Filed 6/20/17 In re Madeline I.. CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re MADELINE I. et al., Persons Coming Under the Juvenile Court Law.

KINGS COUNTY HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

TIFFANY I. et al.,

Defendants and Appellants.

F074226

(Super. Ct. Nos. 15JD0317, 15JD0319)


OPINION

APPEAL from a judgment of the Superior Court of Kings County. Jennifer Giuliani, Judge.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant Tiffany I.
Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant Aaron O.
Colleen Carlson, County Counsel, and Rise A. Donlon, Deputy County Counsel, for Plaintiff and Respondent.
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In August 2016, the juvenile court conducted a contested hearing at which it denied modification petitions filed by appellants Tiffany I. (mother) and Aaron O. (father) (collectively, the parents) pursuant to Welfare and Institutions Code section 388 concerning their daughters, now five-year-old Madeline and one-year-old Emma, and terminated appellants’ parental rights pursuant to section 366.26. Mother contends the juvenile court’s order denying her section 388 petition was error and must be reversed along with its order terminating her parental rights. Father joins mother’s opening brief only to establish that a reversal of the order terminating her parental rights requires reversal of the same order as to him. We affirm.
PROCEDURAL AND FACTUAL SUMMARY
Protective Custody and Dependency Petition
In August 2015, the Kings County Human Services Agency (agency) took then four-year-old Madeline into protective custody after finding her in the care of her maternal grandfather (the grandfather) who was under the influence of methamphetamine and staying with Madeline in a known drug house. Madeline had various sores on her body in various stages of infection and healing and the home they were staying in smelled strongly of urine. There was no carpet in the house, just cement floors, and there were exposed wires accessible to Madeline. There were also dirty clothes scattered on the floor and dogs roaming in and out of the residence.
The grandfather told the emergency response social worker that his girlfriend lived at the residence and he was visiting. Mother left Madeline in his care a couple of days before, and he and Madeline had spent multiple nights at his girlfriend’s house. He and his girlfriend admitted using methamphetamine the night before. He said mother had another child, Emma, who was in her care. The following day, a social worker took then three-month-old Emma into protective custody after the parents tested positive for methamphetamine and marijuana.
The agency filed an original dependency petition, alleging the children came within the juvenile court’s dependency jurisdiction under section 300, subdivision (b) (failure to protect) because the parents cared for them while under the influence of methamphetamine and marijuana, placing the children at a substantial risk of suffering serious physical harm or illness. Specifically, the agency alleged mother left Madeline in the grandfather’s care while he was under the influence of methamphetamine, knew or reasonably should have known the grandfather used drugs and resided in dirty homes, and did not have stable housing for the children. It further alleged the parents tested positive for methamphetamine and marijuana during a field sobriety test the next day.
The juvenile court detained the children pursuant to the petition and the agency placed them in separate foster homes in Kings County.
Jurisdiction/Disposition Hearing
In September 2015, at a combined jurisdiction/disposition hearing, the juvenile court exercised its dependency jurisdiction over the children, removed them from parental custody and ordered the agency to provide the parents six months of family reunification services, consisting of mental health, parenting and substance abuse services and weekly, supervised visitation. Mother’s services plan also required her to complete a domestic violence class for victims.
The juvenile court advised the parents that Emma’s age when taken into protective custody (under three years) rendered the children a sibling group and that the law limited reunification services to six months for such children. The court warned them not to delay initiating their services because six months would go by fast. The court also explained that, by the end of those six months, it had to find that the parents participated regularly and made substantive progress in their court-ordered services or it would terminate reunification services and proceed to permanency planning.
Six-month Review and Contested Hearing
By March 2016, the time set for the six-month review hearing, mother had not completed any of her court-ordered services and hadn’t started some. Neither had father. According to the agency, they did not seem to understand the urgency of resolving the problems that necessitated the children’s removal and were unable to provide the children stable and safe housing. Consequently, the agency recommended the juvenile court find it would be detrimental to return the children to parental custody and terminate reunification services for both parents.
On April 5, 2016, the juvenile court conducted a contested six-month review hearing. Mother testified she completed a mental health assessment on April 1, 2016, but the agency had not yet received the report. She acknowledged under questioning by county counsel that the agency referred her multiple times for a mental health assessment beginning in December 2015, but she had not made herself available. She explained that she was living in Tulare County in December 2015, but did not know where to go for her assessment and did not have a vehicle. In January 2016, she moved to Kings County and the agency again referred her for an assessment. However, she did not keep the appointment because she was not medically insured in Kings County. She applied to have her insurance transferred from Tulare to Kings County as soon as she moved into the county in January 2016, but it did not take effect until April 2016. Mother testified she was not able to enroll in a domestic violence class, citing the same problem with her insurance. She completed only six weeks of a 16-week parenting program and an early recovery skills program as part of a substance abuse program. She attended Alcoholics/Narcotics Anonymous (AA/NA) meetings, regularly visited the children and tested negative for drugs. She lived in a three-bedroom house she shared with father, his brother and his brother’s fiancé. She offered no excuse for her delay in initiating her services.
At the conclusion of the hearing, the juvenile court terminated reunification services for both parents, set a section 366.26 hearing for July 2016, and reduced visitation to once a month for an hour. Neither parent filed an extraordinary writ petition challenging the juvenile court’s setting order. (Cal. Rules of Court, rules 8.450–8.452.)
Parents’ Section 388 Petitions
In July 2016, prior to the section 366.26 hearing, mother filed a section 388 petition asking the juvenile court to vacate the section 366.26 hearing and return the children to her custody or reinstate her reunification services. She informed the court that since the termination of her reunification services, she completed a health food class in May 2016 and a parenting class in June 2016, consistently visited the children and expected to complete the substance abuse treatment program in July 2016. As to why she believed her request would be better for the children, mother explained she had taken significant steps to rehabilitate herself as a parent. She completed or was in the process of completing programs that directly addressed the reasons for the children’s removal. In addition, she maintained a relationship with the children to the extent permitted by the agency. Mother attached certificates of completion for the health food and parenting classes.
Father also filed a section 388 petition, but only as to Emma. He asked the juvenile court to vacate the section 366.26 hearing and return her to his physical custody or reinstate reunification services as to both parents and allow them to complete their services and regain custody of her. Father informed the court that he visited Emma consistently, had stable housing, was participating in outpatient substance abuse treatment and expected to complete all of his services in less than six months. Father attached certificates of completion for the same health food and parenting classes mother completed as well as a certificate of completion for a parenting program for fathers.
Sections 388 and 366.26 Reports
The agency recommended the juvenile court deny the parents’ section 388 petitions, opining they failed to show there had been a change in circumstances warranting the return of the children to their custody. Social worker Lola Violante authored the agency’s report and updated the court on the parents’ progress in completing the services previously ordered. In addition to completing a parenting class, mother completed outpatient substance abuse treatment in July 2016 and tested negative for illicit drugs. However, she stopped attending AA/NA meetings in May 2016 and was not able to provide proof of her attendance at any meetings. She completed a mental health assessment on June 1, 2016, resulting in referrals for individual therapy and domestic violence and codependency group counseling. By early August 2016, she had attended two of the four individual therapy sessions and four of five group sessions.
Regarding father, the agency reported he had not provided proof he completed outpatient substance abuse treatment, although he claimed to have received a certificate of completion on July 18, 2016. He failed to drug test on July 20, 2016, as requested and tested negative five days later. He stopped attending AA/NA meetings in February 2016, explaining he was “spiritual” and did not believe in them. He completed a mental health assessment in May 2016 and attended three of four individual therapy sessions. He also completed 11 of 16 required group sessions to complete an anger management program.
The agency also reported on the suitability of the parents’ home. On August 4, 2016, Violante made an unannounced visit to the parents’ residence. She observed two cars, one in the driveway and one parked in front of the home, tires and engine parts in the yard and glass in the grass by the front door. She heard dogs in the garage and in the home when she rang the doorbell. She waited and rang the doorbell three times and heard a male voice trying to quiet the dogs. The male did not answer the door. Violante left a business card on the door and parked the county car away from the home. Mother telephoned Violante, who told her she wanted to view the condition of the home since the initial allegations were that the home was dirty. Mother asked if they could meet at the agency office instead. When Violante again asked to see the inside of the home, mother asked if she could call back at a later time. However, according to Violante, mother had not called back by August 11, 2016, the date Violante submitted her report regarding the section 388 petitions.
The agency also recommended the juvenile court find Madeline and Emma were likely to be adopted and terminate parental rights. In its report for the section 366.26 hearing, the agency informed the court both children were healthy and developmentally on target. Emma’s foster parents loved her as their own child and were committed to adopting her. Madeline’s foster parents did not want to adopt her, but the agency found an adoptive home for Madeline and planned to begin transitional visits in July 2016. In addition, there were other adoptive families that had expressed an interest in adopting her.
The juvenile court ordered a hearing on the parents’ section 388 petitions and scheduled it on the date set for the section 366.26 hearing (combined hearing). The court continued the combined hearing and scheduled it as a contested hearing in August 2016.
Combined Hearing Pursuant to Sections 388 and 366.26
In August 2016, the juvenile court conducted the combined, contested hearing. The parties stipulated that the juvenile court could consider the same evidence to rule under sections 388 and 366.26. The court commenced the proceedings with the section 388 petitions.
Mother testified she completed substance abuse treatment in mid-July 2016, almost a year after the children’s removal and nine months after reunification services were ordered. She also consistently tested negative for drugs. She began a 16-week domestic violence victim’s class in June 2016 and still had 10 more classes to complete the program. She stopped attending AA/NA meetings two months before because she met the agency’s minimum requirement that she attend 49 to 52 meetings. She had not provided Violante proof, however, of her attendance since the last hearing. She lived in the house of father’s brother, but was on a waiting list for an apartment.
Mother further testified she regularly visited the children at the agency’s office. During their visits, she and “Maddie” sat and colored. They held Emma, talked to her and tried to get her to walk. She said that Madeline called her “Mommy.” Emma did not talk a lot and did not call her anything. She believed she should get another chance to reunify with her children because she “messed up” and did not want to be without her children. She believed it would serve the children’s best interests so she could show them the love they needed.
Mother denied telling Violante she did not want to show her the house. She told Violante she was in Hanford and asked to arrange another time. She said father’s brother was home, but asleep. He heard the dogs bark when Violante knocked on the door, but did not realize anyone was there. County counsel asked her if the house was appropriate for the children. She believed the children were safe there, but the house itself needed “work.”
Violante testified about her attempt to assess the suitability of the family home. She acknowledged, contrary to her report, that mother contacted her the day after her unannounced visit and attempted to arrange a time for Violante to view the condition of the home. Violante had concerns about the home based on its outside appearance.
Violante did not believe mother and father had shown their circumstances had changed because they continued to associate with substance abusers. Notably, father’s brother was under the influence of a controlled substance as recently as November 2015. Violante believed father placed his sobriety at risk by living with his brother. In addition, father failed to drug test in May and the beginning of July 2016, causing her to doubt his and mother’s abstinence from illegal drug use. Violante also did not believe it would be in the children’s best interest to be returned to their parents’ custody because the parents were unable to provide them a constant and stable home.
Violante testified about her visit with the children in their foster homes. Madeline was very happy and bonded to her foster mother, who she called “Grandma.” Emma was sleeping when she visited her, but it was obvious to Violante that Emma’s foster mother was very proud of the care she was providing Emma. Mother’s attorney asked Violante why it would not be in Madeline’s best interest to give mother another chance at reunifying with her since she was going to be moved from her foster home into another adoptive home. Violante stated that an adoptive home would be more consistent with permanency. Mother’s attorney asked Violante if she were familiar with reactive attachment disorder. She was familiar with the disorder, but had no reason to believe that Madeline suffered from it or would suffer from it if she were transitioned to a new adoptive home.
Sabrina Dequattro, the adoption social worker, testified the agency found an adoptive home for Madeline and planned to place her there within the next week or two. Madeline had already visited with the adoptive family, sometimes overnight, and the visits had gone very well. Dequattro described Madeline as “smart and sweet and bubbly” and a “joy to be around” and Emma as a “happy little baby.” She said it would “[a]bsolutely not” be difficult to find another adoptive home for Madeline.
Following testimony, the attorneys informed the juvenile court they had no evidence to present with respect to the section 366.26 phase of the hearing. The court heard argument on the parents’ section 388 petitions. Mother’s attorney asked the court to grant mother’s section 388 petition, “especially as to Madeline.” He argued mother consistently participated in services since the six-month review hearing and received two certificates of completion and was close to receiving a third. He also argued that Madeline’s interests would be best served by providing mother reunification services, given the possibility Madeline’s imminent placement could fail. Alternatively, he asked the court to consider legal guardianship or long-term foster care as an alternative for the children, especially Madeline.
Juvenile Court’s Rulings
The juvenile court denied the parents’ section 388 petitions, finding there had not been a change in circumstances and that it would not be in the children’s best interest to grant the orders requested. As to changed circumstances with respect to the parents’ progress in services, the court stated, “there [had not] been any change …, other than the fact that they got really busy at the time their family reunification services [were] terminated to try to make efforts to get the kids back.”
Specifically as to mother, the juvenile court stated:
“The reality of the situation is that the parents, [mother] specifically, certainly did not consistently participate, even after termination of reunification. Again, that was in April. The mother did not do anything … actively until the beginning of July, with the exception of [substance abuse treatment she began in] March and completed … apparently, in the middle of July.
“With regard to the domestic violence classes, there’s testimony that she has about 10 weeks left. She’s attended three or four sessions. She has 10 sessions to go. That’s not even halfway through her sessions. She had a mental health assessment in June of this year. Again, months after termination of her family reunification services, and she’s attend[ed] two of four sessions. That certainly does not go well, as far as purposefully availing herself of the services that were ordered for her when she was in reunification.
“The Court would note that there appears to be no attendance to 12-step meetings. She seemed to think that her 12-step compliance was as of the date of termination from her services, but there’s no evidence that she attended—not even any testimony—that she attended any of those meetings after the time that services were terminated.”
The juvenile court also found there had not been a change in the condition of the family home since the children were initially removed, stating “[T]here’s absolutely no evidence at all that would suggest that it would be in any way appropriate to return these children to their parents, based on what they have done so far.”
The juvenile court further found it would not be in the children’s best interest to grant the parents’ section 388 petitions. The court stated, “As far as best interests, although I don’t need to get to that prong, … I cannot find … it is in the children’s best interest to grant the petition[s].”
The juvenile court heard argument on the agency’s recommendation to terminate parental rights. Mother’s attorney argued the agency failed to show that Madeline was adoptable. For that reason and the fact she was not in an adoptive placement, counsel argued it was premature to terminate parental rights. Her attorney also argued there was no agreement in place to ensure Madeline and Emma would maintain their sibling bond. He reiterated his request that the court consider legal guardianship or long-term foster care as alternatives to adoption.
The juvenile court terminated mother’s and father’s parental rights, finding Madeline and Emma were adoptable and there was no evidence to support the parental or sibling bond exceptions to adoption.
DISCUSSION
Mother contends she met her burden under section 388 of proving her circumstances had changed such that it would be in Madeline and Emma’s best interests to reinstate her reunification services. Therefore, she argues the juvenile court erred in denying her section 388 petition. She further contends the court’s error was prejudicial because it prevented her from establishing it would be detrimental to terminate her parental rights under the exception to adoption found in section 366.26, subdivision (c)(1)(B)(i) (the beneficial relationship exception). We find no error.
Section 388
“Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability. A hearing pursuant to section 366.26 to select and implement a permanent plan for the children is to be heard within 120 days from the time it was set. [Citations.] 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.)
Section 388, subdivision (a)(1) allows a parent of a child who is a dependent of the juvenile court to petition the court “upon grounds of change of circumstance or new evidence, … for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.” The parent bears the burden of showing by a preponderance of the evidence both (1) a legitimate change of circumstances or new evidence exists and (2) that undoing the prior order would serve the child’s best interest. (In re A.A. (2012) 203 Cal.App.4th 597, 611–612.)
Accordingly, section 388 provides a means through which the juvenile court may consider the changing conditions of a family and a child’s life. (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1260, overruled on another ground in In re Zeth S. (2003) 31 Cal.4th 396, 413–414.) Section 388 serves as an “‘escape mechanism’” in the short, final period after termination of reunification services, but before the actual termination of parental rights for a parent who can show he or she has reformed. “As such, section 388 is vital to the constitutionality of our dependency scheme as a whole, and the termination statute, section 366.26, in particular.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528, italics omitted.)
“Not every change in circumstance can justify modification of a prior order. [Citation.] The change in circumstances must relate to the purpose of the order and be such that the modification of the prior order is appropriate. [Citations.] In other words, the problem that initially brought the child within the dependency system must be removed or ameliorated. [Citations.] The change in circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged order.” (In re A.A., supra, 203 Cal.App.4th at p. 612.)
“‘A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent … 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 Mary G. (2007) 151 Cal.App.4th 184, 206.)
Thus, a parent seeking to demonstrate the reformation contemplated under section 388 must show a change so compelling as to overcome the child’s need for permanency and stability in a new home. (In re Kimberly F., supra, 56 Cal.App.4th at p. 528.) This requirement is critical because after the juvenile court terminates reunification services, the parent’s interest in the care, custody and companionship of the child are no longer paramount and the focus shifts to the need of the child for permanency and stability. A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
The juvenile court’s decision whether to change an order by granting a section 388 petition is “committed to the sound discretion of the juvenile court, and the trial court’s ruling should not be disturbed on appeal unless an abuse of discretion is clearly established.” (In re Stephanie M., supra, 7 Cal.4th at p. 318.) Consequently, the reviewing court will not disturb a trial court’s “‘“decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination”’” (ibid.) or, put another way, the trial court has exceeded the bounds of reason (id. at pp. 318–319). We find no abuse of discretion in this case.
Mother presented evidence she completed a parenting class in June 2016, substance abuse treatment in July 2016, attended six of the 16 classes required to complete the domestic violence class, tested negative for drugs and regularly visited the children. She contends her progress was “significant” and she acknowledged her mistakes and did not want to be without her children. These factors together, she argues, established a legitimate change in circumstances. In addition, she contends, continued reunification efforts served the children’s best interests, given her relationship with them and Madeline’s imminent change in placement. We disagree.
At best, mother demonstrated she regularly visited the children and made some progress toward completing her court-ordered services. She failed, however, to demonstrate she was prepared to safely parent the children such that the juvenile court should reconsider her a viable placement option. To the contrary, according to Violante, there were legitimate concerns that mother was using drugs or placing herself at a high risk of relapse. She lived with father’s brother, who had a history of drug use, and with father, who was not drug testing. In addition, she stopped attending AA/NA meetings supposedly because the agency did not require it and she apparently did not want Violante to enter her home. The juvenile court correctly drew from this evidence not only that mother failed to show the substantial and compelling change required by section 388, but that her circumstances had not changed at all, not just from the time the court terminated her reunification services, but even before that—from the time the court ordered the children removed from her custody.
Further, the children had been in the foster care system for a year and needed the stability of a permanent home. In addition, they were on a solid path to adoption. Emma was in the care of loving, prospective adoptive parents and Madeline was transitioning to an adoptive home. At this stage of the proceedings and given the evidence before it, the court had no reason to redirect its focus from permanency and stability for Madeline and Emma to reunification with mother.
Beneficial Relationship Exception to Adoption
Assuming the juvenile court erred in denying her section 388 petition, mother further contends she was prejudiced because it foreclosed her from establishing the beneficial relationship exception to adoption and, thus, preserving her parental rights at a future section 366.26 hearing. Her reasoning is as follows: had the juvenile court properly granted her section 388 petition, it would have vacated its section 366.26 hearing and ordered reunification services. During that period of reunification, she would have had ongoing contact with the children during which she could strengthen the parent/child bond and assume a parental role.
The beneficial relationship exception pertains where the evidence supports “a compelling reason for determining that termination would be detrimental to the child [because the parent maintained] regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) “‘To trigger the application of the [beneficial] relationship exception, the parent must show the parent-child relationship is sufficiently strong that the child would suffer detriment from its termination.’ [Citation.] A beneficial relationship ‘is one that “promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.”’” (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643.)
Our determination the juvenile court did not err in denying mother’s section 388 petition obviates the need for us to discuss prejudice. Further, since mother does not challenge the merits of the court’s order terminating her parental rights and selecting adoption as the permanent plan, we will not address it.
DISPOSITION
The juvenile court’s order denying mother’s Welfare and Institutions Code section 388 petition, filed on August 16, 2016, is affirmed.



MEEHAN, J.

WE CONCUR:



HILL, P.J.


_______________________________
POOCHIGIAN, J.