to provide more information about Antonios relationship with his siblings.

At the continued hearing on May 1, 2006, Antonios godmother testified that she was a neighbor of Grandmother, that Antonio had lived with his siblings until he was removed from Grandmothers care in December 2005, and that Antonio had been particularly close to his brother, J.H., and his sister, I.H. Antonios cousin also testified that he was close to his siblings, particularly J.H., stating, They love each other. . . . They play every day. They interact every day, so it is not just a special type of bond with his brother. They have a special bond with the sisters, too . . . . At a visit with his siblings and other family members about two weeks previously, Antonio had been happy to see his family and emotional when it was time for them to leave. During the visit, he played with his siblings, throwing balls and hugs. The cousin testified that Antonio knew J.H. was his brother, and that when he had lived with his siblings, he was happy and ready to play when they came home from school. Mother also testified that Antonio was close to all of his siblings, but that he and J.H. were particularly close, and that the time his siblings came home was one of the high points of his day. As she described it, when J.H. walked in, Antonio would throw balls, saying Brother, brother, and J.H. would grab at the balls. At the recent family visit, Antonio had been happy playing with his siblings.

A report prepared by Hollowell indicated that Antonio had lived in the same home with his three half-siblings from March 2005 until he was removed from Grandmothers care in December 2005. Hollowell had observed the recent family visit. When the three siblings entered the room where Antonio was playing, he initially moved away from them, frowning and showing apprehension. He did not appear to recognize them. He responded to J.H. after 15 minutes; and as time passed, he played next to J.H. and began interacting with his siblings. Antonio immediately recognized the adults in his family and went to them without reservation.

The juvenile court concluded the evidence did not show there was a sibling bond that outweighed Antonios need for a permanent plan of adoption ( 366.26, subd. (c)(1)(E)), stating, the evidence is that the family is broken up about Antonio, not so much that Antonio is broken up about not being close to his family. The court found by clear and convincing evidence that Antonio was likely to be adopted, and terminated the parental rights of Mother and Father. This timely appeal ensued.

II. DISCUSSION

A. Bond Between Mother and Antonio

Mother contends Antonio would benefit from continuing his relationship with her, and as a result her parental rights should not have been terminated. Section 366.26, subdivision (c)(1) provides in part that a finding the court has continued to remove the child from the custody of the parents and has terminated reunification services shall constitute a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [] (A) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. Mother contends this exception is applicable here. We review the courts ruling under section 366. 26, subdivision (c)(1)(A) for abuse of discretion. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)[3]

When the court has not returned an adoptable child to the parent and has terminated reunification services, adoption becomes the presumptive permanent plan and parental rights are ordinarily terminated at the .26 hearing. The parent has the burden of showing that termination would be detrimental because the child would benefit from continuing the relationship. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

The juvenile court did not abuse its discretion in not finding the section 366.26, subdivision (c)(1)(A) exception applicable. In the first place, Mother did not argue below that the exception applied. (See In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252 [juvenile court has no sua sponte duty to consider whether 366.26, subd. (c)(1)(A) applies]; In re Daisy D. (2006) 144 Cal.App.4th 287, 292 [where juvenile court has no sua sponte duty to consider statutory exception to adoption, failure to raise exception at .26 hearing forfeits issue on appeal].)

In any case, there would be no abuse of discretion in a determination that Mother failed to meet her burden to show that termination would be detrimental to Antonio due to her bond with him. As noted in In re Autumn H., supra, 27 Cal.App.4th at page 575, [i]nteraction between natural parent and child will always confer some incidental benefit to the child. The exception under section 366.26, subdivision (c)(1)(A), however, applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent. (Autumn H., supra, 27 Cal.App.4th at p. 575.) A beneficial relationship is one that promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.  (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) The juvenile court may reject the parents claim simply by finding that the relationship maintained during visitation does not benefit the child significantly enough to outweigh the strong preference for adoption. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

Here, Mothers visits with Antonio were sporadic throughout much of the dependency. After the juvenile court ordered visits supervised, Mother at first refused to participate in the visits with Antonio. At a May 2005 visit, the supervising social worker had to redirect Mothers attention to Antonio, and Mother ended the visit 35 minutes early. Mother then visited twice a month, apparently until August 2005. However, between August 2005 and March 2006, Antonios social worker was aware of only four visits between the two, all of which took place in 2006. In fact, Mother told the social worker in November 2005 that she did not wish to have visits with Antonio. She again told the department in December 2005 that she did not want visits, as she was working on getting into a treatment program. The record amply supports a conclusion that these limited visits did not establish or maintain a parental bond that was strong enough to outweigh Antonios need for the stability provided by adoption.

Mother points to evidence that after a January 2006 visitapparently the first since August 2005Antonio cried on his way back to his foster home. We first note that at this visit, Antonio seemed initially reluctant to be with his mother. In any case, the fact that he cried after seeing her does not mean she occupied a parental role in his life.

Mother also argues that because adoptive parents had not yet been identified, the prospect of permanence was illusory. However, section 366.26, subdivision (c)(1) provides in part: The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted. (See also In re Brian P. (2002) 99 Cal.App.4th 616, 624.) Despite his apparently minor developmental delays, Antonio was a healthy two-year-old child, and the juvenile court could reasonably conclude he was likely to be adopted.

B. Sibling Relationship

Mother also contends the evidence does not support the juvenile courts finding that the bond Antonio had with his siblings did not outweigh his need for permanence. Section 366.26, subdivision (c)(1)(E) provides that, even after continuing to remove a child from parental custody and terminating reunification services, a court shall not terminate parental rights if it finds a compelling reason for determining that termination would be detrimental because [t]here would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption. As explained in In re Naomi P. (2005) 132 Cal.App.4th 808, 822, this statutory exception  merely permit[s] the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption. [Citation.] [] When considering the sibling relationship exception, the concern is the best interests of the child being considered for adoption, not the interests of that childs siblings. The parent has the burden of showing the existence of a sibling relationship and that interference with it would be detrimental to the child. (In re Valerie A. (2006) 139 Cal.App.4th 1519, 1523; see also In re L. Y. L. (2002) 101 Cal.App.4th 942, 951.)

Antonio was less than two years old when he was removed from Grandmothers house, where he had lived with his siblings. At a family visit four months later, he did not appear to recognize his siblings at first and appeared apprehensive, although he immediately recognized and went to the adults in his family. Without doubting the strength of the familys love for Antonio, the juvenile court could reasonably conclude the benefit Antonio would receive from the stability of an adoptive home outweighed the benefit he would receive from maintaining his bond with his siblings.

C. Supplemental Petition

Mother contends that the juvenile court did not follow the correct procedure in considering the departments supplemental petition pursuant to section 387 to place Antonio in a more restrictive placement, and that its decision is not supported by substantial evidence.

Mothers procedural claim is two-pronged: first, that the juvenile court failed to conduct the dispositional portion of the hearing properly; and second, that as a result, it failed to make dispositional findings by clear and convincing evidence. The first contention is not supported by the record, and the second is not supported by the law.

In proceedings on a supplemental petition, a bifurcated hearing is required. [Citations.] In the first phase of a section 387 proceedings, the court must follow the procedures relating to a jurisdictional hearing on a section 300 petition, as set forth in [California Rules of Court,[4]] rules [5.682] through [5.688]. (Rule [5.565](e)(1).) At the conclusion of this so-called jurisdictional phase of the section 387 hearing [citation], the juvenile court is required to make findings whether: (1) the factual allegations of the supplemental petition are or are not true; and (2) the allegation that the previous disposition has not been effective in protecting the child is, or is not, true. (Rule [5.565](e)(1).) If both allegations are found to be true, a separate dispositional hearing must be conducted under the procedures applicable to the original disposition hearing, i.e., rules [5.690] through [5.695]. (Rule [5.565](e)(1).) (In re Jonique W. (1994) 26 Cal.App.4th 685, 691.)

Mother contends the juvenile court failed to carry out the dispositional phase of the hearing under the apparent misapprehension that dispositional findings had already been made. Not so. At the end of the first hearing on the petition on January 25, 2006, the juvenile court found the counts of the petition true, and set the matter for disposition on the same date as the .26 hearing. The second hearing took place on March 23, 2006. The juvenile court indicated it had read the disposition report, which had been filed in connection with the supplemental petition, and indicated it would do the disposition concurrently with [Mothers petition pursuant to section] 388. The court then heard evidence, and the parties argued the merits of both the 388 petition and the dispositional phase of the supplemental petition: Mothers counsel argued that Antonio should be returned to Grandmother because there was no evidence he had come to harm in her home; and the departments counsel argued first, that Antonios return to Grandmother was precluded by the jurisdictional finding of the previous judicial officer, and second, that the department opposed return for the reasons indicated at the jurisdictional hearing. The juvenile court then ruled that placement with Grandmother was inappropriate and proceeded to the .26 hearing. It is clear from this record that the juvenile court allowed the introduction of evidence and held the second phase of the hearing on the supplemental petition.

Mother argues, however, that the juvenile court was required to make its findings at the dispositional stage of the hearing by clear and convincing evidence. We reject this contention as well. Mother is correct that where a supplemental petition is brought to remove a dependent child from placement with a parent, the protections of section 361including the provision that a child may not be removed from the physical custody of a parent or guardian without clear and convincing evidence to support the required findingsare applicable. (In re Paul E. (1995) 39 Cal.App.4th 996, 1000-1003;  361, subd. (c).) However, where, as here, a supplemental petition is brought to remove a child from the custody of a relative, the court uses the preponderance of the evidence burden of proof. (In re A.O. (2004) 120 Cal.App.4th 1054, 1061.)

Mother also contends the juvenile courts findings are not supported by substantial evidence. We review a decision to remove a child from a relative caretaker under the substantial evidence test. [Citation.] We review the evidence in the light most favorable to the trial courts determinations, resolve all evidentiary conflicts in favor of the prevailing party, and indulge in all reasonable inferences to uphold the trial courts findings. [Citation.] We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. [Citation.] The burden is on the party or parties challenging the findings and orders of the trial court to show there is no evidence of a substantial nature to support the finding or order. (In re H.G. (2006) 146 Cal.App.4th 1, 12-13.)

Applying this standard, we conclude there is substantial evidence to support the findings. Section 387, subdivision (b) provides that a supplemental petition must include facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child, or, in the case of placement with a relative, sufficient to show that placement is inappropriate in light of the criteria of section 361.3. Those criteria include the ability of the relative to provide a safe, secure and stable environment for the child; protect the child from his or her parents; and arrange for appropriate and safe child care. ( 361.3, subd. (a)(7).) Grandmother had been told that Mother could not visit her home and that all visits between Antonio and Mother must be supervised, and had been provided with a copy of the courts October 13, 2005 order that visitation be supervised by the department or another approved adult. She had also been told that Grandfather was not an appropriate caretaker for Antonio because of his criminal history. Nevertheless, on December 2, 2005at a time that Mother was using drugsAntonio was found alone with Mother and Grandfather. From this evidence, the juvenile court could reasonably conclude that Antonios placement with Grandmother was no longer appropriate.

D. Denial of Mothers Section 388 Petition

Mother contends the juvenile court abused its discretion in denying her section 388 petition, in which she sought to receive family maintenance services and to have Antonio live with her in the residential program. In denying the motion, the court stated that it did not find that Mother had shown either a change of circumstances or that it would be in Antonios best interest to modify the order terminating family reunification services and setting the case for a .26 hearing. The court noted that Mother had been in and out of treatment throughout the time she was receiving reunification services; that she did not stop using drugs or begin sustained treatment until after services had been terminated; that Mother had not shown she could live on her own, among her friends, without using drugs; and that her recovery was too new and too tenuous, and it constitutes more about changing circumstances rather than changed. In the circumstances, the court concluded, it was not in Antonios best interest to subject him to the risk of living with Mother.

Section 388 permits a parent to petition the court on the basis of a change of circumstances or new evidence for a hearing to change, modify or set aside a previous order in the dependency. The parent bears the burden of showing both a change of circumstance exists and that the proposed change is in the childs best interests. [Citation.] 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 childs best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) After termination of reunification services, the focus of the proceedings is not the parents interest in the care, custody, and companionship of the child, but rather the childs need for permanence and stability, and the juvenile court must recognize this shift in focus in ruling on a section 388 petition. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) We review the juvenile courts decision for abuse of discretion. (In re Casey D., supra, 70 Cal.App.4th at p. 47.)

In re Casey D. is instructive. There, the court concluded there was no abuse of discretion in denying a section 388 petition for return of a child and reunification services where the parent had been drug-free for only four or five months, had an extensive history of drug use, and in the past had relapsed after engaging in required treatment programs. (In re Casey D., supra, 70 Cal.App.4th at pp. 42-43, 48; see also In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9 [parent who becomes free of illegal drugs only after end of reunification period unlikely to show sufficiently changed circumstances to warrant granting section 388 motion].)

The juvenile court did not abuse its discretion in denying Mothers petition. Mother had used drugs since 2001. During the almost 18 months between the time the dependency petition was filed and the time reunification services were terminated, Mother had enrolled in drug treatment programs four times, but had not succeeded in remaining free of drugs. At the time the juvenile court ruled on Mothers petition, she had been in the residential treatment program for approximately three months. These circumstances, like those in In re Casey D., show not changed but only changing circumstances, and the juvenile court could properly conclude it was not in Antonios best interest to grant the petition.

III. DISPOSITION

The orders appealed from are affirmed.

________________________

RIVERA, J.

We concur:

___________________________

RUVOLO, P.J.

___________________________

REARDON, J.

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[1] All undesignated statutory references are to the Welfare and Institutions Code.

[2] Father is not a party to this appeal.

[3] Although some courts have used the substantial evidence standard of review (see, e.g., In re Cliffton B. (2000) 81 Cal.App.4th 415, 425; In re Autumn H. (1994) 27 Cal.App.4th 567, 575-577), the court in In re Jasmine D. noted that the practical differences between the two standards of review are not significant. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)

[4] Effective January 1, 2007, the California Rules of Court have been reorganized. The current rule numbers will be substituted for those formerly in effect.