In re R.J. CA1/3 ( 2015 )

Filed 12/29/15 In re R.J. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re R.J., a Person Coming Under the
Juvenile Court Law.
ALAMEDA COUNTY SOCIAL
SERVICES AGENCY,
Plaintiff and Respondent,
v. A144970
J.J., (Alameda County
Defendant and Appellant. Super. Ct. No. OJ13020277)
In this appeal, J.J., mother of R.J., seeks relief from the portion of an April 24,
2015, order denying her Welfare and Institutions Code section 3881 petition to vacate a
prior order terminating her reunification services and scheduling a section 366.26 hearing
to terminate parental rights and select a permanent plan for R.J. We affirm. 2
1
All further unspecified statutory references are to the Welfare and Institutions
Code.
2
In her notice of appeal, mother also asserts she is appealing from the portion of the
April 24, 2015 order maintaining May 4, 2015 as the date for the scheduled section
366.26 hearing. Because that portion of the order has been rendered moot due to the
passage of time, the appeal from that portion of the April 24, 2015, order is dismissed.
1
FACTS3
A. Juvenile Dependency Petition Proceedings
J.J. (mother) was 43 years old when she gave birth to R.J. (the child) in December
2012. The child was born under exigent circumstances due to mother’s critical heart
problems that necessitated heart surgery. In connection with the operation, the child was
born via cesarean section. Alameda County Social Services Agency (agency) detained
the child on discharge from hospital, at which time the three-week-old child was placed
in his current foster home. The agency filed a section 300 juvenile dependency petition,
later amended, asking the court to find that the child came within its jurisdiction under
subdivision (b) (failure to protect). (§ 300, subd. (b).) The amended petition alleged, in
pertinent part, that mother’s substance abuse and mental health issues impaired her ability
to provide adequate care for the child.
At the January 23, 2013, detention hearing, the juvenile court upheld removal and
detention of the child by the agency, and directed the agency to provide services as soon
as possible to reunify the child with mother, if appropriate. Mother was ultimately
discharged to a medical rehabilitation program on March 6, 2013. She applied for a
residential drug treatment program and, in the meantime, she fully cooperated with a
methadone program that offered therapeutic services. On March 18, 2013, mother began
weekly 2-hour supervised visits with the child.
At a combined jurisdiction and disposition hearing held on April 22, 2013, the
juvenile court took jurisdiction and declared the child a dependent of the court after
finding true the petition’s allegations, as amended, against mother. The agency was
granted custody of the child and directed to provide reunification services to mother. The
court also directed the agency to arrange for visits between the child and mother as
frequently as possible consistent with the child’s well-being.
At the six-month review hearing held on October 2, 2013, the juvenile court
continued the child’s out-of-home placement and mother’s reunification services after
3
We set forth only those facts as are necessary to resolve this appeal.
2
finding that mother’s progress toward alleviating and mitigating the causes necessitating
placement had been “partial.” The court ordered the agency to arrange for visits between
the child and mother as frequently as possible consistent with the child’s well-being. The
court’s orders were based on the agency’s status review report that since May 2013,
mother had been a participant in a residential drug treatment program. She was sober and
taking prescribed methadone daily, but testing negative for illicit drugs and alcohol.
Mother reported she was suffering from PTSD, depression and anxiety, attending
individual therapy, and had undergone a psychological evaluation.4 Mother was
attending parenting classes and doing great. Mother continued to have weekly supervised
visits with the child at the residential drug treatment facility.
At the 12-month review hearing, the juvenile court again continued the child’s
out-of-home placement and mother’s reunification services after finding that mother’s
progress toward alleviating and mitigating the causes necessitating placement had been
“substantial.” The court gave the agency the discretion to begin a 14-day trial home visit
between the child and mother when the agency deemed it appropriate. The court’s orders
were based on the agency’s status review report that mother was still in a residential drug
treatment facility, but she had completed all program requirements and was in the re-
entry phase; mother’s drug tests were clean except for tests that were appropriately
positive for methadone. Mother had applied for transitional housing that would
4
The psychologist’s June 26, 2013, report noted that mother had a long history of
drug abuse, with her drug use at its heights in mother’s early twenties. Since that time,
mother had “been in several” rehabilitation programs and had “completed four out of 10”
programs. Mother reported she had been “clean for some time, but relapsed
approximately one year ago, using heroin and methamphetamine. Around that time, she
used heroin to relieve back spasms from ‘two slipped disks,’ and attempted suicide; she
was unaware that she was pregnant at the time, and learned of the pregnancy when
hospitalized” for heart surgery. Mother reported she was in constant physical pain from
certain physical conditions, which pain interfered with her ability to sleep and affected
her psychological state. The psychologist opined that mother’s “chances of relapse were
increased because she used drugs to self-medicate,” and the nature of some of mother’s
problems suggested that treatment would be “fairly challenging, with a difficult treatment
process and the probability of reversals.”
3
accommodate mother and child. Because of mother’s serious medical issues, she was
working with an occupational therapist and the agency had ordered specialized
equipment for mother. Mother had also been placed on a medication regimen that
allowed her to sleep and better manage her pain. She was exploring mental health
medication to manage her anxiety. Mother was more clear headed and focused, and was
working to establish a good relationship and plan for the child’s transition to her care.
Mother’s therapist reported that mother was using therapy well and was making progress.
By the beginning of March 2014, mother’s visits had increased to two weekly
unsupervised visits with the 15-month-old child; one hour on one day and six hours on
one day with visits taking place at mother’s residential drug treatment facility. Mother
was loving, diligent and protective during the visits, and any problems were mostly
resolved after consultation with mother’s service providers. Mother and child received
weekly infant/parent therapy to work on strengthening their relationship. The social
worker opined that placing the child in mother’s home for a trial visit would allow
mother to demonstrate her ability to parent the child for longer periods of time and allow
the agency to evaluate what additional support needed to be in place to support mother
and child.
However, in the agency’s July 2014 status review report prepared for the 18-
month review hearing, the agency recommended that the court terminate mother’s
reunifications services and schedule a section 366.26 hearing for the permanent
placement of the 18-month-old child. The agency social worker reported that mother had
been drug free for almost 16 months, had completed her residential drug treatment
program, and had moved into transitional housing where she had her own house that
could accommodate mother and child. Since May 2014, mother was participating in
outpatient drug treatment and relapse prevention services, anxiety and PTSD support
groups weekly, and weekly random drug tests. However, several major physical health
concerns had come to light including mother’s prospective heart surgery and treatment
for a chronic disease. Also, mother was taking various medications for depression,
anxiety, sleep, and pain maintenance treatment. The agency social worker also had some
4
concerns about mother’s visits with the child. In March 2014 a transition plan was put
into place to allow for the gradual increase in visits with the goal of placing the child in
mother’s home. Beginning in early April 2014, mother and the child had full day visits
twice a week. However, during one visit mother became overwhelmed while caring for
the child. So the transition plan was put on hold and the visits were reduced to one full
(10-12 hour) day per week. During these one-day visits mother sometimes got tired and
overwhelmed, asked for visits to end early, and struggled at times with maintaining the
child’s cleanliness and routines. Mother’s occupational therapist reported that mother
had learned adaptive techniques to care for the child but had some difficulties following
the techniques. The therapist opined it was difficult to fully assess mother’s full
parenting capabilities due to her fatigue and heart issues. When questioned by the agency
social worker, mother stated she wanted more time with the child and increased visits, but
mother expressed concern about her ability to care for the child on a full-time basis.
Mother felt she needed more time – up to a year – to address her health conditions and
she requested additional reunification services. The agency social worker concluded her
report with the following evaluation, in pertinent part: “This is one of the most difficult
reports the undersigned has ever had to write. The mother has made tremendous strides
in her recovery, her health and her confidence as a parent. She has worked extremely
hard on her case plan and is trying very diligently to build a loving, caring relationship
with [the] child. The undersigned does not doubt that the mother deeply loves [the child]
and that she wants the very best for [the child]. However, the mother is experiencing a
host of complicated, significant stressors including: being in recovery after a long battle
with substance abuse, depression, anxiety, insomnia, chronic back pain, limited mobility,
heart failure, chronic disease, and fatigue. On top of all this the mother is learning to
parent . . . and is working to build a relationship with the [child]. If that were not
complicated enough, the mother is facing another extensive heart surgery with a lengthy
recovery and intensive medical treatment for a chronic disease that will be physically
taxing. Additional concerns also exist about the mother’s ability to take her medication
in a way that is consistent and support[s] her own health and her ability to safely parent.
5
The result of all these challenges and stressors is that the mother is currently not in a
position to parent the [child] full time. This has been evidenced during visits, by the
mother needing breaks, asking for visits to end early, returning [the child] dirty and
having difficulty following routines. [¶] It is unclear to the undersigned whether the
mother would be able to safely and consistently parent [the child] if she were given more
time to address her health and work on her parenting skills. What is clear is that this
would require more than a few weeks or months and a delay of this length is outside the
scope of the law, and more importantly, it is not in [the child’s] best interest. [The child]
has already been in placement for almost 18 months. [The child] has formed a
meaningful, significant and loving connection to [the child’s] caregivers. The current
level of visitation and the stress of the uncertainty of [the child’s] situation is taking a toll
on [the child’s] body and is stressful to the adults in [the child’s] life. The stability of
permanency is now in [the child’s] best interest and will allow [the child] to continue to
grow and thrive.”
At the 18-month review hearing held on September 22, 2014, the juvenile court
continued the child’s out-of-home placement and terminated mother’s reunification
services after finding that mother’s progress toward alleviating and mitigating the causes
necessitating placement was “partial.” The court continued its visitation order directing
the agency to arrange for visits between the child and mother as frequently as possible
consistent with the child’s well-being. The court scheduled a section 366.26 hearing for
January 13, 2015 to determine the permanent placement of the child.
In a December 2014 report prepared for the scheduled section 366.26 hearing, the
agency social worker recommended that the court terminate parental rights and order a
placement plan of adoption. The agency social worker reported that since the last status
report, mother continued weekly one-day unsupervised visits with the child and mother
and child continued to engage in infant/parent therapy once a week. The child’s foster
parents reported that on occasion after visits the child was very tired and had difficulty
adjusting back to family routines, but they believed the situation would improve with
good communications between mother and the foster parents. In her evaluation, the
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agency social worker stated: “On 3/19/2014, the agency was given discretion by the
Court to begin a 14-day trial visit; however, this never occurred as the mother was unable
to care for [the child] a full day without contacting the [foster parents] and asking for
support. . . . Additionally, on 7/21/2014, [mother] informed [the agency social worker]
that she did not believe she could care for [the child] full time. [The agency social
worker] notes that it is clear that [mother] loves [the child] and is trying to do her very
best for the both of them; however, [mother] is unable to meet [the child’s] basic needs
on a regular and/or daily basis as well as her own without feeling extremely
overwhelmed.”
B. Section 388 Petition Proceeding
On January 6, 2015, a week before the date originally scheduled for the section
366.26 hearing, mother filed a section 388 petition. She asked the court to vacate its
prior order terminating her reunification services and scheduling the section 366.26
hearing and issue a new order returning the child to her immediate care and order the
agency to provide family maintenance services. In support of her petition, mother
alleged the following new information: (1) her health had improved and stabilized and for
months she had been having successful weekly 10-12 hour unsupervised visits with the
child; (2) she would now have the assistance of three people to assist her with parenting
should her health deteriorate; and (3) the child’s alleged father, D.B., had agreed to assist
her with parenting the child. Mother asserted the proposed new order would be better for
the child because the child was attached to mother and alleged father and it would be in
the child’s best interest to be raised by the child’s biological parents. Mother annexed to
her petition, a record of mother’s attendance in a drug relapse prevention program, two
photographs of her holding the child, letters from three women who indicated their ability
and willingness to assist mother, and a letter from the child’s alleged father who indicated
that he was willing to assist mother and if he could not help mother he had three
volunteers to assist mother.
Over the course of four months (January 2015 through April 2015), the juvenile
court held a hearing on mother’s section 388 petition on five days. The court considered
7
the agency’s reports prepared for the 18-month status review hearing and for the section
366.26 hearing. Mother testified on January 28, 2015, February 23, 2015, and April 6,
2015.
Mother explained her efforts to reunify with the child. She had completed a 10-
month residential drug treatment program including a parenting class in March 2014, and
the next month, she had begun and was participating in one-hour weekly out-patient
meetings with two substance abuse support groups. While at home, she watched “You
Tube” videos concerning parenting several times a week. In her testimony on
January 28, 2015, mother initially stated that in the past she had been getting stronger and
was able to exercise and ride a bicycle, but a couple of months ago she had a stress test
and she was only able to ride a bicycle-type device for eight minutes and just in the past
month her breathing was getting worse. She had a scheduled meeting with her surgeon on
February 13, 2015 to discuss replacement of two heart valves. When mother resumed her
testimony on February 23, 2015, she stated she was still waiting to hear from her surgeon
as to whether heart surgery would be necessary. She also claimed that in the past month
she had been fine; she had not had any days of weakness or an anxiety attack or a panic
attack since last year. She had been prescribed medication for anxiety but she did not
take it because it made her sleepy, but if she had a panic attack she would take the
medication. When mother resumed her testimony on April 6, 2015, she reported that her
physicians had told her she would need heart surgery, but the operation had not yet been
scheduled. Mother understood that after surgery, her recovery time would be anywhere
from five to eight months; one week in the hospital and then she could have in-home
supportive services. Mother admitted that after her last heart surgery in January 2013, it
took her about a year to fully recover.
Mother also described her relationship with the child. She had consistently visited
with the child throughout the child’s life and the visits had been unsupervised except for
maybe two months of supervised visits. The child called mother “mommy.” Before her
services were terminated, there were a number of visits that had ended early because
mother was not able to handle the child. She believed things had changed significantly.
8
Since the termination of services at the end of September 2014, she continued to have one
full-day (12 hours) weekly unsupervised visits with the child in her home. The child’s
alleged father D.B. had been present for some part of each visit and mother had not
needed him to help because she was unable to care for the child. When asked if she was
doing anything differently to make sure that she was not tired during visits, mother said
she drank more coffee, “[l]uck, I guess,” and she took naps when the child napped during
the visit. Mother also testified that a lot of times after visits the child was returned dirty
and on one occasion, the child was returned “with Pink Eye,” which mother thought the
child got from playing with a plunger.
During the course of the section 388 hearing, the agency filed a March 2015 status
review report. The agency social worker expressed that she had some concerns about the
visits: (1) On December 22 and 23, 2014, the child had back to back full day visits with
mother to make up for a visit that would be missed during the holidays. The foster
parents reported that when the child was returned they saw the child had a very severe
diaper rash that took several days to heal. (2) After a visit on January 12, 2015, the foster
parents observed that mother had driven the child home to them and that he was buckled
incorrectly in his car seat in mother’s car. The social worker went to mother’s home on
January 26, 2015 asked to see the car seat and observed that the car seat had been
installed incorrectly. The social worker showed mother how to properly install and use
the car seat. Mother admitted that she knew something was wrong, but she had not
consulted the manual or asked another person for support before transporting the child in
the incorrectly installed car seat. (3) During a visit on February 2, 2015, mother texted
and called the foster parents asking if the child could be picked up early from his visit
because mother was not feeling well. The foster parents were not able to accommodate
mother and mother was able to make it through the visit.
At the April 6, 2015 hearing, mother testified that during the last few months she
had not cancelled visits because of heart-related issues, and the last time she cut a visit
off an hour early was several months ago. She also gave explanations of her conduct
during some of the visits that were of concern to the social worker as described in the
9
agency’s March 2015 report. Mother did not believe it would be traumatic for the child
to be immediately returned to her because the child knew her albeit mother admitted the
child would miss the foster parents.
As to her plan to care for the child, mother explained that after she became aware
of the possibility that she would need heart surgery she sought to arrange for people to
take care of the child because “it was asked of” her. About a week or two before the first
hearing on the section 388 petition in January 2015, mother asked the child’s alleged
father D.B. to find people who could help her with the child and he chose people that
mother already knew, which was confirmed by D.B.’s testimony. At the April 6, 2015,
hearing, mother felt “very confident” that she could care for the child with the help of the
child’s alleged father and two woman.5 Mother had also found a child daycare provider
who lived four blocks from mother’s home.
The agency’s social worker Suzan Kotch testified that she had worked for six and
a half, almost seven years, in the SEED program, which was a special program for infants
and toddlers. Before that time Kotch was a child welfare worker for three and a half
years in the family reunification program. She was assigned to the child’s case in
November of 2013. At that time the child had been in out-of-home placement for almost
one year and mother was being provided with reunification services. From November
2013 to March 2014, mother had visits with the child twice a week. Between March
2014 and July 2014, Kotch had attempted to gradually increase visits but mother said she
was not ready for all of the planned visits. So the visitation plan was changed from two
short visits to one full-day unsupervised visit each week. The visits had not progressed to
more than one day a week because issues kept coming up concerning mother’s care of the
5
During the hearings on January 13 and 15, 2015, mother called as witnesses three
women who testified that they were willing to assist mother. However, at the April 6,
2015 hearing, mother testified that she was no longer relying on two of those women, but
would be relying on one of those women and another woman who was not called to
testify at the hearing. The child’s alleged father D.B. testified that he had arranged for
six people, including himself, to assist mother - the two women whom mother testified
she was no longer relying on to assist her, the two women mother said she would rely on
to assist her, and one man who was not called to testify at the hearing.
10
child or mother saying she was overwhelmed during the visits. The agency never tried
again to increase visits because Kotch felt that mother could not “get a good handle” on
caring for the child for one full day. Kotch believed mother was overwhelmed based on
the following factors: her exhaustion related to her heart condition and back pain, her
medications, and her anxiety. After speaking with mother, Kotch understood that mother
was still waiting for her surgeon to contact her about heart surgery — which was
“imminent” and would have “a significant recovery period” associated with it.
Kotch opined that at the time reunification services were terminated in September
2014, mother was not able to care for the child on a full-time basis. Since services were
terminated, Kotch had been present at mother – child visits about once a month (five or
six times), and Kotch’s opinion had not changed about mother’s ability to parent the child
on a full-time basis. As to mother’s plan to care for the child, Kotch had concerns about
whether mother’s friends would be “consistent enough” and “really available.” Kotch
also opined that the child’s transition from the foster parents to mother would be very
hard and stressful on the child, and multiple strange persons caring for the child would
cause further considerable stress to the child. Kotch believed it would be better for the
child to remain in the foster care placement for the following reasons: (1) the child had
been in the current placement for almost two years and three months, had developed a
very significant attachment to the foster parents, and a move from that home would be a
very significant loss, trauma and stress for the child, and (2) mother was still dealing with
some very significant problems, and mother’s circumstances had not significantly
changed since September 2014 when reunification services had ended. Kotch
acknowledged that mother had made some very tremendous changes in her life, but those
changes were not significant enough to allow mother to “really safely parent” the child
“in a way that would support [the child’s] development and [the child’s] mental health,”
given mother’s own ongoing mental health concerns, she was still dealing with substance
abuse issues, and she was facing imminent major surgery.
On cross-examination, Kotch confirmed that mother had been “clean and sober”
for two years, a substantial amount of time, and that mother had been participating in
11
individual therapy for at least 18 months. Mother had also been receiving services for
assistance with the child for about 18 months, and mother could continue to receive those
services if the child was returned to her care. Mother’s location of a specific daycare
provider would not make a difference because mother’s health situation required round-
the-clock coverage including weekends, evenings, and holidays when daycare was
closed. Kotch was still unclear as to what mother’s plan would be for those times when
daycare was closed, which would require again yet another person and another transition
for the child. Despite the child’s visits with mother, Kotch opined that a transition to
mother’s home would still be a significant trauma and loss as the child would be losing
caregivers that the child had lived with full-time for two years.
After argument by counsel, the juvenile court denied mother’s section 388
petition. The court noted initially it was not convinced that mother had met her burden of
showing a change of circumstances warranting new court orders, “but more importantly,”
the court found mother had failed to establish that a change in the court’s orders would
serve the child’s best interest. In reaching its conclusion, the court considered the
following factors: “The assembly of additional support persons, those who were
remaining and I am including [the child’s alleged father] as being among them, does
address some significant concerns and it is a change to the extent that these people or this
group of people were not available previously from my understanding . . . when the Court
terminated reunification services. [¶] But for the exception of [the child’s alleged father]
who has demonstrated a longer commitment, it would appear that these other people are
meant to address the challenges [mother] will face with this anticipated significant heart
surgery and the commitment of these people is a little unclear. [¶] I am asked to decide
whether or not it warrants a change in the Court’s order. I can’t say that that alone does.
I’ve been pointed to improvements in the mother’s health and I suppose there are
matrixes that one could choose to measure the mother’s improvement. . . . But I note, for
example, that back in May of 2014 there was an incident when I believe the mother
couldn’t find something and she had been riding her bike and had to call the worker and
coordinate a pick-up. I noted that because the mother testified that at this time she’s not
12
in a position to ride a bike, so I don’t know that her health has improved significantly
such that that is a change from the past. [¶] Be that as it may, the Court should comment
here that we spent a lot of time talking about the anticipated heart surgery and what that
might look like; and if that were the only issue before the Court this would not be such a
hard case, but it is not. [¶] As was pointed out in the arguments of County counsel and
[the child’s] counsel, there are other issues that the Court has to consider on the best
interest of [the child]. So my decision today is not a comparison of households. . . . [¶]
. . . [¶] I have considered what led to this dependency. The mother had a number of
challenges initially. She’s done an incredible job addressing many of those challenges, in
maintaining her sobriety and she has secured housing and she is working on her health.
She has shown real courage. [¶] There was a moment in her testimony when she said . . .
even if [the decision] goes against her it won’t be because she’s not fighting for her child.
That’s not only true in her words, but it is evident in her actions over the last many
months that she has shown her commitment to not only improving her own circumstances
but is doing so for [the child]. [¶] Here is the major concern for the Court: It is
significant that after many attempts within the last year to return [the child] to the home
of the mother which included for a toddler someone under the age of three at the time of
removal, the extension of family reunification services out to 18 months, attempts by the
Agency to both increase visits or to graduate to a two-week trial visit in-home, all
designed to reunify [the child] with [the child’s] mother failed. Even with the combined
and sustained efforts of the Agency, the mother and service providers were unsuccessful
and that shift has remained fixed for a long period of time. [¶] I weighed the mother’s
successes against this reality as well as the length of time [the child] has been in out-of-
home care. [The child] has been with current caregivers since [the child] was a little over
two weeks old. [¶] . . . [A]t this time in th[is] dependency proceeding[ ] the focus has
shifted to promote [the child’s] need for permanency and stability. [¶] In [this] case, [the
child’s] best interests are not to further delay permanency and stability. In this case, I
will admit it is very tempting to want to reward [mother’s] courage and her efforts and
13
hard work; but as counsel said, that cannot be my sole focus in this case.” Mother’s
timely appeal from the denial of her section 388 petition ensued.
DISCUSSION
Mother seeks reversal of the April 24, 2015, order on the sole ground that the
juvenile court abused its discretion in denying her request for relief under section 388. In
her opening brief, she argues that she met her burden of establishing a change of
circumstances and that the proposed modification she sought would be in the child’s best
interest as it would promote the child’s need for permanency and stability. In her reply
brief, she eschews respondent’s assertion that she is rearguing the evidence or asking us
to reweigh the evidence. Instead, she contends the juvenile court exceeded the bounds of
reason when it determined she had failed to prove either a change of circumstances or
that the modification she sought would promote the child’s best interest. According to
mother, the evidence “clearly established” both elements, and thus, the juvenile court’s
decision “ ‘transgressed the confines of the applicable principles of law’ and amounted to
an abuse of discretion.” We conclude there is no basis to disturb the juvenile court’s
ruling on mother’s section 388 petition.
The denial of mother’s section 388 petition “under our review in this case came
late in the proceedings, after the court had found jurisdiction (§§ 334, 355), removed the
child from [mother’s custody] and placed [the child] in foster care (§ 358), undertaken
the six-month, . . . [twelve-month,] and [eighteenth-month] review hearings (§ 366), and
concluded that it was unlikely the child could be reunified with [mother] (§ 366.21). The
matter was set for a hearing on selection and implementation of a permanent plan
(§ 366.26), . . . when [mother] interposed a motion for a change or reconsideration of the
earlier placement order. Such a motion may be brought pursuant to section 388 at any
time after the [child] has been declared a dependent child of the juvenile court. (See In re
Marilyn H. (1993) 5 Cal. 4th 295, 308-309 [19 Cal. Rptr. 2d 544, 851 P.2d 826].)” (In re
Stephanie M. (1994) 7 Cal. 4th 295, 316-317.)
“At a hearing on a motion for change of placement [under section 388], the burden
of proof is on the moving party to show by a preponderance of the evidence that there is
14
new evidence or that there are changed circumstances that make a change of placement in
the best interests of the child. (§ 388; In re Audrey D. (1979) 100 Cal. App. 3d 34, 45 [160
Cal. Rptr. 802]; Cal. Rules of Court, rule [5.570(h)(1)].)” (In re Stephanie M., supra, 7
Cal.4th at p. 317.) However, when a request comes late in the proceeding following the
termination of reunification services, as in this case, “the parent[’s] 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’ (In re Marilyn H.,
supra, 5 Cal.4th [at p.] 309), and in fact, there is a rebuttable presumption that continued
foster care is in the best interests of the child. (Id., at p. 302.) A court hearing a motion
for change of placement at this stage of the proceedings must recognize this shift of focus
in determining the ultimate question before it, that is, the best interests of the child.” (In
re Stephanie M., supra, at p. 317.) Thus, the juvenile court here “properly focused on the
child’s interests,” instead of mother’s interests. (Id. at p. 323.)
Relying on isolated and contradictory portions of the documentary and testimonial
evidence presented at the section 388 hearing, mother contends the juvenile court should
have found that there were changed circumstances supporting a change in the child’s
placement, which would promote the child’s best interest and need for permanency and
stability. However, as mother concedes, our limited power of review requires us to
“accept the evidence most favorable to the order as true and discard the unfavorable
evidence as not having sufficient verity to be accepted by the trier of fact.” (In re Casey
D. (1999) 70 Cal. App. 4th 38, 53.) “The juvenile court’s opportunity to observe the
witnesses and generally get ‘the feel of the case’ warrants a high degree of appellate court
deference. [Citation.]” (In re Jasmine D. (2000) 78 Cal. App. 4th 1339, 1351.) And, as
our Supreme Court has “warned: ‘ [“]The appropriate test for abuse of discretion is
whether the trial court exceeded the bounds of reason. When two or more inferences can
reasonably be deduced from the facts, the reviewing court has no authority to substitute
its decision for that of the trial court.” ’ (Walker v. Superior Court (1991) 53 Cal. 3d 257,
272 [279 Cal. Rptr. 576, 807 P.2d 418], quoting Shamblin v. Brattain (1988) 44 Cal. 3d
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474, 478-479 [243 Cal. Rptr. 902, 749 P.2d 339].)” (In re Stephanie M., supra, 7 Cal.4th
at pp. 318-319).
On this record, we may not and will not interfere with the juvenile court’s
considered decision. The juvenile court found that mother had not met her burden of
demonstrating changed circumstances. Despite mother’s arguments to the contrary,
given her extensive history of substance abuse and failure to complete rehabilitation
programs, the juvenile court could reasonably find that mother’s two years of sobriety
“against [her] previous failings,” did not show sufficiently changed circumstances
requiring a change in the child’s placement. (In re Brian R. (1991) 2 Cal. App. 4th 904,
918.) “[M]ore importantly,” the juvenile court was obliged to “evaluate the likelihood
that [mother] would be able to maintain a stable, sober and noncriminal lifestyle for the
remainder of [the child’s] childhood.” (Ibid.) The juvenile court also could reasonably
find that mother’s lately-presented plan to care for the child was not well-developed or
thought-out by mother. This is so especially in light of the fact that mother presented no
independent evidence — by way of reports, letters, or testimony of the current service
providers, therapists, and other professionals who worked with mother and the child —
showing that she was ready to assume custody of the child on a full-time basis with
family maintenance services and the assistance of friends and the child’s alleged father.
As to the child’s best interest and need for permanency and stability, the record shows
that at the time mother filed her section 388 petition, the child had already spent 24
months in a foster care home. The juvenile court appropriately noted, and the record
demonstrates, that mother had not progressed beyond one full-day of unsupervised
visitation per week, and on occasion, she spent an additional three to five hours with the
child to attend certain specific events. Mother presented no independent evidence that
the child’s best interest and need for permanency and stability would be promoted by the
child’s removal from the only home the child had ever known and placed in mother’s
home. (See In re Brittany K. (2005) 127 Cal. App. 4th 1497, 1507 [appellate court upheld
denial of parent’s section 388 petition where there was no “independent evidence that it
was in [children’s] best interests to be taken from the foster home where they were
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making substantial progress and from the foster parents with whom they were in the
process of bonding, and thereby deprive them of the stability and permanence of their
existing home”]; In re Zachary G. (1999) 77 Cal. App. 4th 799, 808 [appellate court
upheld summary denial of section 388 petition where parent presented no independent
evidence from therapist or expert showing it was in child’s best interest to be removed
from the only home and caretakers the child had ever known, and thereby be deprived of
the stability of a permanent home, in order to be returned to a parent who remained a risk
(based on psychological profile as well as historical patterns) to again regress].) We see
nothing in the record or the cases cited by mother from which we can conclude that the
juvenile court was required, as a matter of law, to grant her the relief she requested under
section 388. Accordingly, we must uphold the denial of mother’s section 388 petition.
DISPOSITION
The appeal from the portion of the April 24, 2015 order maintaining May 4, 2015,
as the date for the section 366.26 hearing is dismissed. The portion of the April 24, 2015,
order denying mother’s section 388 petition is affirmed.
_________________________
Jenkins, J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Pollak, J.
In re R.J., A144970
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