Filed 3/18/22 In re D.V. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

G.L. (Mother) appeals from a juvenile court order denying her petition under Welfare and Institutions Code section 388 for additional visitation with her daughter, D.V.[1] Mother contends the court abused its discretion in denying her petition. We affirm.

Factual and Procedural Background

A. The original and subsequent petitions

In October 2018, the Contra Costa Children and Family Services Bureau (Bureau) received a referral concerning a family living in unfit conditions in a recreational vehicle (RV) and the children playing unattended on the side of a busy road. Inside the RV, Bureau social workers noted the stench of urine, exposed electrical wiring over the sleeping area, and trash and items covering the floor. The social workers detained two children inside—D.V. and P.V.—and the family’s third child, T.V. D.V., then only three years old, said the RV had no water and she urinates in a bucket. P.V.—who was slightly older than D.V.—did not speak in complete sentences and had minimal vocabulary.[2]

The Bureau filed dependency petitions under section 300, subdivision (b)(1), alleging Mother and the father failed to provide adequate supervision and a safe and sanitary home.[3] The juvenile court detained the children and ordered reunification services. In November 2018, the court sustained the allegations. In May 2019, the court sustained allegations in a subsequent petition that Mother had a drug problem, and that she failed to protect the children by violating a Michigan court order and permitting the children to have contact with the father, who has an extensive history of sexually abusing his other children.

B. The 6- and 12-month review hearing

In November 2019, the Bureau authored a status review report noting that Mother attended visits and was “attentive, nurturing, engaging, and the girls appear[ed] comfortable in mother’s presence.” All three children wanted to reunify with her. Mother completed a parenting course, attended domestic violence courses, and graduated from an inpatient drug treatment program. But, due primarily to concerns about her ability to stay away from father, the Bureau recommended termination of services.

In early 2020, however, the Bureau instead recommended that services be continued for Mother. The Bureau noted that Mother had obtained a job and made significant progress in her services. Specifically, she consistently attended therapy, explored the risk that the father presented, and developed a safety plan to follow through with a restraining order she obtained against the father. Mother attended domestic violence groups and consistently tested negative for drugs. She attended all of her visits and was “engaged, nurturing, social, attentive, and the children responded well.” The Bureau also reported that the children’s foster parents were interested in providing them permanency.

In January 2020, at a contested review hearing, the juvenile court extended reunification services, increased Mother’s visitation to a minimum of two hours per week, which could be unsupervised, and granted the Bureau authority to allow overnight visits.

C. The 18-month hearing

In early April 2020, the Bureau recommended termination of services for T.V., but family maintenance for P.V. and D.V. The Bureau’s report indicated that Mother had obtained housing and consistently tested negative for substances, except for a single positive test for alcohol in January 2020. The children had several overnight visits, and though T.V. objected to reuniting with Mother, P.V. and D.V. wanted to reunite with her.

Later in April, the Bureau again changed course and recommended termination of services and setting a section 366.26 hearing for all children out of concern that Mother was unable to prioritize the children and that she might kill herself and the children. According to the Bureau, Mother was ignoring COVID-19 guidelines and allowing other people to stay in her home while the children were there. Mother explained she needed friends because she felt suicidal and was struggling with T.V.’s rejection of a relationship with her. The Bureau temporarily scheduled video visits only.

Leading up to the 18-month hearing, Bureau memoranda indicated that Mother consistently tested negative for substances, attended therapy, and participated in virtual visits with the children, during which both Mother and D.V. were engaged. In-person visits resumed in June 2020, and the children appeared to respond well. The family therapist reported that P.V. and D.V. appeared to have a “ ‘good connection’ ” with Mother.

At the 18-month review hearing for P.V. and D.V. in November 2020, the Bureau reported that the parties had agreed to setting a section 366.26 hearing with guardianship as the permanent plan, but requested authority to allow overnight visits for up to 30 days. Mother’s counsel explained the overnight visits would allow Mother to prove she could care for the children then file a section 388 petition for their return. Despite that reported agreement, counsel for P.V. and D.V. objected to overnight visits, indicating the children had been acting out after visits. Ultimately, with the agreement of the parties, the court terminated reunification services; set the section 366.26 hearing for March 2021; granted the Bureau authority to allow seven nights of overnight visitation; and set an interim review for December 31, 2020 to consider increasing overnight visits.

D. The interim hearing

By late December 2020, the Bureau reported that Mother continued to test negative for substances and consistently attended therapy, but that she was being charged with misdemeanor embezzlement. From late November into December 2020, the children were having four hours of unsupervised visits twice a week, but they began having “increased behavioral issues” after these visits. For instance, P.V. started breaking the rules, experiencing more frequent incontinence, and seemed anxious at Mother’s home. D.V. exhibited increased physical and verbal aggression toward P.V., had more tantrums, and was not following rules. D.V. wanted to live with Mother, and Mother reportedly told her to act bad so she could be with her. Concerned about the children’s “regression,” the Bureau reduced visitation to two hours per week. On December 31, 2020, the court adopted “nunc pro tunc” to the date of the 18-month hearing the order that visitation with Mother would be for

a minimum of two hours per week, with Bureau discretion to allow unsupervised visits.

E. The section 388 petition and the section 366.26 report

On March 3, 2021, Mother filed materially identical section 388 petitions, one for D.V. and one for P.V., requesting modification of the court’s latest visitation order and its order terminating reunification services based on changed circumstances. As relevant here, in the form petition for D.V., Mother sought an order for “unsupervised visits increase[d] to include overnights.” She contended such an order would be better for D.V. because: Mother had a bond with D.V.; D.V. did well during visits; Mother had addressed the issues that brought about the dependency; and Mother wanted to parent her child. In response to the question of what happened that should change the court’s mind, Mother wrote: “When [Mother] had four hours of unsupervised visits in addition to the family therapy, [D.V.] exhibited acting out behaviors. Once the visits were reduced to the minimum [D.V.] has been agreeable and not exhibiting the previous concerning behaviors.”

The Bureau’s section 366.26 report recommended that the juvenile court grant the foster parents legal guardianship and that future visitation between Mother and the children be a minimum of once per month. The report noted both P.V. and D.V. were having increased behavioral issues after unsupervised visits with Mother began in November 2020 (see ante, part D). These negative behaviors began to improve once visits with Mother decreased.

F. The section 388 and section 366.26 hearing

On March 11, 2021, the juvenile court held a hearing and first considered Mother’s section 388 petitions. As to those petitions, the issue appeared limited to the frequency of Mother’s visitation and did not include whether guardianship was the appropriate permanent plan. The court considered the Bureau’s section 366.26 report as well as the testimony of Mother, the social worker who had been on the case since May 2019, and one of the foster parents.

Among other things, the foster parent testified that when visits with Mother increased, both P.V. and D.V. displayed more behavioral issues. P.V. talked back, did not want to attend school, and was more incontinent. D.V. acted out by getting angry, lying frequently, and having tantrums. The foster parent testified that D.V.’s behavioral issues improved when visits decreased. D.V. said she wanted to spend more time with Mother, but did not say her behavior was due to that. Mother testified she had not learned of any such behavioral issues until shortly before the hearing when the visits were changed. During family therapy, when Mother asked D.V. if she knew why she was acting up, D.V.’s main answer was “ ‘I don’t know,’ and ‘I want to come home to be with you.’ ”

The juvenile court denied Mother’s section 388 petitions concerning visitation with D.V. and P.V., indicating it was doing so primarily because the reduction in visitation had resulted in improved behavior and emotional control for the children. Noting that services provided by the Bureau would largely cease after the section 366.26 hearing, the court indicated its belief that increasing visitation with Mother would not be beneficial to the children in the long term.

The court then moved on to the section 366.26 portion of the hearing, and ultimately set a continued hearing date to conclude it. Mother requested that the court order visitation as proposed by the Bureau, i.e., once a month for two hours. At the continued hearing on April 29, 2021, the court appointed the foster parents as P.V. and D.V.’s legal guardians, granted Mother a minimum of one two-hour visit per month that may be supervised, and dismissed the dependency. Mother appealed.

Discussion

Mother argues the juvenile court abused its discretion when it denied her section 388 petition for additional visitation with D.V. She claims that she established both a significant change in circumstances and that increased visitation was in D.V.’s best interest. With regard to changed circumstances, Mother points out that she completed an extensive case plan, was employed and living a safe and sober life, and had secured housing. Further, she claimed, she had successful unsupervised visits in early 2020, and D.V. wanted to live with her. She contended her request for increased visitation would be in D.V.’s best interest because D.V. regularly expressed her desire to have increased visitation and to live with Mother, and there were no reports of D.V. exhibiting behavioral issues while in Mother’s care.[4]

Section 388, subdivision (a)(1), provides that any parent with an interest in a dependent child “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 . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.” The petition must “set forth in concise language any change of circumstance or new evidence that is alleged to require the change of order or termination of jurisdiction.” (§ 388, subd. (a)(1).) “If it appears that the best interests of the child . . . may be promoted by the proposed change of order . . . , the court shall order that a hearing be held . . . .” (Id., subd. (d).)

The burden of showing that the requested modification should be granted is on the parent. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)

“It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior

order would be in the best interests of the child.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) Furthermore, the change of circumstances or new evidence “must be of such significant nature that it requires a setting aside or modification of the challenged prior order.” (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485.) “As to the best interests element, after the court has . . . 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.” (In re N.F. (2021) 68 Cal.App.5th 112, 121.)

The determination of the juvenile court will not be disturbed unless

a clear abuse of discretion is established. (In re Stephanie M., supra, 7 Cal.4th at p. 318.) “ ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ ” (Id. at pp. 318–319.)

As the Bureau points out, the evidence Mother identifies—i.e., her progress with her case plan, living a safe and sober life, finding employment, securing housing, and D.V. wanting more time with her—were not actually new or changed circumstances that occurred between the time visitation was reduced in late 2020 and the time of the section 388 hearing in March 2021. Because such evidence reflected what Mother had already accomplished before that 18-month period, they provided no basis for a modification based on new or changed circumstances.

In any event, Mother fails to show the trial court abused its discretion in determining that her request for increased visitation would not be in D.V.’s best interests. Both the Bureau social worker (who had been assigned to the case since 2019) and D.V.’s foster parent testified at the section 388 hearing that D.V.’s behavioral and anger issues increased with the increase of Mother’s visitation in late 2020, and thereafter improved when the visits decreased. Additionally, the social worker testified that after visits with Mother were reduced, D.V. began doing better at her day program with school and with listening at her foster home, and was also more able to discuss her behavior after having fits. The Bureau’s section 366.26 report echoed the foregoing testimony.

Moreover, prior to the section 388 hearing, Mother agreed to the termination of reunification services and to guardianship as the permanent plan. At the section 388 and section 366.26 hearing, the Bureau indicated that services like family therapy would not continue after the section 366.26 hearing. The court properly could and did take this impending loss of services into account in determining that increased visitation would not be

in D.V.’s best interests under the circumstances.

Finally, Mother emphasizes the evidence that D.V. consistently expressed wanting to live with her and spend more time together. But that evidence alone does not compel a conclusion that increased visitation with Mother was in D.V.’s best interest. Ultimately, we cannot say the court abused its discretion by denying Mother’s section 388 petition.

Disposition

The order of the juvenile court denying Mother’s petition is affirmed.

_________________________

Fujisaki, Acting P. J.

WE CONCUR:

_________________________

Petrou, J.

_________________________

Rodríguez, J.

A162681

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

[2] A medical provider who later assessed P.V. concluded she had a history of trauma and neglect and “ ‘learning challenges.’ ”

[3] Because the father is not party to this appeal, and because this appeal concerns only the denial of the section 388 petition as to D.V., our recitation of the facts will focus on those concerning primarily Mother and D.V.

[4] In passing, Mother’s briefing suggests she is also challenging the juvenile court’s ultimate reduction of visitation at the section 366.26 hearing to two hours per month. But Mother does not clearly direct her arguments to the order made at the section 366.26 hearing, so that argument has not been properly briefed. (Winslett v. 1811 27th Avenue, LLC (2018) 26 Cal.App.5th 239, 248, fn. 6.) In any event, after denial of her section 388 petition, Mother asked the court to order two hours of visitation once per month. The court granted her request at the section 366.26 hearing. Under these circumstances, Mother appears to have forfeited her challenge to that visitation order. (In re Aaron B. (1996) 46 Cal.App.4th 843, 846.)