Opinion
E070095
08-23-2018
In re J.B., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.B., Defendant and Appellant.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant D.B. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J262492) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed. Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant D.B. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Mother gave birth to J.B. while her four eldest children were in the custody of the San Bernardino County Children and Family Services (CFS). J.B. was also removed from mother's care when the juvenile court found true allegations that mother failed to provide the child with needed medical care. Mother did well enough in her reunification plan that the juvenile court returned all five children to her care under family maintenance. However, the children were removed from mother once again after the juvenile court found true additional allegations that mother failed to protect the children when the mother's live-in boyfriend (and possibly mother) left bruises on the children from corporal punishment. The court subsequently terminated mother's reunification services and set a hearing under Welfare and Institutions Code section 366.26 for selection of a permanent plan for J.B.
All additional statutory references are to the Welfare and Institutions Code.
After engaging in additional services, mother petitioned the juvenile court under section 388 to return the children to her care under family maintenance or, in the alternative, to reinstate reunification services and increase visitation. Finding that mother had not demonstrated changed circumstances or that returning the children to her care would be in the children's bests interests, the juvenile court denied mother's petition. The juvenile court subsequently terminated mother's parental rights to J.B. and referred the child to adoptive services.
Mother timely appealed, but the parties dispute exactly what mother appealed from. Mother contends she appealed from the orders denying her section 388 petition with respect to all five children and from the order terminating her parental rights to J.B. CFS contends, and we agree, that mother appealed solely from the order denying her petition with respect to J.B. and from the order terminating her parental rights to the child. Therefore, we limit our analysis to those orders. Mother argues the juvenile court abused its discretion by denying her petition and, therefore, that order and the order terminating her parental rights to J.B. must be reversed. Because we find no abuse of discretion, we affirm.
J.B.'s father, T.B., also filed a notice of appeal. On June 5, 2018, the appeal was dismissed as abandoned, and the remittitur was issued on August 8, 2018.
I.
FACTS
A. Original Petition and Detention.
Mother was receiving reunification services for her four eldest children when she gave birth to J.B. in August 2015. The older children were removed from mother's care because of domestic violence between mother and the father of those children. At the time that CFS removed the children from mother's care, the social worker concluded mother had failed to provide them with appropriate medical and dental care.
As explained, post, we conclude mother did not appeal from the orders denying her section 388 petitions regarding her four older children, so this appeal is limited to the juvenile court's denial of mother's section 388 petition with respect to J.B. and the order terminating mother's parental rights to J.B. Therefore, we need not address in great detail the facts pertaining to mother's other children.
Less than one month after she was born, J.B. suffered from seizures and was hospitalized for five days. Doctors diagnosed the child with epilepsy and prescribed medication. During a scheduled visit on September 24, 2015, mother told the social worker that J.B. had suffered another seizure the night before, but mother did not take the child to the doctor. The social worker told mother to take the child to the doctor as soon as possible. Mother told the social worker "she may bring the child" to urgent care, and that she was giving the child medication twice daily. Mother reported she was unable to visit with her other children or participate in her court ordered reunification services because she was taking care of J.B. The social worker opined that mother's failure to make progress in her case plan regarding the other children was placing J.B. at risk of abuse or neglect.
In a detention report, the social worker expressed concern that mother was not timely seeking medical attention for J.B. Mother had reported that J.B. suffered a seizure on September 23, 2015, but the child's medical records indicated mother did not take the child to the doctor until three days later. In addition, the social worker was concerned that mother had been providing conflicting information about the status of her relationship with T.B., J.B.'s father (not the father of mother's four older children), with whom mother had a "domestic violence relationship." The social worker opined that mother "has a pattern of exposing her children to domestic violence relationships" and, as a result, she was placing J.B. at risk of abuse or neglect. Moreover, the social worker reported that mother lived in several different places and had failed to provide J.B. with safe and stable housing.
In a petition filed with the juvenile court, CFS alleged, inter alia, that J.B. was a dependent child within the meaning of Welfare and Institutions Code section 300, subdivision (b). CFS alleged J.B. was at risk of abuse or neglect because: mother had a history of domestic violence with the fathers of her children; J.B.'s siblings had already been removed from mother's care; mother had not benefited from or regularly participated in reunification services for her four older children; mother had a history of failing to provide her children with appropriate medical and dental care; and mother had a criminal history and pending charges. CFS recommended J.B. be detained and placed in foster care.
CFS also alleged J.B. was a dependent child under section 300, subdivision (b), based on T.B.'s history of domestic violence with mother and his criminal history. In addition, CFS alleged J.B. was a dependent child within the meaning of section 300, subdivisions (g) and (j), but those allegations pertained solely to T.B.
Because we have dismissed T.B.'s appeal (see, ante, fn. 2), we need not set forth the facts pertaining to him in any great detail.
The social worker directed mother to appear for the detention hearing and to bring J.B. with her so minor's counsel could observe the child. Mother came to court and spoke to her appointed counsel, but she left before the case was called. Mother's counsel objected to the child being detained and requested that the juvenile court continue the hearing. The juvenile court found no good cause to continue the hearing and denied the request. The court made a prima facie finding that J.B. was a dependent child, and the court ordered that the child be detained.
B. Jurisdiction and Disposition.
In a report filed for the jurisdiction hearing, the social worker reported that mother had been taken to the hospital because T.B. hit her in the stomach when she was 26 weeks pregnant with J.B. Mother only "halfheartedly" agreed to a safety plan for herself and the four older children, and she continued to give the social worker conflicting information about her willingness to remain in a relationship with T.B. The social worker opined that mother's "wavering" demonstrated a pattern of exposing her children to domestic violence. When interviewed by the social worker less than one week after the detention hearing, mother minimized the past incidents of domestic violence and said they had not affected J.B. The social worker stated that during the reporting period mother made no progress in her case plan regarding the four older children, and she had failed to attend scheduled counseling sessions. J.B. was placed with a foster family who were providing for her medical needs, and she was adjusting well to her placement.
Mother signed a waiver and submitted on the social worker's report and recommendations at the jurisdiction hearing. The juvenile court dismissed the allegation that mother had a history of failing to provide the children with appropriate medical care, but otherwise found true the allegations in the petition and found that J.B. was a dependent child. Mother's attorney objected to the child's continued removal and requested that the child be returned to mother on a family maintenance plan or, in the alternative, that mother be permitted to attend all of J.B.'s medical appointments. The juvenile court found that returning the child to mother's care was not in the child's best interests and ordered that J.B. remain detained. The court directed that mother be assessed for family maintenance and that she be permitted to attend all of J.B.'s medical visits.
C. Review Hearings and Return to Mother Under Family Maintenance.
Prior to appearance review hearings, the social worker recommended that mother continue to receive reunification services and that she be offered family maintenance if she were to regularly attend services and demonstrate she had benefited from them. The court adopted the recommendations and set a six-month review hearing.
In a report for the six-month review hearing, the social worker recommended that J.B. remain in her current placement and that mother continue to receive reunification services. The social worker reported that mother had made substantial progress in completing her case plan, she was cooperative and motivated to reunite with her children, and she had gained insight and acknowledged how her behavior and neglect contributed to the removal of the children. In particular, the social worker reported that mother had actively participated in and completed a 12-session domestic violence and anger management program. Mother informed the social worker that she was attending weekly therapy sessions and that she had completed a parenting education class, but the social worker had not yet obtained substantiating documentation. The social worker reported that mother consistently had two-hour supervised visits with J.B. on a weekly basis, but mother cancelled or was a no-show for some visits because of her work schedule. J.B. was in a stable and caring home, and the child was "excelling" in her current placement. The social worker recommended that the child remain in her current placement, and that the juvenile court continue reunification services for mother and authorize CFS to liberalize visitation, including unsupervised visits.
The juvenile court adopted the social worker's recommendations and authorized CFS to provide unsupervised visits. The court ordered the social worker to submit a 30-day information packet updating the court on mother's progress on her case plan and her housing situation. The court also set a 12-month status review hearing.
As directed, the social worker filed information packets with the juvenile court. In the first packet, the social worker verified that mother had completed domestic violence classes, had attended 12 sessions of therapeutic counseling, and had competed eight two-hour parenting classes. Mother was in the process of obtaining appropriate housing and had maintained gainful employment. The social worker also reported that mother had been able to balance her work schedule and visits with J.B., and that mother had weekly unsupervised visits with the child for two hours.
In a follow-up packet, the social worker recommended that the juvenile court authorize overnight and weekend visits between mother and J.B. The social worker reported that J.B. enjoyed her visits with mother, and mother had been doing well in providing for the child's needs during those visits. In addition, mother had obtained stable and appropriate housing, and CFS had provided mother with assistance in getting the home ready for the child, including providing mother with a crib, bed linens, a refrigerator, a table and chairs, and groceries.
In a report filed for the 12-month status review hearing, the social worker recommended that J.B. be returned to mother's care under family maintenance. The social worker reported that mother had made substantial progress in completing her case plan. The social worker opined that returning J.B. to mother's care would not create a risk of exposing the child to physical or emotional harm. During the reporting period, mother had appropriate unsupervised and, later, overnight and weekend visits with the child. Mother started dating a new boyfriend, and mother reported the boyfriend had been a "huge" source of support in taking care of the children. J.B. was doing well in her foster home, and she continued to receive medical treatment and services through the regional center. The social worker recommended that the juvenile court order in-home services and monitoring if J.B. were returned to mother under family maintenance.
At the 12-month status review hearing, mother asked that all of her children be returned to her care or, in the alternative, that the children be placed with her for a 29-day extended visit and that the juvenile court set another review hearing. The court set a contested hearing for the next week to determine whether the children should be returned to mother under family maintenance.
Prior to the contested hearing, the social worker informed the juvenile court that she had visited the children during the extended visit and they "looked well and were very active." The social worker recommended that the juvenile court return the children to mother under family maintenance.
At the November 28, 2016 contested hearing, the juvenile court adopted the social worker's recommendation and ordered the children returned to mother under family maintenance. The court set a semiannual review hearing for May 30, 2017.
D. Subsequent/Supplemental Petition and Detention Hearing.
On April 24, 2017, the social worker received a referral for abuse and general neglect. According to the referral, one of the children said his father hit him in the middle of his back with a belt buckle. The referral indicated that the buckle left a rectangular bruise on the child's back that was still visible a few days later, although the child did not complain of pain or express fear of going home. Upon further investigation, the social worker learned that all of mother's children reported being hit with a belt by mother's boyfriend. One of the children still had bruising days after the child had been removed from mother's care. The children also reported witnessing domestic violence between mother and the boyfriend, something mother denied. Mother admitted that her boyfriend had hit one of the children with a belt. Mother told the social worker that she had grabbed the belt from the boyfriend and told him he could not discipline the children. In addition, mother said she was no longer with that boyfriend and was in a relationship with a new boyfriend.
CFS filed a subsequent/supplemental petition alleging J.B. was a dependent child within the meaning of section 300, subdivisions (b) and (j), and section 387. CFS alleged J.B.'s sibling suffered physical injury, J.B. witnessed domestic violence in mother's home, J.B. was at risk of suffering physical abuse, and mother failed to comply with her family maintenance plan by not protecting the child from corporal punishment by her now ex-boyfriend.
At the detention hearing on the subsequent/supplemental petition, the juvenile court made a prima facie finding that the new allegations were true and ordered the four older children be detained out of mother's care. However, the court allowed J.B. to be returned to mother by approval packet. The court also ordered immediate referrals for reunification services to mother.
E. Jurisdiction and Disposition on Subsequent/Supplemental Petition and Order Setting a Section 366 .26 Hearing.
In a report for the jurisdiction hearing on the subsequent/supplemental petition, the social worker recommended that the children remain detained and out of mother's care, that mother not be offered additional reunification services, and that the juvenile court set a hearing under section 366.26 for selection of a permanent plan for J.B. The social worker opined that mother had continued to make poor choices regarding her romantic relationships, which put the children at risk of physical harm or abuse, and she had failed to take responsibility for the abuse suffered by the children at the hands of her now ex-boyfriend. The social worker opined that mother's prognosis of reuniting with the children was poor.
Prior to the contested jurisdiction hearing, the social worker filed an information packet with the juvenile court which contained additional information obtained during the investigation into the new allegations of abuse. All five children were examined by a doctor and found to have bruising. During their interviews, the children confirmed that they had received "whoppings" from mother and her now ex-boyfriend, including being hit with a wooden spatula. One of J.B.'s siblings reported that mother and the ex-boyfriend slapped J.B. in the cheek "for messing with the TV," causing the child's cheek to bleed. The physical examination conducted on J.B. showed she was underweight and had a linear scar on her forearm.
At the contested jurisdiction hearing, minor's counsel agreed with the social worker's recommendation because mother had received 18 months of reunification services in the original case regarding the older children, yet the children had suffered abuse and had witnessed domestic violence in mother's home. Mother's attorney denied the allegations in the subsequent/supplemental petition, argued the children were confusing past acts of domestic violence with mother's current boyfriend, and stated mother believed the marks and bruises were caused by the children's foster parents or from roughhousing. Mother's attorney acknowledged there was "some physical discipline," but she denied that mother ever used a belt on the children. With respect to the disposition, mother's attorney objected to the recommendation that mother receive no further reunification services, that her visits be reduced, and that the juvenile court set a hearing under section 366.26. According to counsel, mother was attending counseling and domestic violence and parenting classes.
The juvenile court found the allegations in the subsequent/supplemental petition true and declared J.B. to be a dependent child within the meaning of sections 300, subdivision (b), and 387. The court found there was no probability of returning J.B. to mother within the 24-month period from initial removal. The court, therefore, terminated reunification services for mother and set a hearing under section 366.26.
F. Section 388 Petition and Section 366 .26 Hearing.
In a report filed for the section 366.26 hearing, the social worker recommended that the juvenile court terminate mother's parental rights to J.B. and that the child be referred to adoptive services. The social worker reported that J.B. was happy and adjusting well to her placement with a prospective adoptive mother. J.B. had known the prospective adoptive mother since birth, and she had "begun to develop a healthy bond and attachment to the caregiver." J.B. was receiving early start services and progressing well in her physical development. The social worker opined that J.B. was adoptable and reported that her caregiver had expressed a willingness to adopt the child. The prospective adoptive mother had been favorably assessed for adoption. The social worker reported that mother had been inconsistent in her weekly supervised visits during the reporting period and recommended that visitation be discontinued. The social worker recommended that a permanent plan of adoption be developed for J.B.
At the initial hearing, mother's attorney asked that the juvenile court continue the matter so mother could file a section 388 petition, and counsel objected to the social worker's recommendation regarding visitation. Counsel argued mother had not acted inappropriately during visits, and that her failure to appear for visits was the result of scheduling problems. The court continued the hearing and ordered that mother have visits twice a month.
Mother filed a petition under section 388, requesting that the children be returned to her care under family maintenance. In the alternative, mother requested that the juvenile court reinstate reunification services for an additional six months and increase the frequency of visits to include unsupervised, overnight and weekend visits. According to mother, she had engaged in services to address the causes of the children's removal, including participating in domestic violence and parenting classes and attending counseling. Mother argued returning the children under family maintenance or reinstating reunification services and increasing visitation would be in the children's best interests because "Mother is progressing and benefiting from services in order to maintain this large family together." Mother supported her petition with documentation indicating she had attended domestic violence classes, was making "positive changes and progress" in counseling sessions over a three-month period, and had completed a 10-week parenting course. The juvenile court set an evidentiary hearing on mother's petition.
In an information update, the social worker informed the court that mother had not visited with J.B. for two months. Mother consistently failed to timely confirm visits with the social worker, and she blamed CFS for the missed visits.
CFS opposed mother's section 388 petition. The social worker confirmed that mother had completed a parenting course, and she was participating in weekly counseling sessions. The social worker also contacted the provider through which mother was attending domestic violence classes. Mother had not attended any additional classes in the 12-class program, and she was required to restart the program to receive a certificate. The social worker opined that mother had not benefited from 18 months of reunification services, and she was not using the skills she had learned from those services. Mother continued to blame CFS for the removal of her children. In addition, the social worker reported that mother was no longer employed, and she was once again in a relationship with the boyfriend who beat the children. The social worker recommended the juvenile court deny mother's petition so J.B. could obtain closure and continue to develop a secure bond with her prospective adoptive mother.
At the hearing on mother's petition, her attorney informed the juvenile court that mother had completed four domestic violence classes and was still participating in counseling. Counsel asked that the hearing be continued and the petition be heard at the section 366.36 hearing. The court indicated it wanted additional information about whether mother had benefited from her services, and it continued the hearing.
At the contested hearing on mother's section 388 petition, mother's attorney requested that the juvenile court return the children to mother or, in the alternative, order a trial visit and additional services. Counsel made an offer of proof that mother had attended 10 domestic violence classes, that she planned to attend one more class the next day, and that mother was on "the verge of completing her domestic violence treatment." Moreover, counsel stated mother continued to participate in individual counseling, and the therapist had reported that mother was progressing, addressing her stressors, and learning coping and anger management skills. Counsel informed the court that mother was no longer with the ex-boyfriend. Counsel also stated that mother had attended 20 or so women's empowerment classes. In addition, counsel informed the court that mother had not missed any visits since the last hearing, which demonstrated mother was "making progress." Counsel argued mother had demonstrated changed circumstances, and that returning the children to her care "when Mother is making such progress" would be in the children's best interests.
Counsel for CFS expressed skepticism that mother was no longer dating the ex-boyfriend and was concerned that, although mother had made progress, she might go back to the boyfriend. Counsel argued returning the children to mother under family maintenance would not be in their bests interests, and that the children needed permanency and stability. Minor's counsel also requested that the juvenile court deny mother's petition, arguing mother had previously failed in her reunification services and she had not shown changed circumstances.
Although the juvenile court recognized that mother was "doing some stuff and [had] made some changes," it expressed disappointment that mother was still in romantic relationships that placed the children at risk of abuse or neglect. "I have concerns Mother's really not making the changes that she needs to do to protect the children . . . ." The court denied mother's petition.
Moving to the section 366.26 hearing, mother's attorney objected to the social worker's recommendation that the juvenile court terminate parental rights to J.B. Counsel again stated that mother had not missed a visit with the child since the last hearing. Counsel also reported that mother and J.B. had bonded during their visits. Counsel for CFS argued J.B. had been in her current placement for a considerable amount of time, and that the child had bonded with her caregiver. Although mother loved J.B., and the child enjoyed visits (when mother was consistent in visiting), counsel argued there was no evidence that mother held a parental role for the child.
The juvenile court agreed with CFS that mother "failed to meet her burden on the bond issue." Even assuming mother had established a strong bond with the child, the juvenile court found that the benefits of adoption outweighed the benefits of continuing the parent-child relationship. Therefore, the court terminated mother's parental rights and directed CFS to refer J.B. to adoptive services.
Mother timely appealed.
II.
DISCUSSION
A. Scope of Mother's Appeal.
In its brief, CFS requests that we ignore the arguments in mother's opening brief that the juvenile court abused its discretion by denying mother's section 388 petition with respect to her four older children. According to CFS, mother only appealed from the order terminating her parental rights to J.B. and from the underlying order denying her section 388 petition as it pertained to J.B. Mother responds that she appealed from the denial of her section 388 petition with respect to all five children. To the extent her notice of appeal is unclear, mother contends we should construe it liberally to challenge the denial as to all five children.
The jurisdiction of the Court of Appeal is properly invoked when an aggrieved party timely appeals from an appealable judgment or order. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) "'Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from.' [Citation.] We have no jurisdiction over an order not mentioned in the notice of appeal. [Citation.]" (Faunce v. Cate (2013) 222 Cal.App.4th 166, 170.)
"The notice of appeal must be liberally construed, and is sufficient if it identifies the particular judgment or order being appealed." (Cal. Rules of Court, rule 8.405(a)(3), italics added.) "'[I]t is, and has been, the law of this state that notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.' [Citations.]" (In re Joshua S. (2007) 41 Cal.4th 261, 272.) However, "[t]he policy of liberally construing a notice of appeal in favor of its sufficiency [citation] does not apply if the notice is so specific it cannot be read as reaching a judgment or order not mentioned at all. [Citations.]" (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 173; see Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2017) ¶ 3:130.5, pp. 3-64 to 3-65.) When the notice of appeal manifests a "'clear and unmistakable'" intent to appeal from only part of the judgment, the appellate court will not construe the notice liberally to apply to the omitted portion of the judgment. (Unilogic Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 625, quoting Glassco v. El Sereno Country Club, Inc. (1932) 217 Cal. 90, 92.)
Mother argues her notice of appeal should be construed to encompass the denial of her section 388 petition with respect to all five children because that petition pertained to all five children. In addition, mother points to the statement of appealability in her opening brief as evidence that she appealed from the denial as to all five children. Every opening brief must "[s]tate that the judgment appealed from is final, or explain why the order appealed from is appealable . . . ." (Cal. Rules of Court, rule 8.204(a)(2)(B); see Lester v. Lennane (2000) 84 Cal.App.4th 536, 556-557 [construing former rule 13].) There is no question that mother's opening brief complies with that rule. But a statement of appealability is intended primarily for the benefit of the reviewing court in determining whether it has jurisdiction and is not itself the source of that jurisdiction. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, ¶ 9:87, p. 9-30 [The purpose of a statement of appealability is to "help weed out improper appeals from nonappealable orders before the court starts working on deciding the merits of the case."].) Therefore, when determining the scope of our jurisdiction, we must confine ourselves to the face of mother's notice of appeal.
Mother's notice of appeal (form JV-800) is not ambiguous as to what she intended to appeal. In the space for "CASE NAME," mother (or her appointed attorney) entered J.B.'s name. Mother did not list the names of her other children. Where the form states, "I appeal from the findings and orders of the court (specify date of order or describe order)," mother entered, "10/25/2017 (26), 12/11/2017 (Cont. 26), 1/23/2018 (Fur. Cont. 26), 3/6/2018 (388 Modification), 3/6/2018 (Fur. Cont 26)." Those hearing dates applied to all five children, not just J.B. However, on the second page of the notice of appeal, where it reads, "This notice of appeal pertains to the following child or children (specify number of children included)," mother entered the number "1" and listed J.B.'s name and her date of birth. Again, mother did not list the names or dates of birth for her other children.
In contrast, mother's section 388 petition stated it pertained to "[J.B.] et al." (Italics added.)
To further emphasize that mother was only appealing the orders pertaining to J.B., under the final heading which reads, "The order appealed from was made under Welfare and Institutions Code section (check all that apply)," mother checked the boxes for "Section 366.26" and "Termination of parental rights," and under the heading "Other," she wrote, "Section 388." The juvenile court only terminated mother's parental rights to J.B., so by checking the box for termination of parental rights, mother further manifested a clear and unmistakable intent to appeal solely from the order terminating her rights to J.B. and the underlying order denying her section 388 petition regarding J.B.
Because mother's notice of appeal was specifically and unambiguously limited to the orders terminating her parental rights to J.B. and denying mother's section 388 petition with respect to J.B., we cannot construe the notice liberally to include the orders denying mother's petition as it pertained to the other children. Therefore, we must limit ourselves to determining whether the juvenile court abused its discretion by finding mother had not made a sufficient showing to warrant returning J.B. to her under family maintenance or, in the alternative, ordering additional reunification services.
B. The Juvenile Court Properly Denied Mother's Section 388 Petition.
"A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. [Citation.] The parent bears the burden to show both a legitimate change of circumstances and that undoing the prior order would be in the best interest of the child. [Citation.] Generally, the petitioner must show by a preponderance of the evidence that the child's welfare requires the modification sought. [Citation.]" (In re A.A. (2012) 203 Cal.App.4th 597, 611-612.)
"A petition for modification is 'committed to the sound discretion of the juvenile court, and the trial court's ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. [Citations.]' [Citations.] ' . . . "[']The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.'" [Citation.]'" (In re A.R. (2015) 235 Cal.App.4th 1102, 1116-1117.) "The denial of a section 388 motion rarely merits reversal as an abuse of discretion. [Citation.]" (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686.)
"It is true a parent and a child share a fundamental interest in reuniting up to the point at which reunification efforts cease. [Citation.] However, the interests of the parent and the child have diverged by the point of a [section 366.26] hearing to select and implement a child's permanent plan. [Citation.] '[C]hildren have a fundamental independent interest in belonging to a family unit [citation], and they have compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.' [Citation.] Adoption gives a child the best chance at a full emotional commitment from a responsible caretaker. [Citation.]" (In re J.C. (2014) 226 Cal.App.4th 503, 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' [citation] . . . . A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
In its brief, CFS contends courts evaluate a section 388 petition according to the nonexhaustive list of factors set forth in In re Kimberly F. (1997) 56 Cal.App.4th 519: "(1) [T]he seriousness of the problem which 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." (Id. at p. 532.)
The very same court that decided In re Kimberly F. has since rejected application of those factors when the juvenile court has terminated services and set a section 366.26 hearing for selection of a permanent plan. "[W]e decline to apply the Kimberly F. factors if for no other reason than they do not take into account the Supreme Court's analysis in Stephanie M., applicable after reunification efforts have been terminated. As stated by one treatise, 'In such circumstances, the approach of the court in the case of . . . Kimberly F. . . . may not be appropriate since it fails to give full consideration to this shift in focus.' [Citation.] We instead follow the direction of our Supreme Court, holding that 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 J.C., supra, 226 Cal.App.4th at p. 527.) We too decline to apply the Kimberly F. factors in this case.
"'A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent . . . might be able to reunify at some future point, does not promote stability for the child or the child's best interests. [Citation.] "'[C]hildhood does not wait for the parent to become adequate.'"' [Citation.]" (In re Mary G. (2007) 151 Cal.App.4th 184, 206.)
Mother argues she made a sufficient showing of changed circumstances because she "had made substantial progress in her involvement with domestic violence and other areas of her life." The evidence presented with mother's section 388 petition, and her attorney's offer of proof at the contested hearing, tended to show that mother was in the process of changing her circumstances, not that she had, in fact, changed them. Mother had completed a 10-week parenting course, and she was actively attending counseling sessions during which mother made "positive changes and progress" in her treatment. But mother had to restart her domestic violence course and, by the time of the contested hearing, she had only attended 10 classes out of 12. Domestic violence in mother's home was one of the main concerns throughout this case. And the juvenile court expressed a healthy skepticism that mother had, in fact, severed her relationship with the ex-boyfriend who beat the children, or that mother was yet capable of making responsible choices about her romantic relationships that would impact J.B.'s physical and emotional well-being.
Even if mother had made a sufficient showing of changed circumstances, she failed to address in the juvenile court or on appeal specifically how returning J.B. to her care under family maintenance or granting her an additional six months of reunification services would advance the child's need for permanency and stability. Mother had received reunification services for 18 months in the older children's case, yet, despite having the children returned to her under family maintenance, she had failed to reunify with J.B. Except for the brief period during which J.B. was in mother's care under family maintenance, J.B. had spent most her life in foster care. Mother's visits with the child prior to the contested hearing were not terribly consistent, and the record does not demonstrate that the bond between mother and J.B. was stronger than the bond between the child and her caregiver. Mother's burden was high—she needed to explain how delaying a permanent plan for J.B. by returning the child to her under family maintenance or giving her an additional six months of services, and delaying further a permanent plan of adoption, would actually benefit J.B. On this record, we simply cannot conclude mother met that burden. Therefore, we conclude the juvenile court did not err by denying mother's petition.
III.
DISPOSITION
The order denying mother's section 388 petition with respect to J.B. and the order terminating her parental rights as to J.B. are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: SLOUGH
J. FIELDS
J.