Filed 3/1/16 In re N.D. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

In re N.D. et al., Persons Coming Under the
Juvenile Court Law.

KERN COUNTY DEPARTMENT OF HUMAN                                                            F071766
SERVICES,
                                                                              (Super. Ct. Nos. JD130534,
 Plaintiff and Respondent,                                                     JD130364 and JD130365)

 v.
                                                                                         OPINION
SANDY D.,

 Defendant and Appellant.



         APPEAL from an order of the Superior Court of Kern County. Louie L. Vega,
Judge.
         Lori A. Fields, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Theresa A. Goldner, County Counsel, and Elizabeth M. Giesick, Deputy County
Counsel, for Plaintiff and Respondent.
                                                        -ooOoo-
       Sandy D. (mother) appeals from the June 4, 2015, order of the juvenile court
denying her petition pursuant to Welfare and Institutions Code section 388,1 regarding
her son, N.D. We affirm.
                     FACTUAL AND PROCEDURAL HISTORY
B.D. and C.D.’s Section 300 Petition2
       Mother came to attention of the Kern County Department of Health and Human
Services (Department) in March of 2013 when she became homeless and left her two
younger children, one-and-a-half-year-old B.D. and six-month-old C.D., in the care of
their maternal grandmother, whose home was filthy and unsafe and lacked adequate food.
Maternal grandmother reported mother was constantly “bouncing” from home to home
with the children and there was likely drug use in these homes. A social worker
described mother’s appearance as consistent with “chronic methamphetamine use.”
Mother, who became very belligerent with the social worker, admitted sometimes daily
methamphetamine use.
       A section 300 petition was filed alleging mother was unable to care for B.D. and
C.D. due to her substance abuse and that the children were at substantial risk of harm if
left in maternal grandmother’s care. The two children were detained on March 12, 2013,
and placed together in a foster home.
       During an interview prior to B.D. and C.D.’s detention hearing, mother revealed
that her older son, N.D.3, then age nine and a half, had been residing with his father,


1     Further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2      B.D. and C.D. are not subjects of this appeal.
3      N.D.’s full first name was misspelled throughout most of the case. It was
corrected in April of 2015 when a copy of his birth certificate was submitted to the
juvenile court.



                                             2.
Joshua D. (father), since January of 2013, when mother admitted herself into a drug
program, Teen Challenge. Mother left the drug program after one month, but admitted
she needed inpatient treatment in order to address her long-standing substance abuse
problem.
       The social worker discovered several prior child welfare referrals between 2007
and 2012 alleging physical abuse and general neglect of the children and mother’s drug
use. At one point, N.D. was taken from mother for abandonment. Mother reported that
she had been the victim of domestic violence by father and by B.D. and C.D.’s father,
Frank D. Two of the prior child welfare referrals involved domestic violence incidents
where mother was beaten by either father or Frank D. in N.D.’s presence.
       On March 28, 2013, mother was arrested for possession of controlled substance
paraphernalia.
       On April 8, 2013, the Department received a new referral of general neglect
concerning N.D. According to the reporting party, father was incarcerated and N.D. was
left in the care of father’s girlfriend, who had previously lost custody of her own children
in dependency proceedings due to her own substance abuse issues. Mother had
subsequently picked up N.D. from school and their whereabouts were unknown to the
reporting party.
       The next day, when the social worker was able to meet with mother, mother
reported she and N.D. were residing in a homeless shelter. Mother was advised a child
welfare investigation would be conducted for N.D.
       On April 17, 2013, the juvenile court conducted a jurisdiction hearing for B.D. and
C.D. and mother submitted on the substance abuse allegation.
       Mother attended the hearing, but at first refused to disclose N.D.’s whereabouts.
She eventually disclosed he was with maternal grandmother. That same day, the social
worker was unable to locate N.D. at either his maternal grandmother’s or his father’s
house. A protective custody warrant was executed and N.D. was ultimately found to be

                                             3.
with mother at maternal grandmother’s home. Disposition on B.D. and C.D. was
continued.
N.D.’s Section 300 Petition
       On April 18, 2013, the Department filed a section 300 petition alleging N.D. was
at risk of harm due to mother’s substance abuse and was at similar risk of abuse and
neglect as B.D. and C.D. On April 22, 2013, a first amended petition was filed, adding
allegations against father, based on his substance abuse, criminal history, and failure to
protect N.D. from mother and from his girlfriend.
N.D.’s Detention Hearing
       According to the Department’s detention report, N.D. revealed to a social worker
that he knew about illegal controlled substances. He reported mother used to use “weed,”
but had not done so for a month. An “uncle” used to “shoot up with needles in front of
us” at maternal grandmother’s before she kicked him out of the house. According to
N.D., his father smoked marijuana about once a week, but did not do so in N.D.’s
presence.
       The detention hearing was held April 23 and 25, 2013. N.D. was detained from
both mother and father and family reunification services ordered. Mother was given one
hour supervised visits per week; siblings visits were to occur one hour every other week.
Jurisdiction and disposition hearings were scheduled.
N.D.’s Jurisdiction Hearing
       The May 30, 2013, report prepared in anticipation of jurisdiction, stated N.D. had
previously been declared a dependent of the juvenile court in Nebraska in 2005 based on
allegations of neglect. Mother had received the equivalent of family reunification
services at that time. As of April 29, 2013, mother was enrolled in an inpatient substance
abuse program, Casa Serena. When mother met with the social worker on May 10, 2013,
she reported she had been “clean” for 17 days, which she claimed was the was longest



                                             4.
period of sobriety she had maintained since C.D. was born. According to mother, she
had been using methamphetamine in order to get off of “hard core” drugs.
       At the jurisdiction hearing May 30, 2013, the juvenile court sustained N.D.’s
petition. The juvenile court ordered a psychological evaluation for mother in order to
determine whether mother was able to utilize reunification services. The disposition for
all three children was continued until July 10, 2013.
N.D., B.D. and C.D.’s Disposition Hearing
       Disposition was continued several times in order to allow mother to complete her
psychological evaluation.
       Reports prepared in anticipation of disposition recommended out-of-home care for
N.D. and family reunification services for mother. Mother was diagnosed with
polysubstance dependence; mood disorder, not otherwise specified; and child neglect.
The psychologist who evaluated mother on July 24, 2013, recommended that, in order for
mother to successfully complete family reunification, she engage in substance abuse
counseling, participate in random drug testing, undergo a psychological and psychiatric
evaluation to determine her counseling and medication needs, continue parenting and
anger management classes, obtain appropriate housing, and consider additional education
to secure employment.
       On September 25, 2013, mother was referred to “guided visitation” after
displaying frustration with her children and interacting inappropriately with N.D. during
visits. Mother completed a parenting course on September 25, 2013; was showing good
progress in her substance abuse program, which included group and individual
counseling; and drug tested negative since May of 2013.
       Mother was present when disposition was held for all three children on October 8,
2013. The juvenile court found mother made minimal progress towards alleviating or
mitigating the causes for the children’s placement in out-of-home care. All three children
were removed from mother’s custody and reunification services ordered for mother,

                                            5.
including mental health and anger management counseling, substance abuse treatment,
and random drug testing. Mother was also ordered to attend a psychotropic medication
evaluation and comply with physician’s directives, if any. The juvenile court ordered
mother have weekly supervised visits with N.D. and every other week visits with N.D.’s
siblings. A six-month review hearing was scheduled for April 8, 2014.
Family Reunification Period
      A. Six-Month Review
      The report prepared in anticipation of the six-month review stated mother
completed a substance abuse class in February of 2014; completed anger management
counseling in March of 2014; received a mental health evaluation and was currently
prescribed medication; and drug tested negative from October 11, 2013, to March 17,
2014. A second psychiatrist diagnosed mother with generalized anxiety disorder; major
depressive disorder, recurrent episode, mode; amphetamine-induced mood disorder; and
bipolar affective disorder, mixed, moderate. Various psychotropic medications were
prescribed. During visits, mother was said to have limited interaction with N.D. and,
when she did, she responded negatively to him, was short-tempered and impatient.
      In summary, the report stated mother successfully completed all components of
her case plan, but the Department was concerned with the relationship between mother
and N.D., as she had been observed to be negative, angry and easily frustrated with him
during visits. The Department recommended continued guided visitation and
transitioning to unsupervised visits before considering returning N.D. to mother.
      At the six-month review April 8, 2014, the juvenile court found mother made
moderate progress toward alleviating or mitigating the causes for out-of-home placement
and adopted the recommendations of the Department. Mother was ordered to participate
in counseling for guided visitation. A 12-month review hearing was scheduled for May
7, 2014.



                                            6.
       B. 12-Month Review
       The report prepared for the 12-month review hearing stated mother completed all
components of the case plan, but although guided visitation had been incorporated, she
had only received one such visit. Mother continued to use foul language around the
children and to reside in a homeless transitional housing program that did not allow
children. The Department recommended continued guided visitation while mother
secured housing and to then transition to unsupervised visits before placing the children
back with mother.
       At the 12-month review hearing May 7, 2014, the juvenile court adopted the
findings of the Department and an 18-month review hearing set for September 8, 2014.
       C. 18-Month Review
       The report prepared for the 18-month review hearing stated mother had not been
in compliance with her psychotropic medication during this period of review, as she had
not refilled her prescription since February of 2014. Mother attended seven of 12 guided
visitation sessions. Mother had been making progress until she failed to show for her last
three visits and failed to contact the coordinator to cancel the visits. Mother had a
“suspicious” drug test in May of 2014 and missed a drug test in June of 2014. During
June and July of 2014, mother missed five consecutive weeks of visits. Mother explained
her missed visits occurred because she was “in a rut.” At the visits she attended, mother
continued to have limited interaction with N.D., she responded negatively to him, was
short-tempered, impatient, and continued to curse during visits. The Department
recommended family reunification services be terminated as she failed to make progress
during the review period and she had had 18 months to comply.
       The September 8, 2014, review hearing was continued until October 7, 2014, at
mother’s request. The October 7, 2014, hearing was continued by stipulation of counsel
in order to get further information on mother’s medications and to allow mother to finish
some guided visitation hours. The new hearing was set for December 2, 2014.

                                             7.
       The supplemental report prepared in anticipation of the December 2, 2014, 18-
month review hearing added that mother began a second series of guided visits in August
of 2014. On October 2, 2014, the visitation coach reported mother made “tremendous
improvements,” but recommended two additional sessions to help mother and N.D. work
on communication skills and to help mother effectively divide her time between N.D. and
the two younger children. As of October 2014, mother attended all visits in a timely
fashion. She drug tested twice, both negative, in October and November 2014.
       Apart from the “guided” visits, mother also had regularly scheduled visits at the
Department. At those visits, mother had trouble managing all three children together and
during one visit in early November 2014 got fed up and walked out. N.D. reported that
he felt responsible for how the visit went. On November 18, 2014, mother requested that
the visits be split up so she could visit with N.D. by himself, but her request was
declined. N.D. heard mother’s request and asked her if she thought the difficulty at the
visits was his “fault.” The social worker offered mother a referral for conjoint therapy
with N.D.
       Mother secured housing in September of 2014, but at the end of the month was
still in need of furniture for the children. Prior to that, she had been in a homeless
transitional housing program that did not allow children.
       Adoption assessments were completed for the children. Long-term foster care was
recommended for N.D. The younger children, B.D. and C.D. were considered adoptable,
but their foster caretaker was not willing to adopt. B.D. and C.D. were placed in the
prospective adoptive home of Mr. and Mrs. S. in November of 2014, and N.D. was
moved back to his former foster home.
       At the 18-month review hearing December 2, 2014, the juvenile court found
mother made moderate progress towards alleviating the issues which led to detention, and
she had made acceptable efforts to avail herself of reunification services. The juvenile
court found it could not return the children to mother because of continuing “significant”

                                              8.
problems during her visits with the children. Reunification services were terminated and
a section 366.26 selection and implementation hearing was set for all three children April
1, 2015. Mother’s visits were continued and she was authorized to participate in conjoint
counseling with N.D., if that was in his best interests.
Extraordinary Writ Petition
       Mother filed a petition for extraordinary writ challenging the juvenile court’s
findings that it was detrimental to return the children to her and terminating family
reunification services. We denied her writ on the merits on March 2, 2015, in case No.
F070541.
Section 388 Petitions
       On March 24, 2015, mother filed a section 388 petition for each child. The
petition for N.D. alleged mother had complied with all court orders, she continued to test
clean, and she was currently participating in conjoint counseling with N.D. Mother
continued to visit all three children and alleged the quality of the visits was good and
continued to improve. Mother asserted it would be in N.D.’s best interest to return him to
her care with family maintenance services or, in the alternative, that she receive
additional reunification services. The hearing on the petitions were scheduled for May
11, 2015, to coincide with the continued selection and implementation hearing.
De Facto Parent Request and Section 388 Petition
       On April 21, 2015, Mr. and Mrs. S. filed a request to be declared de facto parents
of B.D. and C.D. They also filed a section 388 petition requesting N.D. be placed in their
home for adoption as well. According to Mr. and Mrs. S, N.D. had been having weekend
visits in their home and they would “love placement” of N.D. for adoption with his
younger siblings as a sibling group. While Mr. and Mrs. S. realized N.D. was attached to
his mother, they were giving him “space to think about … this decision,” but they were
willing to provide him with permanency and to continue contact with mother, if



                                              9.
appropriate. The hearing on the request and petition were set for the May 11, 2015, joint
hearing.
Joint Section 388 Petitions and Section 366.26 Hearing
       Mother was present at the combined sections 388 and 366.26 and status review
hearing held June 4, 2015.
       The Department submitted a social study for the section 366.26 hearing, dated
March 19, 2015, recommending long-term foster care for N.D. and termination of
mother’s parental rights for B.D. and C.D. N.D. was now 11 ½ years old, had been in
several foster care placements during the case, was in counseling, and was an
“outstanding” student.
       During the course of dependency, mother attended 60 out of a possible 171 visits
with N.D. During visits following the termination of reunification services, mother was
still very negative and argumentative toward N.D. Long-term foster care was
recommended for N.D. as he and mother had a “more substantial relationship” and the
relationship “should continue.” N.D. expressed to the social worker that he wished to
live with mother, but if that was not possible, to remain in his current placement.
       A supplemental section 366.26 report dated March 30, 2015, reflected that N.D.
was generally not adoptable due to his age and lack of available adoptive homes. N.D.
wished to continue his relationship with mother and, in view of his age, he would have to
agree to adoption.
       The May 11, 2015, hearing was continued, in part because N.D. was not present.
A new hearing was set for June 2, 2015.
       The Department’s status review report dated May 26, 2015, stated that, when the
social worker spoke to N.D. about his placement option in April of 2015, he was torn
between remaining in his current foster home or living in the same home as B.D. and
C.D. N.D. was concerned that he would be “bored” living with Mr. and Mrs. S., because
they lived in the mountains.

                                            10.
       Another supplemental report dated May 29, 2015, concerned the section 388
petition filed by Mr. and Mrs. S. During a supervised visit, N.D. disclosed to the social
worker that his foster parents drank heavily, cursed at him and told him he would not be
returning home. If he was not able to return to mother, he now wished to live with his
siblings at Mr. and Mrs. S.’s. The Department recommended the section 388 petition
filed by Mr. and Mrs. S. be granted.
       The Department filed a report dated May 29, 2015, in response to mother’s section
388 petition stating mother was compliant with her medication management for her
mental health issues since the end of April 2015, but “one month compared to 18+
months is not sufficient.” Mother consistently drug tested negative between February 9
and May 19, 2015, and had valid excuses for the two tests she missed.
       Incidents, both positive and negative, between mother and N.D. at various visits
were described in the report. The social worker opined that, despite mother’s progress
with the case plan, she remained “short tempered, negative, and angry” towards N.D.
Mother continued to have verbal altercations with him at visits, and she was not utilizing
the tools she had been provided from her parenting and guided visit coaching. According
to the social worker, “There are ongoing concerns for the children’s physical safety if the
mother becomes upset or frustrated,” and “there are questions regarding the mother’s
ability to protect the children if the children were returned to the mother’s care.” N.D.
reportedly took on the “parenting role” with B.D. and C.D. and took the blame when
something went wrong. The social worker recommended mother’s section 388 petition
be denied, as there was a substantial risk of detriment to the children if they were
returned.
       At the June 4, 2015, hearing, mother testified that she completed her case plan
requirements and took some extra counseling on budgeting, recovery and Bible study
through a local ministry, “until it started conflicting with other things.” Mother was



                                             11.
currently in a three-bedroom, two-bath home and she had a bed for N.D. The local
ministry was willing to provide her with other necessities, as was the social worker.
       When asked about visits, mother testified that she and N.D. were “communicating
better.” She acknowledged acting inappropriately during a visit in November of 2014
when she left early. Mother requested and received joint counseling with N.D., but
although she showed up for all five or six scheduled sessions, N.D. was only brought to
two of the sessions due to school conflicts.
       Mother felt visits with N.D. had improved “dramatically” as she was able to
effectively direct him. Mother had resumed taking her anxiety medication in October or
November of 2014, making everything “a lot easier to deal with.” Mother testified she
had no intention of going off of her medications and she agreed they made a difference.
       Mother wanted all three children returned to her care. Mother stated she had a
support system in place, including her addiction sponsor, church meetings, several people
who were sober who she could talk to, and “several relatives.” According to mother, the
guided visitation counselor was still available and willing to come out to assess them
each week. Mother anticipated she could obtain additional referrals if family
maintenance services were ordered. Mother was willing to continue counseling and do
whatever she needed in order to care for her children.
       N.D. testified he was in the 6th grade and wanted to return home to mother with his
two siblings. N.D. thought his mother had “worked hard” to get them back, even though
they had had some bad visits. Since November of 2014, N.D. had enjoyed “[m]ore very
good visits” than hard ones. N.D. recognized his mother could be hard on him at times,
but he did not doubt that she loved him and he loved her “[a] hundred percent.” N.D. did
not feel responsible for the dependency case, and he believed mother took full
responsibility. N.D.’s first choice was to return home to mother with B.D. and C.D. If he
could not, he wished to live with Mr. and Mrs. S. and his siblings.



                                               12.
         On cross-examination, N.D. testified that he did not feel responsible if he had a
bad visit with mother and he did not think it was his fault, even though mother blamed
him at times. N.D. did not think he was unfairly put in a “grown-up” role. N.D.
explained that, before the dependency case, after mother had C.D. and was on
medication, he took care of his siblings and it was now “kind of hard” not to continue to
do so.
         The juvenile court, in its ruling, found N.D. to have a demeanor of “someone
chronologically a lot older” and that he had assumed more responsibility than someone
his age should have based on the circumstances. The juvenile court pointed to
circumstances at the May 19, 2015, visit, in which B.D. fell out of a swing and mother
told N.D. it happened because he distracted her. The juvenile court opined that incident
occurred only “a couple of weeks ago” and was a good opportunity for mother to
demonstrate good parenting, but she failed to do so. The juvenile court opined such
incidents would recur if the children were returned to mother and illustrated “clearly what
the problem continues to be.” The juvenile court denied mother’s section 388 petition,
stating that it did not think services had “gelled to the point where the court could grant
the 388 as requested.”
         The juvenile court then conducted the children’s selection and implementation
hearings and ordered N.D. into long-term foster care, after finding him not likely to be
adopted. Supervised visits with N.D. were continued weekly for two hours. The juvenile
court found B.D. and C.D. likely to be adopted and terminated mother’s parental rights as
to them.
         The juvenile court granted Mr. and Mrs. S. de facto parent status as to B.D. and
C.D. Mr. and Mrs. S. maintained their request to have N.D. placed with them, but
withdrew their request to formally place him in adoptive planning since they were
respectful of his wishes not to be adopted. Because N.D. was already at Mr. and Mrs.



                                              13.
S.’s for an extended visit, the juvenile court took no formal action on the section 388
petition filed by Mr. and Mrs. S.
       The juvenile court then conducted a status review hearing for N.D. and found
continued jurisdiction necessary and appropriate.
                                      DISCUSSION
       Mother’s only contention on appeal is that the juvenile court abused its discretion
in denying her section 388 motion to either return N.D. to her custody with family
maintenance services or, in the alternative, to reinstate reunification services. Mother
contends the juvenile court denied her motion based not on evidence that N.D. would
suffer physical or emotional abuse or neglect if reunification occurred, but rather on its
own “‘ideal’” parenting standard. We find no abuse of discretion.
       Modification orders in juvenile dependency court are authorized by section 388.
Essentially, the statute requires a showing of a change of circumstances and that
modification based on that change would be in the “best interests” of the minor child.
“A party may petition the court under section 388 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 (1) there is a change of circumstances or new
evidence, and (2) the proposed change is in the child’s best interests.” (In re Jackson W.
(2010) 184 Cal.App.4th 247, 257.)
       As explained in In re Marilyn H. (1993) 5 Cal.4th 295, section 388 is an “escape
mechanism” when parents complete a reformation in the short, final period after the
termination of reunification services but before the actual termination of parental rights.
(See Marilyn, H., supra, at p. 309.) As such, section 388 is vital to the constitutionality
of our dependency scheme as a whole, and the termination statute, section 366.26, in
particular. (Marilyn H., supra, at p. 309.) After reunification services are terminated, the
child’s needs for continuity and stability assumes an increasingly important role. (In re
Stephanie M. (1994) 7 Cal.4th 295, 317.) However, “[e]ven after the focus has shifted

                                             14.
from reunification, the scheme provides a means for the court to address a legitimate
change of circumstances while protecting the child’s need for prompt resolution of his
custody status.” (Marilyn H., supra, at p. 309.) “[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.” (Ibid.)
       In re Kimberly F. (1997) 56 Cal.App.4th 519 (Kimberly F.), relied on by mother,
does not support mother’s position that the juvenile court required her to be a “perfect”
rather than adequate parent. In Kimberly F., the youngest two of mother’s four children
were removed from the home and placed with their relatives when the mother’s home
was determined to be in an unsanitary and unsafe condition. (Id. at pp. 522-523.)
Although home conditions improved to some extent, the juvenile court at the 18-month
review hearing set a section 366.26 hearing and terminated reunification services.
(Kimberly F., supra, at p. 524.) Five months later, shortly before the section 366.26
hearing, the mother filed a section 388 petition, in which she demonstrated she had been
keeping her home in a safe and sanitary condition. (Kimberly F., supra, at p. 525.) The
juvenile court denied the mother’s petition, finding there had been no change in
circumstances and that the proposed modification would not be in the minors’ best
interests. (Id. at pp. 525-526.)
       The appellate court in Kimberly F. reversed the order. It concluded, among other
things, that (1) the juvenile court erred in finding no change of circumstances, since the
facts indisputably showed that the home was no longer in an unsafe and unsanitary
condition, i.e., the initial reason for the dependency (Kimberly F., supra, 56 Cal.App.4th
at pp. 526-527); (2) the juvenile court improperly relied on a psychologist’s descriptions
of the mother’s eccentricities that did not establish detriment (id. at p. 527); and (3) a
determination of the best interest of the child could not be accomplished through a simple
comparison between the parent’s and the caretakers’ respective households, but required

                                             15.
consideration of a number of factors, including the seriousness of the initial reason for the
dependency and the strength of the parent-child bond (id. at pp. 529-531).
       Kimberly F. is a factually different case than mother’s. The appellate court in
Kimberly F. assessed that the circumstances resulting in the dependency were not very
serious, as compared with other cases. It stated that “even the most compulsive
housekeeper would agree that a dirty house case generally lies at the other end of the
continuum from sexual abuse and drug cases.” (Kimberly F., supra, 56 Cal.App.4th at p.
531, fn. 9.) Here, the reasons for the dependency – chronic alcohol abuse and the
absence of any provision for the adequate care of the children as a result of mother
leaving the children with maternal grandmother and N.D.’s father’s girlfriend – were
much more serious and profound than “a dirty house case.”
       Yet mother seizes on a statement in Kimberly F. in which the court observed,
“[t]he juvenile dependency system … exists to protect abused and neglected children, not
serve as a kind of super-psychologist.” (Kimberly F., supra, 56 Cal.App.4th at p. 530, fn.
8.) Mother contends that, in her case, the juvenile court held her to a “nebulous ‘ideal’
parenting standard, when the evidence showed it was not only safe, but in [N.D.]’s best
interest” to be returned to her despite her “imperfections.” We disagree.
       The evidence before the juvenile court was that N.D. first came into protective
custody in April of 2013 due to mother’s substance abuse and general neglect of her
children. Mother completed the basic components of her reunification plan, although she
failed to become compliant with her mental health medication regimen until very late in
the process. And she continued to struggle in her visitation with her children. During the
entire 18 months of reunification, mother’s attitude at visits with the children remained
negative, angry, and short-tempered, especially towards N.D., who had through this
process taken on a parenting role. Mother attended only 35% of possible visits with the
children and, as late as May 2015, she was still not able to transition into unsupervised
visits because of ongoing concern for the physical safety of the children when mother

                                            16.
became upset or frustrated. The juvenile court did not abuse its discretion in finding that
mother’s circumstances had not changed.
       Further, mother failed to meet her burden in demonstrating how removing N.D.
from a safe and stable home and placing him with her served his best interest. There was
no evidence presented on this issue.
       The juvenile court did not abuse its discretion in denying mother’s section 388
petition, and we reject her contention to the contrary.
                                       DISPOSITION
       The order is affirmed.

                                                                _____________________
                                                                          FRANSON, J.
WE CONCUR:


 _____________________
LEVY, Acting P.J.


 _____________________
KANE, J.




                                             17.
