Opinion
F076132
03-21-2018
In re M.B., et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. L.J., Defendant and Appellant.
Caitlin Christian, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 15CEJ300127-2, 15CEJ300127-3, 15CEJ300127-4, 15CEJ300127-5)
OPINION
THE COURT APPEAL from orders of the Superior Court of Fresno County. Brian M. Arax, Judge. Caitlin Christian, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Peña, J. and Smith, J.
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L.J. (father) is the father of four children - a 10-year-old daughter, M.B., and three sons, seven-year-old I.J., five-year-old L.J., and four-year-old Gabriel J. His children have a half-brother, 14-year-old G.B., with whom they share a mother, L.B. (mother). Father appeals the juvenile court's denial of his Welfare and Institutions Code section 388 petition, in which he requested bonding studies and that his children be returned to him with family maintenance services. Father contends the juvenile court abused its discretion in denying the petition. We affirm.
Mother has a related appeal pending in case number F076311, which involves all five children.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
These proceedings began in May 2015, when the children were removed from mother's and father's care due to the deplorable condition of the family's home and the parents' marijuana use. Clothes, trash, dirty diapers and baby bottles were strewn throughout the home. The home had electricity, but there had not been running water for two months. The bathtub and sink had dirty water in them which contained human feces and urine. The children were dirty, with matted hair, and smelled of body odor. The bedroom where one-year-old Gabriel was sleeping smelled of marijuana. Mother and father both admitted to using marijuana that day, while the children were in their care. Several tents and tarps were in the backyard in what appeared to be a homeless encampment.
Just three months before, the Fresno County Department of Social Services (Department) substantiated a referral that the parents were not taking I. and L. to doctors' appointments to monitor lead levels in their blood. At that time, the home's condition was minimally habitable, but adequate. The parents followed through with the appointments, and the family was linked with services through the school and Cultural Brokers. The family had one other substantiated referral in November 2012; at that time, the family was homeless and father was reportedly smoking marijuana in the car in the children's presence. The parents were able to secure housing and moved into an apartment.
Jurisdiction and Disposition
The Department filed a petition, which was later amended to allege the children came within the provisions of section 300, subdivision (b) (failure to protect), based on the parents' substance abuse problems. The second amended petition alleged the parents' use of marijuana and alcohol negatively affected their ability to care for their children, as evidenced by the home's unsafe and unsanitary condition, the children's poor hygiene, the parents' admitted use of marijuana, and the presence of several homeless people squatting in tents in the backyard.
When taken into protective custody, the children were placed together in one foster home, but they were removed from that home at the end of May 2015. The Department could not locate a home that would take all five children, so G., M., L., and Gabriel were placed together in the home of Ms. W., and I. was placed in another home due to his behavioral problems and developmental needs.
The two oldest children were behind academically; while their teachers recommended they attend summer school, mother did not consent to their enrollment. 12-year-old G. completed a mental health assessment, which recommended individual therapy. According to Ms. W., G. was very parentified at first, as he insisted on taking care of his siblings, but he was gradually letting go and allowing her to attend to the younger children. Ms. W. was concerned about G.'s mental health, as he was very depressed, he would shut down and isolate himself, and he would cry for hours after visits with mother.
Ms. W. reported that seven-year-old M. was defiant, took things without permission, and did not want to follow house rules. When placed in time-out, she screamed the entire time. M. yelled and screamed for a long time after visits with mother. In addition, M. would sit at the dinner table for hours rather than eat. M. had a speech delay, which made it difficult to understand her.
The three youngest children all had been diagnosed with elevated lead levels in 2014 and referred to a public health nurse for ongoing case management services. Blood testing performed in September 2014 and April 2015 showed continued elevated lead levels. I. and L. missed several testing appointments while in their parents' care.
Five-year-old I.'s medical exam revealed that he had a "significant global delay" that required comprehensive diagnostic evaluation. He also had a significant speech delay, was still in diapers, did not know how to dress himself, and required assistance with hygiene and grooming. I.'s care provider reported that he was well-behaved and did not display emotional problems, but his prior care provider and visitation monitors had reported he was very aggressive with his siblings. I. was very friendly and did not appear to understand "stranger danger." Gabriel and two-and-a-half year old L. appeared to be on target developmentally, but Ms. W. was concerned that their speech was underdeveloped, as L. had few words and Gabriel did not speak at all. Ms. W. also reported that both L. and Gabriel cried for hours without provocation and for no apparent reason. All of the children, except G., were referred to the regional center for assessments.
At the August 2015 combined jurisdiction and disposition hearing, the juvenile court found the allegations in the second amended petition true, adjudged the children dependents, and ordered reunification services for father and mother. Services included parenting classes, random drug testing, and substance abuse and mental health assessments, as well as any recommended treatment. The parents were given therapeutic, supervised visits, which the Department had discretion to move to unsupervised visits.
The Reunification Period
The parents' reunification services were terminated at the August 2016 12-month review hearing, when a permanency planning hearing was set. The parents did not begin to participate in services until the spring of 2016, and the only service they completed was the parenting classes. They completed their mental health assessments in June 2016, which recommended individual and family therapy for both of them, and clinical case management services for father, but neither parent was participating in treatment.
The parents completed their substance abuse assessments in September 2015. Initially a less intensive substance abuse treatment program was recommended for mother. The recommendation changed to intensive outpatient substance abuse treatment, however, after she tested positive for marijuana, alcohol, and methamphetamine on the day of the assessment, which use she failed to disclose. Mother attempted the program twice, but was discharged both times due to excessive absences. In August 2016, mother agreed to participate in inpatient treatment, but she discharged herself from the program after being there less than a week. A less intensive substance abuse treatment program was recommended for father. While he participated in intake appointments twice, he did not return for treatment.
Neither parent had participated in random drug testing in over a year. Mother had participated in nine drug tests, which all were positive: seven positive marijuana and negative for alcohol tests; one positive amphetamines, marijuana, and alcohol test; and one positive marijuana, alcohol, and creatinine drug test. Father had participated in five drug tests, which all were positive: four positive marijuana and negative for alcohol tests; and one positive marijuana and creatinine test. While the parents claimed they could not afford the two dollar drug testing fee, the Department had provided them with 60-day drug testing fee waivers.
The juvenile court ordered the parents to participate in domestic violence assessment and recommended treatment at the February 2016 six-month review hearing, based on G.'s disclosure that when the family was living together, he saw father hit and push mother on numerous occasions, and father subjected G. to verbal and physical abuse. Mother and father both completed the assessment in March 2016. A domestic violence support group was recommended for mother, which she began attending in May 2016. By the end of July 2016, mother had completed four of the 12 required classes. A batterer's treatment program was recommended for father, but he was discharged from the program at the end of June 2016 due to unexcused absences.
The parents had moved into a three-bedroom apartment, where they had been living since February 2016, and mother reported that father had gotten a full-time job.
By the 12-month review hearing, G., L. and Gabriel were together in one foster home, M. was in another, and I. in a third. M. was moved from her placement with G., L., and Gabriel to a separate foster home in November 2015, as her foster mother was not able to manage her out-of-control behavior and emotional problems. M. was moved to another foster home in June 2016, after she displayed sexualized behaviors toward other foster children. During the ensuing law enforcement investigation, M. disclosed G. had previously touched her vagina.
G., L., and Gabriel were doing well in their foster home. G.'s grades had improved and he was attending individual therapy. G. was not displaying any major behavioral or emotional problems in the foster home or at school, although he sometimes took things that did not belong to him. As of January 2016, L.'s lead levels had decreased and he no longer needed monitoring. L. ultimately did not qualify for regional center services, but he was determined to be eligible to receive special education services for his speech delay at his local school. He could not receive the services at school, however, because he was not potty-trained. L. was participating in individual therapy. His care provider continued to report that L. continually cried for no reason, and he also hit other children without being provoked and bit people when he was upset. Gabriel did not qualify for regional center services and was not recommended for mental health treatment.
M. was participating in weekly individual therapy. She received about four months of therapeutic behavioral services (TBS) and was successfully discharged from them in March 2016. In addition to exhibiting sexualized behaviors, M. was defiant, impulsive, and had engaged in property destruction and vandalism. The regional center did not evaluate her because her speech delay was not due to a developmental disability. M. was receiving speech therapy services at school in accordance with her individualized educational plan (IEP), and was behind academically.
A regional center neuropsychologist assessed I. and diagnosed him as having a mixed receptive-expressive language disorder that did not meet the eligibility criteria for ongoing regional center services. I. attended a special day kindergarten class as part of his IEP, and was receiving intensive speech and language therapy services. He enjoyed school and did not display any major behavioral problems there, but he was not performing at grade level due to his speech delays. I. participated in four months of individual therapy and was discharged in December 2015. As of January 2016, I.'s lead levels had decreased and he no longer needed monitoring. By February 2016, I. was fully potty-trained and able to dress himself.
By the six month review hearing, mother had moved from therapeutic supervised visits (TSV) to supervised visits. The TSV therapist reported that mother was attentive to the children's needs, occasionally brought snacks to visits, and interacted with the children in a positive and loving manner. At times, however, the therapist had to assist mother, as the two youngest children often ran out of the visiting room. The therapist noted that mother was able to demonstrate some good parenting skills, attention, and affection to her children. During this period, father stopped visiting for several months, but his supervised visits resumed a few weeks before the six month review hearing. During visits, father attempted to engage in conversation with the children, particularly the three eldest ones, and showed them affection. Father struggled to care for all five children at the same time, especially the two youngest ones, who were very active and would climb on chairs and tables, and attempt to run out of the room. The children were comfortable during visits. When the two youngest ones returned to the foster home after visits with mother, they were very hyperactive, energetic, and aggressive. The older three children, however, did not display any behavioral or emotional changes after visits.
By the 12-month review hearing, mother and father were regularly visiting the four younger children. G., however, had stopped visiting either parent in March or April 2016, because he did not want to see them. The visits with the other children went well - the parents arrived on time, came prepared with snacks and homemade meals to feed them, and interacted appropriately with them. Mother was "more playful" and "hands on" with the children than father. The children appeared happy to see their parents and enjoyed the visits.
The Section 366 .26 and Section 388 Hearings
In its report prepared for the December 2016 section 366.26 hearing, the Department requested a 90-day continuance so it could locate a prospective adoptive home for the three younger children, and recommended that the two older children remain in foster care with the permanency goal of legal guardianship. At the hearing, which the parents did not attend, the juvenile court granted a continuance of the section 366.26 hearing as to the three younger children to March 20, 2017, and proceeded with permanency planning as to G. and M. The court found termination of parental rights would be detrimental, concluded neither child was adoptable, and selected long-term foster care with the goal of guardianship as their permanent plan. The court ordered supervised visits between the parents, G. and M., at least once a month, and set a status review hearing for May 22.
Subsequent references to dates are to dates in 2017.
In February and March, father and mother filed separate section 388 petitions in which they requested sibling and parent bonding studies, and that the children be returned to their care under a plan of family maintenance services. As changed circumstances, mother asserted that she had successfully completed an outpatient program, while father stated he was due to graduate from his outpatient program in March 2017. Mother also stated she had tested clean of drugs and alcohol, maintained a sober lifestyle, was able to identify her triggers, and had a stable relapse prevention plan. Mother had secured housing, which father and mother anticipated moving into in early March 2017, and mother consistently visited the children. Moreover, the children were in separate placements and the Department was recommending a plan of adoption for only some of them. They alleged returning the children to them and ordering bonding studies was in the children's best interests based on mother's and father's progress in services, as well as the bond the children shared with each other and their parents. The petitions were set to be heard at the March 20 section 366.26 hearing.
In the Department's report prepared for the March 20 hearing, the Department recommended adoption and termination of parental rights as to the three youngest children, and denial of the parents' section 388 petitions. The three youngest children had shown significant improvement since being placed in foster care. I.'s foster parents, with whom he had lived since June 2015, wanted to adopt him. L. and Gabriel were moved to a risk adopt placement at the end of December 2016, and the care provider wanted to adopt them. The social worker opined the children were adoptable and likely to be adopted by their prospective adoptive parents.
As for the parents' section 388 petitions, the Department asserted the problems that led to the children's removal had not been ameliorated. The parents were evicted from their last apartment in January, continued to exhibit instability, and were unable to meet their own basic needs. In addition, father had made open threats against the Department and those who cared for his children.
According to social worker Thomas Calkins, who observed some visits, mother and father both failed to actively engage, nurture, challenge, or understand the children's developmental needs. Father routinely spoke about his case to the children and mother shared personal and adult-natured problems with them. At a visit on March 13, father failed to engage or interact with the children for the first 45 minutes of the visit. After the visit ended, father showed the children his certificate of completion from the outpatient drug treatment program and told them he was "fighting the good fight." The Department was concerned about supervised visits with the parents because the children, L. and Gabriel in particular, exhibited regressive, infantile behaviors following visits. The children's current and former care providers, including therapists and childcare centers, independently expressed concerns about visitation.
The Department did not believe it was in the children's best interests for mother or father to receive family maintenance services. The three youngest children required a stable care provider who could consistently meet their physical, emotional, and social needs, and they deserved permanency and stability. After receiving 15 months of services and 22 months of working with the Department, the parents had not maintained a stable lifestyle.
The Department believed bonding studies were unnecessary. The Department began monthly supervised sibling visits between all the children in February, and the prospective adoptive parents were willing to maintain reasonable contact between the siblings after adoption.
At the March 20 hearing, the juvenile court denied the parents' requests for parent and sibling bonding studies on the condition the matter would be referred to either the consortium or a mediation of post-adoptive contact between the parents and children, and between the siblings. The court believed there was information before it regarding the family's bonds and did not see the benefit of bonding studies that would merit further delay. The court set a contested hearing on the section 388 petitions regarding family maintenance and placement, and the adoption recommendation for the three youngest children, with a settlement conference to occur on May 22, and trial on June 12.
In a report prepared for the May 22 status review hearing for the two older children, the Department recommended a planned permanent living arrangement (PPLA) as the most appropriate case plan. G. was moved to a new foster home on December 28, 2016, after his prior foster mother asked that he be moved because he was lying, leaving school and home without permission, and disrespecting the foster mother and his teacher. Since the move, he had not displayed any negative behaviors, had graduated from TBS, and was discharged from therapy.
M. was stable in her foster home, where she had lived since June 2016, and wanted to remain there. M. was eligible for special education services for her visual and auditory processing difficulties, and speech delay. M.'s therapist believed M. had immature social and emotional development, and tangential thought patterns and magical thinking. In addition, M. suffered from depression, anxiety, intrusive behaviors and thoughts, and expressed higher anxiety around visits with her parents, particularly father. In addition to individual therapy, M. was participating in wraparound services.
The parents' contact with the Department to arrange visitation had been sporadic. They had moved several times in the last six months and changed phone numbers on several occasions, which made communication difficult. The parents had completed an outpatient drug program in March 2017, but they failed to release their records to the Department. In April 2017, the parents stated they were no longer participating in any services.
Mother moved into a section eight apartment in late March 2017. When the Department assessed the apartment on April 10, father made threats against the Department, such as "I don't know how you people sleep at night" and "Karma will get you in the end." The one bedroom apartment was unfurnished, with minimal bedding and food. Mother refused to show the Department the freezer, claiming there was nothing in it. Mother and father declined to be interviewed separately.
G. continued to refuse to visit mother, although the Department offered monthly contacts and encouraged him to visit. G. was adamant that he was not interested in contact with mother whatsoever and instead wanted to be adopted. M. was participating in monthly supervised visits with both parents. At their March 20 visit, father showed M. his certificate of completion from the outpatient drug program and told her "see, we are fighting the good fight for you guys!" The parents had a history of talking about their case and making promises to the children. G. and M. began having monthly supervised visits with each other and their other siblings in March, which reportedly were beneficial to the children. The Department had referred the family to Consortium for Children.
At the May 22 hearing, the juvenile court confirmed the June 12 trial and continued the review hearing for G. and M. in progress, to be heard after the trial on the section 388 petitions.
The Department submitted an addendum report, which provided additional information on the children. As to G., the social worker clarified that while it had been reported that G. changed his younger siblings' diapers when they were first in foster care, according to foster mother Ms. W. this was not the case, as G. tried to use this as an excuse for being late to school. Ms. W. saw that G. was parentified and she attempted to set limits so G. could be a child. The social worker noted that G. appeared to be benefitting from an environment in which he did not feel compelled to care for younger children, as he did while in his parents' care.
The social worker explained G.'s behaviors in his prior foster home and at school had worsened following the parents' unauthorized visit with G. at his school, and it was the foster family agency that asked G. to be moved for the safety of himself and his foster mother. G.'s behavior improved after he was moved to the new home. While he sometimes fell behind in his grades, they had improved overall. G. enjoyed visiting his siblings and wanted to continue supervised monthly visits with them. The Consortium for Children was working on a post-adoption visitation contact agreement. G. was aware of the plan of adoption for his younger siblings; he was comforted that they would be adopted and were doing well in their placements, and was happy to see their progress.
M. had shown significant progress in therapy and was doing better at expressing her feelings, wants, and needs. In the past six months, however, M. had vivid and graphic nightmares regarding father coming to get her. The therapist felt that M. no longer needed ongoing treatment, but the school principal asked the therapist to continue treatment given M.'s fragile state, and the transitions between grades and teachers. The therapist was working on "unpacking the trauma" that M. experienced in her parents' home. The parents had an unauthorized visit with M. at her school on May 24, when they gave her pictures. According to the care provider, M. left her afterschool program without her care provider's permission. M.'s overall behavior had worsened since the unauthorized visit. M. did not object to her younger siblings being adopted and wanted to continue visiting them.
I. continued to do well in his placement and his foster parents remained committed to adopting him. He had made significant improvements in foster care and he was better able to follow social cues and conversations, was more talkative, had a larger vocabulary, and could speak in complete sentences. I. had established a parent/child relationship with his prospective adoptive parents, who agreed to continue with sibling visits after adoption.
L. and Gabriel had become attached to their care provider, who was committed to adopting them. The two had shown improvement since moving to this home in December 2016 - their social and problem solving skills, and expression of their feelings, had vastly improved. Previously L. would shut down and have an angry look on his face, or push and hit others when agitated, but he had learned how to calm himself down, and to use words to express his wants, needs, and feelings. L. had learned to talk to peers and adults appropriately, and both boys' language development had improved so much that even G. told the social worker "they know how to talk now!" L.'s therapist reported that he had made significant progress in meeting his treatment goals since moving to the new home, and noted a significant lack of connection between L. and his parents. L. and Gabriel continued to experience overall dysregulation, including behavioral and emotional problems, after visits with their parents, but L.'s therapist reported that these behaviors had decreased due to his care provider's reassurance that he would return to their home after visits. The prospective adoptive parents had learned to effectively manage the boys' regressions. The prospective adoptive parents agreed to continue sibling visitation after adoption.
With respect to the section 388 petitions, the Department continued to recommend that they be denied. The social worker noted that father completed an adult outpatient drug treatment program in May 2017, where he reportedly participated in individual therapy, as well as an online anger management course. Father's mental health, however, was of paramount concern and he was not in individual treatment, despite documented threats to harm himself and others as recent as March 9, and his verbal threats towards the Department on April 10. The social worker also noted that mother had completed outpatient drug treatment and claimed she had a counselor there, but she had not provided a letter from a therapist indicating she received, or was successfully discharged from, individual mental health treatment. Mother admitted on April 10 that she was not participating in mental health treatment and stated she was not in need of such treatment. Mother completed an online anger management course in April 2017.
The social worker asserted that while father and mother had made positive changes, their circumstances had not changed, as they had not ameliorated all of the problems that led to court intervention. In addition, the parents had visited G. and M. outside of court orders in December 2016 and May 2017 respectively, which caused an uptick in G.'s and M.'s negative behavior, and disrupted G.'s placement. While the parents had been living in the apartment for just over two months and completed drug treatment, it was too soon to determine whether they would remain in the apartment given their history of housing instability and whether they could maintain their sobriety given their serious and chronic substance abuse histories.
The contested hearing was held over three days, on June 12, July 11, and August 10. G., L., and Gabriel's former foster mother, Ms. W., testified that when the three boys were first placed with her, the younger boys were "totally dependent" on G., they did everything with him, and G. helped with their day-to-day care - they only wanted G. to change their diapers. She saw evidence of a bond between G. and the younger boys, as they always wanted to be with G. The three boys shared a bedroom - Ms. W. tried to move G. to his own room, but it only lasted two weeks, as the younger boys would not sleep and would go to G.'s room.
G. testified about the last visit he had with his siblings, which took place two to three months before the June 12 hearing. He said his brothers were excited and happy to see him, they all played together, and they enjoyed spending time with each other. G. wanted to live with his siblings again, but he did not think it was possible because "they already have a family and they seem happy where they are." G. said he "barely" helped to take care of the younger boys when they lived together; he "[s]ometimes" changed their diapers and got them snacks when Ms. W. told him to make them. The younger boys wanted to be where he was most of the time. Ms. W. tried giving him his own bedroom, but it did not work out because he had to stay with his brothers to make sure they did not get up at night.
G. was not open to having unsupervised visits with mother - he did not want to visit either her or father because seeing them reminded him "of the things that happened at home." He did not want to return to mother's house because he was afraid the same things would recur. He would be happy for mother if she had done things to improve herself, but there was nothing she could do that would change his mind.
According to a social worker aide who supervised about 30 of the parents' visits with the four younger children from April 2016 to May 2017, the parents acted appropriately during the visits. The aide heard the parents discuss the case in the children's presence only once, when social worker Thomas Calkins came to the visit and discussed some paperwork with them. The visits were positive - the children were excited to see their parents and affectionate with them. The children, however, were not reluctant to leave their parents. The aide only saw a separation issue once, when Gabriel clung to his mother at the end of a visit after he had soiled his pants.
Social worker Calkins, who authored the Department's reports for the hearing, had a different opinion about the visits, as expressed in his reports. Calkins had observed about six visits, beginning in September 2016. Calkins did not "progress" the parents' visits with the children because he was concerned about the parents' lack of interaction and relationship with the children. In addition, father had made threats to hurt himself and others on several occasions, which included: (1) according to father's therapist, father had threatened to hurt himself and the people who had gotten between himself and his children; (2) according to the foster family agency social worker, father made threats "against you guys and against me" while she was waiting with father for a visitation staffing to begin; and (3) father had "talked about karma and things happening to people and about how evil it was to remove children from their parents" when Calkins saw father in his home.
Calkins testified about the parents' unauthorized contact with G. outside his school in December 2016, to which the parents eventually admitted. After the contact, G. did things that were out of character, such as cussing at teachers, skipping out on therapy appointments, and lying to his therapist and Ms. W. The foster family agency determined G. could not be left in Ms. W.'s home because G. was leaving the doors to the house unlocked and did not come home from school when he should have. Ms. W. was concerned the home could be burglarized and noted that money had been taken from her wallet.
Father testified that the children were initially removed from his care "[f]or housing[,]" but he had since obtained stable housing and employment. Father denied using drugs and for the past two months, he spot tested every Monday before visits and had never been denied a visit.
Father admitted he completed only one service during reunification, which was parenting. He was not able to complete his other services because he was discouraged and could not "reach that breakthrough." He reached that breakthrough when he first enrolled in the outpatient drug treatment program in 2016, after his services were terminated. The program was a 90-day program, but he stayed an extra 90 days. He took classes in the outpatient program, which included domestic violence, drug counseling, job placement planning, mental health, and anger management, and he drug tested. In addition, he had at least 10 sessions of one-on-one counseling, which stopped when he graduated from the program. He also completed an online anger management course, which involved reading material and taking online tests. The only service he was doing at the time of the hearing was attending a once monthly alumni meeting at the outpatient program, which he felt was akin to AA/NA. When asked if he had a sponsor, father pointed to mother and said they were each other's sponsors, they motivated each other, and it was a "team effort."
Father had been visiting his children once a week on Mondays. The boys greeted him with hugs, were affectionate with him, and called him "Dad." M. also greeted him with hugs and smiles. Father testified about what was special about his relationship with his children and what they did during visits, such as playing with toys and blocks, reading to the children, telling them stories, and helping M. with her homework. He brought the children food, which they shared. Father claimed his children were sad when visits ended, and at some point, each of them said they wanted to come home. Father thought it would be detrimental to I., L., and Gabriel if parental rights were terminated.
Mother asked the court to return her children. She was employed and had the option of moving to a larger apartment if the children were placed with her. She admitted the only reunification service she completed was parenting classes. She did not complete drug counseling and domestic violence classes because there "was a lot going on" that was out of her control and which threw her "in left field." During the reunification period, mother was in denial about her drug use, and her need for parenting help and mental health treatment.
Mother claimed she had completed all court-ordered classes - mental health, domestic violence, drug counseling, and visitation. She started those classes in August or September 2016, after reunification services were terminated. When she entered drug treatment, she knew she had a drug problem, but she was in denial. She attended five mental health sessions while in the treatment program, which she thought were beneficial. Mother believed her drug and alcohol use had interfered with her parenting. Mother was attending an alumni group at the treatment program and father provided her with support.
Mother explained about the contact with M. that the Department claimed was unauthorized. She said that after she attended an IEP meeting for M., she was invited to M.'s classroom to see her progress and while there, she left some pictures in M.'s folder for a family album the foster family agency's social worker said M. was working on. M. was not present. As for the purported unauthorized contact with G. in December 2016, mother claimed she happened to see G. walking and denied going to his school or foster home to see him.
Mother claimed that G. told her he did not want to visit her because he cried after every visit and he wanted to come home. Mother visited the three younger children every Monday, and M. on the second Monday of each month. The children called her "Mom" and were affectionate with her. Mother felt it would be detrimental if her parental rights to the three younger children were terminated because they always knew her as mom and she would not know about their well-being. She believed it would affect the children emotionally, mentally, and physically, because they were very close and "were all they have." She was concerned the children would not be able to see each other if some of the children were adopted.
Mother was ready for the children to be returned to her. She was willing to accept any services the court or Department felt necessary to keep the children safe with her. She felt the children were better off with her because she was able to see what they were doing and where they were, and did not have to worry about things she could not control. She believed the children would benefit from being with her because they would all be together as a family.
On August 10, the juvenile court issued its findings and orders on the section 388 petitions before proceeding to the permanency planning and status review hearings. It found that, while the parents had made changes, their circumstances were changing but not yet changed, and returning the children to their care was not in the children's best interests. As a result, it denied both parents' section 388 petitions.
The juvenile court observed that while father was obviously hostile towards the social worker, it was clear from his testimony that he loved his children, and while mother appeared more calm, open, and insightful, the two admitted they were a team and thus they shared their weaknesses and strengths. The juvenile court was impressed that the parents had participated in services on their own, but found the services were inadequate to their needs, as an online anger management course was not sufficient to satisfy the 52-week batterer's treatment program that was ordered, and the mental health treatment received in the drug treatment programs was not enough.
The juvenile court found the parents' attitude and hostility to the Department, as shown by father's threats to the social worker and refusal to show him the freezer, were not "positive predictive factors" that the children's needs would be met or that the parents would cooperate with the court or Department should they receive family maintenance services. While the parents had visited the children regularly and consistently, and had shown them tremendous love, the children had suffered greatly, as shown by the children's behavioral problems and difficulties. The court found that while the children were bonded to each other, it was not a healthy bond. The court concluded that given the parents' self-directed services and limited time of sobriety, to suggest the parents could handle all five children with their special needs was a tremendous risk and burden to place on the children, who needed close and consistent care providers.
Moving to permanency planning, the juvenile court found the three youngest children were adoptable. As for the beneficial relationship exception to adoption, the court found that while the parents had regularly and consistently visited the children, and a parent/child relationship existed, it was not in the children's best interest to continue the relationship and the benefit of adoption outweighed any benefit the children might receive from maintaining that relationship. The court terminated parental rights and selected adoption as the permanent plan.
As for the review hearing on the two oldest children, the juvenile court found there was a compelling reason not to set a permanency planning hearing, ordered continued foster care for them with the goal of guardianship, and ordered reasonable supervised visitation twice a month, with G. given the option to accept or decline visits on two days' advance notice of visits.
DISCUSSION
Father contends he met his burden under section 388 of establishing that his circumstances had changed such that an order placing his children in his custody under family maintenance services served their best interests or, at a minimum, required the court to obtain bonding studies. We disagree.
Section 388 permits a parent to petition the juvenile court to change, modify, or set aside any previous order made in the dependency proceeding based on changed circumstances. "The parent bears the burden of showing both a change of circumstance exists and that the proposed change is in the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47 (Casey D.).) "Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability. . . . The court need not continue to consider the issue of reunification at the section 366.26 hearing. The burden thereafter is on the parent to prove changed circumstances pursuant to section 388 to revive the reunification issue." (In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).)
Section 388 provides in relevant part: "Any parent ... may, upon grounds of change of circumstances 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."
Thus, section 388 effectively operates as an " 'escape mechanism,' " allowing the juvenile court to consider new information while recognizing a dependent child's need for stability. Marilyn H. explained, "The parent's interest in having an opportunity to reunify with the child is balanced against the child's need for a stable, permanent home. The parent is given a reasonable period of time to reunify and, if unsuccessful, the child's interest in permanency and stability takes priority. 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." (Marilyn H., supra, 5 Cal.4th at p. 309.)
"On appeal, we will not reverse the decision of the juvenile court unless the parent establishes the trial court abused its discretion." (Casey D., supra, 70 Cal.App.4th at p. 47.) " ' "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." ' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319 (Stephanie M.).)
Father contends he made substantial progress in his case plan requirements after reunification services were terminated and that progress, along with the apartment he and mother had obtained, constituted a legitimate change in circumstances. He asserts these changes, as well the children's interests in permanence and stability, justified granting his request to have the children returned to his care under a plan of family maintenance services or, at a minimum, to obtain a bonding study.
By the time of the hearing on his section 388 petition, father had housing, was employed, and had completed parenting classes and an outpatient substance abuse treatment program. Father, however, had not completed several key components of his case plan (i.e., a batterer's treatment program, individual and family therapy, and clinical case management services) after more than two years of reunification efforts. The online anger management program he completed and the limited therapy father received as part of his substance abuse treatment program were inadequate to satisfy these components.
Even if father achieved some nominal change, "[n]ot every change in circumstance can justify modification of a prior order. The change in circumstances must relate to the purpose of the order and be such that the modification of the prior order is appropriate. In other words, the problem that initially brought the child within the dependency system must be removed or ameliorated. The change in circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged order." (In re A.A. (2012) 203 Cal.App.4th 597, 612, citations omitted.)
Father did not establish that such a change had occurred. Obtaining a clean home and completing a substance abuse program did not ameliorate the problems that led to the children's removal, as father's sobriety was fairly new and untested, he did not have the support of a sponsor, he had not obtained adequate mental health counseling, and he had not completed a batterer's treatment program. Father's uncooperativeness with the Department and his threats demonstrated that he had not changed.
Nor did father show that family maintenance services would serve his children's best interests. By the time father filed his petition, the focus had shifted from family reunification to the children's need for permanency and stability. (Stephanie M., supra, 7 Cal.4th at p. 317.) Father asserts that returning the children to him with family maintenance services would serve their best interests because they would be reunited with each other and, with ongoing services, would continue the progress they had made while in foster care. But father failed to establish that the children's need for permanency and stability would be advanced were they returned to him. Given father's failure to ameliorate the problems that led to dependency, the children were at risk of emotional upheaval should father relapse and, as G. put it, "the things that happened at home" would "happen again." In contrast, the younger boys were in homes with prospective adoptive parents who wanted to adopt them, and the older children were in stable placements with foster parents who were able to meet their needs.
As for the request for parent and sibling bonding studies, the court need not secure a bonding study before it may terminate parental rights. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339 (Lorenzo C.).) Indeed, bonding studies after reunification services have been terminated are often unnecessary because "[t]he kind of parent-child bond the court may rely on to avoid termination of parental rights under the exception provided in section 366.26, subdivision (c)(1)(A) does not arise in the short period between the termination of services" and the selection and implementation hearing. (In re Richard C. (1998) 68 Cal.App.4th 1191, 1196 (Richard C.).) By that time, "the parent and child have been in the dependency process for 12 months or longer, during which time the nature and extent of the particular relationship should be apparent." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575; Richard C., supra, 68 Cal.App.4th at pp. 1196-1197.)
"Bonding studies after the termination of reunification services would frequently require delays in permanency planning. Similar requests to acquire additional evidence in support of a parent's claim under section 366 .26, subdivision (c)(1)(A) could be asserted in nearly every dependency proceeding where the parent has maintained some contact with the child. The Legislature did not contemplate such last-minute efforts to put off permanent placement. [Citation.] While it is not beyond the juvenile court's discretion to order a bonding study late in the process under compelling circumstances, the denial of a belated request for such a study is fully consistent with the scheme of the dependency statutes, and with due process." (Richard C., supra, 68 Cal.App.4th at p. 1197, fn. omitted.)
Contrary to father's assertion, he did not present compelling circumstances that would authorize parent or sibling bonding studies at the time the juvenile court denied his request in March 2017. The Agency had filed numerous reports with information about father's relationship with his children and the children's relationships with each other. The juvenile court recognized this and did not think bonding studies would add sufficient information to the evidence before it to merit a delay in the proceedings. Moreover, the juvenile court noted that future visits would assist it in ascertaining the bond between the parents and the children. While father contends this shows the need for additional information the bonding studies would provide, the juvenile court reasonably could conclude that the visits were sufficient to provide evidence of a bond and a bonding study based on a brief assessment would not likely provide additional information helpful to the court. Indeed, the juvenile court ultimately found that a parent/child relationship existed and the siblings were bonded to each other.
The Department asserts that section 388 was not the appropriate vehicle for requesting bonding studies, as the request did not ask the court to change a prior order. Nevertheless, the juvenile court could consider a parent's request for a bonding study, the denial of which is reviewed for abuse of discretion. (Richard C., supra, 68 Cal.App.4th at p. 1197; In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1084.) Whether or not section 388 was the proper procedural vehicle for the request, we will review the court's denial of the motion on its merits. --------
In light of the information already before it through the Department's reports, the court reasonably could conclude another report was unnecessary. Bearing in mind that the focus at this stage of the proceedings was the children's interests in permanency and stability (Lorenzo C., supra, 54 Cal.App.4th at p. 1340), we find no abuse of discretion in denying the request for bonding studies.
DISPOSITION
The juvenile court's orders are affirmed.