Filed 1/3/14 In re S.M. CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

In re S.M. et al., Persons Coming Under the                          H039570
Juvenile Court Law.                                                 (Santa Clara County
                                                                     Super. Ct. Nos. JD18636, JD18637)
SANTA CLARA COUNTY
DEPARTMENT OF FAMILY AND
CHILDREN’S SERVICES,

          Plaintiff and Respondent,

          v.

S.P.,

          Defendant and Appellant.


          S.P. (mother) appeals from an order denying her Welfare and Institutions Code
section 388 petition and terminating her parental rights.1 Mother’s section 388 petition
sought the return of two of her children--J.O. and S.M.--or, alternatively, reunification
services. The petition also requested that the court order J.O. to attend visitation with
mother. The juvenile court denied mother’s section 388 petition following an evidentiary
hearing. Immediately thereafter, the court held a section 366.26 hearing to determine
permanent plans of care for the children, after which it terminated mother’s parental
rights.
          On appeal, mother contends the juvenile court abused its discretion by denying her


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              Further unspecified statutory references are to the Welfare and Institutions Code.
section 388 petition because she carried her burden of proof to show that changed
circumstances warranted her requests to promote the best interest of the children. We
disagree and shall affirm the order.
I.     FACTUAL AND PROCEDURAL BACKGROUND
       Mother has five children and a history of drug addiction and drug-related
convictions. This case, the fourth dependency case involving mother and one or more of
her children, involves her two youngest children, J.O. and S.M.
       A.     Prior Dependency Cases
       In 1995, mother’s oldest child, D.S., was declared a dependent child at the age of
one because of mother’s substance abuse and neglect. Mother reunified with D.S. in
1998, after completing a court-ordered drug treatment program in connection with a
misdemeanor drug conviction, and the dependency case was dismissed.
       In 2000, mother was again convicted of a drug offense and was ordered into a drug
treatment program. Her three oldest children were declared dependents of the juvenile
court at that time due to mother’s substance abuse and neglect. Following two years of
court-ordered substance abuse services, mother reunified with the children and the second
dependency case was dismissed.
       Shortly after the reunification in 2002, mother left the three oldest children in the
care of their maternal grandmother, who used drugs and physically abused the children.
In 2007, the maternal grandmother was arrested on multiple drug charges. In 2008, all
five of mother’s children were adjudicated dependents of the court. After mother
successfully completed inpatient and outpatient drug treatment, the children were
returned to her and the third dependency case was dismissed.
       B.     Mother’s 2012 Arrest and Initiation of the Current Dependency Case
       Mother was arrested on April 11, 2012, for probation violations related to drug
convictions. At that time, mother left eight-year-old J.O. in the care of a maternal aunt
and five-year-old S.M. in the care of his paternal grandparents.
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       Mother was released a few weeks later and was ordered to drug test regularly and
enroll in an outpatient drug treatment program. Mother subsequently missed one drug
test and tested positive for methamphetamines at another; she was remanded into custody
on May 21, 2012. Mother remained incarcerated until June 28, 2012, when she was
released to a drug treatment facility. Less than a month later, on July 24, mother was
expelled from the drug treatment facility for threatening other residents. She was
remanded into custody on August 1, 2012.
       In the meantime, the maternal aunt and paternal grandparents filed for probate
guardianship of J.O. and S.M., respectively. The probate court referred both cases to the
Santa Clara County Department of Family and Children’s Services (Department) for
investigation. In the summer of 2012, the Department filed juvenile dependency petitions
on behalf of J.O. and S.M.
       The children were detained by the juvenile court, and placed into the care of the
maternal aunt and paternal grandparents. The court ordered weekly visitation with
mother, with the caveat that the children should not be forced to visit mother against their
will. Throughout the summer, both children refused to visit mother when they were
asked each week.
       During an interview in July 2012, J.O. told the social worker that he did not want
to live with mother because she used drugs. He stated that mother sold his clothes and
shoes for drugs and forced him and S.M. to sleep in a closet. He also reported that there
was no food in mother’s home so he and his siblings go hungry. His maternal aunt, with
whom he is living, told the social worker that mother sold her food stamps to get money
for drugs.
       In August of 2012, S.M. told the social worker that he did not want to live with
mother because he had seen her use drugs and do “nasty things” with his “fake dad.” He
also said that she does “crazy things” like running around, hitting stuff, and grabbing a
knife. S.M. said there was no food in mother’s house. He also said he did not feel safe
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with mother. As noted above, S.M. declined weekly visits with mother in August and
September, but beginning in October 2012, S.M. agreed to visit with mother. The weekly
visits reportedly went well.
       C.     Order Removing J.O. and S.M. from Mother’s Custody and Denying
              Reunification Services
       On October 26, 2012, the juvenile court took jurisdiction over J.O. and S.M. and
ordered that reunification services not be provided. The court found that such services
would not be in the children’s best interest in view of mother’s “history of extensive,
abusive and chronic use of drugs” and her resistance to court-ordered drug treatment.
The court ordered weekly supervised therapeutic visitation between mother and the
children, but again ordered that the children not be forced to visit. A section 366.26
hearing to select a permanent plan for the children was set for February 13, 2013. That
hearing eventually was continued until April 25, 2013.
       D.     Mother’s Section 388 Petition
       Mother filed a section 388 petition on March 27, 2013, requesting modification of
the court’s October 26, 2012 orders. Specifically, she requested return of J.O. and S.M.
or six months of reunification services, increased visitation and therapy with both
children, and that visitation be made mandatory for J.O. The court set the section 388
petition to be heard on April 25, 2013, immediately before the contested section 366.26
hearing.
       E.     Section 388 Petition and Section 366.26 Hearings
       At the evidentiary hearing on mother’s section 388 petition, mother testified that
she had been sober for 11 months, attended Narcotics Anonymous meetings daily, had a
sponsor, and was serious about her recovery. She admitted that she had completed drug
treatment programs on multiple prior occasions and had been clean for as long as three
years in the past, but stated that she did not have a sponsor or attend Narcotics
Anonymous meetings that time.

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       One of mother’s long-time friends and fellow Narcotics Anonymous members
testified as to mother’s sobriety and frequent attendance of Narcotics Anonymous
meetings. Mother’s sponsor testified that she had sponsored mother for four months and
that mother was on the first of the 12 steps.
       Following the evidentiary hearing, the juvenile court denied the petition. The
court found that there were changed circumstances but concluded that reunification
services were not in the children’s best interests in light of their ages, that they were in
loving homes, and their need for permanency and consistency.
       The juvenile court admitted into evidence section 366.26 reports regarding J.O.
and S.M., which recommended termination of mother’s parental rights and adoption by
the maternal aunt and paternal grandparents, respectively. The reports indicated that the
children’s respective relative caregivers were committed to adopting them. J.O.’s section
366.26 report indicated that he consistently refused visits with mother, said he did not
want to live with her, teared up when he was asked about visiting mother, and suffered
from anxiety related to the possibility of visiting mother. The report also stated that J.O.
viewed his aunt and uncle as his parents and that he wanted to live with them
permanently. S.M.’s report stated that he viewed his grandparents as parental figures.
       Following argument by counsel, the juvenile court terminated mother’s parental
rights and freed the children for adoption. Judgment was entered on April 25, 2013.
       Mother timely appealed from the denial of her section 388 petition and the order
terminating her parental rights on April 26, 2013.
II.    DISCUSSION
       On appeal, mother contends the juvenile court erred by denying her section 388
petition request for reunification services, arguing she demonstrated that such services
were in the children’s best interests. In support of that argument, she points to evidence
that she had been sober for 11 months, is caring for her three older children, and that her
visits with S.M. have gone well. Mother also maintains that the court erred by not
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ordering J.O. to attend therapeutic visits with her as requested in her section 388 petition.
       A.     Standard of Review
       Section 388 permits any person having an interest in the child to petition for a
hearing to change, modify, or set aside any court order previously made on grounds of
change of circumstance or new evidence. (In re Lesly G. (2008) 162 Cal.App.4th 904,
912.) Such a motion requires the petitioner to demonstrate by a preponderance of the
evidence that new or changed circumstances warrant a change in the prior order to
promote the best interest of the child. (In re S.J. (2008) 167 Cal.App.4th 953, 959.) The
key factors to be considered in assessing a child’s best interests are: “(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. (1997) 56
Cal.App.4th 519, 532.) “We review the grant or denial of a petition for modification
under section 388 for an abuse of discretion.” (In re B.D. (2008) 159 Cal.App.4th 1218,
1228.) “ ‘ “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. (1994) 7 Cal.4th 295, 318-319.)
       B.     The Denial of Reunification Services Was Not an Abuse of Discretion
       The juvenile court concluded that mother established changed circumstances but
that reunification nevertheless was not in the children’s best interests. In view of the
relevant factors and the evidence before the court, that conclusion cannot be said to
exceed the bounds of reason.
       First, the juvenile court reasonably could have concluded from mother’s history of
drug abuse (including relapses flowing prior treatment programs) that the problem
leading to the dependency was serious. Second, the evidence showed that both children
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had bonded with their relative caregivers. J.O. consistently refused to see mother,
indicating his bond with his caregivers is stronger than that with his mother. And while
mother’s visits with S.M. went well, supporting an inference of a bond between the two,
S.M. was also bonded with his grandparents, and not removing him from their care
provides permanence and stability. Third, the court reasonably could have concluded
from mother’s history of relapse that her drug problem could not be easily removed or
ameliorated, even with the support of her sponsor and Narcotics Anonymous.

       C.     The Refusal to Order Visitation is Appealable But Was Not an Abuse of
              Discretion

       The Department contends that the juvenile court’s refusal to order visitation is not
appealable because the order originally was made at the dispositional hearing at which a
section 366.26 hearing was also set. Accordingly, the Department argues, section 366.26,
subdivision (l) required mother to challenge the order by writ. (See, e.g., In re Merrick V.
(2004) 122 Cal.App.4th 235, 247 [“All court orders, regardless of their nature, made at a
hearing in which a section 366.26 permanency planning hearing is set must be challenged
by a petition for extraordinary writ.”].) We disagree. Mother is not challenging the
initial order, but the court’s later refusal to modify that order as requested in her section
388 petition. Because the court’s denial of mother’s section 388 petition postdates its
order setting the section 366.26 hearing, that denial is not governed by section 366.26,
subdivision (l). (See In re Julia U. (1998) 64 Cal.App.4th 532, 539 [where, as here, the
“trial court ordered a section 366.26 hearing . . . long before it gave permission to
appellant . . . to file a section 388 petition,” mother was not required to challenge denial
of section 388 petition by extraordinary writ].)
       Nevertheless, we conclude that the juvenile court did not abuse its discretion by
denying the section 388 petition with respect to the visitation request. J.O.’s section
366.26 report indicated that he consistently refused visits with mother, said he did not
want to live with her, teared up when he was asked about visiting mother, and suffered
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from anxiety related to the possibility of visiting mother. The court reasonably could
have concluded from that evidence that forced visitation would not be in J.O.’s best
interest.
       Mother notes that, under section 361.5, subdivision (f), where the juvenile court
does not order reunification services it “may continue to permit the parent to visit the
child unless it finds that visitation would be detrimental to the child.” But the word
“may” is permissive (Woodbury v. Brown-Dempsey (2003) 108 Cal.App.4th 421, 433),
indicating that the court is not required to permit visitation even absent a finding that
visitation would be detrimental to the child. Moreover, here the court did permit
visitation, it just refused to mandate it. Thus, section 361.5, subdivision (f), does not
undermine our conclusion that the court did not abuse its discretion here.
III.   DISPOSITION
       The judgment is affirmed.




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                        Premo, J.




WE CONCUR:




    Rushing, P.J.




    Elia, J.




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