Filed 5/24/22 In re A.M. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from orders of the Superior Court of Los Angeles County, Stacy Wiese, Judge. Affirmed.

Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Tracey Dodds, Deputy County Counsel, for Plaintiff and Respondent.

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S.F. (mother) appeals from the juvenile court’s orders denying her petition for modification pursuant to Welfare and Institutions Code[1] section 388. Mother argues the juvenile court abused its discretion in denying her request for reinstatement of her reunification services because she met her burden of proving that circumstances had changed such that reunification with mother was in her children’s best interest. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Dependency referral and petition

Mother has three children that are the subject of these dependency proceedings: A.M. (born October 2010), J.M. (born March 2013), and E.O. (born July 2016). During the course of the proceedings, mother gave birth to two other children, R.F. and K.G. The current matter came to the attention of the Los Angeles Department of Children and Family Services (DCFS) in 2018 based on referrals alleging drug abuse and domestic violence by mother. At the time, mother was homeless, and the children were not living under her care. A.M. and J.M. were staying with their paternal grandmother, and E.O. was residing with the maternal grandmother. The maternal grandmother was in the process of seeking temporary legal guardianship of all three children.[2]

In July 2018, DCFS filed a dependency petition on the children’s behalf. The petition alleged that mother was a current abuser of marijuana which rendered her incapable of providing regular care and supervision to the children, and that she was the perpetrator of an act of domestic violence against the children’s maternal grandfather. DCFS later amended the petition to add allegations that mother was also a current abuser of methamphetamine, that E.O.’s father had a history of marijuana and methamphetamine abuse, and that mother had a history of engaging in domestic violence with each child’s father.

At a July 12, 2018 detention hearing, the juvenile court ordered the children detained from mother. All three children were placed with the maternal grandmother under supervision of DCFS. The matter was set for an adjudication hearing.

2. Jurisdiction and disposition hearings

Due to several continuances, the dependency petition was not adjudicated until October 2019. Over the course of 2019, DCFS provided the juvenile court with various reports on mother’s progress in addressing her substance abuse issues. As of February 2019, mother was residing in a shelter for homeless pregnant women. While at the shelter, mother was required to work, to remain sober, to participate in a 12-step drug recovery program, and to attend a health and education program. Although mother previously had been enrolled in an outpatient drug treatment program, she left in early 2019 because her long commute made it difficult for her to participate in services. While in the program, mother tested positive for methamphetamine, and she admitted to a counselor that she used the drug with the father of her expectant child. Between October 2018 and January 2019, mother missed almost all of her scheduled drug tests.

By August 2019, mother had completed a new outpatient drug treatment program. The following month, however, she was asked to vacate the shelter where she had been residing with her fourth child for repeatedly violating the program rules. The director of the shelter noted that mother’s sobriety did not appear to be a main concern for her, and that she often refused to attend required meetings because she claimed she was too busy.

At the jurisdiction hearing held on October 10, 2019, the juvenile court sustained an amended petition under section 300, subdivisions (b) and (j). The court found true the allegations that mother was a recent abuser of marijuana and methamphetamine, that E.O.’s father had a history of drug abuse and was a frequent user of marijuana and methamphetamine, and that mother and E.O.’s father had a history of engaging in violent physical altercations in the children’s presence. The matter was continued for a disposition hearing.

As of November 2019, the children continued to reside with the maternal grandmother in Los Angeles County. The paternal grandmother of A.M. and J.M., also lived nearby and assisted in providing the children with a safe and stable home environment. Mother had chosen to sublet a room in a two-bedroom apartment in Orange County. She had custody of her fourth child, R.F., and told DCFS that her goal was to reunify with her three older children. Mother acknowledged, however, that her current housing could not accommodate all four children, and that she would be overwhelmed if the children were returned to her care at once. Although DCFS had requested that she submit to another random drug test, mother failed to comply.

In December 2019, the children were removed from the home of the maternal grandmother and placed in the home of A.M. and J.M.’s paternal grandmother. The change in placement was made because the maternal grandmother was having difficulty in her relationship with the maternal grandfather, who was engaging in erratic and self-harming behavior. Around this time, Mother notified DCFS that she had moved back to Los Angeles County and was living with the maternal grandmother. Mother had a recent positive test for methamphetamine, and admitted that she had relapsed. She reported that she was planning to re-enroll in an outpatient drug treatment program.

At the disposition hearing held on January 15, 2020, the juvenile court declared each of the children dependents under section 300, subdivisions (b) and (j), and ordered them removed from parental custody. The parents were granted family reunification services and monitored visitation with the children. Mother’s court-ordered case plan included participation in a full drug rehabilitation program with weekly random drug testing, a 12-step program, a domestic violence support group, parenting education, and individual counseling to address case issues, child safety, and mutual domestic violence.

3. Termination of family reunification services

As of July 2020, the children continued to reside with A.M. and J.M.’s paternal grandmother, and were thriving in her home. Mother had regular visits with the children and daily telephone contact. Although mother had enrolled in an inpatient drug rehabilitation program following the disposition hearing, she was later discharged from the program for engaging in a romantic relationship with another resident. She then relocated to a sober living facility, and told DCFS that she intended to enroll in an outpatient drug treatment program, but forgot to attend her intake appointment. Between March and June 2020, mother had 10 negative drug tests and four missed tests. She was attending online 12-step meetings, but had not enrolled in a domestic violence support group, a parenting education program, or individual counseling. Additionally, none of the children’s fathers had made any effort to participate in reunification services. Based on the parents’ lack of compliance with their case plans, DCFS recommended that family reunification services be terminated.

As of September 2020, mother was pregnant with her fifth child and residing in an emergency maternity shelter in Orange County. She admitted to DCFS that the father of her expectant child also had a long history of substance abuse. Mother had since enrolled in another outpatient drug treatment program, was attending parenting education classes, and had completed individual counseling. She had not yet enrolled in a domestic violence support group, and was unable to attend in-person 12-step meetings due to the shelter’s COVID-19 restrictions. Mother had two missed drug tests in July 2020, and tested negative for drugs in her other tests. Although mother maintained monitored visitation with the children, the paternal grandmother reported that there were times when the children would become upset at mother and refuse to participate in the visits. DCFS continued to recommend that family reunification services be terminated.

At a status review hearing held on October 22, 2020, the juvenile court found that the parents’ progress in addressing the causes that necessitated removal of their children had not been substantial. The court terminated reunification services for each parent, and set the matter for a permanency planning hearing pursuant to section 366.26.

4. Mother’s section 388 petition

In its section 366.26 report filed in February 2021, DCFS identified adoption as the permanent plan goal for the children. The agency noted that the children had been residing with the paternal grandmother of A.M. and J.M. since December 2019. The paternal grandmother was providing the children with a safe and nurturing environment, and she had expressed to DCFS that she wished to adopt them. The children were closely bonded with the paternal grandmother and appeared to be thriving in their prospective adoptive home. The children’s half-sibling, R.F., also had been placed in with paternal grandmother after being removed from mother’s care. Mother had monitored visits with children every Saturday afternoon, and no recent concerns about the visits had been reported.

On February 18, 2021, the date set for the permanency planning hearing, mother filed a section 388 petition. She alleged that circumstances had changed in that she had completed a full drug and alcohol rehabilitation program, and continued to produce negative drug test results. She also had completed programs in domestic violence, parenting education, and individual counseling. In support of her petition, mother attached documents showing her successful completion of her various court-ordered programs, including a drug and alcohol rehabilitation program in December 2020. Mother requested that the juvenile court reinstate her reunification services, grant her unmonitored visits with the children, and set the matter for a three-month progress review to assess the return of the children to her care. The court ordered a hearing on mother’s petition.

In an interim review report filed in March 2021, DCFS stated that mother was residing with her fifth child, K.G., at an emergency maternity shelter, and was on a waiting list for permanent supportive housing. Although mother had been granted overnight visits with the child, R.F., those visits took place at the maternal grandmother’s home due to the shelter’s COVID-19 protocols. In a March 2021 interview with DCFS, mother reported that she was participating in weekly aftercare services, was regularly attending 12-step meetings, and had started individual therapy. According to mother, she had been diagnosed with bipolar depression with anxiety, and had begun taking prescribed psychotropic medication.

In its report, DCFS expressed concern about some of mother’s recent Facebook posts. In February 2021, mother wrote, “Why does it only feel right when I[’]m doing wrong?” Then, in March 2021, she wrote, “I only feel right when I’m doing wrong. I really dislike my life. I am not ok with myself and I’m struggling so much. I’m so tired of pretending that I’m making it through but I’m not. I’m fighting so many demons and right now they’re all winning.” Yet when DCFS asked mother if she was having difficulty with depression, she denied any recent concerns.

In her interview with DCFS, mother reported that K.G.’s father would be able to assist her with caring for the children if she was able to reunify with them, and that she wanted them to be a family. When DCFS pointed out that K.G.’s father was also in the process of drug rehabilitation, mother acknowledged that he would need to complete his program first. DCFS further noted that K.G.’s father had implied in a recent Facebook post that he was having an overnight visit with mother and K.G., even though mother was not permitted to reside with the father or to monitor his visits.

For its March 2021 report, DCFS also interviewed the children about mother’s section 388 petition. A.M. stated that she liked living with the paternal grandmother, but she wanted to return to mother. When asked why, A.M. replied that the neighborhood children were mean and did not play with her. J.M. stated that he wanted to stay with the paternal grandmother because he did not spend a lot of time with mother, and he did not like it when mother argued with the maternal grandmother during one of the visits. When asked how he would feel if mother was given another chance to have him in her care, J.M. answered, “I don’t want to.” E.O. also stated that he wanted to remain with the paternal grandmother because he “like[s] it here.”

In their interviews with DCFS, the paternal grandmother and a paternal aunt shared their concern that mother was not being forthcoming with the agency about her struggles. The aunt further reported that she had overheard a recent telephone conversation between mother and the children in which mother urged the children to cry and beg the social worker that they wanted to live with her. DCFS also spoke with mother’s case manager at the emergency shelter, who expressed concern about mother continuing a relationship with K.G.’s father while he was still in recovery. In its report, DCFS recommended that the juvenile court deny mother’s section 388 petition.

As of April 2021, mother was visiting the children at the maternal grandmother’s home three hours per week. Mother stated that she enjoyed spending time with the children, and would bring crafts to the visits in order to engage them in activities. Mother also would cook for the children and watch movies with them. All three children expressed that they enjoyed their visits with mother. A.M. added that she missed mother, and J.M. said that he wished mother would visit him more often. The maternal grandmother, who served as the monitor for the visits, observed that mother was appropriate and attentive toward the children.

DCFS reported that the children continued to thrive in the paternal grandmother’s home, and that she remained committed to adopting them. The paternal grandmother was loving and nurturing toward the children and able to meet all of their needs. The children had conveyed that they were happy residing with the paternal grandmother while being able to visit with mother.

In an interim review report filed in May 2021, DCFS continued to recommend that the juvenile court deny mother’s section 388 petition. While acknowledging that mother had made significant progress in completing her court-ordered programs, DCFS expressed concern that mother still lacked insight into the issues that had led to the children’s removal from her care. DCFS also noted that the children were stable in their placement, had a strong bond with the paternal grandmother, and had disclosed that they wished to remain in the paternal grandmother’s home.

5. Hearing on mother’s section 388 petition

On May 6, 2021, the juvenile court held the hearing on mother’s section 388 petition. The children’s maternal aunt testified that both she and the maternal grandmother were always present for mother’s visits with the children. Mother would bring arts and crafts to the visits, play with the children, and prepare food for them. The children were excited at the start of the visits and were upset when the visits ended. The maternal aunt had not observed mother to be under the influence of drugs during the visits.

Mother testified that the children enjoyed spending time with her and consistently asked for their visits to be extended. The children would play with mother during the visits, and they were closely bonded with their younger siblings. While mother acknowledged that she had written the Facebook posts about her emotional struggles, she explained that the posts were her way of reaching out for help on difficult days. She was also taking medication and meeting with a psychiatrist and a therapist on a regular basis. Mother had developed healthier coping skills through therapy, and she had a strong support system, which included her sponsor, maternal relatives, and K.G.’s father. Although mother was aware that K.G.’s father had written a Facebook post about an overnight visit with mother and K.G., she denied that any such visit had occurred. She also denied that she ever told the children what to say to the social worker. Mother was currently residing in a communal living shelter that provided one bedroom per family and could accommodate the children with bunk beds if they were returned to her care. Mother also recently had been approved for low income housing, and she planned to start looking for an apartment in the near future.

Following mother’s testimony, the juvenile court heard argument from counsel on the section 388 petition. Mother’s counsel argued that the petition should be granted because mother had shown both a change in circumstances and that the children’s best interests would be served by reunification. Her counsel pointed to mother’s full compliance with her case plan in the current proceedings as well as in the pending dependency cases for the two younger children. Her counsel also noted that the children were strongly bonded with mother and their younger siblings, and that it would be in their best interest to maintain that familial bond.

Counsel for the children and counsel for DCFS joined in requesting that the court deny the petition. The children’s counsel noted that it had been three years since the children were detained from mother, and that prior to DCFS’s involvement with the family, the children had been in the care of their grandparents. The children’s counsel also argued that the paternal grandmother occupied the parental role in the children’s lives, and that mother’s role was more limited to playing with the children during their weekly visits.

The juvenile court denied the section 388 petition. The court found that mother had shown changed circumstances in that she completed her case plan, but that the reinstatement of her reunification services was not in the children’s best interest. The court noted that the children had been in the care of their grandparents for a number of years, and during that time, mother had not been involved in their lives in any meaningful way. Instead, mother occupied the role of a “three-hour mom.” The court concluded, “Although I commend the mom for doing everything she is doing and I’m super proud of her, I just don’t think I can find that it’s in the minors’ best interest to grant the 388. Now I’m going to say this again. That does not mean that I will not hear another 388 in the future. But for right now, the court has to deny it.” While denying mother’s petition, the court ordered that her visits with the children be increased to a minimum of six hours per week. Over DCFS’s objection, the court also liberalized the visits to include unmonitored visits at mother’s shelter.

Mother filed a timely appeal.

DISCUSSION

On appeal, mother challenges the denial of her section 388 petition. Mother specifically contends the juvenile court abused its discretion in finding that reinstatement of her reunification services was not in the children’s best interest. Based on the totality of the record, however, we conclude there was no abuse of discretion in the juvenile court’s ruling.

1. Governing law

“California has a comprehensive statutory scheme establishing procedures for the juvenile court to follow when and after a child is removed from the home for the child’s welfare. [Citations.] ‘The objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time.’ [Citation.] When the child is removed from the home, the court first attempts, for a specified period of time, to reunify the family. [Citation.] . . . [¶] ‘Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.’ ” (In re Celine R. (2003) 31 Cal.4th 45, 52; accord, Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1015–1016 [“ ‘parent is given a reasonable period of time to reunify and, if unsuccessful, the child’s interest in permanency and stability takes priority’ ”].) At this stage, a parent seeking to revive the reunification issue must prove a change of circumstance pursuant to section 388. (In re Malick T. (2022) 73 Cal.App.5th 1109, 1125.)

Section 388, subdivision (a)(1) permits the juvenile court, “upon grounds of change of circumstance[s] or new evidence, . . . to change, modify, or set aside any order of court previously made.” The statute allows the modification of a prior order only when a parent or other person with an interest in a dependent child establishes that (1) changed circumstances or new evidence exists; and (2) the proposed modification would promote the best interests of the child. (In re Alayah J. (2017) 9 Cal.App.5th 469, 478; In re L.S. (2014) 230 Cal.App.4th 1183, 1193.)

A parent petitioning for relief under section 388 “must show changed, not changing, circumstances. [Citation.] 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.’ ” (In re Mickel O. (2011) 197 Cal.App.4th 586, 615.) Moreover, it “ ‘is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child.’ ” (In re D.R. (2011) 193 Cal.App.4th 1494, 1512.) “[A]fter reunification services have 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. (2014) 226 Cal.App.4th 503, 527.)

We review the grant or denial of a section 388 petition for abuse of discretion. (In re I.B. (2020) 53 Cal.App.5th 133, 152; In re Alayah J., supra, 9 Cal.App.5th at p. 478.) We will not disturb the juvenile court’s ruling unless the court “ ‘ “ ‘exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.’ ” ’ ” (In re I.B., at p. 153.)

2. The juvenile court did not abuse its discretion in denying mother’s section 388 petition

As this court has explained, in deciding whether a parent has established that modification of a prior order would be in the child’s best interest, the “fact that the parent ‘makes relatively last-minute (albeit genuine) changes’ does not automatically tip the scale in the parent’s favor.” (In re D.R., supra, 193 Cal.App.4th at p. 1512.) “Instead, ‘a number of factors should be examined.’ [Citation.] First, the juvenile court should consider ‘the seriousness of the reason for the dependency . . . .’ [Citation.] ‘A second important factor . . . is the strength of the existing bond between the parent and child . . . .’ [Citation.] Finally, as ‘the essence of a section 388 motion is that there has been a change of circumstances,’ the court should consider ‘the nature of the change, the ease by which the change could be brought about, and the reason the change was not made before . . . .” [Citation.] ‘While the bond to the caretaker cannot be dispositive . . . , our Supreme Court made it very clear . . . [citation] that the disruption of an existing psychological bond between dependent children and their caretakers is an extremely important factor bearing on any section 388 motion.’ ” (Ibid.)

Applying these factors here, we conclude the juvenile court acted well within its discretion in finding that the restatement of mother’s reunification services was not in the children’s best interest. First, the reason the children were removed from mother’s care and custody was serious. Mother had a long history of substance abuse that rendered her incapable of providing the children with regular care and supervision, and she relapsed twice during the pendency of these proceedings, including while participating in a drug rehabilitation program.

Second, as the juvenile court observed, while mother had maintained regular visitation with the children, she had not occupied a parental role in their lives for many years. Before DCFS became involved with the family in 2018, A.M. and J.M. had been residing with the paternal grandmother, and E.O. had been residing with the maternal grandmother, due to mother’s substance abuse issues. After DCFS detained the children, they were placed with the maternal grandmother for a period of time, but the paternal grandmother continued to participate in their care. In late 2019, the children were placed with the paternal grandmother, and over the next year and a half, she consistently provided them with a safe, stable, and nurturing home. The children were closely bonded with the paternal grandmother and thriving in her care, and she was committed to adopting them. In contrast to the parental role that the paternal grandmother occupied, mother’s involvement in the children’s lives primarily consisted of playing with them during their weekly monitored visits. While the children enjoyed their time with mother, both J.M. and E.O. were clear that they wanted to continue residing with the paternal grandmother. Although A.M. had expressed that she would like to return to mother, her explanation for this preference was not based on her bond with mother but rather on her dislike of the children in the local neighborhood. Given that the children had been out of mother’s care for more than three years as of the hearing on the section 388 petition, the juvenile court reasonably could find that mother had not maintained a meaningful parental bond with the children.

Third, while mother was in compliance with her case plan at the time of the section 388 hearing, such change was still relatively recent and came about after repeated failed attempts. Over the course of the proceedings, mother had shown a pattern of enrolling in a drug rehabilitation program, and then either leaving the program early or relapsing after completing the program. DCFS also expressed concern that, following her most recent completion of a drug treatment program in December 2020, mother continued to exercise poor judgment and show a lack of insight into the risk of harm that her conduct posed to her children. In her March 2021 interview with DCFS, mother initially proposed that K.G.’s father would assist her in caring for the children if she was able to regain custody, despite that fact that he also had substance abuse issues and was in the process of completing a drug treatment program. There was also evidence that mother tried to coach the children into telling DCFS that they wanted to return to her care rather than stay with the paternal grandmother. Thus, while mother’s progress in complying with her court-ordered programs was commendable, the nature and timing of these changes fail to demonstrate that reunification with mother was in the children’s best interest.

On this record, the juvenile court reasonably could conclude that the reinstatement of mother’s reunification services would not advance the children’s need for permanency and stability. The court accordingly did not abuse its discretion in denying mother’s section 388 petition.

DISPOSITION

The juvenile court’s orders are affirmed.

NOT TO BE PUBLISHED.

KIM, J.*

We concur:

LAVIN, Acting P. J.

EGERTON, J.

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

[2] As of 2018, the father of A.M. and J.M. was no longer residing in the United States and did not have any contact with his children. E.O.’s father also did not have contact with his child and his whereabouts were unknown. Neither father is a party to this appeal.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.