In re J.N. CA2/5

Filed 2/17/22 In re J.N. CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re J.N., et al., a Person Coming B311650
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No.
DK02402C, DK02402D,
17CCJP01112A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
Jose N., et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Steff Padilla, Judge Pro Tempore. Affirmed.
Christopher R. Booth, under appointment by the Court of
Appeal, for Defendant and Appellant.
Law Office of Karen B. Staler and Karen B. Staler, under
appointment by the Court of Appeal, for Defendant and
Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Peter Ferrera, Principal Deputy
County Counsel for Plaintiff and Respondent.
___________________________
S.S. (Mother) and Jose N. (Father) appeal from the juvenile
court’s denial of their respective petitions under Welfare and
Institutions Code section 3881 seeking to have their children J.N.
(8 years old), N.F. S.-N. (7 years old), and Jo.N. (4 years old)
returned to their custody. The juvenile court concluded that the
parents had demonstrated a substantial change of circumstances,
but it was not in the best interests of the children to return them
to the parents’ home from their placement in the home of
paternal grandmother D. S. N.-R. (Grandmother). Despite the
parents’ progress in resolving a cycle of domestic violence and
substance abuse, we cannot conclude that the juvenile court
abused its discretion. Therefore, we affirm.
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise stated.
2
FACTUAL AND PROCEDURAL HISTORY
Parents’ Family History
Grandmother had three children with her first husband,
including Father, before divorcing in 1991. The Department
reported that there were substantiated allegations against
Grandmother based on general neglect of her three children. She
periodically left the children in her mother’s care and had used
drugs for 17 years, including heroin and cocaine.
In 2003, when Father was 16 years old, he began a
relationship with a woman seven years older than him. They had
three children together and married in 2007. He enlisted in the
military and completed his first term with an honorable
discharge. In 2009, after his first deployment, he began having
problems with alcohol. He reenlisted in the military, but after an
incident of domestic violence, he received a “bad conduct
discharge.” After a lengthy separation, Father eventually
divorced his first wife.
Mother is a registered member of the Chickasaw Nation.
She has two children from prior relationships, Grace S. (born
November 2004) and Brayden J. (born May 2008). Although
Grace and Brayden were declared dependents, they are not
subjects of this appeal.
In April 2013, Mother and Father had J.N., the oldest of
the three subject children.2 A few months later in July 2013,
2 As will be apparent, three additional children were born
after the current dependency case began: N.F. (born January
2015) and Jo.N. (born May 2017), who are subjects of this appeal,
3
Father was arrested and convicted for driving under the
influence of alcohol (DUI). Brayden’s father Steven J., who lives
in Oklahoma, sought custody of Brayden, which the Chickasaw
Nation Court granted in early November 2013. Steven J. agreed
to wait until the school’s winter break to take custody.
Initiation of Current Case Based on Inappropriate
Discipline
On November 21, 2013, when J.N. was six months old, the
Los Angeles County Department of Children and Family Services
(the Department) filed a petition under section 300, subdivisions
(a), (b) and (j), on behalf of Grace, Brayden, and J.N. Brayden’s
teacher had reported bruises on his face and his statement that
Father hit him with a belt. The petition alleged that Father
inappropriately disciplined Grace by striking her with a belt,
which Mother knew about and failed to protect Grace from, and
Mother inappropriately disciplined Brayden by spanking him
with a shoe. The court ordered Mother and Father not to use
corporal punishment and ordered the Department to provide
family maintenance services. The children remained in the
family home. Mother and Father enrolled in a parenting
program.
On January 16, 2014, the Department filed a petition
under section 385 seeking detention of the children based on
Father’s arrest for slapping Brayden and Father’s violation of a
safety plan that Mother signed which prevented Father from
returning to the family home. The court detained J.N. from
and Jos.N. (born January 2020), who is not a subject of the
appeal.
4
Father and ordered Father not to return to the family home. All
three children remained in Mother’s custody.
At the combined jurisdiction and disposition hearing on
March 27, 2014, the court sustained amended petition allegations
based on inappropriate discipline. Because the Chickasaw
Nation had granted custody to Steven J., the court dismissed the
case as to Brayden. Grace and J.N. remained in Mother’s
custody, but the court removed J.N. from Father’s custody.
Father had monitored visitation with J.N. twice a week, but was
to have no contact with Grace until further order of the court.
The court ordered parenting classes, anger management, and
counseling for Father and counseling services and parenting
classes for Mother.
May 2014 to September 2015 - J.N. out of the Family Home
for 16 Months
A few months later in May 2014, after learning Father was
at the house every day in violation of the court’s visitation and no
contact orders, the Department filed a section 387 supplemental
petition seeking removal of Grace and J.N., who was then just
over one year old. The court detained Grace and J.N. from
Mother’s custody, and ordered family reunification services. The
court ordered monitored visitation for Mother with both children
and separate monitored visitation for Father with J.N. three
times per week. The no contact order between Father and Grace
remained in effect. The court ordered the Department to assess
Grandmother for placement.
On July 16, 2014, the court sustained the section 387
petition and ordered the children suitably placed. The court
5
granted a petition by the Chickasaw Nation to intervene. The
court ordered the Department to provide family reunification
services, including individual and domestic violence counseling
for Mother, and individual counseling, domestic abuse, and anger
management for Father. For the first time, the court ordered
Father to participate in random or on demand drug testing. If
any test was missed or positive, he would be required to complete
a substance abuse program. Mother was to have monitored
visitation with both children three times per week, separate from
Father’s monitored visitation with J.N. three times per week.
Between August 2014 and December 2014, Father had five
negative drug tests and six nonappearances for random drug
tests, some of which he missed due to work assignments. By
early January 2015, Father had begun his domestic violence
treatment program, was in the middle of his anger management
treatment program, and was in the late phase of his child abuse
treatment program with positive growth and participation. The
court gave the Department discretion to liberalize visitation and
allow Mother and Father to visit together.
N.F., who is the second of the children subject to this
appeal, was born on January 29, 2015, and remained in Mother
and Father’s care.
At a six-month review hearing in February 2015, the court
found Mother and Father were in partial compliance with the
case plan and continued reunification services. In March 2015,
Mother and Father began having overnight visits on weekends.
In August 2015, the court provided the Department with
discretion to release the children pending the next hearing.
Mother made tremendous efforts to travel by bus to court-
ordered services and visits, but missed several domestic violence
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group sessions. In the opinion of the domestic violence counselor,
Mother was in denial and she minimized, justified, and
rationalized Father’s verbal, and possibly physical, abuse. The
domestic violence counselor recommended Mother continue with
therapy to have a place to learn to advocate for herself and her
children.
Father’s time was divided among his joint custody of his
older children from his prior relationship, his job, and his
program participation. He completed a 52-session child abuse
treatment program, a 12-session anger management program,
and 32 individual therapy sessions including components of
domestic violence.
Service providers expressed concern about Mother and
Father’s relationship, specifically Father’s commitment to the
relationship and his issues of power and control. In the
assessment of the couples’ therapist, they had difficulty with
communication and challenges with power dynamics.
Between February 2015 and August 2015, Father had
seven negative drug tests and did not appear for three tests. On
August 27 and September 2, 2015, he tested positive for alcohol.
A social worker explained that because of the positive test, he
must complete a substance abuse program. Father said he did
not realize that he was not allowed to drink alcohol, but he would
comply in order to get his kids back. He enrolled in a drug and
alcohol program.
In the assessment of the Department, the parents
remained cooperative and committed to their case plan, with the
goal to reunify with the children. Mother and Father struggled
with life issues, including finances and housing, but continued to
work on the programs ordered by the court.
7
On September 24, 2015, the juvenile court ordered Grace
released to Mother and J.N. released to both parents. The record
does not reflect any consideration of the logistical challenge
created by releasing J.N. to both parents while a no contact order
existed between Grace and Father. The court ordered family
maintenance services and all programs continue. In addition,
Father was ordered to attend two Alcoholics Anonymous
meetings each week, continue drug testing, and not miss any
tests.
October 2015 to August 2016 – J.N. Back in the Family
Home for 11 Months
The parents struggled to comply with court-ordered
services, and Father continued to struggle with alcohol abuse.
From October 2015 to February 2016, Father had six negative
drug tests and did not appear for five tests. The juvenile court
allowed Father to have random or on demand tests. In April
2016, Father was arrested for DUI. Between April and June
2016, Father had one negative test and missed three tests.
Two and a half years after the initial petition was filed in
November 2013, there was evidence of ongoing domestic violence
and father’s alcohol use, even though both parents had been
participating in services. In May 2016, Grace informed her
teacher that Father ripped Mother’s shirt off, flattened her car
tires, lifted up J.N. and threw him at Grace, and kicked Mother,
Grace, and J.N. out of the family home. The most serious
incident occurred on June 13, 2016. Mother and Father argued
about ending their relationship. Father pulled Mother’s hair,
grabbed her by the neck, and punched her in the ribs. Father
8
also attempted to sexually assault her during the incident. 16-
month-old N.F. and 3-year-old J.N. were in the room during the
assault. 8-year-old Grace returned to the room when she heard
arguing and scuffling. She saw Father straddling Mother on the
bed, holding her down by her arms. Mother was crying and
Father appeared to be hurting her. Both adults yelled at her to
leave the room. Mother reported the domestic violence to the
police officers who visited the home, and she reported the
attempted rape to the police the following day. In addition, she
stated there had been domestic violence every other day for the
four years of their relationship. Mother sought emergency
shelter.
On June 30, 2016, originally scheduled for a family
maintenance review hearing, the Department filed a section 300
petition for N.F. and a section 342 subsequent petition for J.N.
based on the June 13, 2016 domestic violence incident. The court
ordered N.F. and J.N. detained from Father, but left all of the
children in Mother’s custody. Father’s visits were to be
monitored.
Between June 2016 and August 2016, Father failed to
appear for four random drug tests. On August 5, 2016, Father
drove his truck into a tree while intoxicated, fled the scene to
avoid arrest, and reported the truck stolen.
September 2016 to June 2017 – J.N. and N.F. out of the
Family Home for 9 Months
In September 2016, during an unannounced visit, a social
worker found Father hiding in the back seat of Mother’s car. On
September 22, 2016, the court ordered Grace, J.N., and N.F.
9
detained from both parents based on Mother allowing Father to
frequent the home and have access to the children in violation of
court orders. The court ordered separate, monitored visitation for
Mother and Father with their respective children.
In October 2016, after Father arrived intoxicated and
crying at a monitored visit with the children and played roughly
with J.N., the Department filed an amended petition for Grace
and J.N. adding an allegation about Father’s history of
unresolved alcohol abuse and DUI arrests. The Department later
added the same allegation to N.F.’s pending section 300 petition.
The Department concluded that Mother and Father were
together as a couple. Father failed to show up for eight drug
tests between September 2016 and January 2017, and tested
positive for alcohol on January 5, 2017.
On January 12, 2017, the juvenile court sustained the
amended petitions for Grace, J.N., and N.F., and entered a
removal order. The court ordered family reunification services
and monitored visitation. Father was ordered to complete a drug
and alcohol program, weekly drug tests, a 12-step program with a
sponsor, a 52-week domestic violence program, developmentally
appropriate parenting classes, and joint counseling with Mother.
Mother was ordered to participate in a domestic violence support
group, developmentally appropriate parenting classes, and
individual counseling.
In January 2017, Father stopped drinking alcohol and
enrolled in a substance abuse program, which he completed.
Between January 18 and May 23, 2017, Father had nine negative
drug tests and did not miss any tests.
In April 2017, Mother’s and Father’s visits with their
respective children were liberalized to unmonitored.
10
On May 23, 2017, Mother and Father had another son
together, Jo.N., who is the third child subject to this appeal.
Mother told the Department that she understood no contact was
permitted between Father and Grace, which meant Father could
not be present when Mother visited with Grace, J.N., and N.F.
By June 2017, the parents were in substantial compliance
with their treatment plan. At the combined six-month review
hearing for N.F. and 18-month review hearing for Grace and J.N.
on June 20, 2017, the juvenile court placed Grace in Mother’s
custody, and J.N. and N.F. in Mother’s and Father’s custody,
with family maintenance services. Father was still to have no
contact with Grace.
June to October 2017 – J.N. and N.F. Back in the Family
Home for 4 Months
On June 25, 2017, a social worker conducted an
unannounced visit to Mother’s residence and observed the home
to be cluttered and unkempt. Garbage was strewn throughout
the garage.
Father had two negative drug tests in June 2017, but did
not appear for two drug tests in July 2017.
In August 2017, the property manager for Mother’s home
noticed 12-year-old Grace driving Mother’s car through the
housing complex while Mother supervised. The property
manager told Mother that Grace was unlicensed and not allowed
to drive in the complex. On August 26, 2017, Mother allowed
Grace to drive in the housing complex while she supervised, with
younger siblings J.N., N.F., and Jo.N. in the car. Grace crashed
into the family garage, and Father ran out of the house to see
11
what happened. Unaware that video surveillance recorded the
incident, Mother told the property manager that she had
accidentally driven into the garage. Mother also told a social
worker that after taking the children to school, Mother returned
and hit the garage.
In August and September 2017, Father had four negative
drug tests.
October 2017 to April 2018 – Detention of the Children
(J.N.’s Third, N.F.’s Second, and Jo.N.’s First Detention)
In October 2017, the Department filed a section 342
subsequent petition for Grace, J.N., and N.F., based on Mother
allowing Grace to drive her car and allowing Father to have
unlimited contact with Grace in violation of the juvenile court’s
orders. The Department also filed a section 300 petition on
behalf of four-month-old Jo.N. containing the same allegations
brought previously concerning the older children. The juvenile
court detained all four children from parental custody.
On October 25, 2017, the Department instituted a referral
for weekly drug testing for Father. Father disputed that he was
required to test weekly; he believed that he was required to call
in daily and follow the scheduling prompts for random testing,
not weekly testing. The Department instructed Father to contact
his attorney for further clarification. He had two negative tests
and did not appear for four tests, some of which were excused by
the Department based on the scheduling confusion and Father’s
documentation that he had appeared.
The parents informed the Department that they were
married and living together as a married couple. Their goal was
12
to regain custody of the children and raise the children together
as a family.
At the end of November 2017, the Department reported
that more than 18 months of reunification services had been
provided for Grace and J.N., and the parents had continued to
present dishonestly throughout the life of the case. Father
admitted being in the home to help Mother with watching the
children. Grace stated that she wanted to live with one of her
grandmothers, and she was not afraid of Father. The
Department asserted that the family failed to address the issues
which brought them to the attention of the Department.
Although father had tested negative for drugs and alcohol
multiple times and provided the Department with the name of
his sponsor, the Department did not consider him to be
committed to sobriety because he only attended one Alcoholics
Anonymous meeting per week and did not do “step work.” He
continued to drive without a valid driver’s license, and his
behavior created a hostile environment for the foster parent, who
agreed to keep all four children as long as she did not have to
monitor visits with the parents.
In the view of the Department, the parents’ lack of
compliance with court-ordered services, failure to honor the no-
contact order by allowing Father access to Grace, Father’s
unresolved substance abuse, and allowing Grace to drive the car,
resulting in a crash with the younger children in the car, placed
the children at risk for future abuse and harm. The Department,
with the support of the Chickasaw Nation, recommended that the
court order permanent placement services and no reunification
services for Grace, J.N., or N.F. The Department recommended
six months of reunification services for Jo.N.
13
On February 23, 2018, the attorney representing the
children filed a statement of issues and contentions. The
children’s attorney noted that Mother and Father received 51
months of services, of which 28 months were formal family
reunification for Grace and J.N., and 8 months were family
reunification services for N.F. The parents continued to engage
in the same behavior patterns that led to detention of the
children, showing no evidence that they had internalized any of
the knowledge they should have gained. The children’s right to
safety and permanence was now the priority. The children’s
attorney recommended no further services as to any of the
children.
In March 2018, the juvenile court struck the allegations
about Grace driving Mother’s car from the section 342 and
section 300 petitions, and as amended, sustained the petitions.
At the disposition hearing, the juvenile court ordered family
reunification services as to all four children and lifted the order
prohibiting contact between Father and Grace. The court ordered
expedited Interstate Compact on the Placement of Children
(ICPC) requests for Steven J., the maternal grandmother, and
Grandmother.
Father enrolled in another substance abuse treatment
program in March 2018, which he completed in August 2018. He
found this program to be the most effective, because the
participants were committed to sobriety. He found a sponsor
through this program who he talks to several times each week.
On April 9, 2018, the children’s attorney filed an
application for rehearing on the ground that the law prohibited
the juvenile court from granting additional reunification services.
The attorney noted that three out-of-state relatives were
14
awaiting approval for placement of the children, and it was
unfair to delay when the children had been living in unstable
placements since 2013.
May 2018 to February 2019 – Termination of Reunification
Services and Mother’s First Section 388 Petition
Upon rehearing on May 16, 2018, the juvenile court found
there were no services available to prevent further detention as
to any of the four children, and the court denied family
reunification services for Jo.N. under section 361.5, subdivision
(b)(10). The court gave the Department discretion to liberalize
the parents’ visitation with their respective children. The court
scheduled a section 366.26 permanency planning hearing for
September 2018, and a permanency planning review hearing for
November 2018.
The juvenile court continued the section 366.26 hearing on
multiple occasions to accommodate the Department. The
Department incorrectly reported Father had been arrested in
April 2018 for DUI for refusing to test and had failed to notify the
Department of the DUI arrest. Father had in fact been stopped
for having a head lamp out and was arrested on an outstanding
warrant for a prior violation.
In December 2018, Mother filed a section 388 petition
seeking to return J.N., N.F., and Jo.N. to her care or to reinstate
family reunification services. Mother argued that the children
were not in permanent plans yet. Mother and Father had
complied with their case plans, making efforts that went beyond
the court’s requests. She provided documentation of parenting
classes and therapy sessions that she had completed.
15
On January 7, 2019, the juvenile court denied Mother’s
section 388 petition. The juvenile court found there was a
substantial change in circumstances, because no further
incidents of inappropriate discipline or domestic violence had
occurred, but it was not in the best interest of the children, after
five years and three removals, to continue to grant further
reunification services. The court allowed Mother and Father to
have monitored visits together with the children.
At the Department’s request, the juvenile court continued
the section 366.26 permanency planning hearing to May 6, 2019.
April 2019 to March 2020 - Father Files Section 388
Petition after Placement with Grandmother
In April 2019, the ICPC for Grandmother for J.N., N.F.,
and Jo.N. was approved. With approval from the Chickasaw
Nation, the juvenile court placed Grace in the home of Steven J.
in Oklahoma and placed J.N., N.F., and Jo.N. with Grandmother
in Arizona. The court changed the date for the section 366.26
permanency planning hearing to May 21, 2019.
On April 29, 2019, Father filed a section 388 petition
seeking return of J.N., N.F., and Jo.N. to his custody or for the
court to reinstate family reunification services. On May 21, 2019,
at the request of the Department, the juvenile court continued
the hearing on the section 388 petition and the 366.26 hearing to
June 21, 2019, so the Department could respond in writing to
Father’s section 388 petition.
In its June 2019 response, the Department acknowledged
that after further investigation, Father had not been arrested for
DUI in April 2018. In the next section of the report, however, the
16
Department repeated in boldface type that Father had been
arrested for DUI in April 2018, which the Department relied on
as evidence that Father continued to struggle with his sobriety
and was not forthcoming, because he failed to disclose the arrest
to the Department. The Department argued that Father had a
pattern of failing to comply with the court’s orders not to have
contact with Grace, continuing to drink alcohol, and continuing to
drive on a suspended driver’s license. His DUI arrests during
active case plans and continued disregard for the law showed
Father had not gained sufficient insight from counseling sessions
and had not adequately addressed the problems that led to
removal of the children. His actions presented a danger to the
children’s physical and emotional health and safety.
At the Department’s request and without objection by
Father, the juvenile court continued the section 388 and 366.26
hearings multiple times, first to October 2019, then to December
2019, and then again to March 2020.
In November 2019, Mother and Father began driving to
Arizona every other weekend for unsupervised visitation with
J.N., N.F., and Jo.N. Father started using marijuana edibles for
pain relief in December 2019. In December 2019, the juvenile
court gave the Department discretion to expand visitation to
include overnight, extended visits.
On January 26, 2020, Mother and Father had another son,
Josue, who is not a subject of this appeal.
On February 11, 2020, Father tested positive for
marijuana. As a result, Josue was declared a dependent and
remained in the parents’ custody under a family maintenance
plan. On March 9, 2020, Father submitted a drug test that was
17
diluted. He stopped using marijuana, which he considered to be
a relapse from his sobriety.
In March 2020, the Department filed an additional
response to Father’s section 388 petition. Grandmother reported
that Mother and Father did not call the children to speak on the
telephone between monthly visits. The children did not ask for
the parents or ask to speak with the parents. After the parents
visited, the children’s behavior regressed. Six-year-old J.N.
expressed fear that someone would come and take him. He was
upset that Mother gave birth to another baby, but was not taking
care of him, N.F., and Jo.N. He told a social worker that he likes
visiting with his parents, but prefers to continue living with
Grandmother because she takes care of him and follows the rules.
Four-year-old N.F. also said she was happy when the parents
visited, but wanted to continue living with Grandmother. She
did not want to live with the parents because they did not protect
the children.
In the Department’s assessment, the parents had not
established a bonded relationship with J.N., N.F., and Jo.N. The
parents were unable or unwilling to understand the children’s
developmental stages and needs despite having completed
services on multiple occasions. During visits, the parents
undermined the structure and stability that the children had
established in the care of Grandmother. They did not model
positive behaviors, provide any structure, and did not help the
children with homework during visits.
In the opinion of the Department, Grandmother continued
to be the most appropriate placement for J.N., N.F., and Jo.N.
She was committed to caring for the children to adulthood. The
Chickasaw Nation was not opposed to terminating parental
18
rights with respect to J.N., N.F., and Jo.N. The Department
recommended Father’s section 388 petition be denied.
March 2020 to January 2021 –Mother Files Another
Section 388 Petition While Father’s Section 388 Petition
Remains Pending
Due to the coronavirus pandemic, the section 388 and
section 366.26 hearings were continued several times, from
March 2020 to May 2020, and then ultimately to January 21,
2021. Once the pandemic began, the parents had video calls with
the children two to three times each week.
Between July 2020 and January 2021, Father had 22
negative drug tests and two tests that were excused because he
was verified to have been out of town.
On December 31, 2020, Mother filed a section 388 petition
seeking custody of J.N., N.F., and Jo.N.
The Department reported that Mother and Father traveled
to Arizona at least two weekends each month for visitation with
the children. Mother had been contacting Grace two to three
times weekly. The Chickasaw Nation continued to support the
plan of adoption by Grandmother.
J.N.’s first-grade teacher wrote a letter recommending J.N.
remain with Grandmother. J.N. had been in her first grade class
the year before and not applied himself. After many
conversations with Grandmother about his work habits, they
decided to keep him in first grade another year. Grandmother
worked with J.N. over the summer. When he returned, his
academic performance was greatly improved. Without
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Grandmother’s diligence, his teacher felt J.N. would be far
behind.
Jo.N.’s preschool teacher wrote a letter stating that Jo.N.’s
behavior changes after he visits with his parents. He is more
aggressive, less focused, and requires more redirection than
usual. He is more likely to hit, push, or choke a friend. The
teacher stated that it takes Grandmother and the school staff a
couple of days to bring his behavior back in line.
Grandmother had an approved preliminary relative home
study through the Arizona Department of Child Safety, but under
Arizona’s guidelines, an adoption ICPC could not be initiated
until parental rights had been terminated. In a report that
contained multiple incorrect statements of fact, the Department
stated no history of child abuse or neglect had been noted as to
Grandmother. The report did not explain the prior reports that
there were substantiated allegations of child neglect as to
Grandmother.
Hearings on Parents’ Section 388 Petitions
The hearing on the parents’ section 388 petitions took place
on January 21, February 23, and March 15 and 17, 2021. The
court stated that the section 366.26 proceedings would depend on
the outcome of the section 388 petitions. After admitting
evidence, including the Department’s reports and letters
documenting counseling sessions, the court heard testimony from
Grandmother, Mother, and Father.
Grandmother testified that after parental visits, J.N. starts
hitting and acting violently towards his siblings. He yells,
without knowing why he is angry. Days later, he returns to
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normal and is a loving brother to the siblings. The children did
not want to talk to the parents on the phone and would reject
their calls because they did not want to talk to them. The
children’s therapist said it would benefit the children if the
parents did not have contact with them, because the parents do
not require the children to follow rules on visits, resulting in the
children having behavioral and anger issues. The children think
they can continue with these behaviors when they come home
and at school, both during and after the parents’ visits.
Grandmother cancelled the parents’ last visit because N.F. had a
rash caused by stress, and she had refused to reschedule
visitation in order to prevent exposure to contagions.
Mother testified about classes, programs, and counseling
that she completed. She attended domestic violence counseling
and finished a course of couples therapy with Father in 2019.
Mother participated in individual and couples therapy to learn to
communicate effectively and appropriately, to strengthen their
relationship, and to work as a team. No incidents of domestic
violence had taken place in the past year. Mother described
communication techniques that they learned and employed, and
she described appropriate discipline and parenting techniques.
The Department had been visiting their home monthly in
connection with Josue and had no concerns.
Mother testified about Father’s sobriety. Mother, Father,
and Josue were living in the home of Father’s grandparents,
along with Father’s older son from his prior relationship and
Father’s uncle. Family members in the home used some alcohol,
but she did not consider the presence of alcohol to be a
temptation for Father in light of his disinterest and his strong
commitment to sobriety. She admitted that his use of marijuana
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was a relapse, but she believed he had used marijuana for pain
management, not recreation, and had stopped using it after
receiving a positive drug test. If Father relapsed, however,
Mother stated she would have to move out with the children.
Mother and Father drove to Arizona for unmonitored visits
with J.N., N.F., and Jo.N. twice a month, for a total of four days
each month. They provided food and engaged in activities with
the children. On rare occasions, when the children exhibited
aggressive behavior during visits, she called Grandmother to
communicate about the children’s behavior so the adults would
have the same information. Previously, when they did not
communicate directly, the children told the adults different
things. Mother and Father employ timeouts for behavior issues
on visits. Mother had not spoken with any of the children’s
teachers.
Mother expressed sorrow and regret that she had not been
able to change sooner. Visiting the children from a distance and
not being able to tell them when they could come home forced the
parents to change their perspective. She explained that she had
to unlearn patterns of domestic violence and physical abuse that
she grew up believing to be normal family dynamics. There had
been numerous visits when the children were upset and did not
want to go back to Grandmother’s home after visiting with the
parents. Father’s relationship with Grandmother was
inconsistent. At times, Father and Grandmother did not speak to
each other until they had cooled down. Father and Grandmother
were not really communicating at the time of the hearings.
Father admitted past alcohol and anger issues. He had
completed a domestic violence program. He quit drinking alcohol
on January 5, 2017, and talks to his sponsor several times each
22
week. He used marijuana in December 2019 for pain, but he
considers marijuana use to be a relapse and he stopped. Over the
course of the dependency case, he completed several substance
abuse treatment programs. Some were less successful because
the people in the program were there by court order and not
committed to recovery. The best program was at Twin Town in
Torrance, where he found his sponsor, because the people
participating in the program were committed to being sober. He
completed the most recent program in August 2020.
The family members he lived with supported his sobriety.
His grandfather kept a few bottles of beer in the refrigerator and
his uncle had some plastic bottles of alcoholic drinks in his room.
Father was aware that the children looked to Mother and Father
as role models, so when the parents displayed destructive
behavior, the children viewed it as a normal environment.
Father’s older children had seen him drinking when they were
younger and they know that he is sober now. His older children
have been able to see the changes in Father’s and Mother’s
behavior and they appreciate the difference.
He currently has a valid driver’s license. Father and
Mother were taking classes in cosmetology school together.
Father had been successfully parenting the children during visits
in Arizona, so he believed he could continue to do so if they were
returned to parental custody. He acknowledged that the longest
period of time the children had lived in one place was their
placement with Grandmother for the past two years. Father gets
along well enough with Grandmother, although they had
disagreements about visitation in the past month. He was aware
that she loves the grandchildren and was doing everything she
could for them. Unless she asked, he had not done much to
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support Grandmother in raising his children. He had helped her
with drywall and electrical issues in her home. He spent his
funds for travel and visitation. He is concerned that
Grandmother will decide it is too disruptive to the children’s lives
and their behavior to visit with their parents.
The parents’ attorneys each argued it was in the children’s
best interest not to terminate parental rights and to order the
children’s return to the parents or to reinstate family
reunification services. Father’s attorney emphasized that Father
had filed his section 388 petition in April 2019, nearly two years
prior to the hearings.
The attorney for the children also asked the juvenile court
to reinstate family reunification services and order overnight
visits. The children’s attorney explained that although it was
difficult to recommend reinstatement of reunification services in
light of the amount of time that the case had been open, after
hearing the parents’ testimony, the attorney believed there was a
showing of significantly changed circumstances. The parents had
addressed every issue that had brought the family before the
court. The biggest safety concern was domestic violence, but the
parents had taken responsibility and were able to articulate how
they addressed the issue through counseling. Father’s desire to
demonstrate a different pattern for his children was exactly the
type of self-reflection and insight that the dependency system
intended parents to gain. Although the children’s attorney had
concerns about Father’s alcohol abuse, Father had taken steps to
address it. The attorney added, “Children are returned to
parents all the time and cases close all the time without us
knowing for sure that there won’t be a relapse in the future.” The
children’s attorney argued that although there was a risk of
24
relapse, Father had developed the tools and the support system
to take the necessary steps to get back on track. The attorney
felt Mother would benefit from Al-Anon if the court ordered
reunification.
Although the Department had identified concerns about the
children’s behaviors following the parents’ visits, the children’s
attorney noted that the observations were presented entirely by
Grandmother and not based on the Department’s observations.
Grandmother wanted to provide permanency for the children,
which was straining the family dynamic. It was not uncommon
for children to act out following parent visits, often as a result of
not wanting the visits to end.
The children’s attorney discussed whether it would be in
the children’s best interests to reunify. On one hand, after seven
years and five years respectively, J.N. and N.F. deserved a
permanent resolution. The children had bounced around in
foster care for many years and had been with Grandmother for
almost two years. Ultimately, however, the attorney concluded
the children deserved to be raised by parents who would put their
safety first, had developed the tools for protective capacity, and
had been successfully raising a baby sibling for over a year. The
children’s attorney therefore asked that the section 388 petitions
be granted in part by reinstating reunification services, ordering
overnight visits, continuing parents’ participation in their current
programs, and having Mother participate in Al-Anon meetings.
Reunification services, rather than an outright return of the
children, would provide for a transition period for the children
and ensure that the parents could continue implementing the
tools that they had developed with the added parenting
responsibilities.
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Without distinguishing among the children or
acknowledging the children’s different histories, the Department
stated it had been almost nine years since the family first
appeared before the juvenile court and the evidence of the
parents’ compliance was the same as the court heard when it
returned the children previously. There were no different
programs or classes. They were in the same therapy. There were
no changed circumstances. The Department acknowledged that
the parents’ testimony was credible, but argued the facts were
the same as had been presented in reports and certificates of
completion for the past nine years. The Department asked the
court to deny the petitions, arguing it was not in the children’s
best interest to delay permanency. Without acknowledging that
it was responsible for delay, the Department noted the
permanency hearing had been in limbo for the entire time that
the children were placed with Grandmother. The Department
argued it was not in the best interest of the children to remove
them from the home that was meeting their needs to possibly
transition back to the care of parents they have not lived with for
two years. The Chickasaw Nation was in agreement with the
Department, based on the information learned from the
Department and from speaking with Grandmother monthly.
The juvenile court stated, “I have to tell you I’m not ready
to return these children home today. I’m just not. The court’s
just not because the fear of failure is so great. [¶] Have the
parents done everything I can possibly ask them to do? Yes.
Seven years ago, five years ago, the case would have been return,
case closed, and not come back. But that’s not what happened . . .
[¶] There’s a lot of denial; a lot of going back and forth; a lot of,
oops, I’m sorry, trying all over again. The court is encouraged
26
that there has been a child in their care for a year that hasn’t
been detained. [¶] But you’re asking me after seven years and
five years to send children home who haven’t lived in this home
for seven and five years. The court’s not willing to do that today.
. . . The court’s intrigued that the Tribe in this case is agreeing
with the Department and minors’ counsel is not. I take that
seriously.” The court suggested that the best result for the
children would be for Mother, Father, and Grandmother to sit
down and figure out how to raise the children together.
“The court finds there’s a substantial [change] of
circumstances, but it’s not in the best interest to send these
children home today, and to extend reunification services, I think
is cruel to these children that have been waiting seven and five
years. [¶] So I’m going to deny the 388. It’s time.” The court
conferenced with the attorneys about the section 366.26 hearing
off the record.
On the record, the court spoke to the parents, “I know
you’re disappointed. I’m not terminating your parental rights
today. I may never terminate your parental rights if you do the
things I’m asking you to do. . . . First thing I’m going to do is I’m
going to reinstate your weekend overnight visits because . . . ¶ I
stated off the record I have parents who can’t go across the street
to visit or down the street and you guys are going out of state.”
The court set a date in April 2021, for the section 366.26 hearing.
The court noted for the record that Mother was crying and
stated to the parents, “Who you are today took a long time to get
to. Who dad is today took a long time to get to. Before I send
babies home, I want to make sure there are no issues or
problems. . . . [¶] The Department doesn’t want me to do this.
They want me to terminate your parental rights and move on. I
27
don’t think that’s in the best interest of your babies either. But
you all have to find a way to get along with Grandma. I’m hoping
during this time, when everyone figures out what it’s going to
look like for these children for the foreseeable future, things will
calm down enough to see what’s best for these children.”
“Do we understand each other, Mom and Dad? I have to
tell you that I am very impressed that you travel out of state to
see your babies and that you spend time and the time that you
talk about, when you’re with them, as being a parent – not a
friend, not a big sister, not an aunt, not a cousin. [¶] So I would
find it very difficult to terminate parental rights at this point
where we are today based on what I heard because this court
believes Mom and Dad are now finally Mom and Dad or have a
parental relationship. I believe the exception would apply.” The
court instructed the parents not to do anything before the section
366.26 hearing to change that. The court added, “Mother and
Father, you have an absolute right to take me up on a rehearing
or appeal of the denial of the 388. You have a limited number of
days to file a rehearing and/or an appeal on this denial. [¶]
Please speak to your attorneys forthwith, but listen to what I
have to say. Not today but that doesn’t mean it may not be
tomorrow. Do we understand each other?” The parents
acknowledged that they understood. The court denied the section
388 petitions and ordered overnight visits begin with Mother and
Father.
Father and Mother each filed timely notices of appeal from
the order denying their section 388 petitions. Section 366.26
permanency planning hearings were held on June 28 and July
28
22, 2021.3 The juvenile court ordered legal guardianship of J.N.,
N.F., and Jo.N. to Grandmother, finding that parents had shown
the parental beneficial relationship exception applied. A
permanency planning review hearing scheduled for January 19,
2022, was continued to July 26, 2022.
DISCUSSION
Applicable Law and Standard of Review
“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”’].)”
(In re J.M. (2020) 50 Cal.App.5th 833, 845.)
“The section 388 modification procedure is an ‘“escape
mechanism” when parents complete a reformation in the short,
final period after the termination of reunification services but
before the actual termination of parental rights.’ ([In re]
3 We granted Father’s request to take judicial notice of the
June 28, 2021 minute orders. On the court’s own motion, we take
judicial notice of the minute orders dated July 22, 2021, and
January 19, 2022.
29
Kimberly F.[ (1997)] 56 Cal.App.4th [519,] 528; see [In re]
Marilyn H.[ (1993)] 5 Cal.4th [295,] 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[.])” (In re J.M., supra, 50 Cal.App.5th at pp. 845–846.)
Substantial Change in Circumstances
It is undisputed that the parents demonstrated 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.’].)” (In re J.M., supra, 50 Cal.App.5th at
p. 846.)
30
The dependency proceedings in this case were instituted
based on inappropriate discipline of the children prior to January
2014, including striking them with a belt or a shoe. The parents
completed parenting classes, and in seven years following the last
incident, there was no evidence that Mother or Father used
inappropriate discipline or corporal punishment to discipline
their children. The parents addressed issues of domestic
violence, which had culminated in a very serious incident on June
13, 2016, through domestic violence counseling, individual and
couples counseling, and Father’s anger management classes. No
incidents of domestic violence were reported in four and a half
years prior to the hearings. After January 2017, and prior to
filing his section 388 petition in 2019, Father demonstrated
increasing success in his struggle with substance abuse. Father
established even greater success in the two years after his
petition was filed, before it was heard by the court. The parents
presented ample evidence that they had addressed the primary
reasons for juvenile court jurisdiction, and this constituted a
substantial change for the purposes of the parents’ section 388
petitions.
Best Interests of the Children
Mother and Father contend that it would be in the best
interests of the children to be returned to their parents’ custody,
or at least to reinstate reunification services, but we conclude
that no abuse of discretion has been shown.
“In any custody determination, a primary consideration in
determining the child’s best interest is the goal of assuring
stability and continuity. (Burchard v. Garay (1986) 42 Cal.3d
31531, 538, and fn. 6.) ‘When custody continues over a significant
period, the child’s need for continuity and stability assumes an
increasingly important role. That need will often dictate the
conclusion that maintenance of the current arrangement would
be in the best interests of that child.’ (Ibid., fn. omitted; see
also In re Marriage of McGinnis (1992) 7 Cal.App.4th 473, 478.)”
(In re Stephanie M., supra, 7 Cal.4th at p. 317.)
“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’ (In
re Marilyn H., supra, 5 Cal.4th 295, 309), and in fact, there is a
rebuttable presumption that continued foster care is in the best
interest of the child. (Id., at p. 302.) 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 interest of the child.” (In re Stephanie
M., supra, 7 Cal.4th at p. 317.)
The “best interests” analysis requires more than a simple
comparison of the household and upbringing offered by the
natural parent and the caretaker, here Grandmother. (In re
Kimberly F., supra, 56 Cal.App.4th 519, 529.) Other factors to
consider include: “(1) the 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; and (3) the
degree to which the problem may be easily removed or
ameliorated, and the degree to which it actually has been.” (Id.
at p. 532.)
32
“This determination was committed to the sound discretion
of the juvenile court, and the trial court’s ruling should not be
disturbed on appeal unless an abuse of discretion is clearly
established. [Citations.]” (In re Stephanie M., supra, 7 Cal.4th at
p. 318.) “‘The appropriate test for abuse of discretion is whether
the trial court exceeded the bounds of reason. When two or more
inferences can reasonably be deduced from the facts, the
reviewing court has no authority to substitute its decision for
that of the trial court.’ [Citations.]” (Id. at pp. 318–319.)
We find no abuse of discretion in this case. Although both
parents had engaged in services to address a longstanding
dynamic involving domestic violence and Father had shown a
commitment to sobriety, these improvements must be considered
in the greater context of a very lengthy dependency proceeding,
where the court permitted parents to regain custody of the
children several times, only to have the children detained again
under new allegations. It is undeniable that both parents have
made great fforts to rectify their past mistakes and to foster and
maintain a loving connection with all three children despite the
significant distance. However, over the course of the first four
years of this dependency proceeding, father repeatedly violated
no-contact orders entered for the children’s protection. Although
the parents had been under court supervision since August 2013,
when the Department filed the first petition in this case, there
was substantial evidence of significant domestic violence in 2016,
as well as father’s ongoing problems with alcohol. All of this led
to J.N.’s second removal and N.F.’s first. By the time the court
terminated reunification services in May 2018, J.N. had been
removed from parental custody three separate times, N.F. was
removed twice, and Jo.N. once. However, in contrast to the
33
revolving door of reunification services and removal that marked
their earliest stages in life, it appears that J.N., N.F., and Jo.N.
have found a level of stability with Grandmother that is in their
best interests. J.N.’s teacher reported a marked improvement in
his academics, and recommended he remain with Grandmother.
In March 2020, a full year before the court’s decision, J.N. and
N.F. stated a preference for continuing to live with Grandmother
over returning to parents. Father even agreed in his testimony
that Grandmother loves J.N., N.F. and Jo.N. and was doing
everything she could for them. It was within the juvenile court’s
discretion to credit this evidence, find the children’s best interests
were better served remaining with Grandmother, and deny the
parents’ section 388 petitions.
DISPOSITION
The March 17, 2021 orders denying Mother and Father’s
section 388 petitions are affirmed.
MOOR, J.
We concur:
RUBIN, P.J.
BAKER, J.
34