Filed 4/25/18 In re M.T. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Butte)
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In re M.T. et al., Persons Coming Under the Juvenile Court Law. C084161, C084247


BUTTE COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES,

Plaintiff and Respondent,

v.

D.S.,

Defendant and Appellant.

(Super. Ct. Nos. J37259, J37260 )


In this consolidated appeal, mother D.S. contends the juvenile court erred in denying her Welfare and Institutions Code section 388 petition for the reinstatement of reunification services with respect to the minor M.T. , We will affirm.
I. BACKGROUND
In August 2014, minors M.T. (then age nine) and N.T. (then age eight), lived with mother and visited father. On August 22, 2014, the Butte County Department of Employment and Social Services (the Department) filed section 300 petitions alleging failure to protect (§ 300, subd. (b)) and abuse of sibling (§ 300, subd. (j)). According to the petitions, mother’s home was unhealthy, unsafe, and unfit, with dog feces “all over the floor.” Father K.T.’s home was also unhealthy and unsafe, with an unrepaired hole in the roof and a crack in the foundation. In addition, mother and father had failed to follow through with counseling and medication for the minors and involved the minors in their ongoing custody dispute. Also, in 2002 and 2005, mother’s parental rights were terminated as to two half siblings.
On December 3, 2014, the Department filed amended petitions, alleging mother’s home continued to be “deplorable and unsanitary,” despite mother receiving over three months of services. (§ 300, subd. (b).) It was further alleged the minors were suffering, or at substantial risk of suffering, serious emotional damage as a result of the parents’ ongoing custody dispute, including mother’s constant allegations that father was abusing the minors. (§ 300, subd. (c).) The minors had also been terminated from multiple behavioral health programs due to mother’s inconsistency with the minors’ mental health and educational needs.
On December 11, 2014, the juvenile court ordered the minors detained.
The February 9, 2015, jurisdiction report noted the minors had been placed in a foster home together, with M.T. as an intensive foster treatment care placement. The report discussed mother and father’s lengthy child welfare history on behalf of the minors. Following a May 2014 referral, a social worker made an unannounced visit to mother’s home. The social worker reported that mother’s home was “unkempt,” with garbage piled about the house. The kitchen was soiled, and there was dog feces covering the second story of the house. Mother told the social worker M.T. had seizures on a daily basis, resulting in encoprisis and enuriesis. At the time of detention, M.T. was taking nine medications and had been placed in a special classroom for emotionally disturbed children. N.T. was taking three different psychotropic medications, had several mental health diagnoses, and was being evaluated for schizophrenia. The minors’ medical records demonstrated that they had not received continuity of care and treatment, with mother failing to follow through with medical professionals. After their removal from mother’s care, the minors had “done well.” M.T. now only took two prescription medications, had stopped having seizures, shied away from conflict, and did not have any “angry outbursts.” N.T. no longer took any prescription medications, was “lighthearted and happy,” and no longer heard “bad voices.” A neurologist who recently treated the minors stated he saw “very little” going on with the minors. The report recommended mother and father continue to engage in services.
On April 27, 2015, the juvenile court sustained the amended petitions, except for the allegation that mother’s parental rights had been terminated as to one of the half siblings.
The May 21, 2015, disposition report stated the minors were placed with their paternal grandparents in February 2015. The minors had adjusted well to their new placement and were “building a loving relationship” with the paternal grandparents. Mother was consistently visiting with minors twice a week, and father had consistent unsupervised weekend visits. Mother came prepared with activities for the minors, and father was “building quality relationships” with them. Mother had completed her initial parenting classes, and father was “open” to services to help stabilize the minors and provide him with additional parenting skills. Both mother and father wanted the minors placed in their care. Mother needed to obtain medical insurance to allow her to address her own medical needs. M.T. was developmentally on target and interacted well with other children. Although he did well academically, he had difficulty managing his emotions and controlling his anger. N.T. was “healthy,” with no medical or mental health related issues requiring medication. She was developmentally on target, energetic, playful, affectionate, and talkative. She interacted well with peers and made friends easily. Although the report initially recommended placement with father, on June 10, 2015, the Department changed its recommendation to reunification services for mother and father.
On June 24, 2015, the juvenile court declared the minors to be dependents of the court. The court ordered reunification services and visitation for mother and father and set a six-month review hearing in December 2015. (§ 366.21, subd. (e).) The court found mother and father’s progress to be “adequate” and authorized a psychiatric or psychological evaluation of mother.
On July 7, 2015, a section 387 petition was filed alleging the relative placement was no longer able to provide adequate support for the minors. The minors were placed in separate foster homes.
The July 8, 2015, detention report noted M.T. continued to have aggressive behaviors. Also, M.T. and N.T. were engaging in sexualized behaviors, which the paternal grandparents were unable to handle. Father had recently become homeless and tested positive for methamphetamine and amphetamine. On July 9, 2015, the juvenile court ordered the minors to be detained.
Mother and father submitted to the juvenile court’s jurisdiction on the supplemental petition. On August 5, 2015, the juvenile court sustained the allegations in the section 387 petition.
The September 2, 2015, disposition report recommended out-of-home placement and reunification services for mother and father. M.T.’s neurologist stated there were no concerns regarding possible seizures. M.T. was improving in school with the help of his new teacher. N.T. was doing well academically and was emotionally stable and happy. Both minors were being referred for counseling services and mother had completed parenting classes. Mother had two hours of supervised visits each week, which were going well, although the minors tended to have meltdowns and tantrums. Father had monitored two-hour weekly visits with the minors, but he missed five visits in July and August. Father had difficulty attending parenting classes due to his homelessness.
On September 28, 2015, at a contested disposition hearing following a supplemental petition, the juvenile court ordered the minors removed from parents’ custody. The court also found parents’ progress toward alleviating the causes necessitating placement was “minimal.” The court ordered reunification services and visitation for mother and father. The court informed mother and father that it needed to see progress with the case plan prior to the scheduled February 3, 2016, combined six- and 12-month review hearing, otherwise it would set a section 366.26 hearing.
The February 3, 2016, status review report recommended terminating reunification services for mother and father and setting a section 366.26 hearing for the minors. M.T. and N.T. “continued to stabilize in their placement.” Each had “learned to minimize their negative behaviors,” including self-hating comments, hitting, kicking, and biting. The minors had each built a “quality relationship with their foster parents,” were doing “better in school,” and had decreased their aggressive behaviors. Both had adjusted well to their separate foster homes and felt their needs were “being met.” “It has become apparent, that if provided with a healthy environment and emotional support, both children can do considerably well.”
Still, M.T. was “emotionally unstable.” Although he had shown growth, he still needed support to manage his aggressive behaviors. M.T. was attending therapy. He was doing well academically in school but still had difficulty managing his emotions and controlling his anger. He was in a program for severely emotionally disturbed students. Although he had been suspended three times in the last six months, he had “shown growth” and was ready to be mainstreamed in physical education and an art class.
N.T. was previously on “numerous medications” but, since being removed from her mother’s care, doctors had determined she had no medical or mental health issues requiring medications. She also was doing well academically.
Dr. Jennifer Kennelly completed a psychological evaluation of mother in October 2015 and determined she suffered “from a mental disability that renders her incapable of benefitting from [reunification services] . . . [and] unable to care for and adequately control her children.” Mother also showed “ ‘affective thinking disturbance’ ” and had impaired “ ‘reality testing’ ” abilities. During weekly therapy, mother discussed her past trauma but had difficulty “admitting any ‘wrong doing’ ” with respect to the instant case. Mother’s weekly supervised visits with the minors were going well. Still, the visits needed to be supervised because of concerns that mother would continue to frighten the minors by telling them father would harm them. In addition, it was unclear whether mother could maintain a safe and clean home, since, during a December 2015 visit, the home appeared dirty and exuded a “foul odor.” Mother had “not made substantial progress,” despite completing the requested services.
Although father had obtained stable housing, he failed to utilize the support provided for him and refused drug testing. Father’s visits with the minors were reduced from once a week to once every two weeks, because he had missed six visits.
In February 2016, the juvenile court appointed psychological expert Dr. Donald Siggins to assist mother with her defense. Dr. Siggins’s March 8, 2016, report concluded mother was not suffering “from any psychopathology that would block her from benefitting from the standard psycho-education interventions offered in reunification services.” Dr. Siggins noted mother did not qualify for government assistance and might benefit from medication and therapy for depression, anxiety, and posttraumatic stress disorder.
During the March 28, 2016, contested six- and 12-month review hearing, Dr. Kennelly testified mother suffered from depression and mental disability, showed reality testing problems, and had poor insight into how her own behavior affected her current situation. Dr. Kennelly testified there were no services offered by the Department that could resolve mother’s issues. Dr. Siggins testified he disagreed that mother would not benefit from services. The social worker testified mother had clean drug tests, but father tested positive for methamphetamine in March 2016. The social worker visited mother’s home in March 2016 and found it “met basic standards.” The social worker testified mother had a close bond with the minors and had improved her ability to handle negative behaviors during visits.
When the contested six and 12-month review hearing continued on April 26, 2016, mother asked the court to return the minors to her. If the minors were placed with her, she testified, she would attend to their education and medical needs, continue to drug test, maintain a safe and clean home, and continue to “encourage [the minors’] positive behavior.” She had installed a gate to prevent the dogs from going upstairs and defecating. The juvenile court found mother and father had failed to show they benefitted from services. In addition, the court found neither parent was able to care properly for the minors and it would be detrimental to return them to either parent. Also, mother and father had failed to show they could co-parent appropriately. The court terminated reunification services and set a section 366.26 hearing for August 24, 2016.
The October 2016 section 366.26 report recommended a permanent plan of placement with the goal of legal guardianship for M.T. and adoption for N.T. N.T. (then age 10) had lived with her prospective adoptive parents since June 2015; the family had decided together that adoption was best. N.T.’s needs were being met in her foster home, and she was “excited about and looking forward to being adopted.” She was doing well academically and overall was “emotionally stable” and “happy.”
M.T. (then age 11) had lived with his foster parent since June 2015; the family had decided that permanent placement with a goal of legal guardianship was best. M.T. “[did] not care” whether he was in foster care, guardianship, or adoption, “as long as he [was] still able to see his parents.” M.T. had asked for continued visitation with his mother “on several occasions.” Still, M.T. had adjusted “well” to his placement and felt that his needs were “being met.” M.T. was developmentally on target, although he had difficulty relating to his peers during competitive activities and struggled with enuresis. He did well academically but had “difficulty managing his emotions and controlling his anger.” Overall, M.T. had “stabilized,” with his behaviors “improv[ing] significantly,” including a reduction of his self-harming behaviors. Still, M.T. continued to need additional support to manage his aggressive behaviors.
A January 2017 court-ordered bonding evaluation conducted by Dr. Larry Nicholas concluded minors had a “reasonably close and positive bond with mother.” They enjoyed spending time with each other, and their visits were “positive.” Still, mother had some “deficiencies or limitations in her parenting style and abilities,” although they were “not significant enough to raise a concern of potential harm in regard to [the minors].” Minors were “reasonably comfortable and well-adjusted in their current placements.” In addition, minors “have had time to adjust to the reality that they will not be returning to the care and custody of mother and both children have effectively accommodated themselves to this reality.”
During a January 9, 2017, hearing, the juvenile court found mother and father’s compliance with the case plan was poor, with family reunification services terminated in April 2016. Continued out-of-home care was in the minors’ best interests.
On January 26, 2017, father filed a section 388 petition requesting the minors be placed with him. On February 27, 2017, mother filed a section 388 petition requesting the juvenile court vacate setting the section 366.26 hearing and reinstate services. Mother argued she was committed to the minors. She pointed to Dr. Nicholas’s observation that her visits with the minors went well: She was “well prepared for the visit,” and was “appropriately affectionate with [minors].” In addition, both minors had a positive and reasonably close bond with mother, with no concern that mother would harm the children due to her deficiencies and limitations. Mother attended church regularly, was able to provide appropriate housing, and had recently volunteered at a shelter. Mother further argued she had “the mental and emotional ability to function in society” and “the ability to appreciate and absorb information,” including reunification services.
Dr. Kennelly prepared a sibling bond evaluation report in February 2017. Her report stated the minors had a “healthy sibling bond.” Although the minors were “interested in continuing their connection,” they also appeared “comfortable with living apart from one another.” Both minors were “thriving” and felt “safe” in their current placements. Dr. Kennelly opined the minors’ bond would not be threatened by adoption or guardianship and recommended visitation.
On March 6, 2017, the juvenile court heard the parents’ section 388 petitions and conducted the section 366.26 hearing. Dr. Nicholas testified N.T. and M.T. enjoyed their visits with mother. Dr. Nicholas did not observe in mother any obvious indications of psychosis or mental problems. Mother seemed to understand questions posed to her and responded appropriately. Mother had a “somewhat permissive” parenting style and was not good at directing their activities.
Mother testified she had resided at the same home for five years two months and that it was a “clean” and “good, safe, stable house,” with “[e]verything that would be needed to provide for our family.” She had addressed the issues with her dogs by having a schedule to take them outside and putting up a gate to prevent them from going upstairs. Her carpets had been cleaned or removed. Mother testified she did not have any emotional or mental problems but still saw the benefit of having services with the county mental health provider. Mother felt she could benefit from continued services. She described her parenting style as providing structure while also allowing her children to make safe choices for themselves.
Lenette Dornan, the Department’s adoption specialist for the minors, testified she recommended keeping M.T. in his long-term foster care. She also recommended adoption for N.T.
The juvenile court denied mother and father’s section 388 petitions, finding there was not a substantial change of circumstances. The juvenile court also found N.T. was likely to be adopted and terminated mother and father’s parental rights, with adoption as the permanent plan. The juvenile court found terminating mother and father’s parental rights with respect to M.T. would be detrimental to him because he was living with a foster parent who was unwilling or unable to adopt him because of exceptional circumstances, but who was willing and capable of providing him with a stable and permanent environment. The juvenile court ordered M.T. to remain a dependent of the juvenile court, with a permanent plan of placement with a specific goal of guardianship. The court further ordered visitation for mother and father with M.T. Mother timely appealed.
II. DISCUSSION
Mother contends the juvenile court abused its discretion in denying her section 388 petition to reinstate reunification services with respect to M.T. “To prevail on a section 388 petition, the moving party must establish that (1) new evidence or changed circumstances exist, and (2) the proposed change would promote the best interests of the child. [Citation.]” (In re J.T. (2014) 228 Cal.App.4th 953, 965.) The change of circumstances or new evidence “must be of such significant nature that it requires a setting aside or modification of the challenged prior order.” (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485; see also In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.) When a section 366.26 hearing has already been set, a court assessing the child’s best interests must recognize that the focus of the case has shifted from the parents’ interest in the care, custody, and companionship of the child to the needs of the child for permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The child’s best interests “are not to further delay permanency and stability in favor of rewarding” the parent for his or her “hard work and efforts to reunify.” (In re J.C. (2014) 226 Cal.App.4th 503, 527.) “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, 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.” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) We review for abuse of discretion a juvenile court’s denial of a section 388 petition. (In re J.T., supra, at p. 965.)
Mother argues she had resolved many of the issues that resulted in this case. Her home was now safe and clean, she was getting along with father, and she had completed parenting classes that taught her the benefits of structure. In addition, mother had a positive relationship with M.T., and M.T. wanted to continue visits with mother. She also relies on Dr. Nicholas’s opinion that her parenting style was somewhat deficient and limited, but not enough to raise a concern of potential harm to M.T. Mother further argues additional reunification services would not jeopardize M.T.’s permanency, since his permanent placement was long-term foster care.
Even assuming mother had shown changed circumstances, substantial evidence supports the finding that a renewal of her reunification services was not in M.T.’s best interests. While mother may have formed a positive bond with M.T., he was “thriving” in the care of his foster family. His foster family was meeting his needs, and he was doing well academically. Although M.T. still needed additional support to manage his aggressive behaviors, he had “stabilized,” including reducing his self-harm behaviors. In addition, since being out of mother’s care, his seizures had stopped and his required medications were reduced from nine to two. Although M.T.’s foster family did not want adoption, they were interested in providing him a stable, permanent home. M.T.’s best interests were not promoted by further delaying permanency and stability to reward mother for her belated efforts at reunification. Mother’s interests were no longer paramount at this stage of the proceedings. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) In sum, we find no abuse of discretion.
III. DISPOSITION
The orders are affirmed.

/S/

RENNER, J.

We concur:


/S/

BLEASE, Acting P. J.


/S/

DUARTE, J.