In re J.M. ( 2020 )

Filed 5/29/20; Certified for Publication 6/17/20 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re J.M., JR., a Person Coming B298473, B301428
Under the Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. DK22314)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
Y.C.,
Defendant and Appellant.
APPEALS from orders of the Superior Court of Los Angeles
County, Philip L. Soto, Judge. Reversed with directions.
Cristina Gabrielidis, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, Jessica S. Mitchell, Deputy County
Counsel, for Plaintiff and Respondent.
In two separate appeals, Y.C. (Mother) challenges
three juvenile court orders regarding her son, J.M., Jr. (J.M.).
In her first appeal (case No. B298473), Mother challenges the
court’s denial of a January 19, 2019 Welfare and Institutions
Code section 3881 petition for modification—joined by J.M.—
through which Mother sought to have J.M. placed with her or, in
the alternative, further reunification services. We conclude that
the trial court abused its discretion in denying this petition and
reverse.
Following termination of her reunification services,
Mother addressed the domestic violence issues that comprised
the entire basis for the sustained dependency petition regarding
J.M. She also addressed various additional concerns the court
and respondent Los Angeles County Department of Children
and Family Services (DCFS) raised throughout the proceedings.
Specifically, the court required efforts from Mother wholly
unrelated to domestic violence, such as improving her living
conditions, completing drug testing, and receiving mental
health services. Mother complied. Thus, since termination of her
reunification services, Mother not only successfully completed all
programs to address domestic violence issues, but did everything
else the court asked of her.
That Mother ameliorated all concerns leading to
dependency court jurisdiction constitutes a substantial change
in circumstances. Moreover, Mother presented evidence that, in
light of this change in circumstances and the record as a whole,
it was in J.M.’s best interests to be placed with her. Namely,
1All subsequent statutory references are to the Welfare
and Institutions Code.
2
Mother provided evidence—including testimony of a DCFS social
worker—that she was ready, willing, and able to care for her
son, that they had a growing bond, and that she posed no danger
to him. The court’s primary reason for denying the petition was
a concern that Mother had not provided sufficient evidence to
address the court’s concern that she was not capable of caring
for J.M.’s special needs, such as evidence reflecting she had
been “trained” on how to do so. That concern, however, was
unsupported by the record and was based on unwarranted
speculation. The record contains no evidence suggesting Mother
could not appropriately care for her son. Rather, it reflects only
that J.M.’s long-term foster caregivers had more experience with
doing so—and had done so without first receiving any “training.”
Accordingly, the court abused its discretion in not granting
Mother’s petition.
Even after the termination of reunification services, at
which point a juvenile court focuses primarily on stability and
permanency for the child, the court’s analysis must be more
nuanced than simply comparing a parent’s home and abilities
with those of a long-term caregiver and deciding which the court
deems preferable. Although, at this stage, a parent’s interest
in maintaining a relationship with his or her biological child is
no longer the focus, the court must still consider the benefits to
a child of remaining connected with his or her biological parent
and extended family. Here, the benefits to J.M. of remaining
connected with a biological parent who has made the kind
of “reformation” for which section 388 creates an “escape
mechanism” (see In re Kimberly F. (1997) 56 Cal.App.4th 519,
528 (Kimberly F.)), overcome the presumption that her son
remaining in a stable and potentially permanent foster home is
3
in his best interests. (See In re Marilyn H. (1993) 5 Cal.4th
295, 309 (Marilyn H.).) The juvenile court erred in concluding
otherwise. Accordingly, we reverse the court’s May 15, 2019
order denying Mother’s section 388 petition, and instruct the
court to place J.M. with Mother.
This disposition of Mother’s first appeal necessarily
requires reversal of the September 30, 2019 orders that are the
subject of Mother’s second appeal (case No. B301428)—namely,
an order denying an August 13, 2019 section 388 petition in
which Mother, joined by J.M., again sought reunification services
or placement, and the order terminating her parental rights.
BACKGROUND
I. Factual and Procedural History Relevant to
Mother’s First Appeal (B298473)
A. Initial Referral and Petition
On March 13, 2017, DCFS received a referral alleging
general neglect of J.M. (born January 2017) by Mother and J.M.’s
father, J.M., Sr. (Father), due to domestic violence. The referral
alleged that the prior evening Mother sent messages to a relative
stating that Father had hit her and threatened to stab her with
a knife. When the police responded, Mother was uncooperative
and denied that there had been domestic violence, even though
she had bruises on her forehead and arm. J.M. was asleep in
the home during the domestic violence incident. He appeared
healthy and clean and had no marks or bruises.
The initial petition DCFS filed on behalf of J.M. sought
jurisdiction over the child based on Mother and Father having
a history of engaging in violent altercations, the March 12, 2017
incident, Father’s conviction for battery, Mother’s failure to
4
protect J.M., and allegations that Mother had a diagnosis of
bipolar disorder and had failed to seek mental health treatment
or take psychotropic medication as prescribed. Crucially, the
court sustained the petition based on the allegations related
to domestic violence only; it struck all other allegations in the
petition.
The court removed J.M., then two months old, from Mother
and Father, and placed him in foster care with M.F. (Caregiver)
and her husband (collectively, Caregivers), with whom J.M.
remains placed. The court granted Mother2 monitored visitation
with the option for DCFS to permit Mother unmonitored visits
at DCFS’s offices. Mother was granted family reunification
services, including domestic violence and parenting classes and
individual counseling. Her case plan further required that she
submit to a psychiatric evaluation and take any psychotropic
medications prescribed.
B. Mother Is Granted, then Loses, Overnight
Visitation with J.M.
Mother visited J.M. consistently over the next several
months. She was very attentive during visits, hugging, holding
and taking pictures of J.M. She expressed that she missed her
son and wanted him to be returned to her care.
In November 2017, she reported that she had moved out
of Father’s home and was renting a room on her own. It was not
2 Because Father is not a party to this appeal and no longer
participating in dependency proceedings, we do not include the
details of the court’s earlier orders relating to Father’s case plan
and visitation.
5
until this point in the proceedings that Mother acknowledged
there had been domestic violence issues with Father.
November 2017 progress notes from the County of
Los Angeles Department of Mental Health (DMH) reflect that
Mother had consulted with a DMH psychiatrist about her lack of
bipolar symptoms and her desire to discontinue her medications.
The psychiatrist indicated Mother could try weaning off her
medications gradually, and Mother agreed to resume all her
medications, should she start feeling emotionally unstable.
In December 2017, after Mother had completed three
successful unmonitored daytime visits, the court ordered DCFS
to assess her home for overnight visits. On January 19, 2018,
the juvenile court granted Mother a 29-day visit with J.M. at her
home. The court did so despite DCFS objections to the size and
condition of Mother’s home, a very small room in a converted
garage with no crawl or play space for the baby and no kitchen
for Mother to cook food, and in which Mother also kept a small
dog. Although the court permitted the 29-day visit, it also
ordered DCFS to confirm Mother’s home was properly permitted.
The court further directed Mother to find a more suitable place
for an infant.
As of January 31, 2018, per DMH progress notes, Mother’s
bipolar disorder was “on remission,” and, at her request, Mother
was not being prescribed any medication.
In February 2018, DCFS asked the court to terminate
Mother’s 29-day visit. It reported that Mother’s unit violated
zoning laws and that Mother was resistant to and no longer
participating in domestic violence training, had discontinued
individual therapy, and was not taking psychotropic medication.
DCFS also reported that Mother had repeatedly denied her lack
6
of compliance and insisted she did not need medication. DCFS
noted further concerns that Mother maintained her home in
a manner that was unsafe for an infant; for example, it noted
concerns that J.M. was observed sleeping in a crib that contained
a mechanical pencil and medication. Mother contested these
reports and accused social workers of fabricating the hazards
they identified. Mother also reported her efforts to work
additional hours so she could earn enough money to afford a new
home.
On February 16, 2018, the court rescinded Mother’s 29-day
visit and returned J.M. to Caregiver. The court explained that
Mother had indicated a month prior that she would move into
safe, permitted housing, but failed to do so, and that living
in an unpermitted home could result in her summarily losing
her housing at any point, should the violation be reported. The
court further expressed concern that Mother might be in contact
with Father, given a DCFS report that, during a surprise visit,
a social worker had observed a man “approaching the back where
[M]other’s room was located” but “when he noticed [the social
worker], he immediately turned around and walked away” “fast”
and “[Mother’s] dog followed the individual.” The court ordered
Mother to stay 100 yards away from and have no contact with
Father. The court granted Mother monitored visitation with
DCFS discretion to authorize overnight visits or release J.M.
to Mother if she moved into a more suitable home and complied
with other court orders. The court further ordered Mother to
submit to weekly and on-demand drug tests.
The court acknowledged that Mother had “consistently,
regularly contacted and visited and made significant progress
in resolving the problems that led to the removal and ha[d]
7
demonstrated the capacity and ability to complete the objectives
of the treatment plan.” The court therefore ordered six months
of further reunification services (in addition to the approximately
nine months Mother already received), but granted DCFS’s
request that Mother submit to a mental health evaluation.
C. Termination of Reunification Services
In the reunification period that followed, Mother made
some positive progress with her case plan and maintained
continuous, positive visits with her son. By all accounts, Mother
was caring, attentive, protective, and loving during her weekly
monitored visits with J.M., and brought J.M. toys, clothing,
shoes, and bottles. DCFS reported no concerns regarding
Mother’s conduct during visits. Mother completed all required
courses and counseling, and started a new job as a truck
dispatcher, which allowed her to work at night from home,
using a computer and cellular phone. She had participated
consistently in individual therapy since February 2018, and was
cooperative and engaged in sessions, openly sharing her history
of trauma. According to a letter from Mother’s therapist during
this period, Mother demonstrated an increased insight into how
past events had led up to her current situation and involvement
with DCFS, and was working on identifying environmental
stressors that have affected her mental health and behaviors.
Mother had also learned strategies to help effectively respond
to stressors. Although not required to do so by the court, and
although DCFS did not report any problems or concerns with
respect to anger management, Mother also participated in anger
management training.
Also during this period, however, Mother violated the
court’s no-contact order regarding Father, which came to the
8
attention of DCFS because Mother was arrested while traveling
with Father on a train and charged with obstructing a police
officer.3 This incident occurred two days after the court issued its
no-contact order.
Mother also had not complied with the court’s order to
complete a mental health evaluation, although she stated that
she had an appointment for the evaluation. As a result, DCFS
reported it was “unknown whether or not [M]other ha[d] any
unresolved mental health issues.” DCFS did not, however,
report any facts suggesting Mother’s mental state or mental
health presented a current risk to J.M., or that it had previously
presented such a risk. Mother was largely compliant with
her drug testing, but had tested positive for marijuana on five
occasions.
On September 19, 2018, the court terminated family
reunification services for Mother, consistent with DCFS’s
recommendation. Mother thus received a total of 16 months of
reunification services, from May 2017 to September 2018. The
court explained that, although Mother had completed most of
her reunification requirements, she had violated the stay-away
order by being arrested with Father, that she was still living
in an illegal unit from which she could be summarily evicted,
and that the presumptive statutory duration of reunification
services for a child as young as J.M. had expired. (See § 361.5,
subd. (a)(1)(B).) The court said it would consider whether to
reinstate reunification services if Mother moved to a domestic
violence shelter or other appropriate housing, had no contact
3 Arrest records reflect that Mother was in jail for
eight days, pleaded guilty to another charge, convicted of
a misdemeanor, and sentenced to three years of probation.
9
with Father, and complied with all other court orders. The
court provided Mother with information on government-assisted
affordable housing that could be made available within a short
period of time. The court set a section 366.26 permanency
planning hearing and granted Mother unmonitored visits with
J.M. once a week with DCFS discretion to liberalize.
Mother filed a petition for extraordinary writ challenging
the juvenile court’s orders terminating family reunification
services and declining to return J.M. to her custody. This court
summarily denied the petition on December 12, 2018.
D. J.M. Receives Treatment for Autism and
Developmental Issues and Continues Positive
Visits with Mother
Mother continued regular visits with J.M. once a week at
a mall, the movies, or the zoo. DCFS increased the duration of
these visits to six hours a week. During the visits, Mother would
feed and teach J.M. how to eat different foods, play with him
and push him on the swings, and was very affectionate towards
him. Neither DCFS nor Caregiver reported any concerns about
the visits, noting that Mother consistently arrived on time and
appeared prepared. Reports from these visits reflected that J.M.
was becoming increasingly comfortable with and connected to
Mother, although he remained bonded with Caregivers as well.
In late 2018, J.M. was diagnosed with various
developmental and other issues and began receiving services
to address them. First, in September 2018, J.M. was diagnosed
with autism. J.M. started “Applied Behavioral Analysis [(ABA)]
therapy from Easter Seals [five times] a week” to address his
autism and related behavioral issues. Due to his young age, the
10
diagnosing pediatrician could not identify where he was on the
autism spectrum.
In December 2018, J.M. began losing language skills,
something that Caregiver suspected may have been related
to fluid in his ears, and he was evaluated by a speech therapist.
The results of the speech and language evaluation revealed that
J.M. had a receptive-expressive language delay, five to eight
months below age expectations. The evaluation recommended
speech and language therapy and a hearing evaluation. Around
this time, J.M. began using sign language to communicate with
Caregiver.
In January 2019, J.M. was evaluated by the Lanterman
Regional Center due to his “speech and language delay” and
because he “is aggressive if he does not get his way, bangs his
head, has limited eye contact, [and is] not always responsive
to his name.” He began receiving 19 hours of services a week,
comprised of speech therapy, “occupational therapy services,”
and the Easter Seals ABA therapy for his autism. Despite these
difficulties, J.M.’s evaluators noted he was able to complete many
age-appropriate tasks, such as drinking from a cup, pulling
himself up to a standing position, walking, throwing and kicking
a ball, and following directions.
E. Mother’s January 2019 Petition for
Modification
Approximately three months after services were
terminated, on January 14, 2019, Mother filed a petition
pursuant to section 388 seeking to modify the court’s order
terminating reunification services and vacate the section 366.26
hearing. Mother sought placement of J.M. with her or, in the
alternative, further reunification services with overnight visits.
11
Mother argued that she had addressed all of the concerns the
court had identified when it terminated reunification services.
Mother had rented a new DCFS-approved home, and reported
having had no contact with Father since her arrest with him
in February 2018. She had been drug testing and receiving
negative results, and her bipolar issues were “on remission.”
Mother further argued that it would be in J.M.’s best
interests for the court to return J.M. to her care, or at least
permit her to continue to work towards reunification, given the
relationship with her son that she had been maintaining through
regular visits. These visits had been improving, as reflected in
DCFS’s decision to liberalize visits to be unmonitored. Mother
had also made arrangements for J.M. to be properly cared for
while she worked, if he were returned to her care.
At a May 15, 2019 hearing, J.M.’s counsel joined Mother’s
petition and argued strongly in favor of returning J.M. to Mother.
Mother offered documentary evidence of a one-year lease at
her new DCFS-approved home, as well as her own testimony.
She testified that she had completed the required reunification
services, had a full-time job as a truck dispatcher that would
allow her to work from home at night while J.M. was asleep,
something she had already discussed with her supervisor.
She testified J.M.’s paternal grandmother and Caregiver had
agreed to help with childcare as needed during the daytime
while Mother slept. Mother further testified that she believed
she was capable of caring for J.M. and his special needs; she
knew about his weekly therapy appointments and could host
them at her new home. Although DCFS had reported some
reluctance on Mother’s part to J.M. using sign language and/or
to Mother learning to use it as well, Mother testified that she
12
approved of J.M. learning sign language, would participate
in any required classes or appointments for him as necessary,
and had been watching YouTube videos to learn basic words, two
of which she demonstrated for the court. She denied Caregiver’s
stipulated testimony that Caregiver had invited Mother to
participate in the sign language instruction. Mother testified
she was also aware of J.M.’s routine doctor visits, but had not
attended any because Caregiver had not adequately informed her
about the appointments.
Charlene Nunez, a social worker who had monitored
J.M.’s visits with Mother, testified that she saw no indication
Mother was unable to meet J.M.’s behavioral needs, that Mother
“soothed him when he was upset,” and that Mother “made
efforts to engage with him” even though he was “on the autism
spectrum,” “difficult to engage with,” and “didn’t like change.”
Nunez described Mother as being “[a]ttentive,” “loving,” and
“patient” with J.M. She further testified that although J.M.
had initially appeared “indifferent” about visits with Mother,
as the visits progressed, he seemed “pleased to see her”
and showed this by “smiling [and] reaching out.” Stipulated
testimony from Caregiver reflected that Mother had purchased
toys, clothes, and a children’s tablet for J.M., and would wash
J.M.’s clothing if it became soiled, then return it to Caregiver at
the next visit.
The court considered an interim review report dated
February 8, 2019, in which DCFS reported that Mother was only
“partially compliant with her court ordered services” because she
“ha[d] yet to receive a psychiatric assessment, which was ordered
on [February 16, 2018]” and DCFS had been unable to obtain
certain mental health records. DCFS did not report any facts
13
suggesting that Mother’s mental state or mental health put J.M.
at risk. Nevertheless, citing concerns about her mental health,
DCFS had not liberalized Mother’s visits to overnight, despite
her repeated requests that it do so. Mother attempted to offer
evidence to establish that DCFS “creat[ed] artificial blockades”
to obtaining her mental health records, including testimony of a
DMH worker who had interfaced with DCFS regarding Mother’s
case. In addition, according to Mother’s counsel, the records
DCFS was seeking were known to DCFS at the time the
department cited them as a basis for denying overnight visits.
The court declined to consider any such evidence or argument,
explaining that “[d]irtying up [DCFS] workers doesn’t make
[Mother] any cleaner.”
In a last minute information report submitted to the court
in April 2019, DCFS acknowledged that Mother’s mental health
records “do not discuss any need of medication,” and the records
themselves further reflect that, as of February 2019, the DMH
had concluded that “[n]o further follow[-]up [was] required as
[Mother] does not meet medical necessity for specialty mental
health services and client is not interested in participating in
mental health services.”
Although DCFS focused on Mother’s mental health and
questioned her bond with J.M., the court did not view these
issues as driving factors in ruling on Mother’s petition. It stated
that mental health issues were not a basis for its decision, and
acknowledged that J.M. was bonded to Mother to a certain extent
and “glad to see [her]” during visits. The court identified as
“[t]he real issue” whether Mother could “do what needs to be
done for this child . . . [with] special needs.” The court found it
did not “have any . . . concrete evidence” to that effect, such as
14
evidence that Mother had “been trained on how to deal with
these issues or that [she was] taking recognized training . . .
or . . . ready, willing and able to take the child to lessons.” No
evidence was presented, however, as to what type of “training,”
if any, Mother might need.
Based on Mother’s failure to be truthful with the court
in the past, the court “ha[d] issues about her credibility” and
deemed her testimony insufficient to establish that she would
be able to handle J.M.’s care and special needs while working
nights in the manner she proposed. More specifically, the court
noted that Mother had failed to offer evidence beyond her own
testimony that the paternal grandmother and/or Caregiver would
be willing to provide childcare whenever Mother was unavailable
(such as declarations of paternal grandmother and Caregiver), or
that she was capable of caring for a child with special needs while
working full-time. The court therefore denied Mother’s petition.
Mother timely appealed the court’s denial.4
II. Procedural Developments Since Mother’s First
Appeal
Following the denial of her January 2019 modification
petition, Mother continued to seek overnight visits, and the court
continued to leave this in the discretion of DCFS. DCFS declined
to do so.
On August 13, 2019, Mother filed another section 388
petition, again requesting that the court return J.M. to her or,
alternatively, grant her additional reunification services and
overnight visits. J.M. again joined the petition.
4 J.M. appealed as well, but subsequently dismissed his
appeal.
15
The court held a hearing and denied the petition.
Immediately thereafter, the court found J.M. was adoptable
and that adoption was in his best interests. It rejected Mother’s
contention that she had established a parental relationship with
J.M. significant enough to warrant application of the parental
relationship exception to adoption and terminated her parental
rights.
Mother timely appealed the court’s orders denying
Mother’s August 2019 petition for modification and terminating
her parental rights. We consolidated Mother’s appeal from this
order and Mother’s appeal from the court’s earlier order denying
Mother’s January 2019 petition for modification.
DISCUSSION
We first consider whether the juvenile court committed
reversible error when it denied Mother’s January 14, 2019
modification petition.
Section 388 allows a parent to petition to change, modify,
or set aside any previous juvenile court order. (§ 388, subd. (a).)
“The petitioner has the burden of showing by a preponderance
of the evidence (1) that there is new evidence or a change of
circumstances and (2) that the proposed modification would
be in the best interests of the child.” (In re Mickel O. (2011)
197 Cal.App.4th 586, 615.) “[T]he change in circumstances must
be substantial.” (In re Ernesto R. (2014) 230 Cal.App.4th 219,
223; see also In re Mickel O., supra, 197 Cal.App.4th at p. 615
[change must be genuine and “ ‘of such significant nature that
it requires a setting aside or modification of the challenged prior
order’ ”].)
The section 388 modification procedure is an “ ‘escape
mechanism’ when parents complete a reformation in the short,
16
final period after the termination of reunification services but
before the actual termination of parental rights.” (Kimberly F.,
supra, 56 Cal.App.4th at p. 528; see Marilyn H., supra, 5 Cal.4th
at p. 309 [“the Legislature has provided the procedure pursuant
to section 388 to accommodate the possibility that circumstances
may change after the reunification period that may justify a
change in a prior reunification order”].) We review a juvenile
court’s denial of a section 388 petition for abuse of discretion,
and review its factual findings for substantial evidence. (In re
Robert L. (1993) 21 Cal.App.4th 1057, 1067.) We may disturb the
exercise of the court’s discretion only when the court has made
an unreasonable or arbitrary determination. (In re Stephanie M.
(1994) 7 Cal.4th 295, 318 (Stephanie M.).)
A. Mother’s Petition Established a Substantial
Change in Circumstances
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. (See In re A.A. (2012) 203 Cal.App.4th 597, 611–612
[“The change in circumstances” must be such that “the problem
that initially brought the child within the dependency system
must be removed or ameliorated. [Citation.] The change in
circumstances or new evidence must be of such significant nature
that it requires a setting aside or modification of the challenged
order.”].) Mother made such a showing. Namely, she offered
substantial evidence that she had resolved the domestic violence
underlying the initial dependency petition: She had not been in
contact with Father for over a year, had completed all required
17
domestic violence training, and nothing suggested Mother was or
had been in another potentially violent or abusive relationship.
Moreover, Mother offered evidence that she had also
addressed the myriad of other concerns—completely unrelated
to any risk of domestic violence—that the court raised in
terminating her reunification services. Namely, she offered
uncontroverted evidence that she had stable and permitted
housing, participated in individual therapy, completed parenting
and anger management programs, and no longer needed any
psychotropic medications or mental health services. The court
made no findings to the contrary.
Thus, Mother presented ample evidence that she had
addressed the sole basis for juvenile court jurisdiction—domestic
violence—as well as every other concern cited by the court in
its order terminating reunification services. This constitutes
a substantial change for the purposes of Mother’s section 388
petition, and the trial court abused its discretion in concluding
otherwise.
B. The Trial Court Abused Its Discretion in
Concluding Placement with Mother Would
Not Be in J.M.’s Best Interests
The more difficult question presented by Mother’s petition
is whether, in light of these changed circumstances and the
evidence in the record as a whole (see In re Jamika W. (1997)
54 Cal.App.4th 1446, 1450–1451), returning J.M. to her care
and/or permitting her additional reunification services would
have been in J.M.’s best interests—the “ultimate question” on
a section 388 petition. (In re Angel B. (2002) 97 Cal.App.4th
454, 464.)
18
After reunification services have been terminated,
there is “a rebuttable presumption that continued foster
care is in the child’s best interests.” (In re Aaliyah R. (2006)
136 Cal.App.4th 437, 448; Marilyn H., supra, 5 Cal.4th at
p. 310.) This presumption arises because, post-reunification,
“the parents’ interest in the care, custody and companionship
of the child are no longer of overriding concern. [Citation.]
The focus then shifts to the child’s need for permanency and
stability.” (In re Aaliyah R., supra, 136 Cal.App.4th at p. 448.)
The presumption is especially difficult to overcome when
adoption is the permanent plan. (Id. at pp. 448–449.)
But this presumption cannot mean any section 388 petition
is automatically doomed to fail when it seeks return of a child
currently doing well in a potentially permanent placement. The
California Supreme Court has made clear that section 388 plays
a vital role in preserving due process in dependency proceedings
overall. Namely, the Court has held that it is only when read in
conjunction with the “escape mechanism” section 388 procedures
create that the limited options available at a selection and
implementation hearing under section 366.26 comply with due
process. (Marilyn H., supra, 5 Cal.4th at p. 309 [“Section 388
provides the ‘escape mechanism’ that [the] mother maintains
must be built into the process to allow the court to consider
new information. [¶] Sections 366.26 and 388, when construed
together and with the legislative scheme as a whole, are
reasonable and bear a substantial relation to the objective
sought to be attained.”].) Thus, that section 388 provides such an
“escape mechanism” in practice, not just in theory, “is vital to the
constitutionality of our dependency scheme as a whole, and the
19
termination statute, section 366.26, in particular.” (Kimberly F.,
supra, 56 Cal.App.4th at p. 528, italics omitted.)
It follows that, in determining whether a parent has
rebutted this presumption, a court may “not simply compare
the household and upbringing offered by the natural parent
or parents with that of the caretakers.” (Kimberly F., supra,
56 Cal.App.4th at p. 529.) Were this the analysis, given the focus
at this stage on stability and permanence, in any case involving
a foster placement with excellent care and/or more resources and
opportunities for the child than the biological parents may be
able to offer, section 388 would not serve as the important due
process check the California Supreme Court has described it
to be. Thus, rather than such a “one dimensional” simple best
interests comparison, a court must perform a more nuanced
best interests analysis, considering, at a minimum: “(1) [t]he
seriousness of the problem which led to the dependency, and the
reason for any continuation of that problem; (2) the strength of
relative bonds between the dependent children to both parent
and caretakers,” taking into account “any interest of the child
in preserving an existing family unit, no matter how, in modern
parlance, ‘dysfunctional’ ” and “the complexity of human
existence;” and (3) the nature of the changed circumstances and
the reason a change was not made sooner. (Kimberly F., supra,
56 Cal.App.4th at pp. 530, 532, italics omitted.) These “factors
will fall along a continuum, one extreme of which is the notion
that just because a parent makes relatively last-minute (albeit
genuine) changes he or she is entitled to return of the child, [and]
the other is the obvious attractiveness of insuring that the child
remains with highly functional caretakers. Neither extreme can
be dispositive.” (Ibid.)
20
Applying such an analysis to the instant appeal, we
address together the first and third factors regarding the nature
and timing of initial dependency jurisdiction and the nature and
timing of changes in Mother’s circumstances, as these factors are
closely related here. Domestic violence certainly poses a serious
threat to the well-being and safety of children in the home, but
J.M. was never physically harmed, nor did he witness any such
violence. (Cf. Stephanie M., supra, 7 Cal.4th at pp. 320–324
[reversing appellate decision instructing trial court to grant
section 388 petition where basis of dependency jurisdiction
was extreme battery of infant child]; see Kimberly F., supra,
56 Cal.App.4th at pp. 534–535 [distinguishing Stephanie M.
based in part on this factor].) Mother was initially unwilling
to acknowledge the issue and initially struggled to stay away
from Father. But denying J.M. the benefit of being raised
by his biological mother based on her mistakes early in the
proceedings—particularly when she no longer posed a risk to
him—would be to make the perfect the enemy of the good.
The goal of dependency court proceedings is not to engineer
perfect parents, but to protect children from harm. (See § 300.2;
Marilyn H., supra, 5 Cal.4th at p. 307.) Moreover, 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. That Mother did not immediately break
free from the cycle of abuse does not render it in J.M.’s best
interests to deny him the opportunity to be raised with his
21
biological mother and extended family, with all the benefits
courts recognize this could offer him, particularly when, at the
time of the hearing on her petition, Mother had for over a year
avoided contact with Father and maintained stable, appropriate
housing and gainful employment.
As to the relative strength of J.M.’s relationships with
Mother and with Caregivers, the record reflects J.M. has a strong
bond with Caregivers. Although a child’s bond to foster parents
is an important consideration, it “cannot be dispositive . . . lest
it create its own self-fulfilling prophecy.” (Kimberly F., supra,
56 Cal.App.4th at p. 531.) But Mother has also maintained
a relationship with J.M.—despite only having a portion of one
day each week with him—and that relationship, even according
to DCFS, is blossoming. Mother’s brothers and the paternal
grandmother also offer J.M. an extended biological family, with
whom J.M. could remain connected, if placed with Mother. This,
too, is an important and beneficial aspect of the relationship
between Mother and J.M. (See id. at pp. 529–530.)
In assessing Mother and Caregivers’ relationships with
J.M., we are cognizant of the fact that Mother was repeatedly
denied overnight visits based primarily on DCFS’s concerns
about Mother’s mental health that, at least part of the time,
were unfounded. The court had deemed Mother’s mental
health a nonissue when it terminated reunification services
in September 2018. Nothing in the record suggests Mother’s
mental health ever put J.M. at risk; indeed, at the time of the
initial petition, the court struck the jurisdictional allegations
based on her mental state. Since then, Mother’s symptoms
subsided and DMH determined that further treatment was not
medically necessary. DCFS nevertheless cited mental health
22
as at least the primary basis for denying Mother overnight visits
that may well have allowed her to develop a deeper bond with
J.M. and more fully demonstrate her ability to care for him.
Whether or not the court erred in refusing Mother’s evidence
of DCFS’s claimed failure to sooner obtain (or realize that it
already had in its possession) mental health records reflecting
that Mother did not need mental health services or psychotropic
medication is not directly before us. But the fact of the delay
in resolving what the court deemed in September 2018 to
be a nonissue nevertheless provides important context when
considering the relative strength of Mother’s and Caregivers’
relationships with J.M.
J.M.’s special needs were the primary focus of the court’s
best interests analysis on Mother’s petition. Although Mother
was never required to participate in any training regarding
her son’s special needs, the court cited as a basis for its decision
Mother’s lack of such training, suggesting placement with
Mother would not be in J.M.’s best interests because she was
not prepared to deal with his development issues and autism.
But neither the court’s nor DCFS’s view in this regard constitutes
evidence that Mother was in any way incapable of or unwilling
to care for J.M., nor does the record contain any such evidence.
Indeed, the record contains evidence—which the court did not
discredit—to the contrary. Namely, DCFS reports and testimony
reflected that DCFS had no concerns about Mother’s ability
to care for her son’s needs or her childcare arrangements.
Moreover, nothing suggests that Caregivers, whom the court
and DCFS rightly applaud for having assisted J.M. in making
progress with his various issues, received any training prior to
J.M. beginning services in their home. The court’s speculation
23
that Mother requires such training—again, despite
uncontradicted evidence to the contrary—is an arbitrary and
unreasonable basis for concluding placement with her would
not be in J.M.’s best interests.
Although J.M. came within the jurisdiction of the court
based on domestic violence issues with Father that placed J.M. at
risk, the court devised a list of ways, wholly unrelated to any risk
of domestic violence, in which Mother needed to prove herself as
a parent in order for her to earn back her child—obtain permitted
housing, keep her home neat, or do some unidentified “training”
regarding how to care for him. Failure to correct these purported
problems would not have created a risk to J.M. independently
sufficient to support juvenile court jurisdiction. (See, e.g., In re
G.S.R. (2008) 159 Cal.App.4th 1202, 1212 [“poverty alone, even
abject poverty resulting in homelessness, is not a valid basis
for assertion of juvenile court jurisdiction”]; In re Paul E. (1995)
39 Cal.App.4th 996, 1005 [home with shorted lamp socket,
exposed motor boat propeller, and dirty wading pool did not
justify removal of child].) Nevertheless, Mother did what the
court asked of her (the court never ordered Mother to take any
training regarding J.M.’s special needs; it merely faulted her
after the fact for failing to do so). All the while, Mother never
stopped visiting her son, never stopped asking for overnight visits
and placement in her home. This shows a tremendous level of
initiative and dedication, and suggests that it would be in J.M.’s
best interests to be placed with her.
The court was certainly entitled to disbelieve Mother’s
testimony on various topics; after all, Mother had lied and been
otherwise untruthful in the past. But the court did not have
discretion to write off Mother as a parent entirely, or to force her
24
to prove an above average level of parental ability in order to
meet her burden of establishing it was in her son’s best interests
to have a chance of being raised by his biological mother.
For all the reasons discussed above, we conclude
the juvenile court abused its discretion in determining the
substantial changes since termination of Mother’s reunification
services did not render placement of J.M. with Mother in his best
interests. We therefore reverse the court’s denial of Mother’s
January 2019 petition for modification. This necessarily requires
reversal of the court’s denial of a similar petition Mother filed on
August 13, 2019, as well as the court’s termination of Mother’s
parental rights. (In re Sean E. (1992) 3 Cal.App.4th 1594, 1599.)
Therefore, we need not consider the Mother’s arguments on
appeal from these decisions (case No. B2301428).
25
DISPOSITION
The juvenile court’s May 15, 2019 and September 30, 2019
orders denying Mother’s section 388 petitions and the court’s
September 30, 2019 order pursuant to section 366.26 are
reversed.
The court is instructed to enter a new order granting
Mother’s January 14, 2019 section 388 petition and immediately
placing J.M. with Mother. Whether to implement a plan of
family maintenance or terminate juvenile dependency altogether
is a matter properly left to the juvenile court at this stage, and
we express no opinion thereon.
ROTHSCHILD, P.J.
We concur:
CHANEY, J.
WHITE, J.*
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
26
Filed 6/17/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re J.M., JR., a Person Coming B298473, B301428
Under the Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. DK22314)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
CERTIFICATION AND
Plaintiff and Respondent, ORDER FOR PUBLICATION
v.
Y.C.,
Defendant and Appellant.
THE COURT:
The opinion in the above-entitled matter filed on May 29,
2020 was not certified for publication in the Official Reports. For
good cause, it now appears that the opinion should be published
in the Official Reports and it is so ordered.
____________________________________________________________
ROTHSCHILD, P. J. CHANEY, J. WHITE, J.*
*
Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.