Filed 7/1/13 In re K.P. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re K.P. et al., Persons Coming Under the
Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES,                                               E057921

         Plaintiff and Respondent,                                       (Super.Ct.No. INJ016294)

v.                                                                       OPINION

K.M.,

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,

Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

         Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Pamela J. Walls, County Counsel, and Julie Koons Jarvi, Deputy County Counsel,

for Plaintiff and Respondent.



                                                             1
       K.P., age two, and K.M., less than one year, became dependents as a result of

long-term drug abuse and the extensive criminal histories of their parents.1 Mother‟s

parental rights as to two older children had previously been terminated, so the court

denied services to mother, but granted services to the father of K.M. Services to the

father of K.M. were terminated at the six-month review hearing and a hearing pursuant to

Welfare and Institutions Code2 section 366.26, was set for both children. During the

interval prior to the section 366.26 hearing, mother completed a three-month residential

drug rehabilitation program, gave birth to another child who remained in mother‟s care,

and resided in a sober living home, which formed the basis for a petition to modify the

prior court order pursuant to section 388. The court denied the petition and terminated

parental rights. Mother appealed.

       On appeal, mother challenges the denial of her section 388 petition as an abuse of

discretion. We affirm.

                                    BACKGROUND

       On October 20, 2011, the Riverside Department of Public Social Services (DPSS)

received a referral for K.P., then age 21 months, and K.M., then seven months of age.

Mother had been arrested following a parole sweep of her residence during which she

was found to be in possession of methamphetamine, narcotic medication, checks and


       1The fathers of K.P. and K.M. are not involved in this appeal. They will be
mentioned only where needed for context.

       2 All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.

                                             2
credit cards; in addition, a registered sex offender was in the apartment. Mother‟s history

revealed long-term use of methamphetamine, commencing when she was 11 years old,

when she was in foster care herself. She also had an extensive criminal history involving

drug offenses, as well as stolen checks and credit cards.

        Both parents had child welfare history, having lost custody of two other children

prior to DPSS involvement with K.P. and K.M. On May 25, 2010, their parental rights

had been terminated as to two older children. On October 28, 2011, the current

dependency petition was filed alleging parental neglect (§ 300, subd. (b)), and leaving the

children without provision for support. (§ 300, subd. (g).) As to mother, the allegations

were based on her extensive history of substance abuse, her arrest and incarceration

following the parole sweep, and her prior history with DPSS wherein mother was

provided services but failed to benefit from them, leading to her permanent loss of

custody of two other children. The court ordered that the children be detained out of

home pending a jurisdictional hearing.

        The report prepared for the jurisdictional and dispositional hearing revealed more

information about mother‟s addiction to methamphetamine, which began when she was a

foster child, herself. Mother‟s first child, born in 2002, tested positive for

methamphetamine at birth. In 2004, that child, J.H., was declared a dependent and

mother was offered family maintenance services. That dependency was terminated in

2005.

        In 2006, another referral was received by the Child Protective Services (CPS)

when mother was arrested for burglary while her child was with her. A dependency

                                              3
petition was filed relating to J.H., who was declared a dependent in January 2007.

Services were denied in that dependency due to the length of mother‟s incarceration.

However, in 2008, the court granted mother‟s 388 petition as to J.H. and ordered

reunification services for mother.

       Mother failed to complete the case plan, resulting in termination of those services

in January 2009, when a new referral was made on behalf of mother‟s second child, L.P.

Mother was denied services again, and on May 25, 2010, mother‟s parental rights as to

J.H. and L.P. were terminated. Based on the length of mother‟s substance abuse,

spanning approximately 20 years,3 and her failure to reunify with two other children in

previous dependency cases or to treat the underlying problems (ref. § 361.5, subdivisions

(b)(10), (11), (13)), the social worker recommended denial of reunification services in the

current dependency.

       On January 18, 2012, the court sustained the petition and adjudged the children to

be dependents pursuant to section 300, subdivisions (b) and (g). The court removed

custody of both children from the parents, and ordered reunification services for the

father of K.M. only. As to mother, the court made findings pursuant to section 361.5,

subdivisions (b)(10), (11) and (13), and denied reunification services for her. The court




       3Mother was born in 1981 and started using drugs when she was 11 years old, or
1992. The jurisdictional hearing in the instant proceeding took place in 2012, or
approximately 20 years later.

                                             4
set a section 366.26 hearing for K.P., to select and implement a permanent plan for that

child.4

          The section 366.26 report prepared for K.P. indicated that both children were

placed with K.M.‟s paternal uncle. The caretakers originally indicated a willingness to

adopt both children. During this time, mother was participating in an inpatient treatment

program, from which she was scheduled to graduate in May 2012. Mother also visited

consistently, and the end of the visits was traumatic for K.P., who wept profusely when

mother left.

          In the July 2, 2012, report, prepared for K.M.‟s six-month review hearing

(§ 366.21, subd. (e)), it was revealed that mother had been arrested by her parole officer

on June 5, 2012, for being under the influence of methamphetamine, at which time

mother was five months pregnant with her fifth child. This was apparently mother‟s third

positive drug test, so the parole officer attempted to get mother placed in a custodial drug

treatment program. Mother was released from custody on June 29, 2012, and went

straight into the New Hope program. The report prepared for K.M.‟s six-month review

revealed that mother visited the children consistently, and that her visits were adequate,

with mother occasionally providing nurturance to the children, and engaging them in

problem solving. The social worker noted there appeared to be a maternal bond.




          Although the clerk‟s minutes of the hearing show the findings made pursuant to
          4
section 361.5, subdivision (b)(10), (11) and (13), they do not indicate that services were
denied to mother. Additionally, the clerk‟s minutes incorrectly reflect that the juvenile
court set a hearing pursuant to section 366.26 as to both children.

                                               5
       K.M.‟s father also tested positive for methamphetamine and was arrested in April

2012. He had been discharged from his drug treatment program for failure to participate

a month after enrolling. Because of father‟s chronic and unresolved addiction problems,

as well as his failure to comply with plan objectives, the social worker recommended that

services to him be terminated and that K.M.‟s case be set for a 366.26 hearing. On July

17, 2012, the court conducted the six-month review hearing as to K.M., terminated the

father‟s reunification services, and scheduled a section 366.26 hearing for K.M.

       In the meantime, the caretakers of the two children informed the social worker that

they no longer planned to adopt K.P., because they were taking another nephew into their

home. Their apartment was not sufficient for all the children, so they planned to adopt

K.M. only, as she was a blood relative. Additionally, K.P. was frightened of movies,

amusement parks, and going out to dinner, crying profusely, which affected family time

for the caretakers. K.P. was removed from this home and placed with her former foster

mother before being placed in the home of the adoptive parents of her older half-sibling,

J.H., and full sibling, L.P.

       On October 19, 2012, mother filed a petition to modify the prior order, seeking

return of the children with maintenance services, or reunification services. The petition

asserted mother had completed a residential drug program between June 29, 2012, and

September 26, 2012, which program also entailed parenting classes, a domestic

violence/anger management program, individual counseling, and Narcotics

Anonymous/Alcoholics Anonymous meetings. She also asserted she had tested clean,



                                             6
maintained her sobriety, and shared a strong bond with the children through regular

visits. The court ordered a hearing on the petition.

       On October 30, 2012, the social worker submitted a postpermanency review

report, recommending termination of parental rights. The report described mother‟s

consistent visitation with the children since her release from prison and revealed that K.P.

cried when she left her mother at the first visit. However, in September, the minor was

able to leave mother without any problem. Nevertheless, the visits went well with mother

providing nurturance and meeting the child‟s needs during visits. The social worker

recommended adoption of K.P. by her adoptive parents, who had adopted K.P.‟s older

sibling and half-sibling. The social worker recommended adoption of K.M. by her

paternal uncle, with whom K.M. had been placed since April 2012, and appeared to be

bonding.

       The combined section 388 and 366.26 hearing was held on December 6, 2012.

Mother testified at the hearing that her circumstances had dramatically changed based on

her successful completion of the residential treatment program and six months of

sobriety. She provided the results of a hair follicle test which was negative for the

presence of drugs for hair samples collected on November 6, 2012. Mother gave birth to

her fifth child, M.M., in October 2012, prior to her discharge from New Hope

Rehabilitation Inpatient Program. That child, who was seven weeks old at the time of the

hearing, was maintained in mother‟s custody. Upon mother‟s discharge from New Hope,

she entered a sober living home and enrolled in Mom‟s Program, an intensive outpatient

program.

                                             7
       The court considered the mother‟s testimony along with the social worker‟s

reports and addenda. Although impressed with mother‟s efforts to turn her life around,

the court concluded mother was in the process of changing and not yet sufficiently

changed to warrant a change of the prior order. The court denied the section 388 petition.

       Turning to the selection and implementation hearing (§ 366.26), the court

determined that it was likely the children would be adopted. The court, considering the

testimony provided by mother in support of her section 388 petition, found that none of

the exceptions found in section 366.26, subdivision (c)(1)(A) or (B) applied, and that

termination of parental rights would not be detrimental to the children. It then terminated

the parental rights of mother and both fathers. Mother timely appealed.

                                       DISCUSSION

       Mother argues on appeal that the court erroneously denied her section 388

petition.5 Such a 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 Stephanie M. (1994) 7 Cal.4th 295, 318; In re S.J. (2008) 167 Cal.App.4th 953,

959.) 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.

(Stephanie M., at p. 319.)




       5 Mother argues that reversal of the section 388 order requires reversal of the
order terminating parental rights, but makes no separate argument for reversal of the
termination of parental rights.

                                               8
        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 Stephanie M., supra, 7 Cal.4th at pp. 316-317.) The parent

bears the burden of showing both a legitimate change of circumstances and that undoing

the prior order would be in the best interest of the child. (In re Kimberly F. (1997) 56

Cal.App.4th 519, 529.) Generally, the petitioner must show by a preponderance of the

evidence that the child‟s welfare requires the modification sought. (In re B.D. (2008) 159

Cal.App.4th 1218, 1228.)

        In evaluating whether the petitioner has met his or her burden to show changed

circumstances, the trial court should consider: (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, 56 Cal.App.4th at p.

532.)

        Not every change in circumstance can justify modification of a prior order. (In re

A.A. (2012) 203 Cal.App.4th 597, 612 [4th Dist., Div. Two], citing In re S.R. (2009) 173

Cal.App.4th 864, 870.) For a parent with an extensive drug history punctuated by

treatment and relapses, the parent must show that his or her circumstances have actually

changed, and are not merely changing. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)



                                             9
“It is the nature of addiction that one must be „clean‟ for a much longer period than 120

days to show real reform.” (In re Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 9.)

       For this reason, even a showing of great effort to make improvements will not

necessarily be persuasive when a parent has an extensive history of drug use. (See In re

C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [4th Dist, Div. Two].) Periods of sobriety

following relapse do not necessarily demonstrate a changed circumstance where the

parent has a history of alternating drug use and sobriety. (See In re Cliffton B. (2000) 81

Cal.App.4th 415, 423.)

       In In re Amber M. (2002) 103 Cal.App.4th 681, mother filed a section 388 petition

after completing domestic violence and sexual abuse treatment programs, as well as the

residential portion of a substance abuse program. Mother had abused controlled

substances for more than 17 years and she had been clean for 372 days at the time of the

section 388 hearing, with two relapses during the course of the dependency, one of which

occurred after more than 300 days of sobriety. At the time of the hearing, mother was

living in a sober living unit. (Amber M., at p. 686.) The reviewing court affirmed the

juvenile court‟s denial of the section 388 petition because while mother was progressing

in treatment, return to her custody would not be in the children‟s best interests, although

it reversed the termination of parental rights because of a beneficial parent-child

relationship. (Amber M., at pp. 687, 691.)

       Similarly, in In re Cliffton B., supra, 81 Cal.App.4th 415, the reviewing court

ruled that father‟s section 388 petition was properly denied. There, father had

experienced seven months of sobriety since a relapse that occurred earlier in the case, and

                                             10
had a drug use history dating back to his college days. Since then his periods of sobriety

alternated with recurring drug use. After the initial detention of his children, it took

father six months before he was able to stay sober for any length of time, and then, after

eight months of sobriety, he relapsed, followed by the most recent period of sobriety.

(Cliffton B., at p. 423.) The reviewing court concluded that father‟s recent 200 days of

sobriety was not enough to reassure the juvenile court that the most recent relapse would

be his last. (Id. at p. 424.)

       In this case, mother‟s situation is similar to those of the parents in Amber M. and

Cliffton B. Although mother described her circumstances as dramatically changed, her

situation was actually the same: she was experiencing a period of sobriety following a

relapse of substance abuse, which was a continuing pattern. Mother‟s recent period of

sobriety was for a mere six months (admittedly a huge change for mother), but she was

still in a sober living home at the time of the hearing, functioning within a structured

environment. She had never demonstrated the ability to maintain sobriety without the

structure and assistance of a program.

       The trial court was impressed by mother‟s efforts to turn her life around, as are

we, but given her very long history of chronic substance abuse, commencing when she

was 11 years old, and her continuing pattern of relapses, six months of sobriety is simply

insufficient to establish mother‟s circumstances had actually changed. (Mother was 31 at

the time of the hearing, so she had a 20-year history of substance abuse.)

       We agree with the juvenile court‟s conclusion that mother had not met her burden

of demonstrating changed circumstances. Having failed to meet the first prong of section

                                             11
388, we do not need to address whether the proposed modification would be in the

children‟s best interest, other than to reiterate the conclusion of our sister court that while

mother was progressing in treatment, return to her custody would not be in the children‟s

best interests. (In re Amber M., supra, 103 Cal.App.4th at p. 687.)

                                       DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                  RAMIREZ
                                                                                           P. J.

We concur:


MILLER
                           J.


CODRINGTON
                           J.




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