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Filed 4/10/14 In re K.W. CA3 

NOT TO BE PUBLISHED 

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 This opinion has not been certified for publication 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 

THIRD APPELLATE DISTRICT 

(Sacramento) 

---- 

In re K.W. et al., Persons Coming Under the Juvenile 

Court Law. 

C072101 

SACRAMENTO COUNTY DEPARTMENT OF 

HEALTH AND HUMAN SERVICES, 

 Plaintiff and Respondent, 

 v. 

A.W. et al., 

 Defendants and Appellants. 

(Super. Ct. Nos. JD229602, 

JD229603, JD229604) 

 A.W. (father) and Ka.W. (mother), parents of minors K.W., J.W., and D.W., 

appeal after the juvenile court denied mother’s petition for modification, and also set a 
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permanency planning hearing regarding K.W. and J.W. (Welf. & Inst. Code, §§ 388, 

366.26, 395.)1 

 Father purports to appeal from the findings and orders regarding all three children, 

while mother appeals from the findings and orders regarding D.W. only. Because the 

juvenile court set a section 366.26 hearing as to K.W. and J.W., and father did not file a 

writ petition, we will dismiss his appeal from the findings and orders regarding K.W. and 

J.W. The appeal is taken from nonappealable orders. 

 Regarding D.W., father contends the juvenile court erred in denying him 

supervised visitation. That contention is now moot, however, given that the juvenile 

court has since granted father visitation with D.W. Accordingly, we will dismiss father’s 

appeal regarding D.W. 

 As for mother’s appeal regarding D.W., she contends the juvenile court erred in 

denying her petition for modification (which sought placement of D.W. in her custody or 

resumption of reunification services). We conclude that given mother’s history of 

substance abuse, the juvenile court did not abuse its discretion in denying mother’s 

petition for modification. 

BACKGROUND 

 On April 22, 2009, the Sacramento County Department of Health and Human 

Services (Department) filed section 300 petitions on behalf of minors D.W. (then age 

seven), J.W. (then age five), and K.W. (then age one), based on mother’s substance abuse 

and failure to protect and care for the minors. 

 A.W. is the biological father of D.W. and J.W. and had a prior judgment of 

paternity as to those two minors. He is not the biological father of K.W. but the juvenile 

court found him to be the minor’s presumed father. A.W. had been incarcerated since 

 

1 Undesignated statutory references are to the Welfare and Institutions Code.
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November 2007 for physically assaulting mother. Father’s extensive criminal history 

included assault to commit rape, kidnapping with the use of a firearm, battery, theft, 

failure to register as a sex offender, and inflicting corporal injury on a cohabitant. 

 The juvenile court sustained the petitions and provided mother with family 

maintenance services. Father was found to be “the non-offending, non-custodial parent 

not seeking services or placement of the children.” The minors had not visited father 

since his incarceration and the juvenile court ordered no contact, finding visitation with 

him would jeopardize the minors’ safety. 

 Mother did not participate in services and, on January 14, 2010, the minors were 

ordered removed from her home. Mother was provided reunification services. 

 Mother still did not participate in services and, on July 1, 2010, the juvenile court 

terminated reunification services. In October 2010, the social worker reported that all 

three minors were displaying aggression and K.W.’s speech was delayed. D.W. and J.W. 

were in therapy and D.W. was demonstrating sexualized behavior toward his siblings. 

 In January 2011, the social worker assessed that the minors were not generally 

adoptable. K.W. had a significant language delay for which he was receiving services 

and presented as hyperactive and aggressive. J.W. had been a victim of sexual 

activity/behavior and D.W. acted out sexually toward J.W. Only minimal progress on 

these issues had been made in therapy to date. Accordingly, the minors needed to be 

separated in their placement, with D.W. residing in a different home than his siblings. 

The placement change took place on January 7, 2011. 

 The juvenile court held a hearing on April 21, 2011, to reconsider whether father 

should have visitation. Father had been released in January, but by the time of the 

hearing he was incarcerated again. K.W. and J.W. had recently been moved to a new 

foster home and J.W. and D.W. were still dealing with major mental health issues in 

therapy. The juvenile court made no change to the existing orders. 
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 Father was released from custody on May 24, 2011, and, on August 11, 2011, he 

filed section 388 petitions requesting reunification services and a general visitation order. 

The juvenile court denied the petitions because they did not state new evidence or a 

change of circumstances and did not promote the minors’ best interests. 

 On May 8, 2012, mother filed section 388 petitions for modification seeking return 

of the minors to her custody or, in the alternative, the reopening of reunification services. 

A hearing was scheduled for June 21, 2012, and subsequently continued to commence on 

August 30, 2012. 

 On June 6, 2012, the Department determined that K.W. and J.W. were specifically 

adoptable and decided to recommend the setting of a section 366.26 hearing for those 

minors. As for D.W., although he had shown remarkable progress in his current 

placement, he still had peer aggression problems and remained a child with emotional 

needs. The social worker was uncertain whether D.W. “could sustain the disappointment 

of a failed reunification effort with his mother.” D.W. was determined to be specifically 

adoptable but his current home was not interested in providing permanency. 

 On August 3, 2012, father filed new section 388 petitions for modification 

requesting reunification services and visitation. The juvenile court denied the petitions 

on the same day without scheduling a hearing. In denying the petitions, the juvenile 

court found they did not identify new evidence or a change of circumstances, and the 

proposed change in order did not promote the best interests of the minors. Father 

appealed from the juvenile court’s denial of his petitions. This court affirmed the 

juvenile court’s orders in an opinion filed on June 26, 2013. (In re K.W. et al. (June 26, 

2013, C071770) [nonpub. opn.].) The remittitur issued on September 20, 2013. We take 

judicial notice of our opinion in that case. (Evid. Code, §§ 452, subd. (d); 459, subd. (a).) 

 The hearing on mother’s petitions for modification commenced on August 30, 

2012, in conjunction with the section 366.3 review hearing. Mother presented evidence 

that she had completed a parenting program and had been participating in substance 
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abuse counseling since October 2011. The counseling included group and individual 

sessions. The counselor said mother was making substantial progress toward taking 

responsibility for her actions, was learning coping skills, and was actively participating in 

her recovery. Mother had been testing three to four times a month since October 2011 

and had been testing negative. Mother admitted a lapse in February 2012, but said she 

had not used drugs since then. Her lapse was due to concern about finances and her 

socializing with an acquaintance who stopped by her house. Mother also testified that 

she had been visiting the minors twice a month and that her visits were consistent and 

appropriate. 

 The Department presented evidence that mother was dropped from mental health 

counseling due to her failure to attend appointments. Mother was diagnosed with mild 

depression and took Prozac for anxiety, but she testified the medication was not really 

helping her. Mother’s substance abuse counselor believed mother’s relationships with 

men were drug triggers for her and that it was unwise for mother to continue her 

relationship with the man who was providing her with financial assistance. Nonetheless, 

mother continued to maintain the relationship. 

 Mother had an earlier dependency case filed in 1996 involving her older children, 

and she failed to reunify. Mother attended a residential treatment program for seven 

months and completed the program. She was substance free for about a year and a half 

but then began using crack cocaine again. Mother participated in four other treatment 

programs, maintaining periods of sobriety before relapsing. 

 The social worker said reports confirmed mother’s visits were positive for the 

minors. But there were numerous times when mother would whisper to the minors; she 

also had inappropriate discussions with the children about their possible return to her 

custody, getting their hopes up. 

 In addition, evidence was presented regarding the minors’ mental and emotional 

status and progress. 
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 The juvenile court denied mother’s section 388 petitions, finding that mother had 

failed to show changed circumstances or that granting the requests would be in the 

minors’ best interests. In making its ruling, the juvenile court also expressed that it had 

difficulty with mother’s credibility and honesty, as well as her overly simplistic approach 

to relapse triggers.2

DISCUSSION 

I 

 Father’s appeal regarding K.W. and J.W. must be dismissed because it is taken 

from nonappealable orders. 

 Father filed a notice of appeal purporting to appeal from the September 18, 2012, 

findings and orders with respect to K.W., J.W., and D.W. Mother filed a notice of appeal 

from the September 18, 2012, findings and orders with respect to D.W. only. But at the 

conclusion of the September 18, 2012, hearing, the juvenile court set a section 366.26 

hearing as to K.W. and J.W. and advised father and mother of their right to file a writ 

petition. Neither parent filed a writ petition.

 Section 366.26, subdivision (l)(1) states: “An order by the court that a hearing 

pursuant to this section be held is not appealable at any time unless all of the following 

apply: [¶] (A) A petition for extraordinary writ review was filed in a timely manner. 

[¶] (B) The petition substantively addressed the specific issues to be challenged and 

supported that challenge by an adequate record. [¶] (C) The petition for extraordinary 

writ review was summarily denied or otherwise not decided on the merits.” In adopting 

section 366.26, subdivision (l), “the Legislature has unequivocally expressed its intent 

 

2 On May 2, 2013, the juvenile court found K.W. and J.W. adoptable, found no 

exception to adoption applied, and terminated parental rights as to them. Father appealed 

from those orders. This court reversed and remanded the matter for the juvenile court to 

make appropriate findings. (In re K.W. et al. (Feb. 6, 2014, C073743) [nonpub. opn.].) 
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that referral orders be challenged by writ before the section 366.26 hearing.” 

(Anthony D. v. Superior Court (1998) 63 Cal.App.4th 149, 156.) Because the trial court 

must conduct the section 366.26 hearing promptly, the traditional rule of appealability is 

ineffective in providing the parties with meaningful review before the trial court has 

selected a permanent plan. (Id. at pp. 155-156.) 

 Accordingly, father’s appeal in Sacramento County case Nos. JD229602 (K.W.) 

and JD229603 (J.W.) from the September 18, 2012, hearing must be dismissed as taken 

from nonappealable orders. (In re Charmice G. (1998) 66 Cal.App.4th 659, 664-671; 

§ 366.26, subd. (l).) In mother’s reply brief, she asked us to construe her notice of appeal 

broadly to include Sacramento County case Nos. JD229602 (K.W.) and JD229603 

(J.W.). Even if we were to consider a request made in her reply brief, she did not file a 

writ petition. 

 Thus, any asserted issues regarding K.W. or J.W. are not subject to our review in 

this appeal. The only appealable order before this court is the September 18, 2012, order 

in Sacramento County case No. JD229604 (D.W.), from which both parents appealed. 

We will dismiss father’s appeal from the subject order in Sacramento County case 

Nos. JD229602 (K.W.) and JD229603 (J.W.). 

II

 In addition, father’s appeal regarding D.W. must be dismissed because it is moot. 

 In his opening brief, father asserted that the juvenile court erred in denying him 

supervised visitation with D.W. But the juvenile court subsequently entered an order 

granting him such visitation. The Department asked this court to take judicial notice of a 

July 18, 2013 minute order indicating that father shall have regular visitation with D.W. 

Having received no opposition, we will grant the request for judicial notice. 

 The visitation order renders father’s contention moot. “[A]n action which 

originally was based upon a justiciable controversy cannot be maintained on appeal if the 

questions raised therein have become moot by subsequent acts or events.” (Finnie v. 
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Town of Tiburon (1988) 199 Cal.App.3d 1, 10.) When, as here, subsequent events make 

it impossible for this court to grant the appellant any effective relief, dismissal is 

appropriate. (Ibid.; In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1317.) 

 Accordingly, we will dismiss father’s appeal from the September 18, 2012, order 

in Sacramento County case No. JD229604 (D.W.). 

III

 As for mother’s appeal regarding D.W., she contends the juvenile court erred in 

denying her petition for modification (which, as it pertained to D.W., sought placement 

of D.W. in mother’s custody or resumption of reunification services). Mother claims she 

established changed circumstances and further established that granting the petition 

would be in the best interest of D.W. 

 Section 388 permits modification of a dependency order if a change of 

circumstance or new evidence is shown and if the proposed modification is in the best 

interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) “Even after 

the focus has shifted from reunification, the scheme provides a means for the court to 

address a legitimate change of circumstances while protecting the child’s need for prompt 

resolution of his custody status.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) The 

petitioning party has the burden of proof by a preponderance of the evidence. 

(In re Casey D. (1999) 70 Cal.App.4th 38, 48.) 

 The best interests of the child are of paramount consideration when a modification 

petition is brought after termination of reunification services. (In re Stephanie M. (1994) 

7 Cal.4th 295, 317.) In assessing the best interests of the child at this juncture, the 

juvenile court looks not to the parent’s interests in reunification but to the needs of the 

child for permanence and stability. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) 

“[W]hen a child has been placed in foster care because of parental neglect or incapacity, 

after an extended period of foster care, it is within the court’s discretion to decide that a 
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child’s interest in stability has come to outweigh the natural parent’s interest in the care, 

custody and companionship of the child.” (In re Jasmon O. (1994) 8 Cal.4th 398, 419.) 

 A modification petition “is addressed to the sound discretion of the juvenile court 

and its decision will not be disturbed on appeal in the absence of a clear abuse of 

discretion.” (In re Jasmon O., supra, 8 Cal.4th at p. 415.) “It is rare that the denial of a 

section 388 motion merits reversal as an abuse of discretion . . . .” (In re Kimberly F., 

supra, 56 Cal.App.4th at p. 522.) 

 Mother argues that she demonstrated changed circumstances because she 

completed a parenting program, was doing well in her substance abuse counseling 

program, and had recently obtained employment. But mother’s history of substance 

abuse dates back to at least 1996. She had only seven months of sobriety at the time of 

the hearing and was still receiving substance abuse counseling. While her substance 

abuse case manager reported she was doing well, mother had relapsed numerous times 

after treatment in the past, even after maintaining a year and a half of sobriety, and had 

just recently relapsed again after nearly four months of sobriety. 

 Additionally, mother lived in the same place and associated with the same people 

with whom she used drugs in the past, despite acknowledging that being around crack 

cocaine and the people with whom she used drugs are “triggers” for her. Mother also 

chose to continue a relationship against the advice of her substance abuse counselor. 

 Even a showing of great effort to make improvements will not necessarily be 

persuasive when a parent has an extensive history of drug use. (In re C.J.W. (2007) 

157 Cal.App.4th 1075, 1081 [affirming the denial of a section 388 petition when the 

parents’ efforts at drug rehabilitation were only three months old at the time of the 

section 366.26 hearing]; In re Casey D., supra, 70 Cal.App.4th at pp. 47–48 [affirming 

the denial of a section 388 petition when the mother with an extensive history of drug use 

had been drug free for only a few months and had not completed her treatment program]; 

In re Amber M. (2002) 103 Cal.App.4th 681, 686 [no abuse of discretion in denying a 
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section 388 petition where the parent established only a 372–day period of abstinence].) 

Considering mother’s sobriety in light of her substance abuse history, the juvenile court 

did not abuse its discretion in denying the petition for modification. 

DISPOSITION 

 Father’s appeal in Sacramento County case Nos. JD229602 (K.W.) and JD229603 

(J.W.) is dismissed as taken from nonappealable orders. Father’s appeal in Sacramento 

County case No. JD229604 (D.W.) is dismissed as moot. 

 The September 18, 2012, orders of the juvenile court in Sacramento County case 

No. JD229604 (D.W.) are affirmed. 

 MAURO , J. 

We concur: 

 HULL , Acting P. J. 

 DUARTE , J.