Filed 2/28/18 In re Levi L. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT


In re LEVI L., a Person Coming Under the Juvenile Court Law.

KERN COUNTY DEPARTMENT OF HUMAN SERVICES,

Plaintiff and Respondent,

v.

RUTH M.,

Defendant and Appellant.

F075997

(Super. Ct. No. JD133822-00)


OPINION

APPEAL from an order of the Superior Court of Kern County. Louie L. Vega, Judge.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant.
Mark L. Nations, County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent.
–ooOoo–
INTRODUCTION
On December 1, 2014, the Kern County Department of Human Services (department) filed a juvenile dependency petition pursuant to Welfare and Institutions Code section 300 for the failure of the parents of Levi L. to protect him from nonaccidental physical harm after he was admitted to the trauma unit of the local hospital and later transferred to Children’s Hospital in Madera. Levi was ordered detained. Amended petitions were filed alleging cruelty and severe physical abuse to Levi and seeking protective orders for his siblings, M.C. and Marcos L. The amended petition also alleged domestic violence as a contributing basis for the physical risk of harm to Levi. Protective custody warrants were issued by the juvenile court for M.C. and Marcos.
Ruth M. (mother) and M.L. (father) waived their right to a contested jurisdiction/disposition hearing conducted on February 11, 2015. The juvenile court found the allegations true as to all three children, ordered the children removed from the parents’ home, and granted reunification services for the parents. Mother continued to receive services after the six-month review hearing on August 11, 2015. The court terminated reunification services for mother, but continued them for father, at the 12-month review hearing on April 19, 2016.
At the 18-month review hearing on May 24, 2016, the juvenile court found return of Levi to father would create a substantial risk of detriment to the child’s safety and terminated father’s reunification services. The matter was set for a review hearing pursuant to section 366.3 and for termination of parental rights pursuant to section 366.26.
Prior to the hearing to terminate parental rights, mother filed a petition pursuant to section 388 to modify the juvenile court’s prior order terminating her reunification services. There was a joint hearing on June 13, 2017, on mother’s section 388 petition, to select a permanent plan for Levi, and to terminate parental rights. At the conclusion of the hearing, the juvenile court denied mother’s section 388 petition. The court found Levi adoptable and terminated the parents’ parental rights.
Mother appeals only those juvenile court orders pertaining to Levi, contending the juvenile court erred in denying her section 388 petition because it was in Levi’s best interests to reunite with her. We affirm the juvenile court’s orders.
FACTS AND PROCEEDINGS
Prior Proceedings
Mother had referrals to the agency for older children in 1996, 2007, July 2008, September 2008, and November 2008. The referral in 2007 was evaluated out, but mother’s young child died after he apparently swallowed a balloon and choked. The November 2008 referral led to the detention of three older children, including M.C. Two of these children were later placed into guardianship. Mother eventually reunified with M.C. and the dependency case was dismissed in August 2011.
Detention
On November 24, 2014, Levi was brought to the Kern Medical Center after allegedly falling off a bed. A computerized tomography (CT) scan revealed several old and new bleeds on his brain. The treating physician determined the story provided by mother and father was not consistent with the injuries shown on the CT scan, and he identified the manner of injury as suspicious. Because Levi was having seizures, he was intubated and transported to Children’s Hospital Central California; the hospital placed a hold on him.
On November 24, 2014, a Kern County deputy sheriff was dispatched to mother’s home to investigate the circumstances. The deputy spoke to mother, who said Levi had fallen off the bed. Mother stated she was standing in the doorway to the bedroom when she heard Levi hit the floor. M.C. grabbed Levi and handed him to mother. At the hospital, the treating physician told the deputy Levi was possibly having a seizure and fell off the bed, but a CT scan was needed before he could determine whether mother’s explanation was consistent with Levi’s injuries.
After Kern County deputy sheriffs investigated the case, the incident was reported to the department. Father had a history of violent tendencies and numerous felony arrests. Mother had an extensive child protective services history, and two children had been removed from her home in 2008 for failure to protect and were not returned to her custody. Father had made threats in the past to kill mother’s other children from her prior relationships.
Mother told the department’s social worker that the hospital staff informed her Levi had both new and old brain hemorrhages. She claimed one of the bleeds may have been due to him being a premature baby. Mother also said Levi had a prior four-inch fall to the floor. Hospital records indicated Levi had two cranial ultrasounds completed after he was born and there were no brain abnormalities. The radiologist found the CT scan revealing old and new hemorrhages to be suspicious for abuse.
A medical social worker at Children’s Hospital confirmed Levi had old and new subdural hemorrhages, and the attending physician believed the injuries were inconsistent with the parents’ accounts. Levi was diagnosed with altered mental status, nonaccidental traumatic injury to a child, seizure, and subdural hemorrhage. A bone survey completed the same day found no fractures but did not rule out child abuse. On November 26, 2014, an ophthalmology examination revealed Levi had bilateral retinal hemorrhaging. The attending physician documented Levi was very likely the victim of nonaccidental trauma.
Dr. Phillip Hyden performed a child advocacy consult because of concerns Levi had suffered nonaccidental trauma in that the CT scan revealed subdural hemorrhages, and an ophthalmologic exam revealed multiple, multilayered bilateral retinal hemorrhages. Levi’s seizures continued through November 28, 2014. When Levi was finally transferred from intensive care to the acute care floor, the hospitalist noted he had flat-head syndrome (plagiocephaly) and weakness secondary to being persistently in a supine position, and possibly due to chronic neglect. Dr. Hyden opined the injuries Levi exhibited were caused by significant accelerative and decelerative forces inconsistent with the history provided by the parents of an unobserved fall. The injuries were consistent with nonaccidental trauma.
On December 28, 2014, father assaulted mother and vandalized her vehicle. Father pushed mother twice and told her that if she called the police, he was going to kill her. In a confrontation on January 7, 2015, father threw apples at mother, hitting her in the leg. Father followed mother to her vehicle, got in the car, and tried to pull her into the vehicle. Father pulled mother’s clothes, choking her, and struck her in the face multiple times.
Jurisdiction/Disposition Hearing
At the jurisdiction/disposition hearing on February 11, 2015, both parents signed forms waiving their rights to a contested hearing on the allegations. The juvenile court found the allegations of all three children to be true. The court ordered the children removed from their home and granted reunification services for both parents.
The juvenile court ordered a reunification plan and services for mother that included participation in counseling for domestic violence as a victim; participation in counseling for physical abuse as a perpetrator; submission to random, unannounced drug testing on at least a monthly basis; and, upon submission of a test positive for any illegal or nonprescribed controlled substance, enrollment in a substance abuse program under the case plan. The court advised mother the failure to appear for a drug test or inability to provide a sample would result in a presumption the test would be considered positive for a controlled substance.
Six-month Review Hearing
During the first six months of the reunification period, the parents were minimally compliant with their case plans. Mother completed 15 group sessions in the counseling component of physical abuse as a perpetrator, but failed to regularly attend individual counseling sessions and was dropped from the program. Mother started, but did not complete her counseling for domestic violence as a victim. Mother had failed to show for at least one drug test and refused to sign the agreement to be placed on the call-in drug testing hotline. Mother regularly failed to respond to the social worker’s messages asking mother to test. Mother was partially meeting the visitation component of her case plan. The juvenile court continued reunification services for the parents on August 11, 2015.
Mother’s First Section 388 Petition
Mother filed a request for the juvenile court to modify its previous order on November 24, 2015. Mother sought placement of Levi and M.C. with her under a plan of family maintenance services. Mother asserted she had been testing clean. Mother attached certificates indicating she completed the domestic violence victim program and the physical abuse perpetrator program.
12-Month Review Hearing
Mother claimed she had finished physical abuse and domestic violence counseling. During the review period, however, mother failed to appear for unannounced random drug tests on nine occasions, which constituted presumptive positive tests. During a call on November 16, 2015, the social worker told mother she needed to enroll in a substance abuse program due to her missed drug tests. Mother became upset and hung up the phone. On November 24, 2015, mother told a gatekeeper at mental health services that she had only missed one call-in date, and she said it was due to surgery. On December 10, 2015, the substance abuse screening resulted in a determination mother needed substance abuse services. Mother was allowed to visit the children twice weekly for two hours, but she failed to consistently visit the children. She and father visited the children three times in August 2015. Mother visited the children by herself twice in November 2015, and three times in December 2015.
During the review period, the parents were arrested for a domestic violence incident on October 8, 2015, although the prosecutor declined to pursue the charges. Mother became pregnant in October 2015. In November 2015, the social worker had conversations with mother about her continual failure to get drug tested. In November 2015, mother told M.C. she had missed the prior week’s visit because mother had filed a “388” and, since the children would be coming home in four weeks, there was no need for her to visit.
Mother arrived at the department lobby on February 1, 2016, and the receptionist noted mother was wearing bandages covering her nose as well as other facial areas, and she had black and blue bruises over her face. Mother claimed the injuries occurred when she was walking up an alley and encountered groups of people fighting. One group reportedly thought she was with the other, and one person started fighting her. M.C., however, told the social worker mother got in a fight with her sister and broke her sister’s leg, injuring her own face when she fell.
Mother reportedly broke up with father, only to find another violent criminal as her new boyfriend. The new boyfriend had multiple drug convictions and felony convictions for first degree burglary, battery on a spouse, and battery with serious bodily injury. Mother later denied to the social worker she had a new boyfriend, even though she had acquired a new tattoo on her arm with the man’s first name. Mother also created a Facebook page stating she was in a relationship with a man whose picture showed him to be heavily tattooed and with an apparent gang moniker.
Mother withdrew her section 388 petition at the review hearing on April 19, 2016. The juvenile court ordered services terminated for mother. Services were continued for father but were terminated about a month later.
Section 366.26 Report
The department submitted a report for the section 366.26 hearing set for September 16, 2016. The report was file stamped June 13, 2017. The department recommended parental rights be terminated for both parents and adoption as Levi’s permanent plan. Levi was placed in foster care at approximately eight months of age and lived with the prospective adoptive parents from December 3, 2014, to October 21, 2015. An effort to place the siblings together failed, and Levi was returned to the prospective adoptive parents’ home on February 26, 2016. Levi improved after his hospitalization; although no longer showing blood on his brain, there was still fluid. Levi was making good progress in catching up on his developmental growth milestones. Levi was being medically monitored to ensure his body was able to absorb the excess fluid. In July 2016, Levi was delayed in language and gross motor development. Speech and physical therapy were recommended.
Mother’s visitation remained inconsistent. Mother only visited Levi 42 times out of 161, or only 26 percent of the visitation opportunities since the inception of the case. Levi was generally happy during his visits with mother. Levi, however, did not appear to have any attachment to mother. He would often cry for his caretaker during the visits. Mother was observed holding or nurturing Levi only a few times during her limited visitations.
The adoptions worker described Levi as a fun and loveable child. The adoptions worker considered Levi to be generally adoptable due to his lack of diagnosed medical or behavioral issues. The social worker opined that whatever attachment he may have had to his parents had diminished due to his time in protective custody and his parents’ inconsistency with visitation. Levi’s caretakers were committed to adopting him. If the caretakers were unable to adopt Levi, the social worker believed it would not be difficult to find an alternative adoptive home for him. A significant relationship developed between Levi and the prospective adoptive parents, who consistently met Levi’s needs. The adoptive parents considered Levi their son, they genuinely loved him, and they wanted to provide him with a good life.
Levi integrated well into the family. The attachment between Levi and the prospective adoptive family was affectionate and genuine. The adoptions worker opined Levi had not developed an attachment to mother and had an inconsistent visiting relationship with her since placement. The department recommended adoption as the permanent plan for Levi.
Section 366.3 Review Hearing
On November 28, 2016, the juvenile court held a section 366.3 review hearing for Levi. The department’s report indicated Levi had been placed in a Foster Family Agency Certified Home from December 3, 2014, through October 21, 2015. Levi was briefly moved to a different home in order to be placed with his siblings, but was returned to the previous foster home. His caretakers indicated their desire to adopt him.
During an examination on July 7, 2016, the doctor noted Levi was delayed in his speech and gross motor skills. Levi was 33 percent delayed in his expressive and receptive language, and the recommended speech services were then implemented. According to his Health and Education Passport, Levi was developing appropriately for his adjusted age. During the previous six-month review period, the parents had adequate visitation with Levi. Extended family members had not contacted the department regarding Levi.
The social worker opined Levi was doing well in the foster home and had connected with his caretakers. The caretakers had provided him with a loving, secure, and nurturing home life. They had assumed the duties of providing for Levi’s daily needs, and they remained committed to offering a permanent placement through adoption. On November 28, 2016, the juvenile court ordered the planned permanent living arrangement to remain in effect pending the upcoming hearing on the sections 388 and 366.26 petitions.
Mother’s Second Section 388 Petition
On December 7, 2016, mother filed a renewed petition requesting the court modify the order terminating her reunification services and, instead, grant her family maintenance services with Levi. Mother asserted she would soon complete a substance abuse program, and she claimed she had previously completed all of her prior case plan requirements. Mother also claimed she had been randomly drug testing and her tests were clean. Mother stated the requested change of order would benefit Levi because mother had resolved the issues leading to dependency, she was visiting regularly, and Levi had a bond with her.
Mother attached documentation to the petition showing two negative drug tests, a progress report from her substance abuse program with an expected completion date of January 5, 2017, a certificate indicating she completed a domestic violence victim program, a certificate indicating she completed a physical abuse as a perpetrator program, a progress report from a parent education program, and a report from a Kern County approved domestic violence batterer’s program. The last report noted, “Client and boyfriend are no longer involved in a relationship. Now in the process of obtaining a Restraining Order against Boyfriend.” Hearings on mother’s and father’s section 388 petitions, M.C.’s section 388 petition, and the section 366.26 hearing were continued several times.
On January 4, 2017, the social worker addressed mother’s section 388 petition in a supplemental report. The report acknowledged mother had previously completed the counseling for physical abuse as a perpetrator on September 22, 2015, and for domestic violence as a victim on October 27, 2015. The social worker further acknowledged mother had enrolled in an intensive outpatient treatment program, participating with a high level of participation and making excellent progress. Mother had drug tested two times with negative results. Mother did not, however, request authorization to remain on the drug call-in system after her services were terminated. Her last confirmed positive test was on April 11, 2016.
M.C.’s Section 388 Petition
On April 5, 2017, M.C. filed a section 388 petition. She failed to identify the order to be changed in paragraph 6 of the Judicial Council Form JV-180, and she failed to state any change of circumstances justifying the change of a court order in paragraph 7. M.C. asserted that if parental rights were terminated, she would no longer be legally entitled to contact and otherwise maintain her sibling relationship with Levi. M.C. claimed she helped care for Levi, visited him regularly, and had a maternal nature toward him.
Hearing on Section 388 Petitions and Section 366.26
The hearing on the section 388 petitions and section 366.26 proceeding was conducted on June 13, 2017. The court first considered the section 388 petitions. Mother testified she wanted the children returned to her. Mother completed substance abuse counseling, domestic violence counseling as a victim, and physical abuse counseling as a perpetrator. She relapsed and had to retake substance abuse counseling. Mother completed the counseling about five or six months before the hearing. She was drug tested by the substance abuse program. Mother tested for the department the day before the hearing. She had tested clean since she entered the substance abuse program. Mother attended Narcotics Anonymous (NA), but she did not have a sponsor. Mother trusted people at her church more than the people at NA. According to county counsel, the substance abuse program was an accelerated program not approved by the department.
Mother denied being in a current or previous relationship, including a relationship with a boyfriend with apparent ties to a gang. Mother testified she had a broken nose, which required surgery, due to a car accident in November. She previously told the social worker she had injured her nose in a fall and had prior surgeries on the nose. Mother submitted papers as an exhibit documenting the surgery on her nose.
Mother was asked why she thought she could provide care for the children and she replied, “Well, they are my children and I miss them. I love them. I want them home.” When asked why she thought the children would be safe now, mother said, “I’ve always been a good parent.” Mother believed she would be a better parent because she would “pay more attention.” Mother acknowledged Levi was out of her care for over two years. Mother visited Levi, but she missed some visits when she was sick. Mother acknowledged she was allowed visits every week on Tuesdays. Mother said Levi calls her “Mom.”
Mother moved into her mother’s home. The social worker had completed a home inspection the day before. Two of mother’s nieces were also living in the home. Mother explained that all of her children were very close. Mother said Levi would run up to M.C. and hug her right away when he would see her. Levi would sit on mother’s lap and play with M.C. during visits.
After hearing arguments and considering the evidence, the juvenile court denied mother’s section 388 petition. The court also denied father’s and M.C.’s section 388 petitions. The court turned to the section 366.26 hearing, finding Levi was likely to be adopted and terminating parental rights to both parents. The court specifically considered and rejected the parent-child and sibling relationship exceptions to adoption.
DISCUSSION
Section 388 Petition
Mother contends the juvenile court abused its discretion in denying her section 388 petition. We disagree.
A petition to modify a juvenile court order under section 388 must allege facts showing new evidence or changed circumstances exist, and changing the order will serve the child’s best interests. (§ 388, subd. (a).) The petitioner has the burden of proof by clear and convincing evidence. (Cal. Rules of Court, rule 5.570(h)(1)(C).) In assessing the petition, the court may consider the entire history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.) We review the denial of a section 388 petition after an evidentiary hearing for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Where there is conflicting evidence, we reverse only if the evidence compels a finding for the appellant as a matter of law. (In re I.W. (2009) 180 Cal.App.4th 1517, 1528–1529.)
The best interests of the child is of paramount consideration when, as here, a section 388 petition is brought after reunification services have been denied. (See In re Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the best interests of the child at this juncture, the juvenile court’s focus is on the needs of the child for permanence and stability rather than the parent’s interests in reunification. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) “A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child’s best interests.” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
The “escape mechanism” provided by section 388 after reunification efforts have ceased is only available when a parent has completed a reformation before parental rights have been terminated. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) This is because, if a parent’s circumstances have not changed sufficiently to permit placement of the child with that parent, reopening reunification “does not promote stability for the child or the child’s best interests” when the child is otherwise adoptable. (In re Casey D., supra, 70 Cal.App.4th at p. 47.)
In this case, it is unclear mother’s circumstances were changing. Her relapse was troubling, as were her hostility to NA and her lack of a sponsor. Even if mother’s circumstances were changing in a more positive direction, they had not yet changed. Mother had completed her original drug treatment program only to relapse and continue to abuse illegal drugs. Mother’s visits with Levi remained supervised and of limited duration. She only visited him while she was receiving reunification services, and she visited just over one quarter of the total number of visits she was allowed. Furthermore, mother was reported by M.C. and others to be in a new abusive relationship with a boyfriend with apparent gang ties, but she denied being in any relationship after breaking up with father. Mother’s testimony was inconsistent with her own petition, which included documentation from her domestic violence program that she had been in an abusive relationship and obtained a restraining order against her boyfriend. It is unclear mother was able to apply her training in domestic violence as a victim to her current circumstances.
Mother’s ability to maintain sobriety within the confines of a structured setting was insufficient to demonstrate she had made sufficient inroads into her persistent substance abuse problem so that returning her children or resuming reunification services would be appropriate. (See In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [parents with extensive drug use history did not show changed circumstances where rehabilitation efforts were only three months old at time of § 366.26 hearing]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [seven months’ sobriety does not constitute changed circumstance where parent has history of periods of sobriety and relapse]; In re Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 9 [“It is the nature of addiction that one must be ‘clean’ for a much longer period than 120 days to show real reform”].)
Mother’s showing that her circumstances were changing was insufficient. (In re Casey D., supra, 70 Cal.App.4th at p. 49.) The juvenile court did not abuse its discretion in finding mother failed to show a genuine change in circumstances meriting a resumption of reunification services or placing her children with her. Mother also had a prior dependency case in which she received reunification services, which obviously did not help her to prevent the abuse Levi suffered.
Although we need not reach the issue of whether it was also in Levi’s best interests to grant mother reunification services, we note mother’s history of visitation with Levi was inconsistent, demonstrating it was not in Levi’s best interests to be placed back with her. Levi had established a strong bond with his caregivers, who also sought his adoption. Levi’s ties with mother were not nearly as strong. We conclude mother failed to show changed circumstances or that it would be in Levi’s best interests to maintain a parent-child relationship with mother. The juvenile court did not err in denying mother’s section 388 petition.
DISPOSITION
The juvenile court’s orders are affirmed.


PEÑA, J.
WE CONCUR:



DETJEN, Acting P.J.



SMITH, J.