Filed 10/29/15 In re L.G. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re L.G., a Person Coming Under the 

Juvenile Court Law.

 B263718

 (Los Angeles County

 Super. Ct. No. CK70497)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent,

v.

MAYRA G.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Robert S. 

Draper, Judge. Affirmed.

______

Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Mary C. Wickham, Interim County Counsel, Dawyn R. Harrison, Assistant 

County Counsel, Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and 

Respondent.

______
2

Mother Mayra G. appeals from the order denying her Welfare and Institutions 

Code section 3881petition and terminating her parental rights pursuant to section 366.26. 

Mother contends that the juvenile court should have granted her section 388 petition to 

provide her with reunification services with respect to her son L.G. We disagree and 

affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

1. Adjudication of the Amended Section 300 Petition and Disposition

On June 25, 2013, pursuant to a juvenile court order, the Department of Children 

and Family Services (DCFS) detained the child, then four months old, and placed him 

with a foster care family. On September 23, the court sustained an amended section 300, 

subdivision (b), petition against mother, alleging: (1) Mother “has a history of illicit drug 

use and is a current user of cocaine, amphetamine and marijuana, which renders the 

mother incapable of providing regular care of the child. On prior occasions in 2013, the 

mother was under the influence of cocaine, amphetamine and marijuana, while the child 

was in the mother’s care and supervision. On 06/18/2013, the mother had a positive 

toxicology screen of cocaine, amphetamines and marijuana. The mother has a criminal 

history of a conviction of Possession of [a] Controlled Substance. The child’s [half-] 

siblings, [one born July 28, 2004 and the other born December 17, 2008], received 

Permanent Placement Services, due to the mother’s illicit drug use. Such illicit drug use 

on the part of the mother endangers the child’s physical health and safety and places the 

child at risk of physical harm and damage”; and (2) “[F]ather . . . and mother . . . placed 

the child . . . in an endangering situation. The endangering situation consisted of the 

mother punching the father on [the] face and head while the father had the child . . . in 

his arms. On a prior occasion, the father slapped the mother with an open hand and 

threatened her with [a] knife in the presence of the child. Subsequently the father was 

arrested. The parents failed to protect the child in that they remained in a relationship. 

Such a detrimental and endangering situation established by the parents endangers the 

 

1

Statutory references are to the Welfare and Institutions Code.
3

child’s physical and emotional health and safety and creates a detrimental home 

environment, placing the child at risk of physical and emotional harm and damage.”2

The court ordered the child to remain in his placement and continued the matter to 

March 24, 2014, for mother’s disposition hearing.

DCFS submitted a report in advance of the March 24 hearing in which it stated 

that “mother had not made any contact with the foster parents for visits or to check on 

the child since the termination of her inpatient program at the Women’s Residential 

Recovery Center on 11/29/2013. The mother had not made any contact with DCFS until 

January 2014 when she was provided with counseling, substance abuse, domestic 

violence, parenting and shelter referrals. The mother was also provided with a bus pass 

and was reminded about her Pacific Toxicology Testing. The mother was also referred 

to another inpatient program[;] however she was not accepted due to a language 

barrier. The mother has not made any contact with DCFS since mid January 2014.” 

At the March 24 hearing, after reviewing the DCFS reports and listening to mother’s 

testimony, the juvenile court denied mother reunification services under section 361.5, 

subdivision (b).3 At a review hearing on April 22, the court terminated father’s 

 

2

The juvenile court also sustained a section 300, subdivision (b), allegation against 

father stating that he “has a history of illicit drug use and is a current user of cocaine and 

marijuana, which renders the father incapable of providing regular care of the child. On 

prior occasions in 2013, the father was under the influence of cocaine and marijuana, 

while the child was in his . . . care and supervision. On 06/18/2013, the father had a 

positive toxicology screen of cocaine. Such illicit drug use on the part of the father 

endangers the child’s physical health and safety and places the child at risk of physical 

harm and damage.”

3

The juvenile court denied mother reunification services under section 361.5, 

subdivisions (b)(10), (b)(11) and (b)(13). Those provisions allow for the denial of 

reunification services when the court finds by clear and convincing evidence, among 

other reasons, “[t]hat the court ordered termination of reunification services for any 

siblings or half siblings of the child because the parent or guardian failed to reunify with 

the sibling or half sibling after the sibling or half sibling had been removed from that 

parent or guardian pursuant to Section 361 and that parent or guardian is the same parent 

or guardian described in subdivision (a) and that, according to the findings of the court, 

this parent or guardian has not subsequently made a reasonable effort to treat the 
4

reunification services, which had been in effect for more than six months, and set the 

matter for a section 366.26 hearing on August 19. 

2. Mother’s Section 388 Petition and Termination of Parental Rights

On August 19, mother filed a section 388 petition, asking the juvenile court to 

grant her reunification services or order the child placed with her. Mother presented 

evidence that she had been enrolled in a substance abuse and parenting program since 

April 18, “showing active participation[] and . . . engaging in the recovery process.” 

She provided six urine samples, as of July 10, all of which were negative, and “appears 

to accept the consequences of her substance abuse usage; continued participation is still 

needed at this moment.”

In the report prepared for the section 366.26 hearing, DCFS indicated that mother 

did not visit the child from November 2013 to May 2014. The foster parents had “a 

very strong attachment” to the child and “expressed a strong motivation to adopt him 

and make him a permanent part of their home.” The child, who had lived with the 

foster parents for more than a year since the age of four months, was “attached to the 

[foster parents] . . . .” He “continue[d] to do well in the home with no reported issues or 

concerns.” DCFS recommended termination of parental rights, freeing the child for 

adoption by the foster parents.

 

problems that led to removal of the sibling or half sibling of that child from that parent or 

guardian” (§ 361.5, subd. (b)(10)); “[t]hat the parental rights of a parent over any sibling 

or half sibling of the child had been permanently severed, and this parent is the same 

parent described in subdivision (a), and that, according to the findings of the court, 

this parent has not subsequently made a reasonable effort to treat the problems that 

led to removal of the sibling or half sibling of that child from the parent” (§ 361.5, 

subd. (b)(11)); and “[t]hat the parent or guardian of the child has a history of extensive, 

abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered 

treatment for this problem during a three-year period immediately prior to the filing of 

the petition that brought that child to the court's attention, or has failed or refused to 

comply with a program of drug or alcohol treatment described in the case plan required 

by Section 358.1 on at least two prior occasions, even though the programs identified 

were available and accessible” (§ 361.5, subd. (b)(13)).
5

DCFS responded to mother’s section 388 petition, recommending that the court 

deny it. DCFS reported that mother’s “[f]our months of services [since April 2014] is 

clearly not enough time to display progress or growth addressing case issues given 

mother’s lengthy substance abuse history. [¶] The court is reminded that mother has a 

pattern of enrolling in outpatient/inpatient substance abuse programs and exiting the 

programs per her own will after a couple of months of participation. Mother has had 

sufficient time to successfully complete a substance abuse program, as the mother was in 

an inpatient substance abuse program at Mariposa Recovery Center, and mother chose to 

exit the program on 11/30/13. [¶] The mother has a history of extensive, abusive, and 

chronic use of drugs or alcohol, she has resisted prior court-ordered treatment for this 

problem during a three-year period, immediately prior to the filing of the petition that 

brought th[e] child to the court’s attention, or has failed or refused to comply with a 

program of drug and/or alcohol treatment described in the case plan. [¶] In addition, 

mother has [an] unresolved history of domestic violence with . . . father . . . that she 

has not addressed. According to father, . . . he and the mother . . . are in a romantic 

relationship. Mother is currently pregnant with [father’s] child. [Father] disclosed that 

[i]n 5/2014, he and mother engaged in a domestic violence altercation where law 

enforcement was called. It is evident that father and mother continue to engage in 

domestic violence disputes . . . .” Mother continued to participate in her program and as 

of August 14 had 12 negative urine tests.

The juvenile court continued the August 19 section 366.26 hearing. In a status 

report, filed on October 21, DCFS reported that the child “continue[d] to do well” in the 

care of the foster parents, and they desired to adopt him. He had a “positive emotional 

attachment” with them. Mother had her baby on November 1 and, after leaving the 

hospital, stayed at the Missionaries of Charity with the baby. As of November 17, 

mother completed her parenting class and the drug program and enrolled in a mental 

health and substance abuse program. Her drug program counselor recommended she 

continue on a voluntary basis in aftercare treatment. At a hearing on October 21, mother 

and father were observed in the court lobby in a verbal argument. Father told the social
6

worker that they argued and “he then grabbed mother by the sweater and requested 

that mother stop screaming at him as it is not appropriate given that they are at court.” 

Mother denied that she and father were arguing and said she did not raise her voice

at father. The foster parents were approved as adoptive parents for the child.

In a report filed on January 14, 2015, DCFS reported that mother was admitted 

into a residential substance abuse program on January 6 and then discharged two days 

later. The clinical director recommended that mother receive a mental health evaluation, 

as she “shows significant mental health challenges.” Mother’s judgment “is impaired, 

leading her to make unhealthy[,] impulsive decisions that will compromise her sons’ 

welfare. [Mother] is full of denial of her bad choices in life and the circumstances that 

are affecting her today[;] she blames others for her situations.” Mother was not honest 

with the clinical director and had two outbursts while at the residential center. The 

Missionaries of Charity permitted mother to live there with her new baby for one week. 

Mother stayed at the center for part but not all of the week and said she was going to live 

with her aunt, yet she did not have the aunt’s address. Mother then reported that she was 

renting a room in a house. The social worker visited that woman, and the woman and 

mother had a dispute regarding father. Mother yelled at the woman, and the woman 

believed that mother was lying. Mother missed three of her last four drug tests; she 

continued to participate in her aftercare treatment and the most recent substance abuse 

program. She enrolled in a domestic violence support group on February 5 and 

participated in four of 26 classes.

On March 4, after numerous continuances, the juvenile court considered mother’s 

section 388 petition, as well as one filed by father asking for reinstatement of his 

reunification services, and held a hearing under section 366.26. The court also 

considered a motion filed by the foster parents to become the child’s de facto parents. 

The court granted the foster parents status as de facto parents. According to the court, 

“the important part is that [the child] has lived with these custodians for a very long 

period of time. It is clear to me from the reports [the child] has, in fact, formed a bond 

with the de facto parents, so the de facto parent motion is granted . . . .”
7

The juvenile court then commenced the hearing on mother’s, as well as father’s,

section 388 petitions. As to mother, a certified addiction counselor testified that mother 

had completed a six-month primary care program at his facility and was continuing with 

after care. He said that mother had acquired housing and was “doing great” in her 

programs but not ready to stop. Mother enrolled in a domestic violence program in 

February. The court continued the section 388 hearing to April 17. On that day, mother 

testified that she was visiting the child once a week and wanted him returned to her 

custody. Mother’s counsel argued for reunification services for mother or the child 

returned to her care, while DCFS and the child’s counsel asserted that the court should 

deny the section 388 petition. 

The juvenile court denied the petition. According to the court, mother has 

“changing circumstances. I don’t believe mother has quite gotten to changed 

circumstances. But for long periods of time when the parents did not visit [the child], 

[the child] has been in placement with the de facto parents since September of 2013. 

He has bonded with them and, in terms of the best interests of [the child], there just 

comes a point in time when the court has to consider that best interest rather than the 

parents’ interest, and so I find that it would not be in [the child’s] best interest to grant 

the parents’ 388, and there are no changed circumstances which justify granting those 

petitions, so those petitions are denied.”

Proceeding to address section 366.26, mother’s counsel stated that she objected to 

the termination of parental rights but, “based on the testimony and evidence before the 

[juvenile] court,” did not believe she had an offer of proof to establish an exception to 

termination. DCFS, with the child’s counsel in agreement, recommended termination of 

parental rights for mother and father with the matter proceeding to adoption. The court 

found clear and convincing evidence that the child is adoptable and that no exceptions to 

termination applied. The court terminated mother’s and father’s parental rights as to the 

child. The court continued its jurisdiction over mother’s new baby and allowed him to 

remain placed with mother under DCFS supervision.
8

Mother appealed from the order. (Nahid H. v. Superior Court (1997) 

53 Cal.App.4th 1051, 1068 [order denying § 388 petition appealable]; In re Benjamin E.

(1996) 44 Cal.App.4th 71, 76 [order terminating parental rights under § 366.26 

appealable under § 395 as an order after judgment].)4

DISCUSSION

Mother contends that the juvenile court abused its discretion by denying her 

section 388 petition because she demonstrated changed circumstances and granting 

the petition to afford her reunification services would be in the child’s best interests. 

We disagree.

Section 388 authorizes modification of orders in juvenile dependency proceedings. 

Under subdivision (a) of the statute, a parent may petition the court on the basis of a 

change of circumstance or new evidence for a hearing to change, modify or set aside a 

previous court order.

5

 The provision is “an ‘escape mechanism’ when parents complete 

a reformation in the short, final period after the termination of reunification services 

but before the actual termination of parental rights.” (In re Kimberly F. (1997) 

56 Cal.App.4th 519, 528, quoting In re Marilyn H. (1993) 5 Cal.4th 295, 309.) 

Section 388 requires the parent to show that a change of circumstance exists 

and that a different order is in the child’s best interests. (In re Casey D. (1999) 

70 Cal.App.4th 38, 47.) A parent who files a petition at the time of the section 366.26 

hearing when he or she has no reunification services has a particularly weighty burden 

because at that point “a parent’s interest in the care, custody and companionship of 

the child is no longer paramount” and “the focus shifts to the needs of the child for 

 

4

The juvenile court denied father’s section 388 petition and terminated his parental 

rights to the child. Father did not appeal and thus is not a party to this matter.

5

Section 388, subdivision (a), provides, “Any parent or other person having an 

interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of 

change of circumstance or new evidence, petition the court in the same action in which 

the child was found to be a dependent child of the juvenile court . . . for a hearing to 

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

jurisdiction of the court.”
9

permanency and stability.” (In re Angel B. (2002) 97 Cal.App.4th 454, 464.) In 

evaluating the child’s best interests, courts consider: “(1) the seriousness of the problem 

[that] led to the dependency, and the reason for any continuation of that problem; (2) the

strength of relative bonds between the dependent children to both parent and caretakers; 

and (3) the degree to which the problem may be easily removed or ameliorated, and 

the degree to which it actually has been.” (In re Kimberly F., supra, 56 Cal.App.4th

at p. 532.) The juvenile court has “sound discretion” in deciding a section 388 petition, 

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

discretion.” (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)

The juvenile court’s denial of Mother’s section 388 petition was not an abuse of 

discretion. Mother filed the petition on the date of her scheduled section 366.26 hearing. 

The hearing was not held until more than six months later. Although mother had made 

progress in her substance abuse treatment, she continued to have disputes with father and 

to deny or minimize the issues. Thus, mother did not establish changed circumstances as 

statutorily required for the granting of her section 388 petition. (In re Casey D., supra, 

70 Cal.App.4th at pp. 48-49 [mother’s circumstances were changing but not changed 

when she had an extensive history of using drugs, entering programs and then relapsing 

and had been drug free for about five months as of the hearing on her § 388 petition].)

In any case, mother did not establish that granting her section 388 petition was in 

the child’s best interests. Mother’s progress with sobriety was commendable, but it came 

too late for the child. At the time of the hearing, the child was two years old and had not 

been in her care since the age of four months. He lived with his foster care parents 

during the entire dependency proceedings, and DCFS had approved them as adoptive 

parents. He was thriving in their home. Mother’s drug problem was serious and long 

lasting, and she had domestic violence issues with father as well. Under these 

circumstances, and with a child under the age of two who had been detained for more 

than eighteen months, the juvenile court was within its discretion to conclude that

moving toward permanency was in the child’s best interests. (In re C.J.W. (2007) 

157 Cal.App.4th 1075, 1081 [no showing that granting § 388 petition to offer 
10

reunification services to parents would be in children’s best interests, despite parents’ 

recent efforts at rehabilitation, when children, who were one and two years old at 

detention, were in a prospective adoptive home and should not be “depriv[ed] . . . of a 

permanent, stable home in exchange for an uncertain future”]; In re Edward H. (1996) 

43 Cal.App.4th 584, 594 [“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” 

when change of order requested on eve of § 366.26 hearing].)

Mother makes no separate argument regarding the termination of parental rights 

except to say that, if the order denying her section 388 petition is reversed, her parental 

rights should be reinstated. Given our conclusion that the juvenile court did not abuse its 

discretion in denying mother’s section 388 petition, no basis exists to disturb the 

termination of parental rights.

DISPOSITION

The order denying Mother’s section 388 petition and terminating parental rights is 

affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

JOHNSON, J.