Filed 1/18/24 In re D.F. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re D.F., a Person Coming Under
the Juvenile Court Law.
D082638
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. J520615)
Plaintiff and Respondent,
v.
J.F. et al.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of San Diego County,
Alexander M. Calero, Judge. Affirmed.
Pamela Rae Tripp, under appointment by the Court of Appeal, for
Defendant and Appellant, J.F.
Sarah Vaona, under appointment by the Court of Appeal, for Defendant
and Appellant, J.G.
Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy
County Counsel, and Evangelina Woo, Deputy County Counsel, for Plaintiff
and Respondent.
J.F. (mother) appeals the juvenile court’s denial of her petition under
Welfare and Institutions Code1 section 388 to modify an order terminating
reunification services regarding her daughter, D.F., and setting a hearing for
termination of parental rights under section 366.26. She also appeals the
subsequent termination of her parental rights. Mother contends both orders
should be reversed because the circumstances had changed, and it was in
D.F.’s best interests to be in mother’s custody. J.G. (father) also appeals the
termination of his parental rights and adopts mother’s arguments.2 We find
no error and affirm the orders.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Mother started using methamphetamine at the age of 13 and heroin at
the age of 29. Although she previously graduated from two substance abuse
programs, she used methamphetamine and heroin every day before becoming
pregnant with D.F. at the age of 37. Mother attempted to stop using while
pregnant with D.F., but she ultimately used methamphetamine and heroin
during the pregnancy. When D.F. was born in December 2020, she tested
positive for amphetamine and methamphetamine.
The matter was referred to the Health and Human Services Agency
(Agency), who filed a petition pursuant to section 300, subdivision (b),
1 All statutory references are to the Welfare and Institutions Code.
2 Because father does not raise any arguments regarding his
circumstances, we focus our review on the facts and issues related to mother.
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alleging that mother was unable to care for D.F. due to her substance abuse.
On December 31, 2020, the juvenile court ordered that D.F. be detained in
foster care or the home of an approved relative.
When D.F. was released from the hospital on January 5, 2021, she was
initially placed with a foster parent. She was then placed with her maternal
grandmother on January 30, 2021. Mother continued to use drugs after
D.F.’s birth and she unsuccessfully attempted two substance abuse treatment
programs over the next two months.
On May 4, 2021, the juvenile court sustained the Agency’s petition and
declared D.F. a dependent. The court placed D.F. with her maternal
grandmother and ordered reunification services for mother.
After completing an inpatient substance abuse program, mother
relapsed from June 2021 through August 2021. The maternal grandmother,
who also has a long substance abuse history, relapsed during this time as
well, and the Agency returned D.F. to the foster parent’s care on July 16,
2021.
By the end of August 2021, mother entered another substance abuse
program. At the six-month review hearing, which took place on January 7,
2022, the juvenile court found that mother was making adequate progress
and ordered that she continue to receive reunification services.
It was thereafter discovered that mother had a second relapse from
December 2021 through February 2022. Mother then continued her recovery
efforts with additional substance abuse treatment, and by August 2022 the
juvenile court authorized unsupervised visits with D.F. Based in part on
mother’s progress, the 12-month review hearing was continued several times
and set to be heard with the 18-month review hearing. By December 2022,
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mother reported 10 months of sobriety, and she began having overnight visits
with D.F.
On January 23, 2023, the Agency placed D.F. in mother’s care. That
same day, mother left D.F. with the maternal grandmother so she could use
methamphetamine because she was stressed and did not know how to
manage working and taking care of D.F. The Agency returned D.F. to the
foster parent the following day, and determined that despite completion of
substance abuse programs, mother did not have the tools or the self-
discipline necessary to maintain her sobriety.
The 18-month review hearing went forward on February 7, 2023, at
which time the juvenile court terminated reunification services for mother
and set the matter for a section 366.26 hearing to decide a permanent plan
for D.F.
On August 15, 2023, mother filed a section 388 petition seeking
modification of the February 7, 2023 order. She requested that the juvenile
court place D.F. in her care, continue reunification services, and vacate the
section 366.26 hearing. The petition alleged mother achieved sobriety by
attending South Bay Women’s Recovery Center (SBWRC), she maintained
excellent visitation with D.F., and she had stable housing. In support of her
petition, mother submitted two progress reports from SBWRC, a relapse
prevention plan, documentation regarding completed classes and meetings, a
letter from her counselor at El Dorado Community Service Center, and drug
test results from February 17, 2023, through July 13, 2023.
Mother’s section 388 petition was heard together with the section
366.26 hearing on August 15 and 18, 2023. At those hearings, the juvenile
court admitted two reports and testimony from an Agency social worker
recommending termination of parental rights based on mother’s unresolved
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substance abuse and D.F.’s need for permanency. Mother’s counselor from
SBWRC, Vicky Baird (Baird), also testified, opining that mother’s recent
recovery is different because she has a new desire to stay sober and she
knows her triggers. Mother testified as well, stating that she has a very
strong bond with D.F., and she has increased her recovery efforts by going to
meetings and church, and by relying on others in recovery.
The juvenile court denied mother’s section 388 petition, finding at best,
the circumstances that brought D.F. into dependency, namely mother’s long
history of substance abuse, were changing but not yet changed. The court
also found that modification of the prior order would not be in D.F.’s best
interests. It then proceeded under section 366.26 and terminated mother’s
parental rights. Mother timely appealed from both rulings.
II.
DISCUSSION
Mother argues the juvenile court abused its discretion in denying her
section 388 petition because she demonstrated a change of circumstances and
that returning D.F. to her custody was in D.F.’s best interests. She further
contends that if the denial of her section 388 petition is reversed, the order
terminating her parental rights under section 366.26 should also be reversed.
Because we find no error in the denial of the section 388 petition, we affirm
both orders.3
3 Mother also claims the juvenile court “completely bypassed” her
reunification services. Mother’s factual assertions in support of this claim
are not supported by a proper citation to the record, and they are directly
contradicted by the record and her own briefing. Additionally, mother
forfeited this claim because she did not challenge the adequacy of her
reunification services in the juvenile court. (In re G.C. (2013) 216
Cal.App.4th 1391, 1398.)
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A. Standard of Review
“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.” (In re A.A. (2012) 203
Cal.App.4th 597, 611.) “We review a juvenile court’s denial of a section 388
petition for abuse of discretion, and review its factual findings for substantial
evidence. [Citation.] We may disturb the exercise of the court’s discretion
only when the court has made an unreasonable or arbitrary determination.”
(In re J.M. (2020) 50 Cal.App.5th 833, 846 (J.M.).)
B. Changed Circumstances
Mother argues she made significant progress during the case and at
one point regained care of D.F., so her circumstances have changed from
where she started. She contends her most recent relapse was brief and
disclosed immediately, after which she intensified her recovery services and
maintained six additional months of sobriety. She further claims the juvenile
court’s determination that her circumstances were changing but not changed
places semantics over justice and is unrealistic in the context of recovery from
drug addiction. We disagree for three reasons.
First, mother’s focus on her progress from where she started is
misplaced. “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.” (J.M., supra, 50 Cal.App.5th at p. 846, italics added.) As
such, the relevant change is that which occurred after mother’s reunification
services were terminated on February 7, 2023.
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Second, “references to ‘changed’ and merely ‘changing’ circumstances
are another way of describing the distinction on which we rely, between
changes that are material and those that are not. However expressed, the
point is that section 388 requires a change that is relevant and substantial
(rather than irrelevant or de minimis) when considered in light of all of the
circumstances of the case.” (In re N.F. (2021) 68 Cal.App.5th 112, 121, fn. 3
(N.F.).) The juvenile court therefore did not rely on an incorrect standard
when it determined mother’s circumstances were merely changing but not
changed.
Third, “In the context of a substance abuse problem that has repeatedly
resisted treatment in the past, a showing of materially changed
circumstances requires more than a relatively brief period of sobriety or
participation in yet another program.” (N.F., supra, 68 Cal.App.5th at p.
121.) Courts have routinely reached this conclusion. (E.g., In re Amber M.
(2002) 103 Cal.App.4th 681, 686 [372 days of sobriety was insufficient in light
of mother’s 17-year substance abuse history and two previous relapses during
the case]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [father’s seven
months of sobriety since his last relapse was inadequate based on long
history of drug use with alternating periods of sobriety]; N.F., supra, 68
Cal.App.5th at pp. 119, 121-122 [five months of sobriety after completing 90-
day residential treatment program was not enough due to history of relapses
and conflicting evidence of current sobriety]; In re C.J.W. (2007) 157
Cal.App.4th 1075, 1081 [parents’ most recent efforts at sobriety “were only
three months old” and did not demonstrate changed circumstances due to
extensive histories of drug use and years of failing to reunify with their
children]; In re Mary G. (2007) 151 Cal.App.4th 184, 205-206 [mother being
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clean for three months was insufficient in light of 23-year substance abuse
history].)
While we commend mother’s efforts, her circumstances are like these
previous cases. She had a 28-year substance abuse history, and she
continued to use drugs daily before this case started despite graduating from
two substance abuse programs. Her attempt at sobriety while pregnant with
D.F. was unsuccessful, and she relapsed three times during this dependency
case. Mother’s alleged six months of sobriety after the court terminated
reunification services is also not a new circumstance, as she had previously
attained almost a full year of sobriety during this case.
Mother’s characterization of her latest relapse and subsequent sobriety
are also inaccurate. In her brief, mother describes the relapse as a brief one-
day incident that was short lived. However, that relapse occurred on
January 23, 2023, and mother continued to test positive for
methamphetamine and amphetamine through February 28, 2023. The latest
relapse therefore lasted over a month, which is similar to her two previous
relapses during this case. Mother also did not remain sober for the six
months leading up to the hearing on her section 388 petition as she claims.
She tested positive for marijuana on March 15, 2023, and April 7, 2023, so
she was sober for approximately four months when the juvenile court heard
the matter on August 18, 2023.
Despite mother’s new relapse prevention plan and expanded support
network, there was insufficient evidence of material progress with the
protective issue of her long-term substance abuse. Mother submitted
progress reports from SBWRC signed by Baird indicating that mother was
“assessed at an IOS level of care” and made significant progress. However,
Baird was unable to identify what IOS meant. She also testified that the
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different levels of care at SBWRC are identified as “dimensions” one through
five, but she was unable to explain the dimensions. As noted by the juvenile
court, without knowing the measurements used by mother’s substance abuse
program, her commitment and progress could not be adequately assessed.
Baird also had not spoken to anyone from mother’s prior treatment programs,
so she was unable to compare the results in the current program with the
previous unsuccessful programs. Further, while Baird believed mother’s new
prevention plan was adequate because mother was now aware of her triggers,
mother continued to live with the maternal grandmother despite identifying
that neighborhood as a trigger.
As for the letter from mother’s counselor at El Dorado Community
Service Center, it indicated mother had been a patient since March 11, 2021,
but it contained no other dates. The letter was therefore inadequate to
establish any progress made after the February 7, 2023 order terminating
reunification services. The juvenile court also questioned mother’s
credibility, and we defer to its assessment of that issue. (In re Ana C. (2012)
204 Cal.App.4th 1317, 1329.) It determined that mother’s inability to recall
the details of her relapses and periods of sobriety, as well as her tone and
demeanor on the stand, raised concerns about her newfound commitment to
sobriety and her insight into the problems that led to dependency.
Under these circumstances, the juvenile court reasonably determined
that mother’s protracted and serious substance abuse, which was the reason
for D.F.’s detention, had not materially changed. As such, no abuse of
discretion has been shown on this ground.
C. Child’s Best Interests
Even if mother were able to establish changed circumstances, she fails
to show the juvenile court abused its discretion regarding D.F.’s best
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interests. Mother claims that returning D.F. to her care was in D.F.’s best
interests because she maintained a close and loving relationship with D.F.
throughout the dependency case, and D.F.’s interest in preserving the family
unit is of significant value.
“ ‘ “[F]amily preservation ceases to be of overriding concern if a
dependent child cannot be safely returned to parental custody and the
juvenile court terminates reunification services. Then, the focus shifts from
the parent’s interest in reunification to the child’s interest in permanency
and stability.” ’ ” (In re S.M. (2004) 118 Cal.App.4th 1108, 1121.) “[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 (J.C.).)
For example, in J.C., the parent showed changed circumstances
through long-term sobriety and a renewed interest in parenting classes.
(J.C., supra, 226 Cal.App.4th at p. 526.) However, the juvenile court did not
abuse its discretion in denying the parent’s petition to vacate a section 366.26
hearing because the child had stable placement with the maternal aunt since
the child’s birth two and one-half years earlier, and the parent did not
address how returning custody of the child to her would advance the child’s
need for permanency and stability. (J.C., supra, at p. 526.)
Like the parent in J.C., mother fails to address D.F.’s need for
permanency and stability, and the record indicates that need would not be
met by returning D.F. to mother’s care. At the time the juvenile court denied
mother’s section 388 petition, D.F. was two years and seven months old.
Other than six months as an infant with the maternal grandmother and one
day when mother regained care in January 2023, D.F. spent her entire life in
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the care of the foster parent. D.F. was happy, safe, and comfortable with the
foster parent, whom she referred to as “mommy.” The Agency determined
that the foster parent had done an exceptional job caring for D.F., she had a
stable job and housing, and she had completed all adoption requirements and
was adoption ready.
On the other hand, the Agency determined that mother’s ongoing
pattern of relapses impacted her ability to build a substantial parent-child
relationship, which caused a lack of stability and consistent care for D.F.
Mother also lacked stable employment or housing. She did not have a job,
and although she was considering returning to work, she had a long history
of unemployment and work was one of the stressors that led to her recent
relapse. As for housing, mother was on a waiting list for a sober living home,
and she intended to live with D.F. at the maternal grandmother’s house.
However, the maternal grandmother’s neighborhood was one of mother’s
triggers, the maternal grandmother had a long history of substance abuse
and D.F. was previously removed from her care due to a relapse, and mother
was not aware of anything the maternal grandmother had done to address
her substance abuse other than taking a drug test for the Agency.
Based on the foregoing, it is reasonable to conclude that returning D.F.
to mother’s care would not advance D.F.’s need for permanency and stability.
As such, mother has not shown that the juvenile court abused its discretion
regarding D.F.’s best interests.
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III.
DISPOSITION
The orders are affirmed.
IRION, J.
WE CONCUR:
O'ROURKE, Acting P. J.
CASTILLO, J.
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