Filed 4/16/15 In re V.V. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 V.V., a Person Coming Under the
Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES,                                               E061985

         Plaintiff and Respondent,                                       (Super.Ct.No. SWJ1300364)

v.                                                                       OPINION

N.V.,

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. John M. Monterosso,

Judge. Affirmed.

         Diana W. Prince, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Gregory P. Priamos, County Counsel, and Julie Koons Jarvi, Deputy County

Counsel, for Plaintiff and Respondent.


                                                             1
       Defendant and appellant N.V. (mother) is the biological mother of V.V., the child

who is the subject of this dependency proceeding. She appeals from the juvenile court’s

orders denying her petition pursuant to Welfare and Institutions Code1 section 388, and

terminating her parental rights with respect to the child pursuant to section 366.26. She

contends the court should have granted her further reunification services and authorized

liberalized visitation, instead of terminating her parental rights and establishing a

permanent plan of adoption for the child. We affirm.

                 I. FACTUAL AND PROCEDURAL BACKGROUND2

       On June 4, 2013, the Riverside County Department of Public Social Services

(DPSS) filed a dependency petition with respect to the newborn girl V.V. Mother had

received no prenatal care, the child was born at 35 weeks’ gestation, and both mother and

child tested positive for amphetamines. The father of the child was unknown; mother

declined to identify him to the social worker. Mother reported to the social worker that

she was currently “staying at a friend’s house because she lost her home.” Mother had

one other child, a daughter who was staying with a maternal cousin. Mother indicated

that she was unemployed, and planned to get money from unemployment and relatives to

support her and the child.


       1 All further statutory references will be to the Welfare and Institutions Code
unless otherwise noted.

       2  We here summarize only those facts necessary for context, and those directly
relevant to mother’s claims of error. An exhaustive factual and procedural history is
unnecessary to the disposition of the matter.


                                              2
       On June 5, 2013, the juvenile court detained the child, and on August 8, 2013, it

sustained the petition, finding that she came within section 300, subdivisions (b) (failure

to protect) and (g) (no provision for support). Despite the recommendation from DPSS

that mother be denied reunification services, the court ordered services to be provided,

finding that to do so would be in the best interest of the child.

       On October 8, 2013, the child was placed with her maternal aunt. The aunt had

begun visiting the child in July 2013, prior to placement. DPSS reported to the court in

January 2014 that the child was doing well in the aunt’s home, and was “truly attached to

her caretaker and the rest of the family,” which also included three older cousins who

“surrounded [her] with love.”

       In the meantime, mother failed to participate in the reunification services offered

to her. In January 2014, DPSS reported that mother had been referred to individual

therapy, parent education, and substance abuse treatment, but had not followed up on any

of those referrals. She was referred to drug testing, but failed to show up. The court had

ordered visitation to occur twice a week; mother had not visited with the child even a

single time.

       In an addendum report filed February 26, 2014, DPSS reported that mother had

called the social worker on February 10, 2014, interested in obtaining new referrals and

visiting with the child. On February 20, 2014, after mother had a clean drug test, a visit

between mother and child was arranged. Mother interacted well with the child during the

visit, but the social worker observed that there was no bond between mother and

daughter, because of the lack of previous visitation.

                                              3
       On March 6, 2014, the court terminated mother’s reunification services, and set a

section 366.26 hearing. Mother’s visitation was reduced to one supervised visit per

month, with additional visitation authorized.

       On March 12, 2014, mother filed a notice of intent to file writ petition. The

petition was dismissed, however, pursuant to a withdrawal filed on March 24, 2014.

       On May 12, 2014, mother filed a section 388 petition, requesting that the court

reinstate reunification services and authorize liberalized visitation. The changed

circumstances cited as the basis of the petition are a clean hair follicle drug test on

March 5, 2014, mother’s subsequent entry into and completion of a 45-day inpatient drug

treatment program, and the circumstance that she had “established a stable

residence . . . .” Mother also had begun visiting with the child as permitted by the court’s

orders, and she believed that they had “established a nurturing and loving bond.” The

court set the matter for a hearing.

       In a section 366.26 report filed June 5, 2014, and again in an addendum report

filed June 23, 2014, DPSS recommended that the parental rights of mother and the

unknown father or fathers of the child be terminated, and that the child remain in the care

of the maternal aunt, who was now a prospective adoptive parent. DPSS acknowledged

that mother’s visits with the child had gone well; she had visited with the child twice a

week from February 20, 2014, until March 6, 2014, and monthly thereafter until June 12,

2014, when visitation was increased to twice monthly, in accordance with the court’s

orders. Mother’s older daughter, as well as the older daughter’s caretaker, a maternal

cousin, also participated in the visits in a positive manner.

                                              4
       Nevertheless, the social worker observed that the child had “no bond” to mother,

despite mother’s recent efforts to build one, and credited the circumstance that visits with

mother had gone well to the child “being a happy and stable baby while being cared for

by [mother’s] sister.” The lack of any visitation by mother in the first eight months of the

child’s life, followed by the limited visitation allowed by the court thereafter, left simply

“not enough time to truly establish a bond with a child that is nearing one year old.” In

contrast, the child was “very attached and bonded” to her current caretaker and

prospective adoptive parent, her maternal aunt, who had provided “the only home that

[the child] knows[,] a home that has provided for all of her needs since she was four

months old . . . .” Further, though mother now had a stable residence, she was still

without a job—her only source of income was food stamps—and she was being

supported by other family members. DPSS also noted that the maternal aunt had

expressed willingness to continue visitations between the child and her older sibling.

       Mother’s section 388 petition was heard on September 15, 2014. Mother’s

testimony was presented, pursuant to stipulation, in the form of a letter to the court, dated

June 19, 2014. Among other things, the letter states that mother had been homeless until

February 2014, but since then had been sober and living in a stable residence, with the

assistance of her cousin (the older daughter’s caretaker). Mother had completed an

inpatient rehabilitation program, and continued attending outpatient counseling weekly,

as well as church twice weekly. She had attended every scheduled visit with the child

since February 2014, and expressed hope that she would be able to reunite permanently

with both her daughters in the future.

                                              5
       The court found mother had established changed circumstances, given her

“remarkable turnaround,” but decided the requested change of order would not be in the

child’s best interest, and denied mother’s section 388 petition on that basis. The court

then proceeded to section 366.26 matters, terminating parental rights and setting adoption

as the child’s permanent plan.

                                     II. DISCUSSION

A. Standard of Review

       “Under section 388, a person with an interest in a dependent child may petition the

court to change, modify, or set aside a previous court order. The petitioning party has the

burden of showing, by a preponderance of the evidence, that there is a change of

circumstances or new evidence, and the proposed modification is in the child’s best

interest. [Citations.]” (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.) “In

determining whether the petition makes the necessary showing, the court may consider

the entire factual and procedural history of the case. [Citation.]” (In re Justice P. (2004)

123 Cal.App.4th 181, 189.) Importantly, given the circumstances of this case, “[a]fter 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 interest of the child.

[Citation.] A court hearing a motion for change of placement at this stage of the

proceedings must recognize this shift of focus in determining the ultimate question before



                                              6
it, that is, the best interest of the child.” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.

(Stephanie M.).)

       “The grant or denial of a section 388 petition is committed to the sound discretion

of the trial court and will not be disturbed on appeal unless an abuse of discretion is

clearly established. [Citation.]” (In re Shirley K. (2006) 140 Cal.App.4th 65, 71.)

“‘“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.”’ [Citation.]” (Stephanie M., supra, 7 Cal.4th at pp. 318-319.)

B. Analysis

       This appeal turns on whether mother has shown that the juvenile court abused its

discretion by determining the best interest of the child would not be served by granting

mother’s requested modification of its prior orders.3 Because the trial court’s decision

did not exceed the bounds of reason, we find no abuse of discretion.

       As noted, mother’s burden on the second prong of the section 388 analysis was to

show that the child’s best interests, and in particular the need of the child for permanency

and stability, would be served by the requested change. (Stephanie M., supra, 7 Cal.4th

at p. 317.) Her petition in essence presented the court with two basic options: (1) deny

any further reunification services and terminate mother’s parental rights, freeing the child


       3 The trial court found, and DPS has not contested on appeal, that mother showed
a genuine change of circumstances. We therefore need not discuss that portion of the
section 388 analysis further.

                                               7
for likely adoption by the only parent she had ever known, with whom she had developed

a strong mutual attachment, and who was prepared to provide her a permanent, stable and

loving home; or (2) delay adoption in favor of further reunification services for mother

who (a) only recently had obtained stable housing for herself, (b) who continued to have

no independent means of supporting herself or any of her children, (c) whose sobriety,

while commendable, remained a relatively new phenomenon, and (d) to whom the child

could not yet have developed a bond going beyond that of a friendly visitor, because of

mother’s complete absence from the first part of her life, and only occasional visits

thereafter. To say the least, the trial court’s conclusion that the first option would better

serve the child’s need for permanency and stability did not exceed the bounds of reason.

       Mother emphasizes on appeal the factors listed in In re Kimberly F. (1997) 56

Cal.App.4th 519 (Kimberly F.), which 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 the 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.” (Id. at p. 532.) These factors,

however, do not account for the need of the child for permanency and stability

emphasized in Stephanie M., supra, 7 Cal.4th at p. 317. (See In re J.C. (2014) 226

Cal.App.4th 503, 527 [declining to apply Kimberly F. factors on this basis].) Even

accepting mother’s application of the Kimberly F. factors—and there is room for

argument with respect to her analysis—she fails to show that the trial court abused its

discretion in determining the child’s best interests. She points to nothing in the record,

                                              8
and upon review we discern nothing in the record, compelling the conclusion that the

child’s need for permanency and stability would be furthered by her proposed

modification.

       Mother is to be commended for her efforts to improve her life. We express our

hope that by continuing to do so, she will eventually be able to have a healthy

relationship of some sort—even if not a parental relationship—with the child, given that

the prospective adoptive parent is the child’s maternal aunt. Nevertheless, the trial court

did not abuse its discretion when it concluded mother had not shown the child’s best

interests would be served by further delaying permanency and stability in favor of

rewarding mother for her recent hard work and efforts to reunify.

                                      III. DISPOSITION

       The orders appealed from are affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                HOLLENHORST
                                                                         Acting P. J.

We concur:

       KING
                                 J.

       MILLER
                                 J.




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