Filed 4/17/18 In re Brooklyn W. CA3
NOT TO BE PUBLISHED


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Tehama)
----


In re BROOKLYN W., a Person Coming Under the Juvenile Court Law. C085337


TEHAMA COUNTY DEPARTMENT OF SOCIAL SERVICES,

Plaintiff and Respondent,

v.

REBECCA M. et al.,

Defendants and Appellants.

(Super. Ct. No. J13348)



Rebecca M. (mother) appeals the juvenile court’s order denying her Welfare and Institutions Code section 388 (unless otherwise set forth, statutory section references that follow are to the Welfare and Institutions Code) petition and order terminating parental rights to her daughter, Brooklyn W. Mother contends she sufficiently established changed circumstances regarding her substance abuse problem, and that it was in Brooklyn’s best interests to be placed in the family home on a family maintenance plan. According to mother, because the juvenile court erred in denying her section 388 petition, termination of parental rights was improper as well.
Jeremy W. (father) also appeals the juvenile court’s order terminating parental rights. In his separate appeal, he joins in and adopts the arguments made by mother.
We reject mother’s contentions and father’s joinder, and affirm the juvenile court’s orders denying mother’s section 388 petition and terminating parental rights.
FACTS AND PROCEEDINGS
Brooklyn was born in July 2016. Two days later, the Tehama County Department of Social Services (Department) received a referral indicating that Brooklyn had tested positive for methamphetamine and amphetamine at birth. The referral also indicated that mother was “out of it” and sleeping all day, refused to authorize the hospital to administer medication to Brooklyn for methamphetamine and amphetamine withdrawals, had not received any prenatal care during pregnancy, and had been aggressive with hospital staff. On the same date, Brooklyn was placed into protective custody.
On July 12, 2016, the Department filed a dependency petition under section 300, subdivision (b)(1), alleging that Brooklyn’s parents were unable to provide regular care and adequately supervise or protect Brooklyn due to their mental illness, developmental disability, or substance abuse problem. The following day at the detention hearing, the juvenile court found that Brooklyn was a child described by section 300, removed her from her parents’ home, and placed her in the care of the Department.
At the contested jurisdictional/dispositional hearing on August 24, 2016, the juvenile court sustained the allegations in the petition, declared Brooklyn a dependent of the court, removed her from the custody of her parents, ordered reunification services, and ordered her parents to comply with the court-approved case plan. The case plan required mother and father to complete a mental health assessment, a drug and alcohol assessment, and to comply with all recommended services. The case plan also required mother and father to complete parenting classes and to comply with all randomly scheduled drug tests. In addition, mother was required to attend at least two community support meetings a week focusing on recovery from drug and alcohol use. The case plan provided for supervised one-hour parental visits three times a week.
The six-month review report recommended that Brooklyn remain a dependent of the court and in out-of-home placement in the care of the Department. The report further recommended that the juvenile court terminate reunification services, reduce parental visits to once a month, and schedule a selection and implementation hearing pursuant to section 366.26. In support of these recommendations, the report explained that mother and father had failed to comply with the case plan. Because father refused to sign releases as instructed by the Department, there was no evidence that he had complied with counseling/mental health services, education services, or substance abuse services.
Although mother completed her drug and alcohol assessment and engaged in substance abuse services for several weeks, she was dropped from the program due to lack of attendance. Mother also failed to complete a mental health assessment, participate in education services, or attend community support meetings focusing on drugs and alcohol.
In addition, both mother and father failed to comply with substance abuse testing. They each missed 20 scheduled tests and refused to submit to testing on one occasion after engaging in concerning behavior. Of the three tests that mother and father submitted, two were negative and one was positive. Mother tested positive for methamphetamine while father tested positive for methamphetamine, amphetamines, and alcohol. In addition to failing to comply with the case plan, mother and father also missed numerous parental visits. They cancelled 13 visits and failed to show up for five visits. They were also late for 21 out of the 44 visits they attended.
At the contested six-month review hearing on March 1, 2017, the juvenile court found that mother and father had failed to participate regularly in the court-ordered case plan, and failed to contact and visit Brooklyn. The court ordered that Brooklyn remain a dependent of the court, terminated reunification services, reduced supervised parental visits to once a month, and scheduled a selection and implementation hearing pursuant to section 366.26. Because the court found there was insufficient evidence regarding placement, it scheduled a hearing to address placement.
At the placement hearing on March 21, 2017, the juvenile court agreed with the Department’s recommendation to place Brooklyn out of state with her mother’s maternal cousin and his wife. The court also ordered that parental visits continue as previously ordered.
On June 19, 2017, mother filed a section 388 petition. In her petition, mother asked the juvenile court to change the order terminating reunification services and the order placing Brooklyn out of state with mother’s maternal cousin and his wife. As changed circumstances, mother claimed that she had been sober since March 7, 2017, she and father had been attending drug and alcohol classes and AA/NA (i.e., alcoholics anonymous/narcotics anonymous) meetings, and parental visits had gone very well. Mother maintained that she and father could provide a loving and safe home for Brooklyn because they were now leading a clean and sober lifestyle. Mother requested placement of Brooklyn in the family home on a plan of family maintenance. Mother argued that granting her request would be better for Brooklyn because she would receive permanency in the family home.
At the outset of the contested selection and implementation hearing on June 27, 2017, the juvenile court considered mother’s section 388 petition. After admitting into evidence multiple exhibits and hearing testimony and argument over the course of two days, the court concluded that there had not been a sufficient change in circumstances to justify granting mother’s petition. In denying the petition, the court reasoned that, even assuming mother had been drug free as she claimed, she had a long-standing drug addiction and was only in the beginning stages of sobriety. The court noted that mother had yet to complete the first phase of a drug and alcohol treatment program, even though it had been three months since she started the program and the first phase could have been completed in four or five weeks. In addition to finding that there had not been a sufficient change in circumstances, the court also found that it would not be in Brooklyn’s best interest to grant mother’s petition given the “history of this case” and Brooklyn’s need for permanency.
At the conclusion of the selection and implementation hearing on July 5, 2017, the juvenile court adopted the findings and orders recommended by the Department. The court terminated parental rights and selected adoption as the permanent plan.
Mother and father timely appealed.
DISCUSSION
Mother contends the trial court abused its discretion in denying her section 388 petition. She claims that she provided sufficient evidence of changed circumstances and demonstrated that it was in Brooklyn’s best interests to be placed in the family home with a family maintenance plan.
Under section 388, a parent or any person having an interest in a dependent child may request the court to change, modify, or set aside a previous court order (§ 388, subd. (a)(1)), but bears the burden of proof and must show by a preponderance of the evidence that (1) there is new evidence or a change of circumstances; and (2) that the proposed change is in the child’s best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Daijah T. (2000) 83 Cal.App.4th 666, 672.)
A section 388 petition “is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.” (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
We conclude the juvenile court did not abuse its discretion. Mother failed to show a change of circumstances. Mother, at most, only showed that a major circumstance leading to the dependency proceeding—her chronic substance abuse problem—was in the process of changing, which a court may deem inadequate to show a real change in circumstances. (In re Casey D. (1999) 70 Cal.App.4th 38, 49.) When reunification services were terminated, mother was not enrolled in a drug and alcohol treatment program, consistently testing clean, or participating in community support meetings focusing on drugs and alcohol. Mother missed numerous drug tests over the six-month period since she was ordered to comply with drug testing as part of her case plan. Of the three tests she submitted, one was positive for methamphetamine.
When the section 388 petition was heard, approximately four months after reunification services were terminated, mother admitted that she had struggled with controlled substances in the past, including during the dependency proceedings. She also acknowledged that she had yet to complete a drug and alcohol treatment program.
Although there was evidence mother was participating in such a program and was attending narcotics anonymous meetings, the juvenile court did not abuse its discretion in determining that mother had failed to show a sufficient change in circumstances. Mother had been in the treatment program for three months but had failed to complete the first phase of the program, which could have been completed in four weeks. The record discloses that a person would remain in the first phase of the program if he or she “had attendance issues.” Upon questioning, mother admitted that she had missed substance abuse classes due to “transportation issues.” No documentary evidence was admitted at the hearing showing that mother had tested negative for drugs during the time period in which she claimed she had been sober, i.e., March 7, 2017 to June 19, 2017. The only evidence mother submitted in support of her sobriety was her own testimony, the testimony of family and friends, and evidence indicating she had attended narcotics anonymous meetings.
Under these circumstances, the juvenile court did not err in finding that circumstances had not changed. Even assuming mother was sober for several months as she claimed, her “recent sobriety reflects ‘changing,’ not changed, circumstances.” (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223; see In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9 [“ ‘It is the nature of addiction that one must be “clean” for a much longer period than 120 days to show real reform’ ”]; In re Clifton B. (2000) 81 Cal.App.4th 415, 423-424 [200 days of sobriety not enough].)
Mother also failed to show that the proposed change was in Brooklyn’s best interests. Returning Brooklyn to her mother’s care and reinstating reunification services would have delayed permanency and stability. On this record, the juvenile court did not abuse its discretion in concluding that whatever progress mother was making did not make delaying permanency and stability in Brooklyn’s best interests. There was sufficient evidence from which the court could have concluded that it was in Brooklyn’s best interests for her to remain with the prospective adoptive parents in a stable situation, and to begin the process of a permanent placement, rather than to place her back with her mother and await mother’s efforts to achieve sobriety and stability.
In evaluating Brooklyn’s best interests, mother urges us to apply the factors delineated in In re Kimberly F., supra, 56 Cal.App.4th at pages 530-532: (1) the seriousness of the problem leading to dependency and the reason that problem was not overcome; (2) the strength of relative bonds between the dependent child to both parent and caretakers; (3) the degree to which the problem may be easily removed or ameliorated; and (4) the degree to which the problem actually has been removed or ameliorated.
However, that approach was criticized in In re J.C. (2014) 226 Cal.App.4th 503. There, the appellate court, relying on our Supreme Court’s language in In re Stephanie M., supra, 7 Cal.4th 295, declined to apply the Kimberly F. factors, explaining that in order to establish the element of best interests in the context of a section 388 petition filed after reunification services have been terminated, “a parent’s petition for either an order returning custody or reopening reunification efforts must establish how such a change will advance the child’s need for permanency and stability.” (In re J.C., at p. 527.)
Even assuming that the Kimberly F. factors are applicable to the best interests analysis, we conclude mother has failed to establish that modification of the juvenile court’s orders was in Brooklyn’s best interests. As for the first factor, mother does not dispute that she has a serious, longstanding substance abuse problem. However, she argues that her substance abuse problem was not too serious to correct and, in fact, had been adequately addressed because she had been sober since March 7, 2017. The record does not support mother’s argument. As noted above, while there was some evidence that mother was taking steps to address her substance abuse problem, mother did not submit any negative drug tests corroborating her claim that she had been sober since March 7, 2017. Further, she had failed to complete the first phase of her substance abuse program, despite having more than adequate time to do so.
As for the second factor, the record does not disclose a strong bond between Brooklyn and her parents. Brooklyn was placed into protective custody two days after she was born. Because mother and father missed numerous visits with Brooklyn, the juvenile court reduced parental visits from several times a week to once a month at the six-month review hearing. When the supervisor of adoptions for Tehama County, Terry Hill, observed visits between Brooklyn and her parents in February or March 2017 and June 2017, she noticed that Brooklyn initially withdrew and turned away from them, and that it took time for Brooklyn to warm up and act comfortable around them. Hill explained that Brooklyn’s reaction was due not only to the decrease in contact with her parents but also “the quality of the attachment and the quality of the visits and what [was] happening in those visits.” According to Hill, Brooklyn’s behavior in turning away from her parents was a sign of a diminished bond with them.
By contrast, the record showed that Brooklyn was bonded with the prospective adoptive parents. At the time of the hearing on the section 388 petition, Brooklyn had been in the care of the prospective adoptive parents for three months. During visits in April and May 2017, the social worker observed Brooklyn demonstrating a comfort and bond with the foster father. The social worker also observed the foster father demonstrating a bond with Brooklyn by recognizing and attending to her needs with an ability to comfort and support her both physically and emotionally. When Hill observed Brooklyn with the prospective adoptive parents, she noticed that Brooklyn went to them easily, referred to them as mom and dad, smiled at them, snuggled with them, and sought comfort from them when she was tired.
As for the remaining factors, mother argues that her substance abuse problem had been ameliorated. We disagree. As the juvenile court pointed out, mother was only in the very beginning stages of addressing her longstanding substance abuse problem. The record does not reflect that mother’s substance abuse problem could be easily ameliorated or eliminated.
Mother did not make the necessary showing that a modification of the juvenile court’s orders was compelled by a change in circumstances or that such a modification would promote the best interests of Brooklyn. Therefore, we conclude the juvenile court did not err in denying mother’s section 388 petition. Because the juvenile court did not err in denying the petition, mother and father’s related contention that the juvenile court erred in denying parental rights necessairly fails.
DISPOSITION
The juvenile court’s orders are affirmed.



HULL , J.



We concur:



RAYE , P. J.



MURRAY , J.