Filed 5/6/15 In re M.O. CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


In re M.O., a Person Coming Under the                                B258876
Juvenile Court Law.                                                  (Los Angeles County
                                                                     Super. Ct. No. CK 91951)


LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

GUSTAVO R.,

         Defendant and Appellant.



         APPEAL from orders of the Superior Court of Los Angeles County, Anthony
Trendacosta, Judge. Affirmed.
         Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.


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       Gustavo R. (father) appeals from the juvenile court’s order denying his petition
under Welfare and Institutions Code section 3881 and the court’s order terminating his
parental rights. We affirm.
                              FACTS AND PROCEDURE
       In 2013, we filed an unpublished opinion in this matter affirming the juvenile
court’s orders on a supplemental petition. (In re M.O. (July 23, 2013, B245936).) We
quote pertinent facts from that opinion as follows:
       “Mayra O. (mother) gave birth to M.O. in 2012.2 The family came to the attention
of the Los Angeles County Department of Children and Family Services (DCFS) in
February 2012 when mother and newborn M.O. both tested positive for marijuana and
amphetamines.
“1. Original Petition
       “DCFS filed a petition alleging in pertinent part: (1) mother’s substance abuse
endangered M.O.’s physical health and rendered mother incapable of caring for the
children (b-2 count); and (2) father had a history of drug use and currently abused
marijuana, rendering him incapable of providing care for M.O. (b-3 count).
       “Mother admitted to using marijuana, which she had bought on the street, two
days before M.O.’s birth. She thought perhaps it had been laced with amphetamines and
that was why she tested positive for amphetamines. Mother said she used marijuana and
‘crystal,’ or amphetamines, approximately one to two times per week. She said she had
quit both when she found out she was pregnant but resumed using marijuana
approximately seven months into her pregnancy because she could not hold her food
down. She had medication for nausea and vomiting but ran out of it, and she could not
obtain another prescription. She and father read in a book that marijuana could be used


1      Further undesignated statutory references are to the Welfare and Institutions Code.
2       “Mother also has a daughter, J.G. (born in 2004), who is M.O.’s half sibling. J.G.
is not a subject of this appeal.”



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during pregnancy to help with nausea and vomiting and would not harm the baby. She
used amphetamines once while she was pregnant with M.O., a few days before giving
birth. Father reported he used marijuana one to two times per week and has a medical
marijuana card for ‘stress.’ Father knew mother used marijuana and did so during her
pregnancy because they had read it helped with nausea and vomiting. But he did not
know she used amphetamines. Father agreed to stop using marijuana and complete a
substance abuse program so that he could retain custody of M.O. Both mother and father
agreed to participate in the drug court program. However, a few weeks after the social
worker met with the parents to explain the drug court program, father had already missed
five group meetings and had not called in to schedule drug testing.
       “Mother and father signed a waiver of rights, pleaded no contest, and stipulated
there was a factual basis to sustain the petition. . . . [¶] The court sustained the b-2 and
b-3 counts of the petition and placed M.O. in father’s home under the supervision of
DCFS. Mother was to reside with the maternal grandmother and not in father’s home.
The court ordered father to participate in a drug and alcohol program with testing every
other week, parenting classes, and individual counseling. The case plan for father
consisted of these services; the plan was signed by father and submitted with his waiver
of rights.
“2. Supplemental Petition
       “Several months after the court adjudicated the original petition, father contacted
the social worker asking for help. He had been laid off from work and could not afford
his rent and was homeless, though he had been staying some days with his mother
(paternal grandmother). Father had not shown up for his drug testing the last nine times
and had not participated in any of the court-ordered programs. He said he could not
comply with the court orders because of his work schedule, and when he lost his job, he
could not comply because he did not have any way to pay for services. Father knew that
because he was homeless and had not complied with the court-ordered programs, M.O.
would be detained from him. He wanted DCFS to place M.O. in paternal grandmother’s
home. DCFS said it could not approve paternal grandmother’s home because one of the

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bedrooms was a converted garage, so M.O. was placed with maternal grandparents with
the agreement of both parents.
       “DCFS filed a supplemental petition under section 387 alleging the previous
disposition had not been effective in the protection of M.O. because father (1) was unable
and unwilling to provide ongoing care and supervision for M.O. and (2) father failed to
participate in court-ordered individual counseling, parenting classes, drug and alcohol
counseling, and random drug testing.
       “Father told DCFS he agreed M.O. should be detained and placed with maternal
grandparents ‘because it [was] the best thing’ for M.O. at that time. He said he needed
time to get ‘his stuff together . . . to get a job, start the programs and get a place to live.’
DCFS noted it had offered him various services to help comply with the court orders, but
still he had not shown any efforts to comply with them. For instance, after father
reported he was homeless and had lost his job, DCFS gave him a referral to a specific
agency, First 5 LA (First 5), to start services. A First 5 liaison attempted to meet with
father three times to assess him for services; he never appeared for the appointments.
The social worker finally advised father to contact the liaison himself to schedule an
appointment. Father never did that. Maternal grandmother felt father and mother, who
had similar issues, were ‘not ready to change.’ She stated to the social worker: ‘It
doesn’t matter what we do . . . . I don’t know what is going to happen for them to
change. You give them bus passes, but they don’t do anything.’
       “Both mother and father eventually started living in a camper parked on a street
next to maternal grandmother’s home. The camper was not a safe residence for M.O.
The parents visited M.O. daily at maternal grandparents’ home, and maternal
grandparents monitored the visits.
       “Father testified at the hearing on the supplemental petition. He wanted M.O. to
be returned to his custody. He planned to care for M.O. by moving in with paternal
grandmother. He would be getting welfare assistance and was looking for a job. Things
had gotten better since he had asked the social worker for help after losing his job. He
had taken some parenting classes and participated in a drug program with testing for two

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to three months, ‘on and off,’ before the disposition on the original petition. But he had
not drug tested since the disposition on the original petition. He had also not done his
parenting classes since the disposition, completed the drug and alcohol program, or done
individual counseling. He did not show up for his appointments with the First 5 liaison
because he did not know how to get there on the bus, but now he knew. Since then, he
had not started any classes because he had been trying to find a job.
       “The court struck the count of the supplemental petition alleging father was unable
and unwilling to provide ongoing care for M.O., but sustained the allegation that father
failed to participate in court-ordered individual counseling, parenting classes, drug and
alcohol counseling, and random drug testing. The court noted, among other things, that
father’s explanation for not attending a program or testing (the cost) was not credible
because the case was a drug court case, and father was referred to Behavioral Health
Services, which meant the services would have been free of charge. The court found the
previous disposition was ineffective in the protection of M.O. and terminated the home-
of-parent order. Further, pursuant to section 361, subdivision (c), it found continuance in
father’s home was contrary to M.O.’s welfare, and a substantial danger existed to M.O.’s
physical health, safety, and emotional well-being. It ordered family reunification services
and unmonitored visits for father, except that DCFS had the discretion to start monitoring
father’s visits if he did not comply with the case plan within a reasonable period of time.
Father filed a timely notice of appeal.” (In re M.O., supra, B245936.) We affirmed the
court’s orders terminating the home-of-parent order and removing M.O. from father’s
care. (Ibid.)
3. Review Hearings
       During the first six-month review period, M.O. had remained in the maternal
grandparents’ home, where his half sister, J.G., was also placed. Father had enrolled in a
six-month residential treatment program in January 2013 and had completed two months.
As of the review report in March 2013, father had tested negative on 10 random drug
tests. Father had also taken parenting classes and had psychotherapy/counseling through
the treatment program. Father’s counselor described him as “an exceptional client” who

                                             5
was “working diligently towards his recovery” and had “shown great willingness and
motivation.” Father picked up M.O. every Sunday and took him to paternal
grandparents’ home to visit. M.O. was always happy to see father. Maternal
grandmother felt father cared for M.O. well during their visits. Father wanted M.O.
returned to him and said he was committed to the six-month treatment program. Mother
was pregnant again with father’s child, and father expressed his wish that the new baby
be released to him when he or she was born. The social worker noted that the “current
plan” was to release M.O. to father once he had completed his six-month program.
          At the scheduled six-month review hearing in March 2013, the court continued the
matter to May 2013 for a contested hearing. By April 2013, father had completed three
months of the residential treatment program. Father was informed that he needed to
complete three more months of the outpatient rehabilitation program. He was also
offered group counseling, which was not part of the treatment program. Father refused
and said he did not need to continue in the program or in counseling. The social worker’s
report recommended that the court order father to complete at least three more months of
treatment. She noted she had explained to father on at least two occasions that, “due to
his extensive drug abuse history,” three months was insufficient to prove he had
rehabilitated. Moreover, during her visit with father in March 2013 at the residential
treatment program, she, father, and his counselor had discussed father’s need to complete
the six-month program, and he had agreed to complete six months. But father now felt he
had done all he needed to do to get M.O. back. Overall, DCFS was recommending that
father continue to receive family reunification services. The court terminated
reunification services for mother, who had not complied with the case plan, but not
father.
          In June 2013, DCFS reported father was still insistent that he did not need to
complete any other rehabilitation program. He tested negative for drugs and alcohol on
May 1, 2013. On the same date, DCFS referred father for random testing, and explained
the process to him (i.e., explained that he should call a designated number Sunday
through Thursday nights and report to test the following day if the first letter of his last

                                                6
name was called to test). She further explained that a missed test is considered a positive
test, and father indicated he understood. He then missed two tests in May and did not call
DCFS to explain why he missed the tests. At a hearing in June 2013, the court ordered
father to continue testing and participating in Alcoholics Anonymous/Narcotics
Anonymous with a sponsor.
       The August 2013 review report indicated father was residing with his mother and
sisters, and the home was very clean and well organized. Father had attended 10
Narcotics Anonymous meetings since June. He still had not tested since May 1, however
(missing two tests in June and two tests in July), and had not enrolled in any further drug
rehabilitation program or individual counseling. Father had been having unmonitored
visits with M.O., but because father had not been testing and participating in a program,
DCFS was going to require monitored visits. It recommended that the court terminate
reunification services for father. At the August hearing, the court found father was not in
compliance with the case plan but ordered continued reunification services and set the
matter for a 12-month review hearing (§ 366.21, subd. (f).)
       The next review report in January 2014 indicated M.O. remained in maternal
grandparents’ home with J.G. and his newborn sibling, S.O., who was born in September
2013 to mother and father.3 Maternal grandparents expressed a willingness to adopt
M.O. and his siblings if they did not reunify with their parents. Maternal grandmother
had quit her job to care for the children. DCFS submitted a new referral for father to
resume participation in a drug treatment program through First 5. Father attended a
reassessment appointment on November 27, 2013, and scheduled a second reassessment
appointment for December 2. He did not show up for this appointment. The First 5
employee with whom father met left a message with father to reschedule, and as of the

3     DCFS detained S.O. because she tested positive for amphetamines at birth.
Mother stated father did not know she had used amphetamines and was angry when he
discovered it. In connection with the detention proceedings for S.O., she and father
denied that father used amphetamines but reported he had a history of marijuana use.



                                             7
review report in January 2014, father had not called to reschedule. Father had been drug
testing inconsistently. He missed one test in August, tested negative on the second
August test, missed one test in September, tested negative on the second September test,
and missed both tests in October. He had been visiting with M.O. consistently, though
not as often as when visits first started. Paternal aunt would pick up M.O. and take him
to paternal grandmother’s house, where father was living. Maternal grandmother felt
father and the paternal relatives cared well for M.O. during visits. At the January 2014
hearing, the court found father was not complying with the case plan, terminated
reunification services for him, and set the matter for a permanency planning hearing
(§ 366.26).
4. Section 388 Petition
       At the scheduled permanency planning hearing in May 2014, the court continued
the matter to August 4, 2014. On August 1, 2014, father filed a petition under section
388 to change the order terminating his reunification services. The petition asserted
father had enrolled in a 12-to-18 month, in-patient drug treatment program on May 8,
2014, where he was participating in parenting classes, relapse prevention seminars,
individual counseling, and drug testing. He was in phase 2A of the four-phase program.
His counselor said that, “[s]o far, he ha[d] a good attitude towards his treatment and
participate[d] in all structure,” and he was “learning about himself and his co-dependent
behaviors.” He had participated in 12 parenting classes, 12 art therapy classes, 11 yoga
sessions, three relapse prevention seminars, and 11 “seeking safety classes.” He had
tested randomly four times, all with negative results. The petition requested that the court
take the permanency planning hearing off calendar and give him six more months of
reunification services and unmonitored visits. Father argued these changes “would be
better for” M.O. because he had spent the first eight months of his life with father and
had bonded with him. M.O.’s counsel and DCFS both opposed the petition.
       The court denied the petition, noting that, at two years into the case, “there’s no
more reunification services to be had.” It found the evidence did not support father’s



                                              8
assertion of changed circumstances, and moreover, it was not in M.O.’s best interests to
grant the petition.
5. Termination of Parental Rights
       In September 2014, the court terminated mother’s and father’s parental rights. It
found M.O. adoptable by clear and convincing evidence. The court designated maternal
grandparents as the prospective adoptive parents. Father timely appealed from the order
terminating parental rights and the order denying the section 388 petition.
                                       DISCUSSION 
       Father contends the court erred in denying his section 388 petition to reinstate
reunification services, and as a result, we should vacate the subsequent order terminating
his parental rights. We disagree.
       Section 388 permits a parent of a dependent child to petition the court “to change,
modify, or set aside any order of court previously made” based on a “change of
circumstance or new evidence.” (§ 388, subd. (a)(1).) “A ruling on a section 388 petition
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.
[Citations.]’ [Citation.] Thus, we may not reverse unless the juvenile court exceeded the
bounds of reason, and we have no authority to substitute our decision for that of the lower
court where two or more inferences can reasonably be deduced from the facts.” (In re
D.B. (2013) 217 Cal.App.4th 1080, 1088-1089.)
       The moving party has the burden of proving, by a preponderance of the evidence,
(1) changed circumstances or new evidence and (2) the change in the court order would
be in the best interests of the dependent child. (§ 388, subds. (a)(1), (d); In re D.B.,
supra, 217 Cal.App.4th at p. 1089.) The moving party must show a substantial,
significant, and genuine change in circumstances. (In re Kimberly F. (1997) 56
Cal.App.4th 519, 529; In re Heraclio A. (1996) 42 Cal.App.4th 569, 577; Ansley v.
Superior Court (1986) 185 Cal.App.3d 477, 485.) Overall, the court considers “the
seriousness of the reason for the dependency and the reason the problem was not
overcome; the relative strength of the parent-child and child-caretaker bonds and the

                                              9
length of time the child has been in the system; and the nature of the change in
circumstances, the ease by which the change could be achieved, and the reason the
change was not made sooner.” (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446-447.)
       The reason for dependency here—illegal drug use—was relatively serious. (See
In re Kimberly F., supra, 56 Cal.App.4th at p. 522 [“[T]he reason for the dependency
[(an unsanitary home)] was not as serious as other, more typical reasons for dependency
jurisdiction, such as sexual abuse, physical abuse or illegal drug use . . . .”].) Moreover,
father’s own choices were the reason he did not overcome this problem. During the
period of reunification services, father’s participation in services fluctuated, and he was
mostly noncompliant. After he consented to jurisdiction in April 2012, he did not comply
with the case plan; he did not drug test and he did not participate in a drug treatment
program. He failed to attend his appointments with the First 5 liaison. After the court
sustained the supplemental petition and removed M.O. from his home in November 2012,
he went through a period of compliance with the case plan. He completed three months
of a six-month treatment program and participated in parenting classes and counseling.
But after those three months, he refused to finish the program and engage in more
counseling. He also began missing drug tests, even though the social worker explained to
him that a missed test was equivalent to a positive test. Thus, in August 2013, the court
found he was not complying with the case plan. Still, the court refrained from
terminating reunification services. By the time of the review hearing in January 2014, he
was not in compliance still. He had not re-engaged in a treatment program, again missed
an appointment with First 5, and had missed four of six drug tests. The court justifiably
terminated reunification services at that point and set the matter for a permanency
planning hearing.
       Further, the factors relating to the change—the nature of the change, the ease with
which father could have achieved the change, and the reason he did not make the change
sooner—supported the court’s denial of the petition. Five months after the court
terminated reunification services, father enrolled in a drug treatment program, which
included the other components of his previous case plan (parenting classes, individual

                                             10
counseling, and drug testing). He had been in the program for three months when he
filed the section 388 petition. While this was a superficial change from the previous
period of noncompliance with the case plan, we cannot say it was a significant or
substantial change in the overall scheme of the case. This circumstance had occurred
before, insofar as father had previously completed three months in a program, only to
abandon the program and fail to drug test. In discussing the relative seriousness of the
reasons for dependency, the court in Kimberly F. noted the difficulty of finding genuinely
changed circumstances in a case like this. The court explained: “[W]e doubt that a
parent who sexually abused his or her child could ever show a sufficient change of
circumstances to warrant granting a section 388 motion. Likewise the parent who loses
custody of a child because of the consumption of illegal drugs and whose compliance
with a reunification plan is incomplete during the reunification period. It is the nature of
addiction that one must be ‘clean’ for a much longer period than 120 days to show real
reform.” (In re Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 9.)
       Additionally, father did not provide any good reason why he could not have re-
enrolled in a treatment program sooner, i.e., before the court terminated reunification
services in January 2014, or even at some point between January and May 2014.
Similarly, he did not describe any difficulties that might have barred his way, and it
therefore seems he could have made the change with relative ease, especially because he
had referrals from DCFS and failed to take advantage of that.
       Lastly, if we look at the factors going to the best interests of the child—the relative
strength of the parent-child and child-caretaker bonds and the length of time the child has
been in the system—these factors also supported the denial of the petition. When father
filed the petition in August 2014, M.O. had been in the dependency system for the
entirety of his life, approximately two years six months. Father argues he and M.O. were
bonded, especially because he cared for M.O. from the time he was born in February
2012 to November 2012, when M.O. was placed with maternal grandparents. But by the
time of the section 388 petition in August 2014, M.O. had been living with maternal
grandparents consistently for approximately one year nine months, well over half his life.

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His siblings also lived with the maternal grandparents. Maternal grandparents wanted to
adopt all three children, and maternal grandmother had quit her job to be their caretaker.
The court had terminated father’s reunification services long before he filed the petition.
“After reunification services have been terminated, the parents’ interest in the care,
custody and companionship of the child are no longer of overriding concern. [Citation.]
The focus then shifts to the child’s need for permanency and stability, and there is a
rebuttable presumption that continued foster care is in the child’s best interests.
[Citations.] . . . When, as here, the permanent plan is adoption, that presumption is even
more difficult to overcome.” (In re Aaliyah R., supra, 136 Cal.App.4th at pp. 448-449.)
The juvenile court could properly look to M.O.’s need for permanency and stability in
denying father’s section 388 petition to take the permanency planning hearing off
calendar and reinstate reunification services.
       The court did not abuse its discretion in denying the petition. Father’s argument to
vacate the order terminating parental rights is premised on his argument that the court
abused its discretion in denying the petition. Given that we disagree with that
foundational premise, we also decline to reverse the order terminating parental rights.
                                      DISPOSITION
       The orders are affirmed.




                                                  FLIER, J.
WE CONCUR:




       RUBIN, Acting P. J.




       GRIMES, J.



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