California Cases August 20, 2020: Solano Cnty. Dep't of Health & Soc. Servs. v. R.H. (In re I.B.)

Case Description

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Solano County Super. Ct. Nos. J43801 & J43802)

R.H. (Mother), mother of 11-year-old I.B. and 7-year-old K.Y., appeals, as to both children in this consolidated matter, from the juvenile court's orders denying her petition for modification, filed pursuant to Welfare and Institutions Code section 388 in case No. A158831, and its order of legal guardianship as the permanent plan, pursuant to section 366.26 in case No. A159234. Mother's sole contention on appeal is that the court abused its discretion when it denied her section 388 petition and failed to return the children to her care. We shall affirm the juvenile court's orders denying the petition for modification and ordering legal guardianship.

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On April 10, 2017, the Solano County Department of Health and Social Services (Department) filed an original petition alleging that then eight-year-old I.B. and three-year-old K.Y. came within the provisions of section 300, subdivisions (a) and (g), after Mother had displayed paranoid behavior when she believed someone was entering the hotel room she was occupying with the children, and had subsequently been arrested for willful cruelty to a child and being under the influence of a controlled substance. The Department alleged that Mother's untreated mental health and substance abuse issues rendered her unable to provide for the welfare of her children. On April 11, 2017, the court ordered the children detained.

In a jurisdiction report filed on May 2, 2017, the Department recommended that the court sustain the allegations in the petition. The social worker reported that the children had been placed in a foster home. Mother had informed the social worker that by 2013, she had started using alcohol at age 15 and had been arrested for driving under the influence (DUI) on four occasions. In 2013, she and the children went to Las Vegas to visit her husband in prison. As a result of an arrest in Las Vegas due to outstanding warrants on one of the DUIs, the children were placed out of home and Mother received reunification services in Nevada.

After the children were returned to her care, Mother moved with them to Chicago in early 2014. She then returned to Fairfield in August 2016, to be closer to her adult son. In Fairfield, she attended Alcoholics Anonymous (AA) meetings and obtained a sponsor, but stopped attending meetings when her sponsor relapsed. She and the two children initially stayed with her

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adult son, but due to conflict with his girlfriend, they had moved to a motel in March 2017. Mother reported that alcohol was her primary addiction, but she also used cocaine and methamphetamine on occasion. She acknowledged that on the night leading to the Department's intervention, she had been drinking due to stress and had also used methamphetamine, which made her paranoid.

Mother also had issues with depression and anxiety, for which she had been prescribed Zoloft and Trazodone, as well as Xanax for panic attacks. She had been seeing a therapist, but stopped going and also stopped taking her medications because she was scared of the side effects. On the night of the incident at the hotel, she was depressed and anxious, and had also been having trouble sleeping.

At the May 4, 2017 jurisdictional hearing, Mother was not present but her attorney submitted on the issue of jurisdiction, on her behalf. The court found true the section 300, subdivision (b) allegations in the petition as to Mother and set the matter for a dispositional hearing.

In a disposition report filed on May 30, 2017, the social worker reported that Mother had admitted she needed help to overcome her alcoholism and address her mental health issues and that she had put her children in a dangerous situation due to her alcoholism. She had suffered at least four DUI arrests. I.B. had been in the car with her during two of them and K.Y. had been in the car for the last one, which took place in Chicago in 2015. Mother told the social worker that she now "feels for the first time in her life she has the support system and the tools to finally overcome her addiction." Mother had started seeing a therapist, and was keeping her appointments and taking her medications. She had also begun participating in an

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outpatient rehabilitation program with Healthy Partnerships, had been accepted into dependency drug court, and had moved into a shelter.

I.B. had told the social worker that she wanted to live with Mother and that she " 'needs to help mommy.' " She also said she liked her foster parent " 'very much' " because the foster parent "reads to her and teaches her new things." K.Y. said that he liked his foster parent and felt " 'happy' " in her home, but also said he missed Mother and wanted to go home. A formal assessment of the family's risk level was determined to be high for abuse and neglect based on several factors: the previous child welfare intervention, including a family reunification case; Mother's history of drug and alcohol use, including four arrests for DUI; Mother's history of untreated mental health issues; and Mother's history of domestic violence in the presence of the children. Mother was participating in weekly supervised visits with the children.

The Department recommended that the children be adjudged dependents of the court and that Mother receive family reunification services. Her case plan objectives would include staying sober and free from illegal drugs, showing her ability to live free from alcohol and drug dependency, complying with all required drug tests, complying with medical or psychological treatment, and obtaining and maintaining a stable and suitable residence for herself and her children.

On June 8, 2017, through her attorney, Mother submitted on the Department's dispositional recommendations. At the July 20 dispositional hearing, the court followed the Department's recommendations, adjudged the

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children dependents, ordered reunification services for Mother, and continued the order for weekly visitation. The court further found A.B. to be I.B.'s presumed father and ordered reunification services for him as well. At the August 3, 2017 dispositional hearing for K.Y.'s presumed father, B.Y., the court ordered that no reunification services were to be offered to him.

In a six-month review report filed on November 20, 2017, the social worker reported that Mother had relapsed on alcohol and admitted that she had stopped taking her medications because she believed her situation was hopeless. She had also been forced to leave the shelter in August, due to her relapse. She had recently moved into a newly refurbished home, with financial assistance from the Bringing Families Home program and the Department. She was presently employed at a thrift store five days a week.

On October 15, 2017, Mother had been arrested and charged with a DUI, after another relapse on alcohol. Visitation, which had become unsupervised, again became supervised. Mother stated that because of her work schedule, she could not participate in therapy. She had, however, begun participating in weekly group and individual sessions with Healthy Partnerships. She was also attending AA meetings and had a sponsor.

The children remained in the home of their foster parent, with whom they had developed a relationship and an attachment. Both children had begun individual therapy.

The Department recommended continued reunification services for Mother.

At the six-month review hearing on November 30, 2017, the court ordered continued reunification services for Mother, as well as weekly supervised visitation. A court appointed special advocate (CASA) was appointed for each child.

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In the 12-month review report filed on May 14, 2018, the social worker reported that Mother still lived in the same home and continued her employment five days a week at a thrift store. She had completed an outpatient treatment program at Healthy Partnerships in November 2017. The Department had no documentation showing that Mother had attended any other substance abuse support services since then, although she remained in contact with her sponsor. During a March 23, 2018 phone call with Mother, the social worker had a suspicion that Mother was under the influence "because she slurred her words, had memory impairment, and a mixture of emotions ranging from anger to crying." She initially denied using alcohol or drugs, though she admitted she had stopped taking her medications for a week. Three days later, however, she admitted that she had relapsed twice on alcohol within a 90-day period, including most recently in early March 2018. At the social worker's request, Mother began participating in an aftercare program at Healthy Partnerships, attending AA meetings, and developing a relapse prevention plan. Since beginning the aftercare, Mother had been more insightful about her addiction and accountable for her mistakes and the need to remain connected to prevent further relapses. Mother was currently taking her psychiatric medications and had enrolled in individual therapy.

The children remained in the same foster home placement, which was stable and appropriate in meeting the children's needs. In January and February 2018, visitation had progressed to unsupervised, including overnight visitation, until March, when Mother stopped taking her medications and her mental health became unstable. The visits again became unsupervised in May. The children appeared to have a positive relationship with Mother and looked forward to visits with her. Mother had

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stated that she was tired of the repeated mistakes she had made, which had prolonged the reunification process, and that she would make a greater effort to work on her recovery. The social worker observed that Mother appeared motivated to stay sober to be able to reunify with her children, but also noted that Mother "has a pattern of relapses and noncompliance with medication during the times she is approved for extended visitation with her children . . . ."

The Department recommended that the children remain in their current placement and that the court continue Mother's reunification services. The children's CASAs also filed reports recommending that I.B. and K.Y. remain in their current placement together.

At the 12-month review hearing on May 17, 2018, the court ordered continued out of home care for the children and continued reunification services for Mother.

In a report advising the court of a placement change, the Department stated that on August 6, 2018, both children were placed with Mother.

In the 18-month review report dated September 19, 2018, the social worker reported that Mother had maintained stable housing and employment. She continued to attend AA meetings once a week, was taking her psychiatric medications, and participating in therapy. The children were both healthy and enrolled in school. K.Y. continued to have tantrums and was in therapy. Both children indicated they were happy to be home with their mother.

The Department recommended that I.B. and K.Y. remain in the care of Mother with family maintenance services.

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At the 18-month review hearing on October 4, 2018, the court ordered the children placed with Mother with family maintenance services.

On January 2, 2019, the Department filed a supplemental petition, pursuant to section 387, alleging that I.B., then nine years old, and K.Y, then five years old, came with the provisions of section 300, subdivisions (b) and (g), based on (1) Mother's arrest on December 30, 2018 for DUI, while driving with both children in the car, and (2) the fact that she was no longer taking her prescribed psychiatric medications.

In a detention report filed on January 2, 2019, the social worker summarized the Department's position that, "[d]espite receiving substance abuse and mental health services, [Mother] has been unable to consistently sustain her recovery and mental health functioning, and she has continued to put her children's safety and well-being at risk. This is evident by her recent arrest for DUI while driving with her children in the vehicle. Furthermore, [Mother] has violated the terms and conditions of her probation. [The children] were removed from the care of their mother on two prior occasions related to similar circumstances." The Department recommended that the children be detained from Mother pending further investigation and a jurisdictional hearing.

At the January 3, 2019 detention hearing, the court ordered the children detained and ordered weekly supervised visitation for Mother.

On January 19, 2019, the Department advised the court that the children had been placed with their former foster parent on December 29, 2018. On February 13, 2019, the foster parent filed a de facto parent request.

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In a section 387 jurisdiction/disposition report filed on February 13, 2019, the social worker reported that the criminal matter resulting from Mother's December 2018 arrest for DUI, probation violation, and child endangerment was under review. During an interview with the social worker, I.B. had disclosed that she was "very afraid" during the DUI incident and K.Y. had stated, " 'before the accident, we were at my mom's friend['s] house. She went inside and left us in the car. Then we went home and she kept hitting the curb, me and my sister were crying.' "

Mother had informed the social worker that "she was parenting her children as a single mother and the responsibilities associated with it had become overwhelming." In addition to struggling to get her children back into a routine after they were out of her home for over a year, other stressors related to her employment and managing bills had caused her to fall into a depression. Mother also said she had lost her 12-steps sponsor, although she had continued to attend AA meetings to stay connected to her "recovery resources." Mother admitted to relapsing on alcohol on the day of her arrest; this was Mother's sixth DUI arrest. Mother also admitted that she had ceased taking her prescribed medications in early December 2018, despite acknowledging that she had depression. Mother "had taken the initiative and enrolled in a detox [ sic ] program for a week following her arrest and had participated in outpatient treatment." She expressed a willingness to attend a residential treatment program and was now taking her prescribed medications for her anxiety and depression. The social worker believed the children had "a close bond and relationship" with their mother.

The Department recommended that the court sustain the allegations in the supplemental petition, not offer Mother additional reunification services, and set the matter for a section 366.26 hearing.

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At the April 4, 2019 jurisdictional/dispositional hearing on the supplemental petition, Mother submitted on the allegations in the supplemental petition and the court found the allegations true. The court did not offer Mother additional reunification services and ordered the children removed from the home. The court also ordered monthly supervised visitation and set the matter for a section 366.26 hearing.

In the section 366.26 report filed on July 17, 2019, the social worker reported that on June 18, Mother said she had been clean for over six months, since January 2. Mother reported that she was attending AA meetings three times per week and checking in regularly with her sponsor. She had completed inpatient substance abuse treatment at Shamia House on April 27, and would be completing outpatient treatment on July 29. She continued to participate voluntarily in dependency drug court and to drug test through Healthy Partnerships. She lived in the same home and had been working at Sam's Club since May. Mother said she "takes full responsibility for what happened," "that her sobriety is 'different' this time and she 'feels like a new person.' " Mother planned to participate in aftercare services and, although her psychiatrist had taken her off of her medications, she would be monitored monthly to assess for any needs.

Courtney Tindall-McClain, the drug court case manager, told the social worker that Mother's "sobriety is 'a lot different this time,' as [Mother] remain[ed] connected" to the recovery community and had a sponsor. In addition, she thought Mother "is way more 'clear' this time and knows she has a problem."

The children had been with the current foster parent, most recently, for six months and had been with her for almost a year and a half before the recent placement with Mother. The social worker observed that the children

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had a strong connection to the caregiver, who facilitated ongoing contact with the children's biological family and whose own extended family had accepted the children. The caregiver had "gone above and beyond" to ensure the children's needs were being met and had advocated for them on all levels. The caregiver, who was prepared to adopt the children, would consider legal guardianship if adoption were not an option.

I.B.'s father, A.B., had told the social worker that if he could not have I.B. placed with him, the current caregiver was a " 'great person' " and "would be 'the perfect candidate' to adopt I.B. I.B.'s CASA told the social worker that the caregiver "loves [I.B. and K.Y.] to pieces' and wants to adopt them." The CASA believed the caregiver was "the best choice" for the children because "their physical and emotional well-being is being met by the caregiver." The social worker had met with the children, and I.B. had said that she wished to return to Mother, but if that was not possible, "she prefers permanency with her maternal aunt, then her father, then the identified adoptive parent." K.Y. "wished for permanency with his maternal aunt, the identified adoptive parent, and then his biological mother." Though it was not clear if they fully understood the concept, the children thought that legal guardianship was the best permanent plan. It was clear that both children had a strong desire to be with biological family, but also felt safe and well cared for with the potential adoptive parent, "with whom they also desire to be with long term."

The social worker acknowledged the strong bond Mother had with the children, but believed there was a substantial risk of harm to them if they were returned to her care. The social worker "noted that past episodes of

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sobriety by [Mother] have not been maintained and that the minors have been in and out of foster care for more than half their lives." The Department recommended that adoption be identified as the permanent plan for I.B. and K.Y. and that Mother's (as well as A.B.'s and B.Y.'s) parental rights be terminated.

On August 12, 2019, Mother filed a section 388 petition for modification, requesting that the court vacate the order for a section 366.26 hearing and order return of the children to her care, with family maintenance services, based on her completion of a residential treatment program and active involvement in aftercare programs. The requested change would be in the children's best interest because I.B. "is 10 years old and has a close relationship with her mother." Mother included numerous documents with her petition, reflecting her participation and progress in, inter alia, substance abuse treatment programs, AA meetings, and psychiatric treatment.

In a September 17, 2019 response, the Department recommended denial of the section 388 petition. The Department acknowledged Mother's "considerable progress, bond with her children, and their shared hopes for reunification." It nonetheless believed there was a substantial risk of harm in returning the children to her care because of her historic susceptibility "to relapse due to everyday life stressors and the stress that comes with parenting her children, which has led to removal of the children on multiple

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occasions." The Department had not assessed that Mother would be able to use her newly learned coping skills under stress.

On September 25, 2019, at the start of the combined section 388 and section 366.26 hearing, the court granted the foster parent's request for de facto parent status, noting that the children had been in her care for 26 months of the almost 30 months of the dependency.

The court then heard testimony related to the section 388 petition. Carole D., who had been Mother's AA sponsor since June 2019, testified that she had recently started working with Mother on steps four, five, and six of the 12-step program. Carole D. had noticed changes in Mother in the last three or four months; she was calmer and more willing to listen. She also had started to make connections with other people in the 12-step program. Mother and Carole D. met at least once a week and Mother called her almost every day. Carole D. was not concerned about Mother maintaining her sobriety because she believed Mother was "sick and tired of doing what she did the last time."

On September 26, 2019, at the continued hearing on Mother's section 388 petition, Courtney Tindall, dependency court case manager, testified that she had previously worked with Mother before her reunification services were terminated. Although Mother was no longer eligible for dependency drug court services, Tindall was still supporting her through phone calls and drug testing, as well as receipt of reports from her treatment program and meetings. Tindall had seen major changes in Mother since the most recent removal of her children and her time in a residential treatment program. She was no longer in denial and understood that she had a significant problem with alcohol. She also put the children first in her intention to be clean and sober. Mother had become involved in the recovery community,

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had a sponsor, was in therapy, and had installed an interlock system on her vehicle, which required her to blow into it to ensure that she did not have alcohol in her system when she was behind the wheel.

On October 7, 2019, the court heard additional testimony on Mother's section 388 petition. Mother testified that she now lived in a two-bedroom trailer, with a bedroom and bathroom for I.B. and K.Y. She still worked 40 hours a week at Sam's Club.

The children were removed from Mother's care after her DUI arrest on December 29, 2018, which was her sixth DUI. She drank on December 26 and December 29, after not drinking since early 2018. She had not had any alcohol since December 29. After she was released from jail, Mother went straight into detox for 14 days, then into a residential treatment program for 46 days, and then into outpatient treatment with Healthy Partnerships. She now attended AA meetings three times a week, had obtained a sponsor in June, was working the steps, and was active in her sobriety. She also had an interlock Breathalyzer installed on her car in July, which would remain in place for 18 months. This was a condition for her to be allowed to drive on a restricted license. Mother had recently stopped taking her psychiatric medications, which she had used to treat posttraumatic stress disorder and stress, but she was participating in aftercare with her psychiatrist. Mother had begun drinking at age 14 or 15 and knew what her triggers for drinking were, such as passing the liquor aisle in the grocery store and being around people who were not in AA. She had a relapse prevention plan to address those triggers.

Mother testified that her current sobriety efforts were different from past efforts because she realized it was important to stay sober for her children, to raise them well, and not put them in harm's way or damage them

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any more than she already had. She believed she had demonstrated her ability to go through everyday life stresses without alcohol for the past nine months. She now had a support system, including other mothers, and understood that she did not have to drink because she was having a bad day. She understood that she had to be abstinent for the rest of her life. Mother had been working steps four, five, and six of the 12 steps with her sponsor for over a month, and was taking the time she needed with them. She understood that she had to prove herself to her children and regain their trust, so that they would feel safe with her and trust that she was not drinking. If the children were returned to her care, she would tell them that they could call social services if they saw her drinking, that she was sorry for being an absent parent, and that they deserved a sober mother.

Mother had been planning for the children's return and believed it would be in their best interest to be returned immediately to her care. In addition to daycare and school, her 24-year-old son would be able to help take care of the children. Her employer had also said she could take a leave of absence or work part-time when the children came home. If necessary, it would be acceptable to her if there was a method for fashioning a slower return of the children to her care.

The final witness was Jessica Weaver, a social worker for the Department who was first assigned to Mother's case in May 2019. The Department's position was that although Mother was doing well now, she had also done well in the past and made promises and statements about not drinking. Weaver believed returning the children to her care would be a great risk to their health and wellbeing after Mother had two DUIs in the present case, as well as DUIs in a prior dependency case in Nevada. Mother had had a substance abuse problem for over 20 years. In the present case,

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the children had been out of her care for 26 of 30 months, and as early as June 2017, Mother had said she knew she had an addiction, that she had the support and tools she needed to overcome her addiction, and that her children should come first. Mother had been sober for five months when the children were returned to her in August 2018, and her most recent DUI occurred on December 29, 2018, while the children were in the car with her. Mother told the social worker she had relapsed after becoming depressed, due to the stress of being a single parent and parenting her children for the first time in a long time, in addition to everyday life stressors and a lack of support.

Weaver did not believe it would be in the children's best interest to be returned immediately to Mother's care fulltime because the children would be uprooted from their current home and there would be a need for a safe and productive way to return them to Mother, who had not parented in over nine months. Although the children said they wanted to go home to Mother, they were also open to staying in their current home. Mother's visits with the children since they had been removed from her care the last time were positive and appropriate, with a lot of affection. Weaver had also observed that Mother and both children had a loving relationship and that I.B. was protective of her mother.

During the arguments of counsel, minors' counsel asked that the court order "order six more months of family reunification services, pursuant to 366.3, subdivision (10)(f) [ sic ]," because she believed further services were in

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the best interest of I.B. and K.Y. given their desire to return to Mother. If Mother could stay sober through the reunification period, the family could reunify. Counsel also believed there was "a true change this time" with respect to Mother's sobriety. These additional months of reunification services would allow for a step-down plan to be created if family maintenance services were later offered to Mother, which would ease the transition of the children into her care. Mother's counsel said that Mother would support either additional reunification services or return of the children with family maintenance services, although she would prefer the latter. Counsel for the Department did not believe additional reunification services were an option because no request had been made for additional reunification services in the section 388 petition.

At the conclusion of the hearing, the court denied Mother's section 388 petition. The court explained its reasoning in its oral ruling: "[C]ertainly we haven't fully flushed out whether the requests by the child's [ sic ] counsel" regarding provision of additional reunification services under section 366.3 "would be appropriate at this juncture; but the court has thought about that as well in terms of what other alternatives keeping in mind the age of the children and some of the changes made by [Mother] as she embarks on her recovery at this point."

"But in the end, the analysis really does come down to the same issue. Are the circumstances changed sufficiently right now that we would want to go down a path and delay permanency and allow the children to be in the care of [Mother] when she's still so fragile, albeit done so well and is a strong person, what I mean is infancy of a recovery truly. By point of reference, we

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know some programs require 18 months, just by way of comparison, even DMV with the interlock device in this vehicle. Every case is different, but the point is these changes exhibited [are] wonderful. [Mother] seems to be caring about herself, which is key; but can the court find that it would be in the best interest of the children should I even find changed circumstances[,] that the detriment wouldn't be there. In this case, the risk to the children is great and it's real. We're not talking theory. We're talking about the prospect of not just a relapse but a DUI. There's been a pattern, and we all know DUI kills. It could be the children, so the court has to keep that in the back of its mind. I'm in no way demeaning the mother's testimony. I believe she was very heartfelt in her testimony. She has a great support system. She had a support system before. It wasn't an ineffective support system. I'm talking about before the December of 2018 relapse. It wasn't that it was inadequate. It just wasn't utilized. The children were taken again, of course, because of the DUI and here we are.

"I do find that the circumstances are changing in terms of the mother's behavior and the mother's approach, but the actual circumstance of the long-lasting, um, severe alcoholism that has basically followed her her whole adult life I'm not convinced that those circumstances are changed sufficiently that it will be safe to place the children back with her. There's not really a viable hybrid that would allow that because until the children are back in her care, we don't know really the level of her ability to deal with stress, change of the children in the home, who are older now and have been elsewhere. With each age, with any child the challenges are different. We all know that. We don't know if [Mother] could handle that. None of us could know anything for sure. My point is based on the evidence that I have which is the contents of all the reports, the testimony I've heard, as well as the arguments of counsel, I am

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going to deny the [section 388 petition]. I do not believe it's been proved the circumstances have changed, albeit in portions; and more importantly, the court is not finding that it would be in the best interest to return the children at this time keeping in mind the detriment besides if they're exposed to alcohol use at home or, um, God forbid they're in a vehicle with their mother and something happens. So I think the risk is too great in light of the facts that have us here today. It just hasn't been that much time. There have been prior promises with tools in place . . . .

"The court is not insensitive to the children's wishes. The court is not insensitive to the mother's pain, but my job is different; and in good conscious [ sic ], I can't grant [the petition]."

On October 24, 2019, the court denied the request of minors' counsel for a bonding study prior to the section 366.26 hearing, stating that it was not in the children's best interest to delay the section 366.26 hearing and that it had already found "that there is a deep, genuine bond between the mother and the children, which makes this so difficult. It was just a physical safety issue is the overriding issue we've had to contend with." The court said it would consider any evidence offered at the pending hearing regarding the bond between Mother and the children.

At the subsequent section 366.26 hearing, which took place on October 31, 2019, I.B., who was 10 years old and in the fifth grade, testified that she liked to see Mother in person "[a] lot" and got "really excited" about visits with her. During visits I.B. liked to cuddle with Mother, hug her and talk with her. Her favorite part about living with Mother in the past was getting to see her every day. I.B. loved and missed Mother and, if it were up to her, she would see her "[a]t least every single day." If she could choose who to live with, she would live with Mother. I.B. did not want to be adopted, and

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preferred the option of guardianship because Mother could come back sometime in the future and ask to have I.B. and K.Y. returned to her care. I.B.'s current caregiver took good care of her and she trusted the caregiver to continue to do so. If she could not go home with Mother, she wanted to live with her aunt or stay with the current caregiver.

Social worker Jessica Weaver testified that she still recommended adoption for both children because it provided the most stability and permanency, despite the strong bond and loving relationship between Mother and I.B. She believed, however, that I.B. and K.Y. should continue to have contact with Mother's family regardless of the permanent plan, and the current caregiver agreed. The caregiver had stated that she was open to legal guardianship if that was the only permanent plan available and if it would allow her to keep the children in her care.

S.B., the current caregiver, testified that she preferred adoption over guardianship because she wanted the children to know they were wanted and that she "will fight for them and keep them safe always . . . ." However, she was prepared to keep them in her care if the court decided that legal guardianship was the more appropriate permanent plan for them.

Mother testified that both children still regarded her as their mother and looked to her for emotional support, physical affection, and love. They had been with her for the majority of their lives. I.B. was very close to her extended family as well and Mother believed it would be devastating for I.B. if Mother's parental rights were terminated.

At the conclusion of the hearing, the court found that the children were adoptable, but that it would be detrimental to I.B. to terminate Mother's parental rights. The court therefore found that the parental relationship exception to adoption applied and that that exception was inextricable from

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the sibling relationship between I.B. and K.Y . The court stated that legal guardianship would be the permanent plan for both children, and set the matter for December 12, for a further section 366.26 hearing.

On November 4, 2019, Mother filed notices of appeal from the orders denying her section 388 petition for modification.

In an updated section 366.26 report filed on November 27, 2019, in preparation for a December 12 hearing for entry of guardianship orders, the social worker reported that Mother continued to work at Sam's Club and was going to start a second job as well. She continued to attend AA meetings twice a week and to participate in monthly supervised visits with the children. The Department recommended the permanent plan of legal guardianship.

In a special interim/addendum report filed on December 11, 2019, the social worker reported that, following a phone call with Mother on December 2, K.Y. had asked the caregiver whether his mother had been drinking or smoking, saying " 'that's what she sounds like when she drinks.' " During a subsequent meeting with the social worker, K.Y. responded to a question regarding how the recent phone call with Mother had gone, stating, " 'Not so good,' " because "mommy sounded like she was drinking.' " I.B. similarly reported that in a recent phone call, Mother sounded like she was drinking " 'by her voice, and we know when she is drinking and she sound[s] just like she used to, she was talking fast and squeaky.' "

Shortly thereafter, the social worker had several phone conversations with Mother in which Mother stated that she had not had a relapse. Instead, she was going through a lot, having just broken up with her fiancé after they got into a big fight and he broke her television. She also had a difficult health issue, which had required her to take time off of work, and was

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therefore at risk of losing her job. She said "her behaviors were indicative of a mental breakdown, not of a relapse." One of Mother's support people had called the social worker and said she had spoken to Mother, who was upset about her breakup. The support person had no concerns that Mother could have been under the influence. The Department was concerned about the possibility of a relapse, but did not recommend changes to the visitation schedule and continued to recommend the permanent plan of legal guardianship.

At the December 12, 2019 hearing, the court ordered the permanent plan of legal guardianship, swore the caregiver in as legal guardian of the children, and terminated jurisdiction. The parties had agreed to monthly monitored visits in the community and weekly phone/video calls for Mother and the children. At the hearing, Mother's counsel emphasized that by agreeing to the guardianship and current visitation schedule, Mother was not giving up her appeal of the denial of her section 388 petition.

On December 26, 2019, Mother filed notices of appeal from the December 12 order of guardianship.

On March 3, 2020, this court granted Mother's unopposed motion to consolidate the appeals in case Nos. A158831 and A159234 for purposes of briefing, oral argument (if any), and decision.

Mother contends the juvenile court abused its discretion when it denied her section 388 petition for modification.

Section 388, subdivision (a)(1) provides in relevant part: "Any parent or other person having an interest in a child who is a dependent child of the

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juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made . . . ." In addition, "[i]f it appears that the best interests of the child . . . may be promoted by the proposed change of order," "the court shall order that a hearing be held . . . ." (§ 388, subd. (d).)

"At a hearing on a motion for change of placement, the burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interests of the child. [Citations.]" ( In re Stephanie M . (1994) 7 Cal.4th 295, 317 ( Stephanie M .).) "[A] primary consideration in determining the child's best interests is the goal of assuring stability and continuity. [Citations.]" ( Ibid .)

We review the juvenile court's denial of Mother's section 388 petition for an abuse of discretion. ( Stephanie M ., supra , 7 Cal.4th at p. 318.) As our Supreme Court has "warned: ' "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." ' [Citations.]" ( Id . at pp. 318-319.)

In the present case, we conclude the trial court did not abuse its discretion when it concluded that Mother's circumstances were changing, but not yet changed, and that return of the children to her care was not presently in their best interest. (See § 388, subd. (a)(1); Stephanie M ., supra , 7 Cal.4th at p. 318.) The court provided a detailed, thoughtful explanation for its denial of the petition, acknowledging both the extremely positive changes

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Mother had already made, as well as the need for more time for Mother to demonstrate that those changes would be lasting. This determination was reasonable in light of Mother's lengthy history of severe alcoholism and mental health issues, her past relapses under the stresses of parenting, and the potentially immense danger another relapse posed to the children, given Mother's history of at least six DUIs, including two during the 30 months of the present dependency, the latter of which occurred with both children in the car.

The evidence showed that by early October 2019, Mother had been sober for over nine months. She had a strong support system and a powerful resolve to change her life, remain sober, and be there for her children, which the court believed was truly commendable. Mother and other witnesses testified that her attitude and the changes she was making seemed different this time from past efforts at sobriety. Mother, however, had made positive changes earlier in the dependency, as when, around May 2017, she acknowledged that she needed help to overcome her alcoholism and address her mental health issues, and felt "for the first time in her life she ha[d] the support system and the tools to finally overcome her addiction." She was then sober for several months while participating in many services, including attending therapy, taking her medications, participating in an outpatient rehabilitation program with Healthy Partnerships, and participating in dependency drug court services. Nonetheless, she relapsed in August 2017, and again in October 2017, when she was arrested for her fifth DUI.

After Mother relapsed again in March 2018, she began participating in an aftercare program at Healthy Partnerships, attending AA meetings, and developing a relapse prevention plan. She was also participating in individual therapy and taking her psychiatric medications. The social worker

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noted in the 12-month review report of May 2018, that Mother had become more insightful about her addiction and accountable for her mistakes and the need to remain connected to prevent further relapses. By August 2018, Mother had progressed to the point that the Department placed the children in her care with family maintenance services. In the 18-month review report dated September 19, 2018, the social worker noted that Mother had maintained stable housing and employment, and had also continued attending AA meetings once a week, taking her psychiatric medications, and participating in therapy.

However, Mother then relapsed again approximately nine months later, in late December 2018, and was arrested for the DUI that took place with the children in the car, which led to the court sustaining the supplemental petition and removing the children again from her care. In the January 2019 detention report, the social worker noted that, "[d]espite receiving substance abuse and mental health services, [Mother] has been unable to consistently sustain her recovery and mental health functioning, and she has continued to put her children's safety and well-being at risk. . . . [The children] were removed from the care of their mother on two prior occasions related to similar circumstances." Mother had acknowledged to the social worker that she was depressed before her arrest and that "she was parenting her children as a single mother and the responsibilities associated with it had become overwhelming."

In light of these alternating periods of sobriety and relapses over the 30 months of the dependency, the court was both hopeful and understandably wary about the durability of Mother's most recent period of sobriety. Its

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conclusion that Mother's circumstances were still changing was reasonable, considering all of this evidence.

Mother attempts to distinguish her situation from that of the parents in several cases in which appellate courts found that short periods of sobriety were insufficient for a parent who suffered from an addiction to show changed circumstances. (See, e.g., In re C . J . W . (2007) 157 Cal.App.4th 1075, 1081 [three months of sobriety not sufficient to show changed circumstances]; In re Clifton B . (2000) 81 Cal.App.4th 415, 423-424 ( Clifton B .) [seven months of sobriety not sufficient]; In re Kimberly F . (1997) 56 Cal.App.4th 519, 531, fn. 9 [120 days of sobriety not sufficient "to show real reform"].) Mother asserts that, unlike in those cases, by the time of the final section 366.26 hearing in December 2019, she had been sober for almost a year. (Citing In re J . C . (2014) 226 Cal.App.4th 503, 519, 526 [15 months of sobriety was sufficient to show changed circumstances, but return to parent was not in child's best interest]; In re Casey D . (1999) 70 Cal.App.4th 38, 42-43, 48-49 [four to five months of sobriety was not sufficient for mother to show changed

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circumstances; nine months was sufficient for father, but return to his care was not in child's best interest].)

Even assuming Mother's suggested timeframe regarding the length of her most recent period of sobriety is accurate, it is not only the number of months of sobriety that a juvenile court must take into account in determining whether a parent's circumstances have changed. Rather, it must consider, as the court did here, the particular circumstances of the case, including the severity and longevity of the addiction, the amount of time the parent has been sober, and the length of time the parent has received reunification services. For example, in In re Amber M . (2002) 103 Cal.App.4th 681, 686, the appellate court upheld the denial of the mother's section 388 petition despite her completion of a residential treatment program and her more than one year of sobriety. The court noted that the mother's "substance abuse had begun more than 17 years earlier and while she had been clean for 372 days, she had previously relapsed twice during the course of this case, once after more than 300 days of sobriety." ( Ibid .) Similarly, in Clifton B ., supra , 81 Cal.App.4th at pages 423-424, the appellate court found that the father's "seven months of sobriety since his relapse in January, while commendable, was nothing new. He had a history of drug use dating back to his college days, and since then his periods of sobriety alternated with recurring drug use. Even after the initial detention of his children, it took [the father] six months before he was able to stay sober for any length of time. Then, after eight months of sobriety, he still succumbed to the temptation of illegal drugs. . . . In [the father's] case, 200 days was not enough to reassure the juvenile court that the most recent relapse would be his last."

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In the present case, Mother made great strides in her recovery in the months before the court's order denying her section 388 petition. However, considering her decades of severe alcoholism; her many relapses following months of sobriety, including multiple relapses over the 30 months of the present dependency; and the exceptional danger to the children if Mother were to relapse, based on Mother's history of driving with them in the car while under the influence, the court did not abuse its discretion when it found that Mother's circumstances had not yet changed "enough to reassure [the court] that the most recent relapse would be [her] last." ( Clifton B ., supra , 81 Cal.App.4th at p. 424; see § 388, subd. (a); Stephanie M ., supra , 7 Cal.4th at p. 318.)

In addition, considering the court's finding that Mother's circumstances were changing, but not yet changed, and that the children would be at great risk of harm if they were returned prematurely, the court did not abuse its discretion when it found that it would not be in the children's best interest to return to her care. (See § 388, subd. (d); Stephanie M ., supra , 7 Cal.4th at p. 318.) The court ultimately found that an order of legal guardianship was in the children's best interest because it would continue the stability and support they had with their committed, long-term caregiver while not foreclosing the possibility that I.B. and K.Y. could return to Mother's care in the future, which was something the children still hoped for. Mother would thus have the opportunity to demonstrate her ability to remain sober for a long enough period to show that her circumstances had in fact changed, making it safe to return the children to her care. The court thus managed to balance the interests of the children in a way that honored both their need for safety and stability and their ongoing love for and desire to be with their mother. (See § 388, subd. (d); Stephanie M ., at p. 318.)

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The juvenile court's order denying Mother's section 388 petition for modification did not "exceed[] the bounds of reason" in the particular circumstances of this case. ( Stephanie M ., supra , 7 Cal.4th at p. 318.) Hence, there was no abuse of discretion. (See ibid .)

The juvenile court's orders denying Mother's section 388 petition for modification and ordering legal guardianship as the permanent plan pursuant to section 366.26 are affirmed.

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/s/ _________
Kline, P.J.

We concur:

/s/ _________
Richman, J.

/s/ _________
Miller, J.