No. E066394.

In re E.A., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. A.M. et al., Defendants and Appellants.

Court of Appeals of California, Fourth District, Division Two.

Attorney(s) appearing for the Case

William D. Caldwell , under appointment by the Court of Appeal, for Defendant and Appellant A.M.

Donna P. Chirco , under appointment by the Court of Appeal, for Defendant and Appellant A.A.

Gregory P. Priamos , County Counsel, and James E. Brown , Guy B. Pittman and Carole Nunes Fong , Deputy County Counsel, for Plaintiff and Respondent.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



The juvenile court terminated the parental rights of defendants and appellants A.M. (mother) and A.A. (father) regarding their daughter, E.A., pursuant to Welfare and Institutions Code1 section 366.26. On appeal, they contend the court erred by denying their section 388 petitions. We find no error and affirm.


In May 2015, the Riverside County Department of Public Social Services (the Department) filed a petition alleging E.A. (the child), born April 2015, came within section 300, subdivision (b). The petition alleged the parents abused controlled substances; had criminal histories involving substance abuse (father) and criminal threats and battery on a spouse or cohabitant (mother); had a transient lifestyle and were unable to provide a suitable and stable living environment for the child; mother had mental health issues and failed to maintain treatment; and father failed to protect the child, although he knew or should have known mother was abusing controlled substances. The Department was unable to detain the child with a family member, and thus, she was placed in a "fully approved adoptive [foster] home." On May 5, 2015, the juvenile court detained the child outside the home, found father to be the presumed father, authorized predisposition services, and ordered supervised visitation.

According to the jurisdiction/disposition report filed May 21, 2015, and its addendums filed on June 2 and July 16, 2015, respectively, the parents lived a transient lifestyle, tested positive for illegal controlled substances, and failed to faithfully visit the child; father did not engage in the services offered to him; and mother delayed enrollment in her services, only to be terminated due to her failure to attend. Neither parent attended the jurisdiction/disposition hearing on July 21, 2015. The juvenile court sustained the allegations in the petition, adjudged the child to be a dependent of the court, ordered reunification services for both parents, and ordered supervised visitation if parents are "enrolled in or in compliance with their Case Plan programs and are testing clean." Mother's counsel objected to the order.

According to the six-month status review report filed on January 4, 2016, mother failed to enroll in a substance abuse treatment program, failed to make herself available for random drug testing, and failed to enroll in therapy; she had not received any mental health treatment services in two years despite her acknowledgement that she suffered from manic depression, and she had not participated in a 12-step program or parenting education because she did not feel it was necessary. As of the status review report filed on January 4, 2016, father had not participated in his case plan, and he had not been in contact with the Department during the reporting period. From July 21, 2015, to January 4, 2016, the parents had not visited with the child, as they had not engaged in their case plan services as required by court order. The Department recommended termination of reunification services. Mother requested a contested hearing.

Both parents attended the contested six-month review hearing on February 29, 2016. The addendum report filed the same date noted that on January 29, 2016, mother had enrolled in an inpatient drug treatment program but only stayed there a few days. On February 22, 2016, mother indicated she would be enrolling in an inpatient drug treatment program, but she did not do so. Father was placed on a waiting list to enroll in an inpatient drug treatment program. On February 9, 2016, the paternal grandmother (grandmother) stated that she was in the process of getting a new residence that would have room for the child. The parents had few visits with the child; however, the visits were reported to be "appropriate and no concerns were noted." Given the parents' failure to comply with their case plans, along with the willingness of the caregivers to adopt the child, the Department recommended termination of reunification services and the setting of a section 366.26 hearing. At the conclusion of the status review hearing, the juvenile court followed the Department's recommendations.

Both parents filed section 388 petitions. Mother requested that the court reinstate family reunification services to her, order increased frequency and duration of visits supervised by someone other than the foster parents, and order an expedited relative placement assessment for grandmother. Father requested that the section 366.26 hearing be vacated, that family reunification services be reinstated, and that supervised visitation be increased, with authorization for liberalized visits to include unsupervised, overnight, and weekend visits. The juvenile court set a hearing on the parents' requests. Pending the hearing, the court authorized, and the Department provided, increased visitation supervised by the Department. In response to the section 388 petitions, the Department noted that the parents' endeavors to change their circumstances were recent and had not been sustainable over a significant period of time. In contrast, the child had continually lived with her caregivers, who wanted to adopt her and with whom she had established a loving bond.

On June 27, 2016, the juvenile court denied the parents' section 388 petitions, acknowledging that the case was a "very difficult" one. Regarding the mother, the court found that her situation was changing; however, it had not "gotten to the point where it is actually changed." Regarding the father, the court agreed that he had changed circumstances; however, it did not agree that it was in the best interests of the child to reinstate reunification services. After finding it likely that the child would be adopted, the juvenile court terminated parental rights. Both parents appeal.


Mother contends the juvenile court erred in denying her section 388 petition because neither the court nor the Department properly applied the relative placement preference to the expedited assessment she requested. She further claims the court erred in finding that her circumstances had not changed and in failing to address whether her request serves the child's best interests. Father asserts the court erred in finding that it was not in the child's best interests to grant father's petition.

"A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. [Citation.] The parent bears the burden to show both a legitimate change of circumstances and that undoing the prior order would be in the best interest of the child. [Citation.] Generally, the petitioner must show by a preponderance of the evidence that the child's welfare requires the modification sought. [Citation.]" (In re A.A. (2012) 203 Cal.App.4th 597, 611-612.)

"Under section 388, a party `need only make a prima facie showing to trigger the right to proceed by way of a full hearing.' [Citation.] The prima facie showing is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition. [Citation.] In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. [Citation.]" (In re J.P. (2014) 229 Cal.App.4th 108, 127.)

"`The petition is addressed to the sound discretion of the juvenile court, and its decision will not be overturned on appeal in the absence of a clear abuse of discretion.'" (In re J.T. (2014) 228 Cal.App.4th 953, 965.)

A. Mother's Petition was Correctly Denied.

1. Relative Placement Assessment.

Mother contends that both the juvenile court and the Department violated section 361.3, denying relative placement consideration of the grandmother. We disagree.

Section 361.3 provides that in any case where a child is removed from the physical custody of his or her parents, "preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative. . . ." (§ 361.3, subd. (a).) "`Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, subd. (c)(1).) The statute lists a number of factors to be used by the county social worker (i.e., the Department) in determining whether a placement is appropriate, although consideration is not limited to the specified factors. (§ 361.3, subds. (a)(1)-(a)(8).) Among these are the following: "The best interest of the child, including special physical, psychological, educational, medical, or emotional needs" (§ 361.3, subd. (a)(1)); the "wishes of the parent, the relative, and the child, if appropriate" (§ 361.3, subd. (a)(2)); the placement of siblings together (§ 361.3, subd. (a)(4)); and the ability of the relative to provide a safe home and the necessities of life for the child (§ 361.3, subds. (a)(7)(C), (8)).

Cases interpreting the statute have stressed that it does not create an evidentiary presumption. Instead, "`relatives [are to] be assessed and considered favorably, subject to the juvenile court's consideration of the suitability of the relative's home and the best interests of the child.' [Citations.]" (In re Antonio G. (2007) 159 Cal.App.4th 369, 377.) The preference applies "when a new placement becomes necessary after reunification services are terminated but before parental rights are terminated and adoptive placement becomes an issue." (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.)

The record demonstrates that a new placement was not necessary for the child, given the caretakers desire to adopt her. (Cesar V. v. Superior Court, supra, 91 Cal.App.4th at p. 1032.) Moreover, both the juvenile court and the Department were responsive to the request that the grandmother be assessed for placement. On January 19, 2016, the court was informed that the grandmother was attempting to obtain placement of the child's half sibling. The child's counsel informed the court that, according to her recollection, the grandmother "was considered for a period of time, but her actions kind of excluded her." On February 9, 2016, the social worker spoke with the grandmother, who stated she was in the process of getting a residence, and that she should have one by the end of March. The grandmother indicated that she would inform the social worker once she moved in. On February 29, 2016, the grandmother informed the court that she had not yet obtained care and custody of any grandchildren. When the Department noted that she did not have a residence, she disagreed. The court then instructed her, and she agreed, to "follow through with whatever is necessary for consideration of placement." On March 23, 2016, the Relative Assessment Closure Summary indicated that the grandmother had "reported that she did not have stable housing and was going to move soon but did not have an address yet."

Contrary to mother's claim, therefore, the Department did attempt to assess the grandmother for placement; however, she could not be assessed because she did not have a home that could be inspected. (§§ 309, subd. (d)(1), 361.3, subd. (a)(8).) At the trial level, mother offered no evidence (with her petition or during the June 27, 2016, hearing) showing that the grandmother had a home. Moreover, mother did not raise the topic of relative placement, or challenge the juvenile court's failure to address it. Given the record before this court, we conclude that neither the juvenile court nor the Department violated section 361.3.

2. Changed Circumstances.

Mother faults the juvenile court for denying her petition "because her circumstances are changing, not changed." She argues that she only had to show changing circumstances and that to require a showing of changed circumstances applies "a more restrictive requirement than the statutory one." This argument ignores the usual and ordinary meaning of the word "change," along with the context of the child dependency statutory scheme.

The Legislature has enacted laws for the purpose of providing children maximum safety and protection where they have been victims of abuse or neglect. (§ 300.2.) The goal is to prevent reabuse of children, with a focus on the preservation of families. (Ibid.) After the termination of reunification services, the court's focus shifts from the parents' custodial interest in their children to the children's needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) At this point in the proceedings there is a rebuttable presumption that continued foster care is in the best interests of the children. (Id. at p. 310.) "To rebut that presumption, a parent must make some factual showing that the best interests of the child would be served by modification." (In re Angel B. (2002) 97 Cal.App.4th 454, 465.)

Section 388, subdivision (a)(1), in relevant part, provides: "Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made. . . . The petition shall . . . set forth in concise language any change of circumstance or new evidence that is alleged to require the change of order or termination of jurisdiction." While section 388 requires a parent to plead a "change of circumstance," evidence must show that there has actually been a change and that the parent is not merely in either initial stages of accomplishing the goals of reunification or in a process of changing which may derail. (In re Casey D. (1999) 70 Cal.App.4th 38, 47 ["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."].) Any less of a requirement would frustrate both the common meaning of the language used in section 388 and the goal of the child dependency statutory scheme. Even a showing of great effort to make considerable improvements will not necessarily be persuasive at a section 388 hearing where a parent's prior circumstances demonstrate an extensive history of drug use and prior failures to reunify with his or her other children. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081-1082.)

According to mother's petition, her circumstances had changed. In contrast to her circumstances from May 2015, through January 2016, she alleges that: (1) she is sober; (2) she is testing clean; (3) she is living in a sober living environment; (4) she is participating in outpatient substance abuse treatment and in a support group; (5) she is consistently visiting the child; and (6) she completed a residential substance abuse rehabilitation program. On that basis, mother argues that she did show a change of circumstance.

While mother is to be commended for having begun the process of turning her life around, as of the time of the juvenile court's ruling, her sobriety was still a relatively new phenomenon, begun only after nearly one year of failing to comply with the court-ordered reunification plan, and within two months of the termination of her parental rights. (See In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9 (Kimberly F.) [doubting that a parent who loses custody due to consumption of illegal drugs and "whose compliance with a reunification plan is incomplete during the reunification period" could show changed circumstances, because "[i]t is the nature of addiction that one must be `clean' for a much longer period than 120 days to show real reform."].) Although mother had been doing well within the confines of her program and sober living home, she had not yet completed the program when she filed her section 388 petition, and there was no evidence that she could remain sober outside of such structure. Even if the evidence could arguably have supported a different conclusion, as mother urges, the juvenile court's determination that mother had demonstrated only changing, not changed, circumstances did not exceed the bounds of reason.

Having concluded that the juvenile court did not err in denying mother's petition because her circumstances were changing, not changed, we need not reach the merits of her claim that the court erred in failing to address whether her request serves the child's best interests. (California Rules of Court, rule 5.570(d)(1).)

B. Father's Petition Was Correctly Denied.

Father contends the juvenile court erred in finding that it was not in the child's best interests to grant his petition. We are not persuaded.

Father argues his section 388 petition showed he could demonstrate best interests under the Kimberly F. factors. The Kimberly F. factors to which father refers are: "(1) The seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (Kimberly F., supra, 56 Cal.App.4th at p. 532.) "While this list is not meant to be exhaustive, it does provide a reasoned and principled basis on which to evaluate a section 388 motion." (Ibid.)

The above factors focus primarily on the parent and not on the child's need for permanency and stability. However, the goal of assuring stability and continuity is a primary consideration in any custody determination. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Thus, Kimberly F. is of limited value in providing guidance as to how to determine the child's best interests when analyzing a section 388 petition after services have been terminated and the focus has shifted from the parents' custodial interest in their child to the child's needs for permanency and stability. (In re Marilyn H., supra, 5 Cal.4th at p. 309; In re J.C. (2014) 226 Cal.App.4th 503, 527 ["after 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."].)

Here, there was no showing that providing father with additional services would advance the child's need for permanency and stability. By the time of the section 388 petition, the child had lived with her caregivers for over one year, basically her entire life. She had never lived with father and had only visited with him a few times, beginning when she was nearly 10 months old. While father did act appropriately during their visits, he had only had about three since her birth, and the child would get upset and cry when the caregivers were not present. The child had established a healthy and loving bond with her caregivers, and they wanted to adopt her. Moreover, father's sobriety was recent. While he is to be commended for his participation, albeit late, in reunification services, the juvenile court did not exceed the bounds of its reasoning deciding that it was not in the child's best interest to extend her dependency and put off permanency and stability to grant father further services.

Under these circumstances, the juvenile court did not abuse its discretion by denying father's section 388 petition.


The orders appealed from are affirmed.

MILLER, J. and SLOUGH, J., concurs.


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


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