In
re C.D.
Filed 4/17/13 In re C.D. CA2/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
In re C.D., a Person Coming
Under the Juvenile Court Law.
B241284, B242492
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MICHELLE B.,
Defendant and Appellant.
(Los Angeles
County
Super. Ct.
No. CK75099)
APPEALS
from orders of the Superior Court of the County
of Los
Angeles. Jacqueline
Lewis, Juvenile Court Referee. Reversed
and vacated with directions.
______
Mitchell
Keiter, under appointment by the Court of Appeal, for Defendant and Appellant.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, Jeanette
Cauble, Deputy County Counsel, for Plaintiff and Respondent.
______
Michelle B.
(Mother) appeals from the trial court’s orders denying her petitions under
Welfare and Institutions Code section 388 and terminating her parental rights
as to her son, C.D.
title="">[1] We reverse and direct the trial court to
grant Mother’s petition and return C.D. to her custody.
BACKGROUND
Our opinion
in a previous appeal summarized the relevant facts as follows: “Ten‑year‑old J.H. and his
half-brothers R.R., age 5, and C.D., age 11 months, came to the attention
of the Department of Children and Family
Services (DCFS) in October 2008 after J.H. went to his school nurse to
obtain an ice pack for his swollen arm.
J.H. told the nurse that his mother’s boyfriend had given him a
‘“whoopinâ€â€™ the night before.
The nurse observed bruises and swelling on J.H.’s arm and called
the DCFS.
“That
afternoon a social worker interviewed J.H. at school. The worker reported that she observed red,
raised linear welts on the child’s right arm and back and a dark purple bruise
on his upper right arm. She also observed linear scars on J.H.’s legs
which, he told her, were the result of ‘“whoopinsâ€â€™ by the boyfriend with
an ‘extension cord.’ (Later in the
interview, he clarified that the cord was a jump rope.) J.H. stated that he received this
punishment because he forgot to give C.D. his bottle and then lied about
it. J.H. told the worker that before the
boyfriend moved into their home, his mother would punish him by hitting him
with a belt. Now, however, his mother
and her boyfriend usually punish him and his brother, R.R., by hitting them
with the jump rope. He said
he never saw them hit C.D. J.H.
also told the worker that it was not wrong for his mother and the boyfriend to
strike him with the rope and that ‘he was not scared to go home.’
“Later that
day the worker interviewed the boyfriend and five-year-old R.R. at their
home. The boyfriend admitted striking
J.H. with the jump rope the previous night and showed the rope to the worker. She described it in her report as ‘about 6
inches long with a handle.’ She also
reported the boyfriend ‘appeared bewildered’ when she informed him that
striking a child hard enough to leave marks and bruises constitutes child
abuse. R.R. confirmed that the boyfriend
‘“whooped [J.H.’s] buttâ€â€™ the previous day for telling a lie. R.R. told the worker that the boyfriend had
also hit him with the jump rope the previous day because he forgot to bring
home his homework.
“The worker
interviewed Mother at the DCFS office where the children had
been taken. According to the DCFS
Detention Report, ‘Mother denied allegations of physical abuse, although she
confirmed that [J.H.] was struck the night before with the plastic jump rope by
her boyfriend.’ Mother told the worker
that in Arkansas, where
she was from, physically disciplining a child was not considered ‘abuse’
and that she had been disciplined with a switch when she was a child. Nevertheless, Mother told the worker
that ‘if her form of discipline is a problem, she is willing to try other means
of discipline for her children.’
Mother also stated she did not see any bruising on J.H. that morning and
that until the previous night the child had not had a ‘“whoopinâ€â€™ in over a
month.†(In re J.H. (Nov. 5, 2009,
B213547) [nonpub. opn.].)
“The DCFS
filed a petition requesting that the three brothers be declared dependent
children of the court under Welfare and Institutions Code section 300,
subdivisions (a), (b), (g), and (j). At
the detention hearing the court considered the petition, the report summarized
above and the arguments of counsel and found a prima facie case for detaining
the minors. The court placed C.D. with
his father and placed J.H. and R.R. with an extended family member. Mother was allowed only monitored visitation
with all three children.†(
In
subsequent interviews before the jurisdiction and disposition hearing, Mother
provided proof that she had voluntarily enrolled and was attending counseling
at a Christian counseling center and that she and the boyfriend had voluntarily
enrolled and were attending a parenting class through the Long
Beach School District. (In re
J.H. (Nov. 5, 2009,
B213547) [nonpub. opn.].) “The boyfriend
admitted hitting J.H. with a piece of jump rope. He told the worker he didn’t know hitting a
child with an object like a rope or a belt was unlawful in California. ‘Arkansas
is different,’ he explained.
He admitted that he and Mother ‘made a mistake’ and stated that if
the children are returned home there would be no more physical discipline. He confirmed that he and Mother were
participating in a parenting class.
“The DCFS
report also summarized reports from the Long Beach Police Department regarding
the investigation of the incident that led J.H. to go to the school nurse. The detective assigned to the case reported
principally on his interview with the boyfriend. According to the detective, the boyfriend
stated he struck J.H. several times with a ‘“piece of cordâ€â€™ but that he did
not mean to cause J.H. physical injuries; he was just trying to teach him a
lesson. ‘The boyfriend began crying and
stated that he was very sorry for what he did.
[He] stated that as a young child, he was disciplined that same way and
did not realize that it was wrong to do.’
The detective also wrote that the boyfriend said he ‘would do anything
to get the children back.’
“In
testifying at the combined adjudication and disposition hearings, Mother
admitted that three or four times in the past year she struck J.H. on his
buttocks with a plastic jump rope and a belt but she denied ‘caus[ing] injuries
to the child.’ On direct examination she
also testified that as far as she knew the boyfriend did not strike J.H. ‘in the
head, back, shoulder, arms, leg and hand with a plastic jump rope causing
injuries.’ On cross-examination she
clarified that the boyfriend hit J.H. once with a jump rope but did not
cause him injury. Asked whether, if the
children were returned to her, she was ‘willing to stop using any type of
physical discipline on them,’ Mother answered, ‘Yes.’ Mother submitted a letter from her parenting
class instructor, dated the day before the disposition hearing, describing that
Mother ‘is an active participant in my class, she seems eager to learn, and to
do anything possible to be a better parent.’
Mother also submitted a letter, dated two days before the hearing, from
her counseling program stating that Mother ‘has recently completed four
consecutive sessions and has shown a positive progress.’
“The court adjudicated the three boys dependents of the
court under section 300, subdivisions (a), (b), (g) and (j). The court terminated jurisdiction over R.R.
and C.D., placed them with their fathers and awarded the fathers sole physical
and legal custody of the children with weekly, monitored visitation for
Mother. It retained jurisdiction
over J.H. and continued his placement with a family member. The court found by clear and convincing
evidence that despite the DCFS ‘making reasonable efforts to enable
the child’s safe return home,’ ‘[s]ubstantial danger exists to the
physical health of [the minor] . . . and there is no reasonable means
to protect [the minor] without removal from parent’s or guardian’s physical
custody.’ The court ordered family
reunification services and appropriate conjoint counseling for Mother and
J.H. It also ordered that Mother
complete a DCFS approved program of ‘parenting education, preferably a 52‑week
class, if the Department can identify one.’â€
(In re J.H. (Nov. 5, 2009,
B213547) [nonpub. opn.].)
In an
opinion filed November 5, 2009, we reversed the dispositional orders removing
the children from Mother’s home, terminating jurisdiction over R.R. and C.D.,
and awarding sole physical and legal custody to their fathers. We directed the trial court to return
the children to Mother’s home “unless circumstances occurring after
the dispositional orders warrant other remedies.†(In re
J.H. (Nov. 5, 2009, B213547) [nonpub. opn.].)
On remand,
the court reinstated jurisdiction over R.R. and C.D. but did not return them to
Mother’s home, because on December 25, 2009, Mother and the boyfriend
were involved in an altercation at the home of J.H.’s paternal aunt, where
J.H. had been placed. Witnesses gave
conflicting accounts of the incident, in which Mother and the boyfriend went to
the paternal aunt’s home (unannounced and without permission, according to
the paternal aunt) to see J.H. When
the paternal aunt told them that J.H. was playing at a neighbor’s
house, they headed toward that house but were confronted by the paternal
aunt’s 37-year-old son, who is a paraplegic and uses a wheelchair but
was at that time on parole following a felony conviction for assault with
a firearm. According to the
paternal aunt, her son told Mother and the boyfriend “to stop harassing
his mother and that they needed to leave.â€
The verbal confrontation escalated to a physical one in
which, according to at least one witness, Mother spit on and struck the
paternal aunt’s son, drawing blood. The
paternal aunt’s son shot Mother’s boyfriend, wounding him in the leg.
Mother
reported the incident to the police, and the paternal aunt reported it to
the DCFS. Upon investigating, the
DCFS determined that the paternal aunt’s son, a violent felon on parole, was
living at the paternal aunt’s residence, making it “an illegal placementâ€
for J.H. The DCFS removed J.H. from the
paternal aunt’s home, placed him in foster care, and sought to modify his
disposition order pursuant to section 387.
On February
2, 2010, the DCFS filed a section 342 petition with respect to all three
children, contending that the incident with the paternal aunt’s son endangered
the children’s physical and emotional health and safety and placed them at risk
of physical and emotional harm and damage.
On November
1, 2010, the trial court sustained the petition. The court placed R.R. in his father’s
home under supervision of the DCFS, and the court ordered J.H. and C.D. placed
in the care of the DCFS, for suitable placement; J.H. was put in foster care,
and C.D. was placed with his adult sister.
The court also ordered family reunification services and monitored
visits for Mother. In a subsequent
order, the court terminated jurisdiction as to R.R. and entered a family law
order awarding his father sole physical and legal custody. Mother appealed, and we affirmed the removal
orders, the denial of unmonitored visitation, and the termination of
jurisdiction as to R.R. (
B230695) [nonpub. opn.].)
The
court-ordered case plan directed Mother to participate in individual counseling
and DCFS-approved parenting and anger
management programs.
name="_ftnref2" title="">[2] It also directed the DCFS to provide referrals
to the boyfriend for individual counseling and anger management and parenting
programs.
The record
reflects that as of March 27, 2010, Mother completed a 52-week parenting
program for child abusers. The
instructor commented that Mother “has made significant, substantial changes
since enrolling in the program†and “has learned to take time-outs and think
before reacting.â€
On February
11, 2011, Mother and the boyfriend completed their DCFS-approved anger
management program.
On March
16, 2011, the DCFS filed a section 388 petition requesting authorization to
liberalize Mother’s visitation to unmonitored or overnight visits for both J.H.
and C.D. The petition was based on the
changed circumstances that “Mother has consistently participated in individual
counseling and anger management.â€
Accordingly, the DCFS reasoned that “[i]f mother’s progress continues to
be positive, the [DCFS’s] recommendation will be for the children to return
home at the next court hearing on 5/2/11.
Unmonitored and/or overnight visits will facilitate the children’s
return home. This will also give mother
the opportunity to demonstrate that she can appropriately provide for the
children.†The attached letter from the
director of the anger management program stated that Mother “is a very active
participant in my class, she participates in the discussions and is learning to
deal with her issues regarding her anger. . . . I have great
confidence that she is on her way to having control over her past issues.†The letter from Mother’s individual therapist
was similarly supportive.
No later than April 5, 2011, Mother was discharged from
individual therapy “because she met all treatment goals and was no longer in
need of therapy.†We note that the
record reflects that the therapist was fully apprised of the various versions
of the altercation that took place on December 25, 2009. The court repeatedly ordered that all
sustained petitions and all DCFS reports be sent to the therapist. In addition, the therapist stated that Mother
herself provided the therapist with both a copy of the police report and a
copy of the detention report filed by the DCFS on January 5, 2010, and Mother
and the therapist “reviewed the information in both reports carefully.†The January 5 detention report described in
detail the conflicting versions of the altercation.
In a May 2,
2011, interim review report in support of the March 16, 2011, petition under
section 388, the DCFS observed that Mother “is continuing to have appropriate,
individual, monitored contact with both [J.H. and C.D.].†The DCFS reiterated its recommendation that
it be granted discretion to liberalize Mother’s visitation to unmonitored or
overnight visits for both J.H. and C.D.
On June 7,
2011, both Mother and the boyfriend completed their DCFS-approved parenting
program. The social worker reported that
Mother stated that “she liked this parenting class better than the previous
one, explaining that it provided more tips on how to praise your children for
the good behavior as opposed to only reprimanding them for the negative
behavior. Mother showed [the social
worker] the homework that she completed for the class and [the social worker]
observed that [Mother] seems to be learning based on her answers on the
homework.†Mother also informed the
social worker that the boyfriend was not living with Mother, and the social
worker “observed no adult male belongings†in Mother’s home; but Mother
also told the social worker that she planned to live with the boyfriend
“someday,†because they intended to marry.
On August 1
and 2, 2011, the court conducted a hearing on the section 388 petition that the
DCFS had filed on March 16. In support
of the DCFS’s petition, Mother submitted a letter to the court in which
she stated that she “no longer believe[s]†that corporal punishment is a
“suitable means of discipline.†She also
described the alternative methods of discipline and other parenting techniques
that she has learned, and she informed the court that she was now working as a
nurse with “special needs children†and that, through her work, she had learned
“a great deal of patience.†Mother’s
therapist testified at the hearing and was entirely supportive of the position
advocated by DCFS and Mother.
The court
granted the petition as to J.H., authorizing unmonitored visits for him, but
the court denied the petition as to C.D.
The court’s minute order states that Mother “is in partial
compliance with the case plan.†(Mother
had in fact completed all court-ordered programs two months earlier.) The court also terminated Mother’s
reunification services because “we are [past] the 18-month date,†and the court
set a permanency planning hearing under section 366.26 for both J.H. and C.D. Mother filed a writ
petition seeking to overturn the order terminating reunification services,
but we denied the petition. (
2012, B235454) [nonpub. opn.].)
On November
29, 2011, at the initial section 366.26 hearing, Mother’s counsel informed the
court that R.R. was now living with Mother, because R.R.’s father, in
whose home R.R. had been placed, was in prison, and Mother had obtained
custody through the family law courts.
The court continued the hearing.
On February
10, 2012, Mother filed a petition under section 388, seeking return
of J.H. and C.D. to her care and custody.
In support of her petition, she attached, inter alia, documentation
showing that she is a licensed vocational nurse, as well as a copy of a
performance evaluation from her job, showing that she scored the highest
possible rating in all 17 areas that were assessed. The court denied the petition without
a hearing as to C.D., but the court granted a hearing on the petition as
to J.H.
On March
29, 2012, Mother filed another petition under section 388, seeking return of
C.D. to her care and custody (her previous section 388 petition as to J.H. was
still pending). The court denied the
petition without a hearing. Mother
timely appealed.
On May 21,
2012, Mother filed another petition under section 388, seeking return of C.D.
to her care and custody (her previous section 388 petition as to J.H. was still
pending). On May 29, 2012, the court
granted a hearing on the petition. The hearing
was originally calendared for June 7 but was later continued to June 25,
2012.
In “last
minute information for the court†dated June 22, 2012, the DCFS informed the
court that Mother “has complied with all Court ordered programs,†including
counseling. The DCFS again noted
that Mother was “discharged from therapy because she met all treatment goals
and was no longer in need of therapy.â€
The DCFS further observed that “mother has continued to have unmonitored
overnight/weekend visits with her son, [J.H.],†those visits “have been
appropriate,†“[n]o problems have been reported by mother or [J.H.] with the
visits,†and J.H.’s foster father “has reported no behavioral problems
with [J.H.] upon returning from visits with his mother.†The DCFS also inspected Mother’s home and
found it to be “clean, neat and well kept,†raising “[n]o current
safety issues or concerns.†Accordingly,
the DCFS recommended that J.H. be ordered placed in Mother’s home. As to C.D., the DCFS felt it was “unable
to make†the same recommendation, because C.D. still had not had any
unmonitored or overnight visits with Mother (which the DCFS had requested
in March 2011). Consequently, the DCFS
again recommended that the court grant the DCFS discretion to liberalize
Mother’s visitation with C.D. to unmonitored or overnight visits.
On June 25,
2012, the court heard and ruled on the section 388 petitions as to
both J.H. and C.D. The court
granted the petition as to J.H., returning him to Mother’s custody under DCFS
supervision. The court denied the
section 388 petition as to C.D. on the ground that “[t]here [has] been no
change of circumstances.†The court then
proceeded to conduct the section 366.26 hearing as to C.D. The court found that C.D. was adoptable, that
there were no legal impediments to adoption, and that no exception
to adoption applied. The court
terminated Mother’s parental rights as to C.D. and ordered adoption as the
permanent plan.
Mother
timely appealed from the court’s order of June 25, 2012. We consolidated that appeal with Mother’s
appeal from the denial of the section 388 petition she filed in March 2012.
DISCUSSION
Mother
argues that the trial court abused its discretion by denying the section 388
petition she filed in May 2012. We
agree.
“Modification
orders in juvenile dependency court are authorized by section 388. Essentially, the statute requires a showing
of a change of circumstances and that modification based on that change would
be in the ‘best interests’ of the minor children.†(In re
Kimberly F. (1997) 56 Cal.App.4th 519, 526.) “The most sustained reflection on the
nature and role of section 388 appears in our Supreme Court's decision in
295. Essentially, Marilyn H. teaches us that section 388 really 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. (See Marilyn
H., supra, 5 Cal. 4th at p.
309.) As such, section 388 is vital to
the constitutionality of our
dependency scheme as a whole, and the termination statute, section 366.26, in
particular. (See 5 Cal. 4th at p. 309.)â€
(In re Kimberly F.,
section 388 petition for abuse of discretion.
(In re Stephanie M. (1994) 7
Cal.4th 295, 318.)
The trial
court’s decision is unjustifiable. The
children were removed in October 2008 because Mother and her boyfriend had used
corporal punishment on J.H. and R.R. In
December 2009, Mother and her boyfriend were involved in some sort of violent
altercation with a 37-year-old wheelchair-bound man, who was also a paroled
violent felon residing at the home where one of Mother’s children had been
placed, and who ended up shooting the boyfriend. As to the corporal punishment issue, Mother
and her boyfriend explained that they were disciplining J.H. and R.R. in the
same way that Mother and her boyfriend had been disciplined as children in
Arkansas. When informed that their
conduct was unlawful in California, they expressed remorse and pledged that
their conduct would not be repeated; the record contains no evidence that they
have ever wavered from that commitment.
As to the altercation with the paroled violent felon, the record
contains no evidence that either Mother or her boyfriend has been involved in
any kind of inter-adult violence since then, or that any is likely to
occur in the future. Both Mother
and her boyfriend voluntarily entered a parenting program before any had been
ordered. Thereafter, Mother made
consistent progress in all court-ordered programs and actually completed all of
them (with flying colors, according to documents in the record)
terminated. Her boyfriend likewise
completed anger management and parenting programs. Mother is now employed as a licensed
vocational nurse (she was unemployed for a period of time during the pendency
of these proceedings), works with disabled children and adults, and has
received a glowing performance evaluation.
Her home is “clean, neat and well kept†and raises “[n]o
current safety issues or concerns.â€
R.R. has been living with Mother at least since November 2011, without
incident. J.H. had unmonitored visits with
Mother beginning in August 2011, also without incident, and has now been
returned to her custody. The DCFS itself
was recommending unmonitored or overnight visits for C.D. five months before
reunification services were terminated, with the stated aim of returning C.D.
to Mother’s custody in May 2011. But to
this day Mother has not been given the opportunity for a single unmonitored
visit with C.D., and now her parental rights have been terminated.
The
existence of changed circumstances is not open to serious dispute—the trial
court itself found changed circumstances as to J.H. Between November 2010, when the trial court
entered its disposition order as to C.D. (which has remained unchanged), and
June 2012 (when the trial court denied Mother’s last petition under section
388), at least the following changes had taken place: Mother timely completed all court-ordered
programs; her boyfriend timely completed parenting and anger management
programs as well; Mother secured employment and received an excellent
performance evaluation; Mother’s home was inspected and approved by the DCFS;
R.R. was returned to Mother’s custody and lived there for at least six months
without incident; and J.H. received unmonitored visits with Mother for nine
months without incident.
The
remaining issue is C.D.’s best interests.
The trial court apparently concluded that returning C.D. to Mother’s
custody would not be in C.D.’s best interests because of a risk of abusive
corporal punishment. The record contains
no evidence to support that conclusion.
In addition to completing all court-ordered programs, Mother has
repeatedly renounced the use of corporal punishment, both in writing and in
sworn testimony before the court. Her
boyfriend has likewise stated that he will not use corporal punishment. R.R. has been living with Mother at least
since November 2011, and J.H. has had unmonitored visits with her since August
2011. There is no evidence that any corporal
punishment has been used during that time.
In sum, there is no evidence that returning C.D. to Mother’s custody
(particularly under DCFS supervision) would not be in C.D.’s best interests.
For all of the foregoing reasons, we conclude
that the trial court abused its discretion by denying Mother’s section 388
petition seeking the return of C.D. to her custody. We sympathize, however, with the DCFS’s
concern that an abrupt return might be difficult for C.D. because he has had no
unmonitored or overnight visits with Mother since he was removed in October
2008. We therefore direct the trial
court on remand to authorize the DCFS to arrange a brief transitional period of
unmonitored and overnight visits for C.D. in preparation for his return to
Mother’s custody at the earliest possible date.
DISPOSITION
The June
25, 2012, order denying Mother’s section 388 petition as to C.D. is reversed,
the order terminating her parental rights as to C.D. vacated, and the trial
court is directed to enter a new and different order granting Mother’s petition
and returning C.D. to her custody under DCFS supervision following, if
necessary, a brief transitional period of unmonitored and overnight
visits. If the parties file a
stipulation to immediate issuance of the remittitur, then the clerk shall
issue the remittitur forthwith. (Cal.
Rules of Court, rule 8.272(c)(1).)
NOT TO BE PUBLISHED.
ROTHSCHILD,
Acting P. J.
We concur:
CHANEY, J. JOHNSON,
J.
name="_ftn1" title="">[1] All subsequent statutory references are to the Welfare and
Institutions Code.
note that the record contains no evidence that either Mother or her boyfriend
ever struck any of the children in anger.
The record also contains no evidence that either Mother or her boyfriend
ever suffered from an anger management problem before Mother’s child was
removed from her custody and placed in a home where a violent felon on parole
was residing.
