Filed 6/15/22 In re S.M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from orders of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed.

Robert Francis McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.

Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and J. Jeffrey Bitticks, Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

M.C. (Mother) appeals from juvenile court orders denying her petition under Welfare and Institutions Code section 388 to reinstate reunification services for her two dependent children.[1] Mother contends the juvenile court abused its discretion because she had shown changed circumstances with her new sobriety and that restoring reunification services was in her two children’s best interests. The juvenile court found Mother “may” have recently made significant progress in addressing her drug addiction, but in light of Mother’s pattern of temporary sobriety followed by relapses, it found there was no substantial change of circumstances and restoring reunification services for the three weeks that remained before the 18-month review hearing was not in the children’s best interests. We see no abuse of discretion and shall affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

I.

Initial Dependency Petitions

Mother has three minor children: S.M., A.M., and J.M.[2] At the time dependency proceedings were initiated, S.M. and A.M. were three and two years old, respectively, and J.M. was a newborn infant. Mother first came to the attention of the San Diego County Health and Human Services Agency (Agency) in March 2015, when she gave birth to S.M. and both tested positive for methamphetamines. Mother admitted using methamphetamines during her pregnancy, including two days before S.M.’s birth. As a result, the family engaged in voluntary services with the Agency, during which Mother participated in a substance abuse treatment program and Narcotics Anonymous (NA) classes. She relapsed in July 2015. After more safety measures were put in place, Mother successfully completed services and the voluntary case was closed. She gave birth to her second child, A.M., in 2016.

In September 2018, Mother relapsed again. She gave birth to J.M. who tested positive for amphetamines and was hospitalized in the neonatal intensive care unit (NICU) for “sepsis and rapid breathing.” Mother told the Agency she used methamphetamines twice during her pregnancy, including the day before she gave birth to J.M. She knew that using methamphetamines was harmful to her unborn baby.

Mother told the Agency she began using methamphetamines when she was 15 (in or around 2005) and was “on and off” drugs but stopped using between ages 18 and 20 (between 2008 to 2010). She remained sober for several years but relapsed in 2015 when she was pregnant with S.M. and then again in 2018 when she was pregnant with J.M. She stated she relapsed during her pregnancy with J.M. because she was upset about her relationship with the children’s father, S.M., Sr. (Father).

On September 6, 2018, the Agency filed dependency petitions on behalf of all three children against Mother and Father,[3] pursuant to section 300, subdivision (b). At the detention hearing the next day, the juvenile court found the Agency made a prima facie showing on the petitions and detained the children in out-of-home care. S.M. and A.M. were initially placed in a foster home but were later placed with a maternal aunt. J.M. remained hospitalized in the NICU.

In November 2018, at the contested jurisdiction and disposition hearing, the juvenile court found the petitions true and placed S.M. and A.M. with Mother, who was living with her mother (Grandmother), on the condition that Father not reside in the family home. Mother enrolled in a substance abuse treatment program the day dependency petitions were filed and had been making “good” progress. She was randomly tested for drugs five times in September and October 2018, with negative results.

The six-month review hearing was held on June 26, 2019. At this time, the Agency reported that Mother struggled to maintain her sobriety. She had relapsed multiple times and used methamphetamines in December 2018 and February 2019. She had a “ ‘dirty’ ” test because the urine sample came back “ ‘diluted’ ” and she was a “no show[ ]” on a subsequent drug test. As a result, Mother was discharged from the substance abuse treatment program in February 2019. After she enrolled in a new substance abuse treatment program in March 2019, Mother improved. She was doing “very well” in the new treatment program and had no further positive drug tests. The Agency reported that Mother “seem[ed] to be taking her sobriety more seriously and addressing the issues that caused her to use and to relapse.” The juvenile court found Mother had made “some progress” with her case plan, continued placement of S.M. and A.M. with Mother, while J.M. continued to be placed with maternal aunt.

But then there were several incidents of domestic violence in the home. On June 26, 2019, Father was arrested for violating a restraining order while the children were home with Mother and Grandmother. The police report indicated both parents were suspected of being under the influence of drugs and/or alcohol. In September 2019, Grandmother obtained a TRO against Mother. In support of the TRO, Grandmother averred (under penalty of perjury) that, in May, Mother grabbed her “by the forearms and pierced her nails into [Grandmother’s] skin until [she] began to bleed,” and then threw her down the two steps connecting her bedroom and the kitchen. In June, during an argument, Mother kicked Grandmother, causing Grandmother to fall and strike her head. Grandmother needed four stitches to close the wound. Grandmother believed Mother’s “former drug use ha[d] exacerbated her aggression and bad temperament.” However, the TRO dissolved when Grandmother did not appear for the hearing.

Although the Agency recommended in November 2019 that the juvenile court terminate jurisdiction, it changed that recommendation by the time of the contested 12-month review hearing in January 2020. Instead, the Agency recommended that family maintenance services be continued for S.M. and AM., and that J.M., who had begun overnight visits, also be placed with Mother. The Agency reported that Mother had successfully completed her substance abuse treatment program, tested negative throughout this period, and was able to maintain her sobriety. The relationship between Mother and Grandmother also appeared to have stabilized. The Agency also reported that all three children are “very bonded” with Mother and she was “very loving” with them. The juvenile court found that Mother had made “substantive progress” with her case plan, continued family maintenance services and placement of S.M. and A.M. with Mother. It also appears the court approved placement of J.M. with Mother at this time.

II.

Supplemental Dependency Petitions

By May 2020, the Agency was recommending that dependency jurisdiction be terminated as to all three children. Although Mother “failed to consistently drug test,” the Agency reported she had “not appeared to be under the influence of any substances” and “evidence[d] her desire to maintain her sobriety.” All three children were reported to be doing “well” in their placement with Mother, so the Agency believed the “situation [would] remain stable.” It did not.

On June 3, 2020, the Agency filed supplemental dependency petitions on behalf of S.M. and A.M. against both parents pursuant to section 387, and requested both children be removed from Mother’s care. The Agency alleged that, on May 28, Mother came home at 2:00 a.m. under the influence of methamphetamines. When Grandmother told her she could not be in the house, Mother “became angry, grabbed a large kitchen knife, and started stabbing the walls inside the home.” She allegedly threatened Grandmother, telling her, “ ‘You’re going to die! You’re going to die soon!’ ” When the maternal uncle approached Mother, she pointed the knife at him to get back in his room. Grandmother ran into the bedroom, where S.M. and A.M. were sleeping, to call the maternal aunt who then called the police. Police found Mother two blocks from the home and believed she was under the influence of methamphetamines. She was in possession of a “meth pipe” and admitted to using methamphetamines. Mother was detained on a “5150” mental health hold. That same day, Grandmother obtained a TRO against Mother.

At the detention hearing the next day on June 4,[4] the juvenile court found the Agency had made a prima facie showing on the supplemental petitions, detained S.M. and A.M. in out-of-home care, and ordered Mother to have “reasonable supervised visitation.” The court also gave the Agency discretion to permit Mother unsupervised and overnight visits with notice to counsel for the two children, and a 60-day trial visit with counsel’s agreement. The Agency subsequently placed S.M. and A.M. with the maternal aunt.

During this period, the Agency reported it was “difficult” to maintain contact with mother; she was reported to be “couch surfing” before returning to Grandmother’s home despite the TRO. Mother was able to exercise supervised visitation with all three children. The Agency observed that it had been working with Mother for nearly 20 months, addressing substance abuse and general neglect of the children. Although Mother had completed a substance abuse treatment program, she failed to maintain consistent communication with her substance abuse specialist and the Agency did not believe she “use[d] the tools to maintain her sobriety when faced with her triggers.” In light of the fact that the statutory time for reunification services had been exceeded and Mother continued to struggle with her sobriety, the Agency recommended that reunification services be terminated for both parents and a section 366.26 hearing be set to select a permanent plan for the children.

On August 20, 2020, at the contested jurisdiction and disposition hearing, the juvenile court found true the allegations in the supplemental petitions by clear and convincing evidence. It removed S.M. and A.M. from the custody of Mother pursuant to section 361, subdivision (c), continued placement of the children with the maternal aunt, and ordered Mother to continue receiving reunification services.

By this time, Mother had been admitted to an inpatient drug treatment program, where she was to complete 90 to 120 days of treatment services and was not permitted to leave the facility except for a medical appointment. The Agency learned Mother was doing “well” and was “fully compliant” with her program in August 2020. The maternal aunt took S.M. and A.M. to visit Mother every Tuesday and the visits were reported to be going “very well.”

III.

S.M.’s and A.M.’s Section 388 Petition

In February 2021, counsel for S.M. and A.M. filed a section 388 petition for modification, requesting the juvenile court terminate Mother’s reunification services and set a section 366.26 hearing to select a permanent plan.[5] Counsel cited, as a change in circumstances, that Mother “has struggled to maintain sobriety,” testing positive for methamphetamines in October and December 2020 and for alcohol in November 2020. Mother had also missed a drug test in January 2021 and had not been engaged in treatment since January 27, 2021. Counsel asserted that S.M. and A.M. have been involved in juvenile dependency since 2018 and deserved “stability and permanency in a timely manner.”

The Agency maintained its recommendation that reunification services be terminated for both parents and a permanent plan be selected at a section 366.26 hearing. The Agency confirmed that Mother had not re-engaged in substance abuse treatment services and was discharged from the inpatient drug treatment program in March 2021. Mother informed the Agency she “did not have an excuse for not attending” her program. Although she told the Agency she was “willing to complete any service that is offered to reunify,” she failed to follow through with steps for referral to another treatment program.

A combined contested six-month review and contested hearing on S.M.’s and A.M.’s section 388 petition was held on April 29, 2021. Mother did not appear, despite the juvenile court’s attempts to reach her telephonically, and she was represented by counsel. Father appeared telephonically with counsel. The court found, by clear and convincing evidence, that Mother’s “inaction . . . create[d] a substantial likelihood that reunification will not occur, including her failure to participate regularly and make substantive progress in court-ordered treatment programs.” The court found there had been a change of circumstances and it was in the children’s best interests to grant the requested modification. It therefore terminated Mother’s reunification services.[6] A 12-month review hearing was set for August 19, 2021. By this time, S.M. was six years old and A.M. was five years old.

IV.

Mother’s Section 388 Petition

On August 19, 2021, the day of the 12-month review hearing, Mother filed a modification petition under section 388. In her petition, Mother requested the court reinstate her reunification services “to the 18-month review” hearing. Mother asserted there was a change in circumstances because: She had “completed a parenting class, as well as a substantial period of time in inpatient drug treatment, and made progress in therapy. She [was] actively engaged in all aspects of her former case plan, [was] clean and sober, and visit[ed] as consistently as [child welfare services] w[ould] allow. She [was] also stable on psychotropic medication and ha[d] demonstrated insight into the protective issues.” She attached supporting documentation to her petition, including proof of her enrollment in a new residential drug treatment program on June 3, 2021, progress in therapy, completion of a parenting program, and letters of support from her family. Mother asserted that restoring reunification services was in the children’s best interests because they are bonded with Mother and “have significant shared history,” and Mother had “made substantial progress in all originally court-ordered treatment programs and continues to visit consistently.” She argued that since the Agency was recommending reunification with Father “to the 18-month date,” it would be in the children’s best interests to “have two sober, engaged parents if possible.”

During the Agency’s investigation of Mother’s section 388 petition, Mother reported her sober date was June 3, 2021. She enrolled in the residential drug treatment program on June 3 and completed the program on August 31. Mother reported she had created a “Relapse Prevention Plan,” was randomly drug testing each week at the current treatment facility, attending NA and AA (Alcoholics Anonymous) meetings two to three times each week (virtually, because of the COVID-19 pandemic), and had a sponsor. She reported her sisters and her mother were her support network. Mother attended 12 virtual parenting classes and did “well” in the program. Mother told the Agency she had “learned the effects of her addiction and being away from her children.”

The Agency opposed Mother’s request for reinstatement of reunification services. It acknowledged the “efforts and strides she ha[d] been making to mitigate the protective issue,” but noted that Mother was four months into her sobriety. The Agency emphasized that Mother has had a voluntary case and a dependency case in which she was provided the resources, interventions, and services to mitigate the protective issue. Mother had already completed a drug treatment program and attended an outpatient drug treatment program, but would “[h]istorically . . . relapse[ ] after a couple months of demonstrating sobriety.” In the Agency’s view, it was “premature” to state Mother “has made significant progress” to warrant granting her section 388 petition. The Agency also pointed out that Mother had not progressed from supervised visitation with S.M. and A.M.

The juvenile court held an evidentiary hearing on Mother’s section 388 petition on November 16, 2021¾less than three weeks to the scheduled 18-month review hearing on December 6, 2021. The court received in evidence the original attachments to Mother’s section 388 petition, letters regarding Mother’s continued sobriety and participation in substance abuse treatment, and the Agency’s various reports. Mother testified, and Julie H., Mother’s sponsor and the manager at the sober living home where Mother resided, also testified.

Julie testified she had known Mother “a few months now” since becoming the manager at Mother’s sober living home, where she would see Mother “every day.” Mother was “always diligent” in attending her NA/AA meetings. At the time of the hearing, Julie was working with Mother on her “steps”[7] and Mother was working on “the first step.” Of the ten women in the home, Julie believed Mother “is by far the most diligent about doing meetings and groups and working on her steps.” Mother had been “doing a good job” of managing her program, part-time job, and supervised visitation with her children. Julie did not have any suspicion that Mother had been using, or been under the influence of, drugs or alcohol, over “the past several months.” Julie observed that Mother’s “first priority” is her children and that “she is being diligent about doing what she needs to make sure her future is different from her struggles in the past.” She conceded, however, that she did not know “much” of Mother’s history other than what Mother shared with her.

Mother testified her “clean date” was June 3, 2021. She had completed both inpatient and outpatient substance abuse programs. After a mental health evaluation she was prescribed Wellbutrin, a medication for anxiety and depression, which she felt might help prevent relapse. She worked on preventing relapse by identifying her triggers, which were holding grudges and resentment and not talking about her feelings or asking for help. She said she was taking steps to maintain her sobriety, including participating in therapy, family support and parenting classes, taking her medication, and developing a support system. On cross examination, Mother testified she had been struggling with substance abuse addiction since 2015 and that she has had multiple relapses, including as recently as June 2021, even after completing treatment programs in 2019 and 2020. She testified her longest period of sobriety was three years, from “2015 to 2018,” and her longest period of sobriety since 2018 was nine months. Her current period of sobriety was six months, although she felt this time was different because she had “surrendered herself,” knew to “seek and find help” if she needed it, had a strong support system, and was taking medication.

After hearing the evidence and arguments of counsel, the juvenile court denied Mother’s section 388 petition. The court began by noting that Mother’s request was for “additional reunification services,” and as it was stated in her petition, “to the 18-month review” hearing. With the 18-month review hearing scheduled for December 6, 2021, the court noted that “we are talking about three weeks technically of services.” The court indicated that it believed it was “inherent[ly]” appropriate for the court to consider the factors relevant at the 18-month review hearing in determining whether the requested modification was in the children’s best interests.[8]

The juvenile court found that Mother consistently and regularly had visitation with S.M. and A.M. to “the best of her ability,” and that Mother “may have even made significant progress in resolving the problems that led to removal.” But “[s]he did not demonstrate the capacity to complete the objectives of the treatment program, and provide for the child[ren’s] safety, protection, physical and emotional well-being and special needs of the children.” The court observed that Mother “is doing well now. That is not the problem. It is the pattern of doing well and falling off the wagon. That is the problem. . . . There is no doubt she loves the children.” The court “encourage[d] Mother to continue doing what she is doing at this point in time.” The court therefore denied Mother’s section 388 petition “for three weeks of services, essentially,” and ordered reasonable unsupervised visitation “as long as [Mother] stays sober.” Mother timely appealed.

DISCUSSION

I.
Mootness

We first address the Agency’s contention this appeal has been rendered moot by the juvenile court’s subsequent orders on February 18, 2022, placing S.M. and A.M. with Father.[9] Noting that Mother’s sole contention on appeal is that the juvenile court abused its discretion when it denied her request to reinstate her reunification services, the Agency argues there is no further relief that can now be granted to Mother and this appeal should be dismissed as moot. We disagree.

“ ‘ “An appeal becomes moot when, through no fault of the respondent, the occurrence of an event renders it impossible for the appellate court to grant the appellant effective relief.” ’ ” (In re J.P. (2017) 14 Cal.App.5th 616, 623.) Here, the subsequent orders do not render it impossible for this court to grant relief. The juvenile court has the authority to reinstate a parent’s reunification services after such services have been terminated and “revive the reunification issue” if the parent can prove the circumstances have changed such that reunification is in the child’s best interests. (Marilyn H., supra, 5 Cal.4th at p. 309; §§ 388, 366.26.) The parent may raise this issue by filing a petition to modify prior to the termination of parental rights. (Marilyn H., at p. 309 [parent seeking to revive the reunification issue can file a section 388 petition “to raise the issue in the trial court prior to the section 366.26 hearing.”].) Mother’s parental rights have not been terminated. Thus, the placement of the S.M. and A.M. with Father would not preclude this court from remanding to the juvenile court to consider granting Mother an extension of reunification services, if appropriate. (Cf. In re Katelynn Y. (2012) 209 Cal.App.4th 871, 881 [“Where, as here, the court continues one parent’s services and does not set a section 366.26 hearing, it retains discretion to terminate the other (nonreunifying) parent’s services. [Citations.] The parent seeking additional services has the burden of showing such an order would serve the child’s best interests.”].) We therefore turn to the merits of Mother’s appeal.

II.
The Juvenile Court Did Not Abuse Its Discretion

in Denying Mother’s Section 388 Petition

Under section 388, a parent may, upon “grounds of change of circumstances or new evidence,” petition to change, modify, or set aside a prior order of the court. (§ 388, subd. (a)(1).) The petitioner bears the burden of showing by a preponderance of the evidence that: (1) there has been a change of circumstance or new evidence since the challenged court ruling; and (2) the proposed modification is in the child’s best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.); In re J.M. (2020) 50 Cal.App.5th 833, 845; see § 388, subds. (a)(1) & (d).)

The decision to grant or deny a petition under section 388 is “committed to the sound discretion of the juvenile court, and [its] ruling should not be disturbed on appeal unless an abuse of discretion is clearly established.” (Stephanie M., supra, 7 Cal.4th at p. 318.) The order will not be reversed unless the juvenile court “has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.” (Ibid.) When two or more inferences reasonably can be deduced from the facts, we have no authority to reweigh the evidence or substitute our decision for that of the juvenile court. (Id. at pp. 318-319.) In other words, we shall “interfere only ‘ “if we find that under all the evidence, viewed most favorably in support of the [juvenile] court’s action, no judge could reasonably have made the order that he did.” ’ ” (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) On the record before us, we conclude the juvenile court did not abuse its discretion in denying Mother’s section 388 petition.

To prevail on a section 388 petition, Mother must establish a “substantial” change of circumstances. (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223 (Ernesto R.).) The change must be genuine and “ ‘of such significant nature that it requires a setting aside or modification of the challenged prior order.’ ” (In re Mickel O. (2011) 197 Cal.App.4th 586, 615; accord In re A.A. (2012) 203 Cal.App.4th 597, 611-612.) Not “every change in circumstance can justify modification of a prior order.” (In re A.A., at p. 612.) Rather, “[a] parent establishes a substantial change of circumstances for purposes of section 388 by showing that, during the period between termination of reunification services and the permanency planning hearing, he or she has resolved the previously unresolved issues supporting juvenile court jurisdiction.” (In re J.M., supra, 50 Cal.App.5th at p. 846; accord In re A.A., at pp. 611-612 [The change must be such that “the problem that initially brought the child within the dependency system must be removed or ameliorated.”].)

In an attempt to meet her burden at the first step under section 388, Mother asserted there was a change in circumstances because she was newly “clean and sober,” having recently completed a parenting class and “a substantial period of time” in an inpatient drug treatment program and made progress in therapy. She asserted she was now “actively engaged in all aspects of her former case plan,” stable on “psychotropic medication[,] and ha[d] demonstrated insight into the protective issues.” The juvenile court observed that Mother “may have . . . made significant progress” with her substance addiction. But it found that while Mother “is doing well now,” she has demonstrated a “pattern of doing well and falling off the wagon.” And “[t]hat is the problem.”

While her efforts are commendable, the juvenile court reasonably concluded that, in light of her long-standing addiction and chronic relapses, Mother’s recent sobriety did not establish a genuine and “substantial” change of circumstances that required setting aside its order terminating reunification services. (See In re Justice P. (2004) 123 Cal.App.4th 181, 189 [In ruling on a modification petition, the juvenile court may consider the entire factual and procedural history of the case.].) Mother’s “clean date” was June 3, 2021. At the time she filed her section 388 petition on August 19, 2021, Mother had been sober for less than three months, and at the time of the contested hearing on November 6, 2021, for less than six months. Mother admitted she had struggled with a methamphetamine addiction since 2015, and even after treatment and longer periods of sobriety, she had previously succumbed to relapse. The juvenile court’s implied finding that Mother had not resolved, removed, or ameliorated the problems that brought the children into dependency with her recent sobriety was a reasonable conclusion, supported by the record.

Mother acknowledges, on appeal, that “[t]ime and again, [M]other would complete a program, establish a significant period of sobriety, and then falter.” She acknowledges that it is “[t]his vicious cycle of recovery and relapse [that] led to [the children’s] removal in May 2020 and the termination of her reunification services in April 2021.” But she contends “this time was different.” She asserts her recent sobriety was different because she “fully addressed the root causes of her substance abuse problem,” by identifying the “ ‘triggers’ which fueled her periodic substance use,” and she was taking a “new, holistic[ ] approach [that] showed great promise.”

Mother’s arguments on appeal overlook the governing standard of review. We have no authority to reweigh the evidence or substitute our decision for that of the juvenile court. (Stephanie M., supra, 7 Cal.4th at pp. 318-319.) Clearly there is record support for the juvenile court’s finding that Mother’s new sobriety did not establish the requisite change of circumstances. (See In re J.C. (2014) 226 Cal.App.4th 503, 530 [substantial evidence standard of review is applicable to the factual components of a juvenile court’s determination].) Mother concedes “she was still in the early stages of her most recent recovery and her past conduct suggests she may relapse again.” With that concession, it cannot be said the juvenile court’s denial of Mother’s section 388 petition was arbitrary, capricious, or patently absurd, or that no judge could reasonably have made that order. (See Ernesto R., supra, 230 Cal.App.4th at p. 223 [where mother had a history of drug relapses and was still addressing a chronic substance abuse problem, her “recent sobriety reflect[ed] ‘changing,’ not changed, circumstances”]; In re Cliffton B. (2000) 81 Cal.App.4th 415 [seven months of sobriety was insufficient to establish an abuse of discretion in court’s refusal to reinstate reunification services, given evidence of parent’s long history of addiction]; In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9 (Kimberly F.) [“It is the nature of addiction that one must be ‘clean’ for a much longer period than 120 days to show real reform.”].)

Because we conclude Mother has not shown the requisite substantial change of circumstances, we could well end here. But a showing of a substantial change of circumstances still would not be enough to prevail on a section 388 petition. Mother must also show the undoing of the prior order would be in the children’s best interests. (Stephanie M., supra, 7 Cal.4th at p. 317; In re J.M., supra, 50 Cal.App.5th at p. 845; see § 388, subds. (a)(1) & (d).) Importantly here, the juvenile court terminated Mother’s reunification services on April 29, 2021, at the request of S.M. and A.M. in their section 388 petition. “After the termination of reunification services, the parents’ interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point, ‘the focus shifts to the needs of the child for permanency and stability’ [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child.” (Stephanie M., at p. 317, quoting Marilyn H., supra, 5 Cal.4th at p. 309.) “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.” (Stephanie M., at p. 317.)

Mother filed her section 388 petition on August 19, 2021, less than four months after reunification services had been terminated. By this point, S.M.’s and A.M.’s need for permanency and stability was the juvenile court’s paramount concern. (Stephanie M., supra, 7 Cal.4th at pp. 317-318.) And it was Mother’s burden to establish how her proposed modification “will advance the child[ren]’s need for permanency and stability.” (In re J.C., supra, 226 Cal.App.4th at p. 527.)

In her section 388 petition, Mother asserted that restoring reunification services was in the children’s best interests because they are bonded with Mother and “have significant shared history,” and Mother had “made substantial progress in all originally court-ordered treatment programs and continues to visit consistently.” Here, the juvenile court found that Mother’s new progress and recent sobriety were not sufficient to demonstrate that she had the capacity to complete the objectives of the treatment program and provide for the children’s safety and well-being, and as such concluded the requested modification was not in their best interests. We conclude there is substantial record support for the juvenile court’s factual findings and its determination of the children’s best interests was well within the bounds of reason.

S.M. and A.M. were three and two years old, respectively, when dependency proceedings were initiated because of Mother’s long-standing methamphetamine abuse, which she had exposed S.M. and J.M. to in utero. Mother received the benefits of a voluntary case, family maintenance services for approximately 19 months, from November 2018 to June 2020, and reunification services for approximately 11 months, from June 2020 to April 2021. When reunification services were terminated in April 2021, S.M. was six and A.M. was almost five years old. Throughout those years, Mother struggled with her addiction, going in and out of treatment, followed by multiple periods of relapses. And as Mother acknowledges, the children were uprooted several times by “[t]his vicious cycle of recovery and relapse.” The juvenile court properly focused on the children’s need for permanency and stability.

Mother also fails to address other facts relevant to the juvenile court’s determination that her proposed modification was not in the children’s best interests, specifically that her new sobriety did not “provide for the children’s safety and well-being.” Mother does not acknowledge the violent incident that led to the children’s removal from her care in June 2020, when, under the influence of methamphetamines, she entered Grandmother’s home while the children were sleeping, used a 12-inch kitchen knife to stab the door and walls of the home, and threatened that Grandmother was “ ‘going to die soon.’ ”

Second, and importantly, the juvenile court here noted that Mother’s section 388 petition was essentially a request for an additional three weeks of reunification services, since the 18-month review hearing was scheduled for December 6, 2021. At the 18-month review hearing, the juvenile court would be tasked with determining whether the children could safely be returned to a parent, and if not, the court would be required to set a section 366.26 hearing to select a permanent plan for the children. (Marilyn H., supra, 5 Cal.4th at p. 308; see §§ 366.21, subd. (f), 366.22, subd. (a).) Section 388 provides an “escape mechanism” that allows the court to consider new information or changed circumstances after terminating reunification services but before terminating parental rights. (Marilyn H., at p. 309.) But here, Mother was not able to show that the requested modification was in the children’s best interests. The court reasonably concluded that an additional three weeks of reunification services would not have enabled the children to be safely returned to Mother, who admittedly was in an early stage of sobriety during a long-standing addiction with repeated cycles of relapse after treatment.

In sum, we find no abuse of discretion on this record.[10]

DISPOSITION

The orders are affirmed.

DO, J.

WE CONCUR:

DATO, Acting P. J.

BUCHANAN, J.

[1] All further unspecified statutory references are to the Welfare and Institutions Code.

[2] J.M. is not a party to this appeal. We discuss J.M. as relevant background to Mother’s appeal.

[3] Father is not a party to this appeal. We discuss him to the extent relevant to Mother’s appeal.

[4] Mother did not appear at the hearing; however, she was represented by counsel. Father had been deported to Mexico in January 2020. The juvenile court ordered the Agency to continue search efforts to locate and notify him of the proceedings. He subsequently appeared in the proceedings in April 2021.

[5] Initially, the children’s counsel sought termination of both parents’ services; however, counsel subsequently withdrew the petition as to Father. Due to Father’s deportation to Mexico in January 2020, he was unable to visit with the children, but he maintained telephone contact with them. He began working with Mexico’s National System for Integral Family Development to participate in services including substance abuse treatment.

[6] The juvenile court found that Father had made “some progress” in his case plan and that “it appear[ed] the children may be returned to him and a permanent plan may not have to be selected.” Reunification services were continued for Father.

[7] This is an apparent reference to “The Twelve Steps” of recovery first outlined in the book, “Alcoholics Anonymous.”

[8] The 18-month review hearing is critical in dependency proceedings. “At 6-, 12-, and 18-month review hearings the juvenile court must return the child to the custody of the parent unless it determines, by a preponderance of the evidence, that return of the child would create a substantial risk of detriment to the child’s physical or emotional well-being. (§§ 361, subd. (b), 366.21, subds. (e) & (f), 366.22, subd. (a).) . . . If the child may not safely be returned to the parents within a maximum of 18 months from removal, the court must develop a permanent plan for the child.” (In re Marilyn H. (1993) 5 Cal.4th 295, 308 (Marilyn H.).) Thus, at the 18-month review hearing, if “it would be detrimental to the child to be returned to the parent’s custody,” the juvenile court terminates any remaining reunification services and sets a section 366.26 hearing to select a permanent plan for the child. (Ibid.; see §§ 366.21, subd. (f), 366.22, subd. (a).)

[9] The Agency requests this court take judicial notice of the February 18, 2022 order made at the 18-month review hearing, which had been continued from December 6, 2021 to the February date. We grant the Agency’s request and take judicial notice of the subsequent orders. (Evid. Code, §§ 452, 459; see In re N.S. (2016) 245 Cal.App.4th 53, 57 [appellate court will consider subsequent rulings by the juvenile court that may affect “whether the appellate court can or should proceed to the merits”].)

[10] Mother relies on Kimberly F., supra, 56 Cal.App.4th at pages 530-532, to contend that the juvenile court erred in denying her modification petition. In In re J.C., the court declined to apply the Kimberly F. factors, finding “they do not take into account the [California] Supreme Court’s analysis in Stephanie M., applicable after reunification efforts have been terminated.” (In re J.C., supra, 226 Cal.App.4th at p. 527.) But even if we consider the factors set forth in Kimberly F., we would not reach a different conclusion. In Kimberly F., the court stated that a non-exhaustive list of relevant considerations in deciding a section 388 petition include “(1) [t]he 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.” (Id. at p. 532, italics omitted.) Despite Mother’s bond with the children, overall these factors do not weigh in Mother’s favor for all the reasons we have discussed.