Filed 6/10/22 In re A.R. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Michele A. C. Mathis, Judge. Affirmed.

Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant.

Teresa K.B. Beecham and Julie K. Jarvi, Deputy County Counsel, for Plaintiff and Respondent.

N.W. (mother) appeals the order terminating parental rights to her child, A.R. (Welf. & Inst. Code,[1] § 366.26.) She contends the juvenile court abused its discretion by denying her section 388 petitions, which requested extra reunification services, liberalized visitation, and vacatur of the section 366.26 hearing. Because mother failed to show (1) a material change in circumstances or (2) that granting her requests would promote A.R.’s best interests, we reject her contention and affirm.

I. PROCEDURAL BACKGROUND AND FACTS

A. Detention.

A.R. was born in May 2020. She came to the attention of the Department of Public Social Services (department) when she and mother tested positive for amphetamines upon her birth, and father (D.R.)[2] was incarcerated for a domestic violence incident against mother. Mother admitted to using methamphetamines for “‘several years,’” since she was 18 years old, and during her pregnancy. Three days later, the department received a second referral from hospital staff, who expressed concern for the baby’s wellbeing. Mother appeared overwhelmed, screaming for the nurses to get the child a bottle and “shut [her] up.”

Following discharge from the hospital, A.R. went with a maternal cousin while mother enrolled in an inpatient treatment program. On June 25, 2020, mother entered a voluntary family maintenance case with the department, and she successfully completed the required services (substance abuse treatment, counseling, parenting classes, and domestic violence prevention) while in inpatient treatment. On or about August 28, 2020, mother and the child entered a sober living home; however, two weeks later they were removed for missing curfew. Mother also missed two appointments at the outpatient clinic. In late September 2020, her whereabouts became unknown. On October 21, 2020, she told the social worker that they would begin living with the paternal grandparents. She admitted to using methamphetamine in October and tested positive in November.

On November 16, 2020, the department initiated dependency proceedings pursuant to section 300, subdivisions (b) (failure to protect) based on the parents’ substance abuse, domestic violence, and criminal history, (g) (no provision for support) based on both parents’ incarceration, and (j) (abuse of sibling) based on father’s abuse or neglect of his older children. A.R. was detained, supervised visitation was ordered, and a contested jurisdictional hearing was set.

B. Contested Jurisdiction/Disposition Report and Hearing.

In the jurisdiction/disposition report filed December 9, 2020, the department recommended that A.R. be declared a dependent of the court, remain in out-of-home placement, and the parents be provided supervised visitation and family reunification services. Mother had an extensive criminal history (theft, vandalism, & drug possession) and was on active supervised probation with a sentencing hearing set for January 8, 2021. The social worker expressed concern that the parents would continue to engage in substance abuse and domestic violence to the detriment of the child’s health and safety, and that they would be unable to meet the child’s basic need for a safe and stable living environment. Based on mother’s preference, the paternal grandmother’s home was being considered for placement. Despite mother’s continued use of methamphetamine and transient lifestyle, the social worker opined that she could benefit from participation in “Safe Care, individual counseling, parenting education, substance abuse treatment, mental health treatment and a medication evaluation.” Mother agreed with the proposed case plan.

A contested jurisdiction hearing was held on December 14, 2020. That same day, the department filed a first amended petition, which eliminated the section 300, subdivision (g) (no provision for support) allegation. Mother filed a JV-190 (waiver of rights) form, which confirmed she was submitting the matter to the juvenile court based on the social worker’s reports. The court found that the Indian Child Welfare Act of 1978 (25 U.S. C. § 1901 et seq.) did not apply and sustained the allegations in the amended petition: (1) mother has a chronic and unresolved history of abusing controlled substances and continued to abuse methamphetamine while caring for A.R.; (2) she suffers from mental health issues—depression and posttraumatic stress disorder—for which she has failed to obtain appropriate therapeutic treatment; (3) she failed to benefit from preplacement services; (4) she has a criminal history; and (5) both parents have a history of engaging in acts of domestic violence. A.R. was adjudged a dependent of the court and removed from mother’s custody. The court ordered reunification services and liberalized visitation, which may be unsupervised, overnight/weekends, upon the parents’ compliance with the case plan.

C. Six-month Status Review Report and Contested Hearing.

According to the six-month status review report filed May 19, 2021, and addendum filed June 11, 2021, the department recommended the juvenile court terminate reunification services, reduce visitation, and set a section 366.26 hearing to select a permanent plan for A.R. Mother reported that she was homeless, unemployed, not in a relationship, dealing with depression, and had been diagnosed with bipolar disorder. She began individual counseling on December 10, 2020; however, she missed three sessions in January and February, and three in May 2021. On December 25, 2020, she was charged with possession of a controlled substance and drug paraphernalia, and a bench warrant was issued and held to July 16, 2021, for arraignment. Mother had enrolled in a residential treatment program but left when she was informed that the cost was not covered by her medical insurance, and she failed to follow through on multiple referrals to drug treatment programs. Although she stated that she needed residential treatment, she did not take the steps to enroll in or return phone calls from people who could help her get into an inpatient program. On May 10, 2021, she was discharged from an outpatient program due to nonattendance. On June 9, the social worker learned that mother was at the “Crisis Stabilization Unit” where she would be able to get a psychological clearance.

Mother was referred to New Life Clinic for psychotropic medication evaluation, but her intake appointment was set for July 7, 2021. She had not enrolled in parenting classes and, despite several clean, random drug tests, she continued to abuse controlled substances as evidenced by her positive test (methamphetamine) on April 28, 2021, her failure to test, and her own admission. To her credit, mother engaged in appropriate visitation, with only a few missed visits in May 2021, and video chats about four times a week. The caregiver reported that mother and A.R. “have a great bond,” but during recent visits, the child did not want to go to mother, who was “emotional about other things.”

The social worker opined that there was no possibility A.R. would be returned to mother’s care in the next six months given her lack of participation in services, failure to mitigate the concerns that brought the family to the department’s attention, and failure to progress from supervised visitation. The department recommended adoption by the current caregiver as the concurrent plan if reunification is not possible. A contested review hearing was set for June 14, 2021.

On June 14, 2021, mother was present in court and objected to the termination of services. She informed the juvenile court that her psychological evaluation had been completed, and she was awaiting placement at an inpatient facility. After finding clear and convincing evidence that mother failed to participate regularly and make substantive progress in her case plan, and there was no substantial probability A.R. could be returned to her parental custody with six additional months of services, the court terminated reunification services. Visitation was reduced to twice a month.

D. Section 388 Petitions, Section 366.26 Report, and Addendum Reports.

On September 2, 2021, mother filed a section 388 petition requesting the juvenile court reinstate reunification services for an additional six months, liberalize visitation, and vacate the section 366.26 hearing, which was set for October 12, 2021. For changed circumstances, she noted that since the court terminated her services in June she had “nearly completed a 90 day inpatient program” (graduation set for Sept. 15), had “randomly tested negative 13 times,” had participated in individual and group counseling and was making progress, had met all of her treatment goals and objectives, and was “making a positive change in her life.” Mother explained that her request was in the child’s best interests because A.R. “should not be deprived of the familial relationship with her mother as her mother is overcoming the issues that caused the child to be in out-of-home care.” An evidentiary hearing on the petition was set for October 12, 2021.

According to the section 366.26 report filed September 24, 2021, the department continued to recommend a permanent plan of adoption. A.R. had been living with the same caregivers since November 12, 2020, and they wanted to adopt her. The child was bonded to her caregiver, whom she called “mom,” and appeared comfortable in the caregiver’s home. Beginning on June 14, 2021, the caregiver facilitated visitation by taking A.R. every other Friday to MFI Recovery Center’s inpatient facility (MFI) where mother was staying. The caregiver had to be present during visits because A.R. cried when mother attempted to remove her from the caregiver’s arms. Concerning mother’s progress on her case plan, the social worker noted that her efforts to overcome her addiction (the reason for A.R.’s removal) did not begin until after reunification services were terminated in June 2021. According to the social worker, “mother is 32 years old and has not demonstrated an ability to . . . maintain positive changes in her life”; she has been unable to provide a stable home environment free from drug use and violence; she has no employment history; and she has not shown an ability to provide food, clothing, or a permanent shelter for herself or A.R.

On October 6, 2021, the department filed a response to mother’s section 388 petition. The social worker reported that mother was doing well in her substance abuse program, was given the position of mentor at MFI, was medication compliant with her mental health, and had requested an additional 45 days of services in the program. It was reported that A.R. had been in the caregivers’ home for 11 months and was bonded to them. Although the social worker commended mother for addressing her sobriety and mental health, she opined that the “[d]epartment would be taking a risk with [A.R.’s] life and safety if the mother is provided more opportunities to reunify with her child, as she has not shown a consistent pattern in her behavior of following through and making the necessary changes in her life, nor has she demonstrated that she has the protective capacity to safely care [for A.R.]” The department recommended that mother’s petition be denied.

On October 12, 2021, the parties stipulated to continue the combined sections 366.26 and 388 hearing to December 13, 2021.

On October 28, 2021, mother filed another section 388 petition, which requested the same changes previously requested, but added that she had completed a 90-day inpatient treatment program and was entering a six-month outpatient program that had rooms for children and offered childcare. The evidentiary hearing on the petition was set for December 13, 2021.

In the section 366.26 addendum filed November 29, 2021, the department maintained its prior recommendations and attached the preliminary adoption assessment for A.R.’s caregivers. The caregivers are a 54-year-old woman and her oldest (28-year-old) daughter. Both understand the responsibility of being A.R.’s legal parents, and they ensure the child receives the love and support she needs. A.R. was 18 months old. The social worker expressed no concerns with the caregivers adopting A.R. because they have bonded with the child, the caretakers have the support of their extended family, and they will continue to provide a safe, stable, loving, and permanent home for A.R.

In another section 366.26 addendum filed December 8, 2021, the department reported that on November 29, 2021, mother moved in with her godmother to provide her with in-home support services; she provided the address and her cell phone number. Mother stated she had completed 123 days of inpatient substance abuse treatment, was attending MFI’s outpatient treatment program with a scheduled completion date of February 2, 2022, was compliant with her psychotropic medication, continued participating in weekly individual counseling, was not involved in any romantic relationship, was remaining sober, and was employed. She added that she loves A.R., has consistently visited her, and has space for her at the godmother’s home. The department maintained its prior recommendations.

E. Combined Sections 388/366.26 Hearing.

On December 13, 2021, the juvenile court conducted the sections 388/366.26 hearing. The parties agreed that the testimony regarding the section 388 petitions could be considered for the section 366.26 hearing. The caregiver testified that during the last six months, she had facilitated mother’s visitation by taking the child to MFI where mother was staying; however, since mother left MFI, she (mother) had missed visits and phone calls. A.R. recently began allowing mother to touch her. Mother was calmer during these visits, but when the child began to cry, mother handed her to the caregiver. A.R. called the caregiver “mom.” Although the child will play with mother during visitation, the caregiver must be present or else A.R. cries.

Mother’s counsel introduced two videos that depicted A.R. “well dressed and comfortable with [mother]” and sitting in a car seat blowing kisses to her. Mother testified that she struggled with methamphetamine addiction when A.R. was born and initially went into treatment to “get CPS out of [her] hair.” Now she seeks treatment and sobriety “to change for [herself] to give [A.R.] a better life.” Mother has been off probation since July 2021 and has been employed by the County of Riverside In-Home Support Services since November 24, 2021. She has been attending therapy, seeing her psychiatrist for nine months, and staying medication compliant since June 2021. She testified that she is a “completely different person” since undergoing the most recent treatment; she is responsible, accountable for her actions, on time for appointments, and an all-around better person. She credits her pastor (who is also her godmother), her church, and Women in Sobriety for helping to keep her clean and sober. During visits with A.R., the child goes to mother and does not cry when picked up. Mother wanted six extra months of services so she has “time to [herself] to build a stability, a foundation for [her] daughter.” Mother had been clean for “almost six months.”

The juvenile court praised mother on her investment into sobriety and the future, encouraged her to continue, and conceded her bond with A.R. But, after weighing mother’s six months of sobriety against the best interests of 19-month-old A.R. who had one household that she had known as home for her entire life, the court denied the section 388 petitions. The court explained: “[W]e have significantly changing circumstances, but given the length of addiction, the recent relapse, and the length of the sobriety, I don’t find that we have sufficiently changed circumstances.”

Proceeding with the section 366.26 hearing, the department and A.R.’s counsel requested the juvenile court terminate parental rights and free the child for adoption. Mother’s counsel asked the court to apply the beneficial parent-child relationship exception (§ 366.26, subd. (c)(1)(B)(i)) and select a plan of guardianship. The court found that mother has a strong bond toward the child; however, it could not find that “it would be more detrimental to sever the parental bond than it would be to allow A.R. to be freed for adoption.” Thus, the court terminated parental rights and ordered adoption as the permanent plan.

II. DISCUSSION

Mother contends the juvenile court abused its discretion when it denied her section 388 petitions. We are not persuaded.

“Section 388 provides for modification of juvenile court orders when the moving party presents new evidence or a change of circumstance and demonstrates modification of the previous order is in the child’s best interest.[[3]] [Citations.] ‘“The petitioner has the burden of showing by a preponderance of the evidence (1) that there is new evidence or a change of circumstances and (2) that the proposed modification would be in the best interests of the child.” [Citation.] “[T]he change in circumstances must be substantial.”’ [Citation.]

“When, as in this case, a section 388 petition is filed after family reunification services have been terminated, the juvenile court’s overriding concern is the child’s best interests. [Citation.] The parent’s interests in the care, custody and companionship of the child are no longer paramount; and the focus shifts to the needs of the child for permanency and stability. [Citations.] Nonetheless, a parent may rebut the presumption that continued care is in the best interest of the child after termination of reunification services by showing that circumstances have changed and would warrant further reunification services. [Citation.]

“We generally review the denial of a section 388 petition for abuse of discretion.” (In re Malick T. (2022) 73 Cal.App.5th 1109, 1122-1123.)

Here, mother faults the juvenile court for not applying the “escape mechanism” provided by section 388 based on her engagement “in extensive services by way of individual counseling, psychiatric care, medication compliance and parent education.” She emphasizes her attainment of six months of sobriety by the time of the section 388 hearing, and argues that this “is all that was required under her case plan, where reunification services were limited to only six months” pursuant to section 361.5, subdivision (a)(1)(B). We agree that mother achieved sobriety within the same period of time identified in section 361.5, subdivision (a)(1)(B), namely six months, and was “invested in avoiding a relapse,” but we disagree that her sobriety of six months is sufficient “to find the child can be returned” to her care for the purpose of analyzing her section 388 petitions.

Moreover, mother’s sobriety is six months too late. In other words, it took mother 18 months following the birth of her child to accomplish what she considers to be a significant change in circumstances. However, given mother’s history of substance abuse (from ages 18 to 32) and relapses, her recent completion of a treatment program and brief period of sobriety does not constitute a material change in circumstances. (In re N.F. (2021) 68 Cal.App.5th 112, 121-122 [a parent’s “history of completing programs and relapsing” evidences parental instability, and is, thus, relevant when evaluating whether a child’s “‘best interests in permanency and stability would be furthered by’ derailing the child’s adoption”].) While it is commendable that mother made progress, that progress signals only that her circumstances were changing, not changed. (In re Casey D. (1999) 70 Cal.App.4th 38, 47 [mother’s short drug recovery period and failure to complete prior treatment programs showed only changing circumstances and the court did not abuse its discretion by denying her § 388 petition], disapproved on another ground in In re Caden C. (2021) 11 Cal.5th 614, 636, fn. 5; see In re Cliffton B. (2000) 81 Cal.App.4th 415, 421-423 [seven months of sobriety insufficient]; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610 [mother with long history of drug abuse, showed only that she was beginning to rehabilitate, not changed circumstances].)

Nonetheless, assuming mother established changed circumstances, the juvenile court reasonably found that she failed to make a prima facie showing that the proposed order was in the best interests of the child. “When custody continues over a significant period, the child’s need for continuity and stability assumes an increasingly important role. [Citation.] That need often will dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.” (In re Angel B. (2002) 97 Cal.App.4th 454, 464.) This is a tough burden to meet in many cases, especially when reunification services have been terminated, as in this case.

“After the termination of reunification services, the parents’ interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point ‘the [juvenile court’s] focus shifts [from family reunification] to the needs of the child for permanency and stability.’” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) “In fact, there is a rebuttable presumption that continued foster care is in the best interest of the child [citation]; such presumption obviously applies with even greater strength when the permanent plan is adoption rather than foster care. A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, what is in the best interest of the child.” (In re Angel B., supra, 97 Cal.App.4th at p. 464.)

Here, mother asserts that she has consistently visited A.R., who had recently “warmed up to” her, went “easily into mother’s arms, and was blowing her kisses to say goodbye at one of their recent visits.” Mother noted that she had inquired into the child’s well-being, attempted to attend medical checkups, and was prepared to tend to all her needs. Thus, she contends that further reunification services “would not have delayed permanency planning for this child, because she was already placed in a stable placement.” Absent from mother’s argument is any discussion of how her requested change serves A.R.’s best interests. On this record, it is questionable whether mother parented the child prior to her removal on November 12, 2020. Since that day, A.R. has lived with caregivers, who have provided for her daily needs and are committed to adopting her. In turn, A.R. is comfortable in her caregivers’ home and is bonded with them; the same may not be said of mother. In short, there is insufficient evidence that the bond, if any, A.R. feels toward mother is that of a child for a parent.

Because mother failed to show materially changed circumstances or that the requested change would promote A.R.’s best interests, the juvenile court did not abuse its discretion by denying her section 388 petitions.

III. DISPOSITION

The order terminating parental rights to A.R. is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

MILLER

J.

FIELDS

J.

[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] Both mother and father agreed that father is the biological father of A.R., even though he was not present for her birth and is not listed on her birth certificate. However, father is not a party to this appeal and will be discussed as needed.

[3] “Section 388, subdivision (a)(1), 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 . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.’” (In re Malick T., supra, 73 Cal.App.5th at p. 1122. fn. 10.)