Filed 7/25/22 In re D.D. CA4/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a postjudgment order of the Superior Court of Orange County, Jeremy D. Dolnick, Judge. Affirmed. Request for judicial notice. Granted.

Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant B.R.

Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant C.D.

Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Morse, Deputy County Counsel, for Plaintiff and Respondent.

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Appellants, parents of minors D.D. and Z.D., challenge the trial court’s order denying their Welfare and Institutions Code section 388 petitions requesting return of the children or additional reunification services. Appellants argue the trial court abused its discretion by denying their petitions because each showed materially changed circumstances. We disagree and affirm.

FACTUAL AND PROCEDURAL HISTORY

Appellants B.R. (mother) and C.D. (father) are the parents of D.D. and Z.D.[1] The family’s history with dependency proceedings began in 2015 in Los Angeles County, when mother requested D.D.’s removal from her home. D.D. was placed with father and jurisdiction was terminated with full custody to father under a family maintenance plan. In April of 2019 (after Z.D.’s birth), problems began again, this time in Orange County. The family was living in an apartment provided as part of a program aimed at homelessness, which forbade consumption of alcohol. Father was consuming alcohol, which made mother fear the family would be evicted. The parents argued and a fight ensued. Z.D. was sleeping in a separate room during the fight, but D.D. witnessed it directly.

D.D. told social workers the fight was not an isolated incident and reported feeling afraid and sad when his parents fought. Because of the history of dependency proceedings, the parents’ history of arrests, and the existence of a prior restraining order against father to protect mother, D.D. and Z.D. were taken into protective custody. Due to allegations of substance abuse by both parents, including alcohol and methamphetamine abuse, the court ordered both parents to participate in drug treatment and testing programs.

By the six-month review hearing, both parents made moderate progress in their case plans, participating in drug treatment program and counseling, albeit with a few positive tests. In July of 2020, after further progress, the children began a trial visit with mother and father.

On August 12, 2020, father punched mother in the face while father was holding their third child, B.D. Mother defended herself with a knife. The trial visit was terminated as to father. Mother obtained a temporary restraining order to protect herself and the three children from father. The children remained with mother.

In November of 2020, based on the limited success of the trial visit and improved participation by mother in her case plan, the Orange County Social Services Agency (SSA) recommended the court return the children to mother’s custody, under continued supervision. This recommendation was opposed by minors’ counsel. However, before a hearing could be conducted, the trial visit with mother was also terminated. A neighbor reported to SSA that father had been living with mother, despite the temporary restraining order, mother and father drank together, and police had been called for a domestic violence incident between the parents. The neighbor also reported father had been using methamphetamine and marijuana, and mother had coached D.D. to lie to social workers about father’s presence in the home. These reports were partially corroborated, first by neighbors, then by D.D. Eventually, mother admitted father had been present in the home and father admitted using alcohol, marijuana, and methamphetamine.

These events caused SSA to recommend termination of reunification services and placement for adoption. On February 24, 2021, the court adopted this recommendation (but, pursuant to an agreement between SSA and the parents, permitted continued funding of existing services) and scheduled a permanency planning hearing.

We described the events that followed in our earlier decision denying appellants’ writ petitions relating to their youngest child, B.D. SSA requests we take judicial notice of our prior decision. We grant that request and incorporate the following portion of that decision into this one.

“In interviews after the children were detained, mother reported father used methamphetamine, marijuana, and alcohol, and was in a rehabilitation center. Mother also described father as a ‘good dad.’ Mother’s neighbor reported mother was drinking and provided [SSA] with security camera footage of mother entering her home with a box of beer and a bottle of liquor, along with another person.

“In March of 2021, mother’s alcohol testing device reported a ‘tamper’ incident, which mother explained occurred as a result of her pajama pants wedging between her ankle and the device. On May 14, 2021, mother demanded the removal of the alcohol testing device. On May 15, 2021, mother submitted to an on-demand drug test, which was positive for alcohol. Mother explained this positive test as the result of her use of an over-the-counter sleep medication, ZzzQuil. The testing laboratory indicated that use of this type of over-the-counter mediation could not create this type of positive test result. Mother had the alcohol testing device re-applied on June 4, 2021.

“The . . . hearing began on October 20, 2021. Approximately one month earlier, the social worker interviewed mother and father regarding their progress. Mother reported she was on step two of the 12-step program, but had stopped attending meetings, preferring her outpatient program. Father also reported being on step two of the 12-step program, but could not identify what that step was. Father indicated he would like to get his children back and return to mother. Approximately one week before the hearing, the social worker interviewed mother again. In this interview, mother indicated she felt the children should not have been removed, noting that father’s presence in her home in violation of the court’s order was ‘not that serious,’ and that ‘there are worse things that could have happened.’

“At the hearing, mother testified that: she had not consumed alcohol for years; she did not intend to reunify with father and had not contacted him in approximately a year; she had attended a 12-step meeting the night before her testimony, and was on step two, but could not recall how many meetings she had attended in the prior month or what the step meant; and another woman had agreed to be her sponsor the day before her testimony.

“Mother described her participation in an outpatient substance abuse program, but denied being an addict. Mother denied being presently powerless over alcohol, contending her problems with alcohol were confined to earlier years, before her children were born. Mother denied minimizing the seriousness of the violation of the court’s order to the social worker, but admitted repeatedly allowing father to visit or live in her home at various times in 2015, 2019, and 2020 in violation of various restraining orders. Mother testified she would have no concerns with father taking the children overnight for weekends, and described father as a ‘good dad.’

“Father testified he was a recovering addict and had been clean since January 13, 2021. Father admitted abusing mother while using drugs and alcohol but denied that the domestic violence had put his children in danger. Father testified he frequently attended alcoholics anonymous meetings, and was on step two of the 12 steps, but did not have a record of all the meetings he attended. Father stated he had consistently tested negative for alcohol, methamphetamine, and other drugs in his program, but had tested positive for marijuana for a period of time as it left his system.

“Father asserted it was safe to return the children to mother, and that while he was not immediately aiming to reunite with mother, he thought he might try at some future time, after having made more progress. Father denied having contact with mother since the time his children were taken away.

“Father admitted that after a prior reunification with [D.D.], in which he received full custody and mother was required to have only supervised visitation, father had violated the court order and permitted mother to see [D.D.] Father also admitted violating court orders by seeing his children when they were in mother’s care and visitation was not permitted and telling [D.D.] to lie about his visits. Father testified that on one visit, [D.D.] told him he did not want to be adopted and regularly told father he wanted to return to mother and father. Father testified he needed his children in his life to remain sober. Father acknowledged that he had just been ‘going through the motions’ when participating in his domestic violence and parenting classes in connection with the earlier dependency matters involving his older children in 2015 and 2019, but contended his participation this time was more genuine.

“The social worker testified: mother had delayed beginning participation in a 12-step program, and then had stopped after attending about seven meetings; mother had never acknowledged to the social worker that she was an addict, had a substance abuse problem, or needed help, and that she told the social worker that her substance abuse program was just something the court had ordered her to do, rather than something she actually needed; and she believed, based on mother’s statements and behavior (including minimization and blaming others), that mother had a pattern of attending classes with good attendance and participation, but failing to internalize those lessons and apply them in her life.

“The social worker also asserted she suspected mother and father had continued contact, despite their denials. The social worker cited two principal reasons for this belief. First, mother and father had made very similar novel requests of the social workers, unprompted, at or near the same time, suggesting they were coordinating or communicating. Second, father sent a text message to a caregiver using the word ‘babe’ and discussing money. Father told the caregiver it was an accident, and that the message was not intended for the caregiver. When the social worker asked father about the text message, father claimed his phone auto-corrected the message from ‘bro’ to ‘babe.’ The social worker described father’s reaction to this discussion as ‘very upset’ and ‘angry.’ The social worker also testified that father told her he intended to get his family back together, including mother.

“The social worker also described various comments mother made throughout the dependency process, in which mother did not accept responsibility, minimized the problems, or blamed [SSA], the court, or father for the situation. The social worker testified mother had missed visits and late visits with her children, and had ended visits early, and that these issues persisted throughout the dependency process. Finally, mother had a difficult time managing all three of her children at once on visits, and the caregiver frequently had to step in to avoid problems. The social worker described mother as ‘not consistent or reliable’ in her visitation.

“The social worker testified more positively regarding father’s visitation. She described father as consistent and engaged. However, he also occasionally struggled to manage all three children at once. Moreover, on one occasion, father lost his temper with [D.D.] during a visit. The social worker stated father minimized the degree of harm to the children resulting from the situation, and had expressed the opinion that the problems would go away when the children were returned. The social worker testified that father had been through substance abuse treatment twice in the past and had been sober briefly after each time, but had relapsed on both occasions. The social worker stated she had interviewed [D.D.], who had denied telling father he did not want to be adopted.” (B.R. v. Superior Court (Apr. 27, 2022, G061017) [nonpub. opn.].)

Because this case involves D.D. and Z.D., rather than mother and father’s youngest child, and because the record in this appeal includes material that was not part of the record in the prior case, we add the following notes to the summary quoted above. Shortly before commencement of the hearing, a social worker asked D.D. what he thought should happen to his younger sisters. D.D. replied they should stay with the caretakers to avoid “the violence.” D.D. also indicated he would prefer to live with his mother. D.D. and Z.D. both refer to their caretakers as “mom and dad.” D.D. told his therapist he was afraid of his “‘mom and dad fighting and throwing knives down the stairs.’”[2]

In an interim report prepared and submitted during the trial, a social worker reported that D.D. told her he felt his sisters should stay with the caregivers “[b]ecause it’s safe, because I wouldn’t want my sisters getting hurt by anyone or anything.” He added, “Because it’s better than my dad somehow breaking in and fighting again.” D.D. also told the social worker that father “lied” when he testified that D.D. told him D.D. did not want to be adopted. D.D. told the social worker, “Tell the judge this, the only option I had is to get adopted, because what if something happened to us. I think it’s only safe. I wouldn’t want my sisters or us to get hurt.” Upon being prompted, D.D. clarified he thought all three children should be adopted.

At the conclusion of trial, the court terminated mother and father’s parental rights and denied their petitions under Welfare and Institutions Code section 388[3] for return of D.D. and Z.D. or reinstatement of reunification services. Mother and father timely appealed.

DISCUSSION

On appeal, mother and father contend the trial court erred by denying their section 388 petitions, and by terminating parental rights in light of the meritorious nature of their petitions. Mother and father both contend they showed material changes in the circumstances that gave rise to juvenile court jurisdiction. We review denials of petitions under section 388 for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

Section 388 petitions must be supported by a material change in circumstances and a showing that the proposed modification of the court’s order would be in the best interests of the child. (In re N.F. (2021) 68 Cal.App.5th 112, 120.) “[A]fter the court has bypassed or terminated reunification services and set the matter for a section 366.26 hearing, the focus of the case shifts from the parents’ interest in the care, custody, and companionship of the child to the needs of the child for permanency and stability. [Citations.] A court entertaining a section 388 petition at this stage in the proceedings ‘must recognize this shift of focus in determining the ultimate question before it, that is, the best interest of the child.’” (Id. at p. 121.) “In the context of a substance abuse problem that has repeatedly resisted treatment in the past, a showing of materially changed circumstances requires more than a relatively brief period of sobriety or participation in yet another program.” (Ibid.)

Here, the trial court made three findings of detriment to the children: (1) “both parents’ lack of progress in their sobriety”; (2) both parents’ “lack of understanding regarding the seriousness of the issues of domestic violence and their avoidance of those issues in the future”; and (3) the parents’ “inability to [have] positive interactions during visits” with the children. The trial court found that “both parents may have changing circumstances, but have not demonstrated they have, in fact, changed.” Despite the parents’ progress, “both parents still have a long road ahead of them before they would be in a position for a safe return of the children.”

The trial court also separately concluded that returning the children or reinstating reunification services would not be in the best interests of the children. The court noted the six-year dependency history of the family, and the constant changes in circumstances that entailed: “[D.D.] has gone from mom to dad to fosters, back to parents, then mom alone, and then back to fosters. [Z.D.]’s been along the same road for her short life.” The court found this inconsistent with the children’s need for “permanency and stability.”

Mother and father attack the trial court’s ruling on all three issues, but we need consider only one to affirm: substance abuse. Both mother and father failed to progress beyond the second step of their court mandated 12-step programs, and neither could articulate what that second step was. There was evidence of a relapse (at least as to alcohol) by mother just a few months before the trial, and mother had obtained a sponsor for her 12-step program just the day before her testimony. Meanwhile, Father’s substance abuse issues were many years old, and had “repeatedly resisted treatment in the past.” (In re N.F., supra, 68 Cal.App.5th at p. 121.) By the time of trial, the evidence reflects neither parent had made sufficient progress in substance abuse recovery to show “more than a relatively brief period of sobriety or participation in yet another program” (ibid.), which is insufficient to constitute a material change in circumstances. In the absence of such a showing, we cannot conclude that the trial court abused its discretion.

DISPOSITION

The postjudment order is affirmed.

SANCHEZ, J.

WE CONCUR:

O’LEARY, P. J.

GOETHALS, J.

[1] Mother and father are also the parents of nonparty B.D., who was the subject of a separate dependency proceeding tried alongside the present case.

[2] This appears to have been a reference to mother and father, not to the caregivers.

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