In re Ariah R. CA2/7

Filed 10/14/20 In re Ariah R. CA2/7
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                        SECOND APPELLATE DISTRICT

                                     DIVISION SEVEN


In re ARIAH R. et al., Persons                              B305014
Coming Under the Juvenile                                   (Los Angeles County
Court Law.                                                  Super. Ct. No. CK80252)


LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

AMBER C.,

         Defendant and Appellant.


      APPEAL from an order of the Superior Court of Los
Angeles County, Sabina A. Helton, Judge. Affirmed.
      Jacques Alexander Love, under appointment by the Court
of Appeal, for Defendant and Appellant.
     Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and Veronica Randazzo, Deputy County
Counsel, for Plaintiff and Respondent.

                   __________________________

       Amber C. (Mother) appeals from the juvenile court’s orders
denying her petition under Welfare and Institutions Code1
section 388 and appointing the maternal aunt as the legal
guardian for 12-year-old Ariah, 10-year-old Damian, and 9-year-
old Serenity.2 Mother contends the juvenile court abused its
discretion in denying her section 388 petition, and therefore the
court also erred in appointing the maternal aunt as the children’s
legal guardian. We affirm.

      FACTUAL AND PROCEDURAL BACKGROUND

       The Prior Dependency Case
       On March 5, 2010 the juvenile court declared Ariah and
Damian dependents of the court under section 300, subdivision
(b)(1). The court found true Damian suffered severe withdrawal
symptoms and tested positive for amphetamine and methadone
at birth, and Mother tested positive for methadone on November


1    Further undesignated statutory references are to the
Welfare and Institutions Code.
2     Amber’s father also appealed, but we dismissed his appeal
after his appointed appellate counsel filed a brief pursuant to In
re Phoenix H. (2009) 

47 Cal. 4th 835

indicating counsel could not
find any arguable issues.




                                 2
21, 2009 and methamphetamine on December 16, 2009. On
March 23, 2011 the court declared Serenity a dependent of the
court under section 300, subdivision (b)(1), based on Joel R.’s
(Father) history of illicit drug abuse and use of
methamphetamine and amphetamine, including a December 15,
2010 positive test for methamphetamine and amphetamine and
an October 20, 2010 arrest for being under the influence of a
controlled substance. After Mother and Father completed family
reunification services, the juvenile court terminated jurisdiction
on August 1, 2012.

      The Referral, Petition, and Detention
      On March 21, 2017 the Los Angeles County Department of
Children and Family Services (Department) received a referral
alleging Mother and Father emotionally abused and neglected
the children. The caller reported Father used drugs daily in his
car, was under the influence of drugs while in the home, and sold
drugs from the home. Mother had a history of using
methamphetamine, and neighbors suspected she was using
drugs. Mother and Father denied the allegations and agreed to
submit to drug testing.
      Mother stated the children were enrolled in mental health
services because Ariah threw tantrums and behaved aggressively
towards her siblings and Damian and Serenity mimicked Ariah’s
behavior. Ariah was diagnosed with depression; Damian was
diagnosed with attention deficit hyperactivity disorder; and
Serenity was diagnosed with adjustment disorder. Mother was
very engaged in her children’s mental health needs.
      Mother tested positive for methamphetamine and
amphetamine on April 5, 2017. On May 23, 2017 the Department




                                3
filed a section 300 petition, which it later amended, alleging
Mother and Father had a history of illicit drug use and used
methamphetamine. Mother tested positive for amphetamines
and methamphetamine on June 7, 2017 and failed to drug test on
three dates in May and June. On June 30 the juvenile court
detained the children, and placed them with the maternal aunt,
Danielle R. The court granted Mother and Father monitored
visitation and family reunification services.

       The Jurisdiction and Disposition Report and Hearing
       According to the jurisdiction and disposition report, Mother
tried methamphetamine with friends when she was 16 years old
and used it consistently when she was 18. She met Father when
she was 19 years old, and they used methamphetamine together.
Mother stopped using methamphetamine when she had Ariah,
but she started again while she was pregnant with Damian.
Mother stated she had been sober for seven years and denied
having any relapses. Mother stated her April 5, 2017 positive
test result was caused by a diet pill her friend gave her. Mother
blamed the drug testing site for the April 5 and June 7 positive
test results, stating the site tampered or mislabeled her test
specimens.
       At the July 12, 2017 jurisdiction and disposition hearing,
Mother waived her rights and pleaded no contest to amended
count b-1 in the first amended section 300 petition. Amended
count b-1 alleged Mother had an unresolved history of illicit drug
use and was a recent user of methamphetamine, which
periodically rendered Mother incapable of providing regular care
and supervision of the children. Further, Mother tested positive
for methamphetamine on April 5 and June 7, 2017, and the




                                 4
children were former dependents of the court due to mother’s
substance abuse. Mother’s illicit drug use and Father’s failure to
protect the children endangered the children’s safety and placed
them at risk of serious harm.
       The juvenile court declared the children dependents of the
court under section 300, subdivision (b)(1), and removed them
from Mother’s and Father’s physical custody. The court ordered
Mother to participate in a full drug program with aftercare and
weekly random or on demand drug testing, parenting classes,
and individual counseling to address case issues. The court
granted Mother and Father monitored visits three times a week
for a total of three hours.

      The Six-month Review Period (July 2017 to January 2018)
      As of the January 9, 2018 six-month review status report,
the children remained placed with Danielle. The children were
participating in afterschool tutoring because they were all below
grade level. In addition, Ariah had behavioral problems at
school. Mother and Father visited the children two days each
week and were appropriate with the children during visits. On
June 15, 2017 Mother enrolled in a six-month substance abuse
program and parenting classes. She was in full compliance with
the program requirements and tested negative for drugs 24
times.
      At the March 16, 2018 contested six-month review hearing,
the juvenile court found Mother was in compliance with her case
plan but Father was only in partial compliance with his plan.
Over the Department’s objection, the court granted Mother up to
two hours of unmonitored visits each week. Father was not
allowed to be present during Mother’s visits.




                                5
     The 12-month Status Review Period (February Through
     August 2018)

       Mother completed her six-month substance abuse program
on February 16, 2018, but she tested positive on May 22 and
June 15, 2018 and failed to show for testing on six days during
March through June. On June 19, 2018 Mother told the social
worker she needed to be excused from testing because she had
left early that morning to travel to New Mexico for work. But the
maternal aunt reported Mother was at the maternal aunt’s house
that day to help clean. Mother denied she was using drugs and
stated the testing results were incorrect. On July 12, 2018 the
juvenile court granted the Department’s section 385 motion to
return Mother to monitored visitation because of the two positive
drug tests.
       The September 4, 2018 12-month status review report
stated the children remained placed with Danielle, who met their
needs and provided them with a stable and safe home. Danielle
reported the children’s behavior had improved with fewer
tantrums and defiance. Mother and Father had monitored visits
with the children on Fridays for three hours at Danielle’s home.
Danielle reported the parents were appropriate and the children
were happy to see them. The children stated they enjoyed their
visits with Mother and Father.
       Mother again tested positive for methamphetamine on July
5 and submitted a diluted sample on July 18, 2018. Mother
became upset when the social worker suggested Mother again
enroll in an inpatient drug program. Mother stated she had




                                6
completed her drug program and would not discuss the matter
unless her attorney was present.
      On August 7, 2018 Father was arrested for possession of
heroin, methamphetamine, and drug paraphernalia after Los
Angeles County sheriff’s deputies conducted a traffic stop because
of Father’s expired vehicle registration. When the deputies
approached the car, they saw Mother holding a large open beer
can. When Father opened his car door to exit, a deputy saw a
bundle of hypodermic needles on his lap. Father told the
deputies he had been injecting heroin on a weekly basis for
approximately a year. The deputies searched the vehicle and
found a small bag containing 13 needles with heroin, a glass
methamphetamine pipe with burnt residue, and a small plastic
bag containing methamphetamine.
      At the October 23, 2018 contested 12-month status review
hearing, the juvenile court found the parents were not in
compliance with their case plans. The court terminated family
reunification services for Mother and Father.

      The Section 366.26 and Status Review Reports
      The February 19, 2019 section 366.26 report stated Mother
and Father had not visited the children since December 2018.
The children had been placed with Danielle since June 27, 2017,
and she wanted to be appointed the children’s legal guardian.
The children were happy in Danielle’s home, but Ariah and
Serenity wanted to live with Mother and Father. Ariah stated, “I
want to go back to live with my parents. They didn’t do anything
wrong, everything [the social workers] said about them is not
true. I like living here and my [aunt] treats me good but I just
want to live with my mom and dad again.” Damian said, “I’m




                                7
okay staying to live here. I am happy here. I like having my cats
here.” Serenity reported, “I like living with my [aunt] but I just
want to go back to be with my mom and dad. I miss my mom and
dad.” The Department recommended legal guardianship as the
permanent plan for the children.
      The April 9, 2019 status review report indicated Mother
and Father had monitored visits with the children for two to
three hours on Thursdays. The parents were “appropriate and
interact[ed] well with the children during visits.”

      Mother’s Section 388 Petition
      On July 8, 2019 Mother filed a section 388 petition
requesting return of the children to her custody, reinstatement of
her family reunification services, or modification of the visitation
order to unmonitored visits or increased monitored visitation.
Mother submitted evidence of her completion of a substance
abuse program at S.O.B.E.R. International Community
Counseling Center (SOBER) on May 16, 2019 with 11 negative
drug test results; participation in an aftercare and a parenting
program at SOBER; and a July 7, 2019 letter from therapist
John A. DelGrosso stating Mother had been attending weekly
individual counseling sessions since February 9, 2019. Mother
argued modification of the orders would be in the children’s best
interest because they were deeply bonded to her and would
benefit emotionally from having more contact with her.
      In its response, the Department recommended denial of
Mother’s petition. The Department confirmed Mother had
completed the substance abuse program, tested negative 11
times, started attending individual counseling, and enrolled in a
parenting program. Mother told the social worker she attended




                                 8
weekly Narcotics Anonymous meetings, but Mother did not have
a sponsor or provide an attendance sheet to the social worker.
Notwithstanding Mother’s completion of the programs, the
Department recommended against reinstatement of family
reunification services because Mother minimized her substance
abuse. She continued to blame her April 5, 2017 positive drug
test result on a diet pill her friend gave her, and the May 22,
June 15, and July 5, 2018 positive test results on the drug testing
sites. Mother denied she had an open can of beer in the car with
Father, contrary to the August 7, 2018 police report. Mother
claimed she purchased the beer for her sister and had the can in
her purse to take to her sister.
       The Department also expressed concerns about the
statements made by Mother’s and Father’s drug counselor,
Daniel Garcia. In an August 22, 2019 interview, Garcia, who was
the president of SOBER, stated the substance abuse program was
a six-month program that was held once a week for two-and-a-
half hours. When the social worker asked Garcia whether he had
received proof that Mother and Father had attended Narcotics
Anonymous meetings, he indicated they did not need to give him
proof of their attendance. Garcia stated he did not always do five
panel drug tests; instead, he randomly selected the drugs that
would be tested. He opined the Department “only wants tests
that they can use against parents. . . . [A] lot of [s]ocial [w]orkers
use test results for the client’s disadvantage.”




                                  9
       The Sections 388 and 366.26 Hearing
       The juvenile court held a hearing on Mother’s and Father’s
section 388 petitions,3 followed by the section 366.26 hearing over
the course of three days in December 2019 and January 2020.
Mother, Father, Garcia, and Mother’s pastor George Bojorquez
testified as witnesses.
       Garcia testified he was the president and chief executive
officer of SOBER, as well as the counselor for SOBER’s substance
abuse program. Garcia initially testified he was “certified and
licensed to counsel” on substance abuse and licensed to conduct
random drug tests. However, on cross-examination, he stated his
business was licensed by the State of California “as a community
counseling agency” (not a substance abuse counseling agency).
He did not have any counseling degrees, but instead considered
himself a peer counselor because he was a prior addict. Mother
had completed SOBER’s substance abuse and 10-class aftercare
program, but she continued to take aftercare classes. Mother
also completed a parent education program and took anger
management classes. She submitted to 11 random drug tests
while in the substance abuse program and eight while in the
aftercare program, all of which were negative. Mother also
submitted to additional drug tests since Garcia’s last report in




3      Father filed a separate section 388 petition on August 7,
2019 seeking return of the children to his custody, reinstatement
of his family reunification services, or modification of the
visitation order to allow unmonitored or more frequent visits.




                                10
October 2019.4 SOBER did not usually perform random drug
testing in its aftercare program because the program was free,
but Mother requested to be tested.
       Garcia testified as to SOBER’s random drug testing
program, “[M]y random testing is random on days and random on
drugs. So every test could be changed or different from one to
another. One day, it could be one drug. The next day, it could be
three substances. The next day it could be four. I randomly
change them because that is what I call random testing.” Garcia
analyzed the urine tests himself. Garcia was aware the
Department had a concern about SOBER’s drug testing. Garcia
felt he “opened up a can of worms” because he was not required to
document Mother’s and Father’s negative drug test results.
Garcia added, “All 16 years of my testing and my counseling, I
never [had] to prove and show an actual test. That is my choice.”
Garcia had worked with the Department in the past, and he came
to realize the Department “didn’t give [parents] props for the
good that they did. They only used what was bad against them.”
       Mother testified the substance abuse program taught her
“how to stay away from [her] triggers.” Mother continued to
attend weekly two-and-a-half hour aftercare classes because she
wanted “to show the court that [she] will do anything in [her]
strength to show them that [she] want[ed] to do this.” Mother
also attended more than 15 Narcotics Anonymous meetings and
individual counseling. Mother’s individual counseling sessions
addressed her depression caused by her situation and taught her

4     Mother submitted to a total of 16 drug tests from
September 5 to December 10, 2019 while in SOBER’s aftercare
program.




                               11
“how to turn the negative into positive.” During her visits,
Mother prepared meals for the children, talked to them about
school and their day, did arts and crafts, played at the park, and
bought the children remote control toys. When the children
misbehaved, Mother gave them time-outs and asked them to
reflect on their actions. At the end of the two-hour weekly visits,
the children wanted to spend more time with her.
       On cross-examination, Mother denied she had an open
container of beer during the August 2018 traffic stop. She also
denied Father had a dozen needles in his possession or admitted
to using heroin during his arrest. According to Mother, the police
lied, and Father’s criminal case was terminated because it “was
fabricated.”5 Mother continued to maintain the April 5, 2017
positive test result was caused by taking a diet pill she got from
her friend. But Mother denied telling the social worker that the
drug testing site was to blame for her other positive test results
(except for one). As to one of the positive tests, Mother explained
her “urine leaked into the bag and [the employee] put her hand in
it with no gloves and wringed out the napkin and still sent it
out.” Mother admitted she was using drugs when she tested
positive on June 7, 2017. Mother also admitted she had positive
test results on May 22 and June 15, 2018. But she denied


5     Father submitted a criminal court minute order showing on
July 17, 2019 the trial court ordered Father into a pretrial
diversion program for possession of methamphetamine (Health &
Saf. Code, § 11377; count 1) and possession of drug paraphernalia
(Health & Saf. Code, §11364; count 2). On December 19, 2019 the
court dismissed both counts after Father completed the diversion
program.




                                12
knowledge of the July 5, 2018 positive test result and testified
she was not using drugs in July 2018.
       Bojorquez testified he was the pastor of the church Mother
and Father attended and president of a family wellness business.
Mother and Father were actively involved in the church and
volunteered for many church activities since joining the church
over a year earlier. Bororquez had been the visitation monitor
for Mother’s and Father’s weekly two-hour visits for the past
eight to nine months. Bororquez observed “the parents come well
prepared with material, books, activities, lunch. There is a lot of
interacting going [on], a lot of fun stuff with them. It seems like
the kids are having a great time with them.”
       After the close of testimony, Mother’s attorney argued
Mother demonstrated changed circumstances by completing a
substance abuse program and parenting classes and participating
in individual counseling, Narcotics Anonymous meetings, and an
aftercare program with random drug testing. Further, Mother
tested negative for methamphetamine in her drug programs, and
she had learned from her mistakes. Minor’s counsel urged the
court to deny Mother’s and Father’s petitions, arguing that
although the parents had completed their substance abuse
programs, “the parents are still making excuses and they are in
denial about some of their substance abuse issues and their
partner’s drug use as well.” Minor’s counsel acknowledged the
children loved Mother and Father and wanted to return home,
but she did not believe it was in the children’s best interest to
return home because “both parents have denied, avoided, and
crafted stories for their past drug use.”
       The Department’s attorney vigorously opposed the
petitions, arguing SOBER was a “kind of a joke,” it was not




                                13
sponsored by the Department, and Garcia “had a chip on his
shoulder” and was “biased against the Department.” The
Department’s attorney expressed concern the testing was not a
quantitative toxicology test, but rather, was a simple “litmus
test” one could do at home in which an individual dips the sample
into the solution.6 He asserted the tests therefore “show[] no
sobriety.”
       At the end of the section 388 hearing on January 7, 2020,
the juvenile court denied Mother’s and Father’s petitions. The
court found Garcia’s drug testing was unreliable because he did
not test Father for opiates even though heroin was Father’s drug
of choice. The court added, “Mr. Garcia is not a certified
counselor. And I do agree that he showed some bias against the
Department as evidenced by his statements about the
Department is just out to get parents. They want to use the
results of drug tests against the parents.” Further, “I think
Mother’s continued position that one diet pill caused her positive
test is not credible. I also believe that blaming the other positive
test results from 2018 on the testing site is not credible.” The
court also found there was no evidence the police fabricated the
arrest report. The court determined there “might be changing

6      The SOBER testing results provided to the court listed
tests for cannabis, alcohol, “Meth Amphetamine,” and “other,”
stated whether the test was positive or negative, and included an
image of a testing kit labeled “The Detective” with the words “1
Line = Drug [¶] 2 Lines = No Drug.” By contrast, the toxicology
reports prepared by the laboratory for the Department in this
case listed multiple methamphetamine isomers and
amphetamine, and listed the specific numeric testing result and
screening and confirming cut-off points for each result.




                                14
circumstances” but not “changed circumstances.” The court
stated, “I totally agree that the children are clearly bonded to
these parents. In the ideal world, I would love to see this case go
in a different direction, but given the amount of time that’s
lapsed, I think it is really important for children to have some
permanency and a plan of permanence.” Thus, it was not in the
children’s best interest to extend the case “for another six months
without giving some sort of permanency to these children.”
       As to visitation, Mother requested the court increase her
visitation from the current level of three hours per week. The
Department opposed increased visitation, arguing the legal
guardian should decide how much visitation was appropriate
given the children’s school and friendships. Minors’ counsel
agreed the legal guardian would need to decide how much time
the children could spend with Mother and Father. Mother’s
attorney noted Mother did not have a good relationship with the
maternal aunt, and therefore Mother wanted “a safeguard” to
ensure Mother had sufficient visitation. The court expressed a
concern Danielle was not present to address this issue, and the
court was not aware of the children’s schedule of activities, so it
did not have sufficient information on which to base an increase
in visitation. After further argument of counsel, the court ruled
Mother and Father would have 12 hours each month of visitation
“to be divided as determined by the legal guardian monitored by
Pastor Bojorquez or an agreed upon monitor or paid for by the
parents.”
       With respect to the permanency planning hearing
(§ 366.26), the court found by clear and convincing evidence the
children were adoptable. However, they lived with a relative who
was willing to provide legal guardianship but not adoption. The




                                15
court found it would be detrimental for the children to be
returned to Mother’s and Father’s physical custody. The court
appointed Danielle as the legal guardian, finding this was in the
children’s best interest, and included Mother’s and Father’s
monthly visitation in the final order appointing Danielle as the
guardian. The court terminated jurisdiction with “Kin-GAP”
(Kinship Guardianship Assistance Payments) in place.
      Mother timely appealed the January 7, 2020 orders.

                         DISCUSSION

       Governing Law
       Under section 388, subdivision (a)(1), a parent may petition
to change, modify, or set aside any previously made order based
on a change of circumstances or new evidence. As the moving
party, the parent has the burden of showing by a preponderance
of the evidence (1) a change in circumstances or new evidence and
that (2) modification of the previous order is in the child’s best
interest. (In re Jasmon O. (1994) 

8 Cal. 4th 398

, 415; In re
Stephanie M. (1994) 

7 Cal. 4th 295

, 317 (Stephanie M.); see Cal.
Rules of Court, rule 5.570(h)(1)(D).) New evidence or a change in
circumstances must be of such a significant nature that it
requires modification of the challenged order. (In re J.M. (2020)

50 Cal. App. 5th 833

, 846 [mother established substantial change
of circumstances by presenting uncontroverted evidence she had
completed domestic violence programs, had no contact with
father, had negative drug tests, addressed mental health issues,
and had stable housing]; In re A.A. (2012) 

203 Cal. App. 4th 597

,
612 [mother failed to show changed circumstances despite
completion of services and programs while incarcerated because




                                16
she did not address her continued incarceration, which was the
basis for termination of reunification services].) “[A] section 388
petition seeking reinstatement of reunification services or return
of the child will necessarily involve a parent who has made
mistakes sufficient to support termination of services at some
point in the past. The question must be whether the changes the
parent made since then are substantial enough to overshadow
that prior determination, such that reunification is now in the
child’s best interests.” (In re J.M., at p. 848.)
       “After the termination of reunification services, the
parents’ interest in the care, custody and companionship of the
child are no longer paramount. Rather, at this point ‘the focus
shifts to the needs of the child for permanency and stability’
[citation], and in fact, there is a rebuttable presumption that
continued foster care is in the best interest of the child.
[Citation.] A court hearing a motion for change of placement at
this stage of the proceedings must recognize this shift of focus in
determining the ultimate question before it, that is, the best
interests of the child.” (Stephanie 

M., supra

, 7 Cal.4th at p. 317;
accord, In re C.W. (2019) 

33 Cal. App. 5th 835

, 839; In re J.C.
(2014) 

226 Cal. App. 4th 503

, 527.)

       Standard of Review
       Where the juvenile court finds the parent has not carried
his or her initial burden to demonstrate changed circumstances
or new material evidence, we review whether the evidence
compels a finding in the parent’s favor as a matter of law. (See In
re Elizabeth M. (2018) 

19 Cal. App. 5th 768

, 782; In re Breanna S.
(2017) 

8 Cal. App. 5th 636

, 647; In re I.W. (2009) 

180 Cal. App. 4th 1517

, 1528, disapproved on another ground in Conservatorship of




                                17
O.B. (2020) 

9 Cal. 5th 989

, 1010, fn. 7.) “Specifically, the question
becomes whether the appellant’s evidence was (1) ‘uncontradicted
and unimpeached’ and (2) ‘of such a character and weight as to
leave no room for a judicial determination that it was insufficient
to support a finding.’” (In re I.W., at p. 1528.)
       We review the juvenile court’s best interest determination
for an abuse of discretion. (Stephanie 

M., supra

, 7 Cal.4th at
p. 318; accord, In re I.B. (2020) 

53 Cal. App. 5th 133

, 153.) “‘“[A]
reviewing court will not disturb that decision unless the trial
court has exceeded the limits of legal discretion by making an
arbitrary, capricious, or patently absurd determination
[citations].”’” (Stephanie M., at p. 318; In re I.B., at p. 153.)
“‘“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., at pp. 318-
319; accord, In re I.B., at p. 153.)

      The Juvenile Court Did Not Err in Denying Mother’s
      Section 388 Petition
      Mother contends she showed changed circumstances
because she completed a six-month substance abuse treatment
program, an aftercare program, parenting classes, and anger
management classes; participated in individual counseling; and
tested negative for drugs. But the juvenile court found Garcia,
who provided the substance abuse treatment and administered
the drug tests, was biased against the Department and the drug




                                18
tests he administered were unreliable.7 Although Mother argues
on appeal Garcia was licensed as a substance abuse counselor,
Garcia testified his program was licensed “as a community
counseling agency,” and Garcia did not have any counseling
degrees, instead serving as a peer counselor. Further, Garcia
performed the urine analysis himself with a testing kit that
indicated “1 Line = Drug” and “2 Lines = No Drug,” instead of
sending the sample to a laboratory. The testing results simply
stated the sample was positive or negative without providing any
detail about the testing or the results, in contrast to the
Department’s testing laboratory.
       Moreover, notwithstanding Mother’s completion of the
substance abuse program, she was in denial about her substance
abuse problem. She continued to blame her April 5, 2017 positive
drug test result on a diet pill her friend gave her, and the May 22,
June 15, and July 5, 2018 positive test results on errors by the
drug testing site. At the hearing Mother denied she told the
social worker the positive testing results were incorrect with the
exception of one test, instead acknowledging she was using drugs
when she tested positive on June 7, 2017, May 22, 2018, and
June 15, 2018. But the juvenile court found Mother’s testimony
that she never blamed the tests on the testing site not credible.
As to the July 5, 2018 positive test, Mother claimed she was not
aware of the testing result and was not using drugs at that time.



7     The juvenile court explained that it required parents to
submit to testing conducted by reliable agencies, which were
typically Department-approved, and “almost always” Pacific
Toxicology (which analyzed Mother’s prior drug tests).




                                19
       Further, the court found Mother’s testimony not credible
that the criminal case against Father (with whom Mother was
living as of April 1, 2019) was terminated because law
enforcement had fabricated the case and lied about his drug use.
To the contrary, the criminal court minute order showed the
court dismissed the drug charges against Father only after he
completed a pretrial diversion program. On these facts, the
evidence Mother presented of her completion of a substance
abuse program and testing negative for methamphetamine to
show she had regained her sobriety was not “‘uncontradicted and
unimpeached’ and . . . ‘of such a character and weight as to leave
no room for a judicial determination that it was insufficient to
support a finding.’” (In re 

I.W., supra

, 180 Cal.App.4th at
p. 1528; see In re Elizabeth 

M., supra

, 19 Cal.App.5th at p. 782.)
       Mother argues if the Department was concerned about the
reliability of her drug tests, it should have asked her to submit to
drug testing so the Department could confirm she was sober. But
Mother had the burden of proof to show she had addressed her
substance abuse problem, not the Department. (In re 

J.M., supra

, 50 Cal.App.5th at p. 846 [“A parent establishes a
substantial change of circumstances for purposes of section 388
by showing that, during the period between termination of
reunification services and the permanency planning hearing, he
or she has resolved the previously unresolved issues supporting
juvenile court jurisdiction.”]; In re 

A.A., supra

, 203 Cal.App.4th at
p. 612.)
       Even if Mother had established changed circumstances, the
juvenile court did not abuse its discretion in finding it would not
be in the children’s best interest to grant Mother’s section 388
petition. Mother failed to rebut the presumption that the




                                 20
children’s continued placement with Danielle and termination of
reunification services was in their best interest. (Stephanie 

M., supra

, 7 Cal.4th at p. 317; In re 

I.B., supra

, 53 Cal.App.5th at
p. 159.) Although Mother and the children had a strong bond and
the children wanted to return to Mother’s home, the children had
been placed with Danielle for two and a half years (since June
2017). The children were happy in Danielle’s home, and their
behavior had improved since living with the maternal aunt.
Further, as to Mother’s request to modify the visitation order, as
discussed, the court questioned whether Mother had reliably
tested negative for methamphetamine since the termination of
reunification services on October 23, 2018, or completed an
appropriate substance abuse program. On these facts, the court
did not abuse its discretion in concluding it was “really important
for [the] children to have some permanency” through a legal
guardianship, and that extending the dependency case for
another six months or modifying the visitation order8 was not in
the children’s best interest.9



8     As discussed, the juvenile court also declined to increase
the parents’ visitation because Danielle was not present at the
hearing and the court did not have sufficient information on the
children’s activities to assess whether additional visitation was in
the children’s best interest. Mother did not provide information
to the court on how increased visitation would affect the
children’s schedule, nor did she request the court continue the
hearing to obtain additional information.
9     Because we affirm the juvenile court’s order denying
Mother’s section 388 petition, we also affirm the juvenile court’s
order granting legal guardianship and terminating jurisdiction.




                                21
                         DISPOSITION

     We affirm the orders denying Mother’s section 388 petition
and appointing the maternal aunt as the legal guardian.



                                          FEUER, J.
We concur:



             PERLUSS, P. J.



             RICHARDSON, J. 




      
       Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




                                22
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