Filed 8/27/14 In re J.F. CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


In re J.F. et al., Persons Coming Under the                          B254541
Juvenile Court Law.                                                  (Los Angeles County
                                                                     Super. Ct. No. CK68991)


LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

TIFFANY B.,

         Defendant and Appellant.



         APPEAL from orders of the Superior Court of Los Angeles County. Anthony
Trendacosta, Juvenile Court Referee. Affirmed.
         Roni Keller, under appointment by the Court of Appeal, for Defendant and
Appellant.
         John F. Krattli, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.


                                    ______________________________
       The juvenile court adjudged three-year old J.F. and two-year old Jeremiah B.
dependents of the court pursuant to Welfare and Institutions Code section 300,
subdivision (b) (failure to protect).1 Thereafter, the court terminated reunification
services as to J.F. and denied reunification services as to Jeremiah. Tiffany B. (Mother)
appeals from the court’s orders denying two section 388 petitions she filed seeking to
regain custody of the minors or, alternatively, to obtain reunification services so she
could reunify with them. Alfredo C. (father of J.F.) and X.B. (father of Jeremiah) are not
parties to this appeal.
       We conclude that, because Mother showed, at most, changing but not changed
circumstances and failed to show the proposed change of the juvenile court’s orders
would promote the best interests of the minors, the court did not abuse its discretion in
denying Mother’s section 388 petitions. We affirm the orders.
                                      BACKGROUND
A. The sustained petitions
       The Department of Children and Family Services (DCFS) filed the operative
second amended section 300 petition on behalf of J.F. on June 5, 2012. As sustained by
the juvenile court on August 8, 2012, the petition alleged Mother had a history of
substance abuse, was a current user of cocaine, Mother and Alfredo had a history of
domestic violence, and Mother and Alfredo recently had engaged in a domestic
altercation in which Alfredo assaulted Mother.
       On March 21, 2013, a section 300 petition was filed on behalf of Jeremiah,
alleging Mother had a history of substance abuse, was a current user of
methamphetamine and amphetamine, and had a positive toxicology screen for
methamphetamine and amphetamine on March 15, 2013. An amended petition was
sustained on May 10, 2013.2


       1   Undesignated statutory references are to the Welfare and Institutions Code.
       2 Although  the allegations of the section 300 petition filed on behalf of Jeremiah
are described in a report contained in the record, the section 300 petition itself is not
contained in the record.

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B. Events leading up to the juvenile court’s assertion of jurisdiction
       The events leading up to the juvenile court’s assertion of jurisdiction are as
follows.
       Mother lost her parental rights over her son M.B. in 2010 due to her inability to
resolve her substance abuse problems. Mother admitted to DCFS she was “‘easily
triggered’” to use drugs and had started six programs but completed only one. Mother
had a criminal record of convictions for prostitution, possession of cocaine, and domestic
violence against Alfredo.
       After J.F.’s birth in February 2011, Mother and her new husband Antonio F.
agreed to a voluntary family maintenance plan and in April 2011 started receiving family
preservation services. Shortly thereafter, Mother and Antonio denied to DCFS
allegations that they had engaged in a physical altercation. Mother tested positive for
cocaine in July 2011. J.F. was ordered released to Mother’s custody and permitted to
reside with her at an inpatient substance abuse treatment program.
       After Mother completed the inpatient treatment program in December 2011, she
moved to a sober living facility. Mother tested positive on a drug test. Consequently, the
juvenile court detained J.F. from Mother’s care on December 29, 2011.
       On March 5, 2012, Mother was terminated from the sober living facility program
because she had twice tested positive for cocaine. Mother missed drug tests in March
2012 and April 2012 and later told DCFS she had missed them because she knew she
would test positive. On April 4, 2012, Mother told DCFS she had relapsed, used cocaine,
was pregnant, and believed Alfredo was the father of her unborn child. She reported
Alfredo had “‘busted [her] in the face’” when they were “‘high’” in March 2012. On
another occasion Alfredo had slammed a door on her head during a fight while they were
“loaded.”
       Mother entered an inpatient substance abuse treatment program on April 26, 2012.
J.F.’s foster family reported in June 2012 that J.F. was “delighted” to see Mother when
she visited him.



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        At the jurisdictional and dispositional hearing as to J.F. on August 8, 2012, the
juvenile court sustained the allegations of the second amended petition, removed J.F.
from Mother’s custody, and ordered Mother to participate in drug counseling, random
drug testing, and individual counseling.
        In August 2012, Mother was reported to have tested negative for drugs since she
entered the inpatient substance abuse treatment program in April 2012.
        Jeremiah was born with spina bifida in November 2012 and had to undergo
several surgeries. Mother visited him daily while he was hospitalized. Mother agreed to
a voluntary family maintenance plan for Jeremiah, was trained in spina bifida care, and
moved into an apartment with Jeremiah in January 2013. Mother had visits from J.F. at
her home. “[U]nknown” persons visited Mother and smoked an “unknown substance” in
her apartment, creating an unhealthful environment for J.F. and Jeremiah. Mother
acknowledged she was not fully prepared to care for two small boys and found it
“frustrating and exhausting.” Mother, who had been advised not to leave Jeremiah in the
care of anyone who had not been trained in spina bifida care, left him with his maternal
grandmother, who was not trained.
        Mother tested positive for methamphetamine and amphetamine in March 2013.
Jeremiah was removed from her care and placed in J.F.’s foster home on March 21, 2013.
Later, Mother told DCFS that she had lost weight and was going to continue to lose
weight because she was going to stay “‘high on drugs all the time,’” and she was
“‘fucking mad that my fucking kids were taken and they’re not getting good fucking
care. . . .’”
        Meanwhile, J.F. was thriving in his placement in foster care. DCFS reported that
both J.F. and Jeremiah were bonded to the foster family, who were “a wonderfully [sic]
and loving family unit,” had a son the same age as J.F. who was also bonded to the
minors, had an approved home study, and were committed to adopting both J.F. and
Jeremiah as a sibling group. J.F. “loves his baby brother and is very attached to him” and
attended Mommy and Me classes with his foster mother. Jeremiah’s health improved



                                              4
under the foster family’s care. He attended physical therapy and was likely to walk in
three or four years with ancillary support.
       At a jurisdictional and dispositional hearing as to Jeremiah on May 10, 2013, the
juvenile court sustained the allegations of the section 300 petition and ordered him to
remain detained in foster care. The court continued Jeremiah’s matter for disposition,
noting Mother was not in full compliance with the case plan and had not made
substantive progress. At the same hearing, the court terminated reunification services for
J.F., noting Mother was entering her ninth substance abuse program, there was not a
reasonable likelihood J.F. would be returned to her care, Mother was not in full
compliance with the case plan, and Mother had failed to make substantive progress in
court-ordered treatment. The court found by clear and convincing evidence that return of
J.F. to Mother would create a substantial risk of detriment to J.F.
       At the continued dispositional hearing for Jeremiah on July 24, 2013, the juvenile
court denied Mother family reunification services, finding it had terminated reunification
services for “a sibling” and Mother had not made a reasonable effort to treat the problems
that led to the “removal of the sibling.” The court ordered no reunification services for
Mother.
C. Mother’s section 388 petitions
       After a visit in early April 2013, Mother stopped visiting the minors. In October
2013, Mother, who was six months pregnant, requested visits with J.F. and Jeremiah.
       On December 18, 2013, Mother filed a section 388 petition, requesting that the
juvenile court take off calendar the section 366.26 hearing for permanent placement for
the minors and order the minors placed in the home of Mother or, in the alternative,
provide Mother with six months of family reunification services and unmonitored
visitation. The petition stated Mother now had the full support of her family and in
October 2013 had enrolled in a substance abuse program, started individual counseling,
and started psychiatric treatment. The petition asserted that the requested change in the
court’s order would be in the best interests of the minors because it would give them the



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opportunity to bond with Mother and other relatives and ensure visitation with their elder
brother, M.B.
       On January 27, 2014, Mother filed another section 388 petition, requesting the
juvenile court’s orders for “[t]ermination of family reunification for siblings as well as
termination of parental rights on or about the date of 1/29/14, to be reversed.”3 The
petition stated Mother had been reunited and was living with her biological father “after
17 years,” had sibling support, was enrolled in a substance abuse program, counseling,
and a mental health treatment program, and had “made progress on setting up visitation
with foster parents.” The petition asserted the change in order would be in the best
interests of the minors to be joined with “biological siblings.”
D. The reports and hearing on the section 388 petitions
       On January 29, 2014, DCFS reported Mother was pregnant with her fourth child.
M.B.’s adoptive mother had not allowed Mother to communicate with, see, or speak to
M.B. except when the adoptive mother brought him to court. DCFS opined Mother and
J.F. would not have an opportunity to bond with M.B. if J.F. were returned to Mother. In
addition, Mother did not have a positive relationship with maternal grandfather, who told
her she would not be able to stay with him unless she remained clean and sober. Mother
had not considered maternal grandfather as a possible placement for the minors when
they were detained. DCFS opined that there was no reason to believe Mother would
remain sober after her fourth child was born because she had a long history of relapse and
three children had been removed from her care after she left treatment programs. Mother
had missed or was late to visits with the minors in December 2013 and January 2014.




       3 To the extent Mother’s January 27, 2014 section 388 petition requested a
modification of the termination of parental rights order of January 29, 2014, it was
premature as no such order had been issued at the time her petition was filed. (Pacific
Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170–171.) In any
event, other than speculating that with continued treatment she might be able to remain in
the minors’ lives under the beneficial relationship exception to termination of parental
rights, Mother does not address the issue of termination of parental rights in her briefs.

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       At the hearing on the section 388 petitions, Mother’s counsel argued it would be in
the best interests of the minors to grant the petition because Mother was enrolled in a
drug treatment program, drug tested, participated in counseling, and lived with maternal
grandfather. DCFS and the minors’ counsel argued the modification would not in the
best interests of the minors because Mother’s circumstances had not changed and she was
exhibiting her historic pattern of starting a drug program, then relapsing.
       The juvenile court found Mother’s circumstances appeared to be changing but had
not changed. Although Mother was complying with her programs, it was “not the first
time that we’ve been down this road . . . we’re still in the early stages.” There was a
seven-year history of relapses despite treatment and Mother was only three months into
her programs. The court determined that balancing the minors’ right to permanency
against the facts presented by mother, the minors should not be returned to Mother.
       The juvenile court denied Mother’s December 18, 2013 section 388 petition. The
court denied Mother’s January 29, 2014 section 388 petition on the basis that it was
“Moot — this is similar to the 388 heard earlier today and denied by the court per reasons
set forth on the record 1/29/14.” The court terminated Mother’s parental rights over J.F.
and continued Jeremiah’s section 366.26 hearing to March 26, 2014. Mother appealed
from the court’s denial of her section 388 petitions.
                                      DISCUSSION
The juvenile court did not abuse its discretion in denying Mother’s section 388
petitions
       1. Section 388 petitions
       Mother contends the juvenile court abused its discretion in denying her section
388 petitions because she was committed to treating her substance abuse problem, had
left an abusive relationship, was attentive to the minors, and was a link to the minors’
brother, M.B. Alternatively, Mother urges it “was highly possible” that with six months
of continued treatment, including psychiatric care, Mother could remain in the minors’
lives under the beneficial relationship exception to termination of parental rights. We



                                             7
disagree because Mother failed to show a change of circumstances or that it was in the
best interests of the minors to make the requested changes in the juvenile court’s order.
       Section 388, subdivision (a)(1) states in pertinent part: “Any parent or other
person having an interest in a child who is a dependent child of the juvenile court . . .
may, upon grounds of change of circumstance or new evidence, petition the court in the
same action in which the child was found to be a dependent child of the juvenile court . . .
for a hearing to change, modify, or set aside any order of court previously made or to
terminate the jurisdiction of the court. The petition shall . . . set forth in concise language
any change of circumstance or new evidence that is alleged to require the change of order
or termination of jurisdiction.”
       “At a hearing on a motion for change of placement, the burden of proof is on the
moving party to show by a preponderance of the evidence that there is new evidence or
that there are changed circumstances that make a change of placement in the best
interests of the child.” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) “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.] 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
it, that is, the best interests of the child.” (Ibid.) “This determination [is] committed to
the sound discretion of the juvenile court, and the trial court’s ruling should not be
disturbed on appeal unless an abuse of discretion is clearly established.” (Id. at p. 318.)
       “‘“[I]ssues of fact and credibility are questions for the trier of fact.”’” (In re
Precious D. (2010) 189 Cal.App.4th 1251, 1259.)
       2. Mother has failed to show changed circumstances
       We conclude the juvenile court did not abuse its discretion in finding Mother’s
circumstances were, at best, changing, rather than changed. Mother had a long history of
periods of sobriety, especially during her pregnancies, followed by relapse. In particular,

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Mother failed to reunify with M.B. after he was removed from her care due to her
substance abuse. Mother relapsed seven months after J.F. was born, prompting his
removal from her care. Four months after Jeremiah was born in November 2012, Mother
again relapsed, and Jeremiah was removed from her care. At the time of the section 388
hearing, she was pregnant with her fourth child and was currently in her ninth drug
treatment program. As the juvenile court noted, Mother was only in the early months of
her latest rehabilitation effort.
       Further, although Mother claimed to have left an abusive relationship, she also had
a history of returning to abusive relationships.
       While Mother claimed she had reestablished a relationship with maternal
grandfather for the first time in 17 years and now had family support, this change does
not appear to have been of such a “significant nature that it requires a setting aside or
modification of the challenged prior order.” (Ansley v. Superior Court (1986) 185
Cal.App.3d 477, 485.) No details were given about Mother’s relationship with maternal
grandfather or whether Mother’s living situation was permanent. In addition, Mother
reported her relationship with maternal grandfather had never been positive, she had not
considered him as a possible placement for the minors when they were detained, and
maternal grandfather told her she would not be able to stay in his home unless she
remained clean and sober. At best, circumstances might have been changing but do not
appear to have changed.
       The juvenile court did not abuse its discretion in determining Mother had failed to
establish changed circumstances.
       3. Mother has failed to show a change in the juvenile court’s order would be in
the best interests of the minors
       Although Mother claims she was attentive to the minors and was a link to the
minors’ brother, M.B., we conclude the juvenile court did not abuse its discretion in
determining Mother failed to establish that a change in its order would be in the best
interests of the minors.



                                              9
       “[U]p until the time the section 366.26 hearing is set, the parent’s interest in
reunification is given precedence over the child’s need for stability and permanency.”
(In re Marilyn H. (1993) 5 Cal.4th 295, 310.) After termination of reunification services,
it is presumed that continued care is in the best interests of the child. (Id. at p. 309.)
       We conclude the juvenile court did not abuse its discretion in determining it would
not be in the best interests of the minors to return them to Mother’s custody or give
Mother six more months of reunification services in the hope that she would be able to
meet the beneficial parental relationship exception to termination of parental rights. At
the time of the hearing on the section 388 petition, J.F. had been placed with his foster
family for two years, and Jeremiah had been placed with them for one year. The foster
family, their biological son, and the minors were closely bonded to each other. The
minors were thriving under the care of their foster family, Jeremiah’s health had
improved, and it was anticipated that Jeremiah would walk with assistance in three to
four years. The foster family had an approved home study and was committed to
adopting both minors.
       Although Mother points to one incident in June 2012 in which the foster family
reported J.F. had been delighted to see her, there were subsequent long periods during
which she failed to contact the minors. After asking to resume visits with the minors, she
was late or missed visits in December 2013 and January 2014. She has failed to show
that a strong bond exists between her and the minors or that she has assumed a parental
role to them subsequent to their placement in foster care. In addition, DCFS reported that
M.B.’s adopted mother was not cooperative in allowing visits between Mother and M.B.
Therefore, Mother’s argument that she would provide a link between the minors and
M.B. is unfounded.
       We conclude Mother has not shown how the minors’ best interests would be
served by depriving them of a permanent, stable home in exchange for an uncertain
future. (In re Stephanie M., supra, 7 Cal.4th at p. 319 [minor’s emotional instability,
post-traumatic stress, need for stability, limited contact with grandmother, and lack of



                                              10
bond with grandmother supported juvenile court’s denial of section 388 petition
requesting placement with grandmother].)
       We conclude the juvenile court did not abuse its discretion in denying Mother’s
section 388 petitions.
                                     DISPOSITION
       The juvenile court’s orders are affirmed.
       NOT TO BE PUBLISHED.


                                          MILLER, J.*
We concur:


       ROTHSCHILD, P. J.


       JOHNSON, J.




        * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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