Filed 10/30/14 In re Joseph P. CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

In re JOSEPH P., a Person Coming Under the Juvenile Court Law. 2d Juv. No. B255965 (Super. Ct. No. J069280) (Ventura County)

VENTURA COUNTY HUMAN SERVICES AGENCY,
Plaintiff and Respondent,

v.
DEANN A.,
Defendant and Appellant.

Deann M. (mother) appeals the j uvenile court orders denying her modification petition, termina ting her parental rights and establishing ad option as the permanent plan for her minor child Joseph P. 1 (Welf. & Inst. Co de, §§ 366.26, 388.) 2
Mother contends the court abused its disc retion in denying her mo dification petition, and erred in finding that terminating her parental rights would not be detrimental to Joseph. (§ 366.26, subd. (c)(1)(B)(i).) We affirm.

1 The court also terminated the parental right s of Joseph's father. He is not a party to this appeal. 2 All statutory references are to th e Welfare and Institutions Code.2 FACTUAL AND PROCEDUR AL BACKGROUND On March 21, 2013, the Ventura C ounty Human Services Agency (HSA) detained 11-month-old Joseph P. and his two half-siblings, seven-year-old Enrique and four-year-old Alexis. HSA took Joseph into protective custody a nd placed Enrique and
Alexis with their father. On March 25, 2013, HSA filed a petition as to Joseph for failure to protect (§ 300, subd. (b)) and support (§ 300, subd. (g)). The petition alleged that mother left Joseph, Enrique and Alexis at home, in the ca re of adults who were using marijuana in their presence. The home was in disarray. Joseph's crib was filled with blankets, clothing and pillows, and there was marijuana on a low dresser. Mother had a history of
unaddressed substance abuse and mental heal th issues. HSA could not find Joseph's
father. On March 26, 2013, the juvenile c ourt declared Joseph a dependent child,
ordered his continued deten tion, and ordered HSA to be gin providing reunification
services to mother. The court ordered mo ther to refrain from using or possessing any drugs or alcohol, submit to random drug te sting, and provide HSA written verification of
her attendance at Alcoholics/Narcotics Anon ymous (AA/NA) meetings. On April 11, 2013, mother and HSA agreed to a case plan that set a goal for her reunification with Joseph by October 22, 2013. The plan required that mother pa rticipate in mental health counseling; enroll in and complete an out patient substance abuse treatment program; submit to random drug testi ng; and provide written proof of her attendance at 12-step meetings. Mother attended the April 23, 2013, jurisdiction and disp osition hearing. The juvenile court sustained the petition, ordered HSA to provi de six months of
reunification services to moth er, and ordered mother to co mply with her case plan. In its October 7, 2013, six-month status review report, HSA recommended that the juvenile court termin ate mother's reunification serv ices and set a section 366.26 hearing to establish adoption as the perm anent plan for 18-month-old Joseph. HSA reported that Joseph had been living with his maternal aunt since April 15, 2013, and was3 appropriately attached to his maternal aunt and mother. Joseph was developmentally on track, walking, throwing a ball, following simple directions, and learning new words. Mother enrolled in several recovery programs, but failed to complete them. She tested positive for codeine on May 10, 2013, and failed to submit to testing on two other dates. Mother missed multiple appointm ents with her therapis t, as well as some scheduled meetings with her HSA social worke r. Mother missed eight weekly visits with Joseph from mid-May through late July 2013, sometimes because she slept through her
alarm or was late for the bus. On October 7, 2013, mother appear ed in juvenile court and requested a contested status review hearing. The co urt set the matter for a contested hearing on October 31, 2013. Mother failed to appear on October 31. The court considered the evidence submitted by HSA and found by clear and convincing evidence that she failed to comply with her ca se plan. The court terminated mo ther's reunification services, and set a section 366.26 hearing for February 24, 2014. On February 24, 2014, mother requested a contes ted section 366.26 hearing. The juvenile court scheduled th e matter for a contested hearing on March 20, 2014. On March 20, mother filed a section 388 petition aski ng the juvenile court to modify its October 31, 2013, order termin ating reunification services. The petition alleged the following changed circumstances: Mother had been sober since September 2013; she recently gave birth to a daughter; and mother enrolled in alcohol and drug treatment and parentin g programs on January 23, 2014. Her petition further alleged it would be in Joseph's best in terests if reunification services were reinstated because Joseph was placed with mother's sister, mother would be se eing him, and with services, she could best maintain the path she was on to be a "clean, sober and healthy individual
in his life" On April 22, 2014, th e juvenile court conducted a combined hearing on mother's section 388 petition and the HSA re commendation to terminate parental rights and select adoption as Joseph's permanent pl an. HSA reported that Joseph was a happy, playful, healthy boy who was developmentally on track, and able to kick and throw a4 ball, and say about 20 words. Joseph had been living with his maternal aunt and her girlfriend since April 15, 2013. They were "attached/bonded to him, love[d] him, . . . [saw] him as their own child," and wished to adopt him. HSA social worker Nicole Cosgrove testified that Joseph was attached to his aunt and her girlfriend, and looked to them for comfort and support. HSA further reported that mother gave birth to a daughter, Jazzlene, in
March 2014. HSA removed Jazzlene from mother's care, and mother was receiving
reunification services in Jazzlene's case. Moth er attended regular supe rvised visits with Joseph and Jazzlene. Joseph di d not have any significant issu es transitioning to and from
the visits. HSA located Jo seph's father. He never requested visitation.
Mother testified that she attended supervised visits with Joseph once a week. He recognized her, called her "mom," and was always happ y and laughing.
Mother also testified that on March 24, 2014, she entered Prototypes, a residential substance abuse facility, where sh e participated in recovery and parenting programs. She was in the first phase of resi dential treatment, and anticipated being in
treatment for at least five more months. Mo ther testified inconsistently regarding her sobriety date. In addition, as the juvenile court observed, mother's testimony regarding
the date on which she realized she was pregnant conflicted w ith her earlier statements to Cosgrove. The trial court found Cosgrove was credible. The juvenile court denied mother's section 388 petition to reinstate services, found that Joseph was adoptable, and te rminated mother's parental rights.
DISCUSSION
Section 388 Petition Mother contends that the juvenile court erred by deny ing her section 388 petition. We disagree. "The grant or denial of a section 388 petition is committed to the
sound discretion of the trial c ourt and will not be disturbed on appeal unless an abuse of discretion is clearly established." ( In re Shirley K . (2006) 140 Cal.App.4th 65, 71.) The parent bears the burden of showing both a ch ange of circumstances and that modification of the prior order would be in the child's best interests. ( In re S.J. (2008) 1675 Cal.App.4th 953, 959.) "After the terminati on of reunification services, the parents' interest in the care, custody and companions hip of the child are no longer paramount. Rather, . . . 'the focus shif ts to the needs of the child for permanency and stability' [citation] . . . ." ( In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
Mother claims she met her burden of showing the requisite change of circumstances because she "was in recovery." She bases that cl aim on her entry into
residential treatment on March 27, 2014, and participation in other programs beginning on January 23, 2014. Before ruling on April 22, 2014, the juvenile court noted that mother was only in her fourth week of reside ntial treatment, with at least five more months of treatment remaining. In 2013, mother had started several other recovery programs but failed to complete them. The court found there had not been a sufficient change of circumstances to justify changing its prior orders and de nied the section 388 petition. Substantial evidence su pports the court's finding. ( In re S.J., supra , 167 Cal.App.4th at pp. 959-960.)
Mother also failed to establish that it would be in Joseph's best interest to modify the order terminating her reunificatio n services. Following the termination of those services, the juvenile court's primary focu s was upon the "'. . . needs of [Joseph] for permanency and stability' [citation] . . . ." ( In re Stephanie M., supra, 7 Cal.4th at p. 317.) At oral argument, moth er's counsel urged that Joseph' s placement with his maternal aunt weighed in favor of granting the secti on 388 petition because he could build a future
with mother and remain in his aunt's home. In juvenile court, mother's counsel had claimed there was no urgency to terminate pa rental rights, among ot her reasons, because she and Joseph would see each other anyway, while he lived with his maternal aunt. The record belies any claim that mother and Joseph would inevitably maintain contact.
Mother testified she and maternal aunt did not associate with each other. In discussing their wish to adopt Joseph, the maternal aunt and her partner told HSA they planned to allow mother to have supervised contact w ith him if she was sober and the relationship
was beneficial.6 As mother acknowledges in her brie f, Joseph had consistent and loving care
in his maternal aunt's home. Mother was in the early stages of her recovery and Joseph could not wait any longer. Substantial evidence supports the trial court's finding that it was not in the best interest of Joseph to modi fy its prior order and "wait five to six to seven months . . . to see whether or not he [c ould] be . . . returned to mother's care." ( In re S.J., supra, 167 Cal.App.4th at pp. 959-960.) Beneficial Relatio nship Exception Mother argues that the juven ile court erred in findin g that terminating her parental rights would not be detrimental to Joseph under the parent-child beneficial relationship exception. (§ 366.26, subd. (c)(1)(B)(i).) We disagree.
"If the court finds that a child may not be returned to his or her parent and is likely to be adopted, it must select adoption as the permanen t plan unless it finds that termination of parental rights would be detr imental to the child un der one of [several] specified exceptions. [Citations.]" ( In re Derek W . (1999) 73 Cal.A pp.4th 823, 826.) The parent-child beneficial relationship exception precludes adoption where (1) the parent has maintained regular visita tion and contact with the child, and (2) the child would benefit from continuing the relations hip. (§ 366.26, subd. (c)(1)(B)(i).) In deciding whether the parent-child beneficial relationship exception applies, "the court balances the strength and quality of the natu ral parent/child relationship in a tenuous placement against the security and the sense of belonging a new fam ily would confer." ( In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Historically, our courts have applied the substantial evidence standard of
review when the trial court fi nds that the parent-child bene ficial relationship exception does not apply. ( In re Autumn H., supra, 27 Cal.App.4th at p. 576.) In In re Bailey J

. (2010) 189 Cal.App.4th 1308, the Court of Appeal applie d the substantial evidence
standard to the trial court's determination whether a benefici al relationship exists, and the
abuse of discretion standard to the court's determination wh ether the relationship is so important that it compels a plan other than adoption. ( Id . at pp. 1314-1315; see Cal. Juvenile Dependency Practice (Cont.Ed.Ba r Annual 2013) § 8.38A, pp. 663-664; In re7 K.P . (2012) 203 Cal.A pp.4th 614, 621-622; In re J.C . (2014) 226 Cal.App.4th 503, 530- 531.) Here, we affirm under either standard.
Mother claims that she main tained consistent and regular visitation with Joseph to support the beneficial relationship exception. (§ 336.26 , subd. (c)(1)(B)(i).) The evidence concerning her vis itation was mixed. At times she visited him regularly. But she also missed multiple visits. Assuming that mother had proved she maintained the requisite visitation with Joseph, she failed to show that "'severing the natural parent-child relationship would depr ive [Joseph] of a substantial , positive emotional attachment such that [he] would be greatly harmed. [Citations.] . . .' . . . Evidence that a parent has maintained '"frequent and loving contact" is no t sufficient to establish the existence of a beneficial parental relationship.' [Citation.]" ( In re Marcelo B. (2012) 209 Cal.App.4th 635, 643.) Instead, "[t]he parent must show he or she occupies a parental role in the child's life . . . ." ( In re Mary G. (2007) 151 Cal.App.4th 184, 207.) Parents must make a substantial showing in cases wh ere they have failed "to reunify and establish a parental . . . relationship" or where they do not advance "beyond supervised visitation." ( In re Casey D . (1999) 70 Cal.App.4th 38, 51.) Substantial evidence supports the juve nile court's conclusion that mother's relationship with Joseph is not so significa nt that he will be greatly harmed by its termination. ( In re Autumn H., supra , 27 Cal.App.4th at p. 575.) Joseph recognized mother and was happy while visiting her. She di d not, however, occupy a parental role in his life during his dependency, and she did no t progress beyond supervised visitation. Joseph has lived with his aunt and her partner since he was about a year old, and thrived in their care. Joseph looks to them for support and comfort, and shares a strong mutual bond with them. They consider him part of their family and wish to adopt him. As the juvenile court stated , mother's efforts to recover and improve after
the termination of reunification services in Joseph's case were "too little too late." "The reality is that childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by someone, at the time the child needs it,8 not when the parent is ready to give it." ( In re Debra M . (1987) 189 Cal.App.3d 1032, 1038.)
DISPOSITION The judgment (orders denying secti on 388 petition and term inating parental rights) is affirmed.
NOT TO BE PUBLISHED

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.9 Bruce A. Young, Judge Superior Court County of Ventura

________________ ______________

David A. Hamilton, under appointment by the Court of Appeal, for Appellant. Leroy Smith, County Counsel, Eric Walts, Assistant County Counsel, for Respondent.