In re H.B. CA2/7

Filed 9/14/20 In re H.B. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re H.B., A Person Coming Under B305118
the Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. DK14595A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

T.P.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Steff Padilla, Juvenile Court Referee. Affirmed.
Emery El Habiby, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Acting
Assistant County Counsel, and Stephen D. Watson, Deputy
County Counsel, for Plaintiff and Respondent.
 INTRODUCTION

T.P., mother of H.B., appeals from the juvenile court’s order
denying her petition under Welfare and Institutions Code section
3881 to modify the court’s prior order terminating her family
reunification services. T.P. contends the court erred in ruling she
failed to show that there were changed circumstances and that
reinstating family reunification services was in the best interest
of H.B. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Juvenile Court Asserts Jurisdiction over H.B.
and Removes Her from T.P.
On December 9, 2015 officers of the Long Beach Police
Department searched the apartment of Lamont B., father of
three-month-old H.B., based on a tip Lamont was selling cocaine
from his home. Officers found ammunition, drug paraphernalia,
and a large amount of cocaine in the apartment, including rock
cocaine next to H.B.’s formula. T.P., who did not live with
Lamont, had left H.B. at the apartment that day and arranged
for Lamont’s mother to watch her. The Los Angeles County
Department of Children and Family Services learned T.P. knew
Lamont was a drug dealer and kept drugs and weapons in the
home.
The Department removed H.B. from Lamont’s and T.P.’s
physical custody and filed a petition under section 300,
subdivision (b), alleging, among other things, that Lamont
created a detrimental and dangerous home environment for H.B.

1 Statutory references are to the Welfare and Institutions
Code.

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and that T.P. “failed to protect [H.B.] in that she allowed [H.B.] to
reside in the home.” The juvenile court detained H.B., granted
T.P. monitored visitation, and ordered the Department to provide
T.P. with referrals for drug testing and resources to assist T.P. in
finding stable housing and transportation. The court advised
T.P., “You can take this opportunity and say, ‘I do not want my
daughter to be raised the same way I was. . . .’ You take this
order . . . and you get a safe place to live. . . . Then you work with
[the Department]. . . . You don’t keep doing the things you’re
doing that are causing this instability for your daughter. You
find another way. . . . This is a chance right now to do that.”2
On December 18, 2015 T.P. tested positive for cocaine. T.P.
told the Department social worker that it was the only time she
used cocaine, that she used it because the Department had taken
H.B. from her, and that she did not have a substance abuse
problem. The Department amended the petition to allege that
T.P. was “a recent abuser of cocaine, which periodically
render[ed] [her] incapable of providing regular care and
supervision of” H.B., and that T.P.’s substance abuse “place[d]
[H.B.] at risk of serious harm.”
On March 11, 2016 T.P. pleaded no contest to the
allegations in the petition, and the juvenile court declared H.B. a
dependent of the court. The court removed H.B. from T.P.’s
custody, ordered the Department to provide family reunification
services, granted T.P. monitored visits, and ordered T.P. to
complete a drug and alcohol program, parenting classes, and
individual counseling.

2 As a child, T.P. was a dependent of the juvenile court “due
to her mother’s extensive substance abuse history,” lived in foster
care, and “was a habitual runaway.”

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 B. T.P. Fails To Reunify with H.B. After 14 Months of
Family Reunification Services
In the first six months after the juvenile court removed
H.B. from T.P.’s custody, T.P. tested negative for drugs three
times, but failed to appear for drug tests four times. T.P.
regularly visited with H.B., but did not participate in any of the
other court-ordered programs. The outpatient substance abuse
program discharged T.P. for “excessive absences.” As for H.B.,
the Department reported she appeared “happy,” “healthy,” and
“bonded” to her caregiver.
In March 2017, one year after the juvenile court removed
H.B. from T.P.’s custody, the Department reported T.P.’s
compliance with her case plan was substantially deficient. T.P.
had not submitted to drug testing for seven months and had not
provided proof she had completed her court-ordered programs.
T.P. also stopped visiting H.B. at the end of 2016. Meanwhile,
H.B. “continue[d] to display a strong bond with her foster
mother.” On May 15, 2017 the juvenile court found T.P. had not
made significant progress in resolving the problems that led the
court to remove H.B. from her custody. The court terminated
family reunification services and set a selection and
implementation hearing under section 366.26.

C. The Juvenile Court Gives T.P. a Second Chance
On December 12, 2017 T.P. filed a petition under section
388 asking the juvenile court either to release H.B. to her or to
reinstate family reunification services. T.P. submitted proof she
had completed an inpatient substance abuse program,
transitioned to sober living, completed anger management,
parenting, and domestic violence classes, and tested negative for
drugs. The Department supported giving T.P. an additional six
months of family reunification services. On February 1, 2018 the

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juvenile court granted the petition in part, reinstated family
reunification services, and allowed T.P. to have unmonitored
visits with H.B. A month later, the court allowed T.P. to bring
H.B. to her temporary residence for overnight visits. The
Department observed that T.P. “displayed a strong bond with
[H.B.]” and that H.B. “recognize[d] [T.P.] as her mother and has a
healthy attachment to her.”
Soon after the court relaxed the restrictions on T.P.’s
visitation with H.B., however, the Department observed T.P. had
been “inconsistently testing” for several months. Despite a few
negative tests, T.P. failed to show up for six tests. On May 14,
2018 the juvenile court ruled T.P. could not take H.B. for
overnight visits until T.P. started testing again. The court
warned T.P.: “Any missed, dirty, or diluted tests, then visits
become monitored.” Soon after the hearing, T.P. tested positive
for cocaine on three consecutive tests over a three-week period.
The Department asked the court to terminate family
reunification services because T.P. had “exhausted [the]
reunification time” and to set the case for a selection and
implementation hearing under section 366.26.

D. The Juvenile Court (Again) Sets a Selection and
Implementation Hearing Under Section 366.26
On July 25, 2018 the court ordered the Department to
resume providing H.B. with permanent placement services and
set a hearing under section 366.26 for November 26, 2018.3 The

3 The court’s July 25, 2018 order did not explicitly terminate
family reunification services. As discussed, the Department
stated T.P. had “exhausted” the “reunification time,” but the
court’s February 1, 2018 order granting T.P. additional family

5
Department later learned that T.P. had only visited H.B. once
between June 2018 and October 2018 and that, in October 2018,
T.P. was incarcerated with an anticipated release date of
December 2019. While T.P. was incarcerated, the Department
observed H.B. appeared bonded to her caregiver and seemed
happy and healthy in her foster home. H.B.’s foster mother
expressed a desire to adopt her. From November 2018 through
the end of 2019, the juvenile court continued the section 366.26
hearing several times, ultimately setting the hearing for January
16, 2020.

E. T.P. Petitions for a Third Chance at Reunification
On January 15, 2020, the day before the scheduled hearing
under section 366.26, T.P. filed her second petition under section
388, asking the juvenile court to grant her an additional period of
family reunification “to allow [her] to demonstrate continued
sobriety and eventually transition [H.B.] to [her] care and
custody.” T.P. stated that, since her release from custody in
September 2019, she had been participating in a substance abuse
treatment program, a parenting program, and anger
management classes and that she had been “testing clean of all
substances.” At the February 28, 2020 hearing on her petition,4
T.P. explained she had been in jail for 12 months for violating the
terms of her probation on a drug-related offense because she
“stopped reporting.” T.P. testified she completed five months of

reunification services did not specify the duration of those
services. The parties agree, however, the juvenile court
terminated reunification services on July 25, 2018.

4 The juvenile court continued the section 366.26 hearing
pending the court’s ruling on T.P.’s section 388 petition.

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the substance abuse treatment program and would graduate
from the program “by the middle of [2020].” T.P. acknowledged
that she had previously relapsed after completing a substance
abuse treatment program, but stated that she had “changed a lot”
and “learned how to stay away from the environments that
dragged [her] to [abuse drugs].” T.P. said she no longer lived in
Long Beach, but moved to Los Angeles, away from the “people,
places, and things” that were her “triggers.” T.P. stated that her
current transitional housing did not allow children to live at the
facility, but that she had been “looking for” housing that accepted
children.
The Department opposed the petition. The Department
pointed out that, even though T.P. was currently participating in
a substance abuse treatment program, anger management
classes, and parenting classes, she had relapsed in 2018 after
completing an inpatient treatment program. The Department
cited a recent report by T.P.’s counselor stating that T.P. “has
been missing sessions.” The counselor explained that a patient
who fails to attend a session for 30 days will be dismissed from
the program and that T.P. “has been close to being dismissed.”
The Department acknowledged T.P.’s efforts to build a
relationship with H.B. through weekly visits, but argued that
H.B. had been in “a loving home” for most of the four years of her
life and that additional reunification services would not be in
H.B.’s best interest.
The juvenile court denied T.P.’s petition. The court
observed that the Department filed the dependency petition in
2015 and that T.P. “disappeared for a good portion of 2016 and
2017”5 and “wasn’t testing.” The court stated that, although it

5 T.P. stopped visiting H.B. from the end of 2016 to August
2017.

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granted T.P. unmonitored visitation in 2018, she subsequently
stopped testing and “found herself incarcerated again for
violating the terms and conditions of probation.” The court
concluded that T.P.’s circumstances were “not substantially
changed” and that granting the petition was not in H.B’s best
interest. The court found that “this child has languished in foster
care waiting for [T.P.] and [Lamont] to be able to be clean and
sober for an extended period of time” and that T.P. “has had . . .
five years since the first incident occurred, and the child is over
four” years old. T.P. timely appealed.

DISCUSSION

A. Applicable Law and Standard of Review
Section 388, subdivision (a)(1), provides in pertinent part:
“Any parent . . . may, upon grounds of change of circumstance or
new evidence, petition the court . . . for a hearing to change,
modify, or set aside any order of court previously made or to
terminate the jurisdiction of the court.” (See In re Stephanie M.
(1994) 7 Cal.4th 295, 317; In re J.M. (2020) 50 Cal.App.5th 833,
845; In re J.C. (2014) 226 Cal.App.4th 503, 525.) ‘“The petitioner
has the burden of showing by a preponderance of the evidence (1)
that there is new evidence or a change of circumstances and (2)
that the proposed modification would be in the best interests of
the child.’” (In re J.M., at p. 845; accord, In re Stephanie M., at
p. 317; see In re Marilyn H. (1993) 5 Cal.4th 295, 309 [“[t]he
burden . . . is on the parent to prove changed circumstances
pursuant to section 388 to revive the reunification issue”]; In re
D.B. (2013) 217 Cal.App.4th 1080, 1089 [same]; Cal. Rules of
Court, rule 5.570(e)(1), (h)(1).) “‘[T]he term “new evidence” in
section 388 means material evidence that, with due diligence, the
party could not have presented at the dependency proceeding at

8
which the order, sought to be modified or set aside, was entered.’”
(In re D.B., at p. 1093.)
“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; see In re Ernesto R. (2014) 230
Cal.App.4th 219, 223 [“the change in circumstances must be
substantial”].) “[A] section 388 petition seeking reinstatement of
reunification services or return of the child will necessarily
involve a parent who has made mistakes sufficient to support
termination of services at some point in the past. The question
must be whether the changes the parent made since then are
substantial enough to overshadow that prior determination, such
that reunification is now in the child’s best interests.” (In re
J.M., supra, 50 Cal.App.5th at p. 848.) “A parent establishes a
substantial change of circumstances for purposes of section 388
by showing that, during the period between termination of
reunification services and the permanency planning hearing, he
or she has resolved the previously unresolved issues supporting
juvenile court jurisdiction.” (In re J.M., at p. 846; see In re A.A.
(2012) 203 Cal.App.4th 597, 612 [“the problem that initially
brought the child within the dependency system must be removed
or ameliorated”].)
We review the juvenile court’s finding that T.P. failed to
carry her initial burden to demonstrate a substantial change of
circumstances or to present material new evidence by
determining whether the evidence compels a finding in her favor
on that issue as a matter of law. (See In re N.O. (2019)
31 Cal.App.5th 899, 925; In re Aurora P. (2015) 241 Cal.App.4th
1142, 1156.) Specifically, we determine whether “the evidence
‘was (1) “uncontradicted and unimpeached” and (2) “of such a
character and weight as to leave no room for a judicial

9
determination that it was insufficient to support a finding.”’”
(In re Luis H. (2017) 14 Cal.App.5th 1223, 1227; see In re I.W.
(2009) 180 Cal.App.4th 1517, 1528, disapproved on another
ground in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010,
fn. 7.) We review for abuse of discretion the juvenile court’s
ruling that providing T.P. additional reunification services was
not in H.B.’s best interest. (See In re Stephanie M., supra, 7
Cal.4th at p. 318; In re J.C., supra, 226 Cal.App.4th at
pp. 525-526.)

B. The Evidence Does Not Compel a Finding of
Substantially Changed Circumstances or Significant
New Evidence
T.P. argues she “established changed circumstances or new
evidence” by presenting evidence that, “[s]ince the termination of
her family reunification services on July 25, 2018, [she] had been
released from incarceration,” was “participating in a substance
abuse treatment program,” was “testing clean,” and “had been
sober for 15 to 17 months.” The evidence does not compel a
finding in T.P.’s favor as a matter of law.
The court based its July 25, 2018 order terminating
reunification services on evidence T.P. had relapsed: She tested
positive for cocaine three straight times, missed several other
tests, and stopped visiting H.B. (from June 7, 2018 to July 25,
2018). At the time of the hearing on her second petition under
section 388 in February 2020, T.P. had completed five months of
a substance abuse treatment program and tested negative for
drugs on three occasions between October 4, 2019 and January
10, 2020. While this evidence may have been “new,” it did not
compel a finding T.P. had resolved the issue that supported
juvenile court jurisdiction, namely, her drug addiction. (See In re
J.M., supra, 50 Cal.App.5th at p. 846.) Even assuming the three

10
isolated drug test results established T.P. was not using drugs
during October 4, 2019 to January 10, 2020, that relatively short
period of sobriety did not demonstrate she had overcome her drug
addiction, given how long it took for her to confront her substance
abuse problem during her first period of reunification services
and her extended relapse during her second period of
reunification services. (See In re C.J.W. (2007) 157 Cal.App.4th
1075, 1081 [parents’ three months of sobriety was not sufficient
to show changed circumstances after “extensive histories of drug
use and years of failing to reunify with their children”]; In re
Mary G. (2007) 151 Cal.App.4th 184, 206 [“Given the severity of
[the mother’s] drug problem the court could reasonably find her
sobriety between March and . . . June . . . was not particularly
compelling.”]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423-424
[“full compliance with [the] treatment plan, coupled with seven
months of clean tests,” was not sufficient to show changed
circumstances]; In re Kimberly F. (1997) 56 Cal.App.4th 519, 531,
fn. 9 [“It is the nature of addiction that one must be “clean” for a
much longer period than 120 days to show real reform.”]; see also
In re Marcelo B. (2012) 209 Cal.App.4th 635, 642 [“the juvenile
court properly found that [the father’s] belated choice to return to
treatment is no guarantee that he will achieve or maintain the
sobriety required for him to be a parent”].)
T.P. also had not completed her substance abuse treatment
program, and her individual counselor stated T.P. missed so
many sessions the counselor almost dismissed her from the
program. Although T.P. asserted she had been sober for 15 to 17
months, she did not present evidence to support that assertion.
And T.P. still lived in transitional housing that did not allow
children, had recently lost her job and was looking for another
one, and indicated she might reestablish a relationship with
Lamont, who lived in Long Beach, the very locale of her

11
“triggers.” T.P.’s only explanation for relapsing in 2018 was: “I
was going through a lot. I was stressing and I ended up
relapsing.” Although T.P. set admirable goals for herself to stay
sober, her life circumstances still presented the kind of stress and
pressures that make her vulnerable to another relapse. The
court properly considered T.P.’s history of relapsing after
completing a substance abuse treatment program in 2018, as well
as her inability to comply with the case plan for much of the
reunification period. (See In re Mickel O., supra, 197 Cal.App.4th
at p. 616 [“In considering whether the petitioner has made the
requisite showing, the juvenile court may consider the entire
factual and procedural history of the case.”].)
We commend T.P. for her efforts to turn her life around
after her release from incarceration. Nevertheless, at the time of
the hearing on her second section 388 petition, T.P. still had a
long way to go to demonstrate a change in circumstances of “such
significant nature” (In re Mickel O., supra, 197 Cal.App.4th at
p. 615) that it justified setting aside the court’s order terminating
reunification services. The evidence does not compel a finding
T.P. established significantly changed circumstances. (See In re
Casey D. (1999) 70 Cal.App.4th 38, 48 [mother’s regular
attendance at a drug treatment program (among other
rehabilitation efforts) did not show changed circumstances
because she had not completed most of the program’s
requirements and had “a tendency to engage in treatment
programs when required to do so by outside agencies and then
relapse once the requirement was lifted”]; cf. In re J.M., supra, 50
Cal.App.5th at p. 846 [mother established a significant change in
circumstances where “she had resolved the domestic violence
underlying the initial dependency petition,” “had not been in
contact with [the father] for over a year,” and “had completed all
required domestic violence training, and nothing suggested [she]

12
was or had been in another potentially violent or abusive
relationship”].)6

C. The Juvenile Court Did Not Abuse Its Discretion in
Ruling That Granting the Petition Was Not in H.B.’s
Best Interest
T.P. asserts: “Providing [T.P.] with additional family
reunification services and an opportunity to reunify with [H.B.]
was clearly in [H.B.’s] best interests.” The evidence showed,
however, that granting T.P. additional reunification services
would have negatively affected H.B.’s overriding interest in
permanency and stability.
Although a parent and child “share a fundamental interest
in reuniting up to the point at which reunification efforts cease,”
their interests “diverge[ ] by the point of a [section 366].26
hearing to select and implement a child’s permanent plan.” (In re
J.C., supra, 226 Cal.App.4th at p. 527). “After the termination of
reunification services, the parents’ 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 Stephanie M., supra, 7 Cal.4th
at p. 317; see In re Jasmon O. (1994) 8 Cal.4th 398, 419-420
[“after a child has spent a substantial period in foster care and
attempts at reunification have proved fruitless, the child’s

6 Contrary to T.P.’s assertion, her release from incarceration
was not a changed circumstance. T.P. was not incarcerated on
July 25, 2018, when the juvenile court terminated reunification
services, and she was not incarcerated on January 15, 2020,
when she filed her petition under section 388. The only
circumstance that changed during this period was that T.P.
completed a 12-month jail term, hardly a circumstance that
supported her petition.

13
interest in stability outweighs the parent’s interest in asserting
the right to the custody and companionship of the child”]; In re
J.C., at p. 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”]; In re
Edward H. (1996) 43 Cal.App.4th 584, 594 [“on the eve of the
section 366.26 . . . hearing, the children’s interest in stability was
the court’s foremost concern and outweighed any interest in
reunification”].)
Here, aside from her conclusory assertion that reunifying
with H.B. was in H.B.’s best interests, T.P. did not present any
evidence to show how giving her a third round of reunification
services would further H.B.’s interest in living in a permanent
and stable home. H.B. lived almost the entire four years of her
life in the home of her foster mother, whom she called “mommy”
and to whom she looked for all of her needs. Keeping this case
pending for an additional period of uncertainty to allow T.P. to
try for the third time to resolve the issues that led to dependency
jurisdiction and to repeat her attempts to reunify with H.B.
would only delay permanence and stability for H.B. (See In re
Ernesto R., supra, 230 Cal.App.4th at pp. 223-224 [“[g]ranting a
section 388 petition would delay selection of a permanent home
and not serve the . . . best interests [of the child],” who “has been
in the care of his foster parents for the majority of his life and is
bonded with them”]; In re J.C., supra, 226 Cal.App.4th at p. 526
[mother “did not establish [the child’s] need for permanency and
stability would be advanced by an order returning [her] to [the
mother’s] care” because the maternal aunt, who had assumed full
responsibilities for raising the child since her birth, “was the only
constant and stable parent [the child] had ever known”].)

14
 T.P. also argues that, “[w]ith few exceptions, [she]
maintained regular visits with” H.B. The facts are to the
contrary. As discussed, T.P. stopped visiting H.B. for seven
months in 2017, and in 2018 she again disappeared from H.B.’s
life for seven weeks when the Department informed T.P. her
visits with H.B. would be monitored. A third unexplained gap in
visitation occurred in the two months leading up to T.P.’s
incarceration in October 2018. These numerous and lengthy
lapses in visits created instability in H.B.’s life and weighed
against granting T.P. additional reunification services. (Cf. In re
J.M., supra, 50 Cal.App.5th at p. 850 [trial court abused its
discretion in denying the mother’s section 388 petition for
additional reunification services because the mother “did what
the court asked of her,” “never stopped visiting her son [and]
never stopped asking for overnight visits and placement in her
home,” which showed “a tremendous level of initiative and
dedication, and suggests that it would be in [the child’s] best
interests to be placed with her”].)
H.B. has lived with the uncertainty of foster care for more
than four years, which for her is literally a “lifetime” (In re
Marilyn H., supra, 5 Cal.4th at p. 310). H.B.’s interest in
permanency and stability, which the court deferred for a
considerable amount of time to give T.P. a second chance at
resolving her drug addiction and substance abuse issues,
outweighed T.P.’s interest in a last-minute reinstatement of
reunification services. (See id. at p. 309 [“[t]he parent is given a
reasonable period of time to reunify and, if unsuccessful, the
child’s interest in permanency and stability takes priority”]; D.T.
v. Superior Court (2015) 241 Cal.App.4th 1017, 1034 [“Our
juvenile court law . . . shift[s] the emphasis of the proceedings
over time from the goal of preserving the family at the outset to
that of protecting and promoting the best interests of the child if

15
efforts at reunification produce unsatisfactory results or drag on
too long.”]; In re Edward H., supra, 43 Cal.App.4th at p. 594 [“the
prospect of an additional six months of reunification to see if the
mother would and could effectively separate from the father
would not have promoted stability for the children and thus
would not have promoted their best interests”].)

DISPOSITION

The order denying T.P.’s petition under section 388 is
affirmed.

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.

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