Filed 12/19/17 In re J.W. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE


In re J.W., a Person Coming Under the Juvenile Court Law.

CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU,
Plaintiff and Respondent,
v.
STEPHANIE F. et al.,
Defendants and Appellants.




A151029

(Contra Costa County
Super. Ct. No. J15-00992)


Appellants, Stephanie F. (Mother) and Jason W. (Father), are the parents of J.W. (Minor), born November 15, 2014. Appellants contend the juvenile court erred in denying Mother’s Welfare and Institutions Code section 388 motion seeking reinstatement of reunification services with Minor and delay of termination of parental rights. We affirm.
BACKGROUND
On September 24, 2015, respondent Contra Costa County Children and Family Services Bureau (Bureau) filed a section 300 petition alleging that Minor was within the jurisdiction of the juvenile court on the grounds that Mother and Father were involved in a long term physically violent relationship, had substance abuse problems, and resided in uninhabitable conditions. The Bureau’s detention report explained that police conducting a health and safety check on September 22 encountered deplorable conditions in a mobile home inhabited by Minor and her parents. There was no running water or electricity, the toilet was “full of feces,” and there were dirty diapers “everywhere.” Minor was “very tired and filthy” and had a serious diaper rash. The property where the parents’ mobile home was parked had a history of drug dealing. Minor was taken into custody.
The detention report also relayed that, following the removal of Minor, Mother was angry at Father and tried to break the window of their mobile home with a tool. A witness reported Mother screamed, “I’m going to kill you this time!” Father threw Mother to the ground and drove away. The Concord Police Department had records of eight prior domestic violence incidents involving Father; Mother was involved in four of the prior incidents. The Bureau’s detention report also described a June 2015 referral based on an incident during which Mother broke the windshield of a car with a metal rod because she was angry with Father.
On September 25, 2015, the juvenile court ordered Minor detained, and, in January 2016, Mother and Father pled no contest to an amended petition still based on their physically violent relationship, their substance abuse, and the uninhabitable living conditions.
The Bureau’s disposition report further detailed the parents’ history of domestic violence. That history included Father biting Mother, kicking her in the back of the head, knocking her to the ground with a bicycle while she was pregnant, attempting to strike her with a tire iron, punching her in the mouth, and throwing her down against a stove. The disposition report stated Minor was doing well in the care of her maternal great uncle and his husband. Mother and Father were visiting on a weekly basis. The trial court adjudged Minor a dependent child.
In an August 2016 status review report, the Bureau recommended terminating reunification services to the parents and setting a section 366.26 hearing. Mother had submitted to only one random drug test; had failed to engage in individual therapy, domestic violence services, or substance abuse treatment; and had been dropped from a parenting class after attending only one session. Mother, who was pregnant with another child by Father, claimed Father had hit her in the head with a rake. Father claimed he only “tapped” Mother with the handle of the rake after she had stabbed him with a knife; Father showed the social worker a half-inch cut on his torso. The Bureau’s report also described a March 2016 car crash which Mother alleged was caused by Father grabbing the steering wheel while she was driving. In June 2016, according to a police report, Father hit Mother’s leg with a thrown metal object and Mother chased Father down the street with a shovel.
Despite the continued violence between the parents and the failure to engage with services, the Bureau reported that visitation with Minor had been consistent and had gone well overall. During the reporting period, the parents had 23 visits; Mother missed three visits and Father missed seven visits. Mother was affectionate and nurturing, and Minor appeared to enjoy the visits.
In August 2016, following a contested review hearing, the juvenile court set a section 366.26 hearing for November 15. On the day of the section 366.26 hearing, Mother filed a section 388 motion seeking further reunification services. The motion stated Mother had completed a residential treatment program on October 4 and then entered another residential program, where she was still living. Mother had attended 46 AA/NA meetings since July 8, and she had obtained a one year restraining order against Father (until October 2017). The court continued the section 366.26 hearing, and in March 2017 both the section 366.26 and section 388 matters were heard in a combined hearing.
The Bureau opposed Mother’s request for further reunification services. In a memorandum, the Bureau’s social worker opined Mother was not able to provide Minor a stable home and it was unclear when Mother would be able to stabilize her life. Mother had been consistent in her visitation, but Minor was not affectionate with Mother. Minor’s caregiver reported that after the visits were reduced to once a month in August 2016, Minor became more emotionally stable and had fewer night terrors. The Bureau’s section 366.26 report requested termination of parental rights. Mother continued to reside in a residential drug treatment program with her new baby. The Bureau anticipated filing a petition in the near future with respect to the new baby, with the goal to keep the baby with Mother as long as she remained in residential drug treatment. Father was incarcerated. Minor had lived with her maternal great uncle and his husband for 17 months and they had “expressed a strong commitment to adopt” her. Minor appeared “very connected” to her caregivers, and supervised visitation demonstrated that connection was stronger than her bond with Mother.
Mother testified at the March 2017 hearing. She said she had graduated from a second residential treatment program in December 2016 and was living in a family shelter that helps families get permanent housing. She attended a mother’s outpatient program five days a week. She believed her bond with Minor had been undermined by the reduction in visitation. Regarding the bases for the Bureau’s involvement, Mother testified her conflict with Father mostly was not physical. She previously regularly used marijuana and methamphetamine; she did not use them in Minor’s presence, although she would be under the influence around Minor. She had been sober since July 2016. She and Father had made bad choices due to drug use and homelessness. The mobile home where they lived with Minor usually was clean.
The Bureau and Minor’s counsel argued against Mother’s section 388 motion, and the juvenile court denied the motion. The court found that Mother was not credible, she had a lot more to do to stabilize her life, she lacked insight into the problems that resulted in Minor’s removal, and Mother and Father might reunite when Father is released from custody. The court commented, “[Mother] started improving when [F]ather went into custody. I have no feeling whatsoever of confidence that this—once [F]ather gets out, they will not get back together. I have watched them in court and I have concern.” The court observed Minor was “very bonded” to her current caregivers, and the court found it was not in Minor’s best interest to be removed from their care or for there to be delay in determination of a permanent plan. The juvenile court then proceeded to terminate Mother’s and Father’s parental rights to Minor. Both parents appealed.
DISCUSSION
Mother contends the juvenile court abused its discretion in denying her section 388 petition to vacate the section 366.26 hearing and grant reunification services with Minor. We reject the claim.
Section 388 permits a parent to petition the juvenile court to change, modify, or set aside any previous order made in the dependency proceeding based on changed circumstances. “The parent bears the burden of showing both a change of circumstance exists and that the proposed change is in the child’s best interests.” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) “Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability. . . . The court need not continue to consider the issue of reunification at the section 366.26 hearing. The burden thereafter is on the parent to prove changed circumstances pursuant to section 388 to revive the reunification issue.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) In this context, section 388 is effectively an “ ‘escape mechanism’ ” that allows the court to consider new information at the section 366.26 hearing. (Ibid.) Marilyn H. explained that the scheme protects a parent’s due process rights while recognizing a dependent child’s need for stability: “The parent’s interest in having an opportunity to reunify with the child is balanced against the child’s need for a stable, permanent home. The parent is given a reasonable period of time to reunify and, if unsuccessful, the child’s interest in permanency and stability takes priority. Even after the focus has shifted from reunification, the scheme provides a means for the court to address a legitimate change of circumstances while protecting the child’s need for prompt resolution of his custody status.” (Ibid.; see also In re Stephanie M. (1994) 7 Cal.4th 295, 317 [“there is a rebuttable presumption that continued foster care is in the best interests of the child”].) “On appeal, we will not reverse the decision of the juvenile court unless the parent establishes the trial court abused its discretion.” (In re Casey D., at p. 47.) “ ‘ “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.” ’ ” (In re Stephanie M., at pp. 318–319.)
In the present case, we presume Mother met her burden of showing changed circumstances: the juvenile court expressly relied on the best interests factor in denying the section 388 motion, and Mother’s sobriety and separation from Father do seem to constitute changed or changing circumstances. But the court did not abuse its discretion in finding Mother had not shown further reunification services were in Minor’s best interests. Mother’s section 388 motion was filed on the day of the originally scheduled section 366.26 hearing. The focus had shifted to Minor’s need “for permanency and stability,” and the juvenile court was required to consider Minor’s “compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that which allows the caretaker to make a full emotional commitment.” (In re Marilyn H., supra, 5 Cal.4th at pp. 306, 309.) By the time of the hearing on the section 388 motion, Minor had resided with her maternal great uncle and his husband for 17 months and had formed a strong primary attachment to them.
Further, Mother failed to persuade the juvenile court she could provide a stable home for Minor in the near term. Mother presented evidence she had made substantial progress in stabilizing her life, but she had not demonstrated an ability to maintain a stable situation while living independently. Moreover, although Mother obtained a restraining order against Father, she did not demonstrate she would be able to maintain that separation following expiration of the order and Father’s release from incarceration. The juvenile court did not find Mother’s testimony credible, and Mother minimized the extent of the violence in her relationship with Father.
Mother urges this court to apply the factors articulated in In re Kimberly F. (1997) 56 Cal.App.4th 519, at page 532, including “(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” At the outset, we note Kimberly F. has been criticized as failing to “take into account” the shift in focus to permanency and stability after termination of reunification services. (In re J.C. (2014) 226 Cal.App.4th 503, 527.) In any event, the Kimberly F. factors do not favor Mother. The dependency was due to serious substance abuse, domestic violence, and neglect of Minor; those challenges were not easily overcome and Mother had only addressed them in part; and Minor demonstrated a strong primary attachment to her caregivers, who had cared for her for 17 months (she was removed from Mother’s custody when she was 10 months old). Unlike Kimberly F., the present case is not simply a “dirty house” case. (Kimberly F., at p. 532 [“A dirty house does not pose as intractable a problem as a parent’s drug ingestion, or physical and sexual abuse, for a child’s ‘best interests.’ ”].)
In conclusion, the juvenile court did not abuse its discretion in concluding Mother failed to demonstrate further reunification services, and the accompanying delay in adoption of a permanent plan, was in Minor’s best interests. “[D]elaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child’s best interests. [Citation.] ‘ “[C]hildhood does not wait for the parent to become adequate.” ’ ” (In re Casey D., supra, 70 Cal.App.4th at p. 47.)
DISPOSITION
The juvenile court’s orders are affirmed.








SIMONS, J.



We concur.




JONES, P.J.




BRUINIERS, J.