Filed 9/14/20 In re H.B. CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re H.B., A Person Coming Under 

the Juvenile Court Law.

 B305118

 

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

T.P.,

Defendant and Appellant.

 (Los Angeles County

 Super. Ct. No. DK14595A)

APPEAL from an order of the Superior Court of Los 

Angeles County, Steff Padilla, Juvenile Court Referee. Affirmed.

Emery El Habiby, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Mary C. Wickham, County Counsel, Kim Nemoy, Acting 

Assistant County Counsel, and Stephen D. Watson, Deputy 

County Counsel, for Plaintiff and Respondent.
2

INTRODUCTION

T.P., mother of H.B., appeals from the juvenile court’s order 

denying her petition under Welfare and Institutions Code section 

3881 to modify the court’s prior order terminating her family 

reunification services. T.P. contends the court erred in ruling she 

failed to show that there were changed circumstances and that 

reinstating family reunification services was in the best interest 

of H.B. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

A. The Juvenile Court Asserts Jurisdiction over H.B.

and Removes Her from T.P.

On December 9, 2015 officers of the Long Beach Police 

Department searched the apartment of Lamont B., father of 

three-month-old H.B., based on a tip Lamont was selling cocaine 

from his home. Officers found ammunition, drug paraphernalia,

and a large amount of cocaine in the apartment, including rock 

cocaine next to H.B.’s formula. T.P., who did not live with 

Lamont, had left H.B. at the apartment that day and arranged 

for Lamont’s mother to watch her. The Los Angeles County 

Department of Children and Family Services learned T.P. knew

Lamont was a drug dealer and kept drugs and weapons in the

home. 

The Department removed H.B. from Lamont’s and T.P.’s 

physical custody and filed a petition under section 300, 

subdivision (b), alleging, among other things, that Lamont 

created a detrimental and dangerous home environment for H.B. 

1 Statutory references are to the Welfare and Institutions 

Code.
3

and that T.P. “failed to protect [H.B.] in that she allowed [H.B.] to 

reside in the home.” The juvenile court detained H.B., granted 

T.P. monitored visitation, and ordered the Department to provide

T.P. with referrals for drug testing and resources to assist T.P. in

finding stable housing and transportation. The court advised 

T.P., “You can take this opportunity and say, ‘I do not want my 

daughter to be raised the same way I was. . . .’ You take this 

order . . . and you get a safe place to live. . . . Then you work with 

[the Department]. . . . You don’t keep doing the things you’re 

doing that are causing this instability for your daughter. You 

find another way. . . . This is a chance right now to do that.”2

On December 18, 2015 T.P. tested positive for cocaine. T.P. 

told the Department social worker that it was the only time she 

used cocaine, that she used it because the Department had taken

H.B. from her, and that she did not have a substance abuse 

problem. The Department amended the petition to allege that 

T.P. was “a recent abuser of cocaine, which periodically

render[ed] [her] incapable of providing regular care and 

supervision of” H.B., and that T.P.’s substance abuse “place[d] 

[H.B.] at risk of serious harm.” 

On March 11, 2016 T.P. pleaded no contest to the 

allegations in the petition, and the juvenile court declared H.B. a 

dependent of the court. The court removed H.B. from T.P.’s 

custody, ordered the Department to provide family reunification 

services, granted T.P. monitored visits, and ordered T.P. to 

complete a drug and alcohol program, parenting classes, and 

individual counseling. 

2 As a child, T.P. was a dependent of the juvenile court “due 

to her mother’s extensive substance abuse history,” lived in foster 

care, and “was a habitual runaway.” 
4

B. T.P. Fails To Reunify with H.B. After 14 Months of 

Family Reunification Services

In the first six months after the juvenile court removed 

H.B. from T.P.’s custody, T.P. tested negative for drugs three 

times, but failed to appear for drug tests four times. T.P. 

regularly visited with H.B., but did not participate in any of the 

other court-ordered programs. The outpatient substance abuse 

program discharged T.P. for “excessive absences.” As for H.B., 

the Department reported she appeared “happy,” “healthy,” and 

“bonded” to her caregiver. 

In March 2017, one year after the juvenile court removed 

H.B. from T.P.’s custody, the Department reported T.P.’s 

compliance with her case plan was substantially deficient. T.P.

had not submitted to drug testing for seven months and had not 

provided proof she had completed her court-ordered programs. 

T.P. also stopped visiting H.B. at the end of 2016. Meanwhile, 

H.B. “continue[d] to display a strong bond with her foster 

mother.” On May 15, 2017 the juvenile court found T.P. had not 

made significant progress in resolving the problems that led the 

court to remove H.B. from her custody. The court terminated 

family reunification services and set a selection and 

implementation hearing under section 366.26. 

 

C. The Juvenile Court Gives T.P. a Second Chance

On December 12, 2017 T.P. filed a petition under section 

388 asking the juvenile court either to release H.B. to her or to 

reinstate family reunification services. T.P. submitted proof she 

had completed an inpatient substance abuse program, 

transitioned to sober living, completed anger management, 

parenting, and domestic violence classes, and tested negative for 

drugs. The Department supported giving T.P. an additional six 

months of family reunification services. On February 1, 2018 the
5

juvenile court granted the petition in part, reinstated family 

reunification services, and allowed T.P. to have unmonitored 

visits with H.B. A month later, the court allowed T.P. to bring 

H.B. to her temporary residence for overnight visits. The 

Department observed that T.P. “displayed a strong bond with 

[H.B.]” and that H.B. “recognize[d] [T.P.] as her mother and has a 

healthy attachment to her.” 

Soon after the court relaxed the restrictions on T.P.’s 

visitation with H.B., however, the Department observed T.P. had

been “inconsistently testing” for several months. Despite a few 

negative tests, T.P. failed to show up for six tests. On May 14, 

2018 the juvenile court ruled T.P. could not take H.B. for 

overnight visits until T.P. started testing again. The court 

warned T.P.: “Any missed, dirty, or diluted tests, then visits 

become monitored.” Soon after the hearing, T.P. tested positive 

for cocaine on three consecutive tests over a three-week period. 

The Department asked the court to terminate family 

reunification services because T.P. had “exhausted [the] 

reunification time” and to set the case for a selection and 

implementation hearing under section 366.26. 

D. The Juvenile Court (Again) Sets a Selection and 

Implementation Hearing Under Section 366.26

On July 25, 2018 the court ordered the Department to 

resume providing H.B. with permanent placement services and 

set a hearing under section 366.26 for November 26, 2018.

3 The

3 The court’s July 25, 2018 order did not explicitly terminate 

family reunification services. As discussed, the Department 

stated T.P. had “exhausted” the “reunification time,” but the 

court’s February 1, 2018 order granting T.P. additional family 
6

Department later learned that T.P. had only visited H.B. once 

between June 2018 and October 2018 and that, in October 2018, 

T.P. was incarcerated with an anticipated release date of 

December 2019. While T.P. was incarcerated, the Department 

observed H.B. appeared bonded to her caregiver and seemed 

happy and healthy in her foster home. H.B.’s foster mother 

expressed a desire to adopt her. From November 2018 through 

the end of 2019, the juvenile court continued the section 366.26 

hearing several times, ultimately setting the hearing for January 

16, 2020. 

E. T.P. Petitions for a Third Chance at Reunification

On January 15, 2020, the day before the scheduled hearing 

under section 366.26, T.P. filed her second petition under section 

388, asking the juvenile court to grant her an additional period of 

family reunification “to allow [her] to demonstrate continued 

sobriety and eventually transition [H.B.] to [her] care and 

custody.” T.P. stated that, since her release from custody in 

September 2019, she had been participating in a substance abuse 

treatment program, a parenting program, and anger 

management classes and that she had been “testing clean of all 

substances.” At the February 28, 2020 hearing on her petition,4

T.P. explained she had been in jail for 12 months for violating the 

terms of her probation on a drug-related offense because she 

“stopped reporting.” T.P. testified she completed five months of 

reunification services did not specify the duration of those

services. The parties agree, however, the juvenile court 

terminated reunification services on July 25, 2018. 

4 The juvenile court continued the section 366.26 hearing 

pending the court’s ruling on T.P.’s section 388 petition.
7

the substance abuse treatment program and would graduate 

from the program “by the middle of [2020].” T.P. acknowledged 

that she had previously relapsed after completing a substance 

abuse treatment program, but stated that she had “changed a lot” 

and “learned how to stay away from the environments that 

dragged [her] to [abuse drugs].” T.P. said she no longer lived in 

Long Beach, but moved to Los Angeles, away from the “people, 

places, and things” that were her “triggers.” T.P. stated that her 

current transitional housing did not allow children to live at the 

facility, but that she had been “looking for” housing that accepted 

children. 

The Department opposed the petition. The Department 

pointed out that, even though T.P. was currently participating in 

a substance abuse treatment program, anger management 

classes, and parenting classes, she had relapsed in 2018 after 

completing an inpatient treatment program. The Department 

cited a recent report by T.P.’s counselor stating that T.P. “has 

been missing sessions.” The counselor explained that a patient 

who fails to attend a session for 30 days will be dismissed from 

the program and that T.P. “has been close to being dismissed.” 

The Department acknowledged T.P.’s efforts to build a 

relationship with H.B. through weekly visits, but argued that 

H.B. had been in “a loving home” for most of the four years of her 

life and that additional reunification services would not be in 

H.B.’s best interest. 

The juvenile court denied T.P.’s petition. The court 

observed that the Department filed the dependency petition in 

2015 and that T.P. “disappeared for a good portion of 2016 and 

2017”5 and “wasn’t testing.” The court stated that, although it 

5 T.P. stopped visiting H.B. from the end of 2016 to August 

2017. 
8

granted T.P. unmonitored visitation in 2018, she subsequently

stopped testing and “found herself incarcerated again for

violating the terms and conditions of probation.” The court 

concluded that T.P.’s circumstances were “not substantially 

changed” and that granting the petition was not in H.B’s best 

interest. The court found that “this child has languished in foster 

care waiting for [T.P.] and [Lamont] to be able to be clean and 

sober for an extended period of time” and that T.P. “has had . . .

five years since the first incident occurred, and the child is over 

four” years old. T.P. timely appealed. 

DISCUSSION

A. Applicable Law and Standard of Review

Section 388, subdivision (a)(1), provides in pertinent part:

“Any parent . . . may, upon grounds of change of circumstance or 

new evidence, petition the court . . . for a hearing to change, 

modify, or set aside any order of court previously made or to 

terminate the jurisdiction of the court.” (See In re Stephanie M. 

(1994) 7 Cal.4th 295, 317; In re J.M. (2020) 50 Cal.App.5th 833, 

845; In re J.C. (2014) 226 Cal.App.4th 503, 525.) ‘“The petitioner 

has the burden of showing by a preponderance of the evidence (1) 

that there is new evidence or a change of circumstances and (2) 

that the proposed modification would be in the best interests of 

the child.’” (In re J.M., at p. 845; accord, In re Stephanie M., at 

p. 317; see In re Marilyn H. (1993) 5 Cal.4th 295, 309 [“[t]he 

burden . . . is on the parent to prove changed circumstances 

pursuant to section 388 to revive the reunification issue”]; In re 

D.B. (2013) 217 Cal.App.4th 1080, 1089 [same]; Cal. Rules of 

Court, rule 5.570(e)(1), (h)(1).) “‘[T]he term “new evidence” in 

section 388 means material evidence that, with due diligence, the 

party could not have presented at the dependency proceeding at 
9

which the order, sought to be modified or set aside, was entered.’” 

(In re D.B., at p. 1093.)

“The change of circumstances or new evidence ‘must be of 

such significant nature that it requires a setting aside or 

modification of the challenged prior order.’” (In re Mickel O. 

(2011) 197 Cal.App.4th 586, 615; see In re Ernesto R. (2014) 230 

Cal.App.4th 219, 223 [“the change in circumstances must be 

substantial”].) “[A] section 388 petition seeking reinstatement of 

reunification services or return of the child will necessarily

involve a parent who has made mistakes sufficient to support 

termination of services at some point in the past. The question 

must be whether the changes the parent made since then are 

substantial enough to overshadow that prior determination, such 

that reunification is now in the child’s best interests.” (In re 

J.M., supra, 50 Cal.App.5th at p. 848.) “A parent establishes a 

substantial change of circumstances for purposes of section 388 

by showing that, during the period between termination of 

reunification services and the permanency planning hearing, he 

or she has resolved the previously unresolved issues supporting 

juvenile court jurisdiction.” (In re J.M., at p. 846; see In re A.A.

(2012) 203 Cal.App.4th 597, 612 [“the problem that initially 

brought the child within the dependency system must be removed 

or ameliorated”].)

We review the juvenile court’s finding that T.P. failed to 

carry her initial burden to demonstrate a substantial change of 

circumstances or to present material new evidence by 

determining whether the evidence compels a finding in her favor 

on that issue as a matter of law. (See In re N.O. (2019) 

31 Cal.App.5th 899, 925; In re Aurora P. (2015) 241 Cal.App.4th 

1142, 1156.) Specifically, we determine whether “the evidence 

‘was (1) “uncontradicted and unimpeached” and (2) “of such a 

character and weight as to leave no room for a judicial 
10

determination that it was insufficient to support a finding.”’” 

(In re Luis H. (2017) 14 Cal.App.5th 1223, 1227; see In re I.W.

(2009) 180 Cal.App.4th 1517, 1528, disapproved on another 

ground in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, 

fn. 7.) We review for abuse of discretion the juvenile court’s 

ruling that providing T.P. additional reunification services was 

not in H.B.’s best interest. (See In re Stephanie M., supra, 7 

Cal.4th at p. 318; In re J.C., supra, 226 Cal.App.4th at 

pp. 525-526.) 

B. The Evidence Does Not Compel a Finding of 

Substantially Changed Circumstances or Significant 

New Evidence

T.P. argues she “established changed circumstances or new 

evidence” by presenting evidence that, “[s]ince the termination of 

her family reunification services on July 25, 2018, [she] had been 

released from incarceration,” was “participating in a substance 

abuse treatment program,” was “testing clean,” and “had been 

sober for 15 to 17 months.” The evidence does not compel a 

finding in T.P.’s favor as a matter of law. 

The court based its July 25, 2018 order terminating 

reunification services on evidence T.P. had relapsed: She tested 

positive for cocaine three straight times, missed several other 

tests, and stopped visiting H.B. (from June 7, 2018 to July 25, 

2018). At the time of the hearing on her second petition under 

section 388 in February 2020, T.P. had completed five months of 

a substance abuse treatment program and tested negative for 

drugs on three occasions between October 4, 2019 and January 

10, 2020. While this evidence may have been “new,” it did not 

compel a finding T.P. had resolved the issue that supported

juvenile court jurisdiction, namely, her drug addiction. (See In re 

J.M., supra, 50 Cal.App.5th at p. 846.) Even assuming the three
11

isolated drug test results established T.P. was not using drugs 

during October 4, 2019 to January 10, 2020, that relatively short

period of sobriety did not demonstrate she had overcome her drug 

addiction, given how long it took for her to confront her substance 

abuse problem during her first period of reunification services

and her extended relapse during her second period of 

reunification services. (See In re C.J.W. (2007) 157 Cal.App.4th 

1075, 1081 [parents’ three months of sobriety was not sufficient 

to show changed circumstances after “extensive histories of drug 

use and years of failing to reunify with their children”]; In re 

Mary G. (2007) 151 Cal.App.4th 184, 206 [“Given the severity of 

[the mother’s] drug problem the court could reasonably find her 

sobriety between March and . . . June . . . was not particularly 

compelling.”]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423-424 

[“full compliance with [the] treatment plan, coupled with seven 

months of clean tests,” was not sufficient to show changed 

circumstances]; In re Kimberly F. (1997) 56 Cal.App.4th 519, 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.”]; see also

In re Marcelo B. (2012) 209 Cal.App.4th 635, 642 [“the juvenile 

court properly found that [the father’s] belated choice to return to 

treatment is no guarantee that he will achieve or maintain the 

sobriety required for him to be a parent”].)

T.P. also had not completed her substance abuse treatment 

program, and her individual counselor stated T.P. missed so 

many sessions the counselor almost dismissed her from the 

program. Although T.P. asserted she had been sober for 15 to 17 

months, she did not present evidence to support that assertion. 

And T.P. still lived in transitional housing that did not allow 

children, had recently lost her job and was looking for another 

one, and indicated she might reestablish a relationship with 

Lamont, who lived in Long Beach, the very locale of her 
12

“triggers.” T.P.’s only explanation for relapsing in 2018 was: “I 

was going through a lot. I was stressing and I ended up 

relapsing.” Although T.P. set admirable goals for herself to stay 

sober, her life circumstances still presented the kind of stress and 

pressures that make her vulnerable to another relapse. The 

court properly considered T.P.’s history of relapsing after 

completing a substance abuse treatment program in 2018, as well 

as her inability to comply with the case plan for much of the 

reunification period. (See In re Mickel O., supra, 197 Cal.App.4th 

at p. 616 [“In considering whether the petitioner has made the 

requisite showing, the juvenile court may consider the entire 

factual and procedural history of the case.”].) 

We commend T.P. for her efforts to turn her life around 

after her release from incarceration. Nevertheless, at the time of 

the hearing on her second section 388 petition, T.P. still had a 

long way to go to demonstrate a change in circumstances of “such 

significant nature” (In re Mickel O., supra, 197 Cal.App.4th at 

p. 615) that it justified setting aside the court’s order terminating 

reunification services. The evidence does not compel a finding 

T.P. established significantly changed circumstances. (See In re 

Casey D. (1999) 70 Cal.App.4th 38, 48 [mother’s regular 

attendance at a drug treatment program (among other 

rehabilitation efforts) did not show changed circumstances 

because she had not completed most of the program’s

requirements and had “a tendency to engage in treatment 

programs when required to do so by outside agencies and then 

relapse once the requirement was lifted”]; cf. In re J.M., supra, 50 

Cal.App.5th at p. 846 [mother established a significant change in 

circumstances where “she had resolved the domestic violence 

underlying the initial dependency petition,” “had not been in 

contact with [the father] for over a year,” and “had completed all 

required domestic violence training, and nothing suggested [she] 
13

was or had been in another potentially violent or abusive 

relationship”].)6

C. The Juvenile Court Did Not Abuse Its Discretion in 

Ruling That Granting the Petition Was Not in H.B.’s 

Best Interest

T.P. asserts: “Providing [T.P.] with additional family 

reunification services and an opportunity to reunify with [H.B.] 

was clearly in [H.B.’s] best interests.” The evidence showed, 

however, that granting T.P. additional reunification services

would have negatively affected H.B.’s overriding interest in 

permanency and stability.

Although a parent and child “share a fundamental interest 

in reuniting up to the point at which reunification efforts cease,” 

their interests “diverge[ ] by the point of a [section 366].26 

hearing to select and implement a child’s permanent plan.” (In re 

J.C., supra, 226 Cal.App.4th at p. 527). “After the termination of 

reunification services, the parents’ interest in the care, custody 

and companionship of the child are no longer paramount. 

Rather, at this point ‘the focus shifts to the needs of the child for 

permanency and stability.’” (In re Stephanie M., supra, 7 Cal.4th

at p. 317; see In re Jasmon O. (1994) 8 Cal.4th 398, 419-420 

[“after a child has spent a substantial period in foster care and 

attempts at reunification have proved fruitless, the child’s 

6 Contrary to T.P.’s assertion, her release from incarceration 

was not a changed circumstance. T.P. was not incarcerated on 

July 25, 2018, when the juvenile court terminated reunification 

services, and she was not incarcerated on January 15, 2020, 

when she filed her petition under section 388. The only 

circumstance that changed during this period was that T.P. 

completed a 12-month jail term, hardly a circumstance that 

supported her petition.
14

interest in stability outweighs the parent’s interest in asserting 

the right to the custody and companionship of the child”]; In re 

J.C., at p. 527 [“after reunification services have terminated, a 

parent’s petition for either an order returning custody or 

reopening reunification efforts must establish how such a change 

will advance the child’s need for permanency and stability”]; In re 

Edward H. (1996) 43 Cal.App.4th 584, 594 [“on the eve of the 

section 366.26 . . . hearing, the children’s interest in stability was 

the court’s foremost concern and outweighed any interest in 

reunification”].) 

Here, aside from her conclusory assertion that reunifying

with H.B. was in H.B.’s best interests, T.P. did not present any 

evidence to show how giving her a third round of reunification 

services would further H.B.’s interest in living in a permanent 

and stable home. H.B. lived almost the entire four years of her 

life in the home of her foster mother, whom she called “mommy” 

and to whom she looked for all of her needs. Keeping this case 

pending for an additional period of uncertainty to allow T.P. to 

try for the third time to resolve the issues that led to dependency 

jurisdiction and to repeat her attempts to reunify with H.B. 

would only delay permanence and stability for H.B. (See In re 

Ernesto R., supra, 230 Cal.App.4th at pp. 223-224 [“[g]ranting a 

section 388 petition would delay selection of a permanent home 

and not serve the . . . best interests [of the child],” who “has been 

in the care of his foster parents for the majority of his life and is 

bonded with them”]; In re J.C., supra, 226 Cal.App.4th at p. 526 

[mother “did not establish [the child’s] need for permanency and 

stability would be advanced by an order returning [her] to [the 

mother’s] care” because the maternal aunt, who had assumed full 

responsibilities for raising the child since her birth, “was the only 

constant and stable parent [the child] had ever known”].)
15

T.P. also argues that, “[w]ith few exceptions, [she] 

maintained regular visits with” H.B. The facts are to the 

contrary. As discussed, T.P. stopped visiting H.B. for seven 

months in 2017, and in 2018 she again disappeared from H.B.’s 

life for seven weeks when the Department informed T.P. her 

visits with H.B. would be monitored. A third unexplained gap in 

visitation occurred in the two months leading up to T.P.’s

incarceration in October 2018. These numerous and lengthy

lapses in visits created instability in H.B.’s life and weighed

against granting T.P. additional reunification services. (Cf. In re 

J.M., supra, 50 Cal.App.5th at p. 850 [trial court abused its 

discretion in denying the mother’s section 388 petition for 

additional reunification services because the mother “did what 

the court asked of her,” “never stopped visiting her son [and] 

never stopped asking for overnight visits and placement in her 

home,” which showed “a tremendous level of initiative and 

dedication, and suggests that it would be in [the child’s] best 

interests to be placed with her”].) 

H.B. has lived with the uncertainty of foster care for more 

than four years, which for her is literally a “lifetime” (In re 

Marilyn H., supra, 5 Cal.4th at p. 310). H.B.’s interest in 

permanency and stability, which the court deferred for a 

considerable amount of time to give T.P. a second chance at 

resolving her drug addiction and substance abuse issues,

outweighed T.P.’s interest in a last-minute reinstatement of 

reunification services. (See id. at p. 309 [“[t]he parent is given a 

reasonable period of time to reunify and, if unsuccessful, the 

child’s interest in permanency and stability takes priority”]; D.T. 

v. Superior Court (2015) 241 Cal.App.4th 1017, 1034 [“Our 

juvenile court law . . . shift[s] the emphasis of the proceedings 

over time from the goal of preserving the family at the outset to 

that of protecting and promoting the best interests of the child if 
16

efforts at reunification produce unsatisfactory results or drag on 

too long.”]; In re Edward H., supra, 43 Cal.App.4th at p. 594 [“the 

prospect of an additional six months of reunification to see if the 

mother would and could effectively separate from the father 

would not have promoted stability for the children and thus 

would not have promoted their best interests”].)

DISPOSITION

The order denying T.P.’s petition under section 388 is 

affirmed.

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.