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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). This opinion has not been certified for publication 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

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,

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and permanency planning hearing (§ 366.26, .26 hearing). The court denied A.G.’s 

(mother) section 388 petitions 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 petitions. 

We disagree and affirm.

 

1 Unless noted, all further statutory references are to the Welfare and Institutions 

Code. 
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FACTUAL AND PROCEDURAL BACKGROUND

We provide a brief outline of the factual and procedural 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 petitions alleging the children came within section 300, 

subdivisions (b) and (j) because: (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 and 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 children witnessed domestic violence, 

placing them at risk of harm. (§ 300, subds. (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 and .26 Hearing

In October 2015 — almost one year after the children were removed — mother 

filed three identical section 388 petitions (form JV-180) seeking additional reunification 

services and “expanded visits” so the children could “be returned to mother’s care.” 
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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 petitions 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 drug 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 group.” 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 cocaine, 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 was 

“pleased” mother was seeking assistance for her substance abuse problem, but concluded 

she had not demonstrated a change in circumstances warranting additional reunification 

services. The 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. The court ordered guardianship for the children, 

with supervised visitation for mother. 

DISCUSSION

Mother contends the court erred by denying her section 388 petitions. “A juvenile 

court order may be changed, modified or set aside under section 388 if the petitioner 

establishes by a preponderance of the evidence that (1) new evidence or changed 
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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 well-settled that “‘[u]p until the time the section 366.26 hearing is set, 

the parent’s interest in reunification is given precedence over a child’s need for stability 

and permanency.’ [Citation.] ‘Once reunification services are ordered terminated, the 

focus 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 revive 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 discretion 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 demonstrate changed 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, 

mother’s belated attempt to comply with her case plan by enrolling in a treatment 

program shows changing circumstances, not changed circumstances, and 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 meetings insufficient evidence of 

changed circumstances because father already received extensive alcoholism treatment, 

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 demonstrate changed circumstances]; In re 
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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 petitions because she 

failed to establish 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 petitions 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 violence does not negate the fact that she made little to no progress overcoming 

her substance abuse problem. 
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_________________________

Jones, P.J.

We concur:

_________________________

Needham, J.

_________________________

Bruiniers, J.

A147242