Filed 4/9/13 In re Angel R. CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


In re ANGEL R., a Person Coming Under                                B243544
the Juvenile Court Law.                                              (Los Angeles County
                                                                     Super. Ct. No. CK81666)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

MARGARITA R.,

         Defendant and Appellant.

         APPEAL from orders of the Superior Court of Los Angeles County. Philip L.
Soto, Judge. Affirmed.

         Mary Elizabeth Handy, under appointment by the Court of Appeal, for Defendant
and Appellant.

         John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.

                                             _________________________
       Appellant Margarita R. (mother) challenges the juvenile court‘s orders denying
her petition for modification (Welf. & Inst. Code, section 388)1 and terminating her
parental rights (§ 366.26) to one-year-old Angel R. (Angel). The section 388 petition
sought to have Angel returned to mother‘s custody or six months of reunification
services. However, Angel was removed from mother‘s custody at birth because he was
born exposed to methamphetamine, mother had a 15-year history of methamphetamine
abuse, she had lost custody of five older children, and mother‘s parental rights to two of
her older children had been terminated. Thus, the juvenile court denied mother
reunification services and put Angel on a fast-track to adoption by his foster parents. The
hearing on mother‘s section 388 petition coincided with the hearing set for the
termination of her parental rights. Although at the time of the hearing mother had
completed a drug treatment program, she had only just begun her aftercare outpatient
program, was unemployed, did not have stable housing, and admittedly needed more time
to become stable. Furthermore, while mother was focusing on her treatment, Angel
became bonded to his caretaker, whom he saw as his mother and he had little, if any,
attachment to mother. Based upon these facts, the trial court did not err in denying
mother‘s section 388 petition and terminating her parental rights.
                 FACTUAL AND PROCEDURAL BACKGROUND
Section 300 Petition
       When Angel was born in June 2011, he and mother tested positive for
methamphetamine. Mother admitted to having a 15-year history of illegal drug use and
to using methamphetamine once a week while pregnant and that her last drug use was the
day before Angel was born. Mother acknowledged that she had five older biological
children who were not in her care. In 2000, mother had given birth to a daughter, who
tested positive for methamphetamine. She failed to reunify with that child and her
sibling, parental rights were terminated, and both children were adopted. In 2010, a

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


                                             2
dependency action was initiated on behalf of three additional children because mother
continued to use methamphetamine and allowed known gang members to reside in her
home and possess and use illicit drugs in the home. Those children resided with their
father. Mother did not have contact with any of her other children.
        The Los Angeles Department of Children and Family Services (DCFS) placed a
hospital hold on Angel and filed a section 300 petition on his behalf. The petition alleged
that Angel had been born with methamphetamine in his system, that mother had a 15-
year history of drug abuse, and that mother was a current abuser of methamphetamine
and amphetamine. The juvenile court sustained the dependency petition on July 26,
2011.
Jurisdiction/Disposition Report and Information for Court Officer
        DCFS placed Angel in a foster home after he was released from the hospital.
From June 11, 2011, to July 11, 2011, mother visited Angel only twice. Mother reported
that she used methamphetamine on July 6, 2011, just two days before she enrolled in a
drug treatment program at Tarzana Treatment Center (TTC).        She further stated that she
remained clean until August 26, 2011, when she relapsed, drinking alcohol and using
methamphetamine. However, TTC allowed her to continue in the program.
September 9, 2011, Hearing
        The juvenile court denied mother reunification services under section 361.5,
subdivisions (b)(10), (11), and (13), and found that offering mother such services would
not be in Angel‘s best interest. A section 366.26 hearing was set for January 6, 2012,
with a review hearing on March 9, 2012.
Mother’s First Section 388 Petition
        On December 23, 2011, mother filed a section 388 petition, asking the juvenile
court to order reunification services. The petition alleged that mother had made
exemplary progress in her drug treatment program and that reunification services would
be in Angel‘s best interest because if she failed to reunify, he would still be young
enough to be adopted. The juvenile court set the petition for hearing on February 15,
2012.

                                             3
Section 366.26 Report
       DCFS reported that mother had been having three-hour weekly monitored visits
with Angel at TTC. During the visits, mother would feed and play with Angel and
change his diaper. The foster mother reported that although Angel responded well to
mother, he looked frequently to the foster mother for comfort, he liked to be held in a
way that he could see the foster mother, and he tended to cry when she left the room.
Angel and his foster family had developed a very strong bond and he regarded his foster
parents as his parents. DCFS recommended termination of parental rights.
       The juvenile court continued the section 366.26 hearing to April 6, 2012.
Ex-Parte Report Response to Section 388/Jurisdiction Report and Hearing on Mother’s
Section 388 Petition
       On February 15, 2012, DCFS reported that mother was successfully working on
her drug treatment program and had maintained her sobriety for about five months. Her
discharge date was open and she still needed to obtain employment, establish additional
recovery support in the community, and transition to a lower level of care. She was
continuing her weekly monitored visits with Angel. But, it did not appear that Angel was
bonding with mother.
       At the hearing, the juvenile court denied mother‘s section 388 petition.
Further Section 366.26 Report
       On March 9, 2012, DCFS reported that the foster parents‘ adoption home study
had been approved. Mother continued to reside at TTC. Her drug tests remained
negative, but she had an unexcused missed test on November 18, 2011. Mother also
continued her weekly visits with Angel, monitored by the foster mother. The visits lasted
one to two hours. Angel did not seem very bonded with mother and would repeatedly
look around for the foster mother; he only seemed comfortable when the foster mother
was within eyesight.




                                             4
Mother’s Second Section 388 Petition
       On July 2, 2012, mother filed another section 388 petition, asking that the juvenile
court either place Angel with her or order reunification services and unmonitored visits.
The petition alleged that mother still was making progress in her drug treatment and that
the requested relief would be in Angel‘s best interest because he was still young enough
to be adopted if reunification failed. Attached to the petition was a letter from mother‘s
case manager dated June 25, 2012, that indicated that mother had completed her drug
treatment program on June 19, 2012, had begun an aftercare outpatient program that
provided her housing, and that she would remain a patient for the next two years.
       The juvenile court set the section 388 petition for a hearing on August 20, 2012,
and continued the section 366.26 hearing to that date as well.
Report in Response to Mother’s Second Section 388 Petition
       On August 16, 2012, DCFS reported that mother had made much progress at TTC.
In addition to the drug treatment program, mother had completed a parenting program on
February 7, 2012. Upon completion of the drug program, mother had enrolled in an
outpatient program with the San Fernando Valley Community Health Center, Inc. That
program was designed to help the mentally ill and homeless and would provide
transitional housing for mother for 18 months or longer, depending upon her stabilization
and goals. The program‘s goal was to help mother gradually reintegrate into society by
teaching her how to live without the use of drugs and alcohol and become stabilized on
medications prescribed by the program‘s psychiatrist. As of July 3, 2012, mother was in
full compliance with the program.
       Attached to the DCFS report was a March 6, 2012, letter from one of mother‘s
counselors at TTC. The letter indicated that mother was looking for employment and
housing.
       The social worker spoke with mother. She stated that she began visiting her three
children that had not been adopted. A year earlier, mother had been diagnosed with
bipolar disorder and posttraumatic stress syndrome and had been prescribed three
psychotropic medications. The social worker tried to contact mother‘s psychiatrist, but

                                             5
he was unavailable. Mother said that she was not allowed to have Angel with her at the
transitional housing, but after she gained custody of him, her sponsor and other ―sobriety
sisters‖ would help her get appropriate housing.
       The foster mother reported that when mother was at TTC, her visits with Angel
had been consistent because there was structure and the foster mother would bring Angel
there for the visits. However, after mother moved into the transitional housing, her visits
with Angel became inconsistent. The foster mother had not heard from mother for one
and a half to two weeks. During the visits, Angel appeared to respond to mother as just a
friend, not as a mother figure. Also, mother never brought any food or toys to the visits.
The foster mother further reported that two weeks prior, mother attended a session
between Angel and his Regional Center therapist Michelle. Michelle stated that mother
did not get involved or become an active participant in the session and that the quality of
mother‘s relationship with Angel appeared to be poor.
       DCFS recommended that mother‘s section 388 petition be denied.
Combined Sections 388 and 366.26 Hearing
       At the August 20, 2012, hearing, the juvenile court accepted various reports into
evidence. It then heard witness testimony.
       Mother testified first. She stated that she had ―remediated‖ the issues that resulted
in Angel being removed from her custody by attending TTC for 11 months and two
weeks, and attending parenting classes, relapse prevention classes, anger management,
and meetings. She currently was in an outpatient substance abuse program where every
day, from 9:30 a.m. to 3:30 p.m., she attended relapse prevention classes, anger
management, community integration, and parenting. She also went to Alcoholic
Anonymous (AA) 12-step meetings two hours a day, Monday through Friday, and she
had a sponsor whom she spoke with every day.
       Regarding her visitation with Angel, she said that she visited him once or twice a
week—either mother would go to the foster mother‘s home or the foster mother would
take Angel to mother and they would visit at a McDonald‘s restaurant. The visits would
last one to two hours. Mother said that the visits were going great. She would play with

                                             6
Angel, talk to him, carry him, hold him, feed him, and change him. Although he did not
call her ―mom,‖ he was bonded with her and happy when he was with her.
       Mother said that she would not be able to have Angel live with her at the transition
housing, but if he were returned to her, she planned to live with her AA sponsor until she
could ―get stable [and] on [her] feet.‖ Also, her outpatient program provided housing
assistance.
       Angel‘s foster mother testified next. She said that mother‘s visits with Angel
occurred once a week and lasted approximately one hour. During the visits, mother
played with Angel and interacted with him. She fed him and changed his diaper. When
asked if Angel was bonded to mother, the foster mother stated that it depended upon his
mood at the time, but he would go to her and interact and play with her. The foster
mother had known mother since mother was 12 or 13 years old. She was friends with
Angel‘s maternal grandmother before the maternal grandmother passed away, and mother
had been a part of her life one way or another since then. She knew mother‘s entire
family. Mother had even lived with her for a short period between the ages of 16 and 18.
The foster mother said that mother was like family to her and she wanted mother to do
what was best for mother.
       The foster mother said that she had seen a genuine change in mother; she believed
that mother was committed to her sobriety. The foster mother wanted what was best for
Angel and if that meant being returned to mother, then that was what she wanted for him.
On cross-examination, county counsel noted that before the foster mother took the stand,
she handed Angel to mother and Angel immediately began crying loudly. County
counsel asked the foster mother whether that was a typical reaction to him being handed
to mother. The foster mother responded that Angel would go to mother nine out of 10
times, and on the tenth time he would cry. The foster mother explained: ―I think he is a
little freaked out by his surroundings right now. I don‘t think he knows where he is at.
So he tends to be—he is very attached to me. There is no doubt about that. I have had
him since he was born. So, I mean, it just—I just think it has to do with his surroundings
because he was [crying outside] quite a bit when [mother‘s] sobriety sister took him out.‖

                                             7
       Finally, the foster mother stated that Angel calls her ―mom.‖ He was very
attached to her because she spent 99.9 percent of everyday with him. The foster mother
wanted to adopt him.
       The juvenile court then entertained argument. Mother‘s attorney acknowledged
that the evidence was insufficient to grant her return of her son. Angel‘s attorney
believed that mother had shown changed circumstances and, although Angel‘s bond was
with his foster mother, he believed that it was always in a child‘s best interest to be with a
biological parent.
       The juvenile court denied mother‘s section 388 petition, reasoning:
       ―Well, let me tell you, I‘ve been doing this for a while. And also I did drug court
for a long time. And that is a different forum because they are trying to turn their lives
around in order not to go to prison. Much different motivation. But I would say if you
were in that court you would probably have been one of the absolute stars of that court.
I‘ve seen people wash out of drug court and wind up going to prison still on drugs. And
what you have done in a year has been amazing.
       ―But this is the invidious, destructive force of drugs in our society. And this is
why I am so down on drugs and I am so against people that say, well let‘s just legalize it
and everything will be okay. Everything will not be okay, and this is the reason why.
       ―You know, if this had been a different kind of a situation where you could have
easily adapted your conduct to conform to what we wanted in the way of good parenting
within six months, you probably would have been able to get this child back and move
forward as a mother. But you didn‘t and you couldn‘t. And you didn‘t with the other
children either because of this drug problem that you have had for years and years since
[you were] in your teens. And that‘s when they get you hooked and that‘s when they
destroy your life and then you don‘t even know it. And that‘s what is going on with
every other teen in America today that is getting hooked on drugs. They are destroying
their future and they don‘t even know it. Because you can‘t turn around and just drop
this drug habit in six months. It‘s almost impossible. But that‘s what we need to have



                                              8
done because these children are too young and they need to have permanency and they
need to have their mother, whoever that might be.‖
          The juvenile court continued: ―This is about what is in the best interest of this
child. And right now the best interest of this child is to maintain a relationship with the
person that he knows as his mother. That is the foster mother.
          ―So the best interest of the child is not in granting more reunification services or
greater visits or things of that nature. That time has come and gone. It has run. That
one-year period when you needed to be there in the middle of night changing diapers, or
putting something on the gums that are teething, or things of that nature, that time is lost
and it cannot be returned to you because of this drug problem.
          ―And again, I appreciate and I commend you for doing such a great job in turning
your life around. You really have. And I will, you know, maintain that to my dying day,
that you of all the people of all these motions that I‘ve seen, you have done the most to
try and get yourself clean and sober. But the problem is the timing. This child has
already moved on to appreciate the foster mother as his family and not recognize you as
his mother. And in the best interest of the child I have to say it is best for him to remain
with the foster family and be adopted. And for those reasons, I am going to find it is not
in the best interest of the child to grant the motion on 388.
          ―I am not going to curtail the visits. The hours that you spend in monitored visits
with the child I‘m sure are going to be supportive to him in the future. But at this time I
am not going to grant any further reunification services or return the child to you. As
hard as that is to accept, I hope you will understand where I am coming from on this.
Because I have to do what is best for the child.‖
          After denying mother‘s section 388 petition, the juvenile court terminated
mother‘s parental rights and identified the foster mother as Angel‘s prospective adoptive
parent.
          Mother‘s timely appeal ensued.




                                                 9
                                      DISCUSSION
I. Section 388 Petition
       Section 388 provides, in relevant part: ―Any parent or other person having an
interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of
change of circumstances or new evidence, petition the court . . . for a hearing to change,
modify, or set aside any order of court previously made.‖ (See also In re Brandon C.
(1993) 19 Cal.App.4th 1168, 1172; Cal. Rules of Court, rule 5.570(f).) ―Section 388
provides the ‗escape mechanism‘ . . . built into the process to allow the court to consider
new information. [¶] . . . Even after the focus has shifted from reunification, the scheme
provides a means for the court to address a legitimate change of circumstances . . . . [¶]
. . . [T]he Legislature has provided the procedure pursuant to section 388 to
accommodate the possibility that circumstances may change after the reunification period
that may justify a change in a prior reunification order.‖ (In re Marilyn H. (1993) 5
Cal.4th 295, 309.)
       That being said, ―[i]t is not enough for a parent to show just a genuine change of
circumstances under the statute. The parent must show that the undoing of the prior order
would be in the best interests of the child.‖ (In re Kimberly F. (1997) 56 Cal.App.4th
519, 529; § 388, subd. (b).) Some factors which ―provide a reasoned and principled basis
on which to evaluate a section 388 motion‖ include ―(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.‖ (In re Kimberly F., supra, at p. 532.)
       ―[T]he burden of proof is on the moving party to show by a preponderance of the
evidence that there is new evidence or that there are changed circumstances that make a
change of placement in the best interests of the child.‖ (In re Stephanie M. (1994) 7
Cal.4th 295, 317.)




                                             10
       ―‗Whether a previously made order should be modified rests within the
dependency court‘s discretion, and its determination will not be disturbed on appeal
unless an abuse of discretion is clearly established.‘‖ (In re Amber M. (2002) 103
Cal.App.4th 681, 685; see also In re Casey D. (1999) 70 Cal.App.4th 38, 47.) ―‗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.‘‖ (In
re Stephanie M., supra, 7 Cal.4th at pp. 318–319.) Thus, we will not reverse a juvenile
court‘s denial of a section 388 petition ―‗―unless the trial court has exceeded the limits of
legal discretion by making an arbitrary, capricious, or patently absurd determination
[citations].‖‘‖ (In re Stephanie M., supra, at p. 318.) ―It is rare that the denial of a
section 388 motion merits reversal as an abuse of discretion.‖ (In re Kimberly F., supra,
56 Cal.App.4th at p. 522.)
       The juvenile court did not abuse its discretion when it denied mother‘s section 388
petition. While mother‘s circumstances may have been changing, they had not yet
changed. As the appellate record indicates, mother had a 15-year history of
methamphetamine abuse. She used weekly while pregnant with Angel, she used the day
before Angel was born, and she continued to use until two days before she enrolled at the
TTC. While mother‘s efforts in addressing her drug abuse problem are laudable, her one
year of sobriety cannot be viewed in a vacuum. (See, e.g., In re Amber M., supra, 103
Cal.App.4th at pp. 686–687; In re C.J.W. (2007) 157 Cal.App.4th 1075, 1082; In re
Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 9.)
       Regarding the relative bond Angel has with mother and his foster mother, it is
undisputed that Angel‘s attachment was with his foster mother; there was little if any
attachment to mother. Mother correctly attributes this to her need to focus primarily on
her personal recovery rather than on her relationship with Angel, and she acknowledges
that developing a stronger relationship with him would require more contact over time.
But that is the point—mother began her recovery process too late. The focus must be on
Angel‘s need for permanence, which mother could not provide.

                                              11
        Mother was still in the process of her treatment. She had only recently begun her
aftercare treatment program that was designed to gradually reintegrate her into society.
Her TTC counselor said that she would be a patient for the next two years. And, mother
was not able to have Angel live with her in her transitional housing. She even admitted
that she was not yet stable and needed time to get ―on [her] feet.‖ Under these
circumstances, in the interest of Angel‘s stability, the juvenile court rightly denied
mother‘s section 388 petition. (See, e.g., In re Edward H. (1996) 43 Cal.App.4th 584,
594.)
II. Section 366.26 Order
        On appeal, mother argues that the juvenile court‘s order terminating mother‘s
parental rights must be reversed because the juvenile court erred in denying her section
388 petition. As set forth above, we conclude that the juvenile court rightly denied
mother‘s section 388 petition. It follows that the juvenile court rightly terminated
mother‘s parental rights.
                                      DISPOSITION
        The juvenile court‘s orders are affirmed.
        NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                           ______________________________, J.
                                                 ASHMANN-GERST

We concur:



_______________________________, P. J.
           BOREN



_______________________________, J.
           CHAVEZ


                                             12
