Filed 2/21/18 In re C.B. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



In re C.B., a Person Coming Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

N.T.,

Defendant and Appellant.
D072719


(Super. Ct. No. NJ13700B)

APPEAL from an order of the Superior Court of San Diego County, Michael J. Imhoff, Commissioner. Affirmed.
Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy and Eliza Molk, Deputy County Counsel, for Plaintiff and Respondent.
N.T. (Mother) appeals a juvenile court's order denying her Welfare and Institutions Code section 388 petition to modify the prior court order denying her reunification services with her son, C.B. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On September 11, 2015, the San Diego County Health and Human Services Agency (Agency) received a referral that C.B's father was stopped for a traffic violation and methamphetamine and marijuana were found in his possession. The father was arrested, and police conducted a search of his residence. Mother and C.B. lived in the residence and were present during the search. Officers found a large quantity of marijuana on a lower shelf, which was easily accessible to C.B. A firearm also was located inside of a bag between the parents' bed and a wall. Mother claimed she had never seen a firearm in the residence and that she had a medical marijuana card but could not locate it.
Agency social worker Ian Baxter and an Agency intern interviewed Mother at the family's residence on September 14. Mother reported that C.B. had no health problems or developmental delays. She said she last used marijuana in 2009, denied current drug use, and denied ever using any other substances. However, a faint smell of marijuana was detected in the residence. A small bag containing a marijuana mixture also was found on the headboard of the parents' bed. Baxter provided Mother with referrals to substance abuse services and counseling, and asked Mother to drug test later that day. Mother agreed.
C.B. was in the residence during Mother's interview. He appeared happy, healthy, and bonded to Mother. Mother was drug tested the following day and tested positive for methamphetamine, amphetamine, and marijuana.
Baxter and the Agency intern conducted an unannounced home visit on September 21. In response to her drug test results, Mother said she tested positive for marijuana because she was likely around someone who was smoking marijuana. She claimed she did not know why she tested positive for methamphetamine. When asked about her methamphetamine use, she admitted she used the substance many weeks prior, and then later admitted she used it more recently. She used the substance in the home while C.B. was asleep there. She also cared for C.B. while under the influence.
Mother denied regular methamphetamine use. She and the father signed a safety plan, whereby they agreed that Mother would not use drugs or care for C.B. while under the influence. The plan also required Mother to drug test by the end of the day and attend the McAlister Institute of Treatment and Education (McAlister Institute) the next day and follow its recommendations. Mother drug tested under the safety plan, and tested positive for methamphetamine, amphetamine, and marijuana.
Mother called Baxter on September 23 and reported she attended the McAlister Institute the day before as set forth in the safety plan. She also reported that her intake appointment at McAlister Institute was September 25. On September 30, both McAlister Institute locations near Mother's residence reported they had no record of Mother's attendance.
Baxter informed Mother of her second positive drug test during a phone call on October 1. She denied recent use and claimed that the drug test was inaccurate. Baxter expressed concern that Mother was caring for C.B. while under the influence, and noted that juvenile court involvement may be necessary because Mother was not attending a substance abuse program and was dishonest about her substance use.
The Agency's investigation also revealed information about two of Mother's other children. Mother's daughter was in the care of the maternal grandmother. A dependency case was initiated for Mother's older son, J.T., in 2007 after Mother was arrested for robbery and shoplifting. Ultimately, Mother did not unify with J.T., and he was adopted.
On October 2, 2015, the Agency filed a petition on behalf of then nine-month-old C.B. alleging he came under section 300, subdivision (b). Specifically, the petition alleged Mother abused amphetamine and methamphetamine, she had a history of drug use and parental neglect, and C.B.'s home contained marijuana within his reach. Moreover, the father was a convicted felon and had recently been arrested for child endangerment and possession of a controlled substance. Accordingly, there was a substantial risk C.B. would suffer serious physical harm or illness because of the parents' inability to provide regular care for him. A protective custody warrant (PCW) application was filed concurrently with the petition, which the juvenile court issued.
The parents and C.B. did not attend the October 5, 2015 detention hearing. The juvenile court appointed counsel for C.B. The Agency's counsel informed the court that the PCW was unable to be executed because Mother could not be located. The court found that reasonable search efforts had been made to locate and notify the parents of the proceedings, and ordered that the warrant remain outstanding. It further found out-of-home detention of C.B. necessary due to a substantial danger to his health and that there were no reasonable means to protect him without removing him from parental custody. The court ordered C.B. detained at Polinsky Childrens Center or a licensed foster home once he was located and that services be provided to the parents as soon as possible.
The Agency's jurisdiction and disposition report, authored by social worker Abigail Joseph, noted that the whereabouts of the parents and C.B. were unknown. It appeared that the parents had absconded with C.B. As a result, C.B.'s medical and developmental history was unable to be obtained. The Agency tried various means to contact, find, and notice the family, including: conducting a parent search; sending letters to their last known address via certified and first class mail; calling the parents on several occasions; conducting home visits and calling local motels; involving local police in search efforts; and calling various relatives.
Joseph's report included more information about the father, J.T.'s dependency case, and the parents' criminal history. The local police department reported that the father was a member of a street gang, was usually armed, and, at one point, was Mother's pimp. The parents also reportedly married at some point (although there is conflicting evidence whether they did marry). The father's criminal record was extensive and included offenses relating to violence and illegal substances. Mother had convictions for petty theft, burglary, and spousal battery.
At the October 26, 2015 jurisdictional hearing, the Agency requested a continuance. It wanted additional time to locate the family. The court granted the Agency's request and ordered that the warrant for C.B. remain outstanding. On November 2, 2015, the Agency filed a request for compulsory judicial notice of J.T.'s file.
Joseph's addendum report noted that the family's whereabouts were still unknown. The Agency unsuccessfully attempted to reach the parents by phone on October 19 and 30, as well as on November 7 and 9. Phone messages were left and the Agency asked the parents to call back and reminded them that C.B.'s warrant remained. The letters previously sent to the parents were returned. Additionally, local law enforcement continued to search for the family.
At the continued jurisdictional hearing on November 16, the Agency requested another continuance to again try to locate the family. The court found that reasonable search efforts had been made to locate and notify the family of the proceedings. It issued an arrest warrant for Mother pursuant to section 339, ordered that C.B.'s warrant remain outstanding, and granted the continuance request.
During the next reporting period, the Agency continued its search efforts to no avail. It reached out to nine local hotels and made more phone calls to relatives. Local police continued searching for the family. Additionally, on December 2, the Agency left voice messages for the parents to provide notice of the upcoming hearing, and that warrants were issued for both Mother and C.B. On December 7, the matter was again continued to locate the family.
On December 30, the Agency learned that C.B. and Mother had been located in Las Vegas, Nevada, and were residing there. The following day, Clark County law enforcement and Department of Children and Family Services found Mother at the reported residence. C.B. was not present, however, and Mother refused to disclose his whereabouts. At the next hearing on January 5, 2016, the matter was continued. The court authorized a referral on behalf of C.B. to the National Center for Missing and Exploited Children.
Joseph made contact with the parents during the next reporting period. While Mother refused to tell Joseph her exact whereabouts, she noted she was trying to get a ride back to San Diego County. Joseph informed Mother that the Agency was willing to provide her and C.B. with bus or plane tickets. Mother expressed fear of losing custody of C.B. as she had previously lost custody of J.T. She claimed she had maintained sobriety and that she intended to enroll in a drug treatment program upon her return.
The father had been re-incarcerated and Joseph interviewed him at his detention facility. He believed he would be released before the next hearing and planned on attending court with Mother and C.B. Nevertheless, he refused to provide the address where C.B. was staying.
Two of Mother's friends were present at the March 7, 2016 continued hearing. Before the hearing, they called Mother on behalf of Joseph. Mother informed Joseph that she would not be attending the hearing. She also refused to disclose her and C.B.'s whereabouts, although Joseph heard a baby babbling in the background of the call.
The father was present and in custody at the hearing. The court appointed counsel for the parents. The father's counsel requested a continuance to review the case, which the court granted. The court advised Mother's counsel that, should Mother appear at the continued hearing with C.B., she would not be arrested per the outstanding arrest warrant.
At the continued jurisdictional hearing on March 10, 2016, the father was present in custody and the matter was set for trial. C.B. and Mother were not present. The court ordered parenting classes for the father upon his release from custody as well as a referral to a substance abuse specialist. Mother's warrant was to be vacated if she informed the Agency of C.B.'s whereabouts because the court wanted the Agency to assess C.B.'s welfare. Also, her warrant would be vacated if she appeared in court with C.B. The PCW on behalf of C.B. remained outstanding.
Joseph's next addendum report detailed the Agency's efforts to locate Mother and C.B. as well as additional information about Mother's friends. Between March 17 and March 22, Joseph tried calling Mother at various phone numbers. She also sent documentation and information to Mother's last known address via certified mail, which was returned as undeliverable. Joseph's report further noted that the father was incarcerated for drug-related charges. Additionally, she asked local police for information regarding Mother's two friends who had attended the March 7 hearing. Per the police, one of the individuals was a prostitute for another member of the father's gang, and the other was involved in the incident that caused the father's arrest.
At the April 1, 2016 contested jurisdictional hearing, the father was present. The court made a true finding on C.B.'s petition and ordered that C.B. and Mother's warrants remain outstanding. The contested dispositional hearing was set for April 5, the six-month removal date.
Joseph continued attempting to reach Mother on April 1. She called her at two different phone numbers and called Mother's friend to obtain other contact information for Mother. As C.B.'s whereabouts remained unknown, the Agency referred the matter to the local district attorney's child abduction unit.
In her report for the dispositional hearing, Joseph recommended denying Mother reunification services pursuant to various subdivisions under section 361.5. She recommended offering services to the father and, once C.B. was located and in protective custody, supervised visitation for both parents. Notice of Mother's no services recommendation was sent to Mother's last known address and her counsel. C.B.'s case plan, which was attached to Joseph's report, included a physical and health exam. It also required C.B. to participate in a developmental screening and follow all services recommended from the screening.
At the April 5, 2016 dispositional hearing, the matter was continued in hopes C.B. would come into custody. On April 19, Mother called Joseph from a new number. Mother was crying during the call and expressed fear that C.B. would be removed from her custody if she disclosed their whereabouts.
Joseph encouraged Mother to bring C.B. into protective custody as soon as possible. She also explained that Mother could not collect CalWORKs, and C.B. could not start school, until Mother brought C.B. into custody. Mother said she knew this, and noted that she thought about the consequences of her actions constantly. On April 28, Joseph unsuccessfully tried to reach Mother on her new phone number. She left a voice message requesting a return call.
One of Mother's friends called Joseph during the reporting period. The friend reported that Mother had called her to ask for help, but Mother would not disclose her exact whereabouts. Mother had asked the friend for money so Mother could buy C.B. diapers and food. Additionally, a case was officially opened with the local district attorney's child abduction unit on behalf of C.B. The May 9, 2016 dispositional hearing was again continued because the child's whereabouts remained unknown.
Search efforts for Mother and C.B. continued during the next reporting period. Joseph unsuccessfully tried to reach Mother at various phone numbers. She also called four of Mother's friends to obtain information about her whereabouts. The Las Vegas police department conducted an unannounced home visit at Mother's last known address; however, it appeared that Mother and C.B. were no longer residing there.
At the June 13, 2016 dispositional hearing, the matter was continued.
Between the June 13, 2016 hearing and February 1, 2017, search efforts for Mother and C.B. continued. During this time, a paternal aunt contacted the Agency and reported she had heard from Mother. According to the aunt, Mother and C.B. had been staying with various friends of Mother. The aunt also reported that Mother was worried about the logistics of transporting her belongings back to San Diego from Las Vegas. The social worker expressed concern that Mother did not have basic necessities for C.B. as previously reported by Mother's friend.
The Agency also received a phone call on December 12, 2016 from an anonymous caller. The caller expressed concern for C.B.'s safety. C.B. was sick, and Mother refused to get him medical treatment out of fear that he would be removed from her custody. According to the caller, Mother's friends were further concerned about C.B.'s safety because Mother had been prostituting. Her friends were afraid to come forward with the information due to fear of retaliation.
On February 2, 2017, Las Vegas police located and detained C.B. However, Mother's whereabouts remained unknown. Four days later, a doctor assessed C.B., noting possible developmental delays. On February 7, C.B. was transported back to San Diego by Agency social worker Melissa Romero, who reported concerns on his behalf. He had a flat affect upon meeting her, and although he had never met her before, he showed no distress or hesitation in traveling with her from Las Vegas to San Diego. He had minimum verbal skills and could not follow basic instructions. Moreover, he did not answer to his name or to any other verbal cues, he did not say any words, and he wanted to be held constantly despite making minimal eye contact.
A special hearing was held on February 9, 2017, to inform the court that C.B. was located and returned to San Diego. The Agency recommended against visitation between C.B. and Mother due to concerns she would abscond with him again. The court detained C.B. and declined to make visitation orders on behalf of Mother.
On February 19, Mother was arrested while crossing the international border. She had methamphetamine and prescription medication that did not belong to her in her possession. On March 2, C.B. received a medical exam, and the doctor had concerns relating to urology and speech delay. Mother admitted she did not take C.B. to the doctor during the time she had absconded with him.
Mother made her first appearance at a special hearing on April 11. She requested visitation with C.B. and filed two documents with the court relating to substance abuse treatment. She had enrolled in the Vista Hill perinatal case management program on April 7, 2017. She also had been admitted to a residential drug treatment program at the Family Resource Center (FRC) on March 15. She was in the program's initial phase, though she had a positive drug test upon admission. Subsequently, her drug tests were negative, and she was progressing in treatment.
The court ordered supervised visitation on behalf of Mother, conditioned on the visits occurring at a secure location and that the visitation supervisor was made aware of the case history. The Agency also was given discretion to end Mother's visit if it had an adverse effect on C.B. The Agency was to set a special hearing if it exercised this discretion.
C.B. participated in a developmental screening on April 11, and concerns relating to his communication, problem solving, and personal social skills were reported. A social-emotional and behavioral screening and interview also was conducted, and areas of concern included: tantrums and meltdowns, eating or sleeping, extreme emotions or lack of emotions, interactions with others, and difficulties with transitions. Because it was unclear if his developmental delays were caused by trauma or a pre-existing condition, the developmental screener requested additional information about C.B.'s upbringing.
On April 27, 2017, Mother and C.B. had a supervised visit. C.B. did not seem to recognize Mother, and he was unresponsive to her verbal cues. Mother attempted to pick up C.B. and wrap him in a blanket several times, which caused him to hit her on the face until she released him. He allowed her to hold him toward the end of the visit. During the majority of the visit, he played independently (although he did appear to enjoy Mother reading books to him). He did not show emotional distress when parting with Mother at the end of the visit.
Additional information regarding Mother was obtained during the reporting period. She was enrolled in dependency drug court, and as of May 5, 2017, she had been sober for 38 days. She also admitted to absconding with C.B. in October of 2015 out of fear he would be removed from her custody. During this time, she and C.B. stayed with different friends of hers. She acknowledged that she knew the Agency was searching for her and C.B.
At the May 4, 2017 contested dispositional hearing, the court granted the Agency's prior request for judicial notice of J.T.'s file. It declared C.B. a dependent and removed him from parental custody. The Agency recommended denying the father reunification services under section 361.5, subdivision (e)(1) because he was finishing his state prison sentence while facing federal charges. The court ordered him reunification services because he was not yet federally sentenced. It denied Mother reunification services under section 361.5, subdivision (b)(10), (11), and (13).
Concerns surrounding C.B.'s development and behavior persisted. After a second visit with Mother, C.B. started playing with his feces, which a developmental specialist noted was possibly a result of trauma. On May 15, C.B. completed a comprehensive developmental evaluation. The results of his evaluation indicated he was at risk to develop autism spectrum disorder (ASD), though it was reported that some of his behavioral challenges may have been due to experiencing trauma.
The evaluator noted that little information was known about C.B.'s developmental or medical history before his placement in foster care. C.B. scored in the delayed range in the areas of cognitive development and language development. His fine motor skills also fell below the average range for his age. The evaluator noted the importance of closely monitoring his development and recommended he undergo another evaluation in the next six to 12 months. Moreover, it was recommended that C.B. participate in various developmental services, occupational therapy, speech and language therapy, as well as a hearing test to rule out hearing impairment as a cause of his delayed language development.
On July 12, 2017, Mother filed a petition under section 388 to modify the prior court order denying her reunification services. She asked the court to order her services. As to changed circumstances, she continued treatment at the FRC and had attended 14 sessions with a psychologist. Outside of her modification petition, dependency drug court reported she had maintained 101 days of sobriety as of July 7, 2017.
The Agency recommended that Mother's section 388 petition be denied for a variety of reasons. She had not yet acknowledged that her substance abuse was a main protective issue. Rather, she believed C.B. was removed from her because she had absconded with him. She also did not seem to understand the severity of C.B.'s developmental delays. Moreover, C.B. did not acknowledge or recognize Mother during visits, and he did not display attachment behaviors toward her despite spending the first two years of his life in her care.
At the July 25, 2017 modification hearing, the Agency and C.B.'s respective counsel asked the juvenile court to deny Mother's section 388 petition. The court found Mother's petition met prima facie requirements. It set the matter for an evidentiary hearing.
Romero wrote an addendum in preparation for the evidentiary hearing. She continued to recommend denial of Mother's section 388 petition. To this end, she reminded the court that Mother had absconded with C.B. for more than a year. He did not receive any medical care during that time. However, since his placement in foster care, he had made some developmental progress. Further, while attachment behaviors were more difficult to identify due to C.B.'s developmental delays, he did appear attached to his caregiver. He displayed some distress when parting from the caregiver, and he greeted her affectionately upon her return. However, he did not appear to be attached to either parent. He showed no change in affect when he reunited with a parent before a visit, and he similarly showed no distress when the parent left a visit.
At the August 30 contested modification hearing, Mother was present and multiple documents she provided were admitted into evidence, including: a letter from dependency drug court, treatment updates from the FRC and Mother's psychologist, a parenting class series completion certificate, and documentation that she had previously enrolled in the Vista Hill perinatal case management program and the FRC. According to the documentation, Mother had been testing negative while at the FRC despite her 20-year substance history. Dependency drug court reported she was in good compliance with the program and had maintained 150 days of sobriety. Also, she had participated in many substance abuse related services and made moderate progress in the majority of her therapy treatment goals.
Romero testified at the hearing. She acknowledged Mother's voluntary participation in services and her appropriate behavior during visits with C.B. However, she noted the importance of looking at the totality of the case. Mother had a long substance abuse history and was found in possession of methamphetamine six months before the hearing. C.B. had extensive delays, and he received no medical care during the time Mother had absconded with him, which was for more than one year. Moreover, because Mother knowingly absconded with him, the Agency was concerned about ever allowing her unsupervised visitation.
Mother also testified at the hearing. She anticipated graduating from the FRC in January 2018 and planned on attending outpatient treatment. She attended Narcotics Anonymous meetings three times per week, and she had also made a relapse prevention plan. She expressed remorse for absconding with C.B. and noted her regret for failing to address his developmental delays during that time. Further, she made efforts to educate herself about C.B.'s at-risk of autism diagnosis. She admitted to remaining in contact with the father " 'on occasion.' "
Mother's and C.B.'s respective counsel asked the court to grant Mother's petition while the Agency's counsel asked the court to deny the petition. After considering the evidence and hearing argument of counsel, the court denied the section 388 petition. The court found Mother's petition had to be "tethered" to the reasons why the court denied her services at disposition. It further noted it was "not convinced" that her participation at the FRC was the type of changed circumstance within section 361.5 that warranted granting her petition. It then expressly found that Mother failed to show, by a preponderance of the evidence, that it was in C.B.'s best interest to grant her petition.
Mother timely appealed.
DISCUSSION
Mother raises two challenges to the court's order denying her section 388 petition. First, she maintains the court applied the incorrect burden of proof. Second, Mother asserts, even if the court applied the correct burden of proof, the court abused its discretion in denying her petition. We reject these contentions.
Under section 388, subdivision (a), a parent, interested person, or the dependent child (generically, petitioner) may petition the court to change, modify, or set aside a previous order on the grounds of changed circumstances or new evidence. The petitioner requesting the modification has the burden of proof to show a change of circumstances or new evidence, and that the proposed modification is in the child's best interests. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
We review the grant or denial of a petition for modification under section 388 for abuse of discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) " ' "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason." ' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) We will not disturb the trial court's exercise of discretion unless the trial court's decision was arbitrary, capricious, or patently absurd. (Id. at p. 318.) The complaining party must affirmatively establish abuse of discretion; it is not presumed. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 423.)
Here, before considering Mother's section 388 petition, the court denied Mother reunification under section 361.5, subdivision (b)(10), (11), and (13). Under those subdivisions, the court will not order reunification services to the subject parent unless it finds, by clear and convincing evidence, that reunification is in the best interest of the child. (§ 361.5, subd. (c); see Riverside County Dept. of Public Social Services v. Superior Court (1999) 71 Cal.App.4th 483, 492.) A parent seeking reunification services in this instance has the burden of proof in showing best interests. Notably, the juvenile court may bypass reunification services under section 361.5 for one parent while ordering services for the other parent. (§ 361.5, subds. (b), (e); see Riverside County, supra, at p. 485, fn. 1.)
However, a parent can later overcome a bypass of reunification services made under section 361.5, subdivision (b)(10), (11), and (13) by petitioning the court under section 388. (See In re L.S. (2014) 230 Cal.App.4th 1183, 1193-1194.) The parent must show he or she changed his or her circumstances since the bypass was ordered, and that an order of reunification services to the parent would be in the child's best interests. (§ 388; In re L.S., supra, at p. 1193.) The standard of proof at the trial court level to overcome a prior bypass under section 361.5, subdivision (b)(10), (11), and (13) using a section 388 petition is a preponderance of the evidence. (In re L.S., supra, at pp. 1193-1194; see In re M.V. (2006) 146 Cal.App.4th 1048, 1059.)
In the instant action, Mother claims the court confused the burdens under section 361.5 and section 388. To this end, she insists the court applied the incorrect clear and convincing burden of proof under section 361.5 instead of the lesser preponderance of the evidence burden under section 388. Mother's argument hinges on the court's reference to section 361.5 instead of section 388 when it explained its ruling:
"What's interesting about this case is that the 388 motion does have to be tethered to the reasons why the court did not order reunification services at disposition. [¶] Here the court made findings under [section 361.5, subdivision] (b)(10), (b)(11), and (b)(13). [¶] I think what Mother has done at FRC indicates that she is addressing those issues. But I'm not convinced that it's the type of changed circumstance within 361.5 that warrants granting the motion. [¶] Even if it were to be considered a change in circumstance, the court has to carefully analyze best interests with a mind and eye toward the fact that the court made a finding under subdivision (c), that reunification itself was not in the best interest of the child."

It is clear the court understood that it was considering Mother's section 388 petition. To provide context, it pointed out that it had previously denied reunification services under section 361.5, subdivision (b)(10), (11), and (13). However, the court identified the incorrect statute when it referenced section 361.5 while mentioning changed circumstances. In fact, section 361.5 does not contain a changed circumstances requirement. (See § 361.5.) However, section 388 does. (See § 388, subd. (a).) Because Mother brought her petition under section 388, the court was to consider changed circumstances under section 388, which requires the moving party to prove such changed circumstances by a preponderance of the evidence. (In re Jasmon O., supra, 8 Cal.4th at p. 415.) Accordingly, we read the juvenile court's reference to changed circumstances under section 361.5 merely as the court misspeaking, nothing more.
Indeed, we see nothing in the record leading us to believe that the court applied the incorrect clear and convincing burden of proof to Mother's section 388 petition. The court did not mention the clear and convincing burden of proof. To the contrary, the court made clear it was applying a preponderance of the evidence burden of proof to its analysis of whether the modification would be in C.B.'s best interests: "So I cannot find that Mother, by a preponderance of the evidence, has established it would be in the best interest of [C.B] to grant her request."
When a juvenile court does not expressly specify the standard of proof it applied, the appellate court may presume the juvenile court applied the proper standard of proof. (See In re Katrina C. (1988) 201 Cal.App.3d 540, 547-550.) On the record before us, this assumption seems particularly apt. Section 388 requires a moving party to show a changed circumstances or new evidence warranting a modification of a previous order, and that the modification is in the best interests of the child. (§ 388, subd. (a); In re Jasmon O., supra, 8 Cal.4th at p. 415.) Below, the court explicitly applied a preponderance of the evidence burden of proof to the second requirement under section 388, namely the best interests of the child. It would be a leap of logic to find the court applied a different burden of proof to the first requirement under section 388 without any indication in the record that it did so except for citing to an incorrect statute.
As an appellant has the burden to show error (see Denham v. Superior Court (1970) 2 Cal.3d 557, 566), we conclude that Mother has not shown that the court applied the incorrect burden of proof to her section 388 petition.
Having concluded the court applied the correct burden of proof, we turn to Mother's argument that the court abused its discretion in denying her section 388 petition. At the outset, Mother argues the court abused its discretion because it was mistaken in its belief that C.B. suffered trauma while with Mother, the court misunderstood the characteristics of an autistic child, and the court gave too much weight to "very preliminary reports" on C.B. Apparently, Mother believes these alleged errors led the court to misinterpret the evidence, and thus, abuse its discretion in denying the section 388 petition. We disagree.
Mother asserts the juvenile court mistakenly found that C.B. suffered trauma while in Mother's care. However, Mother does not point to anywhere in the record where the court made such a finding. At most, the juvenile court noted, "[P]art of the assessment . . . indicates that there is a trauma component to the delays that have been mentioned." We do not read this statement from the court as a finding that C.B. suffered trauma. Instead, the court was noting a "trauma component" as a possible explanation for some of C.B.'s developmental delays. This is consistent with a question raised in an addendum report about C.B. wherein Romero noted that additional information about C.B. was needed to ascertain "if his delays in development are caused by trauma or a pre-existing condition." Additionally, in the Rady Children's Hospital developmental evaluation clinic report (Evaluation Report), the author noted "some of [C.B.'s] current behavioral challenges may be due to his experience of trauma[.]" Although the court pointed out a possible "trauma component," it did so while emphasizing that in the year Mother absconded with C.B., there was no attempt during that time to discern C.B.'s problems and "that clearly affected [C.B.'s] best interests." Accordingly, we are not persuaded that the juvenile court erred in referencing possible trauma experienced by C.B. while under Mother's care.
Next, Mother argues the court, based on its misunderstanding of autism, "wrongly faulted [M]other for not getting [C.B.] services while they were in Las Vegas and used this finding to determine she did not prove providing her with services would be in [C.B's] best interests. Here, there is nothing in the record indicating that the court did not understand autism. In making its ruling, the court did not mention autism whatsoever. Instead, the court observed that C.B.'s best interests were adversely affected by Mother's failure to take him to the doctor during the absconding period. Specifically, the court stated, "While there's nothing in the record that would indicate that earlier intervention would in any way change where [C.B.] is now, the fact that a year went by without even an attempt to discern, that clearly affected his best interests."
Also, we observe that the record is unclear whether C.B. had been diagnosed as autistic. In the Evaluation Report, it was noted that C.B. was "at-risk for the development of an autism spectrum disorder although this risk may also be the result of other development difficulties." In summarizing the findings, the Evaluation Report provided:
"[C.B.] is an adorable 2-year, 4-month-old child who was referred by the Developmental Screening and Enhancement Program (DSEP) for a comprehensive developmental evaluation due to concerns expressed by his foster mother regarding language and social development. Overall, results from this evaluation are consistent with a diagnosis Autism Spectrum Disorder (ASD). Though some of [C.B.'s] current behavioral challenges may be due to his experience of trauma, he is demonstrating behaviors and symptoms consistent with an ASD presentation. Specifically, [C.B.] demonstrates difficulties in the areas of social communication (e.g., delays in speech and language, limited use of nonverbal modes of communication, use of other's hands as a tool, limited interest in same-age children, lack of imaginative play) and the presence of restricted and repetitive behaviors (e.g., unusual interests and preoccupations, repetitive play with toys). His difficulties in both of these areas are interfering and he needs support in both areas. [C.B.'s] symptoms of ASD are currently consistent with a moderate or Level 2 severity, indicating that he requires substantial support to improve his daily functioning and promote his long-term development. The significance of [C.B.'s] scores were delayed on standardized measures of cognitive and adaptive behavior, which could be consistent with a diagnosis of Global Developmental Delays. At this point, [C.B.'s] scores should be considered a baseline given his young age, difficulty doing something at the request of another person, and potential impact of trauma on his current level of functioning. It is important that [C.B.'s] development be closely monitored and that he is re-evaluated in 6-12 months [to] determine whether he meets criteria for an additional diagnosis of Global Developmental Delay."

Despite the lack of a definitive diagnosis placing C.B. on the autism spectrum, Mother nevertheless maintains the court erred by noting that C.B. did not display attachment behaviors with her. Mother claims C.B.'s behavior toward her is a product of him being autistic; thus, the "court's interpretation of [C.B.'s] behavior toward [M]other reflects a misunderstanding of the typical behavior of autistic children." In other words, Mother claims C.B.'s lack of attachment with her is not the product of her care of him, but instead, the result of C.B.'s autism. We disagree.
In the August 30, 2017 addendum report, a distinction was made between C.B.'s reaction to his parents and his caregiver: "Although [C.B.] is mostly comfortable with anyone he is with, he shows no distress leaving either parent and shows no change in affect when seeing each parent. It is difficult at times to see attachment behaviors in regards to children with Autism Spectrum Disorder (ASD); [C.B.] on the other hand does appear attached to the caregiver. The undersigned worker has observed him be attached to the caregiver as he at times is upset when her car pulls away and laughs and runs to her when he sees her." Thus, the addendum report states that although a child with ASD might not display attachment behaviors, C.B. exhibits such behaviors toward his caregiver not his parents. As such, we see nothing improper in the court commenting that C.B. showed no attachment behavior toward his mother, especially when the court was informed such a response could be typical of a child with ASD, but also was presented with examples of C.B. exhibiting attachment behavior to his caregiver. On this record, we cannot say that the court's comment shows any misunderstanding of autism. Further, it appears that Mother's actual argument is that the court should have placed more weight on a possible ASD explanation for C.B.'s behavior instead of considering evidence that C.B. displayed attachment behavior to his caregiver and comparing that response to the lack of attachment behavior C.B. exhibited toward Mother. Mother's argument misses the mark. This court does not reweigh evidence. "It is the trial court's role to assess the credibility of the various witnesses, to weigh the evidence to resolve the conflicts in the evidence. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence." (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re S.C. (2006) 138 Cal.App.4th 396, 415.)
Additionally, Mother insists the juvenile court gave too much weight to C.B.'s development reports as evidenced by the court incorrectly stating the regional center prepared the reports instead of Rady's Children's Hospital. There is no doubt that the court was referring to C.B.'s developmental evaluation. Moreover, Mother does not offer any convincing argument that the court's misstatement of the report's author somehow rendered the report unreliable. In essence, Mother again asks us to reweigh the evidence. As we explain above, this we cannot do. (In re S.C., supra, 138 Cal.App.4th at p. 415.)
Mother also claims the court abused its discretion in denying her section 388 petition because the evidence at the hearing "strongly supported" her request for services. To this end, she emphasizes she had 150 days of sobriety, was doing well in her programs, and her drug court report was good. This evidence shows that Mother may be changing, but, in light of the entire record, we are not persuaded the juvenile court abused its discretion in finding Mother had not shown changed circumstances. For example, Mother has a 20-year substance abuse history. Therefore, her 150 days of sobriety represent a changing circumstance but not the required changed circumstance under section 388. (§ 388, subd. (a); see e.g., In re Casey D., supra, 70 Cal.App.4th at pp. 47-49; In re Cliffton B., supra, 81 Cal.App.4th at pp. 423-424 [200 days of sobriety not enough].) Also, at the time of the hearing on the petition, Mother was still living at the FRC, and there is no evidence in the record that she could maintain her sobriety outside of the structure of an inpatient treatment program. Indeed, she was found in possession of methamphetamine only six months before the section 388 hearing.
Further, Mother lacked insight about her substance abuse as a protective issue impacting C.B. During the absconding period, Mother indicated she did not understand the Agency's involvement when she only had one positive drug test before the Agency filed its petition. She did not acknowledge that she put C.B.'s safety at issue by caring for him while under the influence and allowing C.B. to live in a home where marijuana was kept within his reach. And a month before the section 388 hearing, Mother did not admit her substance abuse was a main protective issue, but rather, believed the Agency removed C.B. from her custody because she absconded with him. In other words, the record underscores Mother's lack of insight into the negative impacts of her drug use. Against this backdrop, we cannot determine that the court abused its discretion by finding Mother had not proven changed circumstances.
Likewise, we are not persuaded the juvenile court abused its discretion in concluding Mother had not proved C.B.'s best interests would be served by granting Mother reunification services. Here, Mother argues that the best interest prong was met because C.B.'s counsel agreed that Mother's section 388 petition should be granted. However, she provides no authority for her position. Although C.B.'s counsel's opinion would be a factor for the juvenile court to consider, it is not controlling or dispositive of the issue. This is especially true here, where there are mountainous amounts of evidence that reunification services would not be in C.B.'s best interests.
The concept of a child's best interests " 'is an elusive guideline that belies rigid definition.' " (In re Ethan N. (2004) 122 Cal.App.4th 55, 66, quoting Adoption of Michelle T. (1975) 44 Cal.App.3d 699, 704.) Its purpose is to maximize a child's ability to mature into a stable, well-adjusted adult. (Ibid.)
Here, the court did not abuse its discretion in finding Mother had not shown that granting reunification services would be in C.B.'s interest. When the Agency filed its petition on behalf of C.B., Mother absconded with C.B. for nearly 16 months. Before Mother absconded with C.B., the Agency assessed him and found he appeared happy and healthy. No developmental delays were noted. After C.B. was finally located in early February 2017, however, many concerns were reported on his behalf. A doctor assessed him four days after he was located and noted potential developmental delays. Romero found C.B. had a flat affect, and although he had never met her before, he showed no distress or hesitation in traveling with her from Las Vegas to San Diego. He had minimum verbal skills and could not follow basic instructions. Moreover, he did not answer to his name or to any other verbal cues, he did not say any words, and he wanted to be held constantly despite making minimal eye contact.
A subsequent medical exam uncovered concerns relating to urology and speech delay. A later developmental screening indicated concerns relating to his communication, problem solving, and personal social skills. A social-emotional and behavioral screening and interview of C.B. presented additional areas of concern, including: tantrums and meltdowns, eating or sleeping, extreme emotions or lack of emotions, interactions with others, and difficulties with transitions.
A comprehensive developmental evaluation determined that C.B. was at risk to develop ASD. He further scored in the delayed range in the areas of cognitive development and language development, and his fine motor skills fell below the average range for his age.
It is clear that many developmental and medical concerns on behalf of C.B. were reported after he was located. While it was unclear if his developmental issues were a result of trauma, such issues could have been diagnosed and addressed had Mother taken C.B. to the doctor even once during the absconding period. And once C.B. was located, placed in foster care and given services, he made some developmental progress.
There were other concerns about Mother's treatment of C.B. during the absconding period. C.B. did not seem to enjoy much stability, as he and Mother lived with different friends of hers during the 16-month period. It also was unclear if Mother had basic supplies for C.B. during that time. One of Mother's friends called the Agency during the absconding period and reported Mother had called her to ask for help. Although Mother would not disclose her whereabouts to the friend, she asked the friend for money to buy C.B. diapers and food. The Agency later received a phone call from an anonymous individual, who reported concern for C.B.'s safety. Per the caller, C.B. was sick and Mother refused to get him medical treatment out of fear he would be removed from her custody. The caller also reported that Mother's friends were concerned about C.B.'s safety because Mother had been prostituting.
With this foundation in mind, we are struck by Mother's failure to address these issues with the juvenile court or at least offer some explanation in her briefs here. In addition, Mother did not persuasively explain to the juvenile court below or to this court how C.B.'s best interests would be served by providing reunification services. Mother has a long history of drug abuse, lost custody of her other children, and absconded with C.B. when the Agency began its process on C.B.'s behalf. C.B. shows significant developmental delays and exhibits no attachment behavior with Mother, but does with his caregiver. Simply put, Mother has not shown why it would be in C.B.'s best interest for reunification services to be provided. On the record before us, we cannot say the juvenile court's denial of the Mother's section 388 petition was arbitrary, capricious, or patently absurd. (See In re Stephanie M., supra, 7 Cal.4th at p. 318.)
Finally, we disagree with Mother that In re Kimberly F. (1997) 56 Cal.App.4th 519 (Kimberly F.) and In re Amber M. (2002) 103 Cal.App.4th 681 (Amber M.) warrant reversal here. Mother asserts the factors outlined in Kimberly F. at page 532 show that her section 388 petition should have been granted. Specifically, the factors articulated in Kimberly F. address: (1) the seriousness of the problem that led to the dependency; (2) the strength of relative bonds between the child and both the parent and caregivers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it has actually been cured. (Kimberly F., supra, at p. 532.) However, the court in In re J.C. (2014) 226 Cal.App.4th 503, declined to apply the Kimberly F. factors, holding they do not take into account the shift in focus to a child's needs for permanency after the reunification period has ended. (In re J.C., supra, at p. 527.)
Even assuming the Kimberly F. factors are relevant here, Mother's argument nevertheless fails. Kimberly F. does not alter the substantial deference the appellate court shows a juvenile court's denial of a section 388 petition. Indeed, the court in Kimberly F. recognized it will be the "rare" case in which an appellate court would reverse a juvenile court's denial of a section 388 petition. (Kimberly F., supra, 56 Cal.App.4th at p. 522.) Also, the court's observations occurred in the context of a dependency proceeding in which the children were removed because the family home was dirty and unsanitary (id. at p. 523), and after the reunification period ended, the mother cleaned and maintained her home and engaged in a parenting class and other services, and then filed a section 388 petition seeking return of her children or more reunification services. (Kimberly F., supra, at pp. 524-525.) The appellate court reversed an order denying the section 388 petition, specifically noting that an important factor to be considered was the seriousness of the problem that gave rise to the dependency case. (Kimberly F., supra, at p. 530.) Yet, the court specifically observed that, unlike a dirty house problem, "we doubt that a parent who sexually abused his or her child could ever show a sufficient change of circumstances to warrant granting a section 388 motion. Likewise the parent who loses custody of a child because of the consumption of illegal drugs and whose compliance with a reunification plan is incomplete during the reunification period. It is the nature of addiction that one must be 'clean' for a much longer period than 120 days to show real reform." (Kimberly F., supra, at p. 531, fn. 9.)
Here, the original issue giving rise to the proceedings was Mother's significant drug history, a more serious issue significantly less amenable to rapid remediation than the dirty home case in Kimberly F. Also, the strength of relative bonds between the child and both the parent and caregivers, an appropriate consideration when considering the best interests of the child, were more significant in Kimberly F. than here. (Kimberly F., supra, 56 Cal.App.4th at p. 531.) Finally, the degree to which the problem may be easily removed or ameliorated, and the degree to which it has, is considered under the Kimberly F. factors. (Id. at p. 532.) Here, Mother has not shown a change of circumstance in treating her drug addiction, and thus Kimberly F. does not aid Mother's claim that it was an abuse of discretion to deny her section 388 petition.
Amber M., supra, 103 Cal.App.4th 681, which Mother attempts to distinguish, also is of no help to her. In that case, we affirmed the trial court's denial of the mother's section 388 petition to have her children placed in her care, or, alternatively, that the Agency provide her additional services. (Amber M. supra, at pp. 685, 687.) The initial protective issue related to the mother leaving her seven-month-old child alone in a bathtub full of water, though she also abused drugs, engaged in domestic violence, and neglected all three of her children. (Id. at pp. 684, 686.) We affirmed for a multitude of reasons. The mother did not seem to understand one of her children's psychological difficulties. Her visitation with her children remained supervised for the majority of her children's dependencies. Her substance abuse had begun more than 17 years earlier, and while she had been clean for 372 days, she relapsed twice during the course of the case. Moreover, the children had been out of the mother's care for more than two years and were attached to their caregivers. (Id. at p. 686.)
Here, Mother is like the mother in Amber M., supra, 103 Cal.App.4th 681. While the mother in Amber M. seemed to have a variety of protective issues, the severity of Mother's issues in this case rose to the level of those in Amber M. In the instant action, Mother had a 20-year substance abuse history and left marijuana in reach of young C.B. She cohabitated with the father, who was a convicted felon, known gang member, and substance abuser. The mother in Amber M. was found to have neglected her children, and Mother neglected C.B. during the absconding period. She did not take him to the doctor once during the 16-month period. She also did not seem to have basic necessities for him and did not provide a stable residence.
Moreover, Mother here did not seem to understand C.B.'s developmental difficulties, similar to the mother's lack of understanding of one of her children's psychological difficulties in Amber M. When asked about her understanding of C.B.'s developmental diagnosis, Mother responded, "I understand that he has slow social skills and also speech. He throws tantrums. That's about it." However, C.B.'s diagnosis was far more complex and severe.
Although the Amber M. mother's substance abuse history spanned 17 years, and she maintained 372 days of sobriety at the time she filed her section 388 petition, Mother here has a 20-year substance abuse history and had only maintained 150 days of sobriety by the time of the section 388 hearing. Like the mother in Amber M., supra, 103 Cal.App.4th 681, Mother's visitation in this case remained supervised, and there was concern about ever expanding her visitation out of fear she would abscond with C.B. again. Finally, while he had only been in foster care for a short time since he was located, C.B. was already displaying attachment behaviors toward his caregiver. Simply put, we see no grounds on which to distinguish Amber M. from the instant matter. As such, we find Amber M. instructive and conclude it supports our determination to affirm the juvenile court's denial of Mother's section 388 petition.
DISPOSITION
The order is affirmed.


HUFFMAN, Acting P. J.

WE CONCUR:



NARES, J.



HALLER, J.