1 Filed 4/10/14 In re K.W. CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

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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), pare nts of minors K.W., J.W., and D.W., appeal after the juvenile court denied moth er’s petition for modification, and also set a2 permanency planning hearing regarding K.W. and J.W. (Welf. & Inst. Code, §§ 388, 366.26, 395.) 1 Father purports to appeal from the finding s and orders regarding all three children, while mother appeals from the findings and or ders 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 so ught placement of D.W. in her custody or resumption of reunification services). We c onclude that given mother’s history of substance abuse, the juvenile court did no t abuse its discretion in denying mother’s petition for modification.
BACKGROUND On April 22, 2009 , the Sacramento Co unty Department of Health and Human Services (Department) filed section 300 pe titions on behalf of minors D.W. (then age seven), J.W. (then age five), and K.W. (then age one), base d 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 th e 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 ar e to the Welfare and Institutions Code.3 November 2007 for physically assaulting mother. Father’s extensive criminal history included assault to commit rape, kidnapping w ith the use of a firearm, battery, theft, failure to register as a sex offender, and in flicting corporal injury on a cohabitant. The juvenile court sustained the petiti ons and provided mo ther with family
maintenance services. Father was found to be “the non-offending, non-custodial parent not seeking services or pla cement of the children.” The minors had not visited father since his incarceration and the ju venile court ordered no cont act, 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 particip ate in services and, on July 1, 2010, the juvenile court
terminated reunification services . In October 2010, the soci al worker reported that all three minors were displaying a ggression and K.W.’s speech wa s delayed. D.W. and J.W. were in therapy and D.W. was demonstrating sexualized behavior toward his siblings. In January 2011, the soci al 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 hyperactiv e 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. resi ding in a different home than his siblings. The placement change took pl ace on January 7, 2011. The juvenile court held a hearing on Apr il 21, 2011, to reconsider whether father
should have visitation. Father had been released in January, bu t 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 dea ling with major mental health issues in therapy. The juvenile court made no change to the existing orders.4 Father was released from custody on May 24, 2011, and, on August 11, 2011, he filed section 388 petitions requesting reunifica tion services and a gene ral visitation order. The juvenile court denied th e petitions because they did no t state new evidence or a change of circumstances and did not pr omote the minors’ best interests. On May 8, 2012, mother f iled section 388 petitions for modification seeking return of the minors to her custody or, in the altern ative, the reopening of reunification services. A hearing was scheduled for J une 21, 2012, and subsequen tly continued to commence on August 30, 2012. On June 6, 2012, the Department determin ed that K.W. and J.W. were specifically adoptable and decided to recommend the se tting 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 a ggression problems and remain ed a child with emotional
needs. The social worker was uncertain wh ether D.W. “could sustain the disappointment
of a failed reunification effort with his mothe r.” D.W. was determined to be specifically adoptable but his current home was not in terested in providing permanency. On August 3, 2012, father filed ne w section 388 petitions for modification requesting reunification services and visitation. The juven ile court denied the petitions on the same day without scheduling a hearin g. In denying the pe titions, the juvenile court found they did not iden tify new evidence or a change of circumstances, and the proposed change in order did not promote th e 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 op inion 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 particip ating in substance5 abuse counseling since Octobe r 2011. The counseling incl uded group and individual
sessions. The counselor said mother was ma king substantial progress toward taking responsibility for her actions, was learning coping skills, and was actively participating in her recovery. Mother had been testing thre e to four times a month since October 2011 and had been testing ne gative. Mother admitted a lapse in February 2012, but said she had not used drugs since then . Her lapse was due to conc ern 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. Moth er was diagnosed with mild depression and took Prozac for anxiety, but she testified the medi cation was not really helping her. Mother’s substance abuse coun selor 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 he r with financial assistance. Nonetheless, mother continued to maintain the relationship. Mother had an earlier dependency case file d in 1996 involving her older children, and she failed to reunify. Mother attende d 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. Mo ther participated in four other treatment programs, maintaining periods of sobriety before relapsing. The social worker said reports confir med 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 rega rding the minors’ mental and emotional status and progress.6 The juvenile court denied mother’s sect ion 388 petitions, finding that mother had failed to show changed circumstances or th at 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 cred ibility 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 purporti ng 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 fath er 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 app ealable at any time unless all of the following apply: [¶] (A) A petition for extraordinar y 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 r ecord. [¶] (C) The petition for extraordinary writ review was summarily denied or otherwis e 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 fo und K.W. and J.W. adoptable, found no exception to adoption applied, an d terminated parental rights as to them. Father appealed from those orders. This court reversed and remanded the matter for th e juvenile court to make appropriate findings. ( In re K.W. et al. (Feb. 6, 2014, C073743) [nonpub. opn.].)7 that referral orders be challenged by wr it before the section 366.26 hearing.” ( Anthony D

. v. Superior Court (1998) 63 Cal.App.4t h 149, 156.) Because the trial court
must conduct the section 366. 26 hearing promptly, the traditi onal rule of appealability is ineffective in providing the parties with me aningful review before the trial court has selected a permanent plan. ( Id . at pp. 155-156.) Accordingly, father’s appeal in Sacram ento County case No s. JD229602 (K.W.) and JD229603 (J.W.) from the September 18, 20 12, 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 appealab le order before this court is the September 18, 2012, order in Sacramento County case No. JD229604 (D.W.), from whic h both parents appealed. We will dismiss father’s appeal from the s ubject order in Sacramento County case Nos. JD229602 (K.W.) and JD229603 (J.W.).
II In addition, father’s app eal regarding D.W. must be dismissed because it is moot. In his opening brief, father asserted th at the juvenile court erred in denying him supervised visitation with D.W. But the ju venile court subsequen tly entered an order granting him such visitation. The Department as ked this court to take judicial notice of a July 18, 2013 minute order indicating that fath er shall have regular visitation with D.W. Having received no opposition, we will gr ant the request for judicial notice.
The visitation order renders father’s contention moot. “[A]n action which originally was based upon a justiciable controve rsy cannot be maintain ed on appeal if the questions raised therein have become m oot by subsequent acts or events.” ( Finnie v.8 Town of Tiburon (1988) 199 Cal.App.3d 1, 10.) When, as here, subsequent events make it impossible for this court to grant the a ppellant any effective relief, dismissal is appropriate. ( Ibid .; In re Jessica K. (2000) 79 Cal.App. 4th 1313, 1315-1317.) Accordingly, we will dism iss 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 se rvices). Mother claims she established changed circumstances and furt her established that granting the petition
would be in the best interest of D.W. Section 388 permits modi fication 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 th e burden of proof by a prepon derance 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 in terests of the child at this juncture, the juvenile court looks not to th e parent’s interests in reunifi cation but to the needs of the child for permanen ce 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 discre tion to decide that a9 child’s interest in stability ha s come to outweigh the natural pa rent’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 th e sound discretion of the juvenile court and its decision will not be disturbed on ap peal 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 employ ment. But mother’s history of substance
abuse dates back to at least 199 6. She had only seven months of sobriety at the time of the hearing and was still r eceiving substance abuse counseling. While her substance abuse case manager reported she was doing well, mother had relapsed numerous times after treatment in the past, ev en after maintaining a year a nd a half of sobriety, and had just recently relapsed again after n early four months of sobriety. Additionally, mother lived in the same place and associ ated with the same people with whom she used drugs in the past, de spite acknowledging that being around crack cocaine and the people with whom she used drugs are “tri ggers” for her. Mother also chose to continue a relationship against the advice of her substanc e abuse counselor. Even a showing of great effort to make improvements will not necessarily be persuasive when a parent has an ex tensive 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 ol d 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 pe tition when the mother with an extensive histor y of drug use had been drug free for only a fe w months and had not comple ted her treatment program];
In re Amber M. (2002) 103 Cal.App.4th 681, 686 [no abuse of discretion in denying a10 section 388 petition where the parent establis hed only a 372–da y period of abstinence].) Considering mother’s sobriety in light of her substance abus e history, the juvenile court did not abuse its discretion in deny ing 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. JD 229604 (D.W.) is dismissed as moot. The September 18, 2012, orders of the j uvenile court in Sacr amento County case No. JD229604 (D.W .) are affirmed.

M AURO , J.

We concur:

HULL , Acting P. J.

DUARTE , J.