Filed 11/14/23 In re Nolan L. CA2/8

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re NOLAN L., a Person Coming 

Under the Juvenile Court Law.

B327022

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

RANDY L.,

Defendant and Appellant.

Los Angeles County

Super. Ct. No. 17CCJP00940B

APPEAL from order of the Superior Court of Los Angeles 

County. Julie Fox Blackshaw, Judge. Affirmed.

Megan Turkat Schirn, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Dawyn R. Harrison, County Counsel, Kim Nemoy, 

Assistant County Counsel, and David Michael Miller, Senior

Deputy County Counsel, for Plaintiff and Respondent.

____________________
2

Appellant Randy L. is the father of minor Nolan L. Nolan’s 

mother is not a party to this appeal. Father appeals denial, after 

a full hearing, of his second Welfare and Institutions Code1

section 388 petition for further reunification services. We 

conclude the juvenile court acted within its discretion in denying 

father’s petition, despite his recent sobriety and progress in his 

drug treatment, given father’s history of relapsing into drug 

abuse. Accordingly, we affirm.

BACKGROUND

Nolan came to the attention of respondent Los Angeles 

County Department of Children and Family Services (the 

Department) in September 2020, when he was just six months 

old. Father, while under the influence of methamphetamine, 

thought he heard a loud bang in his house. He rushed Nolan out 

of the house, drove him to another location, and called law 

enforcement to check on mother. Law enforcement found mother 

safe. She explained “this was the second time father ha[d] left 

the home with [Nolan] due to him hallucinating while on 

methamphetamine.” 

Shortly thereafter, law enforcement took Nolan into 

protective custody under exigent circumstances without a 

warrant. He was placed in the home of Mr. and Ms. B. (the 

B. family), where he has remained ever since. 

The juvenile court exercised jurisdiction under section 300, 

subdivisions (b) and (j). As relevant here, allegations against 

father included that he endangered Nolan by abusing 

methamphetamine (which he used while caring for Nolan); failing 

to protect Nolan from mother’s substance abuse; and failing to 

1 Undesignated statutory references are to the Welfare and 

Institutions Code.
3

address his own mental and emotional problems, including by 

failing to take prescribed psychotropic medications.

Father, who is now in his 40’s, began using drugs when he 

was 16 years old. According to paternal grandfather, father has 

spent his entire adult life cycling through periods of drug abuse

and sobriety. Father notes he was sober for approximately seven 

years—the same amount of time he spent in prison for burglary 

beginning in 2011. Otherwise, at no point has father managed to 

stay sober for a full year. 

Father also has a mental health diagnosis for which he was 

prescribed an antidepressant. Father does not know the 

diagnosis and admitted not taking his prescribed medication as 

instructed. 

The juvenile court removed Nolan from father and mother 

and ordered reunification services. Father’s reunification

services included a full drug and alcohol program, weekly drug 

testing, drug counseling, parenting programs, and conjoint and 

individual counseling. 

At the six-month review hearing in April 2021, the juvenile 

court found the parents had failed to substantially comply with 

their case plans. For his part, father had participated in 

substance abuse and individual counseling, but was terminated 

from conjoint counseling due to excessive absences. Further, 

after generally testing on schedule and receiving only negative 

test results for four months, he stopped submitting to drug tests. 

He admitted he skipped testing because he was using 

methamphetamine. The juvenile court terminated reunification 

services and set a section 366.26 hearing.

Meanwhile, Nolan was thriving in the home of the 

B. family.
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In December 2021, father filed a section 388 petition 

requesting six months of additional family reunification services. 

Father identified as changed circumstances his “substantive 

progress in drug treatment services,” including enrollment in a 

residential substance abuse treatment program and further 

participation in individual counseling and related services. With 

the Department’s support, the juvenile court granted father’s 

petition in February 2022 and ordered return to home as Nolan’s 

permanent plan. 

But in March 2022, father left his sober living facility and 

stopped drug testing. He was terminated from his drug program 

the following month due to excessive absences. He resumed 

using illegal drugs. 

He returned to his sober living facility on June 1, 2022, and 

resumed drug testing. He did not reenroll in individual 

counseling. He did reenroll in his outpatient drug program but

was making slow progress to completion. By July 2022, 

five months into his renewed reunification services, father had 

completed only a quarter of the classes required to receive his 

certificate of completion. 

In August 2022, the juvenile court found father’s progress 

in the court-ordered programs insubstantial, and again 

terminated family reunification services. The court noted 

father’s failure to drug test, his recent reenrollment in a 

substance abuse program, his inconsistent and poor quality of 

visits with Nolan, and his inability to separate from mother, who 

was still using drugs, as some of the reasons continued 

reunification efforts were not in Nolan’s best interests. The court 

set another section 366.26 hearing for December 2022. 

In December 2022, father filed a second section 388 petition 

requesting a third round of family reunification services with 
5

Nolan. As changed circumstances, father identified completion of 

a parenting program and substantial progress in his drug 

treatment programming. He continued to reside in a sober living 

facility. The juvenile court set father’s second section 388 

petition for hearing. 

The Department opposed the petition. It acknowledged

father completed a substance abuse program in December 2022 

and continued participation in individual counseling and other 

services at his sober living facility. However, father declined to 

participate in the after-care program offered at his treatment 

facility and had not participated in any conjoint counseling 

sessions with mother. In the two years Nolan had been with the 

B. family—80 percent of his life—father had failed to complete 

his court-ordered case plan. And all the while, Nolan continued 

to thrive in the care of the B. family. 

The juvenile court denied father’s petition. It commended 

father for his progress but considered his circumstances to be 

merely changing and not truly changed. Concerned father had 

not shown enough progress to warrant another round of 

reunification services, the court determined Nolan’s best interests 

would be served by proceeding to a permanent plan for Nolan and 

the B. family. 

Father timely appealed.

Father reports that, subsequent to his notice of appeal, the 

juvenile court declined to terminate his parental rights on the 

basis that the beneficial parental relationship exception under 

section 366.26, subdivision (c)(1)(B)(i) applied.

2

2 We grant father’s motion for judicial notice of juvenile court 

minute orders purportedly evidencing a finding regarding the 

parental benefit exception. (Evid. Code, § 452, subd. (d), § 459, 
6

DISCUSSION

1. Governing Law

Section 388, subdivision (a)(1), authorizes the parent of a 

dependent child to, “upon grounds of change of circumstance or 

new evidence,” petition the juvenile court “for a hearing to 

change, modify, or set aside any order of court previously made.” 

(Ibid.)

“To support a section 388 petition, the change in 

circumstances must be substantial.” (In re Ernesto R. (2014) 

230 Cal.App.4th 219, 223.) It must be “ ‘of such significant 

nature that it requires a setting aside or modification of the 

challenged prior order.’ ” (In re Jamika W. (1997) 54 Cal.App.4th 

1446, 1451.) 

Moreover, it “ ‘is not enough for a parent to show just a 

genuine change of circumstances under the statute. The parent 

must show that the undoing of the prior order would be in the 

best interests of the child.’ ” (In re D.R. (2011) 193 Cal.App.4th 

1494, 1512.) “[A]fter 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 J.C. (2014) 226 Cal.App.4th 503, 527.)

Changing, but not changed, circumstances do not promote 

the best interests of the child when the proposed modification 

would entail delaying a child’s permanent placement. (In re 

Casey D. (1999) 70 Cal.App.4th 38, 47, 49, disapproved of on 

subd. (a).) The minute orders he attaches make no reference to 

the beneficial relationship exception but do reflect that the 

juvenile court ordered the Department to assess the permanent 

plan of legal guardianship.
7

another ground by In re Caden C. (2021) 11 Cal.5th 614, 636, 

fn. 5.)

2. The Juvenile Court Did Not Abuse Its Discretion in 

Denying Father’s Second Section 388 Petition

Because we review a juvenile court’s denial of a section 388

petition for abuse of discretion (In re Jasmon O. (1994) 8 Cal.4th 

398, 415), the question before us is simple: was the juvenile

court’s denial of father’s section 388 petition arbitrary, capricious

or patently absurd? (See In re Raymundo B. (1988) 

203 Cal.App.3d 1447, 1456.) The answer is plainly “no.”

In arguing the juvenile court abused its discretion, father

attempts to distinguish adverse authority by claiming “[t]his is

not a case of a parent’s brief period of sobriety against a lengthy

history of addiction.” We disagree. Father had a three-decades

long history of substance abuse. During that time, he repeatedly

sought help, got sober, and then relapsed into drug use. That

pattern repeated during this case. 

Father’s history of relapses and failed reunification 

attempts supplied ample reason to doubt father would remain 

sober and succeed in reunifying if given yet another opportunity 

to try. (See, e.g., In re Cliffton B. (2000) 81 Cal.App.4th 415, 423-

424 [no abuse of discretion in denying petition where the father 

was sober for 200 days but had a long history of drug addiction 

and multiple relapses]; In re Amber M. (2002) 103 Cal.App.4th 

681, 686-687 [no abuse of discretion in denying petition where the 

mother was sober for 372 days but had a long history of drug 

addiction and multiple relapses]; In re Ernesto R., supra, 

230 Cal.App.4th at p. 223 [no abuse of discretion in denying 

petition despite the mother’s recent sobriety and completion of 

drug treatment program; these were changing, not changed, 

circumstances in the context of a long history of drug relapses].)
8

And the record supplied ample reason to conclude that, 

rather than affording father another opportunity to reunify, 

Nolan would be better off proceeding to a permanent plan in the 

care of the B. family, with whom he had spent most of his life. 

“ ‘Childhood does not wait for the parent to become adequate’ ” 

(In re Ernesto R., supra, 230 Cal.App.4th at p. 224), and 

“ ‘[c]hildren should not be required to wait until their parents 

grow up’ ” (id. at p. 225).

That the juvenile court, after denying father’s second 

section 388 petition, found a beneficial relationship between 

father and Nolan does not affect the analysis. First, father’s 

opening brief fails to address why the usual rule that we may 

consider only matters that were part of the record at the time the 

judgment was entered does not bar our consideration of the 

juvenile court’s later findings. (Reserve Insurance Co. v. Pisciotta

(1982) 30 Cal.3d 800, 813.) In any event, father intimates only 

that the beneficial relationship finding evidenced that 

reunification would be in Nolan’s best interests. But it has no 

impact upon the juvenile court’s determination that father’s 

circumstances were insufficiently changed to warrant relief 

under section 388 or our conclusion that this was not an abuse of 

discretion.

DISPOSITION

The juvenile court’s order denying father’s section 388 

petition is affirmed.

GRIMES, J.

WE CONCUR:

 STRATTON, P. J. VIRAMONTES, J.