Filed 6/21/13 In re D.D. CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Butte)
                                                            ----



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

BUTTE COUNTY DEPARTMENT OF                                                                   C072125
EMPLOYMENT AND SOCIAL SERVICES,
                                                                                   (Super. Ct. Nos. J35568,
                   Plaintiff and Respondent,                                               J35569)

         v.

JENNIFER D.,

                   Defendant and Appellant.




         Jennifer D. (mother) appeals from the juvenile court’s order denying her petition
to reinstate reunification services as to minors D. D. and P. D. (Welf. & Inst. Code,1
§ 388.) We affirm.




1        Undesignated section references are to the Welfare and Institutions Code.

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                   FACTUAL AND PROCEDURAL BACKGROUND
       On November 10, 2010, the Butte County Department of Employment and Social
Services (the department) filed section 300 petitions as to D. D., age 9, and P. D., age 10.
The petitions, as later amended, alleged: (1) Mother was found unconscious and
transported to the hospital. Law enforcement officers determined (though mother denied
it) that she had attempted suicide by overdosing on methamphetamine, prescription
medications, opiates, and marijuana, and had left a note. (2) Mother had left the minors
in the care of her new husband, who had an extensive criminal history and no legal
standing to care for the minors.2 (3) Mother told the social worker she did not think what
she had done was wrong and did not see what the “big deal” was.
       The detention report alleged that mother had multiple referrals to Child Protective
Services (CPS) in 2000 and 2001 based on alleged drug use and general neglect. The
minors’ older sister, K. D., was reported as a possible subject for detention, but she was
not at the family home when her brothers were detained and her whereabouts were
unknown.3
       According to a jurisdiction report dated January 26, 2011, since the minors’
detention mother had failed to participate in offered services, had continued to test
positive for methamphetamine and ecstasy, and had missed drug tests. Robert L.,
mother’s husband according to the section 300 petitions, was actually her boyfriend. He
had offered to care for the minors, but was told he had no legal rights to them.
       The jurisdiction/disposition report, dated March 10, 2011, recommended
continued foster care for the minors and reunification services for mother, although
mother had made minimal progress so far. She acknowledged a substance abuse problem



2      D. D.’s and P. D.’s alleged fathers have not appeared in these proceedings.
3      K. D. later declined foster care in writing.

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and said she would participate in inpatient rehabilitation, but had not used the services
available to her and had tested positive for drugs as recently as February 25, 2011. Her
substance abuse and depression severely impacted her ability to benefit from services.
       Mother’s boyfriend, Robert L., had a criminal history dating back 33 years,
including drug and child cruelty offenses.4 He was awaiting sentencing on his latest
convictions. Mother recognized that she might have to put her relationship with him
aside to focus on recovery.
       Mother had supervised visitation with the minors once a week. She had missed or
been late for numerous visits. The location of visits had been changed because Robert L.
was making unauthorized contacts with the minors. Mother insisted he was an important
part of their lives.
       The minors were doing well in school and had the support of extended family
members. They wanted to return to mother’s care, but had difficulty recognizing the
depths of her addiction and seemed to perceive her inconsistent visitation as
abandonment.
       At the jurisdiction/disposition hearing on March 10, 2011, the juvenile court
ordered continued foster care for the minors and reunification services for mother. The
court found her progress to date poor, due to inconsistent participation in services and
visitation and continued use of illegal substances.
       The six-month status review report recommended granting further services to
mother, though her participation in services was “minimal.” Her visitation, though more
consistent, was still supervised because of persistent lateness, failure to test for drugs, and
lack of progress in services. The visits went well, but she related to the minors more as a
peer than as a parent.



4      Mother said she and Robert L. married in October 2010, but neither had responded
to requests to verify this claim.

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       Mother became homeless around June 2011. She and Robert L. stayed in motels
or camped. Neither was gainfully employed. She felt that her lack of housing and
income impeded her participation in services.
       Since mother’s relationship with Robert L. began, she lost custody of the minors,
succumbed to addiction again, became estranged from her eldest daughters and extended
family members, lost her job and home, and developed “severe health complications that
are exacerbated by what appears to be her continued drug abuse.” She periodically
acknowledged that she needed to focus on her health and it might be better if she and
Robert L. separated.
       On the other hand, mother had previously maintained sobriety for eight or nine
years, given the minors adequate housing, structure, and guidance, and worked at various
jobs, including some in “the social services field.” She had expressed difficulty “facing
service providers as a recipient instead of as one of their peers/co-workers.” She and the
minors clearly loved each other, and they wanted her to get better and to be a parent to
them again.
       The minors were doing well in foster care. They had formed appropriate bonds
with their foster parents and looked to them for support and guidance. At the six-month
review hearing, the juvenile court ordered continued services to mother. The 12-month
status review report recommended terminating mother’s services and setting a section
366.26 hearing.
       Mother had been mostly out of contact with the department while living a transient
life with Robert L., even after she reported on October 11, 2011, that he had become
violent with her, sabotaged her visitation, and caused her to fear for her safety. She knew
he was wanted on felony arrest warrants and had fled the police three times since
September 22, 2011. She was observed in his company or in the vicinity on all three
occasions, until he was captured around November 16, 2011. The next day, she entered a
women’s shelter.

                                             4
       Even after mother entered the shelter, her attendance at services was spotty or
undocumented. Visitation had resumed and had taken place weekly, supervised, since
November 29, 2011. Mother still did not have housing suitable for the minors.
       It had taken mother 12 months to recognize the destructive pattern of domestic
violence in her relationship with Robert L. Her progress had not been sufficient to return
the minors to her care.
       The minors, who had been in their foster home for 14 months, had adjusted very
well and had formed appropriate attachments there. An adoptions referral had been
completed and the case had been assigned to an adoptions specialist.
       Before the 12-month hearing, mother filed exhibits, including 12-step program
attendance logs, certificates of completion from Stepping Stones (a substance abuse
program) and Counseling Solutions (parent support group), a support letter from a
Narcotics Anonymous member, a letter from a therapist saying that mother had begun
seeing him voluntarily, and a referral to parenting classes and individual counseling.
       At the contested 12-month review hearing, after hearing testimony from mother
and receiving her exhibits into evidence, the juvenile court terminated her services and
set a section 366.26 hearing. The court found by clear and convincing evidence that
mother’s progress had been poor and there was no substantial probability the minors
could be returned to her care by the 18-month review hearing.
       On June 27, 2012, mother filed a section 388 petition seeking the reinstatement of
reunification services and increased visitation. The petition alleged that since the
termination of her services mother had stayed sober and sought out random drug testing,
maintained regular attendance at 12-step meetings, continued to participate voluntarily in
Stepping Stones, met consistently with her private therapist to work on codependency
and addiction, met with her social worker to try to alleviate the department’s concerns,
and completed all available parenting classes. Furthermore, Robert L., incarcerated since
November 2011, was about to be sentenced to prison. In counseling, mother continued to

                                             5
address the negative impact her relationship with him had had on the minors, and she
believed therapeutic visits with them would be helpful on this issue.
       On July 9, 2012, mother filed an amended section 388 petition, alleging in
addition that she had obtained stable housing and had enrolled in and begun attending
Butte College.
       The juvenile court scheduled the amended section 388 petition to be heard along
with the section 366.26 proceeding, but the petition was heard alone on August 23, 2012,
because the section 366.26 proceeding had to be continued. Mother and the minors’
court appointed special advocates testified.
       Mother testified as follows:
       She had been sober since November 10, 2011. She tried to attend at least two
Narcotics Anonymous meetings a week, while also going to school; when not in school,
she would go to a meeting almost every day. She attended church and a church-based
program called Celebrate Recovery. She had obtained a new sponsor in March or April
2012 (because the old one had not been able to work with her), met with her weekly, and
did “step work” with her. She had done five drug tests after her services were
terminated; all were negative.
       Mother had also done “a lot of AA” because it fit into her schedule when she was
in Stepping Stones. She did Stepping Stones from the end of November 2011 until
June 9, 2012, when she stopped attending because it conflicted with her school schedule.5



5       Mother attended a four-days-a-week summer session from June 12 through
July 19. Shortly before the date of this hearing, she began the fall session, in which she
was enrolled in five classes and attended five days a week. Her goal in school was
“something to do with law”; more specifically, she hoped to find a way to use her prior
experience in alcohol and drug treatment in conjunction with legal training, possibly to
get a job as a case manager or substance abuse counselor. The summer courses she took
included “Geography of California, Magic, Witchcraft, and Religion, and Health and
Wellness.”

                                               6
She had prepared a “safety plan” before quitting Stepping Stones and had followed
through with it.
       To deal with her health problems after she got sober, she began seeing her
physician at least once a month. She also saw a cardiologist every two months, and the
heart condition she had developed the previous year was now much improved. Through
her physician, she requested and obtained a “tele-site appointment” with a psychologist.
       Mother had no current untreated mental health issues. She sometimes felt “mad”
or “sad” due to her situation, but had no diagnosis. Her physician prescribed
“Lamic[t]al” three months ago to deal with these emotions. She took no other medication
except for her blood pressure. She was not seeing anyone for individual therapy because
her school schedule did not leave time, but she was looking into trying to see someone at
the women’s shelter where she had lived until May 1, 2012. She was presently seeing a
counselor there on a weekly basis, talking about adjustment problems and relationships.
       When mother left the shelter, she moved into an apartment. She had a month-to-
month lease, but believed she could stay “as long [as] the building is standing” because
she had known the manager and the manager’s children for a long time and the manager
wanted to help her reestablish her credit and rental history.
       Mother had stopped seeing Robert L. She last visited him in April 2012 and told
him they could not continue their relationship. When his son died in June, she spoke to
him and gave him support about that. But she had asked him to “parole to some other
county which is down south somewhere” when he finished serving his term.
       After her services were terminated, mother attended three different parenting
classes, one an eight-week program and the others either six or eight weeks.


       Asked why she had not gone back to Stepping Stones after completing the summer
session, mother said that she would have had to quit again when the fall session began on
August 20 because the only available group would have conflicted with her school
schedule.

                                              7
       If her services were reinstated, she would be willing to do anything prescribed.
She had looked into what was available at her campus (where she now went four days a
week), and she knew the options offered by Butte County.
       Being able to discuss with the minors their feelings about what had happened
would be really important, because they had not had that opportunity: her requests for
therapeutic sessions with them had been denied, despite their counselor’s support for the
idea.6 Although the juvenile court had granted the department discretion to provide
therapeutic counseling, it had not done so; she would like a court order mandating the
department to do so, even if her services were not reinstated.
       Visitation had been reduced as of April or May 2012 from weekly to monthly.
She had received additional brief visits on mother’s day and on the day P. D. graduated
from sixth grade. She understood the protocol about what could and could not be said
during visits, but felt frustrated that she could not tell the minors she was doing well; she
also wondered how they could believe that she was doing well when she was allowed to
see them only once a month. Nevertheless, the visits were “always great”; she had “a
really good bond” with the minors and always brought things for them to do. She would
like visits to be increased to at least once a week, if possible by participating in the
minors’ activities (such as attending P. D.’s football games).
       Mother did not get to talk much with the minors about the foster parents, but she
felt that they enjoyed spending time with the foster father because they had not had an
adult male presence in their lives for 10 years. She would “absolutely” support the




6      The minors’ counselor thought D. D. had trouble expressing his feelings, but
mother believed that the counselor felt therapeutic sessions would benefit him anyway.
Mother did not think it would give the minors false hope about going home if such
sessions were instituted but her services were not reinstated.

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minors’ relationship with the foster parents, even if the minors were returned to her
custody.
       Amanda McNulty, D. D.’s court appointed special advocate, testified that
therapeutic counseling would not be in D. D’s best interest at this time. McNulty thought
he was not emotionally ready to express his feelings toward mother and she might not be
receptive to what he would say. He had told McNulty that he wanted to see mother more,
but did not want to go home to her. Having supervised a visit and seen the dynamics
between mother and D. D., McNulty doubted that he would have the strength to confront
her.
       Rita Puelicher, P. D.’s court appointed special advocate, testified that therapeutic
counseling would not be in P. D.’s best interest at this time. Like D. D., he did not
express emotions well. He wanted to stay with his foster parents. He enjoyed mother’s
visits, but did not want them to be increased.
       After hearing argument, the juvenile court denied mother’s section 388 petition.
The court found mother had not provided sufficient evidence that her circumstances had
changed or that it would be in the minors’ best interest to give her more services.
Specifically, the court was concerned that mother had chosen to discontinue Stepping
Stones and counseling so that she could focus on school, “in light of her history and not
participating in services for an entire year and when these boys were first detained.” The
court was also concerned that mother had continued to have contact with Robert L. even
beyond April 2012, when she claimed she had ended their relationship: her knowledge
that his son had died and he was having emotional difficulty with that showed that she
had not been able to cut him completely out of her life, “which should have been done




                                             9
probably in February when the Court terminated services due to [the] choices she was
making.”7
                                       DISCUSSION
       Mother contends the juvenile court abused its discretion by denying her
section 388 petition. We disagree.
       A petition to modify a juvenile court order under section 388 must factually allege
the existence of new evidence or changed circumstances; it must also allege that the
proposed modification will serve the minors’ best interests. (In re Daijah T. (2000)
83 Cal.App.4th 666, 672.) The petitioner has the burden of proof on both points by a
preponderance of the evidence. (Cal. Rules of Court, rule 5.570(h)(1)(D).) In assessing
the petition, the court may consider the entire history of the case. (In re Justice P. (2004)
123 Cal.App.4th 181, 188-189.)
       To decide whether a parent has met her burden under section 388, the juvenile
court must consider such factors as the seriousness of the problem that led to the
dependency, and the reasons for the problem’s continuation; the degree to which the
problem may be and has been removed or ameliorated; and the strength of the relative
bonds between the dependent child and the child’s parents or caretakers. However, this
list is not exhaustive. (In re B.D. (2008) 159 Cal.App.4th 1218, 1229; In re Kimberly F.
(1997) 56 Cal.App.4th 519, 531-532.)
       When a parent brings a section 388 petition after a section 366.26 hearing has
been set, the best interests of the child are of paramount importance. (See In re Stephanie
M. (1994) 7 Cal.4th 295, 317.) Therefore, the juvenile court looks not to the parent’s




7      The court then granted mother’s request to give the department discretion to
increase visitation and to begin therapeutic counseling with the minors if their therapist
thought that would be in their best interest.

                                             10
interest in reunification but to the child’s need for permanence and stability. (In re
Marilyn H. (1993) 5 Cal.4th 295, 309.)
       We review a ruling denying a section 388 petition for abuse of discretion. (In re
S.R. (2009) 173 Cal.App.4th 864, 866.) We reverse only if the ruling exceeded the scope
of the juvenile court’s discretion, or if under all of the evidence, viewed most favorably
to the ruling, no reasonable judge could have made that ruling. (In re Jasmine D. (2000)
78 Cal.App.4th 1339, 1351.)
       Here, the juvenile court found mother had failed to show changed circumstances,
citing two facts: (1) the fact that she stopped participating in Stepping Stones and
engaging in counseling so that she could attend school, and (2) the fact that she failed to
break off all contact with Robert L. -- who physically abused her and fostered her
continued substance abuse -- immediately after his latest incarceration. Given mother’s
history of addiction and of failing to participate in services for a year after the minors
were removed from her custody, the court could reasonably conclude from this evidence
that mother was still minimizing the problems that led to the dependency and then
prevented her from recovering custody. So long as she did not put her recovery first and
act decisively to remove any obstacles (e.g., by promptly ending her self-destructive
relationship with Robert L.), the danger of yet another relapse was real. Furthermore,
although mother had participated in 12-step groups and counseling, done drug testing,
and acquired housing, she had not yet shown any evidence that she could avoid falling
into another relationship as unhealthy as the one she claimed to have just left. In light of
the entire history of the case (In re Justice P., supra, 123 Cal.App.4th at p. 189),
substantial evidence supported the juvenile court’s finding that mother’s circumstances,
though changing, had not changed sufficiently to satisfy section 388 (see In re Casey D.
(1999) 70 Cal.App.4th 38, 470).
       But even if mother showed changed circumstances, she did not show that it would
be in the minors’ best interest to reinstate her reunification services. A section 366.26

                                              11
hearing had been set (and, if not continued, would have been held immediately after the
section 388 hearing). The minors were adoptable and were happily placed with foster
parents who wanted to adopt them. The minors’ court appointed special advocates
testified that the minors wanted to stay in that home, not to return to mother’s care.
When a case has reached this stage, the minors’ interest in permanence and stability
outweighs a parent’s interest in reunifying. (In re Marilyn H., supra, 5 Cal.4th at p. 309.)
Reinstating mother’s services at best would delay the achievement of permanence and
stability for the minors, and at worst could create an emotionally damaging conflict of
loyalties for them. For this reason as well, the juvenile court’s ruling was a proper
exercise of discretion.
                                      DISPOSITION
       The order denying mother’s section 388 petition is affirmed.



                                                    ROBIE         , J.



We concur:



      HULL          , Acting P. J.



      MURRAY              , J.




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