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Filed 6/ 30 /16 In re D.G. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). T his opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

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

CONTRA COSTA COUNTY A147242 DEPARTMENT OF CHILDREN AND FAMILY SERVICES, (Contra Costa County Super. Ct. Nos. J14

- 00975 Plaintiff and Respondent, J14

- 00976, J14

- 00977)

v.
A.G.,
Defendant and Appellant.

________________________ ________ _____/
The juvenile court held a combined Welfare and Institutions Code section 388
, 1

and permanency planning hearing (§ 3 66.26, .26 hearing). The court denied A.G.’s (mother) section 388 petition s and ordered guardianship for three of mother’s children, D.G., D.L., Jr., and R.H. (collectively, children ). Mother appeals , contending the court erred by denying the section 388 petition s

. We disagree and affirm.

1 Unless noted , all further statutory references are to the Welfare and Institutions Code.2 FACTUAL AND PROCEDURAL BACKGROUND We provide a brief outline of the factual and proc edural background and incorporate by reference our opinion denying mother’s petition for writ relief (§ 366.26, subd. ( l )(4)(B)). (

A.G. v. Superior Court (Oct. 2, 2015, A145817).) Detention, Jurisdiction, Disposition , and Six

- Month Review
D.G. was born in 1999. D.L., Jr. was born in 2004. R.H. was born in 2013. In September 2014, the Contra Costa County Department of Children and Family Services (the Department) filed petition s alleging the children came within section 300
, subdivisions (b) and (j) b ecause: (1) they witnessed mother being slapped and strangled by various male companions ; and (2) R.H. missed numerous “ well child checks ” and was
“not current on his immunizations.” Mother had a lengthy criminal history

— including arrests for selling an d transporting narcotics

— and 23 prior child welfare referrals from
1998 to 2014. The court detained the children and ordered supervised visitation for
mother

. Mother submitted to the allegations the child ren witnessed domestic violence
, placing the m at risk of harm. (§ 300, subd s . (b)
, (j) )

. At the conclusion of a contested dispositional hearing, the court determined the children came within section 300,
removed them from mother’s custody
, and ordered reunification services

. Among other things, the court ordered mother to submit to drug and alcohol testing and to complete an outpatient substance abuse treatment program upon a positive drug test

. At the
conclusion of the six

- month review hearing, the court terminated reunification services
and set a .26 hearing for November 2015

. The court noted mother “engaged in no services” except visitation and “was actively engaged in drug use and abuse.” This court denied mother’s petition for writ relief. ( A.G. v. Superior Court (Oct. 2, 2015, A145817).)
Combined Section 388 a nd .26 Hearing
In October 2015

— almost one year after the children were removed

— mother
filed three identical section 388 petition s (form JV

- 180) seeking additional reunification
services and “expanded visits ” so the children could “ be returned to mother’s care.”3

Mother alleged she entered a residential substance abuse treatment program “to address the problems which led to court intervention” and she and the children wanted “to be reunited[.]” The petition s attached a letter from the treatment program confirming
mother’s enrollment and noting the program required “six to twelve months to complete.” The Department opposed the petitions. It noted mother had refused the Department’s attempts to “get [mother] into treatment, to dr u g test, and to address the issues of domestic violence in her life. [Mother] denied that she used illegal substances other than marijuana, failed to register for drug testing, and did not . . . enter[ ] individual therapy or a domestic violence support g roup.” Mother tested positive for illegal substances in June and July 2015 and did not initiate supervised visits until October 2015

. The Department acknowledged mother had entered a residential drug treatment program
but noted she tested positive for co caine, opiates, and marijuana in September and
October 2015

. The Department’s .26 reports recommended appointing a guardian for the
children and providing mother with supervised visitation

. The court held a combined section 388 and .26 hearing. Mother ’s counsel argued mother had shown “a significant change compared to her lack of participation before that. So she’s definitely turned the corner.” Counsel also argued mother had a strong relationship with the children and they would “really benefit from mother having
additional services [

. ] ” The court denied the section 388 petitions. The court w as “pleased” mother was seeking assistance for her substance abuse problem, but concluded
she had not demonstrated a change in circumstances warranting addition al reunification
services. T he court noted mother had “tested positive rather recently [,]” the children had “been dependents of the Court for quite some [ ] time [,] ” and “proceed[ing] to permanency” was in their best interest. T he court ordered guardians hip for the children, with supervised visitation for mother

. DISCUSSION Mother contends the court erred by den ying her section 388 petition s

. “A juvenile court order may be changed, modified or set aside under section 388 if the petitioner
establishes b y a preponderance of the evidence that (1) new evidence or changed4

circumstances exist and (2) the proposed change would promote the best interests of the child.” ( In re Zachary G

. (1999) 77 Cal.App.4th 799, 806; § 388, subds. (a)(1), (c)(1)(A).) It is w ell

- settled that “‘[u] p until the time the section 36 6.26 hearing is set, the parent’ s interest in reunification i s given precedence over a child’ s need for stability and permanency.’ [Citation.] ‘Once reunification services are ordered terminated, the
f ocus shifts to the needs of the child for permanency and stability.’ [Citation.] ‘The burden thereafter is on the parent to prove changed circumstances pursuant to section 388
to reviv e the reunification issue.’” ( In re Zacharia D. (1993) 6 Cal.4th 435, 447 .) We will not reverse a denial of a section 388 petition “ ‘ unless an abuse of disc retion is clearly established.’ [Citation.] The denial of a section 388 motion rarely merits reversal as an
abuse of discretion. [Citation.]” ( In re Amber M. (2002) 103 Cal.App.4th 681, 685

- 686
, italics added .) Mother contends she demonstrated a change in circumstances because she was enrolled in a substance abuse treatment program. The trial court rejected this argument
and concluded mother failed to demo nstrate ch anged circumstances. We agree with the
trial court. Mother had been using drugs for numerous years and did not enter a
substance abuse treatment program until a year after the children were removed. At best,

m other’s belated attempt to comply with her c ase plan by enrolling in a treatment
program shows changing circumstances, not changed circumstances, a nd is insufficient to

warrant modification under section 388. Numerous cases support our conclusion. ( In re
Ernesto R. (2014) 230 Cal.App.4th 219, 223 [ no changed circumstances where mother
had “ a history of drug relapses, [was] in the early stages of recovery, and [was] still addressing a chronic substance abuse problem ” ]; In re Marcelo B. (2012) 209 Cal.App.4th 635, 641

- 642 [participation in 12

- step me etings insufficient evidence of changed circumstances b ecause father already received extensive alcoholism tre a tment, with no improvement] ; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [seven months of sobriety after long history of drug use did not de monstrate changed circumstances]; In re5

Casey D. (1999) 70 Cal.App.4th 38, 49 [denial of section 388 proper where the mother’s “circumstances were changing, rather than changed”] .) 2 We conclude the court properly denied mother’s section 388 petition s bec ause she
failed to es tablish changed circumstances. Having reached this result, we need not determine whether reinstatement of reunification services would have promoted the
children’s best interests.
DISPOSITION
The orders denying mother’s section 388 petition s and ordering guardianship for
the children are affirmed.

2 Mother’s claim that she presented “changed circumstances as to the issue of domestic violence” does not alter our conclusion. Mother’s purported progress regarding domestic v iolence does not negate the fact that she made little to no progress overcoming her substance abuse problem.6 _________________________ Jones, P.J.

We concur:

_________________________ Needham, J.

_________________________ Bruiniers, J.

A147242