IN RE: D.G. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

C.W. is the mother of two children, a daughter D. and a son M., who have been dependents of the juvenile court since December 2007 and with whom she failed to reunify.   At a November 2009 permanency planning hearing (Welf. & Inst.Code, § 366.26),¹ the court denied mother's petition (§ 388) to either reinstitute reunification services or regain custody of her children.   The court ordered long term foster care as D.'s permanent plan.   With respect to M., the court calendared a further section 366.26 hearing after finding that though he had a probability of adoption, there was as yet no identified or available adoptive home for him. (§ 366.26, subd. (c)( 3).)   The court also reduced mother's visitation with the children.

On appeal, the mother challenges (1) the court's denial of her modification petition, (2) the court's finding that section 366.26, subdivision (c)(3) applied to M., and (3) the reduction in visitation.   As we shall explain, we find that the court did not abuse its discretion in denying mother's modification petition and reducing visitation.   With respect to mother's claims of error concerning the section 366.26, subdivision (c)(3) finding at the further section 366.26 hearing held in July 2010, given that the court ultimately selected legal guardianship as M.'s permanent plan, we conclude those claims are moot and therefore do not decide them.

FACTUAL AND PROCEDURAL BACKGROUND

Mother was provided voluntary maintenance services beginning in April 2003, which included drug treatment.   Despite this, mother continued to use drugs.   In November 2007, the Fresno County Department of Children and Family Services (Department) initiated this dependency proceeding when it took then 10-year-old D. and three-year-old M. into protective custody after mother's arrest for possession of drug paraphernalia and misdemeanor child endangerment.   At the time, the children's father, M.G., was incarcerated.²  The children were placed together in foster care.   Several days later, mother tested positive for methamphetamine and marijuana.   While she admitted relapsing, she denied having a drug problem.   The Department filed a dependency petition which alleged the children were subject to juvenile court jurisdiction pursuant to section 300, subdivision (b) (failure to protect).

While the juvenile court ordered mother to participate in various services when it detained the children, including random drug testing and a substance abuse evaluation, mother did not submit to random drug testing until a month later despite the social worker's repeated telephone calls.   When mother finally tested in early December, she tested positive for methamphetamine.   The Department recommended she participate in inpatient drug treatment because of her lack of cooperation and continuing drug use.

At the December 2007 jurisdictional hearing, the juvenile court adjudged the children dependents and set the matter for disposition, which was continued multiple times and ultimately conducted in May 2008.   Between January and May 2008, mother entered three different drug treatment programs.   She was discharged from the first two outpatient programs for not attending and she voluntarily left the third, a residential treatment program, against staff advice.   At the May 2008 dispositional hearing, the juvenile court ordered reunification services for mother, which required her to (1) complete a parenting class, (2) submit to random drug testing, and (3) complete assessment and any recommended treatment for substance abuse, mental health and domestic violence.

It was not until after the juvenile court continued services for mother for another six months in July 2008 that mother began to show progress in addressing her drug abuse.   By November 2008, she completed an inpatient substance abuse program and 12 weeks of anger management, and re-enrolled in drug testing.   In December, she completed 14 weeks of parenting classes and began aftercare.   In addition, she was participating in individual therapy.   According to mother's therapist, she was working on accepting responsibility for her children's removal as well as recovery as a victim of domestic violence, was managing her symptoms of depression and anxiety, and appeared ready to move forward in the reunification process.   He recommended she continue in individual therapy and domestic violence recovery for four to six more months.

At the December 2008 12-month review hearing, the juvenile court set an 18-month review hearing for April 2009 after finding mother had made moderate progress in resolving the problems necessitating the children's removal and there was a substantial probability the children could be returned to parental custody by then.   In January 2009, mother stopped regularly attending aftercare classes and when she did attend, she was reportedly tired and struggled to stay awake.   In mid-January, she tested positive for methamphetamine but denied using it even though a second test confirmed it.   A week later she was asked to drug test, but left after stating she had a doctor's appointment.   She again tested positive for methamphetamine in February, but denied using the drug.   In March, her attendance improved and she reportedly was participating in individual counseling and group sessions.   She tested positive for methamphetamine approximately two weeks apart in early and late March.

In April 2009, when mother went to the drug testing facility to provide a urine sample, she refused to use the hands-free collection device provided her and was unable to provide a sufficient amount of urine for testing.   The next day, she tested positive for methamphetamine.   About a week later, mother met with her caseworker, who told her she was going to recommend termination of reunification services at the 18-month review hearing.   Mother got upset and walked out.   She returned but refused to participate in an inpatient drug treatment program.   In mid-May 2009, she again tested positive for methamphetamine.   In its report for the 18-month review hearing, the Department recommended the court terminate mother's reunification services and proceed to permanency planning.   The Department informed the court that although the children's foster mother would allow the children to live with her as long as necessary, she had not yet committed to legal guardianship or adoption.

The juvenile court conducted a contested 18-month review hearing in June 2009.   Mother appeared represented by counsel and testified briefly.   She disagreed with the Department's recommendation to terminate services and asked the court to grant her additional time to complete her services.   She also testified she thought her services were terminated at the meeting she attended in April 2009 and that she took a hair follicle test.   The caseworker testified she was unaware mother had taken a hair follicle test and did not know the results.   At the conclusion of the hearing, the juvenile court terminated reunification services for both parents and set the section 366.26 hearing for October 2009.³

The Section 388 Petition

In a section 388 petition filed on October 2, 2009, and amended on October 13, 2009, mother sought reconsideration of the decision to terminate reunification services and placement of the children with her on family maintenance.   Mother asserted her circumstances had changed because she was still in her program with aftercare “working towards success in my recovery to have a healthy happy loving bond with my children that can never be broken.”   Mother stated the requested changes would be better for her children because they needed her nurture and protection, and they were suffering without her or her family.

Two letters were attached to the petition:  (1) a September 30, 2009 letter from the outpatient substance abuse program which stated that mother had enrolled in the program on September 13, 2009, she had attended three of her scheduled 24 groups, she had completed written assignments and was working through her relapse prevention workbook, and she appeared to have accepted the fact her addiction had caused a great deal of loss, including the loss of her relationship with her children, and (2) a September 30, 2009 letter from mother's domestic violence recovery therapist, in which he stated that while she was working on completing a domestic violence workbook, her attendance was inconsistent and she sometimes would not finish portions of the workbook he gave her, but she at times demonstrated during sessions “a certain degree of understanding and mastery” of cognitive-behavioral skills and safety components of the workbook.   The juvenile court granted mother a hearing on her petition, to be heard concurrently with the permanency planning hearing.

The Department's Reports

In an October 16, 2009 report, the Department recommended (1) a permanent planned living arrangement for D., as there was no one willing or able to provide a permanent plan of guardianship or adoption, and reduction of parental visits to once per month, supervised by the Department, with discretion to increase to weekly supervised visits, and (2) adoption without termination of parental rights for M., with a 180-day continuance to complete an assessment for a permanent plan, and reduction of parental visits to once per month, supervised by the Department.   As to both children, the Department recommended their current care providers be granted educational rights.   The children were both in certified foster homes through licensed foster family agencies, although in separate placements.

The social worker described M. as a “very active” five-year-old kindergartener, who appeared to have normal gross and fine motor function.   While he was struggling with learning how to spell and write his name, the care providers were working diligently with him every day after school.   In December 2007, M. had received a mental health assessment which recommended no treatment.   A second assessment, conducted in September 2008 when M.'s care provider reported he had temper tantrums following weekend visits with his maternal great-grandmother, Mrs. H., resulted in a recommendation of individual therapy, in which M. was participating.   While a progress report had been requested, it was not yet available.

M. had been in the same placement since November 2007, while D. had been in three.   D. had been participating in weekly group therapy.   In September 2009, she was suspended from school.   After her care provider yelled at her about the suspension, D. ran away.   She was found two days later when she presented herself at her attorney's office.   D. was moved to a new placement, where she was doing well.   D. was also enrolled in a new school, as her former care provider worked at her former school;  it was likely D. would be suspended from the former school due to her violent behavior.

In August 2009, it was reported that M. showed up to his weekly visit with mother with a swollen black eye.   M. first said he bumped his eye, but then said his care provider pulled his hair and another care provider slapped him in the face.   A referral was made, which an emergency response social worker fully investigated the following day;  the social worker closed the referral after concluding the allegations of physical abuse were unfounded.   During the investigation, M.'s foster mother denied using any form of corporal punishment and stated that M. had a very difficult time sitting still, so she disciplined him by having him sit on the bed for a few minutes with his arms folded, which was effective.

The social worker stated that while D. was generally adoptable and had no severe physical or emotional issues, a permanent plan of adoption was not likely at that time due to her age (12) and instability in placement and at school.   Moreover, there was no one willing or able to provide a permanent plan of adoption or guardianship.   Accordingly, the Department recommended a permanent plan of long term foster care.

With respect to M., the social worker stated he was generally adoptable and had no severe physical, emotional or behavioral issues that would prevent a permanent plan of adoption.   No family, however, had been identified who was willing or able to provide a permanent plan of adoption, and it was “unknown” whether termination of parental rights would be detrimental to M., as the social work practitioner had not had adequate time to assess for a permanent plan.   Accordingly, the Department requested an additional 180 days to continue assessing for a permanent plan on M.'s behalf.

Mother had third-party supervised visits with her children on the weekends at Mrs. H.'s home, as well as weekly supervised visits at a church visitation center on Monday afternoons.   Mother had been visiting consistently.   The church's visitation records stated that mother interacted well with the children, but also showed that she discussed the case and placement issues with D., which was a concern for the Department and against court orders.   The Department recommended a reduction in visitation to monthly supervised visits, noting reunification services had been terminated in June 2009 and it was unlikely the children would be returned to their parents' care.

In a November 18, 2009 addendum report, the social worker stated that bonding studies had not been completed.   While mother completed her interview on September 28, father never called and the children's care providers were not informed that the children needed to be present for the second part of the assessment.   The social worker hoped to complete the assessments in the beginning of December.

With respect to visits, the church's visitation reports showed the parents had poor skills in their interactions with M. On several occasions, visitation supervisors noted the parents did not know how to redirect M. when he misbehaved;  they allowed M. to throw papers and toys across the room.   On October 19, 2009, M. kicked his father.   On October 26, 2009, D. spanked M. after he said she was “stupid.”   The visitation report noted the visit went well, but M. needed more discipline.   On November 2, 2009, M. kicked both mother and D. The visitation report stated mother should take a parenting class so she could learn to set limits, as M. liked to test the limits and would do things to get her attention.   The Department repeated its request to reduce visits to one hour, once a month.⁴

The Combined Section 388 and Permanency Planning Hearing

At the combined permanency planning and section 388 hearing in November 2009, the Department's attorney stated the Department was recommending denial of the section 388 petition, a planned permanent living arrangement for D., and identification of adoption as M.'s permanent plan and continuance of the matter for 180 days to attempt to identify and locate an adoptive home.   The attorney explained that he had provided the court and parties with amended findings and orders which include the finding, in conformity with section 366.26, subdivision (c)(3), that there is no identified adoptive home and M. has a probability of adoption.   The court admitted the section 366.26 and addendum reports, and their attachments, into evidence.

The court accepted documents from mother's attorney, which were entered into evidence and included a November 12, 2009 letter from mother's substance abuse program which stated she had attended eight of her scheduled 24 groups, continued to show progress and appeared to have a desire to maintain a clean and sober lifestyle, and a negative September 23, 2009 drug test.   Mother, who testified on her own behalf, stated that with respect to her petition, she was asking the court for either more family reunification services or family maintenance.   Mother testified court-ordered services included domestic violence, parenting, and both inpatient and outpatient drug programs, and she had completed parenting, anger management, a relationship class, and the inpatient program.   Since termination of her reunification services on June 16, 2009, mother said her circumstances had changed, as she had her own home, she was staying clean and sober, she was participating in NA/AA, and had completed eight domestic violence classes.

Mother believed it was in the children's best interest to return them to her care because she loved them and they loved her, and she was a “very good mother.”   Mother described her relationship with her children as “great” and said they were “very bonded.”   Mother said she had a close bond with her children and she assured them with comfort, compassion and understanding.   Mother had been regularly visiting the children approximately 20 hours per week through third-party visits with her grandmother every weekend and supervised visits at the church.   Mother said she did lots of things with the children during visits, such as watch movies, talk and play, and the children are affectionate.   Mother thought reducing visitation would be detrimental to the children as “they would be suffering [without] their mother's essential love and care and concern.”   Mother said regular visits were beneficial to the children because they were waiting to come home with her and had been torn apart.

Mother disagreed with the Department's recommendation of adoption as M.'s permanent plan because she thought a lot of things had been wrong from the beginning of the case, her children didn't “deserve this,” and dependency should help her children reunify, not punish her or them.   Mother believed M. would be harmed if her relationship with him was permanently severed, particularly his emotional and mental state of mind.   Mother thought M. had changed since his sister no longer lived with him, as he had been depressed, and was getting angry and hitting people.   Mother believed M. was suffering abuse because of things he had told her, but she did not know if it was self-inflicted or in the foster home.   M. told mother his foster mother had thrown cups at him and socked him with her fist, and mother claimed M.'s care providers took him to an amusement park to avoid a visit with his great-grandmother where she might see his swollen eye.   Mother testified it would benefit M. to maintain his relationship with her because he would be a happy, vibrant boy again.

Mother also believed M. would be harmed if his relationship with D. was permanently severed because he loved his sister and he would not have her to watch over and protect him.   Mother said M. and D. had a “very strong bond,” D. took on a mother role to M. when they were removed from her, and they had lived together since M. was born until two and a half to three months ago.   Mother believed it would benefit M. to maintain a relationship with his sister because he would be happy and not depressed, and would have a normal life.

On cross-examination by the Department's attorney, mother agreed that she did not think the court should have taken jurisdiction of her children and the allegations that led to them being taken were false.   Mother testified the reports of physical abuse of D., which started in 2001, were false, as were the reports of her using methamphetamine in 2001, 2005, 2006 and 2007, which she said were “unfounded.”   When asked if the court's finding that she had a substance abuse problem with methamphetamine and marijuana which negatively affected her ability to provide for the care of her children was wrong, mother testified she did not have that kind of problem and the finding was wrong.

On cross-examination by M.'s attorney, mother testified she was not aware that he had been diagnosed with ADHD or that he was sometimes hard to control.   In all of her visits with him, she never noticed he was hard to deal with, discipline or make listen.   Mother testified M. is a normal kid, and normal kids at his age have energy.   When asked how she would discipline M. if he came to live with her, mother said she follows through with what she says, and when she tells him no and he's not listening, she takes him to his room for a time out, where he stays.   Mother said M. always listens to what she says and is never hyperactive.   Mother was aware M. was having problems learning in school, but she blamed that on his foster care.   According to mother, M. was always honest with her, never lied to her, and she was not aware of him lying to anyone else.   Mother said she would deal with M.'s problems in school by being involved and making sure his educational needs were met.

On cross-examination by D.'s attorney, mother testified that M. started becoming angry and hitting after his sister was removed from his foster home.   Mother said M. shows his bond with his sister by hugging her and showing his concern for her.   Mother remembered the report of M. kicking D. during a visit and said that was just a brother-sister type of fight.   Mother said they loved each other “to death.”

The Department's attorney argued the section 388 petition should be denied because mother had not shown either changed circumstances, as her testimony indicated she had no insight into the problems that led to dependency and had not benefitted from services, or that it would be in the children's best interest.   With respect to M.'s plan, the Department's attorney requested the court find by clear and convincing evidence there was no currently identified adoptive home and M. had a probability of adoption.   The Department's attorney further argued that while M. had behavioral problems, he was developmentally on target and generally adoptable, and the court could find M. was a difficult-to-place child based on the fact he recently had been identified as having ADHD. The Department's attorney alternatively argued that if the court could not find M. was difficult to place, it could terminate parental rights that day.   Finally, the Department's attorney requested that the court at least identify adoption as the permanent plan and continue the hearing for 180 days to look for a suitable adoptive home.

D.'s attorney submitted on the Department's report regarding its recommendation of long-term foster care as her permanent plan, but stated D. was opposed to adoption as M.'s permanent plan, as they had lived together all of M.'s life, with the exception of the last three months, and the two had a strong bond.   She requested a bonding assessment be completed to assess their relationship.   D.'s attorney asserted D. was also opposed to a reduction in visitation, but if it was going to be reduced, she asked that it at least be two visits per month.

M.'s attorney was concerned with the fact the court had found he was diagnosed with ADHD, but mother did not appear to recognize the issues that would be present if he were placed in her home.   M.'s attorney knew he loved his mother and sister, but was concerned with how mother was going to be able to raise him.   Accordingly, the attorney believed adoption was the appropriate plan.   M.'s attorney agreed visitation should be twice per month, and stated M. loved his sister and would want to spend time with her.

Both mother and father were opposed to adoption as M.'s permanent plan, arguing that the beneficial relationship and substantial interference with a sibling relationship exceptions to termination of parental rights applied.   Mother's attorney requested the court grant the section 388 petition and return mother to family reunification services.   Mother's attorney asked the court to consider that M. had recently been diagnosed with ADHD, therefore he would have difficulty finding an adoptive home.   Mother's attorney asked the court to consider a permanent plan of either long-term foster care or legal guardianship for M. if it was not inclined to grant the section 388 petition.   Mother also opposed reduction of visits.

The court denied the section 388 petition, explaining that it agreed with the Department's attorney's assessment that there was no change in circumstances that warranted the requested order and no showing it would be in the children's best interest.   On the issue of permanency planning, with respect to D., the court (1) ordered foster care as her appropriate permanent plan, (2) appointed D.'s care providers to make education decisions, and (3) reduced visitation with her parents to twice per month, supervised by the Department or an approved agency.   The court admonished the parents not to discuss the case or any further future placement of D. during visits with her.

As to M., the court found (1) adoption as M.'s appropriate permanent goal, (2) it was necessary to limit the parents' rights to make educational decisions for M., (3) by clear and convincing evidence, M. “does have a probability of adoption,” and (4) as of that date, there were no identified or available prospective adoptive parents.   Accordingly, the court ordered (1) M. remain a dependent of the court, (2) the Department undertake efforts to locate an appropriate adoptive family, (3) a section 366.26 hearing for M. be held within 180 days, (4) reasonable, once per month visitation supervised by the Department only, and (5) the parents' educational rights suspended and the rights given to M.'s current care provider.   The court ordered sibling visitation twice a month, to be supervised by the Department, and an assessment of the sibling bond.

The court continued the order for the bonding study between M. and his parents.   The Department's attorney stated the only item he left off the requested findings and orders is that M. “is difficult to place for adoption,” which “would be added to the adoption as the permanent plan,” which is “one of the findings.”   The court responded:  “I am not sure that I can make that finding that he's difficult to adopt.   I think there is a probability that he can adopt.   Now with the next two-six hearing date, the Department can then provide me with additional information about whether he is difficult to adopt.   I recognize that this child is troubled.   I see it in the visitations.   I see some issues regarding D[ ] and M[ ]. I don't know if D[ ] is parentified, mother's statement that she basically allowed D[ ] to mother M[ ], I see some issues regarding M[ ]'s-he may have some learning difficulties and challenges, but I don't know that that all rises to the level of being difficult.”

The court continued in effect its previous order for unsupervised visits for the children's great-grandmother, Mrs. H., to be arranged by the social worker.   In addressing Mrs. H., who was present at the hearing, the court stated it was really concerned about the information in the reports regarding M.'s interaction with mother, and wanted to know that M. was safely visiting Mrs. H. and she was a positive influence on him.   The court stated it understood the Department was considering assessing her, as well as other relatives, for possible placement of M. The court set an interim review hearing for January 2010, a review hearing for D. in May 2010, and a continued section 366.26 hearing as to M. in June 2010.

DISCUSSION

The Section 388 Petition

Mother contends the juvenile court abused its discretion by denying her modification request.   Any party to a dependency proceeding may petition the court to modify or set aside a prior order on the grounds of change of circumstance or new evidence. (§ 388, subd. (a).)  The party must also show the proposed change would promote the child's best interest.  (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).)   Whether the juvenile court should modify a previously made order rests within its discretion and its determination may not be disturbed unless there has been a clear abuse of discretion.  (Id. at p. 318.)   The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.  (Ibid ) All conflicts in the record must be resolved in favor of the juvenile court's decision and all legitimate inferences indulged in to uphold that decision.   (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.)   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.   (Stephanie M., supra, 7 Cal.4th at pp. 318-319.)

The procedure under section 388 accommodates the possibility that circumstances may change so as to justify a change in a prior order.  (In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).)   Here, mother sought to set aside the court's June 2009 order terminating reunification services and continuing the children's out-of-home placement.   She contends her circumstances had genuinely changed since then, as she had completed most of her case plan while working on her own to reunify, was staying clean and sober, remained in recovery and was participating in NA and AA meetings, was taking domestic violence education classes, had her own home and continued visiting the children.   In mother's estimation, this proof, coupled with evidence of regular and affectionate visits between her and the children, as well as M.'s apparent injuries while in his foster home, warranted an order either providing her with reunification services or returning the children's custody to her.   Having reviewed the record as summarized above, we conclude the court properly exercised its discretion by denying mother's petition.

First, the juvenile court reasonably concluded that mother failed to demonstrate a genuine change in circumstances.   She had a longstanding drug problem which she had difficulty overcoming.   She was offered drug treatment in April 2003 when on family maintenance, yet continued to use drugs.   Even after her children were removed in November 2007 and she was ordered into treatment, her drug use continued.   While she eventually entered and completed an inpatient drug treatment program in November 2008, within two months she had relapsed.   By the 18-month review hearing in June 2009, she continued to test positive for methamphetamine.   As of the November 2009 hearing on her petition, mother had resumed participation in her aftercare program and presented one clean drug test from September 2009.   Without dismissing or diminishing her accomplishments, her recent sobriety was nonetheless insufficient to demonstrate she had made sufficient inroads into her persistent substance abuse problem that returning the children to her or resuming reunification services would be appropriate.  (See, e.g. In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [parents with extensive drug use history did not show changed circumstances where rehabilitation efforts were only three months old at time of section 366.26 hearing];  In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [seven months' sobriety does not constitute changed circumstance where parent has history of periods of sobriety and relapses];  In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn.   9 (Kimberly F.) [“It is the nature of addiction that one must be ‘clean’ for a much longer period than 120 days to show real reform”].)   The juvenile court did not abuse its discretion in finding mother failed to show a genuine change in circumstances that would merit considering resuming reunification services or placing the children with her.

Even assuming mother showed changed circumstances, she did not establish reopening reunification services or returning the children to her care would be in their best interests.   In the trial court she asserted it would be in the children's best interests to resume reunification services or return them to her because they loved her, she and the children were bonded, and she was a good mother.   On appeal, she focuses on factors advanced by the appellate court in Kimberly F., supra, 56 Cal.App.4th at pp. 530-532, to evaluate the children's best interests.   Both arguments miss their mark.

Parent and child share a fundamental interest in reuniting up to the point at which reunification efforts cease.  (In re R.H. (2009) 170 Cal.App.4th 678, 697.)   By the point of a section 366.26 hearing to select and implement a child's permanent plan, however, the interests of the parent and the child have diverged.  (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.)   Indeed, children have a fundamental independent interest in belonging to a family unit and they have compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.  (Marilyn H., supra, 5 Cal.4th at p. 306.)   Adoption gives a child the best chance at a full emotional commitment from a responsible caretaker.  (In re Celine R. (2003) 31 Cal.4th 45, 53.)

Therefore, after reunification efforts have terminated, the court's focus shifts from family reunification toward promoting the child's needs for permanency and stability.  (Marilyn H., supra, 5 Cal.4th at p. 309.)   In fact, there is a rebuttable presumption that continued foster care is in the best interests of the child.  (Id., at p. 310.)  “A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child.”  (Stephanie M., supr a, 7 Cal.4th at p. 317.)

In Kimberly F., the case on which mother now relies, the Court of Appeal rejected a juvenile court's use of a simple best interest test - of comparing the household and upbringing offered by the natural parent or parents with that of the caretakers - in analyzing a section 388 petition.  (Kimberly F., supra, 56 Cal.App.4th at pp. 526-530.)   The appellate court then determined a list of factors, not meant to be exhaustive, that should be considered:  the seriousness of the problem leading to dependency and the reason that problem was not overcome by the final review;  the strength of relative bonds between the dependent children to both parent and caretakers and the length of time a child has been in the dependency system in relationship to the parental bond;  and, the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.  (Id. at pp. 530-532.)

Although mother interprets the Kimberly F. factors as those applicable to determining a child's best interest on a section 388 request, the Kimberly F. court described the factors it identified as a “basis on which to evaluate a section 388 motion,” that is both elements:  changed circumstances and best interests.  (Kimberly F., supra, 56 Cal.App.4th at p. 532.)   We agree with Kimberly F. that the nature of a change, the ease by which a change could be brought about, and the reason a change was not made earlier bear on the element of changed circumstances.  (Id. at p. 531.)   We also agree with Kimberly F. to the extent it rejects a “simple best interests” analysis and references the strength and comparable length of a child's existing bonds as factors to be considered in assessing whether a return of custody or a resumption of reunification services would be in a child's best interests.  (See Stephanie M., supra, 7 Cal.4th at p. 325.)  Kimberly F., however, fails to take into account the state Supreme Court's analysis in Stephanie M. of best interests once reunification efforts have failed.   Thus, we do not find Kimberly F. persuasive in this regard.

Accordingly, the issue here is whether mother rebutted the presumption that continued out-of-home placement was in the best interests of the children.   (Marilyn H., supra, 5 Cal.4th at p. 310.)   On this record, she did not, as her evidence did not establish that the children's need for permanency and stability would be advanced by reunification efforts or, certainly, by the immediate return of the children to her custody.   It is important to keep in mind that, where, as here, the court's ruling is against the party who has the burden of proof, it is extremely difficult for mother to prevail on appeal by arguing the evidence compels a ruling in her favor.   Unless the trial court makes specific findings of fact in favor of the moving party, we presume the trial court found mother's evidence lacked sufficient weight and credibility to carry the burden of proof.  (See Rodney F. v. Karen M. (1998) 61 Cal.App.4th 233, 241;  Kunzler v. Karde (1980) 109 Cal.App.3d 683, 688 [judgment appealed from is presumed correct].)   We have no power on appeal to judge the credibility of witnesses or to reweigh the evidence.  (Kimble v. Board of Education (1987) 192 Cal.App.3d 1423, 1427.)

At this point in the proceedings the focus of the case has shifted to the children's interests and what is best for them.   It is unreasonable to expect the children to wait for mother to establish her fitness as a parent.   As the record suggests, mother requires more time to fully develop her parenting skills.   Although she believed the children would be better off with her, there is no evidence to support those beliefs.   It is not enough for mother to merely assert, without evidence, that she should receive custody or services because the children need permanence or are not in an adoptive home.   Mother compares her home to that of M.'s foster family and argues that given the reported injuries he sustained while there, he would be better off with her.   But as the court in Kimberly F. concluded, “the best interests standard cannot be a simplistic comparison between the natural parent's and the caretakers' households.”  (Kimberly F., supra, 56 Cal.App.4th at p. 530.)   Moreover, even if M. was experiencing problems in his foster home, that does not mean that providing mother with more services or custody would provide stability for M. Instead, mother must show that she is capable of providing permanence and stability, a showing she failed to make.

Mother also contends that because the juvenile court continued M.'s permanency planning hearing, the court could have exercised its discretion to give her more services while the Department thoroughly investigated M.'s adoptability.   The problem with mother's scenario, however, is that if the court had granted her petition and ordered more services, the case would have been returned to the reunification phase.   If mother was not successful with her services, the court would have been required to conduct a new review hearing, terminate services, and schedule another section 366.26 hearing, thereby delaying permanence for the children. (§§ 366.22, subd. (b), 366.25, 366.26.)   It is not in the children's best interests for permanence to be delayed for an unknown or indefinite period of time, with no certainty or even likelihood mother could progress to the point of obtaining custody of the children.

In sum, there is insufficient evidence that immediate placement of the children with mother or the delay in permanency planning that would result if she were provided further reunification series would be in the children's best interests.   As much as mother was to be commended for her efforts to deal with her addiction, the fact remained her track record of compliance was very limited relative to the length of the children's dependency.   Under these circumstances, mother's showing did not compel the juvenile court to find return of custody or reinstatement of services would promote the children's best interests.   Therefore, under Stephanie M., supra, 7 Cal.4th at p. 317, we conclude the juvenile court did not err.

Section 366.26, subdivision (c)(3) Finding

Mother challenges the juvenile court's findings as to M. that (1) adoption was his appropriate permanent goal, (2) it could not find he was difficult to adopt, (3) there was a probability he could be adopted, (4) there was no identified or available prospective adoptive parent, and (5) setting a section 366.26 hearing to be held in 180 days.   Specifically, mother contends (1) the juvenile court erred in failing to find termination of parental rights would be detrimental to M., as the evidence demanded a detriment finding, (2) there was no evidence it was probable M. would be adopted, and (3) the court erred in declining to find M. was difficult to place for adoption.   Accordingly, she asserts the court's findings and orders must be reversed.

On July 27, 2010, while this appeal was pending, the juvenile court held a further 366.26 hearing with respect to M. At that hearing, the juvenile court found:  (1) it is not likely M. will be adopted;  (2) there is clear and convincing evidence that termination of parental rights would be detrimental to M. because (a) mother has maintained regular visitation and contact with M. and M. would benefit from continuing the relationship, and (b) M. is living with a relative who is unable or unwilling to adopt M., but who is willing and capable of providing M. with a stable and permanent environment, and removing M. from the relative's physical custody would be detrimental to his emotional well-being;  and (3) legal guardianship is M.'s appropriate permanent plan.   The court appointed Mrs. H. and another individual, D.Y., as M.'s legal guardians.

By an August 23, 2010 order, this court invited the parties to file supplemental briefing on (1) the propriety of taking judicial notice of the juvenile court's July 27, 2010 minute orders, and (2) whether mother's challenges to the juvenile court's permanency planning orders with respect to M. are now moot.   Only mother filed a response, in which she objected to our taking judicial notice of the minute orders on the basis that the orders are not relevant to at least some of the issues on appeal and their main purpose is to prevent reversal, citing In re Zeth S. (2003) 31 Cal.4th 396, 412-413 (Zeth S.).   She also contends the issues she raised concerning M.'s permanent plan are not moot because a continuing controversy exists between mother and the Department, since her children are still dependents subject to the juvenile court's jurisdiction, the juvenile court's findings could have an adverse effect even if dependency jurisdiction is terminated, and she raises important issues of public interest that are capable of repetition, yet evading review.⁵

The question of mootness in a dependency case should be decided on a case-by-case basis.  (In re Dani R. (2001) 89 Cal.App.4th 402, 404-405.)   It is the duty of this court to decide actual controversies by a judgment that can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law that cannot affect the case in issue.  (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.)   When, pending an appeal from a trial court judgment, an event occurs that renders it impossible for the appellate court, even if it should decide the case in favor of appellant, to grant any effectual relief whatever, the appellate court will not proceed to a formal judgment, but will dismiss the appeal.  (Ibid.) A reviewing court, however, may exercise its inherent discretion to resolve an issue rendered moot by subsequent events if the question to be decided is of continuing public importance and is one capable of repetition, yet evading review.  (In re Raymond G. (1991) 230 Cal.App.3d 964, 967.)

Contrary to mother's assertion, this case does not present an issue of continuing public importance.   At issue is whether the juvenile court properly determined section 366.26, subdivision (c)(3), applied to M. This is not a situation, as in the cases upon which mother relies (Renee S. v. Superior Court (1999) 76 Cal.App.4th 187, 196;  In re Jeanette H. (1990) 225 Cal.App.3d 25, 29-30), where a juvenile court policy or practice was at issue that would affect all other dependency cases before the same court.

In addition, mother's contentions are not capable of repetition, yet evading review.   Although the Department certainly could seek to have M. declared adoptable in the future and pursue adoption as his permanent plan, any determination on that issue necessarily will be made based on the facts present at that time, not on prior facts.   We also do not agree with mother's assertion the juvenile court's findings could have an adverse effect on future dependency proceedings should dependency be dismissed and a petition filed at a later time.   While an issue is not moot if the purported error affects the outcome of subsequent proceedings (In re Dylan T. (1998) 65 Cal.App.4th 765, 769), mother fails to explain exactly how a prior finding of a probability of adoption would affect subsequent proceedings, particularly where the juvenile court ultimately found that termination of parental rights would be detrimental and established legal guardianship as the permanent plan.   Whether the juvenile court properly found M. probably was adoptable in November 2009 will shed no light on whether he is probably, or even likely, to be adopted at some future date and has no effect on subsequent proceedings.

Even if we were to reverse the juvenile court's findings as to M. with respect to his permanent plan, the result would be a new section 366.26 hearing with instructions to the juvenile court to reconsider M.'s permanent plan in light of the correct law and current facts.   The juvenile court, however, has already held such a hearing, determined termination of parental rights would be detrimental to M., and ordered a permanent plan of legal guardianship.   There is no effective relief we might afford by reviewing the merits of mother's contentions regarding M.'s permanent plan.  (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315.)   Although, as mother points out, we have inherent discretion to resolve issues despite subsequent events (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1403-1404), we decline to exercise that discretion.   We therefore conclude mother's challenge to the court's section 366.26, subdivision (c)(3) order is moot.⁶

The Visitation Order

Mother claimed she had been visiting the children approximately 20 hours per week through third-party visits with her grandmother every weekend and supervised visits at the church.   The juvenile court reduced mother's visits with D. to twice per month, supervised by the Department or an approved agency, and with M. to once per month, supervised by the Department only.   Mother contends the juvenile court abused its discretion in reducing visitation.

Generally speaking, it is the juvenile court's role to “define the rights of the parties to visitation.   The definition of such a right necessarily involves a balancing of the interests of the parent in visitation with the best interests of the child.   In balancing these interests, the court in the exercise of its judicial discretion should determine whether there should be any right to visitation and, if so, the frequency and length of visitation.”   (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757 [visitation in the context of dispositional orders following removal from parental custody];  but see In re Randalynne G. (2002) 97 Cal.App.4th 1156, 1166, fn. 8, superseded by statute on another ground as stated in In re S.B. (2004) 32 Cal.4th 1287, 1294-1295 [noting “some controversy as to whether the court's visitation order must specify the frequency and length of visitation”].)

Prior to permanency planning, during reunification efforts, visitation generally must be as frequent as possible, consistent with the well-being of the dependent child. (§ 362.1, subd. (a)(1)(A).)   When reunification services are terminated and a permanency planning hearing set, the court must continue to permit the parent to visit the child pending the hearing unless it finds visitation would be detrimental to the child. (§ 366.21, subd. (h).)  Moreover, where the juvenile court has selected a permanent plan of either guardianship or long-term foster care for the dependent child, it must order visitation with the parent unless the court finds by a preponderance of the evidence that visitation would be detrimental to the child. (§ 366.26, subd. (c)(4)(C);  Cal. Rules of Court, rule 5.725(d)(7)(E);  In re Randalynne G., supra, 97 Cal.App.4th at p. 1163.)

The juvenile court is accorded broad discretion in fashioning visitation orders.   Absent a showing of a clear abuse of discretion, we will not interfere with the exercise of that discretion.  (In re Megan B. (1991) 235 Cal.App.3d 942, 953.)   Since reunification was no longer the goal in this case, it was appropriate for the juvenile court to fashion a visitation order balancing mother's right to ongoing contact with her children and the children's best interests.  (In re Shawna M. (1993) 19 Cal.App.4th 1686, 1690.)

Here, the juvenile court reasonably could conclude it was in the children's best interests to reduce visitation.   While mother had been visiting the children consistently, each was experiencing problems that justified a reduction in visitation until those problems could be stabilized.   Two months before the section 366.26 hearing, D. ran away from her foster care placement after being suspended from school.   The social worker noted she had been unstable in her placements due to acting out, running away, manipulation, and problems at school.   She was placed in a new foster home and school.   While she was reportedly doing well, the placement and school were both relatively new.   Moreover, mother was discussing the case and placement issues with D. during visits, in violation of court order.

With respect to M., mother was exhibiting poor parenting skills while interacting with him during visits to the point where the visitation supervisor recommended mother participate in parenting classes.   When M. misbehaved during visits, mother did not know how to redirect him and was unable to control him.   Mother did not have insight into M.'s behavioral problems, as she denied such problems existed, claiming he always listened to her and was never hyperactive.

Given that the case had moved beyond the reunification phase and it was unlikely either child would be returned to mother's care, the juvenile court reasonably could conclude that mother's visits with both children should be reduced at least until D.'s placement was stabilized and M.'s behavioral problems addressed.   While mother points out that the juvenile court did not find visitation to be detrimental to the children, it was only required to make such a finding if it completely denied visitation, which was not the case here.   Mother contends the juvenile court should have considered the children's feelings about visitation when determining whether visits would be detrimental to them.   Even if the children expressed a desire to visit more frequently with mother, however, the court still reasonably could conclude it would not be in their best interests to continue visitation at the same level it had been before the permanency planning hearing, since visitation may not be dictated solely by the child.  (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1138.)

Mother contends the reduction of visitation effectively “doomed her relationship with her children,” citing In re Luke L. (1996) 44 Cal.App.4th 670, 681.   That case, however, has no bearing here, as it involved placement issues during the reunification period that impeded mother's ability to maintain regular visits with her children.   In contrast, this case has moved beyond the reunification phase and into permanency planning.   Mother also contends that the evidence showed visits were beneficial to the children.   Although there certainly was evidence of a beneficial relationship between mother and the children, there was also evidence that visitation was harmful to them.   In light of that evidence, the juvenile court did not abuse its discretion in reducing visitation.

DISPOSITION

The juvenile court's visitation orders and the order denying the October 13, 2009 Welfare and Institutions Code section 388 petition are affirmed.

Gomes, J.

WE CONCUR:

Cornell, Acting P.J.

Dawson, J.

FOOTNOTES

FN1. All statutory references are to the Welfare and Institutions Code unless otherwise stated..  FN1. All statutory references are to the Welfare and Institutions Code unless otherwise stated.

FN2. M.G. was provided reunification services, which the court terminated in June 2009.   He is not a party to this appeal..  FN2. M.G. was provided reunification services, which the court terminated in June 2009.   He is not a party to this appeal.

FN3. Both parents separately sought extraordinary relief from the juvenile court's orders terminating reunification services and setting a section 366.26 hearing.   In unpublished opinions, we dismissed mother's petition as facially inadequate (In re C.W. (Aug. 28, 2009, F057928), and denied father's petition (In re M.G. (Sept. 17, 2009, F057894)..  FN3. Both parents separately sought extraordinary relief from the juvenile court's orders terminating reunification services and setting a section 366.26 hearing.   In unpublished opinions, we dismissed mother's petition as facially inadequate (In re C.W. (Aug. 28, 2009, F057928), and denied father's petition (In re M.G. (Sept. 17, 2009, F057894).

FN4. The visitation reports also contained statements regarding injuries to M. For example, the October 26 report noted that mother told D. that M. had bruises on his back and neck, and his eye was swollen, when he came to a visit at “Nana's house,” and that M. said he had fallen from a playhouse, while the October 5 report noted mother asked M. what happened to his forehead and M. first said he banged it on a light pole but later said he didn't know..  FN4. The visitation reports also contained statements regarding injuries to M. For example, the October 26 report noted that mother told D. that M. had bruises on his back and neck, and his eye was swollen, when he came to a visit at “Nana's house,” and that M. said he had fallen from a playhouse, while the October 5 report noted mother asked M. what happened to his forehead and M. first said he banged it on a light pole but later said he didn't know.

FN5. At the July 2010 hearing, the juvenile court also made the following visitation orders with respect to mother:  (1) supervised visitation with D., with discretion by the Department for third-party supervised visits conditioned upon 10 court days' written notice and updated discovery to counsel;  and (2) reasonable visitation with M. at least once monthly to be supervised by the Department or Mrs. H. We also asked the parties to brief whether these orders rendered moot mother's argument that the juvenile court abused its discretion in reducing visitation in November 2009.   Mother asserts the issue is not moot.   Since the July 2010 order did not restore visitation to its prior level and visitation remains reduced, we will address the visitation issue in the next section..  FN5. At the July 2010 hearing, the juvenile court also made the following visitation orders with respect to mother:  (1) supervised visitation with D., with discretion by the Department for third-party supervised visits conditioned upon 10 court days' written notice and updated discovery to counsel;  and (2) reasonable visitation with M. at least once monthly to be supervised by the Department or Mrs. H. We also asked the parties to brief whether these orders rendered moot mother's argument that the juvenile court abused its discretion in reducing visitation in November 2009.   Mother asserts the issue is not moot.   Since the July 2010 order did not restore visitation to its prior level and visitation remains reduced, we will address the visitation issue in the next section.

FN6. In so concluding, we take judicial notice of the juvenile court's July 27, 2010, minute order finding it is not likely M. will adopted, termination of parental rights would be detrimental to M. and legal guardianship is his appropriate permanent plan, and appointing legal guardians for M. (Evid.Code, §§ 455, 459.)   We recognize the Supreme Court has stated post-judgment evidence of changed circumstances may not, except in extraordinary circumstances, be used as a basis to reverse on appeal the termination of parental rights.  (Zeth S., supra, 31 Cal.4th at pp. 412-413.)   However, this appeal is not from an order terminating parental rights and we are not reversing the judgment.   Moreover, the order relates solely to the question of whether an issue raised in this appeal is moot, which is a purpose Zeth S. does not prohibit.  (In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1417.).  FN6. In so concluding, we take judicial notice of the juvenile court's July 27, 2010, minute order finding it is not likely M. will adopted, termination of parental rights would be detrimental to M. and legal guardianship is his appropriate permanent plan, and appointing legal guardians for M. (Evid.Code, §§ 455, 459.)   We recognize the Supreme Court has stated post-judgment evidence of changed circumstances may not, except in extraordinary circumstances, be used as a basis to reverse on appeal the termination of parental rights.  (Zeth S., supra, 31 Cal.4th at pp. 412-413.)   However, this appeal is not from an order terminating parental rights and we are not reversing the judgment.   Moreover, the order relates solely to the question of whether an issue raised in this appeal is moot, which is a purpose Zeth S. does not prohibit.  (In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1417.)