Filed 3/26/14 In re J.S. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 J.S., a Person Coming Under the
Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES,                                               E059563

         Plaintiff and Respondent,                                       (Super.Ct.No. RIJ120269)

v.                                                                       OPINION

A.R.,

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Tamara L. Wagner,

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

         Liana Serobian, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Pamela J. Walls, County Counsel, and Anna M. Marchand and Carole Nunes

Fong, Deputy County Counsel, for Plaintiff and Respondent.



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                                  I. INTRODUCTION

       In this juvenile dependency proceeding concerning J.S., the juvenile court

terminated reunification services for defendant and appellant A.R. (Mother) and

scheduled a hearing to be held pursuant to Welfare and Institutions Code section 366.26.1

Prior to the hearing, Mother filed a request to change court order pursuant to section 388

(section 388 petition). Specifically, Mother requested that the section 366.26 hearing be

vacated and that she receive further reunification or family maintenance services. The

court denied that request, held the section 366.26 hearing, and terminated Mother’s

parental rights.

       Mother appealed. She contends the court erred in denying her section 388

petition. Because we find no abuse of the court’s discretion, we will affirm the order

denying her request.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

A. Background

       Mother had been involved in two juvenile dependency proceedings prior to this

case. In August 2010, three of her children were detained and placed in foster care due to

medical neglect and Mother’s failure to protect them from their father’s substance abuse.




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

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The court terminated Mother’s parental rights to these three children in December 2012

and they are, as of August 2013, in the process of being adopted.2

       Mother’s fourth child was born in December 2010 and soon thereafter declared a

juvenile court dependent in a second proceeding. Mother’s parental rights to that child

were terminated in December 2011 and the child’s adoption was finalized in July 2012.

       J.S., the subject of this case, was born in August 2012. J.S. initially lived with his

maternal grandmother while Mother lived in a shelter.

B. Detention, Jurisdiction, and Disposition

       When J.S. was about three weeks old, plaintiff and respondent, Riverside County

Department of Public Social Services (DPSS), filed a petition concerning J.S. under

section 300. Under section 300, subdivision (b) (failure to protect), DPSS alleged: (1)

the father’s use of controlled substances; (2) Mother’s abuse of methamphetamine; (3)

the parents’ failure to benefit from services provided in the two prior dependency

proceedings; and (4) the father’s inability to provide J.S. with a safe and stable living

environment and his failure to provide him with adequate food, clothing, shelter, medical

treatment, and protection. Under section 300, subdivision (j) (abuse of sibling), DPSS

alleged that Mother’s three oldest children were abused or neglected and that J.S. was at

risk of similar harm.




       2 This court affirmed the order terminating parental rights to the three older
children in In re I.S. (Oct. 24, 2013, E057824) [nonpub. opn.].

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       Following a hearing, the court detained J.S. from the parents and placed him in

DPSS’s custody. J.S. continued to live in the maternal grandmother’s home and under

her care. Mother lived for a time with a friend and later with relatives. She visited J.S.

daily to breastfeed him. The father did not make himself available to DPSS.

       In a report prepared for the jurisdictional/dispositional hearing, DPSS reported that

both parents had a criminal history that included convictions for robbery and possession

of controlled substances. DPSS concluded, however, that Mother did not have a history

of known drug use. She tested negative for drugs and J.S. was born free of drugs in his

system. The father, on the other hand, “ha[d] an unresolved history of abusing drugs”

and had not “completed any type of substance abuse treatment.” He did not make

himself available to DPSS and did not appear to be making any effort to resolve the

issues that led to the removal of his children.

       DPSS’s report included favorable comments regarding Mother. She had

completed parenting and nutrition classes, and had actively and consistently participated

in visits with her children. She actively participated in counseling and substance abuse

treatment, and “ha[d] an evident bond with all her children.” Because Mother recognized

that the father had inhibited her progress, she told the social worker she had decided to

terminate her relationship with him.

       Following a contested jurisdictional/dispositional hearing, the court found true the

allegations of the petition with the exception of the allegation that Mother had abused

methamphetamine. The court declared J.S. a dependent of the court and removed him


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from the parents’ custody. Reunification services were ordered for Mother and denied to

the father. J.S. continued to live with the maternal grandmother.

       In December 2012, DPSS gave Mother permission to have unsupervised visits

with J.S. and to care for him while the maternal grandmother went to the store. The

following month, Mother was allowed to live in the maternal grandmother’s home and

take over primary care of J.S.

       In February 2013, Mother told a social worker she had not had contact with the

father for several months and did not know his whereabouts. However, social workers

had “strong suspicions that [Mother] continued to be in a relationship with the father.”

These suspicions were based on the fact that the father would be present for visits with

the parents’ three older children even though DPSS had not informed him of the visits.

The social worker told Mother that if the father wanted to have contact with J.S., he

would need to contact the social worker to schedule visits at the social worker’s office.

       In March 2013, a “Team Decision Making” meeting was held during which

Mother and the maternal grandmother were reminded of DPSS’s concerns about the

father. Mother and the maternal grandmother said they were not having contact with the

father and would contact law enforcement if he showed up at their home.

C. Six-month Review Period

       In late March 2013, DPSS filed a report for the six-month review hearing. DPSS

recommended that J.S. be placed with Mother and that Mother be provided with family

maintenance services. Mother “has made adequate progress in her services . . . and all


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visits with [J.S.] have been appropriate. She reports she has distanced herself from the

father of the children as she knows his lifestyle will prevent her from reunifying with the

child and may also cause her to relapse.”

       The day after DPSS filed the March 2013 report, Mother and the father were

arrested on felony assault charges following a physical altercation with a neighbor of the

maternal grandmother. When police responded, they found Mother and the father inside

the maternal grandmother’s apartment. According to a police report, the victim of the

assault stated that the father lives at the maternal grandmother’s apartment. A son of the

victim said that Mother and the father had been to the victim’s apartment “a number of

times to ‘hang out.’” The father told the officer that during the altercation he “went into

his apartment,” referring to the maternal grandmother’s apartment. After the fight, he

“hid” there with Mother.

       Mother told the police officer that the father and the victim went out together to

panhandle. When the father returned to the apartments where the maternal grandmother

and the victim lived, the father and the victim began fighting. The father went into the

maternal grandmother’s apartment, grabbed a garden hoe, and used it to hit the victim,

causing the hoe to break. Mother picked up a piece of the broken hoe and hit the victim

with it. She and the father then went to the maternal grandmother’s apartment.

       Following this incident, J.S. was removed from the maternal grandmother’s home

and placed in the adoptive home of his older siblings.




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       DPSS filed an addendum report and changed its recommendation. DPSS now

sought the termination of reunification services for Mother and a section 366.26 hearing.

DPSS stated that J.S. “would be at risk of abuse or neglect if he were to be placed with

[Mother] as she has not been forthcoming regarding her contact with the father and

minimizes the risk she placed the child in [on] the date she was arrested at the maternal

grandmother’s home.”

       At the six-month review hearing, the court terminated reunification services and

set a hearing to be held under section 366.26.

D. Section 388 Petition and Section 366.26 Hearing

       In a report prepared for the section 366.26 hearing, DPSS stated that it “is very

likely” that J.S. will be adopted by his current prospective adoptive parents, who are also

adopting J.S.’s three older siblings. According to the social worker, the “siblings show a

very strong bond to him and are very excited that he is placed in their home.” J.S. has

“also appropriately bonded to the prospective adoptive parents and recognizes them

immediately when he see[s] them.” The prospective adoptive parents “are committed to

providing [J.S.] with permanency.”

       In an addendum report, DPSS reported on a conversation between the father and a

social worker. The father told the social worker that during the time J.S. was placed with

the maternal grandmother, he saw J.S. approximately once per month. DPSS stated that

this contradicts the maternal grandmother’s statements that she had no contact with the

father: “By father’s statement, this shows that the maternal grandmother was being


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dishonest and placing the child at risk by allowing the father unauthorized contact with

the child.” The father’s statements also belie Mother’s reports that she had not been with

the father. The social worker concluded that the “family has continued to be dishonest

with [DPSS] and place[d] the child at risk by doing so.”

       On the date of the section 366.26 hearing, Mother filed a section 388 petition. She

requested that the order setting the hearing be vacated and a new order be made placing

J.S. with Mother on family maintenance status or, alternatively, to provide her with

further reunification services. Mother said she had maintained regular visits with J.S. and

that she had completed counseling, a substance abuse program, and a parenting program.

The requested change would allegedly benefit J.S. because she had regularly visited J.S.

and “there is a bond between Mother and child.” She attached certificates evidencing her

attendance in therapy and the completion of the referenced programs.

       The court denied the petition, stating: “At most, I have [M]other’s circumstances

changing. In addition, I can’t make a finding that [granting the request] would be in the

best interest of the minor child to grant the [petition].”

       The court then proceeded to hold the section 366.26 hearing. After hearing the

arguments of counsel, the court established adoption as J.S.’s permanent plan and

terminated the parents’ parental rights.

                                     III. DISCUSSION

       Section 388 allows the parent of a dependent child to petition the juvenile court to

change, modify, or set aside a previous order of the court. Under the statute, the parent


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has the burden of establishing by a preponderance of the evidence that (1) there is new

evidence or changed circumstances justifying the proposed change of order, and (2) the

change would promote the best interest of the child. (In re Stephanie M. (1994) 7 Cal.4th

295, 317; § 388, subds. (a), (b).) The decision to grant or deny the petition is addressed

to the sound discretion of the juvenile court, and its denial of the petition will not be

overturned on appeal unless an abuse of discretion is shown. (In re S.J. (2008) 167

Cal.App.4th 953, 959-960 [Fourth Dist., Div. Two].)

       “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’ [citation], and in

fact, there is a rebuttable presumption that continued foster care is in the best interests of

the child. [Citation.]” (In re Stephanie M., supra, 7 Cal.4th at p. 317, quoting In re

Marilyn H. (1993) 5 Cal.4th 295, 309.) Still, it is at this very point that “[s]ection 388

plays a critical role in the dependency scheme. Even after family reunification services

are terminated and the focus has shifted from returning the child to his parent’s custody,

section 388 serves as an ‘escape mechanism’ to ensure that new evidence may be

considered before the actual, final termination of parental rights.” (In re Hunter S. (2006)

142 Cal.App.4th 1497, 1506; In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.)

       Here, the court’s conclusion that Mother failed to establish changed circumstances

was within the range of the court’s discretion. The primary problem that led to the

decisions to remove J.S. from the maternal grandmother and recommend the termination


                                               9
of services was the discovery that, contrary to Mother’s and the maternal grandmother’s

assurances, the father had been in contact with Mother, the maternal grandmother, and

J.S. The problem was more than a matter of dishonesty or the lack of forthrightness in

dealing with DPSS, but that Mother’s willingness to let the father have contact with J.S.

put the child at risk of harm and indicated Mother’s failure to recognize that risk.

       There is nothing in the record to indicate how the substance abuse and parenting

courses that Mother refers to as evidence of her changed circumstances addressed these

problems. Indeed, most or all of these courses had already been completed by the time

Mother’s and the maternal grandmother’s deception had come to light in late March

2013. DPSS could thus reasonably conclude that although Mother was compliant with

her case plan and participating in services, she had failed to benefit from the services.

For the same reasons, the court acted within its discretion in finding there was no change

of circumstances within the meaning of section 388.

       The court’s determination that the requested change would not be in J.S.’s best

interest is also well within its discretion. In light of Mother’s misrepresentations about

her relationship with the father, the court could reasonably believe that Mother would

continue her relationship with the father, thus placing J.S. at the risk of harm that gave

rise to this proceeding from the outset. Granting Mother’s request would also result in

taking J.S. away from his three older siblings and prospective adoptive parents with

whom he has developed strong bonds.




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       We conclude, therefore, that the court did not err in denying Mother’s section 388

petition.

                                   IV. DISPOSITION

       The orders appealed from are affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                              KING
                                                                                        J.


We concur:

RAMIREZ
                       P. J.

HOLLENHORST
                          J.




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