In re Malik T.

Filed 1/18/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re MALIK T. et al., Persons B311135
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No. CK79785A-G)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
SHAILYN A.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Tamara Hall, Judge. Reversed and
remanded.
Marsha F. Levine, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jessica S. Mitchell for Plaintiff
and Respondent.
__________________________
Eighteen months after the juvenile court terminated her
family reunification services and set the matter for a selection
and implementation hearing, Shailyn A. petitioned pursuant to
Welfare and Institutions Code section 3881 for an additional
six months of reunification services with her children. Although
the juvenile court found Shailyn had demonstrated changed
circumstances, the first step of the section 388 analysis, the court
stated it lacked authority to order additional reunification
services for a parent whose time for services had expired. The
court deemed Shailyn’s petition a request for immediate return of
the children to her care; determined it would not be in her
children’s best interest to do so, the second step of the section 388
analysis; and denied Shailyn’s petition.
On appeal Shailyn contends the juvenile court
misunderstood the scope of its authority to order reunification
services and, as a consequence, failed to properly exercise its
discretion in considering the merits of her petition. Shailyn is
correct. Although section 361.5, subdivision (a), generally limits
family reunification services to a period not exceeding 18 months
after the date a child was originally removed from the physical
custody of the child’s parent, nearly 30 years ago in In re
Marilyn H. (1993) 5 Cal.4th 295 the Supreme Court held a parent
may utilize the section 388 petition procedure to demonstrate
circumstances have changed and additional reunification services
would be in the child’s best interest. Moreover, section 366.3,
subdivisions (e) and (f), expressly authorize the juvenile court at
post-permanent plan review hearings to order a second period of
1
Statutory references are to this code.
2
reunification services if it would be in the child’s best interest to
do so, ample statutory authority for the relief Shailyn requested.
We reverse the order denying Shailyn’s section 388 petition and
remand for the juvenile court to reconsider Shailyn’s request for
additional reunification services on the merits.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Sustained Dependency Petitions and Removal of the
Children from Shailyn’s Custody
On July 6, 2016 the Los Angeles County Department of
Children and Family Services (Department) filed a petition
pursuant to section 300, subdivisions (a) and (b)(1), on behalf of
Shailyn’s children Malick (now 14 years old), De’Asia (now
12 years old), Iliah (now 11 years old), Ashanie (now 10 years
old), Tayvione (now nine years old), Jaimar (now eight years old)
and Rashaad (now seven years old). The initial petition included
allegations concerning Shailyn and Deonte J., Shailyn’s male
companion and the father of all her children except Malick.
2
Malick’s father, Michael T., was not named in the petition.
2
The current appeal concerns Shailyn’s seven oldest
children, who were the subject of the Department’s July 6, 2016
dependency petition. Shailyn had two additional children while
this case was pending, Mariah A. and Shane A. A dependency
petition was filed in February 2019 as to Mariah (based on
Shailyn’s drug relapse during the pregnancy) and in August 2020
as to Shane (neglect related to safety issues in the home). In
April 2019 Shailyn was denied reunification services in Mariah’s
case, and her parental rights were terminated in December 2019.
In October 2020 the Department was ordered to provide family
reunification services to Shailyn in Shane’s case. By January
2021 Shane was residing with Shailyn.
3
On October 27, 2016 the juvenile court sustained the
petition, finding the Department had proved allegations pursuant
to section 300, subdivisions (a) (nonaccidental serious physical
harm) and (b)(1) (failure to protect), that Shailyn and Deonte had
a history of engaging in violent altercations in the presence of the
children and that Deonte’s violent conduct against Shailyn (with
specific instances identified) and Shailyn’s failure to protect the
children endangered the children’s physical health and safety.
The court also sustained an allegation pursuant to
subdivision (b)(1) that Deonte had a history of substance abuse,
was a current abuser of illicit drugs and on prior occasions was
under the influence of illicit drugs while the children were in his
care and custody. The children were allowed to remain in
Shailyn’s care under the Department’s supervision with an order
for family preservation services. The court also signed a
permanent (three year) restraining order protecting Shailyn and
the children from Deonte. Deonte was allowed monitored visits
with the children; Shailyn was not permitted to be the monitor.
On March 14, 2017 the Department filed a subsequent
petition pursuant to section 342, and the children were detained
from Shailyn. On May 16, 2017 the court sustained the petition,
finding pursuant to section 300, subdivisions (a), (b)(1) and (j)
(sibling abuse), that Shailyn had physically abused Tayvione by
throwing a toy at him, which struck him in the face causing
bleeding and sustained swelling and bruising, creating an
endangering situation for Tayvione and his siblings. The court
further found pursuant to subdivision (b)(1) that Shailyn had a
history of substance abuse and was a current user of
methamphetamine, amphetamine and marijuana, which
rendered her incapable of providing regular care for the children;
4
that Shailyn had on prior occasions endangered the children by
driving with them as passengers in her car without using
appropriate child safety restraints; and that she also endangered
them by allowing Deonte to frequent the home and have
unlimited access to the children notwithstanding the court order
that his visitation be monitored and the restraining order
prohibiting such contact. At the disposition hearing three days
later, the court terminated its home-of-parent order, removed the
children from Shailyn and ordered family reunification services
for her, including a full alcohol/drug treatment program with
aftercare and weekly testing, as well as parenting classes and
individual counseling to address case issues.
2. Termination of Shailyn’s Reunification Services, Setting
the Selection and Implementation Hearing and
Identification of Adoption as the Permanent Plan for the
Children Other Than Malick
The children’s six-month review hearing (§ 366.21,
subd. (e)) was held on November 14, 2017; the 12-month review
hearing (§ 366.21, subd. (f)) on April 14, 2018; and the 18-month
permanency review hearing (§ 366.22) on September 11, 2018.
Shailyn’s progress with her case-ordered programs was
inconsistent during this period. She completed an in-patient
drug treatment program in August 2017 and again in June 2018.
She began out-patient treatment in July 2018 but stopped
attending soon thereafter.
By the section 366.22 review hearing on September 11,
2018, the Department was recommending adoption with the
maternal grandmother for all the children other than Malick.
The court found Shailyn had made only partial progress toward
alleviating or mitigating the causes necessitating the children’s
placement, terminated Shailyn’s family reunification services and
5
set the matter for a section 366.26 selection and implementation
hearing on January 10, 2019.
On January 10, 2019 the court continued the section 366.26
3
hearing because of inadequate notice. Proceeding to a
permanency planning review hearing under section 366.3 (an
“RPP,” or review of permanent plan in dependency argot), the
court found continued jurisdiction was necessary because the
conditions that had justified the court in taking jurisdiction still
existed. The court also found the permanent plan of adoption as
a specific goal was appropriate and ordered adoption as the
permanent plan for all the children other than Malick.
At the next RPP on July 11, 2019, with identical orders for
the six children other than Malick, the juvenile court confirmed
the permanent plan of adoption as a specific goal remained
appropriate and was ordered as the permanent plan. The court
found each of the children will be adopted and the likely date that
goal would be achieved was December 19, 2019. The Department
was ordered to provide permanent placement services to each of
4
the children. Also on July 11, 2019 the court again continued
the section 366.26 hearing.
3
The section 366.26 hearing has been continued many
additional times, largely because of disruptions in court
proceedings due to the COVID-19 pandemic, and has yet to be
conducted. It is currently scheduled for January 20, 2022.
4
Section 366.3, subdivisions (a)(1) and (d), require the
juvenile court to review the status of a dependent child at least
once every six months after a permanent plan has been adopted.
The next scheduled RPP hearing for the six children other than
Malick on January 7, 2020 was continued multiple times, in large
6
3. Placement of Malick with His Father and His
Subsequent Removal; Shailyn’s Unsuccessful Requests
for Reunification Services
On September 14, 2018 the Department filed a section 342
subsequent petition concerning Malick, who was then living with
a nonrelated caregiver, alleging his father, Michael, and
Michael’s female companion had a history of engaging in violent
altercations in Malick’s presence. On October 3, 2018 the
Department filed an amended section 342 petition on behalf of
Malick. At a hearing the following day, which had been
scheduled for the jurisdiction hearing on the original section 342
petition, the court ordered Malick released to Michael over the
objection of the Department. During the hearing the court
observed Shailyn had already received 18 months of reunification
services. On November 14, 2018 the court sustained the
amended petition pursuant to section 300, subdivision (b)(1),
which now alleged violent conduct by Michael’s female companion
placed Malick at a substantial risk of serious physical harm.
Malick remained released to Michael under the Department’s
supervision.
After learning of another incident of domestic violence and
receiving a referral concerning emotional abuse of Malick by
Michael, the Department filed a supplemental petition for a more
restrictive placement pursuant to section 387, alleging Michael
and several female partners had histories of domestic violence
and Michael had a history of substance abuse. The court ordered
Malick removed from Michael’s custody on June 24, 2019. The
court subsequently sustained an amended version of the petition
part due to COVID-related disruptions, and ultimately took place
on January 21, 2021.
7
on September 24, 2019 and ordered the Department to provide
him with reunification services. The court denied reunification
services to Shailyn.
Following the disposition hearing for Malick, on
September 26, 2019 Shailyn filed a section 388 petition asking for
six months of reunification services with Malick. In support of
her petition Shailyn averred she had been participating in
treatment programs, continued to be enrolled in a 12-step
program, was drug testing weekly and attending various life-skill
classes and programs and had been visiting Malick regularly. In
December 2019 Shailyn filed a substantially similar section 388
petition concerning her other six children. The Department
opposed the petitions, explaining that Shailyn, who had
maintained her sobriety for a time, had relapsed during her
pregnancy with her then-youngest child, Mariah, who suffered
from prenatal drug exposure. The court denied both petitions
after a hearing on December 16, 2019.
4. Shailyn’s March 10, 2020 Section 388 Petitions
On March 10, 2020 Shailyn filed a new set of section 388
petitions seeking six additional months of reunification services
5
with the seven children at issue in this case. The petitions
5
Shailyn identified as the order she wanted modified the
juvenile court’s April 23, 2019 denial of reunification services
pursuant to section 361.5, subdivision (b)(10). The Department
explained in its respondent’s brief that the April 23, 2019 order
was entered in Mariah’s dependency case, not this proceeding.
(See fn. 2.) The parties and the juvenile court did not attach any
significance to Shailyn’s incorrect identification of the order(s)
she wanted to modify to provide for additional reunification
services. Neither do we.
8
stated, as evidence of changed circumstances, that Shailyn had
successfully completed an outpatient substance abuse program
on February 20, 2020, continued to participate in 12-step
programs and in individual counseling. She attached a letter and
certificate confirming her completion of the outpatient program
at Tarzana Treatment Centers, an attendance card from the 12-
step program and a letter from Wesley Health Centers describing
her active participation in mental health treatment beginning in
August 2019 and continuing through March 6, 2020. Explaining
why it would be in the children’s best interest to provide
additional services, Shailyn stated, “It is in the child[ren]’s best
interest to reunify with [their] mother and have a relationship
with [their] extended family and siblings which would give [them]
permanency that [they do] not currently have.”
On September 18, 2020 the court ordered the Department
to prepare a response to the section 388 petitions and scheduled a
hearing for January 21, 2021. The Department filed its report in
early January 2021, recommending the court deny the petitions
because additional reunification services would not be in the
children’s best interest: “It is in the best interest of the children
to remain in the care of [the maternal grandmother] with the
permanent plan of adoption.”
The Department’s response summarized interviews with
the program coordinator and a resident advocate at the Valley
Oasis domestic violence shelter where Shailyn was living. The
staff believed Shailyn would be overwhelmed if required to care
for any children other than one-year-old Shane then living with
her. The shelter personnel were also concerned that Shailyn
seemed focused on obtaining her high school diploma rather than
finding employment and housing.
9
Shailyn, interviewed at the shelter by a dependency
investigator, said she had been clean and sober since March
2019, had completed the Tarzana Treatment program and was
actively involved in after-care through her church, where she had
a sponsor (another member of the church). Shailyn stated she
was working the steps and attended virtual narcotics anonymous
meetings daily. Shailyn expressed her goal of regaining custody
of her children and said she felt she could provide appropriate
care. Shane, who was with Shailyn during the interview,
appeared clean and healthy, was dressed appropriately for the
weather and seemed comfortable in his mother’s care.
The maternal grandmother, with whom six of the children
6
were residing, when informed that Shailyn was seeking
additional reunification services, responded that it was not a good
idea and said she did not want the children returned to their
mother, who she believed did not have the mental capacity to
care for all eight children.
The investigator also met individually with each of the
seven children. Malick, then 12 years old, said he wanted to live
with his father, but indicated he would also like to live with
Shailyn to be able to help care for her and his baby brother,
Shane. He did not believe Shailyn could care for all eight
children. Eleven-year-old De’Asia said she wanted to live with
Shailyn, although she said she believed both Shailyn and the
maternal grandmother would take good care of her and could do a
6
The boys other than Malick had been living with the
maternal grandmother for two years by this point; the three girls
had been with her for six months. The maternal grandmother
had expressed interest in adopting the six children.
10
good job of caring for all eight children. The other five children
7
said they wanted to live with the maternal grandmother.
In a last minute information report filed shortly after its
response to the section 388 petitions, the Department advised the
court adoption remained the permanent plan for the children
other than Malick. The Department’s status review report filed
January 21, 2021 for the RPP hearing on that date stated
Shailyn had been visiting the children weekly, either in person or
virtually due to pandemic-related restrictions. Because of a
change in counsel for Malick’s father, the court continued the
hearing on Shailyn’s section 388 petitions to March 8, 2021.
5. The Section 388 Hearing and the Court’s Order Denying
Shailyn’s Petitions
At the hearing on March 8, 2021 Shailyn’s counsel
summarized Shailyn’s efforts to achieve and maintain her
sobriety (her change of circumstance) and, as to the second step of
the section 388 analysis, argued it would be in the best interest of
the children to reunify with their mother. Counsel stated, “She
does have consistent visits with the children. She has telephonic
visits every day, as well as weekly in-person visits with the
7
The investigator asked the children, if given the choice,
would they prefer to live with their mother or their grandmother
and why they chose the individual they did. Ashanie, then nine
years old, said her grandmother helped them and she believed
the grandmother would do a better job of caring for all seven
children. Iliah, then 10 years old, said she could not explain why
she preferred her grandmother. Tayvione, eight years old,
Jaimar, seven years old, and Rashaad, six years old, said they
chose their grandmother because she gave them treats, popsicles
and chocolate.
11
children. The children are very bonded to their mother.”
Shailyn’s counsel noted that Shailyn currently had custody of her
youngest child, Shane, and assured the court Shailyn had taken
the appropriate precautions to ensure the child’s safety. Counsel
emphasized that Shailyn was advocating “a slow transition of the
children into mother’s custody” and said Shailyn had the support
of the maternal grandmother, her church and close friends.
Responding to Shailyn’s request, Malick’s counsel stated
additional reunification services would not be in Malick’s best
interest. Minors’ counsel for the other children argued the court
lacked the authority to grant additional reunification services
because the case was “well beyond the period of reunification for
all of my clients” and asserted “the court’s only option would be to
return today.” Based on that premise, minors’ counsel asserted
Shailyn lacked the capacity to care for eight young children.
The Department argued, although Shailyn had made some
progress, she had not established changed circumstances: “She
has a long history of unresolved substance abuse. And while
she’s currently on the path to sobriety, her sobriety is very much
in the early stages. She’s not yet established a lengthy period of
sobriety.” The Department also reminded the court there had
been a sustained petition for another of Shailyn’s children
(Mariah) due to Shailyn’s substance abuse and Shailyn’s parental
rights as to that child had been terminated. Concurring in the
argument of minors’ counsel, the Department noted Shailyn was
“well past this period of reunifying” and asserted the court could
not make a finding that immediate return of the children would
be their best interest.
The court found Shailyn had proved changed circumstances
and congratulated her on her efforts: “You are doing all the
12
things you need to do to make yourself well and whole for your
8
children.” The court then stated it agreed with minors’ counsel’s
interpretation of the court’s authority: “Counsel is right with
respect to the time period for family reunification services, the
time to reinstate those services for the majority of your children
has expired. So the court would have to make a determination of
whether or not it’s suitable to place the children with you at this
time.” The court concluded immediate return to Shailyn was not
in the children’s best interest based on the concerns expressed by
various individuals who had contact with Shailyn, including the
maternal grandmother (as reflected in the Department’s response
to the section 388 petitions), that she was not physically,
mentally or emotionally prepared to have all eight children in her
care.
After the court announced its ruling, minors’ counsel
advised all parties on the record that she was asking the court to
assess the maternal grandmother for legal guardianship, rather
than adoption, as the permanent plan for her six clients. Counsel
8
Addressing Shailyn the court stated, “I sincerely mean this,
Ma’am, when I say this, the court is going to congratulate you on
your—with respect to the first prong, your changed and changing
circumstances. Sometimes it takes people longer than others.
You have completed a lot of your case plan. You have been sober
since 2019. Although you’re only on step one of the 12 steps
sobriety program, you have found someone in your sponsor who is
a mountain. She’s been sober for 32 years. And she, genuinely,
cares for you, and the fact that she’s allowed you and your
eight children to be in her home. And she’s observed you with the
children, and she has no concerns. And you are currently
enrolled—you are in compliance with your medication and your
mental [health] counseling.”
13
explained, because of pandemic-related and other delays in the
case, as well as Shailyn’s ongoing progress, the children had built
“a real relationship with their mother.” The court acknowledged
this development and ordered the Department to assess the
maternal grandmother for legal guardianship.
Shailyn filed a timely notice of appeal from the order
9
denying her section 388 petitions.
DISCUSSION
1. Section 388 and the Standard of Review
Section 388 provides for modification of juvenile court
orders when the moving party presents new evidence or a change
of circumstance and demonstrates modification of the previous
10
order is in the child’s best interest. (In re Jasmon O. (1994)
9
Several weeks after denying Shailyn’s section 388 petitions,
at a review hearing for Malick the court terminated its suitable
placement order, ordered Malick home of father and terminated
dependency jurisdiction with a juvenile custody order granting
Michael sole physical and Michael and Shailyn joint legal custody
of the child with monitored visitation for Shailyn. The court
signed and filed the juvenile custody order on May 7, 2021.
Shailyn has appealed the termination and custody orders (case
no. B312726) “solely to protect and preserve mother’s rights vis-à-
vis her pending appeal in case number B311135.” (See generally
In re Rashad D. (2021) 63 Cal.App.5th 156.) On August 12, 2021
we stayed briefing in B312726 pending the decision in the instant
appeal.
10
Section 388, subdivision (a)(1), provides, “Any parent or
other person having an interest in a child who is a dependent of
the juvenile court . . . may, upon grounds of change of
circumstance or new evidence, petition the court in the same
action in which the child was found to be a dependent child . . .
14
8 Cal.4th 398, 415; In re Stephanie M. (1994) 7 Cal.4th 295, 317;
In re Alayah J. (2017) 9 Cal.App.5th 469, 478; see In re
Zacharia D. (1993) 6 Cal.4th 435, 447 [“‘[s]ection 388 provides the
“escape mechanism” that . . . must be built into the process to
allow the court to consider new information’”]; Cal. Rules of
Court, rule 5.570(e).) “‘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.’
[Citation.] ‘[T]he change in circumstances must be substantial.’”
(In re J.M. (2020) 50 Cal.App.5th 833, 845.)
When, as in this case, a section 388 petition is filed after
family reunification services have been terminated, the juvenile
court’s overriding concern is the child’s best interests. (In re
Stephanie M., supra, 7 Cal.4th at p. 317.) The parent’s interests
in the care, custody and companionship of the child are no longer
paramount; and the focus shifts to the needs of the child for
permanency and stability. (Ibid.; In re Vincent M. (2008)
161 Cal.App.4th 943, 960; In re Jacob P. (2007) 157 Cal.App.4th
819, 828.) Nonetheless, a parent may rebut the presumption that
continued care is in the best interest of the child after
termination of reunification services by showing that
circumstances have changed and would warrant further
reunification services. (In re Marilyn H., supra, 5 Cal.4th at
p. 310.)
We generally review the denial of a section 388 petition for
abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at
for a hearing to change, modify, or set aside any order of court
previously made or to terminate the jurisdiction of the court.”
15
p. 318; see In re I.B. (2020) 53 Cal.App.5th 133, 153.) However,
when the court’s denial is based on a mistake of law, our review
is de novo. (In re Samuel A. (2020) 55 Cal.App.5th 1, 7; see In re
R.T. (2017) 3 Cal.5th 622, 627 [court reviews juvenile court’s
construction of a statute de novo]; Michael G. v. Superior Court
(2021) 69 Cal.App.5th 1133, 1140 [“we review the interpretation
and application of the dependency statutes de novo”]; see also
In re Charlisse C. (2008) 45 Cal.4th 145, 159 [“a disposition that
rests on an error of law constitutes an abuse of discretion”].)
2. The Juvenile Court Erred in Concluding It Lacked the
Authority To Order Additional Reunification Services
a. Pre-permanent plan reunification services
Section 361.5, subdivision (a), provides, with certain
limitations not at issue in this case, that family reunification
services must be provided to a child, the child’s mother and a
statutorily presumed father whenever a child has been removed
from a parent’s custody. For a child who on the date of initial
removal from the physical custody of the child’s parent was under
three years of age, court-ordered services “shall be provided” for a
period of six months from the disposition hearing. (§ 361.5,
subd. (a)(1)(B).) For a child who on the date of initial removal
from the physical custody of the child’s parent was three years of
age or older, court-ordered services “shall be provided” for a
period beginning with the disposition hearing and ending
12 months after the child entered foster care as defined in
section 361.49 (that is, the earlier of the date of the jurisdiction
hearing or 60 days after the child was initially removed from the
custody of his or her parent). (§ 361.5, subd. (a)(1)(A).)
Notwithstanding these time limits, section 361.5,
subdivision (a)(1)(C), permits the extension of court-ordered
16
services for a maximum period not to exceed 18 months after the
child was removed from parental custody if the permanent plan
for the child is return to the custody of his or her parents and the
court finds at the 12-month review hearing a substantial
probability the child will be safely returned to the parents within
that time (or the court determines that reasonable services were
not previously provided to the parent). (See Michael G. v.
Superior Court, supra, 69 Cal.App.5th at p. 1141 [“[t]he juvenile
court may extend services up to 18 months, however, if it finds
there is a substantial probability the child will be returned to the
parent’s custody within the extended time period, or if it finds
reasonable services were not provided”].) In addition,
section 361.5, subdivision (a)(4)(A), and section 366.22,
subdivision (b), permit a further extension up to a maximum of
24 months at the 18-month review hearing under certain
11
narrowly defined circumstances.
11
As explained in Michael G. v. Superior Court, supra,
69 Cal.App.5th at pages 1141 through 1142, the limited exception
permitting 24 months of reunification services only apples “if the
juvenile court determines at the 18-month permanency review
hearing that the best interests of the child would be met by the
provision of additional reunification services, and if the court
concludes that reasonable services were not provided to the
parent or there is a substantial probability the child will be
returned to the parent’s physical custody and safely maintained
in the home within the extended period of time . . . [and] the
parent is (1) a parent making significant and consistent progress
in a court-ordered residential substance abuse treatment
program, (2) a minor or a dependent parent at the time of the
initial hearing who is making significant and consistent progress
in establishing a safe home for the child’s return, or (3) a parent
who was recently discharged from incarceration,
17
Except for this further limited exception at the 18-month
review hearing, the juvenile court must “order the return of the
child to the physical custody of his or her parent . . . unless the
court finds, by a preponderance of the evidence, that the return of
the child to his or her parent . . . would create a substantial risk
of detriment to the safety, protection, or physical or emotional
well-being of the child.” (§ 366.22, subd. (a)(1).) If the child is not
returned to the parent’s custody at that hearing, the court must
terminate reunification services and set a section 366.26 hearing.
(§ 366.22, subd. (a)(3); see Bridget A. v. Superior Court (2007)
148 Cal.App.4th 285, 311 [“the section 366.22 hearing ‘represents
a critical juncture in dependency proceedings’”].)
b. Post-permanent plan reunification services
The juvenile court believed it was precluded from granting
additional family reunification services to Shailyn because
services authorized by section 361.5 had been exhausted.
Section 361.5, however, does not apply to post-permanency
review hearings. Once the case has proceeded to post-
permanency plan review under section 366.3, as here,
subdivisions (e) and (f) of that section expressly authorize the
provision of additional reunification services if parental rights
have not been terminated and the provision of such services
12
would be in the best interest of the child. (See D.T. v. Superior
institutionalization, or the custody of the Department of
Homeland Security (DHS) and who is making significant and
consistent progress in establishing a safe home for the child’s
return.”
12
Section 366.3, subdivision (e), provides: “Except as
provided in subdivision (g), at the review held every six months
pursuant to subdivision (d), the reviewing body shall inquire
18
Court (2015) 241 Cal.App.4th 1017, 1036-1037 [section 366.3
governs the availability of reunification services on periodic
review in the post-permanency phase when the child has been
placed outside the parent’s home, but parental rights have not
been terminated].) As set forth in section 366.3, subdivision (f),
at the RPP hearing, “It shall be presumed that continued care is
in the best interests of the child, unless the parent or parents
prove, by a preponderance of the evidence, that further efforts at
reunification are the best alternative for the child. In those
cases, the court may order that further reunification services to
return the child to a safe home environment be provided to the
parent or parents up to a period of six months, and family
maintenance services, as needed for an additional six months in
order to return the child to a safe home environment.” (See B.B.
v. Superior Court (2016) 6 Cal.App.5th 563, 570 [court may
consider further efforts at parental reunification during post-
permanency plan review “‘only if the parent proves, by a
about the progress being made to provide a permanent home for
the child, shall consider the safety of the child, and shall
determine all of the following: [¶] . . . [¶] (4) The extent of the
agency’s compliance with the child welfare services case plan in
making reasonable efforts either to return the child to the safe
home of the parent or to complete whatever steps are necessary
to finalize the permanent placement of the child. If the reviewing
body determines that a second period of reunification services is
in the child’s best interests, and that there is a significant
likelihood of the child’s return to a safe home due to changed
circumstances of the parent, pursuant to subdivision (f), the
specific reunification services required to effect the child’s return
to a safe home shall be described.”
19
preponderance of the evidence, that the efforts would be the best
alternative for the child’”].)
A section 388 petition is the appropriate procedural vehicle
to raise the issue of additional reunification services following
termination of court-ordered services at the 18-month review
hearing: “[T]he 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. A petition pursuant to
section 388 may be used to raise the issue in the trial court prior
to the section 366.26 hearing.” (In re Marilyn H., supra,5 Cal.4th at p. 309.) As the Supreme Court explained in
In re Marilyn H., although the focus is on the needs of the
dependent child for permanence and stability once reunification
services have been terminated in accordance with section 361.5’s
time frames, a parent is entitled to revive the reunification issue
by proving a change of circumstance pursuant to section 388.
(In re Marilyn H., at p. 309.) “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. The parent’s interest in having an
opportunity to reunify with the child is balanced against the
child’s need for a stable, permanent home. The parent is given a
reasonable period of time to reunify and, if unsuccessful, the
child’s interest in permanency and stability takes priority. Even
after the focus has shifted from reunification, the scheme
provides a means for the court to address a legitimate change of
circumstances while protecting the child’s need for prompt
resolution of his custody status.” (Ibid.; accord, In re I.B., supra,
53 Cal.App.5th at pp. 153-154.)
20
The Marilyn H. Court’s recognition of a parent’s right to
utilize section 388 to seek additional reunification services
notwithstanding that parent’s failure to reunify during the
section 361.5 reunification period is fully consistent with the
multiple provisions of dependency law (and with sound public
policy) authorizing the juvenile court to make orders in the best
interest of the children under its care. Section 362,
subdivision (a), empowers the juvenile court to make “any and all
reasonable orders for the care, supervision, custody, conduct,
maintenance, and support of the child,” and section 245.5
provides, “In addition to all other powers granted by law, the
juvenile court may direct all such orders to the parent, parents,
or guardian of a minor who is subject to any proceedings under
this chapter as the court deems necessary and proper for the best
interests of . . . the minor. These orders may concern the care,
supervision, custody, conduct, maintenance, and support of the
minor.” (See also § 202, subd. (a) [directing the juvenile court “to
preserve and strengthen the minor’s family ties whenever
possible”].)
In sum, the juvenile court erred in concluding that, prior to
a properly noticed section 366.26 hearing at which Shailyn’s
parental rights are terminated, additional reunification services,
even if warranted, could not be ordered to assist Shailyn in
attempting to regain custody of one or more of her seven oldest
children. Denial of Shailyn’s petition, based as it was on an error
of law, constituted an abuse of discretion. (In re Charlisse C.,
supra, 45 Cal.4th at p. 159; In re D.N. (2020) 56 Cal.App.5th 741,
762; In re Priscilla D. (2015) 234 Cal.App.4th 1207, 1215.)
3. Shailyn Did Not Forfeit Her Challenge to the Juvenile
Court’s Order
21
Although Shailyn’s section 388 petition properly asked the
juvenile court to order additional reunification services and at the
hearing on her petition Shailyn argued she had satisfied both
steps in the section 388 analysis, her counsel did not attempt to
correct the court when it indicated it lacked authority to grant
the relief requested. The Department’s contention Shailyn
thereby forfeited her argument the court failed to properly
exercise its discretion is unpersuasive.
The Department, of course, is correct that forfeiture rules
apply in dependency cases. As the Supreme Court explained in
In re S.B. (2004) 32 Cal.4th 1287, “[A] reviewing court ordinarily
will not consider a challenge to a ruling if an objection could have
been made but was not made in the trial court. [Citation.] The
purpose of this rule is to encourage parties to bring errors to the
attention of the trial court, so they may be corrected. [Citation.]
[¶] Dependency matters are not exempt from this rule.” (Id. at
p. 1293, fn. omitted; accord, In re Aaron S. (2015)
235 Cal.App.4th 507, 521.) But forfeiture generally applies when
a party did not alert the juvenile court that he or she objected to
an order being made or when a party failed to ask in the juvenile
court for relief being sought on appeal, not when, as here, the
court has denied a party’s request for an order on a legally
incorrect ground. For example, in In re S.B. the issue was
whether the mother’s failure to object to the court’s order
granting the legal guardian authority to determine visitation
forfeited the issue. (In re S.B., at p. 1291.) Similarly, in In re
Aaron S. the court of appeal held a nonminor dependent had
arguably forfeited his challenge to the absence of a transition
plan by failing to request one or to object to termination of
22
jurisdiction without the statutorily required plan. (In re
Aaron S., at p. 521.)
The three dependency cases cited by the Department in
support of its forfeiture argument are substantially the same. In
In re Dakota S. (2000) 85 Cal.App.4th 494, 501, the court of
appeal held, by failing to raise the issue in the juvenile court, the
parent had forfeited the argument a guardianship order should
be reversed because the child services agency had not prepared,
and the juvenile court had not considered, a statutorily required
preliminary assessment of the foster parent as a prospective
guardian. In In re Anthony P. (1995) 39 Cal.App.4th 635, 641,
the court held the absence of any objection to the court’s failure to
provide for sibling visits forfeited the issue on appeal. And in
In re Richard K. (1994) 25 Cal.App.4th 580, 590, the court
concluded the parent’s submission on the child service agency’s
report and recommendation without any evidence or argument
forfeited the claim on appeal that the disposition order adopting
that recommendation was not supported.
The Department cites no authority for its position a party
who petitions the court for an order based on pertinent statutory
authority (here, section 388) and argues in support of the request
nonetheless forfeits the issue on appeal if he or she fails to argue
the court’s denial of the request constitutes an abuse of
discretion. Such a rule of forfeiture would be particularly inapt
here, where it appears neither the juvenile court nor counsel for
any of the parties was acquainted with controlling Supreme
Court authority. (Cf. In re Dakota S., supra, 85 Cal.App.4th at
p. 501 [“it would be inappropriate to allow a party not to object to
an error of which the party is or should be aware”].)
23
Additionally, “application of the forfeiture rule is not
automatic.” (In re S.B., supra, 32 Cal.4th at p. 1293.) Although
the Supreme Court has cautioned that an appellate court’s
discretion to consider forfeited claims in dependency cases should
be used rarely and with special care, it has approved the exercise
of that discretion in cases presenting an important question of
law. (Ibid.) Whether the juvenile court may grant a section 388
petition and order additional reunification services for a parent
who has already received 18 months of services presents just
such a legal issue.
4. The Juvenile Court’s Error Was Not Harmless
The harmless error doctrine applies in dependency cases.
(In re Jesusa V. (2004) 32 Cal.4th 588, 624; In re Celine R. (2003)
31 Cal.4th 45, 59-60; In re M.M. (2015) 236 Cal.App.4th 955,
963.) “This practice derives from article VI, section 13 of the
California Constitution, which provides: ‘No judgment shall be
set aside, or new trial granted, in any cause . . . for any error as
to any matter of procedure, unless, after an examination of the
entire cause, including the evidence, the court shall be of the
opinion that the error complained of has resulted in a
miscarriage of justice.’” (In re Jesusa V., at p. 624; accord, B.B. v.
Superior Court, supra, 6 Cal.App.5th at p. 572.) “Reversal is
justified only when the court, after an examination of the entire
case, including the evidence, is of the opinion that it is reasonably
probable that a result more favorable to the petitioning party
would have been reached in the absence of the error.” (B.B., at
p. 572 (cleaned up).)
Without addressing In re Marilyn H., supra, 5 Cal.4th 295,
the Department contends what it calls the juvenile court’s
“alleged error” in asserting it could not order additional
24
reunification services was harmless because Shailyn could not
demonstrate an additional six months of services would be in the
children’s best interest. In support the Department argues, as
reflected in its response to the section 388 petition, that the
maternal grandmother and staff from Shailyn’s domestic violence
shelter had significant concerns about Shailyn’s ability to care for
eight children and were, in particular, troubled by her apparent
inability to focus on the need for adequate housing and
employment. In addition, the Department notes, the evidence
indicated the children were being well taken care of by the
maternal grandmother. The Department also points out that
Shailyn had abused drugs once again during her pregnancy with
Mariah and had her parental rights terminated in 2019 in that
child’s dependency proceeding and that her youngest child,
Shane, had also been the subject of a dependency petition due to
13
Shailyn’s neglectful conduct.
Entirely omitted from the Department’s effort to explain
why the juvenile court’s legal error/abuse of discretion was
harmless is any reference to the fact that Shailyn was not
seeking an immediate return of any of the children—the
apparent focus of concern about her ability to care for all
13
In its argument that further reunification services would
not be in the children’s best interest, the Department describes
Shailyn’s 2010 dependency case, which concluded in 2012 with
Shailyn successfully reunifying with Malick and De’Asia and the
juvenile court awarding her sole legal and physical custody of the
children. The relevance of that proceeding to the question of
additional reunification services in 2021 appears slight, but, if
anything, tends to support Shailyn’s argument that she benefits
from court-ordered services and is highly motivated to reunify
with her children.
25
eight children and the basis for the juvenile court’s ruling—but
rather additional reunification services to promote a slow
transition back to her care. And although Shailyn sought further
services with respect to all seven children subject to this
dependency proceeding, the court in properly evaluating her
petitions would be able to assess the potential benefit of
additional services as it related to each of them (excluding
Malick, for example, or focusing on De’Asia, who expressed a
desire to live with her mother). As discussed, under section
366.3, subdivisions (e) and (f), Shailyn would be entitled, if
warranted, to a total of 12 additional months of court services to
successfully reunify with one or more of the children, six months
while a child was still living away from her home and another six
months of family maintenance services if one or more of the
children were returned to her care.
In addition, the record shows—and the Department does
not discuss—not only that Shane was in Shailyn’s custody and,
according to the dependency investigator’s report, doing well, but
also that, based on ongoing visitation and her own improvement,
Shailyn had built such a strong relationship with the children by
March 2021 that minors’ counsel believed legal guardianship,
rather than adoption, was the preferred permanent plan for her
clients.
Based on this record, the juvenile court’s failure to evaluate
Shailyn’s actual request for reunification services, rather than for
an immediate return of all seven children to her custody, was not
harmless. On remand the juvenile court is to conduct a new
section 388 hearing and evaluate under the proper standards
whether Shailyn has maintained her sobriety and whether, under
the circumstances as they exist at the time of the new hearing,
26
additional reunification services would be in the best interest of
any of the children.
DISPOSITION
The order denying Shailyn’s section 388 petition is
reversed, and the matter remanded for a new hearing to
determine whether providing additional reunification services
would be in the children’s best interest.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
27